2014 October Federal Motor Carrier Regulations

Federal Motor Carrier Safety Regulations Plus Edition Including: 49 CFR Parts 40, 325-399, Appendixes A-G to Subchapter B DOT Interpretations Medical Advisory Criteria for Evaluation Under 49 CFR Part 391.41 Overview of Federal and State Regulations Concerning Interstate Motor Operations Useful Addresses and Telephone Numbers Motor Carrier Safety Progress Report Bridge Formula Weights Federal Motor Carrier Safety Administration Field Offices Costs of Highway Crashes Worksheet Revenue Necessary to Pay for Accident Losses

Updated through October 1, 2014.

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Recent changes in regulations: October 1, 2013 (Federal Register Volume 78, No. 190)

[RIN 2126-AB60]

Parts 350, 381, 383, 384, 385, 386, 387, and 392 have been revised to adopt, as final, certain regulations required by the Moving Ahead for Progress in the 21st Century surface transportation reauthorization legislation.This rule became effective October 1, 2013.

October 28, 2013 (Federal Register Volume 78, No. 208)

[RIN 2126-AB65]

Part 395 has been updated to amend the December 27, 2011, final rule entitled ‘‘Hours of Service of Drivers’’ to provide an exception from the 30-minute rest break requirement for short-haul drivers who are not required to prepare records of duty status (RODS). This rule became effective October 28, 2013.

December 17, 2013 (Federal Register Volume 78, No. 242)

[RIN 2126-AB69]

Part 369 has been revised to eliminate the quarterly financial reporting requirements for certain for-hire motor carriers of property (Form QFR) and for-hire motor carriers of passengers (Form MP–1). This rule became effective January 16, 2014.

January 14, 2014 (Federal Register Volume 79, No. 9)

[RIN 2126-AB71]

Part 391 has been amended to keep in effect until January 30, 2015, the requirement that interstate drivers subject to: either the commercial driver’s license (CDL) or the commercial learner’s permit (CLP) regulations: as well as the Federal physical qualification requirements, must retain paper copies of their medical examiner’s certificate when operating a commercial motor vehicle. Interstate motor carriers are also required to retain copies of their drivers’ medical certificates in their driver qualification files. This rule became effective January 14, 2014.

January 22, 2014 (Federal Register Volume 79, No. 14)

[RIN 2126-AB42]

Parts 385 and 386 have been amended to enable the Agency to suspend or revoke the operating authority registration of for-hire motor carriers that show egregious disregard for safety compliance, permit persons who have shown egregious disregard for safety compliance to exercise controlling influence over their operations, or operate multiple entities under common control to conceal noncompliance with safety regulations. This rule became effective February 21, 2014.

March 19, 2014 (Federal Register Volume 79, No. 53)

[RIN 2126-AB70]

Parts 383 and 390 have been amended to revising the definition of ‘‘gross combination weight rating’’ (or GCWR) to clarify the applicability of the Agency’s safety regulations for single unit trucks (vehicles other than truck tractors) when they are towing trailers, and the GCWR information is not included on the vehicle manufacturer’s certification label. This rule became effective April 18, 2014.

May 15, 2014 (Federal Register Volume 79, No. 94)

[RIN 2126-AB73]

Part 385 has been revised to update the current incorporation by reference of the ‘‘North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR Part 173.403.’’ This rule became effective May 15, 2014.

TOC Table of Contents

Table of Contents Part 40 – Procedures For Transportation Workplace Drug And Alcohol Testing Programs 1 Part 303 – Civil Rights

63

Part 325 – Compliance With Interstate Motor Carrier Noise Emission Standards 65 Part 350 – Commercial Motor Carrier Safety Assistance Program

Part 368 – Application For A Certificate Of Registration To Operate In Municipalities In The United States On The United States-Mexico International Border Or Within The Commercial Zones Of Such Municipalities 95 Part 369 – Reports Of Motor Carriers

71

Part 355 – Compatibility Of State Laws And Regulations Affecting Interstate Motor Carrier Operations 79

Part 370 – Principles And Practices For The Investigation And Voluntary Disposition Of Loss And Damage Claims And Processing Salvage 101 Part 371 – Brokers Of Property

Part 356 – Motor Carrier Routing Regulations

81

Part 360 – Fees For Motor Carrier Registration And Insurance

83

Part 365 – Rules Governing Applications For Operating Authority

85

Part 366 – Designation Of Process Agent

91

Part 367 – Standards For Registration With States

93

97

103

Part 372 – Exemptions, Commercial Zones, And Terminal Areas 107 Part 373 – Receipts And Bills

115

Part 374 – Passenger Carrier Regulations

117

Part 375 – Transportation Of Household Goods In Interstate Commerce; Consumer Protection Regulations

121

Part 376 – Lease And Interchange Of Vehicles

143

TOC

i

Part 377 – Payment Of Transportation Charges 147 Part 378 – Procedures Governing The Processing, Investigation, And Disposition Of Overcharge, Duplicate Payment, Or Overcollection Claims 149

Part 389 – Rulemaking Procedures — Federal Motor Carrier Safety Regulations 275 Part 390 – Federal Motor Carrier Safety Regulations; General 277

Part 379 – Preservation Of Records

151

Part 391 – Qualifications Of Drivers And Longer Combination Vehicle (LCV) Driver Instructors 297

Part 380 – Special Training Requirements

153

Part 392 – Driving Of Commercial Motor Vehicles

317

Part 393 – Parts And Accessories Necessary For Safe Operation

323

Part 394

366

Part 381 – Waivers, Exemptions, And Pilot Programs Part 382 – Controlled Substances And Alcohol Use And Testing

159

163

Part 383 – Commercial Driver's License Standards; Requirements And Penalties 181 Part 384 – State Compliance With Commercial Driver's License Program

211

Part 385 – Safety Fitness Procedures 219 Part 386 – Rules Of Practice For Motor Carrier, Intermodal Equipment Provider, Broker, Freight Forwarder, And Hazardous Materials Proceedings 245 Part 387 – Minimum Levels Of Financial Responsibility For Motor Carriers

261

Part 388 – Cooperative Agreements With States

273

ii

TOC

[Reserved]

Part 395 – Hours Of Service Of Drivers

367

Part 396 – Inspection, Repair, And Maintenance

387

Part 397 – Transportation Of Hazardous Materials; Driving And Parking Rules

395

Part 398 – Transportation Of Migrant Workers

405

Part 399 – Employee Safety And Health Standards

409

Appendixes

411

Addendum

425

Index

443

Part 40 - Procedures for Transportation Workplace Drug and Alcohol Testing Programs

Part 40 – Procedures For Transportation Workplace Drug And Alcohol Testing Programs Subpart A – Administrative Provisions §40.1 §40.3 §40.5 §40.7

Who does this regulation cover?

What do the terms used in this part mean?

Who issues authoritative interpretations of this regulation?

How can you get an exemption from a requirement in this regulation?

Subpart B – Employer Responsibilities §40.11 §40.13 §40.14 §40.15 §40.17 §40.19 §40.21 §40.23 §40.25

§40.27 §40.29

Subpart C – Urine Collection Personnel §40.31 §40.33 §40.35 §40.37

Who may collect urine specimens for DOT drug testing?

What training requirements must a collector meet?

What information about the DER must employers provide to collectors?

Where is other information on the role of collectors found in this regulation?

Subpart D – Collection Sites, Forms, Equipment and Supplies Used in DOT Urine Collections §40.41 §40.43 §40.45 §40.47 §40.49 §40.51

Where does a urine collection for a DOT drug test take place?

What steps must operators of collection sites take to protect the security and integrity of urine collections?

What form is used to document a DOT urine collection?

May employers use the CCF for non-Federal collections or non-Federal forms for DOT collections?

What materials are used to collect urine specimens?

What materials are used to send urine specimens to the laboratory?

Subpart E – Urine Specimen Collections §40.61 §40.63 §40.65 §40.67 §40.69 §40.71 §40.73

What are the preliminary steps in the collection process?

What steps does the collector take in the collection process before the employee provides a urine specimen?

What does the collector check for when the employee presents a specimen?

When and how is a directly observed collection conducted?

How is a monitored collection conducted?

How does the collector prepare the specimens?

How is the collection process completed?

Subpart F – Drug Testing Laboratories §40.81 §40.83 §40.85 §40.87 §40.89 §40.91 §40.93 §40.95 §40.96 §40.97 §40.99 §40.101 §40.103 §40.105 §40.107 §40.109 §40.111 §40.113

What laboratories may be used for DOT drug testing?

How do laboratories process incoming specimens?

What drugs do laboratories test for?

What are the cutoff concentrations for drug tests?

What is validity testing, and are laboratories required to conduct it?

What validity tests must laboratories conduct on primary specimens?

What criteria do laboratories use to establish that a specimen is dilute or substituted?

What are the adulterant cutoff concentrations for initial and confirmation tests?

What criteria do laboratories use to establish that a specimen is invalid?

What do laboratories report and how do they report it?

How long does the laboratory retain specimens after testing?

What relationship may a laboratory have with an MRO? What are the requirements for submitting blind specimens to a laboratory?

What happens if the laboratory reports a result different from that expected for a blind specimen?

Who may inspect laboratories?

What documentation must the laboratory keep, and for how long?

When and how must a laboratory disclose statistical summaries and other information it maintains?

Where is other information concerning laboratories found in this regulation?

Subpart G – Medical Review Officers and the Verification Process §40.121 §40.123 §40.125 §40.127 §40.129 §40.131 §40.133 §40.135 §40.137 §40.139 §40.141 §40.143 §40.145

Who is qualified to act as an MRO? What are the MRO's responsibilities in the DOT drug testing program?

What relationship may an MRO have with a laboratory?

What are the MRO's functions in reviewing negative test results?

What are the MRO's functions in reviewing laboratory confirmed non-negative drug test results?

How does the MRO or DER notify an employee of the verification process after receiving laboratory confirmed non-negative drug test results?

Without interviewing the employee, under what circumstances may the MRO verify a test result as positive, or as a refusal to test because of a dulteration or substitution, or as cancelled because the test was invalid?

What does the MRO tell the employee at the beginning of the verification interview?

On what basis does the MRO verify test results involving marijuana, cocaine, amphetamines, or PCP? On what basis does the MRO verify test results involving opiates?

How does the MRO obtain information for the verification decision?

[Reserved] On what basis does the MRO verify test results involving adulteration or substitution?

§40.153

2

§40.155

2 2 4 4

§40.157 §40.159 §40.160

4

§40.161

4 5 5 5

5 5 5 6 7 8 8 8

8

8 8 10

§40.162 §40.163 §40.165 §40.167 §40.169

[Reserved] May the MRO change a verified drug test result?

What are MROs prohibited from doing as part of the verification process?

How does the MRO notify employees of their right to a test of the split specimen?

What does the MRO do when a negative or positive test result is also dilute?

[Reserved] What does the MRO do when a drug test result is invalid?

What does the MRO do when a valid test result cannot be produced and a negative result is required?

What does the MRO do when a drug test specimen is rejected for testing?

What must MROs do with multiple verified results for the same testing event?

How does the MRO report drug test results?

To whom does the MRO transmit reports of drug test results?

How are MRO reports of drug results transmitted to the employer?

Where is other information concerning the role of MROs and the verification process found in this regulation?

Subpart H – Split Specimen Tests §40.171 §40.173 §40.175 §40.177 §40.179 §40.181 §40.183 §40.185 §40.187 §40.189

10

How does an employee request a test of a split specimen?

Who is responsible for paying for the test of a split specimen?

What steps does the first laboratory take with a split specimen?

What does the second laboratory do with the split specimen when it is tested to reconfirm the presence of a drug or drug metabolite?

What does the second laboratory do with the split specimen when it is tested to reconfirm an adulterated test result?

What does the second laboratory do with the split specimen when it is tested to reconfirm a substituted test result?

What information do laboratories report to MROs regarding split specimen results?

Through what methods and to whom must a laboratory report split specimen results?

What does the MRO do with split specimen laboratory results?

Where is other information concerning split specimens found in this regulation?

Subpart I – Problems in Drug Tests 10 10

10 11 12 12 12

12

§40.191 §40.193 §40.195 §40.197 §40.199 §40.201

12

§40.203

13

§40.205 §40.207 §40.208

13 13 14 14 15

15 15 15 16 16 16 16 16 17 17 17 18 18 18 19 19 19

§40.209

What is a refusal to take a DOT drug test, and what are the consequences?

What happens when an employee does not provide a sufficient amount of urine for a drug test?

What happens when an individual is unable to provide a sufficient amount of urine for a pre-employment follow-up or return-to-duty test because of a permanent or long-term medical condition?

What happens when an employer receives a report of a dilute specimen?

What problems always cause a drug test to be cancelled?

What problems always cause a drug test to be cancelled and may result in a requirement for another collection?

What problems cause a drug test to be cancelled unless they are corrected?

How are drug test problems corrected?

What is the effect of a cancelled drug test?

What problem requires corrective action but does not result in the cancellation of a test?

What procedural problems do not result in the cancellation of a test and do not require correction?

Subpart J – Alcohol Testing Personnel §40.211 §40.213 §40.215 §40.217

Who conducts DOT alcohol tests?

What training requirements must STTs and BATs meet?

What information about the DER do employers have to provide to BATs and STTs? Where is other information on the role of STTs and BATs found in this regulation?

24 24 25 25 25 26 26 27 27 27 27 28 28 28

28 28 29 29

29 29 29 30 30 30 31

31 31 32 33 33 34 34 34 35 35 35 35

36 36 36

37 37

Subpart K – Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing

37

§40.229 §40.231 §40.233 §40.235

37 38 38 38 38

§40.221 §40.223 §40.225 §40.227

Where does an alcohol test take place?

What steps must be taken to protect the security of alcohol testing sites?

What form is used for an alcohol test?

May employers use the ATF for non-DOT tests, or non-DOT forms for DOT tests?

What devices are used to conduct alcohol screening tests?

What devices are used to conduct alcohol confirmation tests?

What are the requirements for proper use and care of EBTs? What are the requirements for proper use and care of ASDs?

Subpart L – Alcohol Screening Tests §40.241 §40.243

19 19

§40.245

19

§40.247

What are the first steps in any alcohol screening test?

What is the procedure for an alcohol screening test using an EBT or non-evidential breath ASD? What is the procedure for an alcohol screening test using a saliva ASD or a breath tube ASD? What procedures does the BAT or STT follow after a screening test result?

37 37 37

38 38 39 39 40

19 20 20 20

Subpart M – Alcohol Confirmation Tests

40

21

Subpart N – Problems in Alcohol Testing

41

21

§40.251 §40.253 §40.255 §40.261 §40.263

22

§40.265

22

§40.267 §40.269

22 23 23 23 23

§40.271 §40.273 §40.275 §40.277

What are the first steps in an alcohol confirmation test?

What are the procedures for conducting an alcohol confirmation test?

What happens next after the alcohol confirmation test result?

What is a refusal to take an alcohol test, and what are the consequences?

What happens when an employee is unable to provide a sufficient amount of saliva for an alcohol screening test?

What happens when an employee is unable to provide a sufficient amount of breath for an alcohol test?

What problems always cause an alcohol test to be cancelled?

What problems cause an alcohol test to be cancelled unless they are corrected?

How are alcohol testing problems corrected?

What is the effect of a cancelled alcohol test?

What is the effect of procedural problems that are not sufficient to cancel an alcohol test?

Are alcohol tests other than saliva or breath permitted under these regulations?

40 40 41

41 41 41 42 42 42 43 43 43

1

40 Procedures for Transportation Workplace Testing Programs

§40.26

What are the general responsibilities of employers under this regulation?

How do DOT drug and alcohol tests relate to non-DOT tests?

What collection information must employers provide to collectors?

May an employer use a service agent to meet DOT drug and alcohol testing requirements?

Is an employer responsible for obtaining information from its service agents?

[Reserved] May an employer stand down an employee before the MRO has completed the verification process?

What actions do employers take after receiving verified test results?

Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?

What form must an employer use to report Management Information System (MIS) data to a DOT agency?

May an employer require an employee to sign a consent or release in connection with the DOT drug and alcohol testing program?

Where is other information on employer responsibilities found in this regulation?

§40.147 §40.149 §40.151

§40.1

Part 40 - Procedures for Transportation Workplace Drug and Alcohol Testing Programs Subpart O – Substance Abuse Professionals and the Return-to-Duty Process §40.281 §40.283 §40.285 §40.287 §40.289 §40.291 §40.293 §40.295 §40.297 §40.299 §40.301 §40.303 §40.305 §40.307 §40.309 §40.311 §40.313

Who is qualified to act as a SAP? How does a certification organization obtain recognition for its members as SAPs? When is a SAP evaluation required?

What information is an employer required to provide concerning SAP services to an employee who has a DOT drug and alcohol regulation violation?

Are employers required to provide SAP and treatment services to employees?

What is the role of the SAP in the evaluation, referral, and treatment process of an employee who has violated DOT agency drug and alcohol testing regulations?

What is the SAP's function in conducting the initial evaluation of an employee?

May employees or employers seek a second SAP evaluation if they disagree with the first SAP's recommendations?

Does anyone have the authority to change a SAP's initial evaluation?

What is the SAP's role and what are the limits on a SAP's discretion in referring employees for education and treatment?

What is the SAP's function in the follow-up evaluation of an employee?

What happens if the SAP believes the employee needs additional treatment, aftercare, or support group services even after the employee returns to safety-sensitive duties?

How does the return-to-duty process conclude?

What is the SAP's function in prescribing the employee's follow-up tests?

What are the employer's responsibilities with respect to the SAP's directions for follow-up tests?

What are the requirements concerning SAP reports?

Where is other information on SAP functions and the return-to-duty process found in this regulation?

Subpart P – Confidentiality and Release of Information §40.321 §40.323 §40.325 §40.327 §40.329 §40.331 §40.333

What is the general confidentiality rule for drug and alcohol test information?

May program participants release drug or alcohol test information in connection with legal proceedings?

[Reserved] When must the MRO report medical information gathered in the verification process?

What information must laboratories, MROs, and other service agents release to employees?

To what additional parties must employers and service agents release information?

What records must employers keep?

Subpart Q – Roles and Responsibilities of Service Agents §40.341 §40.343 §40.345 §40.347 §40.349 §40.351 §40.353 §40.355

Must service agents comply with DOT drug and alcohol testing requirements?

What tasks may a service agent perform for an employer?

In what circumstances may a C/TPA act as an intermediary in the transmission of drug and alcohol testing information to employers?

What functions may C/TPAs perform with respect to administering testing?

What records may a service agent receive and maintain?

What confidentiality requirements apply to service agents?

What principles govern the interaction between MROs and other service agents?

What limitations apply to the activities of service agents?

Subpart R – Public Interest Exclusions §40.361 §40.363 §40.365 §40.367 §40.369 §40.371 §40.373 §40.375 §40.377 §40.379 §40.381 §40.383 §40.385 §40.387 §40.389 §40.391 §40.393 §40.395 §40.397 §40.399 §40.401 §40.403 §40.405 §40.407 §40.409 §40.411 §40.413

What is the purpose of a public interest exclusion (PIE)?

On what basis may the Department issue a PIE? What is the Department's policy concerning starting a PIE proceeding?

Who initiates a PIE proceeding?

What is the discretion of an initiating official in starting a PIE proceeding?

On what information does an initiating official rely in deciding whether to start a PIE proceeding?

Before starting a PIE proceeding, does the initiating official give the service agent an opportunity to correct problems?

How does the initiating official start a PIE proceeding?

Who decides whether to issue a PIE? How do you contest the issuance of a PIE? What information do you present to contest the proposed issuance of a PIE? What procedures apply if you contest the issuance of a PIE? Who bears the burden of proof in a PIE proceeding?

What matters does the Director decide concerning a proposed PIE? What factors may the Director consider?

What is the scope of a PIE? How long does a PIE stay in effect?

Can you settle a PIE proceeding?

When does the Director make a PIE decision?

How does the Department notify service agents of its decision?

How does the Department notify employers and the public about a PIE? Must a service agent notify its clients when the Department issues a PIE? May the Federal courts review PIE decisions?

May a service agent ask to have a PIE reduced or terminated?

What does the issuance of a PIE mean to transportation employers?

What is the role of the DOT Inspector General's office?

How are notices sent to service agents?

43 43

44 44 44 44 44 44 45 45 45 45 46 46 46 46 47 47

47 47

47 48 48 48 48 49

49 49 49 49 49 50 50 50 50

51 51 51 51 51 52

52 52 52 52 52 52 52 53 53 53 53 54 54 54 54 54 54 54 54 54 55 55

General Issue Update Question 1 Are employers and their service agents in the Department of Transportation (DOT) drug and alcohol testing program required to obtain employee written authorizations in order to disclose drug and alcohol testing information?

ANSWER: In the DOT drug and alcohol testing program, employers and service agents are not required to obtain written employee authorization to disclose drug and alcohol testing information where disclosing the information is required by 49 CFR Part 40 and other DOT Agency & U.S. Coast Guard (USCG) drug and alcohol testing regulations. 49 CFR Part 40 and DOT Agency & USCG regulations provide for confidentiality of individual test-related information in a variety of other circumstances.

2

Even if drug and alcohol testing information is viewed as protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) rules, it is not necessary to obtain employee written authorization where DOT requires the use or disclosure of otherwise protected health information under 49 CFR Part 40 or the other DOT Agency & USCG drug and alcohol testing regulations.

Unless otherwise stipulated by 49 CFR Part 40 or DOT Agency & USCG regulations, use or disclosure of the DOT drug and alcohol testing information without a consent or authorization from the employee is required by the Omnibus Transportation Employees Testing Act of 1991, 49 CFR Part 40, and DOT Agency & USCG drug and alcohol testing regulations.

Consequently, an employer or service agent in the DOT program may disclose the information without the written authorization from the employee under many circumstances. For example: • Employers need no written authorizations from employees to conduct DOT tests.

• Collectors need no written authorizations from employees to perform DOT urine collections, to distribute Federal Drug Testing Custody and Control Forms, or to send specimens to laboratories.

• Screening Test Technicians and Breath Alcohol Technicians need no written authorizations from employees to perform DOT saliva or breath alcohol tests (as appropriate), or to report alcohol test results to employers. — Laboratories need no written authorizations from employees to perform DOT drug and validity testing, or to report test results to Medical Review Officers (MROs).

• MROs need no written authorizations from employees to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals (SAPs) and evaluating physicians, or to report other medical information (see §40.327).

• SAPs need no written authorizations from employees to conduct SAP evaluations, to confer with employers, to confer with MROs, to confer with appropriate education and treatment providers, or to provide SAP reports to employers.

• Consortia/Third Party Administrators need no written authorizations from employees to bill employers for service agent functions that they perform for employers or contract on behalf of employers.

• Evaluating physicians need no written authorizations from employees to report evaluation information and results to MROs or to employers, as appropriate.

• Employers and service agents need no written authorizations from employees to release information to requesting Federal, state, or local safety agencies with regulatory authority over them or employees.

Pre-Employment Alcohol Testing Question 1Can an employer wishing to conduct pre-employment alcohol testing, do so?

ANSWER: A DOT-regulated employer (except under USCG rules) wishing to conduct pre-employment alcohol testing under DOT authority may do so if certain conditions are met.

The testing must be accomplished for all applicants (i.e., the employer cannot select for testing some applicants and not others) and the testing must be conducted as a post-offer requirement (i.e., the employer needs to inform the applicant that he or she has the job if he or she passes a DOT alcohol test).

In addition, the testing and its consequences must comply with requirements of Part 40.

Subpart A – Administrative Provisions §40.1

Who does this regulation cover?

(a) This part tells all parties who conduct drug and alcohol tests required by Department of Transportation (DOT) agency regulations how to conduct these tests and what procedures to use. [§40.1(a)] (b) This part concerns the activities of transportation employers, safety-sensitive transportation employees (including selfemployed individuals, contractors and volunteers as covered by DOT agency regulations), and service agents. [§40.1(b)] (c) Nothing in this part is intended to supersede or conflict with the implementation of the Federal Railroad Administration's post-accident testing program (see 49 CFR 219.200). [§40.1(c)]

§40.3

What do the terms used in this part mean?

In this part, the terms listed in this section have the following meanings: Adulterated specimen. A specimen that has been altered, as evidenced by test results showing either a substance that is not a normal constituent for that type of specimen or showing an abnormal concentration of an endogenous substance.

Subpart A – Administrative Provisions

Designated employer representative (DER). An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs. Dilute specimen. A urine specimen with creatinine and specific gravity values that are lower than expected for human urine.

DOT, The Department, DOT agency. These terms encompass all DOT agencies, including, but not limited to, the United States Coast Guard (USCG), the Federal Aviation Administration (FAA), the Federal Railroad Administration (FRA), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Transit Administration (FTA), the National Highway Traffic Safety Administration (NHTSA), the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the Office of the Secretary (OST). These terms include any designee of a DOT agency.

Drugs. The drugs for which tests are required under this part and DOT agency regulations are marijuana, cocaine, amphetamines, phencyclidine (PCP), and opiates.

Employee. Any person who is designated in a DOT agency regulation as subject to drug testing and/or alcohol testing. The term includes individuals currently performing safety-sensitive functions designated in DOT agency regulations and applicants for employment subject to pre-employment testing. For purposes of drug testing under this part, the term employee has the same meaning as the term “donor” as found on CCF and related guidance materials produced by the Department of Health and Human Services.

Employer. A person or entity employing one or more employees (including an individual who is self-employed) subject to DOT agency regulations requiring compliance with this part. The term includes an employer's officers, representatives, and management personnel.

Service agents are not employers for the purposes of this part.

Error Correction Training. Training provided to BATs, collectors, and screening test technicians (STTs) following an error that resulted in the cancellation of a drug or alcohol test. Error correction training must be provided in person or by a means that provides real-time observation and interaction between the instructor and trainee.

Evidential Breath Testing Device (EBT). A device approved by NHTSA for the evidential testing of breath at the .02 and .04 alcohol concentrations, placed on NHTSA's Conforming Products List (CPL) for “Evidential Breath Measurement Devices” and identified on the CPL as conforming with the model specifications available from NHTSA's Traffic Safety Program.

HHS. The Department of Health and Human Services or any designee of the Secretary, Department of Health and Human Services.

Initial drug test (also known as a ”Screening drug test”). The test used to differentiate a negative specimen from one that requires further testing for drugs or drug metabolites.

Initial specimen validity test. The first test used to determine if a urine specimen is adulterated, diluted, substituted, or invalid.

Invalid drug test. The result reported by an HHS-certified laboratory in accordance with the criteria established by HHS Mandatory Guidelines when a positive, negative, adulterated, or substituted result cannot be established for a specific drug or specimen validity test.

Invalid result. The result reported by a laboratory for a urine specimen that contains an unidentified adulterant, contains an unidentified interfering substance, has an abnormal physical characteristic, or has an endogenous substance at an abnormal concentration that prevents the laboratory from completing testing or obtaining a valid drug test result.

Laboratory. Any U.S. laboratory certified by HHS under the National Laboratory Certification Program as meeting the minimum standards of Subpart C of the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs; or, in the case of foreign laboratories, a laboratory approved for participation by DOT under this part.

Limit of Detection (LOD). The lowest concentration at which a measurand can be identified, but (for quantitative assays) the concentration cannot be accurately calculated.

Limit of Quantitation. For quantitative assays, the lowest concentration at which the identity and concentration of the measurand can be accurately established.

Medical Review Officer (MRO). A person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer's drug testing program and evaluating medical explanations for certain drug test results.

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40 Procedures for Transportation Workplace Testing Programs

Affiliate. Persons are affiliates of one another if, directly or indirectly, one controls or has the power to control the other, or a third party controls or has the power to control both. Indicators of control include, but are not limited to: interlocking management or ownership; shared interest among family members; shared facilities or equipment; or common use of employees. Following the issuance of a public interest exclusion, an organization having the same or similar management, ownership, or principal employees as the service agent concerning whom a public interest exclusion is in effect is regarded as an affiliate. This definition is used in connection with the public interest exclusion procedures of Subpart R of this part.

Air blank. In evidential breath testing devices (EBTs) using gas chromatography technology, a reading of the device's internal standard. In all other EBTs, a reading of ambient air containing no alcohol.

Alcohol. The intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols, including methyl or isopropyl alcohol.

Alcohol concentration. The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by a breath test under this part.

Alcohol confirmation test. A subsequent test using an EBT, following a screening test with a result of 0.02 or greater, that provides quantitative data about the alcohol concentration.

Alcohol screening device (ASD). A breath or saliva device, other than an EBT, that is approved by the National Highway Traffic Safety Administration (NHTSA) and placed on a conforming products list (CPL) for such devices.

Alcohol screening test. An analytic procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath or saliva specimen.

Alcohol testing site. A place selected by the employer where employees present themselves for the purpose of providing breath or saliva for an alcohol test.

Alcohol use. The drinking or swallowing of any beverage, liquid mixture or preparation (including any medication), containing alcohol.

Aliquot. A fractional part of a specimen used for testing. It is taken as a sample representing the whole specimen.

Blind specimen or blind performance test specimen. A specimen submitted to a laboratory for quality control testing purposes, with a fictitious identifier, so that the laboratory cannot distinguish it from an employee specimen.

Breath Alcohol Technician (BAT). A person who instructs and assists employees in the alcohol testing process and operates an evidential breath testing device.

Cancelled test. A drug or alcohol test that has a problem identified that cannot be or has not been corrected, or which this part otherwise requires to be cancelled. A cancelled test is neither a positive nor a negative test.

Chain of custody. The procedure used to document the handling of the urine specimen from the time the employee gives the specimen to the collector until the specimen is destroyed. This procedure uses the Federal Drug Testing Custody and Control Form (CCF).

Collection container. A container into which the employee urinates to provide the specimen for a drug test.

Collection site. A place selected by the employer where employees present themselves for the purpose of providing a urine specimen for a drug test.

Collector. A person who instructs and assists employees at a collection site, who receives and makes an initial inspection of the specimen provided by those employees, and who initiates and completes the CCF. Confirmatory drug test. A second analytical procedure performed on a different aliquot of the original specimen to identify and quantify the presence of a specific drug or drug metabolite.

Confirmatory validity test. A second test performed on a different aliquot of the original urine specimen to further support a validity test result.

Confirmed drug test. A confirmation test result received by an MRO from a laboratory.

Consortium/Third-party administrator (C/TPA). A service agent that provides or coordinates the provision of a variety of drug and alcohol testing services to employers. C/TPAs typically perform administrative tasks concerning the operation of the employers' drug and alcohol testing programs. This term includes, but is not limited to, groups of employers who join together to administer, as a single entity, the DOT drug and alcohol testing programs of its members. C/ TPAs are not “employers” for purposes of this part.

Continuing education. Training for substance abuse professionals (SAPs) who have completed qualification training and are performing SAP functions, designed to keep SAPs current on changes and developments in the DOT drug and alcohol testing program.

§40.3 (c)

§40.5

Part 40 - Procedures for Transportation Workplace Drug and Alcohol Testing Programs Negative result. The result reported by an HHS-certified laboratory to an MRO when a specimen contains no drug or the concentration of the drug is less than the cutoff concentration for the drug or drug class and the specimen is a valid specimen.

Non-negative specimen. A urine specimen that is reported as adulterated, substituted, positive (for drug(s) or drug metabolite(s)), and/or invalid.

Office of Drug and Alcohol Policy and Compliance (ODAPC).

The office in the Office of the Secretary, DOT, that is responsible for coordinating drug and alcohol testing program matters within the Department and providing information concerning the implementation of this part.

Oxidizing adulterant. A substance that acts alone or in combination with other substances to oxidize drugs or drug metabolites to prevent the detection of the drug or drug metabolites, or affects the reagents in either the initial or confirmatory drug test.

Primary specimen. In drug testing, the urine specimen bottle that is opened and tested by a first laboratory to determine whether the employee has a drug or drug metabolite in his or her system; and for the purpose of validity testing. The primary specimen is distinguished from the split specimen, defined in this section.

Positive result. The result reported by an HHS-certified laboratory when a specimen contains a drug or drug metabolite equal to or greater than the cutoff concentrations.

Qualification Training. The training required in order for a collector, BAT, MRO, SAP, or STT to be qualified to perform their functions in the DOT drug and alcohol testing program. Qualification training may be provided by any appropriate means (e.g., classroom instruction, internet application, CD-ROM, video).

Reconfirmed. The result reported for a split specimen when the second laboratory is able to corroborate the original result reported for the primary specimen.

Refresher Training. The training required periodically for qualified collectors, BATs, and STTs to review basic requirements and provide instruction concerning changes in technology (e.g., new testing methods that may be authorized) and amendments, interpretations, guidance, and issues concerning this part and DOT agency drug and alcohol testing regulations. Refresher training can be provided by any appropriate means (e.g., classroom instruction, internet application, CD-ROM, video).

Rejected for testing. The result reported by an HHS-certified laboratory when no tests are performed for a specimen because of a fatal flaw or a correctable flaw that is not corrected.

Screening drug test. See Initial drug test definition above.

Screening Test Technician (STT). A person who instructs and assists employees in the alcohol testing process and operates an ASD. Secretary. The Secretary of Transportation or the Secretary's designee.

Service agent. Any person or entity, other than an employee of the employer, who provides services specified under this part to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet the qualifications set forth in applicable sections of this part.

Service agents are not employers for purposes of this part.

Shipping container. A container that is used for transporting and protecting urine specimen bottles and associated documents from the collection site to the laboratory.

Specimen bottle. The bottle that, after being sealed and labeled according to the procedures in this part, is used to hold the urine specimen during transportation to the laboratory.

Split specimen. In drug testing, a part of the urine specimen that is sent to a first laboratory and retained unopened, and which is transported to a second laboratory in the event that the employee requests that it be tested following a verified positive test of the primary specimen or a verified adulterated or substituted test result.

Split specimen collection. A collection in which the urine collected is divided into two separate specimen bottles, the primary specimen (Bottle A) and the split specimen (Bottle B).

Stand-down. The practice of temporarily removing an employee from the performance of safety-sensitive functions based only on a report from a laboratory to the MRO of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test, before the MRO has completed verification of the test result.

Substance Abuse Professional (SAP). A person who evaluates employees who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare.

4

Substituted specimen. A urine specimen with creatinine and specific gravity values that are so diminished or so divergent that they are not consistent with normal human urine.

Verified test. A drug test result or validity testing result from an HHScertified laboratory that has undergone review and final determination by the MRO. [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 71 FR 49384, Aug. 23, 2006; 71 FR 55347, Sept. 22, 2006; 73 FR 35969, June 25, 2008; 75 FR 49861, Aug. 16, 2010; 76 FR 59577, Sept. 27, 2011]

§40.3 DOT Interpretations Question 1 Can the employer himself or herself act as a Designated Employer Representative (DER), as opposed to appointing another employee to play this role?

ANSWER: The employer (e.g., the owner of a small business) may act personally as the DER. The employer may also appoint an employee or employees to play this role.

The DER must exercise his or her authority to remove an employee from safety sensitive functions either directly or by causing the employee to be removed from performing these functions (e.g., by having the employee's supervisor effect the actual removal).

The employer may not delegate the DER role to a service agent.

Only the employer or an actual employee of the employer may perform this function.

The Department will not authorize a "DER-for-hire" concept (e.g., a person under contract by several companies to serve as their DER), either.

§40.3 DOT Interpretations (also applies to Section 40.15(d)) Question 1 If a C/TPA is hired as an "independent safety consultant" that executes all aspects of the employer's safety and drug and alcohol testing programs, can the C/TPA act as a DER? ANSWER: Service agents are prohibited from acting as DERs under any circumstances.

The fact that an organization that is called an "independent safety consultant" acts as a consultant to an employer for purposes of executing a drug and alcohol testing or safety program does not make it any less a service agent. It is still prohibited from acting as a DER.

§40.5

Who issues authoritative interpretations of this regulation?

ODAPC and the DOT Office of General Counsel (OGC) provide written interpretations of the provisions of this part. These written DOT interpretations are the only official and authoritative interpretations concerning the provisions of this part. DOT agencies may incorporate ODAPC/OGC interpretations in written guidance they issue concerning drug and alcohol testing matters. Only Part 40 interpretations issued after August 1, 2001, are considered valid.[§40.5]

§40.7

How can you get an exemption from a requirement in this regulation?

(a) If you want an exemption from any provision of this part, you must request it in writing from the Office of the Secretary of Transportation, under the provisions and standards of 49 CFR part 5.

You must send requests for an exemption to the following address: Department of Transportation, Deputy Assistant General Counsel for Regulation and Enforcement, 1200 New Jersey Avenue, SE., Washington, DC 20590.[§40.7(a)] (b) Under the standards of 49 CFR part 5, we will grant the request only if the request documents special or exceptional circumstances, not likely to be generally applicable and not contemplated in connection with the rulemaking that established this part, that make your compliance with a specific provision of this part impracticable.[§40.7(b)] (c) If we grant you an exemption, you must agree to take steps we specify to comply with the intent of the provision from which an exemption is granted.[§40.7(c)] (d) We will issue written responses to all exemption requests.[§40.7(d)]

Subpart B – Employer Responsibilities §40.11

What are the general responsibilities of employers under this regulation?

(a) As an employer, you are responsible for meeting all applicable requirements and procedures of this part.[§40.11(a)] (b) You are responsible for all actions of your officials, representatives, and agents (including service agents) in carrying out the requirements of the DOT agency regulations.[§40.11(b)]

Subpart B – Employer Responsibilities (c) All agreements and arrangements, written or unwritten, between and among employers and service agents concerning the implementation of DOT drug and alcohol testing requirements are deemed, as a matter of law, to require compliance with all applicable provisions of this part and DOT agency drug and alcohol testing regulations. Compliance with these provisions is a material term of all such agreements and arrangements.[§40.11(c)]

§40.13

How do DOT drug and alcohol tests relate to non-DOT tests?

§40.14

What collection information must employers provide to collectors?

As an employer, or an employer's service agent — for example a C/ TPA, you must ensure the collector has the following information when conducting a urine specimen collection for you:[§40.14] (a) Full name of the employee being tested.[§40.14(a)] (b) Employee SSN or ID number.[§40.14(b)] (c) Laboratory name and address (can be pre-printed on the CCF). [§40.14(c)]

(d) Employer name, address, phone number, and fax number (can be pre-printed on the CCF at Step 1-A).[§40.14(d)] (e) DER information required at §40.35 of this part.[§40.14(e)] (f) MRO name, address, phone number, and fax number (can be preprinted on the CCF at Step 1-B).[§40.14(f)] (g) The DOT Agency which regulates the employee's safety-sensitive duties (the checkmark can pre-printed in the appropriate box on the CCF at Step 1-D).[§40.14(g)] (h) Test reason, as appropriate: Pre-employment; Random; Reasonable Suspicion/Reasonable Cause; Post-Accident; Return-toDuty; and Follow-up.[§40.14(h)] (i) Whether the test is to be observed or not (see §40.67 of this part).[§40.14(i)] (j) (Optional) C/TPA name, address, phone, and fax number (can be pre-printed on the CCF).[§40.14(j)] [75 FR 59107, Sept. 27, 2010]

§40.15

May an employer use a service agent to meet DOT drug and alcohol testing requirements?

(a) As an employer, you may use a service agent to perform the tasks needed to comply with this part and DOT agency drug and alcohol testing regulations, consistent with the requirements of subpart Q and other applicable provisions of this part.[§40.15(a)] (b) As an employer, you are responsible for ensuring that the service agents you use meet the qualifications set forth in this part (e.g., §40.121 for MROs). You may require service agents to show you

documentation that they meet the requirements of this part (e.g., documentation of MRO qualifications required by §40.121(e)).[§40.15(b)] (c) You remain responsible for compliance with all applicable requirements of this part and other DOT drug and alcohol testing regulations, even when you use a service agent. If you violate this part or other DOT drug and alcohol testing regulations because a service agent has not provided services as our rules require, a DOT agency can subject you to sanctions. Your good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency in which your alleged noncompliance with this part or a DOT agency drug and alcohol regulation may have resulted from the service agent's conduct.[§40.15(c)] (d) As an employer, you must not permit a service agent to act as your DER.[§40.15(d)]

§40.15 DOT Interpretations Question 1 If a C/TPA is hired as an “independent safety consultant” that executes all aspects of the employer's safety and drug and alcohol testing programs, can the C/TPA act as a DER? ANSWER: Service agents are prohibited from acting as DERs under any circumstances.

The fact that an organization that is called an “independent safety consultant” acts as a consultant to an employer for purposes of executing a drug and alcohol testing or safety program does not make it any less a service agent. It is still prohibited from acting as a DER.

§40.17

Is an employer responsible for obtaining information from its service agents?

Yes, as an employer, you are responsible for obtaining information required by this part from your service agents. This is true whether or not you choose to use a C/TPA as an intermediary in transmitting information to you. For example, suppose an applicant for a safetysensitive job takes a pre-employment drug test, but there is a significant delay in your receipt of the test result from an MRO or C/TPA. You must not assume that “no news is good news” and permit the applicant to perform safety-sensitive duties before receiving the result. This is a violation of the Department's regulations.[§40.17]

§40.19

[Reserved]

§40.21

May an employer stand down an employee before the MRO has completed the verification process?

(a) As an employer, you are prohibited from standing employees down, except consistent with a waiver a DOT agency grants under this section.[§40.21(a)] (b) You may make a request to the concerned DOT agency for a waiver from the prohibition of paragraph (a) of this section. Such a waiver, if granted, permits you to stand an employee down following the MRO's receipt of a laboratory report of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test pertaining to the employee.[§40.21(b)] (1) For this purpose, the concerned DOT agency is the one whose drug and alcohol testing rules apply to the majority of the covered employees in your organization. The concerned DOT agency uses its applicable procedures for considering requests for waivers.[§40.21(b)(1)] (2) Before taking action on a waiver request, the concerned DOT agency coordinates with other DOT agencies that regulate the employer's other covered employees.[§40.21(b)(2)] (3) The concerned DOT agency provides a written response to each employer that petitions for a waiver, setting forth the reasons for the agency's decision on the waiver request. [§40.21(b)(3)]

(c) Your request for a waiver must include, as a minimum, the following elements:[§40.21(c)] (1) Information about your organization:[§40.21(c)(1)] (i) Your determination that standing employees down is necessary for safety in your organization and a statement of your basis for it, including any data on safety problems or incidents that could have been prevented if a stand-down procedure had been in place;[§40.21(c)(1)(i)] (ii) Data showing the number of confirmed laboratory positive, adulterated, and substituted test results for your employees over the two calendar years preceding your waiver request, and the number and percentage of those test results that were verified positive, adulterated, or substituted by the MRO;[§40.21(c)(1)(ii)]

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40 Procedures for Transportation Workplace Testing Programs

(a) DOT tests must be completely separate from non-DOT tests in all respects.[§40.13(a)] (b) DOT tests must take priority and must be conducted and completed before a non-DOT test is begun. For example, you must discard any excess urine left over from a DOT test and collect a separate void for the subsequent non-DOT test.[§40.13(b)] (c) Except as provided in paragraph (d) of this section, you must not perform any tests on DOT urine or breath specimens other than those specifically authorized by this part or DOT agency regulations. For example, you may not test a DOT urine specimen for additional drugs, and a laboratory is prohibited from making a DOT urine specimen available for a DNA test or other types of specimen identity testing.[§40.13(c)] (d) The single exception to paragraph (c) of this section is when a DOT drug test collection is conducted as part of a physical examination required by DOT agency regulations. It is permissible to conduct required medical tests related to this physical examination (e.g., for glucose) on any urine remaining in the collection container after the drug test urine specimens have been sealed into the specimen bottles.[§40.13(d)] (e) No one is permitted to change or disregard the results of DOT tests based on the results of non-DOT tests. For example, as an employer you must not disregard a verified positive DOT drug test result because the employee presents a negative test result from a blood or urine specimen collected by the employee's physician or a DNA test result purporting to question the identity of the DOT specimen.[§40.13(e)] (f) As an employer, you must not use the CCF or the ATF in your nonDOT drug and alcohol testing programs. This prohibition includes the use of the DOT forms with references to DOT programs and agencies crossed out. You also must always use the CCF and ATF for all your DOT-mandated drug and alcohol tests.[§40.13(f)]

§40.21 (c)

§40.23

Part 40 - Procedures for Transportation Workplace Drug and Alcohol Testing Programs

(iii) Information about the work situation of the employees subject to stand-down, including a description of the size and organization of the unit(s) in which the employees work, the process through which employees will be informed of the stand-down, whether there is an in-house MRO, and whether your organization has a medical disqualification or stand-down policy for employees in situations other than drug and alcohol testing; and[§40.21(c)(1)(iii)] (iv) A statement of which DOT agencies regulate your employees.[§40.21(c)(1)(iv)] (2) Your proposed written company policy concerning standdown, which must include the following elements:[§40.21(c)(2)] (i) Your assurance that you will distribute copies of your written policy to all employees that it covers;[§40.21(c)(2)(i)] (ii) Your means of ensuring that no information about the confirmed positive, adulterated, or substituted test result or the reason for the employee's temporary removal from performance of safety-sensitive functions becomes available, directly or indirectly, to anyone in your organization (or subsequently to another employer) other than the employee, the MRO and the DER;[§40.21(c)(2)(ii)] (iii) Your means of ensuring that all covered employees in a particular job category in your organization are treated the same way with respect to stand-down;[§40.21(c)(2)(iii)] (iv) Your means of ensuring that a covered employee will be subject to stand-down only with respect to the actual performance of safety-sensitive duties;[§40.21(c)(2)(iv)] (v) Your means of ensuring that you will not take any action adversely affecting the employee's pay and benefits pending the completion of the MRO's verification process. This includes continuing to pay the employee during the period of the stand-down in the same way you would have paid him or her had he or she not been stood down;[§40.21(c)(2)(v)] (vi) Your means of ensuring that the verification process will commence no later than the time an employee is temporarily removed from the performance of safety-sensitive functions and that the period of stand-down for any employee will not exceed five days, unless you are informed in writing by the MRO that a longer period is needed to complete the verification process; and[§40.21(c)(2)(vi)] (vii) Your means of ensuring that, in the event that the MRO verifies the test negative or cancels it — [§40.21(c)(2)(vii)] [A] You return the employee immediately to the performance of safety-sensitive duties;[§40.21(c)(2)(vii)[A]] [B] The employee suffers no adverse personnel or financial consequences as a result; and[§40.21(c)(2)(vii)[B]] [C] You maintain no individually identifiable record that the employee had a confirmed laboratory positive, adulterated, or substituted test result (i.e., you maintain a record of the test only as a negative or cancelled test).[§40.21(c)(2)(vii)[C]] (d) The Administrator of the concerned DOT agency, or his or her designee, may grant a waiver request only if he or she determines that, in the context of your organization, there is a high probability that the procedures you propose will effectively enhance safety and protect the interests of employees in fairness and confidentiality.[§40.21(d)] (1) The Administrator, or his or her designee, may impose any conditions he or she deems appropriate on the grant of a waiver.[§40.21(d)(1)] (2) The Administrator, or his or her designee, may immediately suspend or revoke the waiver if he or she determines that you have failed to protect effectively the interests of employees in fairness and confidentiality, that you have failed to comply with the requirements of this section, or that you have failed to comply with any other conditions the DOT agency has attached to the waiver.[§40.21(d)(2)] (e) You must not stand employees down in the absence of a waiver, or inconsistent with the terms of your waiver. If you do, you are in violation of this part and DOT agency drug testing regulations, and you are subject to enforcement action by the DOT agency just as you are for other violations of this part and DOT agency rules.[§40.21(e)]

§40.21 DOT Interpretations Question 1 Can union hiring halls, driver-leasing companies, and other entities have a stand-down policy, or is the ability to obtain a waiver for this purpose limited to actual employers?

ANSWER: The rule permits "employers" to apply for a stand-down waiver. It does not permit any other entity to do so.

6

Only entities that are viewed as "employers" for purposes of DOT agency drug and alcohol testing regulations can apply for standdown waivers. If a DOT agency rule provides that hiring halls, leasing agencies, etc. are treated as employers, such organizations could apply for a stand-down waiver.

Question 2 Does an employer need a stand-down waiver in order to implement a policy that requires employees to cease performing safety-sensitive functions following a reasonable suspicion or postaccident test?

ANSWER: §40.21 requires an employer to obtain a waiver to do one very specific thing: remove employees from performance of safetysensitive functions on the basis of the report of confirmed laboratory test results that have not yet been verified by the MRO. An employer does not need a §40.21 waiver to take other actions involving the performance of safety-sensitive functions.

For example, an employer could (if it is not prohibited by DOT agency regulations and it is consistent with applicable labor-management agreements) have a company policy saying that, on the basis of an event (e.g., the occurrence of an accident that requires a DOT post-accident test, the finding of reasonable suspicion that leads to a DOT reasonable suspicion test), the employee would immediately stop performing safety-sensitive functions. Such a policy, which is not triggered by the MRO's receipt of a confirmed laboratory test result, would not require a §40.21 waiver.

It would not be appropriate for an employer to remove employees from performance of safety-sensitive functions pending the result of a random or follow-up test, since there is no triggering event to which the action could rationally be tied.

Question 3 If an employee fails to provide a sufficient amount of urine during an observed collection, can an employer remove the employee from performing safety-sensitive functions pending receipt of the verified result from the Medical Review Officer (MRO)?

ANSWER: The Department believes an employee's failing to provide a sufficient amount of urine during a directly observed collection is very similar to a laboratory's reporting a positive, adulterated, or substituted test result to MRO. While we do not believe it is appropriate for an employer to remove the employee from safety-sensitive duties until receiving the MRO's verified result, we think stand-down waiver provisions could be relevant.

Therefore, employers can apply for a stand-down waiver that would permit the employee to be removed from safety-sensitive duties when he or she does not provide an adequate amount of urine during an observed collection.

The waiver request would need to meet all criteria outlined at 40.21 and should reference the fact that it is for standing an employee down who fails to provide an adequate amount of urine during an observed collection.

The 40.21 waiver request for laboratory positive, adulterated, and substituted results will continue to be evaluated separately.

§40.23

What actions do employers take after receiving verified test results?

(a) As an employer who receives a verified positive drug test result, you must immediately remove the employee involved from performing safety-sensitive functions. You must take this action upon receiving the initial report of the verified positive test result.

Do not wait to receive the written report or the result of a split specimen test.[§40.23(a)] (b) As an employer who receives a verified adulterated or substituted drug test result, you must consider this a refusal to test and immediately remove the employee involved from performing safety-sensitive functions. You must take this action on receiving the initial report of the verified adulterated or substituted test result. Do not wait to receive the written report or the result of a split specimen test.[§40.23(b)] (c) As an employer who receives an alcohol test result of 0.04 or higher, you must immediately remove the employee involved from performing safety-sensitive functions. If you receive an alcohol test result of 0.02-0.039, you must temporarily remove the employee involved from performing safety-sensitive functions, as provided in applicable DOT agency regulations. Do not wait to receive the written report of the result of the test.[§40.23(c)] (d) As an employer, when an employee has a verified positive, adulterated, or substituted test result, or has otherwise violated a DOT agency drug and alcohol regulation, you must not return the employee to the performance of safety-sensitive functions until or unless the employee successfully completes the return-to-duty process of Subpart O of this part.[§40.23(d)]

Cargo, Securing

Index A

Battery Installation 393.30 335 Bills Bills of Lading 373.101 115 Expense Bills 373.103 115 Low Value Packages 373.105 115 Boulders, Securing 393.136 365 Brake Adjusters, Automatic 393.53 342 Brakes Adjustment Indicator 393.53(c) 342 Antilock 393.55 342 Automatic Adjusters Air Brake Systems 393.53(b) 342 Hydraulic Brake Systems 393.53(a) 342 Breakaway 393.43 337 Emergency 393.43 337 Front Brake Lines, Protection 393.44 338 Lining 393.47 338 Operative 393.48 339 Parking Brake Systems 393.41 336 Performance 393.52 341 Required Systems 393.40 336 Reservoirs Required 393.50 340 Tubing and Hose 393.45 338 Connections 393.45(d) 338 Warning Signals and Gauges 393.51 340 Wheels, Required on All 393.42 337 Bridge Formula Weights Addendum 433 Brokers of Property Accounting 371.13 103 Applicability 371.1 103 Definitions 371.2 103 Duties and Obligations 371.10 103 Misrepresentation 371.7 103 Rebating and Compensation 371.9 103 Records Kept 371.3 103 Buses Aisle Seats Prohibited 393.91 355 Defrosting and Defogging Systems 393.79 353 Driveshaft Protection 393.89 355 Emergency Doors Inspection 396.3(a)(2) 387 Test Records 396.3(b)(4) 387 Emergency Equipment 393.95 356 Emergency Exits 393.62 343 Emergency Exits 393.62 Marking 393.62(e) 344 Window Requirements 393.62(d) 344 Financial Responsibility 387.31 265 Horn 393.81 353 Lighting Devices 393.11 327 Pushing 392.63 321 Rear-Vision Mirrors 393.80 353 Reflectors 393.11 327 Safe Operation 392.62 321 Seats, Seat Belt Assemblies, and Seat Belt Assembly Anchorages 393.93(a) 355 Speedometer 393.82 353 Standee Line or Bar 393.90 355 Towing 392.63 321 Windshield Wiping and Washing Systems 393.78 353

IX

IX

C

Subject Index

Section # Page #

B

Subject Index

Accidents Definition 390.5 281 Recordkeeping 390.15(b) 286 Adverse Driving Conditions 395.1(b) 367 Age of Driver 391.11(b)(1) 297 Alaska Hours of Service 395.1(h) 368 Restricted CDLs 383.3(e) 181 Alcohol Concentration 382.201 167 Consequences Alcohol-Related Conduct 382.505 177 Evaluation and Testing 382.503 176 Penalties 382.507 177 Safety-Sensitive Functions, Removal from 382.501 176 382.505 177 Disqualification from Driving 383.51(b) 189 391.15(c) 298 Driving Under the Influence Definition 383.5 184 Driver Disqualification 383.51(b) 189 391.15(c)(2)(i) 298 Evaluation 382.605 178 Following Accident 382.209 167 Misuse 382.601 177 On-Duty Use 382.205 167 Pre-Duty Use 382.207 167 Prohibition 392.5 317 Referral 382.605 178 Supervisor Training 382.603 177 Testing Confirmation Test First Steps 40.251 40 Post-Test Procedures 40.255 41 Procedures 40.253 40 Devices 40.229 38 40.231 38 Devices 40.229, 40.231 Proper Use and Care 40.233 38 Follow-Up 382.311 173 Management Information System (MIS) Data Collection Form 40.26, App H to Part 40 59 - 61 Post-Accident 382.303 168 Pre-Employment 382.301 167 Problems Insufficient Breath 40.265 41 Insufficient Saliva 40.263 41 Refusal to Take 40.261 41 Procedures 382.105 164 Random 382.305 170 Reasonable Suspicion 382.307 172 Records Access 382.405 175 Confidentiality 40.321 47 40.323 47 Employer Notifications 382.411 176 Inquiries for 382.413 176 Releasing 40.329 48 40.331 48 Retention 40.333 49 382.401 173 Refusal to Submit 382.211 167 Results, Reporting 382.403 174 Return-to-Duty 382.309 173 Screening Test Breath Tube ASD 40.245 39 EBT or Non-Evidential Breath ASD 40.243 39 First Steps 40.241 38 Post-Test Procedures 40.247 40 Saliva ASD 40.245 39 Sites 40.221 37 Sites 40.221 Security 40.223 37 Starting Date 382.115 166 Treatment 382.605 178 Applications Certificate of Registration to Operate in U.S. Municipalities on the U.S.-Mexico Border Appeals 368.8 95 Applying 368.3 95 Carrying Certificate in Vehicle 368.7 95 Certificates 368.1 95 Change in Applicant Information 368.4 95 Definitions 368.2 95 FMCSA Action on Application 368.6 95 Re-registration 368.5 95 Operating Authority Contacting Another Party 365.303 86 Definitions 365.403 87 FAX Filings 365.309 87 Form OP-1 365.105 85

Applications (continued) Operating Authority (continued) Replies to Motions 365.307 87 Rules 365.301 86 Serving Copies of Pleadings 365.305 86 Automatic Brake Adjusters 393.53 342

Cab and Body Components 393.203 366 Carbon Monoxide 392.66 321 Cargo, Inspection 392.9 318 Cargo, Securing Applicability 393.106(a) 358 Boulders 393.136 365 Concrete Pipe 393.124 363 Containers, Roll-on/Roll-off or Hook Lift 393.134 365

INDEX

443

Cargo, Securing Cargo, Securing (continued) Devices Performance Criteria 393.102 357 Standards 393.104 357 Front End Structures 393.114 359 Intermodal Containers 393.126 364 Load Loss 393.100(b) 356 Shifting 393.100(c) 356 Logs 393.116 359 Lumber, Dressed 393.118 360 Metal Coils 393.120 361 Paper Rolls 393.122 362 Placement and Restraint 393.106(c) 358 Tiedowns Adjusting 393.112 359 Manufacturing Standards 393.104(e) 357 Number 393.110 359 Use 393.104(f) 357 Vehicles Automobiles, Light Trucks, and Vans 393.128 364 Flattened or Crushed 393.132 365 Heavy Vehicles, Equipment, and Machinery 393.130 364 Types 393.100(a) 356 Certificates, Falsification 390.35 291 Claims Loss and Damage Acknowledgement 370.5 101 Applicability 370.1 101 Disposition 370.9 101 Filing 370.3 101 Investigation 370.7 101 Overcharge, Duplicate Payment, or Overcollection Acknowledgement 378.7 149 Applicability 378.1 149 Definitions 378.2 149 Disposition 378.8 149 378.9 150 Documentation 378.4 149 Filing 378.3 149 Investigation 378.5 149 Processing 378.3 149 Records 378.6 149 Class 7 Materials 397.101 400 397.103 401 Commercial Driver's License Application Procedures 383.71 State Procedures 383.73 196 Definition 383.5 184 Employer Responsibilities 383.37 189 Penalties 383.53 193 Required Skills 383.113 204 Restricted Licenses Drivers in Alaska 383.3(e) 181 Farm-Related Service Industries 383.3(f) 182 Pyrotechnic Industry 383.3(g) 182 Single License Requirement 383.21 187 State Compliance CDL Issuance and Information 384.204 212 CDLIS Information 384.205 212 Decertification 384.405 217 Definitions 384.105 211 Disqualification Notification 384.208 212 Requirement 384.231 215 Domicile Requirement 384.212 213 Driving While Under the Influence 384.203 211 Drug Offenses 384.217 213 Emergency Grants 384.407 217 Licensing Limitation 384.210 213 Notification 384.207 212 Masking Convictions 384.226 214 National Driver Register Information 384.220 213 Noncommercial Motor Vehicle Violations 384.224 214 Noncompliance Availability of Funds 384.403 217 Consequences 384.401 216 Offenses Drug 384.217 213 First 384.215 213 Second 384.216 213 Out-of-Service Regulations 384.221 213 Violations 384.222 214 Penalties for Drivers of CMVs 384.213 213 Railroad-Highway Grade Crossing Violation 384.223 214 Reciprocity 384.214 213 Record Checks 384.206 212 Background 384.233 216 Required Timing 384.232 216 Testing Program 384.201 211 Standards 384.202 211 Traffic Violations Notification of 384.209 212 Second 384.218 213 Third 384.219 213 Tamperproofing 383.155 209 Testing Commercial Motor Vehicle Groups 383.91 200 Endorsements 383.93 201 Double/Triple Trailers Endorsement 383.115 205 Hazardous Materials Endorsement 383.121 205

444

INDEX

Commercial Driver's License (continued) Testing (continued) Endorsements (continued) Passenger Endorsement 383.117 205 School Bus 383.123 205 Tank Vehicle Endorsement 383.119 205 Implied Consent to Alcohol Testing 383.72 196 Methods 383.133 206 Third Party Testing 383.75 199 Validity of CDL Issued by Decertified State 383.7 187 Commercial Motor Vehicles (see also Motor Vehicles, Inspection entry) Part 392 Carbon Monoxide 392.66 321 Definition 382.107 164 383.5 184 390.5 281 Driving Time, Maximum 395.3 374 395.5 375 Emergency Equipment 392.8 318 Emergency Signals Flame-Producing 392.24 320 392.25 321 Warning Signals 392.22 320 Equipment 392.7 318 Exits 392.64 321 Groups 383.91 200 Hazardous Conditions 392.14 320 Lighting Devices 393.11 327 Open Flame Heaters 392.67 322 Operating Authority 392.9a 319 Operating Rules 392.2 317 Other Purposes 390.33 291 Parking Brake System 393.41 336 Radar Detectors 392.71 322 Railroad Crossings Slowing Down 392.11 320 Stopping 392.10 319 Required Knowledge to Operate 383.111 203 Reservoirs 393.50 340 Seat Belts 392.16 320 Speed Limits 392.6 318 Unsafe 396.7 387 Notification Requirements Convictions 383.31 188 License Suspensions 383.33 188 Previous Employment 383.35 189 Commercial Zones 372.201-372.243, Appendix F to Subchapter B Definitions 372.239 112 Concrete Pipe, Securing 393.124 363 Controlled Substances Disqualification from Driving 383.51 189 391.15(c) 298 Driving Under the Influence, Driver Disqualification 383.51(b) 189 391.15(c)(2)(ii) 298 391.15(c)(2)(iii) 298 Misuse 382.601 177 Prohibition 392.4 317 Safety-Sensitive Functions, Removal from 382.501 176 382.505 177 Testing Consent or Release 40.27 8 Dilute Specimen 40.197 33 Follow-Up 382.311 173 Insufficient Urine 40.193 32 Insufficient Urine 40.193 Due to Long-Term Medical Condition 40.195 33 Laboratories 40.81 15 Blind Specimens 40.103 18 40.105 19 Cutoff Concentrations 40.87 16 Disclosing Information 40.111 19 Documentation 40.109 19 Drugs Tested for 40.85 16 Inspection 40.107 19 Relationship with MRO 40.101 18 40.125 20 Reporting 40.97 17 Specimen Criteria 40.93 16 40.95 17 40.96 17 Processing 40.83 15 Retention 40.99 18 Validity Testing 40.89 16 40.91 16 Management Information System Data 40.26 8 Positive 382.215 167 Post-Accident 382.303 168 Pre-Employment 382.301 167 Procedures 382.105 164 Random 382.305 170 Reasonable Suspicion 382.307 172 Records Access 382.405 175 Confidentiality 40.321 47 40.323 47 Inquiries for 382.413 176 Releasing 40.329 48 40.331 48 Retention 40.333 49 382.401 173 Refusal to Submit 382.211 167 Refusal to Take 40.191 31 Results, Reporting 382.403 174 Return-to-Duty 382.309 173 Starting Date 382.115 166 Substituting a Test Specimen 382.215 167 Urine Collection Collector 40.31 8 Specimen Check 40.65 13 Preparation 40.71 14 Process 40.73 15 Training Requirements 40.33 8 Directly Observed 40.67 13 Documentation 40.45 11 40.47 12 Location 40.41 10

Section # Page #

Financial Responsibility Controlled Substances (continued) Testing (continued) Urine Collection (continued) Materials 40.49 12 Monitored 40.69 14 Process 40.61 12 40.63 13 Protecting Security and Integrity 40.43 10 Sending to Lab 40.51 12 Use 382.213 167 Cooperative Agreements with States Acceptance 388.2 273 Assistance 388.5 273 Cancellation 388.3 273 Eligibility 388.1 273 Information, Exchange of 388.4 273 Joint Administrative Activities 388.7 273 Joint Investigation, Inspection, or Examination 388.6 273 Supplemental Agreements 388.8 273 Coupling Devices and Towing Methods Driveaway-Towaway Operations 393.71 347 Non-Driveaway-Towaway Operations 393.70 346

D

Section # Page #

E Emergency Equipment Fire Extinguishers 393.95(a) 356 Flame-Producing Devices 393.95(g) 356 Fusees 393.95(j) 356 Inspection 392.8 318 Liquid-Burning Flares 393.95(j) 356 Red Flags 393.95(k) 356 Spare Fuses 393.95(b) 356 Stopped Vehicles 393.95(f) 356 Use 392.8 318 Emergency Signals Flame-Producing 392.24 320 392.25 321 Warning Signals 392.22 320 Employment Application 391.21 299 Endorsement Descriptions 383.93(b) 201 Double/Triple Trailers 383.115 205 Hazardous Materials 383.121 205 Passenger 383.117 205 School Bus 383.123 205 Tank Vehicle 383.119 205 Testing Requirements 383.93(c) 201 Entry-Level Driver Training Requirements 380.503 156 Applicability 380.501 155 Definitions 380.502 156 Driver Responsibilities 380.507 156 Employer Responsibilities 380.509 156 Recordkeeping 380.511 156 Proof of Training 380.505 156 Training Certificate, Required Information 380.513 156 Exemptions 372.101-372.117 Definitions 372.107 107 Preemption of State Rules 381.600 162 Exhaust Systems 325.91 70 393.83 353 Exits Commercial Motor Vehicles 392.64 321 Emergency Exits Buses 393.62 343 Motor Vehicles Transporting Migrant Workers 398.5(f)(10) 407 Motor Vehicles Transporting Migrant Workers 398.5(f)(6) 407 Sleeper Berth 393.76(c) 351

IX

F IX

Farm Vehicle Drivers 391.2 297 391.67 315 Fees, Insurance and Registration Filing 360.3 83 Records Search, Review, Copying, Certification, and Related Services 360.1 83 Updating 360.5 84 Fifth Wheel Assemblies 393.70(b) 346 398.5(d) 407 Financial Responsibility Certificates of Insurance 387.301 267 387.311 269 Companies 387.315 270 Electronic Filing 387.323 271 Fiduciaries 387.319 270 Foreign Commerce 387.321 270 Forms and Procedures 387.313 269

INDEX

Subject Index

Definitions 390.5 281 Definitions 390.5 Applications Certificate of Registration to Operate in U.S. Municipalities on the U.S.-Mexico Border 368.2 95 Operating Authority 365.403 87 Brokers of Property 371.2 103 Claims 378.2 149 Commercial Driver's License Program, State Compliance 384.105(b) 211 Commercial Driver's License Standards 383.5 184 Commercial Zones 372.239 112 Drug and Alcohol Testing Programs 40.3 2 382.107 164 Entry-Level Driver Training Requirements 380.502 156 Exemptions 372.107 107 Freight Forwarders 387.401 271 Hazardous Materials Safety Permits 385.402 227 Hours of Service 395.2 372 Household Goods, Transportation of 375.103 121 Lease and Interchange of Vehicles 376.2 143 Longer Combination Vehicle (LCV) 380.105 153 Migrant Workers, Transporting 398.1 405 Motor Carriers Passengers 387.29 265 Property 387.5 262 Noise Emission Standards 325.5 65 Parts and Accessories Necessary for Safe Operation 393.5 323 Passenger Carrier Regulations 374.113 117 374.303 117 Preemption Procedures 397.201(c) 401 Rulemaking Procedures 389.3 275 Rules of Practice 386.2 245 Safety Fitness Procedures 385.3 219 Mexico-Domiciled Carriers 385.101 222 State Laws 355.5 79 Step, Handhold, and Deck Requirements 399.205 409 Transportation Workplace Drug and Alcohol Testing Programs 40.3 2 Defrosting and Defogging Systems 393.79 353 Disqualification of Drivers 383.51 189 383.52 193 391.15 298 Doctor's Examination (see also Physical Examination entry) 391.43 305 Documents Copies 390.31 290 Location 390.29 290 Double/Triple Trailers Endorsement 383.115 205 Driveaway-Towaway Operations Coupling Devices and Towing Methods 393.71 347 Emergency Equipment 393.95 356 Inspections 396.15 390 Lamps and Reflectors 393.17 333 Drivers Adverse Driving Conditions 395.1(b) 367 Age 391.11(b)(1) 297 Alcohol and Controlled Substances Use, Admit to Using (see also Alcohol and Controlled Substances en 382.121 166 Disqualification 383.51 189 383.52 193 391.15 298 Driver-Salesperson 395.1(c) 367 Driving Record Investigation and Inquiries 391.23 300 Violations 391.27 303 Emergency Equipment Inspection 392.8 318 Employment Application 391.21 299 Entry-Level Driver Training Requirements (see also Entry-Level Driver Training Requirements entry) 380.503 156 Exemptions Employed Prior to January 1, 1971 391.61 313 Farm Vehicles 391.2 297 391.67 315 Furnished by Other Motor Carriers 391.65 314 Intracity Zone 391.62 313 Multiple Employer 391.63 314 Private Motor Carrier of Passengers Business 391.69 315 Nonbusiness 391.68 315 Vision and Diabetes Waiver Study Programs 391.64 314 Hazardous Conditions 392.14 320

Drivers (continued) Hours of Service Part 395 367 - 386 Ill or Fatigued 392.3 317 Maximum Driving Time 395.3 374 395.5 375 Motor Vehicle Inspection 392.7 318 396.13 390 Oilfield Operations 395.1(d) 367 Operating Rules 392.2 317 Out of Service 395.13 380 Out of Service 395.13 Alcohol Use 392.5(c) 317 392.5(d) 317 392.5(e) 317 Property-Carrying Driver 395.1(o) 369 Qualifications Certificate of Physical Examination 391.43 305 Files 391.51 312 General 391.11 297 Medical Examination 391.43 305 391.45 309 Medical Examination 391.43, 391.45 Conflicts 391.47 310 Physical 391.41 Limbs, Loss or Impairment 391.49 310 Record of Duty Status 395.8 375 Responsibilities 391.13 298 Road Test 391.31 303 Certificate 391.31(f) 303 Equivalent 391.33 304 Testing Follow-Up 382.311 173 Post-Accident 382.303 168 Pre-Employment 382.301 167 Random 382.305 170 Reasonable Suspicion 382.307 172 Return-to-Duty 382.309 173 Vehicle Inspection Records 396.11 388 Violations, Notification of Convictions 383.31 188 Driveshaft Protection, Buses 393.89 355

445

Financial Responsibility Financial Responsibility (continued) Freight Forwarders Definitions 387.401 271 Electronic Filing 387.419 272 Fiduciaries 387.417 272 Forms and Procedures 387.413 272 Insurance and Surety Companies 387.409 271 Limits of Liability 387.405 271 Self-Insurer Qualifications 387.411 272 Surety Bonds and Certificates of Insurance 387.407 271 Motor Carriers Transporting Passengers Agent Designation 387.35 266 Definitions 387.29 265 Fiduciaries 387.37 266 Financial Responsibility Required 387.31 265 Forms 387.39 266 Minimum Levels of Financial Responsibility 387.33 266 State Authority 387.35 266 Motor Carriers Transporting Property Agent Designation 387.11 263 Definitions 387.5 262 Fiduciaries 387.13 264 Financial Responsibility Required 387.7 262 Forms 387.15 264 State Authority 387.11 263 Securities 387.301 267 Public Protection 387.303 268 Self-Insurer Qualifications 387.309 269 Surety Bonds 387.301 267 Surety Bonds 387.301 Companies 387.315 270 Electronic Filing 387.323 271 Fiduciaries 387.319 270 Foreign Commerce 387.321 270 Property Broker 387.307 268 Fire Extinguishers 393.95(a) 356 Flags, Requirements for 393.95(k) 356 Floors 393.84 354 Fuel Ignition, Prevention 392.50 321 Ignition, Prevention 392.50 Motor Vehicles Transporting Migrant Workers 398.4(l) 406 Liquefied Petroleum Gas Systems 393.69 346 Liquid Fuel Tanks 393.67 344 Motor Vehicle Containing Hazardous Materials 397.15 396 Reserve 392.51 321 Systems 393.65 344

G Glazing and Window Construction Pushout Windows Inspection 396.3(a)(2) 387 Test Records 396.3(b)(4) 387 Specified Openings 393.60 342 Window Obstructions 393.60(e) 342

H Hawaii Hours of Service 395.1(i) 368 Seat Belts 393.93(d) 355 Hazard Warning Signal Flashers 392.22(a) 320 Hazard Warning Signals 393.19 334 Hazardous Materials Attendance and Surveillance of Motor Vehicles 397.5 395 Compliance with Federal Motor Carrier Safety Regulations 397.2 395 Endorsement 383.121 205 Fires 397.11 396 Fueling 397.15 396 Highway Routing Designations, Preemption 397.69 397 Instructions and Documents 397.19 397 Non-Radioactive Dispute Resolution 397.75 399 Federal Standards 397.71 398 Motor Carrier Responsibility 397.67 397 Parking 397.7 396 Smoking 397.13 396 State and Local Laws, Ordinances, and Regulations 397.3 395 Tires 397.17 396 Hazardous Materials Safety Permits Applying for 385.405 228 Conditions Necessary for Issue 385.407 228 Definitions 385.402 227 Effective Dates 385.419 229 Motor Carriers Who Hold One 385.403 228 Number Availability 385.417 229 Operational Requirements 385.415 229 Revocation 385.421 229 Administrative Review 385.423 230 Safety Ratings 385.413 229 State Permits 385.411 228 Suspension 385.421 229 Administrative Review 385.423 230 Temporary Safety Permits 385.409 228

446

INDEX

Head Lamps (see also Head Lamps under Lamps entry) 393.24 334 Heaters Flame-Producing 392.67 322 Requirements 393.77 352 Types Not Permitted 398.5(g) 407 Horn 393.81 353 Hours of Service 100 Air-Mile Radius Driver 395.1(e)(1) 367 Adverse Driving Conditions 395.1(b) 367 Automatic On-Board Recording Devices 395.15 380 Definitions 395.2 372 Driver's Record of Duty Status 395.8 375 Drivers Declared Out of Service 395.13 380 Emergency Conditions 395.1(b)(2) 367 Maximum Driving Time Passenger-Carrying Vehicles 395.5 375 Property-Carrying Vehicles 395.3 374 Oilfield Operations 395.1(d) 367 Property-Carrying Driver 395.1(o) 369 Sleeper Berths 395.1(g) 367 Travel Time 395.1(j) 368 Utility Service Vehicles 395.1(n) 369 Household Goods, Transportation of Estimates 375.401 Non-Binding 375.405 Relinquishing Possession of COD Shipment Transported Under Non-Binding Estimate 375.407 126 Advertisements 375.207 122 Agents 375.205 122 Arbitration Program 375.211 123 Bill of Lading 375.505 128 Complaints 375.209 122 Definitions 375.103 121 Delays 375.605 129 Delivery Delays 375.605 129 Early 375.607 129 Maximum COD Amount 375.703 130 Release of Liability 375.701 130 Shipment Lost or Destroyed Partially 375.707 130 Totally 375.709 130 Timely Manner 375.601 129 Transporting on More Than One Vehicle 375.705 130 Estimates 375.401 Binding 375.403 125 Non-Binding 375.405 125 Freight or Expense Bill Collecting 375.807 130 Presenting 375.803 130 375.805 130 Information Provided to Prospective Individual Shipper 375.213 123 Inquiries 375.209 122 Inventory 375.503 127 Liability Considerations 375.201 122 375.203 122 Insurance Coverage 375.303 124 Release of Liability on Delivery Receipt 375.701 130 Order for Service 375.501 126 Penalties 375.901 131 Prospective Individual Shipper, Information Provided to 375.213 123 Service Options 375.301 124 Storing Household Goods in Transit 375.609 129 Tendering Shipment for Delivery 375.603 129 Timely Manner 375.601 129 Weight of Shipment Determining 375.507 128 375.509 128 Knowing Weight or Charges Before Tendering Delivery 375.521 129 Less Than 3,000 Pounds 375.511 128 Observing 375.513 128 375.515 128 Re-Weighing 375.517 129 Weight Tickets 375.519 129

I Imminent Hazard 386.72 255 Injunctions 386.71 255 Inspections Cargo, Cargo Securement Devices and Systems 392.9 318 Driveaway-Towaway Operations 396.15 390 Driver Inspections 396.13 390 Driver Vehicle Inspection Report 396.11 388 Emergency Equipment 392.8 318 Equipment 392.7 318 Inspection, Repair, and Maintenance Records 396.3 387 Laboratories 40.107 19 Motor Vehicles Transporting Migrant Workers 398.7 408 Motor Vehicles Transporting Migrant Workers 398.7 Administration Inspection 398.8 408 Truck Drivers 392.9(b) 318 Intermodal Containers, Securing 393.126 364 Intracity Zone Drivers Certificate of Physical Examination 391.43(d) 306 Exemptions 391.62 313 Medical Examination 391.45(b)(2) 309 Investigations 391.23 300 Assistance 390.15 286

Section # Page #

Motor Carriers

K Knowledge Motor Vehicle Operators. 383.111 203 Regulations. 390.3(e) 277

L Lamps (see also Lighting and Reflectors entry) Part 393 B Auxiliary Driving Lamps 393.24(b) 334 Auxiliary Driving Lamps 393.24 Aiming 393.24(d) 334 Mounting 393.24(c) 334 Driveaway-Towaway Operations 393.17 333 Front Fog Lamps 393.24(b) 334 Front Fog Lamps 393.24 Aiming 393.24(d) 334 Mounting 393.24(c) 334 Head Lamps 393.24 334 Head Lamps 393.24 Aiming 393.24(d) 334 Requirements 393.24(a) 334 Obscured 392.33 321 Operable 393.9 327 Other than Head Lamps 393.25 335 Other than Head Lamps 393.25 Mounting 393.25(a) 335 Specifications 393.25(c) 335 Steady-Burning 393.25(e) 335 Visibility 393.25(b) 335 Stop Lamps 393.25(f) 335 Lease and Interchange of Vehicles Applicability 376.1 143 Definitions 376.2 143 Equipment Identification 376.11(c) 143 Interchange 376.31 145 Receipts 376.11(b) 143 Records 376.11(d) 143 Regulated Carriers 376.42 146 Written Requirements 376.12 143 Lighting and Reflectors Combination 393.22 334 Driveaway-Towaway Operation 393.17 333 Emergency Reflectors 393.95 356 Equipment Requirements 393.11 327 Motor Vehicles Transporting Migrant Workers 398.4(k) 406 398.5(b) 407 Obscured 392.33 321 Requirements 393.26 Additional Retroreflective Surfaces 393.26(d) 335 Mounting 393.26(a) 335 Specifications 393.26(b) 335 Substitute for Side Reflex Reflectors 393.26(c) 335 Wiring 393.28 335 Retroreflective Sheeting and Reflex Reflectors 393.13 332 Loading Buses 392.62 321 Motor Vehicles Transporting Migrant Workers 398.4(g) 406 Logs 395.8 375 Longer Combination Vehicle (LCV) Definitions 380.105 153 Driver Testing 380.109 153 Driver-Instructor Requirements 380.301 155 Driver-Instructor Requirements 380.301, Part 391 Employer Responsibilities 380.305 155 Qualification Files 391.55 313 Substitute for 380.303 155 Driver-Training Program 380.107 153 380.201 154 Driver-Training Program 380.107, 380.201, Appendix to Part 380 Certification 380.401 155 Doubles 380.203 154 Triples 380.205 154 Substitute for 380.111 153 Employer Responsibilities 380.113 154 Employer Responsibilities 380.113 Driver-Instructor Requirements 380.305 155 Substitute Driver Training 380.111 153 Instructor Requirements 380.303 155 Lumber 393.116 359 393.118 360

M

Section # Page #

INDEX

IX

IX Subject Index

Maintenance (see also Inspections entry) 396.3 387 Maintenance (see also Inspections entry) 396.3 Lubrication 396.5 387 Motor Vehicles Transporting Migrant Workers 398.7 408 Unsafe Vehicles 396.7 387 Marking Buses Emergency Exits 393.62(e) 344 Liquid Fuel Tanks 393.67(c)(11) 345 393.67(f) 346 Saddle-Mounts 393.71(m)(8) 350 Tow-Bars 393.71(h)(9) 348

Medical Advisory Criteria Addendum 425 Medical Review Officers Employee Notification of Non-negative Drug Test Results 40.131 21 Laboratory, Relationship with 40.101 18 40.125 20 Qualifications 40.121 19 Record Retention 382.409 176 Responsibilities 40.123 20 Split Specimen Test Employee Notification 40.153 25 40.171 28 Laboratory Procedure First 40.175 29 Report to MRO 40.183 30 40.185 30 40.187 30 Second 40.177 29 40.179 29 40.181 29 Payment 40.173 29 Test Results Dilute 40.155 25 Invalid 40.159 26 Involving Drugs 40.137 22 Mmultiple Verified Results for the Same Testing Event 40.162 27 Negative 40.127 20 Non-negative Drug Test 40.129 21 Employee Notification 40.131 21 Positive or Refusal to Test 40.133 22 Positive, Adulterated, Substituted, or Invalid 40.129 Changing 40.149 24 Verification 40.145 23 Rejected 40.161 27 Reporting 40.163 27 40.165 28 40.167 28 Valid Test Result Cannot Be Produced 40.160 27 Verification Adulteration or Substitution 40.145 23 Changing 40.149 24 Decision 40.141 23 Interview 40.135 22 Prohibitions 40.151 25 Reporting Medical Information 40.327 48 Metal Coils, Securing 393.120 361 Migrant Workers, Transporting Applicability of Regulations 398.2 405 Definitions 398.1 405 Driver Qualifications 398.3 405 Maximum Driving Time 398.6 408 Motor Vehicles Accessories 398.5 407 Administration Inspection 398.8 408 Brakes 398.5(c) 407 Driving 398.4 406 Emergency Exits 398.5(f)(10) 407 Equipment and Emergency Devices 398.4(f) 406 Exits 398.5(f)(6) 407 Fuel 398.4(l) 406 398.4(m) 406 Heaters 398.5(g) 407 Inspection and Maintenance 398.7 408 Lighting Devices and Reflectors 398.4(k) 406 398.5(b) 407 Out of Service 398.8(c) 408 Parts 398.5 407 Passenger Compartment 398.5(f) 407 Safe Loading 398.4(g) 406 Tires 398.5(e) 407 Mirrors, Rear Vision 393.80 353 Motor Carrier Safety Assistance Program 350.101 71 Basic Program Funds 350.201 72 350.209 73 Certification Format 350.211 73 Criteria 350.323 76 Use 350.315 75 Commercial Vehicle Safety Plan Consequences 350.215 74 Content 350.213 74 Response Received by State 350.207 73 Shared Expenses, State and Federal 350.303 74 Compatibility with FMCSRs and HMRs Consequences for Incompatibility 350.335 77 Ensuring 350.331 76 Interstate Commerce 350.337 77 Obtaining a New Exemption 350.343 78 Review 350.333 76 Tolerance Guidelines 350.339 77 Variances Allowing 350.341 77 Applying for 350.345 78 Definitions 350.105 71 Funding 350.205 73 Activities Eligible for Reimbursement 350.309 75 350.311 75 Allocation 350.313 75 Basic Program Funds (see also Basic Program Funds, this heading) 350.201 72 350.209 73 High Priority Activity Funds 350.319 75 Incentive Funds 350.317 75 States Qualifying 350.327 76 Level of Effort 350.301 74 Term 350.307 75 U.S. Territories 350.305 74 Jurisdictions Eligible 350.107 72 National Program Elements 350.109 72 Traffic Enforcement 350.111 72 Motor Carriers Aiding or Abetting Violations 390.13 286 Assistance in Investigations and Special Studies 390.15 286 Driver Regulations, Observance of 390.11 286

447

Noise Emission Standards

N Noise Emission Standards Correction Factors Application 325.79 70 Ground Surface 325.75 69 Microphone Distance 325.73 69 Open Site Requirements, Computation of 325.77 69 Definitions 325.5 65 Effective Date 325.3 65 Exhaust Systems 325.91 70 Highway Operations Ambient Conditions 325.35 67 Location and Operation of Sound Level Measurement System 325.37 67 Measurement Procedure 325.39 68 Site Characteristics 325.33 67 Measurement Ambient Conditions Highway Operations 325.35 67 Stationary Test 325.55 68 Procedure Highway Operations 325.39 68 Stationary Test 325.59 69 Site Characteristics Highway Operations 325.33 67 Stationary Test 325.53 68 Systems Calibration 325.25 66 Location and Operation Highway Operations 325.37 67 Stationary Test 325.57 68 Types 325.23 66 Tolerances 325.9 66 Windscreen 325.27 67 Motor Vehicle Inspection and Examination 325.13 66 Noise Levels, Allowable 325.7 65 Stationary Test Ambient Conditions 325.55 68 Location and Operation of Sound Level Measurement Systems 325.57 68 Measurement Procedure 325.59 69 Site Characteristics 325.53 68 Tires 325.93 70 Windscreen 325.27 67 Noise Levels, Vehicle Interior 393.94 355

O Oilfield Operations 395.1(d) 367 On-Board Recording Devices 395.15 380 Out of Service Drivers 395.13 380 Alcohol Use 392.5(c) 317 392.5(e) 317 Motor Vehicles 396.9(c) 387 398.8(c) 408 Violation 383.51(e) 192 383.53(b) 193 391.15(d) 298

P Paper Rolls, Securing 393.122 362 Parking Brake Systems 393.41 336 Passenger Carrier Regulations Baggage Declaring Excess Value 374.403 119 374.405 119 Liability 374.401 119 Definitions 374.113 117 374.303 117 Smoking Prohibited 374.201 117 Passenger-Carrying Vehicles, Maximum Driving Time 395.5 375 Passengers Endorsement 383.117 205 Motor Vehicles Transporting Migrant Workers 398.5(f) 407 Private Motor Carrier Business 391.69 315 Nonbusiness 391.68 315 Unauthorized 392.60 321 Physical Examination Certificate 391.43 305 Instructions for Performing 391.43(f) 306 Requirements for 391.45 309 Pilot Programs 381.400-381.520 Preemption of State Rules 381.600 162 Preemption Procedures (see also Waivers entry) Part 397 E Application 397.205 401 Application 397.205 Timeliness 397.221 403 Waiver 397.213 402 Definitions 397.201(c) 401 Determination 397.203 401 397.211 402 Judicial Review 397.225 403 Notice 397.207 402 Processing 397.209 402 Reconsideration 397.223 403 Pre-Trip Inspection Driveaway-Towaway Operations 396.15(b) 390 Equipment 392.7 318

448

INDEX

Process Agent, Designation of Applicability 366.1 91 Blanket Designations 366.5 91 Cancellation or Change 366.6 91 Eligible Persons 366.3 91 Form 366.2 91 Required States 366.4 91 Property-Carrying Vehicles, Maximum Driving Time 395.3 374

R Radar Detectors 392.71 322 Radioactive Materials 397.101 400 397.103 401 Railroad Crossings Slowing Down 392.11 320 Stopping 392.10 319 Rear Impact Guards/Rear End Protection 393.86 354 Rear-Vision Mirrors 393.80 353 Record of Duty Status 395.8 375 Record of Duty Status 395.8 On-Board Recording Devices 395.15 380 Out of Service Drivers 395.13(b)(2) 380 395.13(c)(1)(ii) 380 395.13(d)(2) 380 Retention of Records 395.8(k) 377 Records Access 382.405 175 Accident 390.15 286 Companies Going Out of Business 379.9 151 Controlled Substances and Alcohol Use Testing 40.333 49 382.401 173 Copies 390.31 290 Disposition 379.13 151 Driver Qualification Files 391.51 312 Driving Record, Annual Review and Inquiry 391.25(c) 302 Falsification 390.35 291 Location 390.29 290 Preservation 379.7 151 Preservation 379.7 Applicability 379.1 151 Protection 379.5 151 Record of Duty Status 395.8(k) 377 Retention 379.13 151 Retention 379.13 Required 379.3 151 Storage 379.5 151 Violations 391.27 303 Waiver of Requirements 379.11 151 Reflectors (see also Lighting and Reflectors entry) 393.11 327 Regional Offices, Motor Carrier Safety Service Centers 390.27 290 Reports Alcohol and Controlled Substances Testing 382.403 174 Driver Vehicle Inspection 396.11 388 Drug Test Results 40.163 27 Falsification 390.35 291 Routing of Non-Radioactive Hazardous Materials 397.73 399 Substance Abuse Professional 40.311 47 Reserve Fuel Materials of Trade 392.51 321 Motor Vehicles Transporting Migrant Workers 398.4(m) 406 Retail Store Deliveries 395.1(f) 367 Road Test 391.31 303 Certificate 391.31(f) 303 Equivalent 391.33 304 Routing Regulations Authority to Serve a Particular Area 356.1 81 Elimination of Gateways 356.11 81 Elimination of Restrictions 356.9 81 Redesignated Highways 356.13 81 Tacking 356.7 81 Traversal Authority 356.5 81 Rulemaking Procedures Additional Proceedings 389.25 275 Adoption of Final Rules 389.29 276 Applicability 389.1 275 Definitions 389.3 275 Extension of Time, Petitions 389.19 275 Hearings 389.27 275 Initiation 389.13 275 Notice Contents 389.15 275 Participation in 389.17 275 Petitions 389.31 276 Extension of Time 389.19 275 Processing 389.33 276 Reconsideration 389.35 276 389.37 276 Records 389.7 275 Regulatory Docket 389.5 275 Written Comments Consideration 389.23 275 Contents 389.21 275 Rules of Practice Admissions, Request for 386.44 252 Appeal 386.67 255 Decision 386.61 254 Appeal 386.67 255 Failure to Comply with Final Order 386.65 255 Reconsideration 386.64 254

Section # Page #

Wiring Rules of Practice (continued) Decision (continued) Rehearing 386.66 255 Review of 386.62 254 After Review 386.63 254 Definitions 386.2 245 Depositions 386.46 252 Hearings 386.47 252 Discovery Methods 386.37 250 Motion to Compel 386.45 252 Protective Orders 386.39 251 Responses, Supplementation of 386.40 251 Scope 386.38 250 Stipulations 386.41 251 Document Production 386.43 251 Documents Filing 386.5 246 386.7 247 Service 386.6 247 Examinations 386.43 251 Hearings Administrative Law Judge 386.54 253 Admissions, Request for 386.44 252 Appeals 386.52 253 Burden of Proof 386.58 254 Conclusions of Law 386.57 254 Conduct 386.56(b) 254 Deposition 386.47 252 Evidence 386.56(c) 254 Written, Form of 386.49 253 Intervention 386.17 249 Investigation, Information Obtained by 386.56(d) 254 Medical Records and Physicians' Reports 386.48 253 Motions 386.35 250 386.36 250 Pleadings, Amendment and Withdrawal 386.51 253 Prehearing Conferences 386.55 254 Proposed Findings of Fact 386.57 254 Record 386.56(e) 254 Request for 386.13 248 Action on Requests 386.16 248 Subpoenas 386.53 253 Imminent Hazard 386.72 255 Injunctions 386.71 255 Land, Entry Upon 386.43 251 Motions 386.35 250 Compel Discovery 386.45 252 Dismiss 386.36(a) 250 More Definite Statement 386.36(b) 250 Rehearing 386.66 255 Notice of Claim Payment 386.18 249 Reply 386.14 248 Penalties 386.81 257 Failure to Pay Suspension or Revocation of Registration 386.84 258 Violations of Notices and Orders 386.82 257 Proceedings Commencement 386.11 247 Complaint 386.12 248 Hearing, Request for 386.13 248 Action on 386.16 248 Petitions to Review 386.13 248 Action on 386.16 248 Service 386.8 247 386.31 250 Settlement Agreements 386.22 249 Written Interrogatories 386.42 251

S

Section # Page #

T Tank Vehicle Endorsement 383.119 205 Television Receivers 393.88 354 Tiedowns Adjusting 393.112 359 Manufacturing Standards 393.104(e) 357 Number 393.110 359 Use 393.104(f) 357 Time Computation 386.8 247 Extenstion 386.5 246 Tires 325.93 70 393.75 351 Tires 325.93, 393.75 Vehicles Containing Hazardous Materials 397.17 396 Trucks and Truck Tractors Access Requirements 399.207 409 Defrosting and Defogging Systems 393.79 353 Driver Inspections 392.9(b) 318 Emergency Equipment 393.95 356 Exhaust Systems 393.83 353 Frames 393.201 366 Horn 393.81 353 Lighting Devices and Reflectors 393.11 327 Rear-Vision Mirrors 393.80 353 Seat Belts 393.93(b) 355 Securing 393.128 364 Speedometer 393.82 353 Window Construction 393.61 343 Windshield Wiping and Washing Systems 393.78 353 Turn Signaling Systems 393.19 Specifications 393.25(c) 335

IX

V Violations Aiding or Abetting 390.13 286 Notification of Convictions 383.31 188 Out of Service 383.51(e) 192 383.53(b) 193 391.15(d) 298 Record 391.27 303

W Waivers Determination and Order 397.219 403 Notice 397.215 403 Preemption Application 397.213 402 Preemption of State Rules 381.600 162 Processing 397.217 403 Stand-Down Waiver Provision 382.119 166 Vision and Diabetes Waiver Study Programs, Grandfathering for Drivers Participating in 391.64 314 Warning Devices (see also Emergency Signals entry) 392.22 320 Placement 392.22(b) 320 Stopped Vehicles 393.95(f) 356 Warning Signal Flashers 392.22(a) 320 Wheels 393.205 366 Brakes Required 393.42 337 Windscreen 325.27 67 Windshield Wiping and Washing Systems 393.78 353 Wiring Battery Installation 393.30 335 Systems 393.28 335

INDEX

449

IX Subject Index

Saddle-Mounts Kingpins 393.71(l) 350 Lower Half 393.71(k) 349 Upper Half 393.71(j) 349 Safety Fitness Procedures Definitions 385.3 219 Delinquent in Paying Penalties 385.14 221 Information 385.19 222 Safety Rating Administrative Review 385.15 221 Changes 385.17 222 Determining 385.7 220 385.9 220 Unsatisfactory Rated Motor Carriers 385.13 221 Standard, Meeting 385.5 220 Safety Rating (see also Safety Rating under Safety Fitness Procedures entry) 385.7 220 385.9 220 Salvage Processing 370.11 102 School Bus, Endorsement 383.123 205 Seat Belts Buses 393.93(a) 355 Trucks and Truck Tractors 393.93(b) 355 Use 392.16 320 Sleeper Berths 393.76 351 Speed Limits 392.6 318 Speed Limits 392.6 Motor Vehicles Transporting Migrant Workers 398.4(e) 406 Speedometer 393.82 353 Standee Line or Bar on Buses 393.90 355 State Laws Adopting and Enforcing Compatible Laws and Regulations 355.25 79 Applicability 355.3 79

State Laws (continued) Definitions 355.5 79 Purpose 355.1 79 Regulatory Review 355.21 79 Submission of Results 355.23 79 Steering Wheel Systems 393.209 366 Step, Handhold, and Deck Requirements Definitions 399.205 409 Maintenance 399.211 410 Test Procedures 399.209 410 Truck and Truck-Tractor Access Requirements 399.207 409 Stopped Vehicles Emergency Signals 392.22 320 Warning Devices 393.95(f) 356 Substance Abuse Professionals Certification Organization Recognition for Members 40.283 44 Education and Treatment Referral 40.299 45 40.303 46 Evaluation 40.285 44 Evaluation, Referral, and Treatment Process 40.291 44 Follow-Up Evaluation 40.301 45 Follow-Up Tests 40.307 46 Employer's Responsibilities 40.309 46 Initial Evaluation 40.293 44 Changing 40.297 45 Qualifications 40.281 43 Reports 40.311 47 Required Information 40.287 44 Second Opinions 40.295 45 Suspension Systems 393.207 366