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The Office of General Counsel and Office of Drug and
Alcohol Policy and Compliance of the Department of
Transportation are providing these questions and answers.
They constitute official and authoritative guidance and
interpretation concerning 49 CFR Part 40 (see 49 CFR 40.5).
These Questions and Answers are dated 06/04.
QUESTION:
Will FMCSA- and FAA-regulated employers complying with
the drug and alcohol information records check requirements
contained in the Federal Motor Carrier Safety Administration
(FMCSA) regulation 49 CFR Part 391 and the Federal Aviation
Administration (FAA) Pilot Record Improvement Act be
considered compliant with 40.25?
ANSWER:
- Yes. Employers who are required by and who comply
with the FMCSA’s three-year requirement for obtaining
and providing employee drug and alcohol testing
information are considered to have satisfied the
two-year requirement contained in 40.25.
- Likewise, employers who are required by and who
comply with the FAA’s five-year requirement for
obtaining and providing employee drug and alcohol
testing information are considered to have satisfied the
two-year requirement contained in 40.25.
- These employers do not need to seek separately the
40.25 information if the employer adheres to the FMCSA
and FAA regulations, as appropriate, for obtaining an
employee’s prior drug and alcohol testing information.
QUESTION:
What must an MRO do when he or she determines that there
is no split laboratory capable of testing the adulterant
identified by the primary laboratory after the employee has
asked for the split to be tested?
ANSWER:
- The Department views this situation as closely
paralleling the MRO reporting requirement, at 40.187(d),
when the split specimen is not available for testing
after the request to test the split is made by the
employee. Therefore, the MRO needs to follow similar
steps.
- The MRO must report to the employer that the
specimen, “Failed to Reconfirm: Split Laboratory not
Available for Testing.”
- The MRO must also report to the DER and the
employee that the test result must be cancelled and
the reason for the cancellation.
- The MRO must direct the DER to ensure the
immediate collection of another specimen from
the employee under direct observation, with
no notice give to the employee of this collection
requirement until immediately before the collection.
- Finally, the MRO must notify ODAPC of the
failure to reconfirm.
- The result of the collection under direct
observation will be the result of record for this
testing event.
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