Regulatory Guidance for the Federal Motor Carrier Safety Regulations

SUMMARY: This document presents interpretive guidance material for the

Federal Motor Carrier Safety Regulations (FMCSRs) now contained in the

FHWA's Motor Carrier Regulation Information System (MCREGIS). The FHWA

has consolidated previously issued interpretations and regulatory

guidance materials and developed concise interpretive guidance in

question and answer form for each part of the FMCSRs. These questions

and answers are generally applicable to drivers, commercial motor

vehicles, and motor carrier operations on a national basis. All prior

interpretations and regulatory guidance of the FMCSRs issued previously

in the Federal Register, as well as FHWA memoranda and letters, may no

longer be relied upon as authoritative insofar as they are inconsistent

with the guidance published today. Many of the interpretations of the

FMCSRs published on November 23, 1977, and the interpretations of the

Inspection, Repair, and Maintenance regulations published on July 10,

1980, have been revised. These revisions are reflected in the new

questions and answers. This document also includes regulatory guidance

issued since November 17, 1993, when the agency last published a

collection of such guidance. Future regulatory guidance will be issued

within the MCREGIS which will be kept current in the FHWA's Office of

Motor Carrier Standards. The MCREGIS will be updated periodically and

published in the Federal Register so that interested parties may have

ready reference to official interpretations and guidance regarding the

FMCSRs. This guidance will provide the motor carrier industry with a

clearer understanding of the applicability of many of the requirements

contained in the FMCSRs in particular situations.

EFFECTIVE DATE: May 4, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. Neill L. Thomas or Mr. Nathan C.

Root, Office of Motor Carrier Standards, (202) 366-1790, or Mr. Charles

E. Medalen, Office of the Chief Counsel, (202) 366-1354, Federal

Highway Administration, Department of Transportation, 400 Seventh

Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to

4:15 p.m., e.t., Monday through Friday, except Federal legal holidays.

SUPPLEMENTARY INFORMATION: This document is an update of the notice of

regulatory guidance for the FMCSRs issued by the FHWA November 17, 1993

(58 FR 60734). This notice contains previously issued, revised, and new

regulatory guidance pertaining to Title 49, Code of Federal Regulations

(CFR), Parts 40, 325, 382, 383, 384, 386, 387, 390 to 393, 395 to 397,

and 399 of the FMCSRs. In some instances, old regulatory guidance has

been removed. The information published in this document supersedes all

previously issued interpretations and regulatory guidance, to the

extent they are inconsistent with the guidance published today,

including that published on November 23, 1977, at 42 FR 60078, and on

July 10, 1980, at 45 FR 46425. To the maximum extent possible, all

valid prior opinions have been incorporated into this document. This

notice is consistent with the Small Business Regulatory Enforcement

Fairness Act of 1996 (Pub. L. 104-121, March 29, 1996).

The FHWA issued a final rule on March 8, 1996, which codified most

of the regulatory guidance for CDL waivers under Sec. 383.3 (61 FR

9546). Guidance concerning CDL waivers had been issued under

Sec. 383.7. From the 1993 Regulatory Guidance notice for Sec. 383.7,

only questions 7(a), 8, 9, 10, 16, 17, 21, and 22 still remain. These

questions and guidance are now listed as guidance for Sec. 383.3, where

the CDL waivers have been codified.

Guidance for question 3 under Sec. 383.5 has been changed to

reflect a more expansive version of the same guidance in existence

prior to the November 1993 Notice. Guidance for question 2 under

Sec. 383.93, as it appeared in the 1993 notice, has been revised to

clarify the existing guidance. Guidance for question 1 under

Sec. 390.31 has been expanded to include guidance derived from a Final

Order issued by the Department (58 FR 62467). Guidance for question 1

of Sec. 391.1 has been changed to remove a reference to part 391

subpart H. Guidance for question 6 under Sec. 391.11 has been moved to

Sec. 392.9. Guidance for question 2 under Sec. 391.27 has been removed:

violations of size and weight laws are not considered violations of

motor vehicle traffic laws. Question 1 for Sec. 391.41 has been changed

for clarity. Guidance for question 1 under Sec. 391.43 has been

expanded for greater clarity. Guidance for Sec. 392.62 has been moved

to Sec. 391.41. Guidance for question 1 of Sec. 393.51, question 1 of

Sec. 393.65, question 1 of Sec. 393.75, question 5 of Sec. 393.100, and

question 1 of Sec. 393.106 have been amended for clarity. Guidance for

question 1 under Sec. 393.95 has been incorporated into the regulations

(58 FR 34708) and is therefore removed from this document. Guidance for

Sec. 395.1 has been reordered to consecutively follow the paragraphs

within the section. Question 15 under Sec. 395.2 was expanded by

guidance issued June 11, 1995. Question 20 under Sec. 395.2 has been

revised to reflect an interpretation previously issued August 15, 1991,

treating the same issue in a more explicit manner. Question 1 under

Sec. 397.1 has been changed to more accurately explain who must comply

with part 397. The 1994 Regulatory Guidance booklet, which reprinted

the interpretations issued in the Federal Register in 1993, is

available in the public docket on this rulemaking for reference

The FHWA issued an advance notice of proposed rulemaking on

November 5, 1996 (61 FR 57252) concerning the hours of service

regulations (49 CFR part 395). On page 57258 of the notice, the FHWA

erroneously indicated that an interpretation which allowed CMVs to be

driven from motels to restaurants in the vicinity as ``off-duty time''

had recently been rescinded. The FHWA intended to rescind recent

interpretations that describe conditions under which a CMV may be used

as a ``personal conveyance'' (issued August 10, 1995), and address the

entire issue of personal conveyance through notice and comment

rulemaking. Question 8 under Sec. 395.2 has been expanded by guidance

issued November 18, 1996, and placed more appropriately under

Sec. 395.8 (see Sec. 395.8, question 27). All prior interpretations of

personal conveyance are invalid.

Since 1993, new interpretive guidance has been issued for, or

existing guidance has been removed from, the following sections:

49 CFR Part 40 Secs. 40.3, 40.21, 40.23, 40.25, 40.29, 40.31, 40.33,

40.35, 40.39, 40.69, 40.81, 40.93, Special Topics--Requirements for

Random Testing, Special Topics--Procedures for Handling and Processing

a Split Specimen

49 CFR Part 382 Secs. 382.103, 382.105, 382.107, 382.109, 382.113,

382.115, 382.204, 382.205, 382.213, 382.301, 382.303, 382.305, 382.307,

382.401, 382.403, 382.405, 382.413, 382.501, 382.507, 382.601, 382.603,

382.605, Subpart B--Prohibitions, Special Topics--Responsibility for

Payment for Testing, Special Topics--

[[Page 16371]]

Multiple Service Providers, Special Topics--Medical Examiners

Acting as MRO, Special Topics--Biennial (Periodic) Testing Requirements

49 CFR Part 383 Secs. 383.3, 383.5, 383.7, 383.31, 383.71, 383.73,

383.91, 383.93, Special Topics--International

49 CFR Part 384 Secs. 384.209, 384.211

49 CFR Part 387 Secs. 387.9, 387.15, 387.39

49 CFR Part 390 Secs. 390.3, 390.5, 390.15, Special Topics--Serious

Pattern of Violations

49 CFR Part 391 Secs. 391.1, 391.11, 391.27, 391.41, 391.43, 391.49,

391.51, 391.63

49 CFR Part 392 Secs. 392.5, 392.9, 392.62

49 CFR Part 393 Secs. 393.11, 393.42, 393.48, 393.51, 393.65, 393.75,

393.89, 393.95, 393.100, 393.106, 393.201

49 CFR Part 395 Secs. 395.1, 395.2, 395.8, 395.13, 395.15

49 CFR Part 396 Secs. 396.11, 396.17, 396.23

Additional guidance will continue to be published in future issues

of the Federal Register. The FHWA will be modifying or removing

numerous regulations as part of President Clinton's Regulatory Reform

Initiative. Many of these changes will have an impact on the regulatory

guidance in this document. These changes will be reflected in future

issues of the Federal Register. Members of the motor carrier industry

and other interested parties may access the guidance in this document

through the FHWA's Electronic Bulletin Board System (FEBBS) using a

microcomputer and modem. The FEBBS is a read-only facility. Access

numbers for FEBBS are (202) 366-3764 for the Washington, DC area, or

toll-free at (800) 337-3492. The system supports a variety of modem

speeds up to 14,400 baud line speeds, and a variety of terminal types

and protocols. Modems should be set to 8 data bits, full duplex, and no

parity for optimal performance. Once a connection has been established,

new users will have to go through a registration process. Instructions

are given on the screen. FEBBS is mostly menu-drive and hot keys are

indicated with ``'' enclosing the hot key. After logging on to FEBBS

and arriving at the MAIN MENU, select for Conference; then for

Motor Carrier; then either again for MCREGIS Questions and Answers,

or for Information (more detailed help).

For Technical Assistance to gain access to FEBBS, contact: FHWA

Computer Help Desk, HMS-40, room 4401, 400 Seventh Street, SW,

Washington, DC 20590 (202) 366-1120. Specific questions addressing any

of the interpretive material published in this document may be directed

to the contact persons listed above, the FHWA Regional Offices, or the

FHWA Division Office in each State.

For ease of reference, the following listing of acronyms used

throughout this document is provided:

Appendix G--The Minimum Periodic Inspection Standards published as

an appendix to the Federal Motor Carrier Safety Regulations

BAT--Breath Alcohol Technician

CDL--Commercial Driver's License

CDLIS--Commercial Driver's License Information System

CFR--Code of Federal Regulations

CMV--Commercial Motor Vehicle

CMVSA--Commercial Motor Vehicle Safety Act of 1986

COE--Cab-over-engine truck tractor

C/TPA--Consortium or Third-Party Administrator

CVSA--Commercial Vehicle Safety Alliance

DHHS-SAMHSA--Department of Health and Human Services, Substance

Abuse Mental Health Services Administration

DOT--U.S. Department of Transportation

DVIR--Driver Vehicle Inspection Report

DWI--Driving While Intoxicated

EAP--Employee Assistance Program

EPA--U.S. Environmental Protection Agency

FHWA--Federal Highway Administration

FMCSRs--Federal Motor Carrier Safety Regulations

FMVSS--Federal Motor Vehicle Safety Standards (developed and issued

by the National Highway Traffic Safety Administration)

FR--Federal Register

FRSI--Farm-Related Service Industries

GCWR--Gross Combination Weight Rating

GVW--Gross Vehicle Weight

GVWR--Gross Vehicle Weight Rating

HM--Hazardous Materials

HMRs--Hazardous Materials Regulations

HMTUSA--Hazardous Materials Transportation Uniform Safety Act of

1990

ICC--Interstate Commerce Commission

Forms MCS-90 and MCS-90B--Endorsements for Motor Carrier Policies of

Insurance for Public Liability Under Sections 29 and 30 of the Motor

Carrier Act of 1980 issued by an insurer

MCSA--Motor Carrier Safety Act of 1984

MPH--Miles Per Hour

MRO--Medical Review Officer

NDR--National Driver Register

NHTSA--National Highway Traffic Safety Administration within DOT

RDMC--Regional Director of Motor Carriers

SAP--Substance Abuse Professional

SSN--Social Security Number

STAA--Surface Transportation Assistance Act of 1982

STT--Screening Test Technician

U.S.C.--United States Code

Table of Contents

Part 40--Procedures for Transportation Workplace Drug and Alcohol

Testing Programs

Part 325--Compliance With Interstate Motor Carrier Noise Emission

Standards

Part 382--Controlled Substances and Alcohol Use and Testing

Part 383--Commercial Driver's License Standards; Requirements and

Penalties

Part 384--State Compliance With Commercial Driver's License Program

Part 386--Rules of Practice for Motor Carrier Safety and Hazardous

Materials Proceedings

Part 387--Minimum Levels of Financial Responsibility for Motor

Carriers

Part 390--Federal Motor Carrier Safety Regulations; General

Part 391--Qualifications of Drivers

Part 392--Driving of Motor Vehicles

Part 393--Parts and Accessories Necessary for Safe Operation

Part 395--Hours of Service of Drivers

Part 396--Inspection, Repair and Maintenance

Part 397--Transportation of Hazardous Materials; Driving and Parking

Rules

Part 399--Employee Safety and Health Standards

Regulatory Guidance

Part 40--Procedures for Transportation Workplace Drug and Alcohol

Testing Programs

Sections Interpreted

40.3 Definitions

40.21 The Drugs

40.23 Preparation for testing

40.25 Specimen collection procedures

40.29 Laboratory analysis procedures

40.31 Quality assurance and quality control

40.33 Reporting and review of results

40.35 Protection of employee records

40.39 Use Of DHHS-certified laboratories

40.69 Inability to provide an adequate amount of breath

40.81 Availability and disclosure of alcohol testing information

about individual employees

40.93 The screening test technician

Special Topics--Requirements for random testing

Special Topics--Procedures for Handling and Processing a Split

Specimen

Section 40.3 Definitions

Question 1: May a Doctor of Chiropractic, holding a Certified

Addiction Professional degree, serve as an MRO?

Guidance: A Doctor of Chiropractic, holding a Certified Addiction

Professional degree, is not considered to be a licensed medical doctor

or doctor of osteopathy and, therefore, cannot serve as an MRO.

Question 2: What are the qualifications and responsibilities of the

MRO? Are MROs required to be certified?

Guidance: Section 40.3 defines the qualifications for an MRO and

Sec. 40.33 specifies the MRO's responsibilities. An MRO is defined as a

licensed physician (medical doctor or doctor of osteopathy) responsible

for receiving laboratory

[[Page 16372]]

results generated by an employer's drug testing program who has

knowledge of substance abuse disorders and has appropriate medical

training to interpret and evaluate an individual's confirmed positive

test result together with his or her medical history and any other

relevant biomedical information. An MRO is responsible for reviewing

and interpreting confirmed positive test results obtained through the

employer's testing program. The DOT does not require any certification

of MROs at the present time. However, there are several national

professional organizations which provide MRO certification.

Section 40.21 The Drugs

Question 1: Is testing for additional drugs authorized? Must a

separate specimen be obtained?

Guidance: Under part 40, an employer must test for the following

drugs: marijuana, cocaine, amphetamines, opiates, and phencyclidine. An

employer may not test for any other substances under DOT authority.

Part 40 does not, however, prohibit an employer from testing for other

controlled substances as long as that testing is done under the

authority of the employer.

Employers in the transportation industry who establish a drug

testing program that tests beyond the five drugs currently required by

part 40 must also make clear to their employees what testing is

required by DOT authority and what testing is required by the company.

Additionally, employers must ensure that DOT urine specimens are

collected in accordance with the provisions outlined in part 40 and

that a separate specimen collection process including a separate act of

urination is used to obtain specimens for company testing programs.

Question 2: Should labs conduct tests for five (5) drugs even if

the drug testing custody and control form fails to indicate what tests

are to be performed?

Guidance: Part 40 indicates that DOT agency drug testing programs

require that employers test for marijuana, cocaine, opiates,

amphetamines, and phencyclidine (Sec. 40.21). All DOT specimens,

therefore, must be tested for the above five categories of drugs even

if the accompanying drug testing custody and control form fails to

indicate this.

While the DOT does not view this type of collection site error as a

fatal flaw, it nevertheless jeopardizes the integrity of the entire

collection process and could lead to a challenge and subsequent third

party review. These errors should be addressed with the site supervisor

in the hope of preventing future mistakes.

Section 40.23 Preparation for Testing

Question 1: On the testing of a split specimen, is it necessary to

maintain anonymity of a person, at the laboratory level, when both the

primary laboratory and the laboratory testing the split may have fees

and could directly bill the employee?

Guidance: Section 40.23(a) addresses mandatory use of the Federal

Drug Testing Custody and Control Form in DOT urine collection and

testing. This paragraph states, in part, that ``* * * personal

identifying information on the donor (other than the social security

number or other employee ID number) may not be provided to the

laboratory.'' If circumstances arise in which the MRO orders a test of

the split specimen, at the request of the employee, no additional

identifying information on the employee may be provided to the

laboratory that will be testing the split specimen. As directed by

Sec. 40.33(f), ``* * * The MRO shall direct, in writing, the laboratory

to provide the split specimen to another DHHS-certified laboratory for

analysis.'' This request would reference only items contained on the

face of the Drug Testing Custody and Control Form (e.g., Specimen

Identification No., SSN or Employee ID No., Collection Date, etc.); the

MRO would not specify the employee's name. Should a personal check

(bearing the employee's name) accompany the request (e.g., a letter

from the MRO), the MRO should not make any particular reference linking

the split request with the person signing the check. In actuality, the

primary laboratory will most likely bill the employer for the cost of

sending the split specimen to the split laboratory; the split

laboratory will normally require a cashier's check, money order, or an

account to be set up (generally by the employer) prior to initiating

processing.

Question 2: In a case where an employee is providing a urine

specimen and a breath test is conducted at the same time, may a

laboratory receive both the Federal Drug Testing Custody and Control

Form (with the specimens for testing) and the employer's copy of the

Breath Alcohol Testing Form (with the test results) from the collection

site?

Guidance: The DOT provided clarification in its Guidance on the

Role of Consortia and Third-Party Administrators in DOT Drug and

Alcohol Testing Programs published on July 25, 1995 in the Federal

Register which stated in part ``* * * MROs and BATs must send final

individual test results directly to the actual employer as soon as the

results are available * * * results may be maintained afterwards by the

C/TPA * * * while there is no objection to the MRO or BAT transmitting

results simultaneously both to the employer and to the C/TPA, it is not

appropriate for the MRO or BAT to send the results only to the C/TPA,

which subsequently retransmits them to the employer.''

A laboratory, regardless of what type of arrangement it has with

the employer, is prohibited from receiving the employer's copy of the

Breath Alcohol Testing Form together with the Federal Drug Testing

Custody and Control Form(s) which accompany the urine specimen. The

breath testing form contains individual identifying information. The

DOT rule specifically states that this information may not be provided

to a laboratory.

However, a laboratory functioning as a C/TPA may receive the

employer's copies of the Federal Drug Testing Custody and Control Form

and the employer's copy of the Breath Alcohol Testing Form from the

collection site under the following conditions:

a. The employer's copy of the Federal Drug Testing Custody and

Control Form (Copy 7) must not be included with the laboratory copies

(Copies 1 and 2) which accompany the urine specimen.

b. The employer's copies of the Federal Drug Testing Custody and

Control Form and the Breath Alcohol Testing Forms must not be received

by the accession/receiving (testing) section of the laboratory.

These procedures should prevent that portion of the laboratory

which conducts the drug analysis from having access to the identity

(from the alcohol testing form) of the donor.

The DOT rule requires the BAT immediately to transmit the results

to the employer, regardless of what procedures have been established

for providing to the employer or the C/TPA, the employer's copy of the

breath testing form.

In all instances, it is the employer (not the C/TPA) who designates

in writing to the BAT or the BAT's company, who the employer's agent is

and the procedures that the employer wants the BAT to use for

transmission of data and forms.

Question 3: Is a specific MRO name required in Step 1 on the

Federal Drug Testing Custody and Control Form, or may a clinic,

hospital, health care organization, or MRO company name appear in the

MRO Name and Address area?

Guidance: The DOT has determined that a specific physician's name

and address is required in Step 1 of the

[[Page 16373]]

Federal Drug Testing Custody and Control Form as opposed to only a

generic clinic, health care organization, or company name. The name

should be that of a responsible physician rather than an administrative

staff member or other company official. However, a company name may

appear as part of the address, provided it is followed by or includes

the MRO's name. Collection sites send copies of the MRO's custody and

control form to this address, and drug testing laboratories use it to

submit laboratory results to the MRO. The use of the MRO name will

preclude potential compromises of confidentiality. In many cases, where

only the name of a clinic, hospital or company appears on the mailing

address, the laboratory results are sent to the clinic or hospital and

are either circulated through numerous departments or, in some cases,

never reach the MRO.

The physician named in Step 1 may be the MRO who will actually

perform the verification review or the name of a physician within the

practice (company), but not necessarily the one who will actually

perform the verification (in those cases where there is more than one

MRO working in that office or company).

Question 4: Is the collector's signature required on the chain of

custody section of drug testing custody and control form?

Guidance: The collector's signature is required in both the

``received by'' and the ``released by'' spaces in Step 6 of the drug

testing custody and control form. Part 40 Appendix A specifies that the

form shall provide both ``received by'' and ``released by'' entries of

the collector's signature and printed names (see the instructions on

the back of Appendix A, copy 7, Step 6. Combining these entries is not

authorized by the rule.

Question 5: May the drug testing custody and control form be used

for non-DOT tests?

Guidance: Employee drug testing conducted under local, State, or

private authority must not be represented to the employee as being

Federally mandated or required. The use of the custody and control form

required under 49 CFR part 40 conveys that the testing is being

conducted in accordance with applicable Federal regulations. A ``look-

alike'' form that deletes references to DOT, Part 40, and Federal

requirements may be used for non-DOT testing.

Question 6: Is collection of blood authorized? May blood specimens

be supported by the drug testing custody and control form? May blood

test results be used to take DOT-required administrative actions?

Guidance: The collection of blood for alcohol or drug testing under

DOT authority is not authorized. Therefore, while a company, under its

own authority, may require a blood specimen to be collected and tested

for drugs and/or alcohol under certain circumstances, it is not

acceptable for the company-required blood specimen to be supported by

the same custody and control form that accompanies a DOT-required urine

specimen.

If a urine specimen for a DOT reasonable suspicion test is rejected

for testing at the laboratory, results from a blood specimen collected

in accordance with a company policy could be used to take action

against an employee depending upon the drug testing policy established

by that company. Under no circumstances, however, may the results of

the blood test be used to take administrative or disciplinary action

against an employee using DOT authority, for the reasons cited above.

Question 7: Is the collector required to sign or initial the

shipping container label?

Guidance: Sections 40.23(c) and 40.25(h) describe the requirements

for packaging the specimen and custody and control form in preparation

for shipment to the laboratory. Section 40.23(c) states that the

shipping container must be sealed and initialed to prevent undetected

tampering. Section 40.25(h) states that the collection site person

shall sign and enter the date specimens were sealed in the shipping

containers for shipment. The DOT has determined that initialing and

dating the seal by the collection site person is sufficient to meet the

intent of the regulation.

Question 8: How and to whom are copies of drug testing custody and

control forms distributed?

Guidance: The historically acceptable procedures for handling the

custody and control form have been as follows: Parts 1, 2, and 3 must

accompany the urine specimen in a sealed shipping container to the

laboratory; Part 3 (Split Specimen) must be retained by the laboratory

in case the split specimen must be sent to a second laboratory; Part 4

must be sent from the collection site directly to the physician (MRO);

Part 5 is given to the donor at the collection site; Part 6 is retained

by the collection site personnel; and Part 7 is provided to the

employer representative. It is unacceptable for the MRO copy of the

form to accompany the urine specimen to the laboratory. Clearly the

intent of the regulation is for the urine specimen and Parts 1, 2, and

3 of the Federal custody and control form to be sent directly from the

collection site to the laboratory, and the MRO (Part 4) copy of the

custody and control form to be sent directly to the physician. There is

no need to maintain a chain of custody tracking the handling of the

sealed shipping container. In fact, the August 19, 1994 Federal

Register (59 FR 42996) expressly notes this fact in changes to

Sec. 40.25 to clarify this point.

Question 9: Should a specimen be rejected by a lab if the donor-

identifying information is erroneously provided?

Guidance: The intent of the DOT procedures is to limit the amount

of personal identifying information that is recorded on the specimen

bottle and those copies of the drug testing custody and control form

that accompany the specimen bottle to the laboratory. The rule only

requires that a donor initial the specimen bottle label/seal and

provide an SSN or employee identification number to be recorded on the

laboratory copies of the drug testing custody and control form. The

rule does not allow for additional personal information to be provided

to the laboratory. In fact, the intent was to prevent the donor's

identity from being routinely disclosed to the laboratory.

It was never intended, however, that the inadvertent or erroneous

disclosure of the donor's identity (i.e., name or signature) on the

specimen bottle or laboratory copies of the drug testing custody and

control form be a justification, in and of itself, for a laboratory to

reject the specimen for testing or for an MRO to invalidate the test

results. Furthermore, all accessioning procedures at laboratories

certified by the DHHS-SAMHSA requires that specimens be identified by

specimen identification number, donor identification number, and

laboratory accession number only. Even though laboratory accessioning

personnel may have access to a donor's name in these cases, the

analytical personnel will not. Therefore, the donor's identity is still

protected during the actual testing process.

Question 10: Must the collector provide a real name on the

collector certification section of drug testing custody and control

form?

Guidance: The intent of the DOT drug testing custody and control

form is to provide complete documentation of the specimen collection

process including the name of the collector and the location of the

collection site. The collection site person who receives the urine

specimen from the donor should be identified by name on the block

specifying ``collector's name.'' Use of a ``code name,'' collector I.D.

number, or

[[Page 16374]]

other substitution for the collector's name is not acceptable. The

collector's name should be the same as that appearing on the

identification each collector is required to make available to the

donor, if so requested.

Section 40.25 Specimen Collection Procedures

Question 1: Under what circumstances must an employee be observed

while submitting a urine sample? Under what circumstances is

observation an optional choice of the employer?

Guidance: A direct-observation collection is mandatory only when

the collection site person observes behavior clearly indicating an

attempt to tamper or when the specimen temperature is outside the

normal range and an oral body temperature reading is refused or is

inconsistent with the specimen temperature.

The collection site person would contact a higher-level supervisor,

or a designated employer representative, to relay the circumstances

which require the observed collection. The supervisor or representative

would review the circumstances for compliance with Part 40

requirements, and finding such, would approve in advance the decision

to do the observed collection. The collection site person--of the same

gender as the employee--would immediately conduct the observed

collection.

The employer has the discretion to require the employee to provide

a specimen under direct-observation collection procedures for the

return-to-duty test and any subsequent follow-up tests. The employer

also has the authority to require an employee to provide a specimen

under direct-observation procedures when the specific gravity and

creatinine content of the employee's previous sample are below the

regulatory standards. In the latter case, the MRO would receive the

test results from the laboratory (i.e., positive, negative, or in the

case where no immunoassay result is reported) along with information

that the specimen had a specific gravity of less than 1.003 and

creatinine concentration less than 0.2g/L. The MRO would inform the

employer of the laboratory findings. The employer would make the

decision to do a direct-observation collection on the employee on the

next DOT test that the employee is required to take.

It would be the employer's responsibility to notify the employee of

the decision to exercise the option to do the collection(s) under the

direct-observation procedure. The employer would authorize the

collection site person to do the observed collection(s), as applicable.

Directly observed collections are always performed by a collector of

the same gender as the employee.

Question 2: In a ``shy bladder'' situation, if the physician

conducting the medical examination is not the MRO, may that physician

report his/her conclusions directly to the employer? Also, if a company

has a corporate or contract physician, may that physician perform the

examination?

Guidance: The rule does not preclude the MRO from performing this

medical evaluation if the MRO has the expertise and is willing to

conduct this evaluation. The DOT's requirement that the MRO review the

results of the medical evaluation is related to the fact that the MRO

may have additional information on the circumstances surrounding the

attempt to provide the urine specimen, other pertinent information

regarding the collection process, problems or lack of problems during

previous collections, etc.

All reporting to the employer regarding the final determination on

the results of a urine specimen is accomplished by the MRO. This

includes the findings and conclusions of the medical examination.

If a company has a physician on the staff or has a contract

physician, this individual may perform the medical examination if he/

she has the required expertise. The company should ensure that the MRO

is informed of this arrangement and makes the referral to that

particular physician. However, the requirement still exists to submit

the findings of the evaluation to the MRO, who then reports his/her

conclusions to the employer. A company may also designate its staff

physician or contract physician as the MRO if that individual meets the

regulatory criteria.

Question 3: In a ``shy bladder'' scenario, may an employer require

an individual to provide a specimen within three hours, and if the

individual doesn't provide a specimen, is the inability considered to

be a refusal?

Guidance: The individual must provide the specimen within three

hours. The inability to provide does not automatically mean that the

individual being tested will be deemed to have refused testing. The

required medical evaluation would produce the information which the MRO

will use to draw final conclusions. If the finding by the MRO is that

there was no legitimate medical reason for the individual's inability

to provide the sufficient quantity of urine, then this finding

constitutes a refusal. A refusal to provide a specimen has the same

sanctions under the DOT rule as a positive test.

Once it has been determined that the employee has violated a DOT

rule (e.g., verified positive test, refusal), the employee must be

immediately removed from performing any safety-sensitive duties. The

employee may not again perform safety-sensitive duties until he or she

has met the conditions of the applicable operating administration

(e.g., Federal Highway Administration) rule for return to duty. The DOT

rule does not address employer policies on subsequent personnel

actions.

Question 4: In a ``shy bladder'' scenario, does DOT consider a

company's ordering the donor back to work prior to completion of the

time and fluid intake period an obstruction of the collection process?

Or, is the donor's failure to complete the collection, after having

been compelled by the employer to leave the collection site, considered

a refusal to test if no medical reason is provided for donor's failure

to provide the required amount of urine?

Guidance: A company's ordering the employee to return to work prior

to the expiration of the time period, with no provisions for personal

observation or for ensuring the employee's return to the collection

site, appears to be in clear violation of DOT rules. The employer is

not authorized to discontinue a test or to conduct a subsequent

collection at a later time in lieu of a current collection. The

employer could order the employee back to work while waiting for the

three-hour period to elapse, but the employer must ensure that the

employee drinks the prescribed amount of liquids, is under observation

during the entire period of time, and returns to the collection site

prior to the expiration of the three hours.

It should be noted that because the donor was not afforded the full

time period during which to provide a specimen, the donor's inability

to provide the required amount of urine does not constitute a refusal

to test but is the result of employer hindrance with the collection

process. The MRO should advise the employer of its violation of 49 CFR

part 40 and propose corrective action accordingly (i.e., establish

correct policy). In addition, the MRO may report the violation to the

appropriate DOT operating administration or may request that the DOT

Drug Enforcement and Program Compliance office report the matter. The

company is required to maintain, in accordance with the appropriate

governing regulation, a record of this ``test'' for review by a DOT

operating administration in the event of an audit.

[[Page 16375]]

Question 5: Is a current and valid picture/photo identification

required before a urine collection takes place or may a physical

description verification by telephone by an employer representative

suffice?

Guidance: The rule does not address if the photo identification is

current nor does it prohibit telephonic verification of identity. The

intent of the rule was that if the employee did not have proper

identification, an employer's representative would be on site to

identify that employee. There is no requirement that the representative

sign any type of form, although procedures should be established to

ensure the true identity of the representative.

If telephonic identification is used, specific procedures should be

in place to ensure that the employer representative is fully identified

to the collection site person and that reasonable procedures exist to

ensure that the employer's representative can truly identify the

employee. If the employee's identification cannot be established to the

satisfaction of the collection site person (or based on the collection

site protocol for identification), the collection should not be

completed. Additionally, any identification procedure allowed under

specific DOT operating administration's rules is also permissible.

Exception: If the donor is self-employed and has no photo

identification, the collector should notify the collection site

supervisor and record in the remarks section that positive

identification is not available. The donor must be asked to provide two

items of identification bearing his/her signature. Proceed with the

collection. When the donor signs the certification statement, compare

the donor's signature with signatures on the identification presented.

If the signatures appear consistent, continue the collection process.

If the signature does not match signatures on the identification

presented, make an additional note in remarks section stating that

``signature identification is unconfirmed'' and continue the collection

process.

When this (self-employed) donor does not have appropriate

identification this should not be considered a refusal. The collector

should remember that his/her primary function is to obtain a specimen

that can be tested for drugs under DOT rules. The collector should

provide sufficient information in the remarks section to help the MRO

make a determination regarding the merit of the collection process or

for the employer to determine if there are systemic problems or other

shortfalls in its policy/program.

Question 6: May a urine specimen collection site be constructed to

have two or more collectors or must each collection ``station'' be

physically separated by a barrier or wall to ensure modesty and privacy

of the donor?

Guidance: In specifying privacy and security of the collection

site, the DOT was concerned that the act of urination by a donor would

have maximum privacy under most circumstances and that the specimen

sample would be under sufficient security to prevent any allegation of

tampering. Additionally, the regulatory requirement exists that the

collection site person have only one donor under his/her supervision at

any one time. In other words, one collection site person may not

process the paperwork or collect a specimen from more than one donor at

a time. There are collection sites, particularly at health clinics,

that may have ``stations'' or booths which are partially partitioned

from each other or from the rest of the clinic. The collection site

person usually gathers relevant information from the donor at the

booth, completes the necessary paperwork, and escorts the donor to a

toilet area where the donor can provide a specimen in privacy.

The rule does not permit unauthorized personnel in any part of the

designated collection site where urine specimens are collected or

stored. In the multiple booth situation, another collection site person

would not be considered an unauthorized person. However, when other

donors are present in a waiting area or another donor is being

processed by another collection site person, the integrity of the

specimen must be ensured. During the collection process, the collection

site person must ensure that the specimen is under his or her direct

control from the time the specimen is provided by the donor to the time

it is sealed in the mailer. Additionally, regardless of the physical

configuration of the collection site, there is the expectation that the

donor will have some semblance of aural and visual privacy. For

example, a donor may tell the collector that he/she is suffering from a

particular illness, is on medication, or that he/she has an indwelling

catheter, and wonder if this will impact on the test results. The donor

should be able to make these statements without embarrassment or

concern that another individual (i.e., another collector or donor) may

overhear or see what the donor is providing to the collector.

Question 7: May donors be required to remove all clothing, wear a

hospital gown, or empty pockets?

Guidance: The DOT's procedures for transportation workplace drug

testing programs contained in Sec. 40.25(f)(4) states: ``The collection

site person shall ask the individual to remove any unnecessary outer

garments such as a coat or jacket that might conceal items or

substances that could be used to tamper with or adulterate the

individual's urine specimen. The collection site person shall ensure

that all personal belongings such as a purse or briefcase remain with

the outer garments. The individual may retain his or her wallet.''

(Emphasis added.)

While it is clear that the rule does allow for collectors to

request that donors remove unnecessary outer garments in order to

ensure the integrity of the collection, the rule does not authorize

collectors to require or request that donors remove other garments as

well, e.g. shirts, blouses, pants, or skirts, thereby ensuring a

modicum of privacy and reducing potential embarrassment. Additionally,

donors may not be required or requested to wear hospital or examination

gowns when providing a specimen.

There is an exception to the above. The DOT has determined that if

a urine specimen is being collected as part of a DOT-required physical

examination (i.e., Sec. 391.43 Medical examination; certificate of

physical examination) in which an individual is required to disrobe and

wear a hospital or examination gown, the collection may be completed

with the donor so attired.

It should also be noted that if a collection site person, during

the course of a collection procedure, notices an unusual indicator that

an individual may attempt to tamper with or adulterate a specimen as

evidenced by a bulging or overstuffed pocket for example, the collector

may request that the donor empty his or her pockets, display the items,

and explain the need for them during the collection. This procedure may

be done only when there is a suspicion that an individual may be about

to tamper with or adulterate a specimen. Otherwise, requiring donors to

empty their pockets as a common practice is also prohibited under the

current rules.

Question 8: Please clarify donor identifying information

requirements on the drug testing custody and control form.

Guidance: In accordance with Sec. 40.25(f)(20), the donor/employee

is required to initial the specimen bottle seal/label. The employee/

donor's identification number or SSN is to be

[[Page 16376]]

provided on the custody and control form and shall not be included on

the specimen bottle seal/label. Other donor identification (i.e., name,

signature) should not be provided on the copies of the custody and

control form that accompany the specimen to the laboratory. However,

disclosure of the donor's name/signature does not, in and of itself,

require that the specimen be rejected for testing by the laboratory.

Question 9: Is a consent form authorized?

Guidance: Section 40.25(f)(22)(ii) states, ``When specified by DOT

agency regulation or required by the collection site (other than an

employer site) or by the laboratory, the employee may be required to

sign a consent or release form authorizing the collection of the

specimen, analysis of the specimen for designated controlled

substances, and release of the results to the employer.'' The purpose

of this statement is to allow collection sites or laboratories, of

their own accord, or when required by a DOT agency regulation, to

utilize consent or release of information forms for the collection,

analysis, and release of specimen results to the employer.

Sec. 40.25(f)(22)(ii) continues, ``The employee may not be required to

waive liability with respect to negligence on the part of any person

participating in the collection, handling, or analysis of the specimen

or to indemnify any person for the negligence of others.'' The intent

of this statement is to prevent anyone who participates in either the

collection, handling, or analysis of the specimen from trying to

require the employee to exempt them from liability arising from their

actions. This pertains not only to collection site and laboratory

personnel, but also to MROs, their staff, if applicable, and to the

employer. Failure of an employee to sign the consent form does not

equal a refusal to test and the test must proceed in all circumstances.

The DOT also intends that this interpretation shall be followed for

alcohol testing requirements.

Question 10: Is the donor's presence required when the collector

prepares a specimen for shipment?

Guidance: The tamper-proof seal placed on the specimen bottle must

be affixed in the presence of the donor, but the regulation is clear

that the donor does not have to be present when the specimens are

prepared for shipment to the laboratory. The collection site person is

the only person required to sign or initial the seal on the shipment

container. In fact, the rule allows the use of shipment containers that

accommodate multiple specimen bottles. It would be impossible to have

more than one donor witness the sealing of their specimen bottles in

one shipment container when collectors are required by rule to deal

with only one donor at a time.

Question 11: In a post-accident situation requiring both a company

test and a DOT test, which should be conducted first?

Guidance: In a post-accident situation in which drug/alcohol

testing is required under company authority or policy, and DOT-mandated

tests are required, the DOT tests must be conducted first.

Question 12: Please address the issue of low specific gravity/

creatinine.

Guidance: Laboratory reports. The laboratory may report in the

laboratory remarks section of the custody and control form that

specific gravity is less than 1.003 and creatinine is less than 0.2

grams per liter. Actual values of specific gravity and creatinine

should not be reported.

Medical Review Officer Interpretations MROs shall report the

laboratory findings (positive, negative or not tested (canceled)) to

the employer and that specific gravity and creatinine are below 1.003

and 0.2 g/l, respectively.

Employer Actions The employer shall not require the driver to

submit to another specimen collection under FHWA authority. A dilute

specimen does not constitute reasonable suspicion of controlled

substance use. The employer may require the next specimen, required by

DOT regulations, submitted by the driver to be collected under direct

observation.

Question 13: What should donors do if specimen collection

procedures are not being followed?

Guidance: Under DOT agency regulations, the employer is responsible

for ensuring that specimens are collected in accordance with part 40.

If the employees subject to DOT-mandated drug testing regulations

believe that part 40 collection procedures are not being followed, they

should so inform the employer. If the employer does not respond to the

complaints and take appropriate corrective actions, the employees may

seek resolution of their complaints through a DOT agency that has

regulatory authority over the employer.

Question 14: Is failure to check the temperature box on the drug

testing custody and control form considered a fatal flaw?

Guidance: In accordance with Sec. 40.29, the collector is to check

the temperature of the specimen to ensure the integrity of the

specimen. The fact that it was checked should be marked appropriately

on the custody and control form. Inadvertently not marking the

temperature-taken box, in and of itself, does not constitute a ``fatal

flaw'' in the DOT chain of custody process.

Question 15: What are the collection site requirements?

Guidance: Section 40.25(a)-(b) outlines employer requirements for

designating and maintaining the security of collection sites. To

summarize the contents of this section, a collection site must at a

minimum provide: (1) An enclosure where privacy for urination is

possible; (2) A toilet for urination (unless a single use, disposable

container is used with sufficient capacity to contain the entire void);

(3) A source of water for washing hands; (4) A suitable writing surface

for completing the required paperwork (custody and control form); and

(5) Restricted access so that the site is secure during collection.

Any facility, including a physician's office, that meets the

minimum requirements may be used as a collection site for DOT-required

drug tests. It is the employer's responsibility to not only designate

and ensure that collection sites meet these minimum requirements, but

also to ensure that collection site personnel at these locations are

properly trained and/or qualified to collect urine specimens in

accordance with the provisions outlined in 49 CFR part 40.

Question 16: Are middle names required on the drug testing custody

and control form?

Guidance: Section 40.25(a) specifies that the custody and control

form used to document DOT mandated drug testing shall provide space for

collector, donor, and laboratory certifying scientist names and

signatures. The regulation does not specify that a middle name or

initial must be used. The intent of the regulation is to provide for

the identification of the person(s) signing the certification

statements. The use of supplemental instructions on the custody and

control form (e.g. further defining name to include first, middle,

last), does not impact on the security, identification, or integrity of

the urine specimen and should not be used as a basis for invalidating

the specimen results.

Section 40.29 Laboratory Analysis Procedures

Question 1: May a laboratory provide ``one-stop shopping'' to an

employer by including the services of a MRO or a list of MROs (which

the laboratory does not employ) from which the employer or client could

select a specific MRO?

Guidance: Under current DOT interpretation of the rule, a

laboratory

[[Page 16377]]

would be prohibited from supplying a limited list of MROs from which

the employer would select individuals that would provide MRO services.

In this circumstance, there is a clear financial advantage to the MROs

who appear on the laboratory list, since this makes them among the

candidates for use by that laboratory's clients. This advantage could

readily be viewed as providing these MROs an incentive to maintain a

good relationship with the laboratory, so as to ensure that they remain

on the list, which is in their financial interest. The existence of

this incentive could, in turn, call into question the objectivity and

independence of the MROs in the review of the test results and the

reporting to relevant officials of any potential errors in test results

or procedures. The regulatory prohibition is not limited to actual,

demonstrated conflict of interest. It includes matters that ``may be

construed as a potential conflict of interest''. The DOT position is

that the above described laboratory arrangement presents the appearance

of a conflict of interest.

Question 2: May a laboratory continue to submit monthly summary

reports to the employer/consortia or is the laboratory limited to

quarterly reports only?

Guidance: The DOT changed the requirement for a monthly statistical

report to a quarterly report to provide cost savings to the industry

without substantially decreasing the effectiveness of the report.

Although the original regulatory language appears to require reporting

only on a quarterly basis, the intent of this change was to require, as

a minimum, a quarterly report, but not to limit those employers or

laboratories who desired monthly reports. Monthly reports may be

generated provided the reports do not contain personal identifying

information or other data from which it is reasonably likely that

information about individuals' tests can be readily inferred. If a

laboratory provides monthly reports, there is no requirement to

additionally provide a quarterly aggregate report. Likewise, the

regulatory requirement to prevent individual identifying information

remains for both monthly and quarterly reports. If a report is withheld

for this reason, the laboratory will notify the employer.

Question 3: Explain the requirements for quarterly lab summaries.

Guidance: Section 40.29(g)(6) requires each laboratory to ``provide

the employer an aggregate quarterly statistical summary of urinalysis

testing of the employer's employees. Laboratories may provide the

report to a consortium provided the laboratory provides employer-

specific data and the consortium forwards the employer-specific data to

the respective employers within 14 days of receipt of the laboratory

report.''

The above reference also contains the following information:

``Quarterly reports shall not contain personal identifying information

or other data from which it is reasonably likely that information about

individuals' tests can be readily inferred. If necessary, in order to

prevent disclosure of such data, the laboratory shall not send a report

until data are sufficiently aggregated to make such an inference

unlikely. In any quarter in which a report is withheld for this reason,

or because no testing was conducted, the laboratory shall so inform the

consortium/employer in writing.''

As referred to above, the DOT has held that during a quarter in

which there was ``no activity'' the laboratory is still required to

inform the employer, in writing, of the negative activity. This

provision is necessary to assist Federal auditors during inspections of

employers that are required by an Operating Administration to conduct a

drug testing program. Unless the auditor has a complete quarter-by-

quarter history and record of drug testing results from a laboratory,

there is nothing to preclude an employer, for example, from destroying

a quarterly summary that does contain a confirmed positive result and

claim that there simply was no activity during the month. This, of

course, would allow the company to continue to use that individual in a

safety-sensitive function with no evidence that there was a confirmed

positive drug test result. In effect, the negative lab report serves as

an important check and balance used by auditors in their compliance and

enforcement efforts.

Question 4: May labs transmit results to an MRO by faxing Part 2 of

drug testing custody and control form?

Guidance: Laboratory test results may be provided to the MRO via

facsimile transmission of the custody and control form. However, the

``true copy'' of the custody and control form must also be sent to the

MRO. The purpose of permitting facsimile transmission of the custody

and control form is to facilitate a quicker administrative review of

test results by the MRO. The MRO may complete verification of a

negative result based on the facsimile of the custody and control form;

however, the verification of a positive result cannot be completed

until the ``true copy'' of the custody and control form bearing the

original signature of the laboratory's certifying scientist is received

by the MRO.

Question 5: May a lab certifying scientist use a ``signature

stamp''?

Guidance: In accordance with Sec. 40.29(g)(5), ``in the case of a

positive report for drug use [the drug testing custody and control form

(part 2)], shall be signed (after the required certification block) by

the individual responsible for day-to-day management of the drug

testing laboratory or the individual responsible for attesting to the

validity of the test reports.* * *''

In accordance with Sec. 40.29(g)(1), ``Before any test result is

reported (the results of initial tests, confirmatory tests, or quality

control data), it shall be reviewed and the test certified as an

accurate report by the responsible individual.'' The DOT's opinion is

that negative reports must be reviewed and the test certified as an

accurate report by the laboratory's responsible individual. This

certification must be accomplished by a signature for positive test

results while a signature stamp with initials for negative test results

on the custody and control form may be used.

Question 6: Does the regulation require lab ``batch reporting'' of

drug test results?

Guidance: The laboratory may report results to the MRO as soon as

the results have been reviewed by the appropriate laboratory personnel.

There is no requirement for ``batch reporting,'' or reporting

simultaneously all results for specimens received in a given shipment.

Nor does part 40 require ``batch reporting'' of results by the MRO to

the employer. Batch reporting, which causes the transmission of

negative results before positive results have been verified, may create

a problem by leading an employer to make premature assumptions about a

particular test result. However, the rule provides no authority for an

employer to take any adverse action against an employee whose test

result is pending. The differences in reporting time of test results

may be due to a variety of circumstances including laboratory

processing time, MRO administrative review processes for negatives, or

the verification process for positives.

Question 7: Is a lab required to send results directly to the MRO?

Guidance: Yes. Section 40.29(g) requires confidentiality and

limited access to laboratory test results, and the laboratory must send

only to the MRO the original or a certified true copy of the drug

testing custody and control form (Part 2). Furthermore,

Sec. 40.33(b)(3) states: ``The role of the MRO is to review and

interpret confirmed positive test results obtained through the

employer's

[[Page 16378]]

testing program.'' Section 40.33(c)(2) states: ``The MRO shall contact

the individual directly, on a confidential basis, to determine whether

the employee wishes to discuss the test result. A staff person under

the MRO's supervision may make the initial contact, and a medically

licensed or certified staff person may gather information from the

employee.''

Given the above, it should be clear that the intent of the current

regulations is that all laboratory test results be sent directly to the

MRO. When the test result is positive, the MRO must make the

verification determination; when the test result is negative, the MRO

may delegate to a person under his/her direct supervision the

administrative review of the negative results.

Question 8: Does the regulation allow the MRO to disclose to the

employer the drug(s) involved in a positive test?

Guidance: Section 40.29(g)(3) requires MROs to report to employers

whether the drug test was positive or negative. It also allows the MRO

to report the drug(s) for which there was a positive test.

Section 40.31 Quality Assurance and Quality Control

Question 1: Please explain the timing of blind performance test

specimens.

Guidance: Section 40.31(d) delineates employer and consortia blind

performance test requirements. The intent of these requirements is to

test the laboratory's ability to correctly identify positive and

negative samples. These samples are to be unidentifiable as blind

samples by the laboratory.

The regulation does not specify the distribution or the timing of

the submissions except to stipulate in Sec. 40.31(d)(2) that each

``employer shall submit three blind performance test specimens for each

100 employee specimens it submits, up to a maximum of 100 blind

performance test specimens submitted per quarter.'' This is the basic

requirement. The optimum program would be to evenly space the

submission of blind samples throughout the period.

Section 40.33 Reporting and Review of Results

Question 1: Does the MRO have to personally conduct the

verification of a positive drug test result?

Guidance: The DOT requirement that the MRO be a licensed physician

with knowledge of substance abuse disorders (Sec. 40.33(b)(1))

indicates the importance that the DOT placed on this function. The

regulatory requirement is that prior to making a final decision to

verify a positive test result, the individual is given an opportunity

to discuss the test result directly with the MRO. An appropriately

medically trained staff person (e.g., a nurse with substance abuse

training) may gather information from an employee about the employee's

explanation for a positive result. In every case, however, the MRO must

talk to the employee before making the decision to confirm a laboratory

positive as a verified positive drug test result. No staff person may

make this decision for the MRO.

Question 2: Does the DOT drug testing rule permit the use of a

second and different MRO to whom the results of the split specimen can

be sent by the second laboratory?

Guidance: There is no appropriate role for a second and different

MRO to whom the results of the split specimen would be submitted. The

DOT's interpretation is that this procedure is not permissible under

the DOT rule.

The laboratory results of the split specimen are for the presence

of the drug or drug metabolite and the rule text does not authorize a

``second'' verification process of the split results. Therefore, the

use of a second MRO does not add to the overall verification process

required by the rule. Additionally, if the split specimen fails to

reconfirm or is not available for testing, it is the responsibility of

the (original) MRO to cancel the test and provide notification of this

cancellation to the appropriate parties. It would be inappropriate for

the second MRO to cancel the test nor would the second MRO have the

appropriate information to accomplish the cancellation notification.

Question 3: If the MRO determines that a donor has a legitimate

prescription for Marinol, would this be reported as a negative result?

What if in the MRO's opinion, the use of the prescribed medication may

compromise safety?

Guidance: Section 40.33(a)(1) states in part, that `` * * * A

positive test result does not automatically identify an employee/

applicant as having used drugs in violation of a DOT agency regulation.

An individual with a detailed knowledge of possible alternate medical

explanations is essential to the review of the results.'' The DOT's

interpretation has been that if the MRO can determine that the donor

has a legitimate prescription, the positive result would be ``down

graded'' to a negative. This would apply to any legitimately prescribed

drug, including Marinol. If the MRO determines that the use of that

particular prescription/substance may compromise safety in the

performance of a transportation related safety sensitive function

(whether or not the substance is prescribed for the appropriate

condition), the MRO should discuss this with the donor's (prescribing)

physician. The donor's physician may decide to prescribe an alternate

substance that may not have adverse effects on the donor's performance

of his/her duties.

Section 40.33(i) states in part, that ``(1) The MRO may disclose

such [medical] information to the employer, a DOT agency * * * or a

physician responsible for determining the medical qualification of the

employee * * * if * * * (iii) * * * the information indicates that

continued performance by the employee * * * could pose a significant

safety risk. (2) Before obtaining medical information from the employee

as part of the verification process, the MRO shall inform the employee

that information may be disclosed to third parties as provided in this

paragraph * * * ''. If after talking to the prescribing physician, the

MRO still determines that a safety risk exists, he/she may inform the

employer, DOT, or the employer's physician of the existence of a

medical condition that could preclude the donor from performing a

safety sensitive function. However, the MRO must ensure that he/she

informed the employee prior to the verification process that this

(medical) information may be provided to a third party.

Question 4: Is there such a thing as an MRO management company or

does the law specify that a single certified MRO review each lab result

from tested employees and personally transmit the test results to the

specific employer? Does the law require that the owner of an MRO

management company be a physician? Do negative test results have to be

handled by a physician MRO, or may the results be handled by the MRO

management company administrators?

Guidance: While part 40 makes no mention of an ``MRO management

company'' the regulations do address the role of the C/TPA. The rules

do not permit the C/TPA to receive drug testing results directly from

either the laboratory or from the MRO. The laboratory results are

reported directly to the MRO, and the MRO results are reported directly

to the employer.

Through interpretation of Sec. 40.33(a), the DOT has permitted the

administrative review to be conducted by staff persons working under

the direct supervision of the MRO. While allowing this delegation of

MRO responsibility, the DOT never intended nor can it condone a

practice which allows for MROs to appoint outside ``agents'' to perform

this review. The

[[Page 16379]]

MRO should have a direct supervisory relationship with the reviewer and

not simply have access to the ``process'' of the administrative review.

Conversely, a C/TPA cannot contract for the MRO to review only positive

drug test results, leaving the review or processing of negatives to the

C/TPA.

Question 5: May a C/TPA act as an agent of the MRO for the purpose

of conducting administrative reviews of all negative urine drug test

results and receive drug testing results directly from the laboratory?

Guidance: No. The DOT never intended nor can it condone a practice

which allows MROs to appoint outside agents to conduct such reviews.

Additionally, Sec. 40.29(g) requires that all drug test results be

transmitted by the laboratory directly to the MRO. Transmission to the

MRO means to the MRO's place of business and not to a subsidiary or

contractor for the MRO. There is also the requirement that, regardless

of what forms/records a consortium or third party administrator

maintains for an employer, notification of all positive results will be

performed by the MRO and not through or by anyone else.

Question 6: What are the MRO's review requirements during the

verification process when the MRO copy of the custody and control form

is not available?

Guidance: The MRO may complete the verification process if the

MRO's copy of the custody and control form is not available for review.

The MRO needs to review a copy of the chain of custody which contains

the employee's signature. A copy may be obtained from the employee, the

collector, or the employer. These copies have the employee's signature.

The preamble to part 40 (Medical Officer Issues) published on

December 1, 1989 requires the MRO not to declare a verified positive

result until he or she receives the hard copy of the original chain of

custody form from the laboratory. This is because, prior to determining

that the test is a verified positive, the MRO verifies the identifying

information and the facial completeness of the chain of custody (i.e.,

determines that, on the face of the document, all the sign-offs are in

the right places).

Question 7: Does the MRO have to verify each drug when the

laboratory reports a multiple positive drug test results for the same

individual under the DOT drug and alcohol rule?

Guidance: Section 40.33(a) states ``Medical review officer shall

review confirmed positive results.'' The DOT drug rule requires

analysis of urine for five drugs. Multiple drug positive results for

the same specimen (donor) require the MRO to verify each reported drug

to determine if there is a medical explanation for each positive

result. Additionally, the DOT drug and alcohol management information

system requests information on multiple drug results (for each

individual). The intent is to capture this information.

However, in the preemployment process, it would appear that with

the employer's consent, the MRO may report a verified positive result

for one drug out of several laboratory positive results (for one

individual) without continuing to seek verification for the other drugs

reported by the laboratory. The MRO may need to use his/her

professional judgement to determine if verification of the other drugs

may be accomplished expeditiously. Regardless of the number of drugs

that are reported as verified for one individual, that individual

cannot perform safety-sensitive work until he/she provides a urine

specimen that is negative.

In the case where the MRO verifies and reports only one drug, the

other drugs should not be reported to the employer if they have not

been verified. The MRO may document these unverified positive results

in his/her records as unverified and unreported results.

Question 8: Is a company obligated to pay for the processing of a

split urine specimen when the primary specimen is positive? Does a

company have to pay for testing the split specimen if it was a pre-

employment test?

Guidance: The split sample procedure is a statutory requirement of

the Omnibus Transportation Employee Testing Act of 1991 for employers

in the aviation, highway, rail, and transit industries, as well as the

DOT rules. Section 40.3 states, in part: ``Employee. An individual

designated in a DOT agency regulation as subject to drug testing and/or

alcohol testing. As used in this part ``employee'' includes an

applicant for employment.'' And Sec. 40.33(f) states, in part: ``If the

employee requests an analysis of the split specimen within 72 hours of

having been informed of a verified positive test, the MRO shall direct,

in writing, the laboratory to provided the split specimen to another

DHHS-certified laboratory for analysis.'' In other words, if the

applicant or employee makes the request within this time period, the

split specimen must be tested. This is true of all types of tests,

including pre-employment.

The employer is responsible for ensuring that the test occurs,

including taking responsibility for paying for it. The employer may

arrange with the applicant or employee for reimbursement, but in no

case does the refusal by the applicant or employee to contribute to the

cost of the test excuse the employer from ensuring that the test takes

place. A previous agreement negotiated between the employee and

employer or a labor-management agreement that specifies payment

arrangements, could dictate the ultimate payment source.

The split specimen testing process, initiated by the MRO's written

request, should not be delayed while awaiting payment to come from the

applicant or employee. If there is a dispute, the fall-back position

would be for the employer to be billed (by either the primary

laboratory for sending the split specimen, or the receiving laboratory

for testing the split specimen) and then for the employer to settle the

matter after-the-fact with the applicant or employee.

Question 9: When may the MRO notify an employer of a positive drug

test result?

Guidance: The MRO may not notify the employer of a positive test

until he/she has verified the test as positive. Verification requires

that the MRO review the chain of custody documentation, contact the

employee, review any documentation of a legitimate medical explanation

for a positive test, and determine that the positive resulted from

unauthorized use of a controlled substance. The MRO is not required to

delay verification pending the outcome of the reanalysis or the split

specimen. Only upon verification shall the MRO notify the employer of

the positive result, and the employer shall then remove the employee

from the safety-sensitive duties/position. Once having received notice

of a verified positive result from the MRO, the employer shall not

delay removal of the employee from safety-sensitive duties pending the

outcome of the reanalysis or the split specimen.

Question 10: Must the MRO report to employers be in writing

Guidance: Part 40 does not require the MRO to provide written

notification to employers of verified drug test results. The FHWA,

however, does require MROs to forward a signed, written notification to

the employer within three business days of the completion of the MRO's

review for both positive and negative results. A legible photocopy of

the fourth copy of the Federal Drug Testing Custody and Control Form

required by part 40 appendix A may be used to make the signed, written

notification to the employer for all test results (positive, negative,

canceled, etc.), provided that the controlled

[[Page 16380]]

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 MRO.

Question 11: May an MRO use part 2 of drug testing custody and

control form to report negative results?

Guidance: No. The MRO should not provide the employer with a copy

of the custody and control form bearing the results from the

laboratory. Often, positive results reported by the laboratory are

determined by the MRO to be explained by authorized medical use of a

substance, and thus are verified and reported negative. Employers are

not permitted to have the laboratory information, only the MRO's

determination.

Question 12: Please explain an MRO's review of negative results.

Guidance: The duties of the MRO with respect to reviewing negative

urine drug test results are strictly administrative, but must include a

review of the drug testing custody and control form prior to releasing

the results to the employer. This is necessary to substantiate that the

reported negative result is correctly identified with the donor and to

ensure that the form is complete and sufficient on its face

(Sec. 40.33(a) (1-2)). While the DOT, through interpretation, has

permitted the administrative review to be conducted by a staff person

working under the direct supervision of the MRO, the requirement to

conduct the review in accordance with current regulations remains in

effect.

Question 13: Please explain MRO verification of opiate positives.

Guidance: The MRO verification process of any positive laboratory

report requires several specific actions. These include a review of the

drug testing custody and control form for completeness and accuracy,

notifying and providing the donor an opportunity to discuss the

results, reviewing the donor's medical history and medical records, and

investigating other biomedical factors that may account for the

positive result.

The above actions are especially important when the MRO is

confronted with an opiate positive, as the result may be caused by the

use of a legally prescribed medication or an ingested substance, such

as poppy seeds. Using the above steps as a guide, the MRO first ensures

that the drug testing custody and control form is complete and accurate

on its face. Next, the MRO notifies the donor of the positive test

result and offers the individual an opportunity to discuss the results.

If the donor expressly declines the opportunity to discuss the test

results, or fails to contact the MRO within five days after being

notified by a designated employer representative to do so, the MRO may

verify the laboratory test result as a positive. This includes results

that are positive for opiates.

If the donor accepts the opportunity to discuss the results with

the MRO, the MRO must review any medical records provided by the donor

to determine if the opiate positive resulted from a legally prescribed

medication. If the donor is unable to produce medical evidence and

admits to unauthorized use of an opiate, the MRO should verify the

result as a positive. However, if the donor is unable to produce

medical evidence, denies unauthorized use of an opiate, or denies using

another individual's medication, the MRO must determine that there is

clinical evidence--in addition to the urine test--of unauthorized use

of any opium, opiate, or opium derivative before verifying the test

result as positive. Examples of clinical evidence include recent needle

tracks or behavioral or psychological signs of acute opiate

intoxication or withdrawal. If a laboratory confirms the presence of 6-

acetylmorphine (6-AM) through a GC/MS test, no clinical evidence is

necessary, since 6-AM is a direct deacetylated metabolite of heroin,

detectable within minutes, and its presence proves the recent use of

heroin. If 6-AM is not found, clinical evidence will be required to

verify a positive opiate result whether or not the donor claims poppy

seed ingestion as a defense for the positive result.

The verification process for an opiate positive result can be a

very complex and very difficult task for the MRO and should be

undertaken with a great deal of caution.

Question 14: Please clarify the MRO/lab relationship.

Guidance: Section 40.29(n)(6) states: ``The laboratory shall not

enter into any relationship with an employer's MRO that may be

construed as a potential conflict of interest or derive any financial

benefit by having an employer use a specific MRO.'' Section 40.33(b)(2)

further states: ``The MRO shall not be an employee of the laboratory

conducting the drug test unless the laboratory establishes a clear

separation of functions to prevent any appearance of a conflict of

interest, including assuring that the MRO has no responsibility for,

and is not supervised by or the supervisor of, any persons who have

responsibility for the drug testing or quality control operations of

the laboratory.'' Therefore, the rule prohibits an employer-employee or

contract relationship between the laboratory and the MRO, and it is

obvious that there must be a clear separation of functions between the

MRO and the laboratory.

Question 15: In what situations may an MRO reopen a verification of

a drug test?

Guidance: Section 40.33 specifically allows the reopening of an

MRO's verification of a confirmed positive drug test in only two

situations. When a donor provides documentation that serious illness,

injury, or other circumstances unavoidably prevented the employee from

timely contacting the MRO, the MRO may conclude from the documentation

that there is a legitimate explanation for the employee's failure to

contact the MRO (see Sec. 40.33(c)(6)). The second situation is if

neither the employer nor the MRO is able to contact the employee and

the MRO declares the test result to be positive, and the employee

subsequently provides documentation that serious illness, injury, or

other circumstances unavoidably prevented the employee from contacting

the MRO in a timely manner, the MRO may conclude from the documentation

that there is a legitimate explanation for the employee's failure to

contact the MRO (see Sec. 40.33(g)).

Section 40.35 Protection of Employee Records

Question 1: Please clarify release of alcohol and drug test results

with or without written authorization.

Guidance: The rules governing release of employee test results

(Secs. 40.35 and 40.81) permit disclosure to persons other than the

employee, employer, or decision-maker in a lawsuit or grievance action,

only with the written authorization of the employee. The authorization

must be an informed consent, in that the employee fully understands the

intended use and disclosure of the test results. Each entity's request

for test results would require a separate authorization and must be

specific. Specific items including the purpose of the release, specific

test(s) to be released, the party(ies) to whom these specific results

will be released must be included.

Question 2: May employees be required to sign release forms for

third-party disclosures?

Guidance: The intent of (Secs. 40.29(g)(3), 40.35 and 40.37) is to

ensure confidentiality of employee drug test results. Employees cannot

be required to sign release or consent statements for third-party

disclosure as part of the drug testing process. Information concerning

the drug test may be released by the employer in

[[Page 16381]]

unemployment or workmen's compensation proceedings, or other situations

in which the employee is seeking a benefit or challenges an action

taken by the employer as a result of a drug test.

It should be noted, however, that employers are required to request

written authorization from CMV drivers to obtain past verified positive

drug test results, refusals to test, and alcohol concentrations of 0.04

or greater over the past 2 years of driving a CMV (Secs. 382.405(f) and

382.413(a)).

Section 40.39 Use of DHHS-Certified Laboratories

Question 1: May additional testing be conducted on a DOT specimen

reported by the laboratory as negative?

Guidance: Section 2.4(e)(3) of the Department of Health and Human

Service's Mandatory Guidelines for Federal Workplace Drug Testing

Programs states, ``Specimens that test negative on all initial

immunoassay tests shall be reported as negative. No further testing of

those negative specimens for drugs is permitted and the specimens shall

be either discarded or pooled for use in the laboratory's internal

quality control program.''

The DOT requires use of DHHS-certified laboratories to do all DOT-

required testing. Therefore, the above DHHS requirement is a DOT

requirement as well. When a DOT specimen is reported as negative by the

laboratory, no additional testing of the specimen is permissible.

Question 2: Why use DHHS-certified laboratories?

Guidance: The DOT requires that all drug testing mandated under the

provisions of its drug testing rules must be conducted in DHHS-

certified laboratories. The DOT decision to use DHHS-certified

laboratories for drug testing is mandated by statute (Omnibus

Transportation Employee Testing Act of 1991). The DHHS standards for

certification and the proficiency testing requirements comprise the

most stringent laboratory accreditation program available in analytical

forensic toxicology for urine drug testing. Additionally, the DHHS

certification program provides for standardization of laboratory

methodology and procedures, ensuring equal treatment of all specimens

analyzed. Finally, the use of DHHS-certified laboratories provides a

standard that has withstood the test of legal challenges in Federal

drug testing.

Section 40.69 Inability To Provide an Adequate Amount of Breath

Question 1: If an employee is unable to provide an amount of breath

sufficient to permit a valid breath test, but does not allege that such

inability is due to a medical condition, what actions must follow?

Guidance: The rules prohibit a covered employee from refusing to

submit to required alcohol tests. Post-accident, random, reasonable

suspicion, or follow-up tests must be taken when those tests are

required. Section 40.69 sets forth the procedures to be followed when

an employee is unable to provide an adequate amount of breath for any

reason. These procedures apply to the employee who claims a particular

medical condition is creating the inability to provide breath; they

also apply to the employee who claims to have no idea as to the cause

of the inability, or to the employee who says nothing at all.

It is imperative that the employee understands that during the

required follow-on medical evaluation, the physician will concentrate

solely on finding a medical condition to explain the inability.

Paragraphs (d)(2)(i) and (d)(2)(ii) of Sec. 40.69 dictate that the only

acceptable reason for an employee to be unable to provide an adequate

amount of breath for testing is a medical condition. If a medical

condition is not found, the employee will be deemed to have refused

testing.

Section 40.81 Availability and Disclosure of Alcohol Testing

Information About Individual Employees

Question 1: If there is one or more BAT working for a company, does

the BAT supervisor have the right to review (have access to) the Breath

Alcohol Testing Forms for purposes of supervisory control? Likewise,

may this form be passed along by the BAT or the employer to billing

personnel?

Guidance: The rule holds employers responsible for implementation

of the total program. This includes confidentiality of information and

maintenance of records (including BAT and MRO records). Individuals

such as supervisors of BATs and billing personnel with a ``need to

know'' are considered authorized company personnel and are permitted to

have access to breath alcohol testing documentation. Access to

information would be for a specific purpose and necessary for the

employer's successful implementation of the program. This would include

review of the forms for completion, obtaining specific billing data

from the forms, filing the forms, etc. Individuals with access to these

forms are under the same regulatory requirements for maintaining

confidentiality of these records as are employers and BATs. Breath

Alcohol Testing Forms should not be duplicated for purposes of

supervision or billing as this would create additional ``data bases''

or files with potential problems of disclosure of confidential

information. Access to these records by unauthorized personnel would be

difficult to control. This does not preclude use of input forms filled

out by the BAT or other personnel that would contain appropriate

billing data and which could be maintained as backup documentation.

When the employer uses a C/TPA to act as the agent of the employer,

then that C/TPA could have access to the Breath Alcohol Testing Form or

the authority to obtain a copy of the form. Likewise, the employer's

copy of the form may be submitted to the C/TPA by the employer or by

the BAT when the employer has directed the BAT in writing to do so. In

all cases of positive results at or above the .02 BAC level, the

employer must be notified immediately, and prior to notification of the

C/TPA. Positive results may not be sent from the BAT to the C/TPA and

then submitted to the employer.

Section 40.93 The Screening Test Technician

Question 1: May an STT become trained to proficiency on an

evidential breath tester (EBT) for the purposes of conducting screening

tests on that device?

Guidance: No. Section 40.93 only authorizes the STT to operate an

alcohol screening device (ASD); it does not authorize the STT to

operate an EBT. This was by design. Likewise, the STT training manual

does not address the use of an EBT by the STT. This is in contrast with

the training manual for the BAT which concentrates solely on the EBT;

in fact, an entire unit in the BAT training manual is devoted to ``EBT

Methodology.'' Additionally, the proficiency requirements for the ASD,

as contained in the STT manual, are different from the proficiency

requirements for the EBT, as contained in the BAT manual.

When an EBT is used to conduct a DOT alcohol test, the operator

must be a BAT. An STT is limited to conducting only the alcohol

screening test, and the only instrument the STT may use is an ASD.

Special Topics--Requirements for Random Testing

Question 1: Please explain the random testing rates for alcohol and

drugs.

Guidance: The DOT drug testing rules require employers initially to

conduct

[[Page 16382]]

random drug testing at a rate equal to 50 percent of their covered

employees. Thus, if an employer has 100 covered employees, the employer

must administer 50 random drug tests. The number of random tests is

determined by the covered employee population, while the number of

employees randomly tested varies depending on the random selection

process. It is possible that 50 random tests may be conducted on less

than 50 employees, some employees being tested two or more times due to

the random selection of donors. The highway industry may be allowed to

reduce the annual rate to 25 percent in calendar year 1998 based on the

highway industry's performance in calendar years 1995 and 1996. The

rate may be lowered to 25 percent based on two years of data reported

to FHWA indicating a positive rate of less than 1.0 percent use of

drugs by CMV drivers. The rate may increase again, however, to 50

percent based on one year of data reported to FHWA indicating a

positive rate equal to or greater than 1.0 percent use of drugs by CMV

drivers.

The alcohol testing rules require employers initially conduct

random testing at a rate equal to 25 percent of their covered

employees. Thus, if an employer has 100 covered employees, the employer

must administer 25 random drug tests. The number of random tests is

determined by the covered employee population, while the number of

employees randomly tested varies depending on the random selection

process. It is possible that 25 random tests may be conducted on less

than 25 employees, some employees being tested two or more times due to

the random selection of donors. The highway industry may be allowed to

reduce the annual rate to 10 percent in calendar year 1999 based on the

highway industry's performance in calendar years 1996 and 1997. The

rate may be lowered to 10 percent based on two years of data reported

to FHWA indicating a violation rate of less than 0.5 percent use of

alcohol by CMV drivers. The highway industry would be required to raise

the annual rate to 50 percent in calendar year 1998 or later years

based on the highway industry's performance in calendar year 1996 or

later years. The rate may increase to 50 percent based on one year of

data reported to FHWA indicating a violation rate of is equal to or

greater than 1.0 percent use of alcohol by CMV drivers.

Question 2: Is use of a consortium to conduct random testing

allowed?

Guidance: The FHWA requires individual owner-operators to be in a

random testing pool of two or more persons. This, in effect, requires

an individual owner-operator to be in a consortium for random testing

purposes. The DOT allows and even advocates the use of a consortium to

assist smaller companies in complying with the alcohol and drug testing

regulations. While it is true that in a combined employer pool, some

employers will have a higher percentage of their employees selected for

testing than others in a given 12-month period, over time this will

even out. Additionally, the DOT believes that the deterrent effect of

random drug testing remains as powerful in a combined employers pool as

it would be in a stand-alone single company pool. With this in mind,

the DOT has determined that combining employer pools within a

consortium meets the spirit and intent of the alcohol and drug testing

regulations and is, therefore, permissible.

Question 3: May an employer combine DOT and non-DOT random pools?

Guidance: No. While it would seem to be advantageous for an

employer to combine all employees into one random testing pool, this

move could dilute the number of DOT-covered employees who would

actually be tested. For example, in a pool that is comprised of 50 DOT-

covered employees and 50 non-DOT-covered employees, and assuming a

testing rate of 50 percent, it is possible that no DOT-covered

employees would be tested (100 employees, 50 tests, all 50 tests

conducted on non-DOT employees). The likelihood of this happening,

albeit remote, is possible under a truly random scheme. On the other

hand, keeping the above two classes of employees in separate pools

assures that at least 25 of the tests conducted by the company will be

conducted on DOT-covered employees. It is this assurance that

ultimately mandates that DOT-covered employees remain in separate

random pools.

Question 4: May an employer combine employees covered by different

operating administration rules into a single pool for random testing?

Guidance: The DOT has determined that it is, indeed, permissible

for an employer to combine covered employees from different operating

administrations (e.g. Research and Special Programs Administration,

Coast Guard, and FHWA), into a single selection pool for the purpose of

conducting random drug testing under DOT authority. When exercising

this option, however, the employer must ensure that the random testing

rate is at least equal to the highest rate required by each of the

operating administrations.

Question 5: Is it permissible to separate union and non-union

employees, both covered by DOT, into stand-alone pools?

Guidance: The DOT has determined that it is permissible for an

employer to separate union and non-union employees into separate pools

for the purpose of random drug testing. If using this approach, the

employer must ensure that employees from each pool are tested at equal

rates. For example, if pool ``A'' consists of 50 non-union employees

and pool ``B'' consists of 300 union employees, the employer must

ensure, if testing is done at a 50 percent rate, that 25 tests are

conducted annually on employees from pool ``A'' and that 150 tests are

conducted annually on employees from pool ``B.''

Special Topics--Procedures for Handling and Processing a Split Specimen

Question: Describe the proper handling and processing of a split

specimen.

Guidance: ``Where the employer has used the split sample method,

and the laboratory observes that the split sample is untestable,

inadequate, or unavailable for testing, the laboratory shall

nevertheless test the primary specimen. The laboratory does not inform

the MRO or the employer of the untestability, inadequacy, or

unavailability of the split specimen until and unless the primary

specimen is a verified positive test and the MRO has informed the

laboratory that the employee has requested a test of the split

specimen.'' (Sec. 40.29(b)(1)(ii))

``In situations where the employer uses the split sample collection

method, the laboratory shall log in the split specimen, with the split

specimen bottle seal remaining intact.'' (Sec. 40.29(b)(2))

``When directed in writing by the MRO to forward the split specimen

to another DHHS-certified laboratory for analysis, the second

laboratory shall analyze the split specimen by GC/MS to reconfirm the

presence of the drug(s) or drug metabolite(s) found in the primary

specimen.'' (Sec. 40.29(b)(3))

``If the employee requests an analysis of the split specimen within

72 hours of having been informed of a verified positive test, the MRO

shall direct, in writing, the laboratory to provide the split specimen

to another DHHS-certified laboratory for analysis. If the analysis of

the split specimen fails to reconfirm the presence of the drug(s) or

drug metabolite(s) found in the specimen, or if the split specimen is

unavailable, inadequate for testing or untestable, the MRO shall cancel

the test and report cancellation and the

[[Page 16383]]

reasons for it to the DOT, the employer, and the employee.''

(Sec. 40.33(f))

If the primary laboratory does not receive a split specimen with

the primary, or the split specimen is leaking, or the split specimen's

seal is broken, or has any other problem that would make it unavailable

for testing, the primary laboratory must still process the primary

specimen as if there were no problems with the split specimen. The

laboratory should not bring any split specimen deficiency to the

attention of the MRO at this time. (Sec. 40.29(b)(1)(ii))

The seal on the split specimen must remain intact--just as the

split specimen was sealed at the collection site. (Sec. 40.29(b)(2))

The MRO will direct the primary laboratory to forward the split

specimen to a second DHHS-certified laboratory. At the second DHHS-

certified laboratory, the split specimen shall only be used to

reconfirm the presence of the drug(s) or drug metabolite(s) found in

the primary specimen. (Sec. 40.29(b)(3))

Only a request from the employee can authorize the MRO to initiate

the forwarding of the split specimen to the second DHHS-certified

laboratory for analysis. (Sec. 40.33(f))

PART 325--COMPLIANCE WITH INTERSTATE MOTOR CARRIER NOISE EMISSION

STANDARDS

Sections Interpreted

325.1

Section 325.1 Scope Of The Rules In This Part

Question 1: What noise emission requirements are applicable to

auxiliary generators?

Guidance: Auxiliary generators which normally operate only when a

CMV is stopped or moving at 5 mph or less are ``auxiliary equipment''

of the kind contemplated by EPA and are, therefore, exempt from the

noise limits in Part 325. However, noise from generators that run while

the CMV is moving at higher speeds would be measured as part of total

vehicle noise.

Question 2: Do refrigeration units on tractor-trailer combinations

fall within the exemption listed in part 325, subpart A of the FMCSRs?

Guidance: No.

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

Sections Interpreted

382.103 Applicability

382.105 Testing Procedures

382.107 Definitions

382.109 Preemption of State and Local Laws

382.113 Requirement for Notice

382.115 Starting Date for Testing Programs

382.205 On-Duty Use

382.213 Controlled Substances Use

382.301 Pre-employment Testing

382.303 Post-accident Testing

382.305 Random Testing

382.307 Reasonable Suspicion Testing

382.401 Retention of Records

382.403 Reporting of Results in a Management Information System

382.405 Access to Facilities and Records

382.413 Release of Alcohol and Controlled Substances Test

Information by Previous Employers

382.501 Removal From Safety-Sensitive Functions

382.507 Penalties

382.601 Motor Carrier Obligation to Promulgate a Policy on the

Misuse of Alcohol and Use of Controlled Substances

382.603 Training for Supervisors

382.605 Referral, Evaluation, and Treatment

Subpart B--Prohibitions

Special Topics--Responsibility for Payment for Testing

Special Topics--Multiple Service Providers

Special Topics--Medical Examiners Acting as MRO

Special Topics--Biennial (Periodic) Testing Requirements

Section 382.103 Applicability

Question 1: Are intrastate drivers of CMVs, who are required to

obtain CDLs, required to be alcohol and drug tested by their employer?

Guidance: Yes. The definition of commerce in 382.107 is taken from

49 U.S.C. Sec. 31301 which encompasses interstate, intrastate and

foreign commerce.

Question 2: Are students who will be trained to be motor vehicle

operators subject to alcohol and drug testing? Are they required to

obtain a CDL in order to operate training vehicles provided by the

school?

Guidance: Yes. Section 382.107 includes the following definitions:

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

District of Columbia or a political subdivision of a State) who owns or

leases a CMV or assigns persons to operate such a vehicle. The term

employer includes an employer's agents, officers and representatives.

Driver means any person who operates a CMV.

Truck and bus driver training schools meet the definition of an

employer because they own or lease CMVs and assign students to operate

them at appropriate points in their training. Similarly, students who

actually operate CMVs to complete their course work qualify as drivers.

The CDL regulations provide that ``no person shall operate'' a CMV

before passing the written and driving tests required for that vehicle

(49 CFR 383.23(a)(1)). Virtually all of the vehicles used for training

purposes meet the definition of a CMV, and student drivers must

therefore obtain a CDL.

Question 3: Are part 382 alcohol and drug testing requirements

applicable to firefighters in a State which gives them the option of

obtaining a CDL or a non-commercial class A or B license restricted to

operating fire equipment only?

Guidance: No. The applicability of part 382 is coextensive with

part 383--the general CDL requirements. Only those persons required to

obtain a CDL under Federal law and who actually perform safety-

sensitive duties, are required to be tested for drugs and alcohol.

The FHWA, exercising its waiver authority, granted the States the

option of waiving firefighters from CDL requirements. A State which

gives firefighters the choice of obtaining either a CDL or a non-

commercial license has exercised the option not to require CDLs.

Therefore, because a CDL is not required, by extension part 382 is not

applicable.

A firefighter in the State would not be required under Federal law

to be tested for drugs and alcohol regardless of the type of license

which the employer required as a condition of employment or the driver

actually obtained. It is the Federal requirement to obtain a CDL,

nonexistent in the State, that entails drug and alcohol testing, not

the fact of actually holding a CDL.

Question 4: An employer or State government agency requires CDLs

for drivers of motor vehicles: (1) with a GVWR of 26,000 pounds or

less; (2) with a GCWR of 26,000 pounds or less inclusive of a towed

unit with a GVWR of 10,000 pounds or less; (3) designed to transport 15

or less passengers, including the driver; or (4) which transport HM,

but are not required to be placarded under 49 CFR part 172, subpart F.

Are such drivers required by part 382 to be tested for the use of

alcohol or controlled substances?

Guidance: No. Part 382 requires or authorizes drug and alcohol

testing only of those drivers required by part 383 to obtain a CDL.

Since the vehicles described above do not meet the definition of a CMV

in part 383, their drivers are not required by Federal regulations to

have a CDL.

Question 5: Are Alaskan drivers with a CDL who operate CMVs and

have been waived from certain CDL requirements subject to controlled

substances and alcohol testing?

Guidance: Yes. Alaskan drivers with a CDL who operate CMVs are

subject to controlled substances and alcohol

[[Page 16384]]

testing because they have licenses marked either ``commercial driver's

license'' or ``CDL''. The waived drivers are only exempted from the

knowledge and skills tests, and the photograph on license requirements.

Question 6: Do the FHWA's alcohol and controlled substances testing

regulations apply to employers and drivers in U.S. territories or

possessions such as Puerto Rico and Guam?

Guidance: No. The rule by definition applies only to employers and

drivers domiciled in the 50 states and the District of Columbia.

Question 7: Which drivers are to be included in a alcohol and

controlled substances testing program under the FHWA's rule?

Guidance: Any person who operates a CMV, as defined in

Sec. 382.107, in intrastate or interstate commerce and is subject to

the CDL requirement of 49 CFR part 383.

Question 8: Is a foreign resident driver operating between the U.S.

and a foreign country from a U.S. terminal for a U.S.-based employer

subject to the FHWA alcohol and controlled substances testing

regulations?

Guidance: Yes. A driver operating for a U.S.-based employer is

subject to part 382.

Question 9: What alcohol and drug testing provisions apply to

foreign drivers employed by foreign motor carriers?

Guidance: Foreign employers are subject to the alcohol and drug

testing requirements in part 382 (see Sec. 382.103). All provisions of

the rules will be applicable while drivers are operating in the U.S.

Foreign drivers may also be subject to State laws, such as probable

cause testing by law enforcement officers.

Section 382.105 Testing Procedures

Question 1: What does a BAT do when a test involves an independent,

self-employed owner-operator with a confirmed alcohol concentration of

0.02 or greater, to notify a company representative as required by

Sec. 40.65(i)?

Guidance: The independent, self-employed owner-operator will be

notified by the BAT immediately and the owner-operator's certification

in Step 4 notes that the self-employed owner-operator has been

notified. No further notification is necessary. The BAT will provide

copies 1 and 2 to the self-employed owner-operator directly.

Question 2: A driver does not have a photo identification card.

Must an employer representative identify the driver in the presence of

the BAT/urine specimen collector or may the employer representative

identify the driver via a telephone conversation?

Guidance: Those subject to part 382 are subject first, generally,

to part 383. Part 383 requires all States, with an exception in Alaska

for a very small group of individuals, to provide a CDL document to the

individual that includes, among other things: the full name, signature,

and mailing address of the person to whom such license is issued;

physical and other information to identify and describe the person

including date of birth (month, day, and year), sex, and height; and, a

color photograph of the person. Except in these rare Alaskan instances,

the FHWA fully expects most employer's to require the driver to present

the CDL document to the BAT or urine collector.

A driver subject to alcohol and drug testing should be able to

provide the CDL document. In those rare instances that the CDL or other

form of photo identification is not produced for verification, an

employer representative must be contacted and must provide

identification. The FHWA will allow employer representatives to

identify drivers in any way that the employer believes will positively

identify the driver.

Question 3: Will foreign drug testing laboratories need to be

certified by the National Institute on Drug Abuse (NIDA)? Will they

need to be certified by the Department of Health and Human Services

(DHHS)?

Guidance: The NIDA, an agency of the DHHS, no longer administers

the workplace drug testing laboratory certification program. This

program is now administered by the DHHS' Substance Abuse and Mental

Health Services Administration. All motor carriers are required to use

DHHS-certified laboratories for analysis of alcohol and controlled

substances tests as neither Mexico nor Canada has an equivalent

laboratory certification program.

Question 4: Particularly in light of the coverage of Canadian and

Mexican employees, how should MROs deal, in the verification process,

with claims of the use of foreign prescriptions or over-the-counter

medication?

Guidance: Possession or use of controlled substances are prohibited

when operating a CMV under the FHWA regulations regardless of the

source of the substance. A limited exception exists for a substance's

use in accordance with instructions provided by a licensed medical

practitioner who knows that the individual is a CMV driver who operates

CMVs in a safety-sensitive job and has provided instructions to the CMV

driver that the use of the substance will not affect the CMV driver's

ability to safely operate a CMV (see Secs. 382.213, 391.41(b)(12), and

392.4(c)). Individuals entering the United States must properly declare

controlled substances with the U.S. Customs Service. 21 CFR 1311.27.

The FHWA expects MROs to properly investigate the facts concerning

a CMV driver's claim that a positive controlled substance test result

was caused by a prescription written by a knowledgeable, licensed

medical practitioner or the use of an over-the-counter substance that

was obtained in a foreign country without a prescription. This

investigation should be documented in the MRO's files.

If the CMV driver lawfully obtained a substance in a foreign

country without a prescription which is a controlled substance in the

United States, the MRO must also investigate whether a knowledgeable,

licensed medical practitioner provided instructions to the CMV driver

that the use of the ``over-the-counter'' substance would not affect the

driver's ability to safely operate a CMV.

Potential violations of Sec. 392.4 must be investigated by the law

enforcement officer at the time possession or use is discovered to

determine whether the exception applies.

Sections 382.107 Definitions

Question 1: What is an owner-operator?

Guidance: The FHWA neither defines the term ``owner-operator'' nor

uses it in regulation. The FHWA regulates ``employers'' and

``drivers.'' An owner-operator may act as both an employer and a driver

at certain times, or as a driver for another employer at other times

depending on contractual arrangements and operational structure.

Section 382.109 Preemption Of State And Local Laws

Question 1: An employer is required by State or local law,

regulation, or order to bargain with unionized employees over

discretionary elements of the DOT alcohol and drug testing regulations

(e.g., selection of DHHS-approved laboratories or MROs). May the

employer defer the 1995 or 1996 implementation dates for testing

employees until the collective bargaining process has produced

agreement on these discretionary elements, or must the employer

implement testing as required by part 382?

Guidance: The FHWA provided large employers 45 weeks and small

employers 97 weeks collectively to bargain the discretionary elements

of

[[Page 16385]]

the part 382 testing program. An employer must implement alcohol and

controlled substances testing in accordance with the schedule in

Sec. 382.115. If observance of the collective bargaining process would

make it impossible for the employer to comply with these deadlines,

Sec. 382.109(a)(1) preempts the State or local bargaining requirement

to the extent needed to meet the implementation date.

Section 382.113 Requirement For Notice

Question 1: Must a notice be given before each test or will a

general notice given to drivers suffice?

Guidance: A driver must be notified before submitting to each test

that it is required by part 382. This notification can be provided to

the driver either verbally or in writing. In addition, the FHWA

believes that the use of the DOT Breath Alcohol Testing Form, OMB No.

2105-0529, and the Drug Testing Custody and Control Form, 49 CFR part

40, appendix A, will support the verbal or written notice that the test

is being conducted in accordance with Part 382.

Section 382.115 Starting Date For Testing Programs

Question 1: In a governmental entity structured into various

subunits such as departments, divisions, and offices, how is the number

of an employer's drivers determined for purposes of the implementation

date of controlled substances and alcohol testing?

Guidance: Part 382 testing applies to governmental entities,

including those of the Federal government, the States, and political

subdivisions of the States. An employer is defined as any person that

owns or leases CMVs, or assigns drivers to operate them. Therefore, any

governmental entity, or a subunit of it that controls CMVs and the day-

to-day operations of its drivers, may be considered the employer for

purposes of part 382. For example, a city government divided into

various departments, such as parks and public works, could consider the

departments as separate employers if the CMV operations are separately

controlled. The city also has the option of deeming the city as the

employer of all of the drivers of the various departments.

Section 382.205 On-duty Use

Question 1: What is meant by the terms ``use alcohol'' or ``alcohol

use?'' Is observation of use sufficient or is an alcohol test result

required?

Guidance: The term ``alcohol use'' is defined in Sec. 382.107. The

employer is prohibited in Sec. 382.205 from permitting a driver to

drive when the employer has actual knowledge of the driver's use of

alcohol, regardless of the level of alcohol in the driver's body. The

form of knowledge is not specified. It may be obtained through

observation or other method.

Section 382.213 Controlled Substances Use

Question 1: Must a physician specifically advise that substances in

a prescription will not adversely affect the driver's ability to safely

operate a CMV or may a pharmacist's advice or precautions printed on a

container suffice for the advice?

Guidance: A physician must specifically advise the driver that the

substances in a prescription will not adversely affect the driver's

ability to safely operate a CMV.

Section 382.301 Pre-Employment Testing

Question 1: What is meant by the phrase, ``an employer who uses,

but does not employ, a driver * * * ?'' Describe a situation to which

the phrase would apply.

Guidance: This exception was contained in the original drug testing

rules and was generally applied to ``trip-lease'' drivers involved in

interstate commerce. A trip-lease driver is generally a driver employed

by one motor carrier, but who is temporarily leased to another motor

carrier for one or more trips generally for a time period less than 30

days. The phrase would also apply to volunteer organizations that use

loaned drivers.

Question 2: Must school bus drivers be pre-employment tested after

they return to work after summer vacation in each year in which they do

not drive for 30 consecutive days?

Guidance: A school bus driver whom the employer expects to return

to duty the next school year does not have to be pre-employment tested

so long as the driver has remained in the random selection pool over

the summer. There is deemed to be no break in employment if the driver

is expected to return in the fall.

On the other hand, if the driver is taken out of all DOT random

pools for more than 30 days, the exception to pre-employment drug

testing in Sec. 382.301 would be unavailable and a drug test would have

to be administered after the summer vacation.

Question 3: Is a pre-employment controlled substances test required

if a driver returns to a previous employer after his/her employment had

been terminated?

Guidance: Yes. A controlled substances test must be administered

any time employment has been terminated for more than 30 days and the

exceptions under Sec. 382.301(c) were not met.

Question 4: Must all drivers who do not work for an extended period

of time (such as layoffs over the winter or summer months) be pre-

employment drug tested each season when they return to work?

Guidance: If the driver is considered to be an employee of the

company during the extended (layoff) period, a pre-employment test

would not be required so long as the driver has been included in the

company's random testing program during the layoff period. However, if

the driver was not considered to be an employee of the company at any

point during the layoff period, or was not covered by a program, or was

not covered for more than 30 days, then a pre-employment test would be

required.

Question 5: What must an employer do to avail itself of the

exceptions to pre-employment testing listed under Sec. 382.301(c)?

Guidance: An employer must meet all requirements in Sec. 382.301(c)

and (d), including maintaining all required documents. An employer must

produce the required documents at the time of the Compliance Review for

the exception to apply.

Question 6: May a CDL driving skills test examiner conduct a

driving skills test administered in accordance with 49 CFR part 383

before a person subject to part 382 is tested for alcohol and

controlled substances?

Guidance: Yes. A CDL driving skills test examiner, including a

third party CDL driving skills test examiner, may administer a driving

skills test to a person subject to part 382 without first testing him/

her for alcohol and controlled substances. The intent of the CDL

driving skills test is to assess a person's ability to operate a

commercial motor vehicle during an official government test of their

driving skills. However, this guidance does not allow an employer

(including a truck or bus driver training school) to use a person as a

current company, lease, or student driver prior to obtaining a verified

negative test result. An employer must obtain a verified negative

controlled substance test result prior to dispatching a driver on his/

her first trip.

Section382.303 Post-Accident Testing

Question 1: Why does the FHWA allow post-accident tests done by

Federal, State or local law enforcement agencies to substitute for a

Sec. 382.303 test even though the FHWA does not allow a Federal, State

or local law

[[Page 16386]]

enforcement agency test to substitute for a pre-employment, random,

reasonable suspicion, return-to-duty, or follow-up test? Will such

substitutions be allowed in the future?

Guidance: A highway accident is generally investigated by a

Federal, State, or local law enforcement agency that may determine that

probable cause exists to conduct alcohol or controlled substances

testing of a surviving driver. The FHWA believes that testing done by

such agencies will be done to document an investigation for a charge of

driving under the influence of a substance and should be allowed to

substitute for a FHWA-required test. The FHWA expects this provision to

be used rarely.

The FHWA is required by statute to provide certain protection for

drivers who are tested for alcohol and controlled substances. The FHWA

believes that law enforcement agencies investigating accidents will

provide similar protection based on the local court's prior action in

such types of testing.

The FHWA will not allow a similar approach for law enforcement

agencies to conduct testing for the other types of testing. A law

enforcement agency, however, may act as a consortium to provide any

testing in accordance with parts 40 and 382.

Question 2: May an employer allow a driver, subject to post-

accident controlled substances testing, to continue to drive pending

receipt of the results of the controlled substances test?

Guidance: Yes. A driver may continue to drive, so long as no other

restrictions are imposed by Sec. 382.307 or by law enforcement

officials.

Question 3: A commercial motor vehicle operator is involved in an

accident in which an individual is injured but does not die from the

injuries until a later date. The commercial motor vehicle driver does

not receive a citation under State or local law for a moving traffic

violation arising from the accident. How long after the accident is the

employer required to attempt to have the driver subjected to post-

accident testing?

Guidance: Each employer is required to test each surviving driver

for alcohol and controlled substances as soon as practicable following

an accident as required by Sec. 382.303. However, if an alcohol test is

not administered within 8 hours following the accident, or if a

controlled substance test is not administered within 32 hours following

the accident, the employer must cease attempts to administer that test.

In both cases the employer must prepare and maintain a record stating

the reason(s) the test(s) were not promptly administered.

If the fatality occurs following the accident and within the time

limits for the required tests, the employer shall attempt to conduct

the tests until the respective time limits are reached. The employer is

not required to conduct any tests for cases in which the fatality

occurs outside of the 8 and 32 hour time limits.

Question 4: What post-accident alcohol and drug testing

requirements are there for U.S. employer's drivers involved in an

accident occurring outside the U.S.?

Guidance: U.S. employers are responsible for ensuring that drivers

who have an accident (as defined in Sec. 390.5) in a foreign country

are post-accident alcohol and drug tested in conformance with the

requirements of 49 CFR parts 40 and 382. If the test(s) cannot be

administered within the required 8 or 32 hours, the employer shall

prepare and maintain a record stating the reasons the test(s) was not

administered (see Secs. 382.303 (b)(1) and (b)(4)).

Question 5: What post-accident alcohol and drug testing

requirements are there for foreign drivers involved in accidents

occurring outside the United States?

Guidance: Post-accident alcohol and drug testing is required for

CMV accidents occurring within the U.S. and on segments of interstate

movements into Canada between the U.S.-Canadian border and the first

physical delivery location of a Canadian consignee. The FHWA further

believes its regulations require testing for segments of interstate

movements out of Canada between the last physical pick-up location of a

Canadian consignor and the U.S.-Canadian border. The same would be true

for movements between the U.S.-Mexican border and a point in Mexico.

For example, a motor carrier has two shipments on a CMV from a

shipper in Chicago, Illinois. The first shipment will be delivered to

Winnipeg, Manitoba and the second to Lloydminster, Saskatchewan. A

driver is required to be post-accident tested for any CMV accident that

meets the requirements to conduct 49 CFR 382.303 Post-accident testing,

that occurs between Chicago, Illinois and Winnipeg, Manitoba (the first

delivery point). The FHWA would not require a foreign motor carrier to

conduct testing of foreign drivers for any accidents between Winnipeg

and Lloydminster.

The FHWA does not believe it has authority over Canadian and

Mexican motor carriers that operate within their own countries where

the movement does not involve movements into or out of the United

States. For example, the FHWA does not believe it has authority to

require testing for transportation of freight from Prince George,

British Colombia to Red Deer, Alberta that does not traverse the United

States.

If the driver is not tested for alcohol and drugs as required by

Sec. 382.303 and the motor carrier operates in the U.S. during a four-

month period of time after the event that triggered the requirement for

such a test, the motor carrier will be in violation of part 382 and may

be subject to penalties under Sec. 382.507.

Section 382.305 Random Testing

Question 1: Is a driver who is on-duty, but has not been assigned a

driving task, considered to be ready to perform a safety-sensitive

function as defined in Sec. 382.107 subjecting the driver to random

alcohol testing?

Guidance: A driver must be about to perform, or immediately

available to perform, a safety-sensitive function to be considered

subject to random alcohol testing. A supervisor, mechanic, or clerk,

etc., who is on call to perform safety-sensitive functions may be

tested at any time they are on call, ready to be dispatched while on-

duty.

Question 2: What are the employer's obligations, in terms of random

testing, with regard to an employee who does not drive as part of the

employee's usual job functions, but who holds a CDL and may be called

upon at any time, on an occasional or emergency basis, to drive?

Guidance: Such an employee must be in a random testing pool at all

times, like a full-time driver. A drug test must be administered each

time the employee's name is selected from the pool.

Alcohol testing, however, may only be conducted just before,

during, or just after the performance of safety-sensitive functions. A

safety-sensitive function as defined in Sec. 382.107 means any of those

on-duty functions set forth in Sec. 395.2 On-Duty time, paragraphs (1)

through (7), (generally, driving and related activities). If the

employee's name is selected, the employer must wait until the next time

the employee is performing safety-sensitive functions, just before the

employee is to perform a safety-sensitive function, or just after the

employee has ceased performing such functions to administer the alcohol

test. If a random selection period expires before the employee performs

a safety-sensitive function, no alcohol test should be given, the

employee's name should be returned to the pool, and the number of

employees subsequently selected should be adjusted accordingly to

achieve the required rate.

[[Page 16387]]

Question 3: How should a random testing program be structured to

account for the schedules of school bus or other drivers employed on a

seasonal basis?

Guidance: If no school bus drivers from an employer's random

testing pool are used to perform safety sensitive functions during the

summer, the employer could choose to make random selections only during

the school year. If the employer nevertheless chooses to make

selections in the summer, tests may only be administered when the

drivers return to duty.

If some drivers continue to perform safety-sensitive functions

during the summer, such as driving buses for summer school, an employer

could not choose to forego all random selections each summer. Such a

practice would compromise the random, unannounced nature of the random

testing program. The employer would test all selected drivers actually

driving in the summer. With regard to testing drivers not driving

during the summer, the employer has two options. One, names of drivers

selected who are on summer vacation may be returned to the pool and

another selection made. Two, the selected names could be held by the

employer and, if the drivers return to perform safety-sensitive

functions before the next random selection, the test administered upon

the drivers' return.

Finally, it should be noted that reductions in the number of

drivers during summer vacations reduces the average number of driving

positions over the course of the year, and thus the number of tests

which must be administered to meet the minimum random testing rate.

Question 4: Are driver positions that are vacant for a testing

cycle to be included in the determination of how many random tests must

be conducted?

Guidance: No. The FHWA random testing program tests employed or

utilized drivers, not positions that are vacant.

Question 5: May an employer use the results of another program in

which a driver participates to satisfy random testing requirements if

the driver is used by the employer only occasionally?

Guidance: The rules establish an employer-based testing program.

Employers remain responsible at all times for ensuring compliance with

all of the rules, including random testing, for all drivers which they

use, regardless of any utilization of third parties to administer parts

of the program. Therefore, to use another's program, an employer must

make the other program, by contract, consortium agreement, or other

arrangement, the employer's own program. This would entail, among other

things, being held responsible for the other program's compliance,

having records forwarded to the employer's principal place of business

on 2 days notice, and being notified of and acting upon positive test

results.

Question 6: Once an employee is randomly tested during a calendar

year, is his/her name removed from the pool of names for the calendar

year?

Guidance: No, the names of those tested earlier in the year must be

returned to the pool for each new selection. Each driver must be

subject to an equal chance of being tested during each selection

process.

Question 7: Is it permissible to make random selections by

terminals?

Guidance: Yes. If random selection is done based on locations or

terminals, a two-stage selection process must be utilized. The first

selection would be made by the locations and the second selection would

be of those employees at the location(s) selected. The selections must

ensure that each employee in the pool has an equal chance of being

selected and tested, no matter where the employee is located.

Question 8: When a driver works for two or more employers, in whose

random pool must the driver be included?

Guidance: The driver must be in the pool of each employer for which

the driver works.

Question 9: After what period of time may an employer remove a

casual driver from a random pool?

Guidance: An employer may remove a casual driver, who is not used

by the employer, from its random pool when it no longer expects the

driver to be used.

Question 10: If an employee is off work due to temporary lay-off,

illness, injury or vacation, should that individual's name be removed

from the random pool?

Guidance: No. The individual's name should not be removed from the

random pool so long as there is a reasonable expectation of the

employee's return.

Question 11: Is it necessary for an owner-operator, who is not

leased to a motor carrier, to belong to a consortium for random testing

purposes?

Guidance: Yes.

Question 12: If an employer joins a consortium, and the consortium

is randomly testing at the appropriate rates, will these rates meet the

requirements of the alcohol and controlled substances testing for the

employer even though the required percent of the employer's drivers

were not randomly tested?

Guidance: Yes.

Question 13: Is it permissible to combine the drivers from the

subsidiaries of a parent employer into one pool, with the parent

employer acting as a consortium?

Guidance: Yes.

Question 14: How should an employer compute the number of random

tests to be given to ensure that the appropriate testing rate is

achieved given the fluctuations in driver populations and the high

turnover rate of drivers?

Guidance: An employer should take into account fluctuations by

estimating the number of random tests needed to be performed over the

course of the year. If the carrier's driver workforce is expected to be

relatively constant (i.e., the total number of driver positions is

approximately the same) then the number of tests to be performed in any

given year could be determined by multiplying the average number of

driver positions by the testing rate.

If there are large fluctuations in the number of driver positions

throughout the year without any clear indication of the average number

of driver positions, the employer should make a reasonable estimate of

the number of positions. After making the estimate, the employer should

then be able to determine the number of tests necessary.

Question 15: May an employer or consortium include non-DOT-covered

employees in a random pool with DOT-covered employees?

Guidance: No.

Question 16: Canadians believe that their laws require employer

actions be tied to the nature of the job and the associated safety

risk. Canadian employers believe they will have to issue alcohol and

drug testing policies that deal with all drivers in an identical

manner, not just drivers that cross the border into the United States.

If a motor carrier wanted to add cross border work to an intra-Canadian

driver's duties, and the driver was otherwise qualified under the FHWA

rules, may the pre-employment test be waived?

Guidance: The FHWA has long required, since the beginning of the

drug testing program in 1988, that transferring from intrastate work

into interstate work requires a ``pre-employment'' test regardless of

what type of testing a State might have required under intrastate laws.

This policy also applied to motor carriers that had a pre-employment

testing program similar to the FHWA requirement. The FHWA believes it

is reasonable to apply this same interpretation to the first time a

Canadian or Mexican driver enters the United States.

[[Page 16388]]

This policy was delineated in the Federal Register of February 15,

1994 (59 FR 7302, at 7322). The FHWA believes motor carriers should

separate drivers into intra-Canadian and inter-State groups for their

policies and the random selection pools. If a driver in the intra-

Canadian group (including the random selection pool) were to take on

driving duties into the United States, the driver would be subject to a

pre-employment test to take on this driving task. Although the

circumstance is not actually a first employment with the motor carrier,

such a test would be required because it would be the first time the

driver would be subject to part 382.

Section 382.307 Reasonable Suspicion Testing

Question 1: May a reasonable suspicion alcohol test be based upon

any information or observations of alcohol use or possession, other

than a supervisor's actual knowledge?

Guidance: No. Information conveyed by third parties of a driver's

alcohol use may not be the only determining factor used to conduct a

reasonable suspicion test. A reasonable suspicion test may only be

conducted when a trained supervisor has observed specific,

contemporaneous, articulable appearance, speech, body odor, or behavior

indicators of alcohol use.

Question 2: Why does Sec. 382.307(b) allow an employer to use

indicators of chronic and withdrawal effects of controlled substances

in the observations to conduct a controlled substances reasonable

suspicion test, but does not allow similar effects of alcohol use to be

used for an alcohol reasonable suspicion test?

Guidance: The use of controlled substances by drivers is strictly

prohibited. Because controlled substances remain present in the body

for a relatively long period, withdrawal effects may indicate that the

driver has used drugs in violation of the regulations, and therefore

must be given a reasonable suspicion drug test.

Alcohol is generally a legal substance. Only its use or presence in

sufficient concentrations while operating a CMV is a violation of FHWA

regulation. Alcohol withdrawal effects, standing alone, do not,

therefore, indicate that a driver has used alcohol in violation of the

regulations, and would not constitute reasonable suspicion to believe

so.

Question 3: A consignee, consignor, or other party is a motor

carrier employer for purposes of 49 CFR parts 382 through 399. They

have trained their supervisors in accordance with 49 CFR 382.603 to

conduct reasonable suspicion training on their own drivers. A driver

for another motor carrier employer delivers, picks up, or has some

contact with the consignee's, consignor's, or other party's trained

supervisor. This supervisor believes there is reasonable suspicion,

based on their training, that the driver may have used a controlled

substance or alcohol in violation of the regulations. May this trained

consignee, consignor, or other party's supervisor order a reasonable

suspicion test of a driver the supervisor does not supervise for the

employing/using motor carrier employer?

Guidance: No, the trained supervisor may not order a reasonable

suspicion test of a driver the supervisor does not supervise for the

employing/using motor carrier employer. Motor carrier employers may not

conduct reasonable suspicion testing based ``on reports of a third

person who has made the observations, because of that person's possible

credibility problems or lack of appropriate training.''

The trained supervisor for the consignee, consignor, or other party

may, however, choose to do things not required by regulation, but

encouraged by the FHWA. They may inform the driver that they believe

the driver may have violated Federal, State, or local regulations and

advise them not to perform additional safety-sensitive work. They may

contact the employing/using motor carrier employer to alert them of

their reasonable suspicion and request the employing/using motor

carrier employer take appropriate action. In addition, they may contact

the police to request appropriate action.

Question 4: Are the reasonable suspicion testing and training

requirements of Secs. 382.307 and 382.603 applicable to an owner-

operator who is both an employer and the only employee?

Guidance: No. The requirements of Secs. 382.307 and 382.603 are not

applicable to owner-operators in non-supervisory positions. Section

382.307 requires employers to have a driver submit to an alcohol and/or

controlled substances test when the employer has reasonable suspicion

to believe that the driver has violated the prohibitions of subpart B

of part 382. Applying Sec. 382.307, Reasonable Suspicion Testing, to an

owner-operator who is an employer and the only employee contradicts

both ``reason'' and ``suspicion'' implicit in the title and the purpose

of Sec. 382.307. A driver who has self-knowledge that he/she has

violated the prohibitions of subpart B of part 382 is beyond mere

suspicion. Furthermore, Sec. 382.603 requires ``all persons designated

to supervise drivers'' to receive training that will enable him/her to

determine whether reasonable suspicion exists to require a driver to

undergo testing under Sec. 382.307. An owner-operator who does not hire

or supervise other drivers is not in a supervisory position, nor are

they subject to the testing requirements of Sec. 382.307. Therefore,

such an owner-operator would not be subject to the training

requirements of Sec. 382.603.

Section 382.401 Retention of Records

Question 1: Many small school districts are affiliated through

service units which are, in essence, a coalition of individual

districts. Can these school districts have one common confidant for

purposes of receiving results and keeping records?

Guidance: Yes. Employers may use agents to maintain the records, as

long as they are in a secure location with controlled access. The

employer must also make all records available for inspection at the

employer's principal place of business within two business days after a

request has been made by an FHWA representative.

Section 382.403 Reporting of Results in a Management Information

System

Question 1: The FHWA regulations are written on an annual calendar

year basis. Will foreign motor carriers, using this system, work from

July 1 to June 30, or is everything to be managed on a six-month basis

for the first year and then fall into annual calendar years

subsequently?

Guidance: All motor carriers must manage their programs and report

results under Sec. 382.403, if requested by FHWA, on a January 1 to

December 31 basis. This means that foreign motor carriers will report

July 1 to December 31 results the first applicable year.

Section 382.405 Access to Facilities and Records

Question 1: May employers who are subject to other Federal

agencies' regulations, such as the Nuclear Regulatory Commission,

Department of Energy, Department of Defense, etc., allow those agencies

to view or have access to test records required to be prepared and

maintained by parts 40 and/or 382?

Guidance: Federal agencies, other than those specifically provided

for in Sec. 382.405, may have access to an employer's driver test

records maintained in accordance with parts 40 or 382 only when a

specific, contemporaneous authorization for release of the test records

is allowed by the driver.

[[Page 16389]]

Question 2: Must a motor carrier respond to a third-party

administrator's request (as directed by the specific, written consent

of the driver authorizing release of the information on behalf of an

entity such as a motor carrier) to release driver information that is

contained in records required to be maintained under Sec. 382.401?

Guidance: Yes. However, the third-party administrator must comply

with the conditions established concerning confidentiality, test

results, and record keeping as stipulated in the ``Notice: Guidance on

the Role of Consortia and Third-Party Administrators (C/TPA) in DOT

Drug and Alcohol Testing Programs'' published on July 25, 1995, in

Volume 60, No. 142, in the Federal Register. Motor carriers must comply

completely with 49 CFR 382.413 and 382.405 as well as any applicable

regulatory guidance. Please note that written consent must be obtained

from the employee each time part 382 information is provided to a C/

TPA, the consent must be specific to the individual or entity to whom

information is being provided, and that blanket or non-specific

consents to release information are not allowed.

Question 3: May employers allow unions or the National Labor

Relations Board to view or have access to test records required to be

prepared and maintained by parts 40 and/or 382, such as the list(s) of

all employees actually tested?

Guidance: Unions and the National Labor Relations Board may have

access to the list(s) of all employees in the random pool or the

list(s) of all employees actually tested. The dates of births and SSNs

must be removed from these lists prior to release. However, access to

the employee's negative or positive test records maintained in

accordance with parts 40 or 382 can be granted only when a specific,

contemporaneous authorization for release of the test records is

allowed by the driver.

Question 4: May an employer (motor carrier) disclose information

required to be maintained under 49 CFR part 382 (pertaining to a

driver) to the driver or the decision maker in a lawsuit, grievance, or

other proceeding (including, but not limited to, worker's compensation,

unemployment compensation) initiated by or on behalf of the driver,

without the driver's written consent?

Guidance: Yes, a motor carrier has discretion without the driver's

consent as provided by Sec. 382.405(g), to disclose information to the

driver or the decision maker in a lawsuit, grievance, or other

proceeding (including, but not limited to, worker's compensation,

unemployment compensation) initiated by or on behalf of the driver

concerning prohibited conduct under 49 CFR part 382.

Also, an employer (motor carrier) may be required to provide the

test result information pursuant to other Federal statutes or an order

of a competent Federal jurisdiction, such as an administrative

subpoena, as allowed by Sec. 382.405(a) without the driver's written

consent.

Question 5: What is meant by the term ``as required by law'' in

relation to State or local laws for disclosure of public records

relating to a driver's testing information and test results?

Guidance: The term ``as required by law'' in Sec. 382.405(a) means

Federal statutes or an order of a competent Federal jurisdiction, such

as an administrative subpoena. The Omnibus Transportation Employee

Testing Act of 1991, and the implementing regulations in part 382,

require that test results and medical information be confidential to

the maximum extent possible. (Pub. L. 102-143, Title V, sec. 5(a)(1),

105 Stat. 959, codified at 49 U.S.C. 31306). In addition, the Act

preempts inconsistent State or local government laws, rules,

regulations, ordinances, standards, or orders that are inconsistent

with the regulations issued under the Act.

The FHWA believes the only State and local officials that may have

access to the driver's records under Sec. 382.405(d) and 49 U.S.C.

31306, without the driver's written consent, are State or local

government officials that have regulatory authority over an employer's

(motor carrier's) alcohol and drug testing programs for purposes of

enforcement of part 382. Such State and local agencies conduct employer

(motor carrier) compliance reviews under the FHWA's Motor Carrier

Safety Assistance Program (MCSAP) on the FHWA's behalf in accordance

with 49 CFR part 350.

Section 382.413 Release of Alcohol and Controlled Substances Test

Information by Previous Employers

Question 1: What is to be done if a previous employer does not make

the records available in spite of the employer's request along with the

driver's written consent?

Guidance: Employers must make a reasonable, good faith effort to

obtain the information. If a previous employer refuses, in violation of

Sec. 382.405, to release the information pursuant to the new employer's

and driver's request, the new employer should note the attempt to

obtain the information and place the note with the driver's other

testing information (59 FR 7501, February 14, 1994).

Question 2: Within 14 days of first using a driver to perform

safety-sensitive functions, an employer discovers that a driver had a

positive controlled substances and/or 0.04 alcohol concentration test

result within the previous two years. No records are discovered that

the driver was evaluated by an SAP and has been released by an SAP for

return to work. The employer removes the driver immediately from the

performance of safety-sensitive duties. Is there a violation of the

regulations?

Guidance: Based on the scenario as presented, only the driver is in

violation of the rules.

Question 3: Must an employer investigate a driver's alcohol and

drug testing background prior to January 1, 1995?

Guidance: No. The first implementation date of the part 382 testing

programs was January 1, 1995. Section 382.413 requires subsequent

employers to obtain information retained by previous employers that the

previous employers generated under a part 382 testing program. Since no

employer was allowed to conduct any type of alcohol or drug test under

the authority of part 382 prior to January 1, 1995, no tests conducted

prior to 1995 are required to be obtained under Sec. 382.413. An

employer may, however, under its own authority, request that a driver

who was subject to part 391 drug testing provide prior testing

information.

Question 4: Must a motor carrier respond to a third-party

administrator's request (as directed by the specific, written consent

of the driver authorizing release of the information on behalf of an

entity such as a motor carrier) to release driver information that is

contained in records required to be maintained under Sec. 382.401?

Guidance: Yes. However, the third-party administrator must comply

with the conditions established concerning confidentiality, test

results, and record keeping as stipulated in the ``Notice: Guidance on

the Role of Consortia and Third-Party Administrators (C/TPA) in DOT

Drug and Alcohol Testing Programs'' published on July 25, 1995, in

Volume 60, No. 142, in the Federal Register. Motor carriers must comply

completely with Secs. 382.413 and 382.405 as well as any applicable

regulatory guidance. Please note that written consent must be obtained

from the employee each time part 382 information is provided to a C/

TPA, that the consent must be specific to the individual or entity to

whom

[[Page 16390]]

information is being provided, and that blanket or non-specific

consents to release information are not allowed.

Section 382.501 Removal From Safety-Sensitive Functions

Question 1: What work may the driver perform for an employer, if a

driver violates the prohibitions in subpart B?

Guidance: A driver who has violated the prohibitions of subpart B

may perform any duties for an employer that are not considered

``safety-sensitive functions.'' This may include handling of materials

exclusively in a warehouse, regardless of whether the materials are

considered hazardous as long as safety-sensitive functions are not

performed. Safety-sensitive functions may not be performed until the

individual has been evaluated by an SAP, complied with any recommended

treatment, has been re-evaluated by an SAP, has been allowed by the SAP

to return to work and has passed a return to duty test.

Section 382.507 Penalties

Question 1: What is the fine or penalty for employers who refuse or

fail to provide Part 382 testing information to a subsequent employer?

Guidance: Title 49 U.S.C. 521(b)(2)(A) provides for civil penalties

not to exceed $500 for each instance of refusing or failing to provide

the information required by Sec. 382.405. Criminal penalties may also

be imposed under 49 U.S.C. 521(b)(6).

Section 382.601 Motor Carrier Obligation To Promulgate a Policy on the

Misuse of Alcohol and Use of Controlled Substances

Question 1: If a driver refuses to sign a statement certifying that

he or she has received a copy of the educational materials required in

Sec. 382.601 from their employer, will the employee be in violation of

Sec. 382.601? May the driver's supervisor sign the certificate of

receipt indicating that the employee refused to sign?

Guidance: The employer is responsible for ensuring that each driver

signs a statement certifying that he or she has received a copy of the

materials required in Sec. 382.601. The employer is required to

maintain the original of the signed certificate and may provide a copy

to the driver. The employer would be in violation if it uses a driver,

who refuses to comply with Sec. 382.601, to perform any safety

sensitive function, because Sec. 382.601 is a requirement placed on the

employer. The employee would not be in violation if he or she drove

without signing for the receipt of the policy. It is not permissible

for the driver's supervisor to sign the certificate of receipt;

however, it is advisable for the employer to note the attempt, the

refusal, and the consequences of such action. Also, please note that

the signing of the policy by the employee is in no way an

acknowledgment that the policy itself complies with the regulations.

Question 2: Does Sec. 382.601 require employers to provide

educational materials and policies and procedures to drivers after the

initial distribution of required educational materials?

Guidance: No.

Section 382.603 Training for Supervisors

Question 1: Does Sec. 382.603 require employers to provide

recurrent training to supervisory personnel?

Guidance: No.

Question 2: May an employer accept proof of supervisory training

for a supervisor from another employer?

Guidance: Yes.

Section 382.605 Referral, Evaluation, and Treatment

Question 1: Must an SAP evaluation be conducted in person or may it

be conducted telephonically?

Guidance: Both the initial and follow-up SAP evaluations are

clinical processes that must be conducted face-to-face. Body language

and appearance offer important physical cues vital to the evaluation

process. Tremors, needle marks, dilated pupils, exaggerated movements,

yellow eyes, glazed or bloodshot eyes, lack of eye contact, a physical

slowdown or hyperactivity, appearance, posture, carriage, and ability

to communicate in person are vital components that cannot be determined

telephonically. In-person sessions carry with them the added advantage

of the SAP's being able to provide immediate attention to individuals

who may be a danger to themselves or others.

Question 2: Are employers required to provide intervention and

treatment for drivers who have a substance abuse problem or only refer

drivers to be evaluated by an SAP?

Guidance: An employer who wants to continue to use or hire a driver

who has violated the prohibitions in subpart B in the past must ensure

that a driver has complied with any SAP's recommended treatment prior

to the driver returning to safety-sensitive functions. However,

employers must only refer to an SAP drivers who have tested positive

for controlled substances, tested 0.04 or greater alcohol

concentration, or have violated other prohibitions in subpart B.

Question 3: Under the DOT rules, must an SAP be certified by the

DOT in order to perform SAP functions?

Guidelines: The DOT does not certify, license, or approve

individual SAPs. The SAP must be able to demonstrate to the employer

qualifications necessary to meet the DOT rule requirements. The DOT

rules define the SAP to be a licensed physician (medical doctor or

doctor of osteopathy), a licensed or certified psychologist, a licensed

or certified social worker, or a licensed or certified employee

assistance professional. All must have knowledge of and clinical

experience in the diagnosis and treatment of substance abuse-related

disorders (the degrees and certificates alone do not confer this

knowledge). In addition, alcohol and drug abuse counselors certified by

the National Association of Alcoholism and Drug Abuse Counselors

Certification Commission, a national organization that imposes

qualification standards for treatment of alcohol-related disorders, are

included in the SAP definition.

Question 4: Are employers required to refer a discharged employee

to an SAP?

Guidance: The rules require an employer to advise the employee, who

engages in conduct prohibited under the DOT rules, of the available

resources for evaluation and treatment including the names, addresses,

and telephone numbers of SAPs and counseling and treatment programs. In

the scenario where the employer discharges the employee, that employer

would be considered to be in compliance with the rules if it provided

the list to the employee and ensured that SAPs on the list were

qualified. This employer has no further obligation (e.g., to facilitate

referral to the SAP; ensure that the employee receives an SAP

evaluation; pay for the evaluation; or seek to obtain, or maintain the

SAP evaluation synopsis).

Question 5: How will the SAP evaluation process differ if the

employee is discharged by the employer rather than retained following a

rule violation?

Guidance: After engaging in prohibited conduct and prior to

performing safety-sensitive duties in any DOT regulated industry, the

employee must receive a SAP evaluation. And, when assistance with a

problem is clinically indicated, the employee must receive that

assistance and demonstrate successful compliance with the

recommendation as evaluated through an SAP follow-up evaluation.

The SAP process has the potential to be more complicated when the

employee is not retained by the employer. In such circumstances, the

SAP will likely not have a connection with the employer for whom the

employee worked nor have immediate

[[Page 16391]]

access to the exact nature of the rule violation. In addition, the SAP

may have to hold the synopsis of evaluation and recommendation for

assistance report until asked by the employee to forward that

information to a new employer who wishes to return the individual to

safety-sensitive duties. In some cases, the SAP may provide the

evaluation, referral to a treatment professional, and the follow-up

evaluation before the employee has received an offer of employment.

This circumstance may require the SAP to hold all reports until asked

by the individual to forward them to the new employer. If the new

employer has a designated SAP, that SAP may conduct the follow-up

evaluation despite the fact that the employee's SAP has already done

so. In other words, a new employer may determine to its own

satisfaction (e.g., by having the prospective employee receive a

follow-up SAP evaluation utilizing the employer's designated SAP) that

the prospective employee has demonstrated successful compliance with

recommended treatment.

Question 6: Do community lectures and self-help groups qualify as

education and/or treatment?

Guidance: Self-help groups and community lectures qualify as

education but do not qualify as treatment. While self-help groups such

as Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) are crucial

to many employees' recovery process, these efforts are not considered

to be treatment programs in and of themselves. However, they can serve

as vital adjuncts in support of treatment program efforts. AA and NA

programs require a level of anonymity which makes reporting client

progress and prognosis for recovery impossible. If the client provides

permission, AA and NA sponsors can provide attendance status reports to

the SAP. Therefore, if a client is referred to one of these groups or

to community lectures as a result of the SAP evaluation, the employee's

attendance, when it can be independently validated, can satisfy a SAP

recommendation for education as well as a gauge for determining

successful compliance with a treatment program when both education and

treatment are recommended by the SAP's evaluation.

Question 7: Can an employee who has violated the rules return to

safety-sensitive functions prior to receiving an SAP evaluation?

Guidance: The employee is prohibited from performing any DOT

regulated safety-sensitive function until being evaluated by the SAP.

An employer is prohibited from permitting the employee to engage in

safety-sensitive duties until evaluated. If the evaluation reveals that

assistance is needed, the employee must receive the assistance, be re-

evaluated by the SAP (and determined to have demonstrated successful

compliance with the recommendation), and pass a return-to-duty alcohol

and/or drug test prior to performing safety-sensitive duties.

Question 8: Can an employer overrule an SAP treatment

recommendation?

Guidance: No. If found to need assistance, the employee cannot

return to safety-sensitive functions until an SAP's follow-up

evaluation determines that the employee has demonstrated successful

compliance with the recommended treatment. An employer who returns a

worker to safety-sensitive duties when the employee has not complied

with the SAP's recommendation is in violation of the DOT rule and is,

therefore, subject to a penalty.

Question 9: Is an employer obligated to return an employee to

safety-sensitive duty following the SAP's finding during the follow-up

evaluation that the employee has demonstrated successful compliance

with the treatment recommendation?

Guidance: Demonstrating successful compliance with prescribed

treatment and testing negative on the return-to-duty alcohol test and/

or drug test, are not guarantees of employment or of return to work in

a safety-sensitive position; they are preconditions the employee must

meet in order to be considered for hiring or reinstatement to safety-

sensitive duties by an employer.

Question 10: Can an employee receive the follow-up from an SAP who

did not conduct the initial SAP evaluation?

Guidance: Although it is preferable for the same SAP to conduct

both evaluations, this will not be realistic in some situations. For

instance, the initial SAP may no longer be in the area, still under

contract to the employer, or still hired by the employer to conduct the

service. Additionally, the employee may have moved from the area to a

new location. In all cases, the employer responsibility is to ensure

that both the initial SAP and the follow-up SAP are qualified according

to the DOT rules.

Question 11: Who is responsible for reimbursing the SAP for

services rendered? Who is responsible for paying for follow-up testing

recommended by the SAP?

Guidance: The DOT rules do not affix responsibility for payment for

SAP services upon any single party. The DOT has left discussions

regarding payment to employer policies and to labor-management

agreements. Therefore, in some instances, this issue has become part of

labor-management negotiations.

Some employers have hired or contracted staff for the purpose of

providing SAP services. For some employees, especially those who have

been released following a violation, payment for SAP services will

become their responsibility. In any case, the SAP should be suitable to

the employer who chooses to return the employee to safety-sensitive

functions. Employer policies should address this payment issue.

Regarding follow-up testing recommended by the SAP, when an

employer decides to return the employee to safety-sensitive duty, the

employer is essentially determining that the costs associated with

hiring and training a new employee exceeds the costs associated with

conducting follow-up testing of the returning employee.

This text is long and has been trimmed here. Open the source document for the complete record.