The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL



COUNTIES:

MOTOR VEHICLES:

Alcohol and drug testing of county road commission employees who do not operate vehicles


County road commission supervisory employees, who neither hold a commercial driver's license nor operate a commercial motor vehicle, but who supervise, assign, or dispatch other road commission employees that drive commercial motor vehicles, are not subject to drug and alcohol testing procedures required by the Motor Carrier Safety Act of 1963, 1963 PA 181, as amended by 1995 PA 265, MCL 480.11 et seq; MSA 9.1666(1) et seq.


Opinion No. 6945

July 22, 1997


Honorable Howard Wetters
State Representative
The Capitol
Lansing, MI 48913


You have asked whether county road commission supervisory employees, who neither hold a commercial driver’s license nor operate a commercial motor vehicle, but who supervise, assign, or dispatch other road commission employees who drive commercial motor vehicles, are subject to drug and alcohol testing procedures required by the Motor Carrier Safety Act of 1963, 1963 PA 181, as amended by 1995 PA 265, MCL 480.11 et seq; MSA 9.1666(1) et seq.

The Motor Carrier Safety Act of 1963 expressly adopted through incorporation by reference1, the Federal Motor Carrier Safety Regulations codified in 49 CFR Part 382 (1995), relating to alcohol and controlled substance testing of drivers of certain commercial vehicles. This amendment was enacted to fulfill a commitment made to the federal government to conform with federal safety regulations adopted under the federal motor carrier safety act, 49 USC 31136, by including changes made in the federal regulations so as to avoid the loss of "federal funding for transportation programs." House Legislative Analysis, HB 5215, November 28, 1995.

A review of the history of 49 CFR Part 382 (1995) reveals that it was originally promulgated on February 15, 1994, 59 Fed Reg 7505 (1994), and was revised and amended in 1994 and 1995. As so revised and amended, it is codified in 49 CFR 382.101 et seq (1995). These are the regulations incorporated into MCL 480.11a; MSA 9.1666(1), except as modified by that statute.

49 CFR Part 382 (1995) was later revised on March 8, 1996, 61 Fed Reg 9546, 9553 (1996), and was amended on July 17, 1996. 61 Fed Reg 37224 (1996). These later revisions and amendments, codified in 49 CFR Part 382 (1996), have not been incorporated and are not part of MCL 480.11a; MSA 9.1666(1). Only those provisions of 49 CFR 382.101 et seq (1995) in effect on January 8, 1996, are incorporated into MCL 480.11a; MSA 9.1666(1).

A plain reading of 49 CFR Part 382 (1995) demonstrates that only drivers of commercial vehicles are subject to the following requirements: Preemployment alcohol and substance abuse testing as provided in 49 CFR 382.301 (1995); post-accident testing as provided in 49 CFR 382.303 (1995); random testing as provided in 49 CFR 382.305 (1995), and reasonable suspicion testing as provided in 49 CFR 382.307 (1995). 49 CFR Part 382 (1995) does address supervisory employees of drivers of commercial vehicles, but only requires that they receive specified training to evaluate performance indicators of probable alcohol misuse and use of controlled substances. 49 CFR 382.603 (1995). However, if a supervisory employee also drives a commercial vehicle for the county road commission, the alcohol and controlled substance testing requirements apply to such supervisory employee. 49 CFR 382.103(b)(1995).

It is my opinion, therefore, that county road commission supervisory employees, who neither hold a commercial driver's license nor operate a commercial motor vehicle, but who supervise, assign, or dispatch other road commission employees that drive commercial motor vehicles, are not subject to drug and alcohol testing procedures required by the Motor Carrier Safety Act of 1963, 1963 PA 181, as amended by 1995 PA 265, MCL 480.11 et seq; MSA 9.1666(1) et seq.



FRANK J. KELLEY
Attorney General

1 The Legislature may incorporate by reference, within a statute, the provisions of a federal statute or federal rules and regulations. City of Pleasant Ridge v Governor, 382 Mich 225, 243-246; 169 NW2d 625 (1969). Changes in federal statutes or regulations must be published and reenacted by the Legislature as required by Const 1963, art 4, 25, before they can become part of a Michigan statute. OAG, 1981-1982, No 5883, pp 101,103 (April 10, 1981).