1728ORDINANCE NO. ~7~ g
AN ORDINANCE TO INCORPORATE THE FEDERAL DEPARTMENT OF
TRANSPORTATION'S 1994 FINAL RULES FOR CONTROLLED SUBSTANCES
AND ALCOHOL TESTING UPDATING THE OMNIBUS TRANSPORTATION
EMPLOYEE TESTING ACT OF 1991 INTO EXISTING PERSONNEL POLICIES
AND TO AMEND ANY PERSONNEL POLICY PROVIDING FOR CONDITIONS OF
EMPLOYMENT; DECLARING AN EMERGENCY AND FOR OTHER PURPOSES.
''~ ~ WHEREAS, pursuant to Congressional mandate, the U.S.
~ Department of Transportation has handed down in 1994 Final Rules
for Controlled Substances and Alcohol Testing (hereinunder called
the Rules), which update the Omnibus Transportation Employee
Testing Act of 1991; and
WHEREAS, all employees occupying positions which require a
Commercial Driver's License in order to carry out the duties of
their position will now be subject to the Rules, including those
for drug and alcohol testing, effective January 1, 1996; and
WHEREAS, the City Council of the City of West Memphis is
committed to maintaining a safe workplace for its employees, and
users of the public highways that is free from illegal drug use and
the misuse of alcohol; and
WHEREAS, the City of West Memphis intends to comply with the
requirements for drug and alcohol testing as mandated by the U. S.
Department of Transportation and other Federal and State laws and
regulations;
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF WEST MEMPHIS, ARKANSAS:
SECTION l: That all personnel policies of the City of West
Memphis are hereby revised and amended to incorporate the 1994 DOT
Final Rules. A copy of said Rules is attached hereto and by
reference is incorporated herein in its entirety as if restated
word for word.
SECTION 2: That this ordinance specifically amends any
personnel policy providing for conditions of employment for
employees whose duties require them to maintain a Commercial
Driver's License in order to lawfully carry out their duties.
SECTION 3: Any Ordinance, Resolution, Rule, Regulation or
part of any Ordinance, Resolution, Rule, Regulation now in effect
which conflicts with the Rules is hereby repealed.
SECTION 4: The Personnel Director is hereby directed to
establish procedures to ensure compliance with the Rules, including
the assignment of a designated representative responsible for the
execution of the procedures.
SECTION 5: Any laboratory, medical review officer, substance
abuse professional or any other professional who receives payment
for testing, evaluating, record keeping, or other services mandated
by the Rules must be qualified according to the Rules and must
perform such services in conformance with 49 CFR Part 40 and Part
382.
SECTION 6: Drug and alcohol testing will be administered to
those employees mandated by the Rules, in the circumstances and in
the manner mandated by the Rules.
SECTION 7: The penalty for refusal to take a mandated test
for drugs or alcohol is immediate discharge.
SECTION 8: The penalty for a positive drug test result, once
the time limit for requesting a second test of a split sample has
expired, or upon receipt of a positive drug test result from the
second test, is immediate discharge.
~.
L
c,
SECTION 9: The penalty for a positive alcohol test result is
immediate discharge.
SECTION 10: Employees whose initial drug test results are
positive and who request a test of the second portion of the split
sample will be suspended without pay until such time as the
"Designated Representative" receives the results of the second
(split sample) test. Such second test will be at the employee's
expense.
SECTION 11: A negative result from the second (split sample)
drug test will render the first test invalid and the employee will
be reinstated with back pay and reimbursement for the costs of the
second test.
SECTION 12: An employee suspected of unlawful use of drugs or
abuse of alcohol while on duty as established by the Rules, or who
is involved in an accident as defined in 49 CFR 390. 4 ( and receives
a citation for a moving traffic violation in this section) by the
Rules, shall be suspended immediately with pay until the results of
the drug or alcohol test are received by the "Designated
Representative." "
SECTION 13: If any provision of this Ordinance is -held
invalid by a court of law or subsequent legislative action, such
holding shall in no way affect the validity of the remaining
provisions or sections of this Ordinance, which shall remain in
full force and effect.
SECTION 14: EMERGENCY CLAUSE. The need to adopt the
Department of Transportation's 1994 Final Rules on Drug and Alcohol
Testing effective January 1, 1996, is necessary for the effective,
l
efficient, and safe operation of the City of West Memphis and to
protect the health and welfare of its citizens who travel the
streets and highways, and its employees in the workplace. `
THEREFORE, an emergency is hereby declared to exist and this
Ordinance shall be in full force and effect from and after the date
of its passage and approval.
PASSED AND APPROVED this ~,~ day of ____1~~ ~' ~
19~.
Vil, Ct,J
AL BO LS, May
ATTEST
DAN CRAFT,
SPONSORED BY:
PART 382-CONTROLLED SUBPART F-ALCOHOL MISUSE AND
SUBSTANCES AND ALCOHOL USE AND CONTROLLED SUBSTANCES USE
TESTING INFORMATION, TRAINING, AND REFERRAL
382.601 Motor carrier obligation to promulgate a
SUBPART A-GENERAL policy on the misuse of alcohol and use of
controlled substances.
Sec. 382.603 Training for supervisors.
382.101 Purpose. 382.605 Referral, evaluation, and treatment.
382.103 Applicability.
382.105 Testing procedures. Authority: 49 U.S.C. 31306; 49 U.S.C. app. 31201
382.107 Definitions. et seq.; and 31502; 49 CFR 1.48.
382.109 Preemption of State and local laws.
382.111 Other requirements imposed by employ- SUBPART A-GENERAL
ers.
_
382.113 Requirement for notice. §382.101 Purpose. ~
382.115 Starting date for testing programs. The purpose of this part is to establish programs
i designed to help prevent accidents and injuries re-
SUBPART B-PROHIBITIONS suiting from the misuse of alcohol or use of controlled
substances by drivers of commercial motor vehicles.
382.201 Alcohol concentration. (Approved by the Office of Management and Bud-
382.204 Alcohol possession. get under control number 2125-0543)
382.205 On-duty use. §382.103 Applicability.
382.207 Pre-duty use. (a) This part applies to every person who operates
382.209 Use following an accident. a commercial motor vehicle in interstate or intrastate
382.211 Refusal to submit to a required alcohol or commerce, and is subject to the commercial driver's
controlled substances test. license requirements of part 383 of this subchapter.
382.213 Controlled substances use. (b) An employer who employs himself/herself as a
382.215 Controlled substances testing. driver must comply with both the requirements in
this part that apply to employers and the require-
SUBPART C-TESTS REQUIRED ments in this part that apply to drivers. An employer
who employs only himself/herself as a driver shall
382.301 Pre-employment testing. implement an alcohol and controlled substances test-
382.303 Post-accident testing. ing program that includes more persons than himself/
382.305 Random testing. herself as covered employees in the random testing
382.307 Reasonable suspicion testing. pool.
382.309 Return-to-duty testing. (c) The part shall not apply to employers and their
382.311 Follow-up testing. drivers:
(1) Required to comply with the alcohol and/or
SUBPART D-HANDLING OF TEST controlled substances testing requirements of parts
RESULTS, RECORD RETENTION, AND 653 and 654 of this title; or
CONFIDENTIALITY (2) Granted a full waiver from the requirements of
the commercial driver's license program; or
382.401 Retention of records. (3) Granted an optional State waiver from the
382.403 Reporting of results in a management in- requirements of part 383 of this subchapter; or
formation system. (4) Of foreign domiciled operations, with respect to
~, 382.405 Access to facilities and records. any driver whose place of reporting for duty (home
~, 382.407 Medical review officer notifications to the terminal) for commercial motor vehicle transporta-
employer. tion services is located outside the territory of the
382.409 Medical review officer record retention for United States.
controlled substances. §382.105 Testing procedures.
382.411 Employer notifications. Each employer shall ensure that all alcohol or
382.413 Release ofalcohol and controlled substances controlled substances testing conducted under this
test information by previous employers. part complies with the procedures set forth in part 40
of this title. The provisions of part 40 of this title that
SUBPART E-CONSEQUENCES FOR address alcohol or controlled substances testing are
DRIVERS ENGAGING IN SUBSTANCE USE- made applicable to employers by this part.
RELATED CONDUCT §382.107 Definitions.
Words or phrases used in this part are defined in
382.501 Removal from safety-sensitive function. §§386.2 and 390.5 of this subchapter, and §40.3 or
382.503 Required evaluation and testing. §40.73 of this title, except as provided herein-
382.505 Other alcohol-related conduct. Alcohol means the intoxicating agent in beverage
382.507 Penalties. alcohol, ethyl alcohol, or other low molecular weight
_ alcohols including methyl and isopropyl alcohol.
Alcohol concentration (or content) means the alco-
hol in avolume ofbreath expressed in terms of grams
of alcohol per 2101iters of breath as indicated by an
evidential breath test under this part.
109
a,
Alcohol use means the consumption of any bever-
age, mixture, or preparation, including any medica-
tion, containing alcohol.
Commerce means (1) Any trade, traffic or trans-
portationwithin the jurisdiction of the United States
between a place in a State and a place outside of such
State, including a place outside of the United States
and (2) trade, traffic, and transportation in the United
States which affects any trade, traffic, and transpor-
tation described in paragraph (1) of this definition.
Commercial motor vehicle means a motor vehicle
or combination of motor vehicles used in commerce to
transport passengers or property if the motor ve-
hicle-
(1)Has agross combination weight rating of26,001
or more pounds inclusive of a towed unit with a gross
vehicle weight rating of more than 10,000 pounds; or
(2) Has a gross vehicle weight rating of 26,001 or
more pounds; or
(3) Is designed to transport 16 or more passengers,
including the driver; or
(4) Is of any size and is used in the transportation
of materials found to be hazardous for the purposes of
the Hazardous Materials Transportation Act and
which require the motor vehicle to be placarded under
the Hazardous Materials Regulations (49 CFR part
172, subpart F).
ConFrmation test For alcohol testing means a
second test, following a screening test with a result of
0.02 or greater, that provides quantitative data of
alcohol concentration. For controlled substances test-
ing means a second analytical procedure to identify
the presence of a specific drug or metabolite which is
independent of the screen test and which uses a
different technique and chemical principle from that
of the screen test in order to ensure reliability and
accuracy. (Gas chromatography/mass spectrometry
(GC/MS) is the only authorized confirmation method
for cocaine, marijuana, opiates, amphetamines, and
phencyclidine.)
Consortium means an entity, including a group or
association of employers or contractors, that provides
alcohol or controlled substances testing as required
by this part, or other DOT alcohol or controlled sub-
stances testing rules, and that acts on behalf of the
employers.
DOT Agency means an agency (or "operating ad-
ministration") of the United States Department of
Transportation administering regulations requiring
alcohol and/or drug testing (14 CFR parts 61, 63, 65,
121, and 135; 49 CFR parts 199, 219, 382, 653 and
654), in accordance with part 40 of this title.
Driver means any person who operates a commer-
cialmotor vehicle. This includes, but is not limited to:
full time, regularly employed drivers; casual, inter-
mittent oroccasional drivers; leased drivers and inde-
pendent, owner-operator contractors who are either
directly employed by or under lease to an employer or
who operate a commercial motor vehicle at the direc-
tion of or with the consent of an employer. For the
purposes of pre-employment/pre-duty testing only,
the term driver includes a person applying to an
employer to drive a commercial motor vehicle.
Employer means any person (including the United
States, a State, District of Columbia or a political
subdivision of a State) who owns or leases a commer-
cial motor vehicle or assigns persons to operate such
~~~
a vehicle. The term employer includes an employer's
agents, officers and representatives.
Performing (a safety-sensitive function) means a
driver is considered to be performing asafety-sensi-
tive function during any period in which he or she is
actually performing, ready to perform, or immedi-
ately available to perform any safety-sensitive func-
tions.
Positive rate means the number of positive results
for random controlled substances tests conducted
under this part plus the number of refusals of random
controlled substances tests required by this part,
divided by the total of random controlled substances
tests conducted under this part plus the number of
refusals of random tests required by this part.
Refuse to submit (to an alcohol or controlled sub-
stances test) means that a driver:
(1) Fails to provide adequate breath for alcohol
testing as required by Part 40 of this title, without a
valid medical explanation, after he or she has re-
ceived notice of the requirement for breath testing in
accordance with the provisions of this part.
(2) Fails to provide an adequate urine sample for
controlled substances testing as required by Part 40
of this title, without a genuine inability to provide a
specimen (as determined by a medical evaluation),
after he or she has received notice of the requirement
for urine testing in accordance with the provisions of
this part, or
(3) Engages in conduct that clearly obstructs the
testing process.
Safety-sensitive function means any of those on-
duty functions set forth in §395.2 On-Duty time,
paragraphs (1) through (6) of this chapter.
Screening test (also known as initial test). In alto-
hol testing, it means an analytical procedure todeter-
minewhether adriver may have a prohibited concen-
tration of alcohol in his or her system. In controlled
substances testing, it means an immunoassay screen
to eliminate "negative" urine specimens from further
consideration.
Substance abuse professional means a licensed
physician (Medical Doctor or Doctor of Osteopathy),
or a licensed or certified psychologist, social worker,
employee assistance professional or addiction coun-
selor (certified by the National Association ofAlcohol-
ism and Drug Abuse Counselors Certification Com-
mission)with knowledge of and clinical experience in
the diagnosis and treatment of alcohol and controlled
substances-related disorders.
Violation rate means the number of drivers (as
reported under §382.305 of this part) found during
random tests given under this part to have an alcohol
concentration of 0.04 or greater, plus the number of
drivers who refuse a random test required by this
part, divided by the total reported number of drivers
in the industry given random alcohol tests under this
part plus the total reported number of drivers in the
industry who refuse a random test required by this
part.
§382.109 Preemption of State and local laws.
(a) Except as provided in paragraph (b) of this
section, this part preempts any State or local law,
rule, regulation, or order to the extent that:
(1) Compliance with both the State or local require-
ment and this part is not possible; or
(2) Compliance with the State or local requirement
is an obstacle to the accomplishment and execution of
any requirement in this part.
(b) This part shall not be construed to preempt
provisions of State criminal law that impose sanc-
tions for reckless conduct leading to actual loss of life,
injury, or damage to property, whether the provisions
apply specifically to transportation employees, em-
ployers, or the general public.
§382.111 Other requirements imposed by em-
ployers.
Except as expressly provided in this part, nothing
in this part shall be construed to affect the authority
of employers, or the rights of drivers, with respect to
the use or possession of alcohol, or the use of con-
trolled substances, including authority and rights
with respect to testing and rehabilitation.
§382.113 Requirement for notice.
Before performing an alcohol or controlled sub-
stances test under this part, each employer shall
notify a driver that the alcohol or controlled sub-
stances test is required by this part. No employer
shall falsely represent that a test is administered
under this part.
§382.115 Starting date for testing programs.
(a) Large employers. (1) Except as otherwise pro-
vided in this paragraph, each employer with fifty or
more drivers on March 17,1994, shall implement the
requirements of this part beginning on January 1,
1995.
(2) Large employers may begin implementing the
requirements of §382.301 of this part with respect to
alcohol testing on January 1, 1995, but are not re-
quired to do so until May 1, 1995.
(b) Small employers. Each employer with fewer
than fifty drivers on March 17,1994, shall implement
the requirements of this part beginning on January 1,
1996.
(c) All employers shall have alcohol and controlled
substances programs that conform to this part by the
date in paragraph (a) or (b) of this section, whichever
is applicable, or by the date an employer begins
commercial motor vehicle operations, whichever is
later.
SUBPART B-PROHIBITIONS
#382.201 Alcohol concentration.
No driver shall report for duty or remain on duty
requiring the performance of safety-sensitive func-
tionswhile having an alcohol concentration of 0.04 or
greater. No employer having actual knowledge that
a driver has an alcohol concentration of 0.04 or greater
shall permit the driver to perform or continue to
perform safety-sensitive functions.
§382.204 Alcohol possession.
No driver shall be on duty or operate a commercial
motor vehicle while the driver possesses alcohol,
unless the alcohol is manifested and transported as
part of a shipment. No employer having actual
knowledge that a driver possesses unmanifested alco-
hol may permit the driver to drive or continue to drive
a commercial motor vehicle.
#382.205 On-duty use.
No driver shall use alcohol while performing safety-
sensitivefunctions. No employer having actual knowl-
edge that a driver is using alcohol while performing
safety-sensitive functions shall permit the driver to
perform or continue to perform safety-sensitive func-
tions.
§382.207 Pre-duty use. '
No driver shall perform safety-sensitive functions
within four hours after using alcohol. No employer
having actual knowledge that such a driver has used
alcohol within four hours shall permit a driver to
perform or continue to perform safety-sensitive func-
tions.
§382.209 Use following an accident.
No driver required to take apost-accident alcohol
test under §382.303 of this part shall use alcohol for
eight hours following the accident, or until he/she
undergoes apost-accident alcohol test, whichever
occurs first.
§382.211 Refusal to submit to a required alco-
hol or controlled substances test.
No driver shall refuse to submit to apost-accident
alcohol or controlled substances test required under
§382.303, a random alcohol or controlled substances
test required under §382.305, a reasonable suspicion
alcohol or controlled substances test required under
§382.30?, or a follow-up alcohol or controlled sub-
stances test required under §382.311. No employer
shall permit a driver who refuses to submit to such
tests to perform or continue to perform safety-sensi-
tive functions.
§382.213 Controlled substances use.
(a) No driver shall report for duty or remain on
duty requiring the performance of safety-sensitive
functions when the driver uses any controlled sub-
stance, except when the use is pursuant to the in-
structions of a physician who has advised the driver
that the substance does not adversely affect the driver's
ability to safely operate a commercial motor vehicle.
(b) No employer having actual knowledge that a
driver has used a controlled substance shall permit
the driver to perform or continue toperform asafety-
sensitive function.
(c) An employer may require a driver to inform the
employer of any therapeutic drug use.
§382.215 Controlled substances testing.
No driver shall report for duty, remain on duty or
perform asafety-sensitive function, if the driver tests
positive for controlled substances. No employer hav-
ingactual knowledge that a driver has tested positive
for controlled substances shall permit the driver to
perform or continue to perform safety-sensitive func-
tions.
SUBPART C-TESTS REQUIRED
§382.301 Pre-employment testing.
(a) Prior to the first time a driver performs safety-
sensitive functions for an employer, the driver shall
undergo testing for alcohol and controlled substances.
No employer shall allow a driver to perform safety-
sensitive functions unless the driver has been admin-
istered an alcohol test with a result indicating an
alcohol concentration less than 0.04, and has received
a controlled substances test result from the medical
review officer indicating a verified negative test re-
sult. If apre-employment alcohol test result under
this section indicates an alcohol content of 0.02 or
greater but less than 0.04, the provisions of §382.505
shall apply.
(b) Exception for pre-employment alcohol testing.
An employer is not required to administer an alcohol
test required by paragraph (a) of this section if:
(1) The driver has undergone an alcohol test re-
quired by this section or the alcohol misuse rule of
another DOT agency under part 40 of this title within
the previous six months, with a result indicating an
alcohol concentration less than 0.04; and
(2) The employer ensures that no prior employer of
the driver of whom the employer has knowledge has
records of a violation of this part or the alcohol misuse
rule of another DOT agency within the previous six
months.
(c) Exception for pre-employment controlled sub-
stances testing. An employer is not required to admin-
ister acontrolled substances test required by para-
graph (a) of this section if:
(1) The driver has participated in a drug testing
program that meets the requirements of this part
within the previous 30 days; and
(2) While participating in that program, either
(i) Was tested for controlled substances within the
past 6 months (from the date of application with the
employer) or
(ii) Participated in a random controlled substances
testing program for the previous 12 months (from the
date of application with the employer); and
(3) The employer ensures that no prior employer of
the driver of whom the employer has knowledge has
records of a violation of this part or the controlled
substance use rule of another DOT agency within the
previous six months.
(d)(1) An employer who exercises either paragraph
(b) or (c) of this section shall contact the alcohol and/
or controlled substances testing program(s) in which
the driver participates or participated and shall ob-
tain from the testing program(s) the following infor-
mation:
(i) Name(s) and address(es) of the program(s).
(ii) Verification that the driver participates or
participated in the program(s).
(iii) Verification that the program(s) conform to
part 40 of this title.
(iv) Verification that the driver is qualified under
the rules of this part, including that the driver has not
refused to be tested for alcohol or controlled sub-
stances.
(v) The date the driver was last tested for alcohol or
controlled substances.
(vi) The results of any tests taken within the
previous six months and any other violations of sub-
part B of this part.
(2) An employer who uses, but does not employ, a
driver more than once a year must assure itself once
every six months that the driver participates in an
alcohol and controlled substances testing program(s)
that meets the requirements of this part.
(e) Notwithstanding any other provisions of this
subpart, all provisions and requirements in this sec-
tion pertaining to preemployment testing for alcohol
are suspended as of May 1, 1995.
§382.303 Post-accident testing.
(a) As soon as practicable following an accident
involving a commercial motor vehicle, each employer
shall test for alcohol and controlled substances each
surviving driver:
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(1) Who was performing safety-sensitive functions
with respect to the vehicle, if the accident involved the
loss of human life; or
(2) Who receives a citation under State or local law
for a moving traffic violation arising from the acci-
dent.
(b)(1)Alcohol tests. If a test required by this section
is not administered within two hours following the
accident, the employer shall prepare and maintain on
file a record stating the reasons the test was not
promptly administered. If a test required by this
section is not administered within eight hours follow-
ingthe accident, the employer shall cease attempts to
administer an alcohol test and shall prepare and
maintain the same record. Records shall be submit-
ted to the FHWA upon request of the Associate Ad-
ministrator.
(2) For the years stated in this paragraph, employ-
ers who submit MIS reports shall submit to the
FHWA each record of a test required by this section
that is not completed within 8 hours. The employer's
records of tests that are not completed within 8 hours
shall be submitted to the FHWA by March 15, 1996;
March 15, 1997; and March 15, 1998; for calendar
years 1995,1996, and 1997, respectively. Employers
shall append these records to their MIS submissions.
Each record shall include the following information:
(i) Type of test (reasonable suspicion/post-acci-
dent);
(ii) Triggering event (including date, time, and
location);
(iii) Reason(s) test could not be completed within 8
hours; and
(iv) If blood alcohol testing could have been com-
pleted within eight hours, the name, address, and
telephone number of the testing site where blood
testing could have occurred.
(3) Records of tests that could not be completed in
8 hours shall be submitted to the FHWA at the
following address: Attn: Alcohol Testing Program,
Office of Motor Carrier Standards (HCS-1), Federal
Highway Administration, 400 Seventh Street, S.W.,
Washington, DC 20590.
(4) Controlled substance tests. If a test required by
this section is not administered within 32 hours
following the accident, the employer shall cease at-
tempts to administer a controlled substances test,
and prepare and maintain on file a record stating the
reasons the test was not promptly administered.
Records shall be submitted to the FHWA upon re-
quest of the Associate Administrator.
(c) A driver who is subject to post-accident testing
shall remain readily available for such testing or may
be deemed by the employer to have refused to submit
to testing. Nothing in this section shall be construed
to require the delay of necessary medical attention for
injured people following an accident or to prohibit a
driver from leaving the scene of an accident for the
period necessary to obtain assistance in responding to
the accident, or to obtain necessary emergency medi-
calcare.
(d) An employer shall provide drivers with neces-
sary post-accident information, procedures and in-
structions,prior to the driver operating a commercial
motor vehicle, so that drivers will be able to comply
with the requirements of this section.
(e) The results of a breath or blood test for the use
of alcohol or a urine test for the use of controlled
substances, conducted by Federal, State, or local
officials having independent authority for the test,
shall be considered to meet the requirements of this
section, provided such tests conform to applicable
Federal, State or local requirements, and that the
results of the tests are obtained by the employer.
§382.305 Random testing.
(a)(1) Except as provided in paragraphs (b) through
(d) of this section, the minimum annual percentage
rate for random alcohol testing shall be 25 percent of
the number of drivers each selection period.
(2) Except as provided in paragraphs (e) through
(g) of this section, the minimum annual percentage
rate for random controlled substances testing shall be
50 percent of the number of drivers each selection
period.
(b) The FHWA Administrator's decision to in-
crease or decrease the minimum annual percentage
rate for alcohol testing is based on the reported
violation rate for the entire industry. All information
used for this determination is drawn from the alcohol
management information system reports required by
§382.403 of this part. In order to ensure reliability of
the data, the FHWA Administrator considers the
quality and completeness of the reported data, may
obtain additional information or reports from employ-
ers, and may make appropriate modifications in cal-
culating the industry violation rate. Each year, the
FHWA Administrator will publish in the Federal
Register the minimum annual percentage rate for
random alcohol testing of drivers. The new minimum
annual percentage rate for random alcohol testing
will be applicable starting January 1 of the calendar
year following publication.
(c)(1) When the minimum annual percentage rate
for random alcohol testing is 25 percent or more, the
FHWA Administrator may lower this rate to 10 per-
cent of all drivers if the FHWA Administrator deter-
mines that the data received under the reporting
requirements of §382.403 for two consecutive calen-
daryears indicate that the violation rate is less than
0.5 percent.
(2) When the minimum annual percentage rate for
random alcohol testing is 50 percent, the FHWA
Administrator may lower this rate to 25 percent of all
drivers if the FHWA Administrator determines that
the data received under the reporting requirements of
§382.403 for two consecutive calendar years indicate
that the violation rate is less than 1.0 percent but
equal to or greater than 0.5 percent.
(d)(1) When the minimum annual percentage rate
for random alcohol testing is 10 percent, and the data
received under the reporting requirements of §382.403
for that calendar year indicate that the violation rate
is equal to or greater than 0.5 percent, but less than
1.0 percent, the FHWA Administrator will increase
the minimum annual percentage rate for random
alcohol testing to 25 percent for all drivers.
(2) When the minimum annual percentage rate for
random alcohol testing is 25 percent or less, and the
data received under the reporting requirements of
§382.403 for that calendar year indicate that the
violation rate is equal to or greater than 1.0 percent,
the FHWA Administrator will increase the minimum
annual percentage rate for random alcohol testing to
50 percent for all drivers.
(e) The FHWAAdministrator's decision to increase
or decrease the minimum annual percentage rate for
controlled substances testing is based on the reported
positive rate for the entire industry. All information
used for this determination is drawn from the con-
trolled substances management information system
reports required by §382.403 of this part. In order to
ensure reliability of the data, the FHWA Administra-
tor considers the quality and completeness of the
reported data, may obtain additional information or
reports from employers, and may make appropriate
modifications in calculating the industry positive
rate. Each year, the FHWA Administrator will pub-
lish in the Federal Register the minimum annual
percentage rate for random controlled substances
testing of drivers. The new minimum annual percent-
agerate for random controlled substances testing will
be applicable starting January 1 of the calendar year
following publication.
(f) When the minimum annual percentage rate for
random controlled substances testing is 50 percent,
the FHWA Administrator may lower this rate to 25
percent of all drivers if the FHWA Administrator
determines that the data received under the report-
ing requirements of §382.403 for two consecutive
calendar years indicate that the positive rate is less
than 1.0 percent. However, after the calendar year
1994 of random testing for interstate motor carriers
under part 391, subpart H and the initial calendar
year of testing by large employers under this section,
the FHWA Administrator may lower the rate for
calendar year 1997, if the combined positive testing
rate is less than 1.0 percent, and if it would be in the
interest of safety.
(g) When the minimum annual percentage rate for
random controlled substances testing is 25 percent,
and the data received under the reporting require-
ments of §382.403 for any calendar year indicate that
the reported positive rate is equal to or greater than
1.0 percent, the FHWA Administrator will increase
the minimum annual percentage rate for random
controlled substances testing to 50 percent of all
drivers.
(h) The selection of drivers for random alcohol and
controlled substances testing shall be made by a
scientifically valid method, such as a random number
table or acomputer-based random number generator
that is matched with drivers' Social Security num-
bers, payroll identification numbers, or other compa-
rable identifying numbers. Under the selection pro-
cess used, each driver shall have an equal chance of
being tested each time selections are made.
(i) The employer shall randomly select a sufficient
number of drivers for testing during each calendar
year to equal an annual rate not less than the mini-
mum annual percentage rate for random alcohol and
controlled substances testing determined by the
FHWA Administrator. If the employer conducts ran-
dom testing for alcohol and/or controlled substances
through a consortium, the number of drivers to be
tested may be calculated for each individual employer
or may be based on the total number of drivers covered
by the consortium who are subject to random alcohol
and/or controlled substances testing at the same
minimum annual percentage rate under this part or
any DOT alcohol or controlled substances random
testing rule.
(j) Each employer shall ensure that random alco-
hol and controlled substances tests conducted under
this part are unannounced and that the dates for
113
administering random alcohol and controlled sub-
stances tests are spread reasonably throughout the
calendar year.
(k) Each employer shall require that each driver
who is notified of selection for random alcohol and/or
controlled substances testing proceeds to the test site
immediately; provided, however, that if the driver is
performing asafety-sensitive function at the time of
notification, the employer shall instead ensure that
the driver ceases to perform the safety-sensitive func-
tion and proceeds to the testing site as soon as pos-
sible.
(1) A driver shall only be tested for alcohol while the
driver is performing safety-sensitive functions, just
before the driver is to perform safety-sensitive func-
tions, or just after the driver has ceased performing
such functions.
(m) If a given driver is subject to random alcohol or
controlled substances testing under the random alco-
hol orcontrolled substances testingrules ofmore than
one DOT agency for the same employer, the driver
shall be subject to random alcohol and/or controlled
substances testing at the annual percentage rate
established for the calendar year by the DOT agency
regulating more than 50 percent of the driver's func-
tion.
(n) If an employer is required to conduct random
alcohol or controlled substances testing under the
alcohol orcontrolled substances testing rules of more
than one DOT agency, the employer may-
(1)Establish separate pools for random selection,
with each pool containing the DOT-covered employ-
ees who are subject to testing at the same required
minimum annual percentage rate; or
(2) Randomly select such employees for testing at
the highest minimum annual percentage rate estab-
lished for the calendar year by any DOT agency to
which the employer is subject.
§382.30? Reasonable suspicion testing.
(a) An employer shall require a driver to submit to
an alcohol test when the employer has reasonable
suspicion to believe that the driver has violated the
prohibitions of subpart B of this part concerning
alcohol, except for §382.204. The employer's determi-
nationthat reasonable suspicion exists to require the
driver to undergo an alcohol test must be based on
specific, contemporaneous, articulable observations
concerning the appearance, behavior, speech or body
odors of the driver.
(b) An employer shall require a driver to submit to
a controlled substances test when the employer has
reasonable suspicion to believe that the driver has
violated the prohibitions of subpart B of this part
concerning controlled substances. The employer's
determination that reasonable suspicion exists to
require the driver to undergo a controlled substances
test must be based on specific, contemporaneous,
articulable observations concerning the appearance,
behavior, speech or body odors of the driver. The
observations may include indications of the chronic
and withdrawal effects of controlled substances.
(c) The required observations for alcohol and/or
controlled substances reasonable suspicion testing
shall be made by a supervisor or company official who
is trained in accordance with §382.603 of this part.
The person who makes the determination that rea-
sonable suspicion exists to conduct an alcohol test
shall not conduct the alcohol test of the driver.
114
(d) Alcohol testing is authorized by this section
only if the observations required by paragraph (a) of
this section are made during, just preceding, or just
after the period of the work day that the driver is
required to be in compliance with this part. A driver
may be directed by the employer to only undergo
reasonable suspicion testing while the driver is per-
forming safety-sensitive functions, just before the
driver is to perform safety-sensitive functions, or just
after the driver has ceased performing such functions.
(e)(1) If an alcohol test required by this section is
not administered within two hours following the de-
termination under paragraph (a) of this section, the
employer shall prepare and maintain on file a record
stating the reasons the alcohol test was not promptly
administered. If an alcohol test required by this
section is not administered within eight hours follow-
ing the determination under paragraph (a) of this
section, the employer shall cease attempts to admin-
ister an alcohol test and shall state in the record the
reasons for not administering the test.
(2) For the years stated in this paragraph, employ-
ers who submit MIS reports shall submit to the
FHWA each record of a test required by this section
that is not completed within 8 hours. The employer's
records of tests that could not be completed within 8
hours shall be submitted to the FHWA by March 15,
1996; March 15, 1997; and March 15, 1998; for calen-
dar years 1995, 1996, and 1997, respectively. Em-
ployers shall append these records to their MIS sub-
missions. Each record shall include the following
information:
(i) Type of test (reasonable suspicion/post-acci-
dent);
(ii) Triggering event (including date, time, and
location);
(iii) Reason(s) test could not be completed within 8
hours; and
(iv) If blood alcohol testing could have been com-
pleted within eight hours, the name, address, and
telephone number of the testing site where blood
testing could have occurred.
(3) Records of tests that could not be completed in
8 hours shall be submitted to the FHWA at the
following address: Attn: Alcohol Testing Program,
Office of Motor Carrier Standards (HCS-1), Federal
Highway Administration, 400 Seventh Street, S.W.,
Washington, DC 20590.
(4) Notwithstanding the absence of a reasonable
suspicion alcohol test under this section, no driver
shall report for duty or remain on duty requiring the
performance of safety-sensitive functions while the
driver is under the influence of or impaired by alcohol,
as shown by the behavioral, speech, and performance
indicators of alcohol misuse, nor shall an employer
permit the driver to perform or continue to perform
safety-sensitive functions, until:
(i) An alcohol test is administered and the driver's
alcohol concentration measures less than 0.02; or
(ii) Twenty four hours have elapsed following the
determination under paragraph (a) of this section
that there is reasonable suspicion to believe that the
driver has violated the prohibitions in this part con-
cerning the use of alcohol.
(5) Except as provided in paragraph (e)(2) of this
section, no employer shall take any action under this
part against a driver based solely on the driver's
behavior and appearance, with respect to alcohol use,
`~
G
in the absence of an alcohol test. This does not
prohibit an employer with independent authority of
this part from taking any action otherwise consistent
with law.
(f) A written record shall be made of the observa-
tions leading to a controlled substance reasonable
suspicion test, and signed by the supervisor or com-
pany official who made the observations, within 24
hours of the observed behavior or before the results of
the controlled substances test are released, which-
ever is earlier.
11382.309 Return to duty testing.
(a) Each employer shall ensure that before a driver
returns to duty requiring the performance of asafety-
sensitive function after engaging in conduct prohib-
ited by subpart B of this part concerning alcohol, the
driver shall undergo areturn-to-duty alcohol test
with a result indicating an alcohol concentration of
less than 0.02.
(b) Each employer shall ensure that before a driver
returns to duty requiring the performance of asafety-
sensitive function after engaging in conduct prohib-
ited by subpart B of this part concerning controlled
substances, the driver shall undergo areturn-to-duty
controlled substances test with a result indicating a
verified negative result for controlled substances use.
??382.311 Follow-up testing.
(a) Following a determination under §382.605(b)
that a driver is in need of assistance in resolving
problems associated with alcohol misuse and/or con-
trolled substances, each employer shall ensure that
the driver is subject to unannounced follow-up alcohol
and/or controlled substances testing as directed by a
substance abuse professional in accordance with the
provisions of §382.605(c)(2)(ii).
(b) Follow-up alcohol testing shall be conducted
only when the driver is performing safety-sensitive
functions, just before the driver is to perform safety-
sensitivefunctions, or just after the driver has ceased
performing safety-sensitive functions.
SUBPART D-HANDLING OF TEST
RESULTS, RECORD RETENTION AND
CONFIDENTIALITY
?1382.401 Retention of records.
(a) General Requirement. Each employer shall
maintain records of its alcohol misuse and controlled
substances use prevention programs as provided in
this section. The records shall be maintained in a
secure location with controlled access.
(b) Period of Retention. Each employer shall main-
tain the records in accordance with the following
schedule:
(1) Five years. The following records shall be
maintained for a minimum of five years:
(i) Records of driver alcohol test results with re-
sults indicating an alcohol concentration of 0.02 or
greater,
(ii) Records of driver verified positive controlled
substances test results,
(iii) Documentation of refusals to take required
alcohol and/or controlled substances tests,
(iv) Calibration documentation,
(v) Driver evaluation and referrals shall be main-
tained for a minimum of five years, and
(vi) A copy of each annual calendar year summary
required pursuant to §382.403.
(2) Two years. Records related to the alcohol and
controlled substances collection process (except cali-
bration ofevidential breath testing devices) and train-
ing shall be maintained for a minimum of two years.
(3) One year. Records of negative and canceled
controlled substances test results (as defined in part
40 of this title) and alcohol test results with a concen-
tration of less than 0.02 shall be maintained for a
minimum of one year.
(c) Types of records. The following specific records
shall be maintained.
(1) Records related to the collection process:
(i) Collection logbooks, if used;
(ii) Documents relating to the random selection
process;
a (iii) Calibration documentation for evidential
breath testing devices;
(iv) Documentation of breath alcohol technician
training;
(v) Documents generated in connection with deci-
sions to administer reasonable suspicion alcohol or
controlled substances tests;
(vi) Documents generated in connection with deci-
sions on post-accident tests;
(vii) Documents verifying existence of a medical
explanation of the inability of a driver to provide
adequate breath or to provide a urine specimen for
testing; and
(viii) Consolidated annual calendar year summa-
ries as required by §382.403.
(2) Records related to a driver's test results:
(i) The employer's copy of the alcohol test form,
including the results of the test;
(ii) The employer's copy of the controlled sub-
stances test chain of custody and control form;
(iii) Documents sent by the medical review officer
to the employer, including those required by
§382.407(a).
(iv) Documents related to the refusal of any driver
to submit to an alcohol or controlled substances test
required by this part; and
(v) Documents presented by a driver to dispute the
result of an alcohol or controlled substances test
administered under this part.
(3) Records related to other violations of this part.
(4) Records related to evaluations:
(i) Records pertaining to a determination by a
substance abuse professional concerning a driver's
need for assistance; and
(ii) Records concerning a driver's compliance with
recommendations ofthe substance abuse professional.
(5) Records related to education and training:
(i) Materials on alcohol misuse and controlled
substance use awareness, including a copy of the
employer's policy on alcohol misuse and controlled
substance use;
(ii) Documentation of compliance with the require-
ments of §382.601; including the driver's signed re-
ceipt of education materials;
(iii) Documentation of training provided to super-
visorsfor the purpose of qualifying the supervisors to
make a determination concerning the need for alcohol
and/or controlled substances testing based on reason-
able suspicion; and
(iv) Certification that any training conducted un-
derthis part complies with the requirements for such
training.
115
(6) Records related to drug testing:
(i) Agreements with collection site facilities, labo-
ratories, medical review officers, and consortia;
(ii) Names and positions of officials and their role
in the employer's alcohol and controlled substances
testing program(s);
(iii) Monthly laboratory statistical summaries of
urinalysis required by §40.29(g)(6); and
(iv) The employer's drug testing policy and proce-
dures.
(d) Location of records. All records required by this
part shall be maintained as required by §390.31 of
this subchapter and shall be made available for in-
spection at the employer's principal place of business
within two business days after a request has been
made by an authorized representative of the Federal
Highway Administration.
§382.403 Reporting of results in a manage-
ment information system.
(a) An employer shall prepare and maintain a
summary of the results of its alcohol and controlled
substances testing programs performed under this
part during the previous calendar year, when re-
quested bythe Secretary of Transportation, any DOT
agency, or any State or local officials with regulatory
authority over the employer or any of its drivers.
(b) If an employer is notified, during the month of
January, of a request by the Federal Highway Admin-
istration to report the employer's annual calendar
year summary information, the employer shall pre-
pare and submit the report to the Federal Highway
Administration by March 15 of that year. The em-
ployer shall ensure that the annual summary report
is accurate and received by March 15 at the location
that the Federal Highway Administration specifies in
its request. The report shall be in the form and
manner prescribed by the Federal Highway Adminis-
tration in its request. When the report is submitted
to the Federal Highway Administration by mail or
electronic transmission, the information requested
shall be typed, except for the signature of the certify-
ingofficial. Each employer shall ensure the accuracy
and timeliness of each report submitted by the em-
ployer or a consortium.
(c) Each annual calendar year summary that con-
tains information on a verified positive controlled
substances test result, an alcohol screening test re-
sult of 0.02 or greater, or any other violation of the
alcohol misuse provisions of subpart B of this part
shall include the following informational elements:
(1) Number of drivers subject to part 382;
(2) Number of drivers subject to testing under the
alcohol misuse or controlled substances use rules of
more than one DOT agency, identified by each agency;
(3) Number of urine specimens collected by type of
test (e.g., pre-employment, random, reasonable sus-
picion, post-accident);
(4) Number of positives verified by a MRO by type
of test, and type of controlled substance;
(5) Number of negative controlled substance tests
verified by a MRO by type of test;
(6) Number of persons denied a position as a driver
following apre-employment verified positive con-
trolledsubstances test and/or apre-employment alco-
holtest that indicates an alcohol concentration of 0.04
or greater;
116
(7) Number of drivers with tests verified positive
by a medical review officer for multiple controlled
substances;
(8) Number of drivers who refused to submit to an
alcohol or controlled substances test required under
this subpart;
(9)(i) Number of supervisors who have received
required alcohol training during the reporting period;
and
(ii) Number of supervisors who have received re-
quired controlled substances training during the re-
porting period;
(10)(i) Number of screening alcohol tests by type of
test; and
(ii) Number of confirmation alcohol tests, by type of
test; ~
(11) Number of confirmation alcohol tests indicat-
ing analcohol concentration of 0.02 or greater but less
than 0.04, by type of test;
(12) Number of confirmation alcohol tests indicat-
ing analcohol concentration of 0.04 or greater, by type
of test;
(13) Number of drivers who were returned to duty
(having complied with the recommendations of a
substance abuse professional as described in §§382.503
and 382.605), in this reporting period, who previ-
ously:
(i) Had a verified positive controlled substance test
result, or
(ii) Engaged in prohibited alcohol misuse under
the provisions of this part;
(14) Number of drivers who were administered
alcohol and drug tests at the same time, with both a
verified positive drug test result and an alcohol test
result indicating an alcohol concentration of 0.04 or
greater; and
(15) Number of drivers who were found to have
violated any non-testing prohibitions of subpart B of
this part, and any action taken in response to the
violation.
(d) Each employer's annual calendar year sum-
mary that contains only negative controlled sub-
stance test results, alcohol screening test results of
less than 0.02, and does not contain any other viola-
tions of subpart B of this part, may prepare and
submit, as required by paragraph (b) of this section,
either a standard report form containing all the infor-
mation elements specified in paragraph (c) of this
section, or an "EZ"report form. The "EZ° report shall
include the following information elements:
(1) Number of drivers subject to part 382;
(2) Number of drivers subject to testing under the
alcohol misuse or controlled substance use rules of
more than one DOT agency, identified by each agency;
(3) Number of urine specimens collected by type of
test (e.g., pre-employment, random, reasonable sus-
picion, post-accident);
(4) Number of negatives verified by a medical
review officer by type of test;
(5) Number of drivers who refused to submit to an
alcohol or controlled substances test required under
this subpart;
(6)(i) Number of supervisors who have received
required alcohol training during the reporting period;
and
.`.
(ii) Number of supervisors who have received re-
quired controlled substances training during the re-
porting period;
(7) Number of screen alcohol tests by type of test;
and
(8) Number of drivers who were returned to duty
(having complied with the recommendations of a
substance abuse professional as described in §§382.503
and 382.605), in this reporting period, who previ-
ously:
(i) Had a verified positive controlled substance test
result, or
(ii) Engaged in prohibited alcohol misuse under
the provisions of this part.
(e) Each employer that is subject to more than one
DOT agency alcohol or controlled substances rule
shall identify each driver covered by the regulations
of more than one DOT agency. The identification will
be by the total number of covered functions. Prior to
conducting any alcohol or controlled substances test
on a driver subject to the rules of more than one DOT
agency, the employer shall determine which DOT
agency rule or rules authorizes or requires the test.
The test result information shall be directed to the
appropriate DOT agency or agencies.
(f) A consortium may prepare annual calendar
year summaries and reports on behalf of individual
employers for purposes of compliance with this sec-
tion. However, each employer shall sign and submit
such a report and shall remain responsible for ensur-
ing the accuracy and timeliness of each report pre-
pared on its behalf by a consortium.
§382.405 Access to facilities and records.
(a) Except as required by law or expressly autho-
rized or required in this section, no employer shall
release driver information that is contained in records
required to be maintained under §382.401.
(b) A driver is entitled, upon written request, to
obtain copies of any records pertaining to the driver's
use of alcohol or controlled substances, including any
records pertaining to his or her alcohol or controlled
substances tests. The employer shall promptly pro-
vide the records requested by the driver. Access to a
driver's records shall not be contingent upon payment
for records other than those specifically requested.
(c) Each employer shall permit access to all facili-
ties utilized in complying with the requirements of
this part to the Secretary of Transportation, any DOT
agency, or any State or local officials with regulatory
authority over the employer or any of its drivers.
(d) Each employer shall make available copies of
all results for employer alcohol and/or controlled
substances testing conducted under this part and any
other information pertaining to the employer's alco-
hol misuse and/or controlled substances use preven-
tion program, when requested by the Secretary of
Transportation, any DOT agency, or any State or local
officials with regulatory authority over the employer
or any of its drivers.
(e) When requested by the National Transporta-
tionSafety Board as part of an accident investigation,
employers shall disclose information related to the
employer's administration of apost-accident alcohol
and/or controlled substances test administered fol-
lowing the accident under investigation.
(fl Records shall be made available to a subsequent
employer upon receipt of a written request from the
driver. Disclosure by the subsequent employer is
permitted only as expressly authorized by the terms
of the driver's request.
(g) An employer may disclose information required
to be maintained under this part pertaining to a
driver, the decisionmaker in a lawsuit, grievance, or
other • proceeding initiated by or on behalf of the
individual, and arising from the results of an alcohol
and/or controlled substances test administered under
this part, or from the employer's determination that
the driver engaged in conduct prohibited by subpart
B of this part (including, but not limited to, a worker's
compensation, unemployment compensation, or othei '
proceeding relating to a benefit sought by the driver.)
(h) An employer shall release information regard-
ing adriver's records as directed by the specific,
written consent of the driver authorizing release of
the information to an identified person. Release of
such information by the person receiving the informa-
tion is permitted only in accordance with the terms of
the employee's consent.
§382.407 Medical review officer notifications
to the employer.
(a) The medical review officer may report to the
employer using any communications device, but in all
instances a signed, written notification must be for-
warded within three business days of completion of
the medical review officer's review, pursuant to part
40 of this title. A medical review officer shall report
to an employer clearly:
(1) That the controlled substances test being re-
portedwas in accordance with part 40 of this title and
this part;
(2) The name of the individual for whom the test
results are being reported;
(3) The type of test indicated on the custody and
control form (i.e., random, post-accident, etc.);
(4) The date and location of the test collection;
(5) The identities of the persons or entities per-
forming the collection, analysis of the specimens and
serving as the medical review officer for the specific
test;
(6) The verified results of a controlled substances
test, either positive or negative, and if positive, the
identity of the controlled substance(s) for which the
test was verified positive.
(b) A medical review officer shall report to the
employer that the medical review offices has made all
reasonable efforts to contact the driver as provided in
§40.33(c) of this title. The employer shalli as soon as
practicable, request that the driver contact the medi-
cal review officer prior to dispatching the driver or
within 24 hours, whichever is earlier.
§382.409 Medical review officer record re-
tention for controlled substances.
(a) A medical review officer shall maintain all
dated records and notifications, identified by indi-
vidual, for a minimum of five years for verified posi-
tive controlled substances test results.
(b) A medical review officer shall maintain all
dated records and notifications, identified by indi-
vidual, for a minimum of one year for negative and
canceled controlled substances test results.
(c) No person may obtain the individual controlled
substances test results retained by a medical review
officer, and no medical review officer shall release the
individual controlled substances test results of any
177
driver to any pe~son, without first obtaining a spe-
cific, written authorization from the tested driver.
Nothing in this paragraph shall prohibit a medical
review officer from releasing, to the employer or to
officials of the Secretary of Transportation, any DOT
agency, or any State or local officials with regulatory
authority over the controlled substances testing pro-
gram under this part, the information delineated in
§382.407(a) of this subpart.
§382.411 Employer notifications.
(a) An employer shall notify a driver of the results
of apre-employment controlled substance test con-
ducted under this part, if the driver requests such
results within 60 calendar days ofbeing notified of the
disposition of the employment application. An em-
ployer shall notify a driver of the results of random,
reasonable suspicion and post-accident tests for con-
trolled substances conducted under this part if the
test results are verified positive. The employer shall
also inform the driver which controlled substance or
substances were verified as positive.
(b) The designated management official shall make
reasonable efforts to contact and request each driver
who submitted a specimen under the employer's pro-
gram, regardless of the driver's employment status,
to contact and discuss the results of the controlled
substances test with a medical review officer who has
been unable to contact the driver.
(c) The designated management official shall im-
mediately notify the medical review officer that the
driver has been notified to contact the medical review
officer within 24 hours.
§382.413 Release of alcohol and controlled
substances test information by previous em-
ployers.
(a) An employer may obtain, pursuant to a driver's
written consent, any of the information concerning
the driver which is maintained under this part by the
driver's previous employers.
(b) An employer shall obtain, pursuant to a driver's
consent, information on the driver's alcohol tests with
a concentration result of 0.04 or greater, positive
controlled substances test results, and refusals to be
tested, within the preceding two years, which are
maintained by the driver's previous employers under
§382.401(b)(1)(i)thrnugh (iii).
(c) The information in paragraph (b) of this section
must be obtained and reviewed by the employer no
later than 14 calendar days after the first time a
driver performs safety-sensitive functions for an em-
ployer, if it is not feasible to obtain the information
prior to the driver performing safety-sensitive func-
tions. ~ employer may not permit a driver to
perform safety-sensitive functions after 14 days with-
out obtaining the information.
(d) If the driver stops performing safety-sensitive
functions for the employer before expiration of the 14
day period or before the employer has obtained the
information in paragraph (b) of this section, the em-
ployer must still obtain the information.
(e) The prospective employer must provide to each
of the driver's employers within the two preceding
years the driver's specific, written authorization for
release of the information in paragraph (b).
(f) The release of any information under this part
may take the form of personal interviews, telephone
interviews, letters, or any other method of obtaining
8
information that ensures confidentiality. Each em-
ployer must maintain a written, confidential record
with respect to each past employer contacted.
(g) An employer may not use a driver to perform
safety-sensitive functions if the employer obtains
information on the driver's alcohol test with a concen-
tration of 0.04 or greater, verified positive controlled
substances test result, or refusal to be tested, by the
driver, without obtaining information on a subse-
quent substance abuse professional evaluation and/
or determination under §382.401(c)(4) and compli-
ance with §382.309.
SUBPART E-CONSEQUENCES FOR
DRIVERS ENGAGING IN SUBSTANCE USE-
' RELATED CONDUCT
§382.501 Removal from safety-sensitive func-
tion.
(a) Except as provided in subpart F of this part, no
driver shall perform safety-sensitive functions, in-
cluding driving a commercial motor vehicle, if the
driver has engaged in conduct prohibited by subpart
B of this part or an alcohol or controlled substances
rule of another DOT agency.
(b) No employer shall permit any driver to perform
safety-sensitive functions, including driving a com-
mercialmotor liicle, if the employerhas determined
that the driver has violated this section.
(c) For purposes of this subpart, commercial motor
vehicle means a commercial motor vehicle in com-
merce asdefined in §382.107, and a commercial motor
vehicle in interstate commerce as defined in part 390.
§382.503 Required evaluation and testing.
No driver who has engaged in conduct prohibited
by subpart B of this part shall perform safety-sensi-
tive functions, including driving a commercial motor
vehicle, unless the driver has met the requirements of
§382.605. No employer shall permit a driver who has
engaged in conduct prohibited by subpart B of this
part to perform safety-sensitive functions, including
driving a commercial motor vehicle, unless the driver
has met the requirements of §382.605.
§382.505 Other alcohol-related conduct.
(a) No driver tested under the provisions of subpart
C of this part who is found to have an alcohol concen-
tration of 0.02 or greater but less than 0.04 shall
perform or continue to perform safety-sensitive func-
tionsfor anemployer, including driving a commercial
motorvehicle, nor shall an employer permit the driver
to perform or continue to perform safety-sensitive
functions, until the start of the driver's next regularly
scheduled duty period, but not less than 24 hours
following administration of the test.
(b) Except as provided in paragraph (a) of this
section, no employer shall take any action under this
part against a driver based solely on test results
showing an alcohol concentration less than 0.04. This
does not prohibit an employer with authority inde-
pendent ofthis part from taking any action otherwise
consistent with law.
§382.507 Penalties.
Any employer or driver who violates the require-
ments of this part shall be subject to the penalty
provisions of 49 U.S.C. §521(b).
SUBPART F-ALCOHOL MISUSE AND
CONTROLLED SUBSTANCES USE
INFORMATION, TRAINING, AND REFERRAL
X382.601 Motor carrier obligation to promul=
gate a policy on the misuse of alcohol and use of
controlled substances.
(a) General requirements. Each employer shall
provide educational materials that explain the re-
quirements of this part and the employer's policies
and procedures with respect to meeting these require-
ments.
(1) The employer shall ensure that a copy of these
materials is distributed to each driver prior to the
start of alcohol and controlled substances testing
under this part and to each driver subsequently hired
or transferred into a position requiring driving a
commercial motor vehicle.
(2) Each motor carrier shall provide written notice
to representatives of employee organizations of the
availability of this information.
(b) Required content. The materials to be made
available to drivers shall include detailed discussion
of at least the following:
(1) The identity of the person designated by the
employer to answer driver questions about the mate-
rials;
(2) The categories of drivers who are subject to the
provisions of this part;
(3) Sufficient information about the safety-sensi-
tive functions performed by those drivers to make
clear what period of the work day the driver is re-
quired to be in compliance with this part;
(4) Specific information concerning driver conduct
that is prohibited by this part;
(5) The circumstances under which a driver will be
tested for alcohol and/or controlled substances under
this part;
(6) The procedures that will be used to test for the
presence of alcohol and controlled substances, protect
the driver and the integrity of the testing processes,
safeguard the validity of the test results, and ensure
that those results are attributed to the correct driver;
(7) The requirement that a driver submit to alcohol
and controlled substances tests administered in ac-
cordance with this part;
(8) An explanation of what constitutes a refusal to
submit to an alcohol or controlled substances test and
the attendant consequences;
(9) The consequences for drivers found to have
violated subpart B of this part, including the require-
ment that the driver be removed immediately from
safety-sensitive functions, and the procedures under
§382.605;
(10) The consequences for drivers found to have an
alcohol concentration of 0.02 or greater but less than
0.04;
(11) Information concerning the effects of alcohol
and controlled substances use on an individual's
health, work, and personal life; signs and symptoms
of an alcohol or a controlled substances problem (the
driver's or a coworker's); and available methods of
intervening when an alcohol or a controlled sub-
stances problem is suspected, including confronta-
tion,referral toany employee assistance program and
or referral to management.
(c) Optional provision. The materials supplied to
drivers may also include information on additional
employer policies with respect to the use or possession
of alcohol or controlled substances, including any
consequences for a driver found to have a specified
alcohol or controlled substances level, that are based
on the employer's authority independent of this part.
Any such additional policies or consequences must be
clearly and obviously described as being based on
independent authority.
(d) Certificate of receipt. Each employer shall en-
sure that each driver is required toy sign a statement
certifying that he or she has received a copy of these
materials described in this section. Each employer
shall maintain the original of the signed certificate
and may provide a copy of the certificate to the driver.
§382.603 Training for supervisors.
(a) Each employer shall ensure that persons desig-
nated to determine whether reasonable suspicion
exists to require a driver to undergo testing under
§382.307 receive at least 60 minutes of training on
alcohol misuse and receive at least an additiona160
minutes of training on controlled substances use. The
training shall cover the physical, behavioral, speech,
and performance indicators of probable alcohol mis-
use and use of controlled substances.
§382.605 Referral, evaluation, and treatment.
(a) Each driver who has engaged in conduct prohib-
ited by subpart B of this part shall be advised by the
employer of the resources available to the driver in
evaluating and resolving problems associated with
the misuse of alcohol and use ofcontrolled substances,
including the names, addresses, and telephone num-
bers ofsubstance abuse professionals and counselling
and treatment programs.
(b) Each driver who engages in conduct prohibited
by subpart B' of this part shall be evaluated by a
substance abuse professional who shall determine
what assistance, if any, the employee needs in resoly-
ing problems associated with alcohol misuse and
controlled substances use.
(c)(1) Before a driver returns to duty requiring the
performance of asafety-sensitive function after en-
gaging inconduct prohibited by subpart B of this part,
the driver shall undergo a return to duty alcohol test
with a result indicating an alcohol concentration of
less than 0.02 if the conduct involved alcohol, or a
controlled substances test with a verified negative
result if the conduct involved a controlled substance.
(2) In addition, each driver identified as needing
assistance in resolving problems associated with alco-
hol misuse or controlled substances use,
(i) Shall be evaluated by a substance abuse profes-
sional to determine that the driver has properly
followed any rehabilitation program prescribed un-
der paragraph (b) of this section, and
(ii) Shall be subject to unannounced follow-up
alcohol and controlled substances tests administered
by the employer following the driver's return to duty.
The number and frequency of such follow-up testing
shall be as directed by the substance abuse profes-
sional, and consist of at least six tests in the first 12
months following the driver's return to duty. The
employer may direct the driver to undergo return-to-
duty and follow-up testing for both alcohol and con-
trolled substances, if the substance abuse profes-
119
sional determines that return-to-duty and follow-up
testing for both alcohol and controlled substances is
necessary for that particular driver. Follow-up test-
ing shall not exceed 60 months from the date of the
driver's return to duty. The substance abuse profes-
sional may terminate the requirement for follow-up
testing at any time after the first six tests have been
administered, if the substance abuse professional
determines that such testing is no longer necessary.
(d) Evaluation and rehabilitation maybe provided
by the employer, by a substance abuse professional
under contract with the employer, or by a substance
abuse professional not affiliated with the employer.
The choice of substance abuse professional and as-
signment of costs shall be made in accordance with
employer/driver agreements and employer policies.
(e) The employer shall ensure that a substance
abuse professional who determines that a driver re-
quires assistance in resolving problems with alcohol
misuse or controlled substances use does not refer the
driver to the substance abuse professional's private
practice or to a person or organization from which the
substance abuse professional receives remuneration
SUBPART H -CONTROLLED SUBSTANCES
TESTING
X391.81 Purpose and scope.
(a) The purpose of this subpart is to reduce high-
wayaccidents that result from driver use ofcontrolled
substances, thereby reducing fatalities, injuries, and
property damage.
(b) This subpart prescribes minimum Federal
Safety standards to detect and deter the use of con-
trolled substances as defined in 49 CFIt Part 40
(marijuana, cocaine, opiates, amphetamines and
phencyclidine (PCP)).
(c) As part of reasonable cause drug testing pro-
grams established pursuant to this subpart, motor
carriers may test for drugs in addition to those speci-
7 Z~
or in which the substance abuse professional has a
financial interest. This paragraph does not prohibit
a substance abuse professional from referring a driver
for assistance provided through- -
(1) A public agency, such as a State, county, or
municipality;
(2) The employer or a person under contract to
provide treatment for alcohol or controlled substance
problems on behalf of the employer;
(3) The sole source of therapeutically appropriate
treatment under the driver's health insurance pro-
gram; or
(4) The sole source of therapeutically appropriate
treatment reasonably accessible to the driver.
(f) The requirements of this section with respect to
referral, evaluation and rehabilitation do not apply to
applicants who refuse tosubmit to apre-employment
alcohol or controlled substances test or who have a
pre-employment alcohol test with a result indicating
an alcohol concentration of 0.04 or greater or a con-
trolled substances test with a verified positive test
result.
Pied in this part only with approval granted by the
Federal Highway Administrator under 49CFR Part
40 and for substances for which the Department of
Health and Human Services has established an ap-
proved testing protocol and positive threshold.
X391.83 Applicability.
(a) Except for a private motor carrier of passengers
(iionbusiness), this subpart applies to motor carriers
and persons who operate n commercial motor vehicle
as defined in this subpart in interstate commerce and
are subject to the driver qualification requirements
of part 391 of this subchapter.
~'
(b) This subpart shall not apply to any person for
whom compliance with this subpart would violate the
domestic laws or policies of another country.
(c) This subpart is not applicable with respect to
any foreign-based employee of a foreign-domiciled
carrier.
§391.85 Definitions.
As used in this subpart-
"Collection site" means a place where individuals
present themselves for the purpose of providing body
fluid or tissue samples to be analyzed for specified
controlled substances. The site must possess all
necessary personnel, materials, equipment, facili-
ties, and supervision to provide for the collection,
security, temporary storage, and transportation or
shipment ®f the samples to a laboratory.
"Commercial motor vehicle" means any self-pro-
pelled or towed vehicle used on public highways in
interstate commerce to transport passengers or prop-
ertywhen: (a) The vehicle has a gross vehicle weight
rating or gross combination weight rating of 26,001
or more pounds; or
(b) The vehicle is designed to transport more than
15 passengers, including the driver; or
(c) The vehicle is used in the transportation of
hazardous materials in a quantity requiring
placarding under regulations issued by the Secretary
under the Hazardous Materials Transportation Act
(49 U.S.C. App. 1801-1813).
"Controlled substances" has the meaning assigned
by 21 U.S.C. 802 and includes all substances listed
on Schedules I through Vas they maybe revised from
time to time (21 CFR 1308).
"Drivers subject to testing" means employee driv-
ers and contract drivers under contract for 90 days
or more in any period of 365 days.
"Drug" means any substance (other than alcohol)
that is a controlled substance as defined in this
section and 49 CFR part 40.
"FHWA" means the Federal Highway Administra-
tion, U.S. Department of Transportation.
"Interstate commerce" means trade, traffic, or trans-
portation in the United States which is between a
place in a State and a place outside of such State
(including a place outside of the United States) or is
between two places in a State through another State
or a place outside of the United States.
"Medical practitioner" means a licensed doctor of
medicine (MD) or osteopathy (DO) or a doctor of
dental surgery (DDS) authorized to practice by the
State in which the person practices.
"Medical Review Offccer" means a licensed doctor
of medicine or osteopathy with knowledge of drug
abuse disorders that is employed or used by a motor
carrier to conduct drug testing in accordance with this
part.
"Motor carrier" means afor-hire motor carrier or
a private motor carrier of property. The term "motor
carrier" includes a motor carrier's agents, officers and
representatives as well as employees responsible for
hiring, supervising, training, assigning, or dispatch-
ing of drivers and employees concerned with the
installation, inspection, and maintenance of motor
vehicle equipment and/or accessories. For purposes
of subchapter B, the definition of "motor carrier"
includes the terms "employer" and "exempt motor
carrier."
"Non-suspicion-based post•accident testing" means
testing of a commercial motor vehicle driver after an
accident, as defined in §390.5 of this subchapter.
(1) If-the driver of the commercial motor vehicle
receives a citation for a moving traffic violation aris-
ing from the accident, as required by §391.113 of this
subpart; and
(2) Without regard to whether there is any reason-
able suspicion of drug usage, reasonable cause to
believe the driver has been operating the commercial
motor vehicle while under the influence of drugs, or
reasonable cause to believe the driver was at fault in
the accident' and drug usage may have been a factor.
"Random selection process" means that drug tests
are unannounced and that every commercial motor
vehicle driver of a motor carrier has an equal chance
of being selected for testing.
"Reasonable cause" means that the motor carrier
believes the actions or appearance or conduct of a
commercial motor vehicle driver, on duty as defined
in §395.2 of this subchapter, are indicative of the use
of a controlled substance.
§391.87 Notification of test results and
recordkeeping.
(a) The MRO shall report to the motor carrier
whether a driver's test was positive or negative and,
if positive, the identity of the controlled substance for
which the test was positive.
(b) A motor carrier shall notify its driver ordriver-
applicant of the results of a controlled substance test
conducted under this subpart.
(c) A motor carrier shall notify-
(1) Adriver-applicant of the results of a preem-
ployment controlled substance test conducted under
this subpart provided the driver-applicant requests
such results within 60 days of being notified of the
disposition of the employment application; or
(2) A driver of the results of a periodic, random,
reasonable cause, or post-accident test conducted
under this subpart, provided the results were posi-
tive. The driver must also be advised of what con-
trolled substance was identified in any positive test.
(d) A motor carver shall ensure that all records
related to the administration and results of the drug
testing program for its drivers subject to the testing
requirements are maintained for a minimum period
of 5 years except that individual negative test results
shall be maintained for a minimum of 12 months.
(e) A medical review officer shall be the sole cus-
todian ofindividuals test results. The medical review
officer shall retain the reports of individual test re-
sults for a minimum of 5 years.
(fl A motor carrier shall retain in the driver's
qualification file such information that will indicate
only the following:
(1) The types of controlled substances testing for
which the driver submitted a urine specimen.
(2) The date of such collection.
(3) The location of such collection.
(4) The identity of person or entity:
(i) Performing the collection,
(ii) Analysis of the specimens, and
(iii) Serving as the MRO.
(5) Whether the test finding was "positive" or
"negative" and, if"positive," the controlled substances
identified in any positive test.
1Z~
(g) A motor carrier shall produce upon demand and
shall permit the Federal Highway Administrator to
examine all records related to the administration and
results of controlled substance testing performed under
this part.
(h) A motor carrier shall maintain all administra-
tive records pertaining to its controlled substances
testing program and an annual calendar year sum-
mary ofthe results of its controlled substances testing
program performed under this subpart.
(1) The administrative records shall include agree-
ments with collection facilities, laboratories, MROs,
consortia, names and positions of company officials
and their role in the motor carrier's controlled sub-
stances testing program, puarterly laboratory sum-
maries, recordkeeping and testing procedures includ-
ing random testing selection and notification proce-
dures.
(2) The motor carrier's summary shall include the
following information:
(i) Number of drivers subject to Subpart H;
(ii) Number of drivers subject to testing under the
anti-drug rules of more than one DOT agency, iden-
tified by each agency;
(iii) Number of specimens collected by type of test
(e.g., pre-employment, random, reasonable cause/
suspicion, post-accident);
(iv) Number of positives verified by a MRO by type
of test,. type of controlled substance;
(v) Number of negatives verified by a MRO by type
of test;
(vi) Number of persons denied a position as a driver
following a verified controlled substances test;
(vii) Number of drivers verified positive by a MRO
who were returned to duty as a driver during the
reporting period;
(viii) Number of drivers with tests verified positive
by a MRO for multiple controlled substances;
(ix) Number of drivers who refused to submit to a
controlled substances test required under this sub-
part; and
(x) Number of supervisors who have received re-
quired training during the reporting period.
(3) A motor carrier shall prepare and maintain a
summary of the results of its alcohol and controlled
substances testing programs performed under this
part during the previous calendar year, when re-
quested by the Secretary ofTransportation, any DOT
agency, or any State or local officials with regulatory
authority over the motor carrier or any of its drivers.
The information shall be made available for inspec-
tion at the motor carrier's principal place of business
within two business days of the request.
(4) If, during the month ofJanuary, a motor carrier
is provided with forms by the Federal Highway Ad-
ministration on which to report the motor tamer's
annual calendaryear summary information, the motor
carrier shall complete the forms and submit them to
the Federal Highway Administration by March 15 of
that year. The motor carrier shall ensure that the
annual summary report is accurate and received by
March 15 at the location that the Federal Highway
Administration specifies in its request. The report
shall be in the form and manner prescribed by the
Federal Highway Administration in its request. When
the report is submitted to the Federal Highway Ad-
ministration by mail or electronic transmission, the
~ZZ
information requested shall be typed, except for the
signature of the certifying official. Each motor carrier
shall ensure the accuracy and timeliness of each
report submitted by the motor carrier or a consor-
tium.
(Approved by the Office of Management and Bud-
get under control number 2125-0543)
§391.89 Access to individual test results or
test findings.
(a) No person may obtain the individual test re-
sults retained by a medical review officer, and no
medical review officer shall >release the individual
test results of any employee to any person, without
first obtaining written authorization from the tested
employee. Nothing in this paragraph shall prohibit
a medical review officer from releasing, to the employ-
ing motor carrier, the information delineated in
§391.87 (f) of this subpart.
(b) No person may obtain the information delin-
eated in §391.87 (f) of this part and retained by a
motor tamer, and no motor carrier shall release such
information about any employee or previous em-
ployee, without first obtaining written authorization
from the tested employee.
§391.93 Implementation schedule.
(a) All motor carriers shall have a drug testing
program that conforms to this subpart and 49 CFR
part 40 by the date a motor carrier begins motor
carrier operations.
(b) All motor carriers shall require all collection
personnel to implement the split sample collection
procedures required under §40.25(f)(10) of this title
by August 15, 1994.
(c) An employer may begin complying with the
requirements of paragraph (b) of this section on or
after March 17, 1994.
§391.95 Drug use prohibitions.
(a) No driver shall be on duty, as defined in §395.2
of this subchapter, if the driver uses any controlled
substances, except as provided in §391.97 of this part.
(b) No driver shall be on duty, as defined in §395.2
of this subchapter, if the driver tests positive for use
ofcontrolled substances, exceptas providedin §391.97
of this part.
(c) A person who tests positive for the use of a
controlled substance, as defined in 49 CFR Part 40,
is medically unqualified to operate a commercial
motor vehicle.
(d) A person who refuses to be tested under pro-
visions of this subpart shall not be permitted to
operate a commercial motor vehicle. Such refusal
shall be treated as a positive test and subject the
driver to the restrictions contained in paragraph (c)
of this section.
§391.97 Prescribed drugs.
(a) A~rmatiue defense. Any driver who is alleged
to have violated §391.95 of this subpart shall have
available as an affirmative defense, to be proven by
the driver through clear and convincing evidence, the
his/her use of a controlled substance (except for
methadone) was prescribed by a licensed medical
practitioner who is familiar with the driver's medical
history and assigned duties.
(b) The MRO shall afford a tested individual the
opportunity to discuss a positive test result with the
MRO before reporting the positive test result to the
motor carrier. If an MRO, after making and docu-
,,,
menting all reasonable efforts is unable to contact a
tested person, the MRO shall contact a designated
management official of the motor carrier to arrange
for the individual to contact the MRO prior to going
on duty. The MRO may verify a positive test without
having communicated with the driver about the re-
sults of the test if:
(1) The driver expressly declines the opportunity
to discuss the results of the test, or
(2) Within 5 days after a documented contact by
a designated management official of the motor carrier
instructing the driver to contact the MRO, the driver
has not done so. '
(c) All positive tests reported to the motor carrier
by the MRO in which the MRO did not discuss the
results with the driver shall be so noted and be
accompanied by complete documentation of the MRO's
efforts to contact the driver including contacts with
a motor carrier's designated management oflcial.
(d) The rules in this subpart do not prohibit a motor
carrier from requiring a driver to notify the motor
carrier of therapeutic drug use.
§391.99 Reasonable cause testing requirements.
(a) A motor carrier shall require a driver to be
tested, upon reasonable cause, for the use of con-
trolled substances.
(b) A driver shall submit to testing, upon reason-
able cause, for the use of controlled substances when
requested to do so by the motor carrier.
(c) The conduct must be witnessed by at least two
supervisors or company officials, if feasible. If not
feasible, only one supervisor or company official need
witness the conduct. The witness or witnesses must
have received training in the identification of actions,
appearance, or conduct of a commercial motor vehicle
driver which are indicative of the use of a controlled
substance.
(d) The documentation of the driver's conduct shall
be prepared and signed by the witnesses within 24
hours of the observed behavior or before the results
of the tests are released, whichever is earlier.
§391.101 Reasonable cause testing procedures.
(a) Amotor carrier shall ensure that the driver is
transported immediately to a collection site for the
collection of a urine sample.
(b) A motor carrier shall ensure that the test
performed under the requirements of §391.99 of this
Subpart conforms with 49 CFR Part 40 and this
Subpart.
§391.103 Pre-employmenttestingrequirements.
(a) A motor carrier shall require adriver-applicant
who the motor carrier intends to hire or use to be
tested for the use of controlled substances as a
prequalification condition.
(b) Adriver-applicant shall submit to controlled
substance testing as a prequalification condition.
(c) Prior to collection of a urine sample under
§391.107 of this subpart, adriver-applicant shall be
notified that the sample will be tested for the presence
of controlled substances.
(d) Exceptions. (1) A motor carrier may use a
driver who is a regularly employed driver of another
motor carrier without complying with paragraph (a)
of this section, if the driver meets the requirement of
§391.65 of this subchapter.
(2) A motor carrier may use a driver who is not
tested by the motor carrier without complying with
paragraph (a) of this section, provided the motor
carrier assures itself
(i) That the driver has participated in a drug
testing program that meets the requirements of this
subpart within the previous 30 days and,
(ii) While participating in that program, was either
(A) tested for controlled substances within the past
6 months (from the date of application with the motor
carrier) or
(B) participated in the drug testing program for the
previous 12 months (from the date of application with
the motor carrier).
(3) A motor carrier who exercises either para-
graphs (d)(1) or (dX2) of this section shall contact the
controlled substances testing program in which the
driver participates or participated and shall obtain
the following information:
(i) Name and address of the program.
(ii) Verification that the driver participates or
participated in the program.
(iii) Verification that the program conforms to 49
CFR Part 40.
(iv) Verification that the driver is qualified under
the rules of this part, including that the driver has
not refused to be tested for controlled substances.
(v) The date the driver was last tested for con-
trolled substances.
(vi) The results, positive or negative, of any test
taken.
(4) The motor carrier shall retain the information
required by this paragraph in the driver's qualifica-
tion file required under §391.51 of this part.
(5) A motor carrier who uses, but does not employ,
such a driver more than once a year must assure itself
once every 6 months that the driver participates in
a controlled substances testing program that meets
the requirements of this subpart.
§391.105 Biennial (periodic) testing require-
ments.
(a) A motor carrier shall require a driver to be'
tested in accordance with the procedures set forth in
this subpart and Part 40 of this title at least once
every two years commencing with the driver's first
medical examination required under §391.45 of this
part after the motor carrier's implementation of a
drug testing program in accordance with this sub-
part.
(b) Exception. A motor carrier may use a driver who
participates in a drug testing program of another
motor carrier or controlled substance test consor-
tium.
(c) Exceptions: Amotor carrier may discontinue.
periodic testing after a driver has been tested at least
once under
(1) The requirements of paragraph (a) of this sec-=
tion;
(2) The requirements of §391.103 of this Subpart;
or
(3) The requirements of §391.109 of this Subpart,
and the motor carrier is testing its drivers at a 50
percent rate under its random testing program as
required by §391.109 of this Subpart.
§391.107 Pre-employment and biennial testing
procedures.
(a) The sample shall consist of a urine specimen.`
(b) A motor carrier shall ensure that the test
performed under the requirements of §391.105 of this:
1 Z3
Subpart conforms with 49 CFR Part 40 and this
Subpart.
§391.109 Random testing requirements.
(a) The number of tests conducted under this
section annually shall equal or exceed 50 percent
(50%) of the average number of commercial motor
vehicle driver positions for which testing is required
to be tested under this subpart.
(b) A motor carrier shall use a random selection
process to select and request a driver to be tested for
the use of controlled substances.
(c) A driver shall submit to controlled substance
testing when selected by a random selection process
used by a motor carrier.
(d) Exceptinn. A motor carrier may use the results
of another's controlled substances testing program
that a driver participates in to meet the requirements
of this section provided that the motor carrier obtains
the following information from the controlled sub-
stances testing program entity:
(1) Name and address of the program.
(2) Verification that the driver participates in the'
program.
(3) Verification that program conforms to the 49
CFR Part 40.
(4) Verification that driver is qualified under the
rules of this part, including that the driver has not
refused to be tested for controlled substances.
(5) The date the driver was last tested for con-
trolled substances.
(6) The results, positive or negative, of any tests
taken.
§391.111 Random testing procedures.
(a) The sample shall consist of a urine specimen.
(b) A motor carrier shall ensure that the test
performed under the requirements of §391.109 of this
Subpart conforms with 49 CFR Part 40 and this
Subpart.
§391.113 Post accident testing requirements.
(a) A driver shall provide a urine sample to be
tested for the use of controlled substances as soon as
possible, but not later than 32 hours, after an acci-
dent, as defined in §390.5 of this subchapter, if the
driver of the commercial motor vehicle receives a
citation for a moving traffic violation arising from the
accident.
(b) A driver who is seriously injured and cannot
provide a specimen at the time of the accident shall
provide the necessary authorization for obtaining
hospital reports and other documents that would
indicate whether there were any controlled substances
in his/her system.
(c) A motor carrier shall provide drivers with nec-
essary information and procedures so that the driver
will be able to meet the requirement of paragraph (a)
of this section.
§391.115 Post-accident testing procedures.
(a) The sample shall consist of a urine specimen.
(b) A driver shall ensure that a specimen is col-
lected and forwarded to a National Institute on Drug
Abuse (NIDA) certified laboratory in a manner which
conforms to 49 CFR Part 40.
(c) A motor carrier shall ensure that the test
performed under the requirements of Section 391.113
of this Subpart conforms with 49 CFR Part 40 and this
Subpart.
§391.117 Disqualification.
(a) Disqualification for refusal. Except for a driver
who meets the conditions of §391.113(b), a driver
shall be disqualified by issuance of a letter of disquali-
ficationfor aperiod of 1 year following a refusal to give
a urine sample when the driver has been involved in
a fatal accident.
(b) Disqualification for use of controlled sub-
stances.
A driver shall be disqualified by issuance of a letter
of disqualification for a period of 1 year for a positive
test of controlled substance use when the driver has
been involved in a fatal accident.
§391.119 Employee Assistance Program (EAP).
(a) Every motor carrier shall establish an EAP
program. The EAP program shall, as a minimum,
include-
(1) An educational and training component for
drivers which addresses controlled substances;
(2) An education and training component for su-
pervisory personnel and company officials which
addresses controlled substances; and
(3) A written statement, on file and available for
inspection, at the motor carrier's principal place of
business, outlining the motor carrier's EAP.
§391.121 EAP training program.
(a) Each EAP shall consist of an effective training
program for the motor carrier's supervisory personnel
and all drivers.
(b) The training program must include at least the
following elements:
(1) The effects and consequences of controlled
substance use on personal health, safety, and the
work environment;
(2) The manifestations and behavioral changes
that may indicate controlled substance use or abuse;
and
(3) Documentation of training given to drivers and
motor carrier supervisory personnel.
(c) EAP training programs for all drivers and
supervisory personnel must consist of at least 60
minutes of training.
§391.123 After-care monitoring.
After returning to work, drivers who test positive
must continue in any after-care program and be
subject to follow-up testing for not longer than 60
months following return to work.
§391.125 Termination schedule of this subpart.
(a) Large employers. Each motor carrier with fifty
or more drivers on March 17, 1994, shall terminate
compliance with this subpart and shall implement
the requirements of part 382 of this subchapter be-
ginning on January 1, 1995.
(b) Small employers. Each motor carrier with fewer
than fifty drivers on March 17, 1994, shall terminate
compliance with this subpart and shall implement
the requirements of part 382 of this subchapter be-
ginning on January 1, 1996.
(c) All motor carriers shall terminate compliance
with this subpart on January 1, 1996.
124
PART 40-PROCEDURES FOR
TRANSPORTATION WORKPLACE
DRUG AND ALCOHOL TESTING
PROGRAMS
Subpart A-General
40.1 Applicability.
40.3 Definitions.
40.5-40. 19 [Reserved]
~>
Subpart B-Drug Testing
40.21 The drugs.
40.23 Preparation for testing.
40.25 Specimen collection procedures.
40.27 Laboratory personnel.
40.29 Laboratory analysis procedures.
40.31 Quality assurance and quality control.
40.33 Reporting and review of results.
40.35 Protection of employee records.
40.37 Individual access to test and laboratory
certification results.
40.39 Use of DHHS-certified laboratories.
Appen dix A to Part 40 -Federal Drug Testing
Custody and Control Form
Subpart C-Alcohol Testing
40.51 The breath alcohol technician.
40.53 Devices to be used for breath alcohol tests.
40.55 Quality assurance plans for EBTs.
40.57 Locations for breath alcohol testing.
40.59 The breath alcohol testing form and log
book.
40.61 Preparation for breath alcohol testing.
40.63 Procedures for screening tests.
40.65 Procedures for confirmation tests.
40.67 Refusals to test and uncompleted tests.
40.69 Inability to provide an adequate amount of
breath.
40.71 [Reserved]
40.73 (Reserved]
40.75 [Reserved]
40.77 [Reserved]
40.79 Invalid Tests.
40.81 Availability and disclosure of alcohol test-
inginformation about individual employ-
ees.
40.83 Maintenance and disclosure of records con-
cerning EBTs and BATs.
Appendix B-The Breath Alcohol Testing
Form
Subpart D -Non-Evidential Alcohol
Screening Tests
40.91 Authorization for use of non-evidential al-
cohol screening devices
40.93 The screening test technician
40.95 Quality assurance plans for non-evidential
screening devices
40.97 Locations for non-evidential alcohol screen-
ing tests
40.99 Testing forms
40.101 Screening test procedure
40.103 Refusals to test and uncompleted tests
40.105 Inability to provide an adequate amount of
breath or saliva
40.107 Invalid tests
40.109 Availability and disclosure of alcohol test-
- ing information about individual employ-
ees
40.111 Maintenance and disclosure of records con-
cerningnon-evidential testing devices and
STTs.
Authority: 49 U.S.C.102, 301, 322; 49 U.S.C. app.
1301nt, app. 1434nt, app. 2717, app. 1618a.
Subpart A -GENERAL
X40.1 Applicability.
This part applies, through regulations that refer-
ence itissued byagencies ofthe Department ofTrans-
portation, totransportation employers, including self-
employed individuals, required to conduct drug and/
or alcohol testing programs by DOT agency regula-
tions and to such transportation employers' officers,
employees, agents and contractors (including, but not
limited to, consortia). Employers are responsible for
the compliance of their officers, employees, agents
consortia and/or contractors with the requirements of
this part.
X40.3 Definitions.
The following definitions apply to this part:
Air blank. A reading by an EBT of ambient air
containing no alcohol. (In EBTs using gas chromatog-
raphy technology, a reading of the device's internal
standard).
Alcohol. The intoxicating agent in beverage alco-
hol,ethyl alcohol or other low molecularweight alrnhols
including methyl or isopropyl alcohol.
Alcohol concentration. The alcohol in a volume of
breath expressed in terms of grams of alcohol per 210
liters ofbreath as indicated by a breath test under this
part.
Alcohol use. The consumption of any beverage,
mixture or preparation, including any medication,
containing alcohol.
Aliquot. A portion of a specimen used for testing.
Blind sample or blind performance test specimen.
A urine specimen submitted to a laboratory for qual-
ity control testing purposes, with a fictitious identi-
fier, so that the laboratory cannot distinguish it from
employee specimens, and which is spiked with known
quantities of specific drugs or which is blank, contain-
ing no drugs.
Breath Alcohol Technician (BAT). An individual
who instructs and assists individuals in the alcohol
testing process and operates an EBT.
Canceled or inualid test. In drug testing, a drug
test that has been declared invalid by a Medical
Review Officer. A canceled test is neither a positive
nor a negative test. For purposes of this part, a
sample that has been rejected for testing by a labora-
tory istreated the same as a canceled test. In alcohol
testing, a test that is deemed to be invalid under
§40.79. It is neither a positive nor a negative test.
Chain of custody. Procedures to account for the
integrity of each urine or blood specimen by tracking
1Z5
its handling and storage from point of specimen to
final disposition of the specimen. With respect to drug
testing, these procedures shall require than an appro-
priate drug testing custody form (see §40.23(a)) be
used from time of collection to receipt by the labora-
tory and that upon receipt by the laboratory an
appropriate laboratory chain of custody form(s)
account(s) for the sample or sample aliquots within
the laboratory.
Collection container. A container into which the
employee urinates to provide the urine sample used
for a drug test.
Collection site. A place designated by the employer
where individuals present themselves for the purpose
of providing a specimen of their urine to be analyzed
for the presence of drugs.
Collection site person. A person who instructs and
assists individuals at a collection site and who re-
ceives and makes a screening examination of the
urine specimen provided by those individuals.
Confirmation (or confirmatory) test. In drug test-
ing, asecond analytical procedure to identify the
presence of a specific drug or metabolite that is inde-
pendent ofthe screening test and that uses a different
technique and chemical principle from that of the
screening test in order to ensure reliability and accu-
racy. (Gas chromatography/mass spectrometry (GC/
MS) is the only authorized confirmation method for
cocaine, marijuana, opiates, amphetamines, and
phencyclidine.) In alcohol testing, a second test,
following a screening test with a result of 0.02 or
greater, that provides quantitative data of alcohol
concentration.
DHHS. The Department of Health and Human
Services or any designee of the Secretary, Depart-
ment of Health and Human Services.
DOT agency. An agency of the United States De-
partment of Transportation administering regula-
tions related to drug or alcohol testing, including the
United States Coast Guard (for drug testing purposes
only), the Federal Aviation Administration, the Fed-
eral Railroad Administration, the Federal Highway
Administration, the Federal Transit Administration,
the Research and Special Programs Administration,
and the Office of the Secretary.
Employee. An individual designated in a DOT
agency regulation as subject to drug testing and/or
alcohol testing. As used in this part "employee"
includes an applicant for employment. "Employee"
and "individual" or "individual to be tested" have the
same meaning for purposes of this part.
Employer. An entity employing one or more em-
ployees that is subject to DOT agency regulations
requiring compliance with this part. As used in this
part, employer includes an industry consortium or
joint enterprise comprised of two or more employing
entities.
EBT (or evidential breath testing device). An EBT
approved by the National Highway Traffic Safety
Administration (NHTSA) for the evidential testing of
breath and placed on NHTSA's "Conforming Products
List of Evidential Breath Measurement Devices"
(CPL), "and identified on the CPL as conforming with
the model specifications available from the National
Highway Traffic Safety Administration, Office of Al-
cohol and State Programs."
Medical Review Officer (MRO). A licensed physi-
cian (medical doctor or doctor of osteopathy) respon-
sible for receiving laboratory results generated by an
employer's drug testing program who has knowledge
of substance abuse disorders and has appropriate
medical training to interpret and evaluate an
individual's confirmed positive test result together
with his or her medical history and any other relevant
biomedical information.
Screening test (or initial testl. In drug testing, an
immunoassay screen to eliminate "negative" urine
specimens from further analysis. In alcohol testing,
an analytic procedure to determine whether an em-
ployeemay have a prohibited concentration of alcohol
in a breath specimen.
Secretary. The Secretary of Transportation or the
Secretary's designee.
Shipping container. A container capable of being
secured with atamper-evident seal that is used for
transfer of one or more urine specimen bottle(s) and
associated documentation from the collection site to
the laboratory.
Specimen bottle. The bottle that, after being la-
beled and sealed according to the procedures in this
part, is used to transmit a urine sample to the labora-
tory.
§§40.5-40.19 [Reserved]
Subpart B -DRUG TESTING
§40.21 The drugs.
(a) DOT agency drug testing programs require
that employers test for marijuana, cocaine, opiates,
amphetamines and phencyclidine.
(b) An employer may include in its testing proto-
colsother controlled substances or alcohol only pursu-
ant to a DOT agency approval, if testing for those
substances is authorized under agency regulations
and if the DHHS has established an approved testing
protocol and positive threshold for each such sub-
stance.
(c) Urine specimens collected under DOT agency
regulations requiring compliance with this part may
only be used to test for controlled substances desig-
nated or approved for testing as described in this
section and shall not be used to conduct any other
analysis or test unless otherwise specifically autho-
rized by DOT agency regulations.
(d) This section does not prohibit procedures rea-
sonably incident to analysis of the specimen for con-
trolled substances (e.g., determination of pH or tests
for specific gravity, creatinine concentration, or pres-
ence of adulterants).
§40.23 Preparation for testing.
The employer and certified laboratory shall de-
velop and maintain a clear and well-documented
procedure for collection, shipment, and accessioning
of urine specimens under this part. Such a procedure
shall include, at a minimum, the following:
(a)(1) Except as provided in paragraph (a N 2) of this
section, use of the drug testing form prescribed under
this part.
(i) This form is found in Appendix A to this part.
(ii) Employers and other participants in the DOT
drug testing program may not modify or revise this
form, except that the drug testing custody and control
1S6
form may include such additional information as may
be required for billing or other legitimate purposes
necessary to the collection, provided that the personal
identifying information on the donor (other than the
social security number or other employee ID number)
may not be provided to the laboratory.
(iii) Donor medical information may appear only
on the copy provided the donor.
(2) Notwithstanding the requirement of this para-
graph (a)(1)(ii) of this section, employers and other
participants may use existing forms that were in use
in the DOT drug testing ;program prior to February
16, 1995, until June 1, 1995.
(b)(1) Use of a clean, single-use specimen bottle
that is securely wrapped until filled with the speci-
men. Aclean, single-use collection container (e.g.,
disposable cup or sterile urinal) that is securely
wrapped until used may also be employed. If urina-
tion is directly into the specimen bottle, the specimen
bottle shall be provided to the employee still sealed in
its wrapper or shall be unwrapped in the employee's
presence immediately prior to its being provided. If a
separate collection container is used for urination, the
collection container shall be provided to the employee
still sealed in its wrapper or shall be unwrapped in the
employee's presence immediately prior to its being
provided; and the collection site person shall unwrap
the specimen bottle in the presence of the employee at
the time the urine specimen is presented.
(2) Use of a tamper proof sealing system, designed
in a manner such to ensure against undetected open-
ing. The specimen bottle shall be identified with a
unique identifying number identical to that appear-
ing on the urine custody and control form, and space
shall be provided to initial the bottle affirming its
identity. For purposes of clarity, this part assumes
use of a system made up of one or more preprinted
labels and seals (or a unitary label/seal), but use of
other, equally effective technologies is authorized.
(c) Use of a shipping container in which the speci-
men and associated paperwork may be transferred
and which can be sealed and initialled to prevent
undetected tampering. If the split specimen option is
exercised, the split specimen and associated paper-
work shall be sealed in a shipping (or storage) con-
tainer and initialled to prevent undetected tamper-
ing.
(d) Written procedures, instructions and training
shall be provided as follows:
(1) Employer collection procedures and training
shall clearly emphasize that the collection site person
is responsible for maintaining the integrity of the
specimen collection and transfer process, carefully
ensuring the modesty and privacy of the donor, and is
to avoid any conduct or remarks that might be con-
strued as accusatorial or otherwise offensive or inap-
propriate.
(2) A collection site person shall have successfully
completed training to carry out this function or shall
be a licensed medical professional or technician who
is provided instructions for collection under this part
and certifies completion as required in this part.
(i) Anon-medical collection site person shall re-
ceive training in compliance with this part and shall
demonstrate proficiency in the application of this part
prior to serving as a collection site person. A medical
professional, technologist or technician licensed or
otherwise approved to practice in the jurisdiction in
which the collection takes place is not required to
receive such training if that person is provided in-
structions described in this part and performs collec-
tions in accordance with those instructions.
(ii) Collection site persons shall be provided with
detailed, clear instructions on the collection of speci-
mens in compliance with this part. Employer repre-
sentatives and donors subject to testing shall also be
provided standard written instructions setting forth
their responsibilities.
(3) Unless it is impracticable for any other indi-
vidual to perform this function, a direct supervisor of
an employee shall not serve as the collection site
person for a test of the employee. If the rules of a DOT
agency are more stringent than this provision regard-
ingthe use of supervisors as collection site personnel,
the DOT agency rules shall prevail with respect to
testing to which they apply.
(4) In any case where a collection is monitored by
non-medical personnel or is directly observed, the
collection site person shall be of the same gender as
the donor. A collection is monitored for this purpose if
the enclosure provides less than complete privacy for
the donor (e.g., if a restroom stall is used and the
collection site person remains in the restroom, or if
the collection site person is expected to listen for use
of unsecured sources of water.)
§40,25 Specimen collection procedures.
(a) Designation of collection site. (1) Each employer
drug testing program shall have one or more desig-
nated collection sites which have all necessary per-
sonnel, materials, equipment, facilities and supervi-
sion to provide for the collection, security, temporary
storage, and shipping or transportation of urine speci-
mens to a certified drug testing laboratory. An inde-
pendent medical facility may also be utilized as a
collection site provided the other applicable require-
ments of this part are rnet.
(2}A designated collection site may be any suitable
location where a specimen can be collected under
conditions set forth in this part, including a properly
equipped mobile facility. A designated collection site
shall be a location having an enclosure within which
private urination can occur, a toilet for completion of
urination (unless a single use collector is used with
sufficient capacity to contain the void), and a suitable
clean surface for writing. The site must also have a
source of water for washing hands, which, if practi-
cable, should be external to the enclosure where
urination occurs.
(b) Security. The purpose of this paragraph is to
prevent unauthorized access which could compro-
mise the integrity of the collection process or the
specimen.
(1) Procedures shall provide for the designated
collection site to be secure. If a collection site facility
is dedicated solely to urine collection, it shall be
secure at all times. If a facility cannot be dedicated
solely to drug testing, the portion of the facility used
for testing shall be secured during drug testing.
(2) A facility normally used for other purposes,
such as a public rest room or hospital examining
room, may be secured by visual inspection to ensure
other persons are not present and undetected access
(e.g., through a rear door not in the view of the
collection site person) is not possible. Security during
Z'
collection may be maintained by effective restriction
of access to collection materials and specimens. In the
case of a public rest room, the facility must be posted
.against access during the entire collection procedure
to avoid embarrassment to the employee or distrac-
tion of the collection site person.
(3) If it is impractical to maintain continuous
physical security of a collection site from the time the
specimen is presented until the sealed mailer is trans-
ferred for shipment, the following minimum proce-
dures shall apply. The specimen shall remain under
the direct control of the collection site person from
delivery to its being sealed in the mailer. The mailer
shall be immediately mailed, maintained in secure
storage, or remain until mailed under the personal
control of the collection site person.
(c) Chain of Custody. The chain of custody block of
the drug testing custody and control form shall be
properly executed by authorized collection site per-
sonnel upon receipt of specimens. Handling and
transportation of urine specimens from one autho-
rized individual or place to another shall always be
accomplished through chain of custody procedures.
Since specimens and documentation are sealed in
shipping containers that would indicate any tamper-
ing during transit to the laboratory and couriers,
express carriers, and postal service personnel do not
have access to the chain of custody forms, there is no
requirement that such personnel document chain of
custody for the shipping container during transit.
Nor is there a requirement that there be a chain of
custody entry when a specimen which is sealed in
such a shipping container is put into or taken out of
secure storage at the collection site prior to pickup by
such personnel. This means that the chain of custody
is not broken, and a test shall not be canceled, because
couriers, express carriers, postal service personnel, or
similar persons involved solely with the transporta-
tion of a specimen to a laboratory, have not docu-
mented their participation in the chain of custody
documentation or because the chain of custody does
not contain entries related to putting the specimen
into or removing it from secure temporary storage at
the collection site. Every effort shall be made to
minimize the number of persons handling specimens.
(d) Access to authorized personnel only. No unau-
thorized personnel shall be permitted in any part of
the designated collection site where urine specimens
are collected or stored. Only the collection site person
may handle specimens prior to their securement in
the mailing container or monitor or observe specimen
collection (under the conditions specified in this part).
In order to promote security of specimens, avoid
distraction of the collection site person and ensure
against any confusion in the identification of speci-
mens, the collection site person shall have only one
donor under his or her supervision at any time. For
this purpose, a collection procedure is complete when
the urine bottle has been sealed and initialled, the
drug testing custody and control form has been ex-
ecuted, and the employee has departed the site (or, in
the case of an employee who was unable to provide a
complete specimen, has entered a waiting area).
(e) Privacy. (1) Procedures for collecting urine
specimens shall allow individual privacy unless there
is a reason to believe that a particular individual may
~8
alter or substitute the specimen to be provided, as
further described in this paragraph.
(2) For purposes of this part, the following circum-
stances are the exclusive grounds constituting a rea-
son to believe that the individual may alter or substi-
tute the specimen:
(i) The employee has presented a urine specimen
that falls outside the normal temperature range (32°-
38°C/90° - 100°F), and
(A) The employee declines to provide a measure-
ment of oral body temperature, as provided in para-
graph (fl(14) of the part; or
(B) Oral body temperature varies by more than
1°C/1.8°F from the temperature of the specimen;
(ii) The last urine specimen provided by the em-
ployee (i.e.; on a previous occasion) was determined by
the laboratory to have a specific gravity of less than
1.003 and a creatinine concentration below .2g/L.
(iii) The collection site person observes conduct
clearly and unequivocally indicating an attempt to
substitute or adulterate the sample (e.g., substitute
urine in plain view, blue dye in specimen presented,
etc.); or
(iv) The employee has previously been determined
to have used a controlled substance without medical
authorization and the particular test was being con-
ducted under a DOT agency regulation providing for
follow-up testing upon or after return to service.
(3) A higher-level supervisor of the collection site
person, or a designated employerrepresentative,shall
review and concur in advance with any decision by a
collection site person to obtain a specimen under the
direct observation of a same gender collection site
person based upon the circumstances described in
subparagraph (2) of this paragraph.
(fl Integrity and identity of specimen. Employers
shall take precautions to ensure that a urine speci-
men isnot adulterated or diluted duringthe collection
procedure and that information on the urine bottle
and on the urine custody and control form can identify
the individual from whom the specimen was collected.
The following minimum precautions shall be taken to
ensure that unadulterated specimens are obtained
and correctly identified:
(1) To deter the dilution of specimens at the collec-
tion site, toilet bluing agents shall be placed in toilet
tanks wherever possible, so the reservoir of water in
the toilet bowl always remains blue. Where practi-
cable, there shall be no other source of water (e.g.,
shower or sink) in the enclosure where urination
occurs. If there is another source of water in the
enclosure it shall be effectively secured or monitored
to ensure it is not used as a source for diluting the
specimen.
(2) When an individual arrives at the collection
site, the collection site person shall ensure that the
individual is positively identified as the employee
selected for testing (e.g., through presentation of
photo identification or identification bythe employer's
representative). Ifthe individual's identity cannot be
established, the collection site person shall not pro-
ceedwith the collection. If the employee requests, the
collection site person shall show his/her identification
to the employee. =
(3) If the individual fails to arrive at the assigned
time, the collection site person shall contact the ap-
propriate authority to obtain guidance on the action
to be taken.
(4) The collection site person shall ask the indi-
vidual to remove any unnecessary outer garments
such as a coat or jacket that might conceal items or
substances that could be used to tamper with or
adulterate the individual's urine specimen. The col-
lection site person shall ensure that all personal
belongings such as a purse or briefcase remain with
the outer garments. The individual may retain his or
her wallet. If the employee requests it, the collection
site personnel shall provide the employee a receipt for
any personal belongings.
(5) The individual shall be instructed to wash and
dry his or her hands prior to urination.
(6) After washing hands, the individual shall re-
main in the presence of the collection site person and
shall not have access to any water fountain, faucet,
soap dispenser, cleaning agent or any other materials
which could be used to adulterate the specimen.
(7) The individual may provide his/her specimen in
the privacy of a stall or otherwise partitioned area
that allows for individual privacy. The collection site
person shall provide the individual with a specimen
bottle or collection container, if applicable, for this
purpose.
(8) The collection site person shall note any un-
usual behavior or appearance on the urine custody
and control form.
(9) In the exceptional event that an employer-
designatedcollection site is not accessible and there is
an immediate requirement for specimen collection
(e.g., circumstances require apost-accident test), a
public rest room may be used according to the follow-
ing procedures: A collection site person of the same
gender as the individual shall accompany the indi-
vidual into the public rest room which shall be made
secure during the collection procedure. If possible, a
toilet bluing agent shall be placed in the bowl and any
accessible toilet tank. The collection site person shall
remain in the rest room, but outside the stall, until the
specimen is collected. If no bluing agent is available to
deter specimen dilution, the collection site person
shall instruct the individual not to flush the toilet
until the specimen is delivered to the collection site
person. Af per the collection site person has possession
of the specimen, the individual will be instructed to
flush the toilet and to participate with the collection
site person in completing the chain of custody proce-
dures.
(10) The collection site person shall instruct the
employee to provide at least 45 ml of urine under the
split sample method of collection or 30 ml of urine
under the single sample method of collection.
(i)(A) Employers with employees subject to drug
testing only under the drug testing rules of the Re-
search and Special Programs Administration and/or
Coast Guard may use the "split sample" method of
collection or may collect a single sample for those
employees.
(B) Employers with employees subject to drug
testing under the drug testing rules of the Federal
Highway Administration, Federal Railroad Adminis-
tration, Federal Transit Administration, or Federal
Aviation Administration shall use the "split sample"
method of collection for those employees.
(ii) Employers using the split sample method of
collection shall follow the procedures in this para-
graph (fl(10)(ii):
(A) The donor shall urinate into a collection con-
tainer or aspecimen bottle capable of holding at least
60 ml.
(BXI) If a collection container is used, the collec-
tion site person, in the presence of the donor, pours
the urine into two specimen bottles. Thirty (30) ml
shall be poured into one specimen bottle, to be used as
the primary specimen. At least 15 ml shall be poured
into the other bottle, to be used as the split specimen.
(2) If a single specimen bottle is used as a collection
container, the collection site person, in the presence of
the donor, shall pour 15 ml of urine from the specimen
bottle into a second specimen bottle (to be used as the
split specimen) and retain the remainder (at least 30
ml) in the collection bottle (to be used as the primary
specimen).
(C) Nothing in this section precludes the use of a
collection method or system that does not involve the
physical pouring of urine from one container or bottle
to another by the collection site person, provided that
the method or system results in the subdivision of the
specimen into a primary (30 ml) and a split (at least
15 ml) specimen that can be transmitted to the labo-
ratory and tested in accordance with the require-
ments of this Subpart.
(D) Both bottles shall be shipped in a single ship-
ping container, together with copies 1,2, and the split
specimen copy of the chain of custody form, to the
laboratory.
(E) If the test result of the primary specimen is
positive, the employee may request that the MRO
direct that the split specimen be tested in a different
DHHS-certified laboratory for presence of the drug(s)
for which a positive result was obtained in the test of
the primary specimen. The MRO shall honor such a
request if it is made within 72 hours of the employee
having been notified of a verified positive test result.
(F) When the MRO informs the laboratory inwrit-
ingthat the employee has requested a test of the split
specimen, the laboratory shall forward, to a different
DHHS-approved laboratory, the split specimen bottle,
with seal intact, a copy of the MRO request, and the
split specimen copy of the chain of custody form with
appropriate chain of custody entries.
(G) The result of the test of the split specimen is
transmitted by the second laboratory to the MRO.
(H) Action required by DOT agency regulations as
the result of a positive drug test (e.g., removal from
performing asafety-sensitive function) is not stayed
pending the result of the test of the split specimen.
(I) If the result of the test of the split specimen fails
to reconfirm the presence of the drug(s) or drug
metabolite(s) found in the primary specimen, the
MRO shall cancel the test, and report the cancellation
and the reasons for it to the DOT, the employer, and
the employee.
(iii) Employers using the single sample collection
method shall follow the procedures in paragraph:
(A) The collector may choose to direct the employee
to urinate either directly into a specimen bottle or into
a separate collection container.
(B) If a separate collection container is used, the
collection site person shall pour at least 30 ml of the
1S9
urine from the collection container into the specimen
bottle in the presence of the employee.
(iv) In either collection methodology, upon receiv-
ing the specimen from the individual, the collection
site person shall determine if it has at least 30
milliliters of urine for the primary or single specimen
bottle and, where the split specimen collection method
is used, an additional 15 ml of urine for the split
specimen bottle. If the individual is unable to provide
such a quantity of urine, the collection site person
shall instruct the individual to drink not more than 24
ounces of fluids and, after a period of up to two hours,
again attempt to provide a complete sample using a
fresh collection container. The original insufficient
specimen shall be discarded. If the employee is still
unable to provide an adequate specimen, the insuffi-
cient specimen shall be discarded, testing discontin-
ued, and the employer so notified. The MRO shall
refer the individual for a medical evaluation to de-
velop pertinent information concerning whether the
individual's inability to provide a specimen is genuine
or constitutes a refusal to test. (In preemployment
testing, if the employer does not wish to hire the
individual, the MRO is not required to make such a
referral.) Upon completion of the examination, the
MRO shall report his or her conclusions to the em-
ployer in writing.
(11) After the specimen has been provided and
submitted to the collection site person, the individual
shall be allowed to wash his or her hands.
(12) Immediately after the specimen is collected,
the collection site person shall measure the tempera-
ture of the specimen. The temperature measuring
device used must accurately reflect the temperature
of the specimen and not contaminate the specimen.
The time from urination to temperature measure is
critical and in no case shall exceed 4 minutes.
(13) A specimen temperature outside the range of
32°- 38°C/90° - 100°F constitutes a reason to believe
that the individual has altered or substituted the
specimen (see paragraph (e)(2)(1) of this section). In
such cases, the individual supplying the specimen
may volunteer to have his or her oral temperature
taken to provide evidence to counter the reason to
believe the individual may have altered or substi-
tuted the specimen.
(14) Immediately after the specimen is collected,
the collection site person shall also inspect the speci-
men to determine its color and look for any signs of
contaminants. Any unusual findings shall be noted on
the urine custody and control form.
(15) All specimens suspected of being adulterated
shall be forwarded to the laboratory for testing.
(16) Whenever there is reason to believe that a
particular individual has altered or substituted the
specimen as described in paragraph (e)(2)(i) or (iii) of
this section, a second specimen shall be obtained as
soon as possible under the direct observation of a
same gender collection site person.
(17) Both the individual being tested and the
collection site person shall keep the specimen in view
at all times prior to its being sealed and labeled. As
provided below, the specimen shall be sealed (by
placement of a tamperproof seal over the bottle cap
and down the sides of the bottle) and labeled in the
presence of the employee. If the specimen is trans-
ferred to a second bottle, the collection site person
shall request the individual to observe the transfer of
the specimen and the placement of the tamperproof
seal over the bottle cap and down the sides of the
bottle.
(18) The collection site person and the individual
being tested shall be present at the same time during
procedures outlined in paragraphs (fx19)-(fx22) of
this section.
(19) The collection site person shall place securely
on the bottle an identification label which contains
the date, the individual's specimen number, and any
other identifying information provided or required by
the employer. If separate from the label, the
tamperproof seal shall also be applied.
(20) The individual shall initial the identification
label on the specimen bottle for the purpose of certify-
ing that it is the specimen collected from him or her.
(21) The collection site person shall enter on the
drug testing custody and control form all information
identifying the specimen. The collection site person
shall sign the drug testing custody and control form
certifying that the collection was accomplished ac-
cording to the applicable Federal requirements.
(22)(i) The individual shall be asked to read and
sign a statement on the drug testing custody and
control form certifying that the specimen identified as
having been collected from him or her is in fact thai
specimen he or she provided.
(ii) When specified by DOT agency regulation or
required by the collection site (other than an em-
ployersite) or bythe laboratory, the employee maybe
required to sign a consent or release form authorizing
the collection of the specimen, analysis of the speci-
men for designated controlled substances, and re-
lease of the results to the employer. The employee
may not be required to waive liability with respect to
negligence on the part of any person participating in
the collection, handling or analysis of the specimen or
to indemnify any person for the negligence of others.
(23) The collection site person shall complete the
chain of custody portion of the drug testing custody
and control form to indicate receipt of the specimen
from the employee and shall certify propercompletion
of the collection.
(24) The urine specimen and chain of custody form
are now ready for shipment. If the specimen is not
immediately prepared for shipment, the collection
site person shall ensure that it is appropriately safe-
guarded during temporary storage.
(25)(i) While any part of the above chain of custody
procedures is being performed, it is essential that the
urine specimen and custody documents be under the
control of the involved collection site person. If the
involved collection site person leaves his or her work
station momentarily, the collection site person shall
take the specimen and drug testing custody and
control form with him or her or shall secure them.
After the collection site person returns to the work
station, the custody process will continue. If the
collection site person is leaving for an extended period
of time, he or she shall package the specimen for
mailing before leaving the site.
(ii) The collection site person shall not leave the
collection site in the interval between presentation of
the specimen by the employee and securement of the
sample with an identifying label bearing the
employee's specimen identification number (shown
130
-l,
on the urine custody and control form) and seal
initialed by the employee. If it becomes necessary for
the collection site person to leave the site during this
interval, the collection shall be nullified and (at the
election of the employer) a new collection begun.
(g) Collection control. To the maximum extent
possible, collection site personnel shall keep the
individual's specimen bottle within sight both before
and after the individual has urinated. After the speci-
men is collected, it shall be properly sealed and
labeled.
(h) Transportation to Laboratory. Collection site
personnel shall arrange to ship the collected speci-
men to the drug testing laboratory. The specimens
shall be placed in shipping containers designed to
minimize the possibility of damage during shipment
(e.g., specimen boxes and/or padded mailers); and
those containers shall be securely sealed to eliminate
the possibility ofundetected tamperingwith the speci-
menand/or the form. On the tape sealing the shipping
container, the collection site person shall sign and
enter the date specimens were sealed in the shipping
container for shipment. The collection site person
shall ensure that the chain of custody documentation
is enclosed in each container sealed for shipment to
the drug testing laboratory. Since specimens and
documentation are sealed in shipping containers that
would indicate any tampering during transit to the
laboratory and couriers, express carriers, and postal
service personnel do not have access to the chain of
custody forms, there is no requirement that such
personnel document chain of custody for the shipping
container during transit. Nor is there a requirement
that there be a chain of custody entry when a speci-
men which is sealed in such a shipping container is
put into or taken out of secure storage at the collection
site prior to pickup by such personnel. This means
that the chain of custody is not broken, and a test shall
not be canceled, because couriers, express carriers,
postal service personnel, or'similar persons involved
solely with the transportation of a specimen to a
laboratory, have not documented their participation
in the chain of custody documentation or because the
chain of custody does not contain entries related to
putting the specimen into or removing it from secure
temporary storage at the collection site.
(i) Failure to cooperate. If the employee refuses to
cooperate with the collection process, the collection
site person shall inform the employer representative
and shall document the non-cooperation on the drug
testing custody and control form.
(j) Employee requiring medical attention. If the
sample is being collected from an employee in need of
medical attention (e.g., as part of apost-accident test
given in an emergency medical facility), necessary
medical attention shall not be delayed in order to
collect the specimen.
(k) Use of chain of custody form. A chain of custody
form (and a laboratory internal chain of custody
document, where applicable), shall be used for main-
taining control and accountability of each specimen
from the point of collection to final disposition of the
specimen. The date and purpose shall be documented
on the form each time a specimen is handled or
transferred and every individual in the chain of cus-
tody shall be identified. Since specimens and docu-
mentation are sealed in shipping containers that
would indicate any tampering during transit to the
laboratory and couriers, express carriers, and postal
service personnel do not have access to the chain of
custody forms, there is no requirement that such
personnel document chain of custody for the shipping
container during transit. Nor is there a requirement
that there be a chain of custody entry when a speci-
men which is sealed in such a shipping container is
put into or taken out of secure storage at the collection
site prior to pickup by such personnel. This means
that the chain of custody is not broken, and a test shall
not be canceled, because couriers, express carriers,
postal service personnel, or similar persons involved
solely with the transportation of a specimen to a
laboratory, have not documented their participation
in the chain of custody documentation or because the
chain of custody does not contain entries related to
putting the specimen into or removing it from secure
temporary storage at the collection site. Every effort
shall be made to minimize the number of persons
handling specimens.
§40.27 Laboratory personnel.
(a) Day-to-day management. (1) The laboratory
shall have a qualified individual to assume profes-
sional, organizational, educational, and administra-
tive responsibility for the laboratory's urine drug
testing facility.
(2) This individual shall have documented scien-
tific qualifications in analytical forensic toxicology.
Minimum qualifications are:
(i) Certification as a laboratory director by a State
in forensic or clinical laboratory toxicology; or
(ii) A Ph.D. in one of the natural sciences with an
adequate undergraduate and graduate education in
biology, chemistry, and pharmacology or toxicology,
or
(iii) Training and experience comparable to a Ph.D.
in one of the natural sciences, such as a medical or
scientific degree with additional training and labora-
tory/research experience in biology, chemistry, and
pharmacology or toxicology; and
(iv) In addition to the requirements in paragraph
(a)(2)(i),(ii), or (iii) ofthis section, minimum qualifica-
tions also require:
(A) Appropriate experience in analytical forensic
toxicology including experience with the analysis of
biological material far drugs of abuse, and
(B) Appropriate training and/or experience in fo-
rensic applications of analytical toxicology, e.g., pub-
lications, court testimony, research concerning ana-
lytical toxicology of drugs of abuse, or other factors
which qualify the individual as an expert witness in
forensic toxicology.
(3) This individual shall be engaged in and respon-
sible for the day-to-day management of the drug
testing laboratory even where another individual has
overall responsibility for an entire multispecialty
laboratory.
(4) This individual shall be responsible for ensur-
ing that there are enough personnel with adequate
training and experience to supervise and conduct the
work of the drug testing laboratory. He or she shall
assure the continued competency of laboratory per-
sonnel by documenting their inservice training, re-
viewing their work performance, and verifying their
skills.
(5) This individual shall be responsible for the
131
laboratory's having a procedure manual which is
complete, up-to-date, available for personnel per-
forming tests, and followed by those personnel. The
procedure manual shall be reviewed, signed, and
dated by this responsible individual whenever proce-
dures are first placed into use or changed or when a
new individual assumes responsibility for manage-
ment of the drug testing laboratory. Copies of all
procedures and dates on which they are in effect shall
be maintained. (Specific contents of the procedure
manual are described in §40.29(n)(1).)
(6) This individual shall be responsible for main-
taining aquality assurance program to assure the
proper performance and reporting of all test results;
for maintaining acceptable analytical performance
for all controls and standards; for maintaining qual-
itycontrol testing; and for assuring and documenting
the validity, reliability, accuracy, precision, and per-
formancecharacteristics ofeach test and test system.
(7) This individual shall be responsible for taking
all remedial actions necessary to maintain satisfac-
tory operation and performance of the laboratory in
response to quality control systems not being within
performance specifications,. errors in result reporting
or in analysis of performance testing results. This
individual shall ensure that sample results are not
reported until all corrective actions have been taken
and he or she can assure that the test results provided
are accurate and reliable.
(b) Test validation. The laboratory's urine drug
testing facility shall have a qualified individual(s)
who reviews all pertinent data and quality control
results in order to attest to the validity of the
laboratory's test reports. A laboratory may designate
more than one person to perform this function. This
individual(s) may be any employee who is qualified to
be responsible for day-to-day management or opera-
tion of the drug testing laboratory.
(c) Day-to-day operations and supervision of ana-
lysts.The laboratory's urine drug testing facility shall
have an individual to be responsible for day-to-day
operations and to supervise the technical analysts.
This individual(s) shall have at least a bachelor's
degree in the chemical or biological sciences or medi-
cal technology or equivalent. He or she shall have
training and experience in the theory and practice of
the procedures used in the laboratory, resulting in his
or her thorough understanding of quality control
practices and procedures; the review, interpretation,
and reporting of test results; maintenance of chain of
custody; and proper remedial actions to be taken in
response to test systems being out of control limits or
detecting aberrant test or quality control results.
(d) Other personnel. Other technicians or nontech-
nical staffshallhave the necessary training and skills
for the tasks assigned.
(e) Training. The laboratory's urine drug testing
program shall make available continuing education
programs to meet the needs of laboratory personnel.
(fl Files. Laboratory personnel files shall include:
resume of training and experience, certification or
license, if any; references; job descriptions; records of
performance evaluation and advancement; incident
reports; and results of tests which establish employee
competency for the position he or she holds, such as a
test for color blindness, if appropriate.
§40.29 Laboratory analysis procedures.
(a) Security and chain of custody. (1) Drug testing
laboratories shall be secure at all times. They shall
have in place sufficient security measures to control
access to the premises and to ensure that no unautho-
rized personnel handle specimens or gain access to
the laboratory process or to areas where records are
stored. Access to these secured areas shall be limited
to specifically authorized individuals whose authori-
zation isdocumented. With the exception of personnel
authorized to conduct inspections on behalfof Federal
agencies for which the laboratory is engaged in urine
testing or on behalf of DHHS, all authorized visitors
and maintenance and service personnel shall be es-
corted at all times. Documentation of individuals
accessing these areas, dates, and time of entry and
purpose of entry must be maintained.
(2) Laboratories shall use chain of custody proce-
dures to maintain control and accountability of speci-
mens from receipt through completion of testing,
reporting of results during storage, and continuing
until final disposition of specimens. The date and
purpose shall be documented on an appropriate chain
of custody form each time a specimen is handled or
transferred and every individual in the chain shall be
identified. Accordingly, authorized technicians shall
be responsible for each urine specimen or aliquot in
their possession and shall sign and complete chain of
custody forms for those specimens or aliquots as they
are received.
(b) Receiving. (lxi) When a shipment of specimens
is received, laboratory personnel shall inspect each
package for evidence of possible tampering and com-
pare information on specimen bottles within each
package to the information on the accompanying
chain of custody forms. Any direct evidence of tamper-
ing or discrepancies in the information on specimen
bottles and the employer's chain of custody forms
attached to the shipment shall be immediately re-
ported to the employer and shall be noted on the
laboratory's chain of custody form which shall accom-
panythe specimens while they are in the laboratory's
possession.
(ii) Where the employer has used the split sample
method, and the laboratory observes that the split
specimen is untestable, inadequate, or unavailable
for testing, the laboratory shall nevertheless test the
primary specimen. The laboratory does not inform
the MRO or the employer of the untestability, inad-
equacy, or unavailability of the split specimen until
and unless the primary specimen is a verified positive
test and the MRO has informed the laboratory that
the employee has requested a test of the split speci-
men.
(2) In situations where the employer uses the split
sample collection method, the laboratory shall log in
the split specimen, with the split specimen bottle seal
remaining intact. The laboratory shall store this
sample securely (see paragraph (c) ofthis section). If
the result of the test of the primary specimen is
negative, the laboratory may discard the split speci-
men. If the result of the test of the primary specimen
is positive, the laboratory shall retain the split speci-
men in frozen storage for 60 days from the date on
which the laboratory acquires it (see paragraph (h) of
this section). Following the end of the 60-day period,
.r~
13Z
if not informed by the MRO that the employee has
requested a test of the split specimen, the laboratory
may discard the split specimen.
(3) When directed in writing by the MRO to for-
ward the split specimen to another DHHS-certified
laboratory for analysis, the second laboratory shall
analyze the split specimen by GC/MS to reconfirm the
presence of the drug(s) or drug metabolite(s) found in
the primary specimen. Such GC/MS confirmation
shall be conducted without regard to the cutoff levels
of §40.29(fl. The split specimen shall be retained in
long-term storage for one year by the laboratory
conducting the analysis of the split specimen (or
longer if litigation concerning the test is pending).
(c) Short-term refrigerated storage. Specimens that
do not receive an initial test within 7 days of arrival
at the laboratory shall be placed in secure refrigera-
tionunits. Temperatures shall not exceed 6°C. Emer-
gency power equipment shall be available in case of
prolonged power failure.
(d) Specimen processing. Laboratory facilities for
urine drug testing will normally process specimens by
grouping them into batches. The number of speci-
mens in each batch may vary significantly depending
on the size of the laboratory and its workload. When
conducting either initial or confirmatory tests, every
batch shall contain an appropriate number of stan-
dardsfor calibrating the instrumentation and a mini-
mum of 10 percent controls. Both quality control and
blind performance test samples shall appear as ordi-
nary samples to laboratory analysts.
(e) Initial test. (1) The initial test shall use an
immunoassay which meets the requirements of the
Food and Drug Administration for commercial distri-
bution.The following initial cutofflevels shall be used
when screening specimens to determine whether they
are negative for these five drugs or classes of drugs:
Initial test cutofl'levels
(ng/ml)
Marijuana metabolites ......................................... 50
Cocaine metabolites ............................................. 300
Opiate metabolites .............................................. *300
Phencyclidine ......................................................... 25
Amphetamines ................................................. 1,000
y` 25 ng/ml if immunoassay specific for free mor-
phine.
(2) These cutoff levels are subject to change by the
Department of Health and Human Services as ad-
vances intechnology orother considerations warrant
identification of these substances at other concentra-
tions.
(fl Confirmatory test. (1) All specimens identified
as positive on the initial test shall be confirmed using
gas chromatography/mass spectrometry (GC/MS)
techniques at the cutoff levels listed in this paragraph
for each drug. All confirmations shall be by quantita-
tive analysis. Concentrations that exceed the linear
region of the standard curve shall be documented in
the laboratory record as "greater than highest stan-
dard curve value."
Confirmatory test cutoff levels
(ng/ml)
Marijuana metabolite' ........................................................................ 15
Cocaine metabolite'' ............................................ I50
Opiates:
Morphine ......................................................... 300
Codeine ............................................................ 300
Phencyclidine ........................................................ 25
Amphetamines:
Amphetamine .................................................. 500
Methamphetamine .......................................... 500
' Delta-tetrahydrocannabinol-9-carboxylic acid
2 Benzoylecgonine
3 Specimen must also contain amphetamine at a
concentration greater than or equal to 200 ng/ml.
(2) These cutoff levels are subject to change by the
Department of Health and Human Services as ad-
vances intechnology orother considerations warrant
identification of these substances at other concentra-
tions.
(g) Reporting results. (1) The laboratory shall re-
port test results to the employer's Medical Review
Officer within an average of 5 working days after
receipt of the specimen by the laboratory. Before any
test result is reported (the results of initial tests,
confirmatory tests, or quality control data), it shall be
reviewed and the test certified as an accurate report
by the responsible individual. The report shall iden-
tifythe drugs/metabolitestested for, whether positive
or negative, the specimen number assigned by the
employer, and the drug testing laboratory specimen
identification number (accession number).
(2) The laboratory shall report as negative all
specimens that are negative on the initial test or
negative on the confirmatory test. Only specimens
confirmed positive shall be reported positive for a
specific drug.
(3) The Medical Review Officer may request from
the laboratory and the laboratory shall provide
quantitation of test results. The MRO shall report
whether the test is positive or negative, and may
report the drug(s) for which there was a positive test,
but shall not disclose the quantitation of test results
to the employer. Provided, that the MRO may reveal
the quantitation of a positive test result to the em-
ployer, the employee, or the decisionmaker in a law-
suit, grievance, orother proceeding initiated by or on
behalf of the employee and arising from a verified
positive drug test.
(4) The laboratory may transmit results to the
Medical Review Officer by various electronic means
(for example, teleprinters, facsimile, or computer) in
a manner designed to ensure confidentiality of the
information. Results may not be provided verbally by
telephone. The laboratory and employer must ensure
the security of the data transmission and limit access
to any data transmission, storage, and retrieval sys-
tem.
(5) The laboratory shall send only to the Medical
Review Oflcer the original or a certified true copy of
the drug testing custody and control form (part 2),
which, in the case of a report positive for drug use,
133
t
shall be signed (after the required certification block)
by the individual responsible for day-to-day manage-
ment of the drug testing laboratory or the individual
responsible for attesting to the validity of the test
reports, and attached to which shall be a copy of the
test report.
(6) The laboratory shall provide the employer an
aggregate quarterly statistical summary of urinaly-
sistesting ofthe employer's employees. Laboratories
may provide the report to a consortium provided that
the laboratory provides employer-specific data and
the consortium forwards the employer-specific data
to the respective employers within 14 days of receipt
of the laboratory report. The laboratory shall provide
the report to the employer or consortium not more
than 14 calendar days after the end of the quarter
covered by the summary. Laboratory confirmation
data only shall be included from test results reported
within that quarter. The summary shall contain only
the following information:
(i) Number of specimens received for testing;
(ii) Number of specimens confirmed positive for -
(A) Marijuana metabolite
(B) Cocaine metabolite
(C) Opiates;
(D) Phencyclidine;
(E) Amphetamines;
(iii) Number of specimens for which a test was not
performed.
Quarterly reports shall not contain personal iden-
tifying information or other data from which it is
reasonably likely that information about individuals'
tests can be readily inferred. If necessary, in order to
prevent disclosure of such data, the laboratory shall
not send such a report until data are sufficiently
aggregated to make such an inference unlikely. In
any quarter in which a report is withheld for this
reason, or because no testing was conducted, the
laboratory shall so inform the consortium/employer
in writing.
(7) The laboratory shall make available copies of
all analytical results for employer drug testing pro-
grams when requested by DOT or any DOT agency
with regulatory authority over the employer.
(8) Unless otherwise instructed by the employer in
writing, al] records pertaining to a given urine speci-
men shall be retained by the drug testing laboratory
for a minimum of 2 years.
(h)Long-term storage.Long-term frozen storage (-
20°C or less) ensures that positive urine specimens
will be available for any necessary retest during
administrative or disciplinary proceedings. Drugtest-
ing laboratories shall retain and place in properly
secured long-term frozen storage for a minimum of 1
year all specimens confirmed positive, in their origi-
nal labeled specimen bottles. Within this 1-year pe-
riod, an employer (or other person designated in a
DOT agency regulation) may request the laboratory
to retain the specimen for an additional period of
time, but if no such request is received the laboratory
may discard the specimen after the end of 1 year,
except that the laboratory shall be required to main-
tainany specimens known to be under legal challenge
for an indefinite period.
(i) Retesting specimens. Because some anaZytes
deteriorate or are lost during freezing and/or storage,
quantitation for a retest is not subject to a specific
134
cutoff requirement but must provide data sufficient to
confirm the presence of the drug or metabolite.
(j) Subcontracting. Drug testing laboratories shall
not subcontract and shall perform all work with their
own personnel and equipment. The laboratory must
be capable of performing testing for the five classes of
drugs (marijuana, cocaine, opiates, phencyclidine,
and amphetamines) using the initial immunoassay
and confirmatory GC/MS methods specified in this
part. This paragraph does not prohibit subcontract-
ing of laboratory analysis if specimens are sent di-
rectlyfrom the collection site to the subcontractor. the
subcontractor is a laboratory certified by DHHS as
required in this part, the subcontractor performs all
analysis and provides storage required under this
part, and the subcontractor is responsible to the
employer for compliance with this part and applicable
DOT agency regulations as if it were the prime con-
tractor.
(k) Laboratory facilities. (1) Laboratory facilities
shall comply with applicable provisions of any State
licensing requirements.
(2) Laboratories certified in accordance with DHHS
Guidelines shall have the capability, at the same
laboratory premises, of performing initial and confir-
matory tests for each drug or metabolite for which
service is offered.
(1) Inspections. The Secretary, a DOT agency, any
employer utilizing the laboratory, DHHS or any orga-
nizationperforming laboratory certification on behalf
of DHHS reserves the right to inspect the laboratory
at any time. Employer contracts with laboratories for
drug testing, as well as contracts for collection site
services, shall permit the employer and the DOT
agency of jurisdiction (directly or through an agent) to
conduct unannounced inspections.
(m) Documentation. The drug testing laboratories
shall maintain and make available for at least 2 years
documentation of all aspects of the testing process.
This 2-year period may be extended upon written
notification by a DOT agency or by any employer for
which laboratory services are being provided. The
required documentation shall include personnel files
on all individuals authorized to have access to speci-
mens;chain ofcustody documents; quality assurance/
quality control records; procedure manuals; all test
data (including calibration curves and any calcula-
tions used in determining test results); reports; per-
formance recordsonperformance testing, performance
on certification inspections; and hard copies of com-
puter-generated data. The laboratory shall maintain
documents for any specimen known to be under legal
challenge for an indefinite period.
(n)Additional requirements for certified laborato-
ries.
(1) Procedure manual. Each laboratory shall have
a procedure manual which includes the principles of
each test preparation of reagents, standards and
controls, calibration procedures, derivation of results,
linearity of methods, sensitivity of methods, cutoff
values, mechanisms for reporting results, controls
criteria for unacceptable specimens and results, re-
medial actions to be taken when the test systems are
outside of acceptable limits, reagents and expiration
dates, and references. Copies of all procedures and
dates on which they are in effect shall be maintained
as part of the manual.
3r
(2) Standards and controls. Laboratory standards
shall be prepared with pure drug standards which are
properly labeled as to content and concentration. The
standards shall be labeled with the following dates:
when received; when prepared or opened; when placed
in service; and expiration date.
(3) Instruments and equipment. (i) Volumetric pi-
pettes and measuring devices shall be certified for
accuracy or be checked by gravimetric, colorimetric,
or other verification procedure. Automatic pipettes
and dilutors shall be checked for accuracy and repro-
ducibility before being placed in service and checked
periodically thereafter.
(ii) There shall be written procedures for instru-
ment set-up and normal operation, a schedule for
checking critical operating characteristics for all in-
struments, tolerance limits for acceptable function
checks and instructions for major trouble shooting
and repair. Records shall be available on preventive
maintenance.
(4) Remedial actions. There shall be written proce-
duresfor the actions to be taken when systems are out
of acceptable limits or errors are detected. There shall
be documentation that these procedures are followed
and that all necessary corrective actions are taken.
There shall also be in place systems to verify all stages
of testing and reporting and documentation that these
procedures are followed.
(5) Personnel available to testify at proceedings. A
laboratory shall have qualified personnel available to
testify in an administrative or disciplinary proceed-
ing against an employee when that proceeding is
based on positive urinalysis results reported by the
laboratory.
(6) The laboratory shall not enter into any relation-
ship with an employer's MRO that may be construed
as a potential conflict of interest or derive any finan-
cial benefit by having an employer use a specific
MRO.
§40.31 Quality assurance and quality control.
(a) General. Drug testing laboratories shall have a
quality assurance program which encompasses all
aspects of the testing process including but not lim-
ited tospecimen acquisition, chain of custody security
and reporting of results, initial and confirmatory
testing and validation of analytical procedures. Qual-
ity assurance procedures shall be designed, imple-
mented, and reviewed co monitor the conduct of each
step of the process of testing for drugs.
(b) Laboratory quality control requirements for
initial tests. Each analytical run of specimens to be
screened shall include:
(1) Urine specimens certified to contain no drug;
(2) Urine specimens fortified with known stan-
dards; and
(3) Positive controls with the drug or metabolite at
or near the cutoff level.
In addition, with each batch of samples a suffi-
cientnumber ofstandards shall be included to ensure
and document the linearity of the assay method over
time in the concentration area of the cutoff. After
acceptable values are obtained for the known stan-
dards, those values will be used to calculate sample
_ data. Implementation of procedures to ensure that
carryover does not contaminate the testing of an
individual's specimen shall be documented. A mini-
- mum of 10 percent of all test samples shall be quality
control specimens. Laboratory quality control samples,
prepared from spiked urine samples of determined
concentration shall be included in the run and should
appear as normal samples to laboratory analysts.
One percent of each run, with a minimum of at least
one sample, shall be the laboratory's own quality
control samples.
(c) Laboratory quality control requirements for
confirmation tests. Each analytical run of specimens
to be confirmed shall include:
(1) Urine specimens certified to contain no drug;
(2) Urine specimens fortified with known stan-
dards; and
(3) Positive controls with the drug or metabolite at
or near the cutoff level.
The linearity and precision of the~method shall be
periodically documented. Implementation of proce-
dures to ensure that carryover does not contaminate
the testing of an individual's specimen shall also be
documented.
(d) Employer blind performance test procedures.
(1) Each employer covered by DOT agency drug
testing regulations shall use blind testing quality
control procedures as provided in this paragraph.
(2) Each employer shall submit three blind perfor-
mance test specimens for each 100 employee speci-
mens it submits, up to a maximum of 100 blind
performance test specimens submitted per quarter. A
DOT agency may increase this per quarter maximum
number of samples if doing so is necessary to ensure
adequate quality control of employers or consortiums
with very large numbers of employees.
(3) For employers with 2000 or more covered em-
ployees,approximately 80 percent of the blind perfor-
mance test samples shall be blank (i.e., containing no
drug or otherwise as approved by a DOT agency) and
the remaining samples shall be positive for one or
more drugs per sample in a distribution such that all
the drugs to be tested are included in approximately
equal frequencies of challenge. The positive samples
shall be spiked only with those drugs for which the
employer is testing. This paragraph shall not be
construed to prohibit spiking of other (potentially
interfering) compounds, as technically appropriate,
in order to verify the specificity of a particular assay.
(4) Employers with fewer than 2000 covered em-
ployees may submit blind performance test speci-
mens as provided in paragraph (d)(3) of this section.
Such employers may also submit only blank samples
or may submit two separately labeled portions of a
specimen from the same non-covered employee.
(5) Consortiums shall be responsible for the sub-
mission of blind samples on behalf of their members.
The blind sampling rate shall apply to the total
number of samples submitted by the consortium.
(6) The DOT agency concerned shall investigate, or
shall refer to DHHS for investigation, any unsatisfac-
tory performance testing result and, based on this
investigation, the laboratory shall take action to cor-
rect the cause of the unsatisfactory performance test
result. A record shall be made of the investigative
findings and the corrective action taken by the labo-
ratory, and that record shall be dated and signed by
the individuals responsible for the day-to-day man-
agementand operation of the drug testing laboratory.
Then the DOT agency shall send the document to the
employer as a report of the unsatisfactory perfor-
135
mance testing incident. The DOT agency shall ensure
notification of the finding to DHHS.
(7) Should a false positive error occur on a blind
performance test specimen and the error is deter-
mined to be an administrative error (clerical, sample
mixup, etc.), the employer shall promptly notify the
DOT agency concerned. The DOT agency and the
employer shall require the laboratory to take correc-
tive action to minimize the occurrence of the particu-
larerror inthe future, and, if there is reason to believe
the error could have been systemic, the DOT agency
may also require review and reanalysis of previously
run specimens.
(8) Should a false positive error occur on a blind
performance test specimen and the error is deter-
mined to be a technical or methodological error, the
employer shall instruct the laboratory to submit all
quality control data from the batch of specimens
which included the false positive specimen to the DOT
agency concerned. In addition, the laboratory shall
retest all specimens analyzed positive for that drug or
metabolite from the time of final resolution of the
error back to the time of the last satisfactory perfor-
mance test cycle. This retesting shall be documented
by a statement signed by the individual responsible
for day-to-day management of the laboratory's urine
drug testing. The DOT agency concerned may require
an on-site review of the laboratory which may be
conducted unannounced during any hours of opera-
tion of the laboratory. Based on information provided
by the DOT agency, DHHS has the option of revoking
or suspending the laboratory's certification or recom-
mendingthat no further action be taken if the case is
one of less serious error in which corrective action has
already been taken, thus reasonably assuring that
the error will not occur again.
§40.33 Reporting and review of results.
(a) Medical Review Officer shall review confirmed
positive results. (1) An essential part of the drug
testing program is the final review of confirmed posi-
tive results from the laboratory. A positive test result
does not automatically identify an employee/appli-
cant as having used drugs in violation of a DOT
agency regulation. An individual with a detailed
knowledge of possible alternate medical explanations
is essential to the review of results. This review shall
be performed by the Medical Review Officer (MRO)
prior to the transmission of the results to employer
administrative officials. The MRO review shall in-
clude review of the chain of custody to ensure that it
is complete and sufficient on its face.
(2) The duties of the MRO with respect to negative
results are purely administrative.
(b) Medical Review O~cer-qualifications and re-
sponsibilities. { 1) The Medical Review Officer shall be
a licensed physician with knowledge of substance
abuse disorders and may be an employee of a trans-
portationemployer or aprivate physician retained for
this purpose.
(2) The MRO shall not be an employee of the
laboratory conducting the drug test unless the labora-
tory establishes a clear separation of functions to
prevent any appearance of a conflict of interest, in-
cludingassuring that the MRO has no responsibility
for, and is not supervised by or the supervisor of, any
persons who have responsibility for the drug testing
or quality control operations of the laboratory.
(3) The role of the MRO is to review and interpret
confirmed positive test results obtained through the
employer's testing program. In carrying out this re-
sponsibility, the MRO shall examine alternate medi-
cal explanations for any positive test result. This
action may include conducting a medical interview
and review of the individual's medical history, or
review of any other relevant biomedical factors. The
MRO shall review all medical records made available
by the tested individual when a confirmed positive
test could have resulted from legally prescribed medi-
cation. The MRO shall not, however, consider the
results of urine samples that are not obtained or
processed in accordance with this part.
(c) Positive test result. (1) Prior to making a final
decision to verify a positive test result for an indi-
vidual, the MRO shall give the individual an opportu-
nity to discuss the test result with him or her.
(2) The MRO shall contact the individual directly,
on a confidential basis, to determine whether the
employee wishes to discuss the test result. A staff
person under the MRO's supervision may make the
initial contact, and a medically licensed or certified
staff person may gather information from the em-
ployee. Except as provided in paragraph (cH5) of this
section, the MRO shall talk directly with the em-
ployee before verifying a test as positive.
(3) If, after making all reasonable efforts and
documenting them, the MRO is unable to reach the
individual directly, the MRO shall contact a desig-
nated management official who shall direct the indi-
vidual to contact the MRO as soon as possible. If it
becomes necessary to reach the individual through
the designated management official, the designated
management official shall employ procedures that
ensure, to the maximum extent practicable, the re-
quirementthat the employee contact the MRO is held
in confidence.
(4) If, after making all reasonable efforts, the
designated management ofIcial is unable to contact
the employee, the employer may place the employee
on temporary medically unqualified status or medical
leave.
(5) The MRO may verify a test as positive without
having communicated directly with the employee
about the test in three circumstances:
(i) The employee expressly declines the opportu-
nity to discuss the test;
(ii) The designated employer representative has
successfully made and documented a contact with the
employee and instructed the employee to contact the
MRO (see paragraphs (c)(3) and (4) of this section),
and more than five days have passed since the date
the employee was successfully contacted by the desig-
nated employer representative; or
(iii) Other circumstances provided for in DOT
agency drug testing regulations.
(6) If a test is verified positive under the circum-
stancesspecified inparagraph (c)(5Xii) ofthissection,
the employee may present to the MRO information
documenting that serious illness, injury, or other
circumstances unavoidably prevented the employee
from timely contacting the MRO. The MRO, on the
basis of such information, may reopen the verifica-
tion, allowing the employee to present information
concerning a legitimate explanation for the confirmed
positive test. If the MRO concludes that there is a
legitimate explanation, the MRO declares the test to
be negative.
x
136
(7) Following verification of a positive test result,
the MRO shall, as provided in the employer's policy,
refer the case to the employer's employee assistance
or rehabilitation program, if applicable, to the man-
agement official empowered to recommend or take
administrative action (or the official's designated
agent), or both.
(d) Verification for opiates; review for prescription
medication. Before the MRO verifies a confirmed
positive result for opiates, he or she shall determine
that there is clinical evidence-in addition to the urine
test-of unauthorized use of any opium, opiate, or
opium derivative (e.g., morphine/codeine). (This re-
quirement does not apply if the employer's GC/MS
confirmation testing for opiates confirms the pres-
ence of 6-monoacetylmorphine.)
(e) In a situation in which the employer has used
the single sample method of collection, the MRO shall
notify each employee who has a confirmed positive
test that the employee has 72 hours in which to
request a reanalysis of the original specimen, if the
test is verified positive. If requested to do so by the
employee within 72 hours of the employee's having
been informed of a verified positive test, the Medical
Review Oflicer shall direct, in writing, a reanalysis of
the original sample. The MRO may also direct, in
writing, such a reanalysis if the MRO questions the
accuracy or validity of any test result. Only the MRO
may authorize such a reanalysis, and such a reanaly-
sis may take place only at laboratories certified by
DHHS. If the reanalysis fails to reconfirm the pres-
ence of the drug or drug metabolite, the MRO shall
cancel the test and report the cancellation and the
reasons for it to the DOT, the employer and the
employee.
(f) In situations in which the employer uses the
split sample method of collection, the MRO shall
notify each employee who has a confirmed positive
test that the employee has 72 hours in which to
request a test of the split specimen, if the test is
verified as positive. If the employee requests an
analysis of the split specimen within 72 hours of
having been informed of a verified positive test, the
MRO shall direct, in writing, the laboratory to provide
the split specimen to another DHHS-certified labora-
toryfor analysis. If the analysis of the split specimen
fails to reconfirm the presence of the drug(s) or drug
metabolite(s) found in the primary specimen, or if the
split specimen is unavailable, inadequate for testing
or untestable, the MRO shall cancel the test and
report cancellation and the reasons for it to the DOT,
the employer, and the employee.
(g) If an employee has not contacted the MRO
within 72 hours, as provided in paragraphs (e) and (f)
of this section, the employee may present to the MRO
information documenting that serious illness, injury,
inability to contact the MRO, lack of actual notice of
the verified positive test, or other circumstances un-
avoidably prevented the employee from timely con-
tactingthe MRO. If the MRO concludes that there is
a legitimate explanation for the employee's failure to
contact the MRO within 72 hours, the MRO shall
direct that the reanalysis of the primary specimen or
analysis of the split specimen, as applicable, be per-
formed.
(h) When the employer uses the split sample method
of collection, the employee is not authorized to request
a reanalysis of the primary specimen as provided in
paragraph (e) of this section.
(i) Disclosureof information. Except as provided in
this paragraph, the MRO shall not disclose to any
third party medical information provided by the indi-
vidual to the MRO as a part of the testing verification
process.
(1) The MRO may disclose such information to the
employer, a DOT agency or other Federal safety
agency, or a physician responsible for determining
the medical qualification of the employee under an
applicable DOT agency regulation, as applicable, only
if -
(i) an applicable DOT regulation permits or re-
quires such disclosure;
(ii) in the MRO's reasonable medical judgment, the
information could result in the employee being deter-
mined to be medically unqualified under an appli-
cable DOT agency rule; or
(iii) in the MRO's reasonable medical judgment, in
a situation in which there is no DOT agency rule
establishing physical qualification standards appli-
cable to the employee, the information indicates that
continued performance by the employee or his or her
safety-sensitive function could pose a significant safety
risk.
(2) Before obtaining medical information from the
employee as part of the verification process, the MRO
shall inform the employee that information may be
disclosed to third parties as provided in this para-
graph and the identity of any parties to whom infor-
mation may be disclosed.
§40.35 Protection of employee records.
Employer contracts with laboratories shall re-
quire that the laboratory maintain employee test
records in confidence, as provided in DOT agency
regulations. The contracts shall provide that the
laboratory shall disclose information related to a
positive drug test of an individual to the individual,
the employer, or the decisionmaker in a lawsuit,
grievance, or other proceeding initiated by or on
behalf of the individual and arising from a certified
positive drug test.
§40.37 Individual access to test and labora-
tory certification results.
Any employee who is the subject of a drug test
conducted under this part shall, upon written re-
quest,have access to any records relating to his or her
drug test and any records relating to the results of any
relevant certification, review, orrevocation-of-certifi-
cation proceedings.
§40.39 Use of DHHS -Certified Laboratories.
Employers subject to this part shall use only labo-
ratoriescertified under the °DHHS Mandatory Guide-
linesfor Federal Workplace Drug Testing Programs,"
53 FR 11970, Apri111,1988, and subsequent amend-
ments thereto.
Appendix A to Part 40 -Federal Drug Testing
Custody and Control Form
137
138
FEDERAL DRUG.TESTING CUSTODY AND CONTROL FORM
~. t
svEU-rENwNO 0000000 A t~Aeora-opr.ccESS~o+~No
- sTEr ~: To eE coMPLETED sr COLLECTOR OR EMPLOrER REPRESEPITATtVE
A. EmDIDTSr Name. Address and I.O. No. B. MRO Name and Addreu
C. Donor SSN a Employe I.D. No.
O. Reason to Test: p PreemWopmeM ^ Rendan ^ Reasonebls Swp~cArVCauae ^ Pos1 AtaoeM
O Return to Duty ^ FouoMwp ^ OtAer (:petity)
E. Tests to De Psrlormed ^ THC, Cocaine. PCP. OpMes and ArtlpMtarrlMtea
^ Only TFiC and Coains ^ OTHER f~ilYl
- STEP 2: TO BE COMPLETED Br COIlECTOR • alure rtwret Da read wi1M- • mMwtes of ebaaetan.
Spacinwrl IwnpeTMrwe wNhn rartpe: ^ Yes. ti0' • 1G0'FB2' • 9!•C ^ No, Retort epeclrnan tertlparatwe Hera
- STS x TO BE OO~iLE'TED OY OOLLbCTOR AID DONOR • C.oeetlor aNblei ItoaM eeaMi) b DDtt1Ns). CoeacTar drss iseys) Donor Yitials seal(s1
- tTta ~: TO !E COIIPLETFD !r DONOR • Go to copy ~ fP~ Pte): STEP 1
- STEP f: TO sE COMPLETED BY_1bLLECTOR
OOLLECTION STTE LOCATION: SRlT SPEGMEN
lJOLLECTKIN
f
K,,,ry ~ No. O rES O ND
REMARKS: ~w T.o -
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DONOR • NO SIGNATURE ~~ -----_- _ _ --
--------------------
Nt.M PROVIpE SPEpMEN
FOR TESTING
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drrlan Bottle SaaYil kaaeL' YES NO.
ExDWn in Remarks Bebw
THE RESULTS f%di T/IE AeDVE gENT~RED 7/ECrEN ARE W ACCORDANCE MIRN THE AMIK.AaIE IrRTUt TEST AND GONFMWAT011v TEST GUTOFf
1tYElE ESTABll4NED e'r 7?IE NN61uhOr7i?NNr GIADELMfS fQR fEAFRK 1N01efPLACf QRNT' TESTarO IVY
p NEwTryE ^ roSrnvE. ~ mr Nrpw~r.S ^ uNNASeIODS r c.~eon-TNC p oocAwE rETASartES . s..~e~rw. ^ vNENCrwaNE
D or+uTES: D AIi/ETAtr4a:
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pnryn Ar Ar+~ pMirMO.OrI~ n~OG Arn0r0 ~M arWV W M1 ~LaCMp wT M~OKtlr F~r/l1 hp~MwN~i. MO IM 1M N~..Y M b~ M' b M/I lpr/c/n~n. .
/IVril CwY~ ]ann.w ~ rw if.w w i.rl SPr+~ a G.v~.q icv+r Dw. rs • Oq. rr l
tTEP t: TO SE C011PLETED er THE MEDICAL REVIEW OFFICER
1 MN ~11ww0 M/ rOd~lor) /~SYr b M11 rKI~N.^ dMNAMOOr Mr knT n KYfOMMri wN ~KaOir fgweiwWm+~mr Mf wr.~ruwr~tna:a.an r:
D ~~ D I'r.M ^ Trl NA PYb~rO D TM GrprO
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COPY 1 - ORIGMJAL -MUST ACCOMPANY SPECIMEN TO LABORATORY
SPECIMEN
BOTTLE
SEALS
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139
F,pet~ratc H,ductbn nct Notjca ~.. r.qule,d ey a CFR 1320.2>>
PubMC rsportlng fwrWn for tNa collatbrt d Mformatbn. krduding the tirtM for reviewkq knlrudlorr, Oat~t^0 ~ maintairhq MM data nsedsd, and roTplstirq and
reviawirq tM WMaefbn d hdormatiort b satknatsd for each respardsrK to awrags: 5 mlrwAMldorgr; 4 minutssfoobetor; S rUMpreaaJlatanlory: and 3 mfn-
tAeall~lsdtcal Review OMksr. Federal smpbyest may serW eonvrorrts rprdinp Mrste butdsn ssNmstes, a any oM»r aapeu d.Mtb aoYaetbn d Information.
lmcfudk+g auggestlons for redudng tM burden. to PubYc lMalth Ssrvlos RepoRa Cbarancs Officer, ACn: PRA, Nubsrt }~ }~plwry BulidYt¢ Rra T2t$ 200
tndspendsrxs Aw. S.W.. Washhigta+, O.C..Z0201. Individuals Irae the pbile senor msy send b Di~psvYrwn! M irtanporlatlon, Orop
EnforanNnt and Prog-am Compiiarxe. Rm 9404. 100 Seventh Sl. S.W..1Maatdngton, O.C. 20590. M addition, tpplse.of !p maybe asrt.toa
Office d Management and 9udOst, Paperwork Reduction Project, Rm 3001, T25 Seventeenth St. N.W.. Washhptori, D.C. 1!0503.
Buck of Copy 1, 2, 3, 4, and 6.
t
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140
FECE)aAL DRUG TESTING CUSTODY AND CONtROL FOpM
SPECIMEM i0 N0. ~/180itATOgr ACCESSION NO.
STEP 1: TO BE COMIoLE'TED 8Y COLiECTOR OR EMPLOYER REPRESENTATIVE
A. Employer Name, Address and I.D. No. 8. MRO Name and Address
C. Qtxsor SSN a EmWoyes 1.0. No.
D. Roason for Test: ^ Pra-employment ^ Random ^ Reasonable SuspicioNCause ^ Paet AocideM
O Return to Duty O Fdlow~up O Ottlsr (specify)
t.
E. Tests b be PeAormed: O THC. Cocaine, PCP, Opiates and Amphetamines
^ Only THC and Cocak~s O OTHER (specify)
~+ STEP 2: TO 8E COMPLETED BY COLLECTOR - stars moat bs read withir- 4 minulee d cotleclion.
Spec~+rler- Nrnpsratws within -arlgs: O Ys1a,90' • 100'FKi2' - 38'C O No,•Recad spscin~en tempe-aturs hers
Std ~ TO ltE COLLET®811 OOItFCTCR Ate DONOR -~CaMecta albies bottle seat(s) to Datlets). CaNec~a dabs seal(s~ Donor utieels seal(s)
STEP {: TO 8E COMPLETED 8Y DONOR - Go to copy 4 (pink page); STEP.{
tiTEP S: TO sE COMPLETED 8Y COLLECTOR __
cszL.cT1oN sITE t.OCATrON: srln
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~hty s O rE5 ONO
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REMARKS:
r nr nt~ ~vuiwM aMr;Fw e» yrr A>m~ . ni. pin pwwwe ana e>r senor o~+~q rr ambarian M ca~vri• a Ins ~. rrt +r ewe rr a~n» so.WnM
ll{III10iN Y Mrf Mf bile /eoYO~ Md WN I AM Owl CONKI~ MO 1MYd Y h .Mll ~iCaON fwtlM.~.,l /.pn/MjMIM/
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AND
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DONOR -NO SIGNATURE ~ ------------
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FOR TESTING
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afvEU EsrAS~ISNEn sr T11E NN8 ,wwrwronr nt~wiE~elwas FCA iEDEAAt NIOiM(ALACE OwtKi >f87svli PNOfiRAYS
O NEBATrVE O vosnrvE. Ior a,. lollowinp: 0~~ a c.eon-T-~c O coc~ur+E ~rsearrES r aM~ori.oao~+M O rNENCrcuaNE
TT~~ ~pT Oo~ATES: O AMnNETArwarES:
O'iERfOitMEO peoat~ ^~~~ ^OTHEFI
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REMARKS
TEST 1Aa (N dieMMN horn Reoro) t---~~--
I iwMq~ EROf JM.1/octrMn /OMItlM/ Oy Mo~YOa~rorY r~~+oodOn nwnelr M Mit Aownr Yq Wont NW DNr~ MN fraww idonlNlpNbn nwrMor aN.krM tla~,AM OM
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STEP ~: TO BE COMPLETEv OT 1nC aevn.w~ r+c.~c~ vrr,a.cn
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2 - 2nd ORIGINAL -MUST ACCOMPANY SPECIMEN TO L/180RATORY
wo.
141
FEDERAL DRUG TESTING CUSTODY AND CONTROL FOAM
SPECIMEN i0 MO.
STEP 1: TO 8E COMPLETED 8Y COLLEI
i A. Emolover Name. Address and 1.0. No.
OR EMPLOYER
-8 u1eoRATORr AocessloN b.
C. Donor SSN or Emplo~se I.D. No.
0. Reason for Test: L,l Pre-e~Iployns•rR ^ Ra~bw1 a flaeronabN SlwpicioruC'.wM ^ Pat J1ocId~R
^ Retum to Duty a FoUOw++p ^ Other (specify)
I
E. Tests to tae Pertomled: ^ THC, Cocaine, PCP, Opiates aad 1MIpAsttirtliaee
^ Only 7JiC aad Coce>Ine ^ OTHER (sgeetfy)
STEP Z: TO BE COMPLETED BY C0.ttflCT>aR - +rKae ra rsea entnn s TlttAtllae A NeAeCNen.
Spedmen teaaperatarw wltbiR ean9e: Q VN. 90• - 100'Pi72' - ~8•C ^ No, flucold tpeeilnsn leaaperetuA here
STEP 3: TO BE OOM<'I.ET® B'Y COLLEt.'7d1 AIOOOMDR -Cotledsr eiBlsebore aeyqaQtrallepl).Oelederatrressa~. Osnort+Mifors ses#q
STEP ~: TO BE COMPLETED BY DONOR • Go to copy 4 (pink page): STEP ~
STEP S: TO BE COMPLETED BY COLLECTOR
COLlECT10N !~ LOCATION: t ~E"•
( )
wn rtciMy «+ n VFS ONO
~ -~-
REMARKS:
~rny rnt rM ~Irwawiw./w1UIf~I aw wlr k~l v 1M ~c**~'w~wllA a ww w. tllrr pw.tiy M sntrwo~ w+CLM ~ d AY +ww. M • hr~ or aw rl.r.Iw.
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-fie"
sTEa a~ To BE INITIATED BY THE COLLECTOR MO OOMPLET6D AS NECESSARY l1EIEAP1tH1
r+o °AO„'; M BPECINIEIV AEIEASED BY SPECIMEN RECENED BY Pl1RPi06E Q~f C7~~AWGE
DONOR • f+10 SKiNATURE ~~
-------------------------------
N,,,,~ PfiOtflOE SPECI~+tEN
FOR TESTING
Sgrulw~
--------------------------------
Nartw
-------------------------------
N~
Sgnewet
--------------------------------
Narro SprlMUn
-------------------------------
N+~1e
res z ~n e s~.lw.
--------------------------------
N~me
c rVtr~ srtn t1Y TYF ~ 1Bf1R>T[]OY . few sw~wl.
-------------------------------
w^»
ciwwn B,ofAR Sttrlsl IrM~tl~ YES NO_
ll~'1 M Mkt $tlnl/.
GLMOELrNES FOR FEDERAL Wbr#KPL,tCE DRUG TESTrNG PR061MMti'
^ RECONFIRMED br IM 1eMOwMq' fl uwl+rlalNOns.. ane.r-T~+c fl ooc,uNE +eErAw>IartES . ~.op.lw O v~ICraaowE
^ FMIED TO tECONFIRM ^ OPIATES: ^ ALIPMETAMINES:
^ TEST NOT PEliFdRMEO ^ oo0sme ^ an101M1arIrM ^ OTNER
0.11.,. ^ III.II~Y11pIUb~.11.
REMARKS
TEST Lae (d aw.a «.,1 .w.•l c I
~.mn n+rr m. ~p+r.*w++ d~Iwlllled er «. rsaw«r .co.o,~ nrne.. «1 «~. ~1. N....1. .w secs a1. ~v.~lw+ru.tra.a/ wul....n t.w a..t tr M.
r;~.~~ nas on.r ~iu,n.ue.w.l..c.~er. n.rlmw «1o.11.yrle ~.cnw.i.~w.wN,..rnr.r'F.e~war "n.i.~.eNwr...na ww f-. i..», wr+Mn..Ar«yr,..o.ww.
/ /
Ivtws7GrldMnVSe~N'swwlFwwux Wu »~MCwMPg6orroq Or1lb~wr~~7
r ne.Y ~IVMMOlM 40orafory !MI/rS ~f/ 1hI ~i1~n 1d~MA01y Ilq k+nw M /Cp1~wA w#11 ~pMGOM fi/KM wMM~wMS. Mr it'
^ pecpnMmW ^ FnMO 10 ntonWm- ^ T~fl nal pN10/nM0
ea11 ~ e.~c.Ira eonl Iwls e.K...a AGM~AKS .
COPY 3 -SPLIT SPECIMEN MUST ACCOMPANY SPLIT SPECIMBJ TOlA60RATORY
1
14Z
FEDERAL DRUG TESTING CUSTODY AND CONTROL FORM
SPECIMEN ID NO. LABORATORY ACCESSION NO.
STEP 1: TO BE COMPLETED BY COLLECTOR OR EMPLOYER REPRESENTATIVE
A. EmoloYer Name, Address and I.D. No. 8. MRO Name and Address
6
.,
C. Donor SSN or Emplo ee I.D. No.
D. Reason for Test: ~ Pre~rttployment ^ Random ^ Reasonable SuspicioNCatne
^ Aeturn to Duty ^ Follow-up ^ Other (specify) _
E. Tests to be Performed: ^ THC, Cocaine, PCR,. Opiates and Amphetamines
^ Only THC.and Cocaine ^ OTHER (:petty)
STEP 2: TO 8E <)O#APLfTfti 8Y Ot)L.LECTOR - S 'men tern akxe tntrst be read within 4 minutes of collection.
Specimen temperature within range: ^ Yes, 90° - 100°Fi3'Le - 3l3°C ^ No, Record specimen temperature here
STEP 3: TO BECOfti1Pt~T~ 8Y COLLECTOR AND DONOR -Collector affixes bottle eeaKs) to bottle(s). Collector dates deal(s). Donor+Ritiale eeat(a).
- STEP 4: SEE BELOW
STEP 5: TO 8E COMPLETED BY COLLECTOR- RETURN TO COPY i _
OLLECT~ON SITE LOCATION: SRIrt SPEGtaEal
( ) CAL.L£CnON
acnon acduy tors :mess none No. ~ vE3 ONO
Adorns ey ua ~o-
REMARKS:
1 oamy rAU.tM apacr^tla aflwlMietl~on Jfre form r IAe ata+crrwr Presanratl w me Ay uIe dcrcior praaebng rrie nrrucaran on Cgoy a o/ rna form. rna/ R rxtlrs ure aaasr aplcanevi
denldiurgn.warrDer ee 1aI1 aw esera IDen~, antl a+af a Ass Men aaaacrsd 1be11etl Intl MIb01e n atlaortlarsoe aaCr agprrsDAr Fetlerar reprreamerus.
AM
PM
r 1 si. ,lad ue w 1 0. ev c T
STEP 6~ TA ~ INITIATED ~Y T#iE COLLECTOR AND COMPLETED AS NECESSARY TNEREAFiEA
°ATE
-a. orw va. SP£CMItEN REt£ASED BY SPECMAEN flECE-IVEt) 8Y PURPOSE OF CHANGE
DONOA-NO SIGNATURE Spnnwe
-------------------------------
PROVIOESPECIMEN
Name FOR TESTING
Sgnatwe
-------------------------------- 59^aTUm
-------------------------------
Nartfe Name
Sgnatwa
---------------'----------- Sgrunwe
-------------------------------
Name Home
Sgnature
-------------------------------- Sgnature
-------------------------------
Name Name
STEP 4: TO ~E [7clNlf'Ltity tl7 T.7(!r'fliM
Daytona Pnoris N0. 1 I Ewnag Pnorr No ( 1 Gate d Bute /
110. !hy Yr.
f OerMy Mar I Orovde0 my urea specenan ro rM rosscYOr. Ina? I Mw not atluaeraletl a M any manner 111N still SIaC/M/I Dome rafltl was taaUd arlA • rlrrpM~ntlMq
sad/ n my pfMaOa antl 1tNf iris lsaorrlsuon pwrtlatl on Mis Avm antl on fnI leaal Irluetl b Mte speoeirea 001r4 r oansR.
X ~ ~
(PRIhFT).Owror's Marw~IFesI. MI. Last) Sgluwe W DOOw Datt W0. Iday / YrI
Should the results d the labuetory tests to the specimen idenhtied by tfxs form De confirmed positive, the Medical Review Officer will contact you to
ask aboN pestTiptions and over~he{comer medicaUOns you msy Mve taken. Thenfon, yw rtay worn to make a liar d lfwse metlintions as a
•'rtsemory Joyner " TF1fS L15T tS NOT NECESSARY. h you choose to make a Est, do ao alMlar on a aaparate piece of paper tx on the track d yotA Dopy
(Copy 5).-DO tY(Tf LIST C+IV THE BACK OF ANY OTHER COPY OF THE FORM. TAtCf L`OPY i WRM YW.
£TEP e: TO $E COMPLETf{18Y THE MEDICAL flEVfEW OFfICER
I low /ewa.ad IM~11aeMraJy nelWer Ja IIY aaacrwen WerYIMtl Of' Iles form n awosrtlaace rMn aPDUnOie FIM/MAprwerllan[{ ~ tlalarmiMUarWan4/fjlpn M'
^ NaOalre ^ Posnne ~ Ten Not Pa/10rniatl ^ Test CangiNtl
REMARKS
(PRIM) ues~or tMwe. OatJrf nerve lirsi. Y1. LYU S~errir• a su°cr' w... Once. o,,. i-re , ar ~ rrr
COPY 1=SEND OfRECTLY TO MEDICAL REVIEW OFFICEfl - 00 NOT St=1tn Tn f ~ancaTrlnv
143
^ Post Accident
FEDERAL DRUG TESTING CUSTODY AND CONTROL FORM
SPECIMEN IO NO lJ1l)ORf1TORY ACCESSKMi NO
P t: TO BE COMPLETED 8Y COLLECTOR OR EMPLOYER REPRESENTATIVE
Employer Name, Address and I.D. No. B. MRO Name and Address
C. Donor SSN or Empbyee 1.D. No.
D. Reason for Test: L] Preemployment ^ Rat-dam ^ Reasonable SuspicioNCause ^ Post Aoadent
^ Retum to Duty ^ FoUoMwp D Other (specify)
E. Tests to be Perlom-ed: ^THC, Cocaine, PCP, Opiates a4td Amphetamines
p Only THC and Cocaine ^ OTHER (speciry)
STEP 2: TO 8E COMPLETED 8Y COLLECTOR • irnen tem rature must be read within 4 minutes of collection.
Specimen temperature within range: p Yes, 90• - 100°F1'JL - 3t3°C Q No, Record specimen temperature here
STEP ~: TO 8E COMPLETED BY COLLECTOR AND DONOR -Collector affilaes bottle seal(s) to bottle(sY CoNeaor dates seal(s). Donor irtittals sect(s).
STEP ~: SEE BELOW
STEP 5: TO BE COMPLETED 8T COLLECTOR - ht 1 unn I v curt T
COLLECTION SRE LOCATION: SPLtT SPECIMEN
( ) COLLECTION
ton atd~ry a s ness _ OYES ONO
ess rY '~- ~
REMARKS:
I eerAy rAef IM spscml•n i0enblf•0 on Mfs form fs fAe s0•tfrnrr pnserlfed ro rrle flee donor pohonq fM aArAtatfar on CAe/' r W /Ail ibrre, MN r hers M• ssrne >1DeiorfNn
~eflf/AC°GWI MIAIOer d MI! aef JOrtA abOre, arr0 Mel r Aas OeeA COdICC1e0, efld s•ehd u n acrorl?erln nrfA QoP~M Fidegl HpyrMINNS. p~~M1
~ ( ••1. i. lJgl ,•• • s, r 1 T.w
eTS:e e. 7n •ae wr7reTCn CV TWF CAI 1 CCTAO •IJn [rrYDl CTFn 1S YFCFSC~oV TYF6ZC~RTFO
a'E SPECIMEN RELEASED BY SPECIMEN RECEIVED BY PURPOSE OF CHANGE
I„p
vR
DONOR - NO SIGNATURE ~ _
------------------------------ PROVIDE SPECIMEN
wme FOR TESTING
Sgnatw•
-------------------------------- Sgnatwe
-------------------------------
NaAle Name
Spnarwe
------ ------------------------- Slgnalwe
-------------------------------
Name Name
$gnalure
________________________________ SrQAeIYf!
_______________________________
Nerne Name
STEP 4: TO 8E COMPLETED 87 DONOR
Oeytima Phone No ( ) Evemnq Phone No ( ) Dete of emn /
MO OW Yr
I CYRfIy Muf f Of'o•'fded my IInf11 spsrxnen ro fAe COIfeCYOr: MII ! A°M ndf sdueMrled r m fY1y menllN.' MIf eetA sPro•n•A ppeN used was sealed eiUl 1 ynper~rWM
sNl M my tJnrnlcv IAd IMf fAS mIO/Tefpll p/OVptd On Ells loan MO OA dfs fr0•I rlh+b ro IeCA ip•Crmen OOrfM R CDrreCY
X ~ ~
(PRINT) Donor's Name IFirsl. M1. lasq Spnatwe d Dona Dste (MO I Dey / Yr.)
Snovb tM resuRS of the laboratory tests for the speamen IdentHleO by this loan be confimled positive, the Medical Revielr Ollicw wiN contact you to
ask spout prescriptions and over•thecounter medications you may have taken Therelore, you may want to make a list of tllote medications as a
"memory pgger "THIS UST IS NOT NECESSARY II you choose to make a Ust. do so either on a separate piece of paper W on tM back of yow copy
(Copy 5) -D0 NOT LIST ON THE BACK OF ANY OTHER COPY OF THE FORM TAKE COPY 5 WRH VOD
STEP e: TO BE COMPLETED 8Y THE MEDICAL FitYlEw VttIGtM
I Aare revr•wM fAe aifwalory resuns /a fM tpKrmM fwnnAW Dy tMS /arrn fn eccoroanoe wIA eppeceD+• Federrl repufrements. Ah' OMarmrletforN~nAcafpn a:
^ NepatM ^ Poemve ^ Te•1 Not Pertomr0 ^ Teat Ceneew0
REMARKS
IPRINTI Y•atJ1 M+•. Olhtwc fYm• IFraf. Y1. l,••11 6gn•IVn ar M•oKM M•r,w, OA¢ef ~ Drw IM• I Oey / rr) _
COPY 5 - GIVE TO DONOR DO NOT SEND TO LABORATORY
144
~+
C
Prlvec7 Act Sttriement: (For Federal Empbyeee Only)
Subm,ssion o1 the tMormatrort on tho attactwd form is vr>tuntary HowevM hxompbto submission of the inlamatbn, reli,sal to govido a urine spaCin,en nr
subslituuort or edutler;tlron of a specimen may resud in delay or donut of your appttcatlon ra ampbymenUappdntntent array rasuM to removal Iron Ilte fodorat
aervtce a other dtsapllnary action.
The authority br oblairdag the wrie apecMne^ and duntilyn,g intamalgn contaNKd herein ~ E~ecutiw Order t250A ('Oru¢Frse firdsrN Workplace"J, 5
U S C 4 330 t 12), S U S. C § 7301 and $eclipn 503 nl Puttllc Law t 00•T1, S U S.C. j ~ rtaea tYndar ~ssrtalore d l~tsouriue Order tL9Yr aad 5 iU 8 ~ T901, i)aeA
rosulls may per Da dlaobMd 1o agnnoy tMiCleb tfn D neod to-l:rtow basil. TAb ary Irlduds the agonCy Madica! Revkrw OMtcar. Nia adaMalatlretta d >Mta E+nDbyia
Asalatartce Program. and a twparviaor whh wlhglly to take adverse peraorw+N aetbn. 7'rtM Inlormatton may also De dtatlopd b a eourl wMra naaMary b dNMd
agalnat a chalNnpa Io iYl advarM pilraonnN atllon.
Subrrila~bn of yow SSN 4 nil requksd by Iaw and b vduntary. Your -NwN b Itxnlah your nwnbar wW not rowtl fn IM dartlal d any right, bartNll, a
glvaega gavldeA by law. Vq,r SSN h aoNCNod, praiMM Io Executwe Order 9397. for purpoaoa d aaoodalhiq ktlorrnatton In agency lilos ralaling b you and kx
purposes of ldonlilying trta s{wtr:Mien provided lpr wir,Nysia testing ter ipagal drugs M you robes 10 iMKale yow SSN. a subslNule number or dher idonhlier wrM tx:
aaalpned s required b gocosa the apechnen ' •
M Itr; ovcr,l hba story anaFyigri edrmine,lhe Dr~'!'r'o r!1 Mte a Wipe rat'galdrircJ3 •rt me stattw+wn irou~owde ,y.w :ttN ~w~rrnacted Dy an +!l'o^r.Y Mcdtat
Review Onteer (MRO) T-r: MRO wrM dglgemtnewlwiNwr.trwieJa •degrl:rrtalewrsdreMO^planat:on Inrer+e drugtst•igenlgicdby wKreMs~t
1.
Paperwork Reduction Act Notice (ae required by 5 CFR t320.?'t~
r`rrMt' ,~t..,N,~ bUNlr!,, hp Drs t~dr.;nrwrn nr wamr,.-rir,r, wr l„d:ng Ilu! WNU Tur rovWwng rwRhrrChfMrS gan,er•ny a~M narnM+nN,r) Ilrr daLi rtrerlatl ar:d
(;.)ny•t!.,~r Nf ,»•rl •"vRwr,lt'N1- r+11'POlKin lA ~rQNMt!a1t1M rt LSlN11pM'i1 ~Itr 8adl M.yiaq~aal dp rararll~ 3nrMrYMOa~ADwM a wwrtM~GrvtYaClor 8!rrtipirtt~raarv .an/
3 rh.nrn^ ;: Rw:,a~fl •~kwewr •04wrn TaMnnrt wn,pk-ynes+rwy se+trt rern+rrwrlS ~Cf/Mdirlg abase bwrrMw.r!srtnutl~ ~ any adra D>tpnr'1 d this t:ntlaalion d aatorotariow
r. v'hwlw.ft ^.IM7rtYI'rM~S iyr rpdutrM r~ Lrwrhrr !n i~rAA+' }M7NIh ~4rvbe l,loaasrK+~ OH~^r Mtn t~TA II,Rfp1 N FMnyplnry Tlwldrng. Tara YJi 8 ZQO
hrd•. tr:^, 1~ •v! *r,• •c 1C' wta~%rr+dM D~C 1U2D1 Jw1•~.duals a.rrr 1wt i0riraV araW Mtiy ~wrtil oowa~ronc Vn i~uwar+nnwa nil inawryarlAw. ti~r9
f ••rn:~r•n^•'t 'Mr5li.tr:r•n~G.»r.l'N'»h,r ~Ru• a1PA tf)<} Sr•irrw,lh S! S 1V ~VnstwKilnn nS; ?MNrI ~Yr aAdrlm rptnes ol•:ra rrM:x!rMWeggr:elMni~ar~r.ri!7/Mb
Clt.~r rN M.ir.nn^w,nrri :!rM~BuAU~t J'at+'.'•wnr+ RMuctwr, r`•np!n Itm 3001, 725 $evuntcw+-hSI e11M irYs!ihrmiyt flC 29508
Back of Copy 5.
145
FEDERAL DRUG TESTING CUSTODY AND CONTROL FORM
SPECIMEN ID NO,
utTORAroRr AccESStoN No.
.71 tY l: I V OC ~.VMr'LC 1 CY 4T bVLLCb I Vn 7A GIW PLV TCR nCr'rIC.7C141 A I IYC
A. Employer Name, Address and I.D. No. B. MRO Name and Address
C. Donor SSN or Emplo ee I.D. No. I >
0. Reason for Test: ~ Pre-employment ^ Random ^ Reasonable Suspicion/Cause ^ Post Accident
^ Return to Duty ^ Folbw•up ^ Other (specity)
E. Tests to be Pbrforrned: ^THC, Cocaine, PCP, Opiates and Amphetamines
^ Only THC and Cocaine ^ OTHER (specity)
STEP 2: TO Bfi COMPLETED BY COLLECTOR • Specimen temperature must be read within 4 minutes pf mllraetinh.
Specimen temperature within range: ^ Yes, 90° - 100°FJ32° - 38°C ^ No. Record specimen temperature here
STEP 3: TO BE COMPLETED BY COLLECTOR ANO DONOR -Collector affixes blxtle seal(s) ro bottle(s). Cdlecror dates seal(s). Otxta irtitials seal(s).
STEP 4: SEE BELOW
s t tr a: I V tlt cvanrL.c 1 to CT ~.VLLC~.I Vn - nc I unn r v wrT 1
COLLECTION SITE LOCATION:
SPLIT SPECIMEN
( ) COLLECTION
IKrnon acinry a's usnass none No I ~ yES ~ ~
Artdreas ity tale
REMARKS:
r o.my mar ms spacmtsrt e.nnnw at ma lam a me specrman peasnratl ro me M fM dons PrVrdrrg m. nrrnncarton al covT' a or fMf Arm. Mur tr owa me same specarlan.
,dMfrh.4fgn MrnbM as mar saf roan 10°va. Intl Ifl/f n lraa Oaen oosacrstl. 4pNNtl antl swhtl as In accordarwa tens ItppacaoN FetlarN /apWNMnra.
PM
s me nr. t. q run « u r W cl 'T.w
c7cla c• 7n nF IMtT1eTFn RY TMF rtAl 1 FCTAR •Nr1 CAYPI FTFn AC NFCFSCARV TMFRFaFTFR
fro o~v rF SPECIMEN RELEASED 8Y SPECIMEN RECEIVED BY PURPOSE OF CHANGE
DONOR-NO SIGNATURE ~nat`"a _ _ _ _ _ _ _ _ _ _
--------------------- PROVIDE SPECIMEN
N„p,a FOR TESTING
Spnawro Sgnaturo
Name Name
Sgnaturs SgMturs
Name Name
Stgnaturo
-------------------------------- Sgnature
-------------------------------
Nama Nana
STtP 4: TU tlt GUMYLtItU tlTB8OOWpOOOpOO881VOpOpOOVM OOOpO~BO
Dayume Phone No u~OfZRO~~ Eren,ng PMne No YY4 ~ Date a1 &rtn
Mo. pay rr
r cM~ rMf I pprptlatl my urine arxc,men ro fns cdleefa. mar / parr n°r atlurrefareo n m any mannar,~ mat oats s0etrrrrarr ttotNa uaad ta7a aaarM rtnM a tamPer~ntlartr
sear m my pesartoa antl Mar me mlamaMn prpvrdetl on tMS rorrtt antl on fne rarer aNtarW ro NM specxrwrt OonAT a corrot:Y
(PRINT) Oona'a Name (Prat, M1. Laa1) Stgnaturo o1 Dona Drlta (MO 1 Day I Yr )
Snouts me results of the Laboratory tests fa the specimen identified by Mrs lorm be confirmed posrtne, the Medical Revtew OHicsr wiN contact you to
ask about prescnptlons and over•tttetounter medications you may have taken Therolue, you may want to make a IrSt M those mWications as a
'memory pggar "THIS LIST IS NOT NECESSARY 11 you choose to make a list, do so either on a separate piece of paper or on the back M your copy
(Copy 5).-00 NOT UST ON THE BACK OF ANY OTHER COPY OF THE FORM TAKE COPY 5 WITH YOU.
STEP e: TO BE'COMPLETED BY THE MEDICAL REVIEW OFFICER
I nave nrvsrretl fIM IaDaafay refurfs /a fne soac~men genfrM1etl Dy Ma rpm m acrndann rrrtn appl,Cade FaWrL ropwrtrrtsrrra My tlarNntrrtaforWlnnGarr°n a.
^ Naganva ^ Pprtne ^ Tast Na PeAOrmad ^ Tyt CancaltW
REMARKS
rPatNTt Wa~ral Ww. Otncws Mrne Icnn M~ laerl Sgwwe « taa°,ear Rarw Oe,er Ore Ir+to r pap , rr 1
nnov c not t CCTr'1R RETAINS DO NOT SEND TO LABORATORY
146
f .
i
,`
i
P
FEDERAL DRUG TESTING CUSTODY AND CONTROL FORM
bPEGMEN W NO.
1: TO BE COMPLETED BY COLLECTOR OR EMPLOYER
nployar Name, Address and I.D. No.
ueoltATOnr ACCESSION NO.
8. MRO Name and Address
C. Donor SSN or Employee I.D. No. ~
D. Reason tot Test: p Preemployment ^ Randan ^ Reasonable SuapicionlCause p Post Accident
^ Retum to Duty ^ Fdlow-up ^ Other (specify)
E. Tests to be Performed: ^ THC, Cocaine, PCP, Opiates and Amphetamines
^ Only THC and Cocaine ^ OTHER (specify)
STEP 2: TO BE COMPLETED BY COLLECTOR - S 'men to ature must be read within ~ minutes of collection.
Specimen temperatwe within ramps: ^ Yes, 90• - 100°F/32• - 98•C ^ No, Record specimen temperatwe here
STEP 3: 70 8E COMPLETED 8Y COLLECTOR AND DONOR • Cotlectar affixes botHe seal(s) ~ tlottle(s} CoNeeta dates seals} Doctor iti0ak eeal(s}
STEP 4: SEE BELOW
STEP S: TO BE COMPLETED BY COLLECTOR -RETURN TO COPY 1
CpILECTKNI SRE LOCATION: aPL~R ~~~
( )
pn •~Y '•CtO` • O rE8 ONO
na ~7 ar - -TO
REMARKS:
f tlYl tlw •p/C'YnM dNlffia0 al UM/ fern K 1111 l~Mn/n pns•nlad p m1 Dy IM ad~0/ P~OWG~O !M CMdK11iOn On GbpJ 1 OI 01r kr/R NW / OrMf t111 YnM IpidIM9
MMIIOM Y 111.1 Mf kMl fir. ~ane tlka X IIY O••n Ni7•CNd. Y InQ MWO • w •LY10/AfHC1 wM ~pACap1I f1~0M•I I~pr~M11MMS.
laces ~. Tn ne ~wTUTrn nv tue 1`111 i CMAri •Nrf COMPLFTE~ 1S NECESS;~iiY THERE~FTEii
„o ~Tr n, SPECIMEN RELEASED BY SPECIMEN flECEIVED BY PURPOSE OF CHANGE
DONOR - NO SIGNATURE s'ai°°`• _ _ _
----------------------------
ry„w PROVIDE SPECIMEN
FOR TESTING
S,yI,.,,,,.
--------------------------------
Nen+s Sgnaun
-------------------------------
N•^+•
S'gnaws
Ns1Ir sgn.eun
sgww. s'e".n"•
STEP ~: TO BE COMPLETED BT t7vnVn
o.y1M,. vtwne No ~al~C~~~C~~~ Erenirp otlpn. No. ~~8a~ D„• d Ilirm Mo. / o.y / Yr
I c.rMy Inn ! po..d•d my u~ulr Ao•cwrwn ro IA• co~wcror. Mnr I nnr nor •eun'wN+d N in r>+y In•nn•r, Nw ••c~ rp•crnn DanM u•W ort awNd wqA • tsnlpr~r~aru
s•sf n wry p••nIO- sno Irln Uv rMOr~IUban powdao on ma brm •n0 on des f•D•f •ASr•0 a aaxn ~panNn Oates ~ oanH.
tvRlNn Donol'• wm.1F.a. MI. Laa) S+pntlurr d Dolwr OeN lr+b. r ay / Yr.)
Should fns rewhs o1 fns tshornory Net! for the speeYmen identified Dy tnK brm De ppM'umed poeniw,lfN Msdleal Review OHiur will oprrNCt you b
ask about pescriplions end peer-tne•calma Ineditalions you may taw taken. Therefore, you may waM ro make a Iiet d thoN medicakorK as a
"memory jopgar "THIS LEST IS NOT NECESSARY tl you choose to make a IiM, do w Mher on a separaN piece of paper a on tM bepk of yow oppy
(Coq S) -D0 NOT UST ON THE BACK OF ANY OTHER COPY OF THE FORM. TAKE COPY S WRH YOU.
I rI•r1 ~»w•O IM YOaalory nsu~'a /a Me s0a+~ ~Wnr/~0 OY mr Mrm n •oocNrlorr nM ppwc•ON F~ora1 nWnvn•nu. My s:
^ IYpeUM ^ i•uM ^ T•sI Mot P•rl0rnyo ^ TW Cena+IW
REMArKS
pport) wart Www OIKr ~ Ma•,r Is.w ~i. ual s4•awo a warn n.+w Ooo Oa. (w ~ pot I rr I
COPY 7 FORWARD TO EMPLOYER - DO NOT SEND TO LABORATORY
147
INS IRUC TIONS FOR COMPLETING DRUG TESTING CUSTODY AND CONTROL FORM
1..,. Ir,:yr,:r,q n•ar.rKrwK ere ir• ac•:t ~t1.Ir.r.~ M•rth PrrxrK}w Pa wstaol~elrcnJ bt' Nre D•p•nmenl d INaNh .eW Hwn•n ServieN +na mp l1itIi1~4rMrr1 al Tri^~GnsnOn
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148
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Subpart C-ALCOHOL TESTING
§40.51 The breath alcohol technician.
(a) The breath alcohol technician (BAT) shall be
trained to proficiency in the operation of the EBT he
or she is using and in the alcohol testing procedures of
this part.
(1) Proficiency shall be demonstrated by successful
completion of a course of instruction which, at a
minimum, provides training in the principles of EBT
methodology, operation, and calibration checks; the
fundamentals of breath analysis for alcohol content;
and the procedures required in this part for obtaining
a breath sample, and interpreting and recording EBT
results.
(2) Only courses of instruction for operation of
EBTs that are equivalent to the Department ofTrans-
portation model course, as determined by the Na-
tional Highway Traffic Safety Administration
(NHTSA), may be used to train BATS to proficiency.
On request, NHTSA will review a BAT instruction
course for equivalency.
(3) The course of instruction shall provide docu-
mentation that the BAT has demonstrated compe-
tence"in the operation of the specific EBTs) he/she
will use.
(4) Any BAT who will perform an external calibra-
tion check of an EBT shall be trained to proficiency in
conducting the check on the particular model of EBT,
to include practical experience and demonstrated
competence in preparing the breath alcohol simulator
or alcohol standard, and in maintenance and calibra-
tion of the EBT.
(5) The BAT shall receive additional training, as
needed, to ensure proficiency, concerning new or
additional devices or changes in technology that he or
she will use.
(6) The employer or its agent shall establish docu-
mentation of the training and proficiency test of each
BAT it uses to test employees, and maintain the
documentation as provided in §40.83.
(b) ABAT-qualified supervisor of an employee may
conduct the alcohol test for that employee only if
another BAT is unavailable to perform the test in a
timely manner. A supervisor shall not serve as a BAT
for the employee in any circumstance prohibited by a
DOT operating administration regulation.
(c) Law enforcement officers who have been certi-
fied by state or local governments to conduct breath
alcohol testing are deemed to be qualified as BATS. In
order for a test conducted by such an officer to be
accepted under Department of Transportation alco-
hol testing requirements, the officer must have been
certified by a state or local government to use the EBT
or non-evidential alcohol screening device that was
used for the test.
§40.53 Devices to be used for breath alcohol
tests.
(a) For screening tests, employers shall use only
EBTs. When the employer uses for a screening test an
EBT that does not meet the requirements of para-
graphs (b)(1)through (3) of this section, the employer
shall use a log book in conjunction with the EBT (see
§40.59(c)).
(b) For confirmation tests, employers shall use
EBTs that meet the following requirements:
(1) EBTs shall have the capability of providing,
independently or by direct link to a separate printer,
a printed result in triplicate (or three consecutive
identical copies) of each breath test and of the opera-
tions specified in paragraphs (b)(2) and (3) of this
section.
(2) EBTs shall be capable ofassigning a unique and
sequential number to each completed test, with the
number capable of being read by the BAT and the
employee before each test and being printed out on
each copy of the result.
(3) EBTs shall be capable of printing out, on each
copy of the result, the manufacturer's name for the
device, the device's serial number, and the time of the
test.
(4) EBTs shall be able to distinguish alcohol from
acetone at the 0.02 alcohol concentration level.
(5) EBTs shall be capable of the following opera-
tions:
(i) Testing an air blank prior to each collection of
breath; and
(ii) Performing an external calibration check.
§40.55 Quality assurance plans for EBTs.
(a) In order to be used in either screening or
confirmation alcohol testing subject to this part, an
EBT shall have a quality assurance plan (QAP) devel-
oped by the manufacturer.
(1) The plan shall designate the method or meth-
ods to be used to perform external calibration checks
of the device, using only calibration devices on the
NHTSA "Conforming Products List of Calibrating
Units for Breath Alcohol Tests.".
(2) The plan shall specify the minimum intervals
for performing external calibration checks on the
device. Intervals shall be specified for different fre-
quencies of use, environmental conditions (e.g., tem-
perature, altitude, humidity), and contexts of opera-
tion (e.g., stationary or mobile use).
(3) The plan shall specify the tolerances on an
external calibration check within which the EBT is
regarded to be in proper calibration.
(4) The plan shall specify inspection, maintenance,
and calibration requirements and intervals for the
device.
(5) For a plan to be regarded as valid, the manufac-
turer shall have submitted the plan to NHTSA for
review and have received NHTSA approval of the
plan.
(b) The employer shall comply with the NHTSA-
approvedquality assurance plan for each EBT it uses
for alcohol screening or confirmation testing subject
to this part.
(1) The employer shall ensure that external cali-
bration checks of each EBT are performed as provided
in the QAP.
(2) The employer shall take an EBT out of service
if any external calibration check results in a reading
outside the tolerances for the EBT set forth in the
QAP. The EBT shall not again be used for alcohol
testing under this part until it has been serviced and
has had an external calibration check resulting in a
reading within the tolerances for the EBT.
(3) The employer shall ensure that inspection,
maintenance, and calibration of each EBT are per-
formed by the manufacturer or a maintenance repre-
sentative certified by the device's manufacturer or a
state health agency or other appropriate state agency.
The employer shall also insure that each BAT or
149
other individual who performs an external calibra-
tion check of an EBT used for alcohol testing subject
to this part has demonstrated proficiency in conduct-
ing such a check of the model of EBT in question.
(4) The employer shall maintain records of the
external calibration checks of EBTs as provided in
§40.83.
(c) When the employer is not using the EBT at an
alcohol testing site, the employer shall store the EBT
in a secure space.
§40.57 Locations for breath alcohol testing.
(a) Each employer shall conduct alcohol testing in
a location that affords visual and aural privacy to the
individual being tested, sufficient to prevent unau-
thorized persons from seeing or hearing test results.
All necessary equipment, personnel, and materials
for breath testing shall be provided at the location
where testing is conducted.
(b) An employer may use a mobile collection facility
(e.g., a van equipped for alcohol testing) that meets
the requirements of paragraph (a) of this section.
(c) No unauthorized persons shall be permitted
access to the testing location when the EBT remains
unsecured or, in order to prevent such persons from
seeing or hearing a testing result, at any time when
testing is being conducted.
(d) In unusual circumstances (e.g., when it is es-
sential to conduct a test outdoors at the scene of an
accident), a test may be conducted at a location that
does not fully meet the requirements of paragraph (a)
of this section. In such a case, the employer or BAT
shall provide visual and aural privacy to the employee
to the greatest extent practicable.
(e) The BAT shall supen~ise only one employee's
use of the EBT at a time. The BAT shall not leave the
alcohol testing location while the testing procedure
for a given employee (see ti X40.61 through 40.65) is in
progress.
§40.59 The breath alcohol testing form.
(a) Each employer shall use the breath alcohol
testing form prescribed under this part. The form is
found in appendix A to this subpart. Employers may
not modify or revise this form, except that a form
generated by an EBT may omit the space for affixing
a separate printed result to the form.
(b) The form shall provide triplicate (or three
consecutive identical) copies. Copy 1(white) shall be
transmitted to the employer. Copy 2 (green) shall be
provided to the employee. Copy 3 (blue) shall be
retained by the BAT. Except for a form generated by
an EBT, the form shall be 8 1/2 by 11 inches in size.
§40.61 Preparation for breath alcohol test-
ing.
(a) When the employee enters the alcohol testing
location, the BAT will require him or her to provide
positive identification l e.g., through use of a photo I.D.
card or identification by an employer representative).
On request by the employee, the BAT shall provide
positive identification to the employee.
(b) The BAT shall explain the testing procedure to
the employee.
§40.63 Procedures for screening tests.
(a) The BAT shall complete Step 1 on the Breath
Alcohol Testing Form. The employee shall then
complete Step 2 on the form, signing the certification.
Refusal by the employee to sign this certification shall
be regarded as a refusal to take the test.
150
(b) An individually-sealed mouthpiece shall be
opened in view of the employee and BAT and attached
to the EBT in accordance with the manufacturer's
instructions.
(c) The BAT shall instruct the employee to blow
forcefully into the mouthpiece for at least 6 seconds or
until the EBT indicates that an adequate amount of
breath has been obtained.
(d)(1) If the EBT does not meet the requireme^ s of
§40.53(b)(1) through (3 ), the BAT shall ensure, before
a screening test is administered to each employee,
that he or she and the employee read the sequential
test number displayed on the EBT. The BAT shall
record the displayed result, test number, testing de-
vice, serial number of the testing device, and time in
Step 3 of the form.
(d)(2) If the EBT does not meet the requirements of
§40.53(b)(1) through (3), the BAT and the employee
shall take the following steps:
(i) Show the employee the result displayed on the
EBT. The BAT shall record the displayed result, test
number, testing device, serial number of the testing
device, time and quantified result in Step 3 of the
form.
(ii) Record the test number, date of the test, na:re
of the BAT, location, and quantified test result in the
log book. The employee shall initial the log book
entry.
(3) If the EBT provides a printed result, but does
not print the results directly onto the form, the B AT
shall show the employee the result displayed on the
EBT. The BAT shall then affix the test result printo~~-
to the breath alcohol t^st form in the designa*.ed
space, using a method that will provide clear e~•idenc~
of removal (e.g., tamper-evident tape).
(4) If tl:e EBT prints the test results directi :~ . etc
the form, the'3ATshall show the etnpioree the : e:.~~l~
displayed on the EBT.
(e)(1) In any case in which the result of the s~re~ --
ingtest is abreath alcohol concentration of less th~r.
0.02, the BAT shall date the form and sign the certi-
fication in Step 3 ofthe form. The employee shall sift
the certification and fill in the date in Step 4 of the
form.
(2) No further testing is authorized. The BAT s wl!
transmit the result of less than 0.02 to the employer
in a contidential manner, and the employer shall
receive and store the information so as to ensure that
confidentiality is maintained as required by~~'40.81.
l3) If the employee does not sign the certification in
Step 4 of the form for a test, it shall not be considered
a refusal to be tested. In this event, the BAT shall note
the employee's failure to sign in the "Remarks" sec-
tion of the form.
(4) If a test result printed by the EBT (see para-
graph (d)(3) or (d)(4) of this section) does not match
the displayed result, or if a sequential test number
printed by the EBT does not match the sequential test
number displayed by the EBT prior to the screening
test (see paragraph i d)(1) of this section), the BAT
shall note the disparity in the "Remarks" section.
Both the employee and the BAT shall initial and sign
the notation. In accordance with X40.79, the test is
invalid and the employee shall be so advised.
(f) If the result of the screening test is an alcohol
concentration of 0.02 or greater, a confirmation test
shall be performed as provided in~~'40.65. _
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L
(g) If the confirmation test will be conducted by a
different BAT, the BAT who conducts the screening
test shall complete and sign the form and log book
entry. The BAT will provide the employee with Copy
2 of the form.
(h) If the confirmation test will be conducted at a
different site from the screening test, the employer or
its agent shall ensure that -
(1)The employee is advised against taking any of
the actions mentioned in the first sentence of §40.65(b)
of this Part;
(2) The employee is advised that he or she must not
drive, perform safety-sensitive duties, or operate heavy
equipment, as noted in Block 4 of the alcohol testing
form; and
(3) The employee is under observation of a BAT,
STT, or other employer personnel while in transit
from the screening test site to the confirmation test
site.
X40.65 Procedures for confirmation tests.
(a) If a BAT other than the one who conducted the
screening test is conducting the confirmation test, the
new BAT shall follow the procedures of X40.61.
(b) The BAT shall instruct the employee not to eat,
drink, put any object or substance in his or her mouth,
and, to the extent possible, not belch during a waiting
period before the confirmation test. This time period
begins with the completion of the screening test, and
shall not be less than 15 minutes. The confirmation
test shall be conducted within 30 minutes of the
completion of the screening test. The BAT shall
explain to the employee the reason for this require-
ment (i.e., to prevent any accumulation of mouth
alcohol from leading to an artificially high reading)
and the fact that it is for the employee's benefit. The
BAT shall also explain that the test will be conducted
at the end of the waiting period, even if the employee
has disregarded the instruction. If the BAT becomes
aware that the employee has not complied with this
instruction, the BAT shall so note in the "Remarks"
section of the form. If the BAT conducts the confirma-
tion test more than 30 minutes after the result of the
screening test has been obtained, the BAT shall note
in the "Remarks" section of the form the time that
elapsed between the screening and confirmation tests
and the reason why the confirmation test could not be
conducted within 30 minutes of the screening test.
(c)(1) If a BAT other than the one who conducted
the screening test is conducting the confirmation test,
the new BAT shall initiate a new Breath Alcohol
Testing form. The BAT shall complete Step 1 on the
form. The employee shall then complete Step 2 on the
form, signing the certification. Refusal by the em-
pIoyee to sign this certification shall be regarded as a
refusal to take the test. The BAT shall note in the
"Remarks" section of the form that a different BAT
conducted the screening test.
(2) In all cases, the procedures of §40.63(a), (b), and
(c) shall be followed. Anew mouthpiece shall be used
for the confirmation test.
(d) Before the confirmation test is administered for
each employee, the BAT shall ensure that the EBT
registers 0.00 on an air blank. If the reading is greater
than 0.00, the BAT shall conduct one more air blank.
If the reading is greater than 0.00, testing shall not
proceed using that instrument, which shall be taken
out of service. However, testing may proceed on
another instrument. Any EBT taken out of service
because of failure to perform an air blank accurately
shall not be used for testing until a check of external
calibration is completed and the EBT is found to be
within tolerance limits.
(e) Before the confirmation test is administered for
each employee, the BAT shall ensure that he or she
and the employee read the sequential test number
displayed by the EBT.
(fl In the event that the screening and confirma-
tion test results are not identical, the confirmation
test result is deemed to be the final result upon which
any action under operating administration rules shall
be based.
(g)(1) If the EBT provides a printed result, but does
not print the results directly onto the form, the BAT
shall show the employee the result displayed on the
EBT. The BAT shall then affix the test result printout
to the breath alcohol test form in the designated
space, using a method that will provide clear evidence
of removal (e.g., tamper-evident tape).
(2) If the EBT prints the test results directly onto
the form, the BAT shall show the employee the result
displayed on the EBT.
(h)(i) Following the completion of the test, the BAT
shall date the form and sign the certification in Step
3 of the form. The employee shall sign the certifica-
tion and fill in the date in Step 4 of the form.
(2) Ifthe employee does not sign the certification in
Step 4 of the form, it shall not be considered a refusal
to be tested. In this event, the BAT shall note the
employee's failure to sign in the "Remarks" section.
(3) If a test result printed by the EBT (see para-
graph (g)(1) or (g)(2) ofthis section) does not match the
displayed result, or ifa sequential test number printed
by the EBT does not match the sequential test num-
ber displayed by the EBT prior to the confirmation
test (see paragraph (e) of this section), the BAT shall
note the disparity in the "Remarks" section. Both the
employee and the BAT shall initial and sign the
notation. In accordance with X40.79, the test is
invalid and the employee shall be so advised.
(i) The BAT shall transmit all results to the em-
ployer in a confidential manner.
(1) Each employer shall designate one or more
employer representatives for the purpose of receiving
and handling alcohol testing results in a confidential
manner. All communications by BATS to the em-
ployer concerning the alcohol testing results of em-
ployeesshall be to adesignated employer representa-
tive.
(2) Such transmission may be in writing (the em-
ployer copy (Copy 1) of the breath alcohol testing
form), in person or by telephone or electronic means,
but the BAT shall ensure immediate transmission to
the employer of results that require the employer to
prevent the employee from performing asafety-sensi-
tive function.
(3) If the initial transmission is not in writing(e.g.,
by telephone), the employer shall establish a mecha-
nism to verify the identity of the BAT providing the
information.
(4) If the initial transmission is not in writing, the
BAT shall follow the initial transmission by providing
to the employer the employer's copy of the breath
alcohol testing form. The employer shall store the
information so as to ensure that confidentiality is
maintained as required by §40.81.
151
§40.67 Refusals to test and uncompleted tests.
(a) Refusal by an employee to complete and sign
the breath alcohol testing form (Step 2), to provide
breath, to provide an adequate amount of breath, or
otherwise to cooperate with the testing process in a
way that prevents the completion of the test, shall be
noted by the BAT in the remarks section of the form.
The testing process shall be terminated and the BAT
shall immediately notify the employer.
(b) If a screening or confirmation test cannot be
completed, or if an event occurs that would invalidate
the test, the BAT shall, if practicable, begin a new
screening or confirmation test, as applicable, using a
new breath alcohol testing form with a new sequen-
tial test number (in the case of a screening test
conducted on an EBT that meets the requirements of
§40.53(b) or in the case of a confirmation test).
§40.69 Inability to provide an adequate
amount of breath.
(a) This section sets forth procedures to be followed
in any case in which an employee is unable, or alleges
that he or she is unable, to provide an amount of
breath sufficient to permit a valid breath test because
of a medical condition.
(b) The BAT shall again instruct the employee to
attempt to provide an adequate amount of breath. If
the employee refuses to make the attempt, the BAT
shall immediately inform the employer.
(c) If the employee attempts and fails to provide an
adequate amount of breath, the BAT shall so note in
the "Remarks" section of the breath alcohol testing
form and immediately inform the employer.
(d) If the employee attempts and fails to provide an
adequate amount of breath, the employer shall pro-
ceed as follows:
(1) [Reserved]
(2) The employer shall direct the employee to
obtain, as soon as practical after the attempted provi-
sion of breath, an evaluation from a licensed physi-
cianwho isacceptable tothe employer concerning the
employee's medical ability to provide an adequate
amount of breath.
(i) If the physician determines, in his or her reason-
able medical judgment, that a medical condition has,
or with a high degree of probability, could have,
precluded the employee from providing an adequate
amount of breath, the employee's failure to provide an
adequate amount of breath shall not be deemed a
refusal to take a test. The physician shall provide to
the employer a written statement of the basis for his
or her conclusion.
(ii) If the licensed physician, in his or her reason-
able medical judgment, is unable to make the deter-
minationset forth in paragraph (d)(2)(i) of this section
the employee's failure to provide an adequate amount
of breath shall be regarded as a refusal to take a test.
The licensed physician shall provide a written state-
ment of the basis for his or her conclusion to the
employer.
§§40.71-40.77 [Reserved]
§40.79 Invalid tests.
(a) A breath alcohol test shall be invalid under the
following circumstances:
(1) The next external calibration check of an EBT
produces a result that differs by more than the toler-
ance stated in the QAP from the known value of the
test standard. In this event, every test result of 0.02
15Z
or above obtained on the device since the last valid
external calibration check shall be invalid;
(2) The BAT does not observe the minimum 15-
minute waiting period prior to the confirmation test,
as provided in y~'40.65(b);
(3) The BAT does not perform an air blank of toe
EBT before a confirmation test, or an air blank does
not result in a reading of 0.00 prior to the administra-
tion of the test, as provided in {40.65;
(4) The BAT does not sign the form as required by
§§40.63 and 40.65;
(5) The BAT has failed to note on the remarks
section of the form that the employee has faiied er
refused to sign the form following tl~.e recording cr
printing on or attachment to the form of the test
result;
(6) An EBT fails to print a confirmation test res;:it;
or
(7) On a confirmation test and, where applicable,
on a screening test, the sequential test number or
alcohol concentration displayed on the EBT is not toe
same as the sequential test number or alcohol cor_cen-
tration on the printed result.
(b) (Reserved]
§40.81 Availability and disclosure of al^ehol
testing information about individual employ-
ees.
(a) Employers shall maintain records in a secure
manner, so that disclosure ofinformation to unau:ho-
rized persons does not occur.
(b) Except as required by law or expressly autho-
rized or required in this section, no employer shall
release covered employee information that is con-
tained in the records required to be maintained by
this part or by DOT agency alcohol misuse rubs.
(c) An employee subject to testing is entitled. upon
written request, to obtain copies of any records per-
taining tothe employee's use of alcohol, includinD ~:.
records pertaining to his or her alcohol tests. ': he
employer shall promptly provide the records requested
by the employee. Access to an employee's records
shall not be contingent upon payment for records
other than those specifically requested.
(d) Each employer shall permit access to all facili-
ties utilized in complying with the requirements of
this part and DOT agency alcohol misuse rules tc t'~e
Secretary of Transportation, any DOT agency with
regulatory authority over the employer, or a state
agency with regulatory authority over the employer
(as authorized by DOT agency regulations).
(e) When requested by the Secretary of Transpor-
tation, any DOT agency with regulatory authority
over the employer, or a state agency with regulatory
authority over the employer (as authorized by DOT
agency regulations), each employer shall make avail-
able copies of all results for employer alcohol testing
conducted under the requirements of-this part and
any other information pertaining to the employer's
alcohol misuse prevention program. The information
shall include name-specific alcohol testresults, records
and reports.
(fl When requested by the National Transporta-
tionSafety Board as part of an accident investigation,
an employer shall disclose information related to the
employer's administration of any post=accident alco-
hol tests administered following the accident under
investigation.
4i
(g) An employer shall make records available to a
subsequent employer upon receipt of a written re-
quest-from a covered employee. Disclosure by the
subsequent employer is permitted only as expressly
authorized by the terms of the employee's written
request.
(h) An employer may disclose information required
to be maintained under this part pertaining to a
covered employee to that employee or to the
decisionmaker in a lawsuit, grievance, or other pro-
ceedinginitiated by or onbehalf oftheindividual, and
arising from the results of an alcohol test adminis-
teredunder the requirements of this part, or from the
employer's determination that the employee engaged
in conduct prohibited by a DOT agency alcohol misuse
regulation ~includirg, but not limited to, a worker's
compensation, unemploymentcompensation, orother
proceeding relating to a benefit sought by the em-
ployee).
(i) An employee shall release information regard-
ing acovered employee's records as directed by the
specific, v~ritten consent of the employee authorizing
release of the information to an identified person.
Release of such information is permitted only in
accordance with the terms of the employee's consent.
§40.83 Maintenance and disclosure of records
concerning EBTs and BATS.
(a) Each employer or its agent shall maintain the
following records for two years:
(1) Records of the inspection and maintenance of
each EBT used in employee testing;
(2) Documentation of the employer's compliance
with the QAP for each EBT it uses for alcohol testing
under this part;
(3) Records of the training and proficiency testing
of each BAT used in employee testing;
(4) The log books required by §40.59(c).
(b) Each employer or its agent shall maintain for
five years records pertaining to the calibration ofeach
EBT used in alcohol testing under this part, including
records of the results of external calibration checks.
(c) Records required to be maintained by this
section shall be disclosed on the same basis as pro-
vided in §40.81.
Appendix B to Part 40 -The Breath Alcohol
Testing Form
153
154
U.S. Department of ~ansportation (DOT)
Breath Alcohol Testing Form
(THE INSTRUCT/ONS FOR COMPLETING THIS FORM .4RE OlV THE BACK OF COPY 3)
- STEP 1: TO BE C0141PLETED BY BREATH ALCOHOL TECHNICL~N
~~
A. Employee Name
(PRINT) (First. M.1.. Last)
B. SSN or Employee ID No.
C. Employer Name.
Address, &
Telephone No.
( )
Telephone Number
D. Reason for Test: ^Pte-employment ^ Random ^ Reasonable Suspiciort/Cause ^Posf-accident ^ Return to Duty ^ Follow-up
- STEP 2: TO BE COMPLETED BY EMPLOYEE
rertifj~ thnr ! am about ro suhmu to breath alcohol testing required by U.S. Department ojTransponarion regulations and that the idenrijcinc
information provided nn this jorm is true and roirect.
Signature o(Employee
Date Month Dav Year
- STEP 3: TO BE COMPLETED BY BREATH ALCOHOL TECHNICL•~N
/ crrr%~ that !hare ^nnducred breath alcohol testing nn the above named individual in accordance with the procedures established in the C.S.
Deny, anent q(TrmtsnnrmNnn re,qularinn, 49 CFR Par! 40, /hot / am qualified ra operate the resting devices identified. and tl:ar the results are cs
rPCnr7 ^.1.
Screening test: Complete o v 1'the testing device is not designed to print the following.
AM
PM
Time Result
Te,t Nn. Testine Devrce Namr Testing Device Serial Number
Confirmation test: Confirmation test results 31LrST be affixed to the back of each copy of this form:
Remarks:
f PRINTI Breath Alcohol Technician's Name !First. M.1.. Last) Signature of Breath Alcohol Technician
/ ~
Date Month Day Yea:
- STEP 4: TO BE COMPLETED BY EMPLOYEE
I cenifi that I have submitted ro the breath alcohol test the results of which are accurateh• recorded on this jorm. I understand that /must not drive.
perform .rafen -sensitive duties, or operate heave equipment if the results are 0.02 or greater.
Signature of Employee
/
Date Month Day Year
COPY 1 -ORIGINAL -FORWARD TO THE EMPLOYER
OMB No. ?105-0529
Exp. Dale: 208/97
155
AFFIX SCREENING TEST RESULTS HERE
(IF APPLICABLE)
USE TAMPER-EVIDENT TAPE
AFFIX CONFIRMATION TEST RESULTS HERE
USE TAMPER-EVIDENT TAPE
r
PAPERWORK REDUCTION ACT NOTICE (as required by 5 CFR 1320.21)
Public reporting burden for this collection of information is estimated for each respondent to average: Iminute/employee. 4minutes/Breath
Alcohol Technician. Individuals may send comments regarding these burden estimates, or any other aspect of this collection of information.
including suggestions for reducing the burden, to U.S. Department of Transportation, Drug Enforcement and Program Compliance, Room
9404, 400 Seventh St.. SW, Washington, D.C. 20590 or Office of Management and Budget. Paperwork Reduction Project. Room 3001. 725
Seventeenth St., NW, Washington, D.C. 20503.
COPY I -ORIGINAL -FORWARD TO THE EMPLOYER OMB No. 2105-0529
Exp. Date: 288/97
156
U.S. Department of Transportation (DOT)
Breath Alcohol Testing Form
(THE /NSTRUCTIONS FOR COMPLET/NG TH/S FORM ARE ON THE BACK OF COPY 3)
. STEP 1: TO BE COMPLETED BY BREATH ALCOHOL TECHNICIAN
i
..
A. Employee Name
B. SSN or Employee ID No
C. Employer Name,
Address, &
Telephone No.
(PRINT) (First, M.1., Last)
Telephone Number
D. Reason for Test: ^Pte-employment ^ Random ^ Reasonable Suspiciott/Caux ^Posf-accident ^ Return to Duty ^ Follow-up
- STEP 2: TO BE COMPLETED BY EMPLOYEE
! certify that / am about to submit to breath alcohol testing required by U.S. Department ojTransponarion regulations and that the idenrtfying
information provided on this jorm is true and correct.
Signature of Employee
Date Month Day Year
- STEP 3: TO BE COMPLETED BY BREATH ALCOHOL TECHNICIAN
certify that /hove conducted breath alcohol testing on the above named individual in accordance N•ith the procedures estoblished in the U.S.
Department ojTrmtsportarion regulation. 49 CFR Pan 40, that I am yualifred to operarc the testing devices identified, and that the results are as
recorded.
Screening test: Complete 4IIIY jI the testing device is not designed to print the following.
AM
PM
Test No. Testing Device Name Testing Device Serial Number Time Result
Confirmation test: Confirmation test results MUST be affixed to the back of each copy of this form:
Remarks:
IPRINTI Breath Alcohol Technician's Name (Pint. M.I.. last)
Signature of Breath Alcohol Technician
~ ~ I
Daft Month Drv Year
- STEP 4: TO BE COMPLETED BY EMPLOYEE
1 certify Ihur /have suhmined m Nre breath alcohol rest the results of xhich arc accurateh• recorded on Ibis farm. l understand that l must oar drire.
perform safen••sensirire dudes, nr operate hras.y equipmem ijthe resuLs are 0.01 argreaKr.
Signature of Employee
~ /
Date Month Day Year
COPY 2 -EMPLOYEE RETAINS
OMB No. 2105-OS?9
Exp. Date: 'J28/97
157
~,
AFFIX SCREENING TEST RESULTS HERE
(IF APPLICABLE)
USE TAMPER-EVIDENT TAPE
AT'FIX CONFIRMATION TEST RESULTS HERE
USE TAMPER-EVIDENT TAPE
Ptivacy Act Statement
(applicable in those cases where completed Breath Alcohol Testing Forms are retained in a Federal Privacy Act system of records)
Except for your Social Security Number ($SN), submission of the information on the front side of this form is mandatory. Incomplete
submission of the information, failure to provide an adequa[e breath specimen for testing without a valid medical explanation, engaging in
conduct that clearly obstructs the testing process, or failure to sign the certification statements on the front side of this (orrn may result in
delay or denial of your application for employmenUappointment, your inability to resume performing safety-sensitive duties, removal from a
safety-sensitive position, or other disciplinary action.
The authority for obtaining the breath specimen required by the U.S. Department of Transportation is the Omnibus Transportation Employee
Testing Act of 1991, Pub. L. 102-143, Title V. The principal purpose for which the information sought is to be used is to ensure that you
have submitted to breath alcohol testing and to ensure that you arc promptly notified in the event of noncompliance with the U-S.
Department of Transportation breath alcohol testing requirements.
Submission of your SSN is not required by law and is voluntary. If you object to the use of your SSN in this form, you will nat be denied
any right, benefit, or privilege provided by law; a substitute number or other identifier will be assigned.
The information provided in this form may be disclosed, as a routine use, to a Federal, State, or local agency for authorized inves[igative or
enforcement purposes or to a court or an administra[ive tribunal when the Government or one of its agencies is a party [o a judicial
proceeding before the court or involved in adminisvative proceedings before the tribunal.
,~,.,
PAPERWORK REDUCTION ACT NOTICE (as required by 5 CFR 1320.21)
Public reporting burden for this collection of information is estimated for each respondent to average: Iminute/employee, 4 minutes/Breath
Alcohol Technician. Individuals may send comments regarding these burden estimates, or any other aspect of this collection of information,
including sugges[ions for reducing the burden, to U.S. Department of Transportation, Drug Enforcement and Program Compliance. Room
9404, 400 Seventh St., SW, Washington. D.C. 20590 or Office of Management and Budget, Paperwork Reduction Project, Room 3001, 725
Seventeenth St., NW, Washington. D.C. 20503.
COPY 2 -EMPLOYEE RETAINS OMB No. ?105-0529
Exp. Date: 2/28/97
158
U.S. Department of Transportation (DOT)
Breath Alcohol Testing Form
(THE INSTRUCTIONS FOR COMPLETING THIS FORM ARE ON THE BACK OF COPY 3)
car ~ • Tn RE rnMPr.ETED BY BREATH ALCOHOL TECHNICIAN
A. Employee Name
B. SSN or Employee ID No
C. Employer Name,
Address, &
Telephone No.
( )
Telephone Number
D. Reason for Test: ^Pre-employment ^ Random ^ Reasonable Suspicion/Cause ^Post-accident ^ Return to Duty ^ Follow-up
STEP 2: TO BE COMPLETED BY EMPLOYEE
1 cernfv that I am about to submit to breath alcohol resting required by U.S. Department ojTransportation regulations and that the idennjving
injormarion provided on this jonn is true and correct.
Signature of Employee
Date Month /Day / Yeu
1
STEP 3: TO BE COMPLETED BY BREATH ALCOHOL TECHNICIAN
/ rerrtfl• that !have conducted breath alcohol testing on the above named individual in accordance with the procedures established in the U.S.
Department of Transportation regulation. 49 CFR Pan 40, that I am qualified to operate the testing devices identified. and that rhr results art as
recorded.
Screening test: Complete 9ply j[ the testing device is not designed to ~( the following.
i!
1
Test No. Tesung Uevtce name tesung txvtce acnat numcer
Confirmation test: Confirmation test results MUST be affixed [o the back of each copy of this form:
Remarks:
IPRINT):Breath Alcohol Technician's Name !First, M.1., t.aSQ
Signaturc of Brcath Alcohol Technician
~ ~
Datc Month Day Ycar
STEP 4: TO BE COMPLETED BY EMPLOYEE
/ cerrifc that /have submitted to the breath alcohol test the results ajwhich are accurately recorded on dtis jnrm. /understand shat /must not drive.
perform sufen -sensitive duties. or operate heavy equipment ijthe results are 0.02 or greater.
Signature of Employee
~ ~
Date Month Day Year
COPY 3 -BREATH ALCOHOL TECHNICIAN RETAINS
OMB No. 2105-0529
Exp. Date: ?ng197
159
AM
PM
Time Result
(PRINT) (First. M.I., t,ast)
,•~ ,
AFFIX SCREENING TEST RESULTS HERE
(IF APPLICABLE)
USE TAMPER-EVIDENT TAPE
AFFIX CONFIRMATION TEST RESULTS HERE
USE TAMPER-EVIDENT TAPE
INSTRUCTIONS FOR COMPLETING THE U.S. DEPARTMENT OF TRANSPORTATION BREATH ALCOHOL TESTING FORA1
NOTE: Use a ballpoint pen, press hard, and check ~ copies for legibility.
STEP 1 The Breath Alcohol Technician (BAT) completes the information required in this step. Be sure to Qljp! the employee's name and check the box
identifying [he reason for the test.
NOTE: If the employee refuses to provide SSN or I.D. number, be sure to indicate this in the remarks section in STEP 3. Proceed with STEP
2.
STEP 2 Instruct the employee to read, sign, and date the employee cenification statement in STEP 2.
NOTE: If the employee refuses to sign the cenification statement, do not proceed with the alcohol [est. Contac[ the designated employer
representative.
STEP 3 The Breath Alcohol Technician (BAT) completes the information required in this step. After conducting the alcohol screening test. do the
following (as appropriate):
If the breath testing device used in conducting the screening test is not capable of printing the screening test information located on the front of
this form (test number, testing device name. testing device serial number, time of test and results), complete this information in the space
provided on the front of this form,
NOTE: Be sure to entry the result of the test exactly as it is indicated on the breath testing device, i.e.. 0.00, 0.02, 0.03, etc.
OR, If the breath testing device used in conducting the screening rest is of printing the screening test information located on the front of
this form, affix the primed information in the mace provided above. Be sure to use tamper-evident race.
IF the results of the screenine tes[ are less than 0.0'_, print, sign your name, and enter today's date in the space provided. Go to STEP 4.
If the results of the screenim_~ test are 0.02 or erecter, a confirmation test must be administered in accordance with DOT rreulations. An
EVIDENTIAL BREATH TESTING device that i+ capable of printing confirmation test information must be used in conducting this feu.
After conducting the alcohol confirmation test, aftlx the printed information in the space provided above. Br sure to use tamper-evident tax ~,
Print. sign your name, and enter the date in the space provided. Go to STEP 4.
STEP 4 Inswct the employee to read. sign, and date the employee cenification statement in STEP 3. t
NOTE: If the employee refuses to sign the certification statement in STEP 3, be sure to indicate this in remarks section in STEP 3.
Forward Copy 1 (white page) to the employer.
Give Copy 2 (green page) to the employee.
Retain Copy 3 (blue page) fur BAT.
PAPERWORK REDUCTION ACT NOTICE (as required by 5 CFR 1320.21)
Public reporting burden for this collection of intixmation is estimated fur each respondent to averaee: I minute/employer. 4minutes/Breath
Alcohol Technician. Individuals may send comments reearding these burden estimates, or any other aspect of this coilection of informaton.
including suggestions for reducing the burden. to U.S. Department of Transportation, Drug Enforcement and Proeram Compliance. Room
9404, 300 Seventh St., SW'. Washington. D.C. 20590 ur Ofticr of Managemem and Budget Paperwork Reduction Pn~lect. Room 3(N)I. 7'_5
Seventeenth St.. NW. Washington. D.C. '_0503.
COPY 3 -BREATH ALCOHOL TECHNICIAN RETAINS OMB No. ?105-0529
- Exp. Date: '_/28/97
160
Subpart D -Non-Evidential Alcohol
Screening Devices
§40.91 Authorization for use of noneviden-
tial alcohol screening devices.
Non-evidential alcohol screening tests, performed
using screening devices included by the National
Highway Traffic Safety Administration on its con-
forming products list for non-evidential screening
devices, may be used in lieu of EBTs to perform
screening tests required by operating administra-
tions' alcohol testing regulations. Non-evidential
screening devices may not be used for confirmation
alcohol tests, which must be conducted using EBTs as
provided in Subpart C of this Part.
§40.93 The screening test technician.
(a) Anyone meeting the requirements of this Part
to be a BAT may act as a screening test technician
(STT), provided that the individual has demonstrated
proficiency in the operation of the non-evidential
screening device he or she is using.
(b) Any other individual may act as an STT if he or
she successfully completes a course of instruction
concerning the procedures required by this Part for
conducting alcohol screening tests. Only the Depart-
ment of Transportation model course, or a course of
instruction determined by the Department of
Transportation's Office of Drug Enforcement and
Program Compliance to be equivalent to it, may be
used for this purpose.
(c) With respect to any non-evidential screening
device involving changes, contrasts, or other readings
that are indicated on the device in terms of color, STTs
shall, in order to be regarded as proficient, be able to
discern correctly these changes, contrasts or read-
ings.
(d) The STT shall receive additional training, as
needed, to ensure proficiency, concerning new or
additional devices or changes in technology that he or
she will use.
(e) The employer or its agent shall document the
training and proficiency of each STT it uses to test
employees and maintain the documentation as pro-
vided in § 40.83.
(fl The provisions of § 40.51(b) and (c); 40.57;
~40.59;~~'40.61; §40.63 (e)(1)-(2), (f), (g). and (h); X40.69;
and 40.81; and other provisions, as applicable, of this
Part apply to STTs as well as to BATS.
§ 40.95 Quality assurance plans for nonevi-
dential screening devices.
(a) In order to be used for alcohol screening tests
subject to this part, anon-evidential screening device
shall have an approved quality assurance plan (QAP)
developed by the manufacturer and approved by the
National Highway Traffic Safety Administration
(NHTSA).
(1) The plan shall designate the method or meth-
ods to be used to perform quality control checks; the
temperatures at which the nonevidential screening
device shall be stored and used, as well as other
environmental conditions (e.g., altitude, humidity)
that may affect the performance of the device; and,
where relevant, the shelf life of the device.
(2) The QAP shall prohibit the use of any device
that does not pass the specified quality control checks
or that has passed its expiration date.
(b) The manufacturers' instructions on or included
in the package for each saliva testing device shall
include directions on the proper use of the device, the
time frame within which the device must be read and
the manner in which the reading is made.
(c) The employer and its agents shall comply with
the QAP and manufacturer's instructions for each
non-evidential screening device it uses for alcohol
screening tests subject to this Part.
§ 40.97 Locations for non-evidential alcohol
screening tests.
(a) Locations for non-evidential alcohol screening
tests shall meet the same requirements set forth for
breath alcohol testing in fi 40.57 of this Part.
(b) The STT shall supervise only one employee's
use of anon-evidential screening device aQa time. The
STT shall not leave the alcohol testing location while
the screening test procedure for a given employee is in
progress.
§ 40.99 Testing forms.
STTs conducting tests using a nonevidential screen-
ing device shall use the alcohol testing form as pro-
vided in~~' 40.59 and Appendix B of this Part for the
screening test.
§40.101 Screening test procedure.
(a) The steps for preparation for testing shall be
the same as provided for breath alcohol testing in ti
40.61 of this Part.
(b) The STT shall complete Step the form required
by fi 40.99. The employee shall then complete Step 2
on the form, signing the certification. Refusal by the
employee to sign this certification shall be regarded
as a refusal to take the test.
(c) If the employer is using a nonevidential breath
testing device, the STT shall follow the same steps
outlined for screening tests using EBTs in~~' 40.63.
(d) If the employer is using a saliva testing device,
the STT shall take the foiiowing steps:
(1) The STT shall explain the testing procedure to
the employee.
(2) The STT shall check the expiration date of the
saliva testing device, show the date to the employee,
and shall not use a device at any time subsequent to
the expiration date.
(3) The STT shall open an individually sealed
package containing the device in the presence of the
employee.
(4) The STT shall offer the employee the opportu-
nity touse the swab. Ifthe employee chooses to use the
swab, the STT shall instruct the employee to insert
the absorbent end of the swab into the employee's
mouth, moving it actively throughout the mouth for a
sufficient time to ensure that it is completely satu-
rated, as provided in the manufacturer's instructions
for the device.
(5) If the employee chooses not to use the swab, or
in all cases in which a new test is necessary because
the device did not activate ~ see paragraph (d u 8 ~ of this
section ),the STT shall insert the absorbent end of the
swab into the employee's mouth, moving it actively
throughout the mouth for a sufficient time to ensure
that it is completely saturated, as provided in the
manufacturer's instructions for the device. The STT
shall wear a surgical grade glove while doing so.
(6) The STT shall place the device on a flat surface
or otherwise in a position in which the swab can be
~6~
'*w
firmly placed into the opening provided in the device
for this purpose. The STT shall insert the swab into
this opening and maintain firm pressure on the device
until the device indicates that it is activated.
(7) If the procedures of paragraph (d)(3)-(d)(5) of
this section are not followed successfully (e.g., the
swab breaks, the STT drops the swab on the floor or
another surface, the swab is removed or falls from the
device before the device is activated), the STT shall
discard the device and swab and conduct a new test
using a new device. The new device shall be one that
has been under the control of the employer or STT
prior to the test. The STT shall note in the remarks
section of the form the reason for the new test. In this
case, the STT shall offer the employee the choice of
using the swab himself or herself or having the STT
use the swab. If the procedures of paragraph (d)(3)-
(d)(5) of this section are not followed successfully on
the new test, the collection shall be terminated and an
explanation provided in the remarks section of the
form. A new test shall then be conducted, using an
EBT for both the screening and confirmation tests.
(8) If the procedures of paragraph (d)(3)-(d)(5) of
this section are followed successfully, but the device is
not activated, the STT shall discard the device and
swab and conduct a new test, in the same manner as
provided in paragraph (d)(7) of this section. In this
case, the STT shall place the swab into the employee's
mouth to collect saliva for the new test.
(9) The STT shall read the result displayed on the
device two minutes after inserting the swab into the
device. The STT shall show the device and its reading
to the employee and enter the result on the form.
(10) Devices, swabs, gloves and other materials
used in saliva testing shall not be reused, and shall be
disposed of in a sanitary manner following their use,
consistent with applicable requirements.
(e) In the case of any screening test performed
under this section, the STT, after determining the
alcohol concentration result, shall follow the appli-
cable provisions of § 40.63 (e)(1)-(2), (f), (g), and (h).
The STT shall also enter, in the "Remarks" section of
the form, a notation that the screening test was
performed using anon-evidential breath testing de-
vice or asaliva device, as applicable. Following comple-
tion of the screening test, the STT shall date the form
and sign the certification in Step 3 of the form.
§40.103 Refusals to test and uncompleted tests.
(a) Refusal by an employee to complete and sign
the alcohol testing form required by § 40.99 (Step 2),
to provide a breath or saliva sample, to provide an
adequate amount of breath, or otherwise to cooperate
in a way that prevents the completion of the testing
process, shall be noted by the STT in the remarks
section of the form. This constitutes a refusal to test.
The testing process shall be terminated and the STT
shall immediately notify the employer.
16z
(b) If the screening test cannot be completed, fo„
reasons other than a refusal by the employee, or if an
event occurs that would invalidate the test, the 5TT
shall, if practicable, immediately begin a new screen-
ing test, using a new testing form and, in the case of
a test using a saliva screening device, a new device .
¢40.105 Inability to provide an adequate
amount of breath or saliva.
(a) If an employee is unable to provide sufficient
breath to complete a test on anon-evidential breath
testing device, the procedures of § 40.69 apply.
(b) If an employee is unable to provide sufficient
saliva to complete a test on a saliva screening device
(e.g., the employee does not provide sufficient saliva
to activate the device), the STT, as provided in §
40.101 of this part, shall conduct a new test using a
new device. If the employee refuses to complete the
new test, the STT shall terminate testing and imme-
diately inform the employer. This constitutes a re-
fusal to test.
(c) If the new test is completed, but there is an
insufficient amount of saliva to activate the device,
STT shall immediately inform the' employer, which
shall immediately cause an alcohol test to be admin-
istered to the employee using an EBT.
§40.107 Invalid tests.
An alcohol test using anon-evidential screening
device shall be invalid under the following circum-
stances:
(a) With respect to a test conducted on a saliva
device-
(1)The result is read before two minutes or after 15
minutes from the time the swab is inserted into the
device;
(2) The device does not activate;
(3) The device is used for a test after the expiration
date printed on its package; or
(4) The STT fails to note in the remarks section of
the form that the screening test was conducted using
a saliva device;
(b) With respect to a test conducted on any non-
evidentialalcohol testing device, the STT has failed to
note on the remarks section of the form that the
employee has failed or refused to sign the form follow-
ing the recording on the form of the test result.
§40.109 Availability and disclosure of alcohol
testing information about individual employ-
ees.
The provisions of § 40.81 apply to records of non-
evidential alcohol screening tests.
§40.111 Maintenance and disclosure of records
concerning non-evidential testing devices and
STTs.
Records concerning STTs and non-evidential test-
ingdevices shall be maintained and disclosed follow-
ing the same requirements applicable to BATS and
EBTs under § 40.81 of this Part.
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