Preview
IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
LINDA NARAMORE, as surviving
spouse of William D. Naramore and
as administrator of the Estate of
William D. Naramore,
Plaintiffs,
v. Civil Action No. 21-C-06578-S2
BUILDERS FIRSTSOURCE, INC.,
BUILDERS FIRSTSOURCE –
ATLANTIC GROUP, LLC,
BUILDERS FIRSTSOURCE –
SOUTHEAST GROUP, LLC,
BUILDERS FIRSTSOURCE
HOLDINGS, LLC, MICHAEL W.
SMITH, LIBERTY MUTUAL FIRE
INSURANCE CO.,
Defendants.
PLAINTIFFS’ AMENDED MOTION FOR JUDICIAL NOTICE OF
FEDERAL MOTOR CARRIER SAFETY REGULATIONS
Under OCGA § 24-2-220, Plaintiff Linda Naramore moves the Court to
take judicial notice of the Federal Motor Carrier Safety Regulations:
• “The rules in this part establish minimum standards for
commercial motor vehicles . . . .” 49 CFR § 393.1(a).
• “No motor carrier may operate a commercial motor vehicle,
or cause or permit such vehicle to be operated, unless it is
equipped in accordance with the requirements and specifica-
tions of this part.” Id. § 393.1(c).
• “Each commercial motor vehicle must have brakes adequate
to stop and hold the vehicle . . . .” Id. § 393.40(a).
• “[A]ll brakes with which a motor vehicle is equipped must at
all times be capable of operating.” Id. § 393.48(a).
• “Every motor carrier . . . must systematically inspect, repair,
and maintain, or cause to be systematically inspected, re-
paired, and maintained, all motor vehicles . . . subject to its
control.” Id. § 396.3(a).
• “Parts and accessories shall be in safe and proper operating
condition at all times. These include those specified in part
393 of this subchapter and any additional parts and accesso-
ries which may affect safety of operation . . . .” Id.
§ 396.3(a)(1).
• “The motor carrier is solely responsible for ensuring that the
vehicles under its control are in safe operating condition and
that defects have been corrected.” Regulatory Guidance for
the Federal Motor Carrier Safety Regulations, 62 Fed. Reg.
16370, 16426 (Apr. 4, 1997).
These are “matters of legislative fact” that “shall be judicially recognized with-
out the introduction of proof.” OCGA § 24-2-220. What’s more, these regulations
“have been adopted under Georgia law,” and courts routinely take judicial notice
of them. See, e.g., Tunali v. State, 311 Ga. App. 844, 846 (2011).
Dated: April 10, 2023 Respectfully submitted,
/s/ Andre T. Tennille III
Neil W. Putnam Robert D. Cheeley
Georgia Bar No. 590325 Georgia Bar No. 122727
NEIL W. PUTNAM, ATTORNEY Gabrielle M. Holland
AT LAW Georgia Bar No. 460601
741 North Central Avenue Andre T. Tennille III
Hapeville, Georgia 30354 Georgia Bar No. 940510
(404) 768-3365 CHEELEY LAW GROUP, LLC
neilputnamlaw@gmail.com 2500 Old Milton Parkway, Suite 200
Alpharetta, Georgia 30009
(770) 814-7001
bob@cheeleylawgroup.com
gabrielle@cheeleylawgroup.com
dre@cheeleylawgroup.com
Counsel for Plaintiff
PLAINTIFFS’ MOTION FOR JUDICIAL NOTICE OF FEDERAL REGULATIONS Page—2
CERTIFICATE OF SERVICE
I certify that today I served all counsel of record with a copy of the Plain-
tiffs’ Amended Motion for Judicial Notice of Federal Motor Carrier Safety Reg-
ulations through the Court’s electronic filing system and by email:
Richard H. Hill, II
J. Alex Prescott
WEINBURG, WHEELER, HUDGINS,
GUNN & DIAL, LLC
3344 Peachtree Road, N.E., Suite 2400
Atlanta, Georgia 30326
rhill@wwhgd.com
aprescott@wwhgd.com
Counsel for Defendants
Dated: April 10, 2023 /s/ Andre T. Tennille III
Andre T. Tennille III
Georgia Bar No. 940510
Counsel for Plaintiffs
49 CFR 393.1
This document is current through the Apr. 6, 2023 issue of the Federal Register.
Code of Federal Regulations > Title 49 Transportation > Subtitle B — Other Regulations Relating to
Transportation > Chapter III — Federal Motor Carrier Safety Administration, Department of Transportation
> Subchapter B — Federal Motor Carrier Safety Regulations > Part 393 — Parts and Accessories Necessary
for Safe Operation > Subpart A — General
§ 393.1 Scope of the rules of this part.
[PUBLISHER’S NOTE: Paragraph (b) was revised, and paragraphs (c) and (d) were added at
73 FR 76794, 76823, Dec. 17, 2008, effective June 17, 2009. For the convenience of the user,
paragraph (b) has been set out twice below. The first version is effective until June 17, 2009.
The second version is effective June 17, 2009.]
(a) The rules in this part establish minimum standards for commercial motor vehicles as
defined in § 390.5 of this title. Only motor vehicles (as defined in § 390.5) and
combinations of motor vehicles which meet the definition of a commercial motor vehicle
are subject to the requirements of this part. All requirements that refer to motor vehicles
with a GVWR below 4,536 kg (10,001 pounds) are applicable only when the motor vehicle
or combination of motor vehicles meets the definition of a commercial motor vehicle.
(b)
(1) Every motor carrier and its employees must be knowledgeable of and comply with
the requirements and specifications of this part.
(2) Every intermodal equipment provider and its employees or agents responsible for
the inspection, repair, and maintenance of intermodal equipment interchanged to
motor carriers must be knowledgeable of and comply with the applicable requirements
and specifications of this part.
(c) No motor carrier may operate a commercial motor vehicle, or cause or permit such
vehicle to be operated, unless it is equipped in accordance with the requirements and
specifications of this part.
(d) No intermodal equipment provider may operate intermodal equipment, or cause or
permit such equipment to be operated, unless it is equipped in accordance with the
requirements and specifications of this part.
(e) The rules in this part do not apply to “pipeline welding trucks” as defined in 49 CFR
390.38(b).
Statutory Authority
49 CFR 393.1
Authority Note Applicable to 49 CFR Subtit. B, Ch. III, Subch. B, Pt. 393
History
[54 FR 48617, Nov. 24, 1989; 70 FR 48008, 48025, Aug. 15, 2005; 73 FR 76794, 76823, Dec. 17,
2008; 81 FR 47714, 47721, July 22, 2016]
LEXISNEXIS’ CODE OF FEDERAL REGULATIONS
Copyright © 2023 All rights reserved.
End of Document
49 CFR 393.40
This document is current through the Apr. 6, 2023 issue of the Federal Register.
Code of Federal Regulations > Title 49 Transportation > Subtitle B — Other Regulations Relating to
Transportation > Chapter III — Federal Motor Carrier Safety Administration, Department of Transportation
> Subchapter B — Federal Motor Carrier Safety Regulations > Part 393 — Parts and Accessories Necessary
for Safe Operation > Subpart C — Brakes
§ 393.40 Required brake systems.
(a) Each commercial motor vehicle must have brakes adequate to stop and hold the vehicle or
combination of motor vehicles. Each commercial motor vehicle must meet the applicable service,
parking, and emergency brake system requirements provided in this section.
(b) Service brakes.
(1) Hydraulic brake systems. Motor vehicles equipped with hydraulic brake systems and
manufactured on or after September 2, 1983, must, at a minimum, have a service brake
system that meets the requirements of FMVSS No. 105 in effect on the date of
manufacture. Motor vehicles which were not subject to FMVSS No. 105 on the date of
manufacture must have a service brake system that meets the applicable requirements of §§
393.42, 393.48, 393.49, 393.51, and 393.52 of this subpart.
(2) Air brake systems. Buses, trucks and truck-tractors equipped with air brake systems
and manufactured on or after March 1, 1975, and trailers manufactured on or after January
1, 1975, must, at a minimum, have a service brake system that meets the requirements of
FMVSS No. 121 in effect on the date of manufacture. Motor vehicles which were not
subject to FMVSS No. 121 on the date of manufacture must have a service brake system
that meets the applicable requirements of §§ 393.42, 393.48, 393.49, 393.51, and 393.52 of
this subpart.
(3) Vacuum brake systems. Motor vehicles equipped with vacuum brake systems must
have a service brake system that meets the applicable requirements of §§ 393.42, 393.48,
393.49, 393.51, and 393.52 of this subpart.
(4) Electric brake systems. Motor vehicles equipped with electric brake systems must have
a service brake system that meets the applicable requirements of §§ 393.42, 393.48, 393.49
and 393.52 of this subpart.
(5) Surge brake systems. Motor vehicles equipped with surge brake systems must have a
service brake system that meets the applicable requirements of §§ 393.42, 393.48, 393.49,
and 393.52 of this subpart.
(c) Parking brakes. Each commercial motor vehicle must be equipped with a parking brake
system that meets the applicable requirements of § 393.41.
49 CFR 393.40
(d) Emergency brakes — partial failure of service brakes.
(1) Hydraulic brake systems. Motor vehicles manufactured on or after September 2, 1983,
and equipped with a split service brake system must, at a minimum, meet the partial failure
requirements of FMVSS No. 105 in effect on the date of manufacture.
(2) Air brake systems. Buses, trucks and truck tractors manufactured on or after March 1,
1975, and trailers manufactured on or after January 1, 1975, must be equipped with an
emergency brake system which, at a minumum, meets the requirements of FMVSS No.
121 in effect on the date of manufacture.
(3) Vehicles not subject to FMVSS Nos. 105 and 121 on the date of manufacture. Buses,
trucks and truck tractors not subject to FMVSS Nos. 105 or 121 on the date of
manufacture must meet the requirements of § 393.40(e). Trailers not subject to FMVSS
No. 121 at the time of manufacture must meet the requirements of § 393.43.
(e) Emergency brakes, vehicles manufactured on or after July 1, 1973.
(1) A bus, truck, truck tractor, or a combination of motor vehicles manufactured on or
after July 1, 1973, and not covered under paragraphs (d)(1) or (d)(2) of this section, must
have an emergency brake system which consists of emergency features of the service brake
system or an emergency system separate from the service brake system. The emergency
brake system must meet the applicable requirements of §§ 393.43 and 393.52.
(2) A control by which the driver applies the emergency brake system must be located so
that the driver can operate it from the normal seating position while restrained by any seat
belts with which the vehicle is equipped. The emergency brake control may be combined
with either the service brake control or the parking brake control. However, all three
controls may not be combined.
(f) Interconnected systems.
(1) If the brake systems required by § 393.40(a) are interconnected in any way, they must
be designed, constructed, and maintained so that in the event of a failure of any part of the
operating mechanism of one or more of the systems (except the service brake actuation
pedal or valve), the motor vehicle will have operative brakes and, for vehicles
manufactured on or after July 1, 1973, be capable of meeting the requirements of §
393.52(b).
(2) A motor vehicle to which the requirements of FMVSS No. 105 (S5.1.2), dealing with
partial failure of the service brake, applied at the time of manufacture meets the
requirements of § 393.40(f)(1) if the motor vehicle is maintained in conformity with
FMVSS No. 105 and the motor vehicle is capable of meeting the requirements of §
393.52(b), except in the case of a structural failure of the brake master cylinder body.
(3) A bus is considered to meet the requirements of § 393.40(f)(1) if it meets the
requirements of § 393.44 and § 393.52(b).
Statutory Authority
49 CFR 393.40
Authority Note Applicable to 49 CFR Subtit. B, Ch. III, Subch. B, Pt. 393
History
[36 FR 20297, Oct. 20, 1971, as amended at 37 FR 5251, Mar. 11, 1972; 70 FR 48008, 48048, Aug.
15, 2005; 72 FR 9855, 9870, Mar. 6, 2007]
LEXISNEXIS’ CODE OF FEDERAL REGULATIONS
Copyright © 2023 All rights reserved.
End of Document
49 CFR 393.48
This document is current through the Apr. 6, 2023 issue of the Federal Register.
Code of Federal Regulations > Title 49 Transportation > Subtitle B — Other Regulations Relating to
Transportation > Chapter III — Federal Motor Carrier Safety Administration, Department of Transportation
> Subchapter B — Federal Motor Carrier Safety Regulations > Part 393 — Parts and Accessories Necessary
for Safe Operation > Subpart C — Brakes
§ 393.48 Brakes to be operative.
(a) General rule. Except as provided in paragraphs (b), (c), and (d) of this section, all brakes with
which a motor vehicle is equipped must at all times be capable of operating.
(b) Devices to reduce or remove front-wheel braking effort. A commercial motor vehicle may be
equipped with a device to reduce the front wheel braking effort (or in the case of a three-axle
truck or truck tractor manufactured before March 1, 1975, a device to remove the front-wheel
braking effort) if that device meets the applicable requirements of paragraphs (b)(1) and (2) of this
section.
(1) Manually operated devices. Manually operated devices to reduce or remove front-wheel
braking effort may only be used on buses, trucks, and truck tractors manufactured before
March 1, 1975. Such devices must not be used unless the vehicle is being operated under
adverse conditions such as wet, snowy, or icy roads.
(2) Automatic devices. Automatic devices must not reduce the front-wheel braking force
by more than 50 percent of the braking force available when the automatic device is
disconnected (regardless of whether or not an antilock system failure has occurred on any
axle). The device must not be operable by the driver except upon application of the
control that activates the braking system. The device must not be operable when the brake
control application pressure exceeds 85 psig (for vehicles equipped with air brakes) or 85
percent of the maximum system pressure (for vehicles which are not equipped with air
brakes).
(c) Exception. Paragraph (a) of this section does not apply to —
(1) A towed vehicle with disabling damage as defined in § 390.5;
(2) A vehicle which is towed in a driveaway-towaway operation and is included in the
exemption to the requirement for brakes on all wheels, § 393.42(b);
(3) Unladen converter dollies with a gross weight of 1,361 kg (3,000 lbs) or less, and
manufactured prior to March 1, 1998;
(4) The steering axle of a three-axle dolly which is steered by a co-driver;
49 CFR 393.48
(5) Loaded house moving dollies, specialized trailers and dollies used to transport
industrial furnaces, reactors, and similar motor vehicles provided the speed at which the
combination of vehicles will be operated does not exceed 32 km/hour (20 mph) and
brakes on the combination of vehicles are capable of stopping the combination within 12.2
meters (40 feet) from the speed at which the vehicle is being operated or 32 km/hour (20
mph), whichever is less.
(6) Raised lift axles. Brakes on lift axles need not be capable of being operated while the
lift axle is raised. However, brakes on lift axles must be capable of being applied whenever
the lift axle is lowered and the tires contact the roadway.
(d) Surge brakes. (1) Surge brakes are allowed on:
(i) Any trailer with a gross vehicle weight rating (GVWR) of 12,000 pounds or less, when
its GVWR does not exceed 1.75 times the GVWR of the towing vehicle; and
(ii) Any trailer with a GVWR greater than 12,000 pounds, but less than 20,001 pounds,
when its GVWR does not exceed 1.25 times the GVWR of the towing vehicle.
(2) The gross vehicle weight (GVW) of a trailer equipped with surge brakes may be
used instead of its GVWR to calculate compliance with the weight ratios specified in
paragraph (d)(1) of this section when the trailer manufacturer’s GVWR label is missing.
(3) The GVW of a trailer equipped with surge brakes must be used to calculate
compliance with the weight ratios specified in paragraph (d)(1) of this section when the
trailer’s GVW exceeds its GVWR.
(4) The surge brakes must meet the requirements of § 393.40.
Statutory Authority
Authority Note Applicable to 49 CFR Subtit. B, Ch. III, Subch. B, Pt. 393
History
[39 FR 26907, July 24, 1974, as amended at 41 FR 29130, July 15, 1976; 41 FR 53031, Dec. 3, 1976;
67 FR 61818, 61824, Oct. 2, 2002; 70 FR 48008, 48051, Aug. 15, 2005; 72 FR 9855, 9870, Mar. 6,
2007]
LEXISNEXIS’ CODE OF FEDERAL REGULATIONS
Copyright © 2023 All rights reserved.
End of Document
49 CFR 396.3
This document is current through the Apr. 6, 2023 issue of the Federal Register.
Code of Federal Regulations > Title 49 Transportation > Subtitle B — Other Regulations Relating to
Transportation > Chapter III — Federal Motor Carrier Safety Administration, Department of Transportation
> Subchapter B — Federal Motor Carrier Safety Regulations > Part 396 — Inspection, Repair, and
Maintenance
§ 396.3 Inspection, repair, and maintenance.
(a) General. Every motor carrier and intermodal equipment provider must systematically inspect,
repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor
vehicles and intermodal equipment subject to its control.
(1) Parts and accessories shall be in safe and proper operating condition at all times. These
include those specified in part 393 of this subchapter and any additional parts and
accessories which may affect safety of operation, including but not limited to, frame and
frame assemblies, suspension systems, axles and attaching parts, wheels and rims, and
steering systems.
(2) Pushout windows, emergency doors, and emergency door marking lights in buses shall
be inspected at least every 90 days.
(b) Required records. Motor carriers, except for a private motor carrier of passengers
(nonbusiness), must maintain, or cause to be maintained, records for each motor vehicle they
control for 30 consecutive days. Intermodal equipment providers must maintain or cause to be
maintained, records for each unit of intermodal equipment they tender or intend to tender to a
motor carrier. These records must include:
(1) An identification of the vehicle including company number, if so marked, make, serial
number, year, and tire size. In addition, if the motor vehicle is not owned by the motor
carrier, the record shall identify the name of the person furnishing the vehicle;
(2) A means to indicate the nature and due date of the various inspection and maintenance
operations to be performed;
(3) A record of inspection, repairs, and maintenance indicating their date and nature; and
(4) A record of tests conducted on pushout windows, emergency doors, and emergency
door marking lights on buses.
(c) Record retention. The records required by this section shall be retained where the vehicle is
either housed or maintained for a period of 1 year and for 6 months after the motor vehicle leaves
the motor carrier’s control.
Statutory Authority
49 CFR 396.3
Authority Note Applicable to 49 CFR Subtit. B, Ch. III, Subch. B, Pt. 396
History
[44 FR 38526, July 2, 1979, as amended at 48 FR 55868, Dec. 16, 1983; 53 FR 18058, May 19, 1988;
59 FR 8753, Feb. 23, 1994; 59 FR 60324, Nov. 23, 1994; 73 FR 76794, 76824, Dec. 17, 2008]
LEXISNEXIS’ CODE OF FEDERAL REGULATIONS
Copyright © 2023 All rights reserved.
End of Document
62 FR 16370
Vol. 62, No. 65, Part III, Friday, April 4, 1997
Rules and Regulations
Reporter
62 FR 16370 *
Federal Register > 1997 > April > Friday, April 4, 1997 > Rules and Regulations > DEPARTMENT OF
TRANSPORTATION (DOT) -- Federal Highway Administration (FHWA)
Title: Regulatory Guidance for the Federal Motor Carrier Safety Regulations
Action: Regulatory guidance.
Agency
DEPARTMENT OF TRANSPORTATION (DOT) > Federal Highway Administration (FHWA)
Administrative Code Citation
49 CFR Chapter III
Synopsis
[*16370] SUMMARY: This document presents interpretive guidance material for the Federal Motor
Carrier Safety Regulations (FMCSRs) now contained in the FHWA's Motor Carrier Regulation
Information System (MCREGIS). The FHWA has consolidated previously issued interpretations and
regulatory guidance materials and developed concise interpretive guidance in question and answer
form for each part of the FMCSRs. These questions and answers are generally applicable to drivers,
commercial motor vehicles, and motor carrier operations on a national basis. All prior interpretations
and regulatory guidance of the FMCSRs issued previously in the Federal Register, as well as FHWA
memoranda and letters, may no longer be relied upon as authoritative insofar as they are inconsistent
with the guidance published today. Many of the interpretations of the FMCSRs published on
November 23, 1977, and the interpretations of the Inspection, Repair, and Maintenance regulations
published on July 10, 1980, have been revised. These revisions are reflected in the new questions and
answers. This document also includes regulatory guidance issued since November 17, 1993, when the
agency last published a collection of such guidance. Future regulatory guidance will be issued within
the MCREGIS which will be kept current in the FHWA's Office of Motor Carrier Standards. The
MCREGIS will be updated periodically and published in the Federal Register so that interested
parties may have ready reference to official interpretations and guidance regarding the FMCSRs. This
62 FR 16370, *16370
guidance will provide the motor carrier industry with a clearer understanding of the applicability of
many of the requirements contained in the FMCSRs in particular situations.
Text
SUPPLEMENTARY INFORMATION: This document is an update of the notice of regulatory
guidance for the FMCSRs issued by the FHWA November 17, 1993 (58 FR 60734). This notice
contains previously issued, revised, and new regulatory guidance pertaining to Title 49, Code of
Federal Regulations (CFR), Parts 40, 325, 382, 383, 384, 386, 387, 390 to 393, 395 to 397, and 399 of
the FMCSRs. In some instances, old regulatory guidance has been removed. The information
published in this document supersedes all previously issued interpretations and regulatory guidance,
to the extent they are inconsistent with the guidance published today, including that published on
November 23, 1977, at 42 FR 60078, and on July 10, 1980, at 45 FR 46425. To the maximum extent
possible, all valid prior opinions have been incorporated into this document. This notice is consistent
with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, March 29,
1996).
The FHWA issued a final rule on March 8, 1996, which codified most of the regulatory guidance for
CDL waivers under § 383.3 (61 FR 9546). Guidance concerning CDL waivers had been issued under
§ 383.7. From the 1993 Regulatory Guidance notice for § 383.7, only questions 7(a), 8, 9, 10, 16, 17,
21, and 22 still remain. These questions and guidance are now listed as guidance for § 383.3, where
the CDL waivers have been codified.
Guidance for question 3 under § 383.5 has been changed to reflect a more expansive version of the
same guidance in existence prior to the November 1993 Notice. Guidance for question 2 under §
383.93, as it appeared in the 1993 notice, has been revised to clarify the existing guidance. Guidance
for question 1 under § 390.31 has been expanded to include guidance derived from a Final Order
issued by the Department (58 FR 62467). Guidance for question 1 of § 391.1 has been changed to
remove a reference to part 391 subpart H. Guidance for question 6 under § 391.11 has been moved
to § 392.9. Guidance for question 2 under § 391.27 has been removed: violations of size and weight
laws are not considered violations of motor vehicle traffic laws. Question 1 for § 391.41 has been
changed for clarity. Guidance for question 1 under § 391.43 has been expanded for greater clarity.
Guidance for § 392.62 has been moved to § 391.41. Guidance for question 1 of § 393.51, question 1
of § 393.65, question 1 of § 393.75, question 5 of § 393.100, and question 1 of § 393.106 have been
amended for clarity. Guidance for question 1 under § 393.95 has been incorporated into the
regulations (58 FR 34708) and is therefore removed from this document. Guidance for § 395.1 has
been reordered to consecutively follow the paragraphs within the section. Question 15 under § 395.2
was expanded by guidance issued June 11, 1995. Question 20 under § 395.2 has been revised to
reflect an interpretation previously issued August 15, 1991, treating the same issue in a more explicit
manner. Question 1 under § 397.1 has been changed to more accurately explain who must comply
with part 397. The 1994 Regulatory Guidance booklet, which reprinted the interpretations issued in
the Federal Register in 1993, is available in the public docket on this rulemaking for reference
62 FR 16370, *16370
The FHWA issued an advance notice of proposed rulemaking on November 5, 1996 (61 FR 57252)
concerning the hours of service regulations (49 CFR part 395). On page 57258 of the notice, the
FHWA erroneously indicated that an interpretation which allowed CMVs to be driven from motels
to restaurants in the vicinity as "off-duty time" had recently been rescinded. The FHWA intended to
rescind recent interpretations that describe conditions under which a CMV may be used as a "personal
conveyance" (issued August 10, 1995), and address the entire issue of personal conveyance through
notice and comment rulemaking. Question 8 under § 395.2 has been expanded by guidance issued
November 18, 1996, and placed more appropriately under § 395.8 (see § 395.8, question 27). All prior
interpretations of personal conveyance are invalid.
Regulations
Since 1993, new interpretive guidance has been issued for, or existing guidance has been removed
from, the following sections:
49 CFR Part 40 §§ 40.3, 40.21, 40.23, 40.25, 40.29, 40.31, 40.33, 40.35, 40.39, 40.69, 40.81,
40.93, Special Topics-Requirements for Random Testing, Special Topics-Procedures for
Handling and Processing a Split Specimen
49 CFR Part 382 §§ 382.103, 382.105, 382.107, 382.109, 382.113, 382.115, 382.204, 382.205,
382.213, 382.301, 382.303, 382.305, 382.307, 382.401, 382.403, 382.405, 382.413, 382.501,
382.507, 382.601, 382.603, 382.605, Subpart B-Prohibitions, Special Topics-Responsibility for
Payment for Testing, Special Topics- [*16371]
Multiple Service Providers, Special Topics-Medical Examiners Acting as MRO, Special
Topics-Biennial (Periodic) Testing Requirements
49 CFR Part 383 §§ 383.3, 383.5, 383.7, 383.31, 383.71, 383.73, 383.91, 383.93, Special Topics-
International
49 CFR Part 384 §§ 384.209, 384.211
49 CFR Part 387 §§ 387.9, 387.15, 387.39
49 CFR Part 390 §§ 390.3, 390.5, 390.15, Special Topics-Serious Pattern of Violations
49 CFR Part 391 §§ 391.1, 391.11, 391.27, 391.41, 391.43, 391.49, 391.51, 391.63
49 CFR Part 392 §§ 392.5, 392.9, 392.62
49 CFR Part 393 §§ 393.11, 393.42, 393.48, 393.51, 393.65, 393.75, 393.89, 393.95, 393.100,
393.106, 393.201
49 CFR Part 395 §§ 395.1, 395.2, 395.8, 395.13, 395.15
49 CFR Part 396 §§ 396.11, 396.17, 396.23
Additional guidance will continue to be published in future issues of the Federal Register.
The FHWA will be modifying or removing numerous regulations as part of President
Clinton's Regulatory Reform Initiative. Many of these changes will have an impact on the
regulatory guidance in this document. These changes will be reflected in future issues of the
62 FR 16370, *16371
Federal Register. Members of the motor carrier industry and other interested parties may
access the guidance in this document through the FHWA's Electronic Bulletin Board System
(FEBBS) using a microcomputer and modem. The FEBBS is a read-only facility. Access
numbers for FEBBS are (202) 366-3764 for the Washington, DC area, or toll-free at (800)
337-3492. The system supports a variety of modem speeds up to 14,400 baud line speeds, and
a variety of terminal types and protocols. Modems should be set to 8 data bits, full duplex, and
no parity for optimal performance. Once a connection has been established, new users will
have to go through a registration process. Instructions are given on the screen. FEBBS is
mostly menu-drive and hot keys are indicated with "< >" enclosing the hot key. After logging
on to FEBBS and arriving at the MAIN MENU, select for Conference; then for
Motor Carrier; then either again for MCREGIS Questions and Answers, or for
Information (more detailed help).
For Technical Assistance to gain access to FEBBS, contact: FHWA Computer Help Desk,
HMS-40, room 4401, 400 Seventh Street, SW, Washington, DC 20590 (202) 366-1120.
Specific questions addressing any of the interpretive material published in this document may
be directed to the contact persons listed above, the FHWA Regional Offices, or the FHWA
Division Office in each State.
For ease of reference, the following listing of acronyms used throughout this document is
provided:
Appendix G-The Minimum Periodic Inspection Standards published as an appendix to the
Federal Motor Carrier Safety Regulations
BAT-Breath Alcohol Technician
CDL-Commercial Driver's License
CDLIS-Commercial Driver's License Information System
CFR-Code of Federal Regulations
CMV-Commercial Motor Vehicle
CMVSA-Commercial Motor Vehicle Safety Act of 1986
COE-Cab-over-engine truck tractor
C/TPA-Consortium or Third-Party Administrator
CVSA-Commercial Vehicle Safety Alliance
DHHS-SAMHSA-Department of Health and Human Services, Substance Abuse Mental
Health Services Administration
DOT-U.S. Department of Transportation
DVIR-Driver Vehicle Inspection Report
DWI-Driving While Intoxicated
EAP-Employee Assistance Program
EPA-U.S. Environmental Protection Agency
FHWA-Federal Highway Administration
FMCSRs-Federal Motor Carrier Safety Regulations
62 FR 16370, *16371
FMVSS-Federal Motor Vehicle Safety Standards (developed and issued by the National
Highway Traffic Safety Administration)
FR-Federal Register
FRSI-Farm-Related Service Industries
GCWR-Gross Combination Weight Rating
GVW-Gross Vehicle Weight
GVWR-Gross Vehicle Weight Rating
HM-Hazardous Materials
HMRs-Hazardous Materials Regulations
HMTUSA-Hazardous Materials Transportation Uniform Safety Act of 1990
ICC-Interstate Commerce Commission
Forms MCS-90 and MCS-90B-Endorsements for Motor Carrier Policies of Insurance for
Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980 issued by an
insurer
MCSA-Motor Carrier Safety Act of 1984
MPH-Miles Per Hour
MRO-Medical Review Officer
NDR-National Driver Register
NHTSA-National Highway Traffic Safety Administration within DOT
RDMC-Regional Director of Motor Carriers
SAP-Substance Abuse Professional
SSN-Social Security Number
STAA-Surface Transportation Assistance Act of 1982
STT-Screening Test Technician
U.S.C.-United States Code
Table of Contents
Part 40-Procedures for Transportation Workplace Drug and Alcohol Testing
Programs
Part 325-Compliance With Interstate Motor Carrier Noise Emission Standards
Part 382-Controlled Substances and Alcohol Use and Testing
Part 383-Commercial Driver's License Standards; Requirements and Penalties
Part 384-State Compliance With Commercial Driver's License Program
62 FR 16370, *16371
Part 386-Rules of Practice for Motor Carrier Safety and Hazardous Materials
Proceedings
Part 387-Minimum Levels of Financial Responsibility for Motor Carriers
Part 390-Federal Motor Carrier Safety Regulations; General
Part 391-Qualifications of Drivers
Part 392-Driving of Motor Vehicles
Part 393-Parts and Accessories Necessary for Safe Operation
Part 395-Hours of Service of Drivers
Part 396-Inspection, Repair and Maintenance
Part 397-Transportation of Hazardous Materials; Driving and Parking Rules
Part 399-Employee Safety and Health Standards
Regulatory Guidance
Part 40-- Procedures for Transportation Workplace Drug and Alcohol Testing Programs
Sections Interpreted
40.3Definitions
40.21The Drugs
40.23Preparation for testing
40.25Specimen collection procedures
40.29Laboratory analysis procedures
40.31Quality assurance and quality control
40.33Reporting and review of results
40.35Protection of employee records
40.39Use Of DHHS-certified laboratories
40.69Inability to provide an adequate amount of breath
40.81Availability and disclosure of alcohol testing information about individual
employees
40.93The screening test technician
Special Topics-Requirements for random testing
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Special Topics-Procedures for Handling and Processing a Split Specimen
Section 40.3 Definitions
Question 1: May a Doctor of Chiropractic, holding a Certified Addiction Professional degree,
serve as an MRO?
Guidance: A Doctor of Chiropractic, holding a Certified Addiction Professional degree, is not
considered to be a licensed medical doctor or doctor of osteopathy and, therefore, cannot
serve as an MRO.
Question 2: What are the qualifications and responsibilities of the MRO? Are MROs required to
be certified?
Guidance: Section 40.3 defines the qualifications for an MRO and § 40.33 specifies the MRO's
responsibilities. An MRO is defined as a licensed physician (medical doctor or doctor of
osteopathy) responsible for receiving laboratory [*16372] results generated by an employer's
drug testing program who has knowledge of substance abuse disorders and has appropriate
medical training to interpret and evaluate an individual's confirmed positive test result together
with his or her medical history and any other relevant biomedical information. An MRO is
responsible for reviewing and interpreting confirmed positive test results obtained through the
employer's testing program. The DOT does not require any certification of MROs at the
present time. However, there are several national professional organizations which provide
MRO certification.
Section 40.21 The Drugs
Question 1: Is testing for additional drugs authorized? Must a separate specimen be obtained?
Guidance: Under part 40, an employer must test for the following drugs: marijuana, cocaine,
amphetamines, opiates, and phencyclidine. An employer may not test for any other substances
under DOT authority. Part 40 does not, however, prohibit an employer from testing for other
controlled substances as long as that testing is done under the authority of the employer.
Employers in the transportation industry who establish a drug testing program that tests
beyond the five drugs currently required by part 40 must also make clear to their employees
what testing is required by DOT authority and what testing is required by the company.
Additionally, employers must ensure that DOT urine specimens are collected in accordance
with the provisions outlined in part 40 and that a separate specimen collection process
including a separate act of urination is used to obtain specimens for company testing
programs.
Question 2: Should labs conduct tests for five (5) drugs even if the drug testing custody and
control form fails to indicate what tests are to be performed?
Guidance: Part 40 indicates that DOT agency drug testing programs require that employers test
for marijuana, cocaine, opiates, amphetamines, and phencyclidine (§ 40.21). All DOT
specimens, therefore, must be tested for the above five categories of drugs even if the
accompanying drug testing custody and control form fails to indicate this.
62 FR 16370, *16372
While the DOT does not view this type of collection site error as a fatal flaw, it nevertheless
jeopardizes the integrity of the entire collection process and could lead to a challenge and
subsequent third party review. These errors should be addressed with the site supervisor in the
hope of preventing future mistakes.
Section 40.23 Preparation for Testing
Question 1: On the testing of a split specimen, is it necessary to maintain anonymity of a
person, at the laboratory level, when both the primary laboratory and the laboratory testing
the split may have fees and could directly bill the employee?
Guidance: Section 40.23(a) addresses mandatory use of the Federal Drug Testing Custody and
Control Form in DOT urine collection and testing. This paragraph states, in part, that "* * *
personal identifying information on the donor (other than the social security number or other
employee ID number) may not be provided to the laboratory." If circumstances arise in which
the MRO orders a test of the split specimen, at the request of the employee, no additional
identifying information on the employee may be provided to the laboratory that will be testing
the split specimen. As directed by § 40.33(f), "* * * The MRO shall direct, in writing, the
laboratory to provide the split specimen to another DHHS-certified laboratory for analysis."
This request would reference only items contained on the face of the Drug Testing Custody
and Control Form (e.g., Specimen Identification No., SSN or Employee ID No., Collection
Date, etc.); the MRO would not specify the employee's name. Should a personal check
(bearing the employee's name) accompany the request (e.g., a letter from the MRO), the MRO
should not make any particular reference linking the split request with the person signing the
check. In actuality, the primary laboratory will most likely bill the employer for the cost of
sending the split specimen to the split laboratory; the split laboratory will normally require a
cashier's check, money order, or an account to be set up (generally by the employer) prior to
initiating processing.
Question 2: In a case where an employee is providing a urine specimen and a breath test is
conducted at the same time, may a laboratory receive both the Federal Drug Testing Custody
and Control Form (with the specimens for testing) and the employer's copy of the Breath
Alcohol Testing Form (with the test results) from the collection site?
Guidance: The DOT provided clarification in its Guidance on the Role of Consortia and Third-Party
Administrators in DOT Drug and Alcohol Testing Programs published on July 25, 1995 in the
Federal Register which stated in part "* * * MROs and BATs must send final individual test
results directly to the actual employer as soon as the results are available * * * results may be
maintained afterwards by the C/TPA * * * while there is no objection to the MRO or BAT
transmitting results simultaneously both to the employer and to the C/TPA, it is not
appropriate for the MRO or BAT to send the results only to the C/TPA, which subsequently
retransmits them to the employer."
A laboratory, regardless of what type of arrangement it has with the employer, is prohibited
from receiving the employer's copy of the Breath Alcohol Testing Form together with the
Federal Drug Testing Custody and Control Form(s) which accompany the urine specimen.
62 FR 16370, *16372
The breath testing form contains individual identifying information. The DOT rule specifically
states that this information may not be provided to a laboratory.
However, a laboratory functioning as a C/TPA may receive the employer's copies of the
Federal Drug Testing Custody and Control Form and the employer's copy of the Breath
Alcohol Testing Form from the collection site under the following conditions:
a. The employer's copy of the Federal Drug Testing Custody and Control Form (Copy 7) must
not be included with the laboratory copies (Copies 1 and 2) which accompany the urine
specimen.
b. The employer's copies of the Federal Drug Testing Custody and Control Form and the
Breath Alcohol Testing Forms must not be received by the accession/receiving (testing)
section of the laboratory.
These procedures should prevent that portion of the laboratory which conducts the drug
analysis from having access to the identity (from the alcohol testing form) of the donor.
The DOT rule requires the BAT immediately to transmit the results to the employer,
regardless of what procedures have been established for providing to the employer or the
C/TPA, the employer's copy of the breath testing form.
In all instances, it is the employer (not the C/TPA) who designates in writing to the BAT or
the BAT's company, who the employer's agent is and the procedures that the employer wants
the BAT to use for transmission of data and forms.
Question 3: Is a specific MRO name required in Step 1 on the Federal Drug Testing Custody
and Control Form, or may a clinic, hospital, health care organization, or MRO company name
appear in the MRO Name and Address area?
Guidance: The DOT has determined that a specific physician's name and address is required in
Step 1 of the [*16373] Federal Drug Testing Custody and Control Form as opposed to only a
generic clinic, health care organization, or company name. The name should be that of a
responsible physician rather than an administrative staff member or other company official.
However, a company name may appear as part of the address, provided it is followed by or
includes the MRO's name. Collection sites send copies of the MRO's custody and control
form to this address, and drug testing laboratories use it to submit laboratory results to the
MRO. The use of the MRO name will preclude potential compromises of confidentiality. In
many cases, where only the name of a clinic, hospital or company appears on the mailing
address, the laboratory results are sent to the clinic or hospital and are either circulated
through numerous departments or, in some cases, never reach the MRO.
The physician named in Step 1 may be the MRO who will actually perform the verification
review or the name of a physician within the practice (company), but not necessarily the one
who will actually perform the verification (in those cases where there is more than one MRO
working in that office or company).
Question 4: Is the collector's signature required on the chain of custody section of drug testing
custody and control form?
62 FR 16370, *16373
Guidance: The collector's signature is required in both the "received by" and the "released by"
spaces in Step 6 of the drug testing custody and control form. Part 40 Appendix A specifies
that the form shall provide both "received by" and "released by" entries of the collector's
signature and printed names (see the instructions on the back of Appendix A, copy 7, Step 6.
Combining these entries is not authorized by the rule.
Question 5: May the drug testing custody and control form be used for non-DOT tests?
Guidance: Employee drug testing conducted under local, State, or private authority must not be
represented to the employee as being Federally mandated or required. The use of the custody
and control form required under 49 CFR part 40 conveys that the testing is being conducted
in accordance with applicable Federal regulations. A "look-alike" form that deletes references
to DOT, Part 40, and Federal requirements may be used for non-DOT testing.
Question 6: Is collection of blood authorized? May blood specimens be supported by the drug
testing custody and control form? May blood test results be used to take DOT-required
administrative actions?
Guidance: The collection of blood for alcohol or drug testing under DOT authority is not
authorized. Therefore, while a company, under its own authority, may require a blood
specimen to be collected and tested for drugs and/or alcohol under certain circumstances, it is
not acceptable for the company-required blood specimen to be supported by the same
custody and control form that accompanies a DOT-required urine specimen.
If a urine specimen for a DOT reasonable suspicion test is rejected for testing at the
laboratory, results from a blood specimen collected in accordance with a company policy
could be used to take action against an employee depending upon the drug testing policy
established by that company. Under no circumstances, however, may the results of the blood
test be used to take administrative or disciplinary action against an employee using DOT
authority, for the reasons cited above.
Question 7: Is the collector required to sign or initial the shipping container label?
Guidance: Sections 40.23(c) and 40.25(h) describe the requirements for packaging the specimen
and custody and control form in preparation for shipment to the laboratory. Section 40.23(c)
states that the shipping container must be sealed and initialed to prevent undetected
tampering. Section 40.25(h) states that the collection site person shall sign and enter the date
specimens were sealed in the shipping containers for shipment. The DOT has determined that
initialing and dating the seal by the collection site person is sufficient to meet the intent of the
regulation.
Question 8: How and to whom are copies of drug testing custody and control forms
distributed?
Guidance: The historically acceptable procedures for handling the custody and control form
have been as follows: Parts 1, 2, and 3 must accompany the urine specimen in a sealed
shipping container to the laboratory; Part 3 (Split Specimen) must be retained by the
laboratory in case the split specimen must be sent to a second laboratory; Part 4 must be sent
62 FR 16370, *16373
from the collection site directly to the physician (MRO); Part 5 is given to the donor at the
collection site; Part 6 is retained by the collection site personnel; and Part 7 is provided to the
employer representative. It is unacceptable for the MRO copy of the form to accompany the
urine specimen to the laboratory. Clearly the intent of the regulation is for the urine specimen
and Parts 1, 2, and 3 of the Federal custody and control form to be sent directly from the
collection site to the laboratory, and the MRO (Part 4) copy of the custody and control form
to be sent d
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IN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA LINDA NARAMORE, as surviving spouse of William D. Naramore and as administrator of the Estate of William D. Naramore, Plaintiffs, v. Civil Action No. 21-C-06578-S2 BUILDERS FIRSTSOURCE, INC., BUILDERS FIRSTSOURCE – ATLANTIC GROUP, LLC, BUILDERS FIRSTSOURCE – SOUTHEAST GROUP, LLC, BUILDERS FIRSTSOURCE HOLDINGS, LLC, MICHAEL W. SMITH, LIBERTY MUTUAL FIRE INSURANCE CO., Defendants. PLAINTIFFS’ AMENDED MOTION FOR JUDICIAL NOTICE OF FEDERAL MOTOR CARRIER SAFETY REGULATIONS Under OCGA § 24-2-220, Plaintiff Linda Naramore moves the Court to take judicial notice of the Federal Motor Carrier Safety Regulations: • “The rules in this part establish minimum standards for commercial motor vehicles . . . .” 49 CFR § 393.1(a). • “No motor carrier may operate a commercial motor vehicle, or cause or permit such vehicle to be operated, unless it is equipped in accordance with the requirements and specifica- tions of this part.” Id. § 393.1(c). • “Each commercial motor vehicle must have brakes adequate to stop and hold the vehicle . . . .” Id. § 393.40(a). • “[A]ll brakes with which a motor vehicle is equipped must at all times be capable of operating.” Id. § 393.48(a). • “Every motor carrier . . . must systematically inspect, repair, and maintain, or cause to be systematically inspected, re- paired, and maintained, all motor vehicles . . . subject to its control.” Id. § 396.3(a). • “Parts and accessories shall be in safe and proper operating condition at all times. These include those specified in part 393 of this subchapter and any additional parts and accesso- ries which may affect safety of operation . . . .” Id. § 396.3(a)(1). • “The motor carrier is solely responsible for ensuring that the vehicles under its control are in safe operating condition and that defects have been corrected.” Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed. Reg. 16370, 16426 (Apr. 4, 1997). These are “matters of legislative fact” that “shall be judicially recognized with- out the introduction of proof.” OCGA § 24-2-220. What’s more, these regulations “have been adopted under Georgia law,” and courts routinely take judicial notice of them. See, e.g., Tunali v. State, 311 Ga. App. 844, 846 (2011). Dated: April 10, 2023 Respectfully submitted, /s/ Andre T. Tennille III Neil W. Putnam Robert D. Cheeley Georgia Bar No. 590325 Georgia Bar No. 122727 NEIL W. PUTNAM, ATTORNEY Gabrielle M. Holland AT LAW Georgia Bar No. 460601 741 North Central Avenue Andre T. Tennille III Hapeville, Georgia 30354 Georgia Bar No. 940510 (404) 768-3365 CHEELEY LAW GROUP, LLC neilputnamlaw@gmail.com 2500 Old Milton Parkway, Suite 200 Alpharetta, Georgia 30009 (770) 814-7001 bob@cheeleylawgroup.com gabrielle@cheeleylawgroup.com dre@cheeleylawgroup.com Counsel for Plaintiff PLAINTIFFS’ MOTION FOR JUDICIAL NOTICE OF FEDERAL REGULATIONS Page—2 CERTIFICATE OF SERVICE I certify that today I served all counsel of record with a copy of the Plain- tiffs’ Amended Motion for Judicial Notice of Federal Motor Carrier Safety Reg- ulations through the Court’s electronic filing system and by email: Richard H. Hill, II J. Alex Prescott WEINBURG, WHEELER, HUDGINS, GUNN & DIAL, LLC 3344 Peachtree Road, N.E., Suite 2400 Atlanta, Georgia 30326 rhill@wwhgd.com aprescott@wwhgd.com Counsel for Defendants Dated: April 10, 2023 /s/ Andre T. Tennille III Andre T. Tennille III Georgia Bar No. 940510 Counsel for Plaintiffs 49 CFR 393.1 This document is current through the Apr. 6, 2023 issue of the Federal Register. Code of Federal Regulations > Title 49 Transportation > Subtitle B — Other Regulations Relating to Transportation > Chapter III — Federal Motor Carrier Safety Administration, Department of Transportation > Subchapter B — Federal Motor Carrier Safety Regulations > Part 393 — Parts and Accessories Necessary for Safe Operation > Subpart A — General § 393.1 Scope of the rules of this part. [PUBLISHER’S NOTE: Paragraph (b) was revised, and paragraphs (c) and (d) were added at 73 FR 76794, 76823, Dec. 17, 2008, effective June 17, 2009. For the convenience of the user, paragraph (b) has been set out twice below. The first version is effective until June 17, 2009. The second version is effective June 17, 2009.] (a) The rules in this part establish minimum standards for commercial motor vehicles as defined in § 390.5 of this title. Only motor vehicles (as defined in § 390.5) and combinations of motor vehicles which meet the definition of a commercial motor vehicle are subject to the requirements of this part. All requirements that refer to motor vehicles with a GVWR below 4,536 kg (10,001 pounds) are applicable only when the motor vehicle or combination of motor vehicles meets the definition of a commercial motor vehicle. (b) (1) Every motor carrier and its employees must be knowledgeable of and comply with the requirements and specifications of this part. (2) Every intermodal equipment provider and its employees or agents responsible for the inspection, repair, and maintenance of intermodal equipment interchanged to motor carriers must be knowledgeable of and comply with the applicable requirements and specifications of this part. (c) No motor carrier may operate a commercial motor vehicle, or cause or permit such vehicle to be operated, unless it is equipped in accordance with the requirements and specifications of this part. (d) No intermodal equipment provider may operate intermodal equipment, or cause or permit such equipment to be operated, unless it is equipped in accordance with the requirements and specifications of this part. (e) The rules in this part do not apply to “pipeline welding trucks” as defined in 49 CFR 390.38(b). Statutory Authority 49 CFR 393.1 Authority Note Applicable to 49 CFR Subtit. B, Ch. III, Subch. B, Pt. 393 History [54 FR 48617, Nov. 24, 1989; 70 FR 48008, 48025, Aug. 15, 2005; 73 FR 76794, 76823, Dec. 17, 2008; 81 FR 47714, 47721, July 22, 2016] LEXISNEXIS’ CODE OF FEDERAL REGULATIONS Copyright © 2023 All rights reserved. End of Document 49 CFR 393.40 This document is current through the Apr. 6, 2023 issue of the Federal Register. Code of Federal Regulations > Title 49 Transportation > Subtitle B — Other Regulations Relating to Transportation > Chapter III — Federal Motor Carrier Safety Administration, Department of Transportation > Subchapter B — Federal Motor Carrier Safety Regulations > Part 393 — Parts and Accessories Necessary for Safe Operation > Subpart C — Brakes § 393.40 Required brake systems. (a) Each commercial motor vehicle must have brakes adequate to stop and hold the vehicle or combination of motor vehicles. Each commercial motor vehicle must meet the applicable service, parking, and emergency brake system requirements provided in this section. (b) Service brakes. (1) Hydraulic brake systems. Motor vehicles equipped with hydraulic brake systems and manufactured on or after September 2, 1983, must, at a minimum, have a service brake system that meets the requirements of FMVSS No. 105 in effect on the date of manufacture. Motor vehicles which were not subject to FMVSS No. 105 on the date of manufacture must have a service brake system that meets the applicable requirements of §§ 393.42, 393.48, 393.49, 393.51, and 393.52 of this subpart. (2) Air brake systems. Buses, trucks and truck-tractors equipped with air brake systems and manufactured on or after March 1, 1975, and trailers manufactured on or after January 1, 1975, must, at a minimum, have a service brake system that meets the requirements of FMVSS No. 121 in effect on the date of manufacture. Motor vehicles which were not subject to FMVSS No. 121 on the date of manufacture must have a service brake system that meets the applicable requirements of §§ 393.42, 393.48, 393.49, 393.51, and 393.52 of this subpart. (3) Vacuum brake systems. Motor vehicles equipped with vacuum brake systems must have a service brake system that meets the applicable requirements of §§ 393.42, 393.48, 393.49, 393.51, and 393.52 of this subpart. (4) Electric brake systems. Motor vehicles equipped with electric brake systems must have a service brake system that meets the applicable requirements of §§ 393.42, 393.48, 393.49 and 393.52 of this subpart. (5) Surge brake systems. Motor vehicles equipped with surge brake systems must have a service brake system that meets the applicable requirements of §§ 393.42, 393.48, 393.49, and 393.52 of this subpart. (c) Parking brakes. Each commercial motor vehicle must be equipped with a parking brake system that meets the applicable requirements of § 393.41. 49 CFR 393.40 (d) Emergency brakes — partial failure of service brakes. (1) Hydraulic brake systems. Motor vehicles manufactured on or after September 2, 1983, and equipped with a split service brake system must, at a minimum, meet the partial failure requirements of FMVSS No. 105 in effect on the date of manufacture. (2) Air brake systems. Buses, trucks and truck tractors manufactured on or after March 1, 1975, and trailers manufactured on or after January 1, 1975, must be equipped with an emergency brake system which, at a minumum, meets the requirements of FMVSS No. 121 in effect on the date of manufacture. (3) Vehicles not subject to FMVSS Nos. 105 and 121 on the date of manufacture. Buses, trucks and truck tractors not subject to FMVSS Nos. 105 or 121 on the date of manufacture must meet the requirements of § 393.40(e). Trailers not subject to FMVSS No. 121 at the time of manufacture must meet the requirements of § 393.43. (e) Emergency brakes, vehicles manufactured on or after July 1, 1973. (1) A bus, truck, truck tractor, or a combination of motor vehicles manufactured on or after July 1, 1973, and not covered under paragraphs (d)(1) or (d)(2) of this section, must have an emergency brake system which consists of emergency features of the service brake system or an emergency system separate from the service brake system. The emergency brake system must meet the applicable requirements of §§ 393.43 and 393.52. (2) A control by which the driver applies the emergency brake system must be located so that the driver can operate it from the normal seating position while restrained by any seat belts with which the vehicle is equipped. The emergency brake control may be combined with either the service brake control or the parking brake control. However, all three controls may not be combined. (f) Interconnected systems. (1) If the brake systems required by § 393.40(a) are interconnected in any way, they must be designed, constructed, and maintained so that in the event of a failure of any part of the operating mechanism of one or more of the systems (except the service brake actuation pedal or valve), the motor vehicle will have operative brakes and, for vehicles manufactured on or after July 1, 1973, be capable of meeting the requirements of § 393.52(b). (2) A motor vehicle to which the requirements of FMVSS No. 105 (S5.1.2), dealing with partial failure of the service brake, applied at the time of manufacture meets the requirements of § 393.40(f)(1) if the motor vehicle is maintained in conformity with FMVSS No. 105 and the motor vehicle is capable of meeting the requirements of § 393.52(b), except in the case of a structural failure of the brake master cylinder body. (3) A bus is considered to meet the requirements of § 393.40(f)(1) if it meets the requirements of § 393.44 and § 393.52(b). Statutory Authority 49 CFR 393.40 Authority Note Applicable to 49 CFR Subtit. B, Ch. III, Subch. B, Pt. 393 History [36 FR 20297, Oct. 20, 1971, as amended at 37 FR 5251, Mar. 11, 1972; 70 FR 48008, 48048, Aug. 15, 2005; 72 FR 9855, 9870, Mar. 6, 2007] LEXISNEXIS’ CODE OF FEDERAL REGULATIONS Copyright © 2023 All rights reserved. End of Document 49 CFR 393.48 This document is current through the Apr. 6, 2023 issue of the Federal Register. Code of Federal Regulations > Title 49 Transportation > Subtitle B — Other Regulations Relating to Transportation > Chapter III — Federal Motor Carrier Safety Administration, Department of Transportation > Subchapter B — Federal Motor Carrier Safety Regulations > Part 393 — Parts and Accessories Necessary for Safe Operation > Subpart C — Brakes § 393.48 Brakes to be operative. (a) General rule. Except as provided in paragraphs (b), (c), and (d) of this section, all brakes with which a motor vehicle is equipped must at all times be capable of operating. (b) Devices to reduce or remove front-wheel braking effort. A commercial motor vehicle may be equipped with a device to reduce the front wheel braking effort (or in the case of a three-axle truck or truck tractor manufactured before March 1, 1975, a device to remove the front-wheel braking effort) if that device meets the applicable requirements of paragraphs (b)(1) and (2) of this section. (1) Manually operated devices. Manually operated devices to reduce or remove front-wheel braking effort may only be used on buses, trucks, and truck tractors manufactured before March 1, 1975. Such devices must not be used unless the vehicle is being operated under adverse conditions such as wet, snowy, or icy roads. (2) Automatic devices. Automatic devices must not reduce the front-wheel braking force by more than 50 percent of the braking force available when the automatic device is disconnected (regardless of whether or not an antilock system failure has occurred on any axle). The device must not be operable by the driver except upon application of the control that activates the braking system. The device must not be operable when the brake control application pressure exceeds 85 psig (for vehicles equipped with air brakes) or 85 percent of the maximum system pressure (for vehicles which are not equipped with air brakes). (c) Exception. Paragraph (a) of this section does not apply to — (1) A towed vehicle with disabling damage as defined in § 390.5; (2) A vehicle which is towed in a driveaway-towaway operation and is included in the exemption to the requirement for brakes on all wheels, § 393.42(b); (3) Unladen converter dollies with a gross weight of 1,361 kg (3,000 lbs) or less, and manufactured prior to March 1, 1998; (4) The steering axle of a three-axle dolly which is steered by a co-driver; 49 CFR 393.48 (5) Loaded house moving dollies, specialized trailers and dollies used to transport industrial furnaces, reactors, and similar motor vehicles provided the speed at which the combination of vehicles will be operated does not exceed 32 km/hour (20 mph) and brakes on the combination of vehicles are capable of stopping the combination within 12.2 meters (40 feet) from the speed at which the vehicle is being operated or 32 km/hour (20 mph), whichever is less. (6) Raised lift axles. Brakes on lift axles need not be capable of being operated while the lift axle is raised. However, brakes on lift axles must be capable of being applied whenever the lift axle is lowered and the tires contact the roadway. (d) Surge brakes. (1) Surge brakes are allowed on: (i) Any trailer with a gross vehicle weight rating (GVWR) of 12,000 pounds or less, when its GVWR does not exceed 1.75 times the GVWR of the towing vehicle; and (ii) Any trailer with a GVWR greater than 12,000 pounds, but less than 20,001 pounds, when its GVWR does not exceed 1.25 times the GVWR of the towing vehicle. (2) The gross vehicle weight (GVW) of a trailer equipped with surge brakes may be used instead of its GVWR to calculate compliance with the weight ratios specified in paragraph (d)(1) of this section when the trailer manufacturer’s GVWR label is missing. (3) The GVW of a trailer equipped with surge brakes must be used to calculate compliance with the weight ratios specified in paragraph (d)(1) of this section when the trailer’s GVW exceeds its GVWR. (4) The surge brakes must meet the requirements of § 393.40. Statutory Authority Authority Note Applicable to 49 CFR Subtit. B, Ch. III, Subch. B, Pt. 393 History [39 FR 26907, July 24, 1974, as amended at 41 FR 29130, July 15, 1976; 41 FR 53031, Dec. 3, 1976; 67 FR 61818, 61824, Oct. 2, 2002; 70 FR 48008, 48051, Aug. 15, 2005; 72 FR 9855, 9870, Mar. 6, 2007] LEXISNEXIS’ CODE OF FEDERAL REGULATIONS Copyright © 2023 All rights reserved. End of Document 49 CFR 396.3 This document is current through the Apr. 6, 2023 issue of the Federal Register. Code of Federal Regulations > Title 49 Transportation > Subtitle B — Other Regulations Relating to Transportation > Chapter III — Federal Motor Carrier Safety Administration, Department of Transportation > Subchapter B — Federal Motor Carrier Safety Regulations > Part 396 — Inspection, Repair, and Maintenance § 396.3 Inspection, repair, and maintenance. (a) General. Every motor carrier and intermodal equipment provider must systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles and intermodal equipment subject to its control. (1) Parts and accessories shall be in safe and proper operating condition at all times. These include those specified in part 393 of this subchapter and any additional parts and accessories which may affect safety of operation, including but not limited to, frame and frame assemblies, suspension systems, axles and attaching parts, wheels and rims, and steering systems. (2) Pushout windows, emergency doors, and emergency door marking lights in buses shall be inspected at least every 90 days. (b) Required records. Motor carriers, except for a private motor carrier of passengers (nonbusiness), must maintain, or cause to be maintained, records for each motor vehicle they control for 30 consecutive days. Intermodal equipment providers must maintain or cause to be maintained, records for each unit of intermodal equipment they tender or intend to tender to a motor carrier. These records must include: (1) An identification of the vehicle including company number, if so marked, make, serial number, year, and tire size. In addition, if the motor vehicle is not owned by the motor carrier, the record shall identify the name of the person furnishing the vehicle; (2) A means to indicate the nature and due date of the various inspection and maintenance operations to be performed; (3) A record of inspection, repairs, and maintenance indicating their date and nature; and (4) A record of tests conducted on pushout windows, emergency doors, and emergency door marking lights on buses. (c) Record retention. The records required by this section shall be retained where the vehicle is either housed or maintained for a period of 1 year and for 6 months after the motor vehicle leaves the motor carrier’s control. Statutory Authority 49 CFR 396.3 Authority Note Applicable to 49 CFR Subtit. B, Ch. III, Subch. B, Pt. 396 History [44 FR 38526, July 2, 1979, as amended at 48 FR 55868, Dec. 16, 1983; 53 FR 18058, May 19, 1988; 59 FR 8753, Feb. 23, 1994; 59 FR 60324, Nov. 23, 1994; 73 FR 76794, 76824, Dec. 17, 2008] LEXISNEXIS’ CODE OF FEDERAL REGULATIONS Copyright © 2023 All rights reserved. End of Document 62 FR 16370 Vol. 62, No. 65, Part III, Friday, April 4, 1997 Rules and Regulations Reporter 62 FR 16370 * Federal Register > 1997 > April > Friday, April 4, 1997 > Rules and Regulations > DEPARTMENT OF TRANSPORTATION (DOT) -- Federal Highway Administration (FHWA) Title: Regulatory Guidance for the Federal Motor Carrier Safety Regulations Action: Regulatory guidance. Agency DEPARTMENT OF TRANSPORTATION (DOT) > Federal Highway Administration (FHWA) Administrative Code Citation 49 CFR Chapter III Synopsis [*16370] SUMMARY: This document presents interpretive guidance material for the Federal Motor Carrier Safety Regulations (FMCSRs) now contained in the FHWA's Motor Carrier Regulation Information System (MCREGIS). The FHWA has consolidated previously issued interpretations and regulatory guidance materials and developed concise interpretive guidance in question and answer form for each part of the FMCSRs. These questions and answers are generally applicable to drivers, commercial motor vehicles, and motor carrier operations on a national basis. All prior interpretations and regulatory guidance of the FMCSRs issued previously in the Federal Register, as well as FHWA memoranda and letters, may no longer be relied upon as authoritative insofar as they are inconsistent with the guidance published today. Many of the interpretations of the FMCSRs published on November 23, 1977, and the interpretations of the Inspection, Repair, and Maintenance regulations published on July 10, 1980, have been revised. These revisions are reflected in the new questions and answers. This document also includes regulatory guidance issued since November 17, 1993, when the agency last published a collection of such guidance. Future regulatory guidance will be issued within the MCREGIS which will be kept current in the FHWA's Office of Motor Carrier Standards. The MCREGIS will be updated periodically and published in the Federal Register so that interested parties may have ready reference to official interpretations and guidance regarding the FMCSRs. This 62 FR 16370, *16370 guidance will provide the motor carrier industry with a clearer understanding of the applicability of many of the requirements contained in the FMCSRs in particular situations. Text SUPPLEMENTARY INFORMATION: This document is an update of the notice of regulatory guidance for the FMCSRs issued by the FHWA November 17, 1993 (58 FR 60734). This notice contains previously issued, revised, and new regulatory guidance pertaining to Title 49, Code of Federal Regulations (CFR), Parts 40, 325, 382, 383, 384, 386, 387, 390 to 393, 395 to 397, and 399 of the FMCSRs. In some instances, old regulatory guidance has been removed. The information published in this document supersedes all previously issued interpretations and regulatory guidance, to the extent they are inconsistent with the guidance published today, including that published on November 23, 1977, at 42 FR 60078, and on July 10, 1980, at 45 FR 46425. To the maximum extent possible, all valid prior opinions have been incorporated into this document. This notice is consistent with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, March 29, 1996). The FHWA issued a final rule on March 8, 1996, which codified most of the regulatory guidance for CDL waivers under § 383.3 (61 FR 9546). Guidance concerning CDL waivers had been issued under § 383.7. From the 1993 Regulatory Guidance notice for § 383.7, only questions 7(a), 8, 9, 10, 16, 17, 21, and 22 still remain. These questions and guidance are now listed as guidance for § 383.3, where the CDL waivers have been codified. Guidance for question 3 under § 383.5 has been changed to reflect a more expansive version of the same guidance in existence prior to the November 1993 Notice. Guidance for question 2 under § 383.93, as it appeared in the 1993 notice, has been revised to clarify the existing guidance. Guidance for question 1 under § 390.31 has been expanded to include guidance derived from a Final Order issued by the Department (58 FR 62467). Guidance for question 1 of § 391.1 has been changed to remove a reference to part 391 subpart H. Guidance for question 6 under § 391.11 has been moved to § 392.9. Guidance for question 2 under § 391.27 has been removed: violations of size and weight laws are not considered violations of motor vehicle traffic laws. Question 1 for § 391.41 has been changed for clarity. Guidance for question 1 under § 391.43 has been expanded for greater clarity. Guidance for § 392.62 has been moved to § 391.41. Guidance for question 1 of § 393.51, question 1 of § 393.65, question 1 of § 393.75, question 5 of § 393.100, and question 1 of § 393.106 have been amended for clarity. Guidance for question 1 under § 393.95 has been incorporated into the regulations (58 FR 34708) and is therefore removed from this document. Guidance for § 395.1 has been reordered to consecutively follow the paragraphs within the section. Question 15 under § 395.2 was expanded by guidance issued June 11, 1995. Question 20 under § 395.2 has been revised to reflect an interpretation previously issued August 15, 1991, treating the same issue in a more explicit manner. Question 1 under § 397.1 has been changed to more accurately explain who must comply with part 397. The 1994 Regulatory Guidance booklet, which reprinted the interpretations issued in the Federal Register in 1993, is available in the public docket on this rulemaking for reference 62 FR 16370, *16370 The FHWA issued an advance notice of proposed rulemaking on November 5, 1996 (61 FR 57252) concerning the hours of service regulations (49 CFR part 395). On page 57258 of the notice, the FHWA erroneously indicated that an interpretation which allowed CMVs to be driven from motels to restaurants in the vicinity as "off-duty time" had recently been rescinded. The FHWA intended to rescind recent interpretations that describe conditions under which a CMV may be used as a "personal conveyance" (issued August 10, 1995), and address the entire issue of personal conveyance through notice and comment rulemaking. Question 8 under § 395.2 has been expanded by guidance issued November 18, 1996, and placed more appropriately under § 395.8 (see § 395.8, question 27). All prior interpretations of personal conveyance are invalid. Regulations Since 1993, new interpretive guidance has been issued for, or existing guidance has been removed from, the following sections: 49 CFR Part 40 §§ 40.3, 40.21, 40.23, 40.25, 40.29, 40.31, 40.33, 40.35, 40.39, 40.69, 40.81, 40.93, Special Topics-Requirements for Random Testing, Special Topics-Procedures for Handling and Processing a Split Specimen 49 CFR Part 382 §§ 382.103, 382.105, 382.107, 382.109, 382.113, 382.115, 382.204, 382.205, 382.213, 382.301, 382.303, 382.305, 382.307, 382.401, 382.403, 382.405, 382.413, 382.501, 382.507, 382.601, 382.603, 382.605, Subpart B-Prohibitions, Special Topics-Responsibility for Payment for Testing, Special Topics- [*16371] Multiple Service Providers, Special Topics-Medical Examiners Acting as MRO, Special Topics-Biennial (Periodic) Testing Requirements 49 CFR Part 383 §§ 383.3, 383.5, 383.7, 383.31, 383.71, 383.73, 383.91, 383.93, Special Topics- International 49 CFR Part 384 §§ 384.209, 384.211 49 CFR Part 387 §§ 387.9, 387.15, 387.39 49 CFR Part 390 §§ 390.3, 390.5, 390.15, Special Topics-Serious Pattern of Violations 49 CFR Part 391 §§ 391.1, 391.11, 391.27, 391.41, 391.43, 391.49, 391.51, 391.63 49 CFR Part 392 §§ 392.5, 392.9, 392.62 49 CFR Part 393 §§ 393.11, 393.42, 393.48, 393.51, 393.65, 393.75, 393.89, 393.95, 393.100, 393.106, 393.201 49 CFR Part 395 §§ 395.1, 395.2, 395.8, 395.13, 395.15 49 CFR Part 396 §§ 396.11, 396.17, 396.23 Additional guidance will continue to be published in future issues of the Federal Register. The FHWA will be modifying or removing numerous regulations as part of President Clinton's Regulatory Reform Initiative. Many of these changes will have an impact on the regulatory guidance in this document. These changes will be reflected in future issues of the 62 FR 16370, *16371 Federal Register. Members of the motor carrier industry and other interested parties may access the guidance in this document through the FHWA's Electronic Bulletin Board System (FEBBS) using a microcomputer and modem. The FEBBS is a read-only facility. Access numbers for FEBBS are (202) 366-3764 for the Washington, DC area, or toll-free at (800) 337-3492. The system supports a variety of modem speeds up to 14,400 baud line speeds, and a variety of terminal types and protocols. Modems should be set to 8 data bits, full duplex, and no parity for optimal performance. Once a connection has been established, new users will have to go through a registration process. Instructions are given on the screen. FEBBS is mostly menu-drive and hot keys are indicated with "< >" enclosing the hot key. After logging on to FEBBS and arriving at the MAIN MENU, select for Conference; then for Motor Carrier; then either again for MCREGIS Questions and Answers, or for Information (more detailed help). For Technical Assistance to gain access to FEBBS, contact: FHWA Computer Help Desk, HMS-40, room 4401, 400 Seventh Street, SW, Washington, DC 20590 (202) 366-1120. Specific questions addressing any of the interpretive material published in this document may be directed to the contact persons listed above, the FHWA Regional Offices, or the FHWA Division Office in each State. For ease of reference, the following listing of acronyms used throughout this document is provided: Appendix G-The Minimum Periodic Inspection Standards published as an appendix to the Federal Motor Carrier Safety Regulations BAT-Breath Alcohol Technician CDL-Commercial Driver's License CDLIS-Commercial Driver's License Information System CFR-Code of Federal Regulations CMV-Commercial Motor Vehicle CMVSA-Commercial Motor Vehicle Safety Act of 1986 COE-Cab-over-engine truck tractor C/TPA-Consortium or Third-Party Administrator CVSA-Commercial Vehicle Safety Alliance DHHS-SAMHSA-Department of Health and Human Services, Substance Abuse Mental Health Services Administration DOT-U.S. Department of Transportation DVIR-Driver Vehicle Inspection Report DWI-Driving While Intoxicated EAP-Employee Assistance Program EPA-U.S. Environmental Protection Agency FHWA-Federal Highway Administration FMCSRs-Federal Motor Carrier Safety Regulations 62 FR 16370, *16371 FMVSS-Federal Motor Vehicle Safety Standards (developed and issued by the National Highway Traffic Safety Administration) FR-Federal Register FRSI-Farm-Related Service Industries GCWR-Gross Combination Weight Rating GVW-Gross Vehicle Weight GVWR-Gross Vehicle Weight Rating HM-Hazardous Materials HMRs-Hazardous Materials Regulations HMTUSA-Hazardous Materials Transportation Uniform Safety Act of 1990 ICC-Interstate Commerce Commission Forms MCS-90 and MCS-90B-Endorsements for Motor Carrier Policies of Insurance for Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980 issued by an insurer MCSA-Motor Carrier Safety Act of 1984 MPH-Miles Per Hour MRO-Medical Review Officer NDR-National Driver Register NHTSA-National Highway Traffic Safety Administration within DOT RDMC-Regional Director of Motor Carriers SAP-Substance Abuse Professional SSN-Social Security Number STAA-Surface Transportation Assistance Act of 1982 STT-Screening Test Technician U.S.C.-United States Code Table of Contents Part 40-Procedures for Transportation Workplace Drug and Alcohol Testing Programs Part 325-Compliance With Interstate Motor Carrier Noise Emission Standards Part 382-Controlled Substances and Alcohol Use and Testing Part 383-Commercial Driver's License Standards; Requirements and Penalties Part 384-State Compliance With Commercial Driver's License Program 62 FR 16370, *16371 Part 386-Rules of Practice for Motor Carrier Safety and Hazardous Materials Proceedings Part 387-Minimum Levels of Financial Responsibility for Motor Carriers Part 390-Federal Motor Carrier Safety Regulations; General Part 391-Qualifications of Drivers Part 392-Driving of Motor Vehicles Part 393-Parts and Accessories Necessary for Safe Operation Part 395-Hours of Service of Drivers Part 396-Inspection, Repair and Maintenance Part 397-Transportation of Hazardous Materials; Driving and Parking Rules Part 399-Employee Safety and Health Standards Regulatory Guidance Part 40-- Procedures for Transportation Workplace Drug and Alcohol Testing Programs Sections Interpreted 40.3Definitions 40.21The Drugs 40.23Preparation for testing 40.25Specimen collection procedures 40.29Laboratory analysis procedures 40.31Quality assurance and quality control 40.33Reporting and review of results 40.35Protection of employee records 40.39Use Of DHHS-certified laboratories 40.69Inability to provide an adequate amount of breath 40.81Availability and disclosure of alcohol testing information about individual employees 40.93The screening test technician Special Topics-Requirements for random testing 62 FR 16370, *16371 Special Topics-Procedures for Handling and Processing a Split Specimen Section 40.3 Definitions Question 1: May a Doctor of Chiropractic, holding a Certified Addiction Professional degree, serve as an MRO? Guidance: A Doctor of Chiropractic, holding a Certified Addiction Professional degree, is not considered to be a licensed medical doctor or doctor of osteopathy and, therefore, cannot serve as an MRO. Question 2: What are the qualifications and responsibilities of the MRO? Are MROs required to be certified? Guidance: Section 40.3 defines the qualifications for an MRO and § 40.33 specifies the MRO's responsibilities. An MRO is defined as a licensed physician (medical doctor or doctor of osteopathy) responsible for receiving laboratory [*16372] results generated by an employer's drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's confirmed positive test result together with his or her medical history and any other relevant biomedical information. An MRO is responsible for reviewing and interpreting confirmed positive test results obtained through the employer's testing program. The DOT does not require any certification of MROs at the present time. However, there are several national professional organizations which provide MRO certification. Section 40.21 The Drugs Question 1: Is testing for additional drugs authorized? Must a separate specimen be obtained? Guidance: Under part 40, an employer must test for the following drugs: marijuana, cocaine, amphetamines, opiates, and phencyclidine. An employer may not test for any other substances under DOT authority. Part 40 does not, however, prohibit an employer from testing for other controlled substances as long as that testing is done under the authority of the employer. Employers in the transportation industry who establish a drug testing program that tests beyond the five drugs currently required by part 40 must also make clear to their employees what testing is required by DOT authority and what testing is required by the company. Additionally, employers must ensure that DOT urine specimens are collected in accordance with the provisions outlined in part 40 and that a separate specimen collection process including a separate act of urination is used to obtain specimens for company testing programs. Question 2: Should labs conduct tests for five (5) drugs even if the drug testing custody and control form fails to indicate what tests are to be performed? Guidance: Part 40 indicates that DOT agency drug testing programs require that employers test for marijuana, cocaine, opiates, amphetamines, and phencyclidine (§ 40.21). All DOT specimens, therefore, must be tested for the above five categories of drugs even if the accompanying drug testing custody and control form fails to indicate this. 62 FR 16370, *16372 While the DOT does not view this type of collection site error as a fatal flaw, it nevertheless jeopardizes the integrity of the entire collection process and could lead to a challenge and subsequent third party review. These errors should be addressed with the site supervisor in the hope of preventing future mistakes. Section 40.23 Preparation for Testing Question 1: On the testing of a split specimen, is it necessary to maintain anonymity of a person, at the laboratory level, when both the primary laboratory and the laboratory testing the split may have fees and could directly bill the employee? Guidance: Section 40.23(a) addresses mandatory use of the Federal Drug Testing Custody and Control Form in DOT urine collection and testing. This paragraph states, in part, that "* * * personal identifying information on the donor (other than the social security number or other employee ID number) may not be provided to the laboratory." If circumstances arise in which the MRO orders a test of the split specimen, at the request of the employee, no additional identifying information on the employee may be provided to the laboratory that will be testing the split specimen. As directed by § 40.33(f), "* * * The MRO shall direct, in writing, the laboratory to provide the split specimen to another DHHS-certified laboratory for analysis." This request would reference only items contained on the face of the Drug Testing Custody and Control Form (e.g., Specimen Identification No., SSN or Employee ID No., Collection Date, etc.); the MRO would not specify the employee's name. Should a personal check (bearing the employee's name) accompany the request (e.g., a letter from the MRO), the MRO should not make any particular reference linking the split request with the person signing the check. In actuality, the primary laboratory will most likely bill the employer for the cost of sending the split specimen to the split laboratory; the split laboratory will normally require a cashier's check, money order, or an account to be set up (generally by the employer) prior to initiating processing. Question 2: In a case where an employee is providing a urine specimen and a breath test is conducted at the same time, may a laboratory receive both the Federal Drug Testing Custody and Control Form (with the specimens for testing) and the employer's copy of the Breath Alcohol Testing Form (with the test results) from the collection site? Guidance: The DOT provided clarification in its Guidance on the Role of Consortia and Third-Party Administrators in DOT Drug and Alcohol Testing Programs published on July 25, 1995 in the Federal Register which stated in part "* * * MROs and BATs must send final individual test results directly to the actual employer as soon as the results are available * * * results may be maintained afterwards by the C/TPA * * * while there is no objection to the MRO or BAT transmitting results simultaneously both to the employer and to the C/TPA, it is not appropriate for the MRO or BAT to send the results only to the C/TPA, which subsequently retransmits them to the employer." A laboratory, regardless of what type of arrangement it has with the employer, is prohibited from receiving the employer's copy of the Breath Alcohol Testing Form together with the Federal Drug Testing Custody and Control Form(s) which accompany the urine specimen. 62 FR 16370, *16372 The breath testing form contains individual identifying information. The DOT rule specifically states that this information may not be provided to a laboratory. However, a laboratory functioning as a C/TPA may receive the employer's copies of the Federal Drug Testing Custody and Control Form and the employer's copy of the Breath Alcohol Testing Form from the collection site under the following conditions: a. The employer's copy of the Federal Drug Testing Custody and Control Form (Copy 7) must not be included with the laboratory copies (Copies 1 and 2) which accompany the urine specimen. b. The employer's copies of the Federal Drug Testing Custody and Control Form and the Breath Alcohol Testing Forms must not be received by the accession/receiving (testing) section of the laboratory. These procedures should prevent that portion of the laboratory which conducts the drug analysis from having access to the identity (from the alcohol testing form) of the donor. The DOT rule requires the BAT immediately to transmit the results to the employer, regardless of what procedures have been established for providing to the employer or the C/TPA, the employer's copy of the breath testing form. In all instances, it is the employer (not the C/TPA) who designates in writing to the BAT or the BAT's company, who the employer's agent is and the procedures that the employer wants the BAT to use for transmission of data and forms. Question 3: Is a specific MRO name required in Step 1 on the Federal Drug Testing Custody and Control Form, or may a clinic, hospital, health care organization, or MRO company name appear in the MRO Name and Address area? Guidance: The DOT has determined that a specific physician's name and address is required in Step 1 of the [*16373] Federal Drug Testing Custody and Control Form as opposed to only a generic clinic, health care organization, or company name. The name should be that of a responsible physician rather than an administrative staff member or other company official. However, a company name may appear as part of the address, provided it is followed by or includes the MRO's name. Collection sites send copies of the MRO's custody and control form to this address, and drug testing laboratories use it to submit laboratory results to the MRO. The use of the MRO name will preclude potential compromises of confidentiality. In many cases, where only the name of a clinic, hospital or company appears on the mailing address, the laboratory results are sent to the clinic or hospital and are either circulated through numerous departments or, in some cases, never reach the MRO. The physician named in Step 1 may be the MRO who will actually perform the verification review or the name of a physician within the practice (company), but not necessarily the one who will actually perform the verification (in those cases where there is more than one MRO working in that office or company). Question 4: Is the collector's signature required on the chain of custody section of drug testing custody and control form? 62 FR 16370, *16373 Guidance: The collector's signature is required in both the "received by" and the "released by" spaces in Step 6 of the drug testing custody and control form. Part 40 Appendix A specifies that the form shall provide both "received by" and "released by" entries of the collector's signature and printed names (see the instructions on the back of Appendix A, copy 7, Step 6. Combining these entries is not authorized by the rule. Question 5: May the drug testing custody and control form be used for non-DOT tests? Guidance: Employee drug testing conducted under local, State, or private authority must not be represented to the employee as being Federally mandated or required. The use of the custody and control form required under 49 CFR part 40 conveys that the testing is being conducted in accordance with applicable Federal regulations. A "look-alike" form that deletes references to DOT, Part 40, and Federal requirements may be used for non-DOT testing. Question 6: Is collection of blood authorized? May blood specimens be supported by the drug testing custody and control form? May blood test results be used to take DOT-required administrative actions? Guidance: The collection of blood for alcohol or drug testing under DOT authority is not authorized. Therefore, while a company, under its own authority, may require a blood specimen to be collected and tested for drugs and/or alcohol under certain circumstances, it is not acceptable for the company-required blood specimen to be supported by the same custody and control form that accompanies a DOT-required urine specimen. If a urine specimen for a DOT reasonable suspicion test is rejected for testing at the laboratory, results from a blood specimen collected in accordance with a company policy could be used to take action against an employee depending upon the drug testing policy established by that company. Under no circumstances, however, may the results of the blood test be used to take administrative or disciplinary action against an employee using DOT authority, for the reasons cited above. Question 7: Is the collector required to sign or initial the shipping container label? Guidance: Sections 40.23(c) and 40.25(h) describe the requirements for packaging the specimen and custody and control form in preparation for shipment to the laboratory. Section 40.23(c) states that the shipping container must be sealed and initialed to prevent undetected tampering. Section 40.25(h) states that the collection site person shall sign and enter the date specimens were sealed in the shipping containers for shipment. The DOT has determined that initialing and dating the seal by the collection site person is sufficient to meet the intent of the regulation. Question 8: How and to whom are copies of drug testing custody and control forms distributed? Guidance: The historically acceptable procedures for handling the custody and control form have been as follows: Parts 1, 2, and 3 must accompany the urine specimen in a sealed shipping container to the laboratory; Part 3 (Split Specimen) must be retained by the laboratory in case the split specimen must be sent to a second laboratory; Part 4 must be sent 62 FR 16370, *16373 from the collection site directly to the physician (MRO); Part 5 is given to the donor at the collection site; Part 6 is retained by the collection site personnel; and Part 7 is provided to the employer representative. It is unacceptable for the MRO copy of the form to accompany the urine specimen to the laboratory. Clearly the intent of the regulation is for the urine specimen and Parts 1, 2, and 3 of the Federal custody and control form to be sent directly from the collection site to the laboratory, and the MRO (Part 4) copy of the custody and control form to be sent d