South Carolina Code of Regulations
Chapter 38 - DEPARTMENT OF PUBLIC SAFETY
Article 5 - STATE TRANSPORT POLICE REGULATIONS
Subarticle 1 - UNMANUFACTURED FOREST PRODUCTS TRUCKING REGULATIONS
Part 38-382 - CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING
Subpart A - GENERAL
Section 38-382.107 - Definitions
Words or phrases used are defined in Sections 38-386.2 and 38-390.5 of this regulation, and Section 40.3 of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs, except as provided below:
Actual knowledge for the purpose of subpart B, means actual knowledge by an employer that a driver has used alcohol or controlled substances based on the employer's direct observation of the employee, information provided by the driver's previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances or an employee's admission of alcohol or controlled substance use, except as provided in Regulation Regulation 38-382.121. Direct observation as used in this definition means observation of alcohol or controlled substances use and does not include observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing under Regulation 38-382.307.
Alcohol means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol.
Alcohol concentration (or content) means the alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath test.
Alcohol use means the drinking or swallowing of any beverage, liquid mixture or preparation (including any medication), containing alcohol.
Commerce means:
(1) Any trade, traffic or transportation within the jurisdiction of the United States between a place in a State and a place outside of such State, including a place outside of the United States; and
(2) Trade, traffic, and transportation in the United States which affects any trade, traffic, and transportation described in paragraph (1) of this definition.
Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle:
(1) Has a gross combination weight rating of 11,794 or more kilograms (26,001 or more pounds) inclusive of a towed unit with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or
(2) Has a gross vehicle weight rating of 11,794 or more kilograms (26,001 or more pounds); or
(3) Is designed to transport 16 or more passengers, including the driver; or
(4) Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act ( 49 U.S.C. 51 O3(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations ( 49 CFR part 172, subpart F).
Confirmation (or confirmatory) drug test means a second analytical procedure performed on a urine specimen to identify and quantify the presence of a specific drug or drug metabolite.
Confirmation (or confirmatory) validity test means a second test performed on a urine specimen to further support a validity test result.
Confirmed drug test means a confirmation test result received by an MRO from a laboratory.
Consortium/Third Party Administrator (C/TPA) means a service agent that provides or coordinates one or more drug and/or alcohol testing services to DOT-regulated employers. C/TPAs typically provide or coordinate the provision of a number of such services and perform administrative tasks concerning the operation of the employers' drug and alcohol testing programs. This term includes, but is not limited to. groups of employers who join together to administer, as a single entity, the DOT drug and alcohol testing programs of its members (e.g., having a combined random testing pool). C/TPAs are not "employers".
Controlled substances mean those substances identified in Section 40.85 of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs.
Designated employer representative (DER) is an individual identified by the employer as able to receive communications and test results from service agents and who is authorized to take immediate actions to remove employees from safety-sensitive duties and to make required decisions in the testing and evaluation processes. The individual must be an employee of the company. Service agents cannot serve as DERs.
Disabling damage means damage which precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs: (1)Inclusions. Damage to motor vehicles that could have been driven, but would have been further damaged if so driven; (2)Exclusions: (i)Damage which can be remedied temporarily at the scene of the accident without special tools or parts, (ii)Tire disablement without other damage even if no spare tire is available, (iii) Headlight or taillight damage, (iv)Damage to turn signals, horn, or windshield wipers which make them inoperative.
DOT Agency means an agency (or "operating administration") of the United States Department of Transportation administering regulations requiring alcohol and/or drug testing ( 14 CFR parts 61, 63, 65, 121, and 135; 49 CFR parts 199, 219, 382, and 655), in accordance with part 40.
Driver means any person who operates a commercial motor vehicle. This includes, but is not limited to: Full time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent owner-operator contractors.
Employer means a person or entity employing one or more employees (including an individual who is self-employed) that is subject to DOT agency regulations requiring compliance. The term means the entity responsible for overall implementation of DOT drug and alcohol program requirements, including individuals employed by the entity who take personnel actions resulting from violations and any applicable DOT agency regulations. Service agents are not employers for the purposes of 38-382.
Licensed medical practitioner means a person who is licensed, certified, and/or registered, in accordance with applicable Federal, State, local, or foreign laws and regulations, to prescribe controlled substances and other drugs.
Performing (a safety-sensitive junction) means a driver is considered to be performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any safety-sensitive functions.
Positive rate for random drug testing means the number of verified positive results for random drug, tests conducted under 38-382 plus the number of refusals of random drug tests required by 38-382, divided by the total number of random drug tests results (i.e., positives, negatives, and refusals) under 38-382.
Refuse to submit (to an alcohol or controlled substances test) means that a driver:
(1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see Section 40.6Ha of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs);
(2) Fail to remain at the testing site until the testing process is complete. Provided, that an employee who leaves the testing site before the testing process commences (see Section 40.63(c) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs) a pre-employment test is not deemed to have refused to test;
(3) Fail to provide a urine specimen for any drug test required by 38-382 or DOT agency regulations. Provided, that an employee who does not provide a urine specimen because he or she has left the testing site before the testing process commences (see Section 40.63(c) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs) for a pre-employment test is not deemed to have refused to test;
(4) In the case of a directly observed or monitored collection in a drug test, fails to permit the observation or monitoring of the driver's provision of a specimen (see Sections 40.67(1) and 40.69(g) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs;
(5) Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see Section 40.193(d)(2) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs;
(6) Fail or declines to take a second test the employer or collector has directed the driver to take;
(7) Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under Section 40.193(d) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs. In the case of a pre-employment drug test, the employee is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment;
(8) Fail to cooperate with any part of the testing process (e.g.. refuse to empty pockets when so directed by the collector, behave in a confrontational way that disrupts the collection process); or
(9) Is reported by the MRO as having a verified adulterated or substituted test result.
Safety-sensitive function means all time from the time a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work. Safety-sensitive functions shall include:
(1) All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer;
(2) All time inspecting equipment as required by Regulations 38-392.7 and 38-392.8 of these regulations or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
(3) All time spent at the driving controls of a commercial motor vehicle in operation;
(4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of Regulation Regulation 38-393.76 of this regulation);
(5) AH time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
Screening test (or initial test) means:
(1) In drug testing, a test to eliminate "negative" urine specimens from further analysis or to identify a specimen that requires additional testing for the presence of drugs,
(2) In alcohol testing, an analytical procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath or saliva specimen.
Stand-down means the practice of temporarily removing an employee from the performance of safety-sensitive functions based only on a report from a laboratory to the MRO of a confirmed positive test for a drug or drug metabolite, an. adulterated test, or a substituted test, before the MRO has completed verification of the test results.
Violation rate for random alcohol testing means the number of 0.04 and above random alcohol confirmation test results conducted under 38-382 plus the number of refusals of random alcohol tests required by 38-382, divided by the total number of random alcohol screening tests (including refusals) conducted under 38-382.
