Controlled Substances & Alcohol Use and Testing |
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Federico Peña and Rodney E. Slater
Federal Highway Administration
February 15, 1994
[Federal Register: February 15, 1994]
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Part VII
Department of Transportation
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Federal Highway Administration
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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.
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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