NPRM Highlights

FTA Drug and Alcohol Regulation Updates
Issue 14, page 5

Highlights of Proposed Revisions to Part 40

   The Department of Transportation first published 49 CFR Part 40 over ten years ago, and it has been amended several times since. The regulation defines detailed procedural requirements for drug and alcohol testing. On December 9, 1999, a Notice of Proposed Rule Making was published in the Federal Register (Vol. 64, No. 236, Pages 69075-69136) that proposes revisions to Part 40.
   Highlights of the NPRM are provided below with references to the appropriate NPRM text. Readers should be cautioned that the NPRM is extensive and these highlights should not be considered all inclusive. Readers are strongly encouraged to read the NPRM text including the preamble to obtain their own understanding of the proposed revisions. See article on page 1 for how to comment on the NPRM.

Section 40.3 Introduces the term “service agent” to mean all parties who provide services to employers to meet DOT drug and alcohol testing requirements. (i.e., collection sites, laboratories, MROs, SAPs, BATs, TPAs, and consortia).

Section 40.11 Requires regulated employers and service agents to sign a contract/agreement that includes a standard contract clause requiring the service agent to comply with Part 40 procedures.

Section 40.33 Requires that collectors read and understand DOT rules and guidance concerning collections, demonstrate proficiency by completing five consecutive error-free trial collections, and receive training as needed; individuals who train or evaluate collectors must be "sufficiently knowledgeable" about the testing requirements and procedures.

Section 40.61 Collectors must inform employers of no-shows or delayed arrivals; the testing process must begin without delay; the alcohol test must be completed before the urine collection process begins; specimens must not be collected from unconscious employees; collectors must inspect employee pocket contents; collectors must inspect boots worn by employees; collector must not require the employee to sign a consent, release, waiver of liability or indemnification agreement.

Section 40.63 Includes additional conditions and procedures for observed collections including situations involving unsuitable specimens or when a previous test was cancelled due to the unavailability of a split specimen. The DOT seeks comments on whether an observed collection retest should be required following a dilute specimen, and whether employers should be permitted to reject a negative test result when a specimen is reported as dilute.

Section 40.91 Laboratories would be required to test for nitrates, pH, creatinine, and in certain circumstances, specific gravity. Labs may also test for pyridine, glutaraldehyde, bleach, and soap. The DOT seeks comments on the pros and cons of mandatory adulterant testing.

Section 40.101 Conflicts of interest between the laboratory and MRO are prohibited. The DOT seeks input on whether other conflicts of interest exist between service agents (i.e., labs and collections sites, MRO and collection sites) and whether limitations should be placed on these relationships.

Section 40.103 Employers with fewer than 2000 DOT covered employees would no longer be required to provide blind specimens. For larger employers, blind specimens would only have to be provided at a one-percent rate, up to a cap of fifty per quarter.

Section 40.111 Laboratory reports providing an aggregate statistical summary of test results would be provided to employers on a semi-annual basis rather than quarterly. The DOT would like to know if information identifying the number of specimens that were canceled and/or adulterated would be useful to employers.

Section 40.121 MRO's would be required to take a training course every two years or certify that they have reviewed and understand Part 40 and applicable DOT agency regulations and guidance.

Part 40 Amendments, Cont.

July 16, 1996
Federal Register Vol.61
Pages 37015-37017
Primary Topic: Use of Labs Outside the U.S.

July 17, 1996
Federal Register Vol.61
Pages 37222-37224
Primary Topic: Expansion of SAP Definition

July 19, 1996
Federal Register Vol.61
Pages 37693-37700
Primary Topic: Insufficient Specimen

November 25, 1998
Federal Register Vol. 63
Pages 65128-65129
Primary Topic: Opiate Threshold

Notice of Proposal Rulemaking December 9, 1999
Federal Register Vol. 64
Pages 69075 - 69136.
Primary Topic: Enhance testing procedures and incorporate past interpretations and guidance.

The information presented on this page should be used to update Chapter 7 and 8 of the Implementation Guidelines.