Guidance

Part 40 Federal Register, Court Decisions and Legislation

Overview

The following is a collection of important Federal Register notices, court decisions, and legislation regarding Part 40. The list is organized by date beginning with the most recent.

This rule adopts as final, without change, a May 4, 2012, interim final rule (IFR) which no longer requires laboratories and Medical Review Officers to consult with one another regarding the testing for the presence of morphine when the laboratory confirms the presence of 6- acetylmorphine (6-AM). Also, laboratories and MROs will no longer need to report 6-AM results to the Office of Drug and Alcohol Policy and Compliance. The rule also responds to comments on the IFR.

The Department is amending certain provisions of its drug testing procedures for 6-acetylmorphine (6–AM), a unique metabolite of heroin. Laboratories and Medical Review Officers (MROs) will no longer be required to consult with one another regarding the testing for the presence of morphine when the laboratory confirms the presence of 6–AM. This rule is intended to streamline the laboratory process for analyzing and reporting 6–AM positive results and will facilitate MRO verification of 6–AM positive results.

On September 27, 2010, the U.S. Department of Transportation (DOT) published an interim final rule (IFR) authorizing the use of a new Federal Drug Testing Custody and Control Form (CCF) in its drug testing program. Use of the form is authorized beginning October 1, 2010. This final rule responds to comments to the IFR and will finalize the authorization and procedures for using the new CCF for DOT-required drug tests. The rule also amends a provision of the rule which was inadvertently omitted from a final rule in August 2010.

The Department of Health and Human Services recently issued a new Federal Drug Testing Custody and Control Form for use in both the Federal employee and Department of Transportation drug testing programs. In order to accommodate the form’s use within our transportation industry program, the Department is making a few necessary regulation changes in order for collectors, laboratories, and Medical Review Officers to know how to use the new form. The form’s use is authorized beginning October 1, 2010. The Department is also making a technical amendment to its drug testing procedures. The purpose of the technical amendment is to add a provision of the rule which was inadvertently omitted from the final rule in August 2010.

The Department of Transportation is amending certain provisions of its drug testing procedures dealing with laboratory testing of urine specimens.  Some of the changes will also affect the training of and procedures used by Medical Review Officers.  The changes are intended to create consistency with many of the new requirements established by the U.S. Department of Health and Human Services.

The Department of Transportation published a final rule authorizing the use of an updated Alcohol Testing Form with a mandatory start date of August 1, 2010. The Department subsequently learned the industry might not use all the forms by that mandatory use date. To avoid wasting the forms, the Department is extending the mandatory use date to January 1, 2011.

The Department of Transportation is proposing only to extend the date for the mandatory use of our recently updated Alcohol Testing Form (ATF) to January 1, 2011. The revised ATF went into effect on February 25, 2010 with a mandatory use date of August 1, 2010. After publishing the February 25 revisions, we learned that vendors and users of the ATF will not be able to deplete their current supply of ATFs by August 1, 2010. Therefore, in order to assist the transportation industries and their service agents in their efforts to be economically efficient and more environmentally ‘‘green,’’ we are seeking public comment to extend the mandatory use date to January 1, 2011.

This final rule adopts as final without change, a June 13, 2008, interim final rule (IFR) authorizing employers in the Department’s drug and alcohol testing program to disclose to State commercial driver licensing (CDL) authorities the drug and alcohol violations of employees who hold CDLs and operate commercial motor vehicles (CMVs), when a State law requires such reporting. The rule also responds to comments on the IFR.

The Department of Transportation is making technical amendments to its drug and alcohol testing procedures to  authorize employers to begin using the updated U.S. DOT Alcohol Testing Form (ATF) and the Management Information System (MIS) Data Collection Form. The Department updated the information collection notice on the forms to conform to requirements under the Paperwork Reduction Act.

This final rule responds to the comments received regarding the interim final rule (IFR) procedures for the use of a new alcohol screening device (ASD) which is qualified for use in DOT Agency regulated alcohol testing. The department did not receive any comments which were germane to the rulemaking. As such, the Department will adopt the rule as final without change.

The Department of Transportation is proposing to amend certain provisions of its drug testing procedures dealing with laboratory testing of urine specimens. Some of the proposed changes will also affect the roles and standards applying to collectors and Medical Review Officers. The proposed changes are intended to create consistency with new requirements established by the U.S. Department of Health and Human Services Mandatory Guidelines.

The Department of Transportation (DOT) issued a decision and order under the Procedures for Transportation Workplace Drug and Alcohol Testing Programs excluding a service agent, Michael R. Bennett, Workplace Compliance, Inc. in North Carolina, Texas, and all other places it is incorporated, franchised, or otherwise doing business, and all other individuals who are officers, employees, directors, shareholders, partners, or other individuals associated with Workplace Compliance, Inc., from providing drug and alcohol testing services in any capacity to any DOT-regulated employer for a period of 5 years. Mr. Bennett and his company provided Medical Review Officer services to DOT-regulated employers directly and through other service agents when Mr. Bennett was not qualified to act as a Medical Review Officer.
 
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This amendment reinstates the requirement for direct observation collections for all return-to-duty and follow-up tests. This provision was stayed by the United States Court of Appeals for the District of Columbia Circuit effective November 1, 2008, but that stay was lifted on July 1, 2009. This amendment, therefore, restores language to the version that became a final rule on June 25, 2008.

On May 15, 2009, the United States Court of Appeals for the District of Columbia Circuit unanimously upheld DOT’s direct observation drug testing rules applicable to return-to-duty, safety-sensitive transportation industry employees who have already failed or refused to take a prior drug test.  The Court found that the rules were not arbitrary or capricious and did not violate the Fourth Amendment constitutional prohibition on unreasonable searches and seizures.  

On June 25, 2008, the Department issued a Final Rule amending, among other provisions, paragraph (b) of our section pertaining to urine specimen collections. This amendment required direct observation collections for all return-to-duty and follow-up tests. We sought additional comments to this provision on August 25, 2008. On October 22, 2008, the Department issued a notice responding to those comments. The Department did not change the amendment, and determined that the revised paragraph would go into effect, as scheduled, on November 1, 2008. On November 12, 2008, the United States Court of Appeals for the District of Columbia Circuit issued a stay of the revised paragraph (b). This document, therefore, returns the language of 49 CFR 40.67(b) that existed prior to the November 1, 2008, effective date pending further order of the Court.

The Department is issuing this notice to respond to comments on the amendment to 49 CFR 40.67(b) issued as part of a final rule on June 25, 2008. The Department is not changing this amendment, which will go into effect, as scheduled, on November 1, 2008. On November 1, 2008, direct observation collections will be required for all return-to-duty and follow-up DOT tests.

The Department is changing the effective date for mandatory direct observation (DO) for follow-up and return-to-duty testing. DO for FU and RTD drug testing will remain an employer's option until November 1, 2008. The Department is also seeking comments [for 30 days] about whether DO for FU and RTD testing should be mandatory.

The rest of the June 25, 2008, final rule goes into effect on August 25, 2008, as scheduled - including the new DO procedures which require observers to check for prosthetic and other devices when specimen collections are observed.

The Department of Transportation is amending certain provisions of its drug and alcohol testing procedures to change instructions to collectors, laboratories, medical review officers, and employers regarding adulterated, substituted, diluted, and invalid urine specimen results. These changes are intended to create consistency with specimen validity requirements established by the U.S. Department of Health and Human Services and to clarify and integrate some measures taken in two of our own Interim Final Rules. This Final Rule makes specimen validity testing mandatory within the regulated transportation industries.

The Office of the Secretary (OST) is amending its drug and alcohol testing procedures to authorize employers to disclose to State commercial driver licensing (CDL) authorities the drug and alcohol violations of employees who hold CDLs and operate commercial motor vehicles (CMVs), when a State law requires such reporting. This rule also permits thirdparty administrators (TPAs) to provide the same information to State CDL licensing authorities where State law requires the TPAs to do so for owneroperator CMV drivers with CDLs.

Click here to view the State Laws Reporting Matrix

The Office of Drug and Alcohol Policy and Compliance (ODAPC) is taking action to rectify what may be a mischaracterization of some test results as being substituted specimens. In appropriate cases, ODAPC will reconsider the employee’s original refusal result, when reported from September 1998 through May 2003, and based upon a ‘‘substitution’’ finding in a given numerical range.

The notice amends and updates the list of devices that conform to the Model Specifications for Screening Devices to Measure Alcohol in Bodily Fluids.

Adding state-licensed or certified marriage and family therapists to the list of credentialed professionals eligible to serve as substance abuse professionals. There are also a series of technical amendments to the drug and alcohol testing procedural rule.

  • 03/10/2006 – Notice of Proposed Rule Making
    Proposal to add state licensed and certified marriage and family therapists to the list of credentialed professionals eligible to serve as Substance Abuse Professionals.

    Correction: The NPRM incorrectly lists http://www.dms.dot.gov as the web site address for submitting comments on the DOT electronic docket site. The correct web site address is http://dms.dot.gov. Once at the site, click on Comment/Submissions and follow the instructions for submitting comments.

  • 10/31/2005 – Notice of Proposed Rule Making
    Proposal for drug testing; specifically, specimen validity testing (SVT) (the testing for adulterants and substitutions in urine specimens). There are also a number of recommended changes to the laboratory and medical review officer (MRO) responsibilities with regard to SVT.
  • 09/30/2002 – Notice of Proposed Rule Making
    Proposal to revise the MIS form currently used by the six Operating Administrations (OA) and the United States Coast Guard and to streamline the annual reporting of drug and alcohol program data to the OAs through use of a one-page MIS data collection form. The Department also desires to standardize across the OAs the information collected and to reduce the amount of data reported by transportation employers.
  • 08/09/2001 – Final Rule (effective 08/01/2001)
    This rule makes a series of technical amendments to the drug and alcohol testing procedural rule. The technical amendments clarify certain provisions of the rule and address omissions or problems identified since the publication of the final rule in December 2000.
  • 08/09/2001 – Response to Comments on Pre-Employment Inquiry Requirement; Common Preamble for DOT Agency Conforming Rules
    This document does two things. First, it responds to comments by maritime industry groups and others concerning the pre-employment inquiry provision of the Department-wide regulations on transportation workplace drug and alcohol testing procedures (Part 40 rule). The Department recently opened a 30-day comment period on that issue. Second, this document serves as a ‘‘common preamble’’ discussing issues raised with respect to the Part 40 rule in comments to DOT agency proposals to amend their drug and alcohol testing rules to conform to the Part 40 rule.
  • 06/14/2001 – Request for Comments on Final Rule
    On December 19, 2000, the Department of Transportation published its final rule on drug and alcohol testing procedures. One provision of this rule requires employers to inquire into the drug and alcohol testing records of applicants for employment. A group of maritime industry organizations requested that the Department provide a comment period on this provision. In response to this request, the Department is opening a comment period for 30 days.
  • 05/23/2001 – Compliance Date on Final Rule
    Authorization for HHS certified laboratories to initiate electronic reporting as the only reporting necessary for negative results on specimens submitted to laboratories using the new CCF and the reporting of non-negative results using faxed or scanned copies of Copy 1 of the new CCF.
  • 01/17/2001 – Final Rule; Correction
    In its final drug and alcohol testing rule published on December 19, 2000, the Department made an editorial error in the numbering of a section in the complete new version regulation. This document corrects this error by inserting the proper numbering. In addition, the Department inadvertently omitted one item from its amendments to the existing regulation. This document adds this item, which concerns the responsibilities of the medical review officer in reviewing chain of custody documentation.
  • 12/19/2000 – Final Rule (amendments effective 01/18/2001; revisions effective 08/01/2001)
    The rule revises the drug and alcohol testing procedures regulation. The purposes of the revision is to make the organization and language of the regulation clearer, to incorporate guidance and interpretations of the rule into its text, and to update the rule to include new provisions responding to changes in technology, the testing industry, and the Department’s program.
 
Updated: Tuesday, December 4, 2012