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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-sensitive
functions 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 required.


Sec. 382.605  Referral, evaluation, and treatment.

    The requirements for referral, evaluation, and treatment must be
performed in accordance with 49 CFR part 40, Subpart O.


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