NDASA is pleased to announce that our efforts have been successful in having the Department of Transportation (DOT) withdraw its direct final rule relating to 49 CFR Part 40, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs” which would have gone into effect on August 5, 2024.
DOT published this withdrawal today, August 1, 2024. Here is the link to the withdrawal: 2024-16765.pdf (govinfo.gov).
What the withdrawal of this direct final rule means
- This direct final rule will not become effective on August 5.
- A parallel proposed rulemaking will not become a final rule until DOT has meaningfully considered the public comments filed by July 22, 2024. This parallel notice of proposed rulemaking is still open, and it proposes to change specific provisions of the DOT’s regulation, Part 40, including:
- delaying the training of oral fluid collectors until after HHS certifies the primary and secondary laboratories for oral fluid testing;
- lowering the standards for a collector to be considered a “qualified collector” under Part 40 for proficiency demonstrations; and
- allowing collectors to check the adequacy of the oral fluid specimen and note it on the Federal Drug Testing Custody and Control Form before the actual specimen is fully collected.
- The withdrawal of this final rule has NO IMPACT on DOT’s Oral Fluid Final Rule published on May 2, 2023, which became effective on June 1, 2023. Here is that final rule: 2023-08041.pdf (govinfo.gov). That oral fluid final rule is fully effective and we are eagerly awaiting the announcement of the device to be used!
On a final note, there were 16 comments to the rulemaking docket for the direct final rule that was withdrawn today. NDASA and its members submitted 13 of the comments in opposition to that direct final rule.
NDASA extends its appreciation to the following for their comments in support of NDASA’s comments: James A. Greer, Brian Drew, Accredited Drug Testing, First Choice Drug Testing, remedy NOW Consulting, Certified Training Solutions, Workplace Screening Intelligence, Lynn Collins, and John Throckmorton, and National Drug Screening.
For questions about today’s announcement, please contact NDASA Executive Director Jo McGuire.
NDASA Bulletin from 6/24/24 regarding the original DOT announcement:
On June 21, 2024 the Department of Transportation (DOT) published three notices in the Federal Register relating to its May 2, 2023, final rule that, among other items, authorized employers to use oral fluid drug testing as an alternative testing methodology to urine drug testing. The three notices are:
- A series of technical amendments, effective today, to clarify certain provisions of the rule and address omissions of which we have become aware since the publication of the final rule.
- A direct final rule (DFR) to (a) provide temporary qualification requirements for mock oral fluid monitors, (b) provide for consistent privacy requirements by identifying which individuals may be present during an oral fluid collection, and (c) clarify how collectors are to specify that a sufficient volume of oral fluid was collected. Comments are due July 22, 2024.
- A notice of proposed rulemaking containing the same amendments in the DFR that serves as the proposed rule to amend the procedures for DOT’s drug testing program (49 CFR 40) if adverse comments are received on any of the provisions in the DFR.
To learn more about these notices, view the documents at https://www.transportation.gov/odapc/frpubs