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Controlled Substances & Alcohol Use and Testing

American Government Special Collections Reference Desk

American Government

Controlled Substances & Alcohol Use and Testing

Federico Peña and Rodney E. Slater
Federal Highway Administration
February 15, 1994

[Federal Register: February 15, 1994]


_______________________________________________________________________

Part VII





Department of Transportation





_______________________________________________________________________



Federal Highway Administration



_______________________________________________________________________



49 CFR Parts 382, et. al.



Controlled Substances and Alcohol Use and Testing; Rule and Proposed 
Rule
DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 382, 391, 392, and 395

[FHWA Docket Nos. MC-116, MC-92-19, MC-92-23]
RIN 2125-AA79, 2125-AC85, 2125-AD06

 
Controlled Substances & Alcohol Use and Testing

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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

SUMMARY: The FHWA is adding regulations on controlled substances and 
alcohol use and testing to the Federal Motor Carrier Safety Regulations 
and making conforming amendments to other parts of those regulations. 
This is being done to comply with the requirements of the Omnibus 
Transportation Employee Testing Act of 1991. This rule requires 
employers to test drivers who are required to obtain commercial 
driver's licenses (CDLs) for the illegal use of alcohol and controlled 
substances.

EFFECTIVE DATE: March 17, 1994.

FOR FURTHER INFORMATION CONTACT: For information regarding program 
issues: Mr. David Miller, Office of Motor Carrier Standards, (202) 366-
2981, or for information regarding legal issues: Mr. David Sett, Office 
of the Chief Counsel, (202) 366-0834, Federal Highway Administration, 
Department of Transportation, 400 Seventh Street, SW., Washington, DC 
20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday 
through Friday, except Federal legal holidays.

SUPPLEMENTARY INFORMATION:

I. How to Read the FHWA Rules Published Today

A. Final Rules

    The final rules requiring drug and alcohol testing of commercial 
motor vehicle operators are published in three places in today's 
Federal Register. This document contains the final rule for part 382, 
consisting of the substantive requirements of who, what, where, and 
when drug and alcohol testing must be done by employers. The text of 
the rule follows the discussion in this preamble. This final rule 
follows from two separate notices of proposed rulemakings--one for 
alcohol testing and one for drug testing. Five other operating 
administrations (OA) of the Department are publishing similar 
substantive rules for alcohol testing in today's Federal Register.
    In addition, a Department of Transportation-wide preamble precedes 
this document in today's Federal Register. It is entitled Limitation on 
Alcohol Use by Transportation Workers. This common preamble discusses 
comments to the notices of proposed rulemakings (NPRM) published by six 
operating administrations on December 15, 1992, including the FHWA, and 
the parts of the final rules common to the six operating 
administrations. It should be read in conjunction with this document to 
ensure a complete understanding of the FHWA's final rule. There is no 
common rule associated with the common preamble. The rule contained in 
this document contains the requirements for motor carriers.
    A third document, consisting of regulatory amendments and a 
preamble, contains the technical testing procedures designed for use 
when testing is required by part 382, this rule. Procedures for 
Transportation Workplace Drug and Alcohol Testing Programs, also 
published elsewhere in today's Federal Register, specifies how the 
testing is to be conducted. It adds alcohol testing procedures and drug 
testing amendments to 49 CFR part 40, the current Department-wide drug 
testing procedures regulation.

B. Notices of Proposed Rulemakings

    In addition to the final rules mentioned above, the FHWA is also 
publishing in today's Federal Register three proposals to change 
certain provisions of the final rules. For more information than 
provided below, please refer to each NPRM.
    The first NPRM contains a proposal to amend the part 382 final rule 
you are now reading to include foreign-based employers and their 
drivers who operate commercial motor vehicles in and through the United 
States. Included is a discussion of the comments received in response 
to an advanced notice of proposed rulemaking (ANPRM) published by the 
FHWA on December 15, 1992, in which various issues related to foreign 
coverage were raised.
    The second NPRM proposes to amend part 40 to allow confirmatory 
blood testing for alcohol during reasonable suspicion and post-accident 
tests when an evidential breath testing device is not readily 
available. The Department-wide proposal seeks comment on how blood 
testing for alcohol should be conducted and what laboratories should be 
used.
    The third NPRM proposes a Department-wide procedure for each 
operating administration's Administrator to adjust the random drug 
testing rate. Paralleling the provisions for adjusting the alcohol 
testing rate appearing in this rulemaking, the proposal would allow a 
reduction in the drug testing rate based upon reliable statistics of 
positive rates for each operating administration's program.

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

    In this document and the others published by the FHWA and the 
Department in today's Federal Register, the terms ``drugs'' and 
``controlled substances'' are interchangeable and have the same 
meaning. Unless otherwise provided, drugs and controlled substances 
refer to marijuana (THC), cocaine, opiates, phencyclidine (PCP), and 
amphetamines (including methamphetamines).

II. Background

A. Statutory Authority

    The Omnibus Transportation Employee Testing Act of 1991 (the 
Omnibus Act) was signed by President Bush on October 28, 1991, as part 
of the 1992 Department of Transportation and Related Agencies 
Appropriations Act. Public Law 102-143, Title V, 105 Stat. 917, 952 
(1991). The Omnibus Act requires the Secretary of Transportation to 
promulgate regulations for alcohol and controlled substances testing 
for persons in safety-sensitive positions in four modes of 
transportation--motor carrier, airline, railroad, and mass transit. The 
general requirements of the Omnibus Act are addressed in the Office of 
the Secretary of Transportation's (OST) final rule amending 49 CFR part 
40 and in the common preamble, applicable to all of the U.S. Department 
of Transportation (DOT) modal agency rules on alcohol testing programs. 
These documents appear elsewhere in today's issue of the Federal 
Register.
    Section 5 of the Omnibus Act addresses requirements specific to 
employers who own or lease commercial motor vehicles (CMVs) or assign 
persons to operate such vehicles. 49 U.S.C. 2717. This section amends 
the Commercial Motor Vehicle Safety Act of 1986 (CMVSA). Public Law 99-
570, 100 Stat. 3207-170 (codified at 49 U.S.C. app. 2701-2718). The 
CMVSA established the requirements for the Commercial Drivers License 
(CDL). The FHWA has implemented the CDL provisions of the CMVSA through 
the publication of several final rules.
    The Omnibus Act requires the Secretary to issue regulations 
requiring employers to conduct pre-employment, reasonable suspicion, 
random and post-accident testing of drivers for the use, in violation 
of law or Federal regulation, of alcohol or controlled substances. 
Congress recognized current FHWA regulations for controlled substances 
testing and the scientific and technical guidelines established by the 
Department of Health and Human Services incorporated therein.
    In addition, this rule is issued under the general safety 
regulatory authority of the FHWA. See 49 U.S.C. 3102 and app. 2505.

B. Regulatory History

1. Current Regulations
    The FHWA published a final rule on November 21, 1988, setting forth 
regulations to require employers who operate CMVs in interstate 
commerce to have an anti-controlled substances program, including the 
testing of interstate CMV drivers. See 53 FR 47134. That rule required 
employers to conduct five types of controlled substances tests: Pre-
employment/use; periodic; reasonable cause; post-accident; and random. 
49 CFR part 391, subpart H.
    Though there is no corresponding alcohol testing program currently 
applicable to motor carriers, a number of other regulations prohibit 
the misuse of alcohol and drugs when operating a CMV. Prohibitions on 
use before and during driving appear in 49 CFR 392.4 and 392.5. A 
driver who is convicted of being under the influence of drugs or 
alcohol while driving a CMV is subject to CDL suspension. 49 CFR 
383.51. A driver who uses Schedule I drugs, without medical 
authorization, is physically unqualified to drive in interstate 
commerce. 49 CFR 391.41(b)(12).
    On the same date, November 21, 1988, and in conjunction with 
publication of the FHWA drug testing rule, the OST published a 
Department-wide interim final rule, ``Procedures for Transportation 
Workplace Drug Testing Programs.'' See 53 FR 47002. On December 1, 
1989, OST published a final rule amending certain portions of the 
interim final rule. 54 FR 49854, 49 CFR part 40.
    Subsequent to the publication of the November 21, 1988, FHWA final 
rule, the FHWA published several notices relating to the controlled 
substances testing requirements. See 54 FR 39546, 54 FR 46616, and 54 
FR 53294. On February 1, 1990, the FHWA published an interim final rule 
and requested additional comments to FHWA Docket No. MC-116 on the 
changes to the rule and how to streamline the controlled substances 
testing program. 55 FR 3546. The FHWA received 24 comments in response 
to this interim final rule. The responses to two of these comments will 
be addressed later in this document. The other comments were addressed 
in a recent rulemaking on the drug testing management information 
system (58 FR 68194 and 68220, December 23, 1993).
    On November 2, 1989, OST published an advance notice of proposed 
rulemaking (ANPRM) on alcohol testing. 54 FR 46326.
2. Notices of Proposed Rulemaking
    On December 15, 1992, the FHWA requested public comments on two 
notices of proposed rulemaking (NPRM) which address alcohol and 
controlled substance testing:

1. Alcohol Testing [57 FR 59382, 59409, and 59516, December 15, 1992, 
Docket No. MC-92-19], and
2. Controlled Substances Testing [57 FR 59382, 59409, and 59567, 
December 15, 1992, Docket No. MC-92-23].
3. Public Hearings
    The Department of Transportation and the FHWA held three 2-day 
public hearings regarding the alcohol and controlled substances testing 
NPRMs. The hearings were held in Washington, DC, on February 25 and 26, 
Chicago, Illinois, on March 1 and 2, and San Francisco, California, on 
March 4 and 5. The FHWA has included transcripts of each hearing in the 
rulemaking dockets. Comments made at the hearings are discussed below 
along with written comments submitted directly to the dockets.
4. Comments to the Dockets
    A. Alcohol Testing [Docket MC-92-19]. Comments to docket MC-92-19 
that relate to rule provisions common to all operating administrations 
are discussed in the common preamble, Limitation on Alcohol Use by 
Transportation Workers, published elsewhere in today's Federal 
Register. Discussion in this rulemaking document will focus on aspects 
or applications of the rule which are unique to FHWA. Where a 
discussion is included in this document, the corresponding section in 
the common preamble should also be consulted for a complete 
understanding of this final rule.
    The FHWA received 323 comments to docket MC-92-19, the alcohol 
NPRM, by the close of business on April 14, 1993. The commenters 
included employers, drivers, trade associations, unions, medical review 
officers (MROs), substance abuse professionals (SAPs), and governmental 
agencies, including law enforcement agencies, and school districts.

Applicability

    Comments: Many custom harvesters stated that their industry should 
retain the current exemption from drug testing in 49 CFR part 391, 
Qualification of Drivers, and also be exempt from alcohol testing. Some 
commenters, including The Kansas Electric Coop, stated that rural 
electric cooperatives should be exempt from testing because job 
responsibilities are different from those of over-the-road truck 
drivers. They stated that their employees spend minimal time on high 
speed thoroughfares in close proximity to small passenger cars. A local 
government agency stated that mechanics should not be subject to 
alcohol and controlled substances testing because they could not afford 
such a program.
    The Virginia State Police, among others, stated that only employees 
subject to 49 CFR part 391 should be tested. They stated that the 
controlled substances testing program is in place and working. The 
additional testing for alcohol could readily be implemented. Some 
comments recommended a partial exemption for foreign drivers and a 
total exemption for electrical contractors.
    Other commenters, including the Owner-Operator Independent Drivers 
Association (OOIDA), disagreed with the principle of industry-wide 
waivers from alcohol-testing regulations. Though it opposes non-
probable cause testing, the OOIDA stated that if testing were imposed, 
all drivers should be treated equally. The Federal mandate is that 
government and school bus drivers be tested as other drivers are 
tested.
    One commenter stated that employees who worked for employers 
subject to the Federal Transit Administration (FTA) rules should be 
tested under FTA rules. Another commenter asked how to report CDL 
drivers who are subject to the Federal Transit Act, and whether non-CDL 
and non-Section 18 drivers must be tested. The Montana and South Dakota 
Departments of Transportation recommended that transit systems with 
fewer than 15 safety-sensitive employees should be exempt from testing 
regulations. The Association of American Railroads (AAR) and Transtar, 
Inc. stated that railroad employees who operate CMVs should be tested 
under the jurisdiction of the FRA, not the FHWA. The AAR stated that 
most railroad employees, who operate CMVs, drive their vehicles 
sporadically. Driving is not their primary responsibility. Some 
commenters stated pipeline employees, who operate CMVs, should only be 
subject to Research and Special Programs Administration (RSPA) 
jurisdiction.
    The Tennessee Valley Authority (TVA) and other commenters stated 
that employees subject to the Nuclear Regulatory Commission (NRC) 
should be tested under NRC regulations. The TVA stated that there is 
needless, costly duplication which significantly compounds the 
opportunity for human error in the testing program. The U.S. Postal 
Workers Union stated that the U.S. Post Office has a credible 
controlled substances testing program and should be given credit for 
their program. Pinnacle Transport Services, Inc. stated that drivers of 
CMVs should only be subject to FHWA regulations.
    Other commenters, including the Washington State Patrol (WSP), 
stated that government employees should be totally exempted from the 
alcohol testing regulations. The WSP stated that requiring governmental 
agencies, including school bus drivers and highway road crews, to 
implement random alcohol testing would further reduce limited budgets 
for these agencies. The WSP also stated that their state currently has 
a strong and effective school bus inspection program.
    FHWA Response: The Omnibus Act, as stated above, amended the CMVSA, 
subjecting all drivers of CMVs who are required to obtain CDLs to 
testing for the illegal use of alcohol and controlled substances. The 
Omnibus Act does not provide specific waiver authority apart from the 
CMVSA. The CMVSA gives the Secretary the discretion to waive classes of 
drivers and vehicles from all or part of the statute's requirements. 
The FHWA does not believe that this waiver authority is broad enough to 
waive all drivers from requirements of the Omnibus Act. See H.R. Rep. 
No. 901, 99th Cong., 2d Sess. 4 (1986). Moreover, the FHWA does not 
believe it is in the public interest to grant industry-wide exemptions 
from testing requirements beyond those permitted in the CDL program as 
a whole. Therefore, only those few categories of drivers that have 
received full waivers from CDL requirements are similarly waived from 
drug and alcohol testing requirements.
    Employers not subject to this rule will be those employers who 
exclusively employ drivers that are not subject to commercial driver's 
license requirements. Such employers may be Department of Defense (DoD) 
agencies who only employ active duty military personnel. Those (DoD) 
agencies that employ civilian and non-active duty drivers will be 
subject to these rules and must implement FHWA required testing 
programs for those civilian and non-active duty drivers. Other 
employers not subject to this rule include farmers, emergency response 
and firefighting companies, when they employ drivers that have been 
waived from the CDL requirements by their State of licensure.
    Employers who are subject to the Federal Transit Administration's 
(FTA) alcohol and controlled substances testing regulations are not 
subject to the FHWA's regulations. The FTA generally requires its 
grantee's to be subject to its rules. The FTA, however, will not 
require recipients receiving Federal funding under section 16(b)(2) of 
the Federal Transit Act to follow the FTA substance testing rule. The 
Federal Transit Act, under section 16(b)(2), provides capital 
assistance through a State to organizations that provide specialized 
transportation services to elderly persons and persons with 
disabilities. The funds may go to nonprofit organizations, and under 
certain circumstances, to public bodies.
    Though some commenters suggested to the FHWA and the FTA that the 
FTA cover section 16(b)(2) recipients in the FTA rule, the Omnibus Act 
does not provide such coverage. Therefore, the CMV drivers of section 
16(b)(2) recipients will be covered under this FHWA rule. See the FTA 
final rule published elsewhere in today's Federal Register for further 
information.
    As for employers and drivers subject to other Federal agencies' 
testing programs, the FHWA, along with the other operating 
administrations in the Department and the OST, have worked with the 
NRC, the Departments of Energy (DOE) and Health and Human Services 
(DHHS) and other Federal agencies to establish similar requirements for 
testing of both the agencies' Federal employees and regulated entities. 
The FHWA has attempted to have substantially compatible regulations 
with all Federal agencies that require testing of Federal and non-
Federal employees. However, operators of CMVs and their employers must 
comply with the requirements of the Omnibus Act regardless of whether 
an employer has an existing drug and/or alcohol testing program.
    This section also specifies that persons who are both an employer 
and a driver, that is, the person who owns a business and also drives a 
commercial motor vehicle for that business (generally called an owner-
operator), must comply with both the driver and the employer 
requirements contained in part 382. This section also stipulates that 
an employer with only one driver may not have an independent random 
testing program. Such employers must join a group of other DOT 
regulated employers, generally known as a consortium, to conduct random 
testing for alcohol and drug testing. This requirement is necessary to 
ensure a truly random selection, since it is impossible to randomly 
select from a pool that contains only one person.

Definitions

    Comments: The Council of Special Transportation and the County of 
Somerset, New Jersey stated that the term ``safety-sensitive position'' 
should be defined in the regulations. The Council of Special 
Transportation added that the FHWA and FTA should minimize 
inconsistencies in their respective regulations and definitions. Other 
commenters stated that the definition of the term ``accident'' should 
be consistent with current rules.
    FHWA Response: The term ``safety-sensitive function'' was defined 
in the proposal and is defined in this final rule. A safety-sensitive 
function or position in the mass transit industry encompasses more 
functions than the FHWA's exclusive definition of a CMV driver and 
thus, the FHWA and FTA cannot have identical definitions for this term. 
Testing is restricted to CMV operators in Section 5 of the Omnibus Act. 
Section 6, in contrast, allows the FTA to determine what mass 
transportation employees are responsible for safety-sensitive 
functions. See the FTA final rule published elsewhere in today's 
Federal Register for a complete discussion of FTA covered safety-
sensitive functions.
    The FHWA proposed a definition of ``accident'' to be consistent 
with the Omnibus Act, which requires that drivers involved in an 
accident where there is loss of human life, regardless of fault be 
tested. The Secretary is also given the discretion to determine what 
other serious accidents, involving bodily injury or significant 
property damage, trigger post-accident testing. The FHWA is maintaining 
the definition as proposed in the NPRM, which adopted the definition of 
accident appearing in 49 CFR 390.5.

Requirement for Notice

    Comments: Numerous commenters opposed any requirement to provide 
written notification, stating that because the proposed regulations 
prohibit an employer from representing a non-DOT test as a test 
conducted under the regulations of the Department, no written notice is 
necessary. Other commenters stated that written notice should be 
provided. The Amalgamated Transit Union (ATU) stated that a written 
notice requirement would establish uniformity and confirm that notice 
has been properly given. Recommendations regarding the time frame for 
written notice ranged from immediately prior to the test to the day of 
the test.
    FHWA Response: This requirement is necessary to address the 
concerns of drivers who have complained that their employers purported 
to require a test under the current drug testing program when, in fact, 
the test was not required by FHWA regulations. In order to provide 
employers with flexibility, the form of the notification is not 
prescribed. It may be oral or written. The breath alcohol testing form 
and the drug testing custody and control form may be used to meet the 
requirement for notice. The final rule requires only that notification 
be given prior to the administration of the test.

Medication Exception.

    Comments: Several commenters, including the American Trucking 
Associations (ATA), stated that an exception should not be made for the 
consumption of prescription medication containing alcohol. However, the 
ATA also stated that employees should be allowed to possess 
prescription medicine containing alcohol.
    Other comments, including those from the OOIDA, stated that an 
exception should be allowed for the consumption of prescription 
medicine containing alcohol. STA United Inc. recommended removing the 
stipulation that an employer must have actual knowledge that an 
employee possesses alcohol, arguing that actual knowledge implies the 
existence of a witness and the presence of a witness justifies the 
performance of a reasonable suspicion test.
    FHWA Response: The FHWA received no comments regarding whether a 
driver is as safe on the highway using medications as a driver who does 
not use them. We believe that the public interest is better served if 
we continue our long-standing prohibition on the possession and 
consumption of substances containing any amount of alcohol. Highway 
safety is of paramount importance, and there are alternative 
medications which do not contain alcohol. The FHWA continues to believe 
that CMV drivers must use non-impairing medications while driving CMVs.
    Finally, it should be noted that mere possession of alcohol, 
standing alone, does not give rise to a reasonable suspicion test under 
this part, which must be based on observations concerning the 
appearance, behavior, speech, or body odors of a driver.

Pre-duty Alcohol Use

    Comments: Several commenters stated that drivers should abstain 
from consuming alcohol prior to duty, but there was no consensus on the 
length of the required abstinence. The US DOE recommended 5 hours. The 
Texas Pupil Transportation Drug Testing Advisory Committee recommended 
6 hours. Other commenters, including the American Bus Association (ABA) 
and U.S. West Communications, recommended 8 hours. The ABA believed 
that an 8 hour abstinence is necessary in order to prevent an otherwise 
lawful use of alcohol from invalidating a post-accident test. The 
Council on Special Transportation opposed the pre-duty prohibition on 
the use of alcohol because it is unfair to ``on call'' drivers and the 
employer can not enforce such a regulation.
    FHWA Response: Current regulations applicable to persons who 
operate CMVs in interstate commerce prohibit a person from consuming an 
intoxicating beverage regardless of its alcohol content within 4 hours 
before going on duty, operating or having physical control of a motor 
vehicle. See 49 CFR 392.5. The FHWA believes that the public's interest 
in safety is better served if the current pre-duty alcohol prohibition 
is extended to all CMV operators subject to alcohol and controlled 
substances testing. All commenters who were in favor of prohibiting 
pre-duty alcohol use supported abstinence periods of 4 or more hours. 
The FHWA understands the concern of the ABA that the pre-duty use of 
alcohol may register during a post-accident test. The 4 hour abstinence 
period, however, is a minimum requirement, regardless of a driver's 
alcohol concentration. A driver may in fact need to abstain for a 
longer period in order to be below 0.02 BAC while operating a CMV.

Pre-employment/Pre-duty Testing

    Comments: The ATA stated that pre-employment testing is unnecessary 
and that the FHWA should waive such testing under section 12013 of the 
CMVSA. Once a driver is hired, they state, the person is subject to 
random and probable cause testing, which is sufficient to deter misuse.
    FHWA Response: Even accepting, for the sake of the argument, the 
comment's presumption that pre-employment testing is inherently 
useless, the FHWA does not believe it has the authority to waive all 
drivers from a major provision of the legislation. Eliminating all pre-
employment tests would greatly diminish the number of required tests, 
and would, in effect, rewrite the statute.

Post-accident Testing

    Comments: There were numerous comments to this section dealing with 
such issues as who should be required or permitted to perform the post-
accident testing and how long after an accident occurs should a driver 
be required to be tested. Commenters, including the California Trucking 
Association (CTA), supported the position that law enforcement 
officials either be required or permitted to perform post-accident 
testing. The CTA stated that the police should perform post-accident 
testing because they have the necessary equipment and training to 
perform the tests. One commenter stated that the test should be 
performed if the accident is reportable, regardless of whether a 
citation is issued. Other commenters supported post-accident testing 
only if the driver receives a citation. The NEA opposed the requirement 
to test all CMV drivers involved in fatal accidents because the tested 
driver may not have caused the accident. The National Education 
Association (NEA) stated that there should be some showing of fault or 
culpability before a driver is required to be tested. A few commenters 
opposed post-accident testing.
    There was no consensus on the maximum time limit after the accident 
an employer should be required to test the driver. The US DOE 
recommended one hour while others recommended either four or eight 
hours as the maximum limit. A few commenters did not like the eight 
hour time limit but did not recommend an alternative.
    The National Solid Waste Management Association (NSWMA) stated that 
a post-accident test should not be voided if the testing official fails 
to give notice that the test is required by regulation. Other 
commenters stated that either police or employers should be permitted 
to conduct the test at the employer's option.
    FHWA Response: The Omnibus Act expressly requires that every CMV 
driver involved in an accident that involves a fatality must be tested 
for alcohol and controlled substances, regardless of whether the driver 
was culpable or at fault.
    The statute does allow, however, the FHWA to determine what other 
types of ``serious accidents involving bodily injury or significant 
property damage'' should lead to a driver being tested for alcohol and 
controlled substances. In order to be consistent with current 
standards, accidents as defined in 49 CFR 390.5 (towaway and medical 
assistance criteria) are considered serious enough to trigger testing. 
In addition, there must be some determination by a third party law 
enforcement official, through issuance of a traffic citation to the 
driver arising from the accident, that the driver's actions may have 
contributed to the accident.
    Certain tests conducted by law enforcement officials with 
independent authority may be substituted by the employer for a post-
accident test if the employer obtains the results. Since such tests 
would be conducted independent of this part, a law enforcement official 
would not give the notification required in this part.
    Post-accident testing must be done as soon as possible after an 
accident. However, the FHWA realizes that there are times when, because 
of unforeseen problems, a test is not obtainable in the first couple of 
hours after the accident. The FHWA believes that the eight hour time 
frame for alcohol testing is therefore necessary to allow for testing 
under such circumstances. A driver who was over 0.10 BAC at the time of 
the accident may continue to test above 0.02 BAC at the time of the 
test. It is generally accepted that alcohol dissipates from the body in 
a very short time. However, the FHWA believes that a driver, who 
continues to have a prohibited alcohol concentration up to 8 hours 
after an accident that requires an alcohol/controlled substances test, 
should be subject to evaluation by a substance abuse professional.

Random Testing

    See Limitation on Alcohol Use by Transportation Workers for 
discussion of random alcohol testing comments, including the random 
roadside testing option proposed in the NPRM but not included in the 
final rule.

Reasonable Suspicion Testing

    Comments: A few commenters, including the IBT, were opposed to 
lowering the number of supervisors needed to make a reasonable 
suspicion observation, from the current rule's two to the proposal's 
one. The union stated that it weakens protection for workers. Other 
commenters supported the single supervisor requirement.
    FHWA Response: The FHWA believes that requiring only one supervisor 
or company official to make a reasonable suspicion determination 
responds to the operational realities of motor carrier operations. The 
FHWA received many comments and much oral testimony stating that there 
are often not two supervisors available to make such determinations on 
those relatively infrequent occasions when some drivers return to 
terminals. Only one supervisor or company official might be present and 
available to observe the driver.
    The current drug testing rule, moreover, requires observation by 
two supervisors or company officials only where feasible. It is the 
FHWA's experience in administering the rule that motor carriers often, 
due to the operational characteristics noted above, have not found it 
feasible to obtain observations from two supervisors. After the fact 
evaluation by the FHWA of feasibility has proven difficult. In effect, 
therefore, this rule may not be diminishing significantly the overall 
numbers of supervisors and company officials making reasonable 
suspicion determinations.
    In order to counteract any perceived increase in the potential for 
abuse by company officials caused by eliminating the two supervisor 
requirement, the one supervisor who makes the reasonable suspicion 
determination is prohibited from conducting the alcohol test. Thus, it 
remains that at least two company officials must become involved before 
any driver is determined to have violated this rule such that the 
driver is referred to a SAP. Drivers are further protected by the 
requirement for all persons making reasonable suspicion determinations 
to receive at least 60 minutes of training on the physical, behavioral, 
speech, and performance indicators of alcohol misuse.

Exceptions for Testing Performed by Consortiums

    Comments: Pinnacle Transport Services, Inc. stated that the 
reference in the title of this topic to consortiums should be removed 
because it did not accurately and completely reference the applicable 
sections.
    FHWA Response: The FHWA agrees, and has removed this as a separate 
exception. The only exceptions available in the final rule are placed 
under the pre-employment testing sections. The random testing exception 
has been removed entirely.

Retention of Records

    Comments: Numerous commenters, including the ATA, recommended 
reducing the record retention period from the proposed 5-year period to 
a 3-year period. Roadway Express, Inc. stated that a maximum record 
retention period of three years would be consistent with other FHWA 
recordkeeping requirements for medical records. The US DOE recommended 
that equipment records be retained for 2 years since they are similar 
in nature to collection process records. Pinnacle Transport Services, 
Inc. recommended that the threshold for alcohol test results which are 
required to be kept for 5 years should be changed from 0.02 BAC to 0.04 
BAC. The NSWMA recommended that the annual report of test results be 
kept for no more than 5 years.
    The Arlington, Virginia Public Schools recommended that employers 
not be required to keep equipment calibration records because the 
police department does the alcohol testing for the school system.
    FHWA Response: The proposed regulations were designed to be 
consistent among all modes of the Department to permit compliance for 
employers that are subject to the regulations of two or more DOT 
agencies. The FHWA does not believe that sufficient justification was 
presented to warrant a change to the record retention requirements. 
With regard to maintenance of records by a party other than the 
employer, the FHWA currently allows agents of the employer to maintain 
certain records, provided the employer obtains such records for 
auditing within two business days after the request of an authorized 
representative of the FHWA. This language is included in 
Sec. 382.401(d).

Access to Facilities and Records

    See Limitation of Alcohol Use by Transportation Workers for 
discussion of this section.

Required Evaluation and Testing

    See Limitation on Alcohol Use by Transportation Workers for 
discussion of comments on this section.

Other Alcohol-Related Conduct

    See Limitation on Alcohol Use by Transportation Workers for 
discussion of comments on this section.

Disqualifications and Consequences

    Comments: The OOIDA and the NEA both recommended that a driver not 
be disqualified without the benefit of a hearing. The Idaho Department 
of Law Enforcement recommended that a driver only be disqualified upon 
conviction of an alcohol violation, not a positive test.
    FHWA Response: Because the FHWA has not included the MCSAP random 
roadside testing option in the final rule, the associated CDL 
suspension penalties, and the corresponding driving prohibition periods 
in the employer-based testing option, are also not included in the 
final rule. The only consequence under this rule for violation of the 
alcohol prohibitions is referral to a substance abuse professional, who 
may require the driver to undergo treatment before returning to perform 
safety-sensitive functions, and a return-to-duty test with a result 
below 0.02. The purpose is to ensure that drivers are evaluated for 
alcohol problems, and that they get the treatment they need before 
returning to duty. Therefore, the time period a driver is actually 
prohibited from driving will vary, depending on the speed with which a 
SAP is consulted and the results of the SAP's evaluation.
    Of course, the driver disqualifications and 24 hour out-of-service 
period provided for discovery and conviction of certain alcohol 
offenses by law enforcement officials remain. See 49 CFR 383.51 and 
392.5.

Motor Carrier Obligation to Promulgate a Policy on the Misuse of 
Controlled Substances

    See Limitations on Alcohol Use by Transportation Workers for 
discussion of comments on this section.

Controlled Substance Training for Supervisors and Company Officials

    See Limitations on Alcohol Use by Transportation Workers for 
discussion of comments on this section.

Referral, Evaluation and Treatment

    See Limitations on Alcohol Use by Transportation Workers for 
discussion of this section.
Part 392--Alcohol Prohibition
    Comments: The Shell Oil Company and the Organization Resources 
Counselors Inc. stated that an out-of-service order should be produced 
only for an alcohol concentration of 0.04 BAC or more. Pinnacle 
Transport Services opposed the requirement that no driver shall be on 
duty or operate a CMV if by the person's appearance, the driver may 
have used alcohol.
    FHWA Response: The FHWA has had a policy of zero tolerance for 
alcohol use by CMV drivers since the early 1940's. The safety of the 
traveling public is paramount. An employee who has either recently 
consumed an alcoholic beverage or who has any detected presence of 
alcohol may not be on duty until the alcohol has dissipated from the 
person's system. It is not specified in this section how the alcohol is 
detected or how long it takes to dissipate.
    In addition, section 382.505 provides that drivers are prohibited 
from driving for 24 hours, though not placed out-of-service, when they 
are discovered through testing under part 382 to have an alcohol 
concentration of 0.02 or greater, but less than 0.04. Results below 
0.02 through testing under this part are considered ``negative.''
    The 24 hours out-of-service period is required by the CMVSA to be 
imposed on drivers discovered by law enforcement officials to have 
violated the proscriptions in Sec. 392.5, including any measured 
concentration of alcohol. It is designed to ensure that the employee is 
provided enough time to become alcohol free prior to driving a CMV 
again. See discussion below of Section 382.505 in Section-by-Section 
Analysis.

On-Duty Time

    Comments: Several commenters, including the ATA, oppose recording 
time spent submitting to an alcohol or controlled substances test as 
on-duty time. The ATA stated that time spent acquiring or renewing a 
CDL or taking a physical examination is not logged as on-duty time. The 
recording of on-duty time while performing a mandatory test would have 
a significant impact on the industry in terms of lost productivity and 
other costs. Testing is a fitness for duty issue, they believe, not the 
performing of work for an employer. The OOIDA stated that return-to-
duty testing should always be on-duty time. STA United Inc. stated that 
return-to-duty testing should be on-duty time if the driver continues 
to work for the same employer in a job not related to safety during 
rehabilitation.
    FHWA Response: Testing under these requirements is done to deter 
CMV drivers from using alcohol and controlled substances. The FHWA 
continues to believe that all time spent travelling to and 
participating in either a drug or alcohol test is to be logged as on-
duty time when a random, reasonable suspicion, post-accident, or 
follow-up test is directed by or on behalf of a motor carrier.

B. Controlled Substances Docket MC-92-23

    The comments to docket MC-92-23 which are similar to those 
considered in the discussion of the comments to the alcohol testing 
docket MC-92-19 are not discussed again below. The following discussion 
involves only comments that are different from those submitted to 
docket no. MC-92-19 and the common preamble, Limitation on Alcohol Use 
by Transportation Workers.
    The FHWA received 107 comments to this NPRM. The commenters 
included: Employers; drivers; driver's associations; unions; MROs; 
SAPs; and Federal, State and local governments. Commenters from 
government agencies included law enforcement agencies and school 
districts.

Applicability

    Comments: The American Postal Workers Union (APWU) stated that 
postal workers should be exempt from controlled substances testing. The 
Truck Stop Operators Association stated that mechanics should be 
subject to the FHWA rules.
    FHWA Response: As stated above, only drivers waived from CDL 
requirements are similarly waived from the alcohol and controlled 
substances testing regulations. Mechanics who hold CDLs to operate CMVs 
for truck stop operators will be required by this rule to submit to 
alcohol and drug testing if they operate CMVs on public highways.

Definitions

    Comments: One commenter stated that the definition of MRO should 
include health care professionals because the FHWA allows these 
professionals to perform medical examinations. One commenter at the San 
Francisco, California, hearing recommended that a definition of 
``verified negative test'' be included in this section. Commenters to 
the docket and at the Washington, D.C. hearing that the definition of 
SAP should include a ``certified employee assistance professional'', 
``occupational health nurse'' and ``certified addiction counselor''. 
The Employee Assistance Professionals Association recommended that only 
their members be allowed to serve as SAPs.
    The IBT said that ``canceled test'' should be defined in part 40, 
if at all. The IBT believed that the use of the word ``adulteration'' 
in the definition of ``canceled test'' was confusing. In addition, the 
IBT recommended that MROs be required to take MRO courses and pass a 
qualifying examination. The IBT also believed that SAPs should be 
certified, be in current practice and have appropriate training.
    FHWA Response: The FHWA agrees with the IBT that the definition of 
the term ``canceled test'' was confusing and has concluded that the 
FHWA's restatement of part 40 issues is unwarranted. The FHWA has 
decided to remove this section, making part 40 procedures for canceled 
tests to be the FHWA standard.
    The definitions of a SAP, verified negative test, and the 
qualifications of MROs and SAPs also involve Department-wide issues and 
thus will be controlled by regulations issued the Office of the 
Secretary 49 CFR Part 40. See the Office of the Secretary's responses 
to these comments in the final rule amending part 40, Docket No. 48153, 
Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs, published elsewhere in today's Federal Register.

Starting Date for Controlled Substances Testing Programs

    Comments: One commenter was confused about the proposed 382.115(c) 
regarding employers who begin business after the second year after 
implementation of the rule. One commenter stated that the 
implementation dates should be the same for all employers. Other 
commenters believed that the alcohol and controlled substances testing 
programs should be implemented within 6 months of the effective date of 
the regulations. The Montana Office of Public Instruction suggested 
that implementation be delayed until July 1, 1995, to allow Montana 
school districts to minimize negative fiscal consequences to existing 
programs.
    FHWA Response: Given its experience administering the drug testing 
program under part 391, subpart H, the FHWA believes that small 
employers will require more time to implement changes mandated by the 
Omnibus Act than large employers. Small entities may have difficulty 
implementing all of the requirements within one year. Larger employers, 
however, should be able to implement the programs within approximately 
one year.
    Accordingly, large employers (fifty or more drivers) will be 
required to implement a complete, fully operational program that 
complies with this rule and part 40 on January 1, 1995. Small employers 
(fewer than fifty drivers) must implement the requirements of this part 
and part 40 on January 1, 1996.
    Furthermore, the Department has decided that all employers subject 
to the current drug testing regulations at part 391, subpart H, must 
begin split sample collections and provide CMV drivers the opportunity 
for split sample reconfirmation of a verified positive drug test result 
within 6 months from today, in accordance with the amended part 40. 
Since this only affects those persons subject to current drug testing 
under subpart H, amendatory language has been inserted in subpart H 
requiring this Department-wide procedure.

Controlled Substances Testing--General

    Comments: The IBT recommended removing the reference to 
``prescription drug'', because such a reference was not in the present 
rule.
    FHWA Response: The FHWA agrees that the reference to prescription 
controlled substance use should be deleted. The FHWA has used the term, 
``therapeutic drug use'' in Sec. 391.97(d) and has placed that phrase 
into this rule.

Pre-Employment/Pre-Duty Testing

    Comments: The International Brotherhood of Teamsters recommended 
retaining the 12-month participation option which is currently part of 
the exception criteria in subpart H. Two commenters recommended that 
employers be permitted to obtain and use an applicant's prior testing 
information during the hiring process as a condition of employment. The 
OOIDA was opposed to requiring a driver to sign an authorization for 
the release of test results as a condition of employment.
    FHWA Response: The subpart H, ``12 month participation in a random 
drug testing program'' allowance will be retained. 49 CFR 
391.103(d)(2)(ii)(B). See the discussion of Sec. 382.413 below for a 
discussion of release of previous employers' testing information.

Post-Accident Testing

    Comments: The OOIDA opposed post-accident testing without probable 
cause. Other commenters believed that the term ``safety sensitive 
function'' should be defined. The Edison Electric Institute suggested 
that paragraph (a)(1) be revised to read ``* * * performing a safety 
sensitive function with regard to driving, loading or securing loads on 
vehicles that are driven on a public highway.'' In addition, commenters 
asked if continuous procedural instructions about post-accident testing 
would include ensuring that post-accident testing kits are kept in each 
vehicle and that reminders are posted on bulletin boards.
    The ATA believed that post-accident testing should apply only to 
those drivers involved in a fatal accident for which they were issued a 
citation for a moving violation. One commenter was opposed to the 
provision that a citation had to be issued. A few commenters stated 
that there should be no acceptable reason for leaving the scene of an 
accident.
    One commenter believed that the ``tow-away'' requirement in 
accidents should be replaced with minimum dollar amounts. For example, 
$2,500 for ``vans'' and $5,000 for ``buses and trucks'' could be used. 
Another commenter suggested that the FHWA either require that a blood 
test be performed on a driver who is incapacitated for at least 24 
hours or require a law enforcement official to perform the test.
    FHWA Response: The Omnibus Act requires that testing be conducted 
after all fatal accidents, regardless of whether or not a citation is 
issued. Safety-sensitive functions are defined in Sec. 382.107 of the 
rule. The regulations require that the employer provide employees with 
necessary post-accident information, procedures, and instructions so 
that the employees may be able to comply with the requirements of this 
section. The FHWA believes that the employer should be given maximum 
flexibility in implementing the post-accident drug testing 
requirements. ``Post-accident testing kits'' and bulletin board notices 
might be possible options for complying with the regulations, but there 
is no requirement to produce either such kits or notices. There is also 
no requirement, or authorization, to take specimens of any kind from an 
incapacitated driver unable to consent to testing.
    The FHWA believes that the ``tow-away'' criteria appearing in the 
definition, adopted from 49 CFR 390.5, is better criteria for an 
accident because property damage estimates sometimes change. Finally, 
it is reasonable to allow drivers subject to post-accident testing to 
leave the scene of the accident for medical and other emergencies.

Random Testing

    Comments: One commenter was opposed to any random testing for 
controlled substances. A few commenters recommended testing by 
employers. Though not proposed, other commenters recommended that the 
drug testing be done at the roadside by government officials.
    Although the FHWA did not provide any options for a random testing 
rate in the drug testing NPRM, many commenters recommended rates 
differing from 50%.
    One commenter suggested that a statement should be added to this 
section regarding the legality of requiring an employee to submit to 
testing on off-duty time. Another commenter questioned the requirement 
to perform random selections at least quarterly.
    FHWA Response: For a discussion of adjusting the random drug 
testing rate in a manner similar to the alcohol testing rate adjustment 
provided in this rule, see the NPRM published elsewhere in today's 
Federal Register.
    To preserve randomness and the deterrent value of the program, 
drivers must have an equal chance of being randomly tested throughout 
the year. Due to the varying sizes of employers, however, nowhere in 
the rule is it required that random selection be made at least on a 
quarterly basis for all employers. The rule merely requires that 
testing be spread reasonably throughout the year.
    As stated above, the time spent performing most tests must be 
logged as on duty. Compensation arrangements between drivers and their 
employers is beyond the scope of FHWA regulatory authority.

Reasonable Suspicion Testing

    Comments: One commenter suggested that the supervisor's 
observations leading to a reasonable suspicion test be documented 
within two hours of the observation. Another suggested that the time 
requirement for documentation be reduced to within two to six hours 
from the 24 hours provided in the proposal. One commenter stated that 
documentation should not be attached to the results, but should be 
available upon request.
    FHWA Response: The FHWA currently requires in 49 CFR Sec. 391.99(d) 
that documentation of reasonable suspicion determinations for drug 
tests be completed within 24 hours of the observed behavior or before 
the results of the tests are received, whichever is earlier. There is 
no requirement that the written documentation for a reasonable 
suspicion test be attached to the test result itself.
    This requirement is being carried over for drug testing only in 
this rule. An employer may need more than two or six hours to document 
a reasonable suspicion test. The 24 hour period should allow 
documentation to occur by the next day's shift at the latest because, 
in most situations, test results will not be available within 24 hours.
    Written documentation is required for reasonable suspicion drug 
testing, but not alcohol testing, because of the greater difficulty in 
recognizing indications of drug use. Unlike alcohol use, drug use, 
largely because of its general illegality, is not something with which 
most people are widely familiar. The physical effects may also be more 
subtle, even to those exposed to drug use and to professional Drug 
Recognition Experts (DRE). While 60 minutes of training in the 
indicators of drug use is required by the rule, it is not expected to 
transform employers into DREs.
    Documentation will allow employers to review reasonable suspicion 
determinations made by its officials. By comparing the observations 
recorded before both positive and negative test results, employers may 
be able to evaluate patterns or procedures which are affecting the 
efficacy of reasonable suspicion testing, and make changes accordingly. 
In this way, documentation should also serve to reduce the potential 
for the use of reasonable suspicion testing as a method of harassing 
drivers.

Exceptions for Testing Performed by Consortiums

    Comments: One commenter stated that this section omits 
certifications from other employers for trip lease, interchange, or 
contract drivers.
    FHWA Response: Because the exception is being moved to the pre-
employment/pre-duty testing section, certifications for trip lease, 
interchange, or contract drivers are still acceptable.

Split Sample Testing

    Comments: A number of commenters were in favor of the section as 
proposed. One of them stated that it provides further protection of 
privacy and due process rights.
    The ATA stated that split sample testing should only be required 
for reasonable suspicion testing. One commenter, the Food Marketing 
Institute (FMI), stated that there has been no demonstrated need for 
split samples and suggested that split samples be allowed as an option. 
The FMI recommended that an employer be allowed to choose the testing 
lab and require the employee to pay for testing. One commenter believed 
that the employer should not have to pay for the split sample test. 
Another commenter suggested that the FHWA allow the same laboratory to 
test the split sample so that employers could avoid both the additional 
cost of blind sample testing and the necessity of a contract with 
another laboratory.
    STA United believed that part 40 and part 382 should explain which 
sample is primary and which is secondary by milliliter example. STA 
United stated that split sample testing is costly. The California 
Department of Personnel Administration was opposed to split sample 
testing.
    FHWA Response: Because split sample testing involves the issue of 
testing methodology, the regulations on split sample testing are being 
written by the Office of the Secretary. The FHWA has decided to remove 
this section and defer to the requirements in part 40. See the part 40 
rulemaking published elsewhere in today's Federal Register, Procedures 
for Transportation Workplace Drug and Alcohol Testing Program. 

Canceled Tests

    Comments: Several commenters to this section agreed with it as 
written and cited the deterrent effect. One commenter recommended that 
a retest should be performed if the employer requests it. Other 
commenters recommended adding canceled, follow-up, random, and 
reasonable suspicion tests to those that require a driver to resubmit a 
sample. One commenter stated that the requirements of this section were 
burdensome and costly and should be the responsibility of the testing 
laboratories and MRO.
    FHWA Response: Because canceled tests involve testing procedures 
applicable to all modes of DOT, the FHWA has decided to remove this 
section and defer to the requirements in part 40. See the part 40 
rulemaking published elsewhere in today's Federal Register, Procedures 
for Transportation Workplace Drug and Alcohol Testing Program. 

Laboratory Notifications

    Comments: The California Department of Personnel Administration 
suggested that laboratory reports be sent directly to the employer.
    FHWA Response: The FHWA has decided to remove this section and 
defer to the requirements in part 40. See the part 40 rulemaking 
published elsewhere in today's Federal Register, Procedures for 
Transportation Workplace Drug and Alcohol Testing Program. 

Medical Review Officer Notifications to the Tested Individual

    Comments: One commenter stated that the prescription medication 
affirmative defense to allegations of driving while using a controlled 
substance should be removed. STA United stated that if a MRO does not 
make contact with the employee, the MRO must include complete 
documentation with the hard copy test result. The California Department 
of Personnel Administration believed that the time limit allowed for a 
MRO review should be restricted. The Department also believed that the 
employer should instruct the employee to be available for a MRO 
contact; the MRO to contact the employer within three days if unable to 
contact the employee; and the employee to contact the MRO within three 
days. One commenter supported the requirement for the employer to 
contact the employee promptly if the MRO is unable to reach the 
employee.
    FHWA Response: Because MRO notification to the tested individual 
involves a multi-modal procedural issue, the FHWA has decided to remove 
this section and defer to the requirements in part 40. See the part 40 
rulemaking published elsewhere in today's Federal Register, Procedures 
for Transportation Workplace Drug and Alcohol Testing Program. 

Medical Review Officer Notification to the Employer

    Comments: One commenter believed that the MRO should be required to 
send a signed written notification to the employer within three days of 
the MRO's final completion of paperwork necessary to generate the final 
report. Another commenter recommended that the MRO be allowed fourteen 
days to mail the results.
    One commenter recommended that the MRO should only be permitted to 
use electronic transmission devices which provide confidentiality of 
results; MROs should not be permitted to use a facsimile machine. 
Another commenter supported the use of facsimile machines to transmit 
controlled substances test results. One commenter believed that a 
written report of the results was a burden; the MRO should only be 
required to review and certify the results. STA United recommended that 
the ``three day mail'' requirement be clarified. The commenter also 
stated that the requirement that the name of the donor be provided by 
the MRO compromises privacy.
    FHWA Response: A signed, written notification from the MRO to the 
employer identifying the driver and test results is essential to the 
effective administration of this rule. If a motor carrier allows an MRO 
to report controlled substances test results by the use of a facsimile 
machine, the employer must control access to reports transmitted in 
this manner.
    The FHWA also disagrees with the comment that the MRO should be 
required to send signed written notification within three days of the 
MRO's final completion of paperwork and the commenter who recommended 
that the MRO be allowed fourteen days to mail the test results. Three 
business days after completion of the MRO's review of the test result 
is sufficient time to both generate a controlled substances test result 
report and begin the report transmission process to the employer. 
Certain tests, such as a pre-employment/pre-duty or return-to-duty 
test, require the employer to receive a negative test result before 
allowing the employee to perform a safety sensitive function. An 
excessive time limit in obtaining a controlled substances test result 
may affect an employee's livelihood.

Employer Notifications

    Comments: One commenter recommended that the employer not be 
required to notify pre-employment controlled substances test subjects 
that the MRO was unable to contact them, unless they requested the 
results of the tests. One commenter stated that it is unrealistic to 
require an employer to contact applicants who tested positive for a 
controlled substance because they probably no longer want the job.
    The Carolina Power & Light believed that there should be no 
requirement that employees be notified after every test. Employers 
should be allowed to communicate the test results in their own way.
    FHWA Response: Notifying the driver of positive test results is 
essential to fairness. The procedures contained in subpart H and 
included in this rule are adequate to ensure notification. Yet, it is 
desirable that review of applicant's tests be concluded in some way. In 
the current drug testing program, tests are conducted and MROs hold 
results indefinitely until a driver is contacted. It is only at the 
point that a driver is contacted that the five day period begins to run 
to verify a confirmed positive test result. To remedy that situation, 
under this final rule, an employer is required to make a reasonable 
effort to contact the applicant and inform the applicant that he/she 
must contact the MRO immediately. If the applicant does not contact the 
MRO after 5 days, the MRO will verify the test as positive and close 
the donor's file rather than leave it open indefinitely.

Laboratory Recordkeeping and Record Retention

    Comments: The IBT believed that because the requirements of this 
section are adequately addressed in part 40, the section should be 
removed. The OOIDA was in support of this section.
    FHWA Response: The FHWA agrees. This section is removed.

Medical Review Officer Recordkeeping and Record Retention

    Comments: Some commenters stated that they saw no compelling reason 
for this requirement and recommended that employers be permitted to be 
the custodians of test results.
    FHWA Response: The FHWA does not agree that employers should be the 
sole custodians of test results. Because the MRO makes controlled 
substances test determinations, the MRO must also retain copies of test 
results as a back-up and for use in compliance enforcement and in 
resolving potential disputes involving test results.

Employer Record Retention

    Comments: The OOIDA was in favor of the regulations as proposed. 
Mobile Laboratory Services recommended that employers be allowed to 
retain any copy of the custody and control form because employers often 
do not get the copy that shows the controlled substances test results 
from the MRO.
    Roadway Express Inc. and ATA recommended that the record retention 
period should be reduced to three years, consistent with other FHWA 
record retention requirements. The Baltimore Gas & Electric Company 
believed that a retention period should be assigned to each record to 
eliminate errors in their maintenance.
    FHWA Response: The FHWA disagrees with the commenter who stated 
that the employer be allowed to retain any copy of the custody and 
control form because employers do not always receive the employer copy 
of the form. The employer is required to retain the employer's copy of 
the custody and control form, and not, for instance, the copy of the 
form which the testing laboratory sends to the MRO. The MRO might 
change a laboratory confirmed positive test result to a verified 
negative test result after affording the donor an opportunity to 
present an affirmative defense.
    The FHWA believes it must remain consistent with the other 
operating Administrations who all have a five year recordkeeping 
requirement for positive test results.

Reporting of Results in a Management Information System

    Comments: One commenter stated that the amount of information 
submitted in response to the annual reporting requirement should be 
dependent on the number of persons subject to the rule. The DOT should 
provide the annual reporting form and alcohol testing form free of 
charge. One commenter suggested that the reporting year should be July 
1 through June 30 with the due date in August of each year. Conoco Inc. 
objected to the proposed annual reporting requirement and suggested 
continuation of the current system.
    FHWA Response: Annual reporting of results will assist the FHWA in 
determining the need for future action on the programs. Without such 
information, the FHWA has no way of discovering whether the use of 
drugs and/or alcohol is decreasing or increasing. This information is 
needed to reassess such things as the efficacy of the program, the 
random testing rate, the need for various types of testing programs, 
and whether additional countermeasures are necessary. Though the FHWA 
wishes to simplify recordkeeping, it must maintain similar 
recordkeeping requirements as other DOT modes, especially for those 
employers subject to the jurisdiction of two or more Administrations. 
The calendar year is used as the reporting year. The model forms 
provided with this rule may be used to compile the annual report.

Access to Individual Records

    Comments: Many commenters expressed their frustration with the lack 
of a system of drug testing information under the current drug testing 
rule. Many responded favorably to the question in the NPRM's preamble 
about making release of such information a condition of employment as a 
driver. Some went so far as to say that the program was meaningless 
without some system, because drivers who test positive merely go to 
work for another employer without ever being recertified as medically 
qualified or taking a return-to-duty test. Other commenters strongly 
opposed requiring information sharing as a violation of privacy rights.
    FHWA Response: The FHWA agrees that the lack of shared information 
has left the current drug testing program with a large hole through 
which drivers can avoid the purpose of the program--to deter drug use 
by drivers. Some drivers are continuing to use drugs, and when caught, 
merely change employers. Section 382.413 of this final rule has been 
designed to ensure that drivers complete the required rehabilitation 
and return-to-duty tests. By making the information releasable only 
pursuant to the driver's consent, privacy concerns are obviated.

Required Evaluation and Testing

    Comments: NSWMA recommended that drivers who have tested positive 
for controlled substances only be allowed to perform safety-sensitive 
functions necessary to respond to an emergency under a motor carrier or 
government escort.
    FHWA Response: Though not stated expressly in the rule, it is 
reasonable to allow a driver to temporarily continue to perform safety-
sensitive functions after a violation of the rule's prohibitions in an 
emergency situation. In such a situation, an employer or government 
official may not always be available to oversee the driver's action. 
For example, a driver who has violated the rules may move a truck 
carrying hazardous materials off of a bridge or a railroad track 
crossing. These types of instances will be rare. If the driver is the 
only available person at the scene capable of eliminating the imminent 
danger of a threat to public safety, the driver should be allowed to 
perform the safety-sensitive function only until the danger has ceased.

Disqualifications and Penalties

    Comments: The IBT stated that a one year loss of driving privileges 
for a refusal to submit to a required test is unduly harsh. A refusal 
to test should be the same penalty as a positive controlled substances 
test. The union stated that often it is unclear whether or not the 
driver's words or behavior constituted a refusal to be tested.
    The ATA recommended that an employee who tests positive for a 
controlled substances test also be disqualified for 120 days for each 
violation. DAC Services stated that the penalties proposed in the NPRM 
should be made stricter, with the penalty for testing positive at least 
as severe as a refusal to be tested. Roadway Express Inc. recommended a 
120 day disqualification for the first offense and a lifetime 
disqualification for the second offense. The employer stated that the 
mere testing or even detection without significant job consequences for 
positive tests will not deter controlled substances use. National MRO 
stated that a verified positive test after a fatal accident should 
trigger stricter penalties in addition to barring a driver from holding 
a CDL. Another consortium, Bensinger/Dupont Inc., opposed the 60 day 
disqualification for a second positive controlled substances test, 
recommending, instead, a minimum of six random follow-up tests.
    FHWA Response: The FHWA has not included any CDL suspensions or 
other disqualifications from the final rule, including for a refusal to 
test. The only driving prohibition period for a controlled substances 
violation is similar to that for alcohol--completion of rehabilitation 
requirements and a return-to-duty test with a negative result.

Motor Carrier Obligation to Promulgate a Policy on the Misuse of 
Controlled Substances

    Comments: The ATA and the Roadway Express Inc. stated that the 
proposed NPRM details the educational material requirements to such a 
degree that the employer is unduly restricted in material development. 
Both commenters recommended that the employee have access to this 
information upon request rather than requiring an employer to provide 
every covered employee with a copy of the material. The employee does 
not need to be informed of the controlled substances testing procedures 
because they are already in the Department's regulations if the 
employee wishes to consult them.
    The IBT recommended at least one hour of training for employees 
conducted by an instructor who is able to answer questions from the 
participants, rather than the proposed requirement to notify employees 
of the availability of this material.
    FHWA Response: The FHWA believes that the motor carrier is not 
unduly restricted in educational material development. The final rule 
contains the minimum required educational material content. The FHWA 
allows the employer considerable latitude regarding additional 
materials and the form of dissemination. A live presentation is not 
required. The regulations require that the educational materials must 
be provided to the employee and that the employee and employer sign the 
employer's notice of the availability of the materials.

Controlled Substance Training for Supervisors and Company Officials

    See Limitations on Alcohol Use by Transportation Workers for 
discussion of this section.

Referral, Evaluation and Treatment

    See Limitations on Alcohol Use by Transportation Workers for 
discussion of this section.

PART 395--HOURS OF SERVICE OF DRIVERS

Definitions

    Comments: Several commenters supported requiring time spent in the 
controlled substances testing process as on-duty time. The IBT 
recommended including time spent traveling to and from the collection 
site as on-duty time. Other commenters stated that the definition of 
on-duty time should include return-to-duty testing.
    The Western Company believed that including testing as on-duty time 
would cause a significant burden on the industry.
    FHWA Response: See the response to comments under Docket MC-92-19 
above.

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

    Comments: The ATA stated that physicians who perform biennial 
medical examinations and prospective employers should have access to 
prior controlled substances test results without the need for an 
employee's authorization.
    The regulations require a CMV driver who receives a citation in an 
accident to be tested, yet the employee may not receive the citation 
until days after the accident, when any controlled substances in the 
body present during the accident have dissipated.
    The ATA stated that part 394 of the FMCSRs requires a motor carrier 
to notify the FHWA of a fatality. The requirement to report controlled 
substances test results poses difficulties, they believe, because it 
may take up to 10 days to receive a controlled substances test result.
    FHWA Response: The elimination of periodic controlled substances 
testing obviates any need to provide for the release of prior 
controlled substances testing information to physicians. Previous 
employers may release prior controlled substances test results to 
prospective employers, but only with the driver's written consent.
    The FHWA does not believe, however, that 32 hours is an 
extraordinary time period to conduct a controlled substances test. If a 
citation is issued within 32 hours of the accident, a test must be 
conducted.
    Notification to FHWA by the employer is no longer required after 
any accidents, because part 394 of the FMCSRs has been eliminated. See 
58 FR 6726, February 2, 1993. Therefore, a motor carrier no longer has 
to notify the FHWA regarding controlled substances test results as part 
of a fatal accident report.
    Comments: The College of American Pathologists stated that 
Sec. 391.115(b) of the FMCSRs makes the driver responsible for 
collecting the required sample and forwarding it to a National 
Institute of Drug Abuse certified laboratory. The College stated that 
the motor carrier should be responsible for ensuring that the required 
sample is collected and sent to a proper laboratory.
    FHWA Response: The final rule requires an employer to provide 
necessary post-accident information, procedures, and instructions to 
the employee prior to the operation of a CMV so that the employee is 
able to comply with post-accident testing requirements. An employer 
will not have control over a driver after all accidents. The driver is 
responsible in some situations to ensure collection of a specimen or 
sample.

Section-by-Section Analysis

    The Department-wide common preamble, Limitation on Alcohol Use by 
Transportation Workers, published elsewhere in today's Federal 
Register, should be reviewed for a discussion of each section's common 
requirements and intent. Discussion in the common preamble is not 
repeated here. This analysis is confined to the sections and parts of 
sections which are not considered in the part of the common preamble 
entitled, ``Overview of the Operating Administration's Final Rules.''
    The drug and alcohol testing requirements are, to the extent 
possible, identical. For example, the preemptive effects of the Omnibus 
Act are the same for both the alcohol and drug elements of the program, 
and is discussed as a whole. In contrast, there is a difference between 
the exception criteria to a pre-employment alcohol test and a pre-
employment drug test, and both provisions are discussed.

Subpart A--General

Section 382.101  Purpose

    The purpose of this rule is to establish employer-based alcohol and 
controlled substances testing programs to help prevent accidents and 
injuries resulting from the misuse of alcohol and controlled substances 
by drivers of commercial motor vehicles. This rule prohibits any 
alcohol misuse that could affect performance of driving a CMV, 
including: (1) Use on the job; (2) use during the four hours before 
driving a CMV; (3) having prohibited concentrations of alcohol in the 
system while driving CMVs; (4) use during 8 hours following an 
accident; and (5) refusal to take a required test. This rule prohibits 
any controlled substances use, without a licensed doctor of medicine or 
osteopathy's written prescription.
    This rule requires pre-employment, reasonable suspicion, random, 
post-accident, return-to-duty and follow-up testing using procedures 
specified in 49 CFR part 40. These procedures use an evidential breath 
testing device for alcohol testing. For controlled substances testing, 
urine specimen collection and testing by a laboratory certified by the 
Department of Health and Human Services is required. Additional testing 
under the authority of this rule for drugs other than those specified 
in part 40, without the permission of the Department, is strictly 
prohibited. The primary purpose of the testing provisions is to deter 
misuse of alcohol and controlled substances.
    Following a determination that an employee has misused alcohol, 
this rule requires the employee's removal from safety-related functions 
and provides minimum requirements for return to performance of safety-
sensitive functions:
    (1) Following a determination that the employee has violated the 
alcohol prohibitions in subpart B of these rules, including having a 
test result of 0.04 BAC or greater, an employee must be removed from, 
and cannot be returned to, a safety-sensitive function until, at a 
minimum,
    (a) The employee undergoes evaluation, and where necessary, 
rehabilitation,
    (b) A substance abuse professional determines that the employee has 
successfully complied with any required rehabilitation, and
    (c) The employee undergoes a return-to-duty test with a result of 
less than 0.02.
    (2) An employee with an alcohol concentration of 0.02 or greater 
but less than 0.04 is not permitted to perform safety-sensitive 
functions for a minimum of 24 hours.
    (3) Following a determination that an employee has misused 
controlled substances, as determined through testing, this rule 
requires the employer to remove the employee from safety-related 
functions until, at a minimum,
    (a) The employee undergoes evaluation, and where necessary, 
rehabilitation,
    (b) A substance abuse professional determines that the employee has 
successfully complied with any required rehabilitation, and
    (c) The employee takes a return-to-duty test with a verified 
negative test result.
    This rule mandates reporting and recordkeeping requirements and 
provide for alcohol and controlled substances misuse information for 
employees, supervisor training, and referral of employees to substance 
abuse professionals (SAP).

Section 382.103  Applicability

    The FHWA's existing drug rules generally cover persons who perform 
sensitive safety-related functions in interstate commercial 
transportation on highways. They affect approximately 3 million persons 
and include commercial truck and motor coach drivers. This final rule 
for alcohol and controlled substances testing covers the same 
population, but also extends coverage to both inter- and intrastate 
truck and motor coach operations (including those operated by Federal, 
State and local government agencies, church and civic organizations, 
Indian tribes, farmers, custom harvesters, for-hire and private 
companies) as required by the Omnibus Act. This increases the total 
number of persons covered by the alcohol and controlled substances 
testing rules to over 6 million.
    The FHWA's rule focuses on function rather than a defined job or 
position. An individual's job may encompass several different 
functions, some of which are not safety-sensitive. Since alcohol is a 
legal substance, alcohol use is relevant only to the extent its use 
coincides with performance of a safety-related function. As a safety 
regulatory matter, for example, the rule does not prohibit a school bus 
driver from having a drink before or while performing functions that 
are not safety-sensitive (as long as no other regulation is violated). 
For example, if the school bus driver is receiving all-day training on 
retirement planning along with non-safety employees and the other 
employees can have a drink at lunch, the school bus driver may also, 
provided the driver will not be operating a school bus within 4 hours.
    Testing only applies to drivers operating in the United States. 
Consistent with CDL requirements, this rule does not apply to drivers 
operating outside the 50 States and the District of Columbia. Drivers 
operating in territories of the United States, such as Guam or Puerto 
Rico, therefore, are not covered by this rule.
    At this time, testing also does not apply to those drivers who 
operate in the United States, but normally report for duty in a foreign 
country, whether or not the employer is foreign-owned or the employee 
is a foreigner. An NPRM, published elsewhere in today's Federal 
Register, proposes, however, to add foreign-based drivers operating in 
the United States to the program. In the meantime, only foreign and 
American citizens who report for duty at an employer's terminal in the 
United States are subject to these requirements.

Section 382.105  Testing Procedures

    The final rule requires that employers ensure that all alcohol and 
controlled substances testing conducted under these rules complies with 
the procedures in the amended 49 CFR part 40. See Procedures for 
Transportation Workplace Drug and Alcohol Testing published by the 
Department elsewhere in today's Federal Register. The FHWA rule 
incorporates by reference the amended 49 CFR part 40.

Section 382.107  Definitions

    See Limitations on Alcohol Use by Transportation Workers, published 
elsewhere in today's Federal Register.

Section 382.109  Preemption of State and Local Laws

    See Limitations on Alcohol Use by Transportation Workers, published 
elsewhere in today's Federal Register.

Section 382.111  Other Requirements Imposed by Employers

    See Limitations on Alcohol Use by Transportation Workers, published 
elsewhere in today's Federal Register.

Section 382.113  Requirement for Notice

    Before performing an alcohol or controlled substances test under 
these rules, the employer must notify the driver being tested that the 
alcohol or controlled substances test being administered is required by 
the rule. The notice can be oral or written. Use of the U.S. Department 
of Transportation Breath Alcohol Testing Form or the controlled 
substances custody and control form, whichever is appropriate, may 
serve as the required notice. An employer shall not falsely represent 
that a test administered under their own or other authority independent 
of FHWA's authority is being administered under FHWA requirements.

Section 382.115  Starting Date for Testing Programs

    Interstate motor carriers subject to 49 CFR part 391, subpart H 
prior to the effective date of this rule must implement the split 
sample urine collection procedure within six months of the publication 
date of this final rule. The split sample urine collection procedures 
for controlled substances testing have been codified in the regulations 
since the original FHWA controlled substances testing regulations went 
into effect on December 21, 1988, though, until now, it was merely an 
option and not required. See 49 CFR 40.25(f)(10). Therefore, employers 
currently subject to part 391 controlled substances testing should not 
be overly burdened in changing their programs to incorporate the split 
sample requirement. The Department is changing the procedures slightly 
with respect to the laboratory that will perform the analysis of the 
split sample. Those changes are contained in the part 40 amendments 
published elsewhere in today's Federal Register.
    Except for the split sample urine collection implementation date 
for interstate motor carriers subject to part 391, subpart H, all large 
employers must implement the requirements of the rule beginning on 
January 1, 1995. Small employers must implement the rule beginning on 
January 1, 1996. The size of the employer is determined by the number 
of drivers it employs. Interstate motor carriers currently subject to 
49 CFR part 391, subpart H must switch to implementation of part 382 on 
the appropriate date. An employer beginning operations before the 
applicable implementation date of part 382 is required to implement 
part 391 drug testing only, and then will be required to implement part 
382 alcohol testing and change to part 382 drug testing on the 
appropriate implementation date.
    The staggered timetable should allow smaller employers to join 
alcohol and controlled substances testing programs already established 
by larger employers or preexisting consortia, which may reduce their 
costs. The implementation schedules also take into account the time 
needed by manufacturers to produce the required breath test devices. 
All employers must have an alcohol and controlled substances testing 
program in compliance with this final rule in place two years after the 
effective date of this rule.

Subpart B--Prohibitions

    This rule prohibits certain drug and alcohol usage by CMV drivers. 
A driver is prohibited from performing, and an employer is prohibited 
from using a driver to perform, safety-sensitive functions after a 
positive drug test result or an alcohol test result indicating a 0.02 
BAC, regardless of when the drug or alcohol was ingested and regardless 
of whether or not the driver is under the influence of alcohol or 
drugs, as defined in Federal, State, or local law.

Section 382.201  Alcohol Concentration

    See Limitations of Alcohol Use by Transportation Workers, published 
elsewhere in today's Federal Register.

Section 382.203  Alcohol Possession

    This section prohibits a driver from possessing unmanifested 
alcohol products while driving a CMV. The FHWA has had a long-standing 
requirement that no driver shall drive a CMV while possessing any 
product containing alcohol, regardless of its alcohol content. The FHWA 
will extend this requirement to all CMV drivers subject to this rule. A 
driver may not possess medication, food, or other alcohol-containing 
products that are not specifically manifested to be on the truck or 
bus. A manifested alcohol product is any product that is being 
transported on the CMV as a part of the shipment of freight.

Section 382.205  On-Duty Use

    See Limitations of Alcohol Use by Transportation Workers, published 
elsewhere in today's Federal Register.

Section 382.207  Pre-Duty Use

    See Limitations of Alcohol Use by Transportation Workers, published 
elsewhere in today's Federal Register.

Section 382.209  Alcohol Use Following an Accident

    See Limitations of Alcohol Use by Transportation Workers, published 
elsewhere in today's Federal Register.

Section 382.211  Refusal to Submit to a Required Test

    The FHWA will disqualify drivers for one year, under the procedures 
in 49 CFR part 386, if a driver refuses to submit to a post-accident 
test after a fatal accident. See Sec. 382.507.
    An applicant's or driver's refusal to submit to a pre-employment 
test or a return-to-duty test will not trigger the need for evaluation 
by a SAP. In those cases, the applicant or driver is not performing a 
safety-sensitive position from which to be removed. Since those tests 
are a condition precedent to starting or returning to perform safety-
sensitive functions, the applicant or driver simply could not be hired 
or returned to duty.

Section 382.213  Controlled Substances Use

    The FHWA currently prohibits the use of controlled substances by 
drivers (49 CFR Sec. 392.4). Drivers who use drugs are rendered 
medically unqualified to drive in interstate commerce (49 CFR 
Sec. 391.41(b)(12). Similarly, this section prohibits drivers from 
using controlled substances, except pursuant to a doctor's 
prescription. The doctor must also advise the driver that the substance 
does not adversely affect the driver's ability to safely operate a 
commercial motor vehicle. Employers are prohibited from permitting a 
driver to perform safety-sensitive functions who uses drugs. The 
employer may require a driver to inform it of any therapeutic drug use 
otherwise prohibited by this section.

Section 382.215  Controlled Substances Testing

    Similar to the current drug testing program, drivers are prohibited 
from driving, and employers are prohibited from using a driver, who 
tests positive for drugs or with a 0.04 or greater BAC. The prohibition 
remains in effect until the driver complies with the requirements of 
section 382.605, including evaluation by a SAP.
    A driver who is prohibited from performing safety-sensitive 
functions may be assigned to non-safety-sensitive functions until such 
time as the driver complies with the requirements for returning to duty 
in this part.

Subpart C--Tests Required

    The FHWA's current drug testing regulations require pre-employment, 
periodic, reasonable cause/suspicion, post-accident and random tests 
(testing also is required for drivers who seek to return to work 
following a positive test or refusal to submit to a test). The Omnibus 
Act requires all these forms of testing except periodic tests, which 
generally are performed as part of required physical examinations for 
some drivers operating in interstate commerce, and may be suspended if 
certain conditions are met.
    Although periodic tests are discretionary under the Omnibus Act, 
the FHWA will not to require or authorize periodic testing for alcohol 
or controlled substances. Of course, employers that wish to continue to 
perform periodic testing under their own authority may do so.

Section 382.301  Pre-employment/Pre-Duty Testing

    In order to give employers flexibility, this section allows an 
employer to forgo administration of a pre-employment test if the driver 
has had an alcohol test conducted under any DOT agency's alcohol misuse 
rule following part 40 procedures with a result less than 0.04 within 
the previous six months and the employer ensures that no prior employer 
of whom the employer has knowledge has records showing a violation of 
these rules within the previous six months. Generally, this means that 
when checking prior employers to obtain test results within the past 
six months, the new employer must also determine that the prior 
employers have no records of a violation of an OA alcohol misuse rule 
within 6 months. The new employer wishing to avail itself of this 
exception, must check all known prior employers within the last six 
months.
    The exception for pre-employment drug testing is narrower. In 
addition to the above criteria, there are participation requirements, 
which are carried over from the current rule, Sec. 391.103(d).
    In order to avail itself of either exception, an employer must 
obtain the information listed in paragraph (d).
    In the current testing program, the FHWA expects employers to 
conduct pre-employment testing of drivers each time a driver returns to 
work after a lay-off period when the driver does not continue to be 
subject to random drug testing or has been employed by another entity. 
However, if a driver is laid off, but continues to be subject to random 
drug testing and is not employed by another entity, a pre-employment 
test is not required under this section.
    The following examples describe situations in which an employer 
must perform pre-employment tests.
    1. A new employer just started operating CMVs in commerce. All 
drivers that would be hired to drive CMVs subject to this rule will 
fall under the pre-employment testing requirements.
    2. Employer A purchases Employer B. The pre-employment testing 
requirements would not be applicable to Employer A, because the 
individual's employment status has not been interrupted.
    3. All scenarios in which an employer name changes occur, the pre-
employment requirements would not apply.
    4. An employer is organized in divisions and subsidiaries. In any 
case where a driver would be transferred from one division to another, 
the pre-employment requirements would not apply. Under this scenario 
the employer is one corporate entity. The situation where a driver 
transfers from one wholly owned subsidiary to another, a pre-employment 
test would be needed, because each subsidiary is considered a separate 
corporate entity.
    5. A driver usually drives vehicles for which a CDL is not required 
to operate, but then is required to obtain a CDL and drive CMVs for the 
same employer. A pre-employment test would be required because the 
driver will be subject to part 382.
    6. Any time a driver is hired and has not been part of a drug 
program that complies with the FHWA regulations for the previous 30 
days, a pre-employment drug test is required.
    When any pre-employment test is required, an employer must actually 
test the individual or meet all of the respective requirements for pre-
employment exceptions for alcohol or controlled substances.

Section 382.303  Post-Accident Testing

    The definition of accidents that trigger a post-accident test is 
contained in 49 CFR Sec. 390.5. As soon as practicable following an 
accident, an employer shall test a surviving driver for alcohol and 
controlled substances, when any person involved in the accident has 
been fatally injured or the driver received a citation for a moving 
traffic violation arising from performance of a safety-sensitive 
functions with respect to the accident. The need for testing is 
presumed. Any decision not to administer a test must be based on the 
employer's determination, using the best information available at the 
time, that a human being did not die or that the employer's CMV driver 
was not cited for a moving traffic violation arising from the accident 
within such time that a test could be conducted within 32 hours after 
the time of the accident.
    Employers are also obligated to provide information to their 
drivers to allow them to be tested after an accident. This is 
especially important for employers whose operations occur in remote 
areas. Drivers are then obligated to follow the instructions and see 
that the tests are conducted. Any driver subject to post-accident 
testing who leaves the scene of an accident before a test is 
administered or fails to remain readily available for testing may be 
deemed by the employer to have refused to submit to testing. Such a 
refusal is treated as if the driver had a verified positive controlled 
substances test result or had an alcohol test result of 0.04 or 
greater. The employer is responsible for judging whether the driver 
remained readily available and must record any failure to administer 
tests within the time periods provided.
    Employers should make every effort possible, given the 
circumstances surrounding the accident, to ensure that the driver is 
available for a post-accident test. This, of course, does not mean that 
necessary medical treatment for injured people should be delayed or 
that a driver cannot leave the scene of an accident for the period 
necessary to obtain assistance in responding to the accident or to 
obtain necessary emergency medical care.
    Testing of drivers for drugs must be initiated prior to the 32nd 
hour after the accident. As in alcohol testing, if the citation is not 
issued by the key hour or testing is not initiated by that hour, there 
is less likelihood of obtaining a meaningful result. The employer then 
will have to cease attempts to administer the test and must explain why 
the employer was unable to administer a drug test. Under no 
circumstances is an employer authorized by this rule to conduct alcohol 
or drug testing on dead CMV drivers.
    In lieu of administering a post-accident test, employers may 
substitute a breath or blood test for the use of alcohol and a urine 
test for the use of drugs administered by on-site police or public 
safety officials under separate authority. This may be particularly 
useful if that test can be administered before the employer can get to 
the scene. These local authorities often are first to arrive at an 
accident site, particularly if the accident occurs in a remote area, 
and sometimes are equipped to conduct field alcohol breath and 
controlled substances tests. The employer is allowed to substitute a 
blood or breath alcohol test and a urine drug test performed by such 
local officials, using procedures required by their jurisdictions, if 
the employer obtains the test results from the local jurisdiction or 
the driver.
    An employer substituting a law enforcement-based post-accident test 
must take the actions appropriate to the result--not using the driver 
for 24 hours for an alcohol test result between 0.02 and 0.039 BAC, and 
referral to a SAP for an alcohol test result of 0.04 BAC or greater or 
a positive drug test result.
    For example, a rental car company's airport shuttle bus driver is 
involved in an accident on an airport access road with a non-CMV driver 
and the non-CMV driver is killed instantly. The CMV driver must be 
tested under this rule for both alcohol and controlled substances. An 
airport police officer at the scene determines, under authority 
independent of this rule, that the CMV driver should be tested for 
alcohol use. The police officer requires the CMV driver to submit to a 
blood test at the airport health clinic using procedures developed by 
the airport police department for such alcohol use testing. When the 
rental car company obtains the blood test result from either the driver 
or the airport police department, such a test will be allowed to 
substitute for the alcohol test. However, the rental car company will 
have to require its CMV driver to also submit to a controlled 
substances test under this rule, since both tests are required after a 
human being is killed.
    Another example could involve an air freight delivery truck driver 
who falls asleep at the wheel, her truck runs into a median barrier 
causing the front axle to be bent and inoperable and requiring the 
vehicle to be towed from the scene. The investigating State patrol 
officer, based upon observations and material found at the scene, has 
cause to believe the driver was using an illegal substance and the 
driver was speeding excessively. The officer cites the CMV driver for 
excessive speed and requires the CMV driver to submit to urine testing 
at a local hospital. The urine is sent, as required by that State's 
laws, to the State's forensic crime laboratory for drug testing. When 
the employer receives the test result from the driver or State patrol, 
the employer may use the result, regardless of whether the laboratory 
used Department of Health and Human Services or part 40 procedures for 
testing the specimen, rather than requiring the driver to submit to 
another drug test.

Section 382.305  Random Testing

    See Limitations of Alcohol Use by Transportation Workers for a 
discussion of adjusting the random alcohol testing rate based on the 
industry positive rate. The alcohol testing rate is set initially at 
25%. See also the NPRM on adjusting the random drug testing rate, 
published elsewhere in today's Federal Register.
    This section requires random alcohol testing that is limited to the 
time period surrounding the performance of safety-related functions. A 
driver may only be tested while the driver is performing safety-
sensitive functions, just before the driver is to perform safety-
sensitive functions, or just after the driver has ceased performing 
such functions. Obviously, the best time to test is before the driver 
begins to perform the safety-sensitive function. Detection at that 
point will prevent the driver from actually performing the function 
while he or she has alcohol in his or her system. However, if the 
driver understands that a random test will only be administered before 
he or she begins work and there is an opportunity to drink during work, 
deterrence is limited. The ability to test just before, during or just 
after performance increases the deterrent effect and may enable 
detection of drivers who use alcohol on the job. The purpose of the 
concept of ``just before'' and ``just after'' is to avoid the problem 
that some safety-sensitive functions could not be interrupted for the 
performance of a test (e.g., driving a school bus). It is intended to 
be close enough to the actual performance of the safety-sensitive 
function, however, that the test results will clearly indicate that the 
driver has engaged in the misuse of alcohol when performing or about to 
perform those functions.
    This rule, however, will not place such a requirement on controlled 
substances testing. Controlled substances testing may be performed at 
anytime while the driver is at work for the employer. The driver may be 
doing clerical or mechanical repair duties at the time of notification 
by the employer.
    This rule will provide that employers require that each driver 
selected for random testing proceed to the testing site immediately. In 
the event the driver is performing a safety-sensitive function when 
notified, the employer must ensure that the driver ceases the function, 
consistent with safety, and proceeds to the site as soon as possible.
    An employer may not delay a test based upon a consignor's, 
consignee's, or employer's demand to move freight or passengers. 
Employers should plan their notifications to reduce conflict with such 
demands affecting their random alcohol and drug testing programs. 
However, employers are expected to notify and conduct tests on drivers 
as soon as possible after a selection of drivers is made. This means 
that when a selection of drivers has been made, the employer shall 
require all drivers selected to submit to testing at their first 
available time in the terminal or other appropriate location. Employers 
shall not delay testing for drivers until just before the next 
selection of drivers names. Although the FHWA has allowed this practice 
in the past, the FHWA believes that some employers may use such an 
interpretation to perform quasi-reasonable suspicion tests of drivers 
by manipulating the timing of such tests, rather than conducting random 
testing that is not based on individualized suspicion. In addition, 
employers may have been delaying testing to move freight or allow a 
driver with a problem to ``clean up'' prior to taking the test. Under 
normal circumstances, employers shall not dispatch selected driver on a 
new trip, from a work reporting location where other drivers are or 
have been tested, until to only test drivers once every few years. 
Rather, it will have to test at least once a year and establish a 
program that will ensure that there is no period of time during which 
employees know testing ``is done for the year.'' For example, if an 
employer is required to conduct only two tests and that number of tests 
are completed by mid-summer, the employer's program must ensure that 
more tests could be conducted before the end of the calendar year. Such 
an employer could conduct random testing every quarter or could 
randomly select the month, within the next 12 months, for conducting 
the next test(s). Depending on the month selected, the employer may in 
fact test more than once in a calendar year. Using a revolving 
calendar, the first selection and test is made in May 1995 for the 
calendar year 1995; the next selection must be for the 12 months from 
May 1995 to April 1996. In addition, if a consortium sets up a testing 
pool where this scenario would be applicable, the consortium must also 
follow this procedure.
    Another alternative is for employers to join a consortium with 
testing pools large enough so that their drivers are always subject to 
random testing. Although the FHWA has eased the burden on small 
employers in a number of ways, these restrictions that may raise the 
effective annual random testing rate are necessary to achieve 
deterrence in alcohol and controlled substances use. A small employer, 
of course, can achieve the benefits of a lower random rate without the 
higher costs of meeting the deterrence requirements if it joins a 
consortium.
    Random testing pools may be formed in a variety of ways. To promote 
efficiency and reduce costs, particularly for smaller employers and 
employers subject to more than one DOT agency rule, the FHWA permits 
the combination of geographically-proximate drivers covered by 
different DOT agency rules into one pool. To maintain fairness and the 
equal chance of each driver to be selected and tested, certain 
conditions must be met. For example, drivers in any industry who travel 
most of the time should constitute one pool; others who remain in the 
vicinity of the testing site should be in another, as long as the 
selection and testing rates are the same. However, if testing is 
required of drivers immediately upon selection or whenever they first 
return to the testing location after their selection (but still 
unannounced), there would be no need for separate pools. Any acceptable 
method must ensure that each driver has an equal chance of actually 
being tested. Although multi-modal pools will be permitted, other 
specific DOT agency requirements will have to be met, such as the FAA 
requirement for prior approval of consortium-operated random testing 
pools.
    If the employer joins a consortium, this rule will permit the 
calculation of the annual rate on either the total number of drivers 
for each individual employer or the total number of covered employees 
subject to random testing by the consortium's pool covering the 
employer. This will mean that a consortium member could have less than 
its required number of random tests conducted if the overall consortium 
rate equals the required rate. Thus, if Employer A has ten drivers and 
the consortium has 500 drivers in the pool covering Employer A, and a 
50 percent rate applies, if Employer A chooses to have the rate based 
on the consortium, the consortium must conduct at least 250 tests even 
if only four or fewer drivers of Employer A are tested. So long as each 
driver has an equal chance of being tested each time the consortium 
conducts random tests, the requisite deterrence factor remains. 
Membership in a consortium, as noted earlier, should improve deterrence 
for small companies because their drivers will continue to perceive an 
equal chance of being selected and tested throughout the year.
    The FHWA has had many inquiries regarding compliance by owner-
operators with the random testing requirements in Part 391. It has been 
the FHWA's view and will continue to be the view that owner-operators 
cannot conduct their own random testing program. Owner-operators must 
meet the conditions of random testing, which include that the random 
selection process must provide for testing to be unannounced and the 
timing of such test unpredictable. The FHWA believes that the 
requirement of unannounced testing requires that an owner-operator must 
join a consortium or testing pool that includes at least two or more 
drivers. Owner-operators are expected to join consortiums that have at 
least two or more covered employees. The other covered employees may be 
subject to aviation, railroad, mass transit, maritime or pipeline 
industries, provided that the applicable regulations for those other 
industries allows inclusion of CMV drivers in their testing pools.
    Upon each of the implementation dates for this rule, the FHWA will 
remove, for the employers subject to the applicable implementation 
dates, the current prohibition that intrastate commercial motor vehicle 
drivers shall not be included in random testing selection pools with 
interstate commercial drivers. As this new rule applies to all inter- 
and intrastate drivers with CDLs, there will be no need for the 
separation. However, the FHWA will prohibit the inclusion in the random 
selection pools of any employees not subject to any of the DOT agency 
testing rules. When a representative of the FHWA or any DOT agency is 
investigating an employer subject to these rules, the representative of 
FHWA must determine whether the required testing rate has been met. 
Prohibiting non-drivers and other non-DOT covered employees from 
participating in the same random selection pools will assist the 
employer in complying with these rules, especially in ensuring that 
drivers are tested at the required minimum annual percentage rate.
    If a driver works for two or more employers subject to FHWA or DOT 
agency regulations, the driver must be in all of the employers' random 
testing programs.
    When drivers are off work due to long-term lay-offs, illnesses, 
injuries or vacations, the employer has three options. First, the 
driver's name could be skipped and the next driver's name on the 
selection list could be selected and tested. If this occurs, the 
employer must keep documentation that the driver was ill, injured, laid 
off, or on vacation and that the driver was in the random selection 
pool for that cycle. Second, the employer could remove the driver's 
name from the selection pool for that cycle. If this is done for drug 
testing and the driver is out of the program for more than 30 days, the 
pre-employment testing provisions of this rule will apply. Finally, the 
employer could set the driver's name aside until the driver comes back 
from the extended leave and the employer would conduct the test at that 
time. The employer shall not, however, notify any driver to submit to a 
test while the driver is off work due to these extended leave periods. 
Employers with seasonal fluctuations in the number of drivers actually 
driving should adjust each random selection episode to reflect the 
fluctuation, thereby ensuring an equal chance of all drivers being 
selected.
    A consortium that performs selection and/or testing services as 
agents for the employer must prepare and provide to the employer 
complete and comprehensive descriptions of the procedures used by the 
consortium. An employer must have this information readily available 
for inspection. The consortium, and an employer who does not use a 
consortium, must include in these descriptions: how the random 
selection pool is assembled; the method of selection and notification 
of drivers; the location of collection sites (at terminals, clinics, 
``on the road'', etc.); methods of reporting the test results on each 
driver; and summary reports of the consortium's program. Also, 
documentation must be provided that the consortium is testing at the 
prescribed minimum annual percentage rate for alcohol and/or controlled 
substances. Each employer is at no time relieved of the duty to comply 
with each requirement of this rule.

Section 382.307  Reasonable Suspicion Testing

    See Limitations of Alcohol Use by Transportation Workers for 
discussion of the majority of the elements of this section.
    In the FHWA rule, only one supervisor is required to make the 
reasonable suspicion determination. That supervisor may not, however, 
conduct the alcohol test on the driver. Documentation of the grounds 
for reasonable suspicion to require a controlled substances test must 
be made and signed by the supervisor within 24 hours of the observed 
behavior or before the results of the test are released, whichever is 
later.

Section 382.309  Return-to-Duty Testing

    See Limitations of Alcohol Use by Transportation Workers for 
discussion of this section.

Section 382.311  Follow-Up Testing

    See Limitations of Alcohol Use by Transportation Workers for 
discussion of this section.

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

Section 382.401  Retention of Records

    To provide for FHWA oversight of the alcohol and controlled 
substances testing programs and to protect driver confidentiality, an 
employer is required to maintain, for a specified period, in a secure 
location with controlled access, certain records of its alcohol and 
controlled substance use prevention program. This section itself does 
not require any records to be generated. Other sections of the rule 
does that. This section merely sets forth the retention periods for 
records generated pursuant to other sections of the rule.
    The records may be included in personnel records that have 
controlled and secure access only by authorized personnel. The FHWA is 
requiring all documents be maintained in accordance with Sec. 390.31, 
which sets forth requirements for copies and long-tern storage of 
documents, including computer storage systems. Though the records may 
be maintained anywhere, the employer must make them available to an 
FHWA representative, upon two days notice, at the employer's principal 
place of business.

Section 382.403  Reporting of Results in a Management Information 
System

    For oversight purposes, each employer will be required to generate 
and retain, at a minimum, an annual calendar year summary of the 
results of its alcohol and controlled substances prevention program for 
each calendar year. The FHWA will randomly select a sample of employers 
from all employers subject to part 382. The sample of employers will be 
large enough so that the sample statistics will have a tolerable error 
of plus or minus one percentage point in a 99 percent confidence 
interval. For example, this means the FHWA will be 99 percent confident 
that the actual industry positive rate is within plus or minus one 
percentage point of the sample statistics.
    Employers selected to submit data will be notified by mail during 
the month of January of the year in which the data is due. For example, 
an employer who is selected and notified in January 1998 must report 
data for calendar year 1997 by March 15, 1998. The notice to submit 
data will specify the name and address where the data are to be 
submitted and enclose copies of both a long and a short ``EZ'' form. 
Employers will have the option to submit either form by electronic 
transmission and will receive information on how to submit the forms 
electronically.
    Previous versions of the forms were included in the NPRMs [57 FR 
59409] as appendix B to 49 CFR part 40. The FHWA foresees that the 
forms or instructions may be changed in the future to make them more 
understandable based on future comments. Therefore, the most current 
versions of the long and short ``EZ'' forms are contained in this 
document for informational purposes only as Illustrations I and II in 
the Appendix to this document respectively. This appendix will not 
appear in the Code of Federal Regulations. The FHWA is not soliciting 
employers to submit data by including the forms in this document. The 
FHWA will not enter information into the MIS from unsolicited 
respondents because the sample is random in nature. The acceptance of 
unsolicited responses would bias the sample. The aggregation of 
information collected from solicited reports will be utilized for 
program analysis and to respond to requests for information from 
Federal agencies, members of Congress, and the general public.
    Employers whose drivers had any verified positive controlled 
substances test results or any alcohol test results of 0.02 or greater 
in the preceding calendar year must utilize the long form. Employers 
whose drivers had no verified positive controlled substances test 
results and no alcohol test results indicating alcohol concentrations 
of less than 0.02 in the preceding calendar year will be allowed to 
utilize the short form. Employers whose drivers had refused to test in 
the preceding calendar year will be allowed to utilize the short form 
if no drivers had verified positive controlled substances test results 
or alcohol test results indicating concentrations 0.02 or greater in 
the preceding year. Controlled substances test results must be reported 
for the calendar year in which the MRO made the final determination of 
the test result regardless of the date the specimen was collected. For 
example, a final determination of a controlled substances test result 
made by a MRO on 2 January 1996, for a specimen collected on December 
30, 1995, must be included in the data for calendar year 1996.
    Within Section B (Covered Employees) of both the long and short 
``EZ'' forms, employers must submit the number of covered employees in 
each category subject to testing under the alcohol and controlled 
substances testing regulations of more than one DOT operating 
administration (OA), identified by OA. As formulated by the Department, 
employers who are subject to the alcohol and/or controlled substances 
testing regulations of two or more OAs must submit data to each 
regulating OA for those employees covered by that OA's rule. Employees 
who perform functions covered by more than one OA should be identified 
by their employer under the covered position that they will be 
reported. Data on dual covered employees should be reported to the 
appropriate OA.
    The issue of multi-modal coverage affects railroads, aviation, 
maritime, and pipeline safety operations. Although many commenters 
suggested that all CDL holders in the various industries should report 
to their primary OA, the OAs believe that reportability should be 
determined by employee function. Therefore, drivers who are subject to 
the alcohol and/or controlled substances testing regulations of more 
than one OA must be reported as follows:
    For pre-employment and random testing, a driver should be reported 
to whichever OA covers more than 50% of that driver's function. If the 
driver is subject to three or more OA rules, the employer must 
determine which function the driver performs the greatest percentage of 
the time and report the pre-employment and random testing results to 
the OA covering the greatest percentage of the driver's duties, e.g. 
driving CMVs 45 percent of the time, flying airplanes 35 percent of the 
time, and operating railroad equipment 30 percent of the time. For 
post-accident and reasonable suspicion testing, however, reportability 
should be determined by the function the driver was performing at the 
time of the accident or incident. Finally, for return to duty and 
follow-up testing, the employee should be reported to the same OA to 
whom the initial positive controlled substances test or alcohol test 
indicating a concentration of 0.04 or greater was reported. The FHWA 
must stress here that, although the driver has been tested and is 
reported to other DOT agencies under their regulations, the driver is 
prohibited from operating any CMV as required by Subpart E of this 
rule.

Section 382.405  Access to Facilities and Records

    See Limitations of Alcohol Use by Transportation Workers for 
discussion of this section.

Section 382.413  Release of Alcohol and Controlled Substances Test 
Information by Previous Employers

    Paragraph (a) restates Sec. 382.405(b) in terms of the employer. An 
employer may obtain any of the information retained by other employers 
under part 382, pursuant to a driver's consent.
    Paragraph (b), by contrast, provides that an employer shall obtain 
certain elements of that information, also pursuant to the driver's 
consent. This merely makes mandatory that which employers have had the 
option to do under the current drug testing program--make release of 
previous testing information a condition of employment as a driver. 
Information on alcohol and controlled substances testing results from 
the driver's previous employers must be obtained generally before using 
the driver. An employer is, of course, free to make release of any 
information a condition of employment, though this section only 
requires certain information.
    Since the information is releasable by the previous employer only 
pursuant to a driver's written authorization, an employer must make 
obtaining such authorization a condition of the driver performing 
safety-sensitive functions for the employer. Requiring the driver's 
consent will ensure that the information remains confidential and is 
released only to the extent authorized by the driver. The protections 
of Sec. 382.405 remain in full effect, including allowance of the re-
release of information also only pursuant to the driver's consent.
    The information to be released under this section is limited to 
positive controlled substances test results, alcohol test results of 
0.04 or greater, and refusals to be tested, for the two years preceding 
the date of inquiry. None of the other information required to be 
maintained by the employer in this rule is required to be released 
under paragraph (b). Restricting the content of the mandatory 
inquiries, by not requiring negative drug test results and alcohol 
tests with results less than 0.04 to be obtained, should minimize the 
burden of compliance on employers.
    This section is necessary to effectuate the referral, evaluation, 
and treatment requirements of the rule. Whereas the NPRM proposed a 
system of information and penalty suspensions tied to the driver's CDL, 
this final rule includes no CDL consequences because the law-
enforcement based testing option has not been chosen. Licensing 
agencies would be understandably reluctant to issue suspensions based 
solely on the results of employer-based tests, without affording the 
driver a review process.
    Comments to the dockets and experience in administering the current 
drug testing program make it clear that some system of information is 
necessary to give effect to the requirements of the rule. One of the 
major problems with the current drug testing rule is that drivers who 
test positive merely apply to work with a different employer without 
taking the required retest or becoming medically recertified to drive. 
The new employer has no clear way and, unfortunately, too often, no 
incentive to determine if the driver-applicant is avoiding the 
requirements. With the rehabilitation requirements in this rule over 
and above those in the current drug testing program, the incentive to 
avoid them will only be increased.
    The problem is particularly acute in the motor carrier industry, 
due to its size and turnover rate. Of the approximately 270,000 known 
interstate carriers, about 10% enter and leave business each year. 
Adding intrastate carriers, also covered by this rule, only serves to 
increase the number of carriers in flux. Similarly, of the 
approximately 6.6 million drivers covered by the rule, it is 
conservatively estimated that 20% work for a different employer from 
one year to the next. Given these numbers, it is not difficult to see 
the potential for getting lost and avoiding the rule's requirements, 
especially where there is no tracking system being used, such as the 
CDL Information System.
    Sharing information on recent positive tests, and the requirement 
in paragraph (g) that employers obtain proof of completion of 
rehabilitation and return-to-duty test requirements after positive 
tests, is not such a tracking system. It will help keep drivers, and 
employers, from avoiding evaluation and possible treatment following a 
violation, however. Again, it must be emphasized that this section 
requires nothing that could not be willingly accomplished by employers 
under the current rule. An employer could make release of prior results 
a condition of employment as a driver, and should require drivers with 
positive tests to prove they have been retested and medically 
recertified as qualified. Employers are, after all, prohibited from 
using a driver it knows has tested positive but has not been 
recertified and tested negative. By making such inquiries and 
conditions mandatory, this section merely sets forth a standard of 
knowledge for new employers to comply with the rule.
    An employer that learns that a driver-applicant is prohibited from 
driving need not refer the driver to a SAP for evaluation and 
treatment. The employer must, however, obtain proof of a SAP evaluation 
and return-to-duty test before using the driver-applicant. Therefore, 
drivers with positive drug test results, alcohol test results of 0.04 
or greater, or refusals to test should either maintain copies of 
subsequent SAP evaluations and return-to-duty tests, or should also 
consent to release of them along with the required information, in 
order to show compliance with the rule. Similarly, of the approximately 
6.6 million drivers covered by the rule, it is conservatively estimated 
that 20% work for a different employer from one year to the next. Given 
these numbers, it is not difficult to see the potential for getting 
lost and avoiding the rule's requirements, especially where there is no 
tracking system being used, such as the CDL Information System.
    Sharing information on recent positive tests, and the requirement 
in paragraph (g) that employers obtain proof of completion of 
rehabilitation and return-to-duty test requirements after positive 
tests, is not such a tracking system. It will help keep drivers, and 
employers, from avoiding evaluation and possible treatment following a 
violation, however. Again, it must be emphasized that this section 
requires nothing that could not be willingly accomplished by employers 
under the current rule. An employer could make release of prior results 
a condition of employment as a driver, and should require drivers with 
positive tests to prove they have been retested and medically 
recertified as qualified. Employers are, after all, prohibited from 
using a driver it knows has tested positive but has not been 
recertified and tested negative. By making such inquiries and 
conditions mandatory, this section merely sets forth a standard of 
knowledge for new employers to comply with the rule.
    An employer that learns that a driver-applicant is prohibited from 
driving need not refer the driver to a SAP for evaluation and 
treatment. The employer must, however, obtain proof of a SAP evaluation 
and return-to-duty test before using the driver-applicant. Therefore, 
drivers with positive drug test results, alcohol test results of 0.04 
or greater, or refusals to test should either maintain copies of 
subsequent SAP evaluations and return-to-duty tests, or should also 
consent to release of them along with the required information, in 
order to show compliance with the rule. Alternatively, a pre-employment 
test directed by the hiring employer may serve as a return-to-duty test 
under such circumstances.
    In no case should any test result for alcohol or drugs under this 
part be used to infer that a person is an alcoholic or drug addict. 
Testing under this part determines whether a driver may need to be 
removed from safety-sensitive functions and must be referred to a 
substances abuse professional only. The tests under this part are 
conduct test only, and do not determine the status of any person. 
Prospective employers should refer to the requirements of the Americans 
with Disabilities Act, and implementing regulations, 42 CFR 1630, 
before taking any employment actions based on SAP evaluations released 
by drivers to the prospective employer.
    This section is consistent with 49 CFR 391.21 and 391.23, which 
requires a driver-applicant to list the names, addresses, and dates of 
employment for all employers in the preceding three years (10 years for 
CDL drivers), and requires employers to investigate the driver's record 
by contacting all of the driver's previous employers within the three 
preceding years. The information on testing could be easily added to 
the inquiry. This inquiry requirement has been included in part 382, 
and not part 391, because part 391 does not cover many of the drivers 
to which this rule applies. Drivers' and employers' compliance with the 
requirement to list and investigate prior employers for purposes of 
test result information, will be enforced in the same manner that part 
391 is currently enforced.
    The maximum (14 calendar days) period granted to the employer to 
obtain the testing information is shorter than the period allowed to 
investigate the driver's employment record, as required in 49 CFR 
391.23. Since the period of investigation is also shorter, three years 
rather than two, the burden of compliance is lessened. Fourteen days 
also makes it more difficult to abuse the section's intent by 
discharging drivers before the information is absolutely required to be 
obtained. As an additional incentive to promptly obtain the required 
information, and to facilitate future inquiries, paragraph (d) requires 
the employer to obtain the information even if the driver stops driving 
before the information is obtained or before the 14 day period had 
expired.
    In this rule, also differing from Sec. 391.23, an employer is 
required in the first instance to obtain the information prior to using 
the driver. Only if such promptness is not feasible, and only for as 
long as it remains infeasible, may an employer delay obtaining the 
information. Obviously, the utility of this provision is diminished the 
longer an employer waits to make the inquiries. The potential is there, 
however, for a prudent employer, especially those many commenters who 
have requested a provision allowing the exchange of information, to 
obtain meaningful information and to aid drivers who misuse alcohol and 
drugs by ensuring completion of rehabilitation.
    An employer is prohibited in paragraph (c) from using a driver for 
longer than 14 days without obtaining the prior testing information. 
The new employer must make a good faith effort to obtain the 
information. An employer who makes a good faith effort, but through no 
fault of its own is unable to obtain the information, may continue to 
use the driver if it makes a note under paragraph (f) of the attempt. 
For instance, if a previous employer refuses, in violation of 
Sec. 382.405, to make the information available pursuant to the 
driver's request, the new employer should note the attempt to obtain 
the information and place the note with the driver's other testing 
information.
    Finally, paragraph (f) leaves the form of the release of 
information to the discretion of the employer. The employer must, 
however, ensure confidentiality of the information in the same manner 
as provided in Sec. 382.405.

Subpart E--Consequences for Drivers Engaging in Substance Abuse--
Related Conduct

Section 382.501  Removal From Safety-Sensitive Function

    Paragraph (c) extends all of the driving consequences of violating 
the rule, provided in subpart E, to commercial motor vehicles in 
interstate commerce as defined in part 390, as well as CMVs in commerce 
as defined in Sec. 382.107. For example, a driver removed from 
performing safety sensitive functions because of a rule violation 
occurring in a 26,001 pound or greater vehicle in inter- or intrastate 
commerce, also is prohibited from driving a 10,001 pound or greater 
vehicle in interstate commerce, until complying with Sec. 382.605. This 
provision extends consequences of violations incurred in transportation 
under CDL jurisdiction to transportation covered by the Federal Motor 
Carrier Safety Regulations.

Section 382.503  Required Evaluation and Testing

    See Limitations of Alcohol Use by Transportation Workers, published 
elsewhere in today's Federal Register.

Section 382.505  Other Alcohol-Related Conduct

    Though the minimum alcohol concentration to incur referral to a SAP 
and a return-to-duty test is 0.04, alcohol tests with result below 0.04 
are also serious and represent a threat to the safety of the motoring 
public. An alcohol concentration of 0.039 does not warrant evaluation 
and rehabilitation under the rule, but it may have an adverse effect on 
a driver's abilities. In addition, the driver's blood alcohol curve may 
be rising. In other words, the individual may have just consumed enough 
alcohol to eventually produce an alcohol concentration of 0.04 or 
greater, but the alcohol is just entering the bloodstream and, at the 
time of testing, the alcohol concentration is below 0.04, but rising. 
It is, rather, a matter of testing fora.
    Part 382 establishes a program of employer-based testing. Section 
382.505 requires a driving prohibition of 24 hours for a test result of 
0.02 or greater but less than 0.04. (In most instances, the 
rehabilitation referral requirements of Sec. 382.605 will also take at 
least 24 hours.)
    Section 392.5 (c) and (d), on the other hand, requires law 
enforcement officials to issue a 24 hour out-of-service order to a 
driver with any measured alcohol concentration or detected presence of 
alcohol. There is no 24 hour driving prohibition period in Sec. 392.5 
required directly of the driver and employer without the involvement of 
a law enforcement official. Section 392.5(a) and (b) merely prohibit 
driving after a measured alcohol concentration or detected presence of 
alcohol, without placing any time limit. Moreover, because tests 
conducted under part 382 with results below 0.02 are deemed to be 
``negative'' or zero, there can be no measured alcohol concentration 
for which to prohibit driving under Sec. 392.5 when the result is less 
than 0.02.
    Still, an employer must comply with the driving prohibition in 
Sec. 392.5, regardless of a test result below 0.02 or not, if it 
discovers violation of any of the other proscriptions provided in the 
section, such as pre-duty use, possession, and detected presence of 
alcohol. In most circumstances, a driver would also be removed from 
safety-sensitive functions and referred to a SAP under part 382 for 
committing such violations, in effect imposing the driving prohibition 
in Sec. 392.5 anyway. If a driver subject to Sec. 392.5 is given a 
test, however, which results in a concentration below 0.02, but the 
employer detects the presence of alcohol in the driver through other 
means, the employer is prohibited from using the driver until there is 
no longer the presence of alcohol.
    Post-accident tests administered by a law enforcement official 
under independent authority may result in a 24 hour out-of-service 
order issued by the official for concentrations below 0.02 because the 
test is not administered under part 382.

Section 382.507  Penalties

    Section 5(f) of the Act allows the Secretary to determine 
appropriate sanctions for drivers who are determined through testing 
developed under this Act to have used alcohol or controlled substances 
in violation of law or Federal regulation, but are not under the 
influence of alcohol or controlled substances as provided in the CMVSA. 
Regulations issued pursuant to the CMVSA impose disqualifications and 
other penalties for ``conviction'' by Federal, State, or local law 
enforcement officials of driving under the influence of alcohol or 
controlled substances (Sec. 383.51). This section provides that 
employers and drivers who violate these rules, which do not provide for 
``convictions'' or CDL disqualifications, are subject to 49 U.S.C. 
521(b), which allow civil forfeiture penalties of up to $10,000.

Subpart F--Alcohol and Controlled Substances Misuse Information, 
Training, and Referral

Section 382.601  Motor Carrier Obligation To Promulgate a Policy on the 
Misuse of Alcohol and Controlled Substances

    Materials explaining how the employer implements the requirements 
of this part and the employer's policies must be provided to each 
driver. Written notice of the availability of these materials must be 
provided to representatives of employee labor organizations.
    In addition to educational information, the materials also may 
include the description of any self-identification program or procedure 
under which a driver may decline to perform or continue to perform 
safety-sensitive functions without penalty when he or she may be in 
violation of these rules, including any limits on the program. The 
employer also may include information on additional employer policies 
with respect to the use or possession of alcohol, including any 
consequences for a driver found to have a specified alcohol 
concentration, that are based on the employer's authority independent 
of these rules. These additional policies must be clearly identified as 
based on the employer's independent authority.
    Motivating drivers about safety in the workplace and good health is 
important to making an alcohol and controlled substances use prevention 
program work. Because the primary objective of this alcohol and 
controlled substances misuse program is deterrence rather than 
detection, it is especially important that, before any testing is 
begun, employers make their drivers fully aware of the dangers of 
alcohol and controlled substances misuse in their jobs, advise them 
where help can be obtained if they have a problem with alcohol or 
controlled substances use, and the potential consequences for people 
who violate this rule. An effective company policy and educational 
effort can more than pay for itself with the benefits it can achieve.

Section 382.603  Training for Supervisors

    See Limitations of Alcohol Use by Transportation Workers for 
discussion of this section.

Section 382.605  Referral, Evaluation, and Treatment

    The Omnibus Act requires that an opportunity for treatment be made 
available to drivers. This does not require employers to provide or pay 
for rehabilitation or to hold a job open for a driver with or without 
salary. In the current drug testing rules, the Department decided that 
it was inappropriate to establish a Federal role in mandating that 
employers provide for rehabilitation and that it should be left to 
management/driver negotiation. The same logic will apply here. The FHWA 
has decided not to mandate employer-provided rehabilitation in this 
rule.
    We encourage those employers who can afford to provide 
rehabilitation to do so through established health insurance programs, 
since it helps their drivers, benefits morale, is often cost-effective 
and ultimately contributes to the success of both their business and 
their testing programs.
    This section requires an employer to advise a driver who engages in 
conduct prohibited under these rules of the available resources for 
evaluation and treatment of alcohol and controlled substances problems. 
The employer will have no similar obligation to applicants who refuse 
to submit to or fail a pre-employment test.
    A SAP will evaluate each driver who violates these rules to 
determine whether the driver needs assistance resolving problems 
associated with alcohol misuse and refer the driver for any necessary 
treatment. Before returning to duty after a violation, each driver must 
undergo an applicable alcohol or controlled substances test with a 
result of less than 0.02 alcohol concentration and/or a verified 
negative controlled substances test result. In addition, each driver 
identified as needing assistance must (1) Be evaluated again by a SAP 
to determine whether the driver has successfully complied with the 
rehabilitation program prescribed following the initial evaluation, and 
(2) be subject to a minimum of six (6) unannounced, follow-up tests 
over the following twelve (12) months. Compliance with the prescribed 
treatment and passing the test(s) will not guarantee a right of 
reemployment. They will be preconditions the driver must meet in order 
to perform safety-sensitive functions.
    For a CMV driver to return to duty following a controlled 
substances test that results in a verified positive test result, the 
CMV driver must stop using drugs, be evaluated by a substance abuse 
professional, and take a return-to-duty controlled substances test with 
a negative result. The SAP evaluation takes the place of the 
requirement in 49 CFR 391.45(c) that drivers who test positive for 
drugs, and are thereby rendered medically unqualified to drive under 
Sec. 391.41(b)(12), must be recertified as medically qualified to 
drive. Drivers identified as needing assistance must also complete any 
rehabilitation required by the substance abuse professional, be re-
evaluated by a substance abuse professional to determine whether 
rehabilitation requirements were followed, and be subject to follow-up 
tests.
    Follow-up and return-to-duty tests need not be confined to the 
substance involved in the violation. If the SAP determines that a 
driver needs assistance with a poly-substance abuse problem, the SAP 
may, for instance, require alcohol tests to be performed along with the 
required drug follow-up and/or return-to-duty tests, after a driver has 
violated the drug testing prohibition.
    The rule will provide that the evaluation and the rehabilitation 
may be provided by the employer, by a SAP under contract with the 
employer or by a SAP not affiliated with the employer. The choice of 
SAP and assignment of costs will be made in accordance with employer/
driver agreements and employer policies.

Other Issues

    As in the current drug testing rules, the FHWA wants to provide 
program flexibility to allow employers to carry out their programs in a 
more efficient, cost-effective manner and to ease the compliance burden 
on small businesses. Testing, for example, may be conducted by the 
employer, an outside contractor, a consortium, a union, or any other 
party or agent of the employer. The employer remains responsible for 
compliance with the requirements of this part.
    The use of consortia has worked well in the drug testing area. In 
fact, it is the predominant method of compliance in some industries, 
particularly among smaller employers. One reason to delay 
implementation of this rule for smaller employers is to enable them to 
form or join consortia or large employer testing programs, rather than 
have to establish their own programs.
    Employers may find it more cost-effective and convenient to conduct 
alcohol testing at the same time they conduct drug testing. Because we 
are requiring alcohol testing at or near the time of performance, drug 
testing also would have to occur at such times. For random testing, 
employers could easily accomplish this by randomly choosing the 
driver's number and then testing the driver the next time he or she 
performs safety-sensitive functions.

Multi-Agency Coverage

    In some industries, a significant percentage of drivers are subject 
to the testing rules of more than one DOT OA; some are subject to the 
testing rules of more than one federal agency (e.g., drivers covered by 
the Department of Energy may also be covered by FHWA). Where it will 
not compromise the effectiveness of the testing program or other 
requirements, one DOT agency will defer to another or recognize the 
validity of the other's requirements.
    There are different situations in which multi-agency coverage can 
occur:
    (1) A driver may perform different modal functions for the same 
employer. For example, a driver may act as both a railroad repair 
person and a truck driver for a single employer, activities regulated 
by the FRA and the FHWA, respectively. Such a driver could be in a 
single random pool under these rules, but will have to have an equal 
chance of being selected for random testing while performing either 
track repair or driving functions.
    (2) A driver may have two employers. For example, a driver may fly 
for one employer and drive for another. That driver will be subject to 
two random testing requirements and will generally be in two different 
pools. As discussed above, however, the driver could be covered by one 
random testing pool, e.g., one run by a consortium; in both situations, 
the driver will be subject to random testing in either job.
    This rule will require that drivers cease safety-sensitive 
functions in every mode of transportation, once determined to be in 
violation of any one of the OA rules. We also have been consulting with 
other federal agencies during this rulemaking proceeding in an attempt 
to make Federal government rules as consistent as possible. The 
Department of Energy (DOE) already has issued a similar rule on alcohol 
misuse for drivers in nuclear facilities. To avoid any potential 
conflict, DOE officials have indicated that they plan to defer to the 
DOT rules where there are entities covered by both programs.

Self-Identification/Peer-Referral Programs

    Since the FHWA's primary purpose is to deter drivers from having 
alcohol and controlled substances in their systems while performing 
safety-sensitive functions, drivers should be able to identify 
themselves as unfit to work. The FHWA encourages employers to establish 
self-identification or peer-referral programs and encourage drivers to 
use them. These programs, which already exist in some segments of the 
highway transportation industries, generally allow a driver to decline, 
without penalty, to perform or continue to perform her job if the 
driver knows that she is or may be impaired by alcohol or controlled 
substances. The FHWA will not require self-identification programs, 
because we believe that they are a matter more appropriate for labor/
management negotiations. The successful implementation of such programs 
depends upon joint labor-management commitment to an alcohol/drug-free 
work environment.
    Any such program, however, could not interfere with the tests 
required by these rules. For example, a driver could not identify 
himself as unfit to drive after having been notified of a random or 
reasonable suspicion test and expect to avoid the consequences for a 
positive test or a refusal to test. Such a program could, however, 
permit a driver to initiate a voluntary alcohol test to determine 
whether the driver is in violation of these rules, without fear of 
consequences required by this rule, regardless of the test results.

Education

    There is some disagreement about the respective effectiveness of 
education vis-a-vis enforcement. Some researchers claim that education 
is more effective in preventing alcohol misuse than apprehension of the 
abuser. The American Automobile Association Foundation for Traffic 
Safety compared eight states that adopted tougher drunk driving laws 
with six that did not. The new laws had no effect at all on traffic 
fatalities. The Foundation attributes the overall decline in U.S. 
traffic-related deaths between 1980 and 1985 to public awareness 
campaigns by such groups as Mothers Against Drunk Driving (MADD). A 
Boston University researcher similarly concluded that social pressure 
and publicity ``may be as important as government regulations in 
reducing drunk driving and fatal crashes.'' (Both quoted in ``USA 
Today'', Wednesday, August 3, 1988.)
    These studies have been criticized as poorly designed and 
misleading, since education programs were never isolated as an 
independent variable for comparison. NHTSA believes that the most 
effective programs are those that combine education and enforcement. 
Public information and education programs, in the absence of 
enforcement activities or sanctions, have never been shown to have an 
impact on alcohol-related fatal crashes. Conversely, scores of studies 
have found that programs involving enhanced enforcement, roadside 
sobriety checkpoints, and the use of sanctions such as license 
suspensions frequently have resulted in significant reductions of 
alcohol-related fatalities. Although there is disagreement on the 
effectiveness of education alone, it appears that using education as an 
adjunct to deterrent measures will make both more effective.

Removal of Part 391, Subpart H

    The present regulations for controlled substances testing are 
contained as a subpart to the FHWA's driver qualification regulations 
in part 391, and are applicable only to drivers subject to part 391. 
Generally, parts 390 through 399 of title 49 subchapter B are 
applicable to motor carriers and drivers who operate in interstate 
commerce. The Omnibus Act requires the FHWA to expand the scope of 
persons required to be tested beyond those subject to part 391. This 
rule will completely replace 49 CFR part 391, subpart H controlled 
substances testing on January 1, 1996.
    The Omnibus Act requires all operators of CMVs to be tested for 
controlled substances and alcohol. This encompasses far more drivers 
than have been subject to parts 390 through 399. It applies to all 
drivers required to obtain a CDL. Drivers to which Federal drug testing 
requirements are newly applicable include, but are not limited to 
drivers and their employers operating wholly in intrastate commerce, 
employed directly by Federal, State and local governments, including 
school districts, and drivers with restricted-use CDLs or drivers in a 
State that does not recognize State option waiver CDLs (farm vehicle 
operators, firefighters and operators of emergency equipment).
    The FHWA will make part 391, subpart H ineffective on the two 
implementation dates of part 382 to enable motor carriers to continue 
to use the existing regulations until all requirements of part 382 are 
to be complied with fully. Table I shows the existing regulations at 49 
CFR part 391, subpart H and the section where the FHWA has moved the 
existing regulation into this rule.

                                                    Table I                                                     
----------------------------------------------------------------------------------------------------------------
                 Name                        Old section                 Change                New section      
----------------------------------------------------------------------------------------------------------------
Purpose and scope....................  391.81(a)..............  .......................  382.101                
                                       391.81(b)..............  Removed................                         
                                       391.81(c)..............  Removed................                         
Applicability........................  391.83.................  Omnibus Act............  382.103                
Definitions..........................  391.85.................  .......................  382.107                
Notifications of test results and      391.87(a)..............  .......................  382.407(a)             
 recordkeeping.                                                                                                 
                                       391.87(b)..............  .......................  382.411(a)             
                                       391.87(c)..............  .......................  382.411(a)             
                                       391.87(d)..............  .......................  382.401                
                                       391.87(e)..............  Removed................  .......................
                                       391.87(f)..............  .......................  382.407(a)             
                                       391.87(g)..............  .......................  382.405(c)             
                                       391.87(h)..............  .......................  382.403                
Access to individual test results or   391.89(a)..............  .......................  382.405(a)             
 test findings.                                                                                                 
                                       391.89(b)..............  .......................  382.405(b)             
Implementation schedule..............  391.93.................  .......................  382.115                
Drug use prohibitions................  391.95(a)..............  .......................  382.213                
                                       391.95(b)..............  .......................  382.215                
                                       391.95(c)..............  Removed................  .......................
                                       391.95(d)..............  .......................  382.211                
Prescribed drugs; Affirmative defense  391.97.................  .......................  40.33(c)               
Reasonable cause testing requirements  391.99.................  .......................  382.307                
                                       391.101................  .......................  .......................
Pre-employment testing requirements..  391.103................  .......................  382.301                
Biennial (periodic) testing            391.105&391.107........  Removed................  .......................
 requirements.                                                                                                  
Randomtestingrequirements............  391.109................  .......................  382.305                
Random testing exceptions............  391.109(d).............  Removed................  .......................
Post-accident testing................  391.113................  Omnibus Act............  382.303                
Disqualifications....................  391.117................  Removed................  .......................
Employee Assistance Program..........  391.119................  Omnibus Act............  382.601                
EAP Training Program.................  391.121................  .......................  382.603                
After-care Monitoring................  391.123................  .......................  382.605(c)             
----------------------------------------------------------------------------------------------------------------

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action is a significant 
regulatory action within the meaning of Executive Order 12866. This 
rule has been reviewed under this order. It is significant within the 
meaning of Department of Transportation regulatory policies and 
procedures, too. It is anticipated that the economic impact of this 
rulemaking will be substantial; therefore, a full regulatory evaluation 
is required and has been prepared. The regulatory evaluation is 
included in the docket.

Executive Order 12875 (Enhancing the Intergovernmental Partnership)

    The FHWA has determined that this action's NPRM published on 
December 15, 1992 (57 FR 59516) contained a requirement that must be 
analyzed in accordance with Executive Order 12875. The FHWA has 
reviewed the final rule under this order. The FHWA has determined that 
the proposed requirement for random roadside alcohol testing by State 
and local law enforcement officials would mandate States to perform 
roadside alcohol testing on commercial motor vehicle drivers. The 
requirement would not completely reimburse States for the cost of such 
a mandated program. The FHWA has decided not to mandate roadside 
alcohol testing as proposed, because of many factors including this 
Executive Order. See the section ``Other Issues--Motor Carrier Safety 
Assistance Program (MCSAP)'' in Limitations of Alcohol Use by 
Transportation Workers elsewhere in today's Federal Register for 
further discussion of the FHWA's and the DOT's analysis of this 
Executive Order as it relates to this final rule.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the FHWA has evaluated the effects of this rule on 
small entities. This final rule will require employers to test drivers 
for the use of alcohol and controlled substances. It will have a 
significant economic impact on small entities. The FHWA has lessened 
the economic impact on small entities by allowing them an additional 
year to comply with the rule over and above the time given to large 
employers.

Executive Order 12612 (Federalism Assessment)

    This action adds part 382 to the FMCSRs pertaining to testing for 
alcohol and controlled substances by drivers of commercial motor 
vehicles operating in commerce on public roads and highways. These 
requirements directly affect employers and their drivers, including 
State and local employers and their drivers. The rule also will 
regulate employers and drivers who have historically been regulated 
only by their State of residence or where the employer's business is 
located. These requirements preempt State and local laws, regulations, 
rules, and orders that are inconsistent with the requirements of this 
rule. The preemption authority for this document was specifically 
provided for under 49 U.S.C. app. 2717, Section 12020(e)(1) of the 
Omnibus Transportation Employee Testing Act of 1991.
    Under the Motor Carrier Safety Assistance Program, States will not 
be required to adopt compatible part 382 regulations for drug or 
alcohol testing as a condition for receiving grant monies under the 
program.
    For the reasons set forth above, the agency is not required to 
prepare a Federalism Assessment for this proposal.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities applies to this program.

Paperwork Reduction Act

    The information collection requirements in part 382 of this rule 
have been submitted to the Office of Management and Budget for approval 
under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. 
Information collection requirements are not effective until Paperwork 
Reduction Act clearance has been received.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that this action will not have any effect on the quality of 
the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN number contained in the 
heading of this document can be used to cross reference this action 
with the Unified Agenda.

List of Subjects in 49 CFR Parts 382, 391, 392 and 395

    Alcohol testing, Controlled substances testing, Highways and roads, 
Highway safety, Motor carriers, Motor vehicle safety.

    Issued on: January 25, 1994.
Federico Pena,
Secretary of Transportation.
Rodney E. Slater,
Federal Highway Administrator.
    In consideration of the foregoing, the FHWA proposes to amend title 
49, CFR subtitle B, chapter III, parts 391, 392, and 395, and add part 
382 as set forth below:
    1. Chapter III is amended by adding part 382 as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

Subpart A--General

Sec.
382.101  Purpose.
382.103  Applicability.
382.105  Testing procedures.
382.107  Definitions.
382.109  Preemption of State and local laws.
382.111  Other requirements imposed by employers.
382.113  Requirement for notice.
382.115  Starting date for testing programs.

Subpart B--Prohibitions

382.201  Alcohol concentration.
382.204  Alcohol possession.
382.205  On-duty use.
382.207  Pre-duty use.
382.209  Use following an accident.
382.211  Refusal to submit to a required alcohol or controlled 
substances test.
382.213  Controlled substances use.
382.215  Controlled substances testing.

Subpart C--Tests Required

382.301  Pre-employment testing.
382.303  Post-accident testing.
382.305  Random testing.
382.307  Reasonable suspicion testing.
382.309  Return-to-duty testing.
382.311  Follow-up testing.

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

382.401  Retention of records.
382.403  Reporting of results in a management information system.
382.405  Access to facilities and records.
382.407  Medical review officer notifications to the employer.
382.409  Medical review officer record retention for controlled 
substances.
382.411  Employer notifications.
382.413  Release of alcohol and controlled substances test 
information by previous employers.

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

382.501  Removal from safety-sensitive function.
382.503  Required evaluation and testing.
382.505  Other alcohol-related conduct.
382.507  Penalties.

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

382.601  Motor carrier obligation to promulgate a policy on the 
misuse of alcohol and use of controlled substances.
382.603  Training for supervisors.
382.605  Referral, evaluation, and treatment.

    Authority: 49 U.S.C. app. 2505; 49 U.S.C. app. 2701 et seq.; 49 
U.S.C. 3102; 49 CFR 1.48.

Subpart A--General


Sec. 382.101  Purpose.

    The purpose of this part is to establish programs designed to help 
prevent accidents and injuries resulting from the misuse of alcohol or 
use of controlled substances by drivers of commercial motor vehicles.


Sec. 382.103  Applicability.

    (a) This part applies to every person who operates a commercial 
motor vehicle in interstate or intrastate commerce, and is subject to 
the commercial driver's license requirements of part 383 of this 
subchapter.
    (b) An employer who employs himself/herself as a driver must comply 
with both the requirements in this part that apply to employers and the 
requirements in this part that apply to drivers. An employer who 
employs only himself/herself as a driver shall implement an alcohol and 
controlled substances testing program that includes more persons than 
himself/herself as covered employees in the random testing pool.
    (c) This part shall not apply to employers and their drivers:
    (1) Required to comply with the alcohol and/or controlled 
substances testing requirements of parts 653 and 654 of this title; or
    (2) Granted a full waiver from the requirements of the commercial 
driver's license program; or
    (3) Granted an optional State waiver from the requirements of part 
383 of this subchapter; or
    (4) Of foreign domiciled operations, with respect to any driver 
whose place of reporting for duty (home terminal) for commercial motor 
vehicle transportation services is located outside the territory of the 
United States.


Sec. 382.105  Testing procedures.

    Each employer shall ensure that all alcohol or controlled 
substances testing conducted under this part complies with the 
procedures set forth in part 40 of this title. The provisions of part 
40 of this title that address alcohol or controlled substances testing 
are made applicable to employers by this part.


Sec. 382.107  Definitions.

    Words or phrases used in this part are defined in Secs. 386.2 and 
390.5 of this subchapter, and Sec. 40.3 or Sec. 40.73 of this title, 
except as provided herein--
    Alcohol means the intoxicating agent in beverage alcohol, ethyl 
alcohol, or other low molecular weight alcohols including methyl and 
isopropyl alcohol.
    Alcohol concentration (or content) means the alcohol in a volume of 
breath expressed in terms of grams of alcohol per 210 liters of breath 
as indicated by an evidential breath test under this part.
    Alcohol use means the consumption of any beverage, mixture, or 
preparation, including any medication, containing alcohol.
    Commerce means (1) Any trade, traffic or transportation within the 
jurisdiction of the United States between a place in a State and a 
place outside of such State, including a place outside of the United 
States and (2) trade, traffic, and transportation in the United States 
which affects any trade, traffic, and transportation described in 
paragraph (1) of this definition.
    Commercial motor vehicle means a motor vehicle or combination of 
motor vehicles used in commerce to transport passengers or property if 
the motor vehicle--
    (1) Has a gross combination weight rating of 26,001 or more pounds 
inclusive of a towed unit with a gross vehicle weight rating of more 
than 10,000 pounds; or
    (2) Has a gross vehicle weight rating of 26,001 or more pounds; or
    (3) Is designed to transport 16 or more passengers, including the 
driver; or
    (4) Is of any size and is used in the transportation of materials 
found to be hazardous for the purposes of the Hazardous Materials 
Transportation Act and which require the motor vehicle to be placarded 
under the Hazardous Materials Regulations (49 CFR part 172, subpart F).
    Confirmation test For alcohol testing means a second test, 
following a screening test with a result of 0.02 or greater, that 
provides quantitative data of alcohol concentration. For controlled 
substances testing means a second analytical procedure to identify the 
presence of a specific drug or metabolite which is independent of the 
screen test and which uses a different technique and chemical principle 
from that of the screen test in order to ensure reliability and 
accuracy. (Gas chromatography/mass spectrometry (GC/MS) is the only 
authorized confirmation method for cocaine, marijuana, opiates, 
amphetamines, and phencyclidine.)
    Consortium means an entity, including a group or association of 
employers or contractors, that provides alcohol or controlled 
substances testing as required by this part, or other DOT alcohol or 
controlled substances testing rules, and that acts on behalf of the 
employers.
    DOT Agency means an agency (or ``operating administration'') of the 
United States Department of Transportation administering regulations 
requiring alcohol and/or drug testing (14 CFR parts 61, 63, 65, 121, 
and 135; 49 CFR parts 199, 219, 382, 653 and 654), in accordance with 
part 40 of this title.
    Driver means any person who operates a commercial motor vehicle. 
This includes, but is not limited to: full time, regularly employed 
drivers; casual, intermittent or occasional drivers; leased drivers and 
independent, owner-operator contractors who are either directly 
employed by or under lease to an employer or who operate a commercial 
motor vehicle at the direction of or with the consent of an employer. 
For the purposes of pre-employment/pre-duty testing only, the term 
driver includes a person applying to an employer to drive a commercial 
motor vehicle.
    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 commercial motor vehicle or assigns persons to operate such a 
vehicle. The term employer includes an employer's agents, officers and 
representatives.
    Performing (a safety-sensitive function) means a driver is 
considered to be performing a safety-sensitive function during any 
period in which he or she is actually performing, ready to perform, or 
immediately available to perform any safety-sensitive functions.
    Refuse to submit (to an alcohol or controlled substances test) 
means that a driver (1) Fails to provide adequate breath for testing 
without a valid medical explanation after he or she has received notice 
of the requirement for breath testing in accordance with the provisions 
of this part, (2) fails to provide adequate urine for controlled 
substances testing without a valid medical explanation after he or she 
has received notice of the requirement for urine testing in accordance 
with the provisions of this part, or (3) engages in conduct that 
clearly obstructs the testing process.
    Safety-sensitive function means any of those on-duty functions set 
forth in Sec. 395.2 On-Duty time, paragraphs (1) through (7) of this 
chapter.
    Screening test (also known as initial test). In alcohol testing, it 
means an analytical procedure to determine whether a driver may have a 
prohibited concentration of alcohol in his or her system. In controlled 
substance testing, it means an immunoassay screen to eliminate 
``negative'' urine specimens from further consideration.
    Substance abuse professional means a licensed physician (Medical 
Doctor or Doctor of Osteopathy), or a licensed or certified 
psychologist, social worker, employee assistance professional, or 
addiction counselor (certified by the National Association of 
Alcoholism and Drug Abuse Counselors Certification Commission) with 
knowledge of and clinical experience in the diagnosis and treatment of 
alcohol and controlled substances-related disorders.
    Violation rate means the number of drivers (as reported under 
Sec. 382.305 of this part) found during random tests given under this 
part to have an alcohol concentration of 0.04 or greater, plus the 
number of drivers who refuse a random test required by this part, 
divided by the total reported number of drivers in the industry given 
random alcohol tests under this part plus the total reported number of 
drivers in the industry who refuse a random test required by this part.


Sec. 382.109  Preemption of State and local laws.

    (a) Except as provided in paragraph (b) of this section, this part 
preempts any State or local law, rule, regulation, or order to the 
extent that:
    (1) Compliance with both the State or local requirement and this 
part is not possible; or
    (2) Compliance with the State or local requirement is an obstacle 
to the accomplishment and execution of any requirement in this part.
    (b) This part shall not be construed to preempt provisions of State 
criminal law that impose sanctions for reckless conduct leading to 
actual loss of life, injury, or damage to property, whether the 
provisions apply specifically to transportation employees, employers, 
or the general public.


Sec. 382.111  Other requirements imposed by employers.

    Except as expressly provided in this part, nothing in this part 
shall be construed to affect the authority of employers, or the rights 
of drivers, with respect to the use or possession of alcohol, or the 
use of controlled substances, including authority and rights with 
respect to testing and rehabilitation.


Sec. 382.113  Requirement for notice.

    Before performing an alcohol or controlled substances test under 
this part, each employer shall notify a driver that the alcohol or 
controlled substances test is required by this part. No employer shall 
falsely represent that a test is administered under this part.


Sec. 382.115  Starting date for testing programs.

    (a) Large employers. Each employer with fifty or more drivers on 
March 17, 1994, shall implement the requirements of this part beginning 
on January 1, 1995.
    (b) Small employers. Each employer with fewer than fifty drivers on 
March 17, 1994, shall implement the requirements of this part beginning 
on January 1, 1996.
    (c) All employers shall have alcohol and controlled substances 
programs that conform to this part by the date in paragraph (a) or (b) 
of this section, whichever is applicable, or by the date an employer 
begins commercial motor vehicle operations, whichever is later.

Subpart B--Prohibitions


Sec. 382.201  Alcohol concentration.

    No driver shall report for duty or remain on duty requiring the 
performance of safety-sensitive functions while having an alcohol 
concentration of 0.04 or greater. No employer having actual knowledge 
that a driver has an alcohol concentration of 0.04 or greater shall 
permit the driver to perform or continue to perform safety-sensitive 
functions.


Sec. 382.204  Alcohol possession.

    No driver shall be on duty or operate a commercial motor vehicle 
while the driver possesses alcohol, unless the alcohol is manifested 
and transported as part of a shipment. No employer having actual 
knowledge that a driver possesses unmanifested alcohol may permit the 
driver to drive or continue to drive a commercial motor vehicle.


Sec. 382.205  On-duty use.

    No driver shall use alcohol while performing safety-sensitive 
functions. No employer having actual knowledge that a driver is using 
alcohol while performing safety-sensitive functions shall permit the 
driver to perform or continue to perform safety-sensitive functions.


Sec. 382.207  Pre-duty use.

    No driver shall perform safety-sensitive functions within four 
hours after using alcohol. No employer having actual knowledge that a 
driver has used alcohol within four hours shall permit a driver to 
perform or continue to perform safety-sensitive functions.


Sec. 382.209  Use following an accident.

    No driver required to take a post-accident alcohol test under 
Sec. 382.303 of this part shall use alcohol for eight hours following 
the accident, or until he/she undergoes a post-accident alcohol test, 
whichever occurs first.


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

    No driver shall refuse to submit to a post-accident alcohol or 
controlled substances test required under Sec. 382.303, a random 
alcohol or controlled substances test required under Sec. 382.305, a 
reasonable suspicion alcohol or controlled substances test required 
under Sec. 382.307, or a follow-up alcohol or controlled substances 
test required under Sec. 382.311. No employer shall permit a driver who 
refuses to submit to such tests to perform or continue to perform 
safety-sensitive functions.


Sec. 382.213  Controlled substances use.

    (a) No driver shall report for duty or remain on duty requiring the 
performance of safety-sensitive functions when the driver uses any 
controlled substance, except when the use is pursuant to the 
instructions of a physician who has advised the driver that the 
substance does not adversely affect the driver's ability to safely 
operate a commercial motor vehicle.
    (b) No employer having actual knowledge that a driver has used a 
controlled substance shall permit the driver to perform or continue to 
perform a safety-sensitive function.
    (c) An employer may require a driver to inform the employer of any 
therapeutic drug use.


Sec. 382.215  Controlled substances testing.

    No driver shall report for duty, remain on duty or perform a 
safety-sensitive function, if the driver tests positive for controlled 
substances. No employer having actual knowledge that a driver has 
tested positive for controlled substances shall permit the driver to 
perform or continue to perform safety-sensitive functions.

Subpart C--Tests Required


Sec. 382.301  Pre-employment testing.

    (a) Prior to the first time a driver performs safety-sensitive 
functions for an employer, the driver shall undergo testing for alcohol 
and controlled substances. No employer shall allow a driver to perform 
safety-sensitive functions unless the driver has been administered an 
alcohol test with a result indicating an alcohol concentration less 
than 0.04, and has received a controlled substances test result from 
the medical review officer indicating a verified negative test result. 
If a pre-employment alcohol test result under this section indicates an 
alcohol content of 0.02 or greater but less than 0.04, the provisions 
of Sec. 382.505 shall apply.
    (b) Exception for pre-employment alcohol testing. An employer is 
not required to administer an alcohol test required by paragraph (a) of 
this section if:
    (1) The driver has undergone an alcohol test required by this 
section or the alcohol misuse rule of another DOT agency under part 40 
of this title within the previous six months, with a result indicating 
an alcohol concentration less than 0.04; and
    (2) The employer ensures that no prior employer of the driver of 
whom the employer has knowledge has records of a violation of this part 
or the alcohol misuse rule of another DOT agency within the previous 
six months.
    (c) Exception for pre-employment controlled substances testing. An 
employer is not required to administer a controlled substances test 
required by paragraph (a) of this section if:
    (1) The driver has participated in a drug testing program that 
meets the requirements of this part within the previous 30 days; and
    (2) While participating in that program, either
    (i) Was tested for controlled substances within the past 6 months 
(from the date of application with the employer) or
    (ii) Participated in a random controlled substances testing program 
for the previous 12 months (from the date of application with the 
employer); and
    (3) The employer ensures that no prior employer of the driver of 
whom the employer has knowledge has records of a violation of this part 
or the controlled substance use rule of another DOT agency within the 
previous six months.
    (d) (1) An employer who exercises either paragraph (b) or (c) of 
this section shall contact the alcohol and/or controlled substances 
testing program(s) in which the driver participates or participated and 
shall obtain from the testing program(s) the following information:
    (i) Name(s) and address(es) of the program(s).
    (ii) Verification that the driver participates or participated in 
the program(s).
    (iii) Verification that the program(s) conform to part 40 of this 
title.
    (iv) Verification that the driver is qualified under the rules of 
this part, including that the driver has not refused to be tested for 
alcohol or controlled substances.
    (v) The date the driver was last tested for alcohol and controlled 
substances.
    (vi) The results of any tests taken within the previous six months 
and any other violations of subpart B of this part.
    (2) An employer who uses, but does not employ, a driver more than 
once a year must assure itself once every six months that the driver 
participates in an alcohol and controlled substances testing program(s) 
that meets the requirements of this part.


Sec. 382.303  Post-accident testing.

    (a) As soon as practicable following an accident involving a 
commercial motor vehicle, each employer shall test for alcohol and 
controlled substances each surviving driver:
    (1) Who was performing safety-sensitive functions with respect to 
the vehicle, if the accident involved the loss of human life; or
    (2) Who receives a citation under State or local law for a moving 
traffic violation arising from the accident.
    (b) (1) Alcohol tests. If a test required by this section is not 
administered within two hours following the accident, the employer 
shall prepare and maintain on file a record stating the reasons the 
test was not promptly administered. If a test required by this section 
is not administered within eight hours following the accident, the 
employer shall cease attempts to administer an alcohol test and shall 
prepare and maintain the same record. Records shall be submitted to the 
FHWA upon request of the Associate Administrator.
    (2) Controlled substance tests. If a test required by this section 
is not administered within 32 hours following the accident, the 
employer shall cease attempts to administer a controlled substances 
test, and prepare and maintain on file a record stating the reasons the 
test was not promptly administered. Records shall be submitted to the 
FHWA upon request of the Associate Administrator.
    (c) A driver who is subject to post-accident testing shall remain 
readily available for such testing or may be deemed by the employer to 
have refused to submit to testing. Nothing in this section shall be 
construed to require the delay of necessary medical attention for 
injured people following an accident or to prohibit a driver from 
leaving the scene of an accident for the period necessary to obtain 
assistance in responding to the accident, or to obtain necessary 
emergency medical care.
    (d) An employer shall provide drivers with necessary post-accident 
information, procedures and instructions, prior to the driver operating 
a commercial motor vehicle, so that drivers will be able to comply with 
the requirements of this section.
    (e) The results of a breath or blood test for the use of alcohol or 
a urine test for the use of controlled substances, conducted by 
Federal, State, or local officials having independent authority for the 
test, shall be considered to meet the requirements of this section, 
provided such tests conform to applicable Federal, State or local 
requirements, and that the results of the tests are obtained by the 
employer.


Sec. 382.305  Random testing.

    (a) (1) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random alcohol testing 
shall be 25 percent of the average number of driver positions.
    (2) The minimum annual percentage rate for random controlled 
substances testing shall be 50 percent of the average number of driver 
positions.
    (b) The FHWA Administrator's decision to increase or decrease the 
minimum annual percentage rate for alcohol testing is based on the 
reported violation rate for the entire industry. All information used 
for this determination is drawn from the alcohol management information 
system reports required by Sec. 382.403 of this part. In order to 
ensure reliability of the data, the FHWA Administrator considers the 
quality and completeness of the reported data, may obtain additional 
information or reports from employers, and may make appropriate 
modifications in calculating the industry violation rate. Each year, 
the FHWA Administrator will publish in the Federal Register the minimum 
annual percentage rate for random alcohol testing of drivers. The new 
minimum annual percentage rate for random alcohol testing will be 
applicable starting January 1 of the calendar year following 
publication.
    (c) (1) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or more, the FHWA Administrator may lower this 
rate to 10 percent of all drivers if the FHWA Administrator determines 
that the data received under the reporting requirements of Sec. 382.403 
for two consecutive calendar years indicate that the violation rate is 
less than 0.5 percent.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 50 percent, the FHWA Administrator may lower this rate to 25 
percent of all drivers if the FHWA Administrator determines that the 
data received under the reporting requirements of Sec. 382.403 for two 
consecutive calendar years indicate that the violation rate is less 
than 1.0 percent but equal to or greater than 0.5 percent.
    (d) (1) When the minimum annual percentage rate for random alcohol 
testing is 10 percent, and the data received under the reporting 
requirements of Sec. 382.403 for that calendar year indicate that the 
violation rate is equal to or greater than 0.5 percent, but less than 
1.0 percent, the FHWA Administrator will increase the minimum annual 
percentage rate for random alcohol testing to 25 percent for all 
drivers.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or less, and the data received under the 
reporting requirements of Sec. 382.403 for that calendar year indicate 
that the violation rate is equal to or greater than 1.0 percent, the 
FHWA Administrator will increase the minimum annual percentage rate for 
random alcohol testing to 50 percent for all drivers.
    (e) The selection of drivers from random alcohol and controlled 
substances testing shall be made by a scientifically valid method, such 
as a random number table of a computer-based random number generator 
that is matched with drivers' Social Security numbers, payroll 
identification numbers, or other comparable identifying numbers. Under 
the selection process used, each driver shall have an equal chance of 
being tested each time selections are made.
    (f) The employer shall randomly select a sufficient number of 
drivers for alcohol testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
alcohol testing determined by the FHWA Administrator. For controlled 
substances testing, the employer shall randomly select a sufficient 
number of drivers for controlled substances testing during each 
calendar year to equal an annual rate not less than the minimum annual 
percentage rate of 50 percent of drivers. If the employer conducts 
random testing for alcohol and/or controlled substances through a 
consortium, the number of drivers to be tested may be calculated for 
each individual employer or may be based on the total number of drivers 
covered by the consortium who are subject to random alcohol and/or 
controlled substances testing at the same minimum annual percentage 
rate under this part or any DOT alcohol or controlled substances 
testing rule.
    (g) Each employer shall ensure that random alcohol and controlled 
substances tests conducted under this part are unannounced and that the 
dates for administering random alcohol and controlled substances tests 
are spread reasonably throughout the calendar year.
    (h) Each employer shall require that each driver who is notified of 
selection for random alcohol and/or controlled substances testing 
proceeds to the test site immediately; provided, however, that if the 
driver is performing a safety-sensitive function at the time of 
notification, the employer shall instead ensure that the driver ceases 
to perform the safety-sensitive function and proceeds to the testing 
site as soon as possible.
    (i) A driver shall only be tested for alcohol while the driver is 
performing safety-sensitive functions, just before the driver is to 
perform safety-sensitive functions, or just after the driver has ceased 
performing such functions.
    (j) If a given driver is subject to random alcohol or controlled 
substances testing under the alcohol or controlled substances testing 
rules of more than one DOT agency for the same employer, the driver 
shall be subject to random alcohol and/or controlled substances testing 
at the minimum annual percentage rate established for the calendar year 
by the DOT agency regulating more than 50 percent of the driver's 
function.
    (k) If an employer is required to conduct random alcohol or 
controlled substances testing under the alcohol or controlled 
substances testing rules of more than one DOT agency, the employer 
may--
    (1) Establish separate pools for random selection, with each pool 
containing the DOT-covered employees who are subject to testing at the 
same required minimum annual percentage rate; or
    (2) Randomly select such employees for testing at the highest 
minimum annual percentage rate established for the calendar year by any 
DOT agency to which the employer is subject.


Sec. 382.307  Reasonable suspicion testing.

    (a) An employer shall require a driver to submit to an alcohol test 
when the employer has reasonable suspicion to believe that the driver 
has violated the prohibitions of subpart B of this part concerning 
alcohol, except for Sec. 382.204. The employer's determination that 
reasonable suspicion exists to require the driver to undergo an alcohol 
test must be based on specific, contemporaneous, articulable 
observations concerning the appearance, behavior, speech or body odors 
of the driver.
    (b) An employer shall require a driver to submit to a controlled 
substances test when the employer has reasonable suspicion to believe 
that the driver has violated the prohibitions of subpart B of this part 
concerning controlled substances. The employer's determination that 
reasonable suspicion exists to require the driver to undergo a 
controlled substances test must be based on specific, contemporaneous, 
articulable observations concerning the appearance, behavior, speech or 
body odors of the driver. The observations may include indications of 
the chronic and withdrawal effects of controlled substances.
    (c) The required observations for alcohol and/or controlled 
substances reasonable suspicion testing shall be made by a supervisor 
or company official who is trained in accordance with Sec. 382.603 of 
this part. The person who makes the determination that reasonable 
suspicion exists to conduct an alcohol test shall not conduct the 
alcohol test of the driver.
    (d) Alcohol testing is authorized by this section only if the 
observations required by paragraph (a) of this section are made during, 
just preceding, or just after the period of the work day that the 
driver is required to be in compliance with this part. A driver may be 
directed by the employer to only undergo reasonable suspicion testing 
while the driver is performing safety-sensitive functions, just before 
the driver is to perform safety-sensitive functions, or just after the 
driver has ceased performing such functions.
    (e) (1) If an alcohol test required by this section is not 
administered within two hours following the determination under 
paragraph (a) of this section, the employer shall prepare and maintain 
on file a record stating the reasons the alcohol test was not promptly 
administered. If an alcohol test required by this section is not 
administered within eight hours following the determination under 
paragraph (a) of this section, the employer shall cease attempts to 
administer an alcohol test and shall state in the record the reasons 
for not administering the test.
    (2) Notwithstanding the absence of a reasonable suspicion alcohol 
test under this section, no driver shall report for duty or remain on 
duty requiring the performance of safety-sensitive functions while the 
driver is under the influence of or impaired by alcohol, as shown by 
the behavioral, speech, and performance indicators of alcohol misuse, 
nor shall an employer permit the driver to perform or continue to 
perform safety-sensitive functions, until:
    (i) An alcohol test is administered and the driver's alcohol 
concentration measures less than 0.02; or
    (ii) Twenty four hours have elapsed following the determination 
under paragraph (a) of this section that there is reasonable suspicion 
to believe that the driver has violated the prohibitions in this part 
concerning the use of alcohol.
    (3) Except as provided in paragraph (e)(2) of this section, no 
employer shall take any action under this part against a driver based 
solely on the driver's behavior and appearance, with respect to alcohol 
use, in the absence of an alcohol test. This does not prohibit an 
employer with independent authority of this part from taking any action 
otherwise consistent with law.
    (f) A written record shall be made of the observations leading to a 
controlled substance reasonable suspicion test, and signed by the 
supervisor or company official who made the observations, within 24 
hours of the observed behavior or before the results of the controlled 
substances test are released, whichever is earlier.


Sec. 382.309  Return-to-duty testing.

    (a) Each employer shall ensure that before a driver returns to duty 
requiring the performance of a safety-sensitive function after engaging 
in conduct prohibited by subpart B of this part concerning alcohol, the 
driver shall undergo a return-to-duty alcohol test with a result 
indicating an alcohol concentration of less than 0.02.
    (b) Each employer shall ensure that before a driver returns to duty 
requiring the performance of a safety-sensitive function after engaging 
in conduct prohibited by subpart B of this part concerning controlled 
substances, the driver shall undergo a return-to-duty controlled 
substances test with a result indicating a verified negative result for 
controlled substances use.


Sec. 382.311  Follow-up testing.

    (a) Following a determination under Sec. 382.605(b) that a driver 
is in need of assistance in resolving problems associated with alcohol 
misuse and/or use of controlled substances, each employer shall ensure 
that the driver is subject to unannounced follow-up alcohol and/or 
controlled substances testing as directed by a substance abuse 
professional in accordance with the provisions of 
Sec. 382.605(c)(2)(ii).
    (b) Follow-up alcohol testing shall be conducted only when the 
driver is performing safety-sensitive functions, just before the driver 
is to perform safety-sensitive functions, or just after the driver has 
ceased performing safety-sensitive functions.

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


Sec. 382.401  Retention of records.

    (a) General Requirement. Each employer shall maintain records of 
its alcohol misuse and controlled substances use prevention programs as 
provided in this section. The records shall be maintained in a secure 
location with controlled access.
    (b) Period of Retention. Each employer shall maintain the records 
in accordance with the following schedule:
    (1) Five years. The following records shall be maintained for a 
minimum of five years:
    (i) Records of driver alcohol test results with results indicating 
an alcohol concentration of 0.02 or greater,
    (ii) Records of driver verified positive controlled substances test 
results,
    (iii) Documentation of refusals to take required alcohol and/or 
controlled substances tests,
    (iv) Calibration documentation,
    (v) Driver evaluation and referrals shall be maintained for a 
minimum of five years, and
    (vi) A copy of each annual calendar year summary required by 
Sec. 382.403.
    (2) Two years. Records related to the alcohol and controlled 
substances collection process (except calibration of evidential breath 
testing devices) and training shall be maintained for a minimum of two 
years.
    (3) One year. Records of negative and canceled controlled 
substances test results (as defined in part 40 of this title) and 
alcohol test results with a concentration of less than 0.02 shall be 
maintained for a minimum of one year.
    (c) Types of records. The following specific records shall be 
maintained.
    (1) Records related to the collection process:
    (i) Collection logbooks, if used;
    (ii) Documents relating to the random selection process;
    (iii) Calibration documentation for evidential breath testing 
devices;
    (iv) Documentation of breath alcohol technician training;
    (v) Documents generated in connection with decisions to administer 
reasonable suspicion alcohol or controlled substances tests;
    (vi) Documents generated in connection with decisions on post-
accident tests;
    (vii) Documents verifying existence of a medical explanation of the 
inability of a driver to provide adequate breath or to provide a urine 
specimen for testing; and
    (viii) Consolidated annual calendar year summaries as required by 
Sec. 382.403.
    (2) Records related to a driver's test results:
    (i) The employer's copy of the alcohol test form, including the 
results of the test;
    (ii) The employer's copy of the controlled substances test chain of 
custody and control form;
    (iii) Documents sent by the medical review officer to the employer, 
including those required by Sec. 382.407(a).
    (iv) Documents related to the refusal of any driver to submit to an 
alcohol or controlled substances test required by this part; and
    (v) Documents presented by a driver to dispute the result of an 
alcohol or controlled substances test administered under this part.
    (3) Records related to other violations of this part.
    (4) Records related to evaluations:
    (i) Records pertaining to a determination by a substance abuse 
professional concerning a driver's need for assistance; and
    (ii) Records concerning a driver's compliance with recommendations 
of the substance abuse professional.
    (5) Records related to education and training:
    (i) Materials on alcohol misuse and controlled substance use 
awareness, including a copy of the employer's policy on alcohol misuse 
and controlled substance use;
    (ii) Documentation of compliance with the requirements of 
Sec. 382.601, including the driver's signed receipt of education 
materials;
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination 
concerning the need for alcohol and/or controlled substances testing 
based on reasonable suspicion; and
    (iv) Certification that any training conducted under this part 
complies with the requirements for such training.
    (6) Records related to drug testing:
    (i) Agreements with collection site facilities, laboratories, 
medical review officers, and consortia;
    (ii) Names and positions of officials and their role in the 
employer's alcohol and controlled substances testing program(s);
    (iii) Monthly laboratory statistical summaries of urinalysis 
required by Sec. 40.29(g)(6); and
    (iv) The employer's drug testing policy and procedures.
    (d) Location of records. All records required by this part shall be 
maintained as required by Sec. 390.31 of this subchapter and shall be 
made available for inspection at the employer's principal place of 
business within two business days after a request has been made by an 
authorized representative of the Federal Highway Administration.


Sec. 382.403  Reporting of results in a management information system.

    (a) An employer shall prepare and maintain an annual calendar year 
summary of the results of its alcohol and controlled substances testing 
programs performed under this part. By March 15 of each year, all 
employers shall complete the annual summary covering the previous 
calendar year.
    (b) If an employer is notified, during the month of January, of a 
request by the Federal Highway Administration to report the employer's 
annual calendar year summary information, the employer shall prepare 
and submit the report to the Federal Highway Administration by March 15 
of that year. The employer shall ensure that the annual summary report 
is accurate and received by March 15 at the location that the Federal 
Highway Administration specifies in its request. The report shall be in 
the form and manner prescribed by the Federal Highway Administration in 
its request. When the report is submitted to the Federal Highway 
Administration by mail or electronic transmission, the information 
requested shall be typed, except for the signature of the certifying 
official. Each employer shall ensure the accuracy and timeliness of 
each report submitted by the employer or a consortium.
    (c) Each annual calendar year summary that contains information on 
a verified positive controlled substances test result, an alcohol 
screening test result of 0.02 or greater, or any other violation of the 
alcohol misuse provisions of subpart B of this part shall include the 
following informational elements:
    (1) Number of drivers subject to part 382;
    (2) Number of drivers subject to testing under the alcohol misuse 
or controlled substances use rules of more than one DOT agency, 
identified by each agency;
    (3) Number of urine specimens collected by type of test (e.g., pre-
employment, random, reasonable suspicion, post-accident);
    (4) Number of positives verified by a MRO by type of test, and type 
of controlled substance;
    (5) Number of negative controlled substance tests verified by a MRO 
by type of test;
    (6) Number of persons denied a position as a driver following a 
pre-employment verified positive controlled substances test and/or a 
pre-employment alcohol test that indicates an alcohol concentration of 
0.04 or greater;
    (7) Number of drivers with tests verified positive by a medical 
review officer for multiple controlled substances;
    (8) Number of drivers who refused to submit to an alcohol or 
controlled substances test required under this subpart;
    (9) (i) Number of supervisors who have received required alcohol 
training during the reporting period; and
    (ii) Number of supervisors who have received required controlled 
substances training during the reporting period;
    (10) (i) Number of screening alcohol tests by type of test; and
    (ii) Number of confirmation alcohol tests, by type of test;
    (11) Number of confirmation alcohol tests indicating an alcohol 
concentration of 0.02 or greater but less than 0.04, by type of test;
    (12) Number of confirmation alcohol tests indicating an alcohol 
concentration of 0.04 or greater, by type of test;
    (13) Number of drivers who were returned to duty (having complied 
with the recommendations of a substance abuse professional as described 
in Secs. 382.503 and 382.605), in this reporting period, who 
previously:
    (i) Had a verified positive controlled substance test result, or
    (ii) Engaged in prohibited alcohol misuse under the provisions of 
this part;
    (14) Number of drivers who were administered alcohol and drug tests 
at the same time, with both a verified positive drug test result and an 
alcohol test result indicating an alcohol concentration of 0.04 or 
greater; and
    (15) Number of drivers who were found to have violated any non-
testing prohibitions of subpart B of this part, and any action taken in 
response to the violation.
    (d) Each employer's annual calendar year summary that contains only 
negative controlled substance test results, alcohol screening test 
results of less than 0.02, and does not contain any other violations of 
subpart B of this part, may prepare and submit, as required by 
paragraph (b) of this section, either a standard report form containing 
all the information elements specified in paragraph (c) of this 
section, or an ``EZ'' report form. The ``EZ'' report shall include the 
following information elements:
    (1) Number of drivers subject to part 382;
    (2) Number of drivers subject to testing under the alcohol misuse 
or controlled substance use rules of more than one DOT agency, 
identified by each agency;
    (3) Number of urine specimens collected by type of test (e.g., pre-
employment, random, reasonable suspicion, post-accident);
    (4) Number of negatives verified by a medical review officer by 
type of test;
    (5) Number of drivers who refused to submit to an alcohol or 
controlled substances test required under this subpart;
    (6) (i) Number of supervisors who have received required alcohol 
training during the reporting period; and
    (ii) Number of supervisors who have received required controlled 
substances training during the reporting period;
    (7) Number of screen alcohol tests by type of test; and
    (8) Number of drivers who were returned to duty (having complied 
with the recommendations of a substance abuse professional as described 
in Secs. 382.503 and 382.605), in this reporting period, who 
previously:
    (i) Had a verified positive controlled substance test result, or
    (ii) Engaged in prohibited alcohol misuse under the provisions of 
this part.
    (e) Each employer that is subject to more than one DOT agency 
alcohol or controlled substances rule shall identify each driver 
covered by the regulations of more than one DOT agency. The 
identification will be by the total number of covered functions. Prior 
to conducting any alcohol or controlled substances test on a driver 
subject to the rules of more than one DOT agency, the employer shall 
determine which DOT agency rule or rules authorizes or requires the 
test. The test result information shall be directed to the appropriate 
DOT agency or agencies.
    (f) A consortium may prepare annual calendar year summaries and 
reports on behalf of individual employers for purposes of compliance 
with this section. However, each employer shall sign and submit such a 
report and shall remain responsible for ensuring the accuracy and 
timeliness of each report prepared on its behalf by a consortium.


Sec. 382.405  Access to facilities and records.

    (a) Except as required by law or expressly authorized or required 
in this section, no employer shall release driver information that is 
contained in records required to be maintained under Sec. 382.401.
    (b) A driver is entitled, upon written request, to obtain copies of 
any records pertaining to the driver's use of alcohol or controlled 
substances, including any records pertaining to his or her alcohol or 
controlled substances tests. The employer shall promptly provide the 
records requested by the driver. Access to a driver's records shall not 
be contingent upon payment for records other than those specifically 
requested.
    (c) Each employer shall permit access to all facilities utilized in 
complying with the requirements of this part to the Secretary of 
Transportation, any DOT agency, or any State or local officials with 
regulatory authority over the employer or any of its drivers.
    (d) Each employer shall make available copies of all results for 
employer alcohol and/or controlled substances testing conducted under 
this part and any other information pertaining to the employer's 
alcohol misuse and/or controlled substances use prevention program, 
when requested by the Secretary of Transportation, any DOT agency, or 
any State or local officials with regulatory authority over the 
employer or any of its drivers.
    (e) When requested by the National Transportation Safety Board as 
part of an accident investigation, employers shall disclose information 
related to the employer's administration of a post-accident alcohol 
and/or controlled substance test administered following the accident 
under investigation.
    (f) Records shall be made available to a subsequent employer upon 
receipt of a written request from a driver. Disclosure by the 
subsequent employer is permitted only as expressly authorized by the 
terms of the driver's request.
    (g) An employer may disclose information required to be maintained 
under this part pertaining to a driver, the decisionmaker in a lawsuit, 
grievance, or other proceeding initiated by or on behalf of the 
individual, and arising from the results of an alcohol and/or 
controlled substance test administered under this part, or from the 
employer's determination that the driver engaged in conduct prohibited 
by subpart B of this part (including, but not limited to, a worker's 
compensation, unemployment compensation, or other proceeding relating 
to a benefit sought by the driver.)
    (h) An employer shall release information regarding a driver's 
records as directed by the specific, written consent of the driver 
authorizing release of the information to an identified person. Release 
of such information by the person receiving the information is 
permitted only in accordance with the terms of the employee's consent.


Sec. 382.407  Medical review officer notifications to the employer.

    (a) The medical review officer may report to the employer using any 
communications device, but in all instances a signed, written 
notification must be forwarded within three business days of completion 
of the medical review officer's review, pursuant to part 40 of this 
title. A medical review officer shall report to an employer clearly:
    (1) That the controlled substances test being reported was in 
accordance with part 40 of this title and this part;
    (2) The name of the individual for whom the test results are being 
reported;
    (3) The type of test indicated on the custody and control form 
(i.e. random, post-accident, etc.);
    (4) The date and location of the test collection;
    (5) The identities of the persons or entities performing the 
collection, analysis of the specimens and serving as the medical review 
officer for the specific test;
    (6) The verified results of a controlled substances test, either 
positive or negative, and if positive, the identity of the controlled 
substance(s) for which the test was verified positive.
    (b) A medical review officer shall report to the employer that the 
medical review officer has made all reasonable efforts to contact the 
driver as provided in Sec. 40.33(c) of this title. The employer shall, 
as soon as practicable, request that the driver contact the medical 
review officer prior to dispatching the driver or within 24 hours, 
whichever is earlier.


Sec. 382.409  Medical review officer record retention for controlled 
substances.

    (a) A medical review officer shall maintain all dated records and 
notifications, identified by individual, for a minimum of five years 
for verified positive controlled substances test results.
    (b) A medical review officer shall maintain all dated records and 
notifications, identified by individual, for a minimum of one year for 
negative and canceled controlled substances test results.
    (c) No person may obtain the individual controlled substances test 
results retained by a medical review officer, and no medical review 
officer shall release the individual controlled substances test results 
of any driver to any person, without first obtaining a specific, 
written authorization from the tested driver. Nothing in this paragraph 
shall prohibit a medical review officer from releasing, to the employer 
or to officials of the Secretary of Transportation, any DOT agency, or 
any State or local officials with regulatory authority over the 
controlled substances testing program under this part, the information 
delineated in Sec. 382.407(a) of this subpart.


Sec. 382.411  Employer notifications.

    (a) An employer shall notify a driver of the results of a pre-
employment controlled substance test conducted under this part, if the 
driver requests such results within 60 calendar days of being notified 
of the disposition of the employment application. An employer shall 
notify a driver of the results of random, reasonable suspicion and 
post-accident tests for controlled substances conducted under this part 
if the test results are verified positive. The employer shall also 
inform the driver which controlled substance or substances were 
verified as positive.
    (b) The designated management official shall make reasonable 
efforts to contact and request each driver who submitted a specimen 
under the employer's program, regardless of the driver's employment 
status, to contact and discuss the results of the controlled substances 
test with a medical review officer who has been unable to contact the 
driver.
    (c) The designated management official shall immediately notify the 
medical review officer that the driver has been notified to contact the 
medical review officer within 24 hours.


Sec. 382.413  Release of alcohol and controlled substances test 
information by previous employers.

    (a) An employer may obtain, pursuant to a driver's written consent, 
any of the information concerning the driver which is maintained under 
this part by the driver's previous employers.
    (b) An employer shall obtain, pursuant to a driver's consent, 
information on the driver's alcohol tests with a concentration result 
of 0.04 or greater, positive controlled substances test results, and 
refusals to be tested, within the preceding two years, which are 
maintained by the driver's previous employers under 
Sec. 382.401(b)(1)(i) through (iii).
    (c) The information in paragraph (b) of this section must be 
obtained and reviewed by the employer no later than 14 calendar days 
after the first time a driver performs safety-sensitive functions for 
an employer, if it is not feasible to obtain the information prior to 
the driver performing safety-sensitive functions. An employer may not 
permit a driver to perform safety-sensitive functions after 14 days 
without obtaining the information.
    (d) If the driver stops performing safety-sensitive functions for 
the employer before expiration of the 14 day period or before the 
employer has obtained the information in paragraph (b) of this section, 
the employer must still obtain the information.
    (e) The prospective employer must provide to each of the driver's 
employers within the two preceding years the driver's specific, written 
authorization for release of the information in paragraph (b).
    (f) The release of any information under this part may take the 
form of personal interviews, telephone interviews, letters, or any 
other method of obtaining information that ensures confidentiality. 
Each employer must maintain a written, confidential record with respect 
to each past employer contacted.
    (g) An employer may not use a driver to perform safety-sensitive 
functions if the employer obtains information on the driver's alcohol 
test with a concentration of 0.04 or greater, verified positive 
controlled substances test result, or refusal to be tested, by the 
driver, without obtaining information on a subsequent substance abuse 
professional evaluation and/or determination under Sec. 382.401(c)(4) 
and compliance with Sec. 382.309.

Subpart E--Consequences For Drivers Engaging In Substance Use-
Related Conduct


Sec. 382.501  Removal from safety-sensitive function.

    (a) Except as provided in subpart F of this part, no driver shall 
perform safety-sensitive functions, including driving a commercial 
motor vehicle, if the driver has engaged in conduct prohibited by 
subpart B of this part or an alcohol or controlled substances rule of 
another DOT agency.
    (b) No employer shall permit any driver to perform safety-sensitive 
functions, including driving a commercial motor vehicle, if the 
employer has determined that the driver has violated this section.
    (c) For purposes of this subpart, commercial motor vehicle means a 
commercial motor vehicle in commerce as defined in Sec. 382.107, and a 
commercial motor vehicle in interstate commerce as defined in part 390.


Sec. 382.503  Required evaluation and testing.

    No driver who has engaged in conduct prohibited by subpart B of 
this part shall perform safety-sensitive functions, including driving a 
commercial motor vehicle, unless the driver has met the requirements of 
Sec. 382.605. No employer shall permit a driver who has engaged in 
conduct prohibited by subpart B of this part to perform safety-
sensitive functions, including driving a commercial motor vehicle, 
unless the driver has met the requirements of Sec. 382.605.


Sec. 382.505  Other alcohol-related conduct.

    (a) No driver tested under the provisions of subpart C of this part 
who is found to have an alcohol concentration of 0.02 or greater but 
less than 0.04 shall perform or continue to perform safety-sensitive 
functions for an employer, including driving a commercial motor 
vehicle, nor shall an employer permit the driver to perform or continue 
to perform safety-sensitive functions, until the start of the driver's 
next regularly scheduled duty period, but not less than 24 hours 
following administration of the test.
    (b) Except as provided in paragraph (a) of this section, no 
employer shall take any action under this part against a driver based 
solely on test results showing an alcohol concentration less than 0.04. 
This does not prohibit an employer with authority independent of this 
part from taking any action otherwise consistent with law.


Sec. 382.507  Penalties.

    Any employer or driver who violates the requirements of this part 
shall be subject to the penalty provisions of 49 U.S.C. Sec. 521(b).

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


Sec. 382.601  Employer obligation to promulgate a policy on the misuse 
of alcohol and use of controlled substances.

    (a) General requirements. Each employer shall provide educational 
materials that explain the requirements of this part and the employer's 
policies and procedures with respect to meeting these requirements.
    (1) The employer shall ensure that a copy of these materials is 
distributed to each driver prior to the start of alcohol and controlled 
substances testing under this part and to each driver subsequently 
hired or transferred into a position requiring driving a commercial 
motor vehicle.
    (2) Each employer shall provide written notice to representatives 
of employee organizations of the availability of this information.
    (b) Required content. The materials to be made available to drivers 
shall include detailed discussion of at least the following:
    (1) The identity of the person designated by the employer to answer 
driver questions about the materials;
    (2) The categories of drivers who are subject to the provisions of 
this part;
    (3) Sufficient information about the safety-sensitive functions 
performed by those drivers to make clear what period of the work day 
the driver is required to be in compliance with this part;
    (4) Specific information concerning driver conduct that is 
prohibited by this part;
    (5) The circumstances under which a driver will be tested for 
alcohol and/or controlled substances under this part;
    (6) The procedures that will be used to test for the presence of 
alcohol and controlled substances, protect the driver and the integrity 
of the testing processes, safeguard the validity of the test results, 
and ensure that those results are attributed to the correct driver;
    (7) The requirement that a driver submit to alcohol and controlled 
substances tests administered in accordance with this part;
    (8) An explanation of what constitutes a refusal to submit to an 
alcohol or controlled substances test and the attendant consequences;
    (9) The consequences for drivers found to have violated subpart B 
of this part, including the requirement that the driver be removed 
immediately from safety-sensitive functions, and the procedures under 
Sec. 382.605;
    (10) The consequences for drivers found to have an alcohol 
concentration of 0.02 or greater but less than 0.04;
    (11) Information concerning the effects of alcohol and controlled 
substances use on an individual's health, work, and personal life; 
signs and symptoms of an alcohol or a controlled substances problem 
(the driver's or a coworker's); and available methods of intervening 
when an alcohol or a controlled substances problem is suspected, 
including confrontation, referral to any employee assistance program 
and or referral to management.
    (c) Optional provision. The materials supplied to drivers may also 
include information on additional employer policies with respect to the 
use or possession of alcohol or controlled substances, including any 
consequences for a driver found to have a specified alcohol or 
controlled substances level, that are based on the employer's authority 
independent of this part. Any such additional policies or consequences 
must be clearly and obviously described as being based on independent 
authority.
    (d) Certificate of receipt. Each employer shall ensure that each 
driver is required to sign a statement certifying that he or she has 
received a copy of these materials described in this section. Each 
employer shall maintain the original of the signed certificate and may 
provide a copy of the certificate to the driver.


Sec. 382.603  Training for supervisors.

    (a) Each employer shall ensure that persons designated to determine 
whether reasonable suspicion exists to require a driver to undergo 
testing under Sec. 382.307 receive at least 60 minutes of training on 
alcohol misuse and receive at least an additional 60 minutes of 
training on controlled substances use. The training shall cover the 
physical, behavioral, speech, and performance indicators of probable 
alcohol misuse and use of controlled substances.


Sec. 382.605  Referral, evaluation, and treatment.

    (a) Each driver who has engaged in conduct prohibited by subpart B 
of this part shall be advised by the employer of the resources 
available to the driver in evaluating and resolving problems associated 
with the misuse of alcohol and use of controlled substances, including 
the names, addresses, and telephone numbers of substance abuse 
professionals and counselling and treatment programs.
    (b) Each driver who engages in conduct prohibited by subpart B of 
this part shall be evaluated by a substance abuse professional who 
shall determine what assistance, if any, the employee needs in 
resolving problems associated with alcohol misuse and controlled 
substances use.
    (c) (1) Before a driver returns to duty requiring the performance 
of a safety-sensitive function after engaging in conduct prohibited by 
subpart B of this part, the driver shall undergo a return-to-duty 
alcohol test with a result indicating an alcohol concentration of less 
than 0.02 if the conduct involved alcohol, or a controlled substances 
test with a verified negative result if the conduct involved a 
controlled substance.
    (2) In addition, each driver identified as needing assistance in 
resolving problems associated with alcohol misuse or controlled 
substances use,
    (i) Shall be evaluated by a substance abuse professional to 
determine that the driver has properly followed any rehabilitation 
program prescribed under paragraph (b) of this section, and
    (ii) Shall be subject to unannounced follow-up alcohol and 
controlled substances tests administered by the employer following the 
driver's return to duty. The number and frequency of such follow-up 
testing shall be as directed by the substance abuse professional, and 
consist of at least six tests in the first 12 months following the 
driver's return to duty. The employer may direct the driver to undergo 
return-to-duty and follow-up testing for both alcohol and controlled 
substances, if the substance abuse professional determines that return-
to-duty and follow-up testing for both alcohol and controlled 
substances is necessary for that particular driver. Any such testing 
shall be performed in accordance with the requirements of 49 CFR part 
40. Follow-up testing shall not exceed 60 months from the date of the 
driver's return to duty. The substance abuse professional may terminate 
the requirement for follow-up testing at any time after the first six 
tests have been administered, if the substance abuse professional 
determines that such testing is no longer necessary.
    (d) Evaluation and rehabilitation may be provided by the employer, 
by a substance abuse professional under contract with the employer, or 
by a substance abuse professional not affiliated with the employer. The 
choice of substance abuse professional and assignment of costs shall be 
made in accordance with employer/driver agreements and employer 
policies.
    (e) The employer shall ensure that a substance abuse professional 
who determines that a driver requires assistance in resolving problems 
with alcohol misuse or controlled substances use does not refer the 
driver to the substance abuse professional's private practice or to a 
person or organization from which the substance abuse professional 
receives remuneration or in which the substance abuse professional has 
a financial interest. This paragraph does not prohibit a substance 
abuse professional from referring a driver for assistance provided 
through--
    (1) A public agency, such as a State, county, or municipality;
    (2) The employer or a person under contract to provide treatment 
for alcohol or controlled substance problems on behalf of the employer;
    (3) The sole source of therapeutically appropriate treatment under 
the driver's health insurance program; or
    (4) The sole source of therapeutically appropriate treatment 
reasonably accessible to the driver.
    (f) The requirements of this section with respect to referral, 
evaluation and rehabilitation do not apply to applicants who refuse to 
submit to a pre-employment alcohol or controlled substances test or who 
have a pre-employment alcohol test with a result indicating an alcohol 
concentration of 0.04 or greater or a controlled substances test with a 
verified positive test result.

PART 391--QUALIFICATION OF DRIVERS

    4. The authority citation for part 391 continues to read as 
follows:

    Authority: 49 U.S.C. 2505; 49 U.S.C. 504 and 3102; 49 CFR 1.48

    5. Section 391.93 is revised to read as follows:


Sec. 391.93  Implementation schedule.

    (a) All motor carriers shall have a drug testing program that 
conforms to this subpart and 49 CFR part 40 by the date a motor carrier 
begins motor carrier operations.
    (b) All motor carriers shall require all collection personnel to 
implement the split sample collection procedures required under 
Sec. 40.25(f)(10) of this title by August 15, 1994.
    (c) An employer may begin complying with the requirements of 
paragraph (b) of this section on or after March 17, 1994.
    6. Section 391.125 is added to Subpart H to read as follows:


Sec. 391.125  Termination schedule of this subpart.

    (a) Large employers. Each motor carrier with fifty or more drivers 
on March 17, 1994, shall terminate compliance with this subpart and 
shall implement the requirements of part 382 of this subchapter 
beginning on January 1, 1995.
    (b) Small employers. Each motor carrier with fewer than fifty 
drivers on March 17, 1994, shall terminate compliance with this subpart 
and shall implement the requirements of part 382 of this subchapter 
beginning on January 1, 1996.
    (c) All motor carriers shall terminate compliance with this subpart 
on January 1, 1996.

PART 392--DRIVING OF MOTOR VEHICLES

    7. The authority citation for part 392 continues to read as 
follows:

    Authority: 49 App. U.S.C. App. 2505; 49 U.S.C. 3102; 49 CFR 
1.48.

    8. Section 392.5 is amended by revising the heading of the section, 
paragraphs (a)(1) through (a)(3) and (b)(2) to read as follows:


Sec. 392.5  Alcohol prohibition.

    (a) No driver shall--
    (1) Use alcohol, as defined in Sec. 382.107 of this subchapter, or 
be under the influence of alcohol, within 4 hours before going on duty 
or operating, or having physical control of, a commercial motor 
vehicle; or
    (2) Use alcohol, be under the influence of alcohol, or have any 
measured alcohol concentration or detected presence of alcohol, while 
on duty, or operating, or in physical control of a commercial motor 
vehicle; or
    (3) Be on duty or operate a commercial motor vehicle while the 
driver possesses an alcoholic beverage. However, this does not apply to 
possession of alcohol which is manifested and transported as part of a 
shipment.
    (b) * * *
    (2) Be on duty or operate a commercial motor vehicle if, by the 
driver's general appearance or conduct or by other substantiating 
evidence, the driver appears to have used alcohol within the preceding 
four hours.
* * * * *


Sec. 395.2  Definitions.

    9. In Sec. 395.2, the definition of On-duty time is amended by 
redesignating paragraphs (8) and (9) as (9) and (10), and adding a new 
paragraph (8) to read as follows:
* * * * *
    On-duty time * * *
    (8) All time spent providing a breath sample or urine specimen, 
including travel time to and from the collection site, in order to 
comply with the random, reasonable suspicion, post-accident, or follow-
up testing required by part 382 or part 391, subpart H, of this 
subchapter, whichever is applicable, when directed by a motor carrier.
* * * * *
    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Appendix to Preamble--Information Systems Data Collection Forms

BILLING CODE 4910-22-P








































[FR Doc. 94-2037 Filed 2-3-94; 1:00 pm]
BILLING CODE 4910-22-C

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