DOT Withdraws Latest Changes to Drug Testing Rules

Due to public opposition, the U.S. Department of Transportation (DOT) has withdrawn a few changes it recently made to its saliva-based drug testing rules.

The changes to Part 40 were issued on June 21 and were due to go into effect on August 5, 2024. The revisions to sections 40.35 and 40.73 were meant to:

• Identify who can be present during a saliva collection,
• Clarify how collectors should specify that enough saliva was collected, and
• Provide temporary qualification requirements for mock saliva-collection monitors.

The changes were published as a “direct” rule with no prior opportunity for public input. However, on the same day the rule was issued, the DOT took the unusual step of publishing the same changes as a “proposed” rule, following the normal notice-and-comment rulemaking process.

At the time, the agency said if it received any negative comments about the “direct” rule, it would withdraw it and forge ahead with the more drawn-out process normally used to change a regulation. In a notice published August 1st, the agency says it did receive negative feedback about the changes and is withdrawing them for now.

Since the public was given a chance to weigh in on the proposed version of the rule, no additional comment period will be offered, the DOT says. The agency’s next step is to review the comments, revise the proposed changes as needed, and publish another final version.

Minor technical corrections to the drug testing rules that were also published on June 21 (and went into effect that same day) were not affected.

The DOT revised its drug-testing rules in May 2023 to add saliva-based testing as an option. Motor carriers will not be able to perform saliva testing, however, until at least two laboratories are certified to test saliva (no labs have been certified to date). The DOT’s June 21 rule changes were meant to address deficiencies in those saliva testing rules, particularly as they relate to the saliva collection process.

Count on J. J. Keller to keep you informed as laboratories are certified by the U. S. Department of Health and Human Services (HHS) to process specimens.

Motor carriers should use this interim period to:

• Evaluate whether oral-fluid drug testing is a fit for their operation,
• Dialogue with service agents,
• Update their DOT drug and alcohol policy, and
• Train drivers, supervisors, and program managers on the testing method.

Key to remember

When considering an optional provision in the safety regulations, such as the oral-fluid drug test, you need to weigh the decision and then make a to-do list if implemented.

Read our in-depth checklist to prepare now for oral-fluid testing.

Will you be adding oral-fluid testing to your DOT D & A program? Reach out to us and find out how to implement this optional provision.