DOT Rule 49 CFR Part 40 Section 40.3 Q&A

§40.3                                                                             09/01

QUESTION:

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

ANSWER:

• The employer (e.g., the owner of a small business) may act personally as the DER.

• The employer may also appoint an employee or employees to play this role.

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

• The employer may not delegate the DER role to a service agent. Only the employer or an actual employee of the employer may perform this function.

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

§40.3; §40.15(d)                                                    09/01

QUESTION:

If a C/TPA is hired as an “independent safety consultant” that executes all aspects of the employer’s safety and drug and alcohol testing programs, can the C/TPA act as a DER?

ANSWER:

• Service agents are prohibited from acting as DERs under any circumstances.

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

§ 40.3                                                                  07/17

QUESTION:

Is the United States Coast Guard (USCG) a DOT Agency with respect to the DOT’s drug and alcohol testing regulation, 49 CFR Part 40?

ANSWER:

• Although included in the definition of a DOT Agency [see §40.3], the USCG is a DOT Agency with respect to Part 40 only when the USCG regulation [e.g., 46 CFR Part 16 or 46 CFR Part 4] incorporates Part 40 to carry out its chemical testing regulation.  For example:

  • With respect to drug testing, the USCG regulation at 46 CFR §16.113(a) states, “Drug testing programs required by this part must be conducted in accordance with 49 CFR part 40, Procedures for Transportation Workplace Testing Programs.”

  • With respect to alcohol testing and submitting alcohol testing annual data to the USCG, the USCG regulation at 46 CFR §16.500(a)(2) states, “The provisions in 49 CFR part 40 for alcohol testing do not apply to the Coast Guard or to marine employers, and alcohol testing data is not required or permitted to be submitted by this section.”

• Because the USCG regulation, 46 CFR Part 16, incorporates Part 40 for drug testing, the USCG is a DOT agency for the drug testing component of Part 40.  But because Part 40 does not apply to alcohol testing under 46 CFR Part 16, the USCG is not a DOT Agency with respect to the alcohol testing component of 49 CFR Part 40, including subparts J–N.