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Proposed Rule2026-22121

Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid (OFMG)

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Published
October 29, 2026

Issuing agencies

Health and Human Services Department

Abstract

The Department of Health and Human Services ("HHS" or "Department") is proposing to revise the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid (OFMG) published on October 12, 2023.

Full Text

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<title>Federal Register, Volume 91 Issue 208 (Thursday, October 29, 2026)</title>
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[Federal Register Volume 91, Number 208 (Thursday, October 29, 2026)]
[Proposed Rules]
[Pages 68364-68395]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-22121]



[[Page 68363]]

Vol. 91

Thursday,

No. 208

October 29, 2026

Part III





Department of Health and Human Services





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42 CFR Chapter I





Mandatory Guidelines for Federal Workplace Drug Testing Programs Using 
Oral Fluid (OFMG); Proposed Rule

Federal Register / Vol. 91, No. 208 / Thursday, October 29, 2026 / 
Proposed Rules

[[Page 68364]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

42 CFR Chapter I

RIN 0930-AA41


Mandatory Guidelines for Federal Workplace Drug Testing Programs 
Using Oral Fluid (OFMG)

AGENCY: Substance Abuse and Mental Health Services Administration 
(SAMHSA), Department of Health and Human Services (HHS).

ACTION: Proposed revisions to mandatory guidelines.

-----------------------------------------------------------------------

SUMMARY: The Department of Health and Human Services (``HHS'' or 
``Department'') is proposing to revise the Mandatory Guidelines for 
Federal Workplace Drug Testing Programs using Oral Fluid (OFMG) 
published on October 12, 2023.

DATES: Submit comments on or before December 28, 2026.

ADDRESSES: In commenting, please refer to docket number SAMHSA-2026-
0001. Because of staff and resource limitations, SAMHSA cannot accept 
comments by facsimile (fax) transmission.
    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    <bullet> Electronically. You may submit electronic comments on this 
regulation to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow ``Submit a comment'' 
instructions.
    <bullet> By regular mail. You may mail written comments to the 
following address: SAMHSA, Center for Substance Abuse Prevention 
(CSAP), Division of Workplace Programs (DWP), 5600 Fishers Lane, Room 
16N02, Rockville, MD 20857. Please allow sufficient time for mailed 
comments to be received before the close of the comment period.
    <bullet> By express or overnight mail. You may send written 
comments to the following address: SAMHSA, CSAP, DWP, 5600 Fishers 
Lane, Room 16N02, Rockville, MD 20857.
    <bullet> By hand or courier. You may deliver your written comments 
by hand or courier to the following address prior to the close of the 
comment period: SAMHSA, CSAP, DWP, 5600 Fishers Lane, Room 16N02, 
Rockville, MD 20857. If you intend to deliver your comments to the 
Rockville address, please call (240) 276-2600 in advance to schedule 
your arrival with one of our staff members. Because access to the 
SAMHSA building is secure, people without federal government 
identification are encouraged to schedule their delivery or to leave 
comments with the security guard at the front desk located in the main 
lobby of the building.
    All comments received before the close of the comment period will 
be available for viewing by the public. Please note that all comments 
are posted in their entirety, including personal or confidential 
business information that is included in the comment. SAMHSA will post 
all comments before the close of the comment period on the following 
website: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Use the website's search function 
to view the associated comments.
    Comments received before the close of the comment period will also 
be available for public inspection as they are received, generally 
beginning approximately 3 weeks after publication of a document, at 
SAMHSA, CSAP, DWP, 5600 Fishers Lane, Rockville, MD 20857, Monday 
through Friday of each week, excluding federal holidays, from 8:30 a.m. 
to 4:00 p.m. To schedule an appointment to view public comments, please 
call (240) 276-2600.

FOR FURTHER INFORMATION CONTACT: Eugene D. Hayes, Ph.D., MBA, SAMHSA, 
CSAP, DWP; 5600 Fishers Lane, Room 16N02, Rockville, MD 20857, by 
telephone (240) 276-1459 or by email at <a href="/cdn-cgi/l/email-protection#692c1c0e0c070c472108100c1a291a0804011a084701011a470e061f"><span class="__cf_email__" data-cfemail="ade8d8cac8c3c883e5ccd4c8deeddeccc0c5decc83c5c5de83cac2db">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Executive Summary

    This notice of proposed revisions to the Mandatory Guidelines for 
Federal Workplace Drug Testing Programs using OFMG includes revisions 
that will: clarify the types of laboratories that may be certified to 
conduct testing for federal agency workplace drug testing programs, 
reflect the Department's decision to publish the Authorized Drug 
Testing Panels only when revised rather than each year, revise the 
initial test batch quality control requirements for laboratories, and 
allow a split testing laboratory to test for any HHS-authorized 
biomarker to reconfirm substitution based on a biomarker test (i.e., 
may test for a different biomarker). In addition, some wording changes 
have been made for clarity and for consistency with the Mandatory 
Guidelines for Federal Workplace Drug Testing Programs using Urine 
(UrMG) or to apply to any authorized specimen type and to clarify 
direct observed collection procedures.
    The Department is concurrently publishing a separate Federal 
Register Notice proposing revisions to the Mandatory Guidelines for 
Federal Workplace Drug Testing Programs using UrMG, including the same 
or similar revisions proposed for the OFMG, where appropriate.
    The current authorized drug testing panel and report nomenclature 
table for urine and for oral fluid were published on January 16, 2025 
(90 FR 4662).

Background

    Pursuant to its authority under Section 503 of Public Law 100-71, 5 
U.S.C. 7301, and Executive Order No. 12564, HHS establishes the 
scientific and technical guidelines for Federal Workplace Drug Testing 
Programs and establishes standards for certification of laboratories 
engaged in drug testing for federal agencies. Using data obtained from 
the Federal Workplace Drug Testing Programs and HHS-certified 
laboratories, the Department estimates that 275,000 urine specimens are 
tested annually by federal agencies. No laboratories have been 
certified to test oral fluid at this time.
    As required, HHS originally published the Mandatory Guidelines for 
Federal Workplace Drug Testing Programs (Guidelines) in the Federal 
Register (FR) on April 11, 1988 (53 FR 11979). SAMHSA subsequently 
revised the Guidelines on June 9, 1994 (59 FR 29908), September 30, 
1997 (62 FR 51118), November 13, 1998 (63 FR 63483), April 13, 2004 (69 
FR 19644), and November 25, 2008 (73 FR 71858). SAMHSA published the 
renamed Mandatory Guidelines for Federal Workplace Drug Testing 
Programs using UrMG on January 23, 2017 (82 FR 7920), and the first 
Mandatory Guidelines for Federal Workplace Drug Testing Programs using 
OFMG on October 25, 2019 (84 FR 57754). SAMHSA published the current 
UrMG (88 FR 70768) and current OFMG (88 FR 70814) on October 12, 2023.

Proposed Revisions to the Guidelines

    This preamble describes the proposed revisions to the Mandatory 
Guidelines for Federal Workplace Drug Testing Programs using OFMG, and 
the rationale for the changes.

Subpart A--Applicability

    Section 1.5 defines terms used in the OFMG. The Department has 
added terms and revised definitions in this section in accordance with 
proposed changes to these Guidelines.
    The Department has deleted ``Gender Identity'' (i.e., term and 
definition) to enhance the clarity of direct observed collection 
procedures.
    The Department updated the definition of ``Laboratory'' clarifying 
that, in addition to certifying laboratories to conduct all required 
testing of primary (A) and split (B)

[[Page 68365]]

specimens, the Department may certify laboratories that test split (B) 
specimens only and/or conduct additional drug or specimen validity 
tests for primary and split specimens in accordance with these 
Mandatory Guidelines.
    The Department edited the definition of ``Negative Result'' for 
clarity.
    The Department edited the definition of ``Substituted Specimen'' to 
refer to a test for an HHS-authorized biomarker rather than 
specifically referring to the Biomarker Testing Panel, to reflect the 
Department's review and approval process for an HHS-certified test 
facility to implement testing for biomarker for use in Federal 
workplace drug testing programs.
    Section 1.7 describes the circumstances that constitute a refusal 
to test. The Department provided additional examples for clarity.

Subpart B--Oral Fluid Specimens

    Section 2.2 describes the circumstances under which an oral fluid 
specimen may be collected. The Department reviewed and revised Section 
2.2(a) and other wording in the current OFMG to clarify that pre-
employment tests are performed for all individuals applying for a 
testing designated position, including federal agency employees.

Subpart C--Oral Fluid Specimen Tests

    Section 3.1 describes the tests that are conducted on an oral fluid 
specimen. The Department revised Section 3.2 to address when a specimen 
may be tested for drugs other than those in the drug testing panel and 
inserted a new Section 3.3 to describe the process for an HHS-certified 
laboratory or IITF to obtain HHS approval to test for a biomarker other 
than those in the biomarker testing panel. The Department renumbered 
subsequent items in Section 3 accordingly.
    Section 3.5 describes the publication of drug and biomarker testing 
panels with analytes and cutoffs for oral fluid. The Department removed 
the drug testing panel from the OFMG and deleted the requirement to 
publish the Authorized Drug Testing Panels annually. HHS will publish a 
FR Notice when drug and/or biomarker testing panels are changed.

Subpart H--Oral Fluid Specimen Collection Procedure

    Section 8.1 describes privacy requirements for oral fluid 
collection. The Department revised item b to refer to the sex of the 
collector and donor to enhance the clarity of direct observed 
collection procedures.
    Section 8.6(b) stated that a donor demonstrates their inability to 
provide an oral fluid specimen when there is an insufficient volume or 
no oral fluid after 15 minutes of using the collection device. Because 
device manufacturers may establish different time limits for their 
devices, the Department has replaced the 15-minute time limit with 
``the time limit specified by the device manufacturer.''
    The Department reworded item c in Section 8.8 for clarity and to 
use the same wording in the UrMG and OFMG.

Subpart I--HHS Certification of Laboratories and IITFs

    The Department revised the language in item 9.5(a)(1) to refer to 
the drug testing panel rather than ``drug classes listed in the drug 
testing panel.''
    Section 9.6 describes National Laboratory Certification Program 
(NLCP) performance testing (PT) requirements for an applicant oral 
fluid laboratory and Section 9.7 describes PT requirements for an HHS-
certified oral fluid laboratory. The Department reworded item a.3 in 
both sections to clarify that PT criteria for initial drug test results 
are for laboratories that will conduct initial drug tests.

Subpart K--Laboratory

    Section 11.11 describes the initial drug test batch quality control 
requirements for an oral fluid laboratory. The Department revised item 
b to apply to the controls in each initial drug test batch rather than 
to calibrators and controls and reduced the required percentage of 
controls from 10 percent to 4 percent of the total controls and 
specimens in the batch.

Subpart M--Medical Review Officer (MRO)

    Section 13.5 describes MRO actions when reviewing an oral fluid 
specimen's test result. The Department edited wording in Section 
13.5(e) to address different MRO actions to be taken for invalid 
specimens depending on the reason for the test. The Department revised 
Section 13.5(e)(1)(ii) to specify that the MRO may direct an unobserved 
urine collection based on the reason for the invalid oral fluid result 
if the agency allows urine testing. The Department also revised Section 
13.5(e)(2)(ii) to require the MRO to recommend recollection of a urine 
specimen under direct observation when the donor's first oral fluid 
specimen and second recollected oral fluid specimen are invalid.
    Section 13.6 describes MRO action when the collector reports that 
the donor did not provide a sufficient amount of oral fluid for a drug 
test. The Department has reviewed and revised the previous wording in 
Section 13.6(b) to clarify different MRO actions to be taken for 
invalid specimens depending on the reason for the test.

Subpart N--Split Specimen Tests

    Section 14.1 describes when a split (B) oral fluid specimen may be 
tested. The Department has revised item 14.1(c) to clarify MRO action 
when a split specimen cannot be tested by a second laboratory because 
(1) there is no split specimen or the specimen has insufficient volume 
for testing); (2) the primary specimen was reported as adulterated and 
there is no second HHS-certified laboratory to test the split specimen 
for the same adulterant; or (3) the primary specimen was reported as 
substituted based on a biomarker and there is no second HHS-certified 
laboratory to test the split specimen (i.e., using the same or a 
different biomarker test).
    Section 14.4 describes how an HHS-certified laboratory tests a 
split (B) oral fluid specimen when the primary (A) specimen was 
reported substituted. This section addresses testing of a split 
specimen when the primary specimen was reported substituted based on 
biomarker testing. The Department has revised this section to allow the 
split testing laboratory to test for any HHS-authorized biomarker. It 
is not necessary to test the split specimen for the same biomarker to 
reconfirm the primary (A) specimen's substituted result.
    Section 14.6 describes action an MRO takes after receiving the 
split (B) oral fluid specimen result from the split testing laboratory. 
The Department has edited and reorganized this section for clarity and 
to describe these revised requirements:
    <bullet> When the split laboratory has failed to reconfirm a single 
or all drug positive results and reported the specimen as adulterated 
and the primary laboratory cannot perform the test for that adulterant: 
the MRO directs testing at another HHS-certified laboratory.
    <bullet> When the split laboratory has failed to reconfirm a single 
or all drug positive results and reported the specimen as substituted 
and the primary laboratory cannot perform a biomarker test: the MRO 
directs testing at another HHS-certified laboratory. It is not 
necessary to test the primary specimen for the same biomarker to 
reconfirm the split specimen's substituted result.
    <bullet> The Department has maintained the current requirement for 
immediate recollection of ``another specimen using a direct observed 
collection procedure'' but added that the MRO recommends an

[[Page 68366]]

observed urine collection if the agency allows urine testing.
    The Department also removed the requirement for the MRO to contact 
the HHS office responsible for coordination of the drug-free workplace 
program regarding the test results throughout this section.

General Revisions

    In addition to the proposed changes described by subpart and 
section above, the Department has edited the OFMG to address proposed 
changes and has reworded some items for clarity (e.g., referring to 
``donors'' rather than ``employees'' or ``applicants'') and/or for 
consistency with the UrMG or to apply to any authorized specimen type.

Impact of These Guidelines on Government Regulated Industries

    The Department is aware that these proposed new Guidelines may 
impact the Department of Transportation and Nuclear Regulatory 
Commission regulated industries depending on these agencies' decisions 
to incorporate the final OFMG revisions into their programs under their 
own authority.

Costs and Benefits

Costs
    The proposed OFMG revisions are not expected to increase current 
stakeholder costs.
Benefits
    The proposed revision to quality control requirements for initial 
drug test batches in Section 11.11(b) will reduce laboratory burden and 
expense while maintaining quality. The Department has lowered the 
percentage of controls in each initial drug test batch from 10 percent 
to 4 percent of the total controls and specimens in the batch. This 
will reduce time, labor, and material costs (e.g., purchasing, initial 
verification, batch review, monitoring control results). Initial drug 
testing is used to report specimens as negative; specimens with a 
positive initial drug test are reflexed to confirmatory testing. The 
Department has maintained the 10 percent control requirement for 
confirmatory test batches.
    Other OFMG revisions that will reduce stakeholder burden include 
those related to biomarker testing which are expected to lead to 
definitive results and reduce the need for specimen recollection. For 
example, Section 14.4 has been revised to allow a split testing 
laboratory to test for any HHS-authorized biomarker to reconfirm 
substitution, rather than requiring the same biomarker test used for 
the primary specimen. This revision also strengthens the federal 
government's ability to identify illicit drug use and donor attempts to 
subvert drug tests.

Paperwork Reduction Act of 1995

    This proposed rule contains information collection provisions that 
are subject to review by OMB under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501-3521). The title and description of the information 
collected, and respondent description are shown in the following 
paragraphs with an estimate of the annual reporting, disclosure, and 
recordkeeping burden. Included in the estimate is the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Comments on the information collection requirements are 
specifically solicited in order to: (1) Evaluate whether the proposed 
collection of information is necessary for the proper performance of 
HHS's functions, including whether the information will have practical 
utility; (2) evaluate the accuracy of HHS's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used; (3) enhance the quality, utility, and 
clarity of the information to be collected; and (4) minimize the burden 
of the collection of information on those who are to respond, including 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques or other forms of information 
technology.
    Title: The Mandatory Guidelines for Federal Workplace Drug Testing 
Programs using Oral Fluid.

Information Collection/Record Keeping Requirements

    The information collection requirements (i.e., reporting and 
recordkeeping) in the current Guidelines, which establish the 
scientific and technical guidelines for Federal Workplace Drug Testing 
Programs and establish standards for certification of laboratories 
engaged in oral fluid drug testing for federal agencies under authority 
of 5 U.S.C. 7301 and Executive Order 12564, are approved by the Office 
of Management and Budget (OMB) under control number 0930-0158. The 
Federal Drug Testing Custody and Control Form (Federal CCF) used to 
document the collection and chain of custody of urine and oral fluid 
specimens at the collection site, for laboratories to report results, 
and for Medical Review Officers to make a determination; NLCP 
application; the NLCP Laboratory Information Checklist; and 
recordkeeping requirements in the current Guidelines, as approved under 
control number 0930-0158, will remain in effect.
    In support of the Government Paperwork Reduction Act, the 
Department revised the federal CCF to enable its use as an electronic 
form (78 FR 42091, July 15, 2013) and developed requirements and 
oversight procedures to ensure that HHS-certified test facilities and 
other service providers (e.g., collection sites, MROs) using an 
electronic federal CCF (ECCF) maintain the accuracy, security, and 
confidentiality of electronic drug test information. Before a federal 
ECCF can be used for federal agency specimens, HHS-certified test 
facilities must submit detailed information and proposed standard 
operating procedures (SOPs) to the NLCP for SAMHSA review and approval 
and undergo an NLCP inspection focused on the proposed ECCF.
    Since 2013, SAMHSA has encouraged the use of federal ECCFs and 
other electronic processes in HHS-certified test facilities, when 
practicable, for federally regulated testing operations. In accordance 
with Section 8108(a) of the SUPPORT for Patients and Communities Act, 
SAMHSA has set a deadline of August 31, 2026, for all HHS-certified 
laboratories to submit a request for approval of an electronic 
(digital) federal CCF. To assist all HHS-certified laboratories, SAMHSA 
has implemented an ECCF Recognition Program to recognize ECCF systems 
that meet program requirements and can be used by any HHS-certified 
laboratory or IITF. This program is expected to facilitate the process 
for HHS-certified test facilities seeking SAMHSA approval to use an 
ECCF and enable all HHS-certified test facilities (regardless of size) 
to meet the August 31, 2026, deadline for a digital ECCF submission.
    Description: The Mandatory Guidelines establish the scientific and 
technical guidelines for federal drug testing programs and establish 
standards for certification of laboratories engaged in drug testing for 
federal agencies under authority of Public Law 100-71, 5 U.S.C. 7301 
note, and Executive Order No. 12564. Federal drug testing programs test 
applicants for safety-sensitive positions, individuals involved in 
accidents, individuals tested for cause, and random testing of 
employees in safety-sensitive positions.
    Description of Respondents: Individuals or households, businesses, 
or other-for-profit and not-for-profit institutions.

[[Page 68367]]

    The burden estimates in the tables below are based on the following 
number of respondents: 10,500 donors who apply for employment or are 
employed in testing designated positions, 100 collectors, 10 oral fluid 
specimen testing laboratories, and 100 MROs.

                                       Estimate of Annual Reporting Burden
----------------------------------------------------------------------------------------------------------------
                                                       Number of      Responses/                         Total
           Section                   Purpose          respondents     respondent     Hours/ response     hours
----------------------------------------------------------------------------------------------------------------
9.2(a)(1)...................  Laboratory or IITF                10               1  3...............          30
                               required to submit
                               application for
                               certification.
9.10(a)(3)..................  Materials to submit               10               1  2...............          20
                               to become an HHS
                               inspector.
11.3........................  Laboratory submits                10               1  2...............          20
                               qualifications of
                               responsible person
                               (RP) to HHS.
11.4(c).....................  Laboratory submits                10               1  2...............          20
                               information to HHS
                               on new RP or
                               alternate RP.
11.20.......................  Specifications for                10               5  0.5.............          25
                               laboratory
                               semiannual
                               statistical report
                               of test results to
                               each federal agency.
13.8 and 14.7...............  Specifies that MRO               100              14  0.05 (3 min)....          70
                               must report all
                               verified primary
                               and split specimen
                               results to the
                               federal agency.
13.11.......................  Specifications for               100               2  0.5.............         100
                               MRO semiannual
                               report to the
                               Secretary or
                               designated
                               representative for
                               federal agency
                               specimen results
                               that were
                               laboratory-positive
                               and MRO-verified
                               negative.
16.1(b) and 16.5(a).........  Specifies content of               1               1  3...............           3
                               request for
                               informal review of
                               suspension/proposed
                               revocation of
                               certification.
16.4........................  Specifies                          1               1  0.5.............         0.5
                               information
                               appellant provides
                               in first written
                               submission when
                               laboratory
                               suspension/
                               revocation is
                               proposed.
16.6........................  Requires appellant                 1               1  0.5.............         0.5
                               to notify reviewing
                               official of
                               resolution status
                               at end of abeyance
                               period.
16.7(a).....................  Specifies contents                 1               1  50..............          50
                               of appellant
                               submission for
                               review.
16.9(a).....................  Specifies content of               1               1  3...............           3
                               appellant request
                               for expedited
                               review of
                               suspension or
                               proposed revocation.
16.9(c).....................  Specifies contents                 1               1  50..............          50
                               of review file and
                               briefs.
                                                   -------------------------------------------------------------
    Total...................  ....................             256  ..............  ................         392
----------------------------------------------------------------------------------------------------------------

    The following reporting requirements are also in the proposed 
Guidelines, but have not been addressed in the above reporting burden 
table: collector must report any unusual donor behavior or refusal to 
participate in the collection process on the federal CCF (Sections 1.8, 
8.9); collector annotates the federal CCF when a sample is a blind 
sample (Section 10.3(a)); MRO notifies the federal agency and HHS when 
an error occurs on a blind sample (Section 10.4(d)); and Sections 13.6 
and 13.7 describe the actions an MRO takes for the medical evaluation 
of a donor who cannot provide an oral fluid specimen. SAMHSA has not 
calculated a separate reporting burden for these requirements because 
they are included in the burden hours estimated for collectors to 
complete federal CCFs and for MROs to report results to federal 
agencies.

                                      Estimate of Annual Disclosure Burden
----------------------------------------------------------------------------------------------------------------
                                                       Number of      Responses/                         Total
           Section                   Purpose          respondents     respondent     Hours/ response     hours
----------------------------------------------------------------------------------------------------------------
8.3(a), 8.6(b)(2)...........  Collector must                   100               1  0.05 (3 min)....           5
                               contact federal
                               agency's point of
                               contact.
11.21, 11.22................  Information on drug               10              10  3...............         300
                               test that
                               laboratory must
                               provide to federal
                               agency upon request
                               or to donor through
                               MRO.
13.8(b).....................  MRO must inform                  100              14  3...............       4,200
                               donor of right to
                               request split
                               specimen test when
                               a positive,
                               adulterated, or
                               substituted result
                               is reported.
                                                   -------------------------------------------------------------
    Total...................  ....................             210  ..............  ................       4,505
----------------------------------------------------------------------------------------------------------------

    The following disclosure requirements are also included in the 
proposed Guidelines but have not been addressed in the above disclosure 
burden table: the collector must explain the basic collection procedure 
to the donor and answer any questions (Section 8.3(h)). SAMHSA believes 
having the collector explain the collection procedure to the donor and 
answer any questions is a standard business practice and not a 
disclosure burden.

[[Page 68368]]



                                     Estimate of Annual Recordkeeping Burden
----------------------------------------------------------------------------------------------------------------
                                                       Number of      Responses/                         Total
           Section                   Purpose          respondents     respondent     Hours/ response     hours
----------------------------------------------------------------------------------------------------------------
8.3, 8.4, 8.5, 8.8..........  Collector completes              100             380  0.07 (4 min)....       2,660
                               federal CCF for
                               specimen collected.
8.8(d) and (f)..............  Donor initials                38,000               1  0.08 (5 min)....       3,040
                               specimen labels/
                               seals and signs
                               statement on the
                               federal CCF.
11.8(a) and 11.17...........  Laboratory completes              10           1,520  0.05 (3 min)....         760
                               federal CCF upon
                               receipt of specimen
                               and before
                               reporting result.
13.4(d) (4),13.9 (c),14.7     MRO completes                    100             380  0.05 (3 min)....       1,900
 (c).                          federal CCF before
                               reporting the
                               primary or split
                               specimen result.
14.1(b).....................  MRO documents                    100               2  0.05 (3 min)....          10
                               donor's request to
                               have split specimen
                               tested.
                                                   -------------------------------------------------------------
    Total...................  ....................          38,310  ..............  ................       8,370
----------------------------------------------------------------------------------------------------------------

    The proposed Guidelines contain several recordkeeping requirements 
that SAMHSA considers not to be an additional recordkeeping burden. In 
subpart D, a trainer is required to document the training of an 
individual to be a collector (Section 4.3(a)(3)) and the documentation 
must be maintained in the collector's training file (Section 4.3(c)). 
SAMHSA believes this training documentation is common practice and is 
not considered an additional burden. In subpart F, if a collector uses 
an incorrect form to collect a federal agency specimen, the collector 
is required to provide a statement (Section 6.2(b)) explaining why an 
incorrect form was used to document collecting the specimen. SAMHSA 
believes this is an extremely infrequent occurrence and does not create 
a significant additional recordkeeping burden. Subpart H (Section 
8.4(d)) requires collectors to enter any information on the federal CCF 
of any unusual findings during the oral fluid specimen collection 
procedure. These recordkeeping requirements are an integral part of the 
collection procedure and are essential to documenting the chain of 
custody for the specimens collected. The burden for these entries is 
included in the recordkeeping burden estimated to complete the federal 
CCF and is, therefore, not considered an additional recordkeeping 
burden. Subpart K describes a number of recordkeeping requirements for 
laboratories associated with their testing procedures, maintaining 
chain of custody, and keeping records (i.e., Sections 11.1(a) and (d); 
11.2(b), (c), and (d); 11.6(b); 11.7(c); 11.8; 11.10(a); 11.13(a); 
11.16; 11.19(a), (b), and (c); 11.20; 11.21(a) and 11.22). These 
recordkeeping requirements are necessary for any laboratory to conduct 
forensic drug testing and to ensure the scientific supportability of 
the test results. Therefore, they are considered to be standard 
business practice and are not considered a burden for this analysis.
    Thus, the total annual response burden associated with the testing 
of oral fluid specimens by the laboratories and IITFs is estimated to 
be 13,267 hours (that is, the sum of the total hours from the above 
tables). The estimated burden hours were also decreased for testing of 
urine specimens by laboratories, as described in the UrMG. The final 
estimate after adjusting the total 1,686,483 hours currently approved 
by OMB under control number 0930-0158 is 1,684,363 hours, reflecting 
the decrease in burden hours required to perform the tasks outlined in 
these updated mandatory guidelines. The Department requests comments on 
the change in burden hours.
    As required by section 3507(d) of the Paperwork Reduction Act, the 
Secretary has submitted a copy of these proposed Guidelines to OMB for 
its review.
    OMB is required to make a decision concerning the collection of 
information contained in these proposed Guidelines between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment to HHS on the proposed 
Guidelines.
    Organizations and individuals desiring to submit comments on the 
information collection requirements should direct them to the Office of 
Information and Regulatory Affairs, OMB, New Executive Office Building, 
725 17th Street NW, Washington, DC 20502, Attn: Desk Officer for 
SAMHSA. Because of delays in receipt of mail, comments may also be sent 
to 202-395-6974 (fax).

Robert F. Kennedy, Jr.,
Secretary.

    For the reasons discussed above, the Department of Health and Human 
Services proposes to amend the Mandatory Guideline to read as follows:

Mandatory Guidelines For Federal Workplace Drug Testing Programs Using 
Oral Fluid

Subpart A--Applicability
    1.1 To whom do these Guidelines apply?
    1.2 Who is responsible for developing and implementing these 
Guidelines?
    1.3 How does a federal agency request a change from these 
Guidelines?
    1.4 How are these Guidelines revised?
    1.5 What do the terms used in these Guidelines mean?
    1.6 What is an agency required to do to protect workplace drug 
testing records?
    1.7 What is a refusal to take a federally regulated drug test?
    1.8 What are the potential consequences for refusing to take a 
federally regulated drug test?
Subpart B--Oral Fluid Specimens
    2.1 What type of specimen may be collected?
    2.2 Under what circumstances may an oral fluid specimen be 
collected?
    2.3 How is each oral fluid specimen collected?
    2.4 What volume of oral fluid is collected?
    2.5 How is the split oral fluid specimen collected?
    2.6 When may an entity or individual release an oral fluid 
specimen?
Subpart C--Oral Fluid Specimen Tests
    3.1 Which tests are conducted on an oral fluid specimen?
    3.2 May a specimen be tested for drugs other than those in the drug 
testing panel?
    3.3 May a specimen be tested for biomarkers other than those in the 
biomarker testing panel?
    3.4 May any of the specimens be

[[Page 68369]]

used for other purposes?
    3.5 What are the drug and biomarker test analytes and cutoffs for 
undiluted (neat) oral fluid?
    3.6 May an HHS-certified laboratory perform additional drug and/or 
specimen validity tests on a specimen at the request of the Medical 
Review Officer (MRO)?
    3.7 What criteria are used to report an oral fluid specimen as 
adulterated?
    3.8 What criteria are used to report an oral fluid specimen as 
substituted?
    3.9 What criteria are used to report an invalid result for an oral 
fluid specimen?
Subpart D--Collectors
    4.1 Who may collect an oral fluid specimen?
    4.2 Who may not collect a specimen?
    4.3 What are the requirements to be a collector?
    4.4 What are the requirements to be a trainer for collectors?
    4.5 What must a federal agency do before a collector is permitted 
to collect a specimen?
Subpart E--Collection Sites
    5.1 Where can a collection for a drug test take place?
    5.2 What are the requirements for a collection site?
    5.3 Where must collection site records be stored?
    5.4 How long must collection site records be stored?
    5.5 How does the collector ensure the security and integrity of a 
specimen at the collection site?
    5.6 What are the privacy requirements when collecting an oral fluid 
specimen?
Subpart F--Federal Drug Testing Custody and Control Form
    6.1 What Federal form is used to document custody and control?
    6.2 What happens if the correct OMB-approved Federal CCF is not 
available or is not used?
Subpart G--Oral Fluid Specimen Collection Devices
    7.1 What is used to collect an oral fluid specimen?
    7.2 What are the requirements for an oral fluid collection device?
    7.3 What are the minimum performance requirements for a collection 
device?
Subpart H--Oral Fluid Specimen Collection Procedure
    8.1 What privacy must the donor be given when providing an oral 
fluid specimen?
    8.2 What must the collector ensure at the collection site before 
starting an oral fluid specimen collection?
    8.3 What are the preliminary steps in the oral fluid specimen 
collection procedure?
    8.4 What steps does the collector take in the collection procedure 
before the donor provides an oral fluid specimen?
    8.5 What steps does the collector take during and after the oral 
fluid specimen collection procedure?
    8.6 What procedure is used when the donor states that they are 
unable to provide an oral fluid specimen?
    8.7 If the donor is unable to provide an oral fluid specimen, may 
another specimen type be collected for testing?
    8.8 How does the collector prepare the oral fluid specimens?
    8.9 How does the collector report a donor's refusal to test?
    8.10 What are a federal agency's responsibilities for a collection 
site?
Subpart I--HHS Certification of Laboratories
    9.1 Who has the authority to certify laboratories to test oral 
fluid specimens for Federal agencies?
    9.2 What is the process for a laboratory to become HHS-certified?
    9.3 What is the process for a laboratory to maintain HHS 
certification?
    9.4 What is the process when a laboratory does not maintain its HHS 
certification?
    9.5 What are the qualitative and quantitative specifications of 
performance testing (PT) samples?
    9.6 What are the PT requirements for an applicant laboratory that 
seeks to perform oral fluid testing?
    9.7 What are the PT requirements for an HHS-certified oral fluid 
laboratory?
    9.8 What are the inspection requirements for an applicant 
laboratory?
    9.9 What are the maintenance inspection requirements for an HHS-
certified laboratory?
    9.10 Who can inspect an HHS-certified laboratory and when may the 
inspection be conducted?
    9.11 What happens if an applicant laboratory does not satisfy the 
minimum requirements for either the PT program or the inspection 
program?
    9.12 What happens if an HHS-certified laboratory does not satisfy 
the minimum requirements for either the PT program or the inspection 
program?
    9.13 What factors are considered in determining whether revocation 
of a laboratory's HHS certification is necessary?
    9.14 What factors are considered in determining whether to suspend 
a laboratory's HHS certification?
    9.15 How does the Secretary notify an HHS-certified laboratory that 
action is being taken against the laboratory?
    9.16 May a laboratory that had its HHS certification revoked be 
recertified to test Federal agency specimens?
    9.17 Where is the list of HHS-certified laboratories published?
Subpart J--Blind Samples Submitted by an Agency
    10.1 What are the requirements for Federal agencies to submit blind 
samples to HHS-certified laboratories?
    10.2 What are the requirements for blind samples?
    10.3 How is a blind sample submitted to an HHS-certified 
laboratory?
    10.4 What happens if an inconsistent result is reported for a blind 
sample?
Subpart K--Laboratory
    11.1 What must be included in the HHS-certified laboratory's 
standard operating procedure manual?
    11.2 What are the responsibilities of the responsible person (RP)?
    11.3 What scientific qualifications must the RP have?
    11.4 What happens when the RP is absent or leaves an HHS-certified 
laboratory?
    11.5 What qualifications must an individual have to certify a 
result reported by an HHS-certified laboratory?
    11.6 What qualifications and training must other personnel of an 
HHS-certified laboratory have?
    11.7 What security measures must an HHS-certified laboratory 
maintain?
    11.8 What are the laboratory chain of custody requirements for 
specimens and aliquots?
    11.9 What are the requirements for an initial drug test?
    11.10 What must an HHS-certified laboratory do to validate an 
initial drug test?
    11.11 What are the batch quality control requirements when 
conducting an initial drug test?
    11.12 What are the requirements for a confirmatory drug test?
    11.13 What must an HHS-certified laboratory do to validate a 
confirmatory drug test?
    11.14 What are the batch quality control requirements when 
conducting a confirmatory drug test?
    11.15 What are the analytical and quality control requirements for

[[Page 68370]]

conducting specimen validity tests?
    11.16 What must an HHS-certified laboratory do to validate a 
specimen validity test?
    11.17 What are the requirements for an HHS-certified laboratory to 
report a test result?
    11.18 How long must an HHS-certified laboratory retain specimens?
    11.19 How long must an HHS-certified laboratory retain records?
    11.20 What statistical summary reports must an HHS-certified 
laboratory provide for oral fluid testing?
    11.21 What HHS-certified laboratory information is available to a 
federal agency?
    11.22 What HHS-certified laboratory information is available to a 
federal applicant or employee?
    11.23 What types of relationships are prohibited between an HHS-
certified laboratory and an MRO?
Subpart L--Instrumented Initial Test Facility (IITF)
    12.1 May an IITF test oral fluid specimens for a federal agency's 
workplace drug testing program?
Subpart M--Medical Review Officer (MRO)
    13.1 Who may serve as an MRO?
    13.2 How are nationally recognized entities or subspecialty boards 
that certify MROs approved?
    13.3 What training is required before a physician may serve as an 
MRO?
    13.4 What are the responsibilities of an MRO?
    13.5 What must an MRO do when reviewing an oral fluid specimen's 
test result?
    13.6 What action does the MRO take when the collector reports that 
the donor did not provide a sufficient amount of oral fluid for a drug 
test?
    13.7 What happens when an individual is unable to provide a 
sufficient amount of oral fluid for a federal agency applicant/pre-
employment test, a follow-up test, or a return-to-duty test because of 
a permanent or long-term medical condition?
    13.8 How does an MRO report a primary (A) specimen test result to 
an agency?
    13.9 Who may request a test of a split (B) specimen?
    13.10 What types of relationships are prohibited between an MRO and 
an HHS-certified laboratory?
    13.11 What reports must an MRO provide to the Secretary for oral 
fluid testing?
    13.12 What are a federal agency's responsibilities for designating 
an MRO?
Subpart N--Split Specimen Tests
    14.1 When may a split (B) specimen be tested?
    14.2 How does an HHS-certified laboratory test a split (B) specimen 
when the primary (A) specimen was reported positive?
    14.3 How does an HHS-certified laboratory test a split (B) oral 
fluid specimen when the primary (A) specimen was reported adulterated?
    14.4 How does an HHS-certified laboratory test a split (B) oral 
fluid specimen when the primary (A) specimen was reported substituted?
    14.5 Who receives the split (B) specimen result?
    14.6 What action(s) does an MRO take after receiving the split (B) 
oral fluid specimen result from the second HHS-certified oral fluid 
laboratory?
    14.7 How does an MRO report a split (B) specimen test result to an 
agency?
    14.8 How long must an HHS-certified laboratory retain a split (B) 
specimen?
Subpart O--Criteria for Rejecting a Specimen for Testing
    15.1 What discrepancies require an HHS-certified laboratory to 
report an oral fluid specimen as rejected for testing?
    15.2 What discrepancies require an HHS-certified laboratory to 
report a specimen as rejected for testing unless the discrepancy is 
corrected?
    15.3 What discrepancies are not sufficient to require an HHS-
certified laboratory to reject an oral fluid specimen for testing or an 
MRO to cancel a test?
    15.4 What discrepancies may require an MRO to cancel a test?
Subpart P--Laboratory Suspension/Revocation Procedures
    16.1 When may the HHS certification of a laboratory be suspended?
    16.2 What definitions are used for this subpart?
    16.3 Are there any limitations on issues subject to review?
    16.4 Who represents the parties?
    16.5 When must a request for informal review be submitted?
    16.6 What is an abeyance agreement?
    16.7 What procedures are used to prepare the review file and 
written argument?
    16.8 When is there an opportunity for oral presentation?
    16.9 Are there expedited procedures for review of immediate 
suspension?
    16.10 Are any types of communication prohibited?
    16.11 How are communications transmitted by the reviewing official?
    16.12 What are the authority and responsibilities of the reviewing 
official?
    16.13 What administrative records are maintained?
    16.14 What are the requirements for a written decision?
    16.15 Is there a review of the final administrative action?

Subpart A--Applicability

Section 1.1 To whom do these Guidelines apply?

    (a) These Guidelines apply to:
    (1) Executive agencies as defined in 5 U.S.C. 105;
    (2) The Uniformed Services, as defined in 5 U.S.C. 2101(3), but 
excluding the Armed Forces as defined in 5 U.S.C. 2101(2);
    (3) Any other employing unit or authority of the Federal Government 
except the United States Postal Service, the Postal Rate Commission, 
and employing units or authorities in the Judicial and Legislative 
Branches; and
    (4) The Intelligence Community, as defined by Executive Order 
12333, is subject to these Guidelines only to the extent agreed to by 
the head of the affected agency;
    (5) Laboratories that provide drug testing services to the Federal 
agencies;
    (6) Collectors who provide specimen collection services to the 
Federal agencies; and
    (7) Medical Review Officers (MROs) who provide drug testing review 
and interpretation of results services to the Federal agencies.
    (b) These Guidelines do not apply to drug testing under authority 
other than Executive Order 12564, including testing of persons in the 
criminal justice system, such as arrestees, detainees, probationers, 
incarcerated persons, or parolees.

Section 1.2 Who is responsible for developing and implementing these 
Guidelines?

    (a) Executive Order 12564 and Public Law 100-71 require the 
Department of Health and Human Services (HHS) to establish scientific 
and technical guidelines for Federal workplace drug testing programs.
    (b) The Secretary has the responsibility to implement these 
Guidelines.

Section 1.3 How does a Federal agency request a change from these 
Guidelines?

    (a) Each Federal agency must ensure that its workplace drug testing 
program

[[Page 68371]]

complies with the provisions of these Guidelines unless a waiver has 
been obtained from the Secretary.
    (b) To obtain a waiver, a federal agency must submit a written 
request to the Secretary that describes the specific change for which a 
waiver is sought and a detailed justification for the change.

Section 1.4 How are these Guidelines revised?

    (a) To ensure the full reliability and accuracy of specimen tests, 
the accurate reporting of test results, and the integrity and efficacy 
of Federal drug testing programs, the Secretary may make changes to 
these Guidelines to reflect improvements in the available science and 
technology.
    (b) Revisions to these Guidelines will be published in final as a 
notification in the Federal Register.

Section 1.5 What do the terms used in these Guidelines mean?

    The following definitions are adopted:
    Accessioner. The individual who signs the Federal Drug Testing 
Custody and Control Form at the time of specimen receipt at the HHS-
certified laboratory or (for urine) the HHS-certified IITF.
    Adulterated Specimen. A specimen that has been altered, as 
evidenced by test results showing either a substance that is not a 
normal constituent for that type of specimen or shows an abnormal 
concentration of a normal constituent (e.g., nitrite in urine).
    Aliquot. A portion of a specimen used for testing.
    Alternate Responsible Person. The person who assumes professional, 
organizational, educational, and administrative responsibility for the 
day-to-day management of the HHS-certified laboratory when the RP is 
unable to fulfill these obligations.
    Alternate Technology Initial Drug Test. An initial drug test using 
technology other than immunoassay to differentiate negative specimens 
from those requiring further testing.
    Batch. A number of specimens or aliquots handled concurrently as a 
group.
    Biomarker. An endogenous substance used to validate a biological 
specimen.
    Biomarker Testing Panel. The panel published in the Federal 
Register that includes the biomarkers authorized for testing, with 
analytes and cutoffs for initial and confirmatory biomarker tests, as 
described under Section 3.5.
    Blind Sample. A sample submitted to an HHS-certified test facility 
for quality assurance purposes, with a fictitious identifier, so that 
the test facility cannot distinguish it from a donor specimen.
    Calibrator. A sample of known content and analyte concentration 
prepared in the appropriate matrix used to define expected outcomes of 
a testing procedure. The test result of the calibrator is verified to 
be within established limits prior to use.
    Cancelled Test. The result reported by the MRO to the Federal 
agency when a specimen has been reported to the MRO as an invalid 
result (and the donor has no legitimate explanation) or the specimen 
has been rejected for testing, when a split specimen fails to 
reconfirm, or when the MRO determines that a fatal flaw or unrecovered 
correctable flaw exists in the forensic records (as described in 
Sections 15.1 and 15.2).
    Carryover. The effect that occurs when a sample result (e.g., drug 
concentration) is affected by a preceding sample during the preparation 
or analysis of a sample.
    Certifying Scientist (CS). The individual responsible for verifying 
the chain of custody and scientific reliability of a test result 
reported by an HHS-certified laboratory.
    Certifying Technician (CT). The individual responsible for 
verifying the chain of custody and scientific reliability of negative, 
rejected for testing, and (for urine) negative/dilute results reported 
by an HHS-certified laboratory or (for urine) an HHS-certified IITF.
    Chain of Custody (COC) Procedures. Procedures that document the 
integrity of each specimen or aliquot from the point of collection to 
final disposition.
    Chain of Custody Documents. Forms used to document the control and 
security of the specimen and all aliquots. The document may account for 
an individual specimen, aliquot, or batch of specimens/aliquots and 
must include the name and signature of each individual who handled the 
specimen(s) or aliquot(s) and the date and purpose of the handling.
    Collection Device. A product that is used to collect an oral fluid 
specimen and may include a buffer or diluent.
    Collection Site. The location where specimens are collected.
    Collector. A person trained to instruct and assist a donor in 
providing a specimen.
    Confirmatory Drug Test. A second analytical procedure performed on 
a separate aliquot of a specimen to identify and quantify a specific 
drug or drug metabolite.
    Confirmatory Specimen Validity Test. A second test performed on a 
separate aliquot of a specimen to further support an initial specimen 
validity test result.
    Control. A sample used to evaluate whether an analytical procedure 
or test is operating within predefined tolerance limits.
    Cutoff. The analytical value (e.g., drug, drug metabolite, or 
biomarker concentration) used as the decision point to determine a 
result (e.g., negative, positive, adulterated, invalid, or substituted) 
or the need for further testing.
    Donor. The individual from whom a specimen is collected.
    Drug Testing Panel. The panel published in the Federal Register 
that includes the drugs authorized for testing, with analytes and 
cutoffs for initial and confirmatory drug tests, as described under 
Section 3.5.
    External Service Provider. An independent entity that performs 
services related to federal workplace drug testing on behalf of a 
federal agency, a collector/collection site, an HHS-certified 
laboratory, a MRO, or (for urine) an HHS-certified Instrumented Initial 
Test Facility (IITF).
    Failed to Reconfirm. The result reported for a split (B) specimen 
when a second HHS-certified laboratory is unable to corroborate the 
result reported for the primary (A) specimen.
    Federal Drug Testing Custody and Control Form (Federal CCF). The 
OMB approved form that is used to document the collection and chain of 
custody of a specimen from the time the specimen is collected until it 
is received by the test facility (i.e., HHS-certified laboratory or, 
for urine, HHS-certified IITF). It may be a paper (hardcopy), 
electronic (digital), or combination electronic and paper format 
(hybrid). The form may also be used to report the test result to the 
Medical Review Officer.
    HHS. The Department of Health and Human Services.
    Initial Drug Test. An analysis used to differentiate negative 
specimens from those requiring further testing.
    Initial Specimen Validity Test. The first analysis is used to 
determine if a specimen is adulterated, invalid, substituted, or (for 
urine) dilute.
    Instrumented Initial Test Facility (IITF). A permanent location 
where (for urine) initial testing, reporting of results, and 
recordkeeping are performed under the supervision of a responsible 
technician.
    Invalid Result. The result reported by an HHS-certified laboratory 
in accordance with the criteria established in Section 3.9 when a 
positive, negative, adulterated, or substituted result cannot be 
established for a specific drug or specimen validity test.
    Laboratory. A permanent location where drug testing, reporting of 
results,

[[Page 68372]]

and recordkeeping are performed under the supervision of a responsible 
person. In addition to certifying laboratories that conduct all 
required testing of primary (A) and split (B) specimens, HHS may 
certify a laboratory that tests split (B) specimens only and/or 
conducts additional drug or specimen validity tests for primary and 
split specimens in accordance with these Mandatory Guidelines.
    Limit of Detection (LOD). The lowest concentration at which the 
analyte (e.g., drug or drug metabolite) can be identified.
    Limit of Quantification (LOQ). For quantitative assays, the lowest 
concentration at which the identity and concentration of the analyte 
(e.g., drug or drug metabolite) can be accurately established.
    Lot. A number of units of an item (e.g., reagents, quality control 
material, oral fluid collection device) manufactured from the same 
starting materials within a specified period of time for which the 
manufacturer ensures that the items have essentially the same 
performance characteristics and expiration date.
    Medical Review Officer (MRO). A licensed physician who reviews, 
verifies, and reports a specimen test result to the federal agency.
    Negative Result. The result reported by an HHS-certified laboratory 
or (for urine) an HHS-certified IITF when a specimen does not contain 
the analyte of interest (i.e., drug and/or drug metabolite) or the 
concentration is less than the cutoff for the test.
    Oral Fluid Specimen. An oral fluid specimen is collected from the 
donor's oral cavity and is a combination of physiological fluids 
produced primarily by the salivary glands.
    Oxidizing Adulterant. A substance that acts alone or in combination 
with other substances to oxidize drug or drug metabolites to prevent 
the detection of the drugs or drug metabolites or affects the reagents 
in either the initial or confirmatory drug test.
    Performance Testing (PT) Sample. A program-generated sample sent to 
a laboratory or (for urine) to an IITF to evaluate performance.
    Positive Result. The result reported by an HHS-certified laboratory 
when a specimen contains a drug or drug metabolite equal to or greater 
than the confirmatory test cutoff.
    Reconfirmed. The result reported for a split (B) specimen when the 
second HHS-certified laboratory corroborates the original result 
reported for the primary (A) specimen.
    Rejected for Testing. The result reported by an HHS-certified 
laboratory or (for urine) HHS-certified IITF when no tests are 
performed on a specimen because of a fatal flaw or an unrecovered 
correctable error (see Sections 15.1 and 15.2).
    Responsible Person (RP). The person who assumes professional, 
organizational, educational, and administrative responsibility for the 
day-to-day management of an HHS-certified laboratory.
    Sample. A performance testing sample, calibrator or control used 
during testing, or a representative portion of a donor's specimen.
    Secretary. The Secretary of the U.S. Department of Health and Human 
Services.
    Specimen. Fluid or material collected from a donor at the 
collection site for the purpose of a drug test.
    Split Specimen Collection (for Oral Fluid). A collection in which 
two specimens (primary [A] and split [B]) are collected, concurrently 
or serially, and independently sealed in the presence of the donor; or 
a collection in which a single specimen is collected using a single 
collection device and is subdivided into a primary (A) specimen and a 
split (B) specimen, which are independently sealed in the presence of 
the donor.
    Standard. Reference material of known purity or a solution 
containing a reference material at a known concentration.
    Substituted Specimen. A specimen that has been submitted in place 
of the donor's specimen, as evidenced by the absence of a biomarker or 
a biomarker concentration inconsistent with that established for a 
human specimen based on testing for an HHS-authorized biomarker or (for 
urine) creatinine and specific gravity values that are outside the 
physiologically producible ranges of human urine, in accordance with 
the criteria to report a urine specimen as substituted in the Mandatory 
Guidelines for Federal Workplace Drug Testing Programs using Urine 
(UrMG).
    Undiluted (neat) Oral Fluid. An oral fluid specimen to which no 
other solid or liquid has been added. For example, see Section 2.4: a 
collection device that uses a diluent (or other component, process, or 
method that modifies the volume of the testable specimen) must collect 
at least 1 mL of undiluted (neat) oral fluid.

Section 1.6 What is an agency required to do to protect workplace drug 
testing records?

    Consistent with 5 U.S.C. 552a and 48 CFR 24.101 through 24.104, all 
agency contracts with laboratories, collectors, and MROs must require 
that they comply with the Privacy Act, 5 U.S.C. 552a. In addition, the 
contracts must require compliance with employee access and 
confidentiality provisions of section 503 of Public Law 100-71. Each 
Federal agency must establish a Privacy Act System of Records or modify 
an existing system or use any applicable Government-wide system of 
records to cover the records of workplace drug test results. All 
contracts and the Privacy Act System of Records must specifically 
require that workplace drug testing records be maintained and used with 
the highest regard for individual privacy.
    The Health Insurance Portability and Accountability Act of 1996 
(HIPAA) Privacy Rule (Rule), 45 CFR parts 160 and 164, subparts A and 
E, may be applicable to certain health care providers with whom a 
federal agency may contract. If a health care provider is a HIPAA 
covered entity, the provider must protect the individually identifiable 
health information it maintains in accordance with the requirements of 
the Rule, which includes not using or disclosing the information except 
as permitted by the Rule and ensuring there are reasonable safeguards 
in place to protect the privacy of the information.

Section 1.7 What is a refusal to take a federally regulated drug test?

    (a) A donor for a federally regulated drug test, has refused to 
take a federally regulated drug test when he/she:
    (1) Fails to appear for any test within a reasonable time, as 
determined by the Federal agency, consistent with applicable agency 
regulations, after being directed to do so by the Federal agency;
    (2) Fails to remain at the collection site until the collection 
process is complete;
    (3) Fails to provide a specimen (e.g., oral fluid or another 
authorized specimen type) for any drug test required by these 
Guidelines or Federal agency regulations;
    (4) Fails to provide a sufficient amount of oral fluid when 
directed, and it has been determined, through a required medical 
evaluation, that there was no legitimate medical explanation for the 
failure as determined by the process described in Section 13.6;
    (5) Fails or declines to participate in an alternate specimen 
collection (e.g., urine) as directed by the Federal agency or collector 
(i.e., as described in Section 8.6);
    (6) Fails to undergo a medical examination or evaluation, as 
directed by the MRO as part of the verification process (i.e., Section 
13.6) or as directed

[[Page 68373]]

by the Federal agency. In the case of a Federal agency applicant/pre-
employment drug test, the donor is deemed to have refused to test on 
this basis only if the Federal agency applicant/pre-employment test is 
conducted following a contingent offer of employment. If there was no 
contingent offer of employment, the MRO will cancel the test;
    (7) Fails to cooperate with any part of the testing process (e.g., 
disrupts the collection process, fails to rinse the mouth or wash hands 
after being directed to do so by the collector, refuses to provide a 
split specimen, does not consent to testing or withdraws consent for 
testing);
    (8) Brings materials to the collection site for the purpose of 
adulterating, substituting, or diluting the specimen;
    (9) Attempts to adulterate, substitute, or dilute the specimen;
    (10) Admits to the collector or MRO that he/she has adulterated or 
substituted the specimen;

Section 1.8 What are the potential consequences for refusing to take a 
federally regulated drug test?

    (a) A refusal to take a test may result in the initiation of 
disciplinary or adverse action for a federal employee, up to and 
including removal from Federal employment. An applicant's refusal to 
take a pre-employment test may result in non-selection for Federal 
employment.
    (b) When a donor has refused to participate in a part of the 
collection process, including failing to appear at a reasonable time 
for any test, the collector must terminate the collection process and 
take action as described in Section 8.9. Required action includes 
immediately notifying the federal agency's designated representative by 
any means (e.g., telephone, email, or secure facsimile [fax] machine) 
that ensures that the refusal notification is immediately received and, 
if a Federal CCF has been initiated, documenting the refusal on the 
Federal CCF, signing and dating the Federal CCF, and sending all copies 
of the Federal CCF to the Federal agency's designated representative.
    (c) When documenting a refusal to test during the verification 
process as described in Sections 13.4, 13.5, and 13.6, the MRO must 
complete the MRO copy of the Federal CCF to include:
    (1) Checking the refusal to test box;
    (2) Providing a reason for the refusal in the remarks line; and
    (3) Signing and dating the MRO copy of the Federal CCF.

Subpart B--Oral Fluid Specimens

Section 2.1 What type of specimen may be collected?

    A federal agency may collect oral fluid and/or an alternate 
specimen type for its workplace drug testing program. Only specimen 
types authorized by Mandatory Guidelines for Federal Workplace Drug 
Testing Programs may be collected. An agency using oral fluid must 
follow these Guidelines.

Section 2.2 Under what circumstances may an oral fluid specimen be 
collected?

    A Federal agency may collect an oral fluid specimen for the 
following reasons:
    (a) Pre-employment test (i.e., for all applicants including Federal 
agency employees);
    (b) Random test;
    (c) Reasonable suspicion/cause test;
    (d) Post-accident test;
    (e) Return to duty test; or
    (f) Follow-up test.

Section 2.3 How is each oral fluid specimen collected?

    Each oral fluid specimen is collected as a split specimen (i.e., 
collected either simultaneously or serially) as described in Sections 
2.5 and 8.8.

Section 2.4 What volume of oral fluid is collected?

    A volume of at least 1 mL of undiluted (neat) oral fluid for each 
oral fluid specimen (designated ``Tube A'' and ``Tube B'') is collected 
using a collection device. If the device does not include a diluent (or 
other component, process, or method that modifies the volume of the 
testable specimen), the A and B tubes must have a volume marking 
clearly noting a level of 1 mL.

Section 2.5 How is the split oral fluid specimen collected?

    The collector collects at least 1 mL of undiluted (neat) oral fluid 
in a collection device designated as ``A'' (primary) and at least 1 mL 
of undiluted (neat) oral fluid in a collection device designated as 
``B'' (split) either simultaneously or serially (i.e., using two 
devices or using one device and subdividing the specimen), as described 
in Section 8.8.

Section 2.6 When may an entity or individual release an oral fluid 
specimen?

    Entities and individuals subject to these Guidelines under Section 
1.1 may not release specimens collected pursuant to Executive Order 
12564, Public Law 100-71, and these Guidelines to donors or their 
designees. Specimens also may not be released to any other entity or 
individual unless expressly authorized by these Guidelines or by 
applicable Federal law. This section does not prohibit a donor's 
request to have a split (B) specimen tested in accordance with Section 
13.9.

Subpart C--Oral Fluid Specimen Tests

Section 3.1 Which tests are conducted on an oral fluid specimen?

    A Federal agency:
    (a) Must ensure that each specimen is tested for marijuana and 
cocaine as provided in the drug testing panel described under Section 
3.5;
    (b) Is authorized to test each specimen for other Schedule I or II 
drugs as provided in the drug testing panel;
    (c) Is authorized upon a Medical Review Officer's request to test 
an oral fluid specimen to determine specimen validity using, for 
example, a test for a specific adulterant;
    (d) Is authorized to test each specimen for one or more HHS-
authorized biomarkers; and
    (e) May perform additional testing if a specimen exhibits abnormal 
characteristics (e.g., unusual odor or color, semi-solid 
characteristics), causes reactions or responses characteristic of an 
adulterant during initial or confirmatory drug tests (e.g., non-
recovery of internal standard, unusual response), or contains an 
unidentified substance that interferes with the confirmatory analysis.

Section 3.2 May a specimen be tested for drugs other than those in the 
drug testing panel?

    A Federal agency covered by these Guidelines may test their 
workplace specimens for the drugs listed in the drug testing panel and 
any other drugs listed in Schedule I or II of the Controlled Substances 
Act subject to the procedures listed in paragraphs (a) and (b) of this 
section.
    (a) A Federal agency may test a reasonable suspicion or post-
accident specimen for additional Schedule I or II drugs not listed in 
the drug testing panel on a case-by-case basis. The agency must request 
the HHS-certified laboratory to test for the additional drug, include a 
justification to test a specific specimen for the drug, and ensure that 
the HHS-certified laboratory has the capability to test for the drug 
and has established properly validated initial and confirmatory 
analytical methods. If an initial test procedure is not available upon 
request for a suspected Schedule I or Schedule II drug, the Federal 
agency can request an HHS-certified laboratory

[[Page 68374]]

to test for the drug by analyzing two separate aliquots of the specimen 
in two separate testing batches using the confirmatory analytical 
method. Additionally, the split (B) specimen will be available for 
testing if the donor requests a retest at another HHS-certified 
laboratory.
    (b) A Federal agency must petition the Secretary in writing for 
approval to routinely test for any drug not listed in the drug testing 
panel described under Section 3.5. Such approval must be limited to the 
use of appropriate science and technology and must not otherwise limit 
agency discretion to test for any drug tested under Section 3.2(a).

Section 3.3 May a specimen be tested for biomarkers other than those in 
the biomarker testing panel?

    An HHS-certified laboratory or (for urine) IITF must obtain 
authorization from the Department before implementing a biomarker test 
for Federal agency drug testing specimens. The Department may add the 
biomarker (i.e., initial, and confirmatory test analytes and cutoffs) 
to the subsequent biomarker testing panel published in the Federal 
Register.
    A Federal agency covered by these Guidelines may test their 
workplace specimens for any HHS-authorized biomarker routinely (see 
Section 3.1.d) or on a case-by-case basis (see Section 3.6).

Section 3.4 May any of the specimens be used for other purposes?

    (a) Specimens collected pursuant to Executive Order 12564, Public 
Law 100-71, and these Guidelines must only be tested for drugs and to 
determine their validity in accordance with subpart C of these 
Guidelines. Use of specimens by donors, their designees, or any other 
entity, for other purposes (e.g., deoxyribonucleic acid, DNA, testing) 
is prohibited unless authorized in accordance with applicable Federal 
law.
    (b) These Guidelines are not intended to prohibit a federal agency 
specifically authorized by law to test a specimen for additional drugs 
in its workplace drug testing program.

Section 3.5 What are the drug and biomarker test analytes and cutoffs 
for undiluted (neat) oral fluid?

    The Secretary publishes the drug and biomarker test analytes and 
cutoffs (i.e., the ``drug testing panel'' and ``biomarker testing 
panel'') for initial and confirmatory drug and biomarker tests in the 
Federal Register.
    (a) The drug testing panel includes drugs authorized for testing in 
federal workplace drug testing programs, with the required test 
analytes and cutoffs.
    (b) The biomarker testing panel includes biomarkers authorized for 
testing in federal workplace drug testing programs, with the required 
test analytes and cutoffs.
    (c) HHS-certified laboratories and Medical Review Officers must use 
the nomenclature (i.e., analyte names and abbreviations) published in 
the Federal Register with the drug and biomarker testing panels to 
report federal workplace drug test results.

Section 3.6 May an HHS-certified laboratory perform additional drug 
and/or specimen validity tests on a specimen at the request of the 
Medical Review Officer (MRO)?

    An HHS-certified laboratory is authorized to perform additional 
drug and/or specimen validity tests on a case-by-case basis as 
necessary to provide information that the MRO would use to report a 
verified drug test result (e.g., specimen validity tests). An HHS-
certified laboratory is not authorized to routinely perform additional 
drug and/or specimen validity tests at the request of an MRO without 
prior authorization from the Secretary or designated HHS 
representative, with the exception of the determination of d,l 
stereoisomers of amphetamine and methamphetamine. All tests must meet 
appropriate validation and quality control requirements in accordance 
with these Guidelines.

Section 3.7 What criteria are used to report an oral fluid specimen as 
adulterated?

    An HHS-certified laboratory reports a primary (A) specimen as 
adulterated when the presence of an adulterant is verified using an 
initial test on the first aliquot and a different confirmatory test on 
the second aliquot.

Section 3.8 What criteria are used to report an oral fluid specimen as 
substituted?

    An HHS-certified laboratory reports a primary (A) oral fluid 
specimen as substituted when a biomarker is not detected or is present 
at a concentration inconsistent with that established for human oral 
fluid for both the initial (first) test and the confirmatory (second) 
test on two separate aliquots (i.e., using the HHS-authorized test 
analytes and cutoffs).

Section 3.9 What criteria are used to report an invalid result for an 
oral fluid specimen?

    An HHS-certified laboratory reports a primary (A) oral fluid 
specimen as an invalid result when:
    (a) Interference occurs on the initial drug tests on two separate 
aliquots (i.e., valid initial drug test results cannot be obtained);
    (b) Interference with the confirmatory drug test occurs on two 
separate aliquots of the specimen and the laboratory is unable to 
identify the interfering substance;
    (c) The physical appearance of the specimen (e.g., viscosity) is 
such that testing the specimen may damage the laboratory's instruments;
    (d) The specimen has been tested, and the appearances of the 
primary (A) and the split (B) specimens (e.g., color) are clearly 
different; or
    (e) A specimen validity test on two separate aliquots of the 
specimen indicates that the specimen is not valid for testing.

Subpart D--Collectors

Section 4.1 Who may collect an oral fluid specimen?

    (a) A collector who has been trained to collect oral fluid 
specimens in accordance with these Guidelines and the manufacturer's 
procedures for the collection device.
    (b) The immediate supervisor of a federal employee may only collect 
that employee's specimen when no other collector is available. The 
supervisor must be a trained collector.
    (c) The hiring official of an applicant may only collect that 
applicant's specimen when no other collector is available. The hiring 
official must be a trained collector.

Section 4.2 Who may not collect a specimen?

    (a) A Federal agency employee who is in a testing designated 
position and subject to the Federal agency drug testing rules must not 
be a collector for co-workers in the same testing pool or who work with 
that employee on a daily basis.
    (b) A donor must not collect their own drug testing specimen.
    (c) An employee working for an HHS-certified laboratory must not 
act as a collector if the employee could link the identity of the donor 
to the donor's drug test result.
    (d) To avoid a potential conflict of interest, a collector must not 
be related to the donor (e.g., spouse, ex-spouse, relative) or be a 
personal friend of the donor (e.g., fianc[eacute]e).

[[Page 68375]]

Section 4.3 What are the requirements to be a collector?

    (a) An individual may serve as a collector if they fulfill the 
following conditions:
    (1) Is knowledgeable about the collection procedure described in 
these Guidelines;
    (2) Is knowledgeable about any guidance provided by the federal 
agency's drug-free workplace program and additional information 
provided by the Secretary relating to the collection procedure 
described in these Guidelines;
    (3) Is trained and qualified to use the specific oral fluid 
collection device. Training must include the following:
    (i) All steps necessary to complete an oral fluid collection;
    (ii) Completion and distribution of the federal CCF;
    (iii) Problem collections;
    (iv) Fatal flaws, correctable flaws, and how to correct problems in 
collections; and
    (v) The collector's responsibility for maintaining the integrity of 
the collection process, ensuring the privacy of the donor, ensuring the 
security of the specimen, and avoiding conduct or statements that could 
be viewed as offensive or inappropriate.
    (4) Has demonstrated proficiency in collections by completing five 
consecutive error-free mock collections.
    (i) The five mock collections must include two uneventful 
collection scenarios, one insufficient specimen quantity scenario, one 
scenario in which the donor refuses to sign the federal CCF, and one 
scenario in which the donor refuses to initial the specimen tube 
tamper-evident seal.
    (ii) A qualified trainer for collectors must monitor and evaluate 
the individual being trained in person or by a means that provides 
real-time observation and interaction between the trainer and the 
trainee, and the trainer must attest in writing that the mock 
collections are error-free.
    (b) A trained collector must complete refresher training at least 
every five years that includes the requirements in Section 4.3(a).
    (c) The collector must maintain the documentation of their training 
and provide that documentation to a federal agency when requested.
    (d) An individual may not collect specimens for a federal agency 
until the individual's training as a collector has been properly 
documented.

Section 4.4 What are the requirements to be a trainer for collectors?

    (a) Individuals are considered qualified trainers for collectors 
for a specific oral fluid collection device and may train others to 
collect oral fluid specimens using that collection device when they 
have completed the following:
    (1) Qualified as a trained collector and regularly conduct oral 
fluid drug test collections using that collection device for a period 
of at least one year or
    (2) Completed a ``train the trainer'' course given by an 
organization (e.g., manufacturer, private entity, contractor, Federal 
agency).
    (b) A qualified trainer for collectors must complete refresher 
training at least every five years in accordance with the collector 
requirements in Section 4.3(a).
    (c) A qualified trainer for collectors must maintain the 
documentation for the trainer's training and provide that documentation 
to a federal agency when requested.

Section 4.5 What must a federal agency do before a collector is 
permitted to collect a specimen?

    A federal agency must ensure the following:
    (a) The collector has satisfied the requirements described in 
Section 4.3;
    (b) The collector, who may be self-employed, or an organization 
(e.g., third party administrator that provides a collection service, 
collector training company, federal agency that employs its own 
collectors) maintains a copy of the training record(s); and
    (c) The collector has been provided with the name and telephone 
number of the federal agency representative.

Subpart E--Collection Sites

Section 5.1 Where can a collection for a drug test take place?

    (a) A collection site may be a permanent or temporary facility 
located either at the work site or at a remote site.
    (b) In the event that an agency-designated collection site is not 
accessible and there is an immediate requirement to collect an oral 
fluid specimen (e.g., an accident investigation), another site may be 
used for the collection, providing the collection is performed by a 
collector who has been trained to collect oral fluid specimens in 
accordance with these Guidelines and the manufacturer's procedures for 
the collection device.

Section 5.2 What are the requirements for a collection site?

    The facility used as a collection site must have the following:
    (a) Provisions to ensure donor privacy during the collection (as 
described in Section 8.1);
    (b) A suitable and clean surface area that is not accessible to the 
donor for handling the specimens and completing the required paperwork;
    (c) A secure temporary storage area to maintain specimens until the 
specimen is transferred to an HHS-certified laboratory;
    (d) A restricted access area where only authorized personnel may be 
present during the collection;
    (e) A restricted access area for the storage of collection 
supplies; and
    (f) A restricted access area for the secure storage of records.

Section 5.3 Where must collection site records be stored?

    Collection site records must be stored at a secure site designated 
by the collector or the collector's employer.

Section 5.4 How long must collection site records be stored?

    Collection site records (e.g., collector copies of the OMB-approved 
federal CCF) must be stored securely for a minimum of 2 years. The 
collection site may convert hardcopy records to electronic records for 
storage and discard the hardcopy records after 6 months.

Section 5.5 How does the collector ensure the security and integrity of 
a specimen at the collection site?

    (a) A collector must do the following to maintain the security and 
integrity of a specimen:
    (1) Not allow unauthorized personnel to enter the collection area 
during the collection procedure;
    (2) Perform only one donor collection at a time;
    (3) Restrict access to collection supplies before, during, and 
after collection;
    (4) Ensure that only the collector and the donor are allowed to 
handle the unsealed specimen;
    (5) Ensure the chain of custody process is maintained and 
documented throughout the entire collection, storage, and transport 
procedures;
    (6) Ensure that the federal CCF is completed and distributed as 
required; and
    (7) Ensure that specimens transported to an HHS-certified 
laboratory are sealed and placed in transport containers designed to 
minimize the possibility of damage during shipment (e.g., specimen 
boxes, padded mailers, or other suitable shipping containers), and 
those containers are securely sealed to eliminate the possibility of 
undetected tampering;
    (b) Couriers, express carriers, and postal service personnel are 
not

[[Page 68376]]

required to document chain of custody since specimens are sealed in 
packages that would indicate tampering during transit to the HHS-
certified laboratory.

Section 5.6 What are the privacy requirements when collecting an oral 
fluid specimen?

    Collections must be performed at a site that provides reasonable 
privacy (as described in Section 8.1).

Subpart F--Federal Drug Testing Custody and Control Form

Section 6.1 What federal form is used to document custody and control?

    The OMB-approved Federal CCF must be used to document custody and 
control of each specimen at the collection site.

Section 6.2 What happens if the correct OMB-approved federal CCF is not 
available or is not used?

    (a) The use of a non-federal CCF or an expired federal CCF is not, 
by itself, a reason for the HHS-certified laboratory to automatically 
reject the specimen for testing or for the MRO to cancel the test.
    (b) If the collector does not use the correct OMB-approved federal 
CCF, the collector must document that it is a federal agency specimen 
collection and provide the reason that the incorrect form was used. 
Based on the information provided by the collector, the HHS-certified 
laboratory must handle and test the specimen as a federal agency 
specimen.
    (c) If the HHS-certified laboratory or MRO discovers that the 
collector used an incorrect form, the laboratory or MRO must obtain a 
memorandum for the record from the collector describing the reason the 
incorrect form was used. If a memorandum for the record cannot be 
obtained, the laboratory reports a rejected for testing result to the 
MRO and the MRO cancels the test. The HHS-certified laboratory must 
wait at least 5 business days while attempting to obtain the memorandum 
before reporting a rejected for testing result to the MRO.

Subpart G--Oral Fluid Specimen Collection Devices

Section 7.1 What is used to collect an oral fluid specimen?

    A single-use collection device intended to collect an oral fluid 
specimen must be used. This collection device must maintain the 
integrity of such specimens during storage and transport so that the 
specimen contained therein can be tested in an HHS-certified laboratory 
for the presence of drugs or their metabolites.

Section 7.2 What are the requirements for an oral fluid collection 
device?

    An oral fluid specimen collection device must provide:
    (a) An indicator that demonstrates the adequacy of the volume of 
oral fluid specimen collected;
    (b) One or two sealable, non-leaking tubes [depending on the device 
type, as described in Section 8.8(a)] that:
    (1) maintain the integrity of the specimen during storage and 
transport so that the specimen contained therein can be tested in an 
HHS-certified laboratory for the presence of drugs or their 
metabolites,
    (2) are sufficiently transparent (e.g., translucent) to enable a 
visual assessment of the contents (i.e., oral fluid, buffer/diluent, 
collection pad) for identification of abnormal physical characteristics 
without opening the tube, and
    (3) include the device lot expiration date on each specimen tube 
(i.e., the expiration date of the buffer/diluent or, for devices 
without a buffer/diluent, the earliest expiration date of any device 
component);
    (c) Components that ensure pre-analytical drug and drug metabolite 
stability; and
    (d) Components that do not substantially affect the composition of 
drugs and/or drug metabolites in the oral fluid specimen.

Section 7.3 What are the minimum performance requirements for a 
collection device?

    An oral fluid collection device must meet the following minimum 
performance requirements.
    (a) Reliable collection of a minimum of 1 mL of undiluted (neat) 
oral fluid;
    (b) If the collection device contains a diluent (or other 
component, process, or method that modifies the volume of the testable 
specimen):
    (1) The volume of oral fluid collected should be at least 1.0 mL 
<plus-minus>10 percent, and
    (2) The volume of diluent in the device should be within <plus-
minus>2.5 percent of the diluent target volume;
    (c) Stability (recoverable concentrations >=80 percent of the 
concentration at the time of collection) of the drugs and/or drug 
metabolites for five days at room temperature (64-77 [deg]F/18-25 
[deg]C) and under the manufacturer's intended shipping and storage 
conditions; and
    (d) Recover >=80 percent (but no more than 120 percent) of drug 
and/or drug metabolite in the undiluted (neat) oral fluid at (or near) 
the initial test cutoff listed in the drug testing panel.

Subpart H--Oral Fluid Specimen Collection Procedure

Section 8.1 What privacy must the donor be given when providing an oral 
fluid specimen?

    The following privacy requirements apply when a donor is providing 
an oral fluid specimen:
    (a) Only authorized personnel and the donor may be present in the 
restricted access area where the collection takes place.
    (b) The collector is not required to be the same sex as the donor.

Section 8.2 What must the collector ensure at the collection site 
before starting an oral fluid specimen collection?

    The collector must take all reasonable steps to prevent the 
adulteration or substitution of an oral fluid specimen at the 
collection site.

Section 8.3 What are the preliminary steps in the oral fluid specimen 
collection procedure?

    The collector must take the following steps before beginning an 
oral fluid specimen collection:
    (a) If a donor fails to arrive at the collection site at the 
assigned time, the collector must follow the Federal agency policy or 
contact the federal agency representative to obtain guidance on action 
to be taken.
    (b) When the donor arrives at the collection site, the collector 
should begin the collection procedure without undue delay. For example, 
the collection should not be delayed because an authorized employer or 
employer representative is late in arriving.
    (c) The collector requests the donor to present photo 
identification (e.g., driver's license; employee badge issued by the 
employer; an alternative photo identification issued by a Federal, 
state, or local government agency). If the donor does not have proper 
photo identification, the collector shall contact the supervisor of the 
donor or the federal agency representative who can positively identify 
the donor. If the donor's identity cannot be established, the collector 
must not proceed with the collection.
    (d) The collector must provide identification (e.g., employee 
badge, employee list) if requested by the donor.
    (e) The collector asks the donor to remove any unnecessary outer 
garments (e.g., coat, jacket) that might conceal items or substances 
that could be used to adulterate or substitute the oral fluid specimen. 
The collector must ensure that all personal belongings (e.g., purse

[[Page 68377]]

or briefcase) remain with the outer garments. The donor may retain the 
donor's wallet. The donor is not required to remove any items worn for 
faith-based or disability reasons.
    (f) If the donor remains under the collector's direct observation 
until the end of the collection, including the 10-minute wait period 
described in Section 8.3(h), the collector proceeds to Section 8.3(g). 
If the collector will not keep the donor under direct observation from 
this point until the end of the collection, the collector asks the 
donor to empty the donor's pockets and display the contents to ensure 
no items are present that could be used to adulterate or substitute the 
specimen.
    (1) If no items are present that can be used to adulterate or 
substitute the specimen, the collector instructs the donor to return 
the items to their pockets and continues the collection procedure.
    (2) If an item is present whose purpose is to adulterate or 
substitute the specimen (e.g., a commercial drug culture product or 
other substance for which the donor has no reasonable explanation), 
this is considered a refusal to test. The collector must stop the 
collection and report the refusal to test as described in Section 8.9.
    (3) If an item that could be used to adulterate or substitute the 
specimen (e.g., common personal care products such as mouthwash, 
lozenges, capsules) appears to have been inadvertently brought to the 
collection site, the collector must secure the item and continue with 
the normal collection procedure.
    (4) If the donor refuses to show the collector the items in their 
pockets, the collector must keep the donor under direct observation 
until the end of the oral fluid collection.
    (g) The collector requests that the donor open the donor's mouth, 
and the collector inspects the oral cavity to ensure that it is free of 
any items (e.g., candy, gum, food, tobacco) that could impede or 
interfere with the collection of an oral fluid specimen or items that 
could be used to adulterate, substitute, or dilute the specimen.
    (1) If an item is present whose purpose is to adulterate or 
substitute the specimen (e.g., a commercial drug culture product or 
other item for which the donor has no reasonable explanation), this is 
considered a refusal to test. The collector must stop the collection 
and report the refusal to test as described in Section 8.9.
    (2) If an item is present that could impede or interfere with the 
collection of an oral fluid specimen (including abnormally colored 
saliva), or the donor claims to have ``dry mouth,'' the collector gives 
the donor water (e.g., up to 4 oz.) to rinse their mouth. The donor may 
drink the water. If the donor refuses to remove the item or refuses to 
rinse, this is a refusal to test.
    (3) If the donor claims that they have a medical condition that 
prevents opening their mouth for inspection, the collector follows the 
procedure in Section 8.6(b)(2).
    (h) The collector must initiate a 10-minute wait period prior to 
collecting the specimen. During these 10 minutes, the collector must:
    (1) Explain the basic collection procedure to the donor;
    (2) Provide the instructions for completing the federal CCF for the 
donor's review and informs the donor that these instructions and the 
collection device-specific instructions are available upon request.
    (3) Answer any reasonable and appropriate questions the donor may 
have regarding the collection procedure; and
    (4) Inform the donor that they must remain at the collection site 
(i.e., in the area designated by the collector) during the wait period, 
and that failure to follow these instructions will be reported as a 
refusal to test.

Section 8.4 What steps does the collector take in the collection 
procedure before the donor provides an oral fluid specimen?

    (a) The collector shall instruct the donor to wash and dry the 
donor's hands under the collector's observation, and to keep their 
hands within view and avoid touching items or surfaces after 
handwashing. If the donor refuses to wash their hands when instructed 
by the collector, this is a refusal to test.
    (b) The collector will provide or the donor may select the specimen 
collection device(s) to be used for the collection. The device(s) must 
be clean, unused, wrapped/sealed in original packaging, and compliant 
with Subpart G of these Guidelines; and must be within the 
manufacturer's expiration date printed on the specimen tube. See 
Section 8.8(a) for types of specimen collection devices used for oral 
fluid split specimen collections.
    (1) The collector will open the package in view of the donor.
    (2) Both the collector and the donor must keep the unwrapped 
collection devices in view at all times until each collection device 
containing the donor's oral fluid specimen has been sealed and labeled.
    (c) The collector verifies that each device is within the 
manufacturer's expiration date and documents this action on the Federal 
CCF.
    (d) The collector reviews with the donor the procedures required 
for a successful oral fluid specimen collection as stated in the 
manufacturer's instructions for the specimen collection device.
    (e) The collector notes any unusual behavior or appearance of the 
donor on the federal CCF. If the collector detects any conduct that 
clearly indicates an attempt to tamper with a specimen (e.g., an 
attempt to prevent the device from collecting sufficient oral fluid; an 
attempt to bring into the collection site an adulterant or oral fluid 
substitute), the collector must report a refusal to test in accordance 
with Section 8.9.

Section 8.5 What steps does the collector take during and after the 
oral fluid specimen collection procedure?

    Integrity and Identity of the Specimen. The collector must take the 
following steps during and after the donor provides the oral fluid 
specimen:
    (a) The collector shall be present and maintain visual contact with 
the donor during the procedures outlined in this section.
    (1) Under the observation of the collector, the donor is 
responsible for positioning the specimen collection device for 
collection. The collector must ensure the collection is performed 
correctly and that the collection device is working properly. If there 
is a failure to collect the specimen, the collector must begin the 
process again, beginning with Step 8.4(b), using a new specimen 
collection device (for both A and B specimens) and notes the failed 
collection attempt on the Federal CCF. If the donor states that they 
are unable to provide an oral fluid specimen during the collection 
process or after multiple failures to collect the specimen, the 
collector follows the procedure in Section 8.6.
    (2) The donor and the collector must complete the collection in 
accordance with the manufacturer instructions for the collection 
device.
    (3) The collector must inspect the specimen to determine if there 
is any sign indicating that the specimen may not be a valid oral fluid 
specimen (e.g., unusual color, presence of foreign objects or 
material), documents any unusual findings on the federal CCF, and takes 
action (e.g., recollection) to obtain an acceptable specimen.
    (b) If the donor fails to remain present through the completion of 
the collection, fails to follow the instructions for the collection 
device, refuses to begin the collection process after a failure to 
collect the specimen as

[[Page 68378]]

required in Section 8.5(a)(1), refuses to provide a split specimen as 
instructed by the collector, or refuses to provide an alternate 
specimen when directed to do so, the collector stops the collection and 
reports the refusal to test in accordance with Section 8.9.

Section 8.6 What procedure is used when the donor states that they are 
unable to provide an oral fluid specimen?

    (a) If the donor states that they are unable to provide an oral 
fluid specimen during the collection process, the collector requests 
that the donor follow the collector's instructions and attempt to 
provide an oral fluid specimen.
    (b) The donor demonstrates their inability to provide a specimen 
when, after the time limit specified by the collection device 
manufacturer, there is insufficient volume or no oral fluid collected 
using the device.
    (1) If the donor states that they could provide a specimen after 
drinking some fluids, the collector gives the donor a drink (up to 8 
ounces) and waits an additional 10 minutes before beginning the 
specimen collection (a period of 1 hour must be provided or until the 
donor has provided a sufficient oral fluid specimen). If the donor 
simply needs more time before attempting to provide an oral fluid 
specimen, the donor may choose not to drink any fluids during the 1 
hour wait time. The collector must inform the donor that the donor must 
remain at the collection site (i.e., in an area designated by the 
collector) during the waiting period.
    (2) If the donor states that they are unable to provide an oral 
fluid specimen, the collector records the reason for not collecting an 
oral fluid specimen on the federal CCF, notifies the Federal agency's 
designated representative for authorization to collect an alternate 
specimen, and sends the appropriate copies of the federal CCF to the 
MRO and to the federal agency's designated representative. The federal 
agency may choose to provide the collection site with a standard 
protocol to follow in lieu of requiring the collector to notify the 
agency's designated representative for authorization in each case. If 
an alternate specimen is authorized, the collector begins the 
collection procedure for the alternate specimen (see Section 8.7) in 
accordance with the Mandatory Guidelines for Federal Workplace Drug 
Testing Programs using the alternate specimen.

Section 8.7 If the donor is unable to provide an oral fluid specimen, 
may another specimen type be collected for testing?

    Yes, if the alternate specimen type is authorized by Mandatory 
Guidelines for Federal Workplace Drug Testing Programs and specifically 
authorized by the Federal agency.

Section 8.8 How does the collector prepare the oral fluid specimens?

    (a) All Federal agency collections are to be split specimen 
collections. An oral fluid split specimen collection may be:
    (1) Two specimens collected simultaneously with two separate 
collection devices;
    (2) Two specimens collected serially with two separate collection 
devices. The donor is not allowed to drink or rinse their mouth between 
the two collections. Collection of the second specimen must begin 
within two minutes after the completion of the first collection and be 
recorded on the federal CCF;
    (3) Two specimens collected simultaneously using a single 
collection device that directs the oral fluid into two separate 
collection tubes; or
    (4) A single specimen collected using a single collection device, 
that is subsequently subdivided into two specimens.
    (b) A volume of at least 1 mL of undiluted (neat) oral fluid is 
collected for the specimen designated as ``Tube A'' and a volume of at 
least 1 mL of undiluted (neat) oral fluid is collected for the specimen 
designated as ``Tube B''.
    (c) In the presence of the donor, the collector places a tamper-
evident label/seal from the Federal CCF over the cap of each specimen 
tube in a manner to ensure that any attempt to access the specimen 
prior to receipt by the laboratory will be detected. The collector 
records the date of the collection on the tamper-evident labels/seals.
    (d) The collector instructs the donor to initial the tamper-evident 
labels/seals on each specimen tube. If the donor refuses to initial the 
labels/seals, the collector notes the refusal on the federal CCF and 
continues with the collection process.
    (e) The collector must ensure that all required information is 
included in the federal CCF.
    (f) The collector asks the donor to read and sign a statement on 
the federal CCF certifying that the specimens identified were collected 
from the donor. If the donor refuses to sign the certification 
statement, the collector notes the refusal on the federal CCF and 
continues with the collection process.
    (g) The collector signs and prints their name on the federal CCF, 
completes the federal CCF, and distributes the copies of the federal 
CCF as required.
    (h) The collector seals the specimens (A and B) in a package and, 
within 24 hours or during the next business day, sends them to the HHS-
certified laboratory that will be testing the primary (A) specimen.
    (i) If the specimen and federal CCF are not immediately transported 
to an HHS-certified laboratory, they must remain under direct control 
of the collector or be appropriately secured under proper specimen 
storage conditions until transported.

Section 8.9 How does the collector report a donor's refusal to test?

    If there is a refusal to test as defined in Section 1.7, the 
collector stops the collection, discards any oral fluid specimen 
collected and reports the refusal to test by:
    (a) Notifying the federal agency by means (e.g., telephone, email, 
or secure fax) that ensures that the notification is immediately 
received,
    (b) Documenting the refusal to test including the reason on the 
federal CCF, and
    (c) Sending all copies of the federal CCF to the Federal agency's 
designated representative.

Section 8.10 What are a federal agency's responsibilities for a 
collection site?

    (a) A federal agency must ensure that collectors and collection 
sites satisfy all requirements in subparts D, E, F, G, and H of these 
Guidelines.
    (b) A federal agency (or only one Federal agency when several 
agencies are using the same collection site) must inspect 5 percent or 
up to a maximum of 50 collection sites each year, selected randomly 
from those sites used to collect agency specimens (e.g., virtual, 
onsite, or self-evaluation).
    (c) A federal agency must investigate reported collection site 
deficiencies (e.g., specimens reported ``rejected for testing'' by an 
HHS-certified laboratory) and take appropriate action which may include 
a collection site self-assessment (i.e., using the Collection Site 
Checklist for the Collection of Oral Fluid Specimens for Federal Agency 
Workplace Drug Testing Programs) or an inspection of the collection 
site. The inspections of these additional collection sites may be 
included in the 5 percent or maximum of 50 collection sites inspected 
annually.

[[Page 68379]]

Subpart I--HHS Certification of Laboratories

Section 9.1 Who has the authority to certify laboratories to test oral 
fluid specimens for federal agencies?

    (a) The Secretary has broad discretion to take appropriate action 
to ensure the full reliability and accuracy of drug testing and 
reporting, to resolve problems related to drug testing, and to enforce 
all standards set forth in these Guidelines. The Secretary has the 
authority to issue directives to any HHS-certified laboratory, 
including suspending the use of certain analytical procedures when 
necessary to protect the integrity of the testing process; ordering any 
HHS-certified laboratory to undertake corrective actions to respond to 
material deficiencies identified by an inspection or through 
performance testing; ordering any HHS-certified laboratory to send 
specimens or specimen aliquots to another HHS-certified laboratory for 
retesting when necessary to ensure the accuracy of testing under these 
Guidelines; ordering the review of results for specimens tested under 
the Guidelines for private sector clients to the extent necessary to 
ensure the full reliability of drug testing for federal agencies; and 
ordering any other action necessary to address deficiencies in drug 
testing, analysis, specimen collection, chain of custody, reporting of 
results, or any other aspect of the certification program.
    (b) A laboratory is prohibited from stating or implying that it is 
certified by HHS under these Guidelines to test oral fluid specimens 
for federal agencies unless it holds such certification.

Section 9.2 What is the process for a laboratory to become HHS-
certified?

    (a) A laboratory seeking HHS certification must:
    (1) Submit a completed OMB-approved application form (i.e., the 
applicant laboratory provides detailed information on both the 
administrative and analytical procedures to be used for federally 
regulated specimens);
    (2) Have its application reviewed as complete and accepted by HHS;
    (3) Successfully complete the PT challenges in 3 consecutive sets 
of initial PT samples;
    (4) Satisfy all the requirements for an initial inspection; and
    (5) Receive notification of certification from the Secretary before 
testing specimens for Federal agencies.

Section 9.3 What is the process for a laboratory to maintain HHS 
certification?

    (a) To maintain HHS certification, a laboratory must:
    (1) Successfully participate in both the maintenance PT and 
inspection programs (i.e., successfully test the required quarterly 
sets of maintenance PT samples, undergo an inspection 3 months after 
being certified, and undergo maintenance inspections at a minimum of 
every 6 months thereafter);
    (2) Respond in an appropriate, timely, and complete manner to 
required corrective action requests if deficiencies are identified in 
the maintenance PT performance, during the inspections, operations, or 
reporting; and
    (3) Satisfactorily complete corrective remedial actions and undergo 
special inspection and special PT sets to maintain or restore 
certification when material deficiencies occur in either the PT 
program, inspection program, or in operations and reporting.

Section 9.4 What is the process when a laboratory does not maintain its 
HHS certification?

    (a) A laboratory that does not maintain its HHS certification must:
    (1) Stop testing federally regulated specimens;
    (2) Ensure the security of federally regulated specimens and 
records throughout the required storage period described in Sections 
11.18, 11.19, and 14.8;
    (3) Ensure access to federally regulated specimens and records in 
accordance with Sections 11.21 and 11.22 and subpart P of these 
Guidelines; and
    (4) Follow the HHS suspension and revocation procedures when 
imposed by the Secretary, follow the HHS procedures in subpart P of 
these Guidelines that will be used for all actions associated with the 
suspension and/or revocation of HHS-certification.

Section 9.5 What are the qualitative and quantitative specifications of 
performance testing (PT) samples?

    (a) PT samples used to evaluate drug tests will be prepared using 
the following specifications:
    (1) PT samples may contain one or more of the drugs and drug 
metabolites listed in the drug testing panel and may be sent to the 
laboratory as undiluted (neat) oral fluid. The PT samples must satisfy 
one of the following parameters:
    (i) The concentration of a drug or metabolite will be at least 20 
percent above the initial test cutoff for the drug or drug metabolite;
    (ii) The concentration of a drug or metabolite may be as low as 40 
percent of the confirmatory test cutoff when the PT sample is 
designated as a retest sample; or
    (iii) The concentration of drug or metabolite may differ from 
Section 9.5(a)(1)(i) and (ii) for a special purpose.
    (2) A PT sample may contain an interfering substance, an 
adulterant, or other substances for special purposes, or may satisfy 
the criteria for a substituted specimen or invalid result.
    (3) A negative PT sample will not contain a measurable amount of a 
target analyte.
    (b) The laboratory must (to the greatest extent possible) handle, 
test, and report a PT sample in a manner identical to that used for a 
donor specimen, unless otherwise specified.

Section 9.6 What are the PT requirements for an applicant laboratory 
that seeks to perform oral fluid testing?

    (a) An applicant laboratory that seeks certification under these 
Guidelines to perform oral fluid testing must satisfy the following 
criteria on three consecutive sets of PT samples:
    (1) Have no false positive results;
    (2) Correctly identify, confirm, and report at least 90 percent of 
the total drug challenges over the three sets of PT samples;
    (3) For laboratories that will test primary (A) specimens, 
correctly identify at least 80 percent of the drug challenges for each 
initial drug test over the three sets of PT samples;
    (4) For the confirmatory drug tests, correctly determine the 
concentrations (i.e., no more than <plus-minus>20 percent or <plus-
minus>2 standard deviations [whichever is larger] from the appropriate 
reference or peer group means) for at least 80 percent of the total 
drug challenges over the three sets of PT samples;
    (5) For the confirmatory drug tests, do not obtain any drug 
concentration that differs by more than <plus-minus>50 percent from the 
appropriate reference or peer group mean;
    (6) For each confirmatory drug test, correctly identify and 
determine the concentrations (i.e., no more than <plus-minus>20 percent 
or <plus-minus>2 standard deviations [whichever is larger] from the 
appropriate reference or peer group means) for at least 50 percent of 
the drug challenges for an individual drug over the three sets of PT 
samples;
    (7) Correctly identify at least 80 percent of the total specimen 
validity testing challenges over the three sets of PT samples;
    (8) Correctly identify at least 80 percent of the challenges for 
each

[[Page 68380]]

individual specimen validity test over the three sets of PT samples;
    (9) For quantitative specimen validity tests, obtain quantitative 
values for at least 80 percent of the total challenges over the three 
sets of PT samples that satisfy the specified criteria; and
    (10) Do not report any PT sample as adulterated with a compound 
that is not present in the sample or substituted when the appropriate 
reference or peer group mean for a biomarker is within the acceptable 
range.
    (b) Failure to satisfy these requirements will result in the denial 
of the laboratory's application for HHS certification to perform oral 
fluid testing.

Section 9.7 What are the PT requirements for an HHS-certified oral 
fluid laboratory?

    (a) A laboratory certified under these Guidelines to perform oral 
fluid testing must satisfy the following criteria on the maintenance PT 
samples:
    (1) Have no false positive results;
    (2) Correctly identify, confirm, and report at least 90 percent of 
the total drug challenges over two consecutive PT cycles;
    (3) For laboratories that test primary (A) specimens, correctly 
identify at least 80 percent of the drug challenges for each initial 
drug test over two consecutive PT cycles;
    (4) For the confirmatory drug tests, correctly determine that the 
concentrations for at least 80 percent of the total drug challenges are 
no more than <plus-minus>20 percent or <plus-minus>2 standard 
deviations (whichever is larger) from the appropriate reference or peer 
group means over two consecutive PT cycles;
    (5) For the confirmatory drug tests, do not obtain any drug 
concentration that differs by more than <plus-minus>50 percent from the 
appropriate reference or peer group means;
    (6) For each confirmatory drug test, correctly identify and 
determine that the concentrations for at least 50 percent of the drug 
challenges for an individual drug are no more than <plus-minus>20 
percent or <plus-minus>2 standard deviations (whichever is larger) from 
the appropriate reference or peer group means over two consecutive PT 
cycles;
    (7) Correctly identify at least 80 percent of the total specimen 
validity testing challenges over two consecutive PT cycles;
    (8) Correctly identify at least 80 percent of the challenges for 
each individual specimen validity test over two consecutive PT cycles;
    (9) For quantitative specimen validity tests, obtain quantitative 
values for at least 80 percent of the total challenges over two 
consecutive PT cycles that satisfy the specified criteria; and
    (10) Do not report any PT sample as adulterated with a compound 
that is not present in the sample or substituted when the appropriate 
reference or peer group mean for a biomarker is within the acceptable 
range.
    (b) Failure to participate in all PT cycles or to satisfy these 
requirements may result in suspension or revocation of an HHS-certified 
laboratory's certification.

Section 9.8 What are the inspection requirements for an applicant 
laboratory?

    (a) An applicant laboratory is inspected by a team of two 
inspectors.
    (b) Each inspector conducts an independent review and evaluation of 
all aspects of the laboratory's testing procedures and facilities using 
an inspection checklist.

Section 9.9 What are the maintenance inspection requirements for an 
HHS-certified laboratory?

    (a) An HHS-certified laboratory must undergo an inspection 3 months 
after becoming certified and at least every 6 months thereafter.
    (b) An HHS-certified laboratory is inspected by two or more 
inspectors. The number of inspectors is determined according to the 
number of specimens to be reviewed.
    (c) Each inspector conducts an independent evaluation and review of 
the HHS-certified laboratory's procedures, records, and facilities 
using guidance provided by the Secretary.
    (d) To remain certified, an HHS-certified laboratory must continue 
to satisfy the minimum requirements as stated in these Guidelines.

Section 9.10 Who can inspect an HHS-certified laboratory and when may 
the inspection be conducted?

    (a) An individual may be selected as an inspector for the Secretary 
if they satisfy the following criteria:
    (1) Has experience and an educational background similar to that 
required for either a responsible person or a certifying scientist for 
an HHS-certified laboratory as described in subpart K of these 
Guidelines;
    (2) Has read and thoroughly understands the policies and 
requirements contained in these Guidelines and in other guidance 
consistent with these Guidelines provided by the Secretary;
    (3) Submits a resume and documentation of qualifications to HHS;
    (4) Attends approved training; and
    (5) Performs acceptably as an inspector on an inspection of an HHS-
certified laboratory.
    (b) The Secretary or a federal agency may conduct an inspection at 
any time.

Section 9.11 What happens if an applicant laboratory does not satisfy 
the minimum requirements for either the PT program or the inspection 
program?

    If an applicant laboratory fails to satisfy the requirements 
established for the initial certification process, the laboratory must 
start the certification process from the beginning.

Section 9.12 What happens if an HHS-certified laboratory does not 
satisfy the minimum requirements for either the PT program or the 
inspection program?

    (a) If an HHS-certified laboratory fails to satisfy the minimum 
requirements for certification, the laboratory is given a period of 
time (e.g., 5 or 30 working days depending on the nature of the 
deficiency) to provide any explanation for its performance and evidence 
that all deficiencies have been corrected.
    (b) A laboratory's HHS certification may be revoked, suspended, or 
no further action taken depending on the seriousness of the 
deficiencies and whether there is evidence that the deficiencies have 
been corrected and that current performance meets the requirements for 
certification.
    (c) An HHS-certified laboratory may be required to undergo a 
special inspection or to test additional PT samples to address 
deficiencies.
    (d) If an HHS-certified laboratory's certification is revoked or 
suspended in accordance with the process described in subpart P of 
these Guidelines, the laboratory is not permitted to test federally 
regulated specimens until the suspension is lifted or the laboratory 
has successfully completed the certification requirements as a new 
applicant laboratory.

Section 9.13 What factors are considered in determining whether 
revocation of a laboratory's HHS certification is necessary?

    (a) The Secretary shall revoke certification of an HHS-certified 
laboratory in accordance with these Guidelines if the Secretary 
determines that revocation is necessary to ensure fully reliable and 
accurate drug test results and reports.
    (b) The Secretary shall consider the following factors in 
determining whether revocation is necessary:
    (1) Unsatisfactory performance in analyzing and reporting the 
results of drug tests (e.g., an HHS-certified

[[Page 68381]]

laboratory reporting a false positive result for a drug test);
    (2) Unsatisfactory participation in performance testing or 
inspections;
    (3) A material violation of a certification standard, contract 
term, or other condition imposed on the HHS-certified laboratory by a 
federal agency using the laboratory's services;
    (4) Conviction for any criminal offense committed as an incident to 
operation of the HHS-certified laboratory; or
    (5) Any other cause that materially affects the ability of the HHS-
certified laboratory to ensure fully reliable and accurate drug test 
results and reports.
    (c) The period and terms of revocation shall be determined by the 
Secretary and shall depend upon the facts and circumstances of the 
revocation and the need to ensure accurate and reliable drug testing.

Section 9.14 What factors are considered in determining whether to 
suspend a laboratory's HHS certification?

    (a) The Secretary may immediately suspend (either partially or 
fully) a laboratory's HHS certification to conduct drug testing for 
Federal agencies if the Secretary has reason to believe that revocation 
may be required and that immediate action is necessary to protect the 
interests of the United States and its employees.
    (b) The Secretary shall determine the period and terms of 
suspension based upon the facts and circumstances of the suspension and 
the need to ensure accurate and reliable drug testing.

Section 9.15 How does the Secretary notify an HHS-certified laboratory 
that action is being taken against the laboratory?

    (a) When a laboratory's HHS certification is suspended or the 
Secretary seeks to revoke HHS certification, the Secretary shall 
immediately serve the HHS-certified laboratory with written notice of 
the suspension or proposed revocation by fax, mail, personal service, 
or registered or certified mail, return receipt requested. This notice 
shall state the following:
    (1) The reasons for the suspension or proposed revocation;
    (2) The terms of the suspension or proposed revocation; and
    (3) The period of suspension or proposed revocation.
    (b) The written notice shall state that the laboratory will be 
afforded an opportunity for an informal review of the suspension or 
proposed revocation if it so requests in writing within 30 days of the 
date the laboratory received the notice, or if expedited review is 
requested, within 3 days of the date the laboratory received the 
notice. Subpart P of these Guidelines contains detailed procedures to 
be followed for an informal review of the suspension or proposed 
revocation.
    (c) A suspension must be effective immediately. A proposed 
revocation must be effective 30 days after written notice is given or, 
if review is requested, upon the reviewing official's decision to 
uphold the proposed revocation. If the reviewing official decides not 
to uphold the suspension or proposed revocation, the suspension must 
terminate immediately, and any proposed revocation shall not take 
effect.
    (d) The Secretary will publish in the Federal Register the name, 
address, and telephone number of any HHS-certified laboratory that has 
its certification revoked or suspended under Section 9.13 or 9.14, 
respectively, and the name of any HHS-certified laboratory that has its 
suspension lifted. The Secretary shall provide any member of the public 
upon request the written notice provided to a laboratory that has its 
HHS certification suspended or revoked, as well as the reviewing 
official's written decision which upholds or denies the suspension or 
proposed revocation under the procedures of subpart P of these 
Guidelines.

Section 9.16 May a laboratory that had its HHS certification revoked be 
recertified to test Federal agency specimens?

    Following revocation, a laboratory may apply for recertification. 
Unless otherwise provided by the Secretary in the notice of revocation 
under Section 9.15 or the reviewing official's decision under Section 
16.9(e) or 16.14(a), a laboratory which has had its certification 
revoked may reapply for HHS certification as an applicant laboratory.

Section 9.17 Where is the list of HHS-certified laboratories published?

    (a) The list of HHS-certified laboratories is published monthly in 
the Federal Register.
    (b) An applicant laboratory is not included on the list.

Subpart J--Blind Samples Submitted by an Agency

Section 10.1 What are the requirements for federal agencies to submit 
blind samples to HHS-certified laboratories?

    (a) Each Federal agency is required to submit blind samples for its 
workplace drug testing program. The collector must send the blind 
samples to the HHS-certified laboratory that the collector sends donor 
specimens.
    (b) Each federal agency must submit at least 3 percent blind 
samples along with its donor specimens based on the projected total 
number of donor specimens collected per year (up to a maximum of 400 
blind samples). Every effort should be made to ensure that blind 
samples are submitted quarterly.
    (c) Approximately 75 percent of the blind samples submitted each 
year by an agency must be negative and 25 percent must be positive for 
one or more drugs.

Section 10.2 What are the requirements for blind samples?

    (a) Drug positive blind samples must be validated by the supplier 
in the selected manufacturer's collection device as to their content 
using appropriate initial and confirmatory tests.
    (1) Drug positive blind samples must contain one or more of the 
drugs or metabolites listed in the drug testing panel.
    (2) Drug positive blind samples must contain concentrations of 
drugs between 1.5 and 2 times the initial drug test cutoff.
    (b) Drug negative blind samples (i.e., certified to contain no 
drugs) must be validated by the supplier in the selected manufacturer's 
collection device as negative using appropriate initial and 
confirmatory tests.
    (c) The supplier must provide information on the blind samples' 
content, validation, expected results, and stability to the collection 
site/collector sending the blind samples to the laboratory, and must 
provide the information upon request to the MRO, the Federal agency for 
which the blind sample was submitted, or the Secretary.

Section 10.3 How is a blind sample submitted to an HHS-certified 
laboratory?

    (a) A blind sample must be submitted as a split specimen (specimens 
A and B) with the current Federal CCF that the HHS-certified laboratory 
uses for donor specimens. The collector provides the required 
information to ensure that the federal CCF has been properly completed 
and provides fictitious initials on the specimen label/seal. The 
collector must indicate that the specimen is a blind sample on the MRO 
copy where a donor would normally provide a signature.
    (b) A collector should attempt to distribute the required number of 
blind samples randomly with donor

[[Page 68382]]

specimens rather than submitting the full complement of blind samples 
as a single group.

Section 10.4 What happens if an inconsistent result is reported for a 
blind sample?

    If an HHS-certified laboratory reports a result for a blind sample 
that is inconsistent with the expected result (e.g., a laboratory 
reports a negative result for a blind sample that was supposed to be 
positive, a laboratory reports a positive result for a blind sample 
that was supposed to be negative):
    (a) The MRO must contact the laboratory and attempt to determine if 
the laboratory made an error during the testing or reporting of the 
sample;
    (b) The MRO must contact the blind sample supplier and attempt to 
determine if the supplier made an error during the preparation or 
transfer of the sample;
    (c) The MRO must contact the collector and determine if the 
collector made an error when preparing the blind sample for transfer to 
the HHS-certified laboratory;
    (d) If there is no obvious reason for the inconsistent result, the 
MRO must notify both the Federal agency for which the blind sample was 
submitted and the Secretary; and
    (e) The Secretary shall investigate the blind sample error. A 
report of the Secretary's investigative findings and the corrective 
action taken in response to identified deficiencies must be sent to the 
Federal agency. The Secretary shall ensure notification of the finding 
as appropriate to other Federal agencies and coordinate any necessary 
actions to prevent the recurrence of the error.

Subpart K--Laboratory

Section 11.1 What must be included in the HHS-certified laboratory's 
standard operating procedure manual?

    (a) An HHS-certified laboratory must have a standard operating 
procedure (SOP) manual that describes, in detail, all HHS-certified 
laboratory operations. When followed, the SOP manual ensures that all 
specimens are tested using the same procedures.
    (b) The SOP manual must include at a minimum, but is not limited 
to, a detailed description of the following:
    (1) Chain of custody procedures;
    (2) Accessioning;
    (3) Security;
    (4) Quality control/quality assurance programs;
    (5) Analytical methods and procedures;
    (6) Equipment and maintenance programs;
    (7) Personnel training;
    (8) Reporting procedures; and
    (9) Computers, software, and laboratory information management 
systems.
    (c) All procedures in the SOP manual must be compliant with these 
Guidelines and all guidance provided by the Secretary.
    (d) A copy of all procedures that have been replaced or revised and 
the dates on which the procedures were in effect must be maintained for 
at least 2 years.

Section 11.2 What are the responsibilities of the responsible person 
(RP)?

    (a) Manage the day-to-day operations of the HHS-certified 
laboratory even if another individual has overall responsibility for 
alternate areas of a multi-specialty laboratory.
    (b) Ensure that there are sufficient personnel with adequate 
training and experience to supervise and conduct the work of the HHS-
certified laboratory. The RP must ensure the continued competency of 
laboratory staff by documenting their in-service training, reviewing 
their work performance, and verifying their skills.
    (c) Maintain a complete and current SOP manual that is available to 
all personnel of the HHS-certified laboratory and ensure that it is 
followed. The SOP manual must be reviewed, signed, and dated by the 
RP(s) when procedures are first placed into use and when changed or 
when a new individual assumes responsibility for the management of the 
HHS-certified laboratory. The SOP must be reviewed and documented by 
the RP annually.
    (d) Maintain a quality assurance program that ensures the proper 
performance and reporting of all test results; verify and monitor 
acceptable analytical performance for all controls and calibrators; 
monitor quality control testing; and document the validity, 
reliability, accuracy, precision, and performance characteristics of 
each test and test system.
    (e) Initiate and implement all remedial actions necessary to 
maintain satisfactory operation and performance of the HHS-certified 
laboratory in response to the following: quality control systems not 
within performance specifications; errors in result reporting or in 
analysis of performance testing samples; and inspection deficiencies. 
The RP must ensure that specimen results are not reported until all 
corrective actions have been taken and that the results provided are 
accurate and reliable.

Section 11.3 What scientific qualifications must the RP have?

    The RP must have documented scientific qualifications in analytical 
toxicology.
    Minimum qualifications are:
    (a) Certification or licensure as a laboratory director by the 
state in forensic or clinical laboratory toxicology, a Ph.D. in one of 
the natural sciences, or training and experience comparable to a Ph.D. 
in one of the natural sciences with training and laboratory/research 
experience in biology, chemistry, and pharmacology or toxicology;
    (b) Experience in forensic toxicology with emphasis on the 
collection and analysis of biological specimens for drugs of abuse;
    (c) Experience in forensic applications of analytical toxicology 
(e.g., publications, court testimony, conducting research on the 
pharmacology and toxicology of drugs of abuse) or qualify as an expert 
witness in forensic toxicology;
    (d) Fulfillment of the RP responsibilities and qualifications, as 
demonstrated by the HHS-certified laboratory's performance and verified 
upon interview by HHS-trained inspectors during each on-site 
inspection; and
    (e) Qualify as a certifying scientist.

Section 11.4 What happens when the RP is absent or leaves an HHS-
certified laboratory?

    (a) HHS-certified laboratories must have multiple RPs or one RP and 
an alternate RP. If the RP(s) are concurrently absent, an alternate RP 
must be present and qualified to fulfill the responsibilities of the 
RP.
    (1) If an HHS-certified laboratory is without the RP and alternate 
RP for 14 calendar days or less (e.g., temporary absence due to 
vacation, illness, or business trip), the HHS-certified laboratory may 
continue operations and testing of Federal agency specimens under the 
direction of a certifying scientist.
    (2) The Secretary, in accordance with these Guidelines, will 
suspend a laboratory's HHS certification for all specimens if the 
laboratory does not have an RP or alternate RP for a period of more 
than 14 calendar days. The suspension will be lifted upon the 
Secretary's approval of a new permanent RP or alternate RP.
    (b) If the RP leaves an HHS-certified laboratory:
    (1) The HHS-certified laboratory may maintain certification and 
continue testing federally regulated specimens

[[Page 68383]]

under the direction of an alternate RP for a period of up to 180 days 
while seeking to hire and receive the Secretary's approval of the RP's 
replacement.
    (2) The Secretary, in accordance with these Guidelines, will 
suspend a laboratory's HHS certification for all federally regulated 
specimens if the laboratory does not have a permanent RP within 180 
days. The suspension will be lifted upon the Secretary's approval of 
the new permanent RP.
    (c) To nominate an individual as an RP or alternate RP, the HHS-
certified laboratory must submit the following documents to the 
Secretary: the candidate's current resume or curriculum vitae, copies 
of diplomas and licensures, a training plan (not to exceed 90 days) to 
transition the candidate into the position, an itemized comparison of 
the candidate's qualifications to the minimum RP qualifications 
described in the Guidelines, and have official academic transcript(s) 
submitted from the candidate's institution(s) of higher learning. The 
candidate must be found qualified during an on-site inspection of the 
HHS-certified laboratory.
    (d) The HHS-certified laboratory must fulfill additional inspection 
and PT criteria as required prior to conducting federally regulated 
testing under a new RP.

Section 11.5 What qualifications must an individual have to certify a 
result reported by an HHS-certified laboratory?

    (a) A certifying scientist must have:
    (1) At least a bachelor's degree in chemical or biological sciences 
or medical technology, or equivalent;
    (2) Training and experience in the analytical methods and forensic 
procedures used by the HHS-certified laboratory relevant to the results 
that the individual certifies; and
    (3) Training and experience in reviewing and reporting forensic 
test results and maintaining chain of custody, and an understanding of 
appropriate remedial actions in response to problems that may arise.
    (b) A certifying technician must have:
    (1) Training and experience in the analytical methods and forensic 
procedures used by the HHS-certified laboratory relevant to the results 
that the individual certifies; and
    (2) Training and experience in reviewing and reporting forensic 
test results and maintaining chain of custody, and an understanding of 
appropriate remedial actions in response to problems that may arise.

Section 11.6 What qualifications and training must other personnel of 
an HHS-certified laboratory have?

    (a) All HHS-certified laboratory staff (e.g., technicians, 
administrative staff) must have the appropriate training and skills for 
the tasks they perform.
    (b) Each individual working in an HHS-certified laboratory must be 
properly trained (i.e., receive training in each area of work that the 
individual will be performing, including training in forensic 
procedures related to their job duties) before they are permitted to 
work independently with federally regulated specimens. All training 
must be documented.

Section 11.7 What security measures must an HHS-certified laboratory 
maintain?

    (a) An HHS-certified laboratory must control access to the drug 
testing facility, specimens, aliquots, and records.
    (b) Authorized visitors must be escorted at all times, except for 
individuals conducting inspections (i.e., for the Department, a federal 
agency, a state, or other accrediting agency) or emergency personnel 
(e.g., firefighters and medical rescue teams).
    (c) An HHS-certified laboratory must maintain records documenting 
the identity of the visitor and escort, date, time of entry and exit, 
and purpose for access to the secured area.

Section 11.8 What are the laboratory chain of custody requirements for 
specimens and aliquots?

    (a) HHS-certified laboratories must use chain of custody procedures 
(internal and external) to maintain control and accountability of 
specimens from the time of receipt at the laboratory through completion 
of testing, reporting of results, during storage, and continuing until 
final disposition of the specimens.
    (b) HHS-certified laboratories must use chain of custody procedures 
to document the handling and transfer of aliquots throughout the 
testing process until final disposal.
    (c) The chain of custody must be documented using either paper copy 
or electronic procedures.
    (d) Each individual who handles a specimen or aliquot must sign and 
complete the appropriate entries on the chain of custody form when the 
specimen or aliquot is handled or transferred, and every individual in 
the chain must be identified.
    (e) The date and purpose must be recorded on an appropriate chain 
of custody form each time a specimen or aliquot is handled or 
transferred.

Section 11.9 What are the requirements for an initial drug test?

    (a) An initial drug test may be:
    (1) An immunoassay or
    (2) An alternate technology (e.g., spectrometry, spectroscopy).
    (b) An HHS-certified laboratory must validate an initial drug test 
before testing specimens.
    (c) Initial drug tests must be accurate and reliable for the 
testing of specimens when identifying drugs or their metabolites.
    (d) An HHS-certified laboratory may conduct a second initial drug 
test using a method with different specificity, to rule out cross-
reacting compounds. This second initial drug test must satisfy the 
batch quality control requirements specified in Section 11.11.

Section 11.10 What must an HHS-certified laboratory do to validate an 
initial drug test?

    (a) An HHS-certified laboratory must demonstrate and document the 
following for each initial drug test:
    (1) The ability to differentiate negative specimens from those 
requiring further testing;
    (2) The performance of the test around the cutoff, using samples at 
several concentrations between 0 and 150 percent of the cutoff;
    (3) The effective concentration range of the test (linearity);
    (4) The potential for carryover;
    (5) The potential for interfering substances; and
    (6) The potential matrix effects if using an alternate technology.
    (b) Each new lot of reagents must be verified prior to being placed 
into service.
    (c) Each initial drug test using alternate technology must be re-
verified periodically or at least annually.

Section 11.11 What are the batch quality control requirements when 
conducting an initial drug test?

    (a) Each batch of specimens must contain the following controls:
    (1) At least one control certified to contain no drug or drug 
metabolite;
    (2) At least one positive control with the drug or drug metabolite 
targeted at a concentration 25 percent above the cutoff;
    (3) At least one control with the drug or drug metabolite targeted 
at a concentration 75 percent of the cutoff; and
    (4) At least one control that appears as a donor specimen to the 
analysts.
    (b) Controls must total at least 4 percent of the controls and 
specimens analyzed in each batch.

[[Page 68384]]

Section 11.12 What are the requirements for a confirmatory drug test?

    (a) The analytical method must use mass spectrometric 
identification (e.g., gas chromatography-mass spectrometry [GC-MS], 
liquid chromatography-mass spectrometry [LC-MS], GC-MS/MS, LC-MS/MS) or 
equivalent.
    (b) A confirmatory drug test must be validated before it can be 
used to test federally regulated specimens.
    (c) Confirmatory drug tests must be accurate and reliable for the 
testing of an oral fluid specimen when identifying and quantifying 
drugs or their metabolites.

Section 11.13 What must an HHS-certified laboratory do to validate a 
confirmatory drug test?

    (a) An HHS-certified laboratory must demonstrate and document the 
following for each confirmatory drug test:
    (1) The linear range of the analysis;
    (2) The limit of detection;
    (3) The limit of quantification;
    (4) The accuracy and precision at the cutoff;
    (5) The accuracy (bias) and precision at 40 percent of the cutoff;
    (6) The potential for interfering substances;
    (7) The potential for carryover; and
    (8) The potential matrix effects if using liquid chromatography 
coupled with mass spectrometry.
    (b) Each new lot of reagents must be verified prior to being placed 
into service.
    (c) HHS-certified laboratories must re-verify each confirmatory 
drug test method periodically or at least annually.

Section 11.14 What are the batch quality control requirements when 
conducting a confirmatory drug test?

    (a) At a minimum, each batch of specimens must contain the 
following calibrators and controls:
    (1) A calibrator at the cutoff;
    (2) At least one control certified to contain no drug or drug 
metabolite;
    (3) At least one positive control with the drug or drug metabolite 
targeted at 25 percent above the cutoff; and
    (4) At least one control targeted at or less than 40 percent of the 
cutoff.
    (b) Calibrators and controls must total at least 10 percent of the 
aliquots analyzed in each batch.

Section 11.15 What are the analytical and quality control requirements 
for conducting specimen validity tests?

    An HHS-certified laboratory may perform specimen validity tests in 
accordance with Sections 3.1 and 3.6.
    (a) Each invalid, adulterated, or substituted specimen validity 
test result must be based on an initial specimen validity test on one 
aliquot and a confirmatory specimen validity test on a second aliquot;
    (b) The HHS-certified laboratory must establish acceptance criteria 
and analyze calibrators and controls as appropriate to verify and 
document the validity of the test results; and
    (c) Controls must be analyzed concurrently with specimens.

Section 11.16 What must an HHS-certified laboratory do to validate a 
specimen validity test?

    An HHS-certified laboratory must demonstrate and document for each 
specimen validity test the appropriate performance characteristics of 
the test, and must re-verify the test periodically, or at least 
annually. Each new lot of reagents must be verified prior to being 
placed into service.

Section 11.17 What are the requirements for an HHS-certified laboratory 
to report a test result?

    (a) Laboratories must report a test result to the agency's MRO 
within an average of 5 working days after receipt of the specimen. 
Reports must use the Federal CCF and/or an electronic report, as 
described in items o and p below. Before any test result can be 
reported, it must be certified by a certifying scientist or a 
certifying technician (as appropriate).
    (b) A primary (A) specimen is reported negative when each initial 
drug test is negative or if the specimen is negative upon confirmatory 
drug testing, and the specimen does not meet invalid criteria as 
described in Section 11.17(g)(1) through (5).
    (c) A primary (A) specimen is reported positive for a specific drug 
or drug metabolite when both the initial drug test is positive, and the 
confirmatory drug test is positive in accordance with the cutoffs 
listed in the drug testing panel.
    (d) A primary (A) oral fluid specimen is reported adulterated when 
the presence of an adulterant is verified using an initial test on the 
first aliquot and a different confirmatory test on the second aliquot.
    (e) A primary (A) oral fluid specimen is reported substituted when 
a biomarker is not present or is present at a concentration 
inconsistent with that established for human oral fluid.
    (f) For a specimen that has an invalid result for one of the 
reasons stated in Section 11/17(g)(1) through (5), the HHS-certified 
laboratory shall contact the MRO and both will decide if testing by 
another HHS-certified laboratory would be useful in being able to 
report a positive, adulterated, or substituted result. If no further 
testing is necessary, the HHS-certified laboratory then reports the 
invalid result to the MRO.
    (g) A primary (A) oral fluid specimen is reported as an invalid 
result when:
    (1) Interference occurs on the initial drug tests on two separate 
aliquots (i.e., valid initial drug test results cannot be obtained);
    (2) Interference with the confirmatory drug test occurs on at least 
two separate aliquots of the specimen and the HHS-certified laboratory 
is unable to identify the interfering substance;
    (3) The physical appearance of the specimen is such that testing 
the specimen may damage the laboratory's instruments;
    (4) The physical appearances of the A and B specimens are clearly 
different (note: A is tested); or
    (5) A specimen validity test on two separate aliquots of the 
specimen indicates that the specimen is not valid for testing.
    (h) An HHS-certified laboratory shall reject a primary (A) specimen 
for testing when a fatal flaw occurs as described in Section 15.1 or 
when a correctable flaw as described in Section 15.2 is not recovered. 
The HHS-certified laboratory will indicate on the Federal CCF that the 
specimen was rejected for testing and provide the reason for reporting 
the rejected for testing result.
    (i) An HHS-certified laboratory must report all positive, 
adulterated, substituted, and invalid test results for an oral fluid 
specimen. For example, a specimen can be positive for a drug and 
adulterated.
    (j) An HHS-certified laboratory must report the confirmatory 
concentration of each drug or drug metabolite reported for a positive 
result.
    (k) An HHS-certified laboratory must report numerical values of the 
specimen validity test results that support an adulterated, 
substituted, or invalid result (as appropriate).
    (l) An HHS-certified laboratory must report results using the HHS-
specified nomenclature published with the drug and biomarker testing 
panels.
    (m) When the concentration of a drug or drug metabolite exceeds the 
validated linear range of the confirmatory test, HHS-certified 
laboratories may report to the MRO that the quantitative value exceeds 
the linear range of the test or that the quantitative value is greater 
than ``insert the actual value for the upper limit of the linear 
range,'' or laboratories may report a quantitative value above the 
upper limit of the linear range that was obtained by diluting an

[[Page 68385]]

aliquot of the specimen to achieve a result within the method's linear 
range and multiplying the result by the appropriate dilution factor.
    (n) HHS-certified laboratories may transmit test results to the MRO 
by various electronic means (e.g., fax, computer). Transmissions of the 
reports must ensure confidentiality and the results may not be reported 
verbally by telephone. Laboratories and external service providers must 
ensure the confidentiality, integrity, and availability of the data and 
limit access to any data transmission, storage, and retrieval system.
    (o) HHS-certified laboratories must fax, courier, mail, or 
electronically transmit a legible image or copy of the completed 
federal CCF and/or forward a computer-generated electronic report. The 
computer-generated report must contain sufficient information to ensure 
that the test results can accurately represent the content of the 
custody and control form that the MRO received from the collector.
    (p) For positive, adulterated, substituted, invalid, and rejected 
specimens, laboratories must fax, courier, mail, or electronically 
transmit a legible image or copy of the completed Federal CCF.

Section 11.18 How long must an HHS-certified laboratory retain 
specimens?

    (a) An HHS-certified laboratory must retain specimens that were 
reported as positive, adulterated, substituted, or as an invalid result 
for a minimum of 1 year.
    (b) Retained oral fluid specimens must be kept in secured storage 
in accordance with the collection device manufacturer's specifications 
(i.e., frozen at -20 [deg]C or less, or refrigerated), to ensure their 
availability for retesting during an administrative or judicial 
proceeding.
    (c) Federal agencies may request that the HHS-certified laboratory 
retain a specimen for an additional specified period of time and must 
make that request within the 1-year period following the laboratory's 
reporting of the specimen.

Section 11.19 How long must an HHS-certified laboratory retain records?

    (a) An HHS-certified laboratory must retain all records generated 
to support test results for at least 2 years. The laboratory may 
convert hardcopy records to electronic records for storage and then 
discard the hardcopy records after 6 months.
    (b) A Federal agency may request the HHS-certified laboratory to 
maintain a documentation package (as described in Section 11.21) that 
supports the chain of custody, testing, and reporting of a donor's 
specimen that is under legal challenge by a donor. The Federal agency's 
request to the laboratory must be in writing and must specify the 
period of time to maintain the documentation package.
    (c) An HHS-certified laboratory may retain records other than those 
included in the documentation package beyond the normal 2-year period 
of time.

Section 11.20 What statistical summary reports must an HHS-certified 
laboratory provide for oral fluid testing?

    (a) HHS-certified laboratories must provide to each Federal agency 
for which they perform testing a semiannual statistical summary report 
that must be submitted by mail, fax, or email within 14 working days 
after the end of the semiannual period. The summary report must not 
include any personally identifiable information. A copy of the 
semiannual statistical summary report will also be sent to the 
Secretary or designated HHS representative. The semiannual statistical 
report contains the following information:
    (1) Reporting period (inclusive dates);
    (2) HHS-certified laboratory name and address;
    (3) Federal agency name;
    (4) Number of specimen results reported;
    (5) Number of specimens collected by reason for test;
    (6) Number of specimens reported negative;
    (7) Number of specimens rejected for testing because of a fatal 
flaw;
    (8) Number of specimens rejected for testing because of an 
uncorrected flaw;
    (9) Number of specimens tested positive by each initial drug test;
    (10) Number of specimens reported positive;
    (11) Number of specimens reported positive for each drug and drug 
metabolite;
    (12) Number of specimens reported adulterated;
    (13) Number of specimens reported substituted; and
    (14) Number of specimens reported as invalid result.
    (b) An HHS-certified laboratory must make copies of an agency's 
test results available when requested to do so by the Secretary or by 
the Federal agency for which the laboratory is performing drug-testing 
services.
    (c) An HHS-certified laboratory must ensure that a qualified 
individual is available to testify in a proceeding against a federal 
employee when the proceeding is based on a test result reported by the 
laboratory.

Section 11.21 What HHS-certified laboratory information is available to 
a federal agency?

    (a) Following a federal agency's receipt of a positive, 
adulterated, or substituted drug test report, the federal agency may 
submit a written request for copies of the records relating to the drug 
test results or a documentation package or any relevant certification, 
review, or revocation of certification records.
    (b) Standard documentation packages provided by an HHS-certified 
laboratory must contain the following items:
    (1) A cover sheet providing a brief description of the procedures 
and tests performed on the donor's specimen;
    (2) A table of contents that lists all documents and materials in 
the package by page number;
    (3) A copy of the federal CCF with any attachments, internal chain 
of custody records for the specimen, memoranda (if any) generated by 
the HHS-certified laboratory, and a copy of the electronic report (if 
any) generated by the HHS-certified laboratory;
    (4) A brief description of the HHS-certified laboratory's initial 
drug (and specimen validity, if applicable) testing procedures, 
instrumentation, and batch quality control requirements;
    (5) Copies of the initial test data for the donor's specimen with 
all calibrators and controls and copies of all internal chain of 
custody documents related to the initial tests;
    (6) A brief description of the HHS-certified laboratory's 
confirmatory drug (and specimen validity, if applicable) testing 
procedures, instrumentation, and batch quality control requirements;
    (7) Copies of the confirmatory test data for the donor's specimen 
with all calibrators and controls and copies of all internal chain of 
custody documents related to the confirmatory tests; and
    (8) Copies of the r[eacute]sum[eacute] or curriculum vitae for the 
RP(s) and the certifying technician or certifying scientist of record.

Section 11.22 What HHS-certified laboratory information is available to 
a federal applicant or employee?

    Federal applicants or employees who are subject to a workplace drug 
test may submit a written request through the MRO and/or the federal 
agency requesting copies of any records relating to their drug test 
results or a documentation package as described in Section 11.21(b) and 
any relevant certification, review, or revocation of certification 
records. Federal applicants or employees, or their designees, are not 
permitted access to their specimens collected pursuant to Executive 
Order

[[Page 68386]]

12564, Public Law 100-71, and these Guidelines.

Section 11.23 What types of relationships are prohibited between an 
HHS-certified laboratory and an MRO?

    An HHS-certified laboratory must not enter into any relationship 
with a federal agency's MRO that may be construed as a potential 
conflict of interest or derive any financial benefit by having a 
federal agency use a specific MRO.
    This means an MRO may be an employee of the agency or a contractor 
for the agency; however, an MRO shall not be an employee or agent of or 
have any financial interest in the HHS-certified laboratory for which 
the MRO is reviewing drug testing results. Additionally, an MRO shall 
not derive any financial benefit by having an agency use a specific 
HHS-certified laboratory or have any agreement with an HHS-certified 
laboratory that may be construed as a potential conflict of interest.

Subpart L--Instrumented Initial Test Facility (IITF)

Section 12.1 May an IITF test oral fluid specimens for a federal 
agency's workplace drug testing program?

    No, only HHS-certified laboratories are authorized to test oral 
fluid specimens for Federal agency workplace drug testing programs in 
accordance with these Guidelines.

Subpart M--Medical Review Officer (MRO)

Section 13.1 Who may serve as an MRO?

    (a) A currently licensed physician who has:
    (1) A Doctor of Medicine (M.D.) or Doctor of Osteopathy (D.O.) 
degree;
    (2) Knowledge regarding the pharmacology and toxicology of illicit 
drugs;
    (3) The training necessary to serve as an MRO as set out in Section 
13.3;
    (4) Satisfactorily passed an initial examination administered by a 
nationally recognized entity or a subspecialty board that has been 
approved by the Secretary to certify MROs; and
    (5) At least every five years from initial certification, completed 
requalification training on the topics in Section 13.3 and 
satisfactorily passed a requalification examination administered by a 
nationally recognized entity or a subspecialty board that has been 
approved by the Secretary to certify MROs.

Section 13.2 How are nationally recognized entities or subspecialty 
boards that certify MROs approved?

    All nationally recognized entities or subspecialty boards which 
seek approval by the Secretary to certify physicians as MROs for 
Federal workplace drug testing programs must submit their 
qualifications, a sample examination, and other necessary supporting 
examination materials (e.g., answers, previous examination statistics 
or other background examination information, if requested). Approval 
will be based on an objective review of qualifications that includes a 
copy of the MRO applicant application form, documentation that the 
continuing education courses are accredited by a professional 
organization, and the delivery method and content of the examination. 
Each approved MRO certification entity must resubmit their 
qualifications for approval every two years. The Secretary shall 
publish at least every two years a notification in the Federal Register 
listing those entities and subspecialty boards that have been approved.

Section 13.3 What training is required before a physician may serve as 
an MRO?

    (a) A physician must receive training that includes a thorough 
review of the following:
    (1) The collection procedures used to collect Federal agency 
specimens;
    (2) How to interpret test results reported by HHS-certified IITFs 
and laboratories (e.g., negative, negative/dilute, positive, 
adulterated, substituted, rejected for testing, and invalid);
    (3) Chain of custody, reporting, and recordkeeping requirements for 
Federal agency specimens;
    (4) The HHS Mandatory Guidelines for Federal Workplace Drug Testing 
Programs for all authorized specimen types; and
    (5) Procedures for interpretation, review (e.g., donor interview 
for legitimate medical explanations, review of documentation provided 
by the donor to support a legitimate medical explanation), and 
reporting of results specified by any federal agency for which the 
individual may serve as an MRO;
    (b) Certified MROs must complete training on any revisions to these 
Guidelines including any changes to the drug and biomarker testing 
panels prior to their effective date, to continue serving as an MRO for 
federal agency specimens.

Section 13.4 What are the responsibilities of an MRO?

    (a) The MRO must review all positive, adulterated, rejected for 
testing, invalid, and substituted test results.
    (b) Staff under the direct, personal supervision of the MRO may 
review and report negative and (for urine) negative/dilute test results 
to the agency's designated representative. The MRO must review at least 
5 percent of all negative results reported by the MRO staff to ensure 
that the MRO staff are properly performing the review process.
    (c) The MRO must discuss potential invalid results with the HHS-
certified laboratory, as addressed in Section 11.17(f) to determine 
whether testing at another HHS-certified laboratory may be warranted.
    (d) After receiving a report from an HHS-certified laboratory or 
(for urine) HHS-certified IITF, the MRO must:
    (1) Review the information on the MRO copy of the federal CCF that 
was received from the collector and the report received from the HHS-
certified laboratory or HHS-certified IITF;
    (2) Interview the donor when required;
    (3) Make a determination regarding the test result; and
    (4) Report the verified result to the federal agency.
    (e) The MRO must maintain records for a minimum of two years while 
maintaining the confidentiality of the information. The MRO may convert 
hardcopy records to electronic records for storage and discard the 
hardcopy records after six months.
    (f) The MRO must conduct a medical examination or a review of the 
examining physician's findings and make a determination of refusal to 
test or cancelled test when a collector reports that the donor was 
unable to provide a specimen and an alternate specimen was not 
collected, as addressed in Sections 8.6 and 13.6.

Section 13.5 What must an MRO do when reviewing an oral fluid 
specimen's test results?

    (a) When the HHS-certified laboratory reports a negative result for 
the primary (A) specimen, the MRO reports a negative result to the 
agency.
    (b) When the HHS-certified laboratory reports multiple results for 
the primary (A) specimen, the MRO must follow the verification 
procedures described in Section 13.5(c) through (f) and:
    (1) The MRO reports all verified positive and/or refusal to test 
results to the federal agency.
    (2) If an invalid result was reported in conjunction with a 
positive, adulterated,

[[Page 68387]]

or substituted result, the MRO does not report the verified invalid 
result to the Federal agency at this time. The MRO takes action for the 
verified invalid result(s) for the primary (A) specimen as described in 
Section 13.5(e) only when:
    (i) The MRO verifies the positive, adulterated, or substituted 
result as negative based on a legitimate medical explanation as 
described in Section 13.5(c)(2) and (d)(1), or based on codeine and/or 
morphine concentrations less than 150 ng/mL as described in Section 
13.5(c)(3)(i); or
    (ii) The split (B) specimen is tested and reported as a failure to 
reconfirm the positive, adulterated, or substituted result reported for 
the primary (A) specimen as described in Section 14.6(m).
    (c) When the HHS-certified laboratory reports a positive result for 
the primary (A) specimen, the MRO must contact the donor to determine 
if there is any legitimate medical explanation for the positive result.
    (1) If the donor admits unauthorized use of the drug(s) that caused 
the positive result, the MRO reports the test result as positive to the 
agency. The MRO must document the donor's admission of unauthorized 
drug use in the MRO records and in the MRO's report to the Federal 
agency.
    (2) If the donor provides documentation (e.g., a valid 
prescription) to support a legitimate medical explanation for the 
positive result, the MRO reports the test result as negative to the 
agency.
    (i) Passive exposure to a drug (e.g., exposure to marijuana smoke) 
is not a legitimate medical explanation for a positive drug test 
result.
    (ii) Ingestion of food products containing a drug (e.g., products 
containing marijuana) is not a legitimate medical explanation for a 
positive drug test result. See exceptions for positive codeine and 
morphine results in Section 13.5(c)(3).
    (iii) A physician's authorization or medical recommendation for a 
Schedule 1 controlled substance is not a legitimate medical explanation 
for a positive drug test result.
    (3) If the donor is unable to provide a legitimate medical 
explanation for the positive result, the MRO reports the positive 
result to the agency, for all drugs except codeine and/or morphine as 
follows:
    (i) For codeine and/or morphine less than 150 ng/mL, the MRO must 
report the result as negative to the agency, unless the donor admits 
unauthorized use of the drug(s) that caused the positive result as 
described in Section 13.5(c)(1).
    (ii) For codeine and/or morphine equal to or greater than 150 ng/mL 
and no legitimate medical explanation, the MRO shall report a positive 
result to the agency. Consumption of food products must not be 
considered a legitimate medical explanation for the donor having 
morphine or codeine at or above this concentration.
    (d) When the HHS-certified laboratory reports an adulterated or 
substituted result for the primary (A) oral fluid specimen, the MRO 
contacts the donor to determine if the donor has a legitimate medical 
explanation for the adulterated or substituted result.
    (1) If the donor provides a legitimate medical explanation, the MRO 
reports a negative result to the Federal agency.
    (2) If the donor is unable to provide a legitimate medical 
explanation, the MRO reports a refusal to test to the Federal agency 
because the oral fluid specimen was adulterated or substituted.
    (e) When the HHS-certified laboratory reports an invalid result for 
the primary (A) oral fluid specimen, the MRO must contact the donor to 
determine if there is a legitimate explanation for the invalid result.
    (1) If the donor provides a legitimate explanation (e.g., a 
prescription medicine), the MRO reports a test cancelled result with 
the reason for the invalid result and informs the Federal agency that 
there is a legitimate explanation for the invalid result.
    (i) For a random, post-accident, or reasonable suspicion/cause 
test, the MRO informs the agency that a recollection is not required.
    (ii) If a negative result is required (i.e., for pre-employment, 
return-to-duty, or follow-up test), the MRO directs the agency to 
immediately collect another specimen from the donor. If the agency 
allows urine collection, the MRO may direct an unobserved urine 
collection, depending on the reason for the invalid result.
    (2) If the donor is unable to provide a legitimate explanation for 
an invalid result, the MRO reports a test cancelled result with the 
reason for the invalid result and directs the Federal agency to 
immediately collect another specimen from the donor.
    (i) If the second specimen collected provides a valid result, the 
MRO follows the procedures in Section 13.5(a) through (d).
    (ii) If the second specimen collected provides an invalid result, 
the MRO reports this specimen as test cancelled and recommends that the 
agency collect a urine specimen under direct observation. If the 
Federal agency does not authorize collection of another specimen type, 
the MRO consults with the agency to arrange a clinical evaluation as 
described in Section 13.7, to determine whether there is a legitimate 
medical reason for the invalid result.
    (f) When the HHS-certified laboratory reports a rejected for 
testing result for the primary (A) specimen, the MRO reports a test 
cancelled result to the agency and recommends that the agency collect 
another specimen from the donor.

13.6 What action does the MRO take when the collector reports that the 
donor did not provide a sufficient amount of oral fluid for a drug 
test?

    (a) When another specimen type (e.g., urine) was collected in 
accordance with Section 8.6, the MRO reviews and reports the test 
result in accordance with the Mandatory Guidelines for Federal 
Workplace Drug Testing Programs using the alternate specimen.
    (b) When the Federal agency did not authorize the collection of an 
alternate specimen, the MRO consults with the Federal agency. The 
Federal agency immediately directs the donor to obtain, within five 
days, an evaluation from a licensed physician, acceptable to the MRO, 
who has expertise in the medical issues raised by the donor's failure 
to provide a specimen. The MRO may perform this evaluation if the MRO 
has appropriate expertise.
    (1) For purposes of this section, a medical condition includes an 
ascertainable physiological condition. Permanent or long-term medical 
conditions are those physiological, anatomic, or psychological 
abnormalities documented as being present prior to the attempted 
collection and considered not amenable to correction or cure for an 
extended period of time.
    (2) If a physician other than the MRO performs the evaluation, the 
MRO must provide the other physician with the following information and 
instructions:
    (i) That the donor was required to take a federally regulated drug 
test, but was unable to provide a sufficient amount of oral fluid to 
complete the test;
    (ii) The consequences of the appropriate Federal agency regulation 
for refusing to take the required drug test;
    (iii) That, after completing the evaluation, the referral physician 
must agree to provide a written statement to the MRO with a 
recommendation for one of the determinations described in Section 
13.6(b)(3) and the basis for the recommendation. The statement must not 
include detailed information on the donor's medical condition beyond 
what

[[Page 68388]]

is necessary to explain the referral physician's conclusion.
    (3) If a physician other than the MRO performed the evaluation, the 
MRO must consider and assess the referral physician's recommendations 
in making the determination. The MRO must make one of the following 
determinations and report it to the federal agency in writing:
    (i) A medical condition as defined in Section 13.6(b)(1) has, or 
with a high degree of probability could have, precluded the donor from 
providing a sufficient amount of oral fluid, but is not a permanent or 
long-term disability. The MRO must report a test cancelled result to 
the Federal agency. If a negative result is required (i.e., for pre-
employment, return-to-duty, or follow-up test), the MRO directs the 
agency to immediately collect another oral fluid specimen from the 
donor or recommends collection of a urine specimen, depending on the 
medical condition.
    (ii) A permanent or long-term medical condition as defined in 
Section 13.6(b)(1) has, or with a high degree of probability could 
have, precluded the donor from providing a sufficient amount of oral 
fluid and is highly likely to prevent the donor from providing a 
sufficient amount of oral fluid for a very long or indefinite period of 
time. The MRO actions in this context will be dictated by the reason 
for testing. For a pre-employment, return-to-duty, or a follow-up test, 
the MRO consults with the federal agency and recommends that the agency 
authorize collection of a urine specimen. If the agency does not 
authorize the urine collection, the MRO follows the requirements of 
Section 13.7. If the agency authorizes the urine collection, or if the 
reason for testing is random, post-accident, or reasonable suspicion/
cause, the MRO reports the test as cancelled and directs the agency to 
collect a urine specimen from the donor.
    (iii) There is no adequate basis to conclude that a medical 
condition has or, with a high degree of probability, could have 
precluded the donor from providing a sufficient amount of oral fluid. 
The MRO must report a refusal to test to the Federal agency.
    (4) When a Federal agency receives a report from the MRO indicating 
that a random, post-accident, or reasonable suspicion/cause test is 
cancelled because of an acute or temporary medical condition as 
provided in Section 13.6(b)(3)(i), the agency takes no further action 
with respect to the donor. When the MRO reports that a random, post-
accident, or reasonable suspicion/cause test is canceled because of a 
permanent or long-term medical condition as provided in Section 
13.6(b)(3)(ii), the agency takes no further action with respect to the 
donor other than authorizing collection of an alternate specimen type 
(i.e., authorized by the Mandatory Guidelines for Federal Workplace 
Drug Testing Programs) for any subsequent collections, in accordance 
with the Federal agency plan. The donor remains in the random testing 
pool.

Section 13.7 What happens when an individual is unable to provide a 
sufficient amount of oral fluid for a Federal agency applicant/pre-
employment test, a follow-up test, or a return-to-duty test because of 
a permanent or long-term medical condition?

    (a) This section concerns a situation in which the donor has a 
medical condition that precludes the donor from providing a sufficient 
specimen for a federal agency applicant/pre-employment test, a follow-
up test, or a return-to-duty test and the condition involves a 
permanent or long-term disability and the federal agency does not 
authorize collection of an alternate specimen. The MRO must take the 
following action:
    (1) Determine if there is clinical evidence that the individual is 
an illicit drug user. The MRO must make this determination by 
personally conducting, or causing to be conducted, a medical evaluation 
and through consultation with the donor's physician and/or the 
physician who conducted the evaluation under Section 13.6.
    (2) If the MRO does not personally conduct the medical evaluation, 
the MRO must ensure that one is conducted by a licensed physician who 
is acceptable to the MRO.
    (b) If the medical evaluation reveals no clinical evidence of drug 
use, the MRO must report the result to the Federal agency as a negative 
test with written notations regarding results of both the evaluation 
conducted under Section 13.6 and any further medical examination. This 
report must state the basis for the determination that a permanent or 
long-term medical condition exists, making provision of a sufficient 
oral fluid specimen impossible, and for the determination that no signs 
and symptoms of drug use exist. The MRO recommends that the agency 
authorize collection of an alternate specimen type (e.g., urine) for 
any subsequent collections.
    (c) If the medical evaluation reveals clinical evidence of drug 
use, the MRO must report the result to the Federal agency as a 
cancelled test with written notations regarding results of both the 
evaluation conducted under Section 13.6 and any further medical 
examination. This report must state that a permanent or long-term 
medical condition [as defined in Section 13.6(b)(1)] exists, making 
provision of a sufficient oral fluid specimen impossible, and state the 
reason for the determination that signs and symptoms of drug use exist. 
Because this is a cancelled test, it does not serve the purposes of a 
negative test (e.g., the federal agency is not authorized to allow the 
donor to begin or resume performing official functions, because a 
negative test is needed for that purpose).

Section 13.8 How does an MRO report a primary (A) specimen test result 
to an agency?

    (a) The MRO must report all verified results to an agency using the 
completed MRO copy of the Federal CCF or a separate report using a 
letter/memorandum format. The MRO may use various electronic means for 
reporting (e.g., fax, computer). Transmissions of the reports must 
ensure confidentiality. The MRO and external service providers must 
ensure the confidentiality, integrity, and availability of the data and 
limit access to any data transmission, storage, and retrieval system.
    (b) A verified result may not be reported to the agency until the 
MRO has completed the review process.
    (c) The MRO must send a copy of either the completed MRO copy of 
the federal CCF or the separate letter/memorandum report for all 
positive, adulterated, and substituted results.
    (d) The MRO must not disclose numerical values of drug test results 
to the agency.
    (e) The MRO must report drug test results using the HHS-specified 
nomenclature published with the drug and biomarker testing panels.

Section 13.9 Who may request a test of a split (B) specimen?

    (a) For a positive, adulterated, or substituted result reported for 
a primary (A) specimen, a donor may request through the MRO that the 
split (B) specimen be tested by a second laboratory certified by HHS 
for that specimen type to verify the result reported by the first HHS-
certified laboratory.
    (b) The donor has 72 hours from the time the MRO notified the donor 
that the donor's specimen was reported positive, adulterated, or 
substituted to request a test of the split (B) specimen. The MRO must 
inform the donor that the donor has the opportunity to request a test 
of the split (B) specimen when the

[[Page 68389]]

MRO informs the donor that a positive, adulterated, or substituted 
result is being reported to the Federal agency on the primary (A) 
specimen.

Section 13.10 What types of relationships are prohibited between an MRO 
and an HHS-certified laboratory?

    An MRO must not be an employee, agent of, or have any financial 
interest in an HHS-certified laboratory for which the MRO is reviewing 
drug test results.
    This means an MRO must not derive any financial benefit by having 
an agency use a specific HHS-certified laboratory or have any agreement 
with the HHS-certified laboratory that may be construed as a potential 
conflict of interest.

Section 13.11 What reports must an MRO provide to the Secretary for 
oral fluid testing?

    (a) An MRO must send to the Secretary or designated HHS 
representative a semiannual report of Federal agency specimens that 
were reported as positive for a drug or drug metabolite by a laboratory 
and verified as negative by the MRO. The report must not include any 
personally identifiable information for the donor and must be submitted 
by mail, fax, or other secure electronic transmission method within 14 
working days after the end of the semiannual period (i.e., in January 
and July). The semiannual report must contain the following 
information:
    (1) Reporting period (including dates);
    (2) MRO name, company name, and address;
    (3) Federal agency name; and
    (4) For each laboratory-reported positive drug test result that was 
verified as negative by the MRO:
    (i) Specimen identification number;
    (ii) Laboratory name and address;
    (iii) Positive drug(s) or drug metabolite(s) verified as negative;
    (iv) MRO reason for verifying the positive drug(s) or drug 
metabolite(s) as negative (e.g., a donor prescription [the MRO must 
specify the prescribed drug]);
    (v) All results reported to the federal agency by the MRO for the 
specimen; and
    (vi) Date of the MRO report to the federal agency.
    (b) An MRO must provide copies of the drug test reports that the 
MRO has sent to a federal agency when requested to do so by the 
Secretary.
    (c) If an MRO did not verify any positive laboratory results as 
negative during the reporting period, the MRO should file a report that 
states that the MRO has no reportable results during the applicable 
reporting period.

Section 13.12 What are a federal agency's responsibilities for 
designating an MRO?

    (a) Before allowing an individual to serve as an MRO for the 
agency, a federal agency must verify and document the following:
    (1) that the individual satisfies all requirements in Section 13.1, 
including certification by an MRO certification organization that has 
been approved by the Secretary, as described in Section 13.2; and
    (2) that the individual is not an employee, agent of, or has any 
financial interest in an HHS-certified laboratory that tests the 
agency's specimens, as described in Section 13.10.
    (b) The federal agency must verify and document that each MRO 
reviewing and reporting results for the agency:
    (1) completes training on any revisions to these Guidelines, 
including any changes to the drug and biomarker testing panels, prior 
to their effective date;
    (2) at least every five years, maintains their certification by 
completing requalification training and passing a requalification 
examination; and
    (3) provides biannual reports to the Secretary or designated HHS 
representative as required in Section 13.11;
    (c) The Federal agency must ensure that each MRO reports drug test 
results to the agency in accordance with Sections 13.8 and 14.7.
    (1) Before allowing an MRO to report results electronically, the 
agency must obtain documentation from the MRO to confirm that the MRO 
and any external service providers ensure the confidentiality, 
integrity, and availability of the data and limit access to any data 
transmission, storage, and retrieval system.

Subpart N--Split Specimen Tests

Section 14.1 When may a split (B) oral fluid specimen be tested?

    (a) The donor may request, verbally or in writing, through the MRO 
that the split (B) oral fluid specimen be tested at a different (i.e., 
second) HHS-certified oral fluid laboratory when the primary (A) 
specimen was determined by the MRO to be positive, adulterated, or 
substituted.
    (b) A donor has 72 hours to initiate the request after being 
informed of the result by the MRO. The MRO must document in the MRO's 
records the verbal request from the donor to have the split (B) 
specimen tested.
    (c) If a split (B) oral fluid specimen cannot be tested by a second 
HHS-certified oral fluid laboratory, the MRO reports a cancelled test 
to the Federal agency and the reason for the cancellation. The MRO 
takes action based on the reason for cancellation as follows.
    (1) No split (B) specimen (e.g., insufficient specimen, lost in 
transit, split not available): The MRO directs the federal agency to 
recollect another oral fluid specimen from the donor.
    (2) No second HHS-certified laboratory to test the split (B) 
specimen for the adulterant reported in the primary (A) specimen: The 
MRO directs the federal agency to ensure the immediate collection of a 
specimen from the donor under direct observation, with no notice given 
to the donor until immediately before the collection. If urine testing 
is allowed by the federal agency, the MRO recommends an observed urine 
collection.
    (3) No second HHS-certified laboratory to test a split (B) specimen 
reported as substituted (i.e., for the same or a different HHS-
authorized biomarker): The MRO directs the federal agency to ensure the 
immediate recollection of a specimen from the donor under direct 
observation, with no notice given to the donor until immediately before 
the collection. If urine testing is allowed by the federal agency, the 
MRO recommends an observed urine collection.
    (d) If a donor chooses not to have the split (B) specimen tested by 
a second HHS-certified oral fluid laboratory, a federal agency may have 
a split (B) specimen retested as part of a legal or administrative 
proceeding to defend an original positive, adulterated, or substituted 
result.

Section 14.2 How does an HHS-certified laboratory test a split (B) 
specimen when the primary (A) specimen was reported positive?

    (a) The testing of a split (B) specimen for a drug or metabolite is 
not subject to the testing cutoffs established in the drug testing 
panel.
    (b) The HHS-certified laboratory is only required to confirm the 
presence of the drug or metabolite that was reported positive in the 
primary (A) specimen.

Section 14.3 How does an HHS-certified laboratory test a split (B) oral 
fluid specimen when the primary (A) specimen was reported adulterated?

    (a) The second HHS-certified oral fluid laboratory must use its 
confirmatory specimen validity test at an established LOQ to reconfirm 
the presence of the adulterant.
    (b) The HHS-certified laboratory may only conduct the confirmatory 
specimen

[[Page 68390]]

validity test(s) needed to reconfirm the adulterated result reported by 
the first HHS-certified laboratory.

Section 14.4 How does an HHS-certified laboratory test a split (B) oral 
fluid specimen when the primary (A) specimen was reported substituted?

    An HHS-certified oral fluid laboratory must test the split (B) 
specimen using its confirmatory biomarker test. Note: The laboratory 
may test for any HHS-authorized biomarker for the split (B) specimen. 
It is not necessary to test for the same biomarker to reconfirm the 
primary (A) specimen's substituted result.

Section 14.5 Who receives the split (B) specimen result?

    The second HHS-certified laboratory must report the result to the 
MRO using the HHS-specified nomenclature published with the drug and 
biomarker testing panels.

Section 14.6 What action(s) does an MRO take after receiving the split 
(B) oral fluid specimen result from the second HHS-certified oral fluid 
laboratory?

    The MRO takes the following actions when the second HHS-certified 
laboratory reports the result for the split (B) oral fluid specimen as:
    (a) Reconfirmed the positive drug(s), adulteration, and/or 
substitution. The MRO reports were reconfirmed to the agency.
    (b) Failed to reconfirm a single or all drug positive results and 
the specimen was adulterated. If the donor provides a legitimate 
medical explanation for the adulteration result, the MRO reports a 
failed to reconfirm result (specifying the drug[s]) and cancels both 
tests. If there is no legitimate medical explanation, the MRO reports a 
failure to reconfirm result (specifying the drug[s]) and a refusal to 
test to the agency and indicates the adulterant that is present in the 
specimen. The MRO gives the donor 72 hours to request that Laboratory A 
test the primary (A) specimen for the adulterant. If Laboratory A does 
not perform the test, the MRO directs testing at another HHS-certified 
oral fluid laboratory.
    (1) If the laboratory reconfirms the adulterant in the primary (A) 
specimen, the MRO reports a refusal to test and indicates the 
adulterant present.
    (2) If the laboratory fails to reconfirm the adulterant in the 
primary (A) specimen, the MRO cancels both tests and directs the agency 
to immediately collect a specimen using a direct observed collection 
procedure. If urine testing is allowed by the Federal agency, the MRO 
recommends an observed urine collection.
    (c) Failed to reconfirm a single or all drug positive results and 
the specimen was substituted. If the donor provides a legitimate 
medical explanation for the substituted result, the MRO reports a 
failure to reconfirm result (specifying the drug[s]) and cancels both 
tests. If there is no legitimate medical explanation, the MRO reports a 
failed to reconfirm result (specifying the drug[s]) and a refusal to 
test (substituted) to the agency. The MRO gives the donor 72 hours to 
request that a second laboratory (Laboratory A or a different HHS-
certified laboratory) test the primary (A) specimen using its 
confirmatory biomarker test. Note: The laboratory may test the primary 
(A) specimen for a different HHS-authorized biomarker than tested for 
the split (B) specimen.
    (1) If the primary (A) specimen's test results confirm that the 
specimen was substituted, the MRO reports a refusal to test 
(substituted) to the agency.
    (2) If the primary (A) specimen's results fail to confirm that the 
specimen was substituted, the MRO cancels both tests and directs the 
agency to immediately collect a specimen using a direct observed 
collection procedure. If urine testing is allowed by the Federal 
agency, the MRO recommends an observed urine collection.
    (d) Failed to reconfirm a single or all drug positive results and 
the specimen was not adulterated or substituted. The MRO reports to the 
agency a failed to reconfirm result (specifying the drug[s]) and 
cancels both tests.
    (e) Failed to reconfirm a single or all drug positive results and 
the specimen had an invalid result. The MRO reports to the agency a 
failed to reconfirm result (specifying the drug[s] and the reason for 
the invalid result), cancels both tests, and directs the agency to 
immediately collect a specimen using a direct observed collection 
procedure. If urine testing is allowed by the federal agency, the MRO 
recommends an observed urine collection.
    (f) Reconfirmed one or more drugs, failed to reconfirm one or more 
drugs, and the specimen was adulterated. The MRO reports to the agency 
a reconfirmed result (specifying the drug[s]) and a failed to reconfirm 
result (specifying the drug[s]). The MRO tells the agency that it may 
take action based on the reconfirmed drug(s) although Laboratory B 
failed to reconfirm one or more drugs and found that the specimen was 
adulterated.
    (g) Reconfirmed one or more drugs, failed to reconfirm one or more 
drugs, and the specimen was substituted. The MRO reports to the agency 
a reconfirmed result (specifying the drug[s]) and a failed to reconfirm 
result (specifying the drug[s]). The MRO tells the agency that it may 
take action based on the reconfirmed drug(s) although Laboratory B 
failed to reconfirm one or more drugs and found that the specimen was 
substituted.
    (h) Reconfirmed one or more drugs, failed to reconfirm one or more 
drugs, and the specimen was not adulterated or substituted. The MRO 
reports to the agency a reconfirmed result (specifying the drug[s]) and 
a failed to reconfirm result (specifying the drug[s]). The MRO tells 
the agency that it may take action based on the reconfirmed drug(s) 
although Laboratory B failed to reconfirm one or more drugs.
    (i) Reconfirmed one or more drugs, failed to reconfirm one or more 
drugs, and the specimen had an invalid result. The MRO reports to the 
agency a reconfirmed result (specifying the drug[s]) and a failed to 
reconfirm result (specifying the drug[s]). The MRO tells the agency 
that it may take action based on the reconfirmed drug(s) although 
Laboratory B failed to reconfirm one or more drugs and reported an 
invalid result.
    (j) Failed to reconfirm substitution and/or adulteration. The MRO 
reports to the agency a failed to reconfirm result (not substituted 
and/or not adulterated: specifying the adulterant) and cancels both 
tests.
    (k) Failed to reconfirm substitution or adulteration and the 
specimen had an invalid result. The MRO reports to the agency a failed 
to reconfirm result (not substituted or not adulterated: specifying the 
adulterant, and the reason for the invalid result), cancels both tests, 
and directs the agency to immediately collect a specimen using a direct 
observed collection procedure. If urine testing is allowed by the 
Federal agency, the MRO recommends an observed urine collection.
    (l) Reconfirmed substitution or adulteration and failed to 
reconfirm a single or all drug positive results. The MRO reports to the 
agency a reconfirmed result (substituted or adulterated: specifying the 
adulterant) and a failed to reconfirm result (specifying the drug[s]). 
The MRO tells the agency that it may take action based on the 
reconfirmed result (substituted or adulterated) although Laboratory B 
failed to reconfirm the drug result(s).
    (m) Failed to reconfirm a single or all drug positive results and 
failed to reconfirm substitution or adulteration. The MRO reports to 
the agency a failed to reconfirm result (specifying the drug[s] and not 
substituted or not

[[Page 68391]]

adulterated: specifying the adulterant) and cancels both tests.
    (n) Reconfirmed one or more drugs, failed to reconfirm one or more 
drugs, and reconfirmed adulteration. The MRO reports to the agency a 
reconfirmed result (specifying the drug[s] and adulterated: specifying 
the adulterant) and a failed to reconfirm result (specifying the 
drug[s]). The MRO tells the agency that it may take action based on the 
reconfirmed drug(s) and adulterated result although Laboratory B failed 
to reconfirm one or more drugs.
    (o) Reconfirmed one or more drugs, failed to reconfirm one or more 
drugs, and failed to reconfirm adulteration. The MRO reports to the 
agency a reconfirmed result (specifying the drug[s]) and a failed to 
reconfirm result (specifying the drug[s] and not adulterated: 
specifying the adulterant). The MRO tells the agency that it may take 
action based on the reconfirmed drug(s) although Laboratory B failed to 
reconfirm one or more drugs and failed to reconfirm the adulterated 
result.
    (p) Reconfirmed substitution and failed to reconfirm adulteration. 
The MRO reports to the agency a reconfirmed result (substituted) and a 
failed to reconfirm result (not adulterated: specifying the 
adulterant). The MRO tells the agency that it may take action based on 
the substituted result although Laboratory B failed to reconfirm the 
adulterated result.
    (q) Reconfirmed adulteration and failed to reconfirm substitution. 
The MRO reports to the agency a reconfirmed result (adulterated: 
specifying the adulterant) and a failed to reconfirm result (not 
substituted). The MRO tells the agency that it may take action based on 
the adulterated result although Laboratory B failed to reconfirm the 
substituted result.

Section 14.7 How does an MRO report a split (B) specimen test result to 
an agency?

    (a) The MRO must report all verified results to an agency using the 
completed MRO copy of the Federal CCF or a separate report using a 
letter/memorandum format. The MRO may use various electronic means for 
reporting (e.g., fax, computer). Transmissions of the reports must 
ensure confidentiality. The MRO and external service providers must 
ensure the confidentiality, integrity, and availability of the data and 
limit access to any data transmission, storage, and retrieval system.
    (b) A verified result may not be reported to the agency until the 
MRO has completed the review process.
    (c) The MRO must send a copy of either the completed MRO copy of 
the federal CCF or the separate letter/memorandum report for all split 
specimen results.
    (d) The MRO must not disclose the numerical values of the drug test 
results to the agency.
    (e) The MRO must report drug test results using the HHS-specified 
nomenclature published with the drug and biomarker testing panels.

Section 14.8 How long must an HHS-certified laboratory retain a split 
(B) specimen?

    A split (B) specimen is retained for the same period of time that a 
primary (A) specimen is retained and under the same storage conditions, 
in accordance with Section 11.18. This applies even for those cases 
when the split (B) specimen is tested by a second HHS-certified 
laboratory, and the second HHS-certified laboratory does not confirm 
the original result reported by the first HHS-certified laboratory for 
the primary (A) specimen.

Subpart O--Criteria for Rejecting a Specimen for Testing

Section 15.1 What discrepancies require an HHS-certified laboratory to 
report an oral fluid specimen as rejected for testing?

    The following discrepancies are considered to be fatal flaws. The 
HHS-certified laboratory must stop the testing process, reject the 
specimen for testing, and indicate the reason for rejecting the 
specimen on the federal CCF when:
    (a) The specimen ID number on the primary (A) or split (B) specimen 
label/seal does not match the ID number on the federal CCF, or the ID 
number is missing either on the federal CCF or on either specimen 
label/seal;
    (b) The primary (A) specimen label/seal is missing, misapplied, 
broken, or shows evidence of tampering and the split (B) specimen 
cannot be re-designated as the primary (A) specimen;
    (c) The primary (A) specimen was collected using an expired device 
(i.e., the device expiration date precedes the collection date) and the 
split (B) specimen cannot be re-designated as the primary (A) specimen;
    (d) The collector's printed name and signature are omitted on the 
federal CCF;
    (e) The collector failed to document observation of the volume 
indicator(s) at the time of collection for a collection device 
containing a diluent.
    (f) There is an insufficient amount of specimen for analysis in the 
primary (A) specimen, and the split (B) specimen cannot be re-
designated as the primary (A) specimen;
    (g) The accessioner failed to document the primary (A) specimen 
seal condition on the federal CCF at the time of accessioning, and the 
split (B) specimen cannot be re-designated as the primary (A) specimen;
    (h) The specimen was received at the HHS-certified laboratory 
without a CCF;
    (i) The CCF was received at the HHS-certified laboratory without a 
specimen;
    (j) The collector performed two separate collections using one CCF; 
or
    (k) The HHS-certified laboratory identifies a flaw (other than 
those specified above) that prevents testing or affects the forensic 
defensibility of the drug test and cannot be corrected.

Section 15.2 What discrepancies require an HHS-certified laboratory to 
report a specimen as rejected for testing unless the discrepancy is 
corrected?

    The following discrepancies are considered to be correctable:
    (a) If a collector fails to sign the Federal CCF, the HHS-certified 
laboratory must hold the specimen and attempt to obtain a memorandum 
for record to recover the collector's signature. If, a

[…truncated; see source link]
Indexed from Federal Register on October 29, 2026.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.