Part 40 Federal Register, Court Decisions and Legislation
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.
The Department of Transportation (DOT) requests public comment on how its regulations for conducting workplace drug and alcohol testing for the federally regulated transportation industry could be amended to allow electronic signatures on documents required to be created and utilized under the regulations, to be able to use electronic versions of forms, and to electronically store forms and data. The regulatory changes would apply to DOT-regulated employers and their contractors ("service agents") who administer their DOT-regulated drug and alcohol testing programs.
- Comments to the notice should be submitted by October 4, 2022 to https://www.regulations.gov/docket/DOT-OST-2022-0027/document
In March 2021, the Government Accountability Office (GAO) published a report titled ‘‘DOT Has Taken Steps to Verify and Publicize Drug and Alcohol Testing Data but Should Do More.’’ The report examines how the Department of Transportation (DOT) uses drug and alcohol testing data, how DOT verifies that data are reliable, and whether DOT follows key actions for transparently reporting drug and alcohol testing data. The drug and alcohol testing data are primarily used by the DOT modal administrations and the United States Coast Guard (USCG) to determine the random testing rate(s) for safety-sensitive employees in each industry each year. In response to a recommendation from the GAO Report, DOT requests information from potential users in the public to determine if there is a broader audience for the public data, consistent with key actions for open government data.
The U.S. Department of Transportation is extending the comment period for its oral fluid notice of proposed rulemaking. The original comment period would close on March 30, 2022. The extension is granted in response to requests received from stakeholders, who have state the March 30 closing date does not provide sufficient time for them to prepare and submit comment to the docket. The Department agrees to extend the comment period by 30 days. Therefore, the closing date for submission of comments is extended to April 29, 2022 which will provide those entities submitting requests for an extension and others interested in commenting on the proposed rulemaking additional time to submit comments to the docket.
- Comments to the Feb. 28, 2022 notice should be submitted by April 29, 2022 to https://www.regulations.gov/docket/DOT-OST-2021-0093/document
The U.S. Department of Transportation is proposing to amend the transportation industry drug testing program procedures regulation to include oral fluid testing. This will give employers a choice that will help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals of the program. The proposal includes other provisions to update the Department's regulation, and to harmonize, as needed, with the new Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid established by the U.S. Department of Health and Human Services.
- Comments to the notice should be submitted to https://www.regulations.gov/docket/DOT-OST-2021-0093/document
The Department published notice of the Public Interest Exclusion for Elizabeth Betsy Pope, et al., on August 24, 2015 (80FR 51349) and for Mounir R. Khouri, et al., on January 27, 2016 (81 FR 4739). The exclusions were for 5-year periods, respectively, which have now run their term. We have removed Ms. Pope and Mr. Khouri from the DOT's list of Public Interest Exclusions on our website at http://www.transportation.gov/odapc/pie. We are also notifying the public of the removal by publishing this Federal Register notice as required by 49 CFR 40.401(d).
This final rule makes minor technical corrections to the OST, FAA, FTA, and PHMSA regulations governing drug testing for safety-sensitive employees to ensure consistency with the recent amendments made to the Department of Transportation’s regulation, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs,” which added requirements to test for oxycodone, oxymorphone, hydrocodone, and hydromorphone to DOT-regulated drug testing programs. The changes to the Department’s regulation make it necessary to refer to these substances, as well as the previously covered drugs morphine, 6-acetylmorphine, and codeine, by the more inclusive term “opioids,” rather than “opiates.” This rule amends the term in the FAA, FTA, and PHMSA regulations to ensure that all DOT drug testing rules are consistent with one another and with the Mandatory Guidelines for Federal Workplace Drug Testing Programs. In addition, this rule makes a conforming amendment to include the term “opioids” in the wording of the Department’s annual information collection requirement and clarifications to section 40.26 and Appendix H regarding the requirement for employers to follow the Department’s instructions for the annual information collection.
The Department of Transportation is amending its drug testing program regulation to add hydrocodone, hydromorphone, oxymorphone, and oxycodone to its drug-testing panel; add methylenedioxyamphetamine as an initial test analyte; and remove methylenedioxyethylamphetamine as a confirmatory test analyte. The revision of the drug-testing panel harmonizes DOT regulations with the revised HHS Mandatory Guidelines established by the U.S. Department of Health and Human Services for Federal drug-testing programs for urine testing. This final rule clarifies certain existing drug testing program provisions and definitions, makes technical amendments, and removes the requirement for employers and Consortium/Third Party Administrators to submit blind specimens.
- Informational Notices:
The Department of Transportation is proposing to amend its drug-testing program regulation to add four opioids (hydrocodone, hydromorphone, oxymorphone, and oxycodone) to its drug-testing panel; add methylenedioxyamphetamine (MDA) as an initial test analyte; and remove methylenedioxyethylamphetamine, (MDEA) as a confirmatory test analyte. The proposed revision of the drug testing panel is intended to harmonize with the revised Mandatory Guidelines established by the U.S. Department of Health and Human Services for Federal drug-testing programs for urine testing. This proposal also adds clarification to certain drug-testing program provisions where necessary, removes outdated information in the regulations that is no longer needed, and proposes to remove the requirement for employers and Consortium/Third Party Administrators to submit blind specimens.
This final rule amends the U.S. Department of Transportation’s (DOT) regulation to conform to recent legislation that changed the definition of the term ‘‘service agent’’ in the DOT drug and alcohol testing regulations. The final rule also revises the definition of ‘‘service agent’’ to include all entities that provide services for DOT mandated drug and alcohol programs.
On June 24, 2016 the United States Court of Appeals for the District of Columbia Circuit denied DNA testing for DOT regulated specimens. The Court found that the DOT regulations, based on the Department of Health and Humans Services Mandatory Guidelines, were not arbitrary or capricious.
On January 20, 2016, the Department of Transportation (DOT) issued a decision and order under the Procedures for Transportation Workplace Drug and Alcohol Testing Programs that excludes a service agent, Mounir R. Khouri, from providing drug and alcohol testing services in any capacity to any DOT-regulated employer for a period of 5 years. Mr. Khouri provided Consortium/Third Party Administrator Services (C/TPA) and Medical Review Officer (MRO) services to DOT-regulated trucking companies. Mr. Khouri pled guilty to criminal charges that he made materially false statements that an MRO had reviewed drug test results, when a qualified MRO had not done so. This Federal Register publication serves as notice to the public that DOT-regulated employers or their service agents must stop using the services of Mounir R. Khouri for administering their DOT-regulated drug and/or alcohol testing programs.
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. The 5-year period has ended and Mr. Bennett, et al., has been removed from the list of excluded service agents.
This action amends the U.S. Department of Transportation’s (DOT) regulations to incorporate changes to the Substance Abuse and Mental Health Services Administration’s (SAMHSA) chain of custody and control form (CCF) recently approved by the Office of Management and Budget (OMB). Specifically, this rulemaking expands the DOT’s definition of the CCF to include both paper and electronic forms.
- Informational Notice:
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.
- Informational Notice:
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.
- Informational Notices:
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.
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. BNSF Railway v. US Department of Transportation, 566 F.3d 200 (DC Cir. 2009)
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 notice amends and updates the list of devices that conform to the Model Specifications for Screening Devices to Measure Alcohol in Bodily Fluids.
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.
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.
The Department of Transportation is amending certain provisions of its drug and alcohol testing procedures to change instructions to laboratories and medical review officers with respect to adulterated, substituted, and diluted specimen results. This change is intended to avoid inconsistency with new requirements established by the U.S. Department of Health and Human Services that went into effect on November 1, 2004.
The Department of Transportation (DOT) is issuing this notice to call to the attention of employers, employees, testing service agents, and other interested persons in its transportation industry drug testing program a notice proposing important new Department of Health and Human Services (HHS) drug testing procedures. Because of the close relationship between HHS and DOT drug testing procedures, participants in the DOT transportation industry drug testing program should be aware of important issues that HHS is considering, which may later affect the DOT testing program.
The Department of Transportation’s Office of Drug and Alcohol Policy and Compliance (ODAPC) is adding drug and alcohol abuse counselors certified by the National Board for Certified Counselors, Inc. and Affiliates (NBCC), specifically NBCC’s Master Addictions Counselor (MAC), to those eligible to be substance abuse professionals (SAPs) under subpart O of 49 CFR part 40.
The Department of Transportation’s Office of Drug and Alcohol Policy and Compliance (ODAPC) is revising the Management Information System (MIS) forms currently used within five U.S. Department of Transportation (DOT) agencies and the United States Coast Guard (USCG) for submission of annual drug and alcohol program data. The DOT agencies are: Federal Motor Carrier Safety Administration (FMCSA); Federal Aviation Administration (FAA); Federal Transit Administration (FTA); Federal Railroad Administration (FRA); and Research and Special Programs Administration (RSPA). The Department is streamlining the annual reporting of drug and alcohol program data to DOT agencies through use of a one-page MIS data collection form. The Department is standardizing across the DOT agencies the information collected and reducing the amount of data reported by transportation employers. If a DOT agency requires supplemental data, the DOT agency
The Department of Transportation (DOT) is amending a provision of its drug and alcohol testing procedures to change the instructions to medical review officers (MROs) with respect to reporting specimens as dilute or substituted. The change is based on the Department’s experience since the adoption of its current rule and new scientific information on the subject.
The rule establishes procedures for use non-evidential alcohol screening devices in the DOT regulated industry testing programs.
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.
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.
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.
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.
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.
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.
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.