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Question 1: Are intrastate drivers of commercial motor vehicles (CMV)s, who are required to obtain CDLs, required to be alcohol and drug tested by their employer?
Guidance: Yes. The definition of commerce in 382.107 is taken from 49 U.S.C. Section 31301 which encompasses interstate, intrastate and foreign commerce.
Question 2a: Are students training to be commercial motor vehicle drivers subject to drug and alcohol testing?
Question 2b: What is the driving school’s responsibility for drug and alcohol testing?
Question 2c: Are student drivers required to obtain a CDL in order to operate CMV training vehicles provided by the school?
Guidance 2a: Yes. The regulations in 49 CFR Part 382 apply to drivers operating a commercial motor vehicle (CMV) requiring a commercial driver’s license (CDL) or commercial learner’s permit (CLP) in commerce.
Guidance 2b: If a driver training school employs a student driver or leases a CMV to the student driver and the CMV is operated in commerce by the school, then the regulations in 49 CFR Part 382 apply to the driver training school. If the school is not an employer, the student driver is ultimately responsible for meeting these requirements, however the school may ensure that the student driver has complied with the requirements of part 382 prior to allowing the student driver to operate a CDL vehicle.
Guidance 2c: Not necessarily. To operate a CMV on public roads or highways, a student driver is required to either (a) possess a valid CDL or (b) possess a valid commercial learner’s permit, which requires meeting the minimum conditions in 49 CFR 383.25(a).
Question 3: Are part 382 alcohol and drug testing requirements applicable to firefighters in a State which gives them the option of obtaining a CDL or a non-commercial class A or B license restricted to operating fire equipment only?
Guidance: No. The applicability of part 382 is coextensive with part 383—the general CDL requirements. Only those persons required to obtain a CDL under Federal law and who actually perform safety-sensitive duties, are required to be tested for drugs and alcohol.
The FHWA, exercising its waiver authority, granted the States the option of waiving firefighters from CDL requirements. A State which gives fire fighters the choice of obtaining either a CDL or a non-commercial license has exercised the option not to require CDLs. Therefore, because a CDL is not required, by extension part 382 is not applicable.
A firefighter in the State would not be required under Federal law to be tested for drugs and alcohol regardless of the type of license which the employer required as a condition of employment or the driver actually obtained. It is the Federal requirement to obtain a CDL, nonexistent in the State, that entails drug and alcohol testing, not the fact of actually holding a CDL.
Question 4: An employer or State government agency requires CDLs for drivers of motor vehicles: (1) with a GVWR of 26,000 pounds or less; (2) with a GCWR of 26,000 pounds or less inclusive of a towed unit with a GVWR of 10,000 pounds or less; (3) designed to transport 15 or less passengers, including the driver; or (4) which transport HM, but are not required to be placarded under 49 CFR part 172, subpart F. Are such drivers required by part 382 to be tested for the use of alcohol or controlled substances?
Guidance: No. Part 382 requires or authorizes drug and alcohol testing only of those drivers required by part 383 to obtain a CDL. Since the vehicles described above do not meet the definition of a Commercial Motor Vehicle (CMV) in part 383, their drivers are not required by Federal regulations to have a CDL.
Question 5: Are Alaskan drivers with a CDL who operate Commercial Motor Vehicle (CMV)s and have been waived from certain CDL requirements subject to controlled substances and alcohol testing?
Guidance: Yes. Alaskan drivers with a CDL who operate Commercial Motor Vehicle (CMV)s are subject to controlled substances and alcohol testing because they have licenses marked either “commercial driver’s license” or “CDL.” The waived drivers are only exempted from the knowledge and skills tests, and the photograph on license requirements.
Question 6: Do the Federal Motor Carrier Safety Administration’s (FMCSA) alcohol and controlled substances testing regulations apply to employers and drivers in U.S. territories or possessions such as Puerto Rico and Guam?
Guidance: No. The rule by definition applies only to employers and drivers domiciled in the 50 states and the District of Columbia.
Question 7: Which drivers are to be included in a alcohol and controlled substances testing program under the Federal Motor Carrier Safety Administration’s (FMCSA) rule?
Guidance: Any person who operates a Commercial Motor Vehicle (CMV), as defined in §382.107, in intrastate or interstate commerce and is subject to the CDL requirement of 49 CFR part 383.
Question 8: Is a foreign resident driver operating between the U.S. and a foreign country from a U.S. terminal for a U.S.-based employer subject to the Federal Motor Carrier Safety Administration’s (FMCSA) alcohol and controlled substances testing regulations?
Guidance: Yes. A driver operating for a U.S.-based employer is subject to part 382.
Question 9: What alcohol and drug testing provisions apply to foreign drivers employed by foreign motor carriers?
Guidance: Foreign employers are subject to the alcohol and drug testing requirements in part 382 (see §382.103). All provisions of the rules will be applicable while drivers are operating in the U.S. Foreign drivers may also be subject to State laws, such as probable cause testing by law enforcement officers.
Question 10: Are volunteer drivers subject to alcohol and drug testing?
Guidance: Yes. The applicability of Part 382 is coextensive with Part 383. The definition of “driver” in §382.107 and the definition of “employee” in §383.5 both include “any” operator or person who operates a commercial motor vehicle. There is no exception for volunteer drivers. They are included in the scope and intent of the definition of “commerce” (in both §382.107 and §383.5), because their functions “affect trade, traffic, and transportation.” The question of whether or not they are compensated is irrelevant.
Question 11: Are Owner-Operators that operate commercial motor vehicles (CMVs) on the public roads that require a commercial driver’s license (CDL) subject to DOT drug and alcohol testing?
Guidance: Yes. Any person operating a CMV requiring a CDL in intrastate or interstate commerce is required to participate in a DOT Drug & Alcohol Testing Program. Please see §382.103, §382.305 question 11. Owner-operators must register with a consortium and participate in the Consortium’s random testing pool. A consortium/third-party administrator (C/TPAs) is an entity that manages all, or part, of an employer’s DOT drug and alcohol testing program. See more information at: https://www.fmcsa.dot.gov/regulations/drug-alcohol-testing/what-are-consortiumthird-party-administrators#sthash.xu4XJbe0.dpuf. Please be advised, FMCSA does not approve or endorse C/TPAs (e.g. service agents).
Suggestions on how to find a consortium and participate in a DOT Drug and Alcohol Program:
- Conduct internet search and type in the key words Consortium DOT Drug & Alcohol Testing owner-operator.
- Seek advice from motor carrier industry or trucking related organizations in your area.
- Search the yellow pages.
For additional questions please refer to The Office of Drug and Alcohol Policy and Compliance (ODAPC) Frequently Asked Questions.
Question 12: Are Canadian and Mexican CDL drivers conducting operations in the United States subject to the Clearinghouse requirements?
Guidance: Yes, all Mexican or Canadian employers, employees, or service agents operating in the United States that are subject to the Federal Motor Carrier Safety Administration drug and alcohol testing requirements must comply with the Clearinghouse final rule. See 49 CFR 382.103(a)(2) and (3).
Question 13: Are CDL drivers who are employed by state government agencies subject to DOT drug and alcohol testing requirements?
Guidance: Yes. Drivers for government agencies who operate vehicles that require a CDL, and are not otherwise exempted in §382.103(d) are subject to FMCSA’s drug and alcohol testing requirements in 49 CFR part 382.
The statutory definition of “employer” is “a person (including the United States Government, a State, or a political subdivision of a State) that owns or leases a commercial motor vehicle or assigns employees to operate a commercial motor vehicle. See 49 U.S.C. 31301. FMCSA’s regulation at §382.103(c) specifically provides that the exceptions from certain Federal Motor Carrier Safety Regulations for Federal, State, and local government agencies do not apply to the FMCSA drug and alcohol testing requirements in Part 382. The only exceptions to the requirements of part 382 are found in §382.103(d).
Question 14: Are Canadian and Mexican employers required to report drug and alcohol program violations to the Clearinghouse?
Guidance: Only Canadian and Mexican employers operating in the United States that are subject to the Federal Motor Carrier Safety Administration (FMCSA) drug and alcohol testing requirements must report drug and alcohol program violations to the Clearinghouse. See 49 CFR 382.103(a)(2) and (3).
Question 15: Is a person who is attending a truck driving school, and does not yet have a commercial learner’s permit (CLP) or CDL, required to complete the part 40, subpart O return-to-duty process if they test positive on a drug or alcohol test administered by the school?
Guidance: Student drivers who do not have a CLP or CDL are not subject to the DOT drug and alcohol testing requirements. Therefore, a drug test performed by the driving school on a student who does not have a CLP or CDL is not a DOT drug or alcohol test and the student would not be subject to the DOT return-to-duty process.
If a driver training school employs a student driver, who holds a CLP or CDL, or leases a CMV to the student driver and the CMV is operated in commerce by the school, then the regulations in 49 CFR Part 382 apply to the driver training school. If the school is not an employer, the student driver is ultimately responsible for meeting these requirements, however the school may ensure that the student driver has complied with the requirements of part 382 prior to allowing the student driver to operate a CDL vehicle. See 49 CFR 382.103.
Question 16: Are employers required to query the Clearinghouse or report drug and alcohol program violations for drivers who do not hold a commercial driver’s license (CDL) or commercial learner’s permit (CLP)?
Guidance: No. Only employers who employ drivers subject to the licensing requirements in 49 CFR Part 383 and the drug and alcohol testing requirements in 49 CFR Part 382 are required to query or report information in the Clearinghouse. However, employers of drivers not holding a CDL or CLP must still comply with the driver investigation requirements of §391.23(e), which includes drug and alcohol violation history. See 49 CFR 382.103.
Question 17: Are motor carrier employers operating in Puerto Rico required to query/report to the Clearinghouse if they employ commercial driver’s license (CDL) holders who rely on the CDL to legally operate a commercial motor vehicle (CMV) in Puerto Rico?
Guidance: No. The Clearinghouse final rule did not change the underlying requirements in 49 CFR Part 382, which apply to employers of individuals subject to the Federal Motor Carrier Safety Administration (FMCSA) drug and alcohol use testing requirements. As stated in §382.103, those testing requirements apply to CDL holders who operate a CMV in commerce “in any State.” As defined in §383.5, State means “a State of the United States and the District of Columbia.”
Question 18: Occasional Drivers: My company purchased a large truck that is over 26,001 lbs. gross vehicle weight rating (GVWR). We do not currently employ any commercial driver’s license (CDL) drivers. The vehicle has only been driven a few times by a family friend, who is not an employee and has driven the vehicle as a favor absent any compensation. Does our company need a DOT drug and alcohol testing program to test this occasional driver?
Guidance: Yes. In accordance with §382.103, your company must implement a DOT drug and alcohol program for all drivers operating a commercial motor vehicle (CMV) that requires the driver to possess a commercial driver’s license (CDL). Section §382.107 defines “Driver” as “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. Your company must either cease all operations of the CMV on public roads, or implement a DOT drug and alcohol testing program for any driver before he/she may operate the vehicle, regardless of whether driver compensation is involved.
Question 19: When are drivers subject to the DOT Drug and Alcohol testing requirements?
Guidance: All drivers that operate in commerce a commercial motor vehicle, as defined in 49 CFR §382.107, which requires a driver holding a commercial driver’s license or commercial learner’s permit, are subject to the Drug and Alcohol testing requirements in 49 CFR parts 40 and 382. See 49 CFR §382.103 and §383.3. This includes, but is not limited to: full time, regularly-employed drivers; casual, intermittent or occasional drivers; leased drivers, and independent owner-operator contractors. See the definition of “driver” in §382.107.
Question 20: Under 49 CFR §382.103(d)(1), the requirements of 49 CFR Part 382 do not apply to employers and their drivers “required to comply with the alcohol and/or controlled substances testing requirements of part 655 (Federal Transit Administration (FTA) alcohol and controlled substances testing regulations).” Does this mean that FTA-regulated employers and drivers are exempt from the Clearinghouse requirements?
Guidance: It depends. Drivers who perform only FTA-regulated safety-sensitive functions are exempt from Part 382, including the Clearinghouse requirements, as are their employers. These drivers and employers are subject only to the alcohol and/or controlled substances testing requirements of Part 655. On the other hand, FTA-regulated entities that employ drivers who also perform FMCSA-regulated safety-sensitive functions must comply with the relevant alcohol and/or controlled substances testing requirements of Part 382. The following examples illustrate how employers subject to Part 655 also could be subject to Part 382.
Example #1: A driver operates a bus under the authority of the FTA during the week, but sometimes operates a charter bus, for the same employer, on the weekend. The charter operation is regulated by FMCSA, not FTA. If the driver is involved in a crash during the charter operation and is subject to post-accident testing, that testing is conducted under the authority of FMCSA (§382.303) and the results must be reported to the Clearinghouse. The same would be true for any testing conducted under the authority of FMCSA (e.g., random testing for drivers in an FMCSA random pool (§382.305)). This result is the same for any employer regulated by more than one Department of Transportation (DOT) mode; the modal authority under which the testing is conducted determines which modal regulations apply.
Example #2: A driver regularly operates a bus under the authority of the FTA, but sometimes operates a truck, for which a commercial driver’s license (CDL) is required, for the same employer. In situations like this, the dual FTA/FMCSA regulated employer must conduct a pre-employment query for any driver expected to perform any FMCSA-regulated safety-sensitive functions in the course of their employment, and conduct an annual query for all drivers who have performed any FMCSA-regulated function within the last year.