[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2031]


[[Page Unknown]]

[Federal Register: February 15, 1994]


DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket 49384, Notice 94-3]
RIN 2105-AB95

 

Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: Under the Omnibus Transportation Employee Testing Act of 1991, 
the Department of Transportation is required to implement alcohol 
testing programs in various transportation industries. This proposed 
rule would establish circumstances in which blood alcohol testing could 
be used in these programs and procedures that would be used for blood 
alcohol testing.

DATES: Comments on this notice of proposed rulemaking should be 
received by May 16, 1994. Late-filed comments will be considered to the 
extent practicable.

ADDRESSES: Comments should be sent to Docket Clerk, Att: Docket No. 
49384, Department of Transportation, 400 7th Street, SW., room 4107, 
Washington DC, 20590. For the convenience of persons wishing to review 
the docket, it is requested that comments be sent in duplicate. Persons 
wishing their comments to be acknowledged should enclose a stamped, 
self-addressed postcard with their comment. The docket clerk will date 
stamp the postcard and return it to the sender. Comments may be 
reviewed at the above address from 9 a.m. through 5:30 p.m. Monday 
through Friday.

FOR FURTHER INFORMATION CONTACT: Donna Smith, Acting Director, 
Department of Transportation Office of Drug Enforcement and Program 
Compliance, 400 7th Street, SW., , Washington DC, 20590, room 9404, 
202-366-3784; or Robert C. Ashby, Deputy Assistant General Counsel for 
Regulation and Enforcement, 400 7th Street, SW., room 10424. 202-366-
9306.

SUPPLEMENTARY INFORMATION: Department published in today's Federal 
Register a final rule (49 CFR part 40) establishing testing procedures 
for the Department's new alcohol testing rules. The Department's 
December 1992 NPRM for these procedures did not propose to permit blood 
alcohol testing. Therefore, it did not include any proposed blood 
alcohol testing procedures. Today's NPRM proposes limited circumstances 
in which blood alcohol testing would be permitted for the covered 
operating administrations and procedures that would be used for this 
purpose. We seek comments on these proposed procedures and on any 
additions, deletions, or modifications we should make to them. In 
addition, we seek comment on the broader question of whether the 
Department should adopt blood alcohol testing at all.

Section-by-Section Analysis

Section 40.71  Authorized Uses for Blood Alcohol Testing

    We propose to allow blood alcohol testing only in a limited set of 
circumstances. Blood alcohol testing could be used in reasonable 
suspicion and post-accident testing, where an evidential breath testing 
device (EBT) is not readily available, and in place of a medical 
evaluation in ``shy lung'' situations. If breath testing were not 
readily available for a reasonable suspicion or post-accident test, 
employers would have to use blood alcohol testing to meet their 
regulatory obligations.-
    We are aware of certain advantages to blood alcohol testing. It is 
accurate, does not require expenditures for expensive new equipment, 
and can be conducted by qualified personnel who are generally readily 
available even in remote locations. At the same time, blood alcohol 
testing has a number of disadvantages, all of which are exacerbated 
with extensive use. It is the most intrusive form of testing, it does 
not provide an immediate confirmed result, and it necessitates 
additional procedural complexities such as collection, laboratory, and 
chain of custody requirements. There could be additional costs and 
litigation. Nevertheless, because we are aware that, in some 
circumstances the unavailability of EBTs meeting part 40 requirements 
may make breath testing impracticable, we believe that it may be useful 
to allow some flexibility. We think it better, in these circumstances, 
to allow testing using a method with some disadvantages than to be 
unable to complete a test at all. -
    Reasonable suspicion and post-accident tests are more likely than 
other kinds of test to happen at unpredictable times and in remote 
locations. (The time and, to some extent, place of random and pre-
employment testing are more likely to be under the employer's control.) 
Consequently, as commenters suggested, unless an employer incurs the 
expense of having EBTs in all of its locations, or has an extensive 
rapid-deployment capability, it may be substantially easier and less 
costly to arrange for a blood alcohol test in these circumstances. In 
some cases, it may be impossible to get an EBT to a remote location in 
time to conduct a meaningful test.
    Particularly in remote locations, there could be situations in 
which the only person trained to conduct alcohol tests is the 
supervisor of an employee subject to a post-accident or reasonable 
suspicion test. Our current rules permit a supervisor to conduct breath 
alcohol tests, if the supervisor is a trained BAT and another BAT is 
not available, as long as operating administration rules do not 
prohibit this action by the supervisor. In the case of reasonable 
suspicion tests, the operating administration rules prohibit the 
supervisor who has made the reasonable suspicion determination from 
conducting either the screening or confirmation test. The purpose of 
this NPRM is to increase flexibility in post-accident and reasonable 
suspicion testing in circumstances in which testing would otherwise be 
difficult to accomplish. With that purpose in mind, would it make sense 
to permit supervisors to conduct screening tests in these situations? 
Should blood testing be treated any differently from breath testing for 
these purposes? -
    Moreover, the number of post-accident and reasonable suspicion 
tests is likely to be substantially lower than the numbers of pre-
employment and random tests. This means that the disadvantages of blood 
alcohol testing noted above will occur in a limited number of cases. 
(The Department estimates that there will be around 2500 blood alcohol 
tests per year under this proposal and seeks comment on whether this 
estimate is reasonable.) If employers ``stand down'' employees on the 
basis of the event leading to the test, the safety impact of the lack 
of an immediate result may be further reduced.
    One of the key conditions for allowing the use of blood alcohol 
testing is that EBTs not be ``readily available.'' Because of its 
greater invasiveness and because it does not produce an immediate 
result, the use of blood alcohol testing is intended to be used only in 
those reasonable suspicion and post-accident testing circumstances 
where it is not practicable to use breath testing. Blood alcohol 
testing is not intended, under the proposal, to be an equal alternative 
method that an employer can choose as a matter of preference. -
    We seek comment on when the final rule should regard an EBT as 
being ``readily available.'' For example, if a breath test can be 
arranged within a given time (e.g., two hours) of the event requiring 
the test, should breath testing be regarded as readily available? What 
should the time frame be? What if the cost of obtaining an EBT and 
bringing it to the site for testing is a certain multiple of the cost 
of conducting blood alcohol testing in that case? What if it were 
simply more convenient or less expensive to use a blood alcohol test 
rather than breath testing in a particular case? Are there other 
criteria that could be used to determine when breath testing was 
readily available? Should this be left to the judgment of the employer? 
If so, how would the Department judge when this discretion had been 
exercised properly? Should the Department require the employer to 
document the facts that led to a decision to use blood alcohol 
testing?-
    In context of this discussion of ``readily available,'' we would 
point out that the EBT involved need not be one that the employer owns. 
It could also be a device that is owned by another employer or a third-
party provider. We do not think that it should be necessary for an 
employer to pre-position an EBT (or enter into a contract) at every 
possible testing location. However, we do believe it is fair to expect 
employers to make arrangements for the use of EBTs either through 
purchase, lease or contract, assuming normal deployment to do routine 
random and pre-employment testing. The Department seeks comment on 
whether, and how, these expectations should be made part of the text of 
the final rule.--
    The NPRM proposes that, if no EBT were readily available for even 
the screening test, a blood sample would be collected and sent to the 
laboratory, where two tests would be conducted on the primary specimen. 
Alternatively, if an EBT were available for the screening test, but an 
EBT meeting part 40 requirements for use in a confirmation test were 
not available, a blood confirmation test could be performed. Some 
questions arise about the former situation. Would this provision 
discourage employers from obtaining the less expensive alcohol 
screening devices permitted by part 40? Would employers be deterred 
from using blood as a collection method by fear of confrontations with 
or litigation by employees who resented the intrusiveness of blood 
alcohol testing all the more for the absence of a breath screening 
test? Would additional supervisor training be needed? On the other 
hand, would the majority of situations in which blood could be used 
under this proposal likely be situations in which no EBTs at all were 
available, so that using blood for both screening and confirmation 
testing would be necessary in order to make the proposal meaningful?-
    The NPRM also proposes that employers could use blood alcohol 
testing for an employee covered under the ``shy lung'' provision of the 
Department's new alcohol testing procedures. If an employee was unable 
to provide sufficient breath for a breath test, the employer could 
choose either to refer the employee for a medical evaluation or to draw 
a blood sample as provided in this NPRM. -
    Whether for liability reasons or on the basis of the events leading 
to a post-accident or reasonable suspicion test, many employers might 
prefer to ``stand down'' the employee pending the receipt of the 
laboratory result of the blood alcohol test. Is it necessary for the 
Department's regulations to address this subject? If so, what should 
the rules provide?

Section 40.73  Collection Procedures for Blood Alcohol Tests-

    We think it will not be necessary to establish extensive new 
procedures for collecting blood samples, given the limited 
circumstances in which use of this method would be authorized. (The 
situation would probably be different if blood testing were being 
proposed for pre-employment and random testing as well.) Collection of 
blood specimens for forensic purposes such as law enforcement is 
considered standard procedure at many medical facilities. For these 
reasons, we believe that we should depend, to the extent possible, on 
existing resources and programs. We propose that anyone who is 
licensed, certified, or otherwise authorized under state law to draw 
blood could do so in the State for purposes of the DOT program. In most 
states, physicians, nurses, phlebotomists, and sometimes other medical 
personnel, have this authority. -
    It is our understanding that states, for law enforcement and other 
forensic purposes, have approved procedures for collecting blood 
specimens for the purpose of alcohol testing. Except to the extent that 
DOT rules specify certain requirements, the NPRM would allow a blood 
specimen to be collected for purposes of the DOT program in accordance 
with these existing state procedures. As with personnel qualifications 
and specimen collection procedures, chain of custody requirements would 
follow state requirements for law enforcement and other forensic blood 
collections. The Department seeks comment on whether reliance on state 
requirements would produce too much confusion or inconsistency, such 
that nationwide, uniform DOT procedures would be preferable. On the 
other hand, would such uniform DOT procedures make it too difficult to 
operate a blood testing program for a relatively small number of 
samples, reducing flexibility that this proposal is designed to permit?
    The NPRM would require 20 ml of blood to be drawn for the test. As 
explained in the preamble to the final rule for part 40 published 
today, there is a statutory requirement for collecting split samples of 
body fluids in FAA, FTA, FRA, and FHWA programs. In this situation, the 
sample would be subdivided into two 10 ml tubes. Collections under the 
RSPA rule, where split samples are not required, would require only 10 
ml of blood, placed in one tube. The NPRM would require certain 
standard testing materials to be used, which would be provided by 
testing laboratories in a sealed kit. The kit would include the blood 
tubes, labels, chain of custody form, blood extraction device, and 
swab. We seek comment on whether it is advisable to require the 
inclusion of blood extraction devices. That is, is including these 
materials needed, in light of the resources available at testing sites? 
Would including them give rise to concerns about theft? We also seek 
comment on whether the kit should also include standardized collection 
instructions. The employer would be responsible for ensuring the kit 
was available at the testing location.

Section 40.75  Laboratories for Blood Alcohol Testing

    The regulatory text of this proposed section is a place-holder. One 
of the most difficult questions facing the Department is how to ensure 
that appropriately well-qualified laboratories test blood specimens for 
alcohol. Absent a satisfactory answer to this question, the viability 
of this proposed rule is in question.
    One approach the Department could take, which is consistent with 
the approach of using existing resources to the extent practicable, is 
to rely on those laboratories--whether state-operated or private--that 
conduct forensic blood alcohol tests for law enforcement and other 
purposes in each state. The final rule would assume, in effect, that a 
laboratory whose findings were deemed sufficient under state law to act 
as the basis for criminal or civil penalties against persons in DUI or 
similar cases was adequate for DOT workplace testing program purposes. 
In order for this approach to work, there would have to be state or 
state-approved laboratories in a sufficient number of states that had 
the willingness and capacity to accept and process ``DOT'' blood 
specimens. We see no reason why laboratories in every state would 
necessarily have to participate. Since we expect few blood alcohol 
tests, large numbers of laboratories would not be necessary, and 
specimens could be sent to a laboratory in any state that accepts 
commercial business. The Department seeks comments on the capacity and 
suitability of such laboratories.
    A second approach would be to construct a system based on the 
laboratories certified by the Department of Health and Human Services 
(DHHS) for urine drug testing. DHHS has carefully reviewed the overall 
proficiency and forensic capability of these laboratories, and they are 
available to users throughout the country. Many DHHS-certified 
laboratories currently perform blood alcohol testing, but there is no 
blood alcohol testing proficiency requirement involved with DHHS 
certification. Under this approach, the Department, in cooperation with 
DHHS, could develop a proficiency requirement for blood alcohol 
testing. Such a requirement could be implemented through a DOT-DHHS 
agreement calling for DHHS certification and inspection for blood 
alcohol testing purposes.
    This approach would require DOT and DHHS to work out an agreement. 
The cost of the certification program--both to the Department and to 
laboratories--is not yet known, though the Department is working with 
DHHS to develop this information. The cost to the Federal government of 
this certification program would have to be recovered from the 
laboratories via user fees. Given the small number of tests, it is 
questionable whether laboratories would find it cost-effective to 
become certified for blood alcohol testing, though there could be some 
pressure from customers to process blood as well as urine samples. The 
Department seeks comments on the advantages and disadvantages of this 
approach.
    There are other possibilities. For example, the Department could 
use laboratories certified by private certifying bodies, though the 
Department has expressly declined to do so in its drug testing program. 
DOT and DHHS both believe that the DHHS approval process for 
laboratories provides a more thorough and intense review of laboratory 
quality than existing private certification programs. The Department 
could also contract with one or more laboratories to conduct the needed 
tests. It is likely that user fees would be needed to fund such an 
approach. The Department seeks comment on any additional approaches 
that commenters believe have merit.
    This discussion of the need for laboratory certification is in the 
context of a testing program that does not provide for evidentiary 
proceedings in which an individual could challenge test results. 
Existing Coast Guard alcohol testing regulations provide for post-
accident blood testing in some situations. The validity of these 
proceedings is subject to evidentiary hearings, has long been 
recognized in administrative and court decisions, and is not brought 
into question by the Department's proposals concerning laboratory 
certification.

Section 40.77  Testing of Blood Specimens

    The basic scheme of this provision is similar to the process the 
laboratory uses for drug testing. An aliquot of the primary specimen is 
tested by gas chromatography (GC) or enzyme assay. (Because testing for 
alcohol is simpler chemically than testing for drug metabolites, mass 
spectrometry is not needed.) If the alcohol concentration is less than 
0.04, the laboratory reports a negative test to the employer. If the 
result is 0.04 or above, then the laboratory conducts a GC test on a 
second aliquot of the primary specimen. If the alcohol concentration is 
less than 0.04, the laboratory reports a negative test to the employer. 
If the result is 0.04 or above, the laboratory reports the quantitative 
(positive) result to the employer.
    The split sample procedure also operates in an analogous way to the 
drug testing procedures. If the employee requests a test of the split 
specimen within 72 hours of being informed of the positive result, the 
employer tells the laboratory to send the split specimen to a second 
laboratory, which runs a single GC test on the split specimen. As under 
the drug testing procedures, the employee would have the opportunity to 
present evidence that he or she had been unable to make the request 
within the 72-hour time frame. If the result is 0.04 or above, the 
positive test result stands. If the result is less than 0.04, the test 
result is invalid. The consequences of the test result would not be 
stayed pending the test of the split specimen; the employee would 
remain barred from performing safety-sensitive functions pending the 
receipt of the analysis of the split specimen, unless the employee had 
met the conditions in the applicable operating administration rule for 
return to duty.-
    Because the time when one could gain a safety benefit from removing 
from safety-sensitive functions an employee testing between 0.02 and 
.039 will long since have passed, these procedures do not call for 
taking any action with respect to a test result in this range. The 
Department seeks comment on whether this approach makes sense and on 
whether there are any reasons to report such results to the employer. 
The Department also notes that the proposed procedure calls for two 
tests to be conducted on the primary specimen even if there has been a 
screening test on a preliminary EBT. The reason for this requirement is 
to avoid confusion at the laboratory by requiring a standard procedure 
in all cases, even where one of the two tests is, strictly speaking, 
unnecessary. The Department also seeks comment on this proposal.

Section 40.79(b)  Invalid Tests

    This paragraph would be added to the existing list of fatal flaws 
for breath alcohol tests. It would spell out those actions that would 
automatically cause a test to be deemed invalid. The paragraph is 
intended to provide protections for the accuracy of the process 
equivalent to those provided for breath alcohol testing and urine drug 
testing.
    We seek comment on whether it should be a fatal flaw if an 
unauthorized person has succeeded in drawing a blood sample from an 
employee. Once the sample has been drawn, does the lack of 
authorization of the individual drawing the sample affect its accuracy? 
Should this be a fatal flaw simply as a means of ensuring that 
appropriately qualified people draw blood, regardless of the effects on 
sample accuracy?
    In some circumstances, it may be unclear to the personnel involved 
what state a test occurs in (e.g., a post-accident test on a bridge 
between two states). The procedures of the two states may differ. 
Should the rule be modified to avoid the invalidation of a test just 
because the procedures used turned out to pertain to the wrong state?

Regulatory Analyses and Notices

    Because of substantial public interest and substantial impacts on a 
wide range of private and public sector organizations, the Department 
has determined that this proposed rule--in conjunction with the 
operating administrations' alcohol and drug testing rules and the 
remainder of the alcohol testing portion of part 40--is significant 
under Executive Order 12866. OMB has reviewed this NPRM under that 
Order. The NPRM is also significant under the Department's regulatory 
policies and procedures.
    The Department has prepared a regulatory evaluation for the alcohol 
portion of part 40, which we have included in the docket. The costs of 
the application of part 40 procedures to the programs of the various 
operating administrations are estimated in each of the operating 
administrations' regulatory evaluations for their final alcohol rules 
being published today. At the time of a final rule based on this NPRM, 
the covered operating administrations will supplement their part 40 
alcohol testing rule regulatory evaluations as needed with respect to 
blood alcohol testing.
    The Department expects that this proposal, if implemented, will 
lower costs to employers by providing more flexibility and decreasing 
the number of EBTs needed. As noted above, the Department estimates 
that there would be about 2500 blood alcohol tests annually, under all 
five affected operating administration rules. The Department expects 
that the amount of employee time involved in drawing blood would be 
about the same time involved in breath testing. We seek comment on 
these matters.
    This NPRM, in conjunction with the operating administration drug 
and alcohol testing rules, is likely to have a significant economic 
impact on a substantial number of small entities. These impacts are 
assessed in the operating administrations' supplements to their alcohol 
testing rule regulatory evaluations. The Federalism impacts of this 
rule are either minimal or required by statute; for these reasons, we 
have not prepared a Federalism assessment.

List of Subjects in 49 CFR Part 40

    Drug testing, Reporting and recordkeeping requirements, Safety, 
Transportation.

    Issued this 25th day of January 1994, at Washington, DC.----
Federico Pena,
Secretary of Transportation.

David R. Hinson,
Administrator, Federal Aviation Administration.

Rodney E. Slater,
Administrator, Federal Highway Administration.

Jolene M. Molitoris,
Administrator, Federal Railroad Administration.

Gordon J. Linton,
Administrator, Federal Transit Administration.

Ana Sol Gutierrez,
Acting Administrator, Research and Special Programs Administration.
    For the reasons set forth in the preamble, the Department of 
Transportation proposes to amend title 49, Code of Federal Regulations, 
part 40, as follows:-

PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL 
TESTING PROGRAMS

    1. The authority for part 40 is proposed to continue to read as 
follows:

    Authority: 49 U.S.C. 102,301,322; 49 U.S.C. app. 1301nt., app. 
1434nt., app. 2717, app. 1618a.


Sec. 40.3  [Amended]

    2. In Sec. 40.3 of part 40, the period following the end of the 
definition of ``alcohol concentration'' in section 40.3 is proposed to 
be removed, and the following words added: ``or the blood alcohol 
concentration indicated by a blood alcohol test under this part. `` In 
the definition of ``screening test,'' the words ``(or, where 
authorized, blood)'' are proposed to be added between the word 
``breath''and the word ``specimen.''
    3. A new paragraph (d)(1) is proposed to be added to section 40.69, 
to read as follows:


Sec. 40.69  Inability to provide an adequate amount of breath.

* * * * *-
    (d) * * * -
    (1) The employer may direct the employee to submit to a blood 
alcohol test in accordance with the procedures of Sec. Sec.  40.71 
through 40.77; or
* * * * *
    4. and 5. New sections Secs. 40.71 through 40.77 are proposed to be 
added to subpart C of part 40, to read as follows:


Sec. 40.71  Authorized uses of blood alcohol testing.

    Blood alcohol testing is authorized only in the following 
circumstances:-
    (a) When operating administration rules require a post-accident or 
reasonable suspicion test, and an EBT is not readily available for 
either screening or confirmation tests, blood alcohol testing shall be 
used for both screening and confirmation test purposes.-
    (b) When operating administration rules require a post-accident or 
reasonable suspicion test, and an EBT is readily available for the 
screening test but an EBT suitable for confirmation testing is not 
readily available, blood alcohol testing shall be used for confirmation 
test purposes.-
    (c) When the employee attempts and fails to provide an adequate 
amount of breath, blood alcohol testing may be used for both screening 
and confirmation test purposes.-


Sec. 40.73  Collection procedures for blood alcohol tests.-

    (a) Personnel who conduct blood alcohol tests shall be licensed, 
certified, or otherwise authorized under state law to draw blood in the 
State in which the test takes place.
    (b) The drawing of blood shall be conducted using a blood alcohol 
test kit containing the following items:-
    (1) Two evacuated gray-capped glass tubes (except that for a kit to 
be used only for testing under the Research and Special Programs 
Administration (RSPA) rule, there is required to be only one such 
tube);
    (2) A chain of custody form;
    (3) A label for each tube;
    (4) A sterile, non-alcohol swab; and
    (5) An appropriate, disposable blood extraction device.
    (c) The employer shall use only a blood alcohol test kit obtained 
from a laboratory meeting the requirements of Sec. 40.75. Employers 
shall use kits in accordance with the supplier's instructions, and 
shall not use a kit after its expiration date. Employers shall not re-
use a blood extraction device.-
    (d) The drawing of blood shall be conducted in accordance with 
forensic blood alcohol collection procedures approved in the State in 
which the test takes place.-
    (e) (1) Except as provided in this paragraph, at least 20 ml of 
venous blood shall be drawn and subdivided into two equal portions of 
10 ml each. The collector shall place each portion in a separate 
evacuated gray-capped tube, and label and seal the tubes. The collector 
shall designate one of the tubes as the primary specimen and the other 
as the split specimen.-
    (2) Blood samples collected pursuant to the RSPA alcohol testing 
rule are not required to be subdivided. For tests required by only the 
RSPA alcohol testing rule, the collector shall draw 10 ml of venous 
blood and place it in an evacuated gray-capped tube, and label and seal 
the tube. -
    (f) Blood specimens shall be shipped to the laboratory, together 
with documentation of the chain of custody meeting forensic standards 
acceptable under the law of the State in which the test takes place.


Sec. 40.75  Laboratories for blood alcohol testing.-

    Blood alcohol testing under this part shall be conducted only in 
laboratories where such testing is authorized by Department of 
Transportation regulations. -


Sec. 40.77  Testing of blood specimens.-

    (a) When the split sample method has been used, the laboratory 
shall retain the tube designated as the split specimen in secure 
refrigerated storage, with the seal intact. If the seal on the tube 
designated as the primary specimen has been broken, or the primary 
specimen is otherwise unavailable for testing, the laboratory shall use 
the tube designated as the split specimen in its place.-
    (b) The laboratory shall analyze an aliquot of the primary (or 
sole) specimen for its alcohol concentration, using gas chromatography 
or an enzyme assay, at a cutoff level of 0.04. If the result of this 
analysis is an alcohol concentration of less than 0.04, the laboratory 
shall report the result of the test to the employer as negative. In 
this case, the laboratory may discard the split specimen. If the 
alcohol concentration is 0.04 or greater, the laboratory shall analyze 
a second aliquot of the primary specimen, using gas chromatography. --
    (c) If the result of the analysis of the second aliquot is an 
alcohol concentration of less than 0.04, the laboratory shall report 
the result of the test to the employer as negative. In this case, the 
laboratory may discard the split specimen.
    (d) If the result of the analysis of the second aliquot is an 
alcohol concentration of 0.04 or greater, the laboratory shall report 
the quantitative result to the employer. In this case, where the split 
sample collection method has been used, the laboratory will retain the 
split specimen in secure refrigerated or frozen storage, with the seal 
intact, for 60 days from the date the laboratory acquires the sample.
    (e) (1) At the time the employer informs the employee that the 
employee's test result is 0.04 or greater, the employer shall inform 
the employee that the employee has 72 hours in which to request a test 
of the split specimen. If the employee requests a test of the split 
specimen within 72 hours, the employer shall direct the laboratory to 
release the split specimen for testing.
    (2) If an employee has not contacted the employer within 72 hours, 
as provided in paragraph (e)(1) of this section, the employee may 
present to the employer information documenting that serious illness, 
injury, inability to contact the employer, lack of actual notice of the 
verified positive test, or other circumstances unavoidably prevented 
the employee from timely contacting the employer. If the employer 
concludes that there is a legitimate explanation for the employee's 
failure to contact the employer within 72 hours, the employer shall 
direct that the analysis of the split specimen be performed.
    (3) Pending receipt of the result of the analysis of the split 
specimen, the employee shall not perform safety-sensitive functions, 
unless the employee has met conditions in the applicable operating 
administration rule for return to safety-sensitive functions following 
a test result of 0.04 or greater.
    (4) The laboratory shall ship the split specimen, with seal intact, 
and with appropriate chain of custody documentation, to a second 
laboratory meeting the requirements of Sec. 40.75. The second 
laboratory shall analyze the split specimen for its alcohol 
concentration, using gas chromatography, at a cutoff level of 0.04.
    (5) If the result of the analysis of the split specimen is an 
alcohol concentration of 0.04 or above, the laboratory shall report to 
the employer that the result of the test of the primary specimen has 
been reconfirmed. -
    (6) If the result of this test is an alcohol concentration of less 
than 0.04, or if any of the circumstances set forth in Sec. 40.79(b)(8) 
occur, the laboratory shall report to the employer that the result of 
the test of the primary specimen has not been reconfirmed, and 
therefore, the test is invalid.
    6. A new paragraph (b) is proposed to be added to Sec. 40.79, to 
read as follows:


Sec. 40.79  Invalid tests.-

* * * * *
    (b) A blood alcohol test shall be invalid under the following 
circumstances:-
    (1) The person who draws the blood sample from the employee is not 
authorized to do so under the law of the State in which the sample is 
drawn;-
    (2) The test was not conducted in accordance with forensic blood 
alcohol collection procedures approved in the State in which the test 
takes place;-
    (3) The chain of custody does not meet forensic standards 
acceptable under the law of the State in which the blood is drawn or 
there is a break in the chain of custody;
    (4) The volume of the specimen used for the primary blood alcohol 
test (i.e., as distinct from the split specimen) is less than 10 ml; 
except that if, upon arrival at the laboratory, the specimen volume is 
not less than 8 ml, the laboratory may accept the specimen if the 
laboratory can ensure that sufficient volume will be available for 
testing and any necessary reanalyses for quality control;
    (5) The seal on both specimens (or the only specimen) is broken or 
shows evidence of tampering;
    (6) The test did not take place in a laboratory meeting the 
requirements of Sec. 40.75.
    (7) The testing methods prescribed in Sec. 40.77(b) are not used;-
    (8) If, after an employee makes a timely request for a test of the 
split specimen under Sec. 40.77(e)--
    (i) The split specimen is unavailable for testing;-
    (ii) There is insufficient blood to permit a valid reconfirmation 
test to be conducted;
    (iii) The seal on the tube containing the split specimen has been 
broken prior to testing at the second laboratory, or otherwise shows 
evidence of tampering;
    (iv) The split specimen has not been retained in secure and 
refrigerated storage prior to being transmitted to the second 
laboratory;-
    (v) The inter-laboratory chain of custody is incomplete; or-
    (vi) The test of the split specimen fails to reconfirm the presence 
of alcohol at a level of at least 0.04.

[FR Doc. 94-2031 Filed 02-03-94; 1:00 pm]
BILLING CODE 4910-62-U