382.103 Applicability

Question 1: Are intrastate drivers of CMVs, who are required to obtain CDLs, required to be alcohol and drug tested by their employer?

Guidance: Yes. The definition of commerce in 382.107 is taken from 49 U.S.C. §31301 which encompasses interstate, intrastate and foreign commerce.

Question 2: Are students who will be trained to be motor vehicle operators subject to alcohol and drug testing? Are they required to obtain a CDL in order to operate training vehicles provided by the school?

Guidance: Yes. §382.107 includes the following definitions:

Employer means any person (including the United States, a State, District of Columbia or a political subdivision of a State) who owns or leases a CMV or assigns persons to operate such a vehicle. The term employer includes an employer's agents, officers and representatives.

Driver means any person who operates a CMV.

Truck and bus driver training schools meet the definition of an employer because they own or lease CMVs and assign students to operate them at appropriate points in their training. Similarly, students who actually operate CMVs to complete their course work qualify as drivers.

The CDL regulations provide that "no person shall operate" a CMV before passing the written and driving tests required for that vehicle (49 CFR 383.23(a)(1)). Virtually all of the vehicles used for training purposes meet the definition of a CMV, and student drivers must therefore obtain a CDL.

Question 3: Are part 382 alcohol and drug testing requirements applicable to firefighters in a State which gives them the option of obtaining a CDL or a non-commercial class A or B license restricted to operating fire equipment only?

Guidance: No. The applicability of part 382 is coextensive with part 383--the general CDL requirements. Only those persons required to obtain a CDL under Federal law and who actually perform safety- sensitive duties, are required to be tested for drugs and alcohol.

The FHWA, exercising its waiver authority, granted the States the option of waiving firefighters from CDL requirements. A State which gives firefighters the choice of obtaining either a CDL or a non- commercial license has exercised the option not to require CDLs. Therefore, because a CDL is not required, by extension part 382 is not applicable.

A firefighter in the State would not be required under Federal law to be tested for drugs and alcohol regardless of the type of license which the employer required as a condition of employment or the driver actually obtained. It is the Federal requirement to obtain a CDL, nonexistent in the State, that entails drug and alcohol testing, not the fact of actually holding a CDL.

Question 4: An employer or State government agency requires CDLs for drivers of motor vehicles: (1) with a GVWR of 26,000 pounds or less; (2) with a GCWR of 26,000 pounds or less inclusive of a towed unit with a GVWR of 10,000 pounds or less; (3) designed to transport 15 or less passengers, including the driver; or (4) which transport HM, but are not required to be placarded under 49 CFR part 172, subpart F. Are such drivers required by part 382 to be tested for the use of alcohol or controlled substances?

Guidance: No. Part 382 requires or authorizes drug and alcohol testing only of those drivers required by part 383 to obtain a CDL. Since the vehicles described above do not meet the definition of a CMV in part 383, their drivers are not required by Federal regulations to have a CDL.

Question 5: Are Alaskan drivers with a CDL who operate CMVs and have been waived from certain CDL requirements subject to controlled substances and alcohol testing?

Guidance: Yes. Alaskan drivers with a CDL who operate CMVs are subject to controlled substances and alcohol testing because they have licenses marked either "commercial driver's license" or "CDL". The waived drivers are only exempted from the knowledge and skills tests, and the photograph on license requirements.

Question 6: Do the FHWA's alcohol and controlled substances testing regulations apply to employers and drivers in U.S. territories or possessions such as Puerto Rico and Guam?

Guidance: No. The rule by definition applies only to employers and drivers domiciled in the 50 states and the District of Columbia.

Question 7: Which drivers are to be included in a alcohol and controlled substances testing program under the FHWA's rule?

Guidance: Any person who operates a CMV, as defined in §382.107, in intrastate or interstate commerce and is subject to the CDL requirement of 49 CFR part 383.

Question 8: Is a foreign resident driver operating between the U.S. and a foreign country from a U.S. terminal for a U.S.-based employer subject to the FHWA alcohol and controlled substances testing regulations?

Guidance: Yes. A driver operating for a U.S.-based employer is subject to part 382.

Question 9: What alcohol and drug testing provisions apply to foreign drivers employed by foreign motor carriers?

Guidance: Foreign employers are subject to the alcohol and drug testing requirements in part 382 (see §382.103). All provisions of the rules will be applicable while drivers are operating in the U.S. Foreign drivers may also be subject to State laws, such as probable cause testing by law enforcement officers.

Question 10: Are volunteer drivers subject to alcohol and drug testing? [Editor’s Note]

Guidance: Yes. The applicability of Part 382 is coextensive with Part 383.  The definition of “driver” in §382.107 and the definition of “employee” in §383.5 both include “any” operator or person who operates a commercial motor vehicle.  There is no exception for volunteer drivers.  They are included in the scope and intent of the definition of “commerce” (in both §382.107 and §383.5), because their functions “affect trade, traffic, and transportation.”  The question of whether or not they are compensated is irrelevant. [Editor’s Note]