{"operation":"document","citation":"66 FR 41944","title":"Procedures for Transportation Workplace Drug and Alcohol Testing Programs; Technical Amendments","source_type":"rulemaking","agency":"Office of the Secretary","status":"historical","official":true,"published_on":"2001-08-09","effective_on":"2001-08-01","summary":"The Department of Transportation is making a series of technical amendments to its drug and alcohol testing procedural rule, which goes into effect August 1, 2001. The purpose of these technical amendments is to clarify certain provisions of the rule and address omissions or problems which have been called to our attention since the publication of the final rule in December 2000.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-01-19232.json","markdown":"https://regulus.evalyn.ai/document/federal-register-01-19232.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-01-19232","source_url":"https://www.federalregister.gov/documents/2001/08/09/01-19232/procedures-for-transportation-workplace-drug-and-alcohol-testing-programs-technical-amendments","body":"Federal Register, Volume 66 Issue 154 (Thursday, August 9, 2001) [Federal Register Volume 66, Number 154 (Thursday, August 9, 2001)] [Rules and Regulations] [Pages 41944-41955] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 01-19232] [[Page 41943]] ----------------------------------------------------------------------- Part II Department of Transportation ----------------------------------------------------------------------- Office of the Secretary 49 CFR Part 40 Federal Aviation Administration 14 CFR Part 121 Coast Guard 46 CFR Parts 4, 5, and 16 Research and Special Programs Administration 49 CFR Part 199 Federal Railroad Administration 49 CFR Part 219 Federal Motor Carrier Safety Administration 49 CFR Part 382 Federal Transit Administration 49 CFR Parts 653, 654, and 655 ----------------------------------------------------------------------- Procedures for Transportation Workplace Drug and Alcohol Testing Programs; Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities; Final Rules Federal Register / Vol. 66, No. 154 / Thursday, August 9, 2001 / Rules and Regulations [[Page 41944]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Office of the Secretary 49 CFR Part 40 [Docket OST-99-6578] RIN 2105-AD02 Procedures for Transportation Workplace Drug and Alcohol Testing Programs; Technical Amendments AGENCY: Office of the Secretary, DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Department of Transportation is making a series of technical amendments to its drug and alcohol testing procedural rule, which goes into effect August 1, 2001. The purpose of these technical amendments is to clarify certain provisions of the rule and address omissions or problems which have been called to our attention since the publication of the final rule in December 2000. DATES: This rule is effective August 1, 2001. FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, 400 7th Street, SW., Room 10424, Washington, DC 20590, 202-366-9310 (voice), 202-366-9313 (fax), or [email protected] (e-mail); or Kenneth Edgell, Acting Director, Office of Drug and Alcohol Policy and Compliance (ODAPC), 400 7th Street, SW., Room 10403, Washington, DC, 20590, 202-366-3784 (voice), 202-366-3897 (fax); or [email protected] (e-mail). SUPPLEMENTARY INFORMATION: The Department of Transportation published revised procedures for its drug and alcohol testing program (49 CFR Part 40) on December 19, 2000 (65 FR 79462). This revised rule goes into effect, in its entirety, on August 1, 2001, replacing the previous version of Part 40. The new Part 40 is a comprehensive revision of the Department's testing procedures, making numerous and detailed substantive and organizational changes in the regulation. Not surprisingly for a document of this magnitude, we have noticed--and interested persons have called to our attention--instances in which the text of various sections of the regulation should be clarified or errors, omissions, or problems should be corrected. This technical amendments document is intended to make these clarifications and corrections. The technical amendments were prepared with the intention of going into effect on August 1, 2001, so that users of the regulation will have the opportunity to use the amended version of the regulation without any delay. In the event that publication of the rule does not occur until after August 1, we request that interested parties be guided by the amended provisions of the rule, which we will have posted on our docket and web site by that date. In particular, we emphasize the Department's intention that validity testing remain voluntary at this time. Because we realize that regulated parties will have had little time to incorporate these technical amendments, the Department, in its implementation and enforcement work, will provide a reasonable time to permit parties to make necessary changes in their procedures to comply with these amendments. Section 40.3 Definitions The Department is adding a new definition of ``invalid drug test.'' This term is used in the new Federal Custody and Control Form (CCF) that becomes mandatory on August 1, but was not previously defined in Part 40. This definition is also expected to be included in the forthcoming Department of Health and Human Services (HHS) proposed amendments to their Mandatory Guidelines for drug testing. In the definition of ``designated employer representative (DER),'' we are making a clarification by explicitly adding the function of ``causing employees to be removed from these [i.e., safety-sensitive] functions.'' This addition is to cover the situation where the DER does not personally and directly remove the individual from safety-sensitive functions, but, for example, calls the individual's supervisor, who effects the actual removal. Section 40.27 May an Employer Require an Employee To Sign a Consent or Release in Connection With the DOT Drug and Alcohol Testing Program? Part 40 states that service agents cannot require an employee to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the DOT drug or alcohol testing process. We inadvertently omitted language applying this same prohibition to employers. Lately, we have become aware that some employers and others are forcing employees to sign such documents. We want to clarify that no one can do so either on their own or a service agent's behalf. This new section and a parallel change in Sec. 40.355 provide this clarification. Section 40.33 What Training Requirements Must a Collector Meet? In new Sec. 40.208, the Department is changing the procedure for handling a situation in which a collector fails to record the specimen temperature. Since this mistake is no longer one that will require cancellation of a test, error correction training will not apply in that case. The purpose of the amendment to Sec. 40.33(c)(2) is to clarify that we intend all monitors (i.e., persons who make sure that collector trainees successfully complete the mock collections required by the rule) to have successfully completed qualification training for collectors, even if they have had a year's training experience or a train the trainer course. Section 40.45 What Form Is Used To Document a DOT Urine Collection? The Department has become aware that employers and collection sites, in some cases, are having a very difficult time obtaining copies of the new CCF that becomes mandatory on August 1, 2001. There may be some confusion among laboratories and other parties concerning whether DOT and HHS really mean that all Federal collections beginning August 1 must be conducted on the new form. The Department has added a paragraph to this section to emphasize that use of the new form is mandatory and that participants must stop using the old form. This new paragraph provides that participants must not use a non- Federal form or an expired Federal form (like the old CCF) to conduct a DOT urine collection. Laboratories, C/TPAs and other parties that distribute CCFs to employers, collection sites, or other customers must not send any more copies of the old CCF to these participants. Parties who distribute forms must also affirmatively notify other participants that they must not use the expired Federal form. The Department is also making changes to Secs. 40.83, 40.203, and 40.205 concerning the requirement to use the new CCF and corrective action that must be taken if the old CCF is used. In addition, we are aware that some employers may wish to use C/ TPAs to receive and maintain CCFs that come directly from the collection site. When this is the case--and we emphasize that this is the employer's choice, not the C/TPA's--the employer may use the C/ TPA's mailing address in place of its own. Other employer information, such as name, telephone, and fax number, must remain on the CCF. The entry would read like this: Joe's Trucking [[Page 41945]] Company; Phone 202-555-5555; (fax) 202-555-5556; c/o CTPA's name and address. Section 40.47 May Employers Use the CCF for Non-Federal Collections or Non-Federal Forms for DOT Collections? We have changed the word ``non-DOT'' to ``non-Federal'' to avoid confusion. The CCF is a joint DOT-HHS product that may be used for Federal drug testing programs subject to the HHS Mandatory Guidelines as well as to the DOT drug testing program. Section 40.65 What Does the Collector Check for When the Employee Presents a Specimen? Section 40.65 (c)(3) describes a situation where an employee refuses to provide another specimen where required. The current rule requires the collector to first notify the DER and then discard the specimen. This procedure should be reversed, i.e., the collector should discard the specimen first and then notify the DER. Otherwise the collector, who may not be able to get hold of the DER right away, would have to retain the urine specimen until such time that the DER is contacted. Also the reference to Sec. 40.191(a)(3) is inappropriate for this paragraph and has been corrected to refer to Sec. 40.191(a)(4). Section 40.67 When and How Is a Directly Observed Collection Conducted? Section 40.67(d)(2) directs the collector to ``explain to the employee the reason under this part for a directly observed collection under paragraph (c)(2) through (4) of this section.'' However, there is no paragraph (4). Additionally, paragraph (c)(1) should be included in the collector's explanation of why an observed collection is being conducted, i.e., because the employer required it; the employee, if not told by the employer, is certainly entitled to know this and the collector would have that information. A corrected reference is needed in paragraph (c)(1). Lastly, the collector will inform the employee of the reason for a direct observation collection if the collector knows the reason. If all the collector knows is that the employer ordered the direct observation collection, then that is all the information that the collector will be able to provide the employee. When a collector learns that a directly observed test should have occurred, but did not, it is the collector's responsibility to correct the omission. For example, suppose the initial specimen was out of temperature range, but the collector forgot to require a directly observed recollection. When the laboratory points out this problem to the collector, the collector would contact the employer. The employer, in turn, would contact the employee and direct the employee to undergo an immediate recollection under direct observation, even though some time may have passed since the original collection. Section 40.69 How Is a Monitored Collection Conducted? There have been some questions as to whether or not we meant to change the meaning of ``medical professional'' mentioned at Sec. 40.69 with respect to someone acting as a collection monitor. We did not. We still want doctors, nurses, and licensed medical technicians to be able to be monitors even if not the same gender, and we do not believe secretaries, receptionists, or records clerks are appropriate to perform this function (unless of the same gender as the donor). If there is any doubt about the qualifications of others, such as an Emergency Medical Technician or a phlebotomist, the ``litmus test'' would be whether or not that individual is licensed or certified to practice as a medical professional in a state (i.e., approved by state action). If they meet that requirement, they would be allowed to be opposite-gender monitors. In paragraph (c), we are correcting the language to refer to the ``monitor'' rather than the ``observer.'' Section 40.71 How Does the Collector Prepare the Specimens? Section 40.71 tells the collector how to prepare the specimen; it does not state what to do with any ``left over'' urine. There have been questions about the employee being able to take the ``excess'' urine with him/her, if any adulteration tests could be performed, or if any additional medical tests could be conducted on the excess specimen. This new paragraph clarifies these matters and incorporates an existing DOT interpretation that excess urine can be used in clinical urinalysis (e.g., specific gravity, protein, glucose) if the DOT specimen is collected in conjunction with a physical examination required by a DOT agency. Section 40.73 How Is the Collection Process Completed? Paragraph (a)(9) of this section mentions that the collector must fax or otherwise transmit the appropriate CCF copies to the MRO and DER. While we do not believe a regulatory text is change is necessary to make the point, we want to clarify that we view documents sent by fax as originals for purposes of this section. For example, the collector may fax the MRO copy of the CCF to the MRO. Since the MRO now has what we regard as an original, the collector could discard the MRO copy 30 days later. Section 40.83 How Do Laboratories Process Incoming Specimens? We have revised this section to clarify the handling of certain problems concerning collections. As provided in new Sec. 40.208 below, we are no longer requiring the cancellation of a test because the collector omitted checking the temperature box and did not include a comment concerning the omission in the remarks section of the CCF. While this error still must be corrected, we do not believe it is necessary to cancel the test, since this is an error that does not diminish the rule's protections for the fairness of the testing process to the employee. In addition, this section is changed be consistent with the clarification of the responsibilities of laboratories, C/TPAs and other parties to distribute and use only the new CCF. For three months, until the end of October 2001, use of expired ``old'' CCF, will not result in cancellation or rejection of a test, even if an appropriate correction is not made. Beginning November 1, the laboratory must report this situation (i.e., expired form used, correction not made) as ``rejected for testing'' with the appropriate remarks. We note that this change in timing applies only to use of the expired Federal CCF. When a non- Federal form is used at any time, the error must be corrected or the test must be rejected. Section 40.89 What Is Validity Testing, and Are Laboratories Required To Conduct It? When the Department published its final rule in December 2000, we anticipated that HHS would amend its Mandatory Guidelines for drug testing establishing final requirements for validity testing by HHS- certified laboratories. HHS is continuing to work on this project, but the HHS amendment will not be published by August 1, 2001. The Department believes that it is advisable to wait until HHS has completed its amendment to make validity testing mandatory for all DOT specimens. Consequently, we are changing the language of paragraph (b) of this section to eliminate the requirement that laboratories conduct validity tests on each DOT specimen. In its place, we are inserting language from our existing regulation providing that laboratories are authorized to conduct validity testing. This means that no change in validity testing will take place on August 1, 2001. We will amend this [[Page 41946]] section again to mandate validity testing when HHS issues its final amendment. Section 40.97 What Do Laboratories Report and How Do They Report It? Current Sec. 40.97(a) limits reporting to one result. We have already seen incidents where multiple results can occur because of adulterants. Recently one laboratory had a confirmed cocaine positive, but an adulterant prevented the laboratory from obtaining a satisfactory result for marijuana (neither negative, positive or adulterated). The final result should have been ``positive--cocaine'' as well as ``invalid--with remark.'' By adding ``or more'' to the introductory text of paragraph (a), we are clarifying that it is proper to report such a multiple result. The changes to paragraph (b)(1)(i) and (2) are designed to clarify the information to be provided on an electronic results report. The MRO needs to know where the test was performed. Since some laboratories have multiple laboratory sites, a name of the laboratory on the electronic report will not suffice to identify where the test was performed. HHS has indicated that the MRO's name and the certifying scientist's name would help laboratory inspectors who will be comparing electronic results with CCFs. The MRO name is also needed to ensure that the report goes to the right person. The Certifying Scientist's name is also needed in case the MRO needs to contact the laboratory for additional information and communication. The collector's name and phone number are needed in case someone needs to contact the collector for information or to take corrective action. Laboratories have been utilizing electronic reports since the outset of the program. Many of these reports contain information that is not contained on the CCF--the ``official `` report. Since it is likely that the electronic results report will replace the CCF for the majority of negative reports, additional information should no longer appear on the electronic report. Section 40.121 Who Is Qualified To Act as an MRO? There have been questions about when the first round of CEU hours and refresher training are required for previously trained MROs and BATs/STTs, respectively. The Department did not intend to have people who had already met qualification training requirements to face an immediate CEU or refresher-training requirement as soon as the regulations went into effect. Therefore, we are clarifying this section to specify that all MROs who were trained and examined before August 1, 2001 have until August 1, 2004 to complete their first round of CEUs. Likewise BATs/STTs who completed qualification training before January 1, 1998 would have until January 1, 2003, to complete refresher training, and we have amended Sec. 40.213 to this effect. Section 40.127 What Are the MRO's Functions in Reviewing Negative Test Results? We have corrected paragraph (g) by inserting the word ``perform,'' which had been omitted. We also added a sentence to provide instructions on how to complete the CCF when a negative result is canceled. Section 40.129 What Are the MRO's Functions in Reviewing Laboratory Confirmed Positive, Adulterated, Substituted, or Invalid Test Results? The current Sec. 40.129 does not contain instructions on completing the CCF when the MRO cancels a positive, adulterated, substituted, or invalid drug test report. This amendment provides clarified instructions on how the MRO should complete the CCF in this circumstance. Section 40.131 How Does the MRO or DER Notify an Employee of the Verification Process After a Confirmed Positive, Adulterated, Substituted, or Invalid Test Result? We have been asked whether Sec. 40.131(d) means that the employee can contact the MRO at his or her leisure, just as long as it is within the next 72 hours. We are clarifying the provision to direct the employer to tell the employee to contact the MRO immediately. The employee would not violate the rule by not doing so, however. Of course, if the employee fails to contact the MRO within 72 hours, the MRO may declare the test a ``non-contact positive.'' This amendment would also direct the employer to warn the employee of this consequence. Section 40.135 What Does the MRO Tell the Employee at the Beginning of the Verification Interview? Part 40 requires that MROs must report the use of any legally prescribed medication that could make the employee medically unqualified or pose a significant safety risk. Before doing so, however, this section tells MRO to contact the employee's physician to determine if the medication could be changed to one that does not make the employee unqualified to perform safety sensitive functions. We believe that it is likely to be easier and faster for the employee to contact his or her own physician and instruct that physician to contact the MRO. This would be more efficient than to require that the MRO repeatedly call the other physician. Employees can greatly assist the likelihood of this conversation by explaining their desire and motivation to their own treatment physician, and instructing that physician to contact the MRO on their behalf. In addition, because the employee's use of the medication can pose a safety problem immediately, we believe that the contact with the prescribing physician should occur after, rather than before, the provision of information to the employer. To facilitate this process, the revised paragraph (e) of this section gives the employee 5 days to have his or her physician contact the MRO for this purpose. If the prescribing physician comes up with a prescription that will obviate the safety problem, the MRO would so inform the employer. Section 40.149 May the MRO Change a Verified Positive Test Result or Refusal To Test? The Department has received a number of questions about the provision of this section, which provides, in its present form, that the MRO is the only person authorized to change a verified test result. Most of the questions concerned the effect of this provision on the authority of arbitrators, grievance examiners, etc. to review test results. The Department makes the MRO the key person in determining the disposition of a non-negative laboratory result. The MRO is directed to bring his or her professional training and experience to bear on questions such as whether there is a legitimate medical explanation for a positive, adulterated, or substituted test result. The Department believes strongly that the medical judgment of the MRO on these questions should not be overturned by arbitrators, employers, or other participants in the drug testing program. Consequently, we have clarified paragraph (c) to emphasize that MROs have sole authority to make medical judgments about drug test results and that arbitrators and other participants in the system do not have authority to overturn these judgments. This is not to say that an arbitrator is precluded from requiring a test result to be canceled on other grounds (e.g., a fatal flaw in the chain of custody, the failure of the MRO to provide an opportunity for the employee to present evidence of an alleged legitimate medical explanation, the denial of the right to have a split specimen tested). But an arbitrator could not decide, in the face of an MRO's judgment that [[Page 41947]] there was not a legitimate medical explanation, that the employee had presented a legitimate medical explanation. This rule is intended to prevent such a substitution of judgment about a matter committed to the expertise of the MRO. Section 40.151 What Are MROs Prohibited From Doing as Part of the Verification Process? Despite a clear explanation of the present Sec. 40.151(b) in the preamble, some MROs have misunderstood the present provision to be more sweeping than intended, and to constitute a sort of gag rule on MROs concerning contacts with collectors. The objective of this provision is not to preclude discussions between MROs and collectors. It is to protect MROs from being cast in the role of judge and jury in ``he said/she said'' disputes between employees about what occurred during the collection. For example, suppose the employee tells the MRO that the collector left the open collection container unguarded and unobserved in a public space. The collector just as strongly denies the allegation. The MRO is not in a good position to evaluate the facts of the dispute or the credibility of the employee and collector. That is a function best left to other decisionmakers, such as arbitrators or the courts. Based on language in the final rule's preamble, paragraph (b) has been rewritten to focus on this point. Note that this paragraph focuses on disputes: nothing in the paragraph precludes an MRO from taking corrective action in a situation in which it is undisputed that an error took place (e.g., the collector and employee agree that a mistake requiring correction was made). Section 40.155 What Does the MRO Do When a Negative or Positive Test Result Is Also Dilute? The current 40.155(c) instructs MROs in handling dilute test results--both positive and negative. Laboratories are provided instructions for reporting two categories of test results in 40.97-- negative results and non-negative results. The requirements of 40.155(c) treat a negative-dilute result as a non-negative result (by requiring that the MRO receive Copy 1 from the laboratory). A negative- dilute result is still a negative result and to change the laboratory reporting requirements may connote undue suspicion on the result. The Department places negative and negative-dilute test results in the negative reporting category. All other results are considered non- negative. Effective and efficient notification can be made to the employer for a negative-dilute result in the same manner that notification is made for a negative result. Any further action on a negative-dilute (see Sec. 40.197) would be a function of the employer's policy. Section 40.163 How Does the MRO Report Drug Test Results? Commenters on the Part 40 proposed rule advocated greater use of electronic means to transmit negative results from MROs to employers. In the final rule preamble, we said that we agreed. One area in which greater reliance on electronic methods appears workable is the treatment of negative test reporting in this section. Allowing for electronic reporting of negatives by MROs is consistent with the direction in which we have headed allowing more utilization of electronic capabilities (e.g., 40.97) by laboratories. However, current Sec. 40.163 does not specifically allow anything special for electronic reports for negatives as the preamble suggested we favored; in fact, reporting requirements in current Sec. 40.163 reference all reports being ``in writing.'' We have modified this section to remove this obstacle to electronic reporting of negatives. A related change involves duplicate instructions of Secs. 40.127 and 40.163. Currently, both require MRO to initial or sign the CCF. The second initial/signing has been removed from Sec. 40.163. Section 40.167 How Are MRO Reports of Drug Results Transmitted to Employers? The Department is revising paragraph (c) of this section to clarify reporting requirements in view of the greater authorization for electronic reporting of negative results. In addition, we are adding a new paragraph (e) to parallel the prohibition of reversals of MROs medical judgments as provided in Sec. 40.149(c). Section 40.187 What Does the MRO Do With Split Specimen Laboratory Results? The Department is adding two new paragraphs to this section to fill gaps that have been called to our attention since we published the final rule. The first is a situation in which, for example, the primary specimen tests positive for a drug but the split specimen test is invalid (see new paragraph (e)). In this case (parallel to the situation in which the split specimen is unavailable for testing) the test is cancelled and the employer must require the employee to undergo an immediate recollection under direct observation. The second is a hopefully rare situation in which the primary specimen tests positive for a drug, and the split specimen does not reconfirm the presence of the drug but the laboratory determines that an adulterant is present (see new paragraph (f)). In this case, we do not have a reconfirmed positive drug test. On the other hand, we do have a laboratory finding that, were it made with respect to the primary specimen, would be the basis of a refusal result. We do not believe it is sound policy, and consistent with our safety objectives, to ignore this adulteration result. On the other hand, we believe it is important to provide appropriate due process protections for employees in this situation. Consequently, the MRO will contact the employee and ask whether there is any legitimate medical explanation for the presence of the adulterant in the split specimen. If there is a legitimate medical explanation, the entire test is cancelled. If not, the MRO reports the test to the employee and DER as a refusal. The employee will have 72 hours to request a test of the primary specimen to determine if the adulterant is present there as well. Except that this is a test of the primary specimen, taking place at the laboratory that originally tested the primary specimen, this test is intended to parallel the testing of the split specimen in the more usual type of case. If the test of the primary specimen reconfirms the presence of the adulterant found in the split specimen, then the refusal result is reconfirmed. If not, then the test is cancelled and the ``split invalid'' procedure of paragraph (e) applies. Section 40.191 What Is a Refusal To Take a DOT Drug Test, and What Are the Consequences? In paragraph (a) of this section, we are making a number of changes to clarify the application of the refusal provisions of the rule to pre-employment testing. In the case of pre-employment testing, it is very possible for applicants to fail to appear for a test for a number of legitimate reasons (e.g., took another job, decided they did not want to change their present job, decided they didn't want to work for a particular employer). In this situation, we believe it would be unfair to visit the consequences of a refusal (e.g., having to complete the return-to-duty process, certificate actions under some DOT agency regulations) on the applicant (Sec. 40.191(a)(1)). For example, suppose someone has applied to both Company A and Company B for a job. Both companies tell him that they want to offer him a [[Page 41948]] job, but that he will have to have a pre-employment test before they can actually hire him. Each company schedules the employee for a pre- employment test. Before the tests occur, the employee decides that since Company A will pay him more, he prefers to work for Company A. He takes the pre-employment test scheduled by Company A, but not the one scheduled by Company B, since he is no longer interested in working for Company B. In this situation, we would not view the individual as having refused a test by not having attended Company B's scheduled test. In addition, in the pre-employment test context, there can be situations in which an employee could legitimately leave a collection site before the test actually commences (e.g., there is a long wait for the test and the employee has another obligation). By the commencement of the test, we mean the actions listed in Sec. 40.63(c), in which the collector or employee selects a collection container. Once the collection has commenced, the donor has committed to the process, and must complete it. If the employee then leaves before the process is complete, or takes another action listed in this section as a refusal, the consequences of a refusal attach. However, if the employee leaves the site before the test commences, then the employee is in the same situation as someone who does not appear at all for the pre-employment test. The consequences of a refusal do not attach in this situation (Sec. 40.191(a)(2) and (3)). If a medical evaluation or examination is required as part of a pre-employment drug test process, the requirement could raise questions of consistency with the employment provisions of the Americans with Disabilities Act, as implemented by Equal Employment Opportunity Commission (EEOC) regulations and guidance. It is not the drug test itself that raises these issues, only the medical examination or evaluation that follows it (e.g., in the context of a ``shy bladder'' situation). To avoid raising ADA issues, we have added a sentence providing that an employee is deemed to have refused to test on the basis of not undergoing such an examination only if the pre-employment test is conducted following a contingent offer of employment (Sec. 40.191(a)(7)). We are also making two minor changes to this section. In paragraph (a)(1), we are adding a reference to consistency with DOT agency drug regulations, which may establish time frames for sending employees for random or other tests. In paragraph (d), we have deleted a potentially confusing reference to use of a separate document and clarify that the employee's name should be entered on Copy 2 of the CCF. We also note that there may be a few situations in which an employee may legitimately not go the collection site for a pre- employment test. Section 40.193 What Happens When an Employee Does Not Provide a Sufficient Amount of Urine for a Drug Test? For consistency with other parts of the rule, we have deleted the word ``working'' from the phrase ``five working days.'' We have also added a requirement to document on the CCF the time at which the three- hour period to drink fluids begins and ends in a ``shy bladder'' situation. The intent of this requirement is to avoid questions about whether the proper amount of time was given to the employee. If the collector omits this information, it does not result in the cancellation of the test (see Sec. 40.209). We have also clarified the rule by saying that an employee who leaves the collection site before the ``shy bladder'' collection process is complete has refused to test. Section 40.195 What Happens When an Individual Is Unable To Provide a Sufficient Amount of Urine for a Pre-Employment, Follow-Up, or Return- to Duty Test Because of a Permanent or Long-term Medical Condition? We have added follow-up tests to this provision since they, like pre-employment and return-to-duty tests, require employees to have a negative test result in order to meet regulatory requirements for safety-sensitive employment. Section 40.203 What Problems Cause a Drug Test To Be Cancelled Unless They Are Corrected? There are two changes to this section. We are no longer treating the failure of the collector to check the temperature box and to annotate the remarks section concerning temperature as a flaw that results in cancellation unless it is corrected. This is still an error in the collection that needs to be corrected (see Sec. 40.208 below), but it is not a mistake that undermines the protections afforded the employee. Checking the temperature is important as a means of detecting attempts to adulterate or substitute the specimen, but omitting this step does not make the process less fair for the employee. The second change underlines the importance of using the new CCF, which becomes mandatory on August 1, 2001. Beginning on that date, the old Federal CCF will have expired, and its use is no longer authorized. It will have the same status as a non-Federal form. That is, if a non- Federal or expired Federal form is used for a test, the test must be cancelled unless the error is corrected as provided in Sec. 40.205. We are concerned about reports that, almost a year after use of the new form was authorized, many employers and collection sites are having difficulty obtaining copies of the new CCF from their laboratories and/ or C/TPAs. We are providing a 90-day grace period during which the failure to correct the use of an obsolete Federal form will not result in the cancellation of a test. After that, participants who fail to correct the use of the expired Federal form will bear the consequences of a cancelled test. Section 40.205 How Are Drug Test Problems Corrected? We have amended paragraph (b)(2) to specify that this correction procedure applies to the use of expired Federal forms as well as to non-Federal forms. The content of the correction document has also been clarified. Section 40.208 What Problem Requires Corrective Action But Does Not Result in the Cancellation of a Test? This is a new section focusing on the temperature box checkoff issue described in connection with Sec. 40.203 above. This section requires correction of the error (i.e., through an MFR). However, the error does not result in the cancellation of a test. When a collector makes this error, the collector is not required to undergo error correction training. However, the employer, C/TPA, collection site, etc. responsible for the collector should take appropriate steps to ensure that the collector does not repeat the mistake. Section 40.209 What Procedural Problems Do Not Result in the Cancellation of a Test and Do Not Require Corrective Action? We have modified the title of this section to avoid confusion with the title of new Sec. 40.208. We also have added reference to service agents as a party who are subject to potential consequences for errors that do not result in the cancellation of tests, through the ``PIE'' provisions of Subpart R of the rule. Section 40.213 What Training Requirements Must STTs and BATs Meet? The final rule inadvertently changed the number of mock tests BAT and STT trainees had to complete. We have amended this section to maintain the status quo with respect to the testing [[Page 41949]] requirements established by the DOT Model Course. In addition, to avoid requiring some previously trained BATs and STTs to complete refresher training too quickly, we have added a sentence saying individuals trained before January 1, 1998, have until January 1, 2003, to get refresher training. Section 40.225 What Form Is Used for an Alcohol Test? To make the transition to use of the new alcohol testing form easier, we are making use of the new ATF mandatory as of February 1, 2002. Use of the new form is authorized now. To maintain consistency between use of the old form and the instructions in new Part 40, employees should be asked to sign Statement 4 only if their test result is .02 or higher. We have also modified paragraph (b)(4) to clarify that there are a number of options for the coloring of ATFs. Section 40.229 What Devices Are Used To Conduct Alcohol Screening Tests? Only alcohol screening devices (ASDs) on the National Highway Traffic Safety Administration's Conforming Products List (CPL) may be used for DOT alcohol screening tests. This is a necessary, but not sufficient, condition for using an ASD. It is possible that there may be devices added to the CPL that do not have instructions for their use incorporated in Part 40. Until and unless instructions for properly using the device in the context of DOT alcohol testing appear in Part 40, it is not permissible to use such a device for DOT alcohol tests. The Department is adding a sentence to this section making this point explicit. Section 40.253 What Are the Procedures for Conducting an Alcohol Confirmation Test? We have substituted the word ``unique'' for the word ``sequential'' to avoid any unnecessary conflict with EBTs that may not, as such, provide sequential numbers. Unique numbers for each test, even if not sequential, provide sufficient identification of the test. Section 40.261 What Is Refusal To Take an Alcohol Test, and What Are the Consequences? We have modified Sec. 40.261(a)(1)-(3) to be consistent with Sec. 40.191, with respect to refusals of pre-employment tests. Section 40.281 Who Is Qualified To Act as a SAP? In the final rule's preamble discussion concerning qualification training for substance abuse professionals (SAPs), the Department commented that ``* * * the Department does not believe that this examination needs to be a formally designed and validated examination,'' suggesting that the examination could be simpler than the examinations administered by existing MRO training groups (65 FR 79507). In discussions with participants in the drug and alcohol testing program, this approach has been questioned. As a result of this discussion, we have re-thought this position. No regulatory text c","truncated":true,"body_characters":81600}