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

Current through Register Vol. 48, No. 6, June 28, 2024
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.