[Federal Register Volume 91, Number 90 (Monday, May 11, 2026)]
[Rules and Regulations]
[Pages 25507-25511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-09290]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[Docket DOT-OST-2021-0093]
RIN 2105-AF28
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs
AGENCY: Office of the Secretary, Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: The U.S. Department of Transportation revises its drug and
alcohol testing procedures to require a directly observed urine
collection in situations where oral fluid tests are currently required
but cannot be conducted because oral fluid testing is not yet
available. The rule also updates terminology in these procedures
consistent with Executive Order (E.O.) 14168, Defending Women from
Gender Ideology Extremism and Restoring Biological Truth to the Federal
Government.
DATES: This rule is effective on June 10, 2026.
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:
I. Authority for This Rulemaking
This rulemaking is promulgated pursuant to the Omnibus
Transportation Employee Testing Act of 1991 (OTETA) (Pub. L. 102-143,
Tit. V, 105 Stat. 952). DOT requires urine drug testing and authorizes
oral fluid drug testing as an alternative methodology for the testing
of safety-sensitive transportation industry employees subject to drug
testing under 49 CFR part 40. DOT's part 40 regulation is adopted by
reference in the drug and alcohol testing requirements of each of its
operating administrations.\1\
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\1\ See Sec. 40.3 (defining ``DOT, The Department, DOT Agency''
to include each of the DOT operating administrations).
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II. Background
DOT published a final rule amending the procedures for its drug
testing program (49 CFR part 40) on May 2, 2023 (88 FR 27596) (May 2023
Final Rule). The May 2023 Final Rule went into effect on June 1, 2023.
The May 2023 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. Because the Department of Health and Human
Services (HHS) had determined that oral fluid drug testing, like urine
drug testing, is both scientifically accurate and forensically
defensible, DOT saw no reason to either eliminate or mandate either
methodology. As such, in the vast majority of collection scenarios,
oral fluid testing is available to employers as an alternate
methodology, not as a replacement for urine drug testing. Importantly,
for an employer to implement oral fluid testing, there must be at least
two HHS-certified laboratories for oral fluid testing. There must be
one HHS-certified laboratory to conduct the screening and confirmation
drug testing on the primary specimen. There must be a different HHS-
certified laboratory to conduct the split specimen drug testing on the
secondary specimen if the employee requests split specimen testing for
a Medical Review Officer (MRO) verified positive, adulterated, or
substituted result. However, as of the date of the publication of this
rule, there are no HHS-certified laboratories to conduct oral fluid
testing.\2\
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\2\ For a list of HHS-certified laboratories, please see https://www.samhsa.gov/substance-use/drug-free-workplace/drug-testing-resources/lab-list.
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DOT regulations at 49 CFR 40.67 require that a collection be
observed directly in certain circumstances, e.g., if the original
sample was invalid without an adequate medical explanation or the test
is for a return to duty. In the May 2023 Final Rule, and in response to
comments received to the notice of proposed rulemaking (NPRM) that
preceded that rule, the Department added a provision at paragraph
40.67(g)(3) to require a directly observed collection to be an oral
fluid test \3\ (as opposed to a urine test) in situations where an
observer, as required by the regulations, cannot be easily provided,
and in certain other situations. These limited situations are the only
ones in which part 40 expressly requires an oral fluid test rather than
a urine test; in all other situations, an employer may choose whether
to conduct a urine or an oral fluid test, including those
[[Page 25508]]
conducted as directly observed collections.
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\3\ All oral fluid collections are directly observed because
they are always conducted in front of the collector. See also the
definition of ``oral fluid specimen'' in section 40.3: ``A specimen
that is collected from an employee's oral cavity and is a
combination of physiological fluids produced primarily by the
salivary glands. An oral fluid specimen is considered to be a direct
observation collection for all purposes of this part.'' [Emphasis
added.]
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Because there are no HHS-certified oral fluid laboratories, it is
not yet possible to comply with the requirement in paragraph
40.67(g)(3) that requires the directly observed collection to be an
oral fluid test in the situations specified in that section. In the
interim, to preserve transportation safety and deter illicit drug use,
it is necessary to ensure that directly observed collections can still
be conducted when required.
To correct the inadvertent factual impossibility created by the
fact there are currently no HHS-certified oral fluid laboratories, DOT
published an NPRM on December 9, 2024 proposing to amend part 40, for
an interim period, to require directly observed urine collections in
the situations specified in paragraph 40.67(g)(3) if an oral fluid
collection is not yet available (89 FR 97579). The proposed amendment
would simply maintain the ``status quo'' wherein all directly observed
collections are currently conducted as urine tests because oral fluid
testing is not yet available.
DOT stated that the amendment to require directly observed urine
tests in situations where an oral fluid collection is required, but is
not yet available, is intended to be a temporary, short-term solution,
because there are currently no HHS-certified oral fluid laboratories.
DOT proposed that the provision would sunset one year after HHS
publishes a Federal Register notice that it certified the second oral
fluid drug testing laboratory. To ensure all are aware of the date when
this provision will sunset, DOT stated it would publish a Federal
Register document specifying the date the second oral fluid laboratory
is certified by HHS and the corresponding sunset date. Importantly, DOT
was clear that if, during the interim period, a collection site is able
to conduct an oral fluid collection (HHS has certified at least two
oral fluid drug testing laboratories, and both a qualified oral fluid
collector and a conforming oral fluid collection device are available
at the collection site), an oral fluid collection would be required to
be conducted as specified in paragraph 40.67(g)(3).
On October 1, 2025, DOT published a supplemental notice of proposed
rulemaking (SNPRM) (90 FR 47286) proposing to (1) replace the word
`gender' with the word `sex' in sections 40.67, 40.69, and 40.145 to be
consistent with E.O. 14168, Defending Women from Gender Ideology
Extremism and Restoring Biological Truth to the Federal Government; (2)
add a new paragraph (d) in section 40.65 to remind collectors to check
if the employer has a standing order or contact the Designated Employer
Representative (DER) to receive instructions on how to proceed in the
scenarios in paragraphs 40.65(b)(5) and (c)(1); and (3) amend paragraph
40.67(g)(3) to require an oral fluid collection when a same sex
observer cannot be found with a slight modification to paragraph
(g)(3)(ii) to say that the DER is to direct the collector to perform an
oral fluid test if they have the capability to do so, or send the
employee to a collection site acceptable to the employer for the oral
fluid test.
III. Comments to the SNPRM
For responses to comments on the December 2024 NPRM, please see
discussion in the October 2025 SNPRM.
The majority of the commenters responding to the SNPRM supported
the proposal to require a directly observed urine collection pursuant
to paragraph 40.67(g)(3) until oral fluid testing is available. These
commenters said that this approach keeps safety standards in place, is
a practical solution that ensures safety and compliance, and does not
take away from the original rule's purpose of keeping its deterrent
effect in place. These commenters also stated that it seems reasonable
and necessary while waiting for oral fluid to become viable and that
``. . . DOT should continue to rely on urine drug testing, as it has
been deemed effective and does not require any additional
certification, until the agency can effectively support oral fluid
testing.''
One commentor encouraged DOT to provide guidance on how to
determine when oral fluid testing is available at a site. In response
to this comment, DOT notes that when a laboratory is HHS-certified to
conduct oral fluid drug testing, DOT intends to include that laboratory
on its web page, https://www.transportation.gov/odapc/HHS_Certified_Oral_Fluid_Laboratories. Similarly, DOT expects that
certified laboratories will let their customers know when they are
offering DOT oral fluid drug testing services. Individual collection
sites will most likely need to make a business decision on whether they
want to provide oral fluid drug testing specimen collection services to
DOT-regulated employers. If they choose to provide that service, it
would make good business sense to let their DOT-regulated clients know
that they are providing oral fluid drug testing specimen collections.
Two commenters urged DOT to work with HHS to advance the
availability of oral fluid testing. DOT and HHS continue to work
together to support making oral fluid testing available.
Regarding the proposal to add a new paragraph (d) in section 40.65,
DOT received general support and no opposition to the proposal. As
such, the change is adopted as proposed.
Some commenters expressed concerns related to costs, accuracy of
the detection of drugs, and the timeline for staffing facilities, while
another commentor requested guidance on conducting direct observation
urine collections.
Specifically, one commentor expressed a concern about the impact on
small businesses. Given the time and money spent on updating policies,
it would result in an administrative burden to revise them again in the
interim. This comment is identical to a comment made to the NPRM. See
the comment and our response in the SNPRM.
One commentor had concerns that there were no projected costs for
the rule and asked about a projected timeline for getting facilities
staffed to comply with this rule.
In response to these comments, DOT notes that the requirement of a
directly observed urine collection existed before issuance of the May
2023 Final rule. As explained in the SNPRM, this rulemaking would
require directly observed urine tests be conducted in those very rare
cases where oral fluid was required by the May 2023 final rule. In
addition, oral fluid testing has not yet been available as an
alternative test method for DOT-regulated employers because there are
not yet two HHS-certified laboratories to conduct oral fluid testing.
As a result, DOT does not expect an increase in testing costs as a
result of this rule. And as explained in the SNPRM, DOT does not expect
widespread changes will be needed for company policies to be developed
to facilitate the implementation of oral fluid testing. Similarly,
regarding the concern about getting facilities staffed to comply with
this rule, DOT reiterates that the requirement of a directly observed
urine collection existed before the issuance of the May 2023 Final
rule. In addition, this rulemaking would require directly observed
urine tests to be conducted only in the small number of cases where
oral fluid was required by the May 2023 Final Rule, and there is no
training requirement to be an observer. As a result, the Department
would expect collection sites to be ready to perform this important
function without delay.
Three commenters expressed concern over the accuracy of the
detection of drugs in oral fluid, given its shorter
[[Page 25509]]
window of detection. This comment is outside the scope of this
rulemaking to ensure that directly observed testing can be conducted
when necessary. DOT notes, however, that windows of detection were
discussed in both the oral fluid NPRM (87 FR 11156, February 28, 2022)
and final rule (88 FR 27596, May 2, 2023). Given the different windows
of detection in urine and oral fluid drug testing, DOT left the
decision to the employer on which type of specimen the employer wants
to use except in the specific circumstances specified in paragraph
40.67(g)(3).
One commentor neither supported nor opposed the proposal to require
a directly observed urine collection in paragraph 40.67(g)(3) but
suggested that DOT provide guidance to employers and service agents on
how to identify the employee's sex for a directly observed urine
collection. The Office of Drug and Alcohol Policy and Compliance
(ODAPC) will determine whether guidance is necessary and consider
developing any guidance separate from this rulemaking.
One commentor, Airlines for America (A4A), thought DOT proposed to
delay oral fluid testing for one year until after HHS published in the
Federal Register a notification of a second HHS-certified oral fluid
laboratory, after which time oral fluid testing requirements would be
``reinstated.'' To clarify, DOT did not propose to delay oral fluid
testing as mentioned by A4A. DOT proposed, in the scenario where a
directly observed urine collection is required and the same sex
observer was not available, to provide a grace period of up to one year
past the HHS Federal Register notice to continue to allow employers to
conduct directly observed urine collections in the event the employer
was not set up to conduct oral fluid testing as required in paragraph
40.67(g). If during the grace period, the employer is set up to conduct
oral fluid testing, the employer must do so. As a reminder, with
respect to urine collections that are observed directly, as long as
there is a same-sex observer, there is no requirement to conduct an
oral fluid collection.
A4A, given their understanding of the delayed testing for one year,
suggested that DOT extend the compliance date to 18 months, six months
past the `one year delay,' after the HHS Federal Register notification,
citing the need to understand the testing technology once oral fluid
testing is available, develop and deploy nationwide training throughout
the entire air carrier system, and work with suppliers to understand
the availability of oral fluid collection supplies. After considering
A4A's comment, DOT agrees with extending the `grace period' following
the HHS Federal Register notification that there are two HHS-certified
oral fluid laboratories. To mitigate A4A's concerns over oral fluid
logistics, the Department will permit an 18-month grace period and
modify the rule text accordingly.
A4A's comment raises a question unique to FAA-regulated employers.
Specifically, FAA's drug and alcohol testing regulation paragraph
120.123(a) states, ``[e]xcept for those testing processes applicable to
persons testing pursuant to paragraph 120.1(d), no part of the testing
process (including specimen collection, laboratory processing, and MRO
actions) shall be conducted outside the territory of the United
States.'' As a result, unless an FAA-regulated employer is subject to
the ``Drug and Alcohol Testing of Certified Repair Stations Employees
Located Outside the United States,'' effective January 17, 2025 (see 89
FR 103499), FAA-regulated employers are not permitted, among other
things, to use a laboratory located outside the United States. ODAPC
notes that if the first two oral fluid laboratories certified by HHS
are based in Canada, FAA-regulated employers not subject to the
aforementioned rule could not use the Canadian-based laboratories.
ODAPC has determined that in those cases, the 18-month grace period
should apply, but only when the two laboratories are based in the
United States.
Based on the above and in consideration of the comment from A4A,
the Department has modified the proposed rule text in paragraph
40.67(g) by re-writing (3) and (4) and adding a new (5) and (6).
Paragraph (g)(3) now authorizes the conduct of a directly observed
urine collection when oral fluid is not available, and (g)(4) requires
an oral fluid collection (once oral fluid testing is available) when a
same sex observer is not available. Paragraph (g)(5) describes what
conditions need to be met for an employer to use oral fluid testing,
including FAA's part 120.123(a) requirement that both laboratories be
based in the United States. Paragraph (g)(6) authorizes the use of
directly observed urine collections during an 18-month grace period
that employers can use to get set up for oral fluid testing. It also
requires that if during the 18-month grace period the employer is ready
to conduct oral fluid drug testing, the employer must do so.
Regarding DOT's proposal to replace the word `gender' with the word
`sex' in sections 40.67, 40.69, and 40.145 to be consistent with E.O.
14168, Defending Women from Gender Ideology Extremism and Restoring
Biological Truth to the Federal Government, several commenters
supported the proposal and three commenters opposed it. DOT appreciates
and has considered the comments in developing this final rule. The
Department is finalizing these changes as proposed in the SNPRM
pursuant to E.O. 14168.
In the May 2023 Final Rule in Sec. 40.67(g)(3), DOT included
procedures on what to do when the required ``observer'' cannot be found
but mistakenly used the term ``collector'' instead of ``observer'' in
the regulatory text of that section. We proposed to correct the error
in the NPRM and received no comments on this issue. We have adopted the
change as proposed.
One commentor asked DOT and several other Federal departments to
prioritize investigations and litigation to enforce violations of civil
rights, among other things. This comment is outside the scope of this
rulemaking.
V. Regulatory Notices and Analyses
Executive Orders 12866 and 14192
This rule is a non-significant rule for purposes of E.O. 12886 and
was not reviewed by the Office of Management and Budget (OMB) pursuant
to that E.O. The rule will not impose any significant costs or have any
significant impacts. Given the uncertainty of testing costs and lack of
data on other aspects of testing, DOT did not estimate cost savings or
other benefits for the May 2023 Final Rule that permitted oral fluid
testing as an alternative to urine testing in most scenarios. In the
regulatory analyses for the May 2023 Final Rule, DOT stated that oral
fluid testing is optional except in very rare cases. This rule amends
the transportation industry drug testing program procedures regulation
to comply with E.O. 14168 and requires a directly observed urine
collection when an oral fluid test is required but cannot be conducted
because there are not yet two HHS-certified oral fluid drug testing
laboratories. This rule will not impose any significant costs or have
any significant impacts on the DOT testing program because the
requirement of a directly observed urine collection existed before
issuance of the May 2023 Final Rule. This rule requires direct
observation collections only in those very rare cases where oral fluid
was required but cannot be conducted, and oral fluid testing has not
yet been able to be conducted since the May 2023 Final Rule in the
absence of at least two HHS-certified oral fluid laboratories.
This rule is not an E.O. 14192 regulatory action because this rule
is not significant under E.O. 12866.
[[Page 25510]]
Regulatory Flexibility Act and Small Business Regulatory Enforcement
Fairness Act (SBREFA)
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires Federal agencies to consider the effects of their regulatory
actions on small businesses and other small entities and to minimize
any significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with a population of less than 50,000.
For this rulemaking, potentially affected small entities include drug
testing companies (U.S. Small Business Administration (SBA) North
American Industry Classification System (NAICS), Sector 54
(Professional, Scientific and Technical Services), Code 541380 (Testing
Laboratories and Services), as well as DOT-regulated entities (SBA
NAICS Sectors 48-49 (Transportation and Warehousing)).
The Department has concluded that the rule will not have a
significant economic impact on a substantial number of small entities.
This rule amends the transportation industry drug testing program
procedures regulation to revise language consistent with E.O. 14168 and
to require the conduct of directly observed urine collection when an
oral fluid collection is required but not yet available. The
requirement for directly observed urine collections existed before
issuance of the May 2023 Final Rule, and regulated entities are
therefore familiar with the procedure for directly observed urine
collections. In addition, because oral fluid testing is not yet
available, regulated entities are also likely to still have the
collection devices and personnel to conduct urine testing. In addition,
as explained in the SNPRM, this rulemaking would require directly
observed urine collections to be conducted in those very rare cases
where oral fluid was required by the May 2023 final rule. As noted
earlier in this preamble, there is no training requirement to be an
observer. Therefore, DOT does not expect an increase in testing or
staff costs as a result of this rule. And as explained in the SNPRM,
DOT does not expect widespread changes will be needed for company
policies developed to facilitate the implementation of oral fluid
testing. As a result, the rule will not impose significant costs. For
these reasons, I certify that the rule does not have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act.
Unfunded Mandates
DOT has examined the impact of this rule under the Unfunded
Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4). This rule does not
trigger the requirement for a written statement under sec. 202(a) of
the UMRA because this rulemaking does not impose a mandate that results
in an expenditure of $206 million or more (in $2025) by either State,
local, and Tribal governments in the aggregate or by the private sector
in any one year.
Environmental Impact
The Department has analyzed the environmental impacts of this
notice of proposed rulemaking pursuant to the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). The Department has
determined that this rule is categorically excluded pursuant to DOT
Order 5610.1D, ``DOT's Procedures for Considering Environmental
Impacts'' (available at https://www.transportation.gov/mission/dots-procedures-considering-environmental-impacts). Categorical exclusions
are categories of actions that the agency has determined normally do
not significantly affect the quality of the human environment and
therefore do not require either an environmental assessment (EA) or
environmental impact statement (EIS). See DOT Order 5610.1D Sec. 9. In
analyzing the applicability of a categorical exclusion (CE), the agency
must also consider whether extraordinary circumstances are present that
would warrant the preparation of an EA or EIS. Id. Sec. 9(b). This
rulemaking, which amends the transportation industry drug testing
program procedures regulation to comply with E.O. 14168 and requires a
directly observed urine collection when required by part 40 because
oral fluid testing is not yet available, is categorically excluded
pursuant to 23 CFR 771.118(c)(4), ``[p]lanning and administrative
activities that do not involve or lead directly to construction, such
as: . . . promulgation of rules, regulations, directives . . .'' The
Department does not anticipate any environmental impacts, and there are
no extraordinary circumstances present in connection with this
rulemaking.
Executive Order 13132, Federalism
DOT has analyzed the rule in accordance with E.O. 13132,
Federalism. E.O. 13132 requires Federal agencies to examine actions
carefully to determine if they contain policies that have federalism
implications or that preempt State law. As defined in the order,
``policies that have federalism implications'' refer to regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
Most of the regulated parties under the Department's drug testing
program are private entities. Some regulated entities are public
entities (e.g., transit authorities and public works departments);
however, DOT has determined that this rule, which amends the
transportation industry drug testing program procedures regulation to
comply with E.O. 14168 and require the conduct of directly observed
urine testing where employers are required to conduct an oral fluid
test but such testing is not available, does not contain policies that
have federalism implications.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
E.O. 13175 (65 FR 67249, Nov. 6, 2000) requires Federal agencies to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' as
defined in the E.O. 13175 include regulations that have ``substantial
direct effects on one or more Indian tribes, on the relationship
between the Federal government and the Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes.'' This rule does not have Tribal
implications. The rule does not have substantial direct effects on
Tribal governments, on the relationship between the Federal Government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes, as specified in E.O.
13175.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA)
requires that DOT consider the impact of paperwork and other
information collection burdens imposed on the public. The information
collection for DOT's drug and alcohol testing program is approved under
OMB control number 2105-0529. This rule does not require any new
collection of information under the PRA. Notwithstanding any other
provision of law, no person shall be
[[Page 25511]]
subject to any penalty for failing to comply with a collection of
information subject to the PRA that does not display a currently valid
OMB control number.
Privacy Act
Anyone is able to search the electronic form of all comments
received in any of our dockets by the name of the individual submitting
the comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). For information on DOT's
compliance with the Privacy Act, please visit https://www.transportation.gov/privacy.
Congressional Review Act
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. NHTSA 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 prior
to publication of the rule in the Federal Register. This rule does not
meet the criteria in 5 U.S.C. 804(2) to be considered a major rule.
List of Subjects in 49 CFR Part 40
Administrative practice and procedure, 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 49 CFR part 40 continues to read as follows:
Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, 45101
and 60102 et seq.
0
2. In Sec. 40.65, add paragraph (d) to read as follows:
Sec. 40.65 What does the collector check for when the employee
presents a urine specimen?
* * * * *
(d) Direct observations. If a new urine collection using direct
observation procedures or an oral fluid collection is required under
Sec. 40.65(b)(5) or (c)(1), you must check if the employer has a
standing order on which specimen collection to perform. If there is no
standing order, you must contact the DER on whether to continue with a
directly observed urine collection or an oral fluid collection.
0
3. In Sec. 40.67
0
a. Revise paragraph g; and,
0
b. In paragraph (h), remove the word ``gender'' and add in its place
``sex.''
The revision reads as follows:
Sec. 40.67 When and how is a directly observed urine collection
conducted?
* * * * *
(g) As the collector, you must ensure that the observer is the same
sex (i.e., male or female) as the employee.
(1) You must never permit a person of the opposite sex to act as
the observer.
(2) The observer can be a different person from the collector and
need not be a qualified collector.
(3) If oral fluid testing is not yet available (see paragraph
(g)(5) of this section) and a same sex observer is not present at the
collection site, the collector must contact the DER. The DER will
either arrange for a same sex observer to be present at the time of the
collection or send the employee to a collection site acceptable to the
employer for a directly observed urine collection as required in this
section.
(4) Once oral fluid testing is available (see paragraph (g)(5) of
this section), and a same sex observer cannot be found for a directly
observed urine collection:
(i) If the employer has a standing order to allow oral fluid
testing in such situations, the collector will follow that order.
(ii) If there is no standing order from the employer, the collector
must contact the DER, and the DER will direct the collector to either
conduct an oral fluid test if the collection site is able to do so or
send the employee to a collection site acceptable to the employer for
the oral fluid test.
(5) For an employer to use oral fluid testing, there must be at
least two HHS-certified oral fluid drug testing laboratories. For
employers subject to FAA regulations at 14 CFR 120.123(a), the two
certified laboratories must be located in the United States. In
addition, both a qualified oral fluid collector and a conforming oral
fluid collection device are available at a collection site.
(6) Once HHS gives notification of a second HHS-certified oral
fluid drug testing laboratory, there will be an 18-month grace period
to allow employers to continue to conduct directly observed urine
collections (see paragraph 3 of this section) until the employer is set
up to conduct oral fluid testing (see paragraphs 4 and 5). If during
the 18-month grace period the employer has decided to use oral fluid
drug testing and the employer is ready to conduct oral fluid drug
testing, the employer must do so. ODAPC will publish a Federal Register
notice to let employers and collectors know when the 18-month period
begins and ends.
* * * * *
Sec. 40.69 [Amended]
0
4. In Sec. 40.69:
0
a. In paragraph (c), remove the word ``gender'' and add in its place
``sex (i.e., male or female),''; and
0
b. In paragraph (d), remove the term ``same-gender'' and add in its the
term ``same-sex.''
Sec. 40.145 [Amended]
0
5. In Sec. 40.145 in paragraph (h)(1)(ii), remove the word ``gender''
and add in its place ``sex (i.e., male or female).''
Issued in Washington, DC.
Sean P. Duffy,
Secretary of Transportation.
[FR Doc. 2026-09290 Filed 5-8-26; 8:45 am]
BILLING CODE 4910-9X-P