[Code of Federal Regulations] [Title 49, Volume 1] [Revised as of October 1, 2005] From the U.S. Government Printing Office via GPO Access [CITE: 49CFR40.1] [Page 627-631] TITLE 49--TRANSPORTATION Subtitle A--Office of the Secretary of Transportation PART 40_PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS--Table of Contents Subpart A_Administrative Provisions Sec. 40.1 Who does this regulation cover? Subpart A_Administrative Provisions Sec. 40.1 Who does this regulation cover? 40.3 What do the terms used in this regulation mean? 40.5 Who issues authoritative interpretations of this regulation? 40.7 How can you get an exemption from a requirement in this regulation? Subpart B_Employer Responsibilities 40.11 What are the general responsibilities of employers under this regulation? 40.13 How do DOT drug and alcohol tests relate to non-DOT tests? 40.15 May an employer use a service agent to meet DOT drug and alcohol testing requirements? 40.17 Is an employer responsible for obtaining information from its service agents? 40.19 [Reserved] 40.21 May an employer stand down an employee before the MRO has completed the verification process? 40.23 What actions do employers take after receiving verified test results? 40.25 Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties? 40.26 What form must an employer use to report Management Information System (MIS) data to a DOT agency? 40.27 May an employer require an employee to sign a consent or release in connection with the DOT drug and alcohol testing program? 40.29 Where is other information on employer responsibilities found in this regulation? Subpart C_Urine Collection Personnel 40.31 Who may collect urine specimens for DOT drug testing? 40.33 What training requirements must a collector meet? 40.35 What information about the DER must employers provide to collectors? 40.37 Where is other information on the role of collectors found in this regulation? Subpart D_Collection Sites, Forms, Equipment and Supplies Used in DOT Urine Collections 40.41 Where does a urine collection for a DOT drug test take place? 40.43 What steps must operators of collection sites take to protect the security and integrity of urine collections? 40.45 What form is used to document a DOT urine collection? 40.47 May employers use the CCF for non-Federal collections or non- Federal forms for DOT collections? 40.49 What materials are used to collect urine specimens? 40.51 What materials are used to send urine specimens to the laboratory? Subpart E_Urine Specimen Collections 40.61 What are the preliminary steps in the collection process? 40.63 What steps does the collector take in the collection process before the employee provides a urine specimen? 40.65 What does the collector check for when the employee presents a specimen? 40.67 When and how is a directly observed collection conducted? 40.69 How is a monitored collection conducted? 40.71 How does the collector prepare the specimens? [[Page 628]] 40.73 How is the collection process completed? Subpart F_Drug Testing Laboratories 40.81 What laboratories may be used for DOT drug testing? 40.83 How do laboratories process incoming specimens? 40.85 What drugs do laboratories test for? 40.87 What are the cutoff concentrations for initial and confirmation tests? 40.89 What is validity testing, and are laboratories required to conduct it? 40.91 What validity tests must laboratories conduct on primary specimens? 40.93 What criteria do laboratories use to establish that a specimen is dilute or substituted? 40.95 What criteria do laboratories use to establish that a specimen is adulterated? 40.97 What do laboratories report and how do they report it? 40.99 How long does the laboratory retain specimens after testing? 40.101 What relationship may a laboratory have with an MRO? 40.103 What are the requirements for submitting blind specimens to a laboratory? 40.105 What happens if the laboratory reports a result different from that expected for a blind specimen? 40.107 Who may inspect laboratories? 40.109 What documentation must the laboratory keep, and for how long? 40.111 When and how must a laboratory disclose statistical summaries and other information it maintains? 40.113 Where is other information concerning laboratories found in this regulation? Subpart G_Medical Review Officers and the Verification Process 40.121 Who is qualified to act as an MRO? 40.123 What are the MRO's responsibilities in the DOT drug testing program? 40.125 What relationship may an MRO have with a laboratory? 40.127 What are the MRO's functions in reviewing negative test results? 40.129 What are the MRO's functions in reviewing laboratory confirmed positive, adulterated, substituted, or invalid drug test results? 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? 40.133 Under what circumstances may the MRO verify a test as positive, or as a refusal to test because of adulteration or substitution, without interviewing the employee? 40.135 What does the MRO tell the employee at the beginning of the verification interview? 40.137 On what basis does the MRO verify test results involving marijuana, cocaine, amphetamines, or PCP? 40.139 On what basis does the MRO verify test results involving opiates? 40.141 How does the MRO obtain information for the verification decision? 40.143 [Reserved] 40.145 On what basis does the MRO verify test results involving adulteration or substitution? 40.147 [Reserved] 40.149 May the MRO change a verified positive drug test result or refusal to test? 40.151 What are MROs prohibited from doing as part of the verification process? 40.153 How does the MRO notify employees of their right to a test of the split specimen? 40.155 What does the MRO do when a negative or positive test result is also dilute? 40.157 [Reserved] 40.159 What does the MRO do when a drug test result is invalid? 40.161 What does the MRO do when a drug test specimen is rejected for testing? 40.163 How does the MRO report drug test results? 40.165 To whom does the MRO transmit reports of drug test results? 40.167 How are MRO reports of drug results transmitted to the employer? 40.169 Where is other information concerning the role of MROs and the verification process found in this regulation? Subpart H_Split Specimen Tests 40.171 How does an employee request a test of a split specimen? 40.173 Who is responsible for paying for the test of a split specimen? 40.175 What steps does the first laboratory take with a split specimen? 40.177 What does the second laboratory do with the split specimen when it is tested to reconfirm the presence of a drug or drug metabolite? 40.179 What does the second laboratory do with the split specimen when it is tested to reconfirm an adulterated test result? 40.181 What does the second laboratory do with the split specimen when it is tested to reconfirm a substituted test result? 40.183 What information do laboratories report to MROs regarding split specimen results? 40.185 Through what methods and to whom must a laboratory report split specimen results? 40.187 What does the MRO do with split specimen laboratory results? [[Page 629]] 40.189 Where is other information concerning split specimens found in this regulation? Subpart I_Problems in Drug Tests 40.191 What is a refusal to take a DOT drug test, and what are the consequences? 40.193 What happens when an employee does not provide a sufficient amount of urine for a drug test? 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? 40.197 What happens when an employer receives a report of a dilute specimen? 40.199 What problems always cause a drug test to be cancelled? 40.201 What problems always cause a drug test to be cancelled and may result in a requirement for another collection? 40.203 What problems cause a drug test to be cancelled unless they are corrected? 40.205 How are drug test problems corrected? 40.207 What is the effect of a cancelled drug test? 40.208 What problem requires corrective action but does not result in the cancellation of a test? 40.209 What procedural problems do not result in the cancellation of a test and do not require collection? Subpart J_Alcohol Testing Personnel 40.211 Who conducts DOT alcohol tests? 40.213 What training requirements must STTs and BATs meet? 40.215 What information about the DER do employers have to provide to BATs and STTs? 40.217 Where is other information on the role of STTs and BATs found in this regulation? Subpart K_Testing Sites, Forms, Equipment and Supplies Used in Alcohol Testing 40.221 Where does an alcohol test take place? 40.223 What steps must be taken to protect the security of alcohol testing sites? 40.225 What form is used for an alcohol test? 40.227 May employers use the ATF for non-DOT tests, or non-DOT forms for DOT tests? 40.229 What devices are used to conduct alcohol screening tests? 40.231 What devices are used to conduct alcohol confirmation tests? 40.233 What are the requirements for proper use and care of EBTs? 40.235 What are the requirements for proper use and care of ASDs? Subpart L_Alcohol Screening Tests 40.241 What are the first steps in any alcohol screening test? 40.243 What is the procedure for an alcohol screening test using an EBT or non-evidential breath ASD? 40.245 What is the procedure for an alcohol screening test using a saliva ASD or a breath tube ASD? 40.247 What procedures does the BAT or STT follow after a screening test result? Subpart M_Alcohol Confirmation Tests 40.251 What are the first steps in an alcohol confirmation test? 40.253 What are the procedures for conducting an alcohol confirmation test? 40.255 What happens next after the alcohol confirmation test result? Subpart N_Problems in Alcohol Testing 40.261 What is a refusal to take an alcohol test, and what are the consequences? 40.263 What happens when an employee is unable to provide a sufficient amount of saliva for an alcohol screening test? 40.265 What happens when an employee is unable to provide a sufficient amount of breath for an alcohol test? 40.267 What problems always cause an alcohol test to be cancelled? 40.269 What problems cause an alcohol test to be cancelled unless they are corrected? 40.271 How are alcohol testing problems corrected? 40.273 What is the effect of a cancelled alcohol test? 40.275 What is the effect of procedural problems that are not sufficient to cancel an alcohol test? 40.277 Are alcohol tests other than saliva or breath permitted under these regulations? Subpart O_Substance Abuse Professionals and the Return-to-Duty Process 40.281 Who is qualified to act as a SAP? 40.283 How does a certification organization obtain recognition for its members as SAPs? 40.285 When is a SAP evaluation required? 40.287 What information is an employer required to provide concerning SAP services to an employee who has a DOT drug and alcohol regulation violation? 40.289 Are employers required to provide SAP and treatment services to employees? 40.291 What is the role of the SAP in the evaluation, referral, and treatment process of an employee who has violated DOT agency drug and alcohol testing regulations? [[Page 630]] 40.293 What is the SAP's function in conducting the initial evaluation of an employee? 40.295 May employees or employers seek a second SAP evaluation if they disagree with the first SAP's recommendations? 40.297 Does anyone have the authority to change a SAP's initial evaluation? 40.299 What is the SAP's role and what are the limits on a SAP's discretion in referring employees for education and treatment? 40.301 What is the SAP's function in the follow-up evaluation of an employee? 40.303 What happens if the SAP believes the employee needs additional treatment, aftercare, or support group services even after the employee returns to safety-sensitive duties? 40.305 How does the return-to-duty process conclude? 40.307 What is the SAP's function in prescribing the employee's follow- up tests? 40.309 What are the employer's responsibilities with respect to the SAP's directions for follow-up tests? 40.311 What are requirements concerning SAP reports? 40.313 Where is other information on SAP functions and the return-to- duty process found in this regulation? Subpart P_Confidentiality and Release of Information 40.321 What is the general confidentiality rule for drug and alcohol test information? 40.323 May program participants release drug or alcohol test information in connection with legal proceedings? 40.325 [Reserved] 40.327 When must the MRO report medical information gathered in the verification process? 40.329 What information must laboratories, MROs, and other service agents release to employees? 40.331 To what additional parties must employers and service agents release information? 40.333 What records must employers keep? Subpart Q_Roles And Responsibilities of Service Agents 40.341 Must service agents comply with DOT drug and alcohol testing requirements? 40.343 What tasks may a service agent perform for an employer? 40.345 In what circumstances may a C/TPA act as an intermediary in the transmission of drug and alcohol testing information to employers? 40.347 What functions may C/TPAs perform with respect administering testing? 40.349 What records may a service agent receive and maintain? 40.351 What confidentiality requirements apply to service agents? 40.353 What principles govern the interaction between MROs and other service agents? 40.355 What limitations apply to the activities of service agents? Subpart R_Public Interest Exclusions 40.361 What is the purpose of a public interest exclusion (PIE)? 40.363 On what basis may the Department issue a PIE? 40.365 What is the Department's policy concerning starting a PIE proceeding? 40.367 Who initiates a PIE proceeding? 40.369 What is the discretion of an initiating official in starting a PIE proceeding? 40.371 On what information does an initiating official rely in deciding whether to start a PIE proceeding? 40.373 Before starting a PIE proceeding, does the initiating official give the service agent an opportunity to correct problems? 40.375 How does the initiating official start a PIE proceeding? 40.377 Who decides whether to issue a PIE? 40.379 How do you contest the issuance of a PIE? 40.381 What information do you present to contest the proposed issuance of a PIE? 40.383 What procedures apply if you contest the issuance of a PIE? 40.385 Who bears the burden of proof in a PIE proceeding? 40.387 What matters does the Director decide concerning a proposed PIE? 40.389 What factors may the Director consider? 40.391 What is the scope of a PIE? 40.393 How long does a PIE stay in effect? 40.395 Can you settle a PIE proceeding? 40.397 When does the Director make a PIE decision? 40.399 How does the Department notify service agents of its decision? 40.401 How does the Department notify employers and the public about a PIE? 40.403 Must a service agent notify its clients when the Department issues a PIE? 40.405 May the Federal courts review PIE decisions? 40.407 May a service agent ask to have a PIE reduced or terminated? 40.409 What does the issuance of a PIE mean to transportation employers? 40.411 What is the role of the DOT Inspector General's office? 40.413 How are notices sent to service agents? Appendix A to Part 40--DOT Standards for Urine Collection Kits [[Page 631]] Appendix B to Part 40--DOT Drug Testing Semi-annual Laboratory Report Appendix C to Part 40 [Reserved] Appendix D to Part 40--Report Format: Split Specimen Failure to Reconfirm Appendix E to Part 40--SAP Equivalency Requirements for Certification Organizations Appendix F to Part 40--Drug and Alcohol Testing Information that C/TPAs May Transmit to Employers Appendix G to Part 40--Alcohol Testing Form (ATF) Appendix H to Part 40--DOT Drug and Alcohol Testing Management Information System (MIS) Data Collection Form Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 54101 et seq.; 49 U.S.C. 322. Source: 65 FR 79526, Dec. 19, 2000, unless otherwise noted. (a) This part tells all parties who conduct drug and alcohol tests required by Department of Transportation (DOT) agency regulations how to conduct these tests and what procedures to use. (b) This part concerns the activities of transportation employers, safety-sensitive transportation employees (including self-employed individuals, contractors and volunteers as covered by DOT agency regulations), and service agents. (c) Nothing in this part is intended to supersede or conflict with the implementation of the Federal Railroad Administration's post- accident testing program (see 49 CFR 219.200).