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§382.109 — Preemption of State and local laws

(a)

Except as provided in paragraph (b) of this section, this part preempts any State or local law, rule, regulation, or order to the extent that:

(1)

Compliance with both the State or local requirement in this part is not possible; or

(2)

Compliance with the State or local requirement is an obstacle to the accomplishment and execution of any requirement in this part.

(b)

This part shall not be construed to preempt provisions of State criminal law that impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to transportation employees, employers, or the general public.

§382.109 — DOT Regulatory Guidance

Question 1: An employer is required by State or local law, regulation, or order to bargain with unionized employees over discretionary elements of the U.S. Department of Transportation (DOT) alcohol and drug testing regulations (e.g., selection of DHHS-approved laboratories or Medical Review Officer (MRO)s). May the employer defer the 1995 or 1996 implementation dates for testing employees until the collective bargaining process has produced agreement on these discretionary elements, or must the employer implement testing as required by part 382?

Guidance: The Federal Highway Administration (FHWA) provided large employers 45 weeks and small employers 97 weeks collectively to bargain the discretionary elements of the part 382 testing program. An employer must implement alcohol and controlled substances testing in accordance with the schedule in §382.115. If observance of the collective bargaining process would make it impossible for the employer to comply with these deadlines, §382.109(a)(1) preempts the State or local bargaining requirement to the extent needed to meet the implementation date.

Reason: