[Federal Register Volume 89, Number 120 (Friday, June 21, 2024)]
[Rules and Regulations]
[Pages 51981-51983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12749]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket DOT-OST-2021-0093]
RIN 2105-AE94


Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs: Technical Amendments

AGENCY: Office of the Secretary, Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The U.S. Department of Transportation is making a series of 
technical amendments to its drug testing procedures rule, which was 
effective June 1, 2023. The purpose of these technical amendments is to 
clarify certain provisions of the rule and address omissions of which 
we have become aware since the publication of the final rule.

DATES: This final rule is effective June 21, 2024.

FOR FURTHER INFORMATION CONTACT: Bohdan Baczara, Deputy Director, 
Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey 
Avenue SE, Washington, DC 20590; telephone number 202-366-3784; 
[email protected].

SUPPLEMENTARY INFORMATION: DOT published amended procedures for its 
drug testing program (49 CFR part 40) on May 2, 2023 (88 FR 27596). 
This rule went into effect on June 1, 2023. The final rule authorized 
oral fluid drug testing as an additional methodology for employers to 
use as a means of achieving the safety goals of the program. We have 
determined instances in which the text of various sections of the 
regulation should be clarified and errors or omissions that should be 
corrected. This technical amendment is intended to make these 
clarifications and corrections.

Section 40.14 What collection information must employers provide to 
collectors?

    In the introductory sentence, we are removing the word `urine' 
because, as described in the preamble to the May 2023 final rule and 
consistent with numerous other deletions of the term ``urine'' in 
instances where the rule was intended to cover both urine and oral 
fluid specimens, the information the employer provides to collectors 
applies to all specimen collections (urine and oral fluid). Also, in 
bullet `(e)' we are fixing an incorrect reference. The reference should 
read Sec.  40.36 and not Sec.  40.35. Section 40.14(e) requires 
employers to provide to collectors the designated employer 
representative (DER) information required elsewhere in part 40. Section 
40.36 specifies the required DER information and is the correct 
reference. Section 40.35 specifies training requirements for oral fluid 
collectors and is not the correct reference.

Subpart C--Urine Collection Personnel

    As described in the preamble to the May 2023 final rule and 
consistent with numerous other deletions of the term ``urine'' in 
instances where the rule was intended to cover both urine and oral 
fluid specimens, Subpart C provides instructions for both types of 
specimen collectors, urine and oral fluid. With that in mind, we are 
removing the word

[[Page 51982]]

`Urine' from the heading and replacing it with the word `Specimen'.

Section 40.81 What laboratories may be used for DOT drug testing?

    Before oral fluid drug testing was authorized in the DOT drug 
testing program, laboratories conducting DOT drug testing could only 
test urine specimens. With oral fluid drug testing now authorized, we 
are removing the word `required' from Sec.  40.81(a) as both urine and 
oral fluid drug testing are each authorized, and urine testing is no 
longer required.

Section 40.83 How do laboratories process incoming specimens?

    In Sec.  40.83(d), (e)(3), and (g)(2) there is an incorrect 
reference to Sec.  40.97(a)(3). Each of these Sec.  40.83 paragraphs 
require reporting of `fatal flaw' and `rejected for testing' test 
results in accordance with Sec.  40.97(a)(3). However, there is in fact 
no paragraph (a)(3) in Sec.  40.97(a). Section 40.97(a) requires 
laboratories to report the specimen type for any result it reports. The 
correct reference should be Sec.  40.97(b)(3), titled ``Category 3: 
Rejected for testing''. We are making that correction in this final 
rule. We are also fixing an incorrect reference in Sec.  40.83(f)(2), 
which requires a laboratory to report a result when certain conditions 
have been met where the urine specimen temperature was not checked on 
the CCF. That reference should read Sec.  40.97(b) and not Sec.  
40.97(a). As noted previously, Sec.  40.97(a) refers to the reporting 
of specimen type. Section 40.97(b), the correct reference, pertains to 
required reporting of results for the specified categories of 
specimens.

Section 40.97 What do laboratories report and how do they report it?

    We are making two technical corrections. First, in Sec.  
40.97(c)(1)(i)(M) there is an incorrect reference to ``paragraph (a)''. 
Second, in Sec.  40.97(c)(2) there is an incorrect reference to 
``paragraphs (b)(1)(i) and (ii) of this section''. When we inserted a 
new paragraph ``(a)'', the remaining paragraphs were renumbered and the 
references in (c)(1)(i)(M) and (c)(2) were not adjusted accordingly. 
The correct references should be ``paragraph (b)'' and ``paragraphs 
(c)(1)(i) and (ii) of this section'', respectively.

Section 40.113 Where is other information concerning laboratories found 
in this regulation?

Section 40.169 Where is other information concerning the role of MROs 
and the verification process found in this regulation?

Section 40.189 Where is other information concerning split specimens 
found in this regulation?

Section 40.217 Where is other information on the role of STTs and BATs 
found in this regulation?

Section 40.313 Where is other information on SAP functions and the 
return-to-duty process found in this regulation?

    The preamble to the final rule discussed removing several sections 
from part 40. After careful consideration of public comment, DOT stated 
that it proposed removing several sections (Sec. Sec.  40.29, 40.37, 
40.113, 40.169, 40.189, 40.217, and 40.313), which listed other 
sections of part 40 touching on a given topic (e.g., employer 
responsibilities in Sec.  40.29). The more than 20 years since DOT 
placed these sections into part 40, electronic search tools have become 
sophisticated and ubiquitous, making these sections no longer 
necessary. DOT removed the cross-reference sections of Sec. Sec.  
40.29, 40.37, 40.113, 40.169, 40.189, 40.217, and 40.313, as proposed.
    However, in the final rule only Sec. Sec.  40.29 and 40.37 were 
removed. In this technical amendment, we are providing instructions to 
remove Sec. Sec.  40.113, 40.169, 40.189, 40.217 and 40.313, as 
discussed in the preamble but were inadvertently left in the final 
rule. [88 FR 27609] We are now removing them as initially determined.

Section 40.145 On what basis does the MRO verify test results involving 
adulteration or substitution?

    In Sec.  40.145(e)(2), (h)(1) introductory text, (h)(1)(ii), (h)(2) 
introductory text, and (h)(2)(ii), which are related to substituted 
urine results, there is an incorrect reference to Sec.  40.93(b). 
Section 40.93(b) pertains to the validity testing for oral fluid 
specimens. The correct reference should be Sec.  40.88(b), which 
pertains to criteria laboratories must use to establish that a urine 
specimen is dilute or substituted. In this final rule, we are 
correcting that reference in each section identified above.

Section 40.159 What does the MRO do when a drug test result is invalid?

    In Sec.  40.159(a)(1), there are incorrect references to Sec. Sec.  
40.91(e) and 40.96(b). The correct references should be Sec. Sec.  
40.87(e) and 40.90(b), respectively. There is no Sec.  40.91(e). 
Section 40.91 contains only a chart of the cutoff concentrations for 
oral fluid drug tests. There is also no Sec.  40.96. We are making 
these corrections in this final rule.

Section 40.191 What is a refusal to take a DOT drug test, and what are 
the consequences?

    In Sec.  40.191, paragraphs (a)(2) and (3) state that it is a 
refusal to test if an employee fails to remain at the testing site 
until the testing process is complete and if an employee fails to 
provide a specimen for any drug test required by Part 40 or the DOT 
agency regulations. Those subparagraphs go on to say that it is not a 
refusal to test if the test reason is `pre-employment' and the employee 
left before the testing process commenced and provide citations to when 
the testing process commences for urine Sec.  40.63(c) and oral fluid 
Sec.  40.72(e), as applicable. The reference to Sec.  40.72(e) is 
incorrect. The correct reference should be Sec.  40.72(d)(3) as it is 
specific to when the employee selects a specimen collection device, or 
the collector provides a specimen collection device to the employee. 
Referencing Sec.  40.72(d)(3) is the correct reference as it mirrors 
the commencement of a urine collection.

Section 40.207 What is the effect of a cancelled drug test?

    Section 40.207(d) allows MROs to reverse cancelled tests where the 
reason for the cancellation involves paperwork errors (e.g., missing or 
delayed paperwork) that were not corrected which resulted in the MRO 
sending the cancellation to the employer. The reversible cancellations 
need to be administrative errors that can be corrected by paperwork. We 
added language to the May 2, 2023, final rule, in the form of a 
parenthetical in Sec.  40.207(d), to note that correctible flaws 
arising under Sec. Sec.  40.203 and 40.205 are examples of what is 
reversible (88 FR 27596, 27606). We also provided an example of an MRO 
un-canceling for a reason not included in Sec. Sec.  40.203 and 40.205. 
However, in the rule text we inadvertently used an ``i.e.,'' instead of 
an ``e.g.,''. As written, the parenthetical (i.e., Sec. Sec.  40.203 
and 40.205) arguably precludes the MRO from considering any other 
scenario in which they can un-cancel a drug test result. The intent in 
the preamble is clear and to avoid confusion for the MROs, we are 
revising ``i.e.,'' in the parenthetical to read ``e.g.,''.

[[Page 51983]]

Section 40.245 What is the procedure for an alcohol screening test 
using a saliva ASD or a breath tube ASD?

    We are correcting a typographical error in Sec.  40.245(a)(6)(ii). 
Specifically, paragraph (a)(6)(ii) states that the new device you use 
must be one that has been under your control or that of the employee 
before the test. The language states that the responsibility for 
providing a new saliva testing device in instances where the STT or BAT 
is unable to successfully follow the procedures of Sec.  40.245(a)(3) 
through (5) (e.g., the device breaks, you drop the device on the floor) 
falls to the STT or BAT or the employee (emphasis added). Reference to 
the employee was in error. While it is reasonable to rely on the STT or 
BAT to provide the new device, the employee would not be expected to 
have a backup device on hand. Instead, the employer could also provide 
the new device. Ultimately, the employer is responsible for ensuring 
the test is completed, not the employee. This change will mirror the 
existing language in 40.245(b)(7)(ii), which describes similar 
procedures and responsibilities for alcohol testing using a breath tube 
alcohol screening device. We are making the correction by replacing 
`employee' with `employer'.

Section 40.291 What is the role of the SAP in the evaluation, referral, 
and treatment process of an employee who has violated DOT Agency drug 
and alcohol testing regulations?

    In the last sentence of Sec.  40.291(a)(1), there is duplicative 
text. We are removing the duplicative text.

Regulatory Notices and Analyses

    This final rule is a non-significant rule for purposes of section 
3(f) of Executive Order (E.O.) 12886, as supplemented by E.O. 13563 and 
amended by E.O. 14094. DOT has determined that the regulatory analyses 
conducted for the May 2, 2023, final rule remain applicable to this 
technical correction final rule. DOT makes these statements on the 
basis that, as a series of technical amendments that correct or clarify 
existing regulatory provisions, this rule will not impose any 
significant costs or have impacts beyond those analyzed in the May 2, 
2023, final rule.
    DOT concludes that it has good cause to waive prior opportunity for 
notice and comment under 5 U.S.C. 553(b)(B). The technical amendments 
included in this final rule render notice and comment unnecessary and 
contrary to the public interest. The amendments made in this rule are 
technical, corrective, and clarifying changes to an existing rule that 
went through an extensive public notice and comment process. The 
amendments do not make significant substantive changes to part 40. The 
errors in the current regulation are also potentially confusing to 
testing laboratories, employers, employees subject to testing, and 
other stakeholders, and prompt publication would clarify ambiguities. 
For these same reasons, DOT finds good cause to waive the 30-day delay 
in effective date under 5 U.S.C. 553(d)(3).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. DOT will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. This 
rule does not constitute a major rule as defined in 5 U.S.C. 804(2).

List of Subjects in 49 CFR Part 40

    Administrative practice and procedures, Alcohol abuse, Alcohol 
testing, Drug abuse, Drug testing, Laboratories, Reporting and 
recordkeeping requirements, Safety, Transportation.

    For the reasons stated in the preamble, DOT amends 49 CFR part 40 
as follows:

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

0
1. The authority for part 40 continues to read as follows:

    Authority:  49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 
54101 et seq.


Sec.  40.14  [Amended]

0
2. In Sec.  40.14, in the introductory text, remove the word ``urine'' 
before the word specimen and in paragraph (e), remove ``40.35 of this 
part'' and add ``40.36'' in its place.

Subpart C [Amended]

0
3. In the heading for subpart C, remove the word ``Urine'' and add the 
word ``Specimen'' in its place.


Sec.  40.81  [Amended]

0
4. In Sec.  40.81, in paragraph (a), remove the word ``required''.


Sec.  40.83  [Amended]

0
5. In Sec.  40.83, in paragraphs (d), (e)(3), and (g)(2), remove 
``40.97(a)(3)'' and add ``40.97(b)(3)'' in its place and in paragraph 
(f)(2), remove ``40.97(a)'' and add ``40.97(b)'' in its place.


Sec.  40.97  [Amended]

0
6. In Sec.  40.97(c)(1)(i)(M), remove ``(a)'' and add ``(b)'' in its 
place and in paragraph (c)(2), remove ``(b)'' and add ``(c)'' in its 
place.


Sec.  40.113  [Removed]

0
7. Remove Sec.  40.113.


Sec.  40.145  [Amended]

0
8. In Sec.  40.145, in paragraphs (e)(2), (h)(1) introductory text, 
(h)(1)(ii), (h)(2) introductory text, and (h)(2)(ii), remove ``Sec.  
40.93(b)'' and add ``Sec.  40.88(b)'' in its place.


Sec.  40.159  [Amended]

0
9. In Sec.  40.159, in paragraph (a)(1), remove ``Sec.  40.91(e) and 
Sec.  40.96(b)'' and add ``Sec.  40.87(e) and Sec.  40.90(b)'' in its 
place.


Sec.  40.169  [Removed]

0
10. Remove Sec.  40.169.


Sec.  40.189  [Removed]

0
11. Remove Sec.  40.189.


Sec.  40.191  [Amended]

0
12. In Sec.  40.191, in paragraphs (a)(2) and (3), remove ``Sec.  
40.72(e)'' and add ``Sec.  40.72(d)(3)'' in its place.


Sec.  40.207  [Amended]

0
13. In Sec.  40.207, in paragraph (d), remove ``i.e.,'' in the 
parenthetical and add ``e.g.,'' in its place.


Sec.  40.217  [Removed]

0
14. Remove Sec.  40.217.


Sec.  40.245  [Amended]

0
15. In Sec.  40.245, in paragraph (a)(6)(ii), remove the word 
``employee'' and add the word ``employer'' in its place.


Sec.  40.291  [Amended]

0
16. In Sec.  40.291, in the last sentence of paragraph (a)(1) 
introductory text, remove the second occurrence of ``must be''.


Sec.  40.313  [Removed]

0
17. Remove Sec.  40.313.

    Signed pursuant to authority delegated at 49 CFR 1.27(c) in 
Washington, DC.
Subash Iyer,
Acting General Counsel.
[FR Doc. 2024-12749 Filed 6-20-24; 8:45 am]
BILLING CODE 4910-9X-P