1、166 49 CFR Ch. III (10110 Edition) Pt. 382 operating under the waiver or exemp-tion or participating in the pilot pro-gram. PART 382CONTROLLED SUB-STANCES AND ALCOHOL USE AND TESTING Subpart AGeneral Sec. 382.101 Purpose 382.103 Applicability. 382.105 Testing procedures. 382.107 Definitions. 382.109
2、 Preemption of State and local laws. 382.111 Other requirements imposed by em-ployers. 382.113 Requirements for notice. 382.115 Starting date for testing programs. 382.117 Public interest exclusion. 382.119 Stand-down waiver provision. 382.121 Employee admission of alcohol and controlled substances
3、use. Subpart BProhibitions 382.201 Alcohol concentration. 382.205 On-duty use. 382.207 Pre-duty use. 382.209 Use following an accident. 382.211 Refusal to submit to a required alco-hol or controlled substances test. 382.213 Controlled substances use. 382.215 Controlled substances testing. Subpart CT
4、ests Required 382.301 Pre-employment testing. 382.303 Post-accident testing. 382.305 Random testing. 382.307 Reasonable suspicion testing. 382.309 Return-to-duty testing. 382.311 Follow-up testing. Subpart DHandling of Test Results, Record Retention, and Confidentiality 382.401 Retention of records.
5、 382.403 Reporting of results in a manage-ment information system. 382.405 Access to facilities and records. 382.407 Medical review officer notifications to the employer. 382.409 Medical review officer record reten-tion for controlled substances. 382.411 Employer notifications. 382.413 Inquiries for
6、 alcohol and controlled substances information from previous employers. Subpart EConsequences for Drivers En-gaging in Substance Use-Related Con-duct 382.501 Removal from safety-sensitive func-tion. 382.503 Required evaluation and testing. 382.505 Other alcohol-related conduct. 382.507 Penalties. Su
7、bpart FAlcohol Misuse and Controlled Substances Use Information, Training, and Referral 382.601 Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances. 382.603 Training for supervisors. 382.605 Referral, evaluation, and treatment. AUTHORITY: 49 U.S.C. 31
8、133, 31136, 31301 et seq., 31502; and 49 CFR 1.73. SOURCE: 66 FR 43103, Aug. 17, 2001, unless otherwise noted. Subpart AGeneral 382.101 Purpose. The purpose of this part is to estab-lish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol or use of con-troll
9、ed substances by drivers of com-mercial motor vehicles. 382.103 Applicability. (a) This part applies to every person and to all employers of such persons who operate a commercial motor vehi-cle in commerce in any State, and is subject to: (1) The commercial drivers license requirements of part 383 o
10、f this sub-chapter; (2) The Licencia Federal de Con-ductor (Mexico) requirements; or (3) The commercial drivers license re-quirements of the Canadian National Safety Code. (b) An employer who employs him-self/herself as a driver must comply with both the requirements in this part that apply to emplo
11、yers and the re-quirements in this part that apply to drivers. An employer who employs only himself/herself as a driver shall imple-ment a random alcohol and controlled substances testing program of two or VerDate Mar2010 08:20 Dec 16, 2010 Jkt 220216 PO 00000 Frm 00176 Fmt 8010 Sfmt 8010 Y:SGML2202
12、16.XXX 220216jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-167 Federal Motor Carrier Safety Administration, DOT 382.107 more covered employees in the random testing selection pool. (c) The exceptions contained in 3
13、90.3(f) of this subchapter do not apply to this part. The employers and drivers identified in 390.3(f) of this subchapter must comply with the requirements of this part, unless otherwise specifically provided in paragraph (d) of this sec-tion. (d) Exceptions. This part shall not apply to employers a
14、nd their drivers: (1) Required to comply with the alco-hol and/or controlled substances test-ing requirements of part 655 of this title (Federal Transit Administration alcohol and controlled substances test-ing regulations); or (2) Who a State must waive from the requirements of part 383 of this sub
15、-chapter. These individuals include ac-tive duty military personnel; members of the reserves; and members of the na-tional guard on active duty, including personnel on full-time national guard duty, personnel on part-time national guard training and national guard mili-tary technicians (civilians wh
16、o are re-quired to wear military uniforms), and active duty U.S. Coast Guard per-sonnel; or (3) Who a State has, at its discretion, exempted from the requirements of part 383 of this subchapter. These indi-viduals may be: (i) Operators of a farm vehicle which is: (A) Controlled and operated by a far
17、mer; (B) Used to transport either agricul-tural 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 farmers farm. (ii) Firefighters or other persons who operate
18、 commercial motor vehicles which are necessary for the preserva-tion 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. 382.105 Testing procedures. Each employer shall ensure that a
19、ll alcohol or controlled substances test-ing 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. 382.107 Definitions. Wo
20、rds or phrases used in this part are defined in 386.2 and 390.5 of this subchapter, and 40.3 of this title, ex-cept as provided in this section Actual knowledge for the purpose of subpart B of this part, means actual knowledge by an employer that a driv-er has used alcohol or controlled sub-stances
21、based on the employers direct observation of the employee, informa-tion provided by the drivers previous employer(s), a traffic citation for driv-ing a CMV while under the influence of alcohol or controlled substances or an employees admission of alcohol or controlled substance use, except as pro-vi
22、ded in 382.121. Direct observation as used in this definition means observa-tion of alcohol or controlled substances use and does not include observation of employee behavior or physical charac-teristics sufficient to warrant reason-able suspicion testing under 382.307. Alcohol means the intoxicatin
23、g agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alco-hol. 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 indi-cated by an evidential breath
24、 test under this part. Alcohol use means the drinking or swallowing of any beverage, liquid mix-ture or preparation (including any medication), containing alcohol. Commerce means: (1) Any trade, traffic or transpor-tation within the jurisdiction of the United States between a place in a State and a
25、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 de-scribed in paragraph (1) of this defini-tion. Commercial motor vehicle means a motor vehicle or combina
26、tion of motor VerDate Mar2010 08:20 Dec 16, 2010 Jkt 220216 PO 00000 Frm 00177 Fmt 8010 Sfmt 8010 Y:SGML220216.XXX 220216jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-168 49 CFR Ch. III (10110 Edition) 382.107 vehi
27、cles 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
28、 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 Haz-ardous Materials Transportation Act
29、(49 U.S.C. 5103(b) and which require the motor vehicle to be placarded under the Hazardous Materials Regula-tions (49 CFR part 172, subpart F). Confirmation (or confirmatory) drug test means a second analytical proce-dure performed on a urine specimen to identify and quantify the presence of a speci
30、fic drug or drug metabolite. Confirmation (or confirmatory) validity test means a second test performed on a urine specimen to further support a va-lidity test result. Confirmed drug test means a confirma-tion test result received by an MRO from a laboratory. Consortium/Third party administrator (C/
31、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 pro-vision of a number of such services and perform administrative tasks con-cerning the operation of the employers drug and
32、 alcohol testing programs. This term includes, but is not limited to, groups of employers who join to-gether to administer, as a single enti-ty, 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.
33、 Controlled substances mean those sub-stances identified in 40.85 of this title. Designated employer representative (DER) is an individual identified by the employer as able to receive commu-nications and test results from service agents and who is authorized to take immediate actions to remove empl
34、oy-ees from safety-sensitive duties and to make required decisions in the testing and evaluation processes. The indi-vidual 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 accide
35、nt in its usual manner in daylight after simple repairs. (1) Inclusions. Damage to motor vehi-cles 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.
36、(ii) Tire disablement without other damage even if no spare tire is avail-able. (iii) Headlight or taillight damage. (iv) Damage to turn signals, horn, or windshield wipers which make them in-operative. DOT Agency means an agency (or operating administration) of the United States Department of Trans
37、por-tation administering regulations re-quiring alcohol and/or drug testing (14 CFR parts 61, 63, 65, 121, and 135; 49 CFR parts 199, 219, 382, and 655), in accord-ance with part 40 of this title. Driver means any person who oper-ates a commercial motor vehicle. This includes, but is not limited to:
38、 Full time, regularly employed drivers; cas-ual, intermittent or occasional drivers; leased drivers and independent owner- operator contractors. Employer means a person or entity employing one or more employees (in-cluding an individual who is self-em-ployed) that is subject to DOT agency regulation
39、s 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, in-cluding individuals employed by the entity who take personnel actions re-sulting from violations of this part and any applic
40、able DOT agency regula-tions. Service agents are not employers for the purposes of this part. Licensed medical practitioner means a person who is licensed, certified, and/or VerDate Mar2010 08:20 Dec 16, 2010 Jkt 220216 PO 00000 Frm 00178 Fmt 8010 Sfmt 8010 Y:SGML220216.XXX 220216jdjones on DSK8KYBL
41、C1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-169 Federal Motor Carrier Safety Administration, DOT 382.107 registered, in accordance with applica-ble Federal, State, local, or foreign laws and regulations, to prescribe con-trolled su
42、bstances and other drugs. Performing (a safety-sensitive function) means a driver is considered to be per-forming 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 ra
43、te for random drug testing means the number of verified positive results for random drug tests con-ducted under this part plus the number of refusals of random drug tests re-quired by this part, divided by the total number of random drug tests re-sults (i.e., positives, negatives, and re-fusals) und
44、er this part. Refuse to submit (to an alcohol or con-trolled substances test) means that a driver: (1) Fail to appear for any test (except a pre-employment test) within a rea-sonable time, as determined by the em-ployer, consistent with applicable DOT agency regulations, after being di-rected to do
45、so by the employer. This includes the failure of an employee (in-cluding an owner-operator) to appear for a test when called by a C/TPA (see 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 b
46、efore the testing proc-ess commences (see 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 beca
47、use he or she has left the testing site before the testing process commences (see 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 mon-itoring of
48、the drivers provision of a specimen (see 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 re-quired medical evaluation, that there was no adequate medical explanation for the failure (see 40.193(d)(2) of this
49、title); (6) Fail or declines to take a second test the employer or collector has di-rected the driver to take; (7) Fail to undergo a medical exam-ination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under 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-em-ployment test is conducted following a
