Controlled Substances & Alcohol Use and Testing

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 382, 391, 392, and 395

[FHWA Docket Nos. MC-116, MC-92-19, MC-92-23]

RIN 2125-AA79, 2125-AC85, 2125-AD06

Federal Register: February 15, 1994

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

SUMMARY: The FHWA is adding regulations on controlled substances and alcohol use and testing to the Federal Motor Carrier Safety Regulations and making conforming amendments to other parts of those regulations. This is being done to comply with the requirements of the Omnibus Transportation Employee Testing Act of 1991. This rule requires employers to test drivers who are required to obtain commercial driver's licenses (CDLs) for the illegal use of alcohol and controlled substances.

EFFECTIVE DATE: March 17, 1994.

FOR FURTHER INFORMATION CONTACT: For information regarding program issues: Mr. David Miller, Office of Motor Carrier Standards, (202) 366-2981, or for information regarding legal issues: Mr. David Sett, Office of the Chief Counsel, (202) 366-0834, Federal Highway Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal legal holidays.

SUPPLEMENTARY INFORMATION:

I. How to Read the FHWA Rules Published Today

A. Final Rules

The final rules requiring drug and alcohol testing of commercial motor vehicle operators are published in three places in today's Federal Register. This document contains the final rule for part 382, consisting of the substantive requirements of who, what, where, and when drug and alcohol testing must be done by employers. The text of the rule follows the discussion in this preamble. This final rule follows from two separate notices of proposed rulemakings—one for alcohol testing and one for drug testing. Five other operating administrations (OA) of the Department are publishing similar substantive rules for alcohol testing in today's Federal Register .

In addition, a Department of Transportation-wide preamble precedes this document in today's Federal Register. It is entitled Limitation on Alcohol Use by Transportation Workers. This common preamble discusses comments to the notices of proposed rulemakings (NPRM) published by six operating administrations on December 15, 1992, including the FHWA, and the parts of the final rules common to the six operating administrations. It should be read in conjunction with this document to ensure a complete understanding of the FHWA's final rule. There is no common rule associated with the common preamble. The rule contained in this document contains the requirements for motor carriers.

A third document, consisting of regulatory amendments and a preamble, contains the technical testing procedures designed for use when testing is required by part 382, this rule. Procedures for Transportation Workplace Drug and Alcohol Testing Programs, also published elsewhere in today's Federal Register, specifies how the testing is to be conducted. It adds alcohol testing procedures and drug testing amendments to 49 CFR part 40, the current Department-wide drug testing procedures regulation.

B. Notices of Proposed Rulemakings

In addition to the final rules mentioned above, the FHWA is also publishing in today'sFederal Register three proposals to change certain provisions of the final rules. For more information than provided below, please refer to each NPRM.

The first NPRM contains a proposal to amend the part 382 final rule you are now reading to include foreign-based employers and their drivers who operate commercial motor vehicles in and through the United States. Included is a discussion of the comments received in response to an advanced notice of proposed rulemaking (ANPRM) published by the FHWA on December 15, 1992, in which various issues related to foreign coverage were raised.

The second NPRM proposes to amend part 40 to allow confirmatory blood testing for alcohol during reasonable suspicion and post-accident tests when an evidential breath testing device is not readily available. The Department-wide proposal seeks comment on how blood testing for alcohol should be conducted and what laboratories should be used.

The third NPRM proposes a Department-wide procedure for each operating administration's Administrator to adjust the random drug testing rate. Paralleling the provisions for adjusting the alcohol testing rate appearing in this rulemaking, the proposal would allow a reduction in the drug testing rate based upon reliable statistics of positive rates for each operating administration's program.

C. Use of Terms That Might Be Confusing to the Reader

In this document and the others published by the FHWA and the Department in today's Federal Register, the terms "drugs" and "controlled substances" are interchangeable and have the same meaning. Unless otherwise provided, drugs and controlled substances refer to marijuana (THC), cocaine, opiates, phencyclidine (PCP), and amphetamines (including methamphetamines).

II. Background

A. Statutory Authority

The Omnibus Transportation Employee Testing Act of 1991 (the Omnibus Act) was signed by President Bush on October 28, 1991, as part of the 1992 Department of Transportation and Related Agencies Appropriations Act. Public Law 102-143, Title V, 105 Stat. 917, 952 (1991). The Omnibus Act requires the Secretary of Transportation to promulgate regulations for alcohol and controlled substances testing for persons in safety-sensitive positions in four modes of transportation—motor carrier, airline, railroad, and mass transit. The general requirements of the Omnibus Act are addressed in the Office of the Secretary of Transportation's (OST) final rule amending 49 CFR part 40 and in the common preamble, applicable to all of the U.S. Department of Transportation (DOT) modal agency rules on alcohol testing programs. These documents appear elsewhere in today's issue of the Federal Register.

Section 5 of the Omnibus Act addresses requirements specific to employers who own or lease commercial motor vehicles (CMVs) or assign persons to operate such vehicles. 49 U.S.C. 2717. This section amends the Commercial Motor Vehicle Safety Act of 1986 (CMVSA). Public Law 99-570, 100 Stat. 3207-170 (codified at 49 U.S.C. app. 2701-2718). The CMVSA established the requirements for the Commercial Drivers License (CDL). The FHWA has implemented the CDL provisions of the CMVSA through the publication of several final rules.

The Omnibus Act requires the Secretary to issue regulations requiring employers to conduct pre-employment, reasonable suspicion, random and post-accident testing of drivers for the use, in violation of law or Federal regulation, of alcohol or controlled substances. Congress recognized current FHWA regulations for controlled substances testing and the scientific and technical guidelines established by the Department of Health and Human Services incorporated therein.

In addition, this rule is issued under the general safety regulatory authority of the FHWA. See 49 U.S.C. 3102 and app. 2505.

B. Regulatory History

1. Current Regulations

The FHWA published a final rule on November 21, 1988, setting forth regulations to require employers who operate CMVs in interstate commerce to have an anti-controlled substances program, including the testing of interstate CMV drivers. See 53 FR 47134. That rule required employers to conduct five types of controlled substances tests: Pre-employment/use; periodic; reasonable cause; post-accident; and random. 49 CFR part 391, subpart H.

Though there is no corresponding alcohol testing program currently applicable to motor carriers, a number of other regulations prohibit the misuse of alcohol and drugs when operating a CMV. Prohibitions on use before and during driving appear in 49 CFR 392.4 and 392.5. A driver who is convicted of being under the influence of drugs or alcohol while driving a CMV is subject to CDL suspension. 49 CFR 383.51. A driver who uses Schedule I drugs, without medical authorization, is physically unqualified to drive in interstate commerce. 49 CFR 391.41(b)(12).

On the same date, November 21, 1988, and in conjunction with publication of the FHWA drug testing rule, the OSpublished a Department-wide interim final rule, "Procedures for Transportation Workplace Drug Testing Programs." See 53 FR 47002. On December 1, 1989, OSpublished a final rule amending certain portions of the interim final rule. 54 FR 49854, 49 CFR part 40.

Subsequent to the publication of the November 21, 1988, FHWA final rule, the FHWA published several notices relating to the controlled substances testing requirements. See 54 FR 39546, 54 FR 46616, and 54 FR 53294. On February 1, 1990, the FHWA published an interim final rule and requested additional comments to FHWA Docket No. MC-116 on the changes to the rule and how to streamline the controlled substances testing program. 55 FR 3546. The FHWA received 24 comments in response to this interim final rule. The responses to two of these comments will be addressed later in this document. The other comments were addressed in a recent rulemaking on the drug testing management information system (58 FR 68194 and 68220, December 23, 1993).

On November 2, 1989, OSpublished an advance notice of proposed rulemaking (ANPRM) on alcohol testing. 54 FR 46326.

2. Notices of Proposed Rulemaking

On December 15, 1992, the FHWA requested public comments on two notices of proposed rulemaking (NPRM) which address alcohol and controlled substance testing:

1. Alcohol Testing [57 FR 59382, 59409, and 59516, December 15, 1992, Docket No. MC-92-19], and

2. Controlled Substances Testing [57 FR 59382, 59409, and 59567, December 15, 1992, Docket No. MC-92-23].

3. Public Hearings

The Department of Transportation and the FHWA held three 2-day public hearings regarding the alcohol and controlled substances testing NPRMs. The hearings were held in Washington, DC, on February 25 and 26, Chicago, Illinois, on March 1 and 2, and San Francisco, California, on March 4 and 5. The FHWA has included transcripts of each hearing in the rulemaking dockets. Comments made at the hearings are discussed below along with written comments submitted directly to the dockets.

4 Comments to the Dockets

A. Alcohol Testing [Docket MC-92-19]. Comments to docket MC-92-19 that relate to rule provisions common to all operating administrations are discussed in the common preamble, Limitation on Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register . Discussion in this rulemaking document will focus on aspects or applications of the rule which are unique to FHWA. Where a discussion is included in this document, the corresponding section in the common preamble should also be consulted for a complete understanding of this final rule.

The FHWA received 323 comments to docket MC-92-19, the alcohol NPRM, by the close of business on April 14, 1993. The commenters included employers, drivers, trade associations, unions, medical review officers (MROs), substance abuse professionals (SAPs), and governmental agencies, including law enforcement agencies, and school districts.

Applicability

Comments: Many custom harvesters stated that their industry should retain the current exemption from drug testing in 49 CFR part 391, Qualification of Drivers, and also be exempt from alcohol testing. Some commenters, including The Kansas Electric Coop, stated that rural electric cooperatives should be exempt from testing because job responsibilities are different from those of over-the-road truck drivers. They stated that their employees spend minimal time on high speed thoroughfares in close proximity to small passenger cars. A local government agency stated that mechanics should not be subject to alcohol and controlled substances testing because they could not afford such a program.

The Virginia State Police, among others, stated that only employees subject to 49 CFR part 391 should be tested. They stated that the controlled substances testing program is in place and working. The additional testing for alcohol could readily be implemented. Some comments recommended a partial exemption for foreign drivers and a total exemption for electrical contractors.

Other commenters, including the Owner-Operator Independent Drivers Association (OOIDA), disagreed with the principle of industry-wide waivers from alcohol-testing regulations. Though it opposes non-probable cause testing, the OOIDA stated that if testing were imposed, all drivers should be treated equally. The Federal mandate is that government and school bus drivers be tested as other drivers are tested.

One commenter stated that employees who worked for employers subject to the Federal Transit Administration (FTA) rules should be tested under FTA rules. Another commenter asked how to report CDL drivers who are subject to the Federal Transit Act, and whether non-CDL and non-Section 18 drivers must be tested. The Montana and South Dakota Departments of Transportation recommended that transit systems with fewer than 15 safety-sensitive employees should be exempt from testing regulations. The Association of American Railroads (AAR) and Transtar, Inc. stated that railroad employees who operate CMVs should be tested under the jurisdiction of the FRA, not the FHWA. The AAR stated that most railroad employees, who operate CMVs, drive their vehicles sporadically. Driving is not their primary responsibility. Some commenters stated pipeline employees, who operate CMVs, should only be subject to Research and Special Programs Administration (RSPA) jurisdiction.

The Tennessee Valley Authority (TVA) and other commenters stated that employees subject to the Nuclear Regulatory Commission (NRC) should be tested under NRC regulations. The TVA stated that there is needless, costly duplication which significantly compounds the opportunity for human error in the testing program. The U.S. Postal Workers Union stated that the U.S. Post Office has a credible controlled substances testing program and should be given credit for their program. Pinnacle Transport Services, Inc. stated that drivers of CMVs should only be subject to FHWA regulations.

Other commenters, including the Washington State Patrol (WSP), stated that government employees should be totally exempted from the alcohol testing regulations. The WSP stated that requiring governmental agencies, including school bus drivers and highway road crews, to implement random alcohol testing would further reduce limited budgets for these agencies. The WSP also stated that their state currently has a strong and effective school bus inspection program.

FHWA Response: The Omnibus Act, as stated above, amended the CMVSA, subjecting all drivers of CMVs who are required to obtain CDLs to testing for the illegal use of alcohol and controlled substances. The Omnibus Act does not provide specific waiver authority apart from the CMVSA. The CMVSA gives the Secretary the discretion to waive classes of drivers and vehicles from all or part of the statute's requirements. The FHWA does not believe that this waiver authority is broad enough to waive all drivers from requirements of the Omnibus Act. See H.R. Rep. No. 901, 99th Cong., 2d Sess. 4 (1986). Moreover, the FHWA does not believe it is in the public interest to grant industry-wide exemptions from testing requirements beyond those permitted in the CDL program as a whole. Therefore, only those few categories of drivers that have received full waivers from CDL requirements are similarly waived from drug and alcohol testing requirements.

Employers not subject to this rule will be those employers who exclusively employ drivers that are not subject to commercial driver's license requirements. Such employers may be Department of Defense (DoD) agencies who only employ active duty military personnel. Those (DoD) agencies that employ civilian and non-active duty drivers will be subject to these rules and must implement FHWA required testing programs for those civilian and non-active duty drivers. Other employers not subject to this rule include farmers, emergency response and firefighting companies, when they employ drivers that have been waived from the CDL requirements by their State of licensure.

Employers who are subject to the Federal Transit Administration's (FTA) alcohol and controlled substances testing regulations are not subject to the FHWA's regulations. The FTA generally requires its grantee's to be subject to its rules. The FTA, however, will not require recipients receiving Federal funding under section 16(b)(2) of the Federal Transit Act to follow the FTA substance testing rule. The Federal Transit Act, under section 16(b)(2), provides capital assistance through a State to organizations that provide specialized transportation services to elderly persons and persons with disabilities. The funds may go to nonprofit organizations, and under certain circumstances, to public bodies.

Though some commenters suggested to the FHWA and the FTA that the FTA cover section 16(b)(2) recipients in the FTA rule, the Omnibus Act does not provide such coverage. Therefore, the CMV drivers of section 16(b)(2) recipients will be covered under this FHWA rule. See the FTA final rule published elsewhere in today's Federal Register for further information.

As for employers and drivers subject to other Federal agencies' testing programs, the FHWA, along with the other operating administrations in the Department and the OST, have worked with the NRC, the Departments of Energy (DOE) and Health and Human Services (DHHS) and other Federal agencies to establish similar requirements for testing of both the agencies' Federal employees and regulated entities. The FHWA has attempted to have substantially compatible regulations with all Federal agencies that require testing of Federal and non-Federal employees. However, operators of CMVs and their employers must comply with the requirements of the Omnibus Act regardless of whether an employer has an existing drug and/or alcohol testing program.

This section also specifies that persons who are both an employer and a driver, that is, the person who owns a business and also drives a commercial motor vehicle for that business (generally called an owner-operator), must comply with both the driver and the employer requirements contained in part 382. This section also stipulates that an employer with only one driver may not have an independent random testing program. Such employers must join a group of other DOT regulated employers, generally known as a consortium, to conduct random testing for alcohol and drug testing. This requirement is necessary to ensure a truly random selection, since it is impossible to randomly select from a pool that contains only one person.

Definitions

Comments: The Council of Special Transportation and the County of Somerset, New Jersey stated that the term "safety-sensitive position" should be defined in the regulations. The Council of Special Transportation added that the FHWA and FTA should minimize inconsistencies in their respective regulations and definitions. Other commenters stated that the definition of the term "accident" should be consistent with current rules.

FHWA Response: The term "safety-sensitive function" was defined in the proposal and is defined in this final rule. A safety-sensitive function or position in the mass transit industry encompasses more functions than the FHWA's exclusive definition of a CMV driver and thus, the FHWA and FTA cannot have identical definitions for this term. Testing is restricted to CMV operators in Section 5 of the Omnibus Act. Section 6, in contrast, allows the FTA to determine what mass transportation employees are responsible for safety-sensitive functions. See the FTA final rule published elsewhere in today's Federal Register for a complete discussion of FTA covered safety-sensitive functions.

The FHWA proposed a definition of "accident" to be consistent with the Omnibus Act, which requires that drivers involved in an accident where there is loss of human life, regardless of fault be tested. The Secretary is also given the discretion to determine what other serious accidents, involving bodily injury or significant property damage, trigger post-accident testing. The FHWA is maintaining the definition as proposed in the NPRM, which adopted the definition of accident appearing in 49 CFR 390.5.

Requirement for Notice

Comments: Numerous commenters opposed any requirement to provide written notification, stating that because the proposed regulations prohibit an employer from representing a non-DOT test as a test conducted under the regulations of the Department, no written notice is necessary. Other commenters stated that written notice should be provided. The Amalgamated Transit Union (ATU) stated that a written notice requirement would establish uniformity and confirm that notice has been properly given. Recommendations regarding the time frame for written notice ranged from immediately prior to the test to the day of the test.

FHWA Response: This requirement is necessary to address the concerns of drivers who have complained that their employers purported to require a test under the current drug testing program when, in fact, the test was not required by FHWA regulations. In order to provide employers with flexibility, the form of the notification is not prescribed. It may be oral or written. The breath alcohol testing form and the drug testing custody and control form may be used to meet the requirement for notice. The final rule requires only that notification be given prior to the administration of the test.

Medication Exception.

Comments: Several commenters, including the American Trucking Associations (ATA), stated that an exception should not be made for the consumption of prescription medication containing alcohol. However, the ATA also stated that employees should be allowed to possess prescription medicine containing alcohol.

Other comments, including those from the OOIDA, stated that an exception should be allowed for the consumption of prescription medicine containing alcohol. STA United Inc. recommended removing the stipulation that an employer must have actual knowledge that an employee possesses alcohol, arguing that actual knowledge implies the existence of a witness and the presence of a witness justifies the performance of a reasonable suspicion test.

FHWA Response: The FHWA received no comments regarding whether a driver is as safe on the highway using medications as a driver who does not use them. We believe that the public interest is better served if we continue our long-standing prohibition on the possession and consumption of substances containing any amount of alcohol. Highway safety is of paramount importance, and there are alternative medications which do not contain alcohol. The FHWA continues to believe that CMV drivers must use non-impairing medications while driving CMVs.

Finally, it should be noted that mere possession of alcohol, standing alone, does not give rise to a reasonable suspicion test under this part, which must be based on observations concerning the appearance, behavior, speech, or body odors of a driver.

Pre-duty Alcohol Use

Comments: Several commenters stated that drivers should abstain from consuming alcohol prior to duty, but there was no consensus on the length of the required abstinence. The US DOE recommended 5 hours. The Texas Pupil Transportation Drug Testing Advisory Committee recommended 6 hours. Other commenters, including the American Bus Association (ABA) and U.S. West Communications, recommended 8 hours. The ABA believed that an 8 hour abstinence is necessary in order to prevent an otherwise lawful use of alcohol from invalidating a post-accident test. The Council on Special Transportation opposed the pre-duty prohibition on the use of alcohol because it is unfair to "on call" drivers and the employer can not enforce such a regulation.

FHWA Response: Current regulations applicable to persons who operate CMVs in interstate commerce prohibit a person from consuming an intoxicating beverage regardless of its alcohol content within 4 hours before going on duty, operating or having physical control of a motor vehicle. See 49 CFR 392.5. The FHWA believes that the public's interest in safety is better served if the current pre-duty alcohol prohibition is extended to all CMV operators subject to alcohol and controlled substances testing. All commenters who were in favor of prohibiting pre-duty alcohol use supported abstinence periods of 4 or more hours. The FHWA understands the concern of the ABA that the pre-duty use of alcohol may register during a post-accident test. The 4 hour abstinence period, however, is a minimum requirement, regardless of a driver's alcohol concentration. A driver may in fact need to abstain for a longer period in order to be below 0.02 BAC while operating a CMV.

Pre-employment/Pre-duty Testing

Comments: The ATA stated that pre-employment testing is unnecessary and that the FHWA should waive such testing under section 12013 of the CMVSA. Once a driver is hired, they state, the person is subject to random and probable cause testing, which is sufficient to deter misuse.

FHWA Response: Even accepting, for the sake of the argument, the comment's presumption that pre-employment testing is inherently useless, the FHWA does not believe it has the authority to waive all drivers from a major provision of the legislation. Eliminating all pre-employment tests would greatly diminish the number of required tests, and would, in effect, rewrite the statute.

Post-accident Testing

Comments: There were numerous comments to this section dealing with such issues as who should be required or permitted to perform the post-accident testing and how long after an accident occurs should a driver be required to be tested. Commenters, including the California Trucking Association (CTA), supported the position that law enforcement officials either be required or permitted to perform post-accident testing. The CTA stated that the police should perform post-accident testing because they have the necessary equipment and training to perform the tests. One commenter stated that the test should be performed if the accident is reportable, regardless of whether a citation is issued. Other commenters supported post-accident testing only if the driver receives a citation. The NEA opposed the requirement to test all CMV drivers involved in fatal accidents because the tested driver may not have caused the accident. The National Education Association (NEA) stated that there should be some showing of fault or culpability before a driver is required to be tested. A few commenters opposed post-accident testing.

There was no consensus on the maximum time limit after the accident an employer should be required to test the driver. The US DOE recommended one hour while others recommended either four or eight hours as the maximum limit. A few commenters did not like the eight hour time limit but did not recommend an alternative.

The National Solid Waste Management Association (NSWMA) stated that a post-accident test should not be voided if the testing official fails to give notice that the test is required by regulation. Other commenters stated that either police or employers should be permitted to conduct the test at the employer's option.

FHWA Response: The Omnibus Act expressly requires that every CMV driver involved in an accident that involves a fatality must be tested for alcohol and controlled substances, regardless of whether the driver was culpable or at fault.

The statute does allow, however, the FHWA to determine what other types of "serious accidents involving bodily injury or significant property damage" should lead to a driver being tested for alcohol and controlled substances. In order to be consistent with current standards, accidents as defined in 49 CFR 390.5 (towaway and medical assistance criteria) are considered serious enough to trigger testing. In addition, there must be some determination by a third party law enforcement official, through issuance of a traffic citation to the driver arising from the accident, that the driver's actions may have contributed to the accident.

Certain tests conducted by law enforcement officials with independent authority may be substituted by the employer for a post-accident test if the employer obtains the results. Since such tests would be conducted independent of this part, a law enforcement official would not give the notification required in this part.

Post-accident testing must be done as soon as possible after an accident. However, the FHWA realizes that there are times when, because of unforeseen problems, a test is not obtainable in the first couple of hours after the accident. The FHWA believes that the eight hour time frame for alcohol testing is therefore necessary to allow for testing under such circumstances. A driver who was over 0.10 BAC at the time of the accident may continue to test above 0.02 BAC at the time of the test. It is generally accepted that alcohol dissipates from the body in a very short time. However, the FHWA believes that a driver, who continues to have a prohibited alcohol concentration up to 8 hours after an accident that requires an alcohol/controlled substances test, should be subject to evaluation by a substance abuse professional.

Random Testing

See Limitation on Alcohol Use by Transportation Workers for discussion of random alcohol testing comments, including the random roadside testing option proposed in the NPRM but not included in the final rule.

Reasonable Suspicion Testing

Comments: A few commenters, including the IBT, were opposed to lowering the number of supervisors needed to make a reasonable suspicion observation, from the current rule's two to the proposal's one. The union stated that it weakens protection for workers. Other commenters supported the single supervisor requirement.

FHWA Response: The FHWA believes that requiring only one supervisor or company official to make a reasonable suspicion determination responds to the operational realities of motor carrier operations. The FHWA received many comments and much oral testimony stating that there are often not two supervisors available to make such determinations on those relatively infrequent occasions when some drivers return to terminals. Only one supervisor or company official might be present and available to observe the driver.

The current drug testing rule, moreover, requires observation by two supervisors or company officials only where feasible. It is the FHWA's experience in administering the rule that motor carriers often, due to the operational characteristics noted above, have not found it feasible to obtain observations from two supervisors. After the fact evaluation by the FHWA of feasibility has proven difficult. In effect, therefore, this rule may not be diminishing significantly the overall numbers of supervisors and company officials making reasonable suspicion determinations.

In order to counteract any perceived increase in the potential for abuse by company officials caused by eliminating the two supervisor requirement, the one supervisor who makes the reasonable suspicion determination is prohibited from conducting the alcohol test. Thus, it remains that at least two company officials must become involved before any driver is determined to have violated this rule such that the driver is referred to a SAP. Drivers are further protected by the requirement for all persons making reasonable suspicion determinations to receive at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of alcohol misuse.

Exceptions for Testing Performed by Consortiums

Comments: Pinnacle Transport Services, Inc. stated that the reference in the title of this topic to consortiums should be removed because it did not accurately and completely reference the applicable sections.

FHWA Response: The FHWA agrees, and has removed this as a separate exception. The only exceptions available in the final rule are placed under the pre-employment testing sections. The random testing exception has been removed entirely.

Retention of Records

Comments: Numerous commenters, including the ATA, recommended reducing the record retention period from the proposed 5-year period to a 3-year period. Roadway Express, Inc. stated that a maximum record retention period of three years would be consistent with other FHWA recordkeeping requirements for medical records. The US DOE recommended that equipment records be retained for 2 years since they are similar in nature to collection process records. Pinnacle Transport Services, Inc. recommended that the threshold for alcohol test results which are required to be kept for 5 years should be changed from 0.02 BAC to 0.04 BAC. The NSWMA recommended that the annual report of test results be kept for no more than 5 years.

The Arlington, Virginia Public Schools recommended that employers not be required to keep equipment calibration records because the police department does the alcohol testing for the school system.

FHWA Response: The proposed regulations were designed to be consistent among all modes of the Department to permit compliance for employers that are subject to the regulations of two or more DOT agencies. The FHWA does not believe that sufficient justification was presented to warrant a change to the record retention requirements. With regard to maintenance of records by a party other than the employer, the FHWA currently allows agents of the employer to maintain certain records, provided the employer obtains such records for auditing within two business days after the request of an authorized representative of the FHWA. This language is included in §382.401(d).

Access to Facilities and Records

See Limitation of Alcohol Use by Transportation Workers for discussion of this section.

Required Evaluation and Testing

See Limitation on Alcohol Use by Transportation Workers for discussion of comments on this section.

Other Alcohol-Related Conduct

See Limitation on Alcohol Use by Transportation Workers for discussion of comments on this section.

Disqualifications and Consequences

Comments: The OOIDA and the NEA both recommended that a driver not be disqualified without the benefit of a hearing. The Idaho Department of Law Enforcement recommended that a driver only be disqualified upon conviction of an alcohol violation, not a positive test.

FHWA Response: Because the FHWA has not included the MCSAP random roadside testing option in the final rule, the associated CDL suspension penalties, and the corresponding driving prohibition periods in the employer-based testing option, are also not included in the final rule. The only consequence under this rule for violation of the alcohol prohibitions is referral to a substance abuse professional, who may require the driver to undergo treatment before returning to perform safety-sensitive functions, and a return-to-duty test with a result below 0.02. The purpose is to ensure that drivers are evaluated for alcohol problems, and that they get the treatment they need before returning to duty. Therefore, the time period a driver is actually prohibited from driving will vary, depending on the speed with which a SAP is consulted and the results of the SAP's evaluation.

Of course, the driver disqualifications and 24 hour out-of-service period provided for discovery and conviction of certain alcohol offenses by law enforcement officials remain. See 49 CFR 383.51 and 392.5.

Motor Carrier Obligation to Promulgate a Policy on the Misuse of Controlled Substances

See Limitations on Alcohol Use by Transportation Workers for discussion of comments on this section.

Controlled Substance Training for Supervisors and Company Officials

See Limitations on Alcohol Use by Transportation Workers for discussion of comments on this section.

Referral, Evaluation and Treatment

See Limitations on Alcohol Use by Transportation Workers for discussion of this section.

Part 392—Alcohol Prohibition

Comments: The Shell Oil Company and the Organization Resources Counselors Inc. stated that an out-of-service order should be produced only for an alcohol concentration of 0.04 BAC or more. Pinnacle Transport Services opposed the requirement that no driver shall be on duty or operate a CMV if by the person's appearance, the driver may have used alcohol.

FHWA Response: The FHWA has had a policy of zero tolerance for alcohol use by CMV drivers since the early 1940's. The safety of the traveling public is paramount. An employee who has either recently consumed an alcoholic beverage or who has any detected presence of alcohol may not be on duty until the alcohol has dissipated from the person's system. It is not specified in this section how the alcohol is detected or how long it takes to dissipate.

In addition, section 382.505 provides that drivers are prohibited from driving for 24 hours, though not placed out-of-service, when they are discovered through testing under part 382 to have an alcohol concentration of 0.02 or greater, but less than 0.04. Results below 0.02 through testing under this part are considered "negative."

The 24 hours out-of-service period is required by the CMVSA to be imposed on drivers discovered by law enforcement officials to have violated the proscriptions in §392.5, including any measured concentration of alcohol. It is designed to ensure that the employee is provided enough time to become alcohol free prior to driving a CMV again. See discussion below of Section 382.505 in Section-by-Section Analysis.

On-Duty Time

Comments: Several commenters, including the ATA, oppose recording time spent submitting to an alcohol or controlled substances test as on-duty time. The ATA stated that time spent acquiring or renewing a CDL or taking a physical examination is not logged as on-duty time. The recording of on-duty time while performing a mandatory test would have a significant impact on the industry in terms of lost productivity and other costs. Testing is a fitness for duty issue, they believe, not the performing of work for an employer. The OOIDA stated that return-to-duty testing should always be on-duty time. STA United Inc. stated that return-to-duty testing should be on-duty time if the driver continues to work for the same employer in a job not related to safety during rehabilitation.

FHWA Response: Testing under these requirements is done to deter CMV drivers from using alcohol and controlled substances. The FHWA continues to believe that all time spent travelling to and participating in either a drug or alcohol test is to be logged as on-duty time when a random, reasonable suspicion, post-accident, or follow-up test is directed by or on behalf of a motor carrier.

B. Controlled Substances Docket MC-92-23

The comments to docket MC-92-23 which are similar to those considered in the discussion of the comments to the alcohol testing docket MC-92-19 are not discussed again below. The following discussion involves only comments that are different from those submitted to docket no. MC-92-19 and the common preamble, Limitation on Alcohol Use by Transportation Workers.

The FHWA received 107 comments to this NPRM. The commenters included: Employers; drivers; driver's associations; unions; MROs; SAPs; and Federal, State and local governments. Commenters from government agencies included law enforcement agencies and school districts.

Applicability

Comments: The American Postal Workers Union (APWU) stated that postal workers should be exempt from controlled substances testing. The Truck Stop Operators Association stated that mechanics should be subject to the FHWA rules.

FHWA Response: As stated above, only drivers waived from CDL requirements are similarly waived from the alcohol and controlled substances testing regulations. Mechanics who hold CDLs to operate CMVs for truck stop operators will be required by this rule to submit to alcohol and drug testing if they operate CMVs on public highways.

Definitions

Comments: One commenter stated that the definition of MRO should include health care professionals because the FHWA allows these professionals to perform medical examinations. One commenter at the San Francisco, California, hearing recommended that a definition of "verified negative test" be included in this section. Commenters to the docket and at the Washington, D.C. hearing that the definition of SAP should include a "certified employee assistance professional", "occupational health nurse" and "certified addiction counselor". The Employee Assistance Professionals Association recommended that only their members be allowed to serve as SAPs.

The IBsaid that "canceled test" should be defined in part 40, if at all. The IBbelieved that the use of the word "adulteration" in the definition of "canceled test" was confusing. In addition, the IBrecommended that MROs be required to take MRO courses and pass a qualifying examination. The IBalso believed that SAPs should be certified, be in current practice and have appropriate training.

FHWA Response: The FHWA agrees with the IBthat the definition of the term "canceled test" was confusing and has concluded that the FHWA's restatement of part 40 issues is unwarranted. The FHWA has decided to remove this section, making part 40 procedures for canceled tests to be the FHWA standard.

The definitions of a SAP, verified negative test, and the qualifications of MROs and SAPs also involve Department-wide issues and thus will be controlled by regulations issued the Office of the Secretary 49 CFR Part 40. See the Office of the Secretary's responses to these comments in the final rule amending part 40, Docket No. 48153, Procedures for Transportation Workplace Drug and Alcohol Testing Programs, published elsewhere in today's Federal Register.

Starting Date for Controlled Substances Testing Programs

Comments: One commenter was confused about the proposed 382.115(c) regarding employers who begin business after the second year after implementation of the rule. One commenter stated that the implementation dates should be the same for all employers. Other commenters believed that the alcohol and controlled substances testing programs should be implemented within 6 months of the effective date of the regulations. The Montana Office of Public Instruction suggested that implementation be delayed until July 1, 1995, to allow Montana school districts to minimize negative fiscal consequences to existing programs.

FHWA Response: Given its experience administering the drug testing program under part 391, subpart H, the FHWA believes that small employers will require more time to implement changes mandated by the Omnibus Act than large employers. Small entities may have difficulty implementing all of the requirements within one year. Larger employers, however, should be able to implement the programs within approximately one year.

Accordingly, large employers (fifty or more drivers) will be required to implement a complete, fully operational program that complies with this rule and part 40 on January 1, 1995. Small employers (fewer than fifty drivers) must implement the requirements of this part and part 40 on January 1, 1996.

Furthermore, the Department has decided that all employers subject to the current drug testing regulations at part 391, subpart H, must begin split sample collections and provide CMV drivers the opportunity for split sample reconfirmation of a verified positive drug test result within 6 months from today, in accordance with the amended part 40. Since this only affects those persons subject to current drug testing under subpart H, amendatory language has been inserted in subpart H requiring this Department-wide procedure.

Controlled Substances Testing—General

Comments: The IBrecommended removing the reference to "prescription drug", because such a reference was not in the present rule.

FHWA Response: The FHWA agrees that the reference to prescription controlled substance use should be deleted. The FHWA has used the term, "therapeutic drug use" in §391.97(d) and has placed that phrase into this rule.

Pre-Employment/Pre-Duty Testing

Comments: The International Brotherhood of Teamsters recommended retaining the 12-month participation option which is currently part of the exception criteria in subpart H. Two commenters recommended that employers be permitted to obtain and use an applicant's prior testing information during the hiring process as a condition of employment. The OOIDA was opposed to requiring a driver to sign an authorization for the release of test results as a condition of employment.

FHWA Response: The subpart H, "12 month participation in a random drug testing program" allowance will be retained. 49 CFR 391.103(d)(2)(ii)(B). See the discussion of §382.413 below for a discussion of release of previous employers' testing information.

Post-Accident Testing

Comments: The OOIDA opposed post-accident testing without probable cause. Other commenters believed that the term "safety sensitive function" should be defined. The Edison Electric Institute suggested that paragraph (a)(1) be revised to read "* * * performing a safety sensitive function with regard to driving, loading or securing loads on vehicles that are driven on a public highway." In addition, commenters asked if continuous procedural instructions about post-accident testing would include ensuring that post-accident testing kits are kept in each vehicle and that reminders are posted on bulletin boards.

The ATA believed that post-accident testing should apply only to those drivers involved in a fatal accident for which they were issued a citation for a moving violation. One commenter was opposed to the provision that a citation had to be issued. A few commenters stated that there should be no acceptable reason for leaving the scene of an accident.

One commenter believed that the "tow-away" requirement in accidents should be replaced with minimum dollar amounts. For example, $2,500 for "vans" and $5,000 for "buses and trucks" could be used. Another commenter suggested that the FHWA either require that a blood test be performed on a driver who is incapacitated for at least 24 hours or require a law enforcement official to perform the test.

FHWA Response: The Omnibus Act requires that testing be conducted after all fatal accidents, regardless of whether or not a citation is issued. Safety-sensitive functions are defined in §382.107 of the rule. The regulations require that the employer provide employees with necessary post-accident information, procedures, and instructions so that the employees may be able to comply with the requirements of this section. The FHWA believes that the employer should be given maximum flexibility in implementing the post-accident drug testing requirements. "Post-accident testing kits" and bulletin board notices might be possible options for complying with the regulations, but there is no requirement to produce either such kits or notices. There is also no requirement, or authorization, to take specimens of any kind from an incapacitated driver unable to consent to testing.

The FHWA believes that the "tow-away" criteria appearing in the definition, adopted from 49 CFR 390.5, is better criteria for an accident because property damage estimates sometimes change. Finally, it is reasonable to allow drivers subject to post-accident testing to leave the scene of the accident for medical and other emergencies.

Random Testing

Comments: One commenter was opposed to any random testing for controlled substances. A few commenters recommended testing by employers. Though not proposed, other commenters recommended that the drug testing be done at the roadside by government officials.

Although the FHWA did not provide any options for a random testing rate in the drug testing NPRM, many commenters recommended rates differing from 50%.

One commenter suggested that a statement should be added to this section regarding the legality of requiring an employee to submit to testing on off-duty time. Another commenter questioned the requirement to perform random selections at least quarterly.

FHWA Response: For a discussion of adjusting the random drug testing rate in a manner similar to the alcohol testing rate adjustment provided in this rule, see the NPRM published elsewhere in today's Federal Register.

To preserve randomness and the deterrent value of the program, drivers must have an equal chance of being randomly tested throughout the year. Due to the varying sizes of employers, however, nowhere in the rule is it required that random selection be made at least on a quarterly basis for all employers. The rule merely requires that testing be spread reasonably throughout the year.

As stated above, the time spent performing most tests must be logged as on duty. Compensation arrangements between drivers and their employers is beyond the scope of FHWA regulatory authority.

Reasonable Suspicion Testing

Comments: One commenter suggested that the supervisor's observations leading to a reasonable suspicion test be documented within two hours of the observation. Another suggested that the time requirement for documentation be reduced to within two to six hours from the 24 hours provided in the proposal. One commenter stated that documentation should not be attached to the results, but should be available upon request.

FHWA Response: The FHWA currently requires in 49 CFR §391.99(d) that documentation of reasonable suspicion determinations for drug tests be completed within 24 hours of the observed behavior or before the results of the tests are received, whichever is earlier. There is no requirement that the written documentation for a reasonable suspicion test be attached to the test result itself.

This requirement is being carried over for drug testing only in this rule. An employer may need more than two or six hours to document a reasonable suspicion test. The 24 hour period should allow documentation to occur by the next day's shift at the latest because, in most situations, test results will not be available within 24 hours.

Written documentation is required for reasonable suspicion drug testing, but not alcohol testing, because of the greater difficulty in recognizing indications of drug use. Unlike alcohol use, drug use, largely because of its general illegality, is not something with which most people are widely familiar. The physical effects may also be more subtle, even to those exposed to drug use and to professional Drug Recognition Experts (DRE). While 60 minutes of training in the indicators of drug use is required by the rule, it is not expected to transform employers into DREs.

Documentation will allow employers to review reasonable suspicion determinations made by its officials. By comparing the observations recorded before both positive and negative test results, employers may be able to evaluate patterns or procedures which are affecting the efficacy of reasonable suspicion testing, and make changes accordingly. In this way, documentation should also serve to reduce the potential for the use of reasonable suspicion testing as a method of harassing drivers.

Exceptions for Testing Performed by Consortiums

Comments: One commenter stated that this section omits certifications from other employers for trip lease, interchange, or contract drivers.

FHWA Response: Because the exception is being moved to the pre-employment/pre-duty testing section, certifications for trip lease, interchange, or contract drivers are still acceptable.

Split Sample Testing

Comments: A number of commenters were in favor of the section as proposed. One of them stated that it provides further protection of privacy and due process rights.

The ATA stated that split sample testing should only be required for reasonable suspicion testing. One commenter, the Food Marketing Institute (FMI), stated that there has been no demonstrated need for split samples and suggested that split samples be allowed as an option. The FMI recommended that an employer be allowed to choose the testing lab and require the employee to pay for testing. One commenter believed that the employer should not have to pay for the split sample test. Another commenter suggested that the FHWA allow the same laboratory to test the split sample so that employers could avoid both the additional cost of blind sample testing and the necessity of a contract with another laboratory.

STA United believed that part 40 and part 382 should explain which sample is primary and which is secondary by milliliter example. STA United stated that split sample testing is costly. The California Department of Personnel Administration was opposed to split sample testing.

FHWA Response: Because split sample testing involves the issue of testing methodology, the regulations on split sample testing are being written by the Office of the Secretary. The FHWA has decided to remove this section and defer to the requirements in part 40. See the part 40 rulemaking published elsewhere in today's Federal Register, Procedures for Transportation Workplace Drug and Alcohol Testing Program.

Canceled Tests

Comments: Several commenters to this section agreed with it as written and cited the deterrent effect. One commenter recommended that a retest should be performed if the employer requests it. Other commenters recommended adding canceled, follow-up, random, and reasonable suspicion tests to those that require a driver to resubmit a sample. One commenter stated that the requirements of this section were burdensome and costly and should be the responsibility of the testing laboratories and MRO.

FHWA Response: Because canceled tests involve testing procedures applicable to all modes of DOT, the FHWA has decided to remove this section and defer to the requirements in part 40. See the part 40 rulemaking published elsewhere in today's Federal Register, Procedures for Transportation Workplace Drug and Alcohol Testing Program.

Laboratory Notifications

Comments: The California Department of Personnel Administration suggested that laboratory reports be sent directly to the employer.

FHWA Response: The FHWA has decided to remove this section and defer to the requirements in part 40. See the part 40 rulemaking published elsewhere in today's Federal Register, Procedures for Transportation Workplace Drug and Alcohol Testing Program.

Medical Review Officer Notifications to the Tested Individual

Comments: One commenter stated that the prescription medication affirmative defense to allegations of driving while using a controlled substance should be removed. STA United stated that if a MRO does not make contact with the employee, the MRO must include complete documentation with the hard copy test result. The California Department of Personnel Administration believed that the time limit allowed for a MRO review should be restricted. The Department also believed that the employer should instruct the employee to be available for a MRO contact; the MRO to contact the employer within three days if unable to contact the employee; and the employee to contact the MRO within three days. One commenter supported the requirement for the employer to contact the employee promptly if the MRO is unable to reach the employee.

FHWA Response: Because MRO notification to the tested individual involves a multi-modal procedural issue, the FHWA has decided to remove this section and defer to the requirements in part 40. See the part 40 rulemaking published elsewhere in today's Federal Register, Procedures for Transportation Workplace Drug and Alcohol Testing Program.

Medical Review Officer Notification to the Employer

Comments: One commenter believed that the MRO should be required to send a signed written notification to the employer within three days of the MRO's final completion of paperwork necessary to generate the final report. Another commenter recommended that the MRO be allowed fourteen days to mail the results.

One commenter recommended that the MRO should only be permitted to use electronic transmission devices which provide confidentiality of results; MROs should not be permitted to use a facsimile machine. Another commenter supported the use of facsimile machines to transmit controlled substances test results. One commenter believed that a written report of the results was a burden; the MRO should only be required to review and certify the results. STA United recommended that the "three day mail" requirement be clarified. The commenter also stated that the requirement that the name of the donor be provided by the MRO compromises privacy.

FHWA Response: A signed, written notification from the MRO to the employer identifying the driver and test results is essential to the effective administration of this rule. If a motor carrier allows an MRO to report controlled substances test results by the use of a facsimile machine, the employer must control access to reports transmitted in this manner.

The FHWA also disagrees with the comment that the MRO should be required to send signed written notification within three days of the MRO's final completion of paperwork and the commenter who recommended that the MRO be allowed fourteen days to mail the test results. Three business days after completion of the MRO's review of the test result is sufficient time to both generate a controlled substances test result report and begin the report transmission process to the employer. Certain tests, such as a pre-employment/pre-duty or return-to-duty test, require the employer to receive a negative test result before allowing the employee to perform a safety sensitive function. An excessive time limit in obtaining a controlled substances test result may affect an employee's livelihood.

Employer Notifications

Comments: One commenter recommended that the employer not be required to notify pre-employment controlled substances test subjects that the MRO was unable to contact them, unless they requested the results of the tests. One commenter stated that it is unrealistic to require an employer to contact applicants who tested positive for a controlled substance because they probably no longer want the job.

The Carolina Power & Light believed that there should be no requirement that employees be notified after every test. Employers should be allowed to communicate the test results in their own way.

FHWA Response: Notifying the driver of positive test results is essential to fairness. The procedures contained in subpart H and included in this rule are adequate to ensure notification. Yet, it is desirable that review of applicant's tests be concluded in some way. In the current drug testing program, tests are conducted and MROs hold results indefinitely until a driver is contacted. It is only at the point that a driver is contacted that the five day period begins to run to verify a confirmed positive test result. To remedy that situation, under this final rule, an employer is required to make a reasonable effort to contact the applicant and inform the applicant that he/she must contact the MRO immediately. If the applicant does not contact the MRO after 5 days, the MRO will verify the test as positive and close the donor's file rather than leave it open indefinitely.

Laboratory Recordkeeping and Record Retention

Comments: The IBbelieved that because the requirements of this section are adequately addressed in part 40, the section should be removed. The OOIDA was in support of this section.

FHWA Response: The FHWA agrees. This section is removed.

Medical Review Officer Recordkeeping and Record Retention

Comments: Some commenters stated that they saw no compelling reason for this requirement and recommended that employers be permitted to be the custodians of test results.

FHWA Response: The FHWA does not agree that employers should be the sole custodians of test results. Because the MRO makes controlled substances test determinations, the MRO must also retain copies of test results as a back-up and for use in compliance enforcement and in resolving potential disputes involving test results.

Employer Record Retention

Comments: The OOIDA was in favor of the regulations as proposed. Mobile Laboratory Services recommended that employers be allowed to retain any copy of the custody and control form because employers often do not get the copy that shows the controlled substances test results from the MRO.

Roadway Express Inc. and ATA recommended that the record retention period should be reduced to three years, consistent with other FHWA record retention requirements. The Baltimore Gas & Electric Company believed that a retention period should be assigned to each record to eliminate errors in their maintenance.

FHWA Response: The FHWA disagrees with the commenter who stated that the employer be allowed to retain any copy of the custody and control form because employers do not always receive the employer copy of the form. The employer is required to retain the employer's copy of the custody and control form, and not, for instance, the copy of the form which the testing laboratory sends to the MRO. The MRO might change a laboratory confirmed positive test result to a verified negative test result after affording the donor an opportunity to present an affirmative defense.

The FHWA believes it must remain consistent with the other operating Administrations who all have a five year recordkeeping requirement for positive test results.

Reporting of Results in a Management Information System

Comments: One commenter stated that the amount of information submitted in response to the annual reporting requirement should be dependent on the number of persons subject to the rule. The DOshould provide the annual reporting form and alcohol testing form free of charge. One commenter suggested that the reporting year should be July 1 through June 30 with the due date in August of each year. Conoco Inc. objected to the proposed annual reporting requirement and suggested continuation of the current system.

FHWA Response: Annual reporting of results will assist the FHWA in determining the need for future action on the programs. Without such information, the FHWA has no way of discovering whether the use of drugs and/or alcohol is decreasing or increasing. This information is needed to reassess such things as the efficacy of the program, the random testing rate, the need for various types of testing programs, and whether additional countermeasures are necessary. Though the FHWA wishes to simplify recordkeeping, it must maintain similar recordkeeping requirements as other DOmodes, especially for those employers subject to the jurisdiction of two or more Administrations. The calendar year is used as the reporting year. The model forms provided with this rule may be used to compile the annual report.

Access to Individual Records

Comments: Many commenters expressed their frustration with the lack of a system of drug testing information under the current drug testing rule. Many responded favorably to the question in the NPRM's preamble about making release of such information a condition of employment as a driver. Some went so far as to say that the program was meaningless without some system, because drivers who test positive merely go to work for another employer without ever being recertified as medically qualified or taking a return-to-duty test. Other commenters strongly opposed requiring information sharing as a violation of privacy rights.

FHWA Response: The FHWA agrees that the lack of shared information has left the current drug testing program with a large hole through which drivers can avoid the purpose of the program—to deter drug use by drivers. Some drivers are continuing to use drugs, and when caught, merely change employers. Section 382.413 of this final rule has been designed to ensure that drivers complete the required rehabilitation and return-to-duty tests. By making the information releasable only pursuant to the driver's consent, privacy concerns are obviated.

Required Evaluation and Testing

Comments: NSWMA recommended that drivers who have tested positive for controlled substances only be allowed to perform safety-sensitive functions necessary to respond to an emergency under a motor carrier or government escort.

FHWA Response: Though not stated expressly in the rule, it is reasonable to allow a driver to temporarily continue to perform safety-sensitive functions after a violation of the rule's prohibitions in an emergency situation. In such a situation, an employer or government official may not always be available to oversee the driver's action. For example, a driver who has violated the rules may move a truck carrying hazardous materials off of a bridge or a railroad track crossing. These types of instances will be rare. If the driver is the only available person at the scene capable of eliminating the imminent danger of a threat to public safety, the driver should be allowed to perform the safety-sensitive function only until the danger has ceased.

Disqualifications and Penalties

Comments: The IBstated that a one year loss of driving privileges for a refusal to submit to a required test is unduly harsh. A refusal to test should be the same penalty as a positive controlled substances test. The union stated that often it is unclear whether or not the driver's words or behavior constituted a refusal to be tested.

The ATA recommended that an employee who tests positive for a controlled substances test also be disqualified for 120 days for each violation. DAC Services stated that the penalties proposed in the NPRM should be made stricter, with the penalty for testing positive at least as severe as a refusal to be tested. Roadway Express Inc. recommended a 120 day disqualification for the first offense and a lifetime disqualification for the second offense. The employer stated that the mere testing or even detection without significant job consequences for positive tests will not deter controlled substances use. National MRO stated that a verified positive test after a fatal accident should trigger stricter penalties in addition to barring a driver from holding a CDL. Another consortium, Bensinger/Dupont Inc., opposed the 60 day disqualification for a second positive controlled substances test, recommending, instead, a minimum of six random follow-up tests.

FHWA Response: The FHWA has not included any CDL suspensions or other disqualifications from the final rule, including for a refusal to test. The only driving prohibition period for a controlled substances violation is similar to that for alcohol—completion of rehabilitation requirements and a return-to-duty test with a negative result.

Motor Carrier Obligation to Promulgate a Policy on the Misuse of Controlled Substances

Comments: The ATA and the Roadway Express Inc. stated that the proposed NPRM details the educational material requirements to such a degree that the employer is unduly restricted in material development. Both commenters recommended that the employee have access to this information upon request rather than requiring an employer to provide every covered employee with a copy of the material. The employee does not need to be informed of the controlled substances testing procedures because they are already in the Department's regulations if the employee wishes to consult them.

The IBrecommended at least one hour of training for employees conducted by an instructor who is able to answer questions from the participants, rather than the proposed requirement to notify employees of the availability of this material.

FHWA Response: The FHWA believes that the motor carrier is not unduly restricted in educational material development. The final rule contains the minimum required educational material content. The FHWA allows the employer considerable latitude regarding additional materials and the form of dissemination. A live presentation is not required. The regulations require that the educational materials must be provided to the employee and that the employee and employer sign the employer's notice of the availability of the materials.

Controlled Substance Training for Supervisors and Company Officials

See Limitations on Alcohol Use by Transportation Workers for discussion of this section.

Referral, Evaluation and Treatment

See Limitations on Alcohol Use by Transportation Workers for discussion of this section.

PART 395—HOURS OF SERVICE OF DRIVERS

Definitions

Comments: Several commenters supported requiring time spent in the controlled substances testing process as on-duty time. The IB recommended including time spent traveling to and from the collection site as on-duty time. Other commenters stated that the definition of on-duty time should include return-to-duty testing.

The Western Company believed that including testing as on-duty time would cause a significant burden on the industry.

FHWA Response: See the response to comments under Docket MC-92-19 above.

D. Docket No. MC-116—Other Comments Regarding Controlled Substances Testing

Comments: The ATA stated that physicians who perform biennial medical examinations and prospective employers should have access to prior controlled substances test results without the need for an employee's authorization.

The regulations require a CMV driver who receives a citation in an accident to be tested, yet the employee may not receive the citation until days after the accident, when any controlled substances in the body present during the accident have dissipated.

The ATA stated that part 394 of the FMCSRs requires a motor carrier to notify the FHWA of a fatality. The requirement to report controlled substances test results poses difficulties, they believe, because it may take up to 10 days to receive a controlled substances test result.

FHWA Response: The elimination of periodic controlled substances testing obviates any need to provide for the release of prior controlled substances testing information to physicians. Previous employers may release prior controlled substances test results to prospective employers, but only with the driver's written consent.

The FHWA does not believe, however, that 32 hours is an extraordinary time period to conduct a controlled substances test. If a citation is issued within 32 hours of the accident, a test must be conducted.

Notification to FHWA by the employer is no longer required after any accidents, because part 394 of the FMCSRs has been eliminated. See 58 FR 6726, February 2, 1993. Therefore, a motor carrier no longer has to notify the FHWA regarding controlled substances test results as part of a fatal accident report.

Comments: The College of American Pathologists stated that §391.115(b) of the FMCSRs makes the driver responsible for collecting the required sample and forwarding it to a National Institute of Drug Abuse certified laboratory. The College stated that the motor carrier should be responsible for ensuring that the required sample is collected and sent to a proper laboratory.

FHWA Response: The final rule requires an employer to provide necessary post-accident information, procedures, and instructions to the employee prior to the operation of a CMV so that the employee is able to comply with post-accident testing requirements. An employer will not have control over a driver after all accidents. The driver is responsible in some situations to ensure collection of a specimen or sample.

Section-by-Section Analysis

The Department-wide common preamble, Limitation on Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register, should be reviewed for a discussion of each section's common requirements and intent. Discussion in the common preamble is not repeated here. This analysis is confined to the sections and parts of sections which are not considered in the part of the common preamble entitled, "Overview of the Operating Administration's Final Rules."

The drug and alcohol testing requirements are, to the extent possible, identical. For example, the preemptive effects of the Omnibus Act are the same for both the alcohol and drug elements of the program, and is discussed as a whole. In contrast, there is a difference between the exception criteria to a pre-employment alcohol test and a pre-employment drug test, and both provisions are discussed.

Subpart A—General

Section 382.101 Purpose

The purpose of this rule is to establish employer-based alcohol and controlled substances testing programs to help prevent accidents and injuries resulting from the misuse of alcohol and controlled substances by drivers of commercial motor vehicles. This rule prohibits any alcohol misuse that could affect performance of driving a CMV, including: (1) Use on the job; (2) use during the four hours before driving a CMV; (3) having prohibited concentrations of alcohol in the system while driving CMVs; (4) use during 8 hours following an accident; and (5) refusal to take a required test. This rule prohibits any controlled substances use, without a licensed doctor of medicine or osteopathy's written prescription.

This rule requires pre-employment, reasonable suspicion, random, post-accident, return-to-duty and follow-up testing using procedures specified in 49 CFR part 40. These procedures use an evidential breath testing device for alcohol testing. For controlled substances testing, urine specimen collection and testing by a laboratory certified by the Department of Health and Human Services is required. Additional testing under the authority of this rule for drugs other than those specified in part 40, without the permission of the Department, is strictly prohibited. The primary purpose of the testing provisions is to deter misuse of alcohol and controlled substances.

Following a determination that an employee has misused alcohol, this rule requires the employee's removal from safety-related functions and provides minimum requirements for return to performance of safety-sensitive functions:

(1) Following a determination that the employee has violated the alcohol prohibitions in subpart B of these rules, including having a test result of 0.04 BAC or greater, an employee must be removed from, and cannot be returned to, a safety-sensitive function until, at a minimum,

(a) The employee undergoes evaluation, and where necessary, rehabilitation,

(b) A substance abuse professional determines that the employee has successfully complied with any required rehabilitation, and

(c) The employee undergoes a return-to-duty test with a result of less than 0.02.

(2) An employee with an alcohol concentration of 0.02 or greater but less than 0.04 is not permitted to perform safety-sensitive functions for a minimum of 24 hours.

(3) Following a determination that an employee has misused controlled substances, as determined through testing, this rule requires the employer to remove the employee from safety-related functions until, at a minimum,

(a) The employee undergoes evaluation, and where necessary, rehabilitation,

(b) A substance abuse professional determines that the employee has successfully complied with any required rehabilitation, and

(c) The employee takes a return-to-duty test with a verified negative test result.

This rule mandates reporting and recordkeeping requirements and provide for alcohol and controlled substances misuse information for employees, supervisor training, and referral of employees to substance abuse professionals (SAP).

Section 382.103 Applicability

The FHWA's existing drug rules generally cover persons who perform sensitive safety-related functions in interstate commercial transportation on highways. They affect approximately 3 million persons and include commercial truck and motor coach drivers. This final rule for alcohol and controlled substances testing covers the same population, but also extends coverage to both inter-and intrastate truck and motor coach operations (including those operated by Federal, State and local government agencies, church and civic organizations, Indian tribes, farmers, custom harvesters, for-hire and private companies) as required by the Omnibus Act. This increases the total number of persons covered by the alcohol and controlled substances testing rules to over 6 million.

The FHWA's rule focuses on function rather than a defined job or position. An individual's job may encompass several different functions, some of which are not safety-sensitive. Since alcohol is a legal substance, alcohol use is relevant only to the extent its use coincides with performance of a safety-related function. As a safety regulatory matter, for example, the rule does not prohibit a school bus driver from having a drink before or while performing functions that are not safety-sensitive (as long as no other regulation is violated). For example, if the school bus driver is receiving all-day training on retirement planning along with non-safety employees and the other employees can have a drink at lunch, the school bus driver may also, provided the driver will not be operating a school bus within 4 hours.

Testing only applies to drivers operating in the United States. Consistent with CDL requirements, this rule does not apply to drivers operating outside the 50 States and the District of Columbia. Drivers operating in territories of the United States, such as Guam or Puerto Rico, therefore, are not covered by this rule.

At this time, testing also does not apply to those drivers who operate in the United States, but normally report for duty in a foreign country, whether or not the employer is foreign-owned or the employee is a foreigner. An NPRM, published elsewhere in today's Federal Register, proposes, however, to add foreign-based drivers operating in the United States to the program. In the meantime, only foreign and American citizens who report for duty at an employer's terminal in the United States are subject to these requirements.

Section 382.105 Testing Procedures

The final rule requires that employers ensure that all alcohol and controlled substances testing conducted under these rules complies with the procedures in the amended 49 CFR part 40. See Procedures for Transportation Workplace Drug and Alcohol Testing published by the Department elsewhere in today's Federal Register. The FHWA rule incorporates by reference the amended 49 CFR part 40.

Section 382.107 Definitions

See Limitations on Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register.

Section 382.109 Preemption of State and Local Laws

See Limitations on Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register.

Section 382.111 Other Requirements Imposed by Employers

See Limitations on Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register.

Section 382.113 Requirement for Notice

Before performing an alcohol or controlled substances test under these rules, the employer must notify the driver being tested that the alcohol or controlled substances test being administered is required by the rule. The notice can be oral or written. Use of the U.S. Department of Transportation Breath Alcohol Testing Form or the controlled substances custody and control form, whichever is appropriate, may serve as the required notice. An employer shall not falsely represent that a test administered under their own or other authority independent of FHWA's authority is being administered under FHWA requirements.

Section 382.115 Starting Date for Testing Programs

Interstate motor carriers subject to 49 CFR part 391, subpart H prior to the effective date of this rule must implement the split sample urine collection procedure within six months of the publication date of this final rule. The split sample urine collection procedures for controlled substances testing have been codified in the regulations since the original FHWA controlled substances testing regulations went into effect on December 21, 1988, though, until now, it was merely an option and not required. See 49 CFR 40.25(f)(10). Therefore, employers currently subject to part 391 controlled substances testing should not be overly burdened in changing their programs to incorporate the split sample requirement. The Department is changing the procedures slightly with respect to the laboratory that will perform the analysis of the split sample. Those changes are contained in the part 40 amendments published elsewhere in today's Federal Register.

Except for the split sample urine collection implementation date for interstate motor carriers subject to part 391, subpart H, all large employers must implement the requirements of the rule beginning on January 1, 1995. Small employers must implement the rule beginning on January 1, 1996. The size of the employer is determined by the number of drivers it employs. Interstate motor carriers currently subject to 49 CFR part 391, subpart H must switch to implementation of part 382 on the appropriate date. An employer beginning operations before the applicable implementation date of part 382 is required to implement part 391 drug testing only, and then will be required to implement part 382 alcohol testing and change to part 382 drug testing on the appropriate implementation date.

The staggered timetable should allow smaller employers to join alcohol and controlled substances testing programs already established by larger employers or preexisting consortia, which may reduce their costs. The implementation schedules also take into account the time needed by manufacturers to produce the required breath test devices. All employers must have an alcohol and controlled substances testing program in compliance with this final rule in place two years after the effective date of this rule.

Subpart B—Prohibitions

This rule prohibits certain drug and alcohol usage by CMV drivers. A driver is prohibited from performing, and an employer is prohibited from using a driver to perform, safety-sensitive functions after a positive drug test result or an alcohol test result indicating a 0.02 BAC, regardless of when the drug or alcohol was ingested and regardless of whether or not the driver is under the influence of alcohol or drugs, as defined in Federal, State, or local law.

Section 382.201 Alcohol Concentration

See Limitations of Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register.

Section 382.203 Alcohol Possession

This section prohibits a driver from possessing unmanifested alcohol products while driving a CMV. The FHWA has had a long-standing requirement that no driver shall drive a CMV while possessing any product containing alcohol, regardless of its alcohol content. The FHWA will extend this requirement to all CMV drivers subject to this rule. A driver may not possess medication, food, or other alcohol-containing products that are not specifically manifested to be on the truck or bus. A manifested alcohol product is any product that is being transported on the CMV as a part of the shipment of freight.

Section 382.205 On-Duty Use

See Limitations of Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register.

Section 382.207 Pre-Duty Use

See Limitations of Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register.

Section 382.209 Alcohol Use Following an Accident

See Limitations of Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register.

Section 382.211 Refusal to Submit to a Required Test

The FHWA will disqualify drivers for one year, under the procedures in 49 CFR part 386, if a driver refuses to submit to a post-accident test after a fatal accident. See §382.507.

An applicant's or driver's refusal to submit to a pre-employment test or a return-to-duty test will not trigger the need for evaluation by a SAP. In those cases, the applicant or driver is not performing a safety-sensitive position from which to be removed. Since those tests are a condition precedent to starting or returning to perform safety-sensitive functions, the applicant or driver simply could not be hired or returned to duty.

Section 382.213 Controlled Substances Use

The FHWA currently prohibits the use of controlled substances by drivers (49 CFR §392.4). Drivers who use drugs are rendered medically unqualified to drive in interstate commerce (49 CFR §391.41(b)(12). Similarly, this section prohibits drivers from using controlled substances, except pursuant to a doctor's prescription. The doctor must also advise the driver that the substance does not adversely affect the driver's ability to safely operate a commercial motor vehicle. Employers are prohibited from permitting a driver to perform safety-sensitive functions who uses drugs. The employer may require a driver to inform it of any therapeutic drug use otherwise prohibited by this section.

Section 382.215 Controlled Substances Testing

Similar to the current drug testing program, drivers are prohibited from driving, and employers are prohibited from using a driver, who tests positive for drugs or with a 0.04 or greater BAC. The prohibition remains in effect until the driver complies with the requirements of section 382.605, including evaluation by a SAP.

A driver who is prohibited from performing safety-sensitive functions may be assigned to non-safety-sensitive functions until such time as the driver complies with the requirements for returning to duty in this part.

Subpart C—Tests Required

The FHWA's current drug testing regulations require pre-employment, periodic, reasonable cause/suspicion, post-accident and random tests (testing also is required for drivers who seek to return to work following a positive test or refusal to submit to a test). The Omnibus Act requires all these forms of testing except periodic tests, which generally are performed as part of required physical examinations for some drivers operating in interstate commerce, and may be suspended if certain conditions are met.

Although periodic tests are discretionary under the Omnibus Act, the FHWA will not to require or authorize periodic testing for alcohol or controlled substances. Of course, employers that wish to continue to perform periodic testing under their own authority may do so.

Section 382.301 Pre-employment/Pre-Duty Testing

In order to give employers flexibility, this section allows an employer to forgo administration of a pre-employment test if the driver has had an alcohol test conducted under any DOT agency's alcohol misuse rule following part 40 procedures with a result less than 0.04 within the previous six months and the employer ensures that no prior employer of whom the employer has knowledge has records showing a violation of these rules within the previous six months. Generally, this means that when checking prior employers to obtain test results within the past six months, the new employer must also determine that the prior employers have no records of a violation of an OA alcohol misuse rule within 6 months. The new employer wishing to avail itself of this exception, must check all known prior employers within the last six months.

The exception for pre-employment drug testing is narrower. In addition to the above criteria, there are participation requirements, which are carried over from the current rule, §391.103(d).

In order to avail itself of either exception, an employer must obtain the information listed in paragraph (d).

In the current testing program, the FHWA expects employers to conduct pre-employment testing of drivers each time a driver returns to work after a lay-off period when the driver does not continue to be subject to random drug testing or has been employed by another entity. However, if a driver is laid off, but continues to be subject to random drug testing and is not employed by another entity, a pre-employment test is not required under this section.

The following examples describe situations in which an employer must perform pre-employment tests.

1. A new employer just started operating CMVs in commerce. All drivers that would be hired to drive CMVs subject to this rule will fall under the pre-employment testing requirements.

2. Employer A purchases Employer B. The pre-employment testing requirements would not be applicable to Employer A, because the individual's employment status has not been interrupted.

3. All scenarios in which an employer name changes occur, the pre-employment requirements would not apply.

4. An employer is organized in divisions and subsidiaries. In any case where a driver would be transferred from one division to another, the pre-employment requirements would not apply. Under this scenario the employer is one corporate entity. The situation where a driver transfers from one wholly owned subsidiary to another, a pre-employment test would be needed, because each subsidiary is considered a separate corporate entity.

5. A driver usually drives vehicles for which a CDL is not required to operate, but then is required to obtain a CDL and drive CMVs for the same employer. A pre-employment test would be required because the driver will be subject to part 382.

6. Any time a driver is hired and has not been part of a drug program that complies with the FHWA regulations for the previous 30 days, a pre-employment drug test is required.

When any pre-employment test is required, an employer must actually test the individual or meet all of the respective requirements for pre-employment exceptions for alcohol or controlled substances.

Section 382.303 Post-Accident Testing

The definition of accidents that trigger a post-accident test is contained in 49 CFR §390.5. As soon as practicable following an accident, an employer shall test a surviving driver for alcohol and controlled substances, when any person involved in the accident has been fatally injured or the driver received a citation for a moving traffic violation arising from performance of a safety-sensitive functions with respect to the accident. The need for testing is presumed. Any decision not to administer a test must be based on the employer's determination, using the best information available at the time, that a human being did not die or that the employer's CMV driver was not cited for a moving traffic violation arising from the accident within such time that a test could be conducted within 32 hours after the time of the accident.

Employers are also obligated to provide information to their drivers to allow them to be tested after an accident. This is especially important for employers whose operations occur in remote areas. Drivers are then obligated to follow the instructions and see that the tests are conducted. Any driver subject to post-accident testing who leaves the scene of an accident before a test is administered or fails to remain readily available for testing may be deemed by the employer to have refused to submit to testing. Such a refusal is treated as if the driver had a verified positive controlled substances test result or had an alcohol test result of 0.04 or greater. The employer is responsible for judging whether the driver remained readily available and must record any failure to administer tests within the time periods provided.

Employers should make every effort possible, given the circumstances surrounding the accident, to ensure that the driver is available for a post-accident test. This, of course, does not mean that necessary medical treatment for injured people should be delayed or that a driver cannot leave the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care.

Testing of drivers for drugs must be initiated prior to the 32nd hour after the accident. As in alcohol testing, if the citation is not issued by the key hour or testing is not initiated by that hour, there is less likelihood of obtaining a meaningful result. The employer then will have to cease attempts to administer the test and must explain why the employer was unable to administer a drug test. Under no circumstances is an employer authorized by this rule to conduct alcohol or drug testing on dead CMV drivers.

In lieu of administering a post-accident test, employers may substitute a breath or blood test for the use of alcohol and a urine test for the use of drugs administered by on-site police or public safety officials under separate authority. This may be particularly useful if that test can be administered before the employer can get to the scene. These local authorities often are first to arrive at an accident site, particularly if the accident occurs in a remote area, and sometimes are equipped to conduct field alcohol breath and controlled substances tests. The employer is allowed to substitute a blood or breath alcohol test and a urine drug test performed by such local officials, using procedures required by their jurisdictions, if the employer obtains the test results from the local jurisdiction or the driver.

An employer substituting a law enforcement-based post-accident test must take the actions appropriate to the result—not using the driver for 24 hours for an alcohol test result between 0.02 and 0.039 BAC, and referral to a SAP for an alcohol test result of 0.04 BAC or greater or a positive drug test result.

For example, a rental car company's airport shuttle bus driver is involved in an accident on an airport access road with a non-CMV driver and the non-CMV driver is killed instantly. The CMV driver must be tested under this rule for both alcohol and controlled substances. An airport police officer at the scene determines, under authority independent of this rule, that the CMV driver should be tested for alcohol use. The police officer requires the CMV driver to submit to a blood test at the airport health clinic using procedures developed by the airport police department for such alcohol use testing. When the rental car company obtains the blood test result from either the driver or the airport police department, such a test will be allowed to substitute for the alcohol test. However, the rental car company will have to require its CMV driver to also submit to a controlled substances test under this rule, since both tests are required after a human being is killed.

Another example could involve an air freight delivery truck driver who falls asleep at the wheel, her truck runs into a median barrier causing the front axle to be bent and inoperable and requiring the vehicle to be towed from the scene. The investigating State patrol officer, based upon observations and material found at the scene, has cause to believe the driver was using an illegal substance and the driver was speeding excessively. The officer cites the CMV driver for excessive speed and requires the CMV driver to submit to urine testing at a local hospital. The urine is sent, as required by that State's laws, to the State's forensic crime laboratory for drug testing. When the employer receives the test result from the driver or State patrol, the employer may use the result, regardless of whether the laboratory used Department of Health and Human Services or part 40 procedures for testing the specimen, rather than requiring the driver to submit to another drug test.

Section 382.305 Random Testing

See Limitations of Alcohol Use by Transportation Workers for a discussion of adjusting the random alcohol testing rate based on the industry positive rate. The alcohol testing rate is set initially at 25%. See also the NPRM on adjusting the random drug testing rate, published elsewhere in today's Federal Register.

This section requires random alcohol testing that is limited to the time period surrounding the performance of safety-related functions. A driver may only be tested while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions. Obviously, the best time to test is before the driver begins to perform the safety-sensitive function. Detection at that point will prevent the driver from actually performing the function while he or she has alcohol in his or her system. However, if the driver understands that a random test will only be administered before he or she begins work and there is an opportunity to drink during work, deterrence is limited. The ability to test just before, during or just after performance increases the deterrent effect and may enable detection of drivers who use alcohol on the job. The purpose of the concept of "just before" and "just after" is to avoid the problem that some safety-sensitive functions could not be interrupted for the performance of a test (e.g., driving a school bus). It is intended to be close enough to the actual performance of the safety-sensitive function, however, that the test results will clearly indicate that the driver has engaged in the misuse of alcohol when performing or about to perform those functions.

This rule, however, will not place such a requirement on controlled substances testing. Controlled substances testing may be performed at anytime while the driver is at work for the employer. The driver may be doing clerical or mechanical repair duties at the time of notification by the employer.

This rule will provide that employers require that each driver selected for random testing proceed to the testing site immediately. In the event the driver is performing a safety-sensitive function when notified, the employer must ensure that the driver ceases the function, consistent with safety, and proceeds to the site as soon as possible.

An employer may not delay a test based upon a consignor's, consignee's, or employer's demand to move freight or passengers. Employers should plan their notifications to reduce conflict with such demands affecting their random alcohol and drug testing programs. However, employers are expected to notify and conduct tests on drivers as soon as possible after a selection of drivers is made. This means that when a selection of drivers has been made, the employer shall require all drivers selected to submit to testing at their first available time in the terminal or other appropriate location. Employers shall not delay testing for drivers until just before the next selection of drivers names. Although the FHWA has allowed this practice in the past, the FHWA believes that some employers may use such an interpretation to perform quasi-reasonable suspicion tests of drivers by manipulating the timing of such tests, rather than conducting random testing that is not based on individualized suspicion. In addition, employers may have been delaying testing to move freight or allow a driver with a problem to "clean up" prior to taking the test. Under normal circumstances, employers shall not dispatch selected driver on a new trip, from a work reporting location where other drivers are or have been tested, until to only test drivers once every few years. Rather, it will have to test at least once a year and establish a program that will ensure that there is no period of time during which employees know testing "is done for the year." For example, if an employer is required to conduct only two tests and that number of tests are completed by mid-summer, the employer's program must ensure that more tests could be conducted before the end of the calendar year. Such an employer could conduct random testing every quarter or could randomly select the month, within the next 12 months, for conducting the next test(s). Depending on the month selected, the employer may in fact test more than once in a calendar year. Using a revolving calendar, the first selection and test is made in May 1995 for the calendar year 1995; the next selection must be for the 12 months from May 1995 to April 1996. In addition, if a consortium sets up a testing pool where this scenario would be applicable, the consortium must also follow this procedure.

Another alternative is for employers to join a consortium with testing pools large enough so that their drivers are always subject to random testing. Although the FHWA has eased the burden on small employers in a number of ways, these restrictions that may raise the effective annual random testing rate are necessary to achieve deterrence in alcohol and controlled substances use. A small employer, of course, can achieve the benefits of a lower random rate without the higher costs of meeting the deterrence requirements if it joins a consortium.

Random testing pools may be formed in a variety of ways. To promote efficiency and reduce costs, particularly for smaller employers and employers subject to more than one DOT agency rule, the FHWA permits the combination of geographically-proximate drivers covered by different DOT agency rules into one pool. To maintain fairness and the equal chance of each driver to be selected and tested, certain conditions must be met. For example, drivers in any industry who travel most of the time should constitute one pool; others who remain in the vicinity of the testing site should be in another, as long as the selection and testing rates are the same. However, if testing is required of drivers immediately upon selection or whenever they first return to the testing location after their selection (but still unannounced), there would be no need for separate pools. Any acceptable method must ensure that each driver has an equal chance of actually being tested. Although multi-modal pools will be permitted, other specific DOT agency requirements will have to be met, such as the FAA requirement for prior approval of consortium-operated random testing pools.

If the employer joins a consortium, this rule will permit the calculation of the annual rate on either the total number of drivers for each individual employer or the total number of covered employees subject to random testing by the consortium's pool covering the employer. This will mean that a consortium member could have less than its required number of random tests conducted if the overall consortium rate equals the required rate. Thus, if Employer A has ten drivers and the consortium has 500 drivers in the pool covering Employer A, and a 50 percent rate applies, if Employer A chooses to have the rate based on the consortium, the consortium must conduct at least 250 tests even if only four or fewer drivers of Employer A are tested. So long as each driver has an equal chance of being tested each time the consortium conducts random tests, the requisite deterrence factor remains. Membership in a consortium, as noted earlier, should improve deterrence for small companies because their drivers will continue to perceive an equal chance of being selected and tested throughout the year.

The FHWA has had many inquiries regarding compliance by owner-operators with the random testing requirements in Part 391. It has been the FHWA's view and will continue to be the view that owner-operators cannot conduct their own random testing program. Owner-operators must meet the conditions of random testing, which include that the random selection process must provide for testing to be unannounced and the timing of such test unpredictable. The FHWA believes that the requirement of unannounced testing requires that an owner-operator must join a consortium or testing pool that includes at least two or more drivers. Owner-operators are expected to join consortiums that have at least two or more covered employees. The other covered employees may be subject to aviation, railroad, mass transit, maritime or pipeline industries, provided that the applicable regulations for those other industries allows inclusion of CMV drivers in their testing pools.

Upon each of the implementation dates for this rule, the FHWA will remove, for the employers subject to the applicable implementation dates, the current prohibition that intrastate commercial motor vehicle drivers shall not be included in random testing selection pools with interstate commercial drivers. As this new rule applies to all inter-and intrastate drivers with CDLs, there will be no need for the separation. However, the FHWA will prohibit the inclusion in the random selection pools of any employees not subject to any of the DOT agency testing rules. When a representative of the FHWA or any DOT agency is investigating an employer subject to these rules, the representative of FHWA must determine whether the required testing rate has been met. Prohibiting non-drivers and other non-DOT covered employees from participating in the same random selection pools will assist the employer in complying with these rules, especially in ensuring that drivers are tested at the required minimum annual percentage rate.

If a driver works for two or more employers subject to FHWA or DOT agency regulations, the driver must be in all of the employers' random testing programs.

When drivers are off work due to long-term lay-offs, illnesses, injuries or vacations, the employer has three options. First, the driver's name could be skipped and the next driver's name on the selection list could be selected and tested. If this occurs, the employer must keep documentation that the driver was ill, injured, laid off, or on vacation and that the driver was in the random selection pool for that cycle. Second, the employer could remove the driver's name from the selection pool for that cycle. If this is done for drug testing and the driver is out of the program for more than 30 days, the pre-employment testing provisions of this rule will apply. Finally, the employer could set the driver's name aside until the driver comes back from the extended leave and the employer would conduct the test at that time. The employer shall not, however, notify any driver to submit to a test while the driver is off work due to these extended leave periods. Employers with seasonal fluctuations in the number of drivers actually driving should adjust each random selection episode to reflect the fluctuation, thereby ensuring an equal chance of all drivers being selected.

A consortium that performs selection and/or testing services as agents for the employer must prepare and provide to the employer complete and comprehensive descriptions of the procedures used by the consortium. An employer must have this information readily available for inspection. The consortium, and an employer who does not use a consortium, must include in these descriptions: how the random selection pool is assembled; the method of selection and notification of drivers; the location of collection sites (at terminals, clinics, "on the road", etc.); methods of reporting the test results on each driver; and summary reports of the consortium's program. Also, documentation must be provided that the consortium is testing at the prescribed minimum annual percentage rate for alcohol and/or controlled substances. Each employer is at no time relieved of the duty to comply with each requirement of this rule.

Section 382.307 Reasonable Suspicion Testing

See Limitations of Alcohol Use by Transportation Workers for discussion of the majority of the elements of this section.

In the FHWA rule, only one supervisor is required to make the reasonable suspicion determination. That supervisor may not, however, conduct the alcohol test on the driver. Documentation of the grounds for reasonable suspicion to require a controlled substances test must be made and signed by the supervisor within 24 hours of the observed behavior or before the results of the test are released, whichever is later.

Section 382.309 Return-to-Duty Testing

See Limitations of Alcohol Use by Transportation Workers for discussion of this section.

Section 382.311 Follow-Up Testing

See Limitations of Alcohol Use by Transportation Workers for discussion of this section.

Subpart D—Handling of Test Results, Record Retention, and Confidentiality

Section 382.401 Retention of Records

To provide for FHWA oversight of the alcohol and controlled substances testing programs and to protect driver confidentiality, an employer is required to maintain, for a specified period, in a secure location with controlled access, certain records of its alcohol and controlled substance use prevention program. This section itself does not require any records to be generated. Other sections of the rule does that. This section merely sets forth the retention periods for records generated pursuant to other sections of the rule.

The records may be included in personnel records that have controlled and secure access only by authorized personnel. The FHWA is requiring all documents be maintained in accordance with §390.31, which sets forth requirements for copies and long-tern storage of documents, including computer storage systems. Though the records may be maintained anywhere, the employer must make them available to an FHWA representative, upon two days notice, at the employer's principal place of business.

Section 382.403 Reporting of Results in a Management Information System

For oversight purposes, each employer will be required to generate and retain, at a minimum, an annual calendar year summary of the results of its alcohol and controlled substances prevention program for each calendar year. The FHWA will randomly select a sample of employers from all employers subject to part 382. The sample of employers will be large enough so that the sample statistics will have a tolerable error of plus or minus one percentage point in a 99 percent confidence interval. For example, this means the FHWA will be 99 percent confident that the actual industry positive rate is within plus or minus one percentage point of the sample statistics.

Employers selected to submit data will be notified by mail during the month of January of the year in which the data is due. For example, an employer who is selected and notified in January 1998 must report data for calendar year 1997 by March 15, 1998. The notice to submit data will specify the name and address where the data are to be submitted and enclose copies of both a long and a short "EZ" form. Employers will have the option to submit either form by electronic transmission and will receive information on how to submit the forms electronically.

Previous versions of the forms were included in the NPRMs [57 FR 59409] as appendix B to 49 CFR part 40. The FHWA foresees that the forms or instructions may be changed in the future to make them more understandable based on future comments. Therefore, the most current versions of the long and short "EZ" forms are contained in this document for informational purposes only as Illustrations I and II in the Appendix to this document respectively. This appendix will not appear in the Code of Federal Regulations. The FHWA is not soliciting employers to submit data by including the forms in this document. The FHWA will not enter information into the MIS from unsolicited respondents because the sample is random in nature. The acceptance of unsolicited responses would bias the sample. The aggregation of information collected from solicited reports will be utilized for program analysis and to respond to requests for information from Federal agencies, members of Congress, and the general public.

Employers whose drivers had any verified positive controlled substances test results or any alcohol test results of 0.02 or greater in the preceding calendar year must utilize the long form. Employers whose drivers had no verified positive controlled substances test results and no alcohol test results indicating alcohol concentrations of less than 0.02 in the preceding calendar year will be allowed to utilize the short form. Employers whose drivers had refused to test in the preceding calendar year will be allowed to utilize the short form if no drivers had verified positive controlled substances test results or alcohol test results indicating concentrations 0.02 or greater in the preceding year. Controlled substances test results must be reported for the calendar year in which the MRO made the final determination of the test result regardless of the date the specimen was collected. For example, a final determination of a controlled substances test result made by a MRO on January 2, 1996, for a specimen collected on December 30, 1995, must be included in the data for calendar year 1996.

Within Section B (Covered Employees) of both the long and short "EZ" forms, employers must submit the number of covered employees in each category subject to testing under the alcohol and controlled substances testing regulations of more than one DOT operating administration (OA), identified by OA. As formulated by the Department, employers who are subject to the alcohol and/or controlled substances testing regulations of two or more OAs must submit data to each regulating OA for those employees covered by that OA's rule. Employees who perform functions covered by more than one OA should be identified by their employer under the covered position that they will be reported. Data on dual covered employees should be reported to the appropriate OA.

The issue of multi-modal coverage affects railroads, aviation, maritime, and pipeline safety operations. Although many commenters suggested that all CDL holders in the various industries should report to their primary OA, the OAs believe that reportability should be determined by employee function. Therefore, drivers who are subject to the alcohol and/or controlled substances testing regulations of more than one OA must be reported as follows:

For pre-employment and random testing, a driver should be reported to whichever OA covers more than 50% of that driver's function. If the driver is subject to three or more OA rules, the employer must determine which function the driver performs the greatest percentage of the time and report the pre-employment and random testing results to the OA covering the greatest percentage of the driver's duties, e.g. driving CMVs 45 percent of the time, flying airplanes 35 percent of the time, and operating railroad equipment 30 percent of the time. For post-accident and reasonable suspicion testing, however, reportability should be determined by the function the driver was performing at the time of the accident or incident. Finally, for return to duty and follow-up testing, the employee should be reported to the same OA to whom the initial positive controlled substances test or alcohol test indicating a concentration of 0.04 or greater was reported. The FHWA must stress here that, although the driver has been tested and is reported to other DOT agencies under their regulations, the driver is prohibited from operating any CMV as required by Subpart E of this rule.

Section 382.405 Access to Facilities and Records

See Limitations of Alcohol Use by Transportation Workers for discussion of this section.

Section 382.413 Release of Alcohol and Controlled Substances Test Information by Previous Employers

Paragraph (a) restates §382.405(b) in terms of the employer. An employer may obtain any of the information retained by other employers under part 382, pursuant to a driver's consent.

Paragraph (b), by contrast, provides that an employer shall obtain certain elements of that information, also pursuant to the driver's consent. This merely makes mandatory that which employers have had the option to do under the current drug testing program—make release of previous testing information a condition of employment as a driver. Information on alcohol and controlled substances testing results from the driver's previous employers must be obtained generally before using the driver. An employer is, of course, free to make release of any information a condition of employment, though this section only requires certain information.

Since the information is releasable by the previous employer only pursuant to a driver's written authorization, an employer must make obtaining such authorization a condition of the driver performing safety-sensitive functions for the employer. Requiring the driver's consent will ensure that the information remains confidential and is released only to the extent authorized by the driver. The protections of §382.405 remain in full effect, including allowance of the re-release of information also only pursuant to the driver's consent.

The information to be released under this section is limited to positive controlled substances test results, alcohol test results of 0.04 or greater, and refusals to be tested, for the two years preceding the date of inquiry. None of the other information required to be maintained by the employer in this rule is required to be released under paragraph (b). Restricting the content of the mandatory inquiries, by not requiring negative drug test results and alcohol tests with results less than 0.04 to be obtained, should minimize the burden of compliance on employers.

This section is necessary to effectuate the referral, evaluation, and treatment requirements of the rule. Whereas the NPRM proposed a system of information and penalty suspensions tied to the driver's CDL, this final rule includes no CDL consequences because the law-enforcement based testing option has not been chosen. Licensing agencies would be understandably reluctant to issue suspensions based solely on the results of employer-based tests, without affording the driver a review process.

Comments to the dockets and experience in administering the current drug testing program make it clear that some system of information is necessary to give effect to the requirements of the rule. One of the major problems with the current drug testing rule is that drivers who test positive merely apply to work with a different employer without taking the required retest or becoming medically recertified to drive. The new employer has no clear way and, unfortunately, too often, no incentive to determine if the driver-applicant is avoiding the requirements. With the rehabilitation requirements in this rule over and above those in the current drug testing program, the incentive to avoid them will only be increased.

The problem is particularly acute in the motor carrier industry, due to its size and turnover rate. Of the approximately 270,000 known interstate carriers, about 10% enter and leave business each year. Adding intrastate carriers, also covered by this rule, only serves to increase the number of carriers in flux. Similarly, of the approximately 6.6 million drivers covered by the rule, it is conservatively estimated that 20% work for a different employer from one year to the next. Given these numbers, it is not difficult to see the potential for getting lost and avoiding the rule's requirements, especially where there is no tracking system being used, such as the CDL Information System.

Sharing information on recent positive tests, and the requirement in paragraph (g) that employers obtain proof of completion of rehabilitation and return-to-duty test requirements after positive tests, is not such a tracking system. It will help keep drivers, and employers, from avoiding evaluation and possible treatment following a violation, however. Again, it must be emphasized that this section requires nothing that could not be willingly accomplished by employers under the current rule. An employer could make release of prior results a condition of employment as a driver, and should require drivers with positive tests to prove they have been retested and medically recertified as qualified. Employers are, after all, prohibited from using a driver it knows has tested positive but has not been recertified and tested negative. By making such inquiries and conditions mandatory, this section merely sets forth a standard of knowledge for new employers to comply with the rule.

An employer that learns that a driver-applicant is prohibited from driving need not refer the driver to a SAP for evaluation and treatment. The employer must, however, obtain proof of a SAP evaluation and return-to-duty test before using the driver-applicant. Therefore, drivers with positive drug test results, alcohol test results of 0.04 or greater, or refusals to test should either maintain copies of subsequent SAP evaluations and return-to-duty tests, or should also consent to release of them along with the required information, in order to show compliance with the rule. Similarly, of the approximately 6.6 million drivers covered by the rule, it is conservatively estimated that 20% work for a different employer from one year to the next. Given these numbers, it is not difficult to see the potential for getting lost and avoiding the rule's requirements, especially where there is no tracking system being used, such as the CDL Information System.

Sharing information on recent positive tests, and the requirement in paragraph (g) that employers obtain proof of completion of rehabilitation and return-to-duty test requirements after positive tests, is not such a tracking system. It will help keep drivers, and employers, from avoiding evaluation and possible treatment following a violation, however. Again, it must be emphasized that this section requires nothing that could not be willingly accomplished by employers under the current rule. An employer could make release of prior results a condition of employment as a driver, and should require drivers with positive tests to prove they have been retested and medically recertified as qualified. Employers are, after all, prohibited from using a driver it knows has tested positive but has not been recertified and tested negative. By making such inquiries and conditions mandatory, this section merely sets forth a standard of knowledge for new employers to comply with the rule.

An employer that learns that a driver-applicant is prohibited from driving need not refer the driver to a SAP for evaluation and treatment. The employer must, however, obtain proof of a SAP evaluation and return-to-duty test before using the driver-applicant. Therefore, drivers with positive drug test results, alcohol test results of 0.04 or greater, or refusals to test should either maintain copies of subsequent SAP evaluations and return-to-duty tests, or should also consent to release of them along with the required information, in order to show compliance with the rule. Alternatively, a pre-employment test directed by the hiring employer may serve as a return-to-duty test under such circumstances.

In no case should any test result for alcohol or drugs under this part be used to infer that a person is an alcoholic or drug addict. Testing under this part determines whether a driver may need to be removed from safety-sensitive functions and must be referred to a substances abuse professional only. The tests under this part are conduct test only, and do not determine the status of any person. Prospective employers should refer to the requirements of the Americans with Disabilities Act, and implementing regulations, 42 CFR 1630, before taking any employment actions based on SAP evaluations released by drivers to the prospective employer.

This section is consistent with 49 CFR 391.21 and 391.23, which requires a driver-applicant to list the names, addresses, and dates of employment for all employers in the preceding three years (10 years for CDL drivers), and requires employers to investigate the driver's record by contacting all of the driver's previous employers within the three preceding years. The information on testing could be easily added to the inquiry. This inquiry requirement has been included in part 382, and not part 391, because part 391 does not cover many of the drivers to which this rule applies. Drivers' and employers' compliance with the requirement to list and investigate prior employers for purposes of test result information, will be enforced in the same manner that part 391 is currently enforced.

The maximum (14 calendar days) period granted to the employer to obtain the testing information is shorter than the period allowed to investigate the driver's employment record, as required in 49 CFR 391.23. Since the period of investigation is also shorter, three years rather than two, the burden of compliance is lessened. Fourteen days also makes it more difficult to abuse the section's intent by discharging drivers before the information is absolutely required to be obtained. As an additional incentive to promptly obtain the required information, and to facilitate future inquiries, paragraph (d) requires the employer to obtain the information even if the driver stops driving before the information is obtained or before the 14 day period had expired.

In this rule, also differing from §391.23, an employer is required in the first instance to obtain the information prior to using the driver. Only if such promptness is not feasible, and only for as long as it remains infeasible, may an employer delay obtaining the information. Obviously, the utility of this provision is diminished the longer an employer waits to make the inquiries. The potential is there, however, for a prudent employer, especially those many commenters who have requested a provision allowing the exchange of information, to obtain meaningful information and to aid drivers who misuse alcohol and drugs by ensuring completion of rehabilitation.

An employer is prohibited in paragraph (c) from using a driver for longer than 14 days without obtaining the prior testing information. The new employer must make a good faith effort to obtain the information. An employer who makes a good faith effort, but through no fault of its own is unable to obtain the information, may continue to use the driver if it makes a note under paragraph (f) of the attempt. For instance, if a previous employer refuses, in violation of §382.405, to make the information available pursuant to the driver's request, the new employer should note the attempt to obtain the information and place the note with the driver's other testing information.

Finally, paragraph (f) leaves the form of the release of information to the discretion of the employer. The employer must, however, ensure confidentiality of the information in the same manner as provided in §382.405.

Subpart E—Consequences for Drivers Engaging in Substance Abuse—Related Conduct

Section 382.501 Removal From Safety-Sensitive Function

Paragraph (c) extends all of the driving consequences of violating the rule, provided in subpart E, to commercial motor vehicles in interstate commerce as defined in part 390, as well as CMVs in commerce as defined in §382.107. For example, a driver removed from performing safety sensitive functions because of a rule violation occurring in a 26,001 pound or greater vehicle in inter-or intrastate commerce, also is prohibited from driving a 10,001 pound or greater vehicle in interstate commerce, until complying with §382.605. This provision extends consequences of violations incurred in transportation under CDL jurisdiction to transportation covered by the Federal Motor Carrier Safety Regulations.

Section 382.503 Required Evaluation and Testing

See Limitations of Alcohol Use by Transportation Workers, published elsewhere in today's Federal Register.

Section 382.505 Other Alcohol-Related Conduct

Though the minimum alcohol concentration to incur referral to a SAP and a return-to-duty test is 0.04, alcohol tests with result below 0.04 are also serious and represent a threat to the safety of the motoring public. An alcohol concentration of 0.039 does not warrant evaluation and rehabilitation under the rule, but it may have an adverse effect on a driver's abilities. In addition, the driver's blood alcohol curve may be rising. In other words, the individual may have just consumed enough alcohol to eventually produce an alcohol concentration of 0.04 or greater, but the alcohol is just entering the bloodstream and, at the time of testing, the alcohol concentration is below 0.04, but rising. It is, rather, a matter of testing fora.

Part 382 establishes a program of employer-based testing. Section 382.505 requires a driving prohibition of 24 hours for a test result of 0.02 or greater but less than 0.04. (In most instances, the rehabilitation referral requirements of §382.605 will also take at least 24 hours.)

Section 392.5 (c) and (d), on the other hand, requires law enforcement officials to issue a 24 hour out-of-service order to a driver with any measured alcohol concentration or detected presence of alcohol. There is no 24 hour driving prohibition period in §392.5 required directly of the driver and employer without the involvement of a law enforcement official. Section 392.5(a) and (b) merely prohibit driving after a measured alcohol concentration or detected presence of alcohol, without placing any time limit. Moreover, because tests conducted under part 382 with results below 0.02 are deemed to be "negative" or zero, there can be no measured alcohol concentration for which to prohibit driving under §392.5 when the result is less than 0.02.

Still, an employer must comply with the driving prohibition in §392.5, regardless of a test result below 0.02 or not, if it discovers violation of any of the other proscriptions provided in the section, such as pre-duty use, possession, and detected presence of alcohol. In most circumstances, a driver would also be removed from safety-sensitive functions and referred to a SAP under part 382 for committing such violations, in effect imposing the driving prohibition in §392.5 anyway. If a driver subject to §392.5 is given a test, however, which results in a concentration below 0.02, but the employer detects the presence of alcohol in the driver through other means, the employer is prohibited from using the driver until there is no longer the presence of alcohol.

Post-accident tests administered by a law enforcement official under independent authority may result in a 24 hour out-of-service order issued by the official for concentrations below 0.02 because the test is not administered under part 382.

Section 382.507 Penalties

Section 5(f) of the Act allows the Secretary to determine appropriate sanctions for drivers who are determined through testing developed under this Act to have used alcohol or controlled substances in violation of law or Federal regulation, but are not under the influence of alcohol or controlled substances as provided in the CMVSA. Regulations issued pursuant to the CMVSA impose disqualifications and other penalties for "conviction" by Federal, State, or local law enforcement officials of driving under the influence of alcohol or controlled substances (§383.51). This section provides that employers and drivers who violate these rules, which do not provide for "convictions" or CDL disqualifications, are subject to 49 U.S.C. 521(b), which allow civil forfeiture penalties of up to $10,000.

Subpart F—Alcohol and Controlled Substances Misuse Information, Training, and Referral

Section 382.601 Motor Carrier Obligation To Promulgate a Policy on the Misuse of Alcohol and Controlled Substances

Materials explaining how the employer implements the requirements of this part and the employer's policies must be provided to each driver. Written notice of the availability of these materials must be provided to representatives of employee labor organizations.

In addition to educational information, the materials also may include the description of any self-identification program or procedure under which a driver may decline to perform or continue to perform safety-sensitive functions without penalty when he or she may be in violation of these rules, including any limits on the program. The employer also may include information on additional employer policies with respect to the use or possession of alcohol, including any consequences for a driver found to have a specified alcohol concentration, that are based on the employer's authority independent of these rules. These additional policies must be clearly identified as based on the employer's independent authority.

Motivating drivers about safety in the workplace and good health is important to making an alcohol and controlled substances use prevention program work. Because the primary objective of this alcohol and controlled substances misuse program is deterrence rather than detection, it is especially important that, before any testing is begun, employers make their drivers fully aware of the dangers of alcohol and controlled substances misuse in their jobs, advise them where help can be obtained if they have a problem with alcohol or controlled substances use, and the potential consequences for people who violate this rule. An effective company policy and educational effort can more than pay for itself with the benefits it can achieve.

Section 382.603 Training for Supervisors

See Limitations of Alcohol Use by Transportation Workers for discussion of this section.

Section 382.605 Referral, Evaluation, and Treatment

The Omnibus Act requires that an opportunity for treatment be made available to drivers. This does not require employers to provide or pay for rehabilitation or to hold a job open for a driver with or without salary. In the current drug testing rules, the Department decided that it was inappropriate to establish a Federal role in mandating that employers provide for rehabilitation and that it should be left to management/driver negotiation. The same logic will apply here. The FHWA has decided not to mandate employer-provided rehabilitation in this rule.

We encourage those employers who can afford to provide rehabilitation to do so through established health insurance programs, since it helps their drivers, benefits morale, is often cost-effective and ultimately contributes to the success of both their business and their testing programs.

This section requires an employer to advise a driver who engages in conduct prohibited under these rules of the available resources for evaluation and treatment of alcohol and controlled substances problems. The employer will have no similar obligation to applicants who refuse to submit to or fail a pre-employment test.

A SAP will evaluate each driver who violates these rules to determine whether the driver needs assistance resolving problems associated with alcohol misuse and refer the driver for any necessary treatment. Before returning to duty after a violation, each driver must undergo an applicable alcohol or controlled substances test with a result of less than 0.02 alcohol concentration and/or a verified negative controlled substances test result. In addition, each driver identified as needing assistance must (1) Be evaluated again by a SAP to determine whether the driver has successfully complied with the rehabilitation program prescribed following the initial evaluation, and (2) be subject to a minimum of six (6) unannounced, follow-up tests over the following twelve (12) months. Compliance with the prescribed treatment and passing the test(s) will not guarantee a right of reemployment. They will be preconditions the driver must meet in order to perform safety-sensitive functions.

For a CMV driver to return to duty following a controlled substances test that results in a verified positive test result, the CMV driver must stop using drugs, be evaluated by a substance abuse professional, and take a return-to-duty controlled substances test with a negative result. The SAP evaluation takes the place of the requirement in 49 CFR 391.45(c) that drivers who test positive for drugs, and are thereby rendered medically unqualified to drive under §391.41(b)(12), must be recertified as medically qualified to drive. Drivers identified as needing assistance must also complete any rehabilitation required by the substance abuse professional, be re-evaluated by a substance abuse professional to determine whether rehabilitation requirements were followed, and be subject to follow-up tests.

Follow-up and return-to-duty tests need not be confined to the substance involved in the violation. If the SAP determines that a driver needs assistance with a poly-substance abuse problem, the SAP may, for instance, require alcohol tests to be performed along with the required drug follow-up and/or return-to-duty tests, after a driver has violated the drug testing prohibition.

The rule will provide that the evaluation and the rehabilitation may be provided by the employer, by a SAP under contract with the employer or by a SAP not affiliated with the employer. The choice of SAP and assignment of costs will be made in accordance with employer/driver agreements and employer policies.

Other Issues

As in the current drug testing rules, the FHWA wants to provide program flexibility to allow employers to carry out their programs in a more efficient, cost-effective manner and to ease the compliance burden on small businesses. Testing, for example, may be conducted by the employer, an outside contractor, a consortium, a union, or any other party or agent of the employer. The employer remains responsible for compliance with the requirements of this part.

The use of consortia has worked well in the drug testing area. In fact, it is the predominant method of compliance in some industries, particularly among smaller employers. One reason to delay implementation of this rule for smaller employers is to enable them to form or join consortia or large employer testing programs, rather than have to establish their own programs.

Employers may find it more cost-effective and convenient to conduct alcohol testing at the same time they conduct drug testing. Because we are requiring alcohol testing at or near the time of performance, drug testing also would have to occur at such times. For random testing, employers could easily accomplish this by randomly choosing the driver's number and then testing the driver the next time he or she performs safety-sensitive functions.

Multi-Agency Coverage

In some industries, a significant percentage of drivers are subject to the testing rules of more than one DOT OA; some are subject to the testing rules of more than one federal agency (e.g., drivers covered by the Department of Energy may also be covered by FHWA). Where it will not compromise the effectiveness of the testing program or other requirements, one DOT agency will defer to another or recognize the validity of the other's requirements.

There are different situations in which multi-agency coverage can occur:

(1) A driver may perform different modal functions for the same employer. For example, a driver may act as both a railroad repair person and a truck driver for a single employer, activities regulated by the FRA and the FHWA, respectively. Such a driver could be in a single random pool under these rules, but will have to have an equal chance of being selected for random testing while performing either track repair or driving functions.

(2) A driver may have two employers. For example, a driver may fly for one employer and drive for another. That driver will be subject to two random testing requirements and will generally be in two different pools. As discussed above, however, the driver could be covered by one random testing pool, e.g., one run by a consortium; in both situations, the driver will be subject to random testing in either job.

This rule will require that drivers cease safety-sensitive functions in every mode of transportation, once determined to be in violation of any one of the OA rules. We also have been consulting with other federal agencies during this rulemaking proceeding in an attempt to make Federal government rules as consistent as possible. The Department of Energy (DOE) already has issued a similar rule on alcohol misuse for drivers in nuclear facilities. To avoid any potential conflict, DOE officials have indicated that they plan to defer to the DOT rules where there are entities covered by both programs.

Self-Identification/Peer-Referral Programs

Since the FHWA's primary purpose is to deter drivers from having alcohol and controlled substances in their systems while performing safety-sensitive functions, drivers should be able to identify themselves as unfit to work. The FHWA encourages employers to establish self-identification or peer-referral programs and encourage drivers to use them. These programs, which already exist in some segments of the highway transportation industries, generally allow a driver to decline, without penalty, to perform or continue to perform her job if the driver knows that she is or may be impaired by alcohol or controlled substances. The FHWA will not require self-identification programs, because we believe that they are a matter more appropriate for labor/management negotiations. The successful implementation of such programs depends upon joint labor-management commitment to an alcohol/drug-free work environment.

Any such program, however, could not interfere with the tests required by these rules. For example, a driver could not identify himself as unfit to drive after having been notified of a random or reasonable suspicion test and expect to avoid the consequences for a positive test or a refusal to test. Such a program could, however, permit a driver to initiate a voluntary alcohol test to determine whether the driver is in violation of these rules, without fear of consequences required by this rule, regardless of the test results.

Education

There is some disagreement about the respective effectiveness of education vis-a-vis enforcement. Some researchers claim that education is more effective in preventing alcohol misuse than apprehension of the abuser. The American Automobile Association Foundation for Traffic Safety compared eight states that adopted tougher drunk driving laws with six that did not. The new laws had no effect at all on traffic fatalities. The Foundation attributes the overall decline in U.S. traffic-related deaths between 1980 and 1985 to public awareness campaigns by such groups as Mothers Against Drunk Driving (MADD). A Boston University researcher similarly concluded that social pressure and publicity "may be as important as government regulations in reducing drunk driving and fatal crashes." (Both quoted in "USA Today", Wednesday, August 3, 1988.)

These studies have been criticized as poorly designed and misleading, since education programs were never isolated as an independent variable for comparison. NHTSA believes that the most effective programs are those that combine education and enforcement. Public information and education programs, in the absence of enforcement activities or sanctions, have never been shown to have an impact on alcohol-related fatal crashes. Conversely, scores of studies have found that programs involving enhanced enforcement, roadside sobriety checkpoints, and the use of sanctions such as license suspensions frequently have resulted in significant reductions of alcohol-related fatalities. Although there is disagreement on the effectiveness of education alone, it appears that using education as an adjunct to deterrent measures will make both more effective.

Removal of Part 391, Subpart H

The present regulations for controlled substances testing are contained as a subpart to the FHWA's driver qualification regulations in part 391, and are applicable only to drivers subject to part 391. Generally, parts 390 through 399 of title 49 subchapter B are applicable to motor carriers and drivers who operate in interstate commerce. The Omnibus Act requires the FHWA to expand the scope of persons required to be tested beyond those subject to part 391. This rule will completely replace 49 CFR part 391, subpart H controlled substances testing on January 1, 1996.

The Omnibus Act requires all operators of CMVs to be tested for controlled substances and alcohol. This encompasses far more drivers than have been subject to parts 390 through 399. It applies to all drivers required to obtain a CDL. Drivers to which Federal drug testing requirements are newly applicable include, but are not limited to drivers and their employers operating wholly in intrastate commerce, employed directly by Federal, State and local governments, including school districts, and drivers with restricted-use CDLs or drivers in a State that does not recognize State option waiver CDLs (farm vehicle operators, firefighters and operators of emergency equipment).

The FHWA will make part 391, subpart H ineffective on the two implementation dates of part 382 to enable motor carriers to continue to use the existing regulations until all requirements of part 382 are to be complied with fully. Table I shows the existing regulations at 49 CFR part 391, subpart H and the section where the FHWA has moved the existing regulation into this rule.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures

The FHWA has determined that this action is a significant regulatory action within the meaning of Executive Order 12866. This rule has been reviewed under this order. It is significant within the meaning of Department of Transportation regulatory policies and procedures, too. It is anticipated that the economic impact of this rulemaking will be substantial; therefore, a full regulatory evaluation is required and has been prepared. The regulatory evaluation is included in the docket.

Executive Order 12875 (Enhancing the Intergovernmental Partnership)

The FHWA has determined that this action's NPRM published on December 15, 1992 (57 FR 59516) contained a requirement that must be analyzed in accordance with Executive Order 12875. The FHWA has reviewed the final rule under this order. The FHWA has determined that the proposed requirement for random roadside alcohol testing by State and local law enforcement officials would mandate States to perform roadside alcohol testing on commercial motor vehicle drivers. The requirement would not completely reimburse States for the cost of such a mandated program. The FHWA has decided not to mandate roadside alcohol testing as proposed, because of many factors including this Executive Order. See the section "Other Issues—Motor Carrier Safety Assistance Program (MCSAP)" in Limitations of Alcohol Use by Transportation Workers elsewhere in today's Federal Register for further discussion of the FHWA's and the DOT's analysis of this Executive Order as it relates to this final rule.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the FHWA has evaluated the effects of this rule on small entities. This final rule will require employers to test drivers for the use of alcohol and controlled substances. It will have a significant economic impact on small entities. The FHWA has lessened the economic impact on small entities by allowing them an additional year to comply with the rule over and above the time given to large employers.

Executive Order 12612 (Federalism Assessment)

This action adds part 382 to the FMCSRs pertaining to testing for alcohol and controlled substances by drivers of commercial motor vehicles operating in commerce on public roads and highways. These requirements directly affect employers and their drivers, including State and local employers and their drivers. The rule also will regulate employers and drivers who have historically been regulated only by their State of residence or where the employer's business is located. These requirements preempt State and local laws, regulations, rules, and orders that are inconsistent with the requirements of this rule. The preemption authority for this document was specifically provided for under 49 U.S.C. app. 2717, Section 12020(e)(1) of the Omnibus Transportation Employee Testing Act of 1991.

Under the Motor Carrier Safety Assistance Program, States will not be required to adopt compatible part 382 regulations for drug or alcohol testing as a condition for receiving grant monies under the program.

For the reasons set forth above, the agency is not required to prepare a Federalism Assessment for this proposal.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities applies to this program.

Paperwork Reduction Act

The information collection requirements in part 382 of this rule have been submitted to the Office of Management and Budget for approval under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. Information collection requirements are not effective until Paperwork Reduction Act clearance has been received.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has determined that this action will not have any effect on the quality of the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

List of Subjects in 49 CFR Parts 382, 391, 392 and 395

Alcohol testing, Controlled substances testing, Highways and roads, Highway safety, Motor carriers, Motor vehicle safety.

Issued on: January 25, 1994.

Federico Pena, Secretary of Transportation.

Rodney E. Slater, Federal Highway Administrator.