| Federal
Trucking Regulations
Controlled substances and alcohol use and testing
TITLE 49--TRANSPORTATION
CHAPTER III--FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION
PART 382--CONTROLLED SUBSTANCES AND ALCOHOL
USE AND TESTING
Sec. 382.101 Purpose.
The purpose of this part is to establish
programs designed to help prevent accidents and injuries
resulting from the misuse of alcohol or use of controlled
substances by drivers of commercial motor vehicles.
Sec. 382.103 Applicability.
(a) This part applies to every person and
to all employers of such persons who operate a commercial
motor vehicle in commerce in any State, and is subject to:
(1) The commercial driver's license
requirements of part 383 of this subchapter;
(2) The Licencia Federal de Conductor
(Mexico) requirements; or
(3) The commercial drivers license
requirements of the Canadian National Safety Code.
(b) An employer who employs
himself/herself as a driver must comply with both the
requirements in this part that apply to employers and the
requirements in this part that apply to drivers. An employer
who employs only himself/herself as a driver shall implement
a random alcohol and controlled substances testing program
of two or more covered employees in the random testing
selection pool.
(c) The exceptions contained in Sec.
390.3(f) of this subchapter do not apply to this part. The
employers and drivers identified in Sec. 390.3(f) of this
subchapter must comply with the requirements of this part,
unless otherwise specifically provided in paragraph (d) of
this section.
(d) Exceptions. This part shall not apply
to employers and their drivers:
(1) Required to comply with the alcohol
and/or controlled substances testing requirements of part
655 of this title (Federal Transit Administration alcohol
and controlled substances testing regulations); or
(2) Who a State must waive from the
requirements of part 383 of this subchapter. These
individuals include active duty military personnel; members
of the reserves; and members of the national guard on active
duty, including personnel on full-time national guard duty,
personnel on
part-time national guard training and national guard
military technicians (civilians who are required to wear
military uniforms), and active duty U.S. Coast Guard
personnel; or
(3) Who a State has, at its discretion,
exempted from the requirements of part 383 of this
subchapter. These individuals may be:
(i) Operators of a farm vehicle which is:
(A) Controlled and operated by a farmer;
(B) Used to transport either agricultural
products, farm machinery, farm supplies, or both to or from
a farm;
(C) Not used in the operations of a
common or contract motor carrier; and
(D) Used within 241 kilometers (150
miles) of the farmer's farm.
(ii) Firefighters or other persons who
operate commercial motor vehicles which are necessary for
the preservation of life or property or the execution of
emergency governmental functions, are equipped with audible
and visual signals, and are not subject to normal traffic
regulation.
Sec. 382.105 Testing procedures.
Each employer shall ensure that all
alcohol or controlled substances testing conducted under
this part complies with the procedures set forth in part 40
of this title. The provisions of part 40 of this title that
address alcohol or controlled substances testing are made
applicable to employers by this part.
Sec. 382.107 Definitions.
Words or phrases used in this part are
defined in Secs. 386.2 and 390.5 of this subchapter, and
Sec. 40.3 of this title, except as provided in this
section--
Actual knowledge for the purpose of
subpart B of this part, means actual knowledge by an
employer that a driver has used alcohol or controlled
substances based on the employer's direct observation of the
employee, information provided by the driver's previous
employer(s), a
traffic citation for driving a CMV while under the influence
of alcohol or controlled substances or an employee's
admission of alcohol or controlled substance use, except as
provided in Sec. 382.121. Direct observation as used in this
definition means observation of alcohol or controlled
substances use and does not include observation of employee
behavior or physical characteristics sufficient to warrant
reasonable suspicion testing under Sec. 382.307.
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 drinking or
swallowing of any beverage, liquid 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 vehicle--
(1) Has a gross combination weight rating
of 11,794 or more kilograms (26,001 or more pounds)
inclusive of a towed unit with a gross vehicle weight rating
of more than 4,536 kilograms (10,000 pounds); or
(2) Has a gross vehicle weight rating of
11,794 or more kilograms (26,001 or more pounds); or
(3) Is designed to transport 16 or more
passengers, including the driver; or
(4) Is of any size and is used in the
transportation of materials found to be hazardous for the
purposes of the Hazardous Materials Transportation Act (49
U.S.C. 5103(b)) and which require the motor vehicle to be
placarded under the Hazardous Materials Regulations (49 CFR
part 172, subpart F).
Confirmation (or confirmatory) drug test
means a second analytical procedure performed on a urine
specimen to identify and quantify the presence of a specific
drug or drug metabolite.
Confirmation (or confirmatory) validity
test means a second test performed on a urine specimen to
further support a validity test result.
Confirmed drug test means a confirmation
test result received by an MRO from a laboratory.
Consortium/Third party administrator (C/TPA)
means a service agent that provides or coordinates one or
more drug and/or alcohol testing services to DOT-regulated
employers. C/TPAs typically provide or coordinate the
provision of a number of such services and perform
administrative tasks concerning the operation of the
employers' drug and alcohol testing programs. This term
includes, but is not limited to, groups of employers who
join together to administer, as a single entity, the DOT
drug and alcohol testing programs of its members (e.g.,
having a combined random testing pool). C/TPAs are not
``employers'' for purposes of this part.
Controlled substances mean those
substances identified in Sec. 40.85 of this title.
Designated employer representative (DER)
is an individual identified by the employer as able to
receive communications and test results from service agents
and who is authorized to take immediate actions to remove
employees from safety-sensitive duties and to make required
decisions in the testing and evaluation processes. The
individual must be an employee of the company. Service
agents cannot serve as DERs.
Disabling damage means damage which
precludes departure of a motor vehicle from the scene of the
accident in its usual manner in daylight after simple
repairs.
(1) Inclusions. Damage to motor vehicles
that could have been driven, but would have been further
damaged if so driven.
(2) Exclusions. (i) Damage which can be
remedied temporarily at the scene of the accident without
special tools or parts.
(ii) Tire disablement without other
damage even if no spare tire is available.
(iii) Headlight or taillight damage.
(iv) Damage to turn signals, horn, or
windshield wipers which make them inoperative.
DOT Agency means an agency (or
``operating administration'') of the United States
Department of Transportation administering regulations
requiring alcohol and/or drug testing (14 CFR parts 61, 63,
65, 121, and 135; 49 CFR parts 199, 219, 382, and 655), 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.
Employer means a person or entity
employing one or more employees (including an individual who
is self-employed) that is subject to DOT agency regulations
requiring compliance with this part. The term, as used in
this part, means the entity responsible for overall
implementation of DOT drug and alcohol program requirements,
including individuals employed by the entity who take
personnel actions resulting from violations of this part and
any applicable DOT agency regulations. Service agents are
not employers for the purposes of this part.
Licensed medical practitioner means a
person who is licensed, certified, and/or registered, in
accordance with applicable Federal, State, local, or foreign
laws and regulations, to prescribe controlled substances and
other drugs.
Performing (a safety-sensitive function)
means a driver is considered to be performing a
safety-sensitive function during any period in which he or
she is actually performing, ready to perform, or immediately
available to perform any safety-sensitive functions.
Positive rate means the number of
positive results for random controlled substances tests
conducted under this part plus the number of refusals of
random controlled substances tests required by this part,
divided by the total of random controlled substances tests
conducted under this part plus the number of refusals of
random tests required by this part.
Refuse to submit (to an alcohol or
controlled substances test) means that a driver:
(1) Fail to appear for any test (except a
pre-employment test) within a reasonable time, as determined
by the employer, consistent with applicable DOT agency
regulations, after being directed to do so by the employer.
This includes the failure of an employee (including an
owner-
operator) to appear for a test when called by a C/TPA (see
Sec. 40.61(a) of this title);
(2) Fail to remain at the testing site
until the testing process is complete. Provided, that an
employee who leaves the testing site before the testing
process commences (see Sec. 40.63(c) of this title) a pre-
employment test is not deemed to have refused to test;
(3) Fail to provide a urine specimen for
any drug test required by this part or DOT agency
regulations. Provided, that an employee who does not provide
a urine specimen because he or she has left the testing site
before the testing process commences (see Sec. 40.63(c) of
this title) for a pre-employment test is not deemed to have
refused to test;
(4) In the case of a directly observed or
monitored collection in a drug test, fails to permit the
observation or monitoring of the driver's provision of a
specimen (see Secs. 40.67(l) and 40.69(g) of this title);
(5) Fail to provide a sufficient amount
of urine when directed, and it has been determined, through
a required medical evaluation, that there was no adequate
medical explanation for the failure (see Sec. 40.193(d)(2)
of this title);
(6) Fail or declines to take a second
test the employer or collector has directed the driver to
take;
(7) Fail to undergo a medical examination
or evaluation, as directed by the MRO as part of the
verification process, or as directed by the DER under Sec.
40.193(d) of this title. In the case of a pre-employment
drug test, the employee is deemed to have refused to test on
this basis only if the pre-employment test is conducted
following a contingent offer of employment;
(8) Fail to cooperate with any part of
the testing process (e.g., refuse to empty pockets when so
directed by the collector, behave in a confrontational way
that disrupts the collection process); or
(9) Is reported by the MRO as having a
verified adulterated or substituted test result.
Safety-sensitive function means all time
from the time a driver begins to work or is required to be
in readiness to work until the time he/she is relieved from
work and all responsibility for performing work.
Safety-sensitive functions shall include:
(1) All time at an employer or shipper
plant, terminal, facility, or other property, or on any
public property, waiting to be dispatched, unless the driver
has been relieved from duty by the employer;
(2) All time inspecting equipment as
required by Secs. 392.7 and 392.8 of this subchapter or
otherwise inspecting, servicing, or conditioning any
commercial motor vehicle at any time;
(3) All time spent at the driving
controls of a commercial motor vehicle in operation;
(4) All time, other than driving time, in
or upon any commercial motor vehicle except time spent
resting in a sleeper berth (a berth conforming to the
requirements of Sec. 393.76 of this subchapter);
(5) All time loading or unloading a
vehicle, supervising, or assisting in the loading or
unloading, attending a vehicle being loaded or unloaded,
remaining in readiness to operate the vehicle, or in giving
or receiving receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining
assistance, or remaining in attendance upon a disabled
vehicle.
Screening test (or initial test) means:
(1) In drug testing, a test to eliminate
``negative'' urine specimens from further analysis or to
identify a specimen that requires additional testing for the
presence of drugs.
(2) In alcohol testing, an analytical
procedure to determine whether an employee may have a
prohibited concentration of alcohol in a breath or saliva
specimen.
Stand-down means the practice of
temporarily removing an employee from the performance of
safety-sensitive functions based only on a report from a
laboratory to the MRO of a confirmed positive test for a
drug or drug metabolite, an adulterated test, or a
substituted test, before the MRO has completed verification
of the test results.
Violation rate means the number of
drivers (as reported under Sec. 382.305) 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 in this part is not possible; or
(2) Compliance with the State or local
requirement is an obstacle to the accomplishment and
execution of any requirement in this part.
(b) This part shall not be construed to
preempt provisions of State criminal law that impose
sanctions for reckless conduct leading to actual loss of
life, injury, or damage to property, whether the provisions
apply specifically to transportation employees, employers,
or the general public.
Sec. 382.111 Other requirements imposed by
employers.
Except as expressly provided in this
part, nothing in this part shall be construed to affect the
authority of employers, or the rights of drivers, with
respect to the use of alcohol, or the use of controlled
substances, including authority and rights with respect to
testing and rehabilitation.
Sec. 382.113 Requirement for notice.
Before performing each 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) All domestic-domiciled employers must
implement the requirements of this part on the date the
employer begins commercial motor vehicle operations.
(b) All foreign-domiciled employers must
implement the requirements of this part on the date the
employer begins commercial motor vehicle operations in the
United States.
Sec. 382.117 Public interest exclusion.
No employer shall use the services of a
service agent who is subject to public interest exclusion in
accordance with 49 CFR part 40, Subpart R.
Sec. 382.119 Stand-down waiver provision.
(a) Employers are prohibited from
standing employees down, except consistent with a waiver
from the Federal Motor Carrier Safety Administration as
required under this section.
(b) An employer subject to this part who
seeks a waiver from the prohibition against standing down an
employee before the MRO has completed the verification
process shall follow the procedures in 49 CFR 40.21. The
employer must send a written request, which includes all of
the information required by that section to the Federal
Motor Carrier Safety Administrator (or the Administrator's
designee), U.S. Department of Transportation, 400 Seventh
Street, SW., Washington, DC 20590.
(c) The final decision whether to grant
or deny the application for a waiver will be made by the
Administrator or the Administrator's designee.
(d) After a decision is signed by the
Administrator or the Administrator's designee, the employer
will be sent a copy of the decision, which will include the
terms and conditions for the waiver or the reason for
denying the application for a waiver.
(e) Questions regarding waiver
applications should be directed to the Office of Enforcement
and Compliance, Federal Motor Carrier Safety Administration,
400 Seventh Street, SW., Washington, DC 20590. The telephone
number is (202) 366-5720.
Sec. 382.121 Employee admission of alcohol and
controlled substances use.
(a) Employees who admit to alcohol misuse
or controlled substances use are not subject to the
referral, evaluation and treatment requirements of this part
and part 40 of this title, provided that:
(1) The admission is in accordance with a
written employer- established voluntary self-identification
program or policy that meets the requirements of paragraph
(b) of this section;
(2) The driver does not self-identify in
order to avoid testing under the requirements of this part;
(3) The driver makes the admission of
alcohol misuse or controlled substances use prior to
performing a safety sensitive function (i.e., prior to
reporting for duty); and
(4) The driver does not perform a safety
sensitive function until the employer is satisfied that the
employee has been evaluated and has successfully completed
education or treatment requirements in accordance with the
self-identification program guidelines.
(b) A qualified voluntary
self-identification program or policy must contain the
following elements:
(1) It must prohibit the employer from
taking adverse action against an employee making a voluntary
admission of alcohol misuse or controlled substances use
within the parameters of the program or policy and paragraph
(a) of this section;
(2) It must allow the employee sufficient
opportunity to seek evaluation, education or treatment to
establish control over the employee's drug or alcohol
problem;
(3) It must permit the employee to return
to safety sensitive duties only upon successful completion
of an educational or treatment program, as determined by a
drug and alcohol abuse evaluation expert, i.e., employee
assistance professional, substance abuse professional, or
qualified drug and alcohol counselor;
(4) It must ensure that:
(i) Prior to the employee participating
in a safety sensitive function, the employee shall undergo a
return to duty test with a result indicating an alcohol
concentration of less than 0.02; and/or
(ii) Prior to the employee participating
in a safety sensitive function, the employee shall undergo a
return to duty controlled substance test with a verified
negative test result for controlled substances use; and
(5) It may incorporate employee
monitoring and include non-DOT follow-up testing.
Sec. 382.201 Alcohol concentration.
No driver shall report for duty or remain
on duty requiring the performance of safety-sensitive
functions while having an alcohol concentration of 0.04 or
greater. No employer having actual knowledge that a driver
has an alcohol concentration of 0.04 or greater shall permit
the driver to perform or continue to perform
safety-sensitive functions.
Sec. 382.205 On-duty use.
No driver shall use alcohol while
performing safety-sensitive functions. No employer having
actual knowledge that a driver is using alcohol while
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 shall use
alcohol for eight hours following the accident, or until
he/she undergoes a post-accident alcohol test, whichever
occurs first.
Sec. 382.211 Refusal to submit to a required
alcohol or controlled substances test.
No driver shall refuse to submit to a
post-accident alcohol or controlled substances test required
under Sec. 382.303, a random alcohol or controlled
substances test required under Sec. 382.305, a reasonable
suspicion alcohol or controlled substances test required
under Sec. 382.307, or a follow-up alcohol or controlled
substances test required under Sec. 382.311. No employer
shall permit a driver who refuses to submit to such tests to
perform or continue to perform safety-sensitive functions.
Sec. 382.213 Controlled substances use.
(a) No driver shall report for duty or
remain on duty requiring the performance of safety-sensitive
functions when the driver uses any controlled substance,
except when the use is pursuant to the
instructions of a licensed medical practitioner, as defined
in Sec. 382.107, who has advised the driver that the
substance will not adversely affect the driver's ability to
safely operate a commercial
motor vehicle.
(b) No employer having actual knowledge
that a driver has used a controlled substance shall permit
the driver to perform or continue to perform a
safety-sensitive function.
(c) An employer may require a driver to
inform the employer of any therapeutic drug use.
Sec. 382.215 Controlled substances testing.
No driver shall report for duty, remain
on duty or perform a safety-sensitive function, if the
driver tests positive or has adulterated or substituted a
test specimen for controlled substances. No employer having
actual knowledge that a driver has tested positive or has
adulterated or substituted a test specimen for controlled
substances shall permit the driver to perform or continue to
perform safety-sensitive functions.
Sec. 382.301 Pre-employment testing.
(a) Prior to the first time a driver
performs safety-sensitivefunctions for an employer, the
driver shall undergo testing for controlled substances as a
condition prior to being used, unless the employer uses the
exception in paragraph (b) of this section. No employer
shall allow a driver, who the employer intends to hire or
use, to perform safety-sensitive functions unless the
employer has received a controlled substances test result
from the MRO or C/TPA indicating a verified negative test
result for that driver.
(b) An employer is not required to
administer a controlled substances test required by
paragraph (a) of this section if:
(1) The driver has participated in a
controlled substances testing program that meets the
requirements of this part within the previous 30 days; and
(2) While participating in that program,
either:
(i) Was tested for controlled substances
within the past 6 months (from the date of application with
the employer), or
(ii) Participated in the random
controlled substances testing program for the previous 12
months (from the date of application with the employer); and
(3) The employer ensures that no prior
employer of the driver of whom the employer has knowledge
has records of a violation of this part or the controlled
substances use rule of another DOT agency within the
previous six months.
(c)(1) An employer who exercises the
exception in paragraph (b) of this section shall contact the
controlled substances testing program(s) in which the driver
participates or participated and shall obtain and retain
from the testing program(s) the following information:
(i) Name(s) and address(es) of the
program(s).
(ii) Verification that the driver
participates or participated in the program(s).
(iii) Verification that the program(s)
conforms to part 40 of this title.
(iv) Verification that the driver is
qualified under the rules of this part, including that the
driver has not refused to be tested for controlled
substances.
(v) The date the driver was last tested
for controlled substances.
(vi) The results of any tests taken
within the previous six months and any other violations of
subpart B of this part.
(2) An employer who uses, but does not
employ a driver more than once a year to operate commercial
motor vehicles must obtain the information in paragraph
(c)(1) of this section at least once every six months. The
records prepared under this paragraph shall be maintained in
accordance with Sec. 382.401. If the employer cannot verify
that the driver is participating in a controlled substances
testing program in accordance with this part and part 40 of
this title, the employer shall conduct a pre-employment
controlled substances test.
(d) An employer may, but is not required
to, conduct pre-employment alcohol testing under this part.
If an employer chooses to conduct pre- employment alcohol
testing, it must comply with the following requirements:
(1) It must conduct a pre-employment
alcohol test before the first performance of
safety-sensitive functions by every covered employee
(whether a new employee or someone who has transferred to a
position involving the performance of safety-sensitive
functions).
(2) It must treat all safety-sensitive
employees performing safety-sensitive functions the same for
the purpose of pre-employment alcohol testing (i.e., it must
not test some covered employees and not others).
(3) It must conduct the pre-employment
tests after making a contingent offer of employment or
transfer, subject to the employee passing the pre-employment
alcohol test.
(4) It must conduct all pre-employment
alcohol tests using the alcohol testing procedures of 49 CFR
part 40 of this title.
(5) It must not allow a covered employee
to begin performing safety-sensitive functions unless the
result of the employee's test indicates an alcohol
concentration of less than 0.04.
Sec. 382.303 Post-accident testing.
(a) As soon as practicable following an
occurrence involving a commercial motor vehicle operating on
a public road in commerce, each employer shall test for
alcohol for each of its surviving drivers:
(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 within 8
hours of the occurrence under State or local law for a
moving traffic violation arising from the accident, if the
accident involved:
(i) Bodily injury to any person who, as a
result of the injury, immediately receives medical treatment
away from the scene of the accident; or
(ii) One or more motor vehicles incurring
disabling damage as a result of the accident, requiring the
motor vehicle to be transported away from the scene by a tow
truck or other motor vehicle.
(b) As soon as practicable following an
occurrence involving a commercial motor vehicle operating on
a public road in commerce, each employer shall test for
controlled substances for each of its surviving drivers:
(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 within
thirty-two hours of the occurrence under State or local law
for a moving traffic violation arising from the accident, if
the accident involved:
(i) Bodily injury to any person who, as a
result of the injury, immediately receives medical treatment
away from the scene of the accident; or
(ii) One or more motor vehicles incurring
disabling damage as a result of the accident, requiring the
motor vehicle to be transported away from the scene by a tow
truck or other motor vehicle.
(c) The following table notes when a
post-accident test is required to be conducted by paragraphs
(a)(1), (a)(2), (b)(1), and (b)(2) of this section:
Table for Sec. 382.303(a) and (b)
----------------------------------------------------------------------------------------------------------------
Type of accident
involved
Citation issued to the CMV driver Test
must be performed by employer
----------------------------------------------------------------------------------------------------------------
i. Human fatality.....................
YES................................ YES.
NO................................. YES.
ii. Bodily injury with immediate
YES................................ YES.
medical treatment away from the scene.
NO................................. NO.
iii. Disabling damage to any motor
YES................................ YES.
vehicle requiring tow away.
NO................................. NO.
----------------------------------------------------------------------------------------------------------------
(d)(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 FMCSA upon
request.
(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
FMCSA upon request.
(e) 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.
(f) 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.
(g)(1) The results of a breath or blood
test for the use of alcohol, conducted by Federal, State, or
local officials having independent authority for the test,
shall be considered to meet the requirements of this
section, provided such tests conform to the applicable
Federal, State or local alcohol testing requirements, and
that the results of the tests are obtained by the employer.
(2) The results of a urine test for the
use of controlled substances, conducted by Federal, State,
or local officials having independent authority for the
test, shall be considered to meet the requirements of this
section, provided such tests conform to the applicable
Federal, State or local controlled substances testing
requirements, and that the results of the tests are obtained
by the employer.
(h) Exception. This section does not
apply to:
(1) An occurrence involving only boarding
or alighting from a stationary motor vehicle; or
(2) An occurrence involving only the
loading or unloading of cargo; or
(3) An occurrence in the course of the
operation of a passenger car or a multipurpose passenger
vehicle (as defined in Sec. 571.3 of this title) by an
employer unless the motor vehicle is transporting passengers
for hire or hazardous materials of a type and quantity that
require the motor vehicle to be marked or placarded in
accordance with Sec. 177.823 of this title.
Sec. 382.305 Random testing.
(a) Every employer shall comply with the
requirements of this section. Every driver shall submit to
random alcohol and controlled substance testing as required
in this section.
(b)(1) Except as provided in paragraphs
(c) through (e) of this section, the minimum annual
percentage rate for random alcohol testing shall be 10
percent of the average number of driver positions.
(2) Except as provided in paragraphs (f)
through (h) of this section, the minimum annual percentage
rate for random controlled substances testing shall be 50
percent of the average number of driver positions.
(c) The FMCSA 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. In
order to ensure reliability of the data, the FMCSA
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. In the event of a
change in the annual percentage rate, the FMCSA
Administrator will publish in the Federal Register the new
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 in the Federal Register.
(d)(1) When the minimum annual percentage
rate for random alcohol testing is 25 percent or more, the
FMCSA Administrator may lower this rate to 10 percent of all
driver positions if the FMCSA 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 FMCSA
Administrator may lower this rate to 25 percent of all
driver positions if the FMCSA 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.
(e)(1) When the minimum annual percentage
rate for random alcohol testing is 10 percent, and the data
received under the reporting requirements of Sec. 382.403
for that calendar year indicate that the violation rate is
equal to or greater than 0.5 percent, but less than 1.0
percent, the FMCSA Administrator will increase the minimum
annual percentage rate for random alcohol testing to 25
percent for all driver positions.
(2) When the minimum annual percentage
rate for random alcohol testing is 25 percent or less, and
the data received under the reporting requirements of Sec.
382.403 for that calendar year indicate that the violation
rate is equal to or greater than 1.0 percent, the FMCSA
Administrator will increase the minimum annual percentage
rate for random alcohol testing to 50 percent for all driver
positions.
(f) The FMCSA Administrator's decision to
increase or decrease the minimum annual percentage rate for
controlled substances testing is based on the reported
positive rate for the entire industry. All information used
for this determination is drawn from the controlled
substances management information system reports required by
Sec. 382.403. In order to ensure reliability of the data,
the FMCSA Administrator considers the quality and
completeness of the reported data, may obtain additional
information or reports from employers, and may make
appropriate modifications in calculating the industry
positive rate. In the event of a change in the annual
percentage rate, the FMCSA Administrator will publish in the
Federal Register the new minimum annual percentage rate for
controlled substances testing of drivers. The new minimum
annual percentage rate for random controlled substances
testing will be applicable starting January 1 of the
calendar year following publication in the Federal Register.
(g) When the minimum annual percentage
rate for random controlled substances testing is 50 percent,
the FMCSA Administrator may lower this rate to 25 percent of
all driver positions if the FMCSA Administrator determines
that the data received under the reporting requirements of
Sec. 382.403 for two consecutive calendar years indicate
that the positive rate is less than 1.0 percent.
(h) When the minimum annual percentage
rate for random controlled substances testing is 25 percent,
and the data received under the reporting requirements of
Sec. 382.403 for any calendar year indicate that the
reported positive rate is equal to or greater than 1.0
percent, the FMCSA Administrator will increase the minimum
annual percentage rate for random controlled substances
testing to 50 percent of all driver positions.
(i)(1) The selection of drivers for
random alcohol and controlled substances testing shall be
made by a scientifically valid method, such as a random
number table or a computer-based random number generator
that is matched with drivers' Social Security numbers,
payroll identification numbers, or other comparable
identifying numbers.
(2) Each driver selected for random
alcohol and controlled substances testing under the
selection process used, shall have an equal chance of being
tested each time selections are made.
(3) Each driver selected for testing
shall be tested during the selection period.
(j) The employer shall randomly select a
sufficient number of drivers for testing during each
calendar year to equal an annual rate not less than the
minimum annual percentage rate for random alcohol and
controlled substances testing determined by the FMCSA
Administrator. If the employer conducts random testing for
alcohol and/or controlled substances through a C/TPA, 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 C/TPA who are subject to random
alcohol and/or controlled substances testing at the same
minimum annual percentage rate under this part.
(k)(1) Each employer shall ensure that
random alcohol and controlled substances tests conducted
under this part are unannounced.
(2) Each employer shall ensure that the
dates for administering random alcohol and controlled
substances tests conducted under this part are spread
reasonably throughout the calendar year.
(l) Each employer shall require that each
driver who is notified of selection for random alcohol
and/or controlled substances testing proceeds to the test
site immediately; provided, however, that if the driver is
performing a safety-sensitive function, other than driving a
commercial motor vehicle, at the time of notification, the
employer shall instead ensure that the driver ceases to
perform the safety-sensitive function and proceeds to the
testing site as soon as possible.
(m) A driver shall only be tested for
alcohol while the driver is performing safety-sensitive
functions, just before the driver is to perform
safety-sensitive functions, or just after the driver has
ceased performing such functions.
(n) If a given driver is subject to
random alcohol or controlled substances testing under the
random alcohol or controlled substances testing rules of
more than one DOT agency for the same employer, the driver
shall be subject to random alcohol and/or controlled
substances testing at the annual percentage rate established
for the calendar year by the DOT agency regulating more than
50 percent of the driver's function.
(o) If an employer is required to conduct
random alcohol or controlled substances testing under the
alcohol or controlled substances testing rules of more than
one DOT agency, the employer may--
(1) Establish separate pools for random
selection, with each pool containing the DOT-covered
employees who are subject to testing at the same required
minimum annual percentage rate; or
(2) Randomly select such employees for
testing at the highest minimum annual percentage rate
established for the calendar year by any DOT agency to which
the employer is subject.
Sec. 382.307 Reasonable suspicion testing.
(a) An employer shall require a driver to
submit to an alcohol test when the employer has reasonable
suspicion to believe that the driver has violated the
prohibitions of subpart B of this part concerning alcohol.
The employer's determination that reasonable suspicion
exists to require the driver to undergo an alcohol test must
be based on specific, contemporaneous, articulable
observations concerning the appearance, behavior, speech or
body odors of the driver.
(b) An employer shall require a driver to
submit to a controlled substances test when the employer has
reasonable suspicion to believe that the driver has violated
the prohibitions of subpart B of this part concerning
controlled substances. The employer's determination that
reasonable suspicion exists to require the driver to undergo
a controlled substances test must be based on specific,
contemporaneous, articulable observations concerning the
appearance, behavior, speech or body odors of the driver.
The observations may include indications of the chronic and
withdrawal effects of controlled substances.
(c) The required observations for alcohol
and/or controlled substances reasonable suspicion testing
shall be made by a supervisor or company official who is
trained in accordance with Sec. 382.603. 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 an alcohol or controlled substances
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
alcohol or controlled substances tests are released,
whichever is earlier.
Sec. 382.309 Return-to-duty testing.
The requirements for return-to-duty
testing must be performed in accordance with 49 CFR part 40,
Subpart O.
Sec. 382.311 Follow-up testing.
The requirements for follow-up testing
must be performed in accordance with 49 CFR part 40, Subpart
O.
Sec. 382.401 Retention of records.
(a) General requirement. Each employer
shall maintain records of its alcohol misuse and controlled
substances use prevention programs as provided in this
section. The records shall be maintained in a secure
location with controlled access.
(b) Period of retention. Each employer
shall maintain the records in accordance with the following
schedule:
(1) Five years. The following records
shall be maintained for a minimum of five years:
(i) Records of driver alcohol test
results indicating an alcohol concentration of 0.02 or
greater,
(ii) Records of driver verified positive
controlled substances test results,
(iii) Documentation of refusals to take
required alcohol and/or controlled substances tests,
(iv) Driver evaluation and referrals,
(v) Calibration documentation,
(vi) Records related to the
administration of the alcohol and controlled substances
testing programs, and
(vii) A copy of each annual calendar year
summary required by Sec. 382.403.
(2) Two years. Records related to the
alcohol and controlled substances collection process (except
calibration of evidential breath testing devices).
(3) One year. Records of negative and
canceled controlled substances test results (as defined in
part 40 of this title) and alcohol test results with a
concentration of less than 0.02 shall be maintained for a
minimum of one year.
(4) Indefinite period. Records related to
the education and training of breath alcohol technicians,
screening test technicians, supervisors, and drivers shall
be maintained by the employer while the individual performs
the functions which require the training and for two years
after ceasing to perform those functions.
(c) Types of records. The following
specific types of records shall be maintained. ``Documents
generated'' are documents that may have to be prepared under
a requirement of this part. If the record is required to be
prepared, it must be maintained.
(1) Records related to the collection
process:
(i) Collection logbooks, if used;
(ii) Documents relating to the random
selection process;
(iii) Calibration documentation for
evidential breath testing devices;
(iv) Documentation of breath alcohol
technician training;
(v) Documents generated in connection
with decisions to administer reasonable suspicion alcohol or
controlled substances tests;
(vi) Documents generated in connection
with decisions on post- accident tests;
(vii) Documents verifying existence of a
medical explanation of the inability of a driver to provide
adequate breath or to provide a urine specimen for testing;
and
(viii) Consolidated annual calendar year
summaries as required by Sec. 382.403.
(2) Records related to a driver's test
results:
(i) The employer's copy of the alcohol
test form, including the results of the test;
(ii) The employer's copy of the
controlled substances test chain of custody and control
form;
(iii) Documents sent by the MRO to the
employer, including those required by part 40, subpart G, of
this title;
(iv) Documents related to the refusal of
any driver to submit to an alcohol or controlled substances
test required by this part;
(v) Documents presented by a driver to
dispute the result of an alcohol or controlled substances
test administered under this part; and
(vi) Documents generated in connection
with verifications of prior employers' alcohol or controlled
substances test results that the employer:
(A) Must obtain in connection with the
exception contained in Sec. 382.301, and
(B) Must obtain as required by Sec.
382.413.
(3) Records related to other violations
of this part.
(4) Records related to evaluations:
(i) Records pertaining to a determination
by a substance abuse professional concerning a driver's need
for assistance; and
(ii) Records concerning a driver's
compliance with recommendations of the substance abuse
professional.
(5) Records related to education and
training:
(i) Materials on alcohol misuse and
controlled substance use awareness, including a copy of the
employer's policy on alcohol misuse and controlled substance
use;
(ii) Documentation of compliance with the
requirements of Sec. 382.601, including the driver's signed
receipt of education materials;
(iii) Documentation of training provided
to supervisors for the purpose of qualifying the supervisors
to make a determination concerning the need for alcohol
and/or controlled substances testing based on reasonable
suspicion;
(iv) Documentation of training for breath
alcohol technicians as required by Sec. 40.213(a) of this
title; and
(v) Certification that any training
conducted under this part complies with the requirements for
such training.
(6) Administrative records related to
alcohol and controlled substances testing:
(i) Agreements with collection site
facilities, laboratories, breath alcohol technicians,
screening test technicians, medical review officers,
consortia, and third party service providers;
(ii) Names and positions of officials and
their role in the employer's alcohol and controlled
substances testing program(s);
(iii) Semi-annual laboratory statistical
summaries of urinalysis required by Sec. 40.111(a) of this
title; and
(iv) The employer's alcohol and
controlled substances 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 Motor Carrier
Safety Administration.
(e) OMB control number. (1) The
information collection requirements of this part have been
reviewed by the Office of Management and Budget pursuant to
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
and have been assigned OMB control number 2126-0012.
(2) The information collection
requirements of this part are found in the following
sections: Sections 382.105, 382.113, 382.301, 382.303,
382.305, 382.307,
Sec. 382.403 Reporting of results in a management
information system.
(a) An employer shall prepare and
maintain a summary of the results of its alcohol and
controlled substances testing programs performed under this
part during the previous calendar year, when requested by
the Secretary of Transportation, any DOT agency, or any
State or local officials with regulatory authority over the
employer or any of its drivers.
(b) If an employer is notified, during
the month of January, of a request by the Federal Motor
Carrier Safety Administration to report the employer's
annual calendar year summary information, the employer shall
prepare and submit the report to the FMCSA 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 FMCSA specifies in its request. The report shall be
in the form and manner prescribed by the FMCSA in its
request. When the report is submitted to the FMCSA by mail
or electronic transmission, the information requested shall
be typed, except for the signature of the certifying
official. Each employer shall ensure the accuracy and
timeliness of each report submitted by the employer or a
consortium.
(c) Detailed summary. Each annual
calendar year summary that contains information on a
verified positive controlled substances test result, an
alcohol screening test result of 0.02 or greater, or any
other violation of the alcohol misuse provisions of subpart
B of this part shall include the following informational
elements:
(1) Number of drivers subject to this
part;
(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, including those who submitted
substituted or adulterated specimens;
(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 Sec. 382.503
and part 40, subpart O of this title), in this reporting
period, who previously:
(i) Had a verified positive controlled
substance test result, or
(ii) Engaged in prohibited alcohol misuse
under the provisions of this part;
(14) Number of drivers who were
administered alcohol and drug tests at the same time, with
both a verified positive drug test result and an alcohol
test result indicating an alcohol concentration of 0.04 or
greater; and
(15) Number of drivers who were found to
have violated any non-testing prohibitions of subpart B of
this part, and any action taken in response to the
violation.
(d) Short summary. Each employer's annual
calendar year summary that contains only negative controlled
substance test results, alcohol screening test results of
less than 0.02, and does not contain any other violations of
subpart B of this part, may prepare and submit, as required
by paragraph (b) of this section, either a standard report
form containing all the information elements specified in
paragraph (c) of this section, or an ``EZ'' report form. The
``EZ'' report shall include the following information
elements:
(1) Number of drivers subject to this
part;
(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, including those who submitted
substituted or adulterated specimens;
(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 Sec. 382.503
and part 40, subpart O, of this title), 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 C/TPA 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 C/TPA.
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 to the decision maker in a lawsuit, grievance, or
administrative proceeding initiated by or on
behalf of the individual, and arising from a positive DOT
drug or alcohol test or a refusal to test (including, but
not limited to, adulterated or substituted test results) 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). Additionally,
an employer may disclose information in criminal or civil
actions in accordance with Sec. 40.323(a)(2) of this title.
(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 specific written consent as outlined in Sec.
40.321(b) of this title.
Sec. 382.407 Medical review officer notifications
to the employer.
Medical review officers shall report the
results of controlled substances tests to employers in
accordance with the requirements of part 40, Subpart G, of
this title.
Sec. 382.409 Medical review officer record
retention for controlled substances.
(a) A medical review officer or third
party administrator 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 or third
party administrator 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 or third party administrator, and no medical
review officer or third party administrator 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 (c) shall prohibit a medical review officer
or third party administrator 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 part 40,
Subpart G, of this title.
Sec. 382.411 Employer notifications.
(a) An employer shall notify a driver of
the results of a pre-employment controlled substances 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 employer
representative 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 employer
representative shall immediately notify the medical review
officer that the driver has been notified to contact the
medical review officer within 72 hours.
Sec. 382.413 Inquiries for alcohol and controlled
substances information from previous employers.
Employers shall request alcohol and
controlled substances information from previous employers in
accordance with the requirements of Sec. 40.25 of this
title.
Sec. 382.501 Removal from safety-sensitive
function.
(a) Except as provided in subpart F of
this part, no driver shall perform safety-sensitive
functions, including driving a commercial motor vehicle, if
the driver has engaged in conduct prohibited by subpart B of
this part or an alcohol or controlled substances rule of
another DOT agency.
(b) No employer shall permit any driver
to perform safety-sensitive functions; including driving a
commercial motor vehicle, if the employer has determined
that the driver has violated this section.
(c) For purposes of this subpart,
commercial motor vehicle means a commercial motor vehicle in
commerce as defined in Sec. 382.107, and a commercial motor
vehicle in interstate commerce as defined in part 390 of
this subchapter.
Sec. 382.503 Required evaluation and testing.
No driver who has engaged in conduct
prohibited by subpart B of this part shall perform
safety-sensitive functions, including driving a commercial
motor vehicle, unless the driver has met the requirements of
part 40, subpart O, of this title. 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 part 40, subpart O, of
this title.
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 civil
and/or criminal penalty provisions of 49 U.S.C. 521(b). In
addition, any employer or driver who violates the
requirements of 49 CFR part 40 shall be subject to the civil
and/or criminal penalty provisions of 49 U.S.C. 521(b).
Sec. 382.601 Employer obligation to promulgate a
policy on the misuse of alcohol and use of controlled
substances.
(a) General requirements. Each employer
shall provide educational materials that explain the
requirements of this part and the employer's policies and
procedures with respect to meeting these requirements.
(1) The employer shall ensure that a copy
of these materials is distributed to each driver prior to
the start of alcohol and controlled substances testing under
this part and to each driver subsequently hired or
transferred into a position requiring driving a commercial
motor vehicle.
(2) Each employer shall provide written
notice to representatives of employee organizations of the
availability of this information.
(b) Required content. The materials to be
made available to drivers shall include detailed discussion
of at least the following:
(1) The identity of the person designated
by the employer to answer driver questions about the
materials;
(2) The categories of drivers who are
subject to the provisions of this part;
(3) Sufficient information about the
safety-sensitive functions performed by those drivers to
make clear what period of the work day the driver is
required to be in compliance with this part;
(4) Specific information concerning
driver conduct that is prohibited by this part;
(5) The circumstances under which a
driver will be tested for alcohol and/or controlled
substances under this part, including post-accident testing
under Sec. 382.303(d);
(6) The procedures that will be used to
test for the presence of alcohol and controlled substances,
protect the driver and the integrity of the testing
processes, safeguard the validity of the test results, and
ensure that those results are attributed to the correct
driver, including post-accident information, procedures and
instructions required by Sec. 382.303(d);
(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 part
40, subpart O, of this title;
(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 co-worker's); and available methods of intervening when an
alcohol or a controlled substances problem is suspected,
including confrontation, referral to any employee assistance
program and or referral to management.
(c) Optional provision. The materials
supplied to drivers may also include information on
additional employer policies with respect to the use of
alcohol or controlled substances, including any consequences
for a driver found to have a specified alcohol or controlled
substances level, that are based on the employer's authority
independent of this part. Any such additional policies or
consequences must be clearly and obviously described as
being based on independent authority.
(d) Certificate of receipt. Each employer
shall ensure that each driver is required to sign a
statement certifying that he or she has received a copy of
these materials described in this section. Each employer
shall maintain the original of the signed certificate and
may provide a copy of the certificate to the driver.
Sec. 382.603 Training for supervisors.
Each employer shall ensure that all
persons designated to supervise drivers receive at least 60
minutes of training on alcohol misuse and receive at least
an additional 60 minutes of training on controlled
substances use. The training will be used by the supervisors
to determine whether reasonable suspicion exists to require
a driver to undergo testing under Sec. 382.307. The training
shall include the physical, behavioral, speech, and
performance indicators of probable alcohol misuse and use of
controlled substances. Recurrent training for supervisory
personnel is not r |
