Rule2024-12749
Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Technical Amendments
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 21, 2024
Effective
June 21, 2024
Issuing agencies
Transportation Department
Abstract
The U.S. Department of Transportation is making a series of technical amendments to its drug testing procedures rule, which was effective June 1, 2023. The purpose of these technical amendments is to clarify certain provisions of the rule and address omissions of which we have become aware since the publication of the final rule.
Full Text
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<title>Federal Register, Volume 89 Issue 120 (Friday, June 21, 2024)</title>
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[Federal Register Volume 89, Number 120 (Friday, June 21, 2024)]
[Rules and Regulations]
[Pages 51981-51983]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12749]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[Docket DOT-OST-2021-0093]
RIN 2105-AE94
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs: Technical Amendments
AGENCY: Office of the Secretary, Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: The U.S. Department of Transportation is making a series of
technical amendments to its drug testing procedures rule, which was
effective June 1, 2023. The purpose of these technical amendments is to
clarify certain provisions of the rule and address omissions of which
we have become aware since the publication of the final rule.
DATES: This final rule is effective June 21, 2024.
FOR FURTHER INFORMATION CONTACT: Bohdan Baczara, Deputy Director,
Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey
Avenue SE, Washington, DC 20590; telephone number 202-366-3784;
<a href="/cdn-cgi/l/email-protection#531c171203102436313e323a3f13373c277d343c25"><span class="__cf_email__" data-cfemail="59161d18091a2e3c3b34383035193d362d773e362f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: DOT published amended procedures for its
drug testing program (49 CFR part 40) on May 2, 2023 (88 FR 27596).
This rule went into effect on June 1, 2023. The final rule authorized
oral fluid drug testing as an additional methodology for employers to
use as a means of achieving the safety goals of the program. We have
determined instances in which the text of various sections of the
regulation should be clarified and errors or omissions that should be
corrected. This technical amendment is intended to make these
clarifications and corrections.
Section 40.14 What collection information must employers provide to
collectors?
In the introductory sentence, we are removing the word `urine'
because, as described in the preamble to the May 2023 final rule and
consistent with numerous other deletions of the term ``urine'' in
instances where the rule was intended to cover both urine and oral
fluid specimens, the information the employer provides to collectors
applies to all specimen collections (urine and oral fluid). Also, in
bullet `(e)' we are fixing an incorrect reference. The reference should
read Sec. 40.36 and not Sec. 40.35. Section 40.14(e) requires
employers to provide to collectors the designated employer
representative (DER) information required elsewhere in part 40. Section
40.36 specifies the required DER information and is the correct
reference. Section 40.35 specifies training requirements for oral fluid
collectors and is not the correct reference.
Subpart C--Urine Collection Personnel
As described in the preamble to the May 2023 final rule and
consistent with numerous other deletions of the term ``urine'' in
instances where the rule was intended to cover both urine and oral
fluid specimens, Subpart C provides instructions for both types of
specimen collectors, urine and oral fluid. With that in mind, we are
removing the word
[[Page 51982]]
`Urine' from the heading and replacing it with the word `Specimen'.
Section 40.81 What laboratories may be used for DOT drug testing?
Before oral fluid drug testing was authorized in the DOT drug
testing program, laboratories conducting DOT drug testing could only
test urine specimens. With oral fluid drug testing now authorized, we
are removing the word `required' from Sec. 40.81(a) as both urine and
oral fluid drug testing are each authorized, and urine testing is no
longer required.
Section 40.83 How do laboratories process incoming specimens?
In Sec. 40.83(d), (e)(3), and (g)(2) there is an incorrect
reference to Sec. 40.97(a)(3). Each of these Sec. 40.83 paragraphs
require reporting of `fatal flaw' and `rejected for testing' test
results in accordance with Sec. 40.97(a)(3). However, there is in fact
no paragraph (a)(3) in Sec. 40.97(a). Section 40.97(a) requires
laboratories to report the specimen type for any result it reports. The
correct reference should be Sec. 40.97(b)(3), titled ``Category 3:
Rejected for testing''. We are making that correction in this final
rule. We are also fixing an incorrect reference in Sec. 40.83(f)(2),
which requires a laboratory to report a result when certain conditions
have been met where the urine specimen temperature was not checked on
the CCF. That reference should read Sec. 40.97(b) and not Sec.
40.97(a). As noted previously, Sec. 40.97(a) refers to the reporting
of specimen type. Section 40.97(b), the correct reference, pertains to
required reporting of results for the specified categories of
specimens.
Section 40.97 What do laboratories report and how do they report it?
We are making two technical corrections. First, in Sec.
40.97(c)(1)(i)(M) there is an incorrect reference to ``paragraph (a)''.
Second, in Sec. 40.97(c)(2) there is an incorrect reference to
``paragraphs (b)(1)(i) and (ii) of this section''. When we inserted a
new paragraph ``(a)'', the remaining paragraphs were renumbered and the
references in (c)(1)(i)(M) and (c)(2) were not adjusted accordingly.
The correct references should be ``paragraph (b)'' and ``paragraphs
(c)(1)(i) and (ii) of this section'', respectively.
Section 40.113 Where is other information concerning laboratories found
in this regulation?
Section 40.169 Where is other information concerning the role of MROs
and the verification process found in this regulation?
Section 40.189 Where is other information concerning split specimens
found in this regulation?
Section 40.217 Where is other information on the role of STTs and BATs
found in this regulation?
Section 40.313 Where is other information on SAP functions and the
return-to-duty process found in this regulation?
The preamble to the final rule discussed removing several sections
from part 40. After careful consideration of public comment, DOT stated
that it proposed removing several sections (Sec. Sec. 40.29, 40.37,
40.113, 40.169, 40.189, 40.217, and 40.313), which listed other
sections of part 40 touching on a given topic (e.g., employer
responsibilities in Sec. 40.29). The more than 20 years since DOT
placed these sections into part 40, electronic search tools have become
sophisticated and ubiquitous, making these sections no longer
necessary. DOT removed the cross-reference sections of Sec. Sec.
40.29, 40.37, 40.113, 40.169, 40.189, 40.217, and 40.313, as proposed.
However, in the final rule only Sec. Sec. 40.29 and 40.37 were
removed. In this technical amendment, we are providing instructions to
remove Sec. Sec. 40.113, 40.169, 40.189, 40.217 and 40.313, as
discussed in the preamble but were inadvertently left in the final
rule. [88 FR 27609] We are now removing them as initially determined.
Section 40.145 On what basis does the MRO verify test results involving
adulteration or substitution?
In Sec. 40.145(e)(2), (h)(1) introductory text, (h)(1)(ii), (h)(2)
introductory text, and (h)(2)(ii), which are related to substituted
urine results, there is an incorrect reference to Sec. 40.93(b).
Section 40.93(b) pertains to the validity testing for oral fluid
specimens. The correct reference should be Sec. 40.88(b), which
pertains to criteria laboratories must use to establish that a urine
specimen is dilute or substituted. In this final rule, we are
correcting that reference in each section identified above.
Section 40.159 What does the MRO do when a drug test result is invalid?
In Sec. 40.159(a)(1), there are incorrect references to Sec. Sec.
40.91(e) and 40.96(b). The correct references should be Sec. Sec.
40.87(e) and 40.90(b), respectively. There is no Sec. 40.91(e).
Section 40.91 contains only a chart of the cutoff concentrations for
oral fluid drug tests. There is also no Sec. 40.96. We are making
these corrections in this final rule.
Section 40.191 What is a refusal to take a DOT drug test, and what are
the consequences?
In Sec. 40.191, paragraphs (a)(2) and (3) state that it is a
refusal to test if an employee fails to remain at the testing site
until the testing process is complete and if an employee fails to
provide a specimen for any drug test required by Part 40 or the DOT
agency regulations. Those subparagraphs go on to say that it is not a
refusal to test if the test reason is `pre-employment' and the employee
left before the testing process commenced and provide citations to when
the testing process commences for urine Sec. 40.63(c) and oral fluid
Sec. 40.72(e), as applicable. The reference to Sec. 40.72(e) is
incorrect. The correct reference should be Sec. 40.72(d)(3) as it is
specific to when the employee selects a specimen collection device, or
the collector provides a specimen collection device to the employee.
Referencing Sec. 40.72(d)(3) is the correct reference as it mirrors
the commencement of a urine collection.
Section 40.207 What is the effect of a cancelled drug test?
Section 40.207(d) allows MROs to reverse cancelled tests where the
reason for the cancellation involves paperwork errors (e.g., missing or
delayed paperwork) that were not corrected which resulted in the MRO
sending the cancellation to the employer. The reversible cancellations
need to be administrative errors that can be corrected by paperwork. We
added language to the May 2, 2023, final rule, in the form of a
parenthetical in Sec. 40.207(d), to note that correctible flaws
arising under Sec. Sec. 40.203 and 40.205 are examples of what is
reversible (88 FR 27596, 27606). We also provided an example of an MRO
un-canceling for a reason not included in Sec. Sec. 40.203 and 40.205.
However, in the rule text we inadvertently used an ``i.e.,'' instead of
an ``e.g.,''. As written, the parenthetical (i.e., Sec. Sec. 40.203
and 40.205) arguably precludes the MRO from considering any other
scenario in which they can un-cancel a drug test result. The intent in
the preamble is clear and to avoid confusion for the MROs, we are
revising ``i.e.,'' in the parenthetical to read ``e.g.,''.
[[Page 51983]]
Section 40.245 What is the procedure for an alcohol screening test
using a saliva ASD or a breath tube ASD?
We are correcting a typographical error in Sec. 40.245(a)(6)(ii).
Specifically, paragraph (a)(6)(ii) states that the new device you use
must be one that has been under your control or that of the employee
before the test. The language states that the responsibility for
providing a new saliva testing device in instances where the STT or BAT
is unable to successfully follow the procedures of Sec. 40.245(a)(3)
through (5) (e.g., the device breaks, you drop the device on the floor)
falls to the STT or BAT or the employee (emphasis added). Reference to
the employee was in error. While it is reasonable to rely on the STT or
BAT to provide the new device, the employee would not be expected to
have a backup device on hand. Instead, the employer could also provide
the new device. Ultimately, the employer is responsible for ensuring
the test is completed, not the employee. This change will mirror the
existing language in 40.245(b)(7)(ii), which describes similar
procedures and responsibilities for alcohol testing using a breath tube
alcohol screening device. We are making the correction by replacing
`employee' with `employer'.
Section 40.291 What is the role of the SAP in the evaluation, referral,
and treatment process of an employee who has violated DOT Agency drug
and alcohol testing regulations?
In the last sentence of Sec. 40.291(a)(1), there is duplicative
text. We are removing the duplicative text.
Regulatory Notices and Analyses
This final rule is a non-significant rule for purposes of section
3(f) of Executive Order (E.O.) 12886, as supplemented by E.O. 13563 and
amended by E.O. 14094. DOT has determined that the regulatory analyses
conducted for the May 2, 2023, final rule remain applicable to this
technical correction final rule. DOT makes these statements on the
basis that, as a series of technical amendments that correct or clarify
existing regulatory provisions, this rule will not impose any
significant costs or have impacts beyond those analyzed in the May 2,
2023, final rule.
DOT concludes that it has good cause to waive prior opportunity for
notice and comment under 5 U.S.C. 553(b)(B). The technical amendments
included in this final rule render notice and comment unnecessary and
contrary to the public interest. The amendments made in this rule are
technical, corrective, and clarifying changes to an existing rule that
went through an extensive public notice and comment process. The
amendments do not make significant substantive changes to part 40. The
errors in the current regulation are also potentially confusing to
testing laboratories, employers, employees subject to testing, and
other stakeholders, and prompt publication would clarify ambiguities.
For these same reasons, DOT finds good cause to waive the 30-day delay
in effective date under 5 U.S.C. 553(d)(3).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. DOT will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. This
rule does not constitute a major rule as defined in 5 U.S.C. 804(2).
List of Subjects in 49 CFR Part 40
Administrative practice and procedures, Alcohol abuse, Alcohol
testing, Drug abuse, Drug testing, Laboratories, Reporting and
recordkeeping requirements, Safety, Transportation.
For the reasons stated in the preamble, DOT amends 49 CFR part 40
as follows:
PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL
TESTING PROGRAMS
0
1. The authority for part 40 continues to read as follows:
Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and
54101 et seq.
Sec. 40.14 [Amended]
0
2. In Sec. 40.14, in the introductory text, remove the word ``urine''
before the word specimen and in paragraph (e), remove ``40.35 of this
part'' and add ``40.36'' in its place.
Subpart C [Amended]
0
3. In the heading for subpart C, remove the word ``Urine'' and add the
word ``Specimen'' in its place.
Sec. 40.81 [Amended]
0
4. In Sec. 40.81, in paragraph (a), remove the word ``required''.
Sec. 40.83 [Amended]
0
5. In Sec. 40.83, in paragraphs (d), (e)(3), and (g)(2), remove
``40.97(a)(3)'' and add ``40.97(b)(3)'' in its place and in paragraph
(f)(2), remove ``40.97(a)'' and add ``40.97(b)'' in its place.
Sec. 40.97 [Amended]
0
6. In Sec. 40.97(c)(1)(i)(M), remove ``(a)'' and add ``(b)'' in its
place and in paragraph (c)(2), remove ``(b)'' and add ``(c)'' in its
place.
Sec. 40.113 [Removed]
0
7. Remove Sec. 40.113.
Sec. 40.145 [Amended]
0
8. In Sec. 40.145, in paragraphs (e)(2), (h)(1) introductory text,
(h)(1)(ii), (h)(2) introductory text, and (h)(2)(ii), remove ``Sec.
40.93(b)'' and add ``Sec. 40.88(b)'' in its place.
Sec. 40.159 [Amended]
0
9. In Sec. 40.159, in paragraph (a)(1), remove ``Sec. 40.91(e) and
Sec. 40.96(b)'' and add ``Sec. 40.87(e) and Sec. 40.90(b)'' in its
place.
Sec. 40.169 [Removed]
0
10. Remove Sec. 40.169.
Sec. 40.189 [Removed]
0
11. Remove Sec. 40.189.
Sec. 40.191 [Amended]
0
12. In Sec. 40.191, in paragraphs (a)(2) and (3), remove ``Sec.
40.72(e)'' and add ``Sec. 40.72(d)(3)'' in its place.
Sec. 40.207 [Amended]
0
13. In Sec. 40.207, in paragraph (d), remove ``i.e.,'' in the
parenthetical and add ``e.g.,'' in its place.
Sec. 40.217 [Removed]
0
14. Remove Sec. 40.217.
Sec. 40.245 [Amended]
0
15. In Sec. 40.245, in paragraph (a)(6)(ii), remove the word
``employee'' and add the word ``employer'' in its place.
Sec. 40.291 [Amended]
0
16. In Sec. 40.291, in the last sentence of paragraph (a)(1)
introductory text, remove the second occurrence of ``must be''.
Sec. 40.313 [Removed]
0
17. Remove Sec. 40.313.
Signed pursuant to authority delegated at 49 CFR 1.27(c) in
Washington, DC.
Subash Iyer,
Acting General Counsel.
[FR Doc. 2024-12749 Filed 6-20-24; 8:45 am]
BILLING CODE 4910-9X-P
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