Billing Code No. 4910-9X P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[Docket DOT-OST-2021-0093]
RIN 2105-AE94
Procedures for Transportation Workplace Drug and Alcohol Testing Programs:
Technical Amendments
AGENCY: Office of the Secretary, Department of Transportation (DOT).
ACTION: Final rule.
SUMMARY: The U.S. Department of Transportation is making a series of technical
amendments to its drug testing procedures rule, which was effective June 1, 2023. The purpose
of these technical amendments is to clarify certain provisions of the rule and address omissions
of which we have become aware since the publication of the final rule.
DATES: This final rule is effective [INSERT DATE OF PUBLICATION IN THE
FEDERAL REGISTER].
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; ODAPCwebmail@dot.gov.
SUPPLEMENTARY INFORMATION: DOT published amended procedures for its drug
testing program (49 CFR part 40) on May 2, 2023 (88 FR 27596). This rule went into effect on
June 1, 2023. The 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. We have determined

instances in which the text of various sections of the regulation should be clarified and errors or
omissions that should be corrected. This technical amendment is intended to make these
clarifications and corrections.
Section 40.14 What collection information must employers provide to collectors?
In the introductory sentence, we are removing the word ‘urine’ because, as described in
the preamble to the May 2023 final rule and consistent with numerous other deletions of the term
“urine” in instances where the rule was intended to cover both urine and oral fluid specimens, the
information the employer provides to collectors applies to all specimen collections (urine and
oral fluid). Also, in bullet ‘(e)’ we are fixing an incorrect reference. The reference should read §
40.36 and not § 40.35. Section 40.14(e) requires employers to provide to collectors the
designated employer representative (DER) information required elsewhere in part 40. Section
40.36 specifies the required DER information and is the correct reference. Section 40.35
specifies training requirements for oral fluid collectors and is not the correct reference.
Subpart C – Urine Collection Personnel
As described in the preamble to the May 2023 final rule and consistent with numerous
other deletions of the term “urine” in instances where the rule was intended to cover both urine
and oral fluid specimens, Subpart C provides instructions for both types of specimen collectors,
urine and oral fluid. With that in mind, we are removing the word ‘Urine’ from the heading and
replacing it with the word ‘Specimen’.
Section 40.81 What laboratories may be used for DOT drug testing?
Before oral fluid drug testing was authorized in the DOT drug testing program,
laboratories conducting DOT drug testing could only test urine specimens. With oral fluid drug
testing now authorized, we are removing the word ‘required’ from § 40.81(a) as both urine and
oral fluid drug testing are each authorized, and urine testing is no longer required.

Section 40.83 How do laboratories process incoming specimens?
In § 40.83(d), (e)(3), and (g)(2) there is an incorrect reference to § 40.97(a)(3). Each of
these § 40.83 paragraphs require reporting of ‘fatal flaw’ and ‘rejected for testing’ test results in
accordance with § 40.97(a)(3). However, there is in fact no paragraph (a)(3) in § 40.97(a).
Section 40.97(a) requires laboratories to report the specimen type for any result it reports. The
correct reference should be § 40.97(b)(3), titled “Category 3: Rejected for testing”. We are
making that correction in this final rule. We are also fixing an incorrect reference in §
40.83(f)(2), which requires a laboratory to report a result when certain conditions have been met
where the urine specimen temperature was not checked on the CCF. That reference should read
§ 40.97(b) and not § 40.97(a). As noted previously, § 40.97(a) refers to the reporting of
specimen type. Section 40.97(b), the correct reference, pertains to required reporting of results
for the specified categories of specimens.
Section 40.97 What do laboratories report and how do they report it?
We are making two technical corrections. First, in § 40.97(c)(1)(i)(M) there is an
incorrect reference to “paragraph (a)”. Second, in § 40.97(c)(2) there is an incorrect reference to
“paragraphs (b)(1)(i) and (ii) of this section”. When we inserted a new paragraph “(a)”, the
remaining paragraphs were renumbered and the references in (c)(1)(i)(M) and (c)(2) were not
adjusted accordingly. The correct references should be “paragraph (b)” and “paragraphs (c)(1)(i)
and (ii) of this section”, respectively.
Section 40.113 Where is other information concerning laboratories found in this regulation?
Section 40.169 Where is other information concerning the role of MROs and the verification
process found in this regulation?
Section 40.189 Where is other information concerning split specimens found in this regulation?

Section 40.217 Where is other information on the role of STTs and BATs found in this
regulation?
Section 40.313 Where is other information on SAP functions and the return-to-duty process
found in this regulation?
The preamble to the final rule discussed removing several sections from part 40. After
careful consideration of public comment, DOT stated that it proposed removing several sections
(§§ 40.29, 40.37, 40.113, 40.169, 40.189, 40.217, and 40.313), which listed other sections of part
40 touching on a given topic (e.g., employer responsibilities in § 40.29). The more than 20 years
since DOT placed these sections into part 40, electronic search tools have become sophisticated
and ubiquitous, making these sections no longer necessary. DOT removed the cross-reference
sections of §§ 40.29, 40.37, 40.113, 40.169, 40.189, 40.217, and 40.313, as proposed.
However, in the final rule only §§ 40.29 and 40.37 were removed. In this technical
amendment, we are providing instructions to remove §§ 40.113, 40.169, 40.189, 40.217 and
40.313, as discussed in the preamble but were inadvertently left in the final rule. [88 FR 27609]
We are now removing them as initially determined.
Section 40.145 On what basis does the MRO verify test results involving adulteration or
substitution?
In § 40.145(e)(2), (h)(1) introductory text, (h)(1)(ii), (h)(2) introductory text, and
(h)(2)(ii), which are related to substituted urine results, there is an incorrect reference to §
40.93(b). Section 40.93(b) pertains to the validity testing for oral fluid specimens. The correct
reference should be § 40.88(b), which pertains to criteria laboratories must use to establish that a
urine specimen is dilute or substituted. In this final rule, we are correcting that reference in each
section identified above.
Section 40.159 What does the MRO do when a drug test result is invalid?

In § 40.159(a)(1), there are incorrect references to §§ 40.91(e) and 40.96(b). The correct
references should be §§ 40.87(e) and 40.90(b), respectively. There is no § 40.91(e). Section
40.91 contains only a chart of the cutoff concentrations for oral fluid drug tests. There is also no
§ 40.96. We are making these corrections in this final rule.
Section 40.191 What is a refusal to take a DOT drug test, and what are the consequences?
In § 40.191, paragraphs (a)(2) and (3) state that it is a refusal to test if an employee fails
to remain at the testing site until the testing process is complete and if an employee fails to
provide a specimen for any drug test required by Part 40 or the DOT agency regulations. Those
subparagraphs go on to say that it is not a refusal to test if the test reason is ‘pre-employment’
and the employee left before the testing process commenced and provide citations to when the
testing process commences for urine § 40.63(c) and oral fluid § 40.72(e), as applicable. The
reference to § 40.72(e) is incorrect. The correct reference should be § 40.72(d)(3) as it is specific
to when the employee selects a specimen collection device, or the collector provides a specimen
collection device to the employee. Referencing § 40.72(d)(3) is the correct reference as it
mirrors the commencement of a urine collection.
Section 40.207 What is the effect of a cancelled drug test?
Section 40.207(d) allows MROs to reverse cancelled tests where the reason for the
cancellation involves paperwork errors (e.g., missing or delayed paperwork) that were not
corrected which resulted in the MRO sending the cancellation to the employer. The reversible
cancellations need to be administrative errors that can be corrected by paperwork. We added
language to the May 2, 2023, final rule, in the form of a parenthetical in § 40.207(d), to note that
correctible flaws arising under §§ 40.203 and 40.205 are examples of what is reversible (88 FR
27596, 27606). We also provided an example of an MRO un-canceling for a reason not included
in §§ 40.203 and 40.205. However, in the rule text we inadvertently used an “i.e.,” instead of an
“e.g.,”. As written, the parenthetical (i.e., §§ 40.203 and 40.205) arguably precludes the MRO

from considering any other scenario in which they can un-cancel a drug test result. The intent in
the preamble is clear and to avoid confusion for the MROs, we are revising “i.e.,” in the
parenthetical to read “e.g.,”.
Section 40.245 What is the procedure for an alcohol screening test using a saliva ASD or a
breath tube ASD?
We are correcting a typographical error in § 40.245(a)(6)(ii). Specifically, paragraph
(a)(6)(ii) states that the new device you use must be one that has been under your control or that
of the employee before the test. The language states that the responsibility for providing a new
saliva testing device in instances where the STT or BAT is unable to successfully follow the
procedures of § 40.245(a)(3) through (5) (e.g. the device breaks, you drop the device on the
floor) falls to the STT or BAT or the employee (emphasis added). Reference to the employee
was in error. While it is reasonable to rely on the STT or BAT to provide the new device, the
employee would not be expected to have a backup device on hand. Instead, the employer could
also provide the new device. Ultimately, the employer is responsible for ensuring the test is
completed, not the employee. This change will mirror the existing language in 40.245(b)(7)(ii),
which describes similar procedures and responsibilities for alcohol testing using a breath tube
alcohol screening device. We are making the correction by replacing ‘employee’ with
‘employer’.
Section 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?
In the last sentence of § 40.291(a)(1), there is duplicative text. We are removing the
duplicative text.
Regulatory Notices and Analyses

This final rule is a non-significant rule for purposes of section 3(f) of Executive Order
(E.O.) 12886, as supplemented by E.O. 13563 and amended by E.O. 14094. DOT has
determined that the regulatory analyses conducted for the May 2, 2023, final rule remain
applicable to this technical correction final rule. DOT makes these statements on the basis that,
as a series of technical amendments that correct or clarify existing regulatory provisions, this rule
will not impose any significant costs or have impacts beyond those analyzed in the May 2, 2023,
final rule.
DOT concludes that it has good cause to waive prior opportunity for notice and comment
under 5 U.S.C. 553(b)(B). The technical amendments included in this final rule render notice
and comment unnecessary and contrary to the public interest. The amendments made in this rule
are technical, corrective, and clarifying changes to an existing rule that went through an
extensive public notice and comment process. The amendments do not make significant
substantive changes to part 40. The errors in the current regulation are also potentially confusing
to testing laboratories, employers, employees subject to testing, and other stakeholders, and
prompt publication would clarify ambiguities. For these same reasons, DOT finds good cause to
waive the 30-day delay in effective date under 5 U.S.C. 553(d)(3).
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. DOT
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. This rule does
not constitute a major rule as defined in 5 U.S.C. 804(2).
List of Subjects in 49 CFR Part 40

Administrative practice and procedures, 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
1. The authority for part 40 continues to read as follows:
Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 54101 et seq.
§ 40.14 [Amended]
2. In § 40.14, in the introductory text, remove the word “urine” before the word
specimen and in paragraph (e), remove “40.35 of this part” and add “40.36” in its place.
Subpart C [Amended]
3. In the heading for subpart C, remove the word “Urine” and add the word
“Specimen” in its place.
§ 40.81 [Amended]
4. In § 40.81, in paragraph (a), remove the word “required”.
§ 40.83 [Amended]
5. In § 40.83, in paragraphs (d), (e)(3), and (g)(2), remove “40.97(a)(3)” and add
“40.97(b)(3)” in its place and in paragraph (f)(2), remove “40.97(a)” and add “40.97(b)” in its
place.
§ 40.97 [Amended]
6. In § 40.97(c)(1)(i)(M), remove “(a)” and add “(b)” in its place and in paragraph (c)(2),
remove “(b)” and add “(c)” in its place.
§ 40.113 [Removed]
7. Remove § 40.113.
§ 40.145 [Amended]

8. In § 40.145, in paragraphs (e)(2), (h)(1) introductory text, (h)(1)(ii), (h)(2)
introductory text, and (h)(2)(ii), remove “§ 40.93(b)” and add “§40.88(b)” in its place.
§ 40.159 [Amended]
9. In § 40.159, in paragraph (a)(1), remove “§ 40.91(e) and § 40.96(b)” and add “§
40.87(e) and § 40.90(b)” in its place.
§ 40.169 [Removed]
10. Remove § 40.169.
§ 40.189 [Removed]
11. Remove § 40.189.
§ 40.191 [Amended]
12. In § 40.191, in paragraphs (a)(2) and (3), remove “§ 40.72(e)” and add “§
40.72(d)(3)” in its place.
§ 40.207 [Amended]
13. In § 40.207, in paragraph (d), remove “i.e.,” in the parenthetical and add “e.g.,” in its
place.
§ 40.217 [Removed]
14. Remove § 40.217.
§ 40.245 [Amended]
15. In § 40.245, in paragraph (a)(6)(ii), remove the word “employee” and add the word
“employer” in its place.
§ 40.291 [Amended]
16. In § 40.291, in the last sentence of paragraph (a)(1) introductory text, remove the
second occurrence of “must be”.

§ 40.313 [Removed]
17. Remove § 40.313.

Signed pursuant to authority delegated at 49 CFR 1.27(c) in Washington, DC.


Subash Iyer,
Acting General Counsel
[FR Doc. 2024-12749 Filed: 6/20/2024 8:45 am; Publication Date: 6/21/2024]