U.S. DOT Issues Notice of Proposed Rulemaking Regarding Oral Fluid Testing

U.S. DOT Issues Notice of Proposed Rulemaking Regarding Oral Fluid Testing

 

On December 9, 2024 the U.S. Department of Transportation (DOT) published a Notice of Proposed Rulemaking regarding oral fluid testing. The DOT proposes to revise its drug testing regulation, Procedures for Transportation Workplace Drug and Alcohol Testing Programs (49 CFR part 40), to address unforeseen circumstances rendering it impossible to comply with requirements in the final rule.

The DOT published a final rule amending the procedures for its drug testing program (49 CFR part 40) on May 2, 2023 (88 FR 27596) (May 2023 Final Rule). The May 2023 Final Rule went into effect on June 1, 2023.

The May 2023 Final Rule authorized oral fluid drug testing as an additional methodology for employers to use as a means of achieving the safety goals of the program. In the May 2023 Final Rule, the DOT required an oral fluid test to be conducted in certain circumstances where an observed collection is required.

However, because oral fluid testing is not yet available, the DOT proposes to amend the regulations to require the conduct of directly observed urine collections in those circumstances for an interim period. This rulemaking would correct the inadvertent factual impossibility created by the May 2023 Final Rule as oral fluid testing is not yet available.

Here are the key points of the proposed rule:

Purpose of the Rule:

• DOT proposes an interim requirement for directly observed urine tests in situations where oral fluid tests are currently required but not feasible due to the unavailability of certified oral fluid testing laboratories.

Background:

• A May 2023 final rule authorized oral fluid drug testing but made it mandatory in certain cases. However, no certified laboratories for oral fluid testing exist yet, creating a compliance issue.

Proposed Changes:

• Directly observed urine tests will temporarily replace oral fluid tests in specified scenarios.
• This requirement will sunset one year after two certified oral fluid laboratories are operational.

Regulatory and Economic Impacts:

• The rule is deemed non-significant under executive orders and is expected to have minimal economic impact.
• It does not impose significant costs on small businesses or create unfunded mandates.

Additional Amendments:

• Minor corrections to the regulatory text, such as replacing “collector” with “observer” in specific sections, are included.

Public Participation:

• Stakeholders are invited to comment by January 8, 2025.

To view the rule, click on the link here https://www.regulations.gov/document/DOT-OST-2021-0093-0461.