Mandatory Guidelines for Federal Workplace Drug Testing Programs, 70768-70811 [2023-21734]

Download as PDF 70768 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations DEPARTMENT OF HEALTH AND HUMAN SERVICES 42 CFR Chapter I Mandatory Guidelines for Federal Workplace Drug Testing Programs Substance Abuse and Mental Health Services Administration (SAMHSA), Department of Health and Human Services (HHS). ACTION: Issuance of mandatory guidelines. AGENCY: The Department of Health and Human Services (‘‘HHS’’ or ‘‘Department’’) has revised the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine (UrMG), which published in the Federal Register of January 23, 2017. DATES: The mandatory guidelines are effective February 1, 2024. FOR FURTHER INFORMATION CONTACT: Eugene D. Hayes, Ph.D., MBA, SAMHSA, CSAP, DWP; 5600 Fishers Lane, Room 16N02, Rockville, MD 20857, by telephone (240) 276–1459 or by email at Eugene.Hayes@ samhsa.hhs.gov. SUMMARY: SUPPLEMENTARY INFORMATION: ddrumheller on DSK120RN23PROD with RULES3 Executive Summary These revised Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine (UrMG) establish a process whereby the Department annually publishes the authorized drug testing panel (i.e., drugs, analytes, or cutoffs) to be used for Federal workplace drug testing programs; revise the definition of a substituted specimen to include specimens with a biomarker concentration inconsistent with that established for a human specimen, establish a process whereby the Department publishes an authorized biomarker testing panel (i.e., biomarker analytes and cutoffs) for Federal workplace drug testing programs; update and clarify the oral fluid collection procedures; revise the confirmatory test cutoff for morphine; revise the Medical Review Officer (MRO) verification process for positive codeine and morphine specimens; and require MROs to submit semiannual reports to the Secretary or designated HHS representative on Federal agency specimens that were reported as positive for a drug or drug metabolite by a laboratory and verified as negative by the MRO. In addition, some wording changes have been made for clarity and for consistency with the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 (OFMG) or to apply to any authorized specimen type. The Department is publishing a separate Federal Register Notification (FRN) elsewhere in this issue of the Federal Register with the revised OFMG, which include the same or similar revisions as the UrMG, where appropriate. Background Pursuant to its authority under section 503 of Public Law 100–71, 5 U.S.C. 7301, and Executive Order 12564, HHS establishes the scientific and technical guidelines for Federal workplace drug testing programs and establishes standards for certification of laboratories engaged in drug testing for Federal agencies. Using data obtained from the Federal Workplace Drug Testing Programs and HHS-certified laboratories, the Department estimates that 275,000 urine specimens are tested annually by Federal agencies. No Federal agencies are testing hair or oral fluid specimens at this time. HHS originally published the Mandatory Guidelines for Federal Workplace Drug Testing Programs (hereinafter referred to as Guidelines or Mandatory Guidelines) in the Federal Register (FR) on April 11, 1988 (53 FR 11979). The Substance Abuse and Mental Health Services Administration (SAMHSA) subsequently revised the Guidelines on June 9, 1994 (59 FR 29908), September 30, 1997 (62 FR 51118), November 13, 1998 (63 FR 63483), April 13, 2004 (69 FR 19644), and November 25, 2008 (73 FR 71858). SAMHSA published the current Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine (UrMG) on January 23, 2017 (82 FR 7920), and published the current Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid (OFMG) on October 25, 2019 (84 FR 57554). SAMHSA published proposed Mandatory Guidelines for Federal Workplace Drug Testing Programs using Hair (HMG) on September 10, 2020 (85 FR 56108), and proposed revisions to the UrMG (87 FR 20560) and OFMG (87 FR 20522) on April 7, 2022. There was a 60-day public comment period following publication of the proposed UrMG, during which 22 commenters submitted 93 comments on the UrMG. These commenters were comprised of individuals, organizations, and private sector companies. The comments are available for public view at https://www.regulations.gov/. All comments were reviewed and taken into consideration in the preparation of the PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 Guidelines. The issues and concerns raised in the public comments for the UrMG are set forth below. Similar comments are considered together in the discussion. Summary of Public Comments and HHS’s Response The following comments were directed to the information and questions in the preamble. Authorized Drug Testing Panel The Department requested comments on its proposal to publish the drug testing panel separately from the UrMG in a Federal Register Notification (FRN) each year. Sixteen commenters submitted a total of 35 comments on this topic for the UrMG. Eight commenters disagreed with publishing a revised drug testing panel without a public comment period, expressing concerns that stakeholders including individuals subject to federally regulated drug testing would not be given the opportunity to provide comment and that the Department would miss valuable input including information on costs and burden. Some of these commenters suggested alternate ways to permit public comment while enabling a quicker response to testing panel changes (e.g., setting a shorter comment period, publishing the Guidelines as an interim final rule or issuing an advance notice of proposed rulemaking). The Department has reviewed these comments and suggestions and determined that no changes to the proposed Guidelines are needed. The Department has developed procedures which will allow review and comment before testing panel changes are published, as described below. Consistent with current procedures, prior to making a change to the drug or biomarker testing panel, the Department will conduct a thorough review of the scientific and medical literature, and will solicit review and input from subject matter experts such as Responsible Persons (RPs) of HHScertified laboratories, Medical Review Officers (MROs), research scientists, manufacturers of collection devices and/or immunoassay kits, as well as Federal partners such as the Department of Transportation (DOT), the Food and Drug Administration (FDA), and the Drug Enforcement Administration (DEA). Further, the Department plans to provide notice and opportunity for public comment regarding any proposed changes to the drug and biomarker testing panels as part of Drug Testing Advisory Board (DTAB) meetings and procedures. E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Information regarding any proposed changes to the drug analyte and biomarker testing panels and a request for public comment will be included in an advance notice of the DTAB meeting published in the Federal Register, along with the timeframe and method(s) for comment submission. During the meeting, the Department will present the basis for adding or removing analytes (i.e., including technical and scientific support for the proposed changes), as well as a discussion of related costs and benefits. This information will be provided in advance to DTAB members. The Department will review all submitted public comments and will share information during a DTAB session prior to DTAB’s review of SAMHSA’s recommendation to the Secretary regarding each proposed change. The Department will make the final decision on any panel changes and include the effective date(s) in the annual Notification, to allow time for drug testing service providers (e.g., immunoassay kit manufacturers, oral fluid collection device manufacturers) to develop or revise their products, and for HHS-certified laboratories to develop or revise assays, complete validation studies, and revise procedures. Four commenters disagreed that HHS is exempt from the Administrative Procedure Act (APA) requirements. Two of these specifically stated that the Guidelines are subject to APA requirements because DOT is required to use the Guidelines for their transportation industry drug testing programs. The Department explained why the APA does not apply under the Regulatory Impact and Notices section of the current UrMG (82 FR 7920) and has repeated the same information in that section below. Ten commenters were concerned that the Department will not allow sufficient time for stakeholders to implement changes (e.g., time for Food and Drug Administration [FDA] clearance for new or revised products, information technology [IT] changes, process development and/or changes, contractual changes, and training). Some of these commenters suggested that the Department set a standard time period (e.g., 90 days) for implementation of changes or based on the complexity of the change (e.g., between 90 and 365 days). The Department will establish a reasonable time for implementation based on the change, rather than setting a standard time period for all changes. As noted above, the Department will solicit information from stakeholders to assist in decision making. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 In regard to the use of FDA-cleared immunoassay initial tests, two commenters suggested that federally regulated drug testing could fall under what they referred to as the FDA’s Employment and Insurance exemption. The Department notes that, while some drugs of abuse test systems intended for employment and insurance testing are, under certain circumstances, exempt from the premarket notification procedures in 21 CFR part 807, subpart E, such exemptions do not apply to test systems intended for Federal drug testing programs. See 21 CFR part 862, subpart D. Applicant and HHS-certified test facilities must verify that test systems subject to FDA regulations are approved or otherwise cleared by FDA and, in addition, must validate test systems prior to use in accordance with requirements specified in the National Laboratory Certification Program (NLCP) Manuals for Urine Laboratories and Initial Instrumented Test Facilities (IITFs). One commenter appeared to misinterpret the Department’s testing panel proposal, objecting to the Department making changes to the testing panels each year. The Department plans to issue an annual Notification with the current testing panels and required nomenclature, but will make changes only when needed to ensure the continued effectiveness of Federal workplace drug testing programs, which may not be every year. Four commenters specifically agreed with the need to streamline and improve processes for making changes to the testing panels. Three of these commenters expressed concern over the process for testing panel review and who would be involved, and suggested involving other stakeholders (e.g., HHScertified laboratories, DTAB, FDA). As noted above, the Department will use multiple methods and involve subject matter experts from various stakeholder groups to determine testing panel changes, and will provide opportunity for public review and comment before changes are made. FDA, DOT, and other Federal partners will also have opportunities to review and provide input. The other commenter suggested that the Department include additional prescriptive language in each annual Notification (e.g., street names, detection times, pharmacological information on added drugs for MROs; Custody and Control Form (CCF) instructions for collectors). The Department has determined that no changes to the proposed Guidelines are needed. Relevant information and guidance will be included in the MRO PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 70769 Guidance Manual, Case Studies, Guidance for Using the Federal Custody and Control Form (CCF), and Specimen Collection Handbook. These documents are posted on SAMHSA’s website, https://www.samhsa.gov/workplace. One commenter stated that testing panel changes would lead to an increase in incorrect information on the Federal CCF. The Department disagrees, noting that the Federal CCF does not include preprinted analyte names. One of the commenters agreed with posting a Notification without a public comment period for added drugs, but disagreed with removing drugs from the testing panel without public comment. The commenter noted that entities (e.g., DOT, some states) are required by law to use the Guidelines testing panel should be able to continue testing those drugs, even if Federal agencies will not. The Department has determined that no changes to the proposed Guidelines are needed to address these concerns. See additional comments under Section 3.4 below. Authorized Biomarker Testing Panel The Department requested comments on its proposal to publish the biomarker testing panel separately from the UrMG in the Federal Register each year. Five commenters submitted a total of 12 comments on this topic for the UrMG. Two commenters disagreed with publishing a biomarker testing panel without a public comment period, expressing concerns that stakeholders would not be given the opportunity to provide comment and that the Department would miss valuable input including information on costs and burden. Two other commenters specifically agreed with the need to streamline and improve processes for making changes to the testing panels, but suggested involving other stakeholders (e.g., HHScertified laboratories, DTAB). The Department has reviewed these comments and determined that no changes to the proposed Guidelines are needed. The Department has developed procedures which will allow review and comment before testing panel changes are published, as described under Authorized drug testing panel above. One commenter disagreed that HHS is exempt from the APA requirements. The Department has reviewed the comment and determined that no change is needed to the proposed Guidelines. The Department explained why the APA does not apply under the Regulatory Impact and Notices section of the current UrMG (82 FR 7920) and has repeated the same information in that section below. E:\FR\FM\12OCR3.SGM 12OCR3 70770 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Two commenters were concerned that the Department will not allow sufficient time for stakeholders to implement changes (e.g., time for information technology [IT] changes, process development and/or changes, training). The commenters suggested that the Department set a standard time for implementation of all changes (e.g., 90 days, six months). As noted under Authorized drug testing panel above, the Department will establish a reasonable time for implementation based on the change, rather than setting a standard time period for all changes, and will solicit information from multiple sources to assist in decision making. Two commenters suggested that the Department require all HHS-certified laboratories to perform standardized specimen validity and biomarker tests on all federally regulated specimens, and allow laboratories to choose whether to offer additional specialized tests upon MRO request on a case-bycase basis. This is consistent with current UrMG requirements for specimen validity testing. The Department is not requiring all certified laboratories to conduct biomarker testing at this time. However, if the drug testing industry identifies a need for such tests and an HHS-certified laboratory chooses to offer a biomarker test to their regulated clients, the Department will ensure that the tests provide scientifically valid and forensically defensible results and will revisit the need for requiring the test on all specimens. ddrumheller on DSK120RN23PROD with RULES3 Medical Review Officer (MRO) Verification of Codeine and Morphine Test Results The Department removed the additional decision point for codeine and morphine, adjusted the confirmatory test cutoff for morphine from 2,000 to 4,000 ng/mL, and removed the additional requirement for clinical evidence of illegal opioid use. The Department received one comment agreeing with these changes to the UrMG. Medical Review Officer (MRO) Semiannual Reports In Section 13.11, the Department added requirements for each MRO performing medical review services for Federal agencies to submit semiannual reports, in January and July of each year, of Federal agency specimens that were reported as positive for a drug or drug metabolite by the laboratory and verified as negative by the MRO, along with the reason for the negative verification (e.g., a valid prescription for VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 a drug). Six commenters submitted six comments on this topic for the UrMG. Four commenters disagreed, stating that HHS had not clearly described the reason and the process for such reports. One commenter noted that the Department had not presented data documenting that MROs were incorrectly reporting specimens, and it was unclear how the reports could be matched to laboratory report information submitted to the National Laboratory Certification Program (NLCP). Another commenter was concerned that donors would be identifiable, and that ‘‘a database of legal drug use’’ would violate donor privacy. One of the commenters expressed concern over ‘‘unintended consequences’’ for DOT and state workplace drug testing programs, without further explanation. One commenter disagreed on the basis of added costs and burden to MROs (e.g., system revisions, increased staff workload). One commenter agreed that such reports could be beneficial, but suggested that MROs provide the same information as provided by laboratories to the NLCP. The commenter incorrectly stated that laboratories do not provide specimen identification numbers to the NLCP. The Department has reviewed the comments and determined that no change is needed to the proposed Guidelines. To clarify, this reporting policy is only for Federal agency specimens, not DOT-regulated specimens. Further, the reports are not for all positive specimens, only for those specimens that were reported as positive by the laboratory and verified as negative by the MRO. The requested MRO information is sufficient to enable matching to HHS-certified laboratory information provided to the NLCP without identifying the donor. At this time, there is no system-wide mechanism for identifying MRO verification practices for Federal agency specimens that are inconsistent with the Mandatory Guidelines, so data on incorrect reporting is not available. The Department is not planning to share MRO-specific information, but may share statistical information and deidentified examples of incorrect reporting by various means (e.g., DTAB meeting presentations, revisions to the MRO Guidance Manual and/or Case Studies). The Department will also provide this information to HHSapproved MRO certification organizations to share with their certified MROs and to update training materials and examinations as needed. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 Marijuana Testing The Department did not propose any changes to the UrMG in regard to marijuana testing, but received three comments from three commenters disagreeing with the current requirements. Two commenters supported medical use of marijuana. One commenter supported legalization of marijuana in general. Current Federal law requires Federal agencies to test for marijuana under E.O. 12564 in their workplace drug testing programs. The Department also edited Section 13.5(c) to clarify that only prescription medications can be offered as a legitimate medical explanation for a positive drug test (as described under Section 13.5 below). No further edits are required at this time. Discussion of Sections The Department has not included a discussion in the preamble of any sections for which public comments were not submitted or for minor wording changes (e.g., edits for clarity, typographical or grammatical corrections). Subpart A—Applicability Section 1.5 What do the terms used in these Guidelines mean? Two commenters agreed and one disagreed with the Department’s proposed revision to the Substituted Specimen definition in Section 1.5 to include specimens tested for a biomarker. The commenter who disagreed stated that there are situations in which a legitimate specimen may be reported as outside the standards for human specimens, and these should be reported as invalid. The Department has reviewed the comment and determined that no change is needed to the proposed Guidelines. The Department will follow the procedures summarized under Authorized drug testing panel above to enable public comment and review, and will ensure that a biomarker test is scientifically supported and forensically sound to identify specimens as substituted before allowing its use with federally regulated drug testing. Specimens that do not meet established criteria for the biomarker test will not be reported as substituted. Section 1.7 What is a refusal to take a federally regulated drug test? In Section 1.7(a), the Department proposed to remove two exceptions for reporting a refusal to test for a preemployment test: a donor who fails to appear in a reasonable time and a donor who leaves the collection site before the collection process begins. Seven E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations commenters submitted seven comments on this proposal. Five commenters disagreed with the changes, noting that an applicant may fail to appear because they have taken a different job offer. The commenters noted that a refusal to test in the individual’s record could prevent individuals from taking other job offers and/or require them to undergo unnecessary return-to-duty testing. The Department has reviewed the comments and determined that no change is needed. As stated in this section, the Federal agency determines a reasonable time for the donor to take the test, consistent with applicable agency regulations, and directs the individual accordingly. At the time an applicant is scheduled for a pre-employment drug test, or before, Federal agencies should provide the applicant with instructions on how to notify the agency in the event that they decide to withdraw their application or to not accept a job offer. Such instructions will allow the agency to cancel the drug test and help applicants avoid a refusal to test result. One commenter noted that the Guidelines should state that the designated employer representative (DER) makes the determination of a refusal to test. The Department has reviewed the comment and determined that no change is needed. As stated in this section, the Federal agency takes action consistent with applicable agency regulations. ddrumheller on DSK120RN23PROD with RULES3 Subpart C—Urine Specimen Tests Section 3.4 What are the drug and biomarker test analytes and cutoffs for urine? The Department revised Section 3.4 to describe the annual publication of the drug testing and biomarker testing panels and the nomenclature required for laboratory and MRO reports. Three commenters submitted four comments on the required nomenclature required for laboratory and MRO reports, which are addressed below. Comments on the testing panels are addressed under Authorized drug testing panel and Authorized biomarker testing panel above. In regard to the required nomenclature specified in the annual Federal Register Notification, two commenters noted it is difficult and requires substantial effort for stakeholders to make such changes to their information technology (IT) systems. These commenters suggested that HHS convene a working group for review and input on nomenclature changes, to include employers, third party administrators, providers of VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 electronic Federal Custody and Control Forms (ECCF providers), laboratories, and MROs. One commenter agreed with publishing the required nomenclature for each change to the testing panel, but suggested that nomenclature not be changed after publication to avoid increased costs and confusion. One commenter recommended a minimum of one-year implementation period after nomenclature changes are published. The Department will establish required terminology based on correct scientific nomenclature for added analytes. As described under Authorized drug testing panel above, the Department has developed procedures to allow public notice and comment on proposed drug analyte changes through DTAB meetings and procedures. The Department will publish separate nomenclature lists for urine and oral fluid analytes. Subpart F—Federal Drug Testing Custody and Control Form Section 6.2 What happens if the correct Office of Management and Budget (OMB)-approved Federal CCF is not available or is not used? One commenter stated that the Department should specify what constitutes an incorrect form, how a collector’s signed memorandum must be submitted to correct submission of an incorrect CCF, and what actions an HHS-certified laboratory must take in response to an incorrect CCF. The Department has determined that no changes to the Guidelines are needed. The Department issues Guidance for Using the Federal CCF as part of the OMB-approved package and provides information and guidance specific to the current and expired versions of the Federal CCF, rather than including them in these Guidelines. Subpart H—Urine Specimen Collection Procedure 8.3 What are the preliminary steps in the urine specimen collection procedure? There were no comments on this section; however, the Department added a sentence in item h stating that a donor is not required to remove any items worn for faith-based reasons. This requirement will be specified for all authorized specimen types. Subpart K—Laboratory Section 11.20 How long must an HHScertified laboratory retain specimens? The Department did not propose any changes to this section. One commenter submitted a comment specifically PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 70771 agreeing with the existing UrMG requirement for laboratories to maintain substituted urine specimens for a period of one year after reporting. The comment appeared to be in response to DOT’s February 28, 2022 notice of proposed rulemaking (NPRM) for transportation industry drug testing programs. Subpart M—Medical Review Officer (MRO) Section 13.3 What training is required before a physician may serve as an MRO? The Department did not propose any changes to this section; however, one commenter indicated that this section is unclear and needs substantial clarification regarding additional MRO training (e.g., what must training consist of, must the MRO take another certification exam, would this be required for annual panel changes). The commenter also suggested that MROs register with SAMHSA to get updates/ announcements and acknowledge review of that information. The Department has reviewed these comments and edited item b of this section to clarify that MROs must be trained on any revisions to the drug and biomarker testing panels. In regard to training, SAMHSA relies on the approved MRO certification entities to ensure that MROs certified by their organizations meet Guidelines requirements. Current documents on the SAMHSA website https:// www.samhsa.gov/workplace include the HHS Medical Review Officer Guidance Manual, MRO Cases Studies for Urine, and MRO Case Studies for Urine which address most of the suggested topics. The Department does not maintain an email list, but sends a notice through the NLCP to HHS-approved MRO certification organizations for dissemination to their certified MROs. The Department also sends additional guidance to HHS-certified laboratories to share with MROs, clients, and collectors as applicable. Section 13.5 What must an MRO do when reviewing a urine specimen’s test results? The Department revised Section 13.5(d)(2) to clarify that passive exposure to any drug (not just marijuana smoke) and ingestion of food products containing a drug (not just those containing marijuana) are not acceptable medical explanations for a positive drug test. The Department also added Section 13.5(d)(2)(iii) to clarify that only prescription medications can be offered as a legitimate medical explanation for E:\FR\FM\12OCR3.SGM 12OCR3 70772 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations a positive drug test. Two commenters disagreed with the addition of Section 13.5(d)(2)(iii), maintaining that a physician’s recommendation for medical marijuana should be considered a legitimate medical explanation for a positive test. The Department has evaluated these comments and determined that no change is needed at this time. Although an increased number of States have authorized marijuana use for medical purposes, marijuana remains a Schedule I controlled substance and cannot be prescribed under Federal law. For purposes of the Federal drug free workplace program, Federal law pertaining to marijuana control supersedes State marijuana laws, and therefore, a physician’s recommendation for marijuana use is not a legitimate medical explanation for a positive marijuana test. Also see comments under Marijuana testing above. In addition to the changes described above, the Department reordered UrMG Sections 13.8 and 13.9 to reflect the procedural order (i.e., requirements for an MRO to report a primary specimen test result are now in Section 13.8, and requests for a test of the split specimen are addressed in Section 13.9). ddrumheller on DSK120RN23PROD with RULES3 Regulatory Impact and Notices The potential impact that these Guidelines have on the Department of Transportation (DOT) and/or Nuclear Regulatory Commission (NRC) regulated industries depends on the extent to which these agencies incorporate the UrMG revisions into their regulatory programs. Therefore, analysis of the potential impact of these Guidelines on such programs falls under the regulatory purview of DOT and NRC. Executive Order 14094, 13563, and 12866 Executive Order 14094 of April 6, 2023 (Modernizing Regulatory Review) reaffirms the statement set forth in 13563 of January 18, 2011 (Improving Regulation and Regulatory Review) that ‘‘Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.’’ Consistent with this mandate, Executive Order 13563 requires agencies to tailor ‘‘regulations to impose the least burden on society, consistent with obtaining regulatory objectives.’’ Executive Order 13563 also requires agencies to ‘‘identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice’’ while selecting ‘‘those approaches that maximize net VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 benefits.’’ The regulatory approach in this document will reduce burdens to providers and to consumers while continuing to provide adequate protections for public health and welfare. The Secretary has examined the impact of the Guidelines under Executive Order 12866, as amended by Executive Order 14094, which directs Federal agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). According to Executive Order 12866, as amended by Executive Order 14094, defines a ‘‘significant regulatory action’’ as one that is likely to result in a rule that may meet any one of a number of specified conditions, including: (1) have an annual effect on the economy of $200 million or more in any one year (adjusted every 3 years by the Administrator of the Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President’s priorities or the principles set forth in the Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case. The Administrative Procedure Act (APA) delineates an exception to its rulemaking procedures for ‘‘a matter relating to agency management or personnel’’ 5 U.S.C. 553(a)(2). Because the Guidelines issued by the Secretary govern Federal workplace drug testing programs, HHS has taken the position that the Guidelines are a ‘‘matter relating to agency management or personnel’’ and, thus, are not subject to the APA’s requirements for notice and comment rulemaking. This position is consistent with Executive Order 12564 regarding Drug-Free Workplaces, which directs the Secretary to promulgate scientific and technical guidelines for executive agency drug testing programs. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Costs and Benefits The Department included a Regulatory Impact and Notices section with cost and benefits analysis and burden estimates in the April 7, 2022 Federal Register Notification for the proposed UrMG (87 FR 20560), and requested public comment on all estimates and assumptions. Two commenters submitted comments concerning the Department’s costs and benefits analysis. One commenter noted that the Department did not consider the application of the Guidelines to DOT testing, and recommended reanalysis of the costs and burden of the proposed changes with consideration of the impact on testing by the transportation industry. Please see the first paragraph of the Regulatory Impact and Notices section above. The other commenter disagreed with the Department’s statement in the preamble to the proposed UrMG that ‘‘implementation costs would be lower for laboratories that already offer the drug test’’ compared to those laboratories that do not test for the added drug. The commenter indicated that the list of cost impacts for any change should include the laboratory’s assay validation, materials management, and updates to IT systems (e.g., laboratory information management system [LIMS], recipient systems, and electronic ordering systems). This commenter indicated that these additional costs should be considered, and that they will be dependent on the complexity and adaptability of these systems. The Department agrees that costs will depend on the change and noted that in the preamble to the proposed UrMG. The Department will continue to proactively solicit cost information from stakeholders when conducting a cost analysis. As described under Authorized drug testing panel above, the Department will include a discussion of related costs and benefits when presenting a proposed panel change during a DTAB meeting. Information Collection/Record Keeping Requirements The information collection requirements (i.e., reporting and recordkeeping) in the current Guidelines, which establish the scientific and technical guidelines for Federal workplace drug testing programs and establish standards for certification of laboratories engaged in urine drug testing for Federal agencies under authority of 5 U.S.C. 7301 and Executive Order 12564, are approved by the Office of Management and Budget E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations (OMB) under control number 0930– 0158. The Federal Drug Testing Custody and Control Form (Federal CCF) used to document the collection and chain of custody of urine and oral fluid specimens at the collection site, for laboratories to report results, and for Medical Review Officers to make a determination; the National Laboratory Certification Program (NLCP) application; the NLCP Laboratory Information Checklist; and recordkeeping requirements in the current Guidelines, as approved under control number 0930–0158, will remain in effect. In support of the Government Paperwork Reduction Act (PRA), the Department revised the Federal CCF to enable its use as an electronic form (78 FR 42091, July 15, 2013) and developed requirements and oversight procedures to ensure that HHS-certified test facilities and other service providers (e.g., collection sites, MROs) using an electronic version of the Federal CCF (ECCF) maintain the accuracy, security, and confidentiality of electronic drug test information. Before a Federal ECCF can be used for Federal agency specimens, HHS-certified test facilities 70773 sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Title: The Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine. Description: The Mandatory Guidelines establish the scientific and technical guidelines for Federal drug testing programs and establish standards for certification of laboratories engaged in drug testing for Federal agencies under authority of Public Law 100–71, 5 U.S.C. 7301 note, and Executive Order 12564. Federal drug testing programs test applicants to sensitive positions, individuals involved in accidents, individuals for cause, and random testing of persons in sensitive positions. Description of Respondents: Individuals or households, businesses, or other-for-profit and not-for-profit institutions. The burden estimates in the tables below are based on the following number of respondents: 38,000 donors who apply for employment or are employed in testing designated positions, 100 collectors, 25 urine specimen testing laboratories, 1 IITF, and 100 MROs. must submit detailed information and proposed standard operating procedures (SOPs) to the NLCP for SAMHSA review and approval, and undergo an NLCP inspection focused on the proposed ECCF. Since 2013, SAMHSA has encouraged the use of Federal ECCFs and other electronic processes in HHS-certified test facilities, when practicable, for federally regulated testing operations. In accordance with section 8108(a) of the SUPPORT for Patients and Communities Act, SAMHSA originally set a deadline of August 31, 2023 for all HHS-certified laboratories to submit a request for approval of a digital (paperless) electronic Federal CCF. The Department subsequently extended the deadline to August 31, 2026, to enable sufficient time for all HHS-certified laboratories to identify and contract with an ECCF supplier or to develop an ECCF. The title and description of the information collected and respondent description are shown in the following paragraphs with an estimate of the annual reporting, disclosure, and recordkeeping burden. Included in the estimate is the time for reviewing instructions, searching existing data ESTIMATE OF ANNUAL REPORTING BURDEN Purpose 9.2(a)(1) ......................... Laboratory or IITF required to submit application for certification. Materials to submit to become an HHS inspector. Laboratory submits qualifications of responsible person (RP) to HHS. Laboratory submits information to HHS on new RP or alternate RP. Specifications for laboratory semiannual statistical report of test results to each Federal agency. IITF 1 submits qualifications of RT to HHS ......... IITF 1 submits information to HHS on new RT or alternate RT. Specifications for IITF 1 semiannual statistical report of test results to each Federal agency. Specifies that MRO must report all verified primary and split specimen test results to the Federal agency. Specifications for MRO semiannual report to the Secretary or designated representative for Federal agency specimen results that were laboratory-positive and MRO-verified negative. Specifies content of request for informal review of suspension/proposed revocation of certification. Specifies information appellant provides in first written submission when laboratory suspension/revocation is proposed. Requires appellant to notify reviewing official of resolution status at end of abeyance period. Specifies contents of appellant submission for review. 9.12(a)(3) ....................... 11.3 ................................ 11.4(c) ............................ 11.22 .............................. 12.3(a) ........................... 12.4(c) ............................ 12.19 .............................. 13.8 and 14.7 ................ 13.11 .............................. 16.1(b) & 16.5(a) ........... ddrumheller on DSK120RN23PROD with RULES3 Number of respondents Section 16.4 ................................ 16.6 ................................ 16.7(a) ........................... VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 Responses/ respondent Hours/ response Total hours 10 1 3 30 10 1 2 20 10 1 2 20 10 1 2 20 10 5 0.5 25 1 1 1 1 1 1 1 1 1 1 1 1 100 14 0.05 (3 min) 70 100 2 0.5 100 1 1 3 3 1 1 0.5 0.5 1 1 0.5 0.5 1 1 50 50 E:\FR\FM\12OCR3.SGM 12OCR3 70774 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations ESTIMATE OF ANNUAL REPORTING BURDEN—Continued Number of respondents Responses/ respondent Hours/ response Section Purpose Total hours 16.9(a) ........................... 1 1 3 3 16.9(c) ............................ Specifies content of appellant request for expedited review of suspension or proposed revocation. Specifies contents of review file and briefs ......... 1 1 50 50 Total ........................ .............................................................................. 259 ........................ ........................ 395 1 Although IITFs are allowed under the UrMG, SAMHSA has not received any IITF application for certification to test federally regulated specimens. IITF numbers are provided in this analysis as placeholders for administrative purposes. when a sample is a blind sample (Section 10.3(a)); MRO notifies the Federal agency and HHS when an error occurs on a blind sample (Section 10.4(d)); and Sections 13.6 and 13.7 describe the actions an MRO takes for the medical evaluation of a donor who cannot provide a urine specimen. The following reporting requirements are also in the Guidelines, but have not been addressed in the above reporting burden table: collector must report any unusual donor behavior or refusal to participate in the collection process on the Federal CCF (Sections 1.8, 8.9); collector annotates the Federal CCF SAMHSA has not calculated a separate reporting burden for these requirements because they are included in the burden hours estimated for collectors to complete Federal CCFs and for MROs to report results to Federal agencies. ESTIMATE OF ANNUAL DISCLOSURE BURDEN Number of respondents Responses/ respondent Hours/ response Total hours Section Purpose 8.3(a), 8.5(f)(2)(iii), 8.6(b)(2). 11.23, 11.24 ................... Collector must contact Federal agency point of contact. Information on drug test that laboratory must provide to Federal agency upon request or to donor through MRO. Information on drug test that IITF must provide to Federal agency upon request or to donor through MRO. MRO must inform donor of right to request split specimen test when a positive, adulterated, or substituted result is reported. 100 1 0.05 (3 min) 5 25 10 3 750 1 1 1 1 100 14 3 4,200 .............................................................................. 226 ........................ ........................ 4956 12.20, 12.21 ................... 13.9(b) ........................... Total ........................ The following disclosure requirements are also included in the Guidelines, but have not been addressed in the above disclosure burden table: the collector must explain the basic collection procedure to the donor and answer any questions (Section 8.3(e) and (g)). SAMHSA believes having the collector explain the collection procedure to the donor and answer any questions is a standard business practice and not a disclosure burden. ESTIMATE OF ANNUAL RECORDKEEPING BURDEN Purpose 8.3, 8.5, 8.8 ................... Collector completes Federal CCF for specimen collected. Donor initials specimen labels/seals and signs statement on the Federal CCF. Laboratory completes Federal CCF upon receipt of specimen and before reporting result. IITF completes Federal CCF upon receipt of specimen and before reporting result. MRO completes Federal CCF before reporting the primary or split specimen result. MRO documents donor’s request to have split specimen tested. 8.8(d) & (f) ..................... 11.8(a) & 11.19 .............. 12.8(a) & 12.15 .............. ddrumheller on DSK120RN23PROD with RULES3 Number of respondents Section 13.4(d)(4), 13.8(c), 14.7(c). 14.1(b) ........................... Total ........................ .............................................................................. The Guidelines contain several recordkeeping requirements that VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Frm 00008 Fmt 4701 Sfmt 4700 Hours/ response Total hours 100 380 0.07 (4 min) 2,660 38,000 1 0.08 (5 min) 3,040 25 1,520 0.05 (3 min) 1,900 1 1 1 1 100 380 0.05 (3 min) 1,900 100 2 0.05 (3 min) 10 38,326 ........................ ........................ 9,511 SAMHSA considers not to be an additional recordkeeping burden. In PO 00000 Responses/ respondent subpart D, a trainer is required to document the training of an individual E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations to be a collector (Section 4.3(a)(3)) and the documentation must be maintained in the collector’s training file (Section 4.3(c)). SAMHSA believes this training documentation is common practice and is not considered an additional burden. In subpart F, if a collector uses an incorrect form to collect a Federal agency specimen, the collector is required to provide a statement (Section 6.2(b)) explaining why an incorrect form was used to document collecting the specimen. SAMHSA believes this is an extremely infrequent occurrence and does not create a significant additional recordkeeping burden. Subpart H (Sections 8.4(c), 8.5(d)(2) and (e)(1) and (2)) requires collectors to enter any information on the Federal CCF of any unusual findings during the urine specimen collection procedure. These recordkeeping requirements are an integral part of the collection procedure and are essential to documenting the chain of custody for the specimens collected. The burden for these entries is included in the recordkeeping burden estimated to complete the Federal CCF and is, therefore, not considered an additional recordkeeping burden. Subpart K describes a number of recordkeeping requirements for laboratories associated with their testing procedures, maintaining chain of custody, and keeping records (i.e., Sections 11.1(a) and (d); 11.2(b), (c), and (d); 11.6(b); 11.7(c); 11.8; 11.11(a); 11.14(a); 11.17; 11.21(a), (b), and (c); 11.22; 11.23(a); and 11.24). These recordkeeping requirements are necessary for any laboratory to conduct forensic drug testing and to ensure the scientific supportability of the test results. These practices are integrated in the current processes and, therefore, SAMHSA does not consider these standard business practices to be an additional burden for disclosure. Thus, the total annual response burden associated with the testing of urine specimens by the laboratories and IITFs is estimated to be 14,862 hours (that is, the sum of the total hours from the above tables). This is in addition to the 1,788,809 hours currently approved by OMB under control number 0930–0158 for urine testing under the current Guidelines. As required by section 3507(d) of the PRA, the Secretary submitted a copy of the proposed Guidelines to OMB for its review. Comments on the information collection requirements were specifically solicited in order to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of HHS’s functions, including whether the VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 information will have practical utility; (2) evaluate the accuracy of HHS’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Dated: September 27, 2023. Xavier Becerra, Secretary, Department of Health and Human Services. Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Urine Specimens Subpart A—Applicability 1.1 To whom do these Guidelines apply? 1.2 Who is responsible for developing and implementing these Guidelines? 1.3 How does a Federal agency request a change from these Guidelines? 1.4 How are these Guidelines revised? 1.5 What do the terms used in these Guidelines mean? 1.6 What is an agency required to do to protect employee records? 1.7 What is a refusal to take a federally regulated drug test? 1.8 What are the potential consequences for refusing to take a federally regulated drug test? Subpart B—Urine Specimens 2.1 What type of specimen may be collected? 2.2 Under what circumstances may a urine specimen be collected? 2.3 How is each urine specimen collected? 2.4 What volume of urine is collected? 2.5 How does the collector split the urine specimen? 2.6 When may an entity or individual release a urine specimen? Subpart C—Urine Specimen Tests 3.1 Which tests are conducted on a urine specimen? 3.2 May a specimen be tested for drugs other than those in the drug testing panel? 3.3 May any of the specimens be used for other purposes? 3.4 What are the drug and biomarker test analytes and cutoffs for urine? 3.5 May an HHS-certified laboratory perform additional drug and/or specimen validity tests on a specimen at the request of the Medical Review Officer (MRO)? 3.6 What criteria are used to report a urine specimen as adulterated? 3.7 What criteria are used to report a urine specimen as substituted? 3.8 What criteria are used to report a urine specimen as dilute? PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 3.9 70775 What criteria are used to report an invalid result for a urine specimen? Subpart D—Collectors 4.1 Who may collect a specimen? 4.2 Who may not collect a specimen? 4.3 What are the requirements to be a collector? 4.4 What are the requirements to be an observer for a direct observed collection? 4.5 What are the requirements to be a trainer for collectors? 4.6 What must a Federal agency do before a collector is permitted to collect a specimen? Subpart E—Collection Sites 5.1 Where can a collection for a drug test take place? 5.2 What are the requirements for a collection site? 5.3 Where must collection site records be stored? 5.4 How long must collection site records be stored? 5.5 How does the collector ensure the security and integrity of a specimen at the collection site? 5.6 What are the privacy requirements when collecting a urine specimen? Subpart F—Federal Drug Testing Custody and Control Form 6.1 What Federal form is used to document custody and control? 6.2 What happens if the correct OMBapproved Federal CCF is not available or is not used? Subpart G—Urine Specimen Collection Containers and Bottles 7.1 What is used to collect a urine specimen? 7.2 What are the requirements for a urine collection container and specimen bottles? 7.3 What are the minimum performance requirements for a urine collection container and specimen bottles? Subpart H—Urine Specimen Collection Procedure 8.1 What privacy must the donor be given when providing a urine specimen? 8.2 What must the collector ensure at the collection site before starting a urine specimen collection? 8.3 What are the preliminary steps in the urine specimen collection procedure? 8.4 What steps does the collector take in the collection procedure before the donor provides a urine specimen? 8.5 What steps does the collector take during and after the urine specimen collection procedure? 8.6 What procedure is used when the donor states that they are unable to provide a urine specimen? 8.7 If the donor is unable to provide a urine specimen, may another specimen type be collected for testing? 8.8 How does the collector prepare the urine specimens? 8.9 When is a direct observed collection conducted? 8.10 How is a direct observed collection conducted? E:\FR\FM\12OCR3.SGM 12OCR3 70776 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 8.11 When is a monitored collection conducted? 8.12 How is a monitored collection conducted? 8.13 How does the collector report a donor’s refusal to test? 8.14 What are a Federal agency’s responsibilities for a collection site? 10.4 Subpart K—Laboratory 11.1 ddrumheller on DSK120RN23PROD with RULES3 Subpart I—HHS Certification of Laboratories and IITFs 9.1 Who has the authority to certify laboratories and IITFs to test urine specimens for Federal agencies? 9.2 What is the process for a laboratory or IITF to become HHS-certified? 9.3 What is the process for a laboratory or IITF to maintain HHS certification? 9.4 What is the process when a laboratory or IITF does not maintain its HHS certification? 9.5 What are the qualitative and quantitative specifications of performance testing (PT) samples? 9.6 What are the PT requirements for an applicant laboratory that seeks to perform urine testing? 9.7 What are the PT requirements for an HHS-certified urine laboratory? 9.8 What are the PT requirements for an applicant IITF? 9.9 What are the PT requirements for an HHS-certified IITF? 9.10 What are the inspection requirements for an applicant laboratory or IITF? 9.11 What are the maintenance inspection requirements for an HHS-certified laboratory or IITF? 9.12 Who can inspect an HHS-certified laboratory or IITF and when may the inspection be conducted? 9.13 What happens if an applicant laboratory or IITF does not satisfy the minimum requirements for either the PT program or the inspection program? 9.14 What happens if an HHS-certified laboratory or IITF does not satisfy the minimum requirements for either the PT program or the inspection program? 9.15 What factors are considered in determining whether revocation of a laboratory’s or IITF’s HHS certification is necessary? 9.16 What factors are considered in determining whether to suspend a laboratory’s or an IITF’s HHS certification? 9.17 How does the Secretary notify an HHScertified laboratory or IITF that action is being taken against the laboratory or IITF? 9.18 May a laboratory or IITF that had its HHS certification revoked be recertified to test Federal agency specimens? 9.19 Where is the list of HHS-certified laboratories and IITFs published? Subpart J—Blind Samples Submitted by an Agency 10.1 What are the requirements for Federal agencies to submit blind samples to HHS-certified laboratories or IITFs? 10.2 What are the requirements for blind samples? 10.3 How is a blind sample submitted to an HHS-certified laboratory or IITF? VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 What happens if an inconsistent result is reported for a blind sample? What must be included in the HHScertified laboratory’s standard operating procedure manual? 11.2 What are the responsibilities of the responsible person (RP)? 11.3 What scientific qualifications must the RP have? 11.4 What happens when the RP is absent or leaves an HHS-certified laboratory? 11.5 What qualifications must an individual have to certify a result reported by an HHS-certified laboratory? 11.6 What qualifications and training must other personnel of an HHS-certified laboratory have? 11.7 What security measures must an HHScertified laboratory maintain? 11.8 What are the laboratory chain of custody requirements for specimens and aliquots? 11.9 What test(s) does an HHS-certified laboratory conduct on a urine specimen received from an IITF? 11.10 What are the requirements for an initial drug test? 11.11 What must an HHS-certified laboratory do to validate an initial drug test? 11.12 What are the batch quality control requirements when conducting an initial drug test? 11.13 What are the requirements for a confirmatory drug test? 11.14 What must an HHS-certified laboratory do to validate a confirmatory drug test? 11.15 What are the batch quality control requirements when conducting a confirmatory drug test? 11.16 What are the analytical and quality control requirements for conducting specimen validity tests? 11.17 What must an HHS-certified laboratory do to validate a specimen validity test? 11.18 What are the requirements for conducting each specimen validity test? 11.19 What are the requirements for an HHS-certified laboratory to report a test result? 11.20 How long must an HHS-certified laboratory retain specimens? 11.21 How long must an HHS-certified laboratory retain records? 11.22 What statistical summary reports must an HHS-certified laboratory provide for urine testing? 11.23 What HHS-certified laboratory information is available to a Federal agency? 11.24 What HHS-certified laboratory information is available to a Federal employee? 11.25 What types of relationships are prohibited between an HHS-certified laboratory and an MRO? 11.26 What type of relationship can exist between an HHS-certified laboratory and an HHS-certified IITF? PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 Subpart L—Instrumented Initial Test Facility (IITF) 12.1 What must be included in the HHScertified IITF’s standard operating procedure manual? 12.2 What are the responsibilities of the responsible technician (RT)? 12.3 What qualifications must the RT have? 12.4 What happens when the RT is absent or leaves an HHS-certified IITF? 12.5 What qualifications must an individual have to certify a result reported by an HHS-certified IITF? 12.6 What qualifications and training must other personnel of an HHS-certified IITF have? 12.7 What security measures must an HHScertified IITF maintain? 12.8 What are the IITF chain of custody requirements for specimens and aliquots? 12.9 What are the requirements for an initial drug test? 12.10 What must an HHS-certified IITF do to validate an initial drug test? 12.11 What are the batch quality control requirements when conducting an initial drug test? 12.12 What are the analytical and quality control requirements for conducting specimen validity tests? 12.13 What must an HHS-certified IITF do to validate a specimen validity test? 12.14 What are the requirements for conducting each specimen validity test? 12.15 What are the requirements for an HHS-certified IITF to report a test result? 12.16 How does an HHS-certified IITF handle a specimen that tested positive, adulterated, substituted, or invalid at the IITF? 12.17 How long must an HHS-certified IITF retain a specimen? 12.18 How long must an HHS-certified IITF retain records? 12.19 What statistical summary reports must an HHS-certified IITF provide? 12.20 What HHS-certified IITF information is available to a Federal agency? 12.21 What HHS-certified IITF information is available to a Federal employee? 12.22 What types of relationships are prohibited between an HHS-certified IITF and an MRO? 12.23 What type of relationship can exist between an HHS-certified IITF and an HHS-certified laboratory? Subpart M—Medical Review Officer (MRO) 13.1 Who may serve as an MRO? 13.2 How are nationally recognized entities or subspecialty boards that certify MROs approved? 13.3 What training is required before a physician may serve as an MRO? 13.4 What are the responsibilities of an MRO? 13.5 What must an MRO do when reviewing a urine specimen’s test results? 13.6 What action does the MRO take when the collector reports that the donor did not provide a sufficient amount of urine for a drug test? 13.7 What happens when an individual is unable to provide a sufficient amount of E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations urine for a Federal agency applicant/preemployment test, a follow-up test, or a return-to-duty test because of a permanent or long-term medical condition? 13.8 How does an MRO report a primary (A) specimen test result to an agency? 13.9 Who may request a test of a split (B) specimen? 13.10 What types of relationships are prohibited between an MRO and an HHS-certified laboratory or an HHScertified IITF? 13.11 What reports must an MRO provide to the Secretary for urine testing? 13.12 What are a Federal agency’s responsibilities for designating an MRO? 16.8 Subpart N—Split Specimen Tests 14.1 When may a split (B) specimen be tested? 14.2 How does an HHS-certified laboratory test a split (B) specimen when the primary (A) specimen was reported positive? 14.3 How does an HHS-certified laboratory test a split (B) urine specimen when the primary (A) specimen was reported adulterated? 14.4 How does an HHS-certified laboratory test a split (B) urine specimen when the primary (A) specimen was reported substituted? 14.5 Who receives the split (B) specimen result? 14.6 What action(s) does an MRO take after receiving the split (B) urine specimen result from the second HHS-certified laboratory? 14.7 How does an MRO report a split (B) specimen test result to an agency? 14.8 How long must an HHS-certified laboratory retain a split (B) specimen? Subpart A—Applicability ddrumheller on DSK120RN23PROD with RULES3 Subpart O—Criteria for Rejecting a Specimen for Testing 15.1 What discrepancies require an HHScertified laboratory or an HHS-certified IITF to report a urine specimen as rejected for testing? 15.2 What discrepancies require an HHScertified laboratory or an HHS-certified IITF to report a specimen as rejected for testing unless the discrepancy is corrected? 15.3 What discrepancies are not sufficient to require an HHS-certified laboratory or an HHS-certified IITF to reject a urine specimen for testing or an MRO to cancel a test? 15.4 What discrepancies may require an MRO to cancel a test? Subpart P—Laboratory or IITF Suspension/ Revocation Procedures 16.1 When may the HHS certification of a laboratory or IITF be suspended? 16.2 What definitions are used for this subpart? 16.3 Are there any limitations on issues subject to review? 16.4 Who represents the parties? 16.5 When must a request for informal review be submitted? 16.6 What is an abeyance agreement? 16.7 What procedures are used to prepare the review file and written argument? VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 When is there an opportunity for oral presentation? 16.9 Are there expedited procedures for review of immediate suspension? 16.10 Are any types of communications prohibited? 16.11 How are communications transmitted by the reviewing official? 16.12 What are the authority and responsibilities of the reviewing official? 16.13 What administrative records are maintained? 16.14 What are the requirements for a written decision? 16.15 Is there a review of the final administrative action? Section 1.1 To whom do these Guidelines apply? (a) These Guidelines apply to: (1) Executive agencies as defined in 5 U.S.C. 105; (2) The Uniformed Services, as defined in 5 U.S.C. 2101(3), but excluding the Armed Forces as defined in 5 U.S.C. 2101(2); (3) Any other employing unit or authority of the Federal Government except the United States Postal Service, the Postal Rate Commission, and employing units or authorities in the Judicial and Legislative Branches; and (4) The Intelligence Community, as defined by Executive Order 12333, is subject to these Guidelines only to the extent agreed to by the head of the affected agency; (5) Laboratories and instrumented initial test facilities (IITFs) that provide drug testing services to the Federal agencies; (6) Collectors who provide specimen collection services to the Federal agencies; and (7) Medical Review Officers (MROs) who provide drug testing review and interpretation of results services to the Federal agencies. (b) These Guidelines do not apply to drug testing under authority other than Executive Order 12564, including testing of persons in the criminal justice system, such as arrestees, detainees, probationers, incarcerated persons, or parolees. Section 1.2 Who is responsible for developing and implementing these Guidelines? (a) Executive Order 12564 and Public Law 100–71 require the Department of Health and Human Services (HHS) to establish scientific and technical guidelines for Federal workplace drug testing programs. (b) The Secretary has the responsibility to implement these Guidelines. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 70777 Section 1.3 How does a Federal agency request a change from these Guidelines? (a) Each Federal agency must ensure that its workplace drug testing program complies with the provisions of these Guidelines unless a waiver has been obtained from the Secretary. (b) To obtain a waiver, a Federal agency must submit a written request to the Secretary that describes the specific change for which a waiver is sought and a detailed justification for the change. Section 1.4 How are these Guidelines revised? (a) To ensure the full reliability and accuracy of specimen tests, the accurate reporting of test results, and the integrity and efficacy of Federal drug testing programs, the Secretary may make changes to these Guidelines to reflect improvements in the available science and technology. (b) Revisions to these Guidelines will be published in final as a notification in the Federal Register. Section 1.5 What do the terms used in these Guidelines mean? The following definitions are adopted: Accessioner. The individual who signs the Federal Drug Testing Custody and Control Form at the time of specimen receipt at the HHS-certified laboratory or (for urine) the HHScertified IITF. Adulterated Specimen. A specimen that has been altered, as evidenced by test results showing either a substance that is not a normal constituent for that type of specimen or showing an abnormal concentration of a normal constituent (e.g., nitrite in urine). Aliquot. A portion of a specimen used for testing. Alternate Responsible Person. The person who assumes professional, organizational, educational, and administrative responsibility for the day-to-day management of the HHScertified laboratory when the responsible person is unable to fulfill these obligations. Alternate Responsible Technician. The person who assumes professional, organizational, educational, and administrative responsibility for the day-to-day management of the HHScertified IITF when the responsible technician is unable to fulfill these obligations. Alternate Technology Initial Drug Test. An initial drug test using technology other than immunoassay to differentiate negative specimens from those requiring further testing. Batch. A number of specimens or aliquots handled concurrently as a group. E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 70778 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Biomarker. An endogenous substance used to validate a biological specimen. Biomarker Testing Panel. The panel published in the Federal Register that includes the biomarkers authorized for testing, with analytes and cutoffs for initial and confirmatory biomarker tests, as described under Section 3.4. Blind Sample. A sample submitted to an HHS-certified test facility for quality assurance purposes, with a fictitious identifier, so that the test facility cannot distinguish it from a donor specimen. Calibrator. A sample of known content and analyte concentration prepared in the appropriate matrix used to define expected outcomes of a testing procedure. The test result of the calibrator is verified to be within established limits prior to use. Cancelled Test. The result reported by the MRO to the Federal agency when a specimen has been reported to the MRO as an invalid result (and the donor has no legitimate explanation) or the specimen has been rejected for testing, when a split specimen fails to reconfirm, or when the MRO determines that a fatal flaw or unrecovered correctable flaw exists in the forensic records (as described in Sections 15.1 and 15.2). Carryover. The effect that occurs when a sample result (e.g., drug concentration) is affected by a preceding sample during the preparation or analysis of a sample. Certifying Scientist (CS). The individual responsible for verifying the chain of custody and scientific reliability of a test result reported by an HHS-certified laboratory. Certifying Technician (CT). The individual responsible for verifying the chain of custody and scientific reliability of negative, rejected for testing, and (for urine) negative/dilute results reported by an HHS-certified laboratory or (for urine) an HHScertified IITF. Chain of Custody (COC) Procedures. Procedures that document the integrity of each specimen or aliquot from the point of collection to final disposition. Chain of Custody Documents. Forms used to document the control and security of the specimen and all aliquots. The document may account for an individual specimen, aliquot, or batch of specimens/aliquots and must include the name and signature of each individual who handled the specimen(s) or aliquot(s) and the date and purpose of the handling. Collection Container. A receptacle used to collect a donor’s drug test specimen. Collection Site. The location where specimens are collected. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Collector. A person trained to instruct and assist a donor in providing a specimen. Confirmatory Drug Test. A second analytical procedure performed on a separate aliquot of a specimen to identify and quantify a specific drug or drug metabolite. Confirmatory Specimen Validity Test. A second test performed on a separate aliquot of a specimen to further support an initial specimen validity test result. Control. A sample used to evaluate whether an analytical procedure or test is operating within predefined tolerance limits. Cutoff. The analytical value (e.g., drug, drug metabolite, or biomarker concentration) used as the decision point to determine a result (e.g., negative, positive, adulterated, invalid, or substituted) or the need for further testing. Dilute Specimen. A urine specimen with creatinine and specific gravity values that are lower than expected but are still within the physiologically producible ranges of human urine. Donor. The individual from whom a specimen is collected. Drug Testing Panel. The panel published in the Federal Register that includes the drugs authorized for testing, with analytes and cutoffs for initial and confirmatory drug tests, as described under Section 3.4. External Service Provider. An independent entity that performs services related to Federal workplace drug testing on behalf of a Federal agency, a collector/collection site, an HHS-certified laboratory, a Medical Review Officer (MRO), or (for urine) an HHS-certified Instrumented Initial Test Facility (IITF). Failed to Reconfirm. The result reported for a split (B) specimen when a second HHS-certified laboratory is unable to corroborate the result reported for the primary (A) specimen. Federal Drug Testing Custody and Control Form (Federal CCF). The Office of Management and Budget (OMB) approved form that is used to document the collection and chain of custody of a specimen from the time the specimen is collected until it is received by the test facility (i.e., HHS-certified laboratory or, for urine, HHS-certified IITF). It may be a paper (hardcopy), electronic (digital), or combination electronic and paper format (hybrid). The form may also be used to report the test result to the Medical Review Officer. Gender Identity. Gender identity means an individual’s internal sense of being male or female, which may be different from an individual’s sex assigned at birth. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 HHS. The Department of Health and Human Services. Initial Drug Test. An analysis used to differentiate negative specimens from those requiring further testing. Initial Specimen Validity Test. The first analysis used to determine if a specimen is adulterated, invalid, substituted, or (for urine) dilute. Instrumented Initial Test Facility (IITF). A permanent location where (for urine) initial testing, reporting of results, and recordkeeping are performed under the supervision of a responsible technician. Invalid Result. The result reported by an HHS-certified laboratory in accordance with the criteria established in Section 3.9 when a positive, negative, adulterated, or substituted result cannot be established for a specific drug or specimen validity test. Laboratory. A permanent location where initial and confirmatory drug testing, reporting of results, and recordkeeping are performed under the supervision of a responsible person. Limit of Detection (LOD). The lowest concentration at which the analyte (e.g., drug or drug metabolite) can be identified. Limit of Quantification (LOQ). For quantitative assays, the lowest concentration at which the identity and concentration of the analyte (e.g., drug or drug metabolite) can be accurately established. Lot. A number of units of an item (e.g., reagents, quality control material) manufactured from the same starting materials within a specified period of time for which the manufacturer ensures that the items have essentially the same performance characteristics and expiration date. Medical Review Officer (MRO). A licensed physician who reviews, verifies, and reports a specimen test result to the Federal agency. Negative Result. The result reported by an HHS-certified laboratory or (for urine) an HHS-certified IITF to an MRO when a specimen contains no drug and/ or drug metabolite; or the concentration of the drug or drug metabolite is less than the cutoff for that drug or drug class. Oral Fluid Specimen. An oral fluid specimen is collected from the donor’s oral cavity and is a combination of physiological fluids produced primarily by the salivary glands. Oxidizing Adulterant. A substance that acts alone or in combination with other substances to oxidize drug or drug metabolites to prevent the detection of the drugs or drug metabolites, or affects the reagents in either the initial or confirmatory drug test. E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Performance Testing (PT) Sample. A program-generated sample sent to a laboratory or (for urine) to an IITF to evaluate performance. Positive Result. The result reported by an HHS-certified laboratory when a specimen contains a drug or drug metabolite equal to or greater than the confirmatory test cutoff. Reconfirmed. The result reported for a split (B) specimen when the second HHS-certified laboratory corroborates the original result reported for the primary (A) specimen. Rejected for Testing. The result reported by an HHS-certified laboratory or (for urine) HHS-certified IITF when no tests are performed on a specimen because of a fatal flaw or an unrecovered correctable error (see Sections 15.1 and 15.2). Responsible Person (RP). The person who assumes professional, organizational, educational, and administrative responsibility for the day-to-day management of an HHScertified laboratory. Responsible Technician (RT). The person who assumes professional, organizational, educational, and administrative responsibility for the day-to-day management of an HHScertified IITF. Sample. A performance testing sample, calibrator or control used during testing, or a representative portion of a donor’s specimen. Secretary. The Secretary of the U.S. Department of Health and Human Services. Specimen. Fluid or material collected from a donor at the collection site for the purpose of a drug test. Split Specimen Collection (for Urine). A collection in which the specimen collected is divided into a primary (A) specimen and a split (B) specimen, which are independently sealed in the presence of the donor. Standard. Reference material of known purity or a solution containing a reference material at a known concentration. Substituted Specimen. A specimen that has been submitted in place of the donor’s specimen, as evidenced by the absence of a biomarker or a biomarker concentration inconsistent with that established for a human specimen, as indicated in the biomarker testing panel, or (for urine) creatinine and specific gravity values that are outside the physiologically producible ranges of human urine, in accordance with the criteria to report a specimen as substituted in Section 3.7. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Section 1.6 What is an agency required to do to protect employee records? Consistent with 5 U.S.C. 552a and 48 CFR 24.101 through 24.104, all agency contracts with laboratories, IITFs, collectors, and MROs must require that they comply with the Privacy Act, 5 U.S.C. 552a. In addition, the contracts must require compliance with employee access and confidentiality provisions of section 503 of Public Law 100–71. Each Federal agency must establish a Privacy Act System of Records or modify an existing system or use any applicable Government-wide system of records to cover the records of employee drug test results. All contracts and the Privacy Act System of Records must specifically require that employee records be maintained and used with the highest regard for employee privacy. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule (Rule), 45 CFR parts 160 and 164, subparts A and E, may be applicable to certain health care providers with whom a Federal agency may contract. If a health care provider is a HIPAA covered entity, the provider must protect the individually identifiable health information it maintains in accordance with the requirements of the Rule, which includes not using or disclosing the information except as permitted by the Rule and ensuring there are reasonable safeguards in place to protect the privacy of the information. For more information regarding the HIPAA Privacy Rule, please visit https:// www.hhs.gov/hipaa/. Section 1.7 What is a refusal to take a federally regulated drug test? (a) As a donor for a federally regulated drug test, you have refused to take a federally regulated drug test if you: (1) Fail to appear for any test within a reasonable time, as determined by the Federal agency, consistent with applicable agency regulations, after being directed to do so by the Federal agency; (2) Fail to remain at the collection site until the collection process is complete; (3) Fail to provide a specimen (i.e., urine or another authorized specimen type) for any drug test required by these Guidelines or Federal agency regulations; (4) In the case of a direct observed or monitored collection, fail to permit the observation or monitoring of your provision of a specimen when required as described in Sections 8.9 and 8.10; (5) Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 70779 evaluation, that there was no legitimate medical explanation for the failure as determined by the process described in Section 13.6; (6) Fail or decline to participate in an alternate specimen collection (e.g., oral fluid) as directed by the Federal agency or collector (i.e., as described in Section 8.6); (7) Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process (i.e., Section 13.6) or as directed by the Federal agency. In the case of a Federal agency applicant/preemployment drug test, the donor is deemed to have refused to test on this basis only if the Federal agency applicant/pre-employment test is conducted following a contingent offer of employment. If there was no contingent offer of employment, the MRO will cancel the test; (8) Fail to cooperate with any part of the testing process (e.g., refuse to empty pockets when directed by the collector, disrupt the collection process, fail to wash hands after being directed to do so by the collector); (9) For an observed collection, fail to follow the observer’s instructions related to the collection process; (10) Bring materials to the collection site for the purpose of adulterating, substituting, or diluting the specimen; (11) Attempt to adulterate, substitute, or dilute the specimen; (12) Possess or wear a prosthetic or other device that could be used to interfere with the collection process; or (13) Admit to the collector or MRO that you have adulterated or substituted the specimen. Section 1.8 What are the potential consequences for refusing to take a federally regulated drug test? (a) A refusal to take a test may result in the initiation of disciplinary or adverse action for a Federal employee, up to and including removal from Federal employment. An applicant’s refusal to take a pre-employment test may result in non-selection for Federal employment. (b) When a donor has refused to participate in a part of the collection process, including failing to appear in a reasonable time for any test, the collector must terminate the collection process and take action as described in Section 8.13. Required action includes immediately notifying the Federal agency’s designated representative by any means (e.g., telephone, email, or secure facsimile [fax] machine) that ensures that the refusal notification is immediately received and, if a Federal CCF has been initiated, documenting E:\FR\FM\12OCR3.SGM 12OCR3 70780 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations the refusal on the Federal CCF, signing and dating the Federal CCF, and sending all copies of the Federal CCF to the Federal agency’s designated representative. (c) When documenting a refusal to test during the verification process as described in Sections 13.4, 13.5, and 13.6, the MRO must complete the MRO copy of the Federal CCF to include: (1) Checking the refusal to test box; (2) Providing a reason for the refusal in the remarks line; and (3) Signing and dating the MRO copy of the Federal CCF. Subpart B—Urine Specimens Section 2.1 What type of specimen may be collected? A Federal agency may collect urine and/or an alternate specimen type for its workplace drug testing program. Only specimen types authorized by Mandatory Guidelines for Federal Workplace Drug Testing Programs may be collected. An agency using urine must follow these Guidelines. Section 2.2 Under what circumstances may a urine specimen be collected? A Federal agency may collect a urine specimen for the following reasons: (a) Federal agency applicant/Preemployment test; (b) Random test; (c) Reasonable suspicion/cause test; (d) Post accident test; (e) Return to duty test; or (f) Follow-up test. Section 2.3 How is each urine specimen collected? Each urine specimen is collected as a split specimen as described in Section 2.5. Section 2.4 collected? What volume of urine is A donor is expected to provide at least 45 mL of urine for a specimen. Section 2.5 How does the collector split the urine specimen? The collector pours at least 30 mL into a specimen bottle that is designated as A (primary) and then pours at least 15 mL into a specimen bottle that is designated as B (split). ddrumheller on DSK120RN23PROD with RULES3 Section 2.6 When may an entity or individual release a urine specimen? Entities and individuals subject to these Guidelines under Section 1.1 may not release specimens collected pursuant to Executive Order 12564, VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Public Law 100–71, and these Guidelines to donors or their designees. Specimens also may not be released to any other entity or individual unless expressly authorized by these Guidelines or by applicable Federal law. This section does not prohibit a donor’s request to have a split (B) specimen tested in accordance with Section 13.9. Subpart C—Urine Specimen Tests Section 3.1 Which tests are conducted on a urine specimen? A Federal agency: (a) Must ensure that each specimen is tested for marijuana and cocaine metabolites as provided in the drug testing panel described under Section 3.4; (b) Is authorized to test each specimen for other Schedule I or II drugs as provided in the drug testing panel; (c) Must ensure that the following specimen validity tests are conducted on each urine specimen: (1) Determine the creatinine concentration on every specimen; (2) Determine the specific gravity on every specimen for which the creatinine concentration is less than 20 mg/dL; (3) Determine the pH on every specimen; and (4) Perform one or more specimen validity tests for oxidizing adulterants on every specimen. (d) Is authorized to test each specimen for one or more biomarkers as provided in the biomarker testing panel; and (e) May perform additional testing if a specimen exhibits abnormal characteristics (e.g., unusual odor or color, semi-solid characteristics), causes reactions or responses characteristic of an adulterant during initial or confirmatory drug tests (e.g., nonrecovery of internal standard, unusual response), or contains an unidentified substance that interferes with the confirmatory analysis. Section 3.2 May a specimen be tested for drugs other than those in the drug testing panel? (a) On a case-by-case basis, a specimen may be tested for additional drugs, if a Federal agency is conducting the collection for reasonable suspicion or post accident testing. A specimen collected from a Federal agency employee may be tested by the Federal agency for any drugs listed in Schedule I or II of the Controlled Substances Act. The Federal agency must request the HHS-certified laboratory to test for the PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 additional drug, include a justification to test a specific specimen for the drug, and ensure that the HHS-certified laboratory has the capability to test for the drug and has established properly validated initial and confirmatory analytical methods. If an initial test procedure is not available upon request for a suspected Schedule I or Schedule II drug, the Federal agency can request an HHS-certified laboratory to test for the drug by analyzing two separate aliquots of the specimen in two separate testing batches using the confirmatory analytical method. Additionally, the split (B) specimen will be available for testing if the donor requests a retest at another HHS-certified laboratory. (b) A Federal agency covered by these Guidelines must petition the Secretary in writing for approval to routinely test for any drug class not listed in the drug testing panel described under Section 3.4. Such approval must be limited to the use of the appropriate science and technology and must not otherwise limit agency discretion to test for any drug tested under Section 3.2(a). Section 3.3 May any of the specimens be used for other purposes? (a) Specimens collected pursuant to Executive Order 12564, Public Law 100–71, and these Guidelines must only be tested for drugs and to determine their validity in accordance with subpart C of these Guidelines. Use of specimens by donors, their designees, or any other entity, for other purposes (e.g., deoxyribonucleic acid, DNA, testing) is prohibited unless authorized in accordance with applicable Federal law. (b) These Guidelines are not intended to prohibit Federal agencies specifically authorized by law to test a specimen for additional classes of drugs in its workplace drug testing program. Section 3.4 What are the drug and biomarker test analytes and cutoffs for urine? The Secretary will publish the drug and biomarker test analytes and cutoffs (i.e., the ‘‘drug testing panel’’ and ‘‘biomarker testing panel’’) for initial and confirmatory drug and biomarker tests in the Federal Register each year. The drug and biomarker testing panels will also be available on the internet at https://www.samhsa.gov/workplace. This drug testing panel will remain in effect until the effective date of a new drug testing panel published in the Federal Register: E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Initial test analyte Initial test cutoff 1 Confirmatory test analyte Marijuana metabolite (THCA) 2 ........................................ Cocaine metabolite (Benzoylecgonine) ........................... Codeine/Morphine ........................................................... 50 ng/mL3 .......................... 150 ng/mL3 ........................ 2000 ng/mL ....................... Hydrocodone/Hydromorphone ......................................... 300 ng/mL ......................... Oxycodone/Oxymorphone ............................................... 100 ng/mL ......................... 6-Acetylmorphine ............................................................. Phencyclidine ................................................................... Amphetamine/Methamphetamine .................................... 10 ng/mL ........................... 25 ng/mL ........................... 500 ng/mL ......................... MDMA 4/MDA 5 ................................................................. 500 ng/mL ......................... THCA ................................. Benzoylecgonine ............... Codeine ............................. Morphine ............................ Hydrocodone ..................... Hydromorphone ................. Oxycodone ........................ Oxymorphone .................... 6-Acetylmorphine ............... Phencyclidine .................... Amphetamine .................... Methamphetamine ............. MDMA ................................ MDA ................................... 70781 Confirmatory test cutoff 15 ng/mL. 100 ng/mL. 2000 ng/mL. 4000 ng/mL. 100 ng/mL. 100 ng/mL. 100 ng/mL. 100 ng/mL. 10 ng/mL. 25 ng/mL. 250 ng/mL. 250 ng/mL. 250 ng/mL. 250 ng/mL. 1 For grouped analytes (i.e., two or more analytes that are in the same drug class and have the same initial test cutoff): Immunoassay: The test must be calibrated with one analyte from the group identified as the target analyte. The cross-reactivity of the immunoassay to the other analyte(s) within the group must be 80 percent or greater; if not, separate immunoassays must be used for the analytes within the group. Alternate technology: Either one analyte or all analytes from the group must be used for calibration, depending on the technology. At least one analyte within the group must have a concentration equal to or greater than the initial test cutoff or, alternatively, the sum of the analytes present (i.e., equal to or greater than the laboratory’s validated limit of quantification) must be equal to or greater than the initial test cutoff. 2 An immunoassay must be calibrated with the target analyte, D-9-tetrahydrocannabinol-9-carboxylic acid (THCA). 3 Alternate technology (THCA and benzoylecgonine): The confirmatory test cutoff must be used for an alternate technology initial test that is specific for the target analyte (i.e., 15 ng/mL for THCA, 100 ng/mL for benzoylecgonine). 4Methylenedioxymethamphetamine (MDMA). 5Methylenedioxyamphetamine (MDA). ddrumheller on DSK120RN23PROD with RULES3 (a) The drug testing panel will include drugs authorized for testing in Federal workplace drug testing programs, with the required test analytes and cutoffs; (b) The biomarker testing panel will include biomarkers authorized for testing in Federal workplace drug testing programs, with the required test analytes and cutoffs; and (c) HHS-certified IITFs, HHS-certified laboratories, and Medical Review Officers must use the nomenclature (i.e., analyte names and abbreviations) published in the Federal Register with the drug and biomarker testing panels to report Federal workplace drug test results. Section 3.5 May an HHS-certified laboratory perform additional drug and/ or specimen validity tests on a specimen at the request of the Medical Review Officer (MRO)? An HHS-certified laboratory is authorized to perform additional drug and/or specimen validity tests on a caseby-case basis as necessary to provide information that the MRO would use to report a verified drug test result (e.g., tetrahydrocannabivarin, specimen validity tests). An HHS-certified laboratory is not authorized to routinely perform additional drug and/or specimen validity tests at the request of an MRO without prior authorization from the Secretary or designated HHS representative, with the exception of the determination of d,l stereoisomers of amphetamine and methamphetamine. All tests must meet appropriate validation and quality control requirements in accordance with these Guidelines. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Section 3.6 What criteria are used to report a urine specimen as adulterated? An HHS-certified laboratory reports a primary (A) specimen as adulterated when: (a) The pH is less than 4 or equal to or greater than 11 using either a pH meter or a colorimetric pH test for the initial test on the first aliquot and a pH meter for the confirmatory test on the second aliquot; (b) The nitrite concentration is equal to or greater than 500 mcg/mL using either a nitrite colorimetric test or a general oxidant colorimetric test for the initial test on the first aliquot and a different confirmatory test (e.g., multiwavelength spectrophotometry, ion chromatography, capillary electrophoresis) on the second aliquot; (c) The presence of chromium (VI) is verified using either a general oxidant colorimetric test (with an equal to or greater than 50 mcg/mL chromium (VI)equivalent cutoff) or a chromium (VI) colorimetric test (chromium (VI) concentration equal to or greater than 50 mcg/mL) for the initial test on the first aliquot and a different confirmatory test (e.g., multi-wavelength spectrophotometry, ion chromatography, atomic absorption spectrophotometry, capillary electrophoresis, inductively coupled plasma-mass spectrometry) with the chromium (VI) concentration equal to or greater than the LOQ of the confirmatory test on the second aliquot; (d) The presence of a halogen (e.g., chlorine from bleach, iodine, fluoride) is verified using either a general oxidant colorimetric test (with an equal to or PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 great than 200 mcg/mL nitriteequivalent cutoff or an equal to or great than 50 mcg/mL chromium (VI)equivalent cutoff) or halogen colorimetric test (halogen concentration equal to or greater than the LOQ) for the initial test on the first aliquot and a different confirmatory test (e.g., multiwavelength spectrophotometry, ion chromatography, inductively coupled plasma-mass spectrometry) with a specific halogen concentration equal to or greater than the LOQ of the confirmatory test on the second aliquot; (e) The presence of glutaraldehyde is verified using either an aldehyde test (aldehyde present) or the characteristic immunoassay response on one or more drug immunoassay tests for the initial test on the first aliquot and a different confirmatory test (e.g., GC/MS) for the confirmatory test with the glutaraldehyde concentration equal to or greater than the LOQ of the analysis on the second aliquot; (f) The presence of pyridine (pyridinium chlorochromate) is verified using either a general oxidant colorimetric test (with an equal to or greater than 200 mcg/mL nitriteequivalent cutoff or an equal to or greater than 50 mcg/mL chromium (VI)equivalent cutoff) or a chromium (VI) colorimetric test (chromium (VI) concentration equal to or greater than 50 mcg/mL) for the initial test on the first aliquot and a different confirmatory test (e.g., GC/MS) for the confirmatory test with the pyridine concentration equal to or greater than the LOQ of the analysis on the second aliquot; E:\FR\FM\12OCR3.SGM 12OCR3 70782 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations (g) The presence of a surfactant is verified by using a surfactant colorimetric test with an equal to or greater than 100 mcg/mL dodecylbenzene sulfonate-equivalent cutoff for the initial test on the first aliquot and a different confirmatory test (e.g., multi-wavelength spectrophotometry) with an equal to or greater than 100 mcg/mL dodecylbenzene sulfonate-equivalent cutoff on the second aliquot; or (h) The presence of any other adulterant not specified in paragraphs (b) through (g) of this section is verified using an initial test on the first aliquot and a different confirmatory test on the second aliquot. Section 3.7 What criteria are used to report a urine specimen as substituted? An HHS-certified laboratory reports a primary (A) specimen as substituted when: (a) The creatinine concentration is less than 2 mg/dL on both the initial and confirmatory creatinine tests on two separate aliquots (i.e., the same colorimetric test may be used to test both aliquots) and the specific gravity is less than or equal to 1.0010 or equal to or greater than 1.0200 on both the initial and confirmatory specific gravity tests on two separate aliquots (i.e., a refractometer is used to test both aliquots), or (b) A biomarker is not detected or is present at a concentration inconsistent with that established for human urine for both the initial (first) test and the confirmatory (second) test on two separate aliquots (i.e., using the test analytes and cutoffs listed in the biomarker testing panel). ddrumheller on DSK120RN23PROD with RULES3 Section 3.8 What criteria are used to report a urine specimen as dilute? A dilute result may be reported only in conjunction with the positive or negative drug test results for a specimen. (a) An HHS-certified laboratory or an HHS-certified IITF reports a primary (A) specimen as dilute when the creatinine concentration is greater than 5 mg/dL but less than 20 mg/dL and the specific gravity is equal to or greater than 1.002 but less than 1.003 on a single aliquot. (b) In addition, an HHS-certified laboratory reports a primary (A) specimen as dilute when the creatinine concentration is equal to or greater than 2 mg/dL but less than 20 mg/dL and the specific gravity is greater than 1.0010 but less than 1.0030. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Section 3.9 What criteria are used to report an invalid result for a urine specimen? An HHS-certified laboratory reports a primary (A) specimen as an invalid result when: (a) Inconsistent creatinine concentration and specific gravity results are obtained (i.e., the creatinine concentration is less than 2 mg/dL on both the initial and confirmatory creatinine tests and the specific gravity is greater than 1.0010 but less than 1.0200 on the initial and/or confirmatory specific gravity test, the specific gravity is less than or equal to 1.0010 on both the initial and confirmatory specific gravity tests and the creatinine concentration is equal to or greater than 2 mg/dL on either or both the initial or confirmatory creatinine tests); (b) The pH is equal to or greater than 4 and less than 4.5 or equal to or greater than 9 and less than 11 using either a colorimetric pH test or pH meter for the initial test and a pH meter for the confirmatory test on two separate aliquots; (c) The nitrite concentration is equal to or greater than 200 mcg/mL using a nitrite colorimetric test or equal to or greater than the equivalent of 200 mcg/ mL nitrite using a general oxidant colorimetric test for both the initial (first) test and the second test or using either initial test and the nitrite concentration is equal to or greater than 200 mcg/mL but less than 500 mcg/mL for a different confirmatory test (e.g., multi-wavelength spectrophotometry, ion chromatography, capillary electrophoresis) on two separate aliquots; (d) The possible presence of chromium (VI) is determined using the same chromium (VI) colorimetric test with a cutoff equal to or greater than 50 mcg/mL chromium (VI) for both the initial (first) test and the second test on two separate aliquots; (e) The possible presence of a halogen (e.g., chlorine from bleach, iodine, fluoride) is determined using the same halogen colorimetric test with a cutoff equal to or greater than the LOQ for both the initial (first) test and the second test on two separate aliquots or relying on the odor of the specimen as the initial test; (f) The possible presence of glutaraldehyde is determined by using the same aldehyde test (aldehyde present) or characteristic immunoassay response on one or more drug immunoassay tests for both the initial (first) test and the second test on two separate aliquots; PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 (g) The possible presence of an oxidizing adulterant is determined by using the same general oxidant colorimetric test (with an equal to or greater than 200 mcg/mL nitriteequivalent cutoff, an equal to or greater than 50 mcg/mL chromium (VI)equivalent cutoff, or a halogen concentration is equal to or greater than the LOQ) for both the initial (first) test and the second test on two separate aliquots; (h) The possible presence of a surfactant is determined by using the same surfactant colorimetric test with an equal to greater than 100 mcg/mL dodecylbenzene sulfonate-equivalent cutoff for both the initial (first) test and the second test on two separate aliquots or a foam/shake test for the initial test; (i) Interference occurs on the initial drug tests on two separate aliquots (i.e., valid initial drug test results cannot be obtained); (j) Interference with the confirmatory drug test occurs on two separate aliquots of the specimen and the laboratory is unable to identify the interfering substance; (k) The physical appearance of the specimen (e.g., viscosity) is such that testing the specimen may damage the laboratory’s instruments; (l) The specimen has been tested and the appearances of the primary (A) and the split (B) specimens (e.g., color) are clearly different; or (m) A specimen validity test (i.e., other than the tests listed above) on two separate aliquots of the specimen indicates that the specimen is not valid for testing. Subpart D—Collectors Section 4.1 Who may collect a specimen? (a) A collector who has been trained to collect urine specimens in accordance with these Guidelines. (b) The immediate supervisor of a Federal employee donor may only collect that donor’s specimen when no other collector is available. The supervisor must be a trained collector. (c) The hiring official of a Federal agency applicant may only collect that Federal agency applicant’s specimen when no other collector is available. The hiring official must be a trained collector. Section 4.2 Who may not collect a specimen? (a) A Federal agency employee who is in a testing designated position and subject to the Federal agency drug testing rules must not be a collector for co-workers in the same testing pool or E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES3 who work with that employee on a daily basis. (b) A Federal agency applicant or employee must not collect their own drug testing specimen. (c) An employee working for an HHScertified laboratory or IITF must not act as a collector if the employee could link the identity of the donor to the donor’s drug test result. (d) To avoid a potential conflict of interest, a collector must not be related to the employee (e.g., spouse, ex-spouse, relative) or be a personal friend of the employee (e.g., fiancé´e). Section 4.3 What are the requirements to be a collector? (a) An individual may serve as a collector if they fulfill the following conditions: (1) Is knowledgeable about the collection procedure described in these Guidelines; (2) Is knowledgeable about any guidance provided by the Federal agency’s Drug-Free Workplace Program and additional information provided by the Secretary relating to the collection procedure described in these Guidelines; (3) Is trained and qualified to collect a urine specimen. Training must include the following: (i) All steps necessary to complete a urine collection; (ii) Completion and distribution of the Federal CCF; (iii) Problem collections; (iv) Fatal flaws, correctable flaws, and how to correct problems in collections; and (v) The collector’s responsibility for maintaining the integrity of the collection process, ensuring the privacy of the donor, ensuring the security of the specimen, and avoiding conduct or statements that could be viewed as offensive or inappropriate. (4) Has demonstrated proficiency in collections by completing five consecutive error-free mock collections. (i) The five mock collections must include one uneventful collection scenario, one insufficient specimen quantity scenario, one temperature out of range scenario, one scenario in which the donor refuses to sign the Federal CCF, and one scenario in which the donor refuses to initial the specimen bottle tamper-evident seal. (ii) A qualified trainer for collectors must monitor and evaluate the individual being trained, in person or by a means that provides real-time observation and interaction between the trainer and the trainee, and the trainer must attest in writing that the mock collections are error-free. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 (b) A trained collector must complete refresher training at least every five years that includes the requirements in Section 4.3(a). (c) The collector must maintain the documentation of their training and provide that documentation to a Federal agency when requested. (d) An individual may not collect specimens for a Federal agency until the individual’s training as a collector has been properly documented. Section 4.4 What are the requirements to be an observer for a direct observed collection? (a) An individual may serve as an observer for a direct observed collection when the individual has satisfied the requirements: (1) Is knowledgeable about the direct observed collection procedure described in Section 8.9; (2) Is knowledgeable about any guidance provided by the Federal agency’s Drug-Free Workplace Program or additional information provided by the Secretary relating to the direct observed collection procedure described in these Guidelines; (3) Has received training on the following subjects: (i) All steps necessary to perform a direct observed collection; and (ii) The observer’s responsibility for maintaining the integrity of the collection process, ensuring the privacy of individuals being tested, ensuring that the observation is done in a professional manner that minimizes the discomfort to the employee so observed, ensuring the security of the specimen by maintaining visual contact with the collection container until it is delivered to the collector, and avoiding conduct or statements that could be viewed as offensive or inappropriate. (b) The gender of the observer must be the same as the donor’s gender, which is determined by the donor’s gender identity. The observer selection process is described in Section 8.10(b). (c) The observer is not required to be a trained collector. Section 4.5 What are the requirements to be a trainer for collectors? (a) Individuals are considered qualified trainers for collectors and may train others to collect urine specimens when they have completed the following: (1) Qualified as a trained collector and regularly conducted urine drug test collections for a period of at least one year; or (2) Completed a ‘‘train the trainer’’ course given by an organization (e.g., manufacturer, private entity, contractor, Federal agency). PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 70783 (b) A qualified trainer for collectors must complete refresher training at least every five years in accordance with the collector requirements in Section 4.3(a). (c) A qualified trainer for collectors must maintain the documentation of the trainer’s training and provide that documentation to a Federal agency when requested. Section 4.6 What must a Federal agency do before a collector is permitted to collect a specimen? A Federal agency must ensure the following: (a) The collector has satisfied the requirements described in Section 4.3; (b) The collector, who may be selfemployed, or an organization (e.g., third party administrator that provides a collection service, collector training company, Federal agency that employs its own collectors) maintains a copy of the training record(s); and (c) The collector has been provided the name and telephone number of the Federal agency representative. Subpart E—Collection Sites Section 5.1 Where can a collection for a drug test take place? (a) A collection site may be a permanent or temporary facility located either at the work site or at a remote site. (b) In the event that an agencydesignated collection site is not accessible and there is an immediate requirement to collect a urine specimen (e.g., an accident investigation), a public restroom may be used for the collection, using the procedures for a monitored collection described in Section 8.12. Section 5.2 What are the requirements for a collection site? The facility used as a collection site must have the following: (a) Provisions to ensure donor privacy during the collection (as described in Section 8.1); (b) A suitable and clean surface area that is not accessible to the donor for handling the specimens and completing the required paperwork; (c) A secure temporary storage area to maintain specimens until the specimen is transferred to an HHS-certified laboratory or IITF; (d) A restricted access area where only authorized personnel may be present during the collection; (e) A restricted access area for the storage of collection supplies; (f) A restricted access area for the secure storage of records; and (g) The ability to restrict the donor access to potential diluents in accordance with Section 8.2. E:\FR\FM\12OCR3.SGM 12OCR3 70784 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Section 5.3 Where must collection site records be stored? Subpart F—Federal Drug Testing Custody and Control Form Collection site records must be stored at a secure site designated by the collector or the collector’s employer. Section 6.1 What Federal form is used to document custody and control? The OMB-approved Federal CCF must be used to document custody and control of each specimen at the collection site. Section 5.4 How long must collection site records be stored? Collection site records (e.g., collector copies of the OMB-approved Federal CCF) must be stored securely for a minimum of 2 years. The collection site may convert hardcopy records to electronic records for storage and discard the hardcopy records after 6 months. ddrumheller on DSK120RN23PROD with RULES3 Section 5.5 How does the collector ensure the security and integrity of a specimen at the collection site? (a) A collector must do the following to maintain the security and integrity of a specimen: (1) Not allow unauthorized personnel to enter the collection area during the collection procedure; (2) Perform only one donor collection at a time; (3) Restrict access to collection supplies before, during, and after collection; (4) Ensure that only the collector and the donor are allowed to handle the unsealed specimen; (5) Ensure the chain of custody process is maintained and documented throughout the entire collection, storage, and transport procedures; (6) Ensure that the Federal CCF is completed and distributed as required; and (7) Ensure that specimens transported to an HHS-certified laboratory or IITF are sealed and placed in transport containers designed to minimize the possibility of damage during shipment (e.g., specimen boxes, padded mailers, or other suitable shipping container), and those containers are securely sealed to eliminate the possibility of undetected tampering; (b) Couriers, express carriers, and postal service personnel are not required to document chain of custody since specimens are sealed in packages that would indicate tampering during transit to the HHS-certified laboratory or IITF. Section 5.6 What are the privacy requirements when collecting a urine specimen? Collections must be performed at a site that provides reasonable privacy (as described in Section 8.1). VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Section 6.2 What happens if the correct OMB-approved Federal CCF is not available or is not used? (a) The use of a non-Federal CCF or an expired Federal CCF is not, by itself, a reason for the HHS-certified laboratory or IITF to automatically reject the specimen for testing or for the MRO to cancel the test. (b) If the collector does not use the correct OMB-approved Federal CCF, the collector must document that it is a Federal agency specimen collection and provide the reason that the incorrect form was used. Based on the information provided by the collector, the HHS-certified laboratory or IITF must handle and test the specimen as a Federal agency specimen. (c) If the HHS-certified laboratory, HHS-certified IITF, or MRO discovers that the collector used an incorrect form, the laboratory, IITF, or MRO must obtain a memorandum for the record from the collector describing the reason the incorrect form was used. If a memorandum for the record cannot be obtained, the laboratory or IITF reports a rejected for testing result to the MRO and the MRO cancels the test. The HHScertified laboratory or IITF must wait at least 5 business days while attempting to obtain the memorandum before reporting a rejected for testing result to the MRO. Subpart G—Urine Specimen Collection Containers and Bottles Section 7.1 What is used to collect a urine specimen? A single-use collection container with a means (i.e., thermometer) to measure urine temperature and two specimen bottles must be used. Section 7.2 What are the requirements for a urine collection container and specimen bottles? (a) The collection container, the thermometer, and the specimen bottles must not substantially affect the composition of drugs and/or metabolites in the urine specimen. (b) The two specimen bottles must be sealable and non-leaking, and must maintain the integrity of the specimen during storage and transport so that the specimen contained therein can be PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 tested in an HHS-certified laboratory or IITF for the presence of drugs or their metabolites. (c) The two specimen bottles must be sufficiently transparent (e.g., translucent) to enable an objective assessment of specimen appearance and identification of abnormal physical characteristics without opening the bottle. Section 7.3 What are the minimum performance requirements for a urine collection container and specimen bottles? (a) The collection container must be capable of holding at least 55 mL and have a volume marking clearly noting a level of 45 mL. (b) One of the two specimen bottles must be capable of holding at least 35 mL and the other at least 20 mL, and each must have a volume marking clearly noting the appropriate level (30 mL for the primary specimen and 15 mL for the split specimen). (c) The thermometer may be affixed to or built into the collection container and must provide graduated temperature readings from 32–38 °C/90–100 °F. Alternatively, the collector may use another technology to measure specimen temperature (e.g., thermal radiation scanning), providing the thermometer does not come into contact with the specimen. Subpart H—Urine Specimen Collection Procedure Section 8.1 What privacy must the donor be given when providing a urine specimen? The following privacy requirements apply when a donor is providing a urine specimen: (a) Only authorized personnel and the donor may be present in the restricted access area where the collection takes place. (b) The collector is not required to be the same gender as the donor. The gender of the observer for purposes of a direct observed collection (i.e., as described in Section 8.10) must be the same as the donor’s gender, which is determined by the donor’s gender identity. The gender of the monitor for a monitored collection (i.e., as described in Section 8.12) must be the same as the donor’s gender, unless the monitor is a medical professional (e.g., nurse, doctor, physician’s assistant, technologist, or technician licensed or certified to practice in the jurisdiction in which the collection takes place). (c) The collector must give the donor visual privacy while providing the specimen. The donor is allowed to provide a urine specimen in an enclosed E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations stall within a multi-stall restroom or in a single person restroom during a monitored collection. ddrumheller on DSK120RN23PROD with RULES3 Section 8.2 What must the collector ensure at the collection site before starting a urine specimen collection? The collector must deter the dilution or substitution of a specimen at the collection site by: (a) Placing a toilet bluing agent in a toilet bowl or toilet tank, so the reservoir of water in the toilet bowl always remains blue. If no bluing agent is available or if the toilet has an automatic flushing system, the collector shall turn the water supply off to the toilet and flush the toilet to remove the water in the toilet when possible. (b) Secure other sources of water (e.g., shower or sink) in the enclosure where urination occurs. If the enclosure has a source of water that cannot be disabled or secured, a monitored collection must be conducted in accordance with Section 8.11. Section 8.3 What are the preliminary steps in the urine specimen collection procedure? The collector must take the following steps before beginning a urine specimen collection: (a) If a donor fails to arrive at the collection site at the assigned time, the collector must follow the Federal agency policy or contact the Federal agency representative to obtain guidance on action to be taken. (b) When the donor arrives at the collection site, the collector should begin the collection procedure without undue delay. For example, the collection should not be delayed because the donor states that they are unable to urinate or an authorized employer or employer representative is late in arriving. (c) The collector requests the donor to present photo identification (e.g., driver’s license; employee badge issued by the employer; an alternative photo identification issued by a Federal, state, or local government agency). If the donor does not have proper photo identification, the collector shall contact the supervisor of the donor or the Federal agency representative who can positively identify the donor. If the donor’s identity cannot be established, the collector must not proceed with the collection. (d) The collector must provide identification (e.g., employee badge, employee list) if requested by the donor. (e) The collector explains the basic collection procedure to the donor. (f) The collector provides the instructions for completing the Federal VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 CCF for the donor’s review, and informs the donor that the instructions are available upon request. (g) The collector answers any reasonable and appropriate questions the donor may have regarding the collection procedure. (h) The collector asks the donor to remove any unnecessary outer garments (e.g., coat, jacket) that might conceal items or substances that could be used to adulterate or substitute the urine specimen. The collector must ensure that all personal belongings (e.g., purse or briefcase) remain with the outer garments. The donor may retain the donor’s wallet. The donor is not required to remove any items worn for faith-based reasons. (i) The collector asks the donor to empty the donor’s pockets and display the contents to ensure no items are present that could be used to adulterate or substitute the specimen. (1) If no items are present that can be used to adulterate, substitute, or dilute the specimen, the collector instructs the donor to return the items to their pockets and continues the collection procedure. (2) If an item is present whose purpose is to adulterate, substitute, or dilute the specimen (e.g., a commercial drug culture product or other substance for which the donor has no reasonable explanation), this is considered a refusal to test. The collector must stop the collection and report the refusal to test as described in Section 8.13. (3) If an item that could be used to adulterate, substitute, or dilute the specimen (e.g., common personal care products such as eyedrops, mouthwash, or hand sanitizer) appears to have been inadvertently brought to the collection site, the collector must secure the item and continue with the normal collection procedure. (4) If the donor refuses to show the collector the items in their pockets, this is considered a refusal to test. The collector must stop the collection and report the refusal to test as described in Section 8.13. (j) The collector shall instruct the donor to wash and dry the donor’s hands prior to urination. After washing the donor’s hands, the donor must remain in the presence of the collector and must not have access to any water fountain, faucet, soap dispenser, cleaning agent, or any other materials which could be used to adulterate or substitute the specimen. (k) If the donor refuses to wash their hands when instructed by the collector, this is considered a ‘‘refusal to test.’’ The collector must stop the collection PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 70785 and report the refusal to test as described in Section 8.13. Section 8.4 What steps does the collector take in the collection procedure before the donor provides a urine specimen? (a) The collector will provide or the donor may select a specimen collection container that is clean, unused, wrapped/sealed in original packaging and compliant with subpart G of these Guidelines. The specimen collection container package will be opened in view of the donor. (b)The collector instructs the donor to provide the specimen in the privacy of a stall or otherwise partitioned area that allows for individual privacy. The collector directs the donor to provide a specimen of at least 45 mL, to not flush the toilet, and to return with the specimen as soon as the donor has completed the void. (1) Except in the case of a direct observed collection (i.e., as described in Section 8.10) or a monitored collection (i.e., as described in Section 8.12), neither the collector nor anyone else may go into the room with the donor. (2) The collector may set a reasonable time limit for specimen collection. (c) The collector notes any unusual behavior or appearance of the donor on the Federal CCF. If the collector detects any conduct that clearly indicates an attempt to tamper with a specimen (e.g., substitute urine in plain view or an attempt to bring into the collection site an adulterant or urine substitute), the collector must report a refusal to test in accordance with Section 8.13. Section 8.5 What steps does the collector take during and after the urine specimen collection procedure? Integrity and Identity of the Specimen. The collector must take the following steps during and after the donor provides the urine specimen: (a) The collector must inform the donor that, once the collection procedure has begun, the donor must remain at the collection site (i.e., in an area designated by the collector) until the collection is complete and that failure to follow these instructions will be reported as a refusal to test. This includes the wait period (i.e., up to 3 hours) if needed to provide a sufficient specimen as described in Sections 8.5(f)(2) and 8.6. (b) After providing the specimen, the donor gives the specimen collection container to the collector. Both the donor and the collector must keep the specimen container in view at all times until the collector seals the specimen bottles as described in Section 8.8. E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 70786 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations (c) After the donor has given the specimen to the collector, whenever practical, the donor shall be allowed to wash the donor’s hands and the donor may flush the toilet. (d) The collector must measure the temperature of the specimen within 4 minutes of receiving the specimen from the donor. The collector records on the Federal CCF whether or not the temperature is in the acceptable range of 32°–38°C/90°–100 °F. (1) The temperature measuring device must accurately reflect the temperature of the specimen and not contaminate the specimen. (2) If the temperature of the specimen is outside the range of 32°–38°C/90°– 100 °F, that is a reason to believe that the donor may have adulterated or substituted the specimen. Another specimen must be collected under direct observation in accordance with Section 8.9. The collector must forward both specimens (i.e., from the first and second collections) to an HHS-certified laboratory for testing and record a comment on the Federal CCF for each specimen. (e) The collector must inspect the specimen to determine if there is any sign indicating that the specimen may not be a valid urine specimen (e.g., unusual color, presence of foreign objects or material, unusual odor). (1) The collector notes any unusual finding on the Federal CCF. A specimen suspected of not being a valid urine specimen must be forwarded to an HHScertified laboratory for testing. (2) When there is any reason to believe that a donor may have adulterated or substituted the specimen, another specimen must be obtained as soon as possible under direct observation in accordance with Section 8.10. The collector must forward both specimens (i.e., from the first and second collections) to an HHS-certified laboratory for testing and record a comment on the Federal CCF for each specimen. (f) The collector must determine the volume of urine in the specimen container. The collector must never combine urine collected from separate voids to create a specimen. (1) If the volume is at least 45 mL, the collector will proceed with steps described in Section 8.8. (2) If the volume is less than 45 mL, the collector discards the specimen and immediately collects a second specimen using the same procedures as for the first specimen (including steps in Section 8.5(c) and (d)). (i) The collector may give the donor a reasonable amount of liquid to drink for this purpose (e.g., an 8 ounce glass VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 of water every 30 minutes, but not to exceed a maximum of 40 ounces over a period of 3 hours or until the donor has provided a sufficient urine specimen). However, the donor is not required to drink any fluids during this waiting time. (ii) If the donor provides a sufficient urine specimen (i.e., at least 45 mL), the collector proceeds with steps described in Section 8.8. (iii) If the employee has not provided a sufficient specimen (i.e., at least 45 mL) within three hours of the first unsuccessful attempt to provide the specimen, the collector records the reason for not collecting a urine specimen on the Federal CCF, notifies the Federal agency’s designated representative for authorization to collect an alternate specimen, and sends the appropriate copies of the Federal CCF to the MRO and to the Federal agency’s designated representative. The Federal agency may choose to provide the collection site with a standard protocol to follow in lieu of requiring the collector to notify the agency’s designated representative for authorization in each case. If an alternate specimen is authorized, the collector may begin the collection procedure for the alternate specimen (see Section 8.7) in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing Programs using the alternate specimen. (g) If the donor fails to remain present through the completion of the collection, declines to have a direct observed collection as required in Section 8.5(d)(2) or (e)(2), refuses to provide a second specimen as required in Section 8.5(f)(2), or refuses to provide an alternate specimen as authorized in Section 8.5(f)(2)(iii), the collector stops the collection and reports the refusal to test in accordance with Section 8.13. Section 8.6 What procedure is used when the donor states that they are unable to provide a urine specimen? (a) If the donor states that they are unable to provide a urine specimen during the collection process, the collector requests that the donor enter the restroom (stall) and attempt to provide a urine specimen. (b) The donor demonstrates their inability to provide a specimen when he or she comes out of the stall with an empty collection container. (1) If the donor states that they could provide a specimen after drinking some fluids, the collector gives the donor a reasonable amount of liquid to drink for this purpose (e.g., an 8 ounce glass of water every 30 minutes, but not to exceed a maximum of 40 ounces over a PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 period of 3 hours or until the donor has provided a sufficient urine specimen). If the donor simply needs more time before attempting to provide a urine specimen, the donor may choose not to drink any fluids during the 3 hour wait time. (2) If the donor states that they are unable to provide a urine specimen, the collector records the reason for not collecting a urine specimen on the Federal CCF, notifies the Federal agency’s designated representative for authorization to collect an alternate specimen, and sends the appropriate copies of the Federal CCF to the MRO and to the Federal agency’s designated representative. The Federal agency may choose to provide the collection site with a standard protocol to follow in lieu of requiring the collector to notify the agency’s designated representative for authorization in each case. If an alternate specimen is authorized, the collector may begin the collection procedure for the alternate specimen (see Section 8.7) in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing Programs using the alternate specimen. Section 8.7 If the donor is unable to provide a urine specimen, may another specimen type be collected for testing? Yes, if the alternate specimen type is authorized by Mandatory Guidelines for Federal Workplace Drug Testing Programs and specifically authorized by the Federal agency. Section 8.8 How does the collector prepare the urine specimens? (a) All Federal agency collections are to be split specimen collections. (b) The collector, in the presence of the donor, pours the urine from the collection container into two specimen bottles to be labeled ‘‘A’’ and ‘‘B’’. The collector pours at least 30 mL of urine into Bottle A and at least 15 mL into Bottle B, and caps each bottle. (c) In the presence of the donor, the collector places a tamper-evident label/ seal from the Federal CCF over each specimen bottle cap. The collector records the date of the collection on the tamper-evident labels/seals. (d) The collector instructs the donor to initial the tamper-evident labels/seals on each specimen bottle. If the donor refuses to initial the labels/seals, the collector notes the refusal on the Federal CCF and continues with the collection process. (e) The collector must ensure that all required information is included on the Federal CCF. (f) The collector asks the donor to read and sign a statement on the Federal E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES3 CCF certifying that the specimens identified were collected from the donor. If the donor refuses to sign the certification statement, the collector notes the refusal on the Federal CCF and continues with the collection process. (g) The collector signs and prints their name on the Federal CCF, completes the Federal CCF, and distributes the copies of the Federal CCF as required. (h) The collector seals the specimens (Bottle A and Bottle B) in a package and, within 24 hours or during the next business day, sends them to the HHScertified laboratory or IITF that will be testing the Bottle A urine specimen. (i) If the specimen and Federal CCF are not immediately transported to an HHS-certified laboratory or IITF, they must remain under direct control of the collector or be appropriately secured under proper specimen storage conditions until transported. (j) The collector must discard any urine left over in the collection container after both specimen bottles have been appropriately filled and sealed. There is one exception to this requirement: the collector may use excess urine to conduct clinical tests (e.g., protein, glucose) if the collection was conducted in conjunction with a physical examination required by Federal agency regulation. Neither the collector nor anyone else may conduct further testing (such as specimen validity testing) on the excess urine. Section 8.9 When is a direct observed collection conducted? A direct observed collection procedure must be conducted when: (a) The agency has authorized a direct observed collection because: (1) The donor’s previous drug test result was reported by an MRO as positive, adulterated, or substituted; or (2) The HHS-certified laboratory reports to the MRO that a specimen is invalid, and the MRO reported to the agency that there was not a legitimate medical explanation for the result; or (3) The MRO reported to the agency that the primary (A) specimen was positive, adulterated, or substituted but the test was cancelled because the split (B) specimen could not be tested or the split specimen failed to reconfirm the primary specimen result; or (b) At the collection site, an immediate collection of a second urine specimen is required because: (1) The temperature of the specimen collected during a routine collection is outside the acceptable temperature range; or (2) The collector suspects that the donor has tampered with the specimen during a routine collection (e.g., VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 abnormal physical characteristic such as unusual color and/or odor, and/or excessive foaming when shaken). (c) The collector must contact a collection site supervisor to review and concur in advance with any decision by the collector to obtain a specimen under direct observation. (d) If the donor declines to have a direct observed collection, the collector reports a refusal to test (i.e., as described in Section 8.13). Section 8.10 How is a direct observed collection conducted? (a) A direct observed collection procedure is the same as that for a routine collection, except an observer watches the donor urinate into the collection container. The observer’s gender must be the same as the donor’s gender, which is determined by the donor’s gender identity, with no exception to this requirement. (b) Before an observer is selected, the collector informs the donor that the gender of the observer will match the donor’s gender, which is determined by the donor’s gender identity (as defined in Section 1.5). The collector then selects the observer to conduct the observation: (i) The collector asks the donor to identify the donor’s gender on the Federal CCF and initial it. (ii) The donor will then be provided an observer whose gender matches the donor’s gender. (iii) The collector documents the observer’s name and gender on the Federal CCF. (c) If there is no collector available of the same gender as the donor’s gender, the collector or collection site supervisor shall select an observer trained in direct observed specimen collection as described in Section 4.4. The observer may be an individual that is not a trained collector. (d) At the point in a routine collection where the donor enters the restroom with the collection container, a direct observed collection includes the following additional steps: (1) The observer enters the restroom with the donor; (2) The observer must directly watch the urine go from the donor’s body into the collection container (the use of mirrors or video cameras is not permitted); (3) The observer must not touch or handle the collection container unless the observer is also serving as the collector; (4) After the donor has completed urinating into the collection container: (i) If the same person serves as the observer and collector, that person may PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 70787 receive the collection container from the donor while they are both in the restroom; (ii) If the observer is not serving as the collector, the donor and observer leave the restroom and the donor hands the collection container directly to the collector. The observer must maintain visual contact of the collection container until the donor hands the container to the collector. (5) The collector checks the box for an observed collection on the Federal CCF and writes the name of the observer and the reason for an observed collection on the Federal CCF; and (6) The collector then continues with the routine collection procedure in Section 8.3. Section 8.11 When is a monitored collection conducted? (a) In the event that an agencydesignated collection site is not available and there is an immediate requirement to collect a specimen (e.g., an accident investigation), a public restroom may be used for the collection, using the procedures for a monitored collection described in Section 8.12. (b) If the enclosure used by the donor to provide a specimen has a source of water that cannot be disabled or secured, a monitored collection must be conducted. (c) If the donor declines to permit a collection to be monitored when required, the collector reports a refusal to test (i.e., as described in Section 8.13). Section 8.12 How is a monitored collection conducted? A monitored collection is the same as that for a routine collection, except that a monitor accompanies the donor into the restroom to check for signs that the donor may be tampering with the specimen. The monitor remains in the restroom, but outside the stall, while the donor is providing the specimen. A person of the same gender as the donor shall serve as the monitor, unless the monitor is a medical professional (e.g., nurse, doctor, physician’s assistant, technologist, or technician licensed or certified to practice in the jurisdiction in which the collection takes place). The same procedures used for selecting an observer of the appropriate gender in Section 8.10(b) must be used to select the monitor for the purposes of Section 8.12, unless the monitor is a medical professional as described above. The monitor may be an individual other than the collector and need not be a qualified collector. (a) The collector secures the restroom being used for the monitored collection so that no one except the employee and E:\FR\FM\12OCR3.SGM 12OCR3 70788 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations the monitor can enter the restroom until after the collection has been completed. (b) The monitor enters the restroom with the donor. (c) The monitor must not watch the employee urinate into the collection container. If the monitor hears sounds or makes other observations indicating an attempt by the donor to tamper with a specimen, there must be an additional collection under direct observation in accordance with Section 8.9. (d) The monitor must not touch or handle the collection container unless the monitor is also the collector. (e) After the donor has completed urinating into the collection container: (1) If the same person serves as the monitor and collector, that person may receive the collection container from the donor while they are both in the restroom; (2) If the monitor is not serving as the collector, the donor and monitor leave the restroom and the donor hands the collection container directly to the collector. The monitor must ensure that the employee takes the collection container directly to the collector as soon as the employee has exited the enclosure. (f) If the monitor is not serving as the collector, the collector writes the name of the monitor on the Federal CCF. (g) The collector then continues with the routine collection procedure in Section 8.3. ddrumheller on DSK120RN23PROD with RULES3 Section 8.13 How does the collector report a donor’s refusal to test? If there is a refusal to test as defined in Section 1.7, the collector stops the collection, discards any urine collected and reports the refusal to test by: (a) Notifying the Federal agency by means (e.g., telephone, email, or secure fax) that ensures that the notification is immediately received, (b) Documenting the refusal to test including the reason on the Federal CCF, and (c) Sending all copies of the Federal CCF to the Federal agency’s designated representative. Section 8.14 What are a Federal agency’s responsibilities for a collection site? (a) A Federal agency must ensure that collectors and collection sites satisfy all requirements in subparts D, E, F, G, and H of these Guidelines. (b) A Federal agency (or only one Federal agency when several agencies are using the same collection site) must inspect 5 percent or up to a maximum of 50 collection sites each year, selected randomly from those sites used to collect agency specimens (e.g., virtual, onsite, or self-evaluation). VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 (c) A Federal agency must investigate reported collection site deficiencies (e.g., specimens reported ‘‘rejected for testing’’ by an HHS-certified laboratory or IITF) and take appropriate action which may include a collection site selfassessment (i.e., using the Collection Site Checklist for the Collection of Urine Specimens for Federal agency Workplace Drug Testing Programs) or an inspection of the collection site. The inspections of these additional collection sites may be included in the 5 percent or maximum of 50 collection sites inspected annually. applicant laboratory or IITF provides detailed information on both the administrative and analytical procedures to be used for federally regulated specimens); (2) Have its application reviewed as complete and accepted by HHS; (3) Successfully complete the PT challenges in 3 consecutive sets of initial PT samples; (4) Satisfy all the requirements for an initial inspection; and (5) Receive notification of certification from the Secretary before testing specimens for Federal agencies. Subpart I—HHS Certification of Laboratories and IITFs Section 9.3 What is the process for a laboratory or IITF to maintain HHS certification? Section 9.1 Who has the authority to certify laboratories and IITFs to test urine specimens for Federal agencies? (a) The Secretary has broad discretion to take appropriate action to ensure the full reliability and accuracy of drug testing and reporting, to resolve problems related to drug testing, and to enforce all standards set forth in these Guidelines. The Secretary has the authority to issue directives to any HHScertified laboratory or IITF including suspending the use of certain analytical procedures when necessary to protect the integrity of the testing process; ordering any HHS-certified laboratory or IITF to undertake corrective actions to respond to material deficiencies identified by an inspection or through performance testing; ordering any HHScertified laboratory or IITF to send specimens or specimen aliquots to another HHS-certified laboratory for retesting when necessary to ensure the accuracy of testing under these Guidelines; ordering the review of results for specimens tested under the Guidelines for private sector clients to the extent necessary to ensure the full reliability of drug testing for Federal agencies; and ordering any other action necessary to address deficiencies in drug testing, analysis, specimen collection, chain of custody, reporting of results, or any other aspect of the certification program. (b) A laboratory or IITF is prohibited from stating or implying that it is certified by HHS under these Guidelines to test urine specimens for Federal agencies unless it holds such certification. Section 9.2 What is the process for a laboratory or IITF to become HHScertified? (a) A laboratory or IITF seeking HHS certification must: (1) Submit a completed OMBapproved application form (i.e., the PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 (a) To maintain HHS certification, a laboratory or IITF must: (1) Successfully participate in both the maintenance PT and inspection programs (i.e., successfully test the required quarterly sets of maintenance PT samples, undergo an inspection 3 months after being certified, and undergo maintenance inspections at a minimum of every 6 months thereafter); (2) Respond in an appropriate, timely, and complete manner to required corrective action requests if deficiencies are identified in the maintenance PT performance, during the inspections, operations, or reporting; and (3) Satisfactorily complete corrective remedial actions, and undergo special inspection and special PT sets to maintain or restore certification when material deficiencies occur in either the PT program, inspection program, or in operations and reporting. Section 9.4 What is the process when a laboratory or IITF does not maintain its HHS certification? (a) A laboratory or IITF that does not maintain its HHS certification must: (1) Stop testing federally regulated specimens; (2) Ensure the security of federally regulated specimens and records throughout the required storage period described in Sections 11.20, 11.21, 12.18, and 14.8; (3) Ensure access to federally regulated specimens and records in accordance with Sections 11.23, 11.24, 12.20, and 12.21 and subpart P of these Guidelines; and (4) Follow the HHS suspension and revocation procedures when imposed by the Secretary, follow the HHS procedures in subpart P of these Guidelines that will be used for all actions associated with the suspension and/or revocation of HHS-certification. E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Section 9.5 What are the qualitative and quantitative specifications of performance testing (PT) samples? ddrumheller on DSK120RN23PROD with RULES3 (a) PT samples used to evaluate drug tests will be prepared using the following specifications: (1) PT samples may contain one or more of the drugs and drug metabolites in the drug classes listed in the drug testing panel and must satisfy one of the following parameters: (i) The concentration of a drug or metabolite will be at least 20 percent above the initial test cutoff for the drug or drug metabolite; (ii) The concentration of a drug or metabolite may be as low as 40 percent of the confirmatory test cutoff when the PT sample is designated as a retest sample; or (iii) The concentration of drug or metabolite may differ from Section 9.5(a)(1)(i) and (ii) for a special purpose. (2) A PT sample may contain an interfering substance, an adulterant, or other substances for special purposes, or may satisfy the criteria for a substituted specimen, dilute specimen, or invalid result. (3) A negative PT sample will not contain a measurable amount of a target analyte. (b) PT samples used to evaluate specimen validity tests shall satisfy, but are not limited to, one of the following criteria: (1) The nitrite concentration will be at least 20 percent above the cutoff; (2) The pH will be between 1.5 and 5.0 or between 8.5 and 12.5; (3) The concentration of an oxidant will be at a level sufficient to challenge a laboratory’s ability to identify and confirm the oxidant; (4) The creatinine concentration will be between 0 and 20 mg/dL; or (5) The specific gravity will be less than or equal to 1.0050 or between 1.0170 and 1.0230. (c) For each PT cycle, the set of PT samples going to each HHS-certified laboratory or IITF will vary but, within each calendar year, each HHS-certified laboratory or IITF will analyze essentially the same total set of samples. (d) The laboratory or IITF must (to the greatest extent possible) handle, test, and report a PT sample in a manner identical to that used for a donor specimen, unless otherwise specified. Section 9.6 What are the PT requirements for an applicant laboratory that seeks to perform urine testing? (a) An applicant laboratory that seeks certification under these Guidelines to perform urine testing must satisfy the VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 following criteria on three consecutive sets of PT samples: (1) Have no false positive results; (2) Correctly identify, confirm, and report at least 90 percent of the total drug challenges over the three sets of PT samples; (3) Correctly identify at least 80 percent of the drug challenges for each initial drug test over the three sets of PT samples; (4) For the confirmatory drug tests, correctly determine the concentrations (i.e., no more than ±20 percent or ±2 standard deviations [whichever is larger] from the appropriate reference or peer group means) for at least 80 percent of the total drug challenges over the three sets of PT samples; (5) For the confirmatory drug tests, do not obtain any drug concentration that differs by more than ±50 percent from the appropriate reference or peer group mean; (6) For each confirmatory drug test, correctly identify and determine the concentrations (i.e., no more than ±20 percent or ±2 standard deviations [whichever is larger] from the appropriate reference or peer group means) for at least 50 percent of the drug challenges for an individual drug over the three sets of PT samples; (7) Correctly identify at least 80 percent of the total specimen validity testing challenges over the three sets of PT samples; (8) Correctly identify at least 80 percent of the challenges for each individual specimen validity test over the three sets of PT samples; (9) For quantitative specimen validity tests, obtain quantitative values for at least 80 percent of the total challenges over the three sets of PT samples that satisfy the following criteria: (i) Nitrite and creatinine concentrations are no more than ±20 percent or ±2 standard deviations from the appropriate reference or peer group mean; and (ii) pH values are no more than ±0.3 pH units from the appropriate reference or peer group mean using a pH meter; and (iii) Specific gravity values are no more than ±0.0003 specific gravity units from the appropriate reference or peer group mean when the mean is less than 1.0100 and specific gravity values are no more than ±0.0004 specific gravity units from the appropriate reference or peer group mean when the mean is equal to or greater than 1.0100; (10) Do not obtain any quantitative value on a specimen validity test PT sample that differs from the appropriate reference or peer group mean by more than ±50 percent for nitrite and PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 70789 creatinine concentrations, ±0.8 pH units using a pH meter, ±0.0006 specific gravity units when the mean is less than 1.0100, or ±0.0007 specific gravity units when the mean is equal to or greater than 1.0100; and (11) Do not report any sample as adulterated with a compound that is not present in the sample, adulterated based on pH when the appropriate reference or peer group mean is within the acceptable pH range, substituted when the appropriate reference or peer group means for both creatinine and specific gravity are within the acceptable range, or substituted when the appropriate reference or peer group mean for a biomarker is within the acceptable range. (b) Failure to satisfy these requirements will result in the denial of the laboratory’s application for HHS certification to perform urine testing. Section 9.7 What are the PT requirements for an HHS-certified urine laboratory? (a) A laboratory certified under these Guidelines to perform urine testing must satisfy the following criteria on the maintenance PT samples: (1) Have no false positive results; (2) Correctly identify, confirm, and report at least 90 percent of the total drug challenges over two consecutive PT cycles; (3) Correctly identify at least 80 percent of the drug challenges for each initial drug test over two consecutive PT cycles; (4) For the confirmatory drug tests, correctly determine that the concentrations for at least 80 percent of the total drug challenges are no more than ±20 percent or ±2 standard deviations (whichever is larger) from the appropriate reference or peer group means over two consecutive PT cycles; (5) For the confirmatory drug tests, do not obtain any drug concentration that differs by more than ±50 percent from the appropriate reference or peer group means; (6) For each confirmatory drug test, correctly identify and determine that the concentrations for at least 50 percent of the drug challenges for an individual drug are no more than ±20 percent or ±2 standard deviations (whichever is larger) from the appropriate reference or peer group means over two consecutive PT cycles; (7) Correctly identify at least 80 percent of the total specimen validity testing challenges over two consecutive PT cycles; (8) Correctly identify at least 80 percent of the challenges for each E:\FR\FM\12OCR3.SGM 12OCR3 70790 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations individual specimen validity test over two consecutive PT cycles; (9) For quantitative specimen validity tests, obtain quantitative values for at least 80 percent of the total challenges over two consecutive PT cycles that satisfy the following criteria: (i) Nitrite and creatinine concentrations are no more than ±20 percent or ±2 standard deviations from the appropriate reference or peer group mean; (ii) pH values are no more than ±0.3 pH units from the appropriate reference or peer group mean using a pH meter; and (iii) Specific gravity values are no more than ±0.0003 specific gravity units from the appropriate reference or peer group mean when the mean is less than 1.0100 and specific gravity values are no more than ±0.0004 specific gravity units from the appropriate reference or peer group mean when the mean is equal to or greater than 1.0100; (10) Do not obtain any quantitative value on a specimen validity test PT sample that differs from the appropriate reference or peer group mean by more than ±50 percent for nitrite and creatinine concentrations, ±0.8 pH units using a pH meter, ±0.0006 specific gravity units when the mean is less than 1.0100, or ±0.0007 specific gravity units when the mean is equal to or greater than 1.0100; and (11) Do not report any PT sample as adulterated with a compound that is not present in the sample, adulterated based on pH when the appropriate reference or peer group mean is within the acceptable pH range, substituted when the appropriate reference or peer group means for both creatinine and specific gravity are within the acceptable range, or substituted when the appropriate reference or peer group mean for a biomarker is within the acceptable range. (b) Failure to participate in all PT cycles or to satisfy these requirements may result in suspension or revocation of an HHS-certified laboratory’s certification. ddrumheller on DSK120RN23PROD with RULES3 Section 9.8 What are the PT requirements for an applicant IITF? (a) An applicant IITF that seeks certification under these Guidelines must satisfy the following criteria on three consecutive sets of PT samples: (1) Correctly identify at least 90 percent of the total drug challenges over the three sets of PT samples; (2) Correctly identify at least 80 percent of the drug challenges for each individual drug test over the three sets of PT samples; VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 (3) Correctly identify at least 80 percent of the total specimen validity test challenges over the three sets of PT samples; (4) Correctly identify at least 80 percent of the challenges for each individual specimen validity test over the three sets of PT samples; (5) For quantitative specimen validity tests, obtain quantitative values for at least 80 percent of the total specimen validity test challenges over the three sets of PT samples that satisfy the following criteria: (i) Creatinine concentrations are no more than ±20 percent or ±2 standard deviations (whichever is larger) from the appropriate reference or peer group mean; and (ii) Specific gravity values are no more than ±0.001 specific gravity units from the appropriate reference or peer group mean; and (6) Must not obtain any quantitative value on a specimen validity test PT sample that differs from the appropriate reference or peer group mean by more than ±50 percent for creatinine concentration or ±0.002 specific gravity units for specific gravity. (b) Failure to satisfy these requirements will result in disqualification. Section 9.9 What are the PT requirements for an HHS-certified IITF? (a) An IITF certified under these Guidelines must satisfy the following criteria on the maintenance PT samples to maintain its certification: (1) Correctly identify at least 90 percent of the total drug challenges over two consecutive PT cycles; (2) Correctly identify at least 80 percent of the drug challenges for each individual drug test over two consecutive PT cycles; (3) Correctly identify at least 80 percent of the total specimen validity test challenges over two consecutive PT cycles; (4) Correctly identify at least 80 percent of the challenges for each individual specimen validity test over two consecutive PT cycles; (5) For quantitative specimen validity tests, obtain quantitative values for at least 80 percent of the total specimen validity test challenges over two consecutive PT cycles that satisfy the following criteria: (i) Creatinine concentrations are no more than ±20 percent or ±2 standard deviations (whichever is larger) from the appropriate reference or peer group mean; and (ii) Specific gravity values are no more than ±0.001 specific gravity units PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 from the appropriate reference or peer group mean; and (6) Must not obtain any quantitative value on a specimen validity test PT sample that differs from the appropriate reference or peer group mean by more than ±50 percent for creatinine concentration, or ±0.002 specific gravity units for specific gravity. (b) Failure to participate in all PT cycles or to satisfy these requirements may result in suspension or revocation of an HHS-certified IITF’s certification. Section 9.10 What are the inspection requirements for an applicant laboratory or IITF? (a) An applicant laboratory or IITF is inspected by a team of two inspectors. (b) Each inspector conducts an independent review and evaluation of all aspects of the laboratory’s or IITF’s testing procedures and facilities using an inspection checklist. Section 9.11 What are the maintenance inspection requirements for an HHS-certified laboratory or IITF? (a) An HHS-certified laboratory or IITF must undergo an inspection 3 months after becoming certified and at least every 6 months thereafter. (b) An HHS-certified laboratory or IITF is inspected by two or more inspectors. The number of inspectors is determined according to the number of specimens reviewed. Additional information regarding inspections is available from SAMHSA. (c) Each inspector conducts an independent evaluation and review of the HHS-certified laboratory’s or IITF’s procedures, records, and facilities using guidance provided by the Secretary. (d) To remain certified, an HHScertified laboratory or IITF must continue to satisfy the minimum requirements as stated in these Guidelines. Section 9.12 Who can inspect an HHScertified laboratory or IITF and when may the inspection be conducted? (a) An individual may be selected as an inspector for the Secretary if they satisfy the following criteria: (1) Has experience and an educational background similar to that required for either a responsible person or a certifying scientist for an HHS-certified laboratory as described in subpart K of these Guidelines or as a responsible technician for an HHS-certified IITF as described in subpart L of these Guidelines; (2) Has read and thoroughly understands the policies and requirements contained in these Guidelines and in other guidance E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations consistent with these Guidelines provided by the Secretary; (3) Submits a resume and documentation of qualifications to HHS; (4) Attends approved training; and (5) Performs acceptably as an inspector on an inspection of an HHScertified laboratory or IITF. (b) The Secretary or a Federal agency may conduct an inspection at any time. Section 9.13 What happens if an applicant laboratory or IITF does not satisfy the minimum requirements for either the PT program or the inspection program? If an applicant laboratory or IITF fails to satisfy the requirements established for the initial certification process, the laboratory or IITF must start the certification process from the beginning. ddrumheller on DSK120RN23PROD with RULES3 Section 9.14 What happens if an HHScertified laboratory or IITF does not satisfy the minimum requirements for either the PT program or the inspection program? (a) If an HHS-certified laboratory or IITF fails to satisfy the minimum requirements for certification, the laboratory or IITF is given a period of time (e.g., 5 or 30 working days depending on the nature of the deficiency) to provide any explanation for its performance and evidence that all deficiencies have been corrected. (b) A laboratory’s or IITF’s HHS certification may be revoked, suspended, or no further action taken depending on the seriousness of the deficiencies and whether there is evidence that the deficiencies have been corrected and that current performance meets the requirements for certification. (c) An HHS-certified laboratory or IITF may be required to undergo a special inspection or to test additional PT samples to address deficiencies. (d) If an HHS-certified laboratory’s or IITF’s certification is revoked or suspended in accordance with the process described in subpart P of these Guidelines, the laboratory or IITF is not permitted to test federally regulated specimens until the suspension is lifted or the laboratory or IITF has successfully completed the certification requirements as a new applicant laboratory or IITF. Section 9.15 What factors are considered in determining whether revocation of a laboratory’s or IITF’s HHS certification is necessary? (a) The Secretary shall revoke certification of an HHS-certified laboratory or IITF in accordance with these Guidelines if the Secretary determines that revocation is necessary VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 to ensure fully reliable and accurate drug and specimen validity test results and reports. (b) The Secretary shall consider the following factors in determining whether revocation is necessary: (1) Unsatisfactory performance in analyzing and reporting the results of drug and specimen validity tests (e.g., an HHS-certified laboratory reporting a false positive result for an employee’s drug test); (2) Unsatisfactory participation in performance testing or inspections; (3) A material violation of a certification standard, contract term, or other condition imposed on the HHScertified laboratory or IITF by a Federal agency using the laboratory’s or IITF’s services; (4) Conviction for any criminal offense committed as an incident to operation of the HHS-certified laboratory or IITF; or (5) Any other cause that materially affects the ability of the HHS-certified laboratory or IITF to ensure fully reliable and accurate drug test results and reports. (c) The period and terms of revocation shall be determined by the Secretary and shall depend upon the facts and circumstances of the revocation and the need to ensure accurate and reliable drug testing. Section 9.16 What factors are considered in determining whether to suspend a laboratory’s or IITF’s HHS certification? (a) The Secretary may immediately suspend (either partially or fully) a laboratory’s or IITF’s HHS certification to conduct drug testing for Federal agencies if the Secretary has reason to believe that revocation may be required and that immediate action is necessary to protect the interests of the United States and its employees. (b) The Secretary shall determine the period and terms of suspension based upon the facts and circumstances of the suspension and the need to ensure accurate and reliable drug testing. Section 9.17 How does the Secretary notify an HHS-certified laboratory or IITF that action is being taken against the laboratory or IITF? (a) When laboratory’s or IITF’s HHS certification is suspended or the Secretary seeks to revoke HHS certification, the Secretary shall immediately serve the HHS-certified laboratory or IITF with written notice of the suspension or proposed revocation by fax, mail, personal service, or registered or certified mail, return PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 70791 receipt requested. This notice shall state the following: (1) The reasons for the suspension or proposed revocation; (2) The terms of the suspension or proposed revocation; and (3) The period of suspension or proposed revocation. (b) The written notice shall state that the laboratory or IITF will be afforded an opportunity for an informal review of the suspension or proposed revocation if it so requests in writing within 30 days of the date the laboratory or IITF received the notice, or if expedited review is requested, within 3 days of the date the laboratory or IITF received the notice. Subpart P of these Guidelines contains detailed procedures to be followed for an informal review of the suspension or proposed revocation. (c) A suspension must be effective immediately. A proposed revocation must be effective 30 days after written notice is given or, if review is requested, upon the reviewing official’s decision to uphold the proposed revocation. If the reviewing official decides not to uphold the suspension or proposed revocation, the suspension must terminate immediately and any proposed revocation shall not take effect. (d) The Secretary will publish in the Federal Register the name, address, and telephone number of any HHS-certified laboratory or IITF that has its certification revoked or suspended under Section 9.13 or 9.14, respectively, and the name of any HHS-certified laboratory or IITF that has its suspension lifted. The Secretary shall provide to any member of the public upon request the written notice provided to a laboratory or IITF that has its HHS certification suspended or revoked, as well as the reviewing official’s written decision which upholds or denies the suspension or proposed revocation under the procedures of subpart P of these Guidelines. Section 9.18 May a laboratory or IITF that had its HHS certification revoked be recertified to test Federal agency specimens? Following revocation, a laboratory or IITF may apply for recertification. Unless otherwise provided by the Secretary in the notice of revocation under Section 9.17 or the reviewing official’s decision under Section 16.9(e) or 16.14(a), a laboratory or IITF which has had its certification revoked may reapply for HHS certification as an applicant laboratory or IITF. E:\FR\FM\12OCR3.SGM 12OCR3 70792 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Section 9.19 Where is the list of HHScertified laboratories and IITFs published? (a) The list of HHS-certified laboratories and IITFs is published monthly in the Federal Register. This notice is also available on the internet at https://www.samhsa.gov/workplace. (b) An applicant laboratory or IITF is not included on the list. Subpart J—Blind Samples Submitted by an Agency ddrumheller on DSK120RN23PROD with RULES3 Section 10.1 What are the requirements for Federal agencies to submit blind samples to HHS-certified laboratories or IITFs? (a) Each Federal agency is required to submit blind samples for its workplace drug testing program. The collector must send the blind samples to the HHS-certified laboratory or IITF that the collector sends employee specimens. (b) Each Federal agency must submit at least 3 percent blind samples along with its donor specimens based on the projected total number of donor specimens collected per year (up to a maximum of 400 blind samples). Every effort should be made to ensure that blind samples are submitted quarterly. (c) Approximately 75 percent of the blind samples submitted each year by an agency must be negative, 15 percent must be positive for one or more drugs, and 10 percent must either be adulterated or substituted. Section 10.2 What are the requirements for blind samples? (a) Drug positive blind samples must be validated by the supplier as to their content using appropriate initial and confirmatory tests. (1) Drug positive blind samples must contain one or more of the drugs or metabolites listed in the drug testing panel. (2) Drug positive blind samples must contain concentrations of drugs between 1.5 and 2 times the initial drug test cutoff. (b) Drug negative blind samples (i.e., certified to contain no drugs) must be validated by the supplier as negative using appropriate initial and confirmatory tests. (c) A blind sample that is adulterated must be validated using appropriate initial and confirmatory specimen validity tests, and have the characteristics to clearly show that it is an adulterated sample at the time of validation. (d) A blind sample that is substituted must be validated using appropriate initial and confirmatory specimen validity tests, and have the VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 characteristics to clearly show that it is a substituted sample at the time of validation. (e) The supplier must provide information on the blind samples’ content, validation, expected results, and stability to the collection site/ collector sending the blind samples to the laboratory or IITF, and must provide the information upon request to the MRO, the Federal agency for which the blind sample was submitted, or the Secretary. Section 10.3 How is a blind sample submitted to an HHS-certified laboratory or IITF? (a) A blind sample must be submitted as a split specimen (specimens A and B) with the current Federal CCF that the HHS-certified laboratory or IITF uses for donor specimens. The collector provides the required information to ensure that the Federal CCF has been properly completed and provides fictitious initials on the specimen label/ seal. The collector must indicate that the specimen is a blind sample on the MRO copy where a donor would normally provide a signature. (b) A collector should attempt to distribute the required number of blind samples randomly with donor specimens rather than submitting the full complement of blind samples as a single group. Section 10.4 What happens if an inconsistent result is reported for a blind sample? If an HHS-certified laboratory or IITF reports a result for a blind sample that is inconsistent with the expected result (e.g., a laboratory or IITF reports a negative result for a blind sample that was supposed to be positive, a laboratory reports a positive result for a blind sample that was supposed to be negative): (a) The MRO must contact the laboratory or IITF and attempt to determine if the laboratory or IITF made an error during the testing or reporting of the sample; (b) The MRO must contact the blind sample supplier and attempt to determine if the supplier made an error during the preparation or transfer of the sample; (c) The MRO must contact the collector and determine if the collector made an error when preparing the blind sample for transfer to the HHS-certified laboratory or IITF; (d) If there is no obvious reason for the inconsistent result, the MRO must notify both the Federal agency for which the blind sample was submitted and the Secretary; and PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 (e) The Secretary shall investigate the blind sample error. A report of the Secretary’s investigative findings and the corrective action taken in response to identified deficiencies must be sent to the Federal agency. The Secretary shall ensure notification of the finding as appropriate to other Federal agencies and coordinate any necessary actions to prevent the recurrence of the error. Subpart K—Laboratory Section 11.1 What must be included in the HHS-certified laboratory’s standard operating procedure manual? (a) An HHS-certified laboratory must have a standard operating procedure (SOP) manual that describes, in detail, all HHS-certified laboratory operations. When followed, the SOP manual ensures that all specimens are tested using the same procedures. (b) The SOP manual must include at a minimum, but is not limited to, a detailed description of the following: (1) Chain of custody procedures; (2) Accessioning; (3) Security; (4) Quality control/quality assurance programs; (5) Analytical methods and procedures; (6) Equipment and maintenance programs; (7) Personnel training; (8) Reporting procedures; and (9) Computers, software, and laboratory information management systems. (c) All procedures in the SOP manual must be compliant with these Guidelines and all guidance provided by the Secretary. (d) A copy of all procedures that have been replaced or revised and the dates on which the procedures were in effect must be maintained for at least 2 years. Section 11.2 What are the responsibilities of the responsible person (RP)? (a) Manage the day-to-day operations of the HHS-certified laboratory even if another individual has overall responsibility for alternate areas of a multi-specialty laboratory. (b) Ensure that there are sufficient personnel with adequate training and experience to supervise and conduct the work of the HHS-certified laboratory. The RP must ensure the continued competency of laboratory staff by documenting their in-service training, reviewing their work performance, and verifying their skills. (c) Maintain a complete and current SOP manual that is available to all personnel of the HHS-certified E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES3 laboratory and ensure that it is followed. The SOP manual must be reviewed, signed, and dated by the RP(s) when procedures are first placed into use and when changed or when a new individual assumes responsibility for the management of the HHS-certified laboratory. The SOP must be reviewed and documented by the RP annually. (d) Maintain a quality assurance program that ensures the proper performance and reporting of all test results; verify and monitor acceptable analytical performance for all controls and calibrators; monitor quality control testing; and document the validity, reliability, accuracy, precision, and performance characteristics of each test and test system. (e) Initiate and implement all remedial actions necessary to maintain satisfactory operation and performance of the HHS-certified laboratory in response to the following: quality control systems not within performance specifications; errors in result reporting or in analysis of performance testing samples; and inspection deficiencies. The RP must ensure that specimen results are not reported until all corrective actions have been taken and that the results provided are accurate and reliable. Section 11.3 What scientific qualifications must the RP have? The RP must have documented scientific qualifications in analytical toxicology. Minimum qualifications are: (a) Certification or licensure as a laboratory director by the state in forensic or clinical laboratory toxicology, a Ph.D. in one of the natural sciences, or training and experience comparable to a Ph.D. in one of the natural sciences with training and laboratory/research experience in biology, chemistry, and pharmacology or toxicology; (b) Experience in forensic toxicology with emphasis on the collection and analysis of biological specimens for drugs of abuse; (c) Experience in forensic applications of analytical toxicology (e.g., publications, court testimony, conducting research on the pharmacology and toxicology of drugs of abuse) or qualify as an expert witness in forensic toxicology; (d) Fulfillment of the RP responsibilities and qualifications, as demonstrated by the HHS-certified laboratory’s performance and verified upon interview by HHS-trained inspectors during each on-site inspection; and (e) Qualify as a certifying scientist. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Section 11.4 What happens when the RP is absent or leaves an HHS-certified laboratory? (a) HHS-certified laboratories must have multiple RPs or one RP and an alternate RP. If the RP(s) are concurrently absent, an alternate RP must be present and qualified to fulfill the responsibilities of the RP. (1) If an HHS-certified laboratory is without the RP and alternate RP for 14 calendar days or less (e.g., temporary absence due to vacation, illness, or business trip), the HHS-certified laboratory may continue operations and testing of Federal agency specimens under the direction of a certifying scientist. (2) The Secretary, in accordance with these Guidelines, will suspend a laboratory’s HHS certification for all specimens if the laboratory does not have an RP or alternate RP for a period of more than 14 calendar days. The suspension will be lifted upon the Secretary’s approval of a new permanent RP or alternate RP. (b) If the RP leaves an HHS-certified laboratory: (1) The HHS-certified laboratory may maintain certification and continue testing federally regulated specimens under the direction of an alternate RP for a period of up to 180 days while seeking to hire and receive the Secretary’s approval of the RP’s replacement. (2) The Secretary, in accordance with these Guidelines, will suspend a laboratory’s HHS certification for all federally regulated specimens if the laboratory does not have a permanent RP within 180 days. The suspension will be lifted upon the Secretary’s approval of the new permanent RP. (c) To nominate an individual as an RP or alternate RP, the HHS-certified laboratory must submit the following documents to the Secretary: the candidate’s current resume or curriculum vitae, copies of diplomas and licensures, a training plan (not to exceed 90 days) to transition the candidate into the position, an itemized comparison of the candidate’s qualifications to the minimum RP qualifications described in the Guidelines, and have official academic transcript(s) submitted from the candidate’s institution(s) of higher learning. The candidate must be found qualified during an on-site inspection of the HHS-certified laboratory. (d) The HHS-certified laboratory must fulfill additional inspection and PT criteria as required prior to conducting federally regulated testing under a new RP. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 70793 Section 11.5 What qualifications must an individual have to certify a result reported by an HHS-certified laboratory? (a) A certifying scientist must have: (1) At least a bachelor’s degree in the chemical or biological sciences or medical technology, or equivalent; (2) Training and experience in the analytical methods and forensic procedures used by the HHS-certified laboratory relevant to the results that the individual certifies; and (3) Training and experience in reviewing and reporting forensic test results and maintaining chain of custody, and an understanding of appropriate remedial actions in response to problems that may arise. (b) A certifying technician must have: (1) Training and experience in the analytical methods and forensic procedures used by the HHS-certified laboratory relevant to the results that the individual certifies; and (2) Training and experience in reviewing and reporting forensic test results and maintaining chain of custody, and an understanding of appropriate remedial actions in response to problems that may arise. Section 11.6 What qualifications and training must other personnel of an HHS-certified laboratory have? (a) All HHS-certified laboratory staff (e.g., technicians, administrative staff) must have the appropriate training and skills for the tasks they perform. (b) Each individual working in an HHS-certified laboratory must be properly trained (i.e., receive training in each area of work that the individual will be performing, including training in forensic procedures related to their job duties) before they are permitted to work independently with federally regulated specimens. All training must be documented. Section 11.7 What security measures must an HHS-certified laboratory maintain? (a) An HHS-certified laboratory must control access to the drug testing facility, specimens, aliquots, and records. (b) Authorized visitors must be escorted at all times, except for individuals conducting inspections (i.e., for the Department, a Federal agency, a state, or other accrediting agency) or emergency personnel (e.g., firefighters and medical rescue teams). (c) An HHS-certified laboratory must maintain records documenting the identity of the visitor and escort, date, time of entry and exit, and purpose for access to the secured area. E:\FR\FM\12OCR3.SGM 12OCR3 70794 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Section 11.8 What are the laboratory chain of custody requirements for specimens and aliquots? (a) HHS-certified laboratories must use chain of custody procedures (internal and external) to maintain control and accountability of specimens from the time of receipt at the laboratory through completion of testing, reporting of results, during storage, and continuing until final disposition of the specimens. (b) HHS-certified laboratories must use chain of custody procedures to document the handling and transfer of aliquots throughout the testing process until final disposal. (c) The chain of custody must be documented using either paper copy or electronic procedures. (d) Each individual who handles a specimen or aliquot must sign and complete the appropriate entries on the chain of custody form when the specimen or aliquot is handled or transferred, and every individual in the chain must be identified. (e) The date and purpose must be recorded on an appropriate chain of custody form each time a specimen or aliquot is handled or transferred. Section 11.9 What test(s) does an HHS-certified laboratory conduct on a urine specimen received from an IITF? An HHS-certified laboratory must test the specimen in the same manner as a specimen that had not been previously tested. ddrumheller on DSK120RN23PROD with RULES3 Section 11.10 What are the requirements for an initial drug test? (a) An initial drug test may be: (1) An immunoassay; or (2) An alternate technology (e.g., spectrometry, spectroscopy). (b) An HHS-certified laboratory must validate an initial drug test before testing specimens. (c) Initial drug tests must be accurate and reliable for the testing of specimens when identifying drugs or their metabolites. (d) An HHS-certified laboratory may conduct a second initial drug test using a method with different specificity, to rule out cross-reacting compounds. This second initial drug test must satisfy the batch quality control requirements specified in Section 11.12. Section 11.11 What must an HHScertified laboratory do to validate an initial drug test? (a) An HHS-certified laboratory must demonstrate and document the following for each initial drug test: VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 (1) The ability to differentiate negative specimens from those requiring further testing; (2) The performance of the test around the cutoff, using samples at several concentrations between 0 and 150 percent of the cutoff; (3) The effective concentration range of the test (linearity); (4) The potential for carryover; (5) The potential for interfering substances; and (6) The potential matrix effects if using an alternate technology. (b) Each new lot of reagent must be verified prior to being placed into service. (c) Each initial drug test using an alternate technology must be re-verified periodically or at least annually. Section 11.12 What are the batch quality control requirements when conducting an initial drug test? (a) Each batch of specimens must contain the following controls: (1) At least one control certified to contain no drug or drug metabolite; (2) At least one positive control with the drug or drug metabolite targeted at a concentration 25 percent above the cutoff; (3) At least one control with the drug or drug metabolite targeted at a concentration 75 percent of the cutoff; and (4) At least one control that appears as a donor specimen to the analysts. (b) Calibrators and controls must total at least 10 percent of the aliquots analyzed in each batch. Section 11.13 What are the requirements for a confirmatory drug test? (a) The analytical method must use mass spectrometric identification (e.g., gas chromatography-mass spectrometry [GC–MS], liquid chromatography-mass spectrometry [LC–MS], GC–MS/MS, LC–MS/MS) or equivalent. (b) A confirmatory drug test must be validated before it can be used to test federally regulated specimens. (c) Confirmatory drug tests must be accurate and reliable for the testing of a urine specimen when identifying and quantifying drugs or their metabolites. Section 11.14 What must an HHScertified laboratory do to validate a confirmatory drug test? (a) An HHS-certified laboratory must demonstrate and document the following for each confirmatory drug test: (1) The linear range of the analysis; (2) The limit of detection; (3) The limit of quantification; PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 (4) The accuracy and precision at the cutoff; (5) The accuracy (bias) and precision at 40 percent of the cutoff; (6) The potential for interfering substances; (7) The potential for carryover; and (8) The potential matrix effects if using liquid chromatography coupled with mass spectrometry. (b) Each new lot of reagent must be verified prior to being placed into service. (c) HHS-certified laboratories must reverify each confirmatory drug test method periodically or at least annually. Section 11.15 What are the batch quality control requirements when conducting a confirmatory drug test? (a) At a minimum, each batch of specimens must contain the following calibrators and controls: (1) A calibrator at the cutoff; (2) At least one control certified to contain no drug or drug metabolite; (3) At least one positive control with the drug or drug metabolite targeted at 25 percent above the cutoff; and (4) At least one control targeted at or less than 40 percent of the cutoff. (b) Calibrators and controls must total at least 10 percent of the aliquots analyzed in each batch. Section 11.16 What are the analytical and quality control requirements for conducting specimen validity tests? (a) Each invalid, adulterated, or substituted specimen validity test result must be based on an initial specimen validity test on one aliquot and a confirmatory specimen validity test on a second aliquot; (b) The HHS-certified laboratory must establish acceptance criteria and analyze calibrators and controls as appropriate to verify and document the validity of the test results (required specimen validity tests are addressed in Section 11.18); and (c) Controls must be analyzed concurrently with specimens. Section 11.17 What must an HHScertified laboratory do to validate a specimen validity test? An HHS-certified laboratory must demonstrate and document for each specimen validity test the appropriate performance characteristics of the test, and must re-verify the test periodically, or at least annually. Each new lot of reagent must be verified prior to being placed into service. E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES3 Section 11.18 What are the requirements for conducting each specimen validity test? (a) The requirements for measuring creatinine concentration are as follows: (1) The creatinine concentration must be measured to one decimal place on both the initial creatinine test and the confirmatory creatinine test; (2) The initial creatinine test must have the following calibrators and controls: (i) A calibrator at 2 mg/dL; (ii) A control in the range of 1.0 mg/ dL to 1.5 mg/dL; (iii) A control in the range of 3 mg/ dL to 20 mg/dL; and (iv) A control in the range of 21 mg/ dL to 25 mg/dL. (3) The confirmatory creatinine test (performed on those specimens with a creatinine concentration less than 2 mg/ dL on the initial test) must have the following calibrators and controls: (i) A calibrator at 2 mg/dL; (ii) A control in the range of 1.0 mg/ dL to 1.5 mg/dL; and (iii) A control in the range of 3 mg/ dL to 4 mg/dL. (b) The requirements for measuring specific gravity are as follows: (1) For specimens with initial creatinine test results greater than 5 mg/ dL and less than 20 mg/dL, laboratories may perform a screening test using a refractometer that measures urine specific gravity to at least three decimal places to identify specific gravity values that are acceptable (equal to or greater than 1.003) or dilute (equal to or greater than 1.002 and less than 1.003). Specimens must be subjected to an initial specific gravity test using a four decimal place refractometer when the initial creatinine test result is less than or equal to 5 mg/dL or when the screening specific gravity test result using a three decimal place refractometer is less than 1.002. (2) The screening specific gravity test must have the following calibrators and controls: (i) A calibrator or control at 1.000; (ii) One control targeted at 1.002; (iii) One control in the range of 1.004 to 1.018. (3) For the initial and confirmatory specific gravity tests, the refractometer must report and display specific gravity to four decimal places. The refractometer must be interfaced with a laboratory information management system (LIMS), computer, and/or generate a paper copy of the digital electronic display to document the numerical values of the specific gravity test results; VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 (4) The initial and confirmatory specific gravity tests must have the following calibrators and controls: (i) A calibrator or control at 1.0000; (ii) One control targeted at 1.0020; (iii) One control in the range of 1.0040 to 1.0180; and (iv) One control equal to or greater than 1.0200 but not greater than 1.0250. (c) Requirements for measuring pH are as follows: (1) Colorimetric pH tests that have the dynamic range of 3 to 12 to support the 4 and 11 pH cutoffs and pH meters must be capable of measuring pH to one decimal place. Colorimetric pH tests, dipsticks, and pH paper (i.e., screening tests) that have a narrow dynamic range and do not support the cutoffs may be used only to determine if an initial pH specimen validity test must be performed; (2) For the initial and confirmatory pH tests, the pH meter must report and display pH to at least one decimal place. The pH meter must be interfaced with a LIMS, computer, and/or generate a paper copy of the digital electronic display to document the numerical values of the pH test results; (3) pH screening tests must have, at a minimum, the following controls: (i) One control below the lower decision point in use; (ii) One control between the decision points in use; and (iii) One control above the upper decision point in use; (4) An initial colorimetric pH test must have the following calibrators and controls: (i) One calibrator at 4; (ii) One calibrator at 11; (iii) One control in the range of 3 to 3.8; (iv) One control in the range 4.2 to 5; (v) One control in the range of 5 to 9; (vi) One control in the range of 10 to 10.8; and (vii) One control in the range of 11.2 to 12; (5) An initial pH meter test, if a pH screening test is not used, must have the following calibrators and controls: (i) One calibrator at 3; (ii) One calibrator at 7; (iii) One calibrator at 10; (iv) One control in the range of 3 to 3.8; (v) One control in the range 4.2 to 5; (vi) One control in the range of 10 to 10.8; and (vii) One control in the range of 11.2 to 12; (6) An initial pH meter test (if a pH screening test is used) or confirmatory pH meter test must have the following calibrators and controls when the result of the preceding pH test indicates that PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 70795 the pH is below the lower decision point in use: (i) One calibrator at 4; (ii) One calibrator at 7; (iii) One control in the range of 3 to 3.8; and (iv) One control in the range 4.2 to 5; and (7) An initial pH meter test (if a pH screening test is used) or confirmatory pH meter test must have the following calibrators and controls when the result of the preceding pH test indicates that the pH is above the upper decision point in use: (i) One calibrator at 7; (ii) One calibrator at 10; (iii) One control in the range of 10 to 10.8; and (iv) One control in the range of 11.2 to 12. (d) Requirements for performing oxidizing adulterant tests are as follows: (1) The initial test must include an appropriate calibrator at the cutoff specified in Section 11.19(d)(2), (3), or (4) for the compound of interest, a control without the compound of interest (i.e., a certified negative control), and at least one control with one of the compounds of interest at a measurable concentration; and (2) A confirmatory test for a specific oxidizing adulterant must use a different analytical method than that used for the initial test. Each confirmatory test batch must include an appropriate calibrator, a control without the compound of interest (i.e., a certified negative control), and a control with the compound of interest at a measurable concentration. (e) The requirements for measuring the nitrite concentration are that the initial and confirmatory nitrite tests must have a calibrator at the cutoff, a control without nitrite (i.e., certified negative urine), one control in the range of 200 mcg/mL to 250 mcg/mL, and one control in the range of 500 mcg/mL to 625 mcg/mL. Section 11.19 What are the requirements for an HHS-certified laboratory to report a test result? (a) Laboratories must report a test result to the agency’s MRO within an average of 5 working days after receipt of the specimen. Reports must use the Federal CCF and/or an electronic report, as described in items p and q below. Before any test result can be reported, it must be certified by a certifying scientist or a certifying technician (as appropriate). (b) A primary (A) specimen is reported negative when each initial drug test is negative or if the specimen is negative upon confirmatory drug E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 70796 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations testing, and the specimen does not meet invalid criteria as described in Section 11.19(h)(1) through (13). (c) A primary (A) specimen is reported positive for a specific drug or drug metabolite when both the initial drug test is positive and the confirmatory drug test is positive in accordance with the cutoffs listed in the drug testing panel. (d) A primary (A) urine specimen is reported adulterated when: (1) The pH is less than 4 or equal to or greater than 11 using either a pH meter or a colorimetric pH test for the initial test on the first aliquot and a pH meter for the confirmatory test on the second aliquot; (2) The nitrite concentration is equal to or greater than 500 mcg/mL using either a nitrite colorimetric test or a general oxidant colorimetric test for the initial test on the first aliquot and a different confirmatory test (e.g., multiwavelength spectrophotometry, ion chromatography, capillary electrophoresis) on the second aliquot; (3) The presence of chromium (VI) is verified using either a general oxidant colorimetric test (with an equal to or greater than 50 mcg/mL chromium (VI)equivalent cutoff) or a chromium (VI) colorimetric test (chromium (VI) concentration equal to or greater than 50 mcg/mL) for the initial test on the first aliquot and a different confirmatory test (e.g., multi-wavelength spectrophotometry, ion chromatography, atomic absorption spectrophotometry, capillary electrophoresis, inductively coupled plasma-mass spectrometry) with the chromium (VI) concentration equal to or greater than the LOQ of the confirmatory test on the second aliquot; (4) The presence of halogen (e.g., chlorine from bleach, iodine, fluoride) is verified using either a general oxidant colorimetric test (with an equal to or greater than 200 mcg/mL nitriteequivalent cutoff or an equal to or greater than 50 mcg/mL chromium (VI)equivalent cutoff) or halogen colorimetric test (halogen concentration equal to or greater than the LOQ) for the initial test on the first aliquot and a different confirmatory test (e.g., multiwavelength spectrophotometry, ion chromatography, inductively coupled plasma-mass spectrometry) with a specific halogen concentration equal to or greater than the LOQ of the confirmatory test on the second aliquot; (5) The presence of glutaraldehyde is verified using either an aldehyde test (aldehyde present) or the characteristic immunoassay response on one or more drug immunoassay tests for the initial test on the first aliquot and a different VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 confirmatory method (e.g., GC/MS) for the confirmatory test with the glutaraldehyde concentration equal to or greater than the LOQ of the analysis on the second aliquot; (6) The presence of pyridine (pyridinium chlorochromate) is verified using either a general oxidant colorimetric test (with an equal to or greater than 200 mcg/mL nitriteequivalent cutoff or an equal to or greater than 50 mcg/mL chromium (VI)equivalent cutoff) or a chromium (VI) colorimetric test (chromium (VI) concentration equal to or greater than 50 mcg/mL) for the initial test on the first aliquot and a different confirmatory method (e.g., GC/MS) for the confirmatory test with the pyridine concentration equal to or greater than the LOQ of the analysis on the second aliquot; (7) The presence of a surfactant is verified by using a surfactant colorimetric test with an equal to or greater than 100 mcg/mL dodecylbenzene sulfonate-equivalent cutoff for the initial test on the first aliquot and a different confirmatory test (e.g., multi-wavelength spectrophotometry) with an equal to or greater than 100 mcg/mL dodecylbenzene sulfonate-equivalent cutoff on the second aliquot; or (8) The presence of any other adulterant not specified in Section 11.19(d)(2) through (7) is verified using an initial test on the first aliquot and a different confirmatory test on the second aliquot. (e) A primary (A) urine specimen is reported substituted when: (1) The creatinine concentration is less than 2 mg/dL and the specific gravity is less than or equal to 1.0010 or equal to or greater than 1.0200 on both the initial and confirmatory creatinine tests (i.e., the same colorimetric test may be used to test both aliquots) and on both the initial and confirmatory specific gravity tests (i.e., a refractometer is used to test both aliquots) on two separate aliquots; or (2) A biomarker is not present or is present at a concentration inconsistent with that established for human urine. (f) A primary (A) urine specimen is reported dilute when the creatinine concentration is equal to or greater than 2 mg/dL but less than 20 mg/dL and the specific gravity is greater than 1.0010 but less than 1.0030 on a single aliquot. (g) For a specimen that has an invalid result for one of the reasons stated in Section 11.19(h)(4) through (13), the HHS-certified laboratory shall contact the MRO and both will decide if testing by another HHS-certified laboratory would be useful in being able to report PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 a positive, adulterated, or substituted result. If no further testing is necessary, the HHS-certified laboratory then reports the invalid result to the MRO. (h) A primary (A) urine specimen is reported as an invalid result when: (1) Inconsistent creatinine concentration and specific gravity results are obtained (i.e., the creatinine concentration is less than 2 mg/dL on both the initial and confirmatory creatinine tests and the specific gravity is greater than 1.0010 but less than 1.0200 on the initial and/or confirmatory specific gravity test, the specific gravity is less than or equal to 1.0010 on both the initial and confirmatory specific gravity tests and the creatinine concentration is equal to or greater than 2 mg/dL on either or both the initial or confirmatory creatinine tests); (2) The pH is equal to or greater than 4 and less than 4.5 or equal to or greater than 9 and less than 11 using either a colorimetric pH test or pH meter for the initial test and a pH meter for the confirmatory test on two separate aliquots; (3) The nitrite concentration is equal to or greater than 200 mcg/mL using a nitrite colorimetric test or equal to or greater than the equivalent of 200 mcg/ mL nitrite using a general oxidant colorimetric test for both the initial (first) test and the second test or using either initial test and the nitrite concentration is equal to or greater than 200 mcg/mL but less than 500 mcg/mL for a different confirmatory test (e.g., multi-wavelength spectrophotometry, ion chromatography, capillary electrophoresis) on two separate aliquots; (4) The possible presence of chromium (VI) is determined using the same chromium (VI) colorimetric test with a cutoff equal to or greater than 50 mcg/mL chromium (VI) for both the initial (first) test and the second test on two separate aliquots; (5) The possible presence of a halogen (e.g., chlorine from bleach, iodine, fluoride) is determined using the same halogen colorimetric test with a cutoff equal to or greater than the LOQ for both the initial (first) test and the second test on two separate aliquots or relying on the odor of the specimen as the initial test; (6) The possible presence of glutaraldehyde is determined by using the same aldehyde test (aldehyde present) or characteristic immunoassay response on one or more drug immunoassay tests for both the initial (first) test and the second test on two separate aliquots; E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations (7) The possible presence of an oxidizing adulterant is determined by using the same general oxidant colorimetric test (with an equal to or greater than 200 mcg/mL nitriteequivalent cutoff, an equal to or greater than 50 mcg/mL chromium (VI)equivalent cutoff, or a halogen concentration is equal to or greater than the LOQ) for both the initial (first) test and the second test on two separate aliquots; (8) The possible presence of a surfactant is determined by using the same surfactant colorimetric test with an equal to or greater than 100 mcg/mL dodecylbenzene sulfonate-equivalent cutoff for both the initial (first) test and the second test on two separate aliquots or a foam/shake test for the initial test; (9) Interference occurs on the initial drug tests on two separate aliquots (i.e., valid initial drug test results cannot be obtained); (10) Interference with the confirmatory drug test occurs on at least two separate aliquots of the specimen and the HHS-certified laboratory is unable to identify the interfering substance; (11) The physical appearance of the specimen is such that testing the specimen may damage the laboratory’s instruments; (12) The physical appearances of the A and B specimens are clearly different (note: A is tested); or (13) A specimen validity test (i.e., other than the tests listed above) on two separate aliquots of the specimen indicates that the specimen is not valid for testing. (i) An HHS-certified laboratory shall reject a primary (A) specimen for testing when a fatal flaw occurs as described in Section 15.1 or when a correctable flaw as described in Section 15.2 is not recovered. The HHS-certified laboratory will indicate on the Federal CCF that the specimen was rejected for testing and provide the reason for reporting the rejected for testing result. (j) An HHS-certified laboratory must report all positive, adulterated, substituted, and invalid test results for a urine specimen. For example, a specimen can be positive for a drug and adulterated. (k) An HHS-certified laboratory must report the confirmatory concentration of each drug or drug metabolite reported for a positive result. (l) An HHS-certified laboratory must report numerical values of the specimen validity test results that support an adulterated, substituted, or invalid result (as appropriate). (m) An HHS-certified laboratory must report results using the HHS-specified VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 nomenclature published with the drug and biomarker testing panels. (n) When the concentration of a drug or drug metabolite exceeds the validated linear range of the confirmatory test, HHS-certified laboratories may report to the MRO that the quantitative value exceeds the linear range of the test or that the quantitative value is greater than ‘‘insert the actual value for the upper limit of the linear range,’’ or laboratories may report a quantitative value above the upper limit of the linear range that was obtained by diluting an aliquot of the specimen to achieve a result within the method’s linear range and multiplying the result by the appropriate dilution factor. (o) HHS-certified laboratories may transmit test results to the MRO by various electronic means (e.g., fax, computer). Transmissions of the reports must ensure confidentiality and the results may not be reported verbally by telephone. Laboratories and external service providers must ensure the confidentiality, integrity, and availability of the data and limit access to any data transmission, storage, and retrieval system. (p) HHS-certified laboratories must fax, courier, mail, or electronically transmit a legible image or copy of the completed Federal CCF and/or forward a computer-generated electronic report. The computer-generated report must contain sufficient information to ensure that the test results can accurately represent the content of the custody and control form that the MRO received from the collector. (q) For positive, adulterated, substituted, invalid, and rejected specimens, laboratories must fax, courier, mail, or electronically transmit a legible image or copy of the completed Federal CCF. Section 11.20 How long must an HHScertified laboratory retain specimens? (a) An HHS-certified laboratory must retain specimens that were reported as positive, adulterated, substituted, or as an invalid result for a minimum of 1 year. (b) Retained urine specimens must be kept in secured frozen storage (-20°C or less) to ensure their availability for retesting during an administrative or judicial proceeding. (c) Federal agencies may request that the HHS-certified laboratory retain a specimen for an additional specified period of time and must make that request within the 1-year period following the laboratory’s reporting of the specimen. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 70797 Section 11.21 How long must an HHScertified laboratory retain records? (a) An HHS-certified laboratory must retain all records generated to support test results for at least 2 years. The laboratory may convert hardcopy records to electronic records for storage and then discard the hardcopy records after 6 months. (b) A Federal agency may request the HHS-certified laboratory to maintain a documentation package (as described in Section 11.23) that supports the chain of custody, testing, and reporting of a donor’s specimen that is under legal challenge by a donor. The Federal agency’s request to the laboratory must be in writing and must specify the period of time to maintain the documentation package. (c) An HHS-certified laboratory may retain records other than those included in the documentation package beyond the normal 2-year period of time. Section 11.22 What statistical summary reports must an HHS-certified laboratory provide for urine testing? (a) HHS-certified laboratories must provide to each Federal agency for which they perform testing a semiannual statistical summary report that must be submitted by mail, fax, or email within 14 working days after the end of the semiannual period. The summary report must not include any personally identifiable information. A copy of the semiannual statistical summary report will also be sent to the Secretary or designated HHS representative. The semiannual statistical report contains the following information: (1) Reporting period (inclusive dates); (2) HHS-certified laboratory name and address; (3) Federal agency name; (4) Number of specimen results reported; (5) Number of specimens collected by reason for test; (6) Number of specimens reported negative and the number reported negative/dilute; (7) Number of specimens rejected for testing because of a fatal flaw; (8) Number of specimens rejected for testing because of an uncorrected flaw; (9) Number of specimens tested positive by each initial drug test; (10) Number of specimens reported positive; (11) Number of specimens reported positive for each drug and drug metabolite; (12) Number of specimens reported adulterated; (13) Number of specimens reported substituted; and E:\FR\FM\12OCR3.SGM 12OCR3 70798 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations (14) Number of specimens reported as invalid result. (b) An HHS-certified laboratory must make copies of an agency’s test results available when requested to do so by the Secretary or by the Federal agency for which the laboratory is performing drug-testing services. (c) An HHS-certified laboratory must ensure that a qualified individual is available to testify in a proceeding against a Federal employee when the proceeding is based on a test result reported by the laboratory. ddrumheller on DSK120RN23PROD with RULES3 Section 11.23 What HHS-certified laboratory information is available to a Federal agency? (a) Following a Federal agency’s receipt of a positive, adulterated, or substituted drug test report, the Federal agency may submit a written request for copies of the records relating to the drug test results or a documentation package or any relevant certification, review, or revocation of certification records. (b) Standard documentation packages provided by an HHS-certified laboratory must contain the following items: (1) A cover sheet providing a brief description of the procedures and tests performed on the donor’s specimen; (2) A table of contents that lists all documents and materials in the package by page number; (3) A copy of the Federal CCF with any attachments, internal chain of custody records for the specimen, memoranda (if any) generated by the HHS-certified laboratory, and a copy of the electronic report (if any) generated by the HHS-certified laboratory; (4) A brief description of the HHScertified laboratory’s initial drug and specimen validity testing procedures, instrumentation, and batch quality control requirements; (5) Copies of the initial test data for the donor’s specimen with all calibrators and controls and copies of all internal chain of custody documents related to the initial tests; (6) A brief description of the HHScertified laboratory’s confirmatory drug (and specimen validity, if applicable) testing procedures, instrumentation, and batch quality control requirements; (7) Copies of the confirmatory test data for the donor’s specimen with all calibrators and controls and copies of all internal chain of custody documents related to the confirmatory tests; and (8) Copies of the re´sume´ or curriculum vitae for the RP(s) and the certifying technician or certifying scientist of record. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Section 11.24 What HHS-certified laboratory information is available to a Federal employee? Federal applicants or employees who are subject to a workplace drug test may submit a written request through the MRO and/or the Federal agency requesting copies of any records relating to their drug test results or a documentation package as described in Section 11.23(b) and any relevant certification, review, or revocation of certification records. Federal applicants or employees, or their designees, are not permitted access to their specimens collected pursuant to Executive Order 12564, Public Law 100–71, and these Guidelines. Section 11.25 What types of relationships are prohibited between an HHS-certified laboratory and an MRO? An HHS-certified laboratory must not enter into any relationship with a Federal agency’s MRO that may be construed as a potential conflict of interest or derive any financial benefit by having a Federal agency use a specific MRO. This means an MRO may be an employee of the agency or a contractor for the agency; however, an MRO shall not be an employee or agent of or have any financial interest in the HHScertified laboratory for which the MRO is reviewing drug testing results. Additionally, an MRO shall not derive any financial benefit by having an agency use a specific HHS-certified laboratory or have any agreement with an HHS-certified laboratory that may be construed as a potential conflict of interest. Section 11.26 What type of relationship can exist between an HHScertified laboratory and an HHScertified IITF? An HHS-certified laboratory can enter into any relationship with an HHScertified IITF. Subpart L—Instrumented Initial Test Facility (IITF) Section 12.1 What must be included in the HHS-certified IITF’s standard operating procedure manual? (a) An HHS-certified IITF must have a standard operating procedure (SOP) manual that describes, in detail, all HHS-certified IITF operations. When followed, the SOP manual ensures that all specimens are tested consistently using the same procedures. (b) The SOP manual must include at a minimum, but is not limited to, a detailed description of the following: (1) Chain of custody procedures; PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 (2) Accessioning; (3) Security; (4) Quality control/quality assurance programs; (5) Analytical methods and procedures; (6) Equipment and maintenance programs; (7) Personnel training; (8) Reporting procedures; and (9) Computers, software, and laboratory information management systems. (c) All procedures in the SOP manual must be compliant with these Guidelines and all guidance provided by the Secretary. (d) A copy of all procedures that have been replaced or revised and the dates on which the procedures were in effect must be maintained for two years. Section 12.2 What are the responsibilities of the responsible technician (RT)? (a) Manage the day-to-day operations of the HHS-certified IITF even if another individual has overall responsibility for alternate areas of a multi-specialty facility. (b) Ensure that there are sufficient personnel with adequate training and experience to supervise and conduct the work of the HHS-certified IITF. The RT must ensure the continued competency of IITF personnel by documenting their in-service training, reviewing their work performance, and verifying their skills. (c) Maintain a complete and current SOP manual that is available to all personnel of the HHS-certified IITF, and ensure that it is followed. The SOP manual must be reviewed, signed, and dated by the RT when procedures are first placed into use or changed or when a new individual assumes responsibility for the management of the HHS-certified IITF. The SOP must be reviewed and documented by the RT annually. (d) Maintain a quality assurance program that ensures the proper performance and reporting of all test results; verify and monitor acceptable analytical performance for all controls and calibrators; monitor quality control testing; and document the validity, reliability, accuracy, precision, and performance characteristics of each test and test system. (e) Initiate and implement all remedial actions necessary to maintain satisfactory operation and performance of the HHS-certified IITF in response to the following: quality control systems not within performance specifications, errors in result reporting or in analysis of performance testing samples, and inspection deficiencies. The RT must ensure that specimen results are not E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations reported until all corrective actions have been taken and that the results provided are accurate and reliable. Section 12.3 What qualifications must the RT have? An RT must: (a) Have at least a bachelor’s degree in the chemical or biological sciences or medical technology, or equivalent; (b) Have training and experience in the analytical methods and forensic procedures used by the HHS-certified IITF; (c) Have training and experience in reviewing and reporting forensic test results and maintaining chain of custody, and an understanding of appropriate remedial actions in response to problems that may arise; (d) Be found to fulfill RT responsibilities and qualifications, as demonstrated by the HHS-certified IITF’s performance and verified upon interview by HHS-trained inspectors during each on-site inspection; and (e) Qualify as a certifying technician. ddrumheller on DSK120RN23PROD with RULES3 Section 12.4 What happens when the RT is absent or leaves an HHS-certified IITF? (a) HHS-certified IITFs must have an RT and an alternate RT. When an RT is absent, an alternate RT must be present and qualified to fulfill the responsibilities of the RT. (1) If an HHS-certified IITF is without the RT and alternate RT for 14 calendar days or less (e.g., temporary absence due to vacation, illness, business trip), the HHS-certified IITF may continue operations and testing of Federal agency specimens under the direction of a certifying technician. (2) The Secretary, in accordance with these Guidelines, will suspend an IITF’s HHS certification for all specimens if the IITF does not have an RT or alternate RT for a period of more than 14 calendar days. The suspension will be lifted upon the Secretary’s approval of a new permanent RT or alternate RT. (b) If the RT leaves an HHS-certified IITF: (1) The HHS-certified IITF may maintain certification and continue testing federally regulated specimens under the direction of an alternate RT for a period of up to 180 days while seeking to hire and receive the Secretary’s approval of the RT’s replacement. (2) The Secretary, in accordance with these Guidelines, will suspend an IITF’s HHS certification for all federally regulated specimens if the IITF does not have a permanent RT within 180 days. The suspension will be lifted upon the VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Secretary’s approval of the new permanent RT. (c) To nominate an individual as the RT or alternate RT, the HHS-certified IITF must submit the following documents to the Secretary: the candidate’s current resume or curriculum vitae, copies of diplomas and licensures, a training plan (not to exceed 90 days) to transition the candidate into the position, an itemized comparison of the candidate’s qualifications to the minimum RT qualifications described in the Guidelines, and have official academic transcript(s) submitted from the candidate’s institution(s) of higher learning. The candidate must be found qualified during an on-site inspection of the HHS-certified IITF. (d) The HHS-certified IITF must fulfill additional inspection and PT criteria as required prior to conducting federally regulated testing under a new RT. Section 12.5 What qualifications must an individual have to certify a result reported by an HHS-certified IITF? A certifying technician must have: (a) Training and experience in the analytical methods and forensic procedures used by the HHS-certified IITF relevant to the results that the individual certifies; and (b) Training and experience in reviewing and reporting forensic test results and maintaining chain of custody, and an understanding of appropriate remedial actions in response to problems that may arise. Section 12.6 What qualifications and training must other personnel of an HHS-certified IITF have? (a) All HHS-certified IITF staff (e.g., technicians, administrative staff) must have the appropriate training and skills for the tasks they perform. (b) Each individual working in an HHS-certified IITF must be properly trained (i.e., receive training in each area of work that the individual will be performing, including training in forensic procedures related to their job duties) before they are permitted to work independently with federally regulated specimens. All training must be documented. Section 12.7 What security measures must an HHS-certified IITF maintain? (a) An HHS-certified IITF must control access to the drug testing facility, specimens, aliquots, and records. (b) Authorized visitors must be escorted at all times except for individuals conducting inspections (i.e., for the Department, a Federal agency, a PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 70799 state, or other accrediting agency) or emergency personnel (e.g., firefighters and medical rescue teams). (c) An HHS-certified IITF must maintain records documenting the identity of the visitor and escort, date, time of entry and exit, and purpose for the access to the secured area. Section 12.8 What are the IITF chain of custody requirements for specimens and aliquots? (a) HHS-certified IITFs must use chain of custody procedures (internal and external) to maintain control and accountability of specimens from the time of receipt at the IITF through completion of testing, reporting of results, during storage, and continuing until final disposition of the specimens. (b) HHS-certified IITFs must use chain of custody procedures to document the handling and transfer of aliquots throughout the testing process until final disposal. (c) The chain of custody must be documented using either paper copy or electronic procedures. (d) Each individual who handles a specimen or aliquot must sign and complete the appropriate entries on the chain of custody form when the specimen or aliquot is handled or transferred, and every individual in the chain must be identified. (e) The date and purpose must be recorded on an appropriate chain of custody form each time a specimen or aliquot is handled or transferred. Section 12.9 What are the requirements for an initial drug test? (a) An initial drug test may be: (1) An immunoassay; or (2) An alternate technology (e.g., spectrometry, spectroscopy). (b) An HHS-certified IITF must validate an initial drug test before testing specimens; (c) Initial drug tests must be accurate and reliable for the testing of urine specimens when identifying drugs or their metabolites. (d) An HHS-certified IITF may conduct a second initial drug test using a method with different specificity, to rule out cross-reacting compounds. This second initial drug test must satisfy the batch quality control requirements specified in Section 12.11. Section 12.10 What must an HHScertified IITF do to validate an initial drug test? (a) An HHS-certified IITF must demonstrate and document the following for each initial drug test: (1) The ability to differentiate negative specimens from those requiring further testing; E:\FR\FM\12OCR3.SGM 12OCR3 70800 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations (2) The performance of the test around the cutoff, using samples at several concentrations between 0 and 150 percent of the cutoff; (3) The effective concentration range of the test (linearity); (4) The potential for carryover; (5) The potential for interfering substances; and (6) The potential matrix effects if using an alternate technology. (b) Each new lot of reagent must be verified prior to being placed into service. (c) Each initial drug test using an alternate technology must be re-verified periodically or at least annually. Section 12.11 What are the batch quality control requirements when conducting an initial drug test? (a) Each batch of specimens must contain the following calibrators and controls: (1) At least one control certified to contain no drug or drug metabolite; (2) At least one positive control with the drug or drug metabolite targeted at a concentration 25 percent above the cutoff; (3) At least one control with the drug or drug metabolite targeted at a concentration 75 percent of the cutoff; and (4) At least one control that appears as a donor specimen to the analysts. (b) Calibrators and controls must total at least 10 percent of the aliquots analyzed in each batch. Section 12.12 What are the analytical and quality control requirements for conducting specimen validity tests? (a) Each specimen validity test result must be based on performing a single test on one aliquot; (b) The HHS-certified IITF must establish acceptance criteria and analyze calibrators and controls as appropriate to verify and document the validity of the test results in accordance with Section 12.14; and (c) Controls must be analyzed concurrently with specimens. ddrumheller on DSK120RN23PROD with RULES3 Section 12.13 What must an HHScertified IITF do to validate a specimen validity test? An HHS-certified IITF must demonstrate and document for each specimen validity test the appropriate performance characteristics of the test, and must re-verify the test periodically, or at least annually. Each new lot of reagent must be verified prior to being placed into service. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Section 12.14 What are the requirements for conducting each specimen validity test? (a) The requirements for measuring creatinine concentration are as follows: (1) The creatinine concentration must be measured to one decimal place on the test; (2) The creatinine test must have the following calibrators and controls: (i) A calibrator at 2 mg/dL; (ii) A control in the range of 1.0 mg/ dL to 1.5 mg/dL; (iii) A control in the range of 3 mg/ dL to 20 mg/dL; and (iv) A control in the range of 21 mg/ dL to 25 mg/dL. (b) The requirements for measuring specific gravity are as follows: (1) For specimens with creatinine test results greater than 5 mg/dL and less than 20 mg/dL, an IITF must perform a screening test using a refractometer to identify specific gravity values that are acceptable (equal to or greater than1.003) or dilute (equal to or greater than1.002 and less than1.003). Specimens must be forwarded to an HHS-certified laboratory when the creatinine test result is less than or equal to 5 mg/dL or when the screening specific gravity test result is less than 1.002. (2) The screening specific gravity test must have the following calibrators and controls: (i) A calibrator or control at 1.000; (ii) One control targeted at 1.002; and (iii) One control in the range of 1.004 to 1.018. (c) The requirements for measuring pH are as follows: (1) The IITF may perform the pH test using a pH meter, colorimetric pH test, dipsticks, or pH paper. Specimens must be forwarded to an HHS-certified laboratory when the pH is less than 4.5 or equal to or greater than 9.0. (2) The pH test must have, at a minimum, the following calibrators and controls: (i) One control below 4.5; (ii) One control between 4.5 and 9.0; (iii) One control above 9.0; and (iv) One or more calibrators as appropriate for the test. For a pH meter: calibrators at 4, 7, and 10. (d) The requirements for measuring the nitrite concentration are that the nitrite test must have a calibrator at 200 mcg/mL nitrite, a control without nitrite (i.e., certified negative urine), one control in the range of 200 mcg/mL to 250 mcg/mL, and one control in the range of 500 mcg/mL to 625 mcg/mL. Specimens with a nitrite concentration equal to or greater than 200 mcg/mL must be forwarded to an HHS-certified laboratory; and, PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 (e) Requirements for performing oxidizing adulterant tests are that the test must include an appropriate calibrator at the cutoff specified in Section 11.19(d)(3), (4), or (6) for the compound of interest, a control without the compound of interest (i.e., a certified negative control), and at least one control with one of the compounds of interest at a measurable concentration. Specimens with an oxidizing adulterant result equal to or greater than the cutoff must be forwarded to an HHS-certified laboratory. Section 12.15 What are the requirements for an HHS-certified IITF to report a test result? (a) An HHS-certified IITF must report a test result to the agency’s MRO within an average of 3 working days after receipt of the specimen. Reports must use the Federal CCF and/or an electronic report. Before any test result can be reported, it must be certified by a certifying technician. (b) A primary (A) specimen is reported negative when each drug test is negative and each specimen validity test result indicates that the specimen is a valid urine specimen. (c) A primary (A) urine specimen is reported dilute when the creatinine concentration is greater than 5 mg/dL but less than 20 mg/dL and the specific gravity is equal to or greater than 1.002 but less than 1.003. (d) An HHS-certified IITF shall reject a urine specimen for testing when a fatal flaw occurs as described in Section 15.1 or when a correctable flaw as described in Section 15.2 is not recovered. The HHS-certified IITF will indicate on the Federal CCF that the specimen was rejected for testing and provide the reason for reporting the rejected for testing result. (e) An HHS-certified IITF must report results using the HHS-specified nomenclature published with the drug and biomarker testing panels. (f) HHS-certified IITFs may transmit test results to the MRO by various electronic means (e.g., fax, computer). Transmissions of the reports must ensure confidentiality and the results may not be reported verbally by telephone. IITFs and external service providers must ensure the confidentiality, integrity, and availability of the data and limit access to any data transmission, storage, and retrieval system. (g) HHS-certified IITFs must fax, courier, mail, or electronically transmit a legible image or copy of the completed Federal CCF and/or forward a computergenerated electronic report. The E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations computer-generated report must contain sufficient information to ensure that the test results can accurately represent the content of the custody and control form that the MRO received from the collector. (h) For rejected specimens, IITFs must fax, courier, mail, or electronically transmit a legible image or copy of the completed Federal CCF. Section 12.16 How does an HHScertified IITF handle a specimen that tested positive, adulterated, substituted, or invalid at the IITF? (a) The remaining specimen is resealed using a tamper-evident label/ seal; (b) The individual resealing the remaining specimen initials and dates the tamper-evident label/seal; and (c) The resealed specimen and split specimen and the Federal CCF are sealed in a leak-proof plastic bag, and are sent to an HHS-certified laboratory under chain of custody within one day after completing the drug and specimen validity tests. Section 12.17 How long must an HHScertified IITF retain a specimen? A specimen that is negative, negative/ dilute, or rejected for testing is discarded. Section 12.18 How long must an HHScertified IITF retain records? ddrumheller on DSK120RN23PROD with RULES3 (a) An HHS-certified IITF must retain all records generated to support test results for at least 2 years. The IITF may convert hardcopy records to electronic records for storage and then discard the hardcopy records after six months. (b) A Federal agency may request the HHS-certified IITF to maintain a documentation package (as described in Section 12.20) that supports the chain of custody, testing, and reporting of a donor’s specimen that is under legal challenge by a donor. The Federal agency’s request to the IITF must be in writing and must specify the period of time to maintain the documentation package. (c) An HHS-certified IITF may retain records other than those included in the documentation package beyond the normal two-year period of time. Section 12.19 What statistical summary reports must an HHS-certified IITF provide? (a) HHS-certified IITFs must provide to each Federal agency for which they perform testing a semiannual statistical summary report that must be submitted by mail, fax, or email within 14 working days after the end of the semiannual period. The summary report must not VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 include any personally identifiable information. A copy of the semiannual statistical summary report will also be sent to the Secretary or designated HHS representative. The semiannual statistical report contains the following information: (1) Reporting period (inclusive dates); (2) HHS-certified IITF name and address; (3) Federal agency name; (4) Total number of specimens tested; (5) Number of specimens collected by reason for test; (6) Number of specimens reported negative and the number reported negative/dilute; (7) Number of specimens rejected for testing because of a fatal flaw; (8) Number of specimens rejected for testing because of an uncorrected flaw; (9) Number of specimens tested positive by each initial drug test; and (10) Number of specimens forwarded to an HHS-certified laboratory for testing. (b) An HHS-certified IITF must make copies of an agency’s test results available when requested to do so by the Secretary or by the Federal agency for which the IITF is performing drugtesting services. (c) An HHS-certified IITF must ensure that a qualified individual is available to testify in a proceeding against a Federal employee when the proceeding is based on a test result reported by the IITF. Section 12.20 What HHS-certified IITF information is available to a Federal agency? (a) Following a Federal agency’s receipt of a positive, adulterated, or substituted drug test report from a laboratory, the Federal agency may submit a written request for copies of the IITF records relating to the drug test results or a documentation package or any relevant certification, review, or revocation of certification records. (b) Standard documentation packages provided by an HHS-certified IITF must contain the following items: (1) A cover sheet providing a brief description of the procedures and tests performed on the donor’s specimen; (2) A table of contents that lists all documents and materials in the package by page number; (3) A copy of the Federal CCF with any attachments, internal chain of custody records for the specimen, memoranda (if any) generated by the HHS-certified IITF, and a copy of the electronic report (if any) generated by the HHS-certified IITF; (4) A brief description of the HHScertified IITF’s drug and specimen validity testing procedures, PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 70801 instrumentation, and batch quality control requirements; (5) Copies of all test data for the donor’s specimen with all calibrators and controls and copies of all internal chain of custody documents related to the tests; and (6) Copies of the re´sume´ or curriculum vitae for the RT and for the certifying technician of record. Section 12.21 What HHS-certified IITF information is available to a Federal employee? A Federal employee who is the subject of a drug test may provide a written request through the MRO and/ or the Federal agency requesting access to any records relating to the employee’s drug test results or a documentation package (as described in Section 12.20) and any relevant certification, review, or revocation of certification records. Section 12.22 What types of relationships are prohibited between an HHS-certified IITF and an MRO? An HHS-certified IITF must not enter into any relationship with a Federal agency’s MRO that may be construed as a potential conflict of interest or derive any financial benefit by having a Federal agency use a specific MRO. This means an MRO may be an employee of the agency or a contractor for the agency; however, an MRO shall not be an employee or agent of or have any financial interest in the HHScertified IITF for which the MRO is reviewing drug testing results. Additionally, an MRO shall not derive any financial benefit by having an agency use a specific HHS-certified IITF or have any agreement with an HHScertified IITF that may be construed as a potential conflict of interest. Section 12.23 What type of relationship can exist between an HHScertified IITF and an HHS-certified laboratory? An HHS-certified IITF can enter into any relationship with an HHS-certified laboratory. Subpart M—Medical Review Officer (MRO) Section 13.1 MRO? Who may serve as an (a) A currently licensed physician who has: (1) A Doctor of Medicine (M.D.) or Doctor of Osteopathy (D.O.) degree; (2) Knowledge regarding the pharmacology and toxicology of illicit drugs; (3) The training necessary to serve as an MRO as set out in Section 13.3; E:\FR\FM\12OCR3.SGM 12OCR3 70802 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations (4) Satisfactorily passed an initial examination administered by a nationally recognized entity or a subspecialty board that has been approved by the Secretary to certify MROs; and (5) At least every five years from initial certification, completed requalification training on the topics in Section 13.3 and satisfactorily passed a requalification examination administered by a nationally recognized entity or a subspecialty board that has been approved by the Secretary to certify MROs. Section 13.2 How are nationally recognized entities or subspecialty boards that certify MROs approved? Section 13.4 What are the responsibilities of an MRO? All nationally recognized entities or subspecialty boards which seek approval by the Secretary to certify physicians as MROs for Federal workplace drug testing programs must submit their qualifications, a sample examination, and other necessary supporting examination materials (e.g., answers, previous examination statistics or other background examination information, if requested). Approval will be based on an objective review of qualifications that include a copy of the MRO applicant application form, documentation that the continuing education courses are accredited by a professional organization, and the delivery method and content of the examination. Each approved MRO certification entity must resubmit their qualifications for approval every two years. The Secretary shall publish at least every two years a notification in the Federal Register listing those entities and subspecialty boards that have been approved. This notification is also available on the internet at https:// www.samhsa.gov/workplace. ddrumheller on DSK120RN23PROD with RULES3 Section 13.3 What training is required before a physician may serve as an MRO? (a) A physician must receive training that includes a thorough review of the following: (1) The collection procedures used to collect Federal agency specimens; (2) How to interpret test results reported by HHS-certified IITFs and laboratories (e.g., negative, negative/ dilute, positive, adulterated, substituted, rejected for testing, and invalid); (3) Chain of custody, reporting, and recordkeeping requirements for Federal agency specimens; (4) The HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs for all authorized specimen types; and VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 (5) Procedures for interpretation, review (e.g., donor interview for legitimate medical explanations, review of documentation provided by the donor to support a legitimate medical explanation), and reporting of results specified by any Federal agency for which the individual may serve as an MRO; (b) Certified MROs must complete training on any revisions to these Guidelines including any changes to the drug and biomarker testing panels prior to their effective date, to continue serving as an MRO for Federal agency specimens. (a) The MRO must review all positive, adulterated, rejected for testing, invalid, and substituted test results. (b) Staff under the direct, personal supervision of the MRO may review and report negative and (for urine) negative/ dilute test results to the agency’s designated representative. The MRO must review at least 5 percent of all negative results reported by the MRO staff to ensure that the MRO staff are properly performing the review process. (c) The MRO must discuss potential invalid results with the HHS-certified laboratory, as addressed in Section 11.19(g) to determine whether testing at another HHS-certified laboratory may be warranted. (d) After receiving a report from an HHS-certified laboratory or (for urine) HHS-certified IITF, the MRO must: (1) Review the information on the MRO copy of the Federal CCF that was received from the collector and the report received from the HHS-certified laboratory or HHS-certified IITF; (2) Interview the donor when required; (3) Make a determination regarding the test result; and (4) Report the verified result to the Federal agency. (e) The MRO must maintain records for a minimum of two years while maintaining the confidentiality of the information. The MRO may convert hardcopy records to electronic records for storage and discard the hardcopy records after six months. (f) The MRO must conduct a medical examination or a review of the examining physician’s findings and make a determination of refusal to test or cancelled test when a collector reports that the donor was unable to provide a specimen and an alternate specimen was not collected, as addressed in Sections 8.6 and 13.6. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 Section 13.5 What must an MRO do when reviewing a urine specimen’s test results? (a) When the HHS-certified laboratory or HHS-certified IITF reports a negative result for the primary (A) specimen, the MRO reports a negative result to the agency. (b) When the HHS-certified laboratory or HHS-certified IITF reports a negative/ dilute result for the primary (A) urine specimen, the MRO reports a negative/ dilute result to the agency and directs the agency to immediately collect another specimen from the donor. (1) If the recollected specimen provides a negative or negative/dilute result, the MRO reports a negative result to the agency, with no further action required. (2) If the recollected specimen provides a result other than negative or negative/dilute, the MRO follows the procedures in Section 13.5(c) through (f) for the recollected specimen. (c) When the HHS-certified laboratory reports multiple results for the primary (A) urine specimen, the MRO must follow the verification procedures described in Section 13.5(d) through (f) and: (1) The MRO reports all verified positive and/or refusal to test results to the Federal agency. (2) If an invalid result was reported in conjunction with a positive, adulterated, or substituted result, the MRO does not report the verified invalid result to the Federal agency at this time. The MRO takes action for the verified invalid result(s) for the primary (A) specimen as described in Section 13.5(f) only when: (i) The MRO verifies the positive, adulterated, or substituted result as negative based on a legitimate medical explanation as described in Section 13.5(d)(2) and (e)(1); or (ii) The split (B) specimen is tested and reported as a failure to reconfirm the positive, adulterated, or substituted result as described in Section 14.6(m). (d) When the HHS-certified laboratory reports a positive result for the primary (A) specimen, the MRO must contact the donor to determine if there is any legitimate medical explanation for the positive result. (1) If the donor admits unauthorized use of the drug(s) that caused the positive result, the MRO reports the test result as positive to the agency. The MRO must document the donor’s admission of unauthorized drug use in the MRO records and in the MRO’s report to the Federal agency. (2) If the donor provides documentation (e.g., a valid prescription) to support a legitimate E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations medical explanation for the positive result, the MRO reports the test result as negative to the agency. If the laboratory also reports that the urine specimen is dilute, the MRO reports a negative/ dilute result to the agency and directs the agency to immediately collect another specimen from the donor. The MRO follows the procedures in Section 13.5(b)(1) or (2) for the recollected specimen. (i) Passive exposure to a drug (e.g., exposure to marijuana smoke) is not a legitimate medical explanation for a positive drug test result. (ii) Ingestion of food products containing a drug (e.g., products containing marijuana, poppy seeds containing codeine and/or morphine) is not a legitimate medical explanation for a positive urine drug test result. (iii) A physician’s authorization or medical recommendation for a Schedule 1 controlled substance is not a legitimate medical explanation for a positive drug test result. (3) If the donor is unable to provide a legitimate medical explanation for the positive result, the MRO reports the positive result to the agency. If the laboratory also reports that the urine specimen is dilute, the MRO may choose not to report the dilute result. (e) When the HHS-certified laboratory reports an adulterated or substituted result for the primary (A) urine specimen, the MRO contacts the donor to determine if the donor has a legitimate medical explanation for the adulterated or substituted result. (1) If the donor provides a legitimate medical explanation, the MRO reports a negative result to the Federal agency. (2) If the donor is unable to provide a legitimate medical explanation, the MRO reports a refusal to test to the Federal agency because the urine specimen was adulterated or substituted. (f) When the HHS-certified laboratory reports an invalid result for the primary (A) urine specimen, the MRO must contact the donor to determine if there is a legitimate explanation for the invalid result. In the case of an invalid result based on pH of 9.0 to 9.5, when an employee has no other medical explanation for the pH in this range, the MRO must consider whether there is evidence of elapsed time and high temperature that could account for the pH value. The MRO may contact the collection site, HHS-certified IITF, and/ or HHS-certified laboratory to discuss time and temperature issues (e.g., time elapsed from collection to receipt at the testing facility, likely temperature conditions between the time of the collection and transportation to the VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 testing facility, specimen storage conditions). (1) If the donor provides a legitimate explanation (e.g., a prescription medicine) or if the MRO determines that time and temperature account for the pH in the 9.0 to 9.5 range, the MRO reports a test cancelled result with the reason for the invalid result and informs the Federal agency that a recollection is not required because there is a legitimate explanation for the invalid result. (2) If the donor is unable to provide a legitimate explanation or if the MRO determines that time and temperature fail to account for the pH in the 9.0–9.5 range, the MRO reports a test cancelled result with the reason for the invalid result and directs the Federal agency to immediately collect another urine specimen from the donor using a direct observed collection. (i) If the specimen collected under direct observation provides a valid result, the MRO follows the procedures in Section 13.5(a) through (e). (ii) If the specimen collected under direct observation provides an invalid result, the MRO reports this specimen as test cancelled and recommends that the agency collect another authorized specimen type (e.g., oral fluid). If the Federal agency does not authorize collection of another specimen type, the MRO consults with the agency to arrange a clinical evaluation as described in Section 13.7, to determine whether there is a legitimate medical reason for the invalid result. (g) When two separate specimens collected during the same testing event were sent to the HHS-certified laboratory for testing (e.g., the collector sent a urine specimen out of temperature range and the subsequently collected specimen—urine or another authorized specimen type), as the MRO, you must follow the verification procedures described in Sections 13.4, 13.5, and 13.6, and: (1) If both specimens were verified negative, report the result as negative. (2) If one specimen was verified negative and the other was not (i.e., the specimen was verified as negative/ dilute or as positive, adulterated, substituted, and/or invalid), report only the verified result(s) other than negative. For example, if you verified one specimen as negative and the other as a refusal to test because the specimen was substituted, report only the refusal to the Federal agency. (3) If both specimens were verified as positive, adulterated, and/or substituted, report all results. For example, if you verified one specimen as positive and the other as a refusal to PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 70803 test because the specimen was adulterated, report the positive and the refusal results to the Federal agency. (4) If one specimen has been verified and the HHS-certified laboratory has not reported the result(s) of the other specimen, (i) Report verified result(s) of positive, adulterated, or substituted immediately and do not wait to receive the result(s) of the other specimen. (ii) Do not report a verified result of negative, negative/dilute, or invalid for the first specimen to the Federal agency. Hold the report until results of both specimens have been received and verified. (5) When the HHS-certified laboratory reports an invalid result for one or both specimens, follow the procedures in Section 13.5(c). (h) When the HHS-certified laboratory or HHS-certified IITF reports a rejected for testing result for the primary (A) specimen, the MRO reports a test cancelled result to the agency and recommends that the agency collect another specimen from the donor. The recollected specimen must be the same type (i.e., urine). Section 13.6 What action does the MRO take when the collector reports that the donor did not provide a sufficient amount of urine for a drug test? (a) When another specimen type (e.g., oral fluid) was collected in accordance with Section 8.6, the MRO reviews and reports the test result in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing Programs using the alternate specimen. (b) When the Federal agency did not authorize the collection of an alternate specimen, the MRO consults with the Federal agency. The Federal agency immediately directs the donor to obtain, within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the donor’s failure to provide a specimen. The MRO may perform this evaluation if the MRO has appropriate expertise. (1) For purposes of this section, a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction) or a medically documented pre-existing psychological disorder, but does not include unsupported assertions of ‘‘situational anxiety’’ or dehydration. Permanent or long-term medical conditions are those physiological, anatomic, or psychological abnormalities documented as being present prior to the attempted collection, and considered not amenable E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 70804 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations to correction or cure for an extended period of time. Examples would include destruction (any cause) of the glomerular filtration system leading to renal failure; unrepaired traumatic disruption of the urinary tract; or a severe psychiatric disorder focused on genitourinary matters. Acute or temporary medical conditions, such as cystitis, urethritis, or prostatitis, though they might interfere with collection for a limited period of time, cannot receive the same exceptional consideration as the permanent or long-term conditions discussed in the previous sentence. (2) As the MRO, if another physician will perform the evaluation, you must provide the other physician with the following information and instructions: (i) That the donor was required to take a federally regulated drug test, but was unable to provide a sufficient amount of urine to complete the test; (ii) The consequences of the appropriate Federal agency regulation for refusing to take the required drug test; (iii) That, after completing the evaluation, the referral physician must agree to provide a written statement to the MRO with a recommendation for one of the determinations described in Section 13.6(b)(3) and the basis for the recommendation. The statement must not include detailed information on the employee’s medical condition beyond what is necessary to explain the referral physician’s conclusion. (3) As the MRO, if another physician performed the evaluation, you must consider and assess the referral physician’s recommendations in making your determination. You must make one of the following determinations and report it to the Federal agency in writing: (i) A medical condition as defined in Section 13.6(b)(1) has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine, but is not a permanent or long-term disability. As the MRO, you must report a test cancelled result to the Federal agency. (ii) A permanent or long-term medical condition as defined in Section 13.6(b)(1) has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine and is highly likely to prevent the employee from providing a sufficient amount of urine for a very long or indefinite period of time. As the MRO, you must follow the requirements of Section 13.7, as appropriate. If Section 13.7 is not applicable, you report a test cancelled result to the Federal agency and recommend that the agency authorize collection of an VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 alternate specimen type (e.g., oral fluid) for any subsequent drug tests for the donor. (iii) There is not an adequate basis for determining that a medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine. As the MRO, you must report a refusal to test to the Federal agency. (4) When a Federal agency receives a report from the MRO indicating that a test is cancelled as provided in Section 13.6(b)(3)(i), the agency takes no further action with respect to the donor. When a test is canceled as provided in Section 13.6(b)(3)(ii), the agency takes no further action with respect to the donor other than designating collection of an alternate specimen type (i.e., authorized by the Mandatory Guidelines for Federal Workplace Drug Testing Programs) for any subsequent collections, in accordance with the Federal agency plan. The donor remains in the random testing pool. Section 13.7 What happens when an individual is unable to provide a sufficient amount of urine for a Federal agency applicant/pre-employment test, a follow-up test, or a return-to-duty test because of a permanent or long-term medical condition? (a) This section concerns a situation in which the donor has a medical condition that precludes the donor from providing a sufficient specimen for a Federal agency applicant/preemployment test, a follow-up test, or a return-to-duty test and the condition involves a permanent or long-term disability and the Federal agency does not authorize collection of an alternate specimen. As the MRO in this situation, you must do the following: (1) You must determine if there is clinical evidence that the individual is an illicit drug user. You must make this determination by personally conducting, or causing to be conducted, a medical evaluation and through consultation with the donor’s physician and/or the physician who conducted the evaluation under Section 13.6. (2) If you do not personally conduct the medical evaluation, you must ensure that one is conducted by a licensed physician acceptable to you. (b) If the medical evaluation reveals no clinical evidence of illicit drug use, as the MRO, you must report the result to the Federal agency as a negative test with written notations regarding results of both the evaluation conducted under Section 13.6 and any further medical examination. This report must state the basis for the determination that a permanent or long-term medical PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 condition exists, making provision of a sufficient urine specimen impossible, and for the determination that no signs and symptoms of drug use exist. The MRO recommends that the agency authorize collection of an alternate specimen type (e.g., oral fluid) for any subsequent collections. (c) If the medical evaluation reveals clinical evidence of drug use, as the MRO, you must report the result to the Federal agency as a cancelled test with written notations regarding results of both the evaluation conducted under Section 13.6 and any further medical examination. This report must state that a permanent or long-term medical condition [as defined in Section 13.6(b)(1)] exists, making provision of a sufficient urine specimen impossible, and state the reason for the determination that signs and symptoms of drug use exist. Because this is a cancelled test, it does not serve the purposes of a negative test (e.g., the Federal agency is not authorized to allow the donor to begin or resume performing official functions, because a negative test is needed for that purpose). Section 13.8 How does an MRO report a primary (A) specimen test result to an agency? (a) The MRO must report all verified results to an agency using the completed MRO copy of the Federal CCF or a separate report using a letter/ memorandum format. The MRO may use various electronic means for reporting (e.g., fax, computer). Transmissions of the reports must ensure confidentiality. The MRO and external service providers must ensure the confidentiality, integrity, and availability of the data and limit access to any data transmission, storage, and retrieval system. (b) A verified result may not be reported to the agency until the MRO has completed the review process. (c) The MRO must send a copy of either the completed MRO copy of the Federal CCF or the separate letter/ memorandum report for all positive, adulterated, and substituted results. (d) The MRO must not disclose numerical values of drug test results to the agency. (e) The MRO must report drug test results using the HHS-specified nomenclature published with the drug and biomarker testing panels. Section 13.9 Who may request a test of a split (B) specimen? (a) For a positive, adulterated, or substituted result reported on a primary (A) specimen, a donor may request through the MRO that the split (B) E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations specimen be tested by a second HHScertified laboratory to verify the result reported by the first HHS-certified laboratory. (b) The donor has 72 hours (from the time the MRO notified the donor that the donor’s specimen was reported positive, adulterated, or substituted to request a test of the split (B) specimen. The MRO must inform the donor that the donor has the opportunity to request a test of the split (B) specimen when the MRO informs the donor that a positive, adulterated, or substituted result is being reported to the Federal agency on the primary (A) specimen. (v) All results reported to the Federal agency by the MRO for the specimen; and (vi) Date of the MRO report to the Federal agency. (b) An MRO must provide copies of the drug test reports that the MRO has sent to a Federal agency when requested to do so by the Secretary. (c) If an MRO did not verify any positive laboratory results as negative during the reporting period, the MRO should file a report that states that the MRO has no reportable results during the applicable reporting period. Section 13.10 What types of relationships are prohibited between an MRO and an HHS-certified laboratory or an HHS-certified IITF? An MRO must not be an employee, agent of, or have any financial interest in an HHS-certified laboratory or an HHS-certified IITF for which the MRO is reviewing drug test results. This means an MRO must not derive any financial benefit by having an agency use a specific HHS-certified laboratory or HHS-certified IITF, or have any agreement with the HHS-certified laboratory or the HHS-certified IITF that may be construed as a potential conflict of interest. Section 13.12 What are a Federal agency’s responsibilities for designating an MRO? Section 13.11 What reports must an MRO provide to the Secretary for urine testing? (a) An MRO must send to the Secretary or designated HHS representative a semiannual report of Federal agency specimens that were reported as positive for a drug or drug metabolite by a laboratory and verified as negative by the MRO. The report must not include any personally identifiable information for the donor and must be submitted by mail, fax, or other secure electronic transmission method within 14 working days after the end of the semiannual period (i.e., in January and July). The semiannual report must contain the following information: (1) Reporting period (inclusive dates); (2) MRO name, company name, and address; (3) Federal agency name; and (4) For each laboratory-reported positive drug test result that was verified as negative by the MRO: (i) Specimen identification number; (ii) Laboratory name and address; (iii) Positive drug(s) or drug metabolite(s) verified as negative; (iv) MRO reason for verifying the positive drug(s) or drug metabolite(s) as negative (e.g., a donor prescription [the MRO must specify the prescribed drug]); VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 (a) Before allowing an individual to serve as an MRO for the agency, a Federal agency must verify and document the following: (1) that the individual satisfies all requirements in Section 13.1, including certification by an MRO certification organization that has been approved by the Secretary, as described in Section 13.2; and (2) that the individual is not an employee, agent of, or have any financial interest in an HHS-certified laboratory or an HHS-certified IITF that tests the agency’s specimens, as described in Section 13.10. (b) The Federal agency must verify and document that each MRO reviewing and reporting results for the agency: (1) completes training on any revisions to these Guidelines, including any changes to the drug and biomarker testing panels, prior to their effective date; (2) at least every five years, maintains their certification by completing requalification training and passing a requalification examination; and (3) provides biannual reports to the Secretary or designated HHS representative as required in Section 13.11; (c) The Federal agency must ensure that each MRO reports drug test results to the agency in accordance with Sections 13.8 and 14.7. (1) Before allowing an MRO to report results electronically, the agency must obtain documentation from the MRO to confirm that the MRO and any external service providers ensure the confidentiality, integrity, and availability of the data and limit access to any data transmission, storage, and retrieval system. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 70805 Subpart N—Split Specimen Tests Section 14.1 When may a split (B) urine specimen be tested? (a) The donor may request, verbally or in writing, through the MRO that the split (B) urine specimen be tested at a different (i.e., second) HHS-certified laboratory when the primary (A) specimen was determined by the MRO to be positive, adulterated, or substituted. (b) A donor has 72 hours to initiate the request after being informed of the result by the MRO. The MRO must document in the MRO’s records the verbal request from the donor to have the split (B) specimen tested. (c) If a split (B) urine specimen cannot be tested by a second HHS-certified laboratory (e.g., insufficient specimen, lost in transit, split not available, no second HHS-certified laboratory to perform the test), the MRO reports a cancelled test to the Federal agency and the reason for the cancellation. The MRO directs the Federal agency to ensure the immediate recollection of another urine specimen from the donor under direct observation, with no notice given to the donor of this collection requirement until immediately before the collection. (d) If a donor chooses not to have the split (B) specimen tested by a second HHS-certified laboratory, a Federal agency may have a split (B) specimen retested as part of a legal or administrative proceeding to defend an original positive, adulterated, or substituted result. Section 14.2 How does an HHScertified laboratory test a split (B) specimen when the primary (A) specimen was reported positive? (a) The testing of a split (B) specimen for a drug or metabolite is not subject to the testing cutoffs established. (b) The HHS-certified laboratory is only required to confirm the presence of the drug or metabolite that was reported positive in the primary (A) specimen. (c) For a split (B) urine specimen, if the second HHS-certified laboratory fails to reconfirm the presence of the drug or drug metabolite that was reported by the first HHS-certified laboratory, the second laboratory must conduct specimen validity tests in an attempt to determine the reason for being unable to reconfirm the presence of the drug or drug metabolite. The second laboratory should conduct the same specimen validity tests as it would conduct on a primary (A) urine specimen and reports those results to the MRO. E:\FR\FM\12OCR3.SGM 12OCR3 70806 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations Section 14.3 How does an HHScertified laboratory test a split (B) urine specimen when the primary (A) specimen was reported adulterated? (a) An HHS-certified laboratory must use one of the following criteria to reconfirm an adulterated result when testing a split (B) urine specimen: (1) pH must be measured using the laboratory’s confirmatory pH test with the appropriate cutoff (i.e., either less than 4 or equal to or greater than 11); (2) Nitrite must be measured using the laboratory’s confirmatory nitrite test with a cutoff of equal to or greater than 500 mcg/mL; (3) Surfactant must be measured using the laboratory’s confirmatory surfactant test with a cutoff of equal to or greater than 100 mcg/mL dodecylbenzene sulfonate-equivalent cutoff; or (4) For adulterants without a specified cutoff (e.g., glutaraldehyde, chromium (VI), pyridine, halogens (such as, chlorine from bleach, iodine), peroxidase, peroxide, other oxidizing agents), the laboratory must use its confirmatory specimen validity test at an established LOQ to reconfirm the presence of the adulterant. (b) The second HHS-certified laboratory may only conduct the confirmatory specimen validity test(s) needed to reconfirm the adulterated result reported by the first HHS-certified laboratory. ddrumheller on DSK120RN23PROD with RULES3 Section 14.4 How does an HHScertified laboratory test a split (B) urine specimen when the primary (A) specimen was reported substituted? (a) An HHS-certified laboratory must use the following criteria to reconfirm a substituted result when testing a split (B) urine specimen: (1) For substitution based on creatinine and specific gravity testing: The creatinine must be measured using the laboratory’s confirmatory creatinine test with a cutoff of less than 2 mg/dL, and the specific gravity must be measured using the laboratory’s confirmatory specific gravity test with the specified cutoffs of less than or equal to 1.0010 or equal to or greater than 1.0200. (2) For substitution based on biomarker testing: The laboratory must test for the biomarker using its confirmatory test (i.e., using the confirmatory test analytes and cutoffs in the biomarker testing panel). (b) The second HHS-certified laboratory may only conduct the confirmatory specimen validity test(s) needed to reconfirm the substituted result reported by the first HHS-certified laboratory. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Section 14.5 Who receives the split (B) specimen result? The second HHS-certified laboratory must report the result to the MRO using the HHS-specified nomenclature published with the drug and biomarker testing panels. Section 14.6 What action(s) does an MRO take after receiving the split (B) urine specimen result from the second HHS-certified laboratory? The MRO takes the following actions when the second HHS-certified laboratory reports the result for the split (B) urine specimen as: (a) Reconfirmed the drug(s), adulteration, and/or substitution result. The MRO reports reconfirmed to the agency. (b) Failed to reconfirm a single or all drug positive results and the specimen was adulterated. If the donor provides a legitimate medical explanation for the adulteration result, the MRO reports a failed to reconfirm result (specifying the drug[s]) and cancels both tests. If there is no legitimate medical explanation, the MRO reports a failed to reconfirm result (specifying the drug[s]) and a refusal to test to the agency and indicates the adulterant that is present in the specimen. The MRO gives the donor 72 hours to request that Laboratory A retest the primary (A) specimen for the adulterant. If Laboratory A reconfirms the adulterant, the MRO reports refusal to test and indicates the adulterant present. If Laboratory A fails to reconfirm the adulterant, the MRO cancels both tests and directs the agency to immediately collect another specimen using a direct observed collection procedure. The MRO shall notify the appropriate regulatory office about the failed to reconfirm and cancelled test. (c) Failed to reconfirm a single or all drug positive results and the specimen was substituted. If the donor provides a legitimate medical explanation for the substituted result, the MRO reports a failed to reconfirm result (specifying the drug[s]) and cancels both tests. If there is no legitimate medical explanation, the MRO reports a failed to reconfirm result (specifying the drug[s]) and a refusal to test (substituted) to the agency. The MRO gives the donor 72 hours to request additional review or testing as follows: (1) For substitution based on creatinine and specific gravity: request that Laboratory A review the creatinine and specific gravity results for the primary (A) specimen. (2) For substitution based on biomarker testing: request that PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 Laboratory A test the primary (A) specimen using its confirmatory test for the biomarker. (i) If the primary (A) specimen’s test results confirm that the specimen was substituted, the MRO reports a refusal to test (substituted) to the agency. (ii) If the primary (A) specimen’s results fail to confirm that the specimen was substituted, the MRO cancels both tests and directs the agency to immediately collect another specimen using a direct observed collection procedure. The MRO shall notify the HHS office responsible for coordination of the drug-free workplace program about the failed to reconfirm and cancelled test. (d) Failed to reconfirm a single or all drug positive results and the specimen was not adulterated or substituted. The MRO reports to the agency a failed to reconfirm result (specifying the drug[s]), cancels both tests, and notifies the HHS office responsible for coordination of the drug-free workplace program. (e) Failed to reconfirm a single or all drug positive results and the specimen had an invalid result. The MRO reports to the agency a failed to reconfirm result (specifying the drug[s] and the reason for the invalid result), cancels both tests, directs the agency to immediately collect another specimen using a direct observed collection procedure, and notifies the HHS office responsible for coordination of the drug-free workplace program. (f) Failed to reconfirm one or more drugs, reconfirmed one or more drugs, and the specimen was adulterated. The MRO reports to the agency a reconfirmed result (specifying the drug[s]) and a failed to reconfirm result (specifying the drug[s]). The MRO tells the agency that it may take action based on the reconfirmed drug(s) although Laboratory B failed to reconfirm one or more drugs and found that the specimen was adulterated. The MRO shall notify the HHS office responsible for coordination of the drug-free workplace program regarding the test results for the specimen. (g) Failed to reconfirm one or more drugs, reconfirmed one or more drugs, and the specimen was substituted. The MRO reports to the agency a reconfirmed result (specifying the drug[s]) and a failed to reconfirm result (specifying the drug[s]). The MRO tells the agency that it may take action based on the reconfirmed drug(s) although Laboratory B failed to reconfirm one or more drugs and found that the specimen was substituted. The MRO shall notify the HHS office responsible for coordination of the drug-free workplace E:\FR\FM\12OCR3.SGM 12OCR3 ddrumheller on DSK120RN23PROD with RULES3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations program regarding the test results for the specimen. (h) Failed to reconfirm one or more drugs, reconfirmed one or more drugs, and the specimen was not adulterated or substituted. The MRO reports to the agency a reconfirmed result (specifying the drug[s]) and a failed to reconfirm result (specifying the drug[s]). The MRO tells the agency that it may take action based on the reconfirmed drug(s) although Laboratory B failed to reconfirm one or more drugs. The MRO shall notify the HHS office responsible for coordination of the drug-free workplace program regarding the test results for the specimen. (i) Failed to reconfirm one or more drugs, reconfirmed one or more drugs, and the specimen had an invalid result. The MRO reports to the agency a reconfirmed result (specifying the drug[s]) and a failed to reconfirm result (specifying the drug[s]). The MRO tells the agency that it may take action based on the reconfirmed drug(s) although Laboratory B failed to reconfirm one or more drugs and reported an invalid result. The MRO shall notify the HHS office responsible for coordination of the drug-free workplace program regarding the test results for the specimen. (j) Failed to reconfirm substitution or adulteration. The MRO reports to the agency a failed to reconfirm result (not adulterated: specifying the adulterant/ pH or not substituted) and cancels both tests. The MRO shall notify the HHS office responsible for coordination of the drug-free workplace program regarding the test results for the specimen. (k) Failed to reconfirm substitution or adulteration and the specimen had an invalid result. The MRO reports to the agency a failed to reconfirm result (not adulterated: specifying the adulterant/ pH or not substituted, and the reason for the invalid result), cancels both tests, directs the agency to immediately collect another specimen using a direct observed collection procedure and notifies the HHS office responsible for coordination of the drug-free workplace program. (l) Failed to reconfirm a single or all drug positive results and reconfirmed an adulterated or substituted result. The MRO reports to the agency a reconfirmed result (adulterated or substituted) and a failed to reconfirm result (specifying the drug[s]). The MRO tells the agency that it may take action based on the reconfirmed result (adulterated or substituted) although Laboratory B failed to reconfirm the drug(s) result. VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 (m) Failed to reconfirm a single or all drug positive results and failed to reconfirm the adulterated or substituted result. The MRO reports to the agency a failed to reconfirm result (specifying the drug[s] and not adulterated: specifying the adulterant/pH or not substituted) and cancels both tests. The MRO shall notify the HHS office responsible for coordination of the drugfree workplace program regarding the test results for the specimen. (n) Failed to reconfirm at least one drug and reconfirmed the adulterated result. The MRO reports to the agency a reconfirmed result (specifying the drug[s] and adulterated) and a failed to reconfirm result (specifying the drug[s]). The MRO tells the agency that it may take action based on the reconfirmed drug(s) and the adulterated result although Laboratory B failed to reconfirm one or more drugs. (o) Failed to reconfirm at least one drug and failed to reconfirm the adulterated result. The MRO reports to the agency a reconfirmed result (specifying the drug[s]) and a failed to reconfirm result (specifying the drug[s] and not adulterated: specifying the adulterant/pH). The MRO tells the agency that it may take action based on the reconfirmed drug(s) although Laboratory B failed to reconfirm one or more drugs and failed to reconfirm the adulterated result. (p) Failed to reconfirm an adulterated result and failed to reconfirm a substituted result. The MRO reports to the agency a failed to reconfirm result (not adulterated: specifying the adulterant/pH, and not substituted) and cancels both tests. The MRO shall notify the HHS office responsible for coordination of the drug-free workplace program regarding the test results for the specimen. (q) Failed to reconfirm an adulterated result and reconfirmed a substituted result. The MRO reports to the agency a reconfirmed result (substituted) and a failed to reconfirm result (not adulterated: specifying the adulterant/ pH). The MRO tells the agency that it may take action based on the substituted result although Laboratory B failed to reconfirm the adulterated result. (r) Failed to reconfirm a substituted result and reconfirmed an adulterated result. The MRO reports to the agency a reconfirmed result (adulterated) and a failed to reconfirm result (not substituted). The MRO tells the agency that it may take action based on the adulterated result although Laboratory B failed to reconfirm the substituted result. PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 70807 Section 14.7 How does an MRO report a split (B) specimen test result to an agency? (a) The MRO must report all verified results to an agency using the completed MRO copy of the Federal CCF or a separate report using a letter/ memorandum format. The MRO may use various electronic means for reporting (e.g., fax, computer). Transmissions of the reports must ensure confidentiality. The MRO and external service providers must ensure the confidentiality, integrity, and availability of the data and limit access to any data transmission, storage, and retrieval system. (b) A verified result may not be reported to the agency until the MRO has completed the review process. (c) The MRO must send a copy of either the completed MRO copy of the Federal CCF or the separate letter/ memorandum report for all split specimen results. (d) The MRO must not disclose the numerical values of the drug test results to the agency. (e) The MRO must report drug test results using the HHS-specified nomenclature published with the drug and biomarker testing panels. Section 14.8 How long must an HHScertified laboratory retain a split (B) specimen? A split (B) specimen is retained for the same period of time that a primary (A) specimen is retained and under the same storage conditions, in accordance with Section 11.20. This applies even for those cases when the split (B) specimen is tested by a second HHScertified laboratory and the second HHS-certified laboratory does not confirm the original result reported by the first HHS-certified laboratory for the primary (A) specimen. Subpart O—Criteria for Rejecting a Specimen for Testing Section 15.1 What discrepancies require an HHS-certified laboratory or an HHS-certified IITF to report a urine specimen as rejected for testing? The following discrepancies are considered to be fatal flaws. The HHScertified laboratory or IITF must stop the testing process, reject the specimen for testing, and indicate the reason for rejecting the specimen on the Federal CCF when: (a) The specimen ID number on the primary (A) or split (B) specimen label/ seal does not match the ID number on the Federal CCF, or the ID number is missing either on the Federal CCF or on either specimen label/seal; E:\FR\FM\12OCR3.SGM 12OCR3 70808 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations (b) The primary (A) specimen label/ seal is missing, misapplied, broken, or shows evidence of tampering and the split (B) specimen cannot be redesignated as the primary (A) specimen; (c) The collector’s printed name and signature are omitted on the Federal CCF; (d) There is an insufficient amount of specimen for analysis in the primary (A) specimen and the split (B) specimen cannot be re-designated as the primary (A) specimen; (e) The accessioner failed to document the primary (A) specimen seal condition on the Federal CCF at the time of accessioning, and the split (B) specimen cannot be re-designated as the primary (A) specimen; (f) The specimen was received at the HHS-certified laboratory or IITF without a CCF; (g) The CCF was received at the HHScertified laboratory or IITF without a specimen; (h) The collector performed two separate collections using one CCF; or (i) The HHS-certified laboratory or IITF identifies a flaw (other than those specified above) that prevents testing or affects the forensic defensibility of the drug test and cannot be corrected. ddrumheller on DSK120RN23PROD with RULES3 Section 15.2 What discrepancies require an HHS-certified laboratory or an HHS-certified IITF to report a specimen as rejected for testing unless the discrepancy is corrected? The following discrepancies are considered to be correctable: (a) If a collector failed to sign the Federal CCF, the HHS-certified laboratory or IITF must hold the specimen and attempt to obtain a memorandum for record to recover the collector’s signature. If, after holding the specimen for at least 5 business days, the HHS-certified laboratory or IITF cannot recover the collector’s signature, the laboratory or IITF must report a rejected for testing result and indicate the reason for the rejected for testing result on the Federal CCF. (b) If a specimen is submitted using a non-Federal form or an expired Federal CCF, the HHS-certified laboratory or IITF must test the specimen and also attempt to obtain a memorandum for record explaining why a non-Federal form or an expired Federal CCF was used and ensure that the form used contains all the required information. If, after holding the report for at least 5 business days, the HHS-certified laboratory or IITF cannot obtain a memorandum for record from the collector, the laboratory or IITF must report a rejected for testing result and VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 indicate the reason for the rejected for testing result on the report to the MRO. Section 15.3 What discrepancies are not sufficient to require an HHScertified laboratory or an HHS-certified IITF to reject a urine specimen for testing or an MRO to cancel a test? (a) The following omissions and discrepancies on the Federal CCF that are received by the HHS-certified laboratory or IITF should not cause an HHS-certified laboratory or IITF to reject a urine specimen or cause an MRO to cancel a test: (1) An incorrect laboratory name and address appearing at the top of the form; (2) Incomplete/incorrect/unreadable employer name or address; (3) MRO name is missing; (4) Incomplete/incorrect MRO address; (5) A transposition of numbers in the donor’s Social Security Number or employee identification number; (6) A telephone number is missing/ incorrect; (7) A fax number is missing/incorrect; (8) A ‘‘reason for test’’ box is not marked; (9) A ‘‘drug tests to be performed’’ box is not marked; (10) A ‘‘collection’’ box is not marked; (11) The ‘‘observed’’ box is not marked (if applicable); (12) The collection site address is missing; (13) The collector’s printed name is missing but the collector’s signature is properly recorded; (14) The time of collection is not indicated; (15) The date of collection is not indicated; (16) Incorrect name of delivery service; (17) The collector has changed or corrected information by crossing out the original information on either the Federal CCF or specimen label/seal without dating and initialing the change; or (18) The donor’s name inadvertently appears on the HHS-certified laboratory or IITF copy of the Federal CCF or on the tamper-evident labels used to seal the specimens. (19) The collector failed to check the specimen temperature box and the ‘‘Remarks’’ line did not have a comment regarding the temperature being out of range. If, after at least 5 business days, the collector cannot provide a memorandum for record to attest to the fact that the collector did measure the specimen temperature, the HHScertified laboratory or IITF may report the test result for the specimen but indicates that the collector could not PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 provide a memorandum to recover the omission. (b) The following omissions and discrepancies on the Federal CCF that are made at the HHS-certified laboratory or IITF should not cause an MRO to cancel a test: (1) The testing laboratory or IITF fails to indicate the correct name and address in the results section when a different laboratory or IITF name and address is printed at the top of the Federal CCF; (2) The accessioner fails to print their name; (3) The certifying scientist or certifying technician fails to print their name; (4) The certifying scientist or certifying technician accidentally initials the Federal CCF rather than signing for a specimen reported as rejected for testing; (c) The above omissions and discrepancies should occur no more than once a month. The expectation is that each trained collector and HHScertified laboratory or IITF will make every effort to ensure that the Federal CCF is properly completed and that all the information is correct. When an error occurs more than once a month, the MRO must direct the collector, HHScertified laboratory, or HHS-certified IITF (whichever is responsible for the error) to immediately take corrective action to prevent the recurrence of the error. Section 15.4 What discrepancies may require an MRO to cancel a test? (a) An MRO must attempt to correct the following errors: (1) The donor’s signature is missing on the MRO copy of the Federal CCF and the collector failed to provide a comment that the donor refused to sign the form; (2) The certifying scientist failed to sign the Federal CCF for a specimen being reported drug positive, adulterated, invalid, or substituted; or (3) The electronic report provided by the HHS-certified laboratory or HHScertified IITF does not contain all the data elements required for the HHS standard laboratory or IITF electronic report for a specimen being reported drug positive, adulterated, invalid result, or substituted. (b) If the error in Section 15.4(a)(1) occurs, the MRO must contact the collector to obtain a statement to verify that the donor refused to sign the MRO copy. If, after at least 5 business days, the collector cannot provide such a statement, the MRO must cancel the test. (c) If the error in Section 15.4(a)(2) occurs, the MRO must obtain a E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations statement from the certifying scientist that they forgot to sign the Federal CCF, but did, in fact, properly conduct the certification review. If, after at least 5 business days, the MRO cannot get a statement from the certifying scientist, the MRO must cancel the test. (d) If the error in Section 15.4(a)(3) occurs, the MRO must contact the HHScertified laboratory or HHS-certified IITF. If, after at least 5 business days, the laboratory or IITF does not retransmit a corrected electronic report, the MRO must cancel the test. Subpart P—Laboratory or IITF Suspension/Revocation Procedures Section 16.1 When may the HHS certification of a laboratory or IITF be suspended? These procedures apply when: (a) The Secretary has notified an HHScertified laboratory or IITF in writing that its certification to perform drug testing under these Guidelines has been suspended or that the Secretary proposes to revoke such certification. (b) The HHS-certified laboratory or IITF has, within 30 days of the date of such notification or within 3 days of the date of such notification when seeking an expedited review of a suspension, requested in writing an opportunity for an informal review of the suspension or proposed revocation. ddrumheller on DSK120RN23PROD with RULES3 Section 16.2 What definitions are used for this subpart? Appellant. Means the HHS-certified laboratory or IITF which has been notified of its suspension or proposed revocation of its certification to perform testing and has requested an informal review thereof. Respondent. Means the person or persons designated by the Secretary in implementing these Guidelines. Reviewing Official. Means the person or persons designated by the Secretary who will review the suspension or proposed revocation. The reviewing official may be assisted by one or more of the official’s employees or consultants in assessing and weighing the scientific and technical evidence and other information submitted by the appellant and respondent on the reasons for the suspension and proposed revocation. Section 16.3 Are there any limitations on issues subject to review? The scope of review shall be limited to the facts relevant to any suspension or proposed revocation, the necessary interpretations of those facts, the relevant Mandatory Guidelines for Federal Workplace Drug Testing VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 Programs, and other relevant law. The legal validity of these Guidelines shall not be subject to review under these procedures. Section 16.4 parties? Who represents the The appellant’s request for review shall specify the name, address, and telephone number of the appellant’s representative. In its first written submission to the reviewing official, the respondent shall specify the name, address, and telephone number of the respondent’s representative. Section 16.5 When must a request for informal review be submitted? (a) Within 30 days of the date of the notice of the suspension or proposed revocation, the appellant must submit a written request to the reviewing official seeking review, unless some other time period is agreed to by the parties. A copy must also be sent to the respondent. The request for review must include a copy of the notice of suspension or proposed revocation, a brief statement of why the decision to suspend or propose revocation is wrong, and the appellant’s request for an oral presentation, if desired. (b) Within 5 days after receiving the request for review, the reviewing official will send an acknowledgment and advise the appellant of the next steps. The reviewing official will also send a copy of the acknowledgment to the respondent. Section 16.6 agreement? What is an abeyance Upon mutual agreement of the parties to hold these procedures in abeyance, the reviewing official will stay these procedures for a reasonable time while the laboratory or IITF attempts to regain compliance with the Guidelines or the parties otherwise attempt to settle the dispute. As part of an abeyance agreement, the parties can agree to extend the time period for requesting review of the suspension or proposed revocation. If abeyance begins after a request for review has been filed, the appellant shall notify the reviewing official at the end of the abeyance period, advising whether the dispute has been resolved. If the dispute has been resolved, the request for review will be dismissed. If the dispute has not been resolved, the review procedures will begin at the point at which they were interrupted by the abeyance agreement with such modifications to the procedures as the reviewing official deems appropriate. PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 70809 Section 16.7 What procedures are used to prepare the review file and written argument? The appellant and the respondent each participate in developing the file for the reviewing official and in submitting written arguments. The procedures for development of the review file and submission of written argument are: (a) Appellant’s Documents and Brief. Within 15 days after receiving the acknowledgment of the request for review, the appellant shall submit to the reviewing official the following (with a copy to the respondent): (1) A review file containing the documents supporting appellant’s argument, tabbed and organized chronologically, and accompanied by an index identifying each document. Only essential documents should be submitted to the reviewing official. (2) A written statement, not to exceed 20 double-spaced pages, explaining why respondent’s decision to suspend or propose revocation of appellant’s certification is wrong (appellant’s brief). (b) Respondent’s Documents and Brief. Within 15 days after receiving a copy of the acknowledgment of the request for review, the respondent shall submit to the reviewing official the following (with a copy to the appellant): (1) A review file containing documents supporting respondent’s decision to suspend or revoke appellant’s certification to perform drug testing, which is tabbed and organized chronologically, and accompanied by an index identifying each document. Only essential documents should be submitted to the reviewing official. (2) A written statement, not exceeding 20 double-spaced pages in length, explaining the basis for suspension or proposed revocation (respondent’s brief). (c) Reply Briefs. Within 5 days after receiving the opposing party’s submission, or 20 days after receiving acknowledgment of the request for review, whichever is later, each party may submit a short reply not to exceed 10 double-spaced pages. (d) Cooperative Efforts. Whenever feasible, the parties should attempt to develop a joint review file. (e) Excessive Documentation. The reviewing official may take any appropriate step to reduce excessive documentation, including the return of or refusal to consider documentation found to be irrelevant, redundant, or unnecessary. E:\FR\FM\12OCR3.SGM 12OCR3 70810 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES3 Section 16.8 When is there an opportunity for oral presentation? (a) Electing Oral Presentation. If an opportunity for an oral presentation is desired, the appellant shall request it at the time it submits its written request for review to the reviewing official. The reviewing official will grant the request if the official determines that the decision-making process will be substantially aided by oral presentations and arguments. The reviewing official may also provide for an oral presentation at the official’s own initiative or at the request of the respondent. (b) Presiding Official. The reviewing official or designee will be the presiding official responsible for conducting the oral presentation. (c) Preliminary Conference. The presiding official may hold a prehearing conference (usually a telephone conference call) to consider any of the following: simplifying and clarifying issues, stipulations and admissions, limitations on evidence and witnesses that will be presented at the hearing, time allotted for each witness and the hearing altogether, scheduling the hearing, and any other matter that will assist in the review process. Normally, this conference will be conducted informally and off the record; however, the presiding official may, at their discretion, produce a written document summarizing the conference or transcribe the conference, either of which will be made a part of the record. (d) Time and Place of the Oral Presentation. The presiding official will attempt to schedule the oral presentation within 30 days of the date the appellant’s request for review is received or within 10 days of submission of the last reply brief, whichever is later. The oral presentation will be held at a time and place determined by the presiding official following consultation with the parties. (e) Conduct of the Oral Presentation. (1) General. The presiding official is responsible for conducting the oral presentation. The presiding official may be assisted by one or more of the official’s employees or consultants in conducting the oral presentation and reviewing the evidence. While the oral presentation will be kept as informal as possible, the presiding official may take all necessary steps to ensure an orderly proceeding. (2) Burden of Proof/Standard of Proof. In all cases, the respondent bears the burden of proving by a preponderance of the evidence that its decision to suspend or propose revocation is appropriate. The appellant, however, VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 has a responsibility to respond to the respondent’s allegations with evidence and argument to show that the respondent is wrong. (3) Admission of Evidence. The Federal Rules of Evidence do not apply and the presiding official will generally admit all testimonial evidence unless it is clearly irrelevant, immaterial, or unduly repetitious. Each party may make an opening and closing statement, may present witnesses as agreed upon in the prehearing conference or otherwise, and may question the opposing party’s witnesses. Since the parties have ample opportunity to prepare the review file, a party may introduce additional documentation during the oral presentation only with the permission of the presiding official. The presiding official may question witnesses directly and take such other steps necessary to ensure an effective and efficient consideration of the evidence, including setting time limitations on direct and crossexaminations. (4) Motions. The presiding official may rule on motions including, for example, motions to exclude or strike redundant or immaterial evidence, motions to dismiss the case for insufficient evidence, or motions for summary judgment. Except for those made during the hearing, all motions and opposition to motions, including argument, must be in writing and be no more than 10 double-spaced pages in length. The presiding official will set a reasonable time for the party opposing the motion to reply. (5) Transcripts. The presiding official shall have the oral presentation transcribed and the transcript shall be made a part of the record. Either party may request a copy of the transcript and the requesting party shall be responsible for paying for its copy of the transcript. (f) Obstruction of Justice or Making of False Statements. Obstruction of justice or the making of false statements by a witness or any other person may be the basis for a criminal prosecution under 18 U.S.C. 1505 or 1001. (g) Post-hearing Procedures. At their discretion, the presiding official may require or permit the parties to submit post-hearing briefs or proposed findings and conclusions. Each party may submit comments on any major prejudicial errors in the transcript. Section 16.9 Are there expedited procedures for review of immediate suspension? (a) Applicability. When the Secretary notifies an HHS-certified laboratory or IITF in writing that its certification to perform drug testing has been PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 immediately suspended, the appellant may request an expedited review of the suspension and any proposed revocation. The appellant must submit this request in writing to the reviewing official within 3 days of the date the HHS-certified laboratory or IITF received notice of the suspension. The request for review must include a copy of the suspension and any proposed revocation, a brief statement of why the decision to suspend and propose revocation is wrong, and the appellant’s request for an oral presentation, if desired. A copy of the request for review must also be sent to the respondent. (b) Reviewing Official’s Response. As soon as practicable after the request for review is received, the reviewing official will send an acknowledgment with a copy to the respondent. (c) Review File and Briefs. Within 7 days of the date the request for review is received, but no later than 2 days before an oral presentation, each party shall submit to the reviewing official the following: (1) A review file containing essential documents relevant to the review, which is tabbed, indexed, and organized chronologically; and (2) A written statement, not to exceed 20 double-spaced pages, explaining the party’s position concerning the suspension and any proposed revocation. No reply brief is permitted. (d) Oral Presentation. If an oral presentation is requested by the appellant or otherwise granted by the reviewing official, the presiding official will attempt to schedule the oral presentation within 7–10 days of the date of appellant’s request for review at a time and place determined by the presiding official following consultation with the parties. The presiding official may hold a prehearing conference in accordance with Section 16.8(c) and will conduct the oral presentation in accordance with the procedures of Section 16.8(e), (f), and (g). (e) Written Decision. The reviewing official shall issue a written decision upholding or denying the suspension or proposed revocation and will attempt to issue the decision within 7–10 days of the date of the oral presentation or within 3 days of the date on which the transcript is received or the date of the last submission by either party, whichever is later. All other provisions set forth in Section 16.14 will apply. (f) Transmission of Written Communications. Because of the importance of timeliness for these expedited procedures, all written communications between the parties and between either party and the reviewing official shall be by fax, E:\FR\FM\12OCR3.SGM 12OCR3 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations secured electronic transmissions, or overnight mail. Section 16.10 Are any types of communications prohibited? Except for routine administrative and procedural matters, a party shall not communicate with the reviewing or presiding official without notice to the other party. Section 16.11 How are communications transmitted by the reviewing official? (a) Because of the importance of a timely review, the reviewing official should normally transmit written communications to either party by fax, secured electronic transmissions, or overnight mail in which case the date of transmission or day following mailing will be considered the date of receipt. In the case of communications sent by regular mail, the date of receipt will be considered 3 days after the date of mailing. (b) In counting days, include Saturdays, Sundays, and Federal holidays. However, if a due date falls on a Saturday, Sunday, or Federal holiday, then the due date is the next Federal working day. ddrumheller on DSK120RN23PROD with RULES3 Section 16.12 What are the authority and responsibilities of the reviewing official? In addition to any other authority specified in these procedures, the reviewing official and the presiding official, with respect to those authorities involving the oral presentation, shall have the authority to issue orders; examine witnesses; take all steps VerDate Sep<11>2014 18:47 Oct 11, 2023 Jkt 262001 necessary for the conduct of an orderly hearing; rule on requests and motions; grant extensions of time for good reasons; dismiss for failure to meet deadlines or other requirements; order the parties to submit relevant information or witnesses; remand a case for further action by the respondent; waive or modify these procedures in a specific case, usually with notice to the parties; reconsider a decision of the reviewing official where a party promptly alleges a clear error of fact or law; and to take any other action necessary to resolve disputes in accordance with the objectives of these procedures. Section 16.13 What administrative records are maintained? The administrative record of review consists of the review file; other submissions by the parties; transcripts or other records of any meetings, conference calls, or oral presentation; evidence submitted at the oral presentation; and orders and other documents issued by the reviewing and presiding officials. Section 16.14 What are the requirements for a written decision? (a) Issuance of Decision. The reviewing official shall issue a written decision upholding or denying the suspension or proposed revocation. The decision will set forth the reasons for the decision and describe the basis therefore in the record. Furthermore, the reviewing official may remand the matter to the respondent for such PO 00000 Frm 00045 Fmt 4701 Sfmt 9990 70811 further action as the reviewing official deems appropriate. (b) Date of Decision. The reviewing official will attempt to issue their decision within 15 days of the date of the oral presentation, the date on which the transcript is received, or the date of the last submission by either party, whichever is later. If there is no oral presentation, the decision will normally be issued within 15 days of the date of receipt of the last reply brief. Once issued, the reviewing official will immediately communicate the decision to each party. (c) Public Notice. If the suspension and proposed revocation are upheld, the revocation will become effective immediately and the public will be notified by publication of a notice in the Federal Register. If the suspension and proposed revocation are denied, the revocation will not take effect and the suspension will be lifted immediately. Public notice will be given by publication in the Federal Register. Section 16.15 Is there a review of the final administrative action? Before any legal action is filed in court challenging the suspension or proposed revocation, respondent shall exhaust administrative remedies provided under this subpart, unless otherwise provided by Federal Law. The reviewing official’s decision, under Section 16.9(e) or 16.14(a) constitutes final agency action and is ripe for judicial review as of the date of the decision. [FR Doc. 2023–21734 Filed 10–11–23; 8:45 am] BILLING CODE 4162–20–P E:\FR\FM\12OCR3.SGM 12OCR3

Agencies

DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 88, Number 196 (Thursday, October 12, 2023)]
[Rules and Regulations]
[Pages 70768-70811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21734]



[[Page 70767]]

Vol. 88

Thursday,

No. 196

October 12, 2023

Part IV





 Department of Health and Human Services





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42 CFR Chapter I





Mandatory Guidelines for Federal Workplace Drug Testing Programs; Final 
Rule

Federal Register / Vol. 88 , No. 196 / Thursday, October 12, 2023 / 
Rules and Regulations

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

42 CFR Chapter I


Mandatory Guidelines for Federal Workplace Drug Testing Programs

AGENCY: Substance Abuse and Mental Health Services Administration 
(SAMHSA), Department of Health and Human Services (HHS).

ACTION: Issuance of mandatory guidelines.

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SUMMARY: The Department of Health and Human Services (``HHS'' or 
``Department'') has revised the Mandatory Guidelines for Federal 
Workplace Drug Testing Programs using Urine (UrMG), which published in 
the Federal Register of January 23, 2017.

DATES: The mandatory guidelines are effective February 1, 2024.

FOR FURTHER INFORMATION CONTACT: Eugene D. Hayes, Ph.D., MBA, SAMHSA, 
CSAP, DWP; 5600 Fishers Lane, Room 16N02, Rockville, MD 20857, by 
telephone (240) 276-1459 or by email at [email protected].

SUPPLEMENTARY INFORMATION: 

Executive Summary

    These revised Mandatory Guidelines for Federal Workplace Drug 
Testing Programs using Urine (UrMG) establish a process whereby the 
Department annually publishes the authorized drug testing panel (i.e., 
drugs, analytes, or cutoffs) to be used for Federal workplace drug 
testing programs; revise the definition of a substituted specimen to 
include specimens with a biomarker concentration inconsistent with that 
established for a human specimen, establish a process whereby the 
Department publishes an authorized biomarker testing panel (i.e., 
biomarker analytes and cutoffs) for Federal workplace drug testing 
programs; update and clarify the oral fluid collection procedures; 
revise the confirmatory test cutoff for morphine; revise the Medical 
Review Officer (MRO) verification process for positive codeine and 
morphine specimens; and require MROs to submit semiannual reports to 
the Secretary or designated HHS representative on Federal agency 
specimens that were reported as positive for a drug or drug metabolite 
by a laboratory and verified as negative by the MRO. In addition, some 
wording changes have been made for clarity and for consistency with the 
Mandatory Guidelines for Federal Workplace Drug Testing Programs using 
Oral Fluid (OFMG) or to apply to any authorized specimen type.
    The Department is publishing a separate Federal Register 
Notification (FRN) elsewhere in this issue of the Federal Register with 
the revised OFMG, which include the same or similar revisions as the 
UrMG, where appropriate.

Background

    Pursuant to its authority under section 503 of Public Law 100-71, 5 
U.S.C. 7301, and Executive Order 12564, HHS establishes the scientific 
and technical guidelines for Federal workplace drug testing programs 
and establishes standards for certification of laboratories engaged in 
drug testing for Federal agencies.
    Using data obtained from the Federal Workplace Drug Testing 
Programs and HHS-certified laboratories, the Department estimates that 
275,000 urine specimens are tested annually by Federal agencies. No 
Federal agencies are testing hair or oral fluid specimens at this time.
    HHS originally published the Mandatory Guidelines for Federal 
Workplace Drug Testing Programs (hereinafter referred to as Guidelines 
or Mandatory Guidelines) in the Federal Register (FR) on April 11, 1988 
(53 FR 11979). The Substance Abuse and Mental Health Services 
Administration (SAMHSA) subsequently revised the Guidelines on June 9, 
1994 (59 FR 29908), September 30, 1997 (62 FR 51118), November 13, 1998 
(63 FR 63483), April 13, 2004 (69 FR 19644), and November 25, 2008 (73 
FR 71858). SAMHSA published the current Mandatory Guidelines for 
Federal Workplace Drug Testing Programs using Urine (UrMG) on January 
23, 2017 (82 FR 7920), and published the current Mandatory Guidelines 
for Federal Workplace Drug Testing Programs using Oral Fluid (OFMG) on 
October 25, 2019 (84 FR 57554). SAMHSA published proposed Mandatory 
Guidelines for Federal Workplace Drug Testing Programs using Hair (HMG) 
on September 10, 2020 (85 FR 56108), and proposed revisions to the UrMG 
(87 FR 20560) and OFMG (87 FR 20522) on April 7, 2022.
    There was a 60-day public comment period following publication of 
the proposed UrMG, during which 22 commenters submitted 93 comments on 
the UrMG. These commenters were comprised of individuals, 
organizations, and private sector companies. The comments are available 
for public view at https://www.regulations.gov/. All comments were 
reviewed and taken into consideration in the preparation of the 
Guidelines. The issues and concerns raised in the public comments for 
the UrMG are set forth below. Similar comments are considered together 
in the discussion.

Summary of Public Comments and HHS's Response

    The following comments were directed to the information and 
questions in the preamble.

Authorized Drug Testing Panel

    The Department requested comments on its proposal to publish the 
drug testing panel separately from the UrMG in a Federal Register 
Notification (FRN) each year. Sixteen commenters submitted a total of 
35 comments on this topic for the UrMG.
    Eight commenters disagreed with publishing a revised drug testing 
panel without a public comment period, expressing concerns that 
stakeholders including individuals subject to federally regulated drug 
testing would not be given the opportunity to provide comment and that 
the Department would miss valuable input including information on costs 
and burden. Some of these commenters suggested alternate ways to permit 
public comment while enabling a quicker response to testing panel 
changes (e.g., setting a shorter comment period, publishing the 
Guidelines as an interim final rule or issuing an advance notice of 
proposed rulemaking). The Department has reviewed these comments and 
suggestions and determined that no changes to the proposed Guidelines 
are needed. The Department has developed procedures which will allow 
review and comment before testing panel changes are published, as 
described below.
    Consistent with current procedures, prior to making a change to the 
drug or biomarker testing panel, the Department will conduct a thorough 
review of the scientific and medical literature, and will solicit 
review and input from subject matter experts such as Responsible 
Persons (RPs) of HHS-certified laboratories, Medical Review Officers 
(MROs), research scientists, manufacturers of collection devices and/or 
immunoassay kits, as well as Federal partners such as the Department of 
Transportation (DOT), the Food and Drug Administration (FDA), and the 
Drug Enforcement Administration (DEA). Further, the Department plans to 
provide notice and opportunity for public comment regarding any 
proposed changes to the drug and biomarker testing panels as part of 
Drug Testing Advisory Board (DTAB) meetings and procedures.

[[Page 70769]]

    Information regarding any proposed changes to the drug analyte and 
biomarker testing panels and a request for public comment will be 
included in an advance notice of the DTAB meeting published in the 
Federal Register, along with the timeframe and method(s) for comment 
submission. During the meeting, the Department will present the basis 
for adding or removing analytes (i.e., including technical and 
scientific support for the proposed changes), as well as a discussion 
of related costs and benefits. This information will be provided in 
advance to DTAB members. The Department will review all submitted 
public comments and will share information during a DTAB session prior 
to DTAB's review of SAMHSA's recommendation to the Secretary regarding 
each proposed change.
    The Department will make the final decision on any panel changes 
and include the effective date(s) in the annual Notification, to allow 
time for drug testing service providers (e.g., immunoassay kit 
manufacturers, oral fluid collection device manufacturers) to develop 
or revise their products, and for HHS-certified laboratories to develop 
or revise assays, complete validation studies, and revise procedures.
    Four commenters disagreed that HHS is exempt from the 
Administrative Procedure Act (APA) requirements. Two of these 
specifically stated that the Guidelines are subject to APA requirements 
because DOT is required to use the Guidelines for their transportation 
industry drug testing programs. The Department explained why the APA 
does not apply under the Regulatory Impact and Notices section of the 
current UrMG (82 FR 7920) and has repeated the same information in that 
section below.
    Ten commenters were concerned that the Department will not allow 
sufficient time for stakeholders to implement changes (e.g., time for 
Food and Drug Administration [FDA] clearance for new or revised 
products, information technology [IT] changes, process development and/
or changes, contractual changes, and training). Some of these 
commenters suggested that the Department set a standard time period 
(e.g., 90 days) for implementation of changes or based on the 
complexity of the change (e.g., between 90 and 365 days). The 
Department will establish a reasonable time for implementation based on 
the change, rather than setting a standard time period for all changes. 
As noted above, the Department will solicit information from 
stakeholders to assist in decision making.
    In regard to the use of FDA-cleared immunoassay initial tests, two 
commenters suggested that federally regulated drug testing could fall 
under what they referred to as the FDA's Employment and Insurance 
exemption. The Department notes that, while some drugs of abuse test 
systems intended for employment and insurance testing are, under 
certain circumstances, exempt from the premarket notification 
procedures in 21 CFR part 807, subpart E, such exemptions do not apply 
to test systems intended for Federal drug testing programs. See 21 CFR 
part 862, subpart D. Applicant and HHS-certified test facilities must 
verify that test systems subject to FDA regulations are approved or 
otherwise cleared by FDA and, in addition, must validate test systems 
prior to use in accordance with requirements specified in the National 
Laboratory Certification Program (NLCP) Manuals for Urine Laboratories 
and Initial Instrumented Test Facilities (IITFs).
    One commenter appeared to misinterpret the Department's testing 
panel proposal, objecting to the Department making changes to the 
testing panels each year. The Department plans to issue an annual 
Notification with the current testing panels and required nomenclature, 
but will make changes only when needed to ensure the continued 
effectiveness of Federal workplace drug testing programs, which may not 
be every year.
    Four commenters specifically agreed with the need to streamline and 
improve processes for making changes to the testing panels. Three of 
these commenters expressed concern over the process for testing panel 
review and who would be involved, and suggested involving other 
stakeholders (e.g., HHS-certified laboratories, DTAB, FDA). As noted 
above, the Department will use multiple methods and involve subject 
matter experts from various stakeholder groups to determine testing 
panel changes, and will provide opportunity for public review and 
comment before changes are made. FDA, DOT, and other Federal partners 
will also have opportunities to review and provide input.
    The other commenter suggested that the Department include 
additional prescriptive language in each annual Notification (e.g., 
street names, detection times, pharmacological information on added 
drugs for MROs; Custody and Control Form (CCF) instructions for 
collectors). The Department has determined that no changes to the 
proposed Guidelines are needed. Relevant information and guidance will 
be included in the MRO Guidance Manual, Case Studies, Guidance for 
Using the Federal Custody and Control Form (CCF), and Specimen 
Collection Handbook. These documents are posted on SAMHSA's website, 
https://www.samhsa.gov/workplace.
    One commenter stated that testing panel changes would lead to an 
increase in incorrect information on the Federal CCF. The Department 
disagrees, noting that the Federal CCF does not include preprinted 
analyte names.
    One of the commenters agreed with posting a Notification without a 
public comment period for added drugs, but disagreed with removing 
drugs from the testing panel without public comment. The commenter 
noted that entities (e.g., DOT, some states) are required by law to use 
the Guidelines testing panel should be able to continue testing those 
drugs, even if Federal agencies will not. The Department has determined 
that no changes to the proposed Guidelines are needed to address these 
concerns.
    See additional comments under Section 3.4 below.

Authorized Biomarker Testing Panel

    The Department requested comments on its proposal to publish the 
biomarker testing panel separately from the UrMG in the Federal 
Register each year. Five commenters submitted a total of 12 comments on 
this topic for the UrMG.
    Two commenters disagreed with publishing a biomarker testing panel 
without a public comment period, expressing concerns that stakeholders 
would not be given the opportunity to provide comment and that the 
Department would miss valuable input including information on costs and 
burden.
    Two other commenters specifically agreed with the need to 
streamline and improve processes for making changes to the testing 
panels, but suggested involving other stakeholders (e.g., HHS-certified 
laboratories, DTAB). The Department has reviewed these comments and 
determined that no changes to the proposed Guidelines are needed. The 
Department has developed procedures which will allow review and comment 
before testing panel changes are published, as described under 
Authorized drug testing panel above.
    One commenter disagreed that HHS is exempt from the APA 
requirements. The Department has reviewed the comment and determined 
that no change is needed to the proposed Guidelines. The Department 
explained why the APA does not apply under the Regulatory Impact and 
Notices section of the current UrMG (82 FR 7920) and has repeated the 
same information in that section below.

[[Page 70770]]

    Two commenters were concerned that the Department will not allow 
sufficient time for stakeholders to implement changes (e.g., time for 
information technology [IT] changes, process development and/or 
changes, training). The commenters suggested that the Department set a 
standard time for implementation of all changes (e.g., 90 days, six 
months). As noted under Authorized drug testing panel above, the 
Department will establish a reasonable time for implementation based on 
the change, rather than setting a standard time period for all changes, 
and will solicit information from multiple sources to assist in 
decision making.
    Two commenters suggested that the Department require all HHS-
certified laboratories to perform standardized specimen validity and 
biomarker tests on all federally regulated specimens, and allow 
laboratories to choose whether to offer additional specialized tests 
upon MRO request on a case-by-case basis. This is consistent with 
current UrMG requirements for specimen validity testing. The Department 
is not requiring all certified laboratories to conduct biomarker 
testing at this time. However, if the drug testing industry identifies 
a need for such tests and an HHS-certified laboratory chooses to offer 
a biomarker test to their regulated clients, the Department will ensure 
that the tests provide scientifically valid and forensically defensible 
results and will revisit the need for requiring the test on all 
specimens.

Medical Review Officer (MRO) Verification of Codeine and Morphine Test 
Results

    The Department removed the additional decision point for codeine 
and morphine, adjusted the confirmatory test cutoff for morphine from 
2,000 to 4,000 ng/mL, and removed the additional requirement for 
clinical evidence of illegal opioid use. The Department received one 
comment agreeing with these changes to the UrMG.

Medical Review Officer (MRO) Semiannual Reports

    In Section 13.11, the Department added requirements for each MRO 
performing medical review services for Federal agencies to submit 
semiannual reports, in January and July of each year, of Federal agency 
specimens that were reported as positive for a drug or drug metabolite 
by the laboratory and verified as negative by the MRO, along with the 
reason for the negative verification (e.g., a valid prescription for a 
drug). Six commenters submitted six comments on this topic for the 
UrMG.
    Four commenters disagreed, stating that HHS had not clearly 
described the reason and the process for such reports. One commenter 
noted that the Department had not presented data documenting that MROs 
were incorrectly reporting specimens, and it was unclear how the 
reports could be matched to laboratory report information submitted to 
the National Laboratory Certification Program (NLCP). Another commenter 
was concerned that donors would be identifiable, and that ``a database 
of legal drug use'' would violate donor privacy. One of the commenters 
expressed concern over ``unintended consequences'' for DOT and state 
workplace drug testing programs, without further explanation.
    One commenter disagreed on the basis of added costs and burden to 
MROs (e.g., system revisions, increased staff workload).
    One commenter agreed that such reports could be beneficial, but 
suggested that MROs provide the same information as provided by 
laboratories to the NLCP. The commenter incorrectly stated that 
laboratories do not provide specimen identification numbers to the 
NLCP.
    The Department has reviewed the comments and determined that no 
change is needed to the proposed Guidelines. To clarify, this reporting 
policy is only for Federal agency specimens, not DOT-regulated 
specimens. Further, the reports are not for all positive specimens, 
only for those specimens that were reported as positive by the 
laboratory and verified as negative by the MRO. The requested MRO 
information is sufficient to enable matching to HHS-certified 
laboratory information provided to the NLCP without identifying the 
donor. At this time, there is no system-wide mechanism for identifying 
MRO verification practices for Federal agency specimens that are 
inconsistent with the Mandatory Guidelines, so data on incorrect 
reporting is not available. The Department is not planning to share 
MRO-specific information, but may share statistical information and 
deidentified examples of incorrect reporting by various means (e.g., 
DTAB meeting presentations, revisions to the MRO Guidance Manual and/or 
Case Studies). The Department will also provide this information to 
HHS-approved MRO certification organizations to share with their 
certified MROs and to update training materials and examinations as 
needed.

Marijuana Testing

    The Department did not propose any changes to the UrMG in regard to 
marijuana testing, but received three comments from three commenters 
disagreeing with the current requirements. Two commenters supported 
medical use of marijuana. One commenter supported legalization of 
marijuana in general.
    Current Federal law requires Federal agencies to test for marijuana 
under E.O. 12564 in their workplace drug testing programs. The 
Department also edited Section 13.5(c) to clarify that only 
prescription medications can be offered as a legitimate medical 
explanation for a positive drug test (as described under Section 13.5 
below). No further edits are required at this time.

Discussion of Sections

    The Department has not included a discussion in the preamble of any 
sections for which public comments were not submitted or for minor 
wording changes (e.g., edits for clarity, typographical or grammatical 
corrections).

Subpart A--Applicability

Section 1.5 What do the terms used in these Guidelines mean?

    Two commenters agreed and one disagreed with the Department's 
proposed revision to the Substituted Specimen definition in Section 1.5 
to include specimens tested for a biomarker. The commenter who 
disagreed stated that there are situations in which a legitimate 
specimen may be reported as outside the standards for human specimens, 
and these should be reported as invalid. The Department has reviewed 
the comment and determined that no change is needed to the proposed 
Guidelines. The Department will follow the procedures summarized under 
Authorized drug testing panel above to enable public comment and 
review, and will ensure that a biomarker test is scientifically 
supported and forensically sound to identify specimens as substituted 
before allowing its use with federally regulated drug testing. 
Specimens that do not meet established criteria for the biomarker test 
will not be reported as substituted.

Section 1.7 What is a refusal to take a federally regulated drug test?

    In Section 1.7(a), the Department proposed to remove two exceptions 
for reporting a refusal to test for a pre-employment test: a donor who 
fails to appear in a reasonable time and a donor who leaves the 
collection site before the collection process begins. Seven

[[Page 70771]]

commenters submitted seven comments on this proposal.
    Five commenters disagreed with the changes, noting that an 
applicant may fail to appear because they have taken a different job 
offer. The commenters noted that a refusal to test in the individual's 
record could prevent individuals from taking other job offers and/or 
require them to undergo unnecessary return-to-duty testing. The 
Department has reviewed the comments and determined that no change is 
needed. As stated in this section, the Federal agency determines a 
reasonable time for the donor to take the test, consistent with 
applicable agency regulations, and directs the individual accordingly. 
At the time an applicant is scheduled for a pre-employment drug test, 
or before, Federal agencies should provide the applicant with 
instructions on how to notify the agency in the event that they decide 
to withdraw their application or to not accept a job offer. Such 
instructions will allow the agency to cancel the drug test and help 
applicants avoid a refusal to test result.
    One commenter noted that the Guidelines should state that the 
designated employer representative (DER) makes the determination of a 
refusal to test. The Department has reviewed the comment and determined 
that no change is needed. As stated in this section, the Federal agency 
takes action consistent with applicable agency regulations.

Subpart C--Urine Specimen Tests

Section 3.4 What are the drug and biomarker test analytes and cutoffs 
for urine?

    The Department revised Section 3.4 to describe the annual 
publication of the drug testing and biomarker testing panels and the 
nomenclature required for laboratory and MRO reports. Three commenters 
submitted four comments on the required nomenclature required for 
laboratory and MRO reports, which are addressed below. Comments on the 
testing panels are addressed under Authorized drug testing panel and 
Authorized biomarker testing panel above.
    In regard to the required nomenclature specified in the annual 
Federal Register Notification, two commenters noted it is difficult and 
requires substantial effort for stakeholders to make such changes to 
their information technology (IT) systems. These commenters suggested 
that HHS convene a working group for review and input on nomenclature 
changes, to include employers, third party administrators, providers of 
electronic Federal Custody and Control Forms (ECCF providers), 
laboratories, and MROs. One commenter agreed with publishing the 
required nomenclature for each change to the testing panel, but 
suggested that nomenclature not be changed after publication to avoid 
increased costs and confusion. One commenter recommended a minimum of 
one-year implementation period after nomenclature changes are 
published.
    The Department will establish required terminology based on correct 
scientific nomenclature for added analytes. As described under 
Authorized drug testing panel above, the Department has developed 
procedures to allow public notice and comment on proposed drug analyte 
changes through DTAB meetings and procedures. The Department will 
publish separate nomenclature lists for urine and oral fluid analytes.

Subpart F--Federal Drug Testing Custody and Control Form

Section 6.2 What happens if the correct Office of Management and Budget 
(OMB)-approved Federal CCF is not available or is not used?

    One commenter stated that the Department should specify what 
constitutes an incorrect form, how a collector's signed memorandum must 
be submitted to correct submission of an incorrect CCF, and what 
actions an HHS-certified laboratory must take in response to an 
incorrect CCF. The Department has determined that no changes to the 
Guidelines are needed. The Department issues Guidance for Using the 
Federal CCF as part of the OMB-approved package and provides 
information and guidance specific to the current and expired versions 
of the Federal CCF, rather than including them in these Guidelines.

Subpart H--Urine Specimen Collection Procedure

8.3 What are the preliminary steps in the urine specimen collection 
procedure?

    There were no comments on this section; however, the Department 
added a sentence in item h stating that a donor is not required to 
remove any items worn for faith-based reasons. This requirement will be 
specified for all authorized specimen types.

Subpart K--Laboratory

Section 11.20 How long must an HHS-certified laboratory retain 
specimens?

    The Department did not propose any changes to this section. One 
commenter submitted a comment specifically agreeing with the existing 
UrMG requirement for laboratories to maintain substituted urine 
specimens for a period of one year after reporting. The comment 
appeared to be in response to DOT's February 28, 2022 notice of 
proposed rulemaking (NPRM) for transportation industry drug testing 
programs.

Subpart M--Medical Review Officer (MRO)

Section 13.3 What training is required before a physician may serve as 
an MRO?

    The Department did not propose any changes to this section; 
however, one commenter indicated that this section is unclear and needs 
substantial clarification regarding additional MRO training (e.g., what 
must training consist of, must the MRO take another certification exam, 
would this be required for annual panel changes). The commenter also 
suggested that MROs register with SAMHSA to get updates/announcements 
and acknowledge review of that information.
    The Department has reviewed these comments and edited item b of 
this section to clarify that MROs must be trained on any revisions to 
the drug and biomarker testing panels. In regard to training, SAMHSA 
relies on the approved MRO certification entities to ensure that MROs 
certified by their organizations meet Guidelines requirements. Current 
documents on the SAMHSA website https://www.samhsa.gov/workplace 
include the HHS Medical Review Officer Guidance Manual, MRO Cases 
Studies for Urine, and MRO Case Studies for Urine which address most of 
the suggested topics. The Department does not maintain an email list, 
but sends a notice through the NLCP to HHS-approved MRO certification 
organizations for dissemination to their certified MROs. The Department 
also sends additional guidance to HHS-certified laboratories to share 
with MROs, clients, and collectors as applicable.

Section 13.5 What must an MRO do when reviewing a urine specimen's test 
results?

    The Department revised Section 13.5(d)(2) to clarify that passive 
exposure to any drug (not just marijuana smoke) and ingestion of food 
products containing a drug (not just those containing marijuana) are 
not acceptable medical explanations for a positive drug test. The 
Department also added Section 13.5(d)(2)(iii) to clarify that only 
prescription medications can be offered as a legitimate medical 
explanation for

[[Page 70772]]

a positive drug test. Two commenters disagreed with the addition of 
Section 13.5(d)(2)(iii), maintaining that a physician's recommendation 
for medical marijuana should be considered a legitimate medical 
explanation for a positive test. The Department has evaluated these 
comments and determined that no change is needed at this time. Although 
an increased number of States have authorized marijuana use for medical 
purposes, marijuana remains a Schedule I controlled substance and 
cannot be prescribed under Federal law. For purposes of the Federal 
drug free workplace program, Federal law pertaining to marijuana 
control supersedes State marijuana laws, and therefore, a physician's 
recommendation for marijuana use is not a legitimate medical 
explanation for a positive marijuana test. Also see comments under 
Marijuana testing above.
    In addition to the changes described above, the Department 
reordered UrMG Sections 13.8 and 13.9 to reflect the procedural order 
(i.e., requirements for an MRO to report a primary specimen test result 
are now in Section 13.8, and requests for a test of the split specimen 
are addressed in Section 13.9).

Regulatory Impact and Notices

    The potential impact that these Guidelines have on the Department 
of Transportation (DOT) and/or Nuclear Regulatory Commission (NRC) 
regulated industries depends on the extent to which these agencies 
incorporate the UrMG revisions into their regulatory programs. 
Therefore, analysis of the potential impact of these Guidelines on such 
programs falls under the regulatory purview of DOT and NRC.

Executive Order 14094, 13563, and 12866

    Executive Order 14094 of April 6, 2023 (Modernizing Regulatory 
Review) reaffirms the statement set forth in 13563 of January 18, 2011 
(Improving Regulation and Regulatory Review) that ``Our regulatory 
system must protect public health, welfare, safety, and our environment 
while promoting economic growth, innovation, competitiveness, and job 
creation.'' Consistent with this mandate, Executive Order 13563 
requires agencies to tailor ``regulations to impose the least burden on 
society, consistent with obtaining regulatory objectives.'' Executive 
Order 13563 also requires agencies to ``identify and consider 
regulatory approaches that reduce burdens and maintain flexibility and 
freedom of choice'' while selecting ``those approaches that maximize 
net benefits.'' The regulatory approach in this document will reduce 
burdens to providers and to consumers while continuing to provide 
adequate protections for public health and welfare.
    The Secretary has examined the impact of the Guidelines under 
Executive Order 12866, as amended by Executive Order 14094, which 
directs Federal agencies to assess all costs and benefits of available 
regulatory alternatives and, when regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity).
    According to Executive Order 12866, as amended by Executive Order 
14094, defines a ``significant regulatory action'' as one that is 
likely to result in a rule that may meet any one of a number of 
specified conditions, including: (1) have an annual effect on the 
economy of $200 million or more in any one year (adjusted every 3 years 
by the Administrator of the Office of Information and Regulatory 
Affairs (OIRA) for changes in gross domestic product); or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, territorial, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise legal or policy issues for which centralized review would 
meaningfully further the President's priorities or the principles set 
forth in the Executive order, as specifically authorized in a timely 
manner by the Administrator of OIRA in each case. The Administrative 
Procedure Act (APA) delineates an exception to its rulemaking 
procedures for ``a matter relating to agency management or personnel'' 
5 U.S.C. 553(a)(2). Because the Guidelines issued by the Secretary 
govern Federal workplace drug testing programs, HHS has taken the 
position that the Guidelines are a ``matter relating to agency 
management or personnel'' and, thus, are not subject to the APA's 
requirements for notice and comment rulemaking. This position is 
consistent with Executive Order 12564 regarding Drug-Free Workplaces, 
which directs the Secretary to promulgate scientific and technical 
guidelines for executive agency drug testing programs.

Costs and Benefits

    The Department included a Regulatory Impact and Notices section 
with cost and benefits analysis and burden estimates in the April 7, 
2022 Federal Register Notification for the proposed UrMG (87 FR 20560), 
and requested public comment on all estimates and assumptions. Two 
commenters submitted comments concerning the Department's costs and 
benefits analysis.
    One commenter noted that the Department did not consider the 
application of the Guidelines to DOT testing, and recommended 
reanalysis of the costs and burden of the proposed changes with 
consideration of the impact on testing by the transportation industry. 
Please see the first paragraph of the Regulatory Impact and Notices 
section above.
    The other commenter disagreed with the Department's statement in 
the preamble to the proposed UrMG that ``implementation costs would be 
lower for laboratories that already offer the drug test'' compared to 
those laboratories that do not test for the added drug. The commenter 
indicated that the list of cost impacts for any change should include 
the laboratory's assay validation, materials management, and updates to 
IT systems (e.g., laboratory information management system [LIMS], 
recipient systems, and electronic ordering systems). This commenter 
indicated that these additional costs should be considered, and that 
they will be dependent on the complexity and adaptability of these 
systems. The Department agrees that costs will depend on the change and 
noted that in the preamble to the proposed UrMG. The Department will 
continue to proactively solicit cost information from stakeholders when 
conducting a cost analysis. As described under Authorized drug testing 
panel above, the Department will include a discussion of related costs 
and benefits when presenting a proposed panel change during a DTAB 
meeting.

Information Collection/Record Keeping Requirements

    The information collection requirements (i.e., reporting and 
recordkeeping) in the current Guidelines, which establish the 
scientific and technical guidelines for Federal workplace drug testing 
programs and establish standards for certification of laboratories 
engaged in urine drug testing for Federal agencies under authority of 5 
U.S.C. 7301 and Executive Order 12564, are approved by the Office of 
Management and Budget

[[Page 70773]]

(OMB) under control number 0930-0158. The Federal Drug Testing Custody 
and Control Form (Federal CCF) used to document the collection and 
chain of custody of urine and oral fluid specimens at the collection 
site, for laboratories to report results, and for Medical Review 
Officers to make a determination; the National Laboratory Certification 
Program (NLCP) application; the NLCP Laboratory Information Checklist; 
and recordkeeping requirements in the current Guidelines, as approved 
under control number 0930-0158, will remain in effect.
    In support of the Government Paperwork Reduction Act (PRA), the 
Department revised the Federal CCF to enable its use as an electronic 
form (78 FR 42091, July 15, 2013) and developed requirements and 
oversight procedures to ensure that HHS-certified test facilities and 
other service providers (e.g., collection sites, MROs) using an 
electronic version of the Federal CCF (ECCF) maintain the accuracy, 
security, and confidentiality of electronic drug test information. 
Before a Federal ECCF can be used for Federal agency specimens, HHS-
certified test facilities must submit detailed information and proposed 
standard operating procedures (SOPs) to the NLCP for SAMHSA review and 
approval, and undergo an NLCP inspection focused on the proposed ECCF.
    Since 2013, SAMHSA has encouraged the use of Federal ECCFs and 
other electronic processes in HHS-certified test facilities, when 
practicable, for federally regulated testing operations. In accordance 
with section 8108(a) of the SUPPORT for Patients and Communities Act, 
SAMHSA originally set a deadline of August 31, 2023 for all HHS-
certified laboratories to submit a request for approval of a digital 
(paperless) electronic Federal CCF. The Department subsequently 
extended the deadline to August 31, 2026, to enable sufficient time for 
all HHS-certified laboratories to identify and contract with an ECCF 
supplier or to develop an ECCF.
    The title and description of the information collected and 
respondent description are shown in the following paragraphs with an 
estimate of the annual reporting, disclosure, and recordkeeping burden. 
Included in the estimate is the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information.
    Title: The Mandatory Guidelines for Federal Workplace Drug Testing 
Programs using Urine.
    Description: The Mandatory Guidelines establish the scientific and 
technical guidelines for Federal drug testing programs and establish 
standards for certification of laboratories engaged in drug testing for 
Federal agencies under authority of Public Law 100-71, 5 U.S.C. 7301 
note, and Executive Order 12564. Federal drug testing programs test 
applicants to sensitive positions, individuals involved in accidents, 
individuals for cause, and random testing of persons in sensitive 
positions.
    Description of Respondents: Individuals or households, businesses, 
or other-for-profit and not-for-profit institutions.
    The burden estimates in the tables below are based on the following 
number of respondents: 38,000 donors who apply for employment or are 
employed in testing designated positions, 100 collectors, 25 urine 
specimen testing laboratories, 1 IITF, and 100 MROs.

                                                           Estimate of Annual Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Number of      Responses/        Hours/
                    Section                                      Purpose                    respondents     respondent       response       Total hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
9.2(a)(1)......................................  Laboratory or IITF required to submit                10               1               3              30
                                                  application for certification.
9.12(a)(3).....................................  Materials to submit to become an HHS                 10               1               2              20
                                                  inspector.
11.3...........................................  Laboratory submits qualifications of                 10               1               2              20
                                                  responsible person (RP) to HHS.
11.4(c)........................................  Laboratory submits information to HHS                10               1               2              20
                                                  on new RP or alternate RP.
11.22..........................................  Specifications for laboratory                        10               5             0.5              25
                                                  semiannual statistical report of test
                                                  results to each Federal agency.
12.3(a)........................................  IITF \1\ submits qualifications of RT                 1               1               1               1
                                                  to HHS.
12.4(c)........................................  IITF \1\ submits information to HHS on                1               1               1               1
                                                  new RT or alternate RT.
12.19..........................................  Specifications for IITF \1\ semiannual                1               1               1               1
                                                  statistical report of test results to
                                                  each Federal agency.
13.8 and 14.7..................................  Specifies that MRO must report all                  100              14    0.05 (3 min)              70
                                                  verified primary and split specimen
                                                  test results to the Federal agency.
13.11..........................................  Specifications for MRO semiannual                   100               2             0.5             100
                                                  report to the Secretary or designated
                                                  representative for Federal agency
                                                  specimen results that were laboratory-
                                                  positive and MRO-verified negative.
16.1(b) & 16.5(a)..............................  Specifies content of request for                      1               1               3               3
                                                  informal review of suspension/proposed
                                                  revocation of certification.
16.4...........................................  Specifies information appellant                       1               1             0.5             0.5
                                                  provides in first written submission
                                                  when laboratory suspension/revocation
                                                  is proposed.
16.6...........................................  Requires appellant to notify reviewing                1               1             0.5             0.5
                                                  official of resolution status at end
                                                  of abeyance period.
16.7(a)........................................  Specifies contents of appellant                       1               1              50              50
                                                  submission for review.

[[Page 70774]]

 
16.9(a)........................................  Specifies content of appellant request                1               1               3               3
                                                  for expedited review of suspension or
                                                  proposed revocation.
16.9(c)........................................  Specifies contents of review file and                 1               1              50              50
                                                  briefs.
                                                                                         ---------------------------------------------------------------
    Total......................................  .......................................             259  ..............  ..............             395
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Although IITFs are allowed under the UrMG, SAMHSA has not received any IITF application for certification to test federally regulated specimens.
  IITF numbers are provided in this analysis as placeholders for administrative purposes.

    The following reporting requirements are also in the Guidelines, 
but have not been addressed in the above reporting burden table: 
collector must report any unusual donor behavior or refusal to 
participate in the collection process on the Federal CCF (Sections 1.8, 
8.9); collector annotates the Federal CCF when a sample is a blind 
sample (Section 10.3(a)); MRO notifies the Federal agency and HHS when 
an error occurs on a blind sample (Section 10.4(d)); and Sections 13.6 
and 13.7 describe the actions an MRO takes for the medical evaluation 
of a donor who cannot provide a urine specimen. SAMHSA has not 
calculated a separate reporting burden for these requirements because 
they are included in the burden hours estimated for collectors to 
complete Federal CCFs and for MROs to report results to Federal 
agencies.

                                                          Estimate of Annual Disclosure Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Number of      Responses/        Hours/
                    Section                                      Purpose                    respondents     respondent       response       Total hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
8.3(a), 8.5(f)(2)(iii), 8.6(b)(2)..............  Collector must contact Federal agency               100               1    0.05 (3 min)               5
                                                  point of contact.
11.23, 11.24...................................  Information on drug test that                        25              10               3             750
                                                  laboratory must provide to Federal
                                                  agency upon request or to donor
                                                  through MRO.
12.20, 12.21...................................  Information on drug test that IITF must               1               1               1               1
                                                  provide to Federal agency upon request
                                                  or to donor through MRO.
13.9(b)........................................  MRO must inform donor of right to                   100              14               3           4,200
                                                  request split specimen test when a
                                                  positive, adulterated, or substituted
                                                  result is reported.
                                                                                         ---------------------------------------------------------------
    Total......................................  .......................................             226  ..............  ..............            4956
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The following disclosure requirements are also included in the 
Guidelines, but have not been addressed in the above disclosure burden 
table: the collector must explain the basic collection procedure to the 
donor and answer any questions (Section 8.3(e) and (g)). SAMHSA 
believes having the collector explain the collection procedure to the 
donor and answer any questions is a standard business practice and not 
a disclosure burden.

                                                         Estimate of Annual Recordkeeping Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Number of      Responses/        Hours/
                    Section                                      Purpose                    respondents     respondent       response       Total hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
8.3, 8.5, 8.8..................................  Collector completes Federal CCF for                 100             380    0.07 (4 min)           2,660
                                                  specimen collected.
8.8(d) & (f)...................................  Donor initials specimen labels/seals             38,000               1    0.08 (5 min)           3,040
                                                  and signs statement on the Federal CCF.
11.8(a) & 11.19................................  Laboratory completes Federal CCF upon                25           1,520    0.05 (3 min)           1,900
                                                  receipt of specimen and before
                                                  reporting result.
12.8(a) & 12.15................................  IITF completes Federal CCF upon receipt               1               1               1               1
                                                  of specimen and before reporting
                                                  result.
13.4(d)(4), 13.8(c), 14.7(c)...................  MRO completes Federal CCF before                    100             380    0.05 (3 min)           1,900
                                                  reporting the primary or split
                                                  specimen result.
14.1(b)........................................  MRO documents donor's request to have               100               2    0.05 (3 min)              10
                                                  split specimen tested.
                                                                                         ---------------------------------------------------------------
    Total......................................  .......................................          38,326  ..............  ..............           9,511
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Guidelines contain several recordkeeping requirements that 
SAMHSA considers not to be an additional recordkeeping burden. In 
subpart D, a trainer is required to document the training of an 
individual

[[Page 70775]]

to be a collector (Section 4.3(a)(3)) and the documentation must be 
maintained in the collector's training file (Section 4.3(c)). SAMHSA 
believes this training documentation is common practice and is not 
considered an additional burden. In subpart F, if a collector uses an 
incorrect form to collect a Federal agency specimen, the collector is 
required to provide a statement (Section 6.2(b)) explaining why an 
incorrect form was used to document collecting the specimen. SAMHSA 
believes this is an extremely infrequent occurrence and does not create 
a significant additional recordkeeping burden. Subpart H (Sections 
8.4(c), 8.5(d)(2) and (e)(1) and (2)) requires collectors to enter any 
information on the Federal CCF of any unusual findings during the urine 
specimen collection procedure. These recordkeeping requirements are an 
integral part of the collection procedure and are essential to 
documenting the chain of custody for the specimens collected. The 
burden for these entries is included in the recordkeeping burden 
estimated to complete the Federal CCF and is, therefore, not considered 
an additional recordkeeping burden. Subpart K describes a number of 
recordkeeping requirements for laboratories associated with their 
testing procedures, maintaining chain of custody, and keeping records 
(i.e., Sections 11.1(a) and (d); 11.2(b), (c), and (d); 11.6(b); 
11.7(c); 11.8; 11.11(a); 11.14(a); 11.17; 11.21(a), (b), and (c); 
11.22; 11.23(a); and 11.24). These recordkeeping requirements are 
necessary for any laboratory to conduct forensic drug testing and to 
ensure the scientific supportability of the test results. These 
practices are integrated in the current processes and, therefore, 
SAMHSA does not consider these standard business practices to be an 
additional burden for disclosure. Thus, the total annual response 
burden associated with the testing of urine specimens by the 
laboratories and IITFs is estimated to be 14,862 hours (that is, the 
sum of the total hours from the above tables). This is in addition to 
the 1,788,809 hours currently approved by OMB under control number 
0930-0158 for urine testing under the current Guidelines.
    As required by section 3507(d) of the PRA, the Secretary submitted 
a copy of the proposed Guidelines to OMB for its review. Comments on 
the information collection requirements were specifically solicited in 
order to: (1) Evaluate whether the proposed collection of information 
is necessary for the proper performance of HHS's functions, including 
whether the information will have practical utility; (2) evaluate the 
accuracy of HHS's estimate of the burden of the proposed collection of 
information, including the validity of the methodology and assumptions 
used; (3) enhance the quality, utility, and clarity of the information 
to be collected; and (4) minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology.

    Dated: September 27, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.

Mandatory Guidelines for Federal Workplace Drug Testing Programs Using 
Urine Specimens

Subpart A--Applicability
1.1 To whom do these Guidelines apply?
1.2 Who is responsible for developing and implementing these 
Guidelines?
1.3 How does a Federal agency request a change from these 
Guidelines?
1.4 How are these Guidelines revised?
1.5 What do the terms used in these Guidelines mean?
1.6 What is an agency required to do to protect employee records?
1.7 What is a refusal to take a federally regulated drug test?
1.8 What are the potential consequences for refusing to take a 
federally regulated drug test?
Subpart B--Urine Specimens
2.1 What type of specimen may be collected?
2.2 Under what circumstances may a urine specimen be collected?
2.3 How is each urine specimen collected?
2.4 What volume of urine is collected?
2.5 How does the collector split the urine specimen?
2.6 When may an entity or individual release a urine specimen?
Subpart C--Urine Specimen Tests
3.1 Which tests are conducted on a urine specimen?
3.2 May a specimen be tested for drugs other than those in the drug 
testing panel?
3.3 May any of the specimens be used for other purposes?
3.4 What are the drug and biomarker test analytes and cutoffs for 
urine?
3.5 May an HHS-certified laboratory perform additional drug and/or 
specimen validity tests on a specimen at the request of the Medical 
Review Officer (MRO)?
3.6 What criteria are used to report a urine specimen as 
adulterated?
3.7 What criteria are used to report a urine specimen as 
substituted?
3.8 What criteria are used to report a urine specimen as dilute?
3.9 What criteria are used to report an invalid result for a urine 
specimen?
Subpart D--Collectors
4.1 Who may collect a specimen?
4.2 Who may not collect a specimen?
4.3 What are the requirements to be a collector?
4.4 What are the requirements to be an observer for a direct 
observed collection?
4.5 What are the requirements to be a trainer for collectors?
4.6 What must a Federal agency do before a collector is permitted to 
collect a specimen?
Subpart E--Collection Sites
5.1 Where can a collection for a drug test take place?
5.2 What are the requirements for a collection site?
5.3 Where must collection site records be stored?
5.4 How long must collection site records be stored?
5.5 How does the collector ensure the security and integrity of a 
specimen at the collection site?
5.6 What are the privacy requirements when collecting a urine 
specimen?
Subpart F--Federal Drug Testing Custody and Control Form
6.1 What Federal form is used to document custody and control?
6.2 What happens if the correct OMB-approved Federal CCF is not 
available or is not used?
Subpart G--Urine Specimen Collection Containers and Bottles
7.1 What is used to collect a urine specimen?
7.2 What are the requirements for a urine collection container and 
specimen bottles?
7.3 What are the minimum performance requirements for a urine 
collection container and specimen bottles?
Subpart H--Urine Specimen Collection Procedure
8.1 What privacy must the donor be given when providing a urine 
specimen?
8.2 What must the collector ensure at the collection site before 
starting a urine specimen collection?
8.3 What are the preliminary steps in the urine specimen collection 
procedure?
8.4 What steps does the collector take in the collection procedure 
before the donor provides a urine specimen?
8.5 What steps does the collector take during and after the urine 
specimen collection procedure?
8.6 What procedure is used when the donor states that they are 
unable to provide a urine specimen?
8.7 If the donor is unable to provide a urine specimen, may another 
specimen type be collected for testing?
8.8 How does the collector prepare the urine specimens?
8.9 When is a direct observed collection conducted?
8.10 How is a direct observed collection conducted?

[[Page 70776]]

8.11 When is a monitored collection conducted?
8.12 How is a monitored collection conducted?
8.13 How does the collector report a donor's refusal to test?
8.14 What are a Federal agency's responsibilities for a collection 
site?
Subpart I--HHS Certification of Laboratories and IITFs
9.1 Who has the authority to certify laboratories and IITFs to test 
urine specimens for Federal agencies?
9.2 What is the process for a laboratory or IITF to become HHS-
certified?
9.3 What is the process for a laboratory or IITF to maintain HHS 
certification?
9.4 What is the process when a laboratory or IITF does not maintain 
its HHS certification?
9.5 What are the qualitative and quantitative specifications of 
performance testing (PT) samples?
9.6 What are the PT requirements for an applicant laboratory that 
seeks to perform urine testing?
9.7 What are the PT requirements for an HHS-certified urine 
laboratory?
9.8 What are the PT requirements for an applicant IITF?
9.9 What are the PT requirements for an HHS-certified IITF?
9.10 What are the inspection requirements for an applicant 
laboratory or IITF?
9.11 What are the maintenance inspection requirements for an HHS-
certified laboratory or IITF?
9.12 Who can inspect an HHS-certified laboratory or IITF and when 
may the inspection be conducted?
9.13 What happens if an applicant laboratory or IITF does not 
satisfy the minimum requirements for either the PT program or the 
inspection program?
9.14 What happens if an HHS-certified laboratory or IITF does not 
satisfy the minimum requirements for either the PT program or the 
inspection program?
9.15 What factors are considered in determining whether revocation 
of a laboratory's or IITF's HHS certification is necessary?
9.16 What factors are considered in determining whether to suspend a 
laboratory's or an IITF's HHS certification?
9.17 How does the Secretary notify an HHS-certified laboratory or 
IITF that action is being taken against the laboratory or IITF?
9.18 May a laboratory or IITF that had its HHS certification revoked 
be recertified to test Federal agency specimens?
9.19 Where is the list of HHS-certified laboratories and IITFs 
published?
Subpart J--Blind Samples Submitted by an Agency
10.1 What are the requirements for Federal agencies to submit blind 
samples to HHS-certified laboratories or IITFs?
10.2 What are the requirements for blind samples?
10.3 How is a blind sample submitted to an HHS-certified laboratory 
or IITF?
10.4 What happens if an inconsistent result is reported for a blind 
sample?
Subpart K--Laboratory
11.1 What must be included in the HHS-certified laboratory's 
standard operating procedure manual?
11.2 What are the responsibilities of the responsible person (RP)?
11.3 What scientific qualifications must the RP have?
11.4 What happens when the RP is absent or leaves an HHS-certified 
laboratory?
11.5 What qualifications must an individual have to certify a result 
reported by an HHS-certified laboratory?
11.6 What qualifications and training must other personnel of an 
HHS-certified laboratory have?
11.7 What security measures must an HHS-certified laboratory 
maintain?
11.8 What are the laboratory chain of custody requirements for 
specimens and aliquots?
11.9 What test(s) does an HHS-certified laboratory conduct on a 
urine specimen received from an IITF?
11.10 What are the requirements for an initial drug test?
11.11 What must an HHS-certified laboratory do to validate an 
initial drug test?
11.12 What are the batch quality control requirements when 
conducting an initial drug test?
11.13 What are the requirements for a confirmatory drug test?
11.14 What must an HHS-certified laboratory do to validate a 
confirmatory drug test?
11.15 What are the batch quality control requirements when 
conducting a confirmatory drug test?
11.16 What are the analytical and quality control requirements for 
conducting specimen validity tests?
11.17 What must an HHS-certified laboratory do to validate a 
specimen validity test?
11.18 What are the requirements for conducting each specimen 
validity test?
11.19 What are the requirements for an HHS-certified laboratory to 
report a test result?
11.20 How long must an HHS-certified laboratory retain specimens?
11.21 How long must an HHS-certified laboratory retain records?
11.22 What statistical summary reports must an HHS-certified 
laboratory provide for urine testing?
11.23 What HHS-certified laboratory information is available to a 
Federal agency?
11.24 What HHS-certified laboratory information is available to a 
Federal employee?
11.25 What types of relationships are prohibited between an HHS-
certified laboratory and an MRO?
11.26 What type of relationship can exist between an HHS-certified 
laboratory and an HHS-certified IITF?
Subpart L--Instrumented Initial Test Facility (IITF)
12.1 What must be included in the HHS-certified IITF's standard 
operating procedure manual?
12.2 What are the responsibilities of the responsible technician 
(RT)?
12.3 What qualifications must the RT have?
12.4 What happens when the RT is absent or leaves an HHS-certified 
IITF?
12.5 What qualifications must an individual have to certify a result 
reported by an HHS-certified IITF?
12.6 What qualifications and training must other personnel of an 
HHS-certified IITF have?
12.7 What security measures must an HHS-certified IITF maintain?
12.8 What are the IITF chain of custody requirements for specimens 
and aliquots?
12.9 What are the requirements for an initial drug test?
12.10 What must an HHS-certified IITF do to validate an initial drug 
test?
12.11 What are the batch quality control requirements when 
conducting an initial drug test?
12.12 What are the analytical and quality control requirements for 
conducting specimen validity tests?
12.13 What must an HHS-certified IITF do to validate a specimen 
validity test?
12.14 What are the requirements for conducting each specimen 
validity test?
12.15 What are the requirements for an HHS-certified IITF to report 
a test result?
12.16 How does an HHS-certified IITF handle a specimen that tested 
positive, adulterated, substituted, or invalid at the IITF?
12.17 How long must an HHS-certified IITF retain a specimen?
12.18 How long must an HHS-certified IITF retain records?
12.19 What statistical summary reports must an HHS-certified IITF 
provide?
12.20 What HHS-certified IITF information is available to a Federal 
agency?
12.21 What HHS-certified IITF information is available to a Federal 
employee?
12.22 What types of relationships are prohibited between an HHS-
certified IITF and an MRO?
12.23 What type of relationship can exist between an HHS-certified 
IITF and an HHS-certified laboratory?
Subpart M--Medical Review Officer (MRO)
13.1 Who may serve as an MRO?
13.2 How are nationally recognized entities or subspecialty boards 
that certify MROs approved?
13.3 What training is required before a physician may serve as an 
MRO?
13.4 What are the responsibilities of an MRO?
13.5 What must an MRO do when reviewing a urine specimen's test 
results?
13.6 What action does the MRO take when the collector reports that 
the donor did not provide a sufficient amount of urine for a drug 
test?
13.7 What happens when an individual is unable to provide a 
sufficient amount of

[[Page 70777]]

urine for a Federal agency applicant/pre-employment test, a follow-
up test, or a return-to-duty test because of a permanent or long-
term medical condition?
13.8 How does an MRO report a primary (A) specimen test result to an 
agency?
13.9 Who may request a test of a split (B) specimen?
13.10 What types of relationships are prohibited between an MRO and 
an HHS-certified laboratory or an HHS-certified IITF?
13.11 What reports must an MRO provide to the Secretary for urine 
testing?
13.12 What are a Federal agency's responsibilities for designating 
an MRO?
Subpart N--Split Specimen Tests
14.1 When may a split (B) specimen be tested?
14.2 How does an HHS-certified laboratory test a split (B) specimen 
when the primary (A) specimen was reported positive?
14.3 How does an HHS-certified laboratory test a split (B) urine 
specimen when the primary (A) specimen was reported adulterated?
14.4 How does an HHS-certified laboratory test a split (B) urine 
specimen when the primary (A) specimen was reported substituted?
14.5 Who receives the split (B) specimen result?
14.6 What action(s) does an MRO take after receiving the split (B) 
urine specimen result from the second HHS-certified laboratory?
14.7 How does an MRO report a split (B) specimen test result to an 
agency?
14.8 How long must an HHS-certified laboratory retain a split (B) 
specimen?
Subpart O--Criteria for Rejecting a Specimen for Testing
15.1 What discrepancies require an HHS-certified laboratory or an 
HHS-certified IITF to report a urine specimen as rejected for 
testing?
15.2 What discrepancies require an HHS-certified laboratory or an 
HHS-certified IITF to report a specimen as rejected for testing 
unless the discrepancy is corrected?
15.3 What discrepancies are not sufficient to require an HHS-
certified laboratory or an HHS-certified IITF to reject a urine 
specimen for testing or an MRO to cancel a test?
15.4 What discrepancies may require an MRO to cancel a test?
Subpart P--Laboratory or IITF Suspension/Revocation Procedures
16.1 When may the HHS certification of a laboratory or IITF be 
suspended?
16.2 What definitions are used for this subpart?
16.3 Are there any limitations on issues subject to review?
16.4 Who represents the parties?
16.5 When must a request for informal review be submitted?
16.6 What is an abeyance agreement?
16.7 What procedures are used to prepare the review file and written 
argument?
16.8 When is there an opportunity for oral presentation?
16.9 Are there expedited procedures for review of immediate 
suspension?
16.10 Are any types of communications prohibited?
16.11 How are communications transmitted by the reviewing official?
16.12 What are the authority and responsibilities of the reviewing 
official?
16.13 What administrative records are maintained?
16.14 What are the requirements for a written decision?
16.15 Is there a review of the final administrative action?

Subpart A--Applicability

Section 1.1 To whom do these Guidelines apply?

    (a) These Guidelines apply to:
    (1) Executive agencies as defined in 5 U.S.C. 105;
    (2) The Uniformed Services, as defined in 5 U.S.C. 2101(3), but 
excluding the Armed Forces as defined in 5 U.S.C. 2101(2);
    (3) Any other employing unit or authority of the Federal Government 
except the United States Postal Service, the Postal Rate Commission, 
and employing units or authorities in the Judicial and Legislative 
Branches; and
    (4) The Intelligence Community, as defined by Executive Order 
12333, is subject to these Guidelines only to the extent agreed to by 
the head of the affected agency;
    (5) Laboratories and instrumented initial test facilities (IITFs) 
that provide drug testing services to the Federal agencies;
    (6) Collectors who provide specimen collection services to the 
Federal agencies; and
    (7) Medical Review Officers (MROs) who provide drug testing review 
and interpretation of results services to the Federal agencies.
    (b) These Guidelines do not apply to drug testing under authority 
other than Executive Order 12564, including testing of persons in the 
criminal justice system, such as arrestees, detainees, probationers, 
incarcerated persons, or parolees.

Section 1.2 Who is responsible for developing and implementing these 
Guidelines?

    (a) Executive Order 12564 and Public Law 100-71 require the 
Department of Health and Human Services (HHS) to establish scientific 
and technical guidelines for Federal workplace drug testing programs.
    (b) The Secretary has the responsibility to implement these 
Guidelines.

Section 1.3 How does a Federal agency request a change from these 
Guidelines?

    (a) Each Federal agency must ensure that its workplace drug testing 
program complies with the provisions of these Guidelines unless a 
waiver has been obtained from the Secretary.
    (b) To obtain a waiver, a Federal agency must submit a written 
request to the Secretary that describes the specific change for which a 
waiver is sought and a detailed justification for the change.

Section 1.4 How are these Guidelines revised?

    (a) To ensure the full reliability and accuracy of specimen tests, 
the accurate reporting of test results, and the integrity and efficacy 
of Federal drug testing programs, the Secretary may make changes to 
these Guidelines to reflect improvements in the available science and 
technology.
    (b) Revisions to these Guidelines will be published in final as a 
notification in the Federal Register.

Section 1.5 What do the terms used in these Guidelines mean?

    The following definitions are adopted:
    Accessioner. The individual who signs the Federal Drug Testing 
Custody and Control Form at the time of specimen receipt at the HHS-
certified laboratory or (for urine) the HHS-certified IITF.
    Adulterated Specimen. A specimen that has been altered, as 
evidenced by test results showing either a substance that is not a 
normal constituent for that type of specimen or showing an abnormal 
concentration of a normal constituent (e.g., nitrite in urine).
    Aliquot. A portion of a specimen used for testing.
    Alternate Responsible Person. The person who assumes professional, 
organizational, educational, and administrative responsibility for the 
day-to-day management of the HHS-certified laboratory when the 
responsible person is unable to fulfill these obligations.
    Alternate Responsible Technician. The person who assumes 
professional, organizational, educational, and administrative 
responsibility for the day-to-day management of the HHS-certified IITF 
when the responsible technician is unable to fulfill these obligations.
    Alternate Technology Initial Drug Test. An initial drug test using 
technology other than immunoassay to differentiate negative specimens 
from those requiring further testing.
    Batch. A number of specimens or aliquots handled concurrently as a 
group.

[[Page 70778]]

    Biomarker. An endogenous substance used to validate a biological 
specimen.
    Biomarker Testing Panel. The panel published in the Federal 
Register that includes the biomarkers authorized for testing, with 
analytes and cutoffs for initial and confirmatory biomarker tests, as 
described under Section 3.4.
    Blind Sample. A sample submitted to an HHS-certified test facility 
for quality assurance purposes, with a fictitious identifier, so that 
the test facility cannot distinguish it from a donor specimen.
    Calibrator. A sample of known content and analyte concentration 
prepared in the appropriate matrix used to define expected outcomes of 
a testing procedure. The test result of the calibrator is verified to 
be within established limits prior to use.
    Cancelled Test. The result reported by the MRO to the Federal 
agency when a specimen has been reported to the MRO as an invalid 
result (and the donor has no legitimate explanation) or the specimen 
has been rejected for testing, when a split specimen fails to 
reconfirm, or when the MRO determines that a fatal flaw or unrecovered 
correctable flaw exists in the forensic records (as described in 
Sections 15.1 and 15.2).
    Carryover. The effect that occurs when a sample result (e.g., drug 
concentration) is affected by a preceding sample during the preparation 
or analysis of a sample.
    Certifying Scientist (CS). The individual responsible for verifying 
the chain of custody and scientific reliability of a test result 
reported by an HHS-certified laboratory.
    Certifying Technician (CT). The individual responsible for 
verifying the chain of custody and scientific reliability of negative, 
rejected for testing, and (for urine) negative/dilute results reported 
by an HHS-certified laboratory or (for urine) an HHS-certified IITF.
    Chain of Custody (COC) Procedures. Procedures that document the 
integrity of each specimen or aliquot from the point of collection to 
final disposition.
    Chain of Custody Documents. Forms used to document the control and 
security of the specimen and all aliquots. The document may account for 
an individual specimen, aliquot, or batch of specimens/aliquots and 
must include the name and signature of each individual who handled the 
specimen(s) or aliquot(s) and the date and purpose of the handling.
    Collection Container. A receptacle used to collect a donor's drug 
test specimen.
    Collection Site. The location where specimens are collected.
    Collector. A person trained to instruct and assist a donor in 
providing a specimen.
    Confirmatory Drug Test. A second analytical procedure performed on 
a separate aliquot of a specimen to identify and quantify a specific 
drug or drug metabolite.
    Confirmatory Specimen Validity Test. A second test performed on a 
separate aliquot of a specimen to further support an initial specimen 
validity test result.
    Control. A sample used to evaluate whether an analytical procedure 
or test is operating within predefined tolerance limits.
    Cutoff. The analytical value (e.g., drug, drug metabolite, or 
biomarker concentration) used as the decision point to determine a 
result (e.g., negative, positive, adulterated, invalid, or substituted) 
or the need for further testing.
    Dilute Specimen. A urine specimen with creatinine and specific 
gravity values that are lower than expected but are still within the 
physiologically producible ranges of human urine.
    Donor. The individual from whom a specimen is collected.
    Drug Testing Panel. The panel published in the Federal Register 
that includes the drugs authorized for testing, with analytes and 
cutoffs for initial and confirmatory drug tests, as described under 
Section 3.4.
    External Service Provider. An independent entity that performs 
services related to Federal workplace drug testing on behalf of a 
Federal agency, a collector/collection site, an HHS[hyphen]certified 
laboratory, a Medical Review Officer (MRO), or (for urine) an 
HHS[hyphen]certified Instrumented Initial Test Facility (IITF).
    Failed to Reconfirm. The result reported for a split (B) specimen 
when a second HHS-certified laboratory is unable to corroborate the 
result reported for the primary (A) specimen.
    Federal Drug Testing Custody and Control Form (Federal CCF). The 
Office of Management and Budget (OMB) approved form that is used to 
document the collection and chain of custody of a specimen from the 
time the specimen is collected until it is received by the test 
facility (i.e., HHS-certified laboratory or, for urine, HHS-certified 
IITF). It may be a paper (hardcopy), electronic (digital), or 
combination electronic and paper format (hybrid). The form may also be 
used to report the test result to the Medical Review Officer.
    Gender Identity. Gender identity means an individual's internal 
sense of being male or female, which may be different from an 
individual's sex assigned at birth.
    HHS. The Department of Health and Human Services.
    Initial Drug Test. An analysis used to differentiate negative 
specimens from those requiring further testing.
    Initial Specimen Validity Test. The first analysis used to 
determine if a specimen is adulterated, invalid, substituted, or (for 
urine) dilute.
    Instrumented Initial Test Facility (IITF). A permanent location 
where (for urine) initial testing, reporting of results, and 
recordkeeping are performed under the supervision of a responsible 
technician.
    Invalid Result. The result reported by an HHS-certified laboratory 
in accordance with the criteria established in Section 3.9 when a 
positive, negative, adulterated, or substituted result cannot be 
established for a specific drug or specimen validity test.
    Laboratory. A permanent location where initial and confirmatory 
drug testing, reporting of results, and recordkeeping are performed 
under the supervision of a responsible person.
    Limit of Detection (LOD). The lowest concentration at which the 
analyte (e.g., drug or drug metabolite) can be identified.
    Limit of Quantification (LOQ). For quantitative assays, the lowest 
concentration at which the identity and concentration of the analyte 
(e.g., drug or drug metabolite) can be accurately established.
    Lot. A number of units of an item (e.g., reagents, quality control 
material) manufactured from the same starting materials within a 
specified period of time for which the manufacturer ensures that the 
items have essentially the same performance characteristics and 
expiration date.
    Medical Review Officer (MRO). A licensed physician who reviews, 
verifies, and reports a specimen test result to the Federal agency.
    Negative Result. The result reported by an HHS-certified laboratory 
or (for urine) an HHS-certified IITF to an MRO when a specimen contains 
no drug and/or drug metabolite; or the concentration of the drug or 
drug metabolite is less than the cutoff for that drug or drug class.
    Oral Fluid Specimen. An oral fluid specimen is collected from the 
donor's oral cavity and is a combination of physiological fluids 
produced primarily by the salivary glands.
    Oxidizing Adulterant. A substance that acts alone or in combination 
with other substances to oxidize drug or drug metabolites to prevent 
the detection of the drugs or drug metabolites, or affects the reagents 
in either the initial or confirmatory drug test.

[[Page 70779]]

    Performance Testing (PT) Sample. A program-generated sample sent to 
a laboratory or (for urine) to an IITF to evaluate performance.
    Positive Result. The result reported by an HHS-certified laboratory 
when a specimen contains a drug or drug metabolite equal to or greater 
than the confirmatory test cutoff.
    Reconfirmed. The result reported for a split (B) specimen when the 
second HHS-certified laboratory corroborates the original result 
reported for the primary (A) specimen.
    Rejected for Testing. The result reported by an HHS-certified 
laboratory or (for urine) HHS-certified IITF when no tests are 
performed on a specimen because of a fatal flaw or an unrecovered 
correctable error (see Sections 15.1 and 15.2).
    Responsible Person (RP). The person who assumes professional, 
organizational, educational, and administrative responsibility for the 
day-to-day management of an HHS-certified laboratory.
    Responsible Technician (RT). The person who assumes professional, 
organizational, educational, and administrative responsibility for the 
day-to-day management of an HHS-certified IITF.
    Sample. A performance testing sample, calibrator or control used 
during testing, or a representative portion of a donor's specimen.
    Secretary. The Secretary of the U.S. Department of Health and Human 
Services.
    Specimen. Fluid or material collected from a donor at the 
collection site for the purpose of a drug test.
    Split Specimen Collection (for Urine). A collection in which the 
specimen collected is divided into a primary (A) specimen and a split 
(B) specimen, which are independently sealed in the presence of the 
donor.
    Standard. Reference material of known purity or a solution 
containing a reference material at a known concentration.
    Substituted Specimen. A specimen that has been submitted in place 
of the donor's specimen, as evidenced by the absence of a biomarker or 
a biomarker concentration inconsistent with that established for a 
human specimen, as indicated in the biomarker testing panel, or (for 
urine) creatinine and specific gravity values that are outside the 
physiologically producible ranges of human urine, in accordance with 
the criteria to report a specimen as substituted in Section 3.7.

Section 1.6 What is an agency required to do to protect employee 
records?

    Consistent with 5 U.S.C. 552a and 48 CFR 24.101 through 24.104, all 
agency contracts with laboratories, IITFs, collectors, and MROs must 
require that they comply with the Privacy Act, 5 U.S.C. 552a. In 
addition, the contracts must require compliance with employee access 
and confidentiality provisions of section 503 of Public Law 100-71. 
Each Federal agency must establish a Privacy Act System of Records or 
modify an existing system or use any applicable Government-wide system 
of records to cover the records of employee drug test results. All 
contracts and the Privacy Act System of Records must specifically 
require that employee records be maintained and used with the highest 
regard for employee privacy.
    The Health Insurance Portability and Accountability Act of 1996 
(HIPAA) Privacy Rule (Rule), 45 CFR parts 160 and 164, subparts A and 
E, may be applicable to certain health care providers with whom a 
Federal agency may contract. If a health care provider is a HIPAA 
covered entity, the provider must protect the individually identifiable 
health information it maintains in accordance with the requirements of 
the Rule, which includes not using or disclosing the information except 
as permitted by the Rule and ensuring there are reasonable safeguards 
in place to protect the privacy of the information. For more 
information regarding the HIPAA Privacy Rule, please visit https://www.hhs.gov/hipaa/.

Section 1.7 What is a refusal to take a federally regulated drug test?

    (a) As a donor for a federally regulated drug test, you have 
refused to take a federally regulated drug test if you:
    (1) Fail to appear for any test within a reasonable time, as 
determined by the Federal agency, consistent with applicable agency 
regulations, after being directed to do so by the Federal agency;
    (2) Fail to remain at the collection site until the collection 
process is complete;
    (3) Fail to provide a specimen (i.e., urine or another authorized 
specimen type) for any drug test required by these Guidelines or 
Federal agency regulations;
    (4) In the case of a direct observed or monitored collection, fail 
to permit the observation or monitoring of your provision of a specimen 
when required as described in Sections 8.9 and 8.10;
    (5) Fail to provide a sufficient amount of urine when directed, and 
it has been determined, through a required medical evaluation, that 
there was no legitimate medical explanation for the failure as 
determined by the process described in Section 13.6;
    (6) Fail or decline to participate in an alternate specimen 
collection (e.g., oral fluid) as directed by the Federal agency or 
collector (i.e., as described in Section 8.6);
    (7) Fail to undergo a medical examination or evaluation, as 
directed by the MRO as part of the verification process (i.e., Section 
13.6) or as directed by the Federal agency. In the case of a Federal 
agency applicant/pre-employment drug test, the donor is deemed to have 
refused to test on this basis only if the Federal agency applicant/pre-
employment test is conducted following a contingent offer of 
employment. If there was no contingent offer of employment, the MRO 
will cancel the test;
    (8) Fail to cooperate with any part of the testing process (e.g., 
refuse to empty pockets when directed by the collector, disrupt the 
collection process, fail to wash hands after being directed to do so by 
the collector);
    (9) For an observed collection, fail to follow the observer's 
instructions related to the collection process;
    (10) Bring materials to the collection site for the purpose of 
adulterating, substituting, or diluting the specimen;
    (11) Attempt to adulterate, substitute, or dilute the specimen;
    (12) Possess or wear a prosthetic or other device that could be 
used to interfere with the collection process; or
    (13) Admit to the collector or MRO that you have adulterated or 
substituted the specimen.

Section 1.8 What are the potential consequences for refusing to take a 
federally regulated drug test?

    (a) A refusal to take a test may result in the initiation of 
disciplinary or adverse action for a Federal employee, up to and 
including removal from Federal employment. An applicant's refusal to 
take a pre-employment test may result in non-selection for Federal 
employment.
    (b) When a donor has refused to participate in a part of the 
collection process, including failing to appear in a reasonable time 
for any test, the collector must terminate the collection process and 
take action as described in Section 8.13. Required action includes 
immediately notifying the Federal agency's designated representative by 
any means (e.g., telephone, email, or secure facsimile [fax] machine) 
that ensures that the refusal notification is immediately received and, 
if a Federal CCF has been initiated, documenting

[[Page 70780]]

the refusal on the Federal CCF, signing and dating the Federal CCF, and 
sending all copies of the Federal CCF to the Federal agency's 
designated representative.
    (c) When documenting a refusal to test during the verification 
process as described in Sections 13.4, 13.5, and 13.6, the MRO must 
complete the MRO copy of the Federal CCF to include:
    (1) Checking the refusal to test box;
    (2) Providing a reason for the refusal in the remarks line; and
    (3) Signing and dating the MRO copy of the Federal CCF.

Subpart B--Urine Specimens

Section 2.1 What type of specimen may be collected?

    A Federal agency may collect urine and/or an alternate specimen 
type for its workplace drug testing program. Only specimen types 
authorized by Mandatory Guidelines for Federal Workplace Drug Testing 
Programs may be collected. An agency using urine must follow these 
Guidelines.

Section 2.2 Under what circumstances may a urine specimen be collected?

    A Federal agency may collect a urine specimen for the following 
reasons:
    (a) Federal agency applicant/Pre-employment test;
    (b) Random test;
    (c) Reasonable suspicion/cause test;
    (d) Post accident test;
    (e) Return to duty test; or
    (f) Follow-up test.

Section 2.3 How is each urine specimen collected?

    Each urine specimen is collected as a split specimen as described 
in Section 2.5.

Section 2.4 What volume of urine is collected?

    A donor is expected to provide at least 45 mL of urine for a 
specimen.

Section 2.5 How does the collector split the urine specimen?

    The collector pours at least 30 mL into a specimen bottle that is 
designated as A (primary) and then pours at least 15 mL into a specimen 
bottle that is designated as B (split).

Section 2.6 When may an entity or individual release a urine specimen?

    Entities and individuals subject to these Guidelines under Section 
1.1 may not release specimens collected pursuant to Executive Order 
12564, Public Law 100-71, and these Guidelines to donors or their 
designees. Specimens also may not be released to any other entity or 
individual unless expressly authorized by these Guidelines or by 
applicable Federal law. This section does not prohibit a donor's 
request to have a split (B) specimen tested in accordance with Section 
13.9.

Subpart C--Urine Specimen Tests

Section 3.1 Which tests are conducted on a urine specimen?

    A Federal agency:
    (a) Must ensure that each specimen is tested for marijuana and 
cocaine metabolites as provided in the drug testing panel described 
under Section 3.4;
    (b) Is authorized to test each specimen for other Schedule I or II 
drugs as provided in the drug testing panel;
    (c) Must ensure that the following specimen validity tests are 
conducted on each urine specimen:
    (1) Determine the creatinine concentration on every specimen;
    (2) Determine the specific gravity on every specimen for which the 
creatinine concentration is less than 20 mg/dL;
    (3) Determine the pH on every specimen; and
    (4) Perform one or more specimen validity tests for oxidizing 
adulterants on every specimen.
    (d) Is authorized to test each specimen for one or more biomarkers 
as provided in the biomarker testing panel; and
    (e) May perform additional testing if a specimen exhibits abnormal 
characteristics (e.g., unusual odor or color, semi-solid 
characteristics), causes reactions or responses characteristic of an 
adulterant during initial or confirmatory drug tests (e.g., non-
recovery of internal standard, unusual response), or contains an 
unidentified substance that interferes with the confirmatory analysis.

Section 3.2 May a specimen be tested for drugs other than those in the 
drug testing panel?

    (a) On a case-by-case basis, a specimen may be tested for 
additional drugs, if a Federal agency is conducting the collection for 
reasonable suspicion or post accident testing. A specimen collected 
from a Federal agency employee may be tested by the Federal agency for 
any drugs listed in Schedule I or II of the Controlled Substances Act. 
The Federal agency must request the HHS-certified laboratory to test 
for the additional drug, include a justification to test a specific 
specimen for the drug, and ensure that the HHS-certified laboratory has 
the capability to test for the drug and has established properly 
validated initial and confirmatory analytical methods. If an initial 
test procedure is not available upon request for a suspected Schedule I 
or Schedule II drug, the Federal agency can request an HHS-certified 
laboratory to test for the drug by analyzing two separate aliquots of 
the specimen in two separate testing batches using the confirmatory 
analytical method. Additionally, the split (B) specimen will be 
available for testing if the donor requests a retest at another HHS-
certified laboratory.
    (b) A Federal agency covered by these Guidelines must petition the 
Secretary in writing for approval to routinely test for any drug class 
not listed in the drug testing panel described under Section 3.4. Such 
approval must be limited to the use of the appropriate science and 
technology and must not otherwise limit agency discretion to test for 
any drug tested under Section 3.2(a).

Section 3.3 May any of the specimens be used for other purposes?

    (a) Specimens collected pursuant to Executive Order 12564, Public 
Law 100-71, and these Guidelines must only be tested for drugs and to 
determine their validity in accordance with subpart C of these 
Guidelines. Use of specimens by donors, their designees, or any other 
entity, for other purposes (e.g., deoxyribonucleic acid, DNA, testing) 
is prohibited unless authorized in accordance with applicable Federal 
law.
    (b) These Guidelines are not intended to prohibit Federal agencies 
specifically authorized by law to test a specimen for additional 
classes of drugs in its workplace drug testing program.

Section 3.4 What are the drug and biomarker test analytes and cutoffs 
for urine?

    The Secretary will publish the drug and biomarker test analytes and 
cutoffs (i.e., the ``drug testing panel'' and ``biomarker testing 
panel'') for initial and confirmatory drug and biomarker tests in the 
Federal Register each year. The drug and biomarker testing panels will 
also be available on the internet at https://www.samhsa.gov/workplace.
    This drug testing panel will remain in effect until the effective 
date of a new drug testing panel published in the Federal Register:

[[Page 70781]]



----------------------------------------------------------------------------------------------------------------
                                                                   Confirmatory test        Confirmatory test
         Initial test analyte          Initial test cutoff \1\          analyte                   cutoff
----------------------------------------------------------------------------------------------------------------
Marijuana metabolite (THCA) \2\......  50 ng/mL\3\............  THCA...................  15 ng/mL.
Cocaine metabolite (Benzoylecgonine).  150 ng/mL\3\...........  Benzoylecgonine........  100 ng/mL.
Codeine/Morphine.....................  2000 ng/mL.............  Codeine................  2000 ng/mL.
                                                                Morphine...............  4000 ng/mL.
Hydrocodone/Hydromorphone............  300 ng/mL..............  Hydrocodone............  100 ng/mL.
                                                                Hydromorphone..........  100 ng/mL.
Oxycodone/Oxymorphone................  100 ng/mL..............  Oxycodone..............  100 ng/mL.
                                                                Oxymorphone............  100 ng/mL.
6-Acetylmorphine.....................  10 ng/mL...............  6-Acetylmorphine.......  10 ng/mL.
Phencyclidine........................  25 ng/mL...............  Phencyclidine..........  25 ng/mL.
Amphetamine/Methamphetamine..........  500 ng/mL..............  Amphetamine............  250 ng/mL.
                                                                Methamphetamine........  250 ng/mL.
MDMA \4\/MDA \5\.....................  500 ng/mL..............  MDMA...................  250 ng/mL.
                                                                MDA....................  250 ng/mL.
----------------------------------------------------------------------------------------------------------------
\1\ For grouped analytes (i.e., two or more analytes that are in the same drug class and have the same initial
  test cutoff): Immunoassay: The test must be calibrated with one analyte from the group identified as the
  target analyte. The cross-reactivity of the immunoassay to the other analyte(s) within the group must be 80
  percent or greater; if not, separate immunoassays must be used for the analytes within the group. Alternate
  technology: Either one analyte or all analytes from the group must be used for calibration, depending on the
  technology. At least one analyte within the group must have a concentration equal to or greater than the
  initial test cutoff or, alternatively, the sum of the analytes present (i.e., equal to or greater than the
  laboratory's validated limit of quantification) must be equal to or greater than the initial test cutoff.
\2\ An immunoassay must be calibrated with the target analyte, [Delta]-9-tetrahydrocannabinol-9-carboxylic acid
  (THCA).
\3\ Alternate technology (THCA and benzoylecgonine): The confirmatory test cutoff must be used for an alternate
  technology initial test that is specific for the target analyte (i.e., 15 ng/mL for THCA, 100 ng/mL for
  benzoylecgonine).
\4\Methylenedioxymethamphetamine (MDMA).
\5\Methylenedioxyamphetamine (MDA).

    (a) The drug testing panel will include drugs authorized for 
testing in Federal workplace drug testing programs, with the required 
test analytes and cutoffs;
    (b) The biomarker testing panel will include biomarkers authorized 
for testing in Federal workplace drug testing programs, with the 
required test analytes and cutoffs; and
    (c) HHS-certified IITFs, HHS-certified laboratories, and Medical 
Review Officers must use the nomenclature (i.e., analyte names and 
abbreviations) published in the Federal Register with the drug and 
biomarker testing panels to report Federal workplace drug test results.

Section 3.5 May an HHS-certified laboratory perform additional drug 
and/or specimen validity tests on a specimen at the request of the 
Medical Review Officer (MRO)?

    An HHS-certified laboratory is authorized to perform additional 
drug and/or specimen validity tests on a case-by-case basis as 
necessary to provide information that the MRO would use to report a 
verified drug test result (e.g., tetrahydrocannabivarin, specimen 
validity tests). An HHS-certified laboratory is not authorized to 
routinely perform additional drug and/or specimen validity tests at the 
request of an MRO without prior authorization from the Secretary or 
designated HHS representative, with the exception of the determination 
of d,l stereoisomers of amphetamine and methamphetamine. All tests must 
meet appropriate validation and quality control requirements in 
accordance with these Guidelines.

Section 3.6 What criteria are used to report a urine specimen as 
adulterated?

    An HHS-certified laboratory reports a primary (A) specimen as 
adulterated when:
    (a) The pH is less than 4 or equal to or greater than 11 using 
either a pH meter or a colorimetric pH test for the initial test on the 
first aliquot and a pH meter for the confirmatory test on the second 
aliquot;
    (b) The nitrite concentration is equal to or greater than 500 mcg/
mL using either a nitrite colorimetric test or a general oxidant 
colorimetric test for the initial test on the first aliquot and a 
different confirmatory test (e.g., multi-wavelength spectrophotometry, 
ion chromatography, capillary electrophoresis) on the second aliquot;
    (c) The presence of chromium (VI) is verified using either a 
general oxidant colorimetric test (with an equal to or greater than 50 
mcg/mL chromium (VI)-equivalent cutoff) or a chromium (VI) colorimetric 
test (chromium (VI) concentration equal to or greater than 50 mcg/mL) 
for the initial test on the first aliquot and a different confirmatory 
test (e.g., multi-wavelength spectrophotometry, ion chromatography, 
atomic absorption spectrophotometry, capillary electrophoresis, 
inductively coupled plasma-mass spectrometry) with the chromium (VI) 
concentration equal to or greater than the LOQ of the confirmatory test 
on the second aliquot;
    (d) The presence of a halogen (e.g., chlorine from bleach, iodine, 
fluoride) is verified using either a general oxidant colorimetric test 
(with an equal to or great than 200 mcg/mL nitrite-equivalent cutoff or 
an equal to or great than 50 mcg/mL chromium (VI)-equivalent cutoff) or 
halogen colorimetric test (halogen concentration equal to or greater 
than the LOQ) for the initial test on the first aliquot and a different 
confirmatory test (e.g., multi-wavelength spectrophotometry, ion 
chromatography, inductively coupled plasma-mass spectrometry) with a 
specific halogen concentration equal to or greater than the LOQ of the 
confirmatory test on the second aliquot;
    (e) The presence of glutaraldehyde is verified using either an 
aldehyde test (aldehyde present) or the characteristic immunoassay 
response on one or more drug immunoassay tests for the initial test on 
the first aliquot and a different confirmatory test (e.g., GC/MS) for 
the confirmatory test with the glutaraldehyde concentration equal to or 
greater than the LOQ of the analysis on the second aliquot;
    (f) The presence of pyridine (pyridinium chlorochromate) is 
verified using either a general oxidant colorimetric test (with an 
equal to or greater than 200 mcg/mL nitrite-equivalent cutoff or an 
equal to or greater than 50 mcg/mL chromium (VI)-equivalent cutoff) or 
a chromium (VI) colorimetric test (chromium (VI) concentration equal to 
or greater than 50 mcg/mL) for the initial test on the first aliquot 
and a different confirmatory test (e.g., GC/MS) for the confirmatory 
test with the pyridine concentration equal to or greater than the LOQ 
of the analysis on the second aliquot;

[[Page 70782]]

    (g) The presence of a surfactant is verified by using a surfactant 
colorimetric test with an equal to or greater than 100 mcg/mL 
dodecylbenzene sulfonate-equivalent cutoff for the initial test on the 
first aliquot and a different confirmatory test (e.g., multi-wavelength 
spectrophotometry) with an equal to or greater than 100 mcg/mL 
dodecylbenzene sulfonate-equivalent cutoff on the second aliquot; or
    (h) The presence of any other adulterant not specified in 
paragraphs (b) through (g) of this section is verified using an initial 
test on the first aliquot and a different confirmatory test on the 
second aliquot.

Section 3.7 What criteria are used to report a urine specimen as 
substituted?

    An HHS-certified laboratory reports a primary (A) specimen as 
substituted when:
    (a) The creatinine concentration is less than 2 mg/dL on both the 
initial and confirmatory creatinine tests on two separate aliquots 
(i.e., the same colorimetric test may be used to test both aliquots) 
and the specific gravity is less than or equal to 1.0010 or equal to or 
greater than 1.0200 on both the initial and confirmatory specific 
gravity tests on two separate aliquots (i.e., a refractometer is used 
to test both aliquots), or
    (b) A biomarker is not detected or is present at a concentration 
inconsistent with that established for human urine for both the initial 
(first) test and the confirmatory (second) test on two separate 
aliquots (i.e., using the test analytes and cutoffs listed in the 
biomarker testing panel).

Section 3.8 What criteria are used to report a urine specimen as 
dilute?

    A dilute result may be reported only in conjunction with the 
positive or negative drug test results for a specimen.
    (a) An HHS-certified laboratory or an HHS-certified IITF reports a 
primary (A) specimen as dilute when the creatinine concentration is 
greater than 5 mg/dL but less than 20 mg/dL and the specific gravity is 
equal to or greater than 1.002 but less than 1.003 on a single aliquot.
    (b) In addition, an HHS-certified laboratory reports a primary (A) 
specimen as dilute when the creatinine concentration is equal to or 
greater than 2 mg/dL but less than 20 mg/dL and the specific gravity is 
greater than 1.0010 but less than 1.0030.

Section 3.9 What criteria are used to report an invalid result for a 
urine specimen?

    An HHS-certified laboratory reports a primary (A) specimen as an 
invalid result when:
    (a) Inconsistent creatinine concentration and specific gravity 
results are obtained (i.e., the creatinine concentration is less than 2 
mg/dL on both the initial and confirmatory creatinine tests and the 
specific gravity is greater than 1.0010 but less than 1.0200 on the 
initial and/or confirmatory specific gravity test, the specific gravity 
is less than or equal to 1.0010 on both the initial and confirmatory 
specific gravity tests and the creatinine concentration is equal to or 
greater than 2 mg/dL on either or both the initial or confirmatory 
creatinine tests);
    (b) The pH is equal to or greater than 4 and less than 4.5 or equal 
to or greater than 9 and less than 11 using either a colorimetric pH 
test or pH meter for the initial test and a pH meter for the 
confirmatory test on two separate aliquots;
    (c) The nitrite concentration is equal to or greater than 200 mcg/
mL using a nitrite colorimetric test or equal to or greater than the 
equivalent of 200 mcg/mL nitrite using a general oxidant colorimetric 
test for both the initial (first) test and the second test or using 
either initial test and the nitrite concentration is equal to or 
greater than 200 mcg/mL but less than 500 mcg/mL for a different 
confirmatory test (e.g., multi-wavelength spectrophotometry, ion 
chromatography, capillary electrophoresis) on two separate aliquots;
    (d) The possible presence of chromium (VI) is determined using the 
same chromium (VI) colorimetric test with a cutoff equal to or greater 
than 50 mcg/mL chromium (VI) for both the initial (first) test and the 
second test on two separate aliquots;
    (e) The possible presence of a halogen (e.g., chlorine from bleach, 
iodine, fluoride) is determined using the same halogen colorimetric 
test with a cutoff equal to or greater than the LOQ for both the 
initial (first) test and the second test on two separate aliquots or 
relying on the odor of the specimen as the initial test;
    (f) The possible presence of glutaraldehyde is determined by using 
the same aldehyde test (aldehyde present) or characteristic immunoassay 
response on one or more drug immunoassay tests for both the initial 
(first) test and the second test on two separate aliquots;
    (g) The possible presence of an oxidizing adulterant is determined 
by using the same general oxidant colorimetric test (with an equal to 
or greater than 200 mcg/mL nitrite-equivalent cutoff, an equal to or 
greater than 50 mcg/mL chromium (VI)-equivalent cutoff, or a halogen 
concentration is equal to or greater than the LOQ) for both the initial 
(first) test and the second test on two separate aliquots;
    (h) The possible presence of a surfactant is determined by using 
the same surfactant colorimetric test with an equal to greater than 100 
mcg/mL dodecylbenzene sulfonate-equivalent cutoff for both the initial 
(first) test and the second test on two separate aliquots or a foam/
shake test for the initial test;
    (i) Interference occurs on the initial drug tests on two separate 
aliquots (i.e., valid initial drug test results cannot be obtained);
    (j) Interference with the confirmatory drug test occurs on two 
separate aliquots of the specimen and the laboratory is unable to 
identify the interfering substance;
    (k) The physical appearance of the specimen (e.g., viscosity) is 
such that testing the specimen may damage the laboratory's instruments;
    (l) The specimen has been tested and the appearances of the primary 
(A) and the split (B) specimens (e.g., color) are clearly different; or
    (m) A specimen validity test (i.e., other than the tests listed 
above) on two separate aliquots of the specimen indicates that the 
specimen is not valid for testing.

Subpart D--Collectors

Section 4.1 Who may collect a specimen?

    (a) A collector who has been trained to collect urine specimens in 
accordance with these Guidelines.
    (b) The immediate supervisor of a Federal employee donor may only 
collect that donor's specimen when no other collector is available. The 
supervisor must be a trained collector.
    (c) The hiring official of a Federal agency applicant may only 
collect that Federal agency applicant's specimen when no other 
collector is available. The hiring official must be a trained 
collector.

Section 4.2 Who may not collect a specimen?

    (a) A Federal agency employee who is in a testing designated 
position and subject to the Federal agency drug testing rules must not 
be a collector for co-workers in the same testing pool or

[[Page 70783]]

who work with that employee on a daily basis.
    (b) A Federal agency applicant or employee must not collect their 
own drug testing specimen.
    (c) An employee working for an HHS-certified laboratory or IITF 
must not act as a collector if the employee could link the identity of 
the donor to the donor's drug test result.
    (d) To avoid a potential conflict of interest, a collector must not 
be related to the employee (e.g., spouse, ex-spouse, relative) or be a 
personal friend of the employee (e.g., fiancée).

Section 4.3 What are the requirements to be a collector?

    (a) An individual may serve as a collector if they fulfill the 
following conditions:
    (1) Is knowledgeable about the collection procedure described in 
these Guidelines;
    (2) Is knowledgeable about any guidance provided by the Federal 
agency's Drug-Free Workplace Program and additional information 
provided by the Secretary relating to the collection procedure 
described in these Guidelines;
    (3) Is trained and qualified to collect a urine specimen. Training 
must include the following:
    (i) All steps necessary to complete a urine collection;
    (ii) Completion and distribution of the Federal CCF;
    (iii) Problem collections;
    (iv) Fatal flaws, correctable flaws, and how to correct problems in 
collections; and
    (v) The collector's responsibility for maintaining the integrity of 
the collection process, ensuring the privacy of the donor, ensuring the 
security of the specimen, and avoiding conduct or statements that could 
be viewed as offensive or inappropriate.
    (4) Has demonstrated proficiency in collections by completing five 
consecutive error-free mock collections.
    (i) The five mock collections must include one uneventful 
collection scenario, one insufficient specimen quantity scenario, one 
temperature out of range scenario, one scenario in which the donor 
refuses to sign the Federal CCF, and one scenario in which the donor 
refuses to initial the specimen bottle tamper-evident seal.
    (ii) A qualified trainer for collectors must monitor and evaluate 
the individual being trained, in person or by a means that provides 
real-time observation and interaction between the trainer and the 
trainee, and the trainer must attest in writing that the mock 
collections are error-free.
    (b) A trained collector must complete refresher training at least 
every five years that includes the requirements in Section 4.3(a).
    (c) The collector must maintain the documentation of their training 
and provide that documentation to a Federal agency when requested.
    (d) An individual may not collect specimens for a Federal agency 
until the individual's training as a collector has been properly 
documented.

Section 4.4 What are the requirements to be an observer for a direct 
observed collection?

    (a) An individual may serve as an observer for a direct observed 
collection when the individual has satisfied the requirements:
    (1) Is knowledgeable about the direct observed collection procedure 
described in Section 8.9;
    (2) Is knowledgeable about any guidance provided by the Federal 
agency's Drug-Free Workplace Program or additional information provided 
by the Secretary relating to the direct observed collection procedure 
described in these Guidelines;
    (3) Has received training on the following subjects:
    (i) All steps necessary to perform a direct observed collection; 
and
    (ii) The observer's responsibility for maintaining the integrity of 
the collection process, ensuring the privacy of individuals being 
tested, ensuring that the observation is done in a professional manner 
that minimizes the discomfort to the employee so observed, ensuring the 
security of the specimen by maintaining visual contact with the 
collection container until it is delivered to the collector, and 
avoiding conduct or statements that could be viewed as offensive or 
inappropriate.
    (b) The gender of the observer must be the same as the donor's 
gender, which is determined by the donor's gender identity. The 
observer selection process is described in Section 8.10(b).
    (c) The observer is not required to be a trained collector.

Section 4.5 What are the requirements to be a trainer for collectors?

    (a) Individuals are considered qualified trainers for collectors 
and may train others to collect urine specimens when they have 
completed the following:
    (1) Qualified as a trained collector and regularly conducted urine 
drug test collections for a period of at least one year; or
    (2) Completed a ``train the trainer'' course given by an 
organization (e.g., manufacturer, private entity, contractor, Federal 
agency).
    (b) A qualified trainer for collectors must complete refresher 
training at least every five years in accordance with the collector 
requirements in Section 4.3(a).
    (c) A qualified trainer for collectors must maintain the 
documentation of the trainer's training and provide that documentation 
to a Federal agency when requested.

Section 4.6 What must a Federal agency do before a collector is 
permitted to collect a specimen?

    A Federal agency must ensure the following:
    (a) The collector has satisfied the requirements described in 
Section 4.3;
    (b) The collector, who may be self-employed, or an organization 
(e.g., third party administrator that provides a collection service, 
collector training company, Federal agency that employs its own 
collectors) maintains a copy of the training record(s); and
    (c) The collector has been provided the name and telephone number 
of the Federal agency representative.

Subpart E--Collection Sites

Section 5.1 Where can a collection for a drug test take place?

    (a) A collection site may be a permanent or temporary facility 
located either at the work site or at a remote site.
    (b) In the event that an agency-designated collection site is not 
accessible and there is an immediate requirement to collect a urine 
specimen (e.g., an accident investigation), a public restroom may be 
used for the collection, using the procedures for a monitored 
collection described in Section 8.12.

Section 5.2 What are the requirements for a collection site?

    The facility used as a collection site must have the following:
    (a) Provisions to ensure donor privacy during the collection (as 
described in Section 8.1);
    (b) A suitable and clean surface area that is not accessible to the 
donor for handling the specimens and completing the required paperwork;
    (c) A secure temporary storage area to maintain specimens until the 
specimen is transferred to an HHS-certified laboratory or IITF;
    (d) A restricted access area where only authorized personnel may be 
present during the collection;
    (e) A restricted access area for the storage of collection 
supplies;
    (f) A restricted access area for the secure storage of records; and
    (g) The ability to restrict the donor access to potential diluents 
in accordance with Section 8.2.

[[Page 70784]]

Section 5.3 Where must collection site records be stored?

    Collection site records must be stored at a secure site designated 
by the collector or the collector's employer.

Section 5.4 How long must collection site records be stored?

    Collection site records (e.g., collector copies of the OMB-approved 
Federal CCF) must be stored securely for a minimum of 2 years. The 
collection site may convert hardcopy records to electronic records for 
storage and discard the hardcopy records after 6 months.

Section 5.5 How does the collector ensure the security and integrity of 
a specimen at the collection site?

    (a) A collector must do the following to maintain the security and 
integrity of a specimen:
    (1) Not allow unauthorized personnel to enter the collection area 
during the collection procedure;
    (2) Perform only one donor collection at a time;
    (3) Restrict access to collection supplies before, during, and 
after collection;
    (4) Ensure that only the collector and the donor are allowed to 
handle the unsealed specimen;
    (5) Ensure the chain of custody process is maintained and 
documented throughout the entire collection, storage, and transport 
procedures;
    (6) Ensure that the Federal CCF is completed and distributed as 
required; and
    (7) Ensure that specimens transported to an HHS-certified 
laboratory or IITF are sealed and placed in transport containers 
designed to minimize the possibility of damage during shipment (e.g., 
specimen boxes, padded mailers, or other suitable shipping container), 
and those containers are securely sealed to eliminate the possibility 
of undetected tampering;
    (b) Couriers, express carriers, and postal service personnel are 
not required to document chain of custody since specimens are sealed in 
packages that would indicate tampering during transit to the HHS-
certified laboratory or IITF.

Section 5.6 What are the privacy requirements when collecting a urine 
specimen?

    Collections must be performed at a site that provides reasonable 
privacy (as described in Section 8.1).

Subpart F--Federal Drug Testing Custody and Control Form

Section 6.1 What Federal form is used to document custody and control?

    The OMB-approved Federal CCF must be used to document custody and 
control of each specimen at the collection site.

Section 6.2 What happens if the correct OMB-approved Federal CCF is not 
available or is not used?

    (a) The use of a non-Federal CCF or an expired Federal CCF is not, 
by itself, a reason for the HHS-certified laboratory or IITF to 
automatically reject the specimen for testing or for the MRO to cancel 
the test.
    (b) If the collector does not use the correct OMB-approved Federal 
CCF, the collector must document that it is a Federal agency specimen 
collection and provide the reason that the incorrect form was used. 
Based on the information provided by the collector, the HHS-certified 
laboratory or IITF must handle and test the specimen as a Federal 
agency specimen.
    (c) If the HHS-certified laboratory, HHS-certified IITF, or MRO 
discovers that the collector used an incorrect form, the laboratory, 
IITF, or MRO must obtain a memorandum for the record from the collector 
describing the reason the incorrect form was used. If a memorandum for 
the record cannot be obtained, the laboratory or IITF reports a 
rejected for testing result to the MRO and the MRO cancels the test. 
The HHS-certified laboratory or IITF must wait at least 5 business days 
while attempting to obtain the memorandum before reporting a rejected 
for testing result to the MRO.

Subpart G--Urine Specimen Collection Containers and Bottles

Section 7.1 What is used to collect a urine specimen?

    A single-use collection container with a means (i.e., thermometer) 
to measure urine temperature and two specimen bottles must be used.

Section 7.2 What are the requirements for a urine collection container 
and specimen bottles?

    (a) The collection container, the thermometer, and the specimen 
bottles must not substantially affect the composition of drugs and/or 
metabolites in the urine specimen.
    (b) The two specimen bottles must be sealable and non-leaking, and 
must maintain the integrity of the specimen during storage and 
transport so that the specimen contained therein can be tested in an 
HHS-certified laboratory or IITF for the presence of drugs or their 
metabolites.
    (c) The two specimen bottles must be sufficiently transparent 
(e.g., translucent) to enable an objective assessment of specimen 
appearance and identification of abnormal physical characteristics 
without opening the bottle.
    Section 7.3 What are the minimum performance requirements for a 
urine collection container and specimen bottles?
    (a) The collection container must be capable of holding at least 55 
mL and have a volume marking clearly noting a level of 45 mL.
    (b) One of the two specimen bottles must be capable of holding at 
least 35 mL and the other at least 20 mL, and each must have a volume 
marking clearly noting the appropriate level (30 mL for the primary 
specimen and 15 mL for the split specimen).
    (c) The thermometer may be affixed to or built into the collection 
container and must provide graduated temperature readings from 32-38 
[deg]C/90-100 [deg]F. Alternatively, the collector may use another 
technology to measure specimen temperature (e.g., thermal radiation 
scanning), providing the thermometer does not come into contact with 
the specimen.

Subpart H--Urine Specimen Collection Procedure

Section 8.1 What privacy must the donor be given when providing a urine 
specimen?

    The following privacy requirements apply when a donor is providing 
a urine specimen:
    (a) Only authorized personnel and the donor may be present in the 
restricted access area where the collection takes place.
    (b) The collector is not required to be the same gender as the 
donor. The gender of the observer for purposes of a direct observed 
collection (i.e., as described in Section 8.10) must be the same as the 
donor's gender, which is determined by the donor's gender identity. The 
gender of the monitor for a monitored collection (i.e., as described in 
Section 8.12) must be the same as the donor's gender, unless the 
monitor is a medical professional (e.g., nurse, doctor, physician's 
assistant, technologist, or technician licensed or certified to 
practice in the jurisdiction in which the collection takes place).
    (c) The collector must give the donor visual privacy while 
providing the specimen. The donor is allowed to provide a urine 
specimen in an enclosed

[[Page 70785]]

stall within a multi-stall restroom or in a single person restroom 
during a monitored collection.

Section 8.2 What must the collector ensure at the collection site 
before starting a urine specimen collection?

    The collector must deter the dilution or substitution of a specimen 
at the collection site by:
    (a) Placing a toilet bluing agent in a toilet bowl or toilet tank, 
so the reservoir of water in the toilet bowl always remains blue. If no 
bluing agent is available or if the toilet has an automatic flushing 
system, the collector shall turn the water supply off to the toilet and 
flush the toilet to remove the water in the toilet when possible.
    (b) Secure other sources of water (e.g., shower or sink) in the 
enclosure where urination occurs. If the enclosure has a source of 
water that cannot be disabled or secured, a monitored collection must 
be conducted in accordance with Section 8.11.

Section 8.3 What are the preliminary steps in the urine specimen 
collection procedure?

    The collector must take the following steps before beginning a 
urine specimen collection:
    (a) If a donor fails to arrive at the collection site at the 
assigned time, the collector must follow the Federal agency policy or 
contact the Federal agency representative to obtain guidance on action 
to be taken.
    (b) When the donor arrives at the collection site, the collector 
should begin the collection procedure without undue delay. For example, 
the collection should not be delayed because the donor states that they 
are unable to urinate or an authorized employer or employer 
representative is late in arriving.
    (c) The collector requests the donor to present photo 
identification (e.g., driver's license; employee badge issued by the 
employer; an alternative photo identification issued by a Federal, 
state, or local government agency). If the donor does not have proper 
photo identification, the collector shall contact the supervisor of the 
donor or the Federal agency representative who can positively identify 
the donor. If the donor's identity cannot be established, the collector 
must not proceed with the collection.
    (d) The collector must provide identification (e.g., employee 
badge, employee list) if requested by the donor.
    (e) The collector explains the basic collection procedure to the 
donor.
    (f) The collector provides the instructions for completing the 
Federal CCF for the donor's review, and informs the donor that the 
instructions are available upon request.
    (g) The collector answers any reasonable and appropriate questions 
the donor may have regarding the collection procedure.
    (h) The collector asks the donor to remove any unnecessary outer 
garments (e.g., coat, jacket) that might conceal items or substances 
that could be used to adulterate or substitute the urine specimen. The 
collector must ensure that all personal belongings (e.g., purse or 
briefcase) remain with the outer garments. The donor may retain the 
donor's wallet. The donor is not required to remove any items worn for 
faith-based reasons.
    (i) The collector asks the donor to empty the donor's pockets and 
display the contents to ensure no items are present that could be used 
to adulterate or substitute the specimen.
    (1) If no items are present that can be used to adulterate, 
substitute, or dilute the specimen, the collector instructs the donor 
to return the items to their pockets and continues the collection 
procedure.
    (2) If an item is present whose purpose is to adulterate, 
substitute, or dilute the specimen (e.g., a commercial drug culture 
product or other substance for which the donor has no reasonable 
explanation), this is considered a refusal to test. The collector must 
stop the collection and report the refusal to test as described in 
Section 8.13.
    (3) If an item that could be used to adulterate, substitute, or 
dilute the specimen (e.g., common personal care products such as 
eyedrops, mouthwash, or hand sanitizer) appears to have been 
inadvertently brought to the collection site, the collector must secure 
the item and continue with the normal collection procedure.
    (4) If the donor refuses to show the collector the items in their 
pockets, this is considered a refusal to test. The collector must stop 
the collection and report the refusal to test as described in Section 
8.13.
    (j) The collector shall instruct the donor to wash and dry the 
donor's hands prior to urination. After washing the donor's hands, the 
donor must remain in the presence of the collector and must not have 
access to any water fountain, faucet, soap dispenser, cleaning agent, 
or any other materials which could be used to adulterate or substitute 
the specimen.
    (k) If the donor refuses to wash their hands when instructed by the 
collector, this is considered a ``refusal to test.'' The collector must 
stop the collection and report the refusal to test as described in 
Section 8.13.

Section 8.4 What steps does the collector take in the collection 
procedure before the donor provides a urine specimen?

    (a) The collector will provide or the donor may select a specimen 
collection container that is clean, unused, wrapped/sealed in original 
packaging and compliant with subpart G of these Guidelines. The 
specimen collection container package will be opened in view of the 
donor.
    (b)The collector instructs the donor to provide the specimen in the 
privacy of a stall or otherwise partitioned area that allows for 
individual privacy. The collector directs the donor to provide a 
specimen of at least 45 mL, to not flush the toilet, and to return with 
the specimen as soon as the donor has completed the void.
    (1) Except in the case of a direct observed collection (i.e., as 
described in Section 8.10) or a monitored collection (i.e., as 
described in Section 8.12), neither the collector nor anyone else may 
go into the room with the donor.
    (2) The collector may set a reasonable time limit for specimen 
collection.
    (c) The collector notes any unusual behavior or appearance of the 
donor on the Federal CCF. If the collector detects any conduct that 
clearly indicates an attempt to tamper with a specimen (e.g., 
substitute urine in plain view or an attempt to bring into the 
collection site an adulterant or urine substitute), the collector must 
report a refusal to test in accordance with Section 8.13.

Section 8.5 What steps does the collector take during and after the 
urine specimen collection procedure?

    Integrity and Identity of the Specimen. The collector must take the 
following steps during and after the donor provides the urine specimen:
    (a) The collector must inform the donor that, once the collection 
procedure has begun, the donor must remain at the collection site 
(i.e., in an area designated by the collector) until the collection is 
complete and that failure to follow these instructions will be reported 
as a refusal to test. This includes the wait period (i.e., up to 3 
hours) if needed to provide a sufficient specimen as described in 
Sections 8.5(f)(2) and 8.6.
    (b) After providing the specimen, the donor gives the specimen 
collection container to the collector. Both the donor and the collector 
must keep the specimen container in view at all times until the 
collector seals the specimen bottles as described in Section 8.8.

[[Page 70786]]

    (c) After the donor has given the specimen to the collector, 
whenever practical, the donor shall be allowed to wash the donor's 
hands and the donor may flush the toilet.
    (d) The collector must measure the temperature of the specimen 
within 4 minutes of receiving the specimen from the donor. The 
collector records on the Federal CCF whether or not the temperature is 
in the acceptable range of 32[deg]-38[deg]C/90[deg]-100 [deg]F.
    (1) The temperature measuring device must accurately reflect the 
temperature of the specimen and not contaminate the specimen.
    (2) If the temperature of the specimen is outside the range of 
32[deg]-38[deg]C/90[deg]-100 [deg]F, that is a reason to believe that 
the donor may have adulterated or substituted the specimen. Another 
specimen must be collected under direct observation in accordance with 
Section 8.9. The collector must forward both specimens (i.e., from the 
first and second collections) to an HHS-certified laboratory for 
testing and record a comment on the Federal CCF for each specimen.
    (e) The collector must inspect the specimen to determine if there 
is any sign indicating that the specimen may not be a valid urine 
specimen (e.g., unusual color, presence of foreign objects or material, 
unusual odor).
    (1) The collector notes any unusual finding on the Federal CCF. A 
specimen suspected of not being a valid urine specimen must be 
forwarded to an HHS-certified laboratory for testing.
    (2) When there is any reason to believe that a donor may have 
adulterated or substituted the specimen, another specimen must be 
obtained as soon as possible under direct observation in accordance 
with Section 8.10. The collector must forward both specimens (i.e., 
from the first and second collections) to an HHS-certified laboratory 
for testing and record a comment on the Federal CCF for each specimen.
    (f) The collector must determine the volume of urine in the 
specimen container. The collector must never combine urine collected 
from separate voids to create a specimen.
    (1) If the volume is at least 45 mL, the collector will proceed 
with steps described in Section 8.8.
    (2) If the volume is less than 45 mL, the collector discards the 
specimen and immediately collects a second specimen using the same 
procedures as for the first specimen (including steps in Section 8.5(c) 
and (d)).
    (i) The collector may give the donor a reasonable amount of liquid 
to drink for this purpose (e.g., an 8 ounce glass of water every 30 
minutes, but not to exceed a maximum of 40 ounces over a period of 3 
hours or until the donor has provided a sufficient urine specimen). 
However, the donor is not required to drink any fluids during this 
waiting time.
    (ii) If the donor provides a sufficient urine specimen (i.e., at 
least 45 mL), the collector proceeds with steps described in Section 
8.8.
    (iii) If the employee has not provided a sufficient specimen (i.e., 
at least 45 mL) within three hours of the first unsuccessful attempt to 
provide the specimen, the collector records the reason for not 
collecting a urine specimen on the Federal CCF, notifies the Federal 
agency's designated representative for authorization to collect an 
alternate specimen, and sends the appropriate copies of the Federal CCF 
to the MRO and to the Federal agency's designated representative. The 
Federal agency may choose to provide the collection site with a 
standard protocol to follow in lieu of requiring the collector to 
notify the agency's designated representative for authorization in each 
case. If an alternate specimen is authorized, the collector may begin 
the collection procedure for the alternate specimen (see Section 8.7) 
in accordance with the Mandatory Guidelines for Federal Workplace Drug 
Testing Programs using the alternate specimen.
    (g) If the donor fails to remain present through the completion of 
the collection, declines to have a direct observed collection as 
required in Section 8.5(d)(2) or (e)(2), refuses to provide a second 
specimen as required in Section 8.5(f)(2), or refuses to provide an 
alternate specimen as authorized in Section 8.5(f)(2)(iii), the 
collector stops the collection and reports the refusal to test in 
accordance with Section 8.13.

Section 8.6 What procedure is used when the donor states that they are 
unable to provide a urine specimen?

    (a) If the donor states that they are unable to provide a urine 
specimen during the collection process, the collector requests that the 
donor enter the restroom (stall) and attempt to provide a urine 
specimen.
    (b) The donor demonstrates their inability to provide a specimen 
when he or she comes out of the stall with an empty collection 
container.
    (1) If the donor states that they could provide a specimen after 
drinking some fluids, the collector gives the donor a reasonable amount 
of liquid to drink for this purpose (e.g., an 8 ounce glass of water 
every 30 minutes, but not to exceed a maximum of 40 ounces over a 
period of 3 hours or until the donor has provided a sufficient urine 
specimen). If the donor simply needs more time before attempting to 
provide a urine specimen, the donor may choose not to drink any fluids 
during the 3 hour wait time.
    (2) If the donor states that they are unable to provide a urine 
specimen, the collector records the reason for not collecting a urine 
specimen on the Federal CCF, notifies the Federal agency's designated 
representative for authorization to collect an alternate specimen, and 
sends the appropriate copies of the Federal CCF to the MRO and to the 
Federal agency's designated representative. The Federal agency may 
choose to provide the collection site with a standard protocol to 
follow in lieu of requiring the collector to notify the agency's 
designated representative for authorization in each case. If an 
alternate specimen is authorized, the collector may begin the 
collection procedure for the alternate specimen (see Section 8.7) in 
accordance with the Mandatory Guidelines for Federal Workplace Drug 
Testing Programs using the alternate specimen.

Section 8.7 If the donor is unable to provide a urine specimen, may 
another specimen type be collected for testing?

    Yes, if the alternate specimen type is authorized by Mandatory 
Guidelines for Federal Workplace Drug Testing Programs and specifically 
authorized by the Federal agency.

Section 8.8 How does the collector prepare the urine specimens?

    (a) All Federal agency collections are to be split specimen 
collections.
    (b) The collector, in the presence of the donor, pours the urine 
from the collection container into two specimen bottles to be labeled 
``A'' and ``B''. The collector pours at least 30 mL of urine into 
Bottle A and at least 15 mL into Bottle B, and caps each bottle.
    (c) In the presence of the donor, the collector places a tamper-
evident label/seal from the Federal CCF over each specimen bottle cap. 
The collector records the date of the collection on the tamper-evident 
labels/seals.
    (d) The collector instructs the donor to initial the tamper-evident 
labels/seals on each specimen bottle. If the donor refuses to initial 
the labels/seals, the collector notes the refusal on the Federal CCF 
and continues with the collection process.
    (e) The collector must ensure that all required information is 
included on the Federal CCF.
    (f) The collector asks the donor to read and sign a statement on 
the Federal

[[Page 70787]]

CCF certifying that the specimens identified were collected from the 
donor. If the donor refuses to sign the certification statement, the 
collector notes the refusal on the Federal CCF and continues with the 
collection process.
    (g) The collector signs and prints their name on the Federal CCF, 
completes the Federal CCF, and distributes the copies of the Federal 
CCF as required.
    (h) The collector seals the specimens (Bottle A and Bottle B) in a 
package and, within 24 hours or during the next business day, sends 
them to the HHS-certified laboratory or IITF that will be testing the 
Bottle A urine specimen.
    (i) If the specimen and Federal CCF are not immediately transported 
to an HHS-certified laboratory or IITF, they must remain under direct 
control of the collector or be appropriately secured under proper 
specimen storage conditions until transported.
    (j) The collector must discard any urine left over in the 
collection container after both specimen bottles have been 
appropriately filled and sealed. There is one exception to this 
requirement: the collector may use excess urine to conduct clinical 
tests (e.g., protein, glucose) if the collection was conducted in 
conjunction with a physical examination required by Federal agency 
regulation. Neither the collector nor anyone else may conduct further 
testing (such as specimen validity testing) on the excess urine.

Section 8.9 When is a direct observed collection conducted?

    A direct observed collection procedure must be conducted when:
    (a) The agency has authorized a direct observed collection because:
    (1) The donor's previous drug test result was reported by an MRO as 
positive, adulterated, or substituted; or
    (2) The HHS-certified laboratory reports to the MRO that a specimen 
is invalid, and the MRO reported to the agency that there was not a 
legitimate medical explanation for the result; or
    (3) The MRO reported to the agency that the primary (A) specimen 
was positive, adulterated, or substituted but the test was cancelled 
because the split (B) specimen could not be tested or the split 
specimen failed to reconfirm the primary specimen result; or
    (b) At the collection site, an immediate collection of a second 
urine specimen is required because:
    (1) The temperature of the specimen collected during a routine 
collection is outside the acceptable temperature range; or
    (2) The collector suspects that the donor has tampered with the 
specimen during a routine collection (e.g., abnormal physical 
characteristic such as unusual color and/or odor, and/or excessive 
foaming when shaken).
    (c) The collector must contact a collection site supervisor to 
review and concur in advance with any decision by the collector to 
obtain a specimen under direct observation.
    (d) If the donor declines to have a direct observed collection, the 
collector reports a refusal to test (i.e., as described in Section 
8.13).

Section 8.10 How is a direct observed collection conducted?

    (a) A direct observed collection procedure is the same as that for 
a routine collection, except an observer watches the donor urinate into 
the collection container. The observer's gender must be the same as the 
donor's gender, which is determined by the donor's gender identity, 
with no exception to this requirement.
    (b) Before an observer is selected, the collector informs the donor 
that the gender of the observer will match the donor's gender, which is 
determined by the donor's gender identity (as defined in Section 1.5). 
The collector then selects the observer to conduct the observation:
    (i) The collector asks the donor to identify the donor's gender on 
the Federal CCF and initial it.
    (ii) The donor will then be provided an observer whose gender 
matches the donor's gender.
    (iii) The collector documents the observer's name and gender on the 
Federal CCF.
    (c) If there is no collector available of the same gender as the 
donor's gender, the collector or collection site supervisor shall 
select an observer trained in direct observed specimen collection as 
described in Section 4.4. The observer may be an individual that is not 
a trained collector.
    (d) At the point in a routine collection where the donor enters the 
restroom with the collection container, a direct observed collection 
includes the following additional steps:
    (1) The observer enters the restroom with the donor;
    (2) The observer must directly watch the urine go from the donor's 
body into the collection container (the use of mirrors or video cameras 
is not permitted);
    (3) The observer must not touch or handle the collection container 
unless the observer is also serving as the collector;
    (4) After the donor has completed urinating into the collection 
container:
    (i) If the same person serves as the observer and collector, that 
person may receive the collection container from the donor while they 
are both in the restroom;
    (ii) If the observer is not serving as the collector, the donor and 
observer leave the restroom and the donor hands the collection 
container directly to the collector. The observer must maintain visual 
contact of the collection container until the donor hands the container 
to the collector.
    (5) The collector checks the box for an observed collection on the 
Federal CCF and writes the name of the observer and the reason for an 
observed collection on the Federal CCF; and
    (6) The collector then continues with the routine collection 
procedure in Section 8.3.
    Section 8.11 When is a monitored collection conducted?
    (a) In the event that an agency-designated collection site is not 
available and there is an immediate requirement to collect a specimen 
(e.g., an accident investigation), a public restroom may be used for 
the collection, using the procedures for a monitored collection 
described in Section 8.12.
    (b) If the enclosure used by the donor to provide a specimen has a 
source of water that cannot be disabled or secured, a monitored 
collection must be conducted.
    (c) If the donor declines to permit a collection to be monitored 
when required, the collector reports a refusal to test (i.e., as 
described in Section 8.13).

Section 8.12 How is a monitored collection conducted?

    A monitored collection is the same as that for a routine 
collection, except that a monitor accompanies the donor into the 
restroom to check for signs that the donor may be tampering with the 
specimen. The monitor remains in the restroom, but outside the stall, 
while the donor is providing the specimen. A person of the same gender 
as the donor shall serve as the monitor, unless the monitor is a 
medical professional (e.g., nurse, doctor, physician's assistant, 
technologist, or technician licensed or certified to practice in the 
jurisdiction in which the collection takes place). The same procedures 
used for selecting an observer of the appropriate gender in Section 
8.10(b) must be used to select the monitor for the purposes of Section 
8.12, unless the monitor is a medical professional as described above. 
The monitor may be an individual other than the collector and need not 
be a qualified collector.
    (a) The collector secures the restroom being used for the monitored 
collection so that no one except the employee and

[[Page 70788]]

the monitor can enter the restroom until after the collection has been 
completed.
    (b) The monitor enters the restroom with the donor.
    (c) The monitor must not watch the employee urinate into the 
collection container. If the monitor hears sounds or makes other 
observations indicating an attempt by the donor to tamper with a 
specimen, there must be an additional collection under direct 
observation in accordance with Section 8.9.
    (d) The monitor must not touch or handle the collection container 
unless the monitor is also the collector.
    (e) After the donor has completed urinating into the collection 
container:
    (1) If the same person serves as the monitor and collector, that 
person may receive the collection container from the donor while they 
are both in the restroom;
    (2) If the monitor is not serving as the collector, the donor and 
monitor leave the restroom and the donor hands the collection container 
directly to the collector. The monitor must ensure that the employee 
takes the collection container directly to the collector as soon as the 
employee has exited the enclosure.
    (f) If the monitor is not serving as the collector, the collector 
writes the name of the monitor on the Federal CCF.
    (g) The collector then continues with the routine collection 
procedure in Section 8.3.

Section 8.13 How does the collector report a donor's refusal to test?

    If there is a refusal to test as defined in Section 1.7, the 
collector stops the collection, discards any urine collected and 
reports the refusal to test by:
    (a) Notifying the Federal agency by means (e.g., telephone, email, 
or secure fax) that ensures that the notification is immediately 
received,
    (b) Documenting the refusal to test including the reason on the 
Federal CCF, and
    (c) Sending all copies of the Federal CCF to the Federal agency's 
designated representative.

Section 8.14 What are a Federal agency's responsibilities for a 
collection site?

    (a) A Federal agency must ensure that collectors and collection 
sites satisfy all requirements in subparts D, E, F, G, and H of these 
Guidelines.
    (b) A Federal agency (or only one Federal agency when several 
agencies are using the same collection site) must inspect 5 percent or 
up to a maximum of 50 collection sites each year, selected randomly 
from those sites used to collect agency specimens (e.g., virtual, 
onsite, or self-evaluation).
    (c) A Federal agency must investigate reported collection site 
deficiencies (e.g., specimens reported ``rejected for testing'' by an 
HHS-certified laboratory or IITF) and take appropriate action which may 
include a collection site self-assessment (i.e., using the Collection 
Site Checklist for the Collection of Urine Specimens for Federal agency 
Workplace Drug Testing Programs) or an inspection of the collection 
site. The inspections of these additional collection sites may be 
included in the 5 percent or maximum of 50 collection sites inspected 
annually.

Subpart I--HHS Certification of Laboratories and IITFs

Section 9.1 Who has the authority to certify laboratories and IITFs to 
test urine specimens for Federal agencies?

    (a) The Secretary has broad discretion to take appropriate action 
to ensure the full reliability and accuracy of drug testing and 
reporting, to resolve problems related to drug testing, and to enforce 
all standards set forth in these Guidelines. The Secretary has the 
authority to issue directives to any HHS-certified laboratory or IITF 
including suspending the use of certain analytical procedures when 
necessary to protect the integrity of the testing process; ordering any 
HHS-certified laboratory or IITF to undertake corrective actions to 
respond to material deficiencies identified by an inspection or through 
performance testing; ordering any HHS-certified laboratory or IITF to 
send specimens or specimen aliquots to another HHS-certified laboratory 
for retesting when necessary to ensure the accuracy of testing under 
these Guidelines; ordering the review of results for specimens tested 
under the Guidelines for private sector clients to the extent necessary 
to ensure the full reliability of drug testing for Federal agencies; 
and ordering any other action necessary to address deficiencies in drug 
testing, analysis, specimen collection, chain of custody, reporting of 
results, or any other aspect of the certification program.
    (b) A laboratory or IITF is prohibited from stating or implying 
that it is certified by HHS under these Guidelines to test urine 
specimens for Federal agencies unless it holds such certification.

Section 9.2 What is the process for a laboratory or IITF to become HHS-
certified?

    (a) A laboratory or IITF seeking HHS certification must:
    (1) Submit a completed OMB-approved application form (i.e., the 
applicant laboratory or IITF provides detailed information on both the 
administrative and analytical procedures to be used for federally 
regulated specimens);
    (2) Have its application reviewed as complete and accepted by HHS;
    (3) Successfully complete the PT challenges in 3 consecutive sets 
of initial PT samples;
    (4) Satisfy all the requirements for an initial inspection; and
    (5) Receive notification of certification from the Secretary before 
testing specimens for Federal agencies.

Section 9.3 What is the process for a laboratory or IITF to maintain 
HHS certification?

    (a) To maintain HHS certification, a laboratory or IITF must:
    (1) Successfully participate in both the maintenance PT and 
inspection programs (i.e., successfully test the required quarterly 
sets of maintenance PT samples, undergo an inspection 3 months after 
being certified, and undergo maintenance inspections at a minimum of 
every 6 months thereafter);
    (2) Respond in an appropriate, timely, and complete manner to 
required corrective action requests if deficiencies are identified in 
the maintenance PT performance, during the inspections, operations, or 
reporting; and
    (3) Satisfactorily complete corrective remedial actions, and 
undergo special inspection and special PT sets to maintain or restore 
certification when material deficiencies occur in either the PT 
program, inspection program, or in operations and reporting.

Section 9.4 What is the process when a laboratory or IITF does not 
maintain its HHS certification?

    (a) A laboratory or IITF that does not maintain its HHS 
certification must:
    (1) Stop testing federally regulated specimens;
    (2) Ensure the security of federally regulated specimens and 
records throughout the required storage period described in Sections 
11.20, 11.21, 12.18, and 14.8;
    (3) Ensure access to federally regulated specimens and records in 
accordance with Sections 11.23, 11.24, 12.20, and 12.21 and subpart P 
of these Guidelines; and
    (4) Follow the HHS suspension and revocation procedures when 
imposed by the Secretary, follow the HHS procedures in subpart P of 
these Guidelines that will be used for all actions associated with the 
suspension and/or revocation of HHS-certification.

[[Page 70789]]

Section 9.5 What are the qualitative and quantitative specifications of 
performance testing (PT) samples?

    (a) PT samples used to evaluate drug tests will be prepared using 
the following specifications:
    (1) PT samples may contain one or more of the drugs and drug 
metabolites in the drug classes listed in the drug testing panel and 
must satisfy one of the following parameters:
    (i) The concentration of a drug or metabolite will be at least 20 
percent above the initial test cutoff for the drug or drug metabolite;
    (ii) The concentration of a drug or metabolite may be as low as 40 
percent of the confirmatory test cutoff when the PT sample is 
designated as a retest sample; or
    (iii) The concentration of drug or metabolite may differ from 
Section 9.5(a)(1)(i) and (ii) for a special purpose.
    (2) A PT sample may contain an interfering substance, an 
adulterant, or other substances for special purposes, or may satisfy 
the criteria for a substituted specimen, dilute specimen, or invalid 
result.
    (3) A negative PT sample will not contain a measurable amount of a 
target analyte.
    (b) PT samples used to evaluate specimen validity tests shall 
satisfy, but are not limited to, one of the following criteria:
    (1) The nitrite concentration will be at least 20 percent above the 
cutoff;
    (2) The pH will be between 1.5 and 5.0 or between 8.5 and 12.5;
    (3) The concentration of an oxidant will be at a level sufficient 
to challenge a laboratory's ability to identify and confirm the 
oxidant;
    (4) The creatinine concentration will be between 0 and 20 mg/dL; or
    (5) The specific gravity will be less than or equal to 1.0050 or 
between 1.0170 and 1.0230.
    (c) For each PT cycle, the set of PT samples going to each HHS-
certified laboratory or IITF will vary but, within each calendar year, 
each HHS-certified laboratory or IITF will analyze essentially the same 
total set of samples.
    (d) The laboratory or IITF must (to the greatest extent possible) 
handle, test, and report a PT sample in a manner identical to that used 
for a donor specimen, unless otherwise specified.

Section 9.6 What are the PT requirements for an applicant laboratory 
that seeks to perform urine testing?

    (a) An applicant laboratory that seeks certification under these 
Guidelines to perform urine testing must satisfy the following criteria 
on three consecutive sets of PT samples:
    (1) Have no false positive results;
    (2) Correctly identify, confirm, and report at least 90 percent of 
the total drug challenges over the three sets of PT samples;
    (3) Correctly identify at least 80 percent of the drug challenges 
for each initial drug test over the three sets of PT samples;
    (4) For the confirmatory drug tests, correctly determine the 
concentrations (i.e., no more than 20 percent or 2 standard deviations [whichever is larger] from the appropriate 
reference or peer group means) for at least 80 percent of the total 
drug challenges over the three sets of PT samples;
    (5) For the confirmatory drug tests, do not obtain any drug 
concentration that differs by more than 50 percent from the 
appropriate reference or peer group mean;
    (6) For each confirmatory drug test, correctly identify and 
determine the concentrations (i.e., no more than 20 percent 
or 2 standard deviations [whichever is larger] from the 
appropriate reference or peer group means) for at least 50 percent of 
the drug challenges for an individual drug over the three sets of PT 
samples;
    (7) Correctly identify at least 80 percent of the total specimen 
validity testing challenges over the three sets of PT samples;
    (8) Correctly identify at least 80 percent of the challenges for 
each individual specimen validity test over the three sets of PT 
samples;
    (9) For quantitative specimen validity tests, obtain quantitative 
values for at least 80 percent of the total challenges over the three 
sets of PT samples that satisfy the following criteria:
    (i) Nitrite and creatinine concentrations are no more than 20 percent or 2 standard deviations from the 
appropriate reference or peer group mean; and
    (ii) pH values are no more than 0.3 pH units from the 
appropriate reference or peer group mean using a pH meter; and
    (iii) Specific gravity values are no more than 0.0003 
specific gravity units from the appropriate reference or peer group 
mean when the mean is less than 1.0100 and specific gravity values are 
no more than 0.0004 specific gravity units from the 
appropriate reference or peer group mean when the mean is equal to or 
greater than 1.0100;
    (10) Do not obtain any quantitative value on a specimen validity 
test PT sample that differs from the appropriate reference or peer 
group mean by more than 50 percent for nitrite and 
creatinine concentrations, 0.8 pH units using a pH meter, 
0.0006 specific gravity units when the mean is less than 
1.0100, or 0.0007 specific gravity units when the mean is 
equal to or greater than 1.0100; and
    (11) Do not report any sample as adulterated with a compound that 
is not present in the sample, adulterated based on pH when the 
appropriate reference or peer group mean is within the acceptable pH 
range, substituted when the appropriate reference or peer group means 
for both creatinine and specific gravity are within the acceptable 
range, or substituted when the appropriate reference or peer group mean 
for a biomarker is within the acceptable range.
    (b) Failure to satisfy these requirements will result in the denial 
of the laboratory's application for HHS certification to perform urine 
testing.

Section 9.7 What are the PT requirements for an HHS-certified urine 
laboratory?

    (a) A laboratory certified under these Guidelines to perform urine 
testing must satisfy the following criteria on the maintenance PT 
samples:
    (1) Have no false positive results;
    (2) Correctly identify, confirm, and report at least 90 percent of 
the total drug challenges over two consecutive PT cycles;
    (3) Correctly identify at least 80 percent of the drug challenges 
for each initial drug test over two consecutive PT cycles;
    (4) For the confirmatory drug tests, correctly determine that the 
concentrations for at least 80 percent of the total drug challenges are 
no more than 20 percent or 2 standard 
deviations (whichever is larger) from the appropriate reference or peer 
group means over two consecutive PT cycles;
    (5) For the confirmatory drug tests, do not obtain any drug 
concentration that differs by more than 50 percent from the 
appropriate reference or peer group means;
    (6) For each confirmatory drug test, correctly identify and 
determine that the concentrations for at least 50 percent of the drug 
challenges for an individual drug are no more than 20 
percent or 2 standard deviations (whichever is larger) from 
the appropriate reference or peer group means over two consecutive PT 
cycles;
    (7) Correctly identify at least 80 percent of the total specimen 
validity testing challenges over two consecutive PT cycles;
    (8) Correctly identify at least 80 percent of the challenges for 
each

[[Page 70790]]

individual specimen validity test over two consecutive PT cycles;
    (9) For quantitative specimen validity tests, obtain quantitative 
values for at least 80 percent of the total challenges over two 
consecutive PT cycles that satisfy the following criteria:
    (i) Nitrite and creatinine concentrations are no more than 20 percent or 2 standard deviations from the 
appropriate reference or peer group mean;
    (ii) pH values are no more than 0.3 pH units from the 
appropriate reference or peer group mean using a pH meter; and
    (iii) Specific gravity values are no more than 0.0003 
specific gravity units from the appropriate reference or peer group 
mean when the mean is less than 1.0100 and specific gravity values are 
no more than 0.0004 specific gravity units from the 
appropriate reference or peer group mean when the mean is equal to or 
greater than 1.0100;
    (10) Do not obtain any quantitative value on a specimen validity 
test PT sample that differs from the appropriate reference or peer 
group mean by more than 50 percent for nitrite and 
creatinine concentrations, 0.8 pH units using a pH meter, 
0.0006 specific gravity units when the mean is less than 
1.0100, or 0.0007 specific gravity units when the mean is 
equal to or greater than 1.0100; and
    (11) Do not report any PT sample as adulterated with a compound 
that is not present in the sample, adulterated based on pH when the 
appropriate reference or peer group mean is within the acceptable pH 
range, substituted when the appropriate reference or peer group means 
for both creatinine and specific gravity are within the acceptable 
range, or substituted when the appropriate reference or peer group mean 
for a biomarker is within the acceptable range.
    (b) Failure to participate in all PT cycles or to satisfy these 
requirements may result in suspension or revocation of an HHS-certified 
laboratory's certification.

Section 9.8 What are the PT requirements for an applicant IITF?

    (a) An applicant IITF that seeks certification under these 
Guidelines must satisfy the following criteria on three consecutive 
sets of PT samples:
    (1) Correctly identify at least 90 percent of the total drug 
challenges over the three sets of PT samples;
    (2) Correctly identify at least 80 percent of the drug challenges 
for each individual drug test over the three sets of PT samples;
    (3) Correctly identify at least 80 percent of the total specimen 
validity test challenges over the three sets of PT samples;
    (4) Correctly identify at least 80 percent of the challenges for 
each individual specimen validity test over the three sets of PT 
samples;
    (5) For quantitative specimen validity tests, obtain quantitative 
values for at least 80 percent of the total specimen validity test 
challenges over the three sets of PT samples that satisfy the following 
criteria:
    (i) Creatinine concentrations are no more than 20 
percent or 2 standard deviations (whichever is larger) from 
the appropriate reference or peer group mean; and
    (ii) Specific gravity values are no more than 0.001 
specific gravity units from the appropriate reference or peer group 
mean; and
    (6) Must not obtain any quantitative value on a specimen validity 
test PT sample that differs from the appropriate reference or peer 
group mean by more than 50 percent for creatinine 
concentration or 0.002 specific gravity units for specific 
gravity.
    (b) Failure to satisfy these requirements will result in 
disqualification.

Section 9.9 What are the PT requirements for an HHS-certified IITF?

    (a) An IITF certified under these Guidelines must satisfy the 
following criteria on the maintenance PT samples to maintain its 
certification:
    (1) Correctly identify at least 90 percent of the total drug 
challenges over two consecutive PT cycles;
    (2) Correctly identify at least 80 percent of the drug challenges 
for each individual drug test over two consecutive PT cycles;
    (3) Correctly identify at least 80 percent of the total specimen 
validity test challenges over two consecutive PT cycles;
    (4) Correctly identify at least 80 percent of the challenges for 
each individual specimen validity test over two consecutive PT cycles;
    (5) For quantitative specimen validity tests, obtain quantitative 
values for at least 80 percent of the total specimen validity test 
challenges over two consecutive PT cycles that satisfy the following 
criteria:
    (i) Creatinine concentrations are no more than 20 
percent or 2 standard deviations (whichever is larger) from 
the appropriate reference or peer group mean; and
    (ii) Specific gravity values are no more than 0.001 
specific gravity units from the appropriate reference or peer group 
mean; and
    (6) Must not obtain any quantitative value on a specimen validity 
test PT sample that differs from the appropriate reference or peer 
group mean by more than 50 percent for creatinine 
concentration, or 0.002 specific gravity units for specific 
gravity.
    (b) Failure to participate in all PT cycles or to satisfy these 
requirements may result in suspension or revocation of an HHS-certified 
IITF's certification.

Section 9.10 What are the inspection requirements for an applicant 
laboratory or IITF?

    (a) An applicant laboratory or IITF is inspected by a team of two 
inspectors.
    (b) Each inspector conducts an independent review and evaluation of 
all aspects of the laboratory's or IITF's testing procedures and 
facilities using an inspection checklist.

Section 9.11 What are the maintenance inspection requirements for an 
HHS-certified laboratory or IITF?

    (a) An HHS-certified laboratory or IITF must undergo an inspection 
3 months after becoming certified and at least every 6 months 
thereafter.
    (b) An HHS-certified laboratory or IITF is inspected by two or more 
inspectors. The number of inspectors is determined according to the 
number of specimens reviewed. Additional information regarding 
inspections is available from SAMHSA.
    (c) Each inspector conducts an independent evaluation and review of 
the HHS-certified laboratory's or IITF's procedures, records, and 
facilities using guidance provided by the Secretary.
    (d) To remain certified, an HHS-certified laboratory or IITF must 
continue to satisfy the minimum requirements as stated in these 
Guidelines.

Section 9.12 Who can inspect an HHS-certified laboratory or IITF and 
when may the inspection be conducted?

    (a) An individual may be selected as an inspector for the Secretary 
if they satisfy the following criteria:
    (1) Has experience and an educational background similar to that 
required for either a responsible person or a certifying scientist for 
an HHS-certified laboratory as described in subpart K of these 
Guidelines or as a responsible technician for an HHS-certified IITF as 
described in subpart L of these Guidelines;
    (2) Has read and thoroughly understands the policies and 
requirements contained in these Guidelines and in other guidance

[[Page 70791]]

consistent with these Guidelines provided by the Secretary;
    (3) Submits a resume and documentation of qualifications to HHS;
    (4) Attends approved training; and
    (5) Performs acceptably as an inspector on an inspection of an HHS-
certified laboratory or IITF.
    (b) The Secretary or a Federal agency may conduct an inspection at 
any time.

Section 9.13 What happens if an applicant laboratory or IITF does not 
satisfy the minimum requirements for either the PT program or the 
inspection program?

    If an applicant laboratory or IITF fails to satisfy the 
requirements established for the initial certification process, the 
laboratory or IITF must start the certification process from the 
beginning.

Section 9.14 What happens if an HHS-certified laboratory or IITF does 
not satisfy the minimum requirements for either the PT program or the 
inspection program?

    (a) If an HHS-certified laboratory or IITF fails to satisfy the 
minimum requirements for certification, the laboratory or IITF is given 
a period of time (e.g., 5 or 30 working days depending on the nature of 
the deficiency) to provide any explanation for its performance and 
evidence that all deficiencies have been corrected.
    (b) A laboratory's or IITF's HHS certification may be revoked, 
suspended, or no further action taken depending on the seriousness of 
the deficiencies and whether there is evidence that the deficiencies 
have been corrected and that current performance meets the requirements 
for certification.
    (c) An HHS-certified laboratory or IITF may be required to undergo 
a special inspection or to test additional PT samples to address 
deficiencies.
    (d) If an HHS-certified laboratory's or IITF's certification is 
revoked or suspended in accordance with the process described in 
subpart P of these Guidelines, the laboratory or IITF is not permitted 
to test federally regulated specimens until the suspension is lifted or 
the laboratory or IITF has successfully completed the certification 
requirements as a new applicant laboratory or IITF.

Section 9.15 What factors are considered in determining whether 
revocation of a laboratory's or IITF's HHS certification is necessary?

    (a) The Secretary shall revoke certification of an HHS-certified 
laboratory or IITF in accordance with these Guidelines if the Secretary 
determines that revocation is necessary to ensure fully reliable and 
accurate drug and specimen validity test results and reports.
    (b) The Secretary shall consider the following factors in 
determining whether revocation is necessary:
    (1) Unsatisfactory performance in analyzing and reporting the 
results of drug and specimen validity tests (e.g., an HHS-certified 
laboratory reporting a false positive result for an employee's drug 
test);
    (2) Unsatisfactory participation in performance testing or 
inspections;
    (3) A material violation of a certification standard, contract 
term, or other condition imposed on the HHS-certified laboratory or 
IITF by a Federal agency using the laboratory's or IITF's services;
    (4) Conviction for any criminal offense committed as an incident to 
operation of the HHS-certified laboratory or IITF; or
    (5) Any other cause that materially affects the ability of the HHS-
certified laboratory or IITF to ensure fully reliable and accurate drug 
test results and reports.
    (c) The period and terms of revocation shall be determined by the 
Secretary and shall depend upon the facts and circumstances of the 
revocation and the need to ensure accurate and reliable drug testing.

Section 9.16 What factors are considered in determining whether to 
suspend a laboratory's or IITF's HHS certification?

    (a) The Secretary may immediately suspend (either partially or 
fully) a laboratory's or IITF's HHS certification to conduct drug 
testing for Federal agencies if the Secretary has reason to believe 
that revocation may be required and that immediate action is necessary 
to protect the interests of the United States and its employees.
    (b) The Secretary shall determine the period and terms of 
suspension based upon the facts and circumstances of the suspension and 
the need to ensure accurate and reliable drug testing.

Section 9.17 How does the Secretary notify an HHS-certified laboratory 
or IITF that action is being taken against the laboratory or IITF?

    (a) When laboratory's or IITF's HHS certification is suspended or 
the Secretary seeks to revoke HHS certification, the Secretary shall 
immediately serve the HHS-certified laboratory or IITF with written 
notice of the suspension or proposed revocation by fax, mail, personal 
service, or registered or certified mail, return receipt requested. 
This notice shall state the following:
    (1) The reasons for the suspension or proposed revocation;
    (2) The terms of the suspension or proposed revocation; and
    (3) The period of suspension or proposed revocation.
    (b) The written notice shall state that the laboratory or IITF will 
be afforded an opportunity for an informal review of the suspension or 
proposed revocation if it so requests in writing within 30 days of the 
date the laboratory or IITF received the notice, or if expedited review 
is requested, within 3 days of the date the laboratory or IITF received 
the notice. Subpart P of these Guidelines contains detailed procedures 
to be followed for an informal review of the suspension or proposed 
revocation.
    (c) A suspension must be effective immediately. A proposed 
revocation must be effective 30 days after written notice is given or, 
if review is requested, upon the reviewing official's decision to 
uphold the proposed revocation. If the reviewing official decides not 
to uphold the suspension or proposed revocation, the suspension must 
terminate immediately and any proposed revocation shall not take 
effect.
    (d) The Secretary will publish in the Federal Register the name, 
address, and telephone number of any HHS-certified laboratory or IITF 
that has its certification revoked or suspended under Section 9.13 or 
9.14, respectively, and the name of any HHS-certified laboratory or 
IITF that has its suspension lifted. The Secretary shall provide to any 
member of the public upon request the written notice provided to a 
laboratory or IITF that has its HHS certification suspended or revoked, 
as well as the reviewing official's written decision which upholds or 
denies the suspension or proposed revocation under the procedures of 
subpart P of these Guidelines.

Section 9.18 May a laboratory or IITF that had its HHS certification 
revoked be recertified to test Federal agency specimens?

    Following revocation, a laboratory or IITF may apply for 
recertification. Unless otherwise provided by the Secretary in the 
notice of revocation under Section 9.17 or the reviewing official's 
decision under Section 16.9(e) or 16.14(a), a laboratory or IITF which 
has had its certification revoked may reapply for HHS certification as 
an applicant laboratory or IITF.

[[Page 70792]]

Section 9.19 Where is the list of HHS-certified laboratories and IITFs 
published?

    (a) The list of HHS-certified laboratories and IITFs is published 
monthly in the Federal Register. This notice is also available on the 
internet at https://www.samhsa.gov/workplace.
    (b) An applicant laboratory or IITF is not included on the list.

Subpart J--Blind Samples Submitted by an Agency

Section 10.1 What are the requirements for Federal agencies to submit 
blind samples to HHS-certified laboratories or IITFs?

    (a) Each Federal agency is required to submit blind samples for its 
workplace drug testing program. The collector must send the blind 
samples to the HHS-certified laboratory or IITF that the collector 
sends employee specimens.
    (b) Each Federal agency must submit at least 3 percent blind 
samples along with its donor specimens based on the projected total 
number of donor specimens collected per year (up to a maximum of 400 
blind samples). Every effort should be made to ensure that blind 
samples are submitted quarterly.
    (c) Approximately 75 percent of the blind samples submitted each 
year by an agency must be negative, 15 percent must be positive for one 
or more drugs, and 10 percent must either be adulterated or 
substituted.

Section 10.2 What are the requirements for blind samples?

    (a) Drug positive blind samples must be validated by the supplier 
as to their content using appropriate initial and confirmatory tests.
    (1) Drug positive blind samples must contain one or more of the 
drugs or metabolites listed in the drug testing panel.
    (2) Drug positive blind samples must contain concentrations of 
drugs between 1.5 and 2 times the initial drug test cutoff.
    (b) Drug negative blind samples (i.e., certified to contain no 
drugs) must be validated by the supplier as negative using appropriate 
initial and confirmatory tests.
    (c) A blind sample that is adulterated must be validated using 
appropriate initial and confirmatory specimen validity tests, and have 
the characteristics to clearly show that it is an adulterated sample at 
the time of validation.
    (d) A blind sample that is substituted must be validated using 
appropriate initial and confirmatory specimen validity tests, and have 
the characteristics to clearly show that it is a substituted sample at 
the time of validation.
    (e) The supplier must provide information on the blind samples' 
content, validation, expected results, and stability to the collection 
site/collector sending the blind samples to the laboratory or IITF, and 
must provide the information upon request to the MRO, the Federal 
agency for which the blind sample was submitted, or the Secretary.

Section 10.3 How is a blind sample submitted to an HHS-certified 
laboratory or IITF?

    (a) A blind sample must be submitted as a split specimen (specimens 
A and B) with the current Federal CCF that the HHS-certified laboratory 
or IITF uses for donor specimens. The collector provides the required 
information to ensure that the Federal CCF has been properly completed 
and provides fictitious initials on the specimen label/seal. The 
collector must indicate that the specimen is a blind sample on the MRO 
copy where a donor would normally provide a signature.
    (b) A collector should attempt to distribute the required number of 
blind samples randomly with donor specimens rather than submitting the 
full complement of blind samples as a single group.

Section 10.4 What happens if an inconsistent result is reported for a 
blind sample?

    If an HHS-certified laboratory or IITF reports a result for a blind 
sample that is inconsistent with the expected result (e.g., a 
laboratory or IITF reports a negative result for a blind sample that 
was supposed to be positive, a laboratory reports a positive result for 
a blind sample that was supposed to be negative):
    (a) The MRO must contact the laboratory or IITF and attempt to 
determine if the laboratory or IITF made an error during the testing or 
reporting of the sample;
    (b) The MRO must contact the blind sample supplier and attempt to 
determine if the supplier made an error during the preparation or 
transfer of the sample;
    (c) The MRO must contact the collector and determine if the 
collector made an error when preparing the blind sample for transfer to 
the HHS-certified laboratory or IITF;
    (d) If there is no obvious reason for the inconsistent result, the 
MRO must notify both the Federal agency for which the blind sample was 
submitted and the Secretary; and
    (e) The Secretary shall investigate the blind sample error. A 
report of the Secretary's investigative findings and the corrective 
action taken in response to identified deficiencies must be sent to the 
Federal agency. The Secretary shall ensure notification of the finding 
as appropriate to other Federal agencies and coordinate any necessary 
actions to prevent the recurrence of the error.

Subpart K--Laboratory

Section 11.1 What must be included in the HHS-certified laboratory's 
standard operating procedure manual?

    (a) An HHS-certified laboratory must have a standard operating 
procedure (SOP) manual that describes, in detail, all HHS-certified 
laboratory operations. When followed, the SOP manual ensures that all 
specimens are tested using the same procedures.
    (b) The SOP manual must include at a minimum, but is not limited 
to, a detailed description of the following:
    (1) Chain of custody procedures;
    (2) Accessioning;
    (3) Security;
    (4) Quality control/quality assurance programs;
    (5) Analytical methods and procedures;
    (6) Equipment and maintenance programs;
    (7) Personnel training;
    (8) Reporting procedures; and
    (9) Computers, software, and laboratory information management 
systems.
    (c) All procedures in the SOP manual must be compliant with these 
Guidelines and all guidance provided by the Secretary.
    (d) A copy of all procedures that have been replaced or revised and 
the dates on which the procedures were in effect must be maintained for 
at least 2 years.

Section 11.2 What are the responsibilities of the responsible person 
(RP)?

    (a) Manage the day-to-day operations of the HHS-certified 
laboratory even if another individual has overall responsibility for 
alternate areas of a multi-specialty laboratory.
    (b) Ensure that there are sufficient personnel with adequate 
training and experience to supervise and conduct the work of the HHS-
certified laboratory. The RP must ensure the continued competency of 
laboratory staff by documenting their in-service training, reviewing 
their work performance, and verifying their skills.
    (c) Maintain a complete and current SOP manual that is available to 
all personnel of the HHS-certified

[[Page 70793]]

laboratory and ensure that it is followed. The SOP manual must be 
reviewed, signed, and dated by the RP(s) when procedures are first 
placed into use and when changed or when a new individual assumes 
responsibility for the management of the HHS-certified laboratory. The 
SOP must be reviewed and documented by the RP annually.
    (d) Maintain a quality assurance program that ensures the proper 
performance and reporting of all test results; verify and monitor 
acceptable analytical performance for all controls and calibrators; 
monitor quality control testing; and document the validity, 
reliability, accuracy, precision, and performance characteristics of 
each test and test system.
    (e) Initiate and implement all remedial actions necessary to 
maintain satisfactory operation and performance of the HHS-certified 
laboratory in response to the following: quality control systems not 
within performance specifications; errors in result reporting or in 
analysis of performance testing samples; and inspection deficiencies. 
The RP must ensure that specimen results are not reported until all 
corrective actions have been taken and that the results provided are 
accurate and reliable.

Section 11.3 What scientific qualifications must the RP have?

    The RP must have documented scientific qualifications in analytical 
toxicology.
    Minimum qualifications are:
    (a) Certification or licensure as a laboratory director by the 
state in forensic or clinical laboratory toxicology, a Ph.D. in one of 
the natural sciences, or training and experience comparable to a Ph.D. 
in one of the natural sciences with training and laboratory/research 
experience in biology, chemistry, and pharmacology or toxicology;
    (b) Experience in forensic toxicology with emphasis on the 
collection and analysis of biological specimens for drugs of abuse;
    (c) Experience in forensic applications of analytical toxicology 
(e.g., publications, court testimony, conducting research on the 
pharmacology and toxicology of drugs of abuse) or qualify as an expert 
witness in forensic toxicology;
    (d) Fulfillment of the RP responsibilities and qualifications, as 
demonstrated by the HHS-certified laboratory's performance and verified 
upon interview by HHS-trained inspectors during each on-site 
inspection; and
    (e) Qualify as a certifying scientist.

Section 11.4 What happens when the RP is absent or leaves an HHS-
certified laboratory?

    (a) HHS-certified laboratories must have multiple RPs or one RP and 
an alternate RP. If the RP(s) are concurrently absent, an alternate RP 
must be present and qualified to fulfill the responsibilities of the 
RP.
    (1) If an HHS-certified laboratory is without the RP and alternate 
RP for 14 calendar days or less (e.g., temporary absence due to 
vacation, illness, or business trip), the HHS-certified laboratory may 
continue operations and testing of Federal agency specimens under the 
direction of a certifying scientist.
    (2) The Secretary, in accordance with these Guidelines, will 
suspend a laboratory's HHS certification for all specimens if the 
laboratory does not have an RP or alternate RP for a period of more 
than 14 calendar days. The suspension will be lifted upon the 
Secretary's approval of a new permanent RP or alternate RP.
    (b) If the RP leaves an HHS-certified laboratory:
    (1) The HHS-certified laboratory may maintain certification and 
continue testing federally regulated specimens under the direction of 
an alternate RP for a period of up to 180 days while seeking to hire 
and receive the Secretary's approval of the RP's replacement.
    (2) The Secretary, in accordance with these Guidelines, will 
suspend a laboratory's HHS certification for all federally regulated 
specimens if the laboratory does not have a permanent RP within 180 
days. The suspension will be lifted upon the Secretary's approval of 
the new permanent RP.
    (c) To nominate an individual as an RP or alternate RP, the HHS-
certified laboratory must submit the following documents to the 
Secretary: the candidate's current resume or curriculum vitae, copies 
of diplomas and licensures, a training plan (not to exceed 90 days) to 
transition the candidate into the position, an itemized comparison of 
the candidate's qualifications to the minimum RP qualifications 
described in the Guidelines, and have official academic transcript(s) 
submitted from the candidate's institution(s) of higher learning. The 
candidate must be found qualified during an on-site inspection of the 
HHS-certified laboratory.
    (d) The HHS-certified laboratory must fulfill additional inspection 
and PT criteria as required prior to conducting federally regulated 
testing under a new RP.

Section 11.5 What qualifications must an individual have to certify a 
result reported by an HHS-certified laboratory?

    (a) A certifying scientist must have:
    (1) At least a bachelor's degree in the chemical or biological 
sciences or medical technology, or equivalent;
    (2) Training and experience in the analytical methods and forensic 
procedures used by the HHS-certified laboratory relevant to the results 
that the individual certifies; and
    (3) Training and experience in reviewing and reporting forensic 
test results and maintaining chain of custody, and an understanding of 
appropriate remedial actions in response to problems that may arise.
    (b) A certifying technician must have:
    (1) Training and experience in the analytical methods and forensic 
procedures used by the HHS-certified laboratory relevant to the results 
that the individual certifies; and
    (2) Training and experience in reviewing and reporting forensic 
test results and maintaining chain of custody, and an understanding of 
appropriate remedial actions in response to problems that may arise.

Section 11.6 What qualifications and training must other personnel of 
an HHS-certified laboratory have?

    (a) All HHS-certified laboratory staff (e.g., technicians, 
administrative staff) must have the appropriate training and skills for 
the tasks they perform.
    (b) Each individual working in an HHS-certified laboratory must be 
properly trained (i.e., receive training in each area of work that the 
individual will be performing, including training in forensic 
procedures related to their job duties) before they are permitted to 
work independently with federally regulated specimens. All training 
must be documented.

Section 11.7 What security measures must an HHS-certified laboratory 
maintain?

    (a) An HHS-certified laboratory must control access to the drug 
testing facility, specimens, aliquots, and records.
    (b) Authorized visitors must be escorted at all times, except for 
individuals conducting inspections (i.e., for the Department, a Federal 
agency, a state, or other accrediting agency) or emergency personnel 
(e.g., firefighters and medical rescue teams).
    (c) An HHS-certified laboratory must maintain records documenting 
the identity of the visitor and escort, date, time of entry and exit, 
and purpose for access to the secured area.

[[Page 70794]]

Section 11.8 What are the laboratory chain of custody requirements for 
specimens and aliquots?

    (a) HHS-certified laboratories must use chain of custody procedures 
(internal and external) to maintain control and accountability of 
specimens from the time of receipt at the laboratory through completion 
of testing, reporting of results, during storage, and continuing until 
final disposition of the specimens.
    (b) HHS-certified laboratories must use chain of custody procedures 
to document the handling and transfer of aliquots throughout the 
testing process until final disposal.
    (c) The chain of custody must be documented using either paper copy 
or electronic procedures.
    (d) Each individual who handles a specimen or aliquot must sign and 
complete the appropriate entries on the chain of custody form when the 
specimen or aliquot is handled or transferred, and every individual in 
the chain must be identified.
    (e) The date and purpose must be recorded on an appropriate chain 
of custody form each time a specimen or aliquot is handled or 
transferred.

Section 11.9 What test(s) does an HHS-certified laboratory conduct on a 
urine specimen received from an IITF?

    An HHS-certified laboratory must test the specimen in the same 
manner as a specimen that had not been previously tested.

Section 11.10 What are the requirements for an initial drug test?

    (a) An initial drug test may be:
    (1) An immunoassay; or
    (2) An alternate technology (e.g., spectrometry, spectroscopy).
    (b) An HHS-certified laboratory must validate an initial drug test 
before testing specimens.
    (c) Initial drug tests must be accurate and reliable for the 
testing of specimens when identifying drugs or their metabolites.
    (d) An HHS-certified laboratory may conduct a second initial drug 
test using a method with different specificity, to rule out cross-
reacting compounds. This second initial drug test must satisfy the 
batch quality control requirements specified in Section 11.12.

Section 11.11 What must an HHS-certified laboratory do to validate an 
initial drug test?

    (a) An HHS-certified laboratory must demonstrate and document the 
following for each initial drug test:
    (1) The ability to differentiate negative specimens from those 
requiring further testing;
    (2) The performance of the test around the cutoff, using samples at 
several concentrations between 0 and 150 percent of the cutoff;
    (3) The effective concentration range of the test (linearity);
    (4) The potential for carryover;
    (5) The potential for interfering substances; and
    (6) The potential matrix effects if using an alternate technology.
    (b) Each new lot of reagent must be verified prior to being placed 
into service.
    (c) Each initial drug test using an alternate technology must be 
re-verified periodically or at least annually.

Section 11.12 What are the batch quality control requirements when 
conducting an initial drug test?

    (a) Each batch of specimens must contain the following controls:
    (1) At least one control certified to contain no drug or drug 
metabolite;
    (2) At least one positive control with the drug or drug metabolite 
targeted at a concentration 25 percent above the cutoff;
    (3) At least one control with the drug or drug metabolite targeted 
at a concentration 75 percent of the cutoff; and
    (4) At least one control that appears as a donor specimen to the 
analysts.
    (b) Calibrators and controls must total at least 10 percent of the 
aliquots analyzed in each batch.

Section 11.13 What are the requirements for a confirmatory drug test?

    (a) The analytical method must use mass spectrometric 
identification (e.g., gas chromatography-mass spectrometry [GC-MS], 
liquid chromatography-mass spectrometry [LC-MS], GC-MS/MS, LC-MS/MS) or 
equivalent.
    (b) A confirmatory drug test must be validated before it can be 
used to test federally regulated specimens.
    (c) Confirmatory drug tests must be accurate and reliable for the 
testing of a urine specimen when identifying and quantifying drugs or 
their metabolites.

Section 11.14 What must an HHS-certified laboratory do to validate a 
confirmatory drug test?

    (a) An HHS-certified laboratory must demonstrate and document the 
following for each confirmatory drug test:
    (1) The linear range of the analysis;
    (2) The limit of detection;
    (3) The limit of quantification;
    (4) The accuracy and precision at the cutoff;
    (5) The accuracy (bias) and precision at 40 percent of the cutoff;
    (6) The potential for interfering substances;
    (7) The potential for carryover; and
    (8) The potential matrix effects if using liquid chromatography 
coupled with mass spectrometry.
    (b) Each new lot of reagent must be verified prior to being placed 
into service.
    (c) HHS-certified laboratories must re-verify each confirmatory 
drug test method periodically or at least annually.

Section 11.15 What are the batch quality control requirements when 
conducting a confirmatory drug test?

    (a) At a minimum, each batch of specimens must contain the 
following calibrators and controls:
    (1) A calibrator at the cutoff;
    (2) At least one control certified to contain no drug or drug 
metabolite;
    (3) At least one positive control with the drug or drug metabolite 
targeted at 25 percent above the cutoff; and
    (4) At least one control targeted at or less than 40 percent of the 
cutoff.
    (b) Calibrators and controls must total at least 10 percent of the 
aliquots analyzed in each batch.

Section 11.16 What are the analytical and quality control requirements 
for conducting specimen validity tests?

    (a) Each invalid, adulterated, or substituted specimen validity 
test result must be based on an initial specimen validity test on one 
aliquot and a confirmatory specimen validity test on a second aliquot;
    (b) The HHS-certified laboratory must establish acceptance criteria 
and analyze calibrators and controls as appropriate to verify and 
document the validity of the test results (required specimen validity 
tests are addressed in Section 11.18); and
    (c) Controls must be analyzed concurrently with specimens.

Section 11.17 What must an HHS-certified laboratory do to validate a 
specimen validity test?

    An HHS-certified laboratory must demonstrate and document for each 
specimen validity test the appropriate performance characteristics of 
the test, and must re-verify the test periodically, or at least 
annually. Each new lot of reagent must be verified prior to being 
placed into service.

[[Page 70795]]

Section 11.18 What are the requirements for conducting each specimen 
validity test?

    (a) The requirements for measuring creatinine concentration are as 
follows:
    (1) The creatinine concentration must be measured to one decimal 
place on both the initial creatinine test and the confirmatory 
creatinine test;
    (2) The initial creatinine test must have the following calibrators 
and controls:
    (i) A calibrator at 2 mg/dL;
    (ii) A control in the range of 1.0 mg/dL to 1.5 mg/dL;
    (iii) A control in the range of 3 mg/dL to 20 mg/dL; and
    (iv) A control in the range of 21 mg/dL to 25 mg/dL.
    (3) The confirmatory creatinine test (performed on those specimens 
with a creatinine concentration less than 2 mg/dL on the initial test) 
must have the following calibrators and controls:
    (i) A calibrator at 2 mg/dL;
    (ii) A control in the range of 1.0 mg/dL to 1.5 mg/dL; and
    (iii) A control in the range of 3 mg/dL to 4 mg/dL.
    (b) The requirements for measuring specific gravity are as follows:
    (1) For specimens with initial creatinine test results greater than 
5 mg/dL and less than 20 mg/dL, laboratories may perform a screening 
test using a refractometer that measures urine specific gravity to at 
least three decimal places to identify specific gravity values that are 
acceptable (equal to or greater than 1.003) or dilute (equal to or 
greater than 1.002 and less than 1.003). Specimens must be subjected to 
an initial specific gravity test using a four decimal place 
refractometer when the initial creatinine test result is less than or 
equal to 5 mg/dL or when the screening specific gravity test result 
using a three decimal place refractometer is less than 1.002.
    (2) The screening specific gravity test must have the following 
calibrators and controls:
    (i) A calibrator or control at 1.000;
    (ii) One control targeted at 1.002;
    (iii) One control in the range of 1.004 to 1.018.
    (3) For the initial and confirmatory specific gravity tests, the 
refractometer must report and display specific gravity to four decimal 
places. The refractometer must be interfaced with a laboratory 
information management system (LIMS), computer, and/or generate a paper 
copy of the digital electronic display to document the numerical values 
of the specific gravity test results;
    (4) The initial and confirmatory specific gravity tests must have 
the following calibrators and controls:
    (i) A calibrator or control at 1.0000;
    (ii) One control targeted at 1.0020;
    (iii) One control in the range of 1.0040 to 1.0180; and
    (iv) One control equal to or greater than 1.0200 but not greater 
than 1.0250.
    (c) Requirements for measuring pH are as follows:
    (1) Colorimetric pH tests that have the dynamic range of 3 to 12 to 
support the 4 and 11 pH cutoffs and pH meters must be capable of 
measuring pH to one decimal place. Colorimetric pH tests, dipsticks, 
and pH paper (i.e., screening tests) that have a narrow dynamic range 
and do not support the cutoffs may be used only to determine if an 
initial pH specimen validity test must be performed;
    (2) For the initial and confirmatory pH tests, the pH meter must 
report and display pH to at least one decimal place. The pH meter must 
be interfaced with a LIMS, computer, and/or generate a paper copy of 
the digital electronic display to document the numerical values of the 
pH test results;
    (3) pH screening tests must have, at a minimum, the following 
controls:
    (i) One control below the lower decision point in use;
    (ii) One control between the decision points in use; and
    (iii) One control above the upper decision point in use;
    (4) An initial colorimetric pH test must have the following 
calibrators and controls:
    (i) One calibrator at 4;
    (ii) One calibrator at 11;
    (iii) One control in the range of 3 to 3.8;
    (iv) One control in the range 4.2 to 5;
    (v) One control in the range of 5 to 9;
    (vi) One control in the range of 10 to 10.8; and
    (vii) One control in the range of 11.2 to 12;
    (5) An initial pH meter test, if a pH screening test is not used, 
must have the following calibrators and controls:
    (i) One calibrator at 3;
    (ii) One calibrator at 7;
    (iii) One calibrator at 10;
    (iv) One control in the range of 3 to 3.8;
    (v) One control in the range 4.2 to 5;
    (vi) One control in the range of 10 to 10.8; and
    (vii) One control in the range of 11.2 to 12;
    (6) An initial pH meter test (if a pH screening test is used) or 
confirmatory pH meter test must have the following calibrators and 
controls when the result of the preceding pH test indicates that the pH 
is below the lower decision point in use:
    (i) One calibrator at 4;
    (ii) One calibrator at 7;
    (iii) One control in the range of 3 to 3.8; and
    (iv) One control in the range 4.2 to 5; and
    (7) An initial pH meter test (if a pH screening test is used) or 
confirmatory pH meter test must have the following calibrators and 
controls when the result of the preceding pH test indicates that the pH 
is above the upper decision point in use:
    (i) One calibrator at 7;
    (ii) One calibrator at 10;
    (iii) One control in the range of 10 to 10.8; and
    (iv) One control in the range of 11.2 to 12.
    (d) Requirements for performing oxidizing adulterant tests are as 
follows:
    (1) The initial test must include an appropriate calibrator at the 
cutoff specified in Section 11.19(d)(2), (3), or (4) for the compound 
of interest, a control without the compound of interest (i.e., a 
certified negative control), and at least one control with one of the 
compounds of interest at a measurable concentration; and
    (2) A confirmatory test for a specific oxidizing adulterant must 
use a different analytical method than that used for the initial test. 
Each confirmatory test batch must include an appropriate calibrator, a 
control without the compound of interest (i.e., a certified negative 
control), and a control with the compound of interest at a measurable 
concentration.
    (e) The requirements for measuring the nitrite concentration are 
that the initial and confirmatory nitrite tests must have a calibrator 
at the cutoff, a control without nitrite (i.e., certified negative 
urine), one control in the range of 200 mcg/mL to 250 mcg/mL, and one 
control in the range of 500 mcg/mL to 625 mcg/mL.

Section 11.19 What are the requirements for an HHS-certified laboratory 
to report a test result?

    (a) Laboratories must report a test result to the agency's MRO 
within an average of 5 working days after receipt of the specimen. 
Reports must use the Federal CCF and/or an electronic report, as 
described in items p and q below. Before any test result can be 
reported, it must be certified by a certifying scientist or a 
certifying technician (as appropriate).
    (b) A primary (A) specimen is reported negative when each initial 
drug test is negative or if the specimen is negative upon confirmatory 
drug

[[Page 70796]]

testing, and the specimen does not meet invalid criteria as described 
in Section 11.19(h)(1) through (13).
    (c) A primary (A) specimen is reported positive for a specific drug 
or drug metabolite when both the initial drug test is positive and the 
confirmatory drug test is positive in accordance with the cutoffs 
listed in the drug testing panel.
    (d) A primary (A) urine specimen is reported adulterated when:
    (1) The pH is less than 4 or equal to or greater than 11 using 
either a pH meter or a colorimetric pH test for the initial test on the 
first aliquot and a pH meter for the confirmatory test on the second 
aliquot;
    (2) The nitrite concentration is equal to or greater than 500 mcg/
mL using either a nitrite colorimetric test or a general oxidant 
colorimetric test for the initial test on the first aliquot and a 
different confirmatory test (e.g., multi-wavelength spectrophotometry, 
ion chromatography, capillary electrophoresis) on the second aliquot;
    (3) The presence of chromium (VI) is verified using either a 
general oxidant colorimetric test (with an equal to or greater than 50 
mcg/mL chromium (VI)-equivalent cutoff) or a chromium (VI) colorimetric 
test (chromium (VI) concentration equal to or greater than 50 mcg/mL) 
for the initial test on the first aliquot and a different confirmatory 
test (e.g., multi-wavelength spectrophotometry, ion chromatography, 
atomic absorption spectrophotometry, capillary electrophoresis, 
inductively coupled plasma-mass spectrometry) with the chromium (VI) 
concentration equal to or greater than the LOQ of the confirmatory test 
on the second aliquot;
    (4) The presence of halogen (e.g., chlorine from bleach, iodine, 
fluoride) is verified using either a general oxidant colorimetric test 
(with an equal to or greater than 200 mcg/mL nitrite-equivalent cutoff 
or an equal to or greater than 50 mcg/mL chromium (VI)-equivalent 
cutoff) or halogen colorimetric test (halogen concentration equal to or 
greater than the LOQ) for the initial test on the first aliquot and a 
different confirmatory test (e.g., multi-wavelength spectrophotometry, 
ion chromatography, inductively coupled plasma-mass spectrometry) with 
a specific halogen concentration equal to or greater than the LOQ of 
the confirmatory test on the second aliquot;
    (5) The presence of glutaraldehyde is verified using either an 
aldehyde test (aldehyde present) or the characteristic immunoassay 
response on one or more drug immunoassay tests for the initial test on 
the first aliquot and a different confirmatory method (e.g., GC/MS) for 
the confirmatory test with the glutaraldehyde concentration equal to or 
greater than the LOQ of the analysis on the second aliquot;
    (6) The presence of pyridine (pyridinium chlorochromate) is 
verified using either a general oxidant colorimetric test (with an 
equal to or greater than 200 mcg/mL nitrite-equivalent cutoff or an 
equal to or greater than 50 mcg/mL chromium (VI)-equivalent cutoff) or 
a chromium (VI) colorimetric test (chromium (VI) concentration equal to 
or greater than 50 mcg/mL) for the initial test on the first aliquot 
and a different confirmatory method (e.g., GC/MS) for the confirmatory 
test with the pyridine concentration equal to or greater than the LOQ 
of the analysis on the second aliquot;
    (7) The presence of a surfactant is verified by using a surfactant 
colorimetric test with an equal to or greater than 100 mcg/mL 
dodecylbenzene sulfonate-equivalent cutoff for the initial test on the 
first aliquot and a different confirmatory test (e.g., multi-wavelength 
spectrophotometry) with an equal to or greater than 100 mcg/mL 
dodecylbenzene sulfonate-equivalent cutoff on the second aliquot; or
    (8) The presence of any other adulterant not specified in Section 
11.19(d)(2) through (7) is verified using an initial test on the first 
aliquot and a different confirmatory test on the second aliquot.
    (e) A primary (A) urine specimen is reported substituted when:
    (1) The creatinine concentration is less than 2 mg/dL and the 
specific gravity is less than or equal to 1.0010 or equal to or greater 
than 1.0200 on both the initial and confirmatory creatinine tests 
(i.e., the same colorimetric test may be used to test both aliquots) 
and on both the initial and confirmatory specific gravity tests (i.e., 
a refractometer is used to test both aliquots) on two separate 
aliquots; or
    (2) A biomarker is not present or is present at a concentration 
inconsistent with that established for human urine.
    (f) A primary (A) urine specimen is reported dilute when the 
creatinine concentration is equal to or greater than 2 mg/dL but less 
than 20 mg/dL and the specific gravity is greater than 1.0010 but less 
than 1.0030 on a single aliquot.
    (g) For a specimen that has an invalid result for one of the 
reasons stated in Section 11.19(h)(4) through (13), the HHS-certified 
laboratory shall contact the MRO and both will decide if testing by 
another HHS-certified laboratory would be useful in being able to 
report a positive, adulterated, or substituted result. If no further 
testing is necessary, the HHS-certified laboratory then reports the 
invalid result to the MRO.
    (h) A primary (A) urine specimen is reported as an invalid result 
when:
    (1) Inconsistent creatinine concentration and specific gravity 
results are obtained (i.e., the creatinine concentration is less than 2 
mg/dL on both the initial and confirmatory creatinine tests and the 
specific gravity is greater than 1.0010 but less than 1.0200 on the 
initial and/or confirmatory specific gravity test, the specific gravity 
is less than or equal to 1.0010 on both the initial and confirmatory 
specific gravity tests and the creatinine concentration is equal to or 
greater than 2 mg/dL on either or both the initial or confirmatory 
creatinine tests);
    (2) The pH is equal to or greater than 4 and less than 4.5 or equal 
to or greater than 9 and less than 11 using either a colorimetric pH 
test or pH meter for the initial test and a pH meter for the 
confirmatory test on two separate aliquots;
    (3) The nitrite concentration is equal to or greater than 200 mcg/
mL using a nitrite colorimetric test or equal to or greater than the 
equivalent of 200 mcg/mL nitrite using a general oxidant colorimetric 
test for both the initial (first) test and the second test or using 
either initial test and the nitrite concentration is equal to or 
greater than 200 mcg/mL but less than 500 mcg/mL for a different 
confirmatory test (e.g., multi-wavelength spectrophotometry, ion 
chromatography, capillary electrophoresis) on two separate aliquots;
    (4) The possible presence of chromium (VI) is determined using the 
same chromium (VI) colorimetric test with a cutoff equal to or greater 
than 50 mcg/mL chromium (VI) for both the initial (first) test and the 
second test on two separate aliquots;
    (5) The possible presence of a halogen (e.g., chlorine from bleach, 
iodine, fluoride) is determined using the same halogen colorimetric 
test with a cutoff equal to or greater than the LOQ for both the 
initial (first) test and the second test on two separate aliquots or 
relying on the odor of the specimen as the initial test;
    (6) The possible presence of glutaraldehyde is determined by using 
the same aldehyde test (aldehyde present) or characteristic immunoassay 
response on one or more drug immunoassay tests for both the initial 
(first) test and the second test on two separate aliquots;

[[Page 70797]]

    (7) The possible presence of an oxidizing adulterant is determined 
by using the same general oxidant colorimetric test (with an equal to 
or greater than 200 mcg/mL nitrite-equivalent cutoff, an equal to or 
greater than 50 mcg/mL chromium (VI)-equivalent cutoff, or a halogen 
concentration is equal to or greater than the LOQ) for both the initial 
(first) test and the second test on two separate aliquots;
    (8) The possible presence of a surfactant is determined by using 
the same surfactant colorimetric test with an equal to or greater than 
100 mcg/mL dodecylbenzene sulfonate-equivalent cutoff for both the 
initial (first) test and the second test on two separate aliquots or a 
foam/shake test for the initial test;
    (9) Interference occurs on the initial drug tests on two separate 
aliquots (i.e., valid initial drug test results cannot be obtained);
    (10) Interference with the confirmatory drug test occurs on at 
least two separate aliquots of the specimen and the HHS-certified 
laboratory is unable to identify the interfering substance;
    (11) The physical appearance of the specimen is such that testing 
the specimen may damage the laboratory's instruments;
    (12) The physical appearances of the A and B specimens are clearly 
different (note: A is tested); or
    (13) A specimen validity test (i.e., other than the tests listed 
above) on two separate aliquots of the specimen indicates that the 
specimen is not valid for testing.
    (i) An HHS-certified laboratory shall reject a primary (A) specimen 
for testing when a fatal flaw occurs as described in Section 15.1 or 
when a correctable flaw as described in Section 15.2 is not recovered. 
The HHS-certified laboratory will indicate on the Federal CCF that the 
specimen was rejected for testing and provide the reason for reporting 
the rejected for testing result.
    (j) An HHS-certified laboratory must report all positive, 
adulterated, substituted, and invalid test results for a urine 
specimen. For example, a specimen can be positive for a drug and 
adulterated.
    (k) An HHS-certified laboratory must report the confirmatory 
concentration of each drug or drug metabolite reported for a positive 
result.
    (l) An HHS-certified laboratory must report numerical values of the 
specimen validity test results that support an adulterated, 
substituted, or invalid result (as appropriate).
    (m) An HHS-certified laboratory must report results using the HHS-
specified nomenclature published with the drug and biomarker testing 
panels.
    (n) When the concentration of a drug or drug metabolite exceeds the 
validated linear range of the confirmatory test, HHS-certified 
laboratories may report to the MRO that the quantitative value exceeds 
the linear range of the test or that the quantitative value is greater 
than ``insert the actual value for the upper limit of the linear 
range,'' or laboratories may report a quantitative value above the 
upper limit of the linear range that was obtained by diluting an 
aliquot of the specimen to achieve a result within the method's linear 
range and multiplying the result by the appropriate dilution factor.
    (o) HHS-certified laboratories may transmit test results to the MRO 
by various electronic means (e.g., fax, computer). Transmissions of the 
reports must ensure confidentiality and the results may not be reported 
verbally by telephone. Laboratories and external service providers must 
ensure the confidentiality, integrity, and availability of the data and 
limit access to any data transmission, storage, and retrieval system.
    (p) HHS-certified laboratories must fax, courier, mail, or 
electronically transmit a legible image or copy of the completed 
Federal CCF and/or forward a computer-generated electronic report. The 
computer-generated report must contain sufficient information to ensure 
that the test results can accurately represent the content of the 
custody and control form that the MRO received from the collector.
    (q) For positive, adulterated, substituted, invalid, and rejected 
specimens, laboratories must fax, courier, mail, or electronically 
transmit a legible image or copy of the completed Federal CCF.

Section 11.20 How long must an HHS-certified laboratory retain 
specimens?

    (a) An HHS-certified laboratory must retain specimens that were 
reported as positive, adulterated, substituted, or as an invalid result 
for a minimum of 1 year.
    (b) Retained urine specimens must be kept in secured frozen storage 
(-20[deg]C or less) to ensure their availability for retesting during 
an administrative or judicial proceeding.
    (c) Federal agencies may request that the HHS-certified laboratory 
retain a specimen for an additional specified period of time and must 
make that request within the 1-year period following the laboratory's 
reporting of the specimen.

Section 11.21 How long must an HHS-certified laboratory retain records?

    (a) An HHS-certified laboratory must retain all records generated 
to support test results for at least 2 years. The laboratory may 
convert hardcopy records to electronic records for storage and then 
discard the hardcopy records after 6 months.
    (b) A Federal agency may request the HHS-certified laboratory to 
maintain a documentation package (as described in Section 11.23) that 
supports the chain of custody, testing, and reporting of a donor's 
specimen that is under legal challenge by a donor. The Federal agency's 
request to the laboratory must be in writing and must specify the 
period of time to maintain the documentation package.
    (c) An HHS-certified laboratory may retain records other than those 
included in the documentation package beyond the normal 2-year period 
of time.

Section 11.22 What statistical summary reports must an HHS-certified 
laboratory provide for urine testing?

    (a) HHS-certified laboratories must provide to each Federal agency 
for which they perform testing a semiannual statistical summary report 
that must be submitted by mail, fax, or email within 14 working days 
after the end of the semiannual period. The summary report must not 
include any personally identifiable information. A copy of the 
semiannual statistical summary report will also be sent to the 
Secretary or designated HHS representative. The semiannual statistical 
report contains the following information:
    (1) Reporting period (inclusive dates);
    (2) HHS-certified laboratory name and address;
    (3) Federal agency name;
    (4) Number of specimen results reported;
    (5) Number of specimens collected by reason for test;
    (6) Number of specimens reported negative and the number reported 
negative/dilute;
    (7) Number of specimens rejected for testing because of a fatal 
flaw;
    (8) Number of specimens rejected for testing because of an 
uncorrected flaw;
    (9) Number of specimens tested positive by each initial drug test;
    (10) Number of specimens reported positive;
    (11) Number of specimens reported positive for each drug and drug 
metabolite;
    (12) Number of specimens reported adulterated;
    (13) Number of specimens reported substituted; and

[[Page 70798]]

    (14) Number of specimens reported as invalid result.
    (b) An HHS-certified laboratory must make copies of an agency's 
test results available when requested to do so by the Secretary or by 
the Federal agency for which the laboratory is performing drug-testing 
services.
    (c) An HHS-certified laboratory must ensure that a qualified 
individual is available to testify in a proceeding against a Federal 
employee when the proceeding is based on a test result reported by the 
laboratory.

Section 11.23 What HHS-certified laboratory information is available to 
a Federal agency?

    (a) Following a Federal agency's receipt of a positive, 
adulterated, or substituted drug test report, the Federal agency may 
submit a written request for copies of the records relating to the drug 
test results or a documentation package or any relevant certification, 
review, or revocation of certification records.
    (b) Standard documentation packages provided by an HHS-certified 
laboratory must contain the following items:
    (1) A cover sheet providing a brief description of the procedures 
and tests performed on the donor's specimen;
    (2) A table of contents that lists all documents and materials in 
the package by page number;
    (3) A copy of the Federal CCF with any attachments, internal chain 
of custody records for the specimen, memoranda (if any) generated by 
the HHS-certified laboratory, and a copy of the electronic report (if 
any) generated by the HHS-certified laboratory;
    (4) A brief description of the HHS-certified laboratory's initial 
drug and specimen validity testing procedures, instrumentation, and 
batch quality control requirements;
    (5) Copies of the initial test data for the donor's specimen with 
all calibrators and controls and copies of all internal chain of 
custody documents related to the initial tests;
    (6) A brief description of the HHS-certified laboratory's 
confirmatory drug (and specimen validity, if applicable) testing 
procedures, instrumentation, and batch quality control requirements;
    (7) Copies of the confirmatory test data for the donor's specimen 
with all calibrators and controls and copies of all internal chain of 
custody documents related to the confirmatory tests; and
    (8) Copies of the r[eacute]sum[eacute] or curriculum vitae for the 
RP(s) and the certifying technician or certifying scientist of record.

Section 11.24 What HHS-certified laboratory information is available to 
a Federal employee?

    Federal applicants or employees who are subject to a workplace drug 
test may submit a written request through the MRO and/or the Federal 
agency requesting copies of any records relating to their drug test 
results or a documentation package as described in Section 11.23(b) and 
any relevant certification, review, or revocation of certification 
records. Federal applicants or employees, or their designees, are not 
permitted access to their specimens collected pursuant to Executive 
Order 12564, Public Law 100-71, and these Guidelines.

Section 11.25 What types of relationships are prohibited between an 
HHS-certified laboratory and an MRO?

    An HHS-certified laboratory must not enter into any relationship 
with a Federal agency's MRO that may be construed as a potential 
conflict of interest or derive any financial benefit by having a 
Federal agency use a specific MRO.
    This means an MRO may be an employee of the agency or a contractor 
for the agency; however, an MRO shall not be an employee or agent of or 
have any financial interest in the HHS-certified laboratory for which 
the MRO is reviewing drug testing results. Additionally, an MRO shall 
not derive any financial benefit by having an agency use a specific 
HHS-certified laboratory or have any agreement with an HHS-certified 
laboratory that may be construed as a potential conflict of interest.

Section 11.26 What type of relationship can exist between an HHS-
certified laboratory and an HHS-certified IITF?

    An HHS-certified laboratory can enter into any relationship with an 
HHS-certified IITF.

Subpart L--Instrumented Initial Test Facility (IITF)

Section 12.1 What must be included in the HHS-certified IITF's standard 
operating procedure manual?

    (a) An HHS-certified IITF must have a standard operating procedure 
(SOP) manual that describes, in detail, all HHS-certified IITF 
operations. When followed, the SOP manual ensures that all specimens 
are tested consistently using the same procedures.
    (b) The SOP manual must include at a minimum, but is not limited 
to, a detailed description of the following:
    (1) Chain of custody procedures;
    (2) Accessioning;
    (3) Security;
    (4) Quality control/quality assurance programs;
    (5) Analytical methods and procedures;
    (6) Equipment and maintenance programs;
    (7) Personnel training;
    (8) Reporting procedures; and
    (9) Computers, software, and laboratory information management 
systems.
    (c) All procedures in the SOP manual must be compliant with these 
Guidelines and all guidance provided by the Secretary.
    (d) A copy of all procedures that have been replaced or revised and 
the dates on which the procedures were in effect must be maintained for 
two years.

Section 12.2 What are the responsibilities of the responsible 
technician (RT)?

    (a) Manage the day-to-day operations of the HHS-certified IITF even 
if another individual has overall responsibility for alternate areas of 
a multi-specialty facility.
    (b) Ensure that there are sufficient personnel with adequate 
training and experience to supervise and conduct the work of the HHS-
certified IITF. The RT must ensure the continued competency of IITF 
personnel by documenting their in-service training, reviewing their 
work performance, and verifying their skills.
    (c) Maintain a complete and current SOP manual that is available to 
all personnel of the HHS-certified IITF, and ensure that it is 
followed. The SOP manual must be reviewed, signed, and dated by the RT 
when procedures are first placed into use or changed or when a new 
individual assumes responsibility for the management of the HHS-
certified IITF. The SOP must be reviewed and documented by the RT 
annually.
    (d) Maintain a quality assurance program that ensures the proper 
performance and reporting of all test results; verify and monitor 
acceptable analytical performance for all controls and calibrators; 
monitor quality control testing; and document the validity, 
reliability, accuracy, precision, and performance characteristics of 
each test and test system.
    (e) Initiate and implement all remedial actions necessary to 
maintain satisfactory operation and performance of the HHS-certified 
IITF in response to the following: quality control systems not within 
performance specifications, errors in result reporting or in analysis 
of performance testing samples, and inspection deficiencies. The RT 
must ensure that specimen results are not

[[Page 70799]]

reported until all corrective actions have been taken and that the 
results provided are accurate and reliable.

Section 12.3 What qualifications must the RT have?

    An RT must:
    (a) Have at least a bachelor's degree in the chemical or biological 
sciences or medical technology, or equivalent;
    (b) Have training and experience in the analytical methods and 
forensic procedures used by the HHS-certified IITF;
    (c) Have training and experience in reviewing and reporting 
forensic test results and maintaining chain of custody, and an 
understanding of appropriate remedial actions in response to problems 
that may arise;
    (d) Be found to fulfill RT responsibilities and qualifications, as 
demonstrated by the HHS-certified IITF's performance and verified upon 
interview by HHS-trained inspectors during each on-site inspection; and
    (e) Qualify as a certifying technician.

Section 12.4 What happens when the RT is absent or leaves an HHS-
certified IITF?

    (a) HHS-certified IITFs must have an RT and an alternate RT. When 
an RT is absent, an alternate RT must be present and qualified to 
fulfill the responsibilities of the RT.
    (1) If an HHS-certified IITF is without the RT and alternate RT for 
14 calendar days or less (e.g., temporary absence due to vacation, 
illness, business trip), the HHS-certified IITF may continue operations 
and testing of Federal agency specimens under the direction of a 
certifying technician.
    (2) The Secretary, in accordance with these Guidelines, will 
suspend an IITF's HHS certification for all specimens if the IITF does 
not have an RT or alternate RT for a period of more than 14 calendar 
days. The suspension will be lifted upon the Secretary's approval of a 
new permanent RT or alternate RT.
    (b) If the RT leaves an HHS-certified IITF:
    (1) The HHS-certified IITF may maintain certification and continue 
testing federally regulated specimens under the direction of an 
alternate RT for a period of up to 180 days while seeking to hire and 
receive the Secretary's approval of the RT's replacement.
    (2) The Secretary, in accordance with these Guidelines, will 
suspend an IITF's HHS certification for all federally regulated 
specimens if the IITF does not have a permanent RT within 180 days. The 
suspension will be lifted upon the Secretary's approval of the new 
permanent RT.
    (c) To nominate an individual as the RT or alternate RT, the HHS-
certified IITF must submit the following documents to the Secretary: 
the candidate's current resume or curriculum vitae, copies of diplomas 
and licensures, a training plan (not to exceed 90 days) to transition 
the candidate into the position, an itemized comparison of the 
candidate's qualifications to the minimum RT qualifications described 
in the Guidelines, and have official academic transcript(s) submitted 
from the candidate's institution(s) of higher learning. The candidate 
must be found qualified during an on-site inspection of the HHS-
certified IITF.
    (d) The HHS-certified IITF must fulfill additional inspection and 
PT criteria as required prior to conducting federally regulated testing 
under a new RT.

Section 12.5 What qualifications must an individual have to certify a 
result reported by an HHS-certified IITF?

    A certifying technician must have:
    (a) Training and experience in the analytical methods and forensic 
procedures used by the HHS-certified IITF relevant to the results that 
the individual certifies; and
    (b) Training and experience in reviewing and reporting forensic 
test results and maintaining chain of custody, and an understanding of 
appropriate remedial actions in response to problems that may arise.

Section 12.6 What qualifications and training must other personnel of 
an HHS-certified IITF have?

    (a) All HHS-certified IITF staff (e.g., technicians, administrative 
staff) must have the appropriate training and skills for the tasks they 
perform.
    (b) Each individual working in an HHS-certified IITF must be 
properly trained (i.e., receive training in each area of work that the 
individual will be performing, including training in forensic 
procedures related to their job duties) before they are permitted to 
work independently with federally regulated specimens. All training 
must be documented.

Section 12.7 What security measures must an HHS-certified IITF 
maintain?

    (a) An HHS-certified IITF must control access to the drug testing 
facility, specimens, aliquots, and records.
    (b) Authorized visitors must be escorted at all times except for 
individuals conducting inspections (i.e., for the Department, a Federal 
agency, a state, or other accrediting agency) or emergency personnel 
(e.g., firefighters and medical rescue teams).
    (c) An HHS-certified IITF must maintain records documenting the 
identity of the visitor and escort, date, time of entry and exit, and 
purpose for the access to the secured area.

Section 12.8 What are the IITF chain of custody requirements for 
specimens and aliquots?

    (a) HHS-certified IITFs must use chain of custody procedures 
(internal and external) to maintain control and accountability of 
specimens from the time of receipt at the IITF through completion of 
testing, reporting of results, during storage, and continuing until 
final disposition of the specimens.
    (b) HHS-certified IITFs must use chain of custody procedures to 
document the handling and transfer of aliquots throughout the testing 
process until final disposal.
    (c) The chain of custody must be documented using either paper copy 
or electronic procedures.
    (d) Each individual who handles a specimen or aliquot must sign and 
complete the appropriate entries on the chain of custody form when the 
specimen or aliquot is handled or transferred, and every individual in 
the chain must be identified.
    (e) The date and purpose must be recorded on an appropriate chain 
of custody form each time a specimen or aliquot is handled or 
transferred.

Section 12.9 What are the requirements for an initial drug test?

    (a) An initial drug test may be:
    (1) An immunoassay; or
    (2) An alternate technology (e.g., spectrometry, spectroscopy).
    (b) An HHS-certified IITF must validate an initial drug test before 
testing specimens;
    (c) Initial drug tests must be accurate and reliable for the 
testing of urine specimens when identifying drugs or their metabolites.
    (d) An HHS-certified IITF may conduct a second initial drug test 
using a method with different specificity, to rule out cross-reacting 
compounds. This second initial drug test must satisfy the batch quality 
control requirements specified in Section 12.11.

Section 12.10 What must an HHS-certified IITF do to validate an initial 
drug test?

    (a) An HHS-certified IITF must demonstrate and document the 
following for each initial drug test:
    (1) The ability to differentiate negative specimens from those 
requiring further testing;

[[Page 70800]]

    (2) The performance of the test around the cutoff, using samples at 
several concentrations between 0 and 150 percent of the cutoff;
    (3) The effective concentration range of the test (linearity);
    (4) The potential for carryover;
    (5) The potential for interfering substances; and
    (6) The potential matrix effects if using an alternate technology.
    (b) Each new lot of reagent must be verified prior to being placed 
into service.
    (c) Each initial drug test using an alternate technology must be 
re-verified periodically or at least annually.

Section 12.11 What are the batch quality control requirements when 
conducting an initial drug test?

    (a) Each batch of specimens must contain the following calibrators 
and controls:
    (1) At least one control certified to contain no drug or drug 
metabolite;
    (2) At least one positive control with the drug or drug metabolite 
targeted at a concentration 25 percent above the cutoff;
    (3) At least one control with the drug or drug metabolite targeted 
at a concentration 75 percent of the cutoff; and
    (4) At least one control that appears as a donor specimen to the 
analysts.
    (b) Calibrators and controls must total at least 10 percent of the 
aliquots analyzed in each batch.

Section 12.12 What are the analytical and quality control requirements 
for conducting specimen validity tests?

    (a) Each specimen validity test result must be based on performing 
a single test on one aliquot;
    (b) The HHS-certified IITF must establish acceptance criteria and 
analyze calibrators and controls as appropriate to verify and document 
the validity of the test results in accordance with Section 12.14; and
    (c) Controls must be analyzed concurrently with specimens.

Section 12.13 What must an HHS-certified IITF do to validate a specimen 
validity test?

    An HHS-certified IITF must demonstrate and document for each 
specimen validity test the appropriate performance characteristics of 
the test, and must re-verify the test periodically, or at least 
annually. Each new lot of reagent must be verified prior to being 
placed into service.

Section 12.14 What are the requirements for conducting each specimen 
validity test?

    (a) The requirements for measuring creatinine concentration are as 
follows:
    (1) The creatinine concentration must be measured to one decimal 
place on the test;
    (2) The creatinine test must have the following calibrators and 
controls:
    (i) A calibrator at 2 mg/dL;
    (ii) A control in the range of 1.0 mg/dL to 1.5 mg/dL;
    (iii) A control in the range of 3 mg/dL to 20 mg/dL; and
    (iv) A control in the range of 21 mg/dL to 25 mg/dL.
    (b) The requirements for measuring specific gravity are as follows:
    (1) For specimens with creatinine test results greater than 5 mg/dL 
and less than 20 mg/dL, an IITF must perform a screening test using a 
refractometer to identify specific gravity values that are acceptable 
(equal to or greater than1.003) or dilute (equal to or greater 
than1.002 and less than1.003). Specimens must be forwarded to an HHS-
certified laboratory when the creatinine test result is less than or 
equal to 5 mg/dL or when the screening specific gravity test result is 
less than 1.002.
    (2) The screening specific gravity test must have the following 
calibrators and controls:
    (i) A calibrator or control at 1.000;
    (ii) One control targeted at 1.002; and
    (iii) One control in the range of 1.004 to 1.018.
    (c) The requirements for measuring pH are as follows:
    (1) The IITF may perform the pH test using a pH meter, colorimetric 
pH test, dipsticks, or pH paper. Specimens must be forwarded to an HHS-
certified laboratory when the pH is less than 4.5 or equal to or 
greater than 9.0.
    (2) The pH test must have, at a minimum, the following calibrators 
and controls:
    (i) One control below 4.5;
    (ii) One control between 4.5 and 9.0;
    (iii) One control above 9.0; and
    (iv) One or more calibrators as appropriate for the test. For a pH 
meter: calibrators at 4, 7, and 10.
    (d) The requirements for measuring the nitrite concentration are 
that the nitrite test must have a calibrator at 200 mcg/mL nitrite, a 
control without nitrite (i.e., certified negative urine), one control 
in the range of 200 mcg/mL to 250 mcg/mL, and one control in the range 
of 500 mcg/mL to 625 mcg/mL. Specimens with a nitrite concentration 
equal to or greater than 200 mcg/mL must be forwarded to an HHS-
certified laboratory; and,
    (e) Requirements for performing oxidizing adulterant tests are that 
the test must include an appropriate calibrator at the cutoff specified 
in Section 11.19(d)(3), (4), or (6) for the compound of interest, a 
control without the compound of interest (i.e., a certified negative 
control), and at least one control with one of the compounds of 
interest at a measurable concentration. Specimens with an oxidizing 
adulterant result equal to or greater than the cutoff must be forwarded 
to an HHS-certified laboratory.

Section 12.15 What are the requirements for an HHS-certified IITF to 
report a test result?

    (a) An HHS-certified IITF must report a test result to the agency's 
MRO within an average of 3 working days after receipt of the specimen. 
Reports must use the Federal CCF and/or an electronic report. Before 
any test result can be reported, it must be certified by a certifying 
technician.
    (b) A primary (A) specimen is reported negative when each drug test 
is negative and each specimen validity test result indicates that the 
specimen is a valid urine specimen.
    (c) A primary (A) urine specimen is reported dilute when the 
creatinine concentration is greater than 5 mg/dL but less than 20 mg/dL 
and the specific gravity is equal to or greater than 1.002 but less 
than 1.003.
    (d) An HHS-certified IITF shall reject a urine specimen for testing 
when a fatal flaw occurs as described in Section 15.1 or when a 
correctable flaw as described in Section 15.2 is not recovered. The 
HHS-certified IITF will indicate on the Federal CCF that the specimen 
was rejected for testing and provide the reason for reporting the 
rejected for testing result.
    (e) An HHS-certified IITF must report results using the HHS-
specified nomenclature published with the drug and biomarker testing 
panels.
    (f) HHS-certified IITFs may transmit test results to the MRO by 
various electronic means (e.g., fax, computer). Transmissions of the 
reports must ensure confidentiality and the results may not be reported 
verbally by telephone. IITFs and external service providers must ensure 
the confidentiality, integrity, and availability of the data and limit 
access to any data transmission, storage, and retrieval system.
    (g) HHS-certified IITFs must fax, courier, mail, or electronically 
transmit a legible image or copy of the completed Federal CCF and/or 
forward a computer-generated electronic report. The

[[Page 70801]]

computer-generated report must contain sufficient information to ensure 
that the test results can accurately represent the content of the 
custody and control form that the MRO received from the collector.
    (h) For rejected specimens, IITFs must fax, courier, mail, or 
electronically transmit a legible image or copy of the completed 
Federal CCF.

Section 12.16 How does an HHS-certified IITF handle a specimen that 
tested positive, adulterated, substituted, or invalid at the IITF?

    (a) The remaining specimen is resealed using a tamper-evident 
label/seal;
    (b) The individual resealing the remaining specimen initials and 
dates the tamper-evident label/seal; and
    (c) The resealed specimen and split specimen and the Federal CCF 
are sealed in a leak-proof plastic bag, and are sent to an HHS-
certified laboratory under chain of custody within one day after 
completing the drug and specimen validity tests.

Section 12.17 How long must an HHS-certified IITF retain a specimen?

    A specimen that is negative, negative/dilute, or rejected for 
testing is discarded.

Section 12.18 How long must an HHS-certified IITF retain records?

    (a) An HHS-certified IITF must retain all records generated to 
support test results for at least 2 years. The IITF may convert 
hardcopy records to electronic records for storage and then discard the 
hardcopy records after six months.
    (b) A Federal agency may request the HHS-certified IITF to maintain 
a documentation package (as described in Section 12.20) that supports 
the chain of custody, testing, and reporting of a donor's specimen that 
is under legal challenge by a donor. The Federal agency's request to 
the IITF must be in writing and must specify the period of time to 
maintain the documentation package.
    (c) An HHS-certified IITF may retain records other than those 
included in the documentation package beyond the normal two-year period 
of time.

Section 12.19 What statistical summary reports must an HHS-certified 
IITF provide?

    (a) HHS-certified IITFs must provide to each Federal agency for 
which they perform testing a semiannual statistical summary report that 
must be submitted by mail, fax, or email within 14 working days after 
the end of the semiannual period. The summary report must not include 
any personally identifiable information. A copy of the semiannual 
statistical summary report will also be sent to the Secretary or 
designated HHS representative. The semiannual statistical report 
contains the following information:
    (1) Reporting period (inclusive dates);
    (2) HHS-certified IITF name and address;
    (3) Federal agency name;
    (4) Total number of specimens tested;
    (5) Number of specimens collected by reason for test;
    (6) Number of specimens reported negative and the number reported 
negative/dilute;
    (7) Number of specimens rejected for testing because of a fatal 
flaw;
    (8) Number of specimens rejected for testing because of an 
uncorrected flaw;
    (9) Number of specimens tested positive by each initial drug test; 
and
    (10) Number of specimens forwarded to an HHS-certified laboratory 
for testing.
    (b) An HHS-certified IITF must make copies of an agency's test 
results available when requested to do so by the Secretary or by the 
Federal agency for which the IITF is performing drug-testing services.
    (c) An HHS-certified IITF must ensure that a qualified individual 
is available to testify in a proceeding against a Federal employee when 
the proceeding is based on a test result reported by the IITF.

Section 12.20 What HHS-certified IITF information is available to a 
Federal agency?

    (a) Following a Federal agency's receipt of a positive, 
adulterated, or substituted drug test report from a laboratory, the 
Federal agency may submit a written request for copies of the IITF 
records relating to the drug test results or a documentation package or 
any relevant certification, review, or revocation of certification 
records.
    (b) Standard documentation packages provided by an HHS-certified 
IITF must contain the following items:
    (1) A cover sheet providing a brief description of the procedures 
and tests performed on the donor's specimen;
    (2) A table of contents that lists all documents and materials in 
the package by page number;
    (3) A copy of the Federal CCF with any attachments, internal chain 
of custody records for the specimen, memoranda (if any) generated by 
the HHS-certified IITF, and a copy of the electronic report (if any) 
generated by the HHS-certified IITF;
    (4) A brief description of the HHS-certified IITF's drug and 
specimen validity testing procedures, instrumentation, and batch 
quality control requirements;
    (5) Copies of all test data for the donor's specimen with all 
calibrators and controls and copies of all internal chain of custody 
documents related to the tests; and
    (6) Copies of the r[eacute]sum[eacute] or curriculum vitae for the 
RT and for the certifying technician of record.

Section 12.21 What HHS-certified IITF information is available to a 
Federal employee?

    A Federal employee who is the subject of a drug test may provide a 
written request through the MRO and/or the Federal agency requesting 
access to any records relating to the employee's drug test results or a 
documentation package (as described in Section 12.20) and any relevant 
certification, review, or revocation of certification records.

Section 12.22 What types of relationships are prohibited between an 
HHS-certified IITF and an MRO?

    An HHS-certified IITF must not enter into any relationship with a 
Federal agency's MRO that may be construed as a potential conflict of 
interest or derive any financial benefit by having a Federal agency use 
a specific MRO.
    This means an MRO may be an employee of the agency or a contractor 
for the agency; however, an MRO shall not be an employee or agent of or 
have any financial interest in the HHS-certified IITF for which the MRO 
is reviewing drug testing results. Additionally, an MRO shall not 
derive any financial benefit by having an agency use a specific HHS-
certified IITF or have any agreement with an HHS-certified IITF that 
may be construed as a potential conflict of interest.

Section 12.23 What type of relationship can exist between an HHS-
certified IITF and an HHS-certified laboratory?

    An HHS-certified IITF can enter into any relationship with an HHS-
certified laboratory.

Subpart M--Medical Review Officer (MRO)

Section 13.1 Who may serve as an MRO?

    (a) A currently licensed physician who has:
    (1) A Doctor of Medicine (M.D.) or Doctor of Osteopathy (D.O.) 
degree;
    (2) Knowledge regarding the pharmacology and toxicology of illicit 
drugs;
    (3) The training necessary to serve as an MRO as set out in Section 
13.3;

[[Page 70802]]

    (4) Satisfactorily passed an initial examination administered by a 
nationally recognized entity or a subspecialty board that has been 
approved by the Secretary to certify MROs; and
    (5) At least every five years from initial certification, completed 
requalification training on the topics in Section 13.3 and 
satisfactorily passed a requalification examination administered by a 
nationally recognized entity or a subspecialty board that has been 
approved by the Secretary to certify MROs.

Section 13.2 How are nationally recognized entities or subspecialty 
boards that certify MROs approved?

    All nationally recognized entities or subspecialty boards which 
seek approval by the Secretary to certify physicians as MROs for 
Federal workplace drug testing programs must submit their 
qualifications, a sample examination, and other necessary supporting 
examination materials (e.g., answers, previous examination statistics 
or other background examination information, if requested). Approval 
will be based on an objective review of qualifications that include a 
copy of the MRO applicant application form, documentation that the 
continuing education courses are accredited by a professional 
organization, and the delivery method and content of the examination. 
Each approved MRO certification entity must resubmit their 
qualifications for approval every two years. The Secretary shall 
publish at least every two years a notification in the Federal Register 
listing those entities and subspecialty boards that have been approved. 
This notification is also available on the internet at https://www.samhsa.gov/workplace.

Section 13.3 What training is required before a physician may serve as 
an MRO?

    (a) A physician must receive training that includes a thorough 
review of the following:
    (1) The collection procedures used to collect Federal agency 
specimens;
    (2) How to interpret test results reported by HHS-certified IITFs 
and laboratories (e.g., negative, negative/dilute, positive, 
adulterated, substituted, rejected for testing, and invalid);
    (3) Chain of custody, reporting, and recordkeeping requirements for 
Federal agency specimens;
    (4) The HHS Mandatory Guidelines for Federal Workplace Drug Testing 
Programs for all authorized specimen types; and
    (5) Procedures for interpretation, review (e.g., donor interview 
for legitimate medical explanations, review of documentation provided 
by the donor to support a legitimate medical explanation), and 
reporting of results specified by any Federal agency for which the 
individual may serve as an MRO;
    (b) Certified MROs must complete training on any revisions to these 
Guidelines including any changes to the drug and biomarker testing 
panels prior to their effective date, to continue serving as an MRO for 
Federal agency specimens.

Section 13.4 What are the responsibilities of an MRO?

    (a) The MRO must review all positive, adulterated, rejected for 
testing, invalid, and substituted test results.
    (b) Staff under the direct, personal supervision of the MRO may 
review and report negative and (for urine) negative/dilute test results 
to the agency's designated representative. The MRO must review at least 
5 percent of all negative results reported by the MRO staff to ensure 
that the MRO staff are properly performing the review process.
    (c) The MRO must discuss potential invalid results with the HHS-
certified laboratory, as addressed in Section 11.19(g) to determine 
whether testing at another HHS-certified laboratory may be warranted.
    (d) After receiving a report from an HHS-certified laboratory or 
(for urine) HHS-certified IITF, the MRO must:
    (1) Review the information on the MRO copy of the Federal CCF that 
was received from the collector and the report received from the HHS-
certified laboratory or HHS-certified IITF;
    (2) Interview the donor when required;
    (3) Make a determination regarding the test result; and
    (4) Report the verified result to the Federal agency.
    (e) The MRO must maintain records for a minimum of two years while 
maintaining the confidentiality of the information. The MRO may convert 
hardcopy records to electronic records for storage and discard the 
hardcopy records after six months.
    (f) The MRO must conduct a medical examination or a review of the 
examining physician's findings and make a determination of refusal to 
test or cancelled test when a collector reports that the donor was 
unable to provide a specimen and an alternate specimen was not 
collected, as addressed in Sections 8.6 and 13.6.

Section 13.5 What must an MRO do when reviewing a urine specimen's test 
results?

    (a) When the HHS-certified laboratory or HHS-certified IITF reports 
a negative result for the primary (A) specimen, the MRO reports a 
negative result to the agency.
    (b) When the HHS-certified laboratory or HHS-certified IITF reports 
a negative/dilute result for the primary (A) urine specimen, the MRO 
reports a negative/dilute result to the agency and directs the agency 
to immediately collect another specimen from the donor.
    (1) If the recollected specimen provides a negative or negative/
dilute result, the MRO reports a negative result to the agency, with no 
further action required.
    (2) If the recollected specimen provides a result other than 
negative or negative/dilute, the MRO follows the procedures in Section 
13.5(c) through (f) for the recollected specimen.
    (c) When the HHS-certified laboratory reports multiple results for 
the primary (A) urine specimen, the MRO must follow the verification 
procedures described in Section 13.5(d) through (f) and:
    (1) The MRO reports all verified positive and/or refusal to test 
results to the Federal agency.
    (2) If an invalid result was reported in conjunction with a 
positive, adulterated, or substituted result, the MRO does not report 
the verified invalid result to the Federal agency at this time. The MRO 
takes action for the verified invalid result(s) for the primary (A) 
specimen as described in Section 13.5(f) only when:
    (i) The MRO verifies the positive, adulterated, or substituted 
result as negative based on a legitimate medical explanation as 
described in Section 13.5(d)(2) and (e)(1); or
    (ii) The split (B) specimen is tested and reported as a failure to 
reconfirm the positive, adulterated, or substituted result as described 
in Section 14.6(m).
    (d) When the HHS-certified laboratory reports a positive result for 
the primary (A) specimen, the MRO must contact the donor to determine 
if there is any legitimate medical explanation for the positive result.
    (1) If the donor admits unauthorized use of the drug(s) that caused 
the positive result, the MRO reports the test result as positive to the 
agency. The MRO must document the donor's admission of unauthorized 
drug use in the MRO records and in the MRO's report to the Federal 
agency.
    (2) If the donor provides documentation (e.g., a valid 
prescription) to support a legitimate

[[Page 70803]]

medical explanation for the positive result, the MRO reports the test 
result as negative to the agency. If the laboratory also reports that 
the urine specimen is dilute, the MRO reports a negative/dilute result 
to the agency and directs the agency to immediately collect another 
specimen from the donor. The MRO follows the procedures in Section 
13.5(b)(1) or (2) for the recollected specimen.
    (i) Passive exposure to a drug (e.g., exposure to marijuana smoke) 
is not a legitimate medical explanation for a positive drug test 
result.
    (ii) Ingestion of food products containing a drug (e.g., products 
containing marijuana, poppy seeds containing codeine and/or morphine) 
is not a legitimate medical explanation for a positive urine drug test 
result.
    (iii) A physician's authorization or medical recommendation for a 
Schedule 1 controlled substance is not a legitimate medical explanation 
for a positive drug test result.
    (3) If the donor is unable to provide a legitimate medical 
explanation for the positive result, the MRO reports the positive 
result to the agency. If the laboratory also reports that the urine 
specimen is dilute, the MRO may choose not to report the dilute result.
    (e) When the HHS-certified laboratory reports an adulterated or 
substituted result for the primary (A) urine specimen, the MRO contacts 
the donor to determine if the donor has a legitimate medical 
explanation for the adulterated or substituted result.
    (1) If the donor provides a legitimate medical explanation, the MRO 
reports a negative result to the Federal agency.
    (2) If the donor is unable to provide a legitimate medical 
explanation, the MRO reports a refusal to test to the Federal agency 
because the urine specimen was adulterated or substituted.
    (f) When the HHS-certified laboratory reports an invalid result for 
the primary (A) urine specimen, the MRO must contact the donor to 
determine if there is a legitimate explanation for the invalid result. 
In the case of an invalid result based on pH of 9.0 to 9.5, when an 
employee has no other medical explanation for the pH in this range, the 
MRO must consider whether there is evidence of elapsed time and high 
temperature that could account for the pH value. The MRO may contact 
the collection site, HHS-certified IITF, and/or HHS-certified 
laboratory to discuss time and temperature issues (e.g., time elapsed 
from collection to receipt at the testing facility, likely temperature 
conditions between the time of the collection and transportation to the 
testing facility, specimen storage conditions).
    (1) If the donor provides a legitimate explanation (e.g., a 
prescription medicine) or if the MRO determines that time and 
temperature account for the pH in the 9.0 to 9.5 range, the MRO reports 
a test cancelled result with the reason for the invalid result and 
informs the Federal agency that a recollection is not required because 
there is a legitimate explanation for the invalid result.
    (2) If the donor is unable to provide a legitimate explanation or 
if the MRO determines that time and temperature fail to account for the 
pH in the 9.0-9.5 range, the MRO reports a test cancelled result with 
the reason for the invalid result and directs the Federal agency to 
immediately collect another urine specimen from the donor using a 
direct observed collection.
    (i) If the specimen collected under direct observation provides a 
valid result, the MRO follows the procedures in Section 13.5(a) through 
(e).
    (ii) If the specimen collected under direct observation provides an 
invalid result, the MRO reports this specimen as test cancelled and 
recommends that the agency collect another authorized specimen type 
(e.g., oral fluid). If the Federal agency does not authorize collection 
of another specimen type, the MRO consults with the agency to arrange a 
clinical evaluation as described in Section 13.7, to determine whether 
there is a legitimate medical reason for the invalid result.
    (g) When two separate specimens collected during the same testing 
event were sent to the HHS-certified laboratory for testing (e.g., the 
collector sent a urine specimen out of temperature range and the 
subsequently collected specimen--urine or another authorized specimen 
type), as the MRO, you must follow the verification procedures 
described in Sections 13.4, 13.5, and 13.6, and:
    (1) If both specimens were verified negative, report the result as 
negative.
    (2) If one specimen was verified negative and the other was not 
(i.e., the specimen was verified as negative/dilute or as positive, 
adulterated, substituted, and/or invalid), report only the verified 
result(s) other than negative. For example, if you verified one 
specimen as negative and the other as a refusal to test because the 
specimen was substituted, report only the refusal to the Federal 
agency.
    (3) If both specimens were verified as positive, adulterated, and/
or substituted, report all results. For example, if you verified one 
specimen as positive and the other as a refusal to test because the 
specimen was adulterated, report the positive and the refusal results 
to the Federal agency.
    (4) If one specimen has been verified and the HHS-certified 
laboratory has not reported the result(s) of the other specimen,
    (i) Report verified result(s) of positive, adulterated, or 
substituted immediately and do not wait to receive the result(s) of the 
other specimen.
    (ii) Do not report a verified result of negative, negative/dilute, 
or invalid for the first specimen to the Federal agency. Hold the 
report until results of both specimens have been received and verified.
    (5) When the HHS-certified laboratory reports an invalid result for 
one or both specimens, follow the procedures in Section 13.5(c).
    (h) When the HHS-certified laboratory or HHS-certified IITF reports 
a rejected for testing result for the primary (A) specimen, the MRO 
reports a test cancelled result to the agency and recommends that the 
agency collect another specimen from the donor. The recollected 
specimen must be the same type (i.e., urine).

Section 13.6 What action does the MRO take when the collector reports 
that the donor did not provide a sufficient amount of urine for a drug 
test?

    (a) When another specimen type (e.g., oral fluid) was collected in 
accordance with Section 8.6, the MRO reviews and reports the test 
result in accordance with the Mandatory Guidelines for Federal 
Workplace Drug Testing Programs using the alternate specimen.
    (b) When the Federal agency did not authorize the collection of an 
alternate specimen, the MRO consults with the Federal agency. The 
Federal agency immediately directs the donor to obtain, within five 
days, an evaluation from a licensed physician, acceptable to the MRO, 
who has expertise in the medical issues raised by the donor's failure 
to provide a specimen. The MRO may perform this evaluation if the MRO 
has appropriate expertise.
    (1) For purposes of this section, a medical condition includes an 
ascertainable physiological condition (e.g., a urinary system 
dysfunction) or a medically documented pre-existing psychological 
disorder, but does not include unsupported assertions of ``situational 
anxiety'' or dehydration. Permanent or long-term medical conditions are 
those physiological, anatomic, or psychological abnormalities 
documented as being present prior to the attempted collection, and 
considered not amenable

[[Page 70804]]

to correction or cure for an extended period of time. Examples would 
include destruction (any cause) of the glomerular filtration system 
leading to renal failure; unrepaired traumatic disruption of the 
urinary tract; or a severe psychiatric disorder focused on 
genitourinary matters. Acute or temporary medical conditions, such as 
cystitis, urethritis, or prostatitis, though they might interfere with 
collection for a limited period of time, cannot receive the same 
exceptional consideration as the permanent or long-term conditions 
discussed in the previous sentence.
    (2) As the MRO, if another physician will perform the evaluation, 
you must provide the other physician with the following information and 
instructions:
    (i) That the donor was required to take a federally regulated drug 
test, but was unable to provide a sufficient amount of urine to 
complete the test;
    (ii) The consequences of the appropriate Federal agency regulation 
for refusing to take the required drug test;
    (iii) That, after completing the evaluation, the referral physician 
must agree to provide a written statement to the MRO with a 
recommendation for one of the determinations described in Section 
13.6(b)(3) and the basis for the recommendation. The statement must not 
include detailed information on the employee's medical condition beyond 
what is necessary to explain the referral physician's conclusion.
    (3) As the MRO, if another physician performed the evaluation, you 
must consider and assess the referral physician's recommendations in 
making your determination. You must make one of the following 
determinations and report it to the Federal agency in writing:
    (i) A medical condition as defined in Section 13.6(b)(1) has, or 
with a high degree of probability could have, precluded the employee 
from providing a sufficient amount of urine, but is not a permanent or 
long-term disability. As the MRO, you must report a test cancelled 
result to the Federal agency.
    (ii) A permanent or long-term medical condition as defined in 
Section 13.6(b)(1) has, or with a high degree of probability could 
have, precluded the employee from providing a sufficient amount of 
urine and is highly likely to prevent the employee from providing a 
sufficient amount of urine for a very long or indefinite period of 
time. As the MRO, you must follow the requirements of Section 13.7, as 
appropriate. If Section 13.7 is not applicable, you report a test 
cancelled result to the Federal agency and recommend that the agency 
authorize collection of an alternate specimen type (e.g., oral fluid) 
for any subsequent drug tests for the donor.
    (iii) There is not an adequate basis for determining that a medical 
condition has, or with a high degree of probability could have, 
precluded the employee from providing a sufficient amount of urine. As 
the MRO, you must report a refusal to test to the Federal agency.
    (4) When a Federal agency receives a report from the MRO indicating 
that a test is cancelled as provided in Section 13.6(b)(3)(i), the 
agency takes no further action with respect to the donor. When a test 
is canceled as provided in Section 13.6(b)(3)(ii), the agency takes no 
further action with respect to the donor other than designating 
collection of an alternate specimen type (i.e., authorized by the 
Mandatory Guidelines for Federal Workplace Drug Testing Programs) for 
any subsequent collections, in accordance with the Federal agency plan. 
The donor remains in the random testing pool.

Section 13.7 What happens when an individual is unable to provide a 
sufficient amount of urine for a Federal agency applicant/pre-
employment test, a follow-up test, or a return-to-duty test because of 
a permanent or long-term medical condition?

    (a) This section concerns a situation in which the donor has a 
medical condition that precludes the donor from providing a sufficient 
specimen for a Federal agency applicant/pre-employment test, a follow-
up test, or a return-to-duty test and the condition involves a 
permanent or long-term disability and the Federal agency does not 
authorize collection of an alternate specimen. As the MRO in this 
situation, you must do the following:
    (1) You must determine if there is clinical evidence that the 
individual is an illicit drug user. You must make this determination by 
personally conducting, or causing to be conducted, a medical evaluation 
and through consultation with the donor's physician and/or the 
physician who conducted the evaluation under Section 13.6.
    (2) If you do not personally conduct the medical evaluation, you 
must ensure that one is conducted by a licensed physician acceptable to 
you.
    (b) If the medical evaluation reveals no clinical evidence of 
illicit drug use, as the MRO, you must report the result to the Federal 
agency as a negative test with written notations regarding results of 
both the evaluation conducted under Section 13.6 and any further 
medical examination. This report must state the basis for the 
determination that a permanent or long-term medical condition exists, 
making provision of a sufficient urine specimen impossible, and for the 
determination that no signs and symptoms of drug use exist. The MRO 
recommends that the agency authorize collection of an alternate 
specimen type (e.g., oral fluid) for any subsequent collections.
    (c) If the medical evaluation reveals clinical evidence of drug 
use, as the MRO, you must report the result to the Federal agency as a 
cancelled test with written notations regarding results of both the 
evaluation conducted under Section 13.6 and any further medical 
examination. This report must state that a permanent or long-term 
medical condition [as defined in Section 13.6(b)(1)] exists, making 
provision of a sufficient urine specimen impossible, and state the 
reason for the determination that signs and symptoms of drug use exist. 
Because this is a cancelled test, it does not serve the purposes of a 
negative test (e.g., the Federal agency is not authorized to allow the 
donor to begin or resume performing official functions, because a 
negative test is needed for that purpose).

Section 13.8 How does an MRO report a primary (A) specimen test result 
to an agency?

    (a) The MRO must report all verified results to an agency using the 
completed MRO copy of the Federal CCF or a separate report using a 
letter/memorandum format. The MRO may use various electronic means for 
reporting (e.g., fax, computer). Transmissions of the reports must 
ensure confidentiality. The MRO and external service providers must 
ensure the confidentiality, integrity, and availability of the data and 
limit access to any data transmission, storage, and retrieval system.
    (b) A verified result may not be reported to the agency until the 
MRO has completed the review process.
    (c) The MRO must send a copy of either the completed MRO copy of 
the Federal CCF or the separate letter/memorandum report for all 
positive, adulterated, and substituted results.
    (d) The MRO must not disclose numerical values of drug test results 
to the agency.
    (e) The MRO must report drug test results using the HHS-specified 
nomenclature published with the drug and biomarker testing panels.

Section 13.9 Who may request a test of a split (B) specimen?

    (a) For a positive, adulterated, or substituted result reported on 
a primary (A) specimen, a donor may request through the MRO that the 
split (B)

[[Page 70805]]

specimen be tested by a second HHS-certified laboratory to verify the 
result reported by the first HHS-certified laboratory.
    (b) The donor has 72 hours (from the time the MRO notified the 
donor that the donor's specimen was reported positive, adulterated, or 
substituted to request a test of the split (B) specimen. The MRO must 
inform the donor that the donor has the opportunity to request a test 
of the split (B) specimen when the MRO informs the donor that a 
positive, adulterated, or substituted result is being reported to the 
Federal agency on the primary (A) specimen.

Section 13.10 What types of relationships are prohibited between an MRO 
and an HHS-certified laboratory or an HHS-certified IITF?

    An MRO must not be an employee, agent of, or have any financial 
interest in an HHS-certified laboratory or an HHS-certified IITF for 
which the MRO is reviewing drug test results.
    This means an MRO must not derive any financial benefit by having 
an agency use a specific HHS-certified laboratory or HHS-certified 
IITF, or have any agreement with the HHS-certified laboratory or the 
HHS-certified IITF that may be construed as a potential conflict of 
interest.

Section 13.11 What reports must an MRO provide to the Secretary for 
urine testing?

    (a) An MRO must send to the Secretary or designated HHS 
representative a semiannual report of Federal agency specimens that 
were reported as positive for a drug or drug metabolite by a laboratory 
and verified as negative by the MRO. The report must not include any 
personally identifiable information for the donor and must be submitted 
by mail, fax, or other secure electronic transmission method within 14 
working days after the end of the semiannual period (i.e., in January 
and July). The semiannual report must contain the following 
information:
    (1) Reporting period (inclusive dates);
    (2) MRO name, company name, and address;
    (3) Federal agency name; and
    (4) For each laboratory-reported positive drug test result that was 
verified as negative by the MRO:
    (i) Specimen identification number;
    (ii) Laboratory name and address;
    (iii) Positive drug(s) or drug metabolite(s) verified as negative;
    (iv) MRO reason for verifying the positive drug(s) or drug 
metabolite(s) as negative (e.g., a donor prescription [the MRO must 
specify the prescribed drug]);
    (v) All results reported to the Federal agency by the MRO for the 
specimen; and
    (vi) Date of the MRO report to the Federal agency.
    (b) An MRO must provide copies of the drug test reports that the 
MRO has sent to a Federal agency when requested to do so by the 
Secretary.
    (c) If an MRO did not verify any positive laboratory results as 
negative during the reporting period, the MRO should file a report that 
states that the MRO has no reportable results during the applicable 
reporting period.

Section 13.12 What are a Federal agency's responsibilities for 
designating an MRO?

    (a) Before allowing an individual to serve as an MRO for the 
agency, a Federal agency must verify and document the following:
    (1) that the individual satisfies all requirements in Section 13.1, 
including certification by an MRO certification organization that has 
been approved by the Secretary, as described in Section 13.2; and
    (2) that the individual is not an employee, agent of, or have any 
financial interest in an HHS-certified laboratory or an HHS-certified 
IITF that tests the agency's specimens, as described in Section 13.10.
    (b) The Federal agency must verify and document that each MRO 
reviewing and reporting results for the agency:
    (1) completes training on any revisions to these Guidelines, 
including any changes to the drug and biomarker testing panels, prior 
to their effective date;
    (2) at least every five years, maintains their certification by 
completing requalification training and passing a requalification 
examination; and
    (3) provides biannual reports to the Secretary or designated HHS 
representative as required in Section 13.11;
    (c) The Federal agency must ensure that each MRO reports drug test 
results to the agency in accordance with Sections 13.8 and 14.7.
    (1) Before allowing an MRO to report results electronically, the 
agency must obtain documentation from the MRO to confirm that the MRO 
and any external service providers ensure the confidentiality, 
integrity, and availability of the data and limit access to any data 
transmission, storage, and retrieval system.

Subpart N--Split Specimen Tests

Section 14.1 When may a split (B) urine specimen be tested?

    (a) The donor may request, verbally or in writing, through the MRO 
that the split (B) urine specimen be tested at a different (i.e., 
second) HHS-certified laboratory when the primary (A) specimen was 
determined by the MRO to be positive, adulterated, or substituted.
    (b) A donor has 72 hours to initiate the request after being 
informed of the result by the MRO. The MRO must document in the MRO's 
records the verbal request from the donor to have the split (B) 
specimen tested.
    (c) If a split (B) urine specimen cannot be tested by a second HHS-
certified laboratory (e.g., insufficient specimen, lost in transit, 
split not available, no second HHS-certified laboratory to perform the 
test), the MRO reports a cancelled test to the Federal agency and the 
reason for the cancellation. The MRO directs the Federal agency to 
ensure the immediate recollection of another urine specimen from the 
donor under direct observation, with no notice given to the donor of 
this collection requirement until immediately before the collection.
    (d) If a donor chooses not to have the split (B) specimen tested by 
a second HHS-certified laboratory, a Federal agency may have a split 
(B) specimen retested as part of a legal or administrative proceeding 
to defend an original positive, adulterated, or substituted result.

Section 14.2 How does an HHS-certified laboratory test a split (B) 
specimen when the primary (A) specimen was reported positive?

    (a) The testing of a split (B) specimen for a drug or metabolite is 
not subject to the testing cutoffs established.
    (b) The HHS-certified laboratory is only required to confirm the 
presence of the drug or metabolite that was reported positive in the 
primary (A) specimen.
    (c) For a split (B) urine specimen, if the second HHS-certified 
laboratory fails to reconfirm the presence of the drug or drug 
metabolite that was reported by the first HHS-certified laboratory, the 
second laboratory must conduct specimen validity tests in an attempt to 
determine the reason for being unable to reconfirm the presence of the 
drug or drug metabolite. The second laboratory should conduct the same 
specimen validity tests as it would conduct on a primary (A) urine 
specimen and reports those results to the MRO.

[[Page 70806]]

Section 14.3 How does an HHS-certified laboratory test a split (B) 
urine specimen when the primary (A) specimen was reported adulterated?

    (a) An HHS-certified laboratory must use one of the following 
criteria to reconfirm an adulterated result when testing a split (B) 
urine specimen:
    (1) pH must be measured using the laboratory's confirmatory pH test 
with the appropriate cutoff (i.e., either less than 4 or equal to or 
greater than 11);
    (2) Nitrite must be measured using the laboratory's confirmatory 
nitrite test with a cutoff of equal to or greater than 500 mcg/mL;
    (3) Surfactant must be measured using the laboratory's confirmatory 
surfactant test with a cutoff of equal to or greater than 100 mcg/mL 
dodecylbenzene sulfonate-equivalent cutoff; or
    (4) For adulterants without a specified cutoff (e.g., 
glutaraldehyde, chromium (VI), pyridine, halogens (such as, chlorine 
from bleach, iodine), peroxidase, peroxide, other oxidizing agents), 
the laboratory must use its confirmatory specimen validity test at an 
established LOQ to reconfirm the presence of the adulterant.
    (b) The second HHS-certified laboratory may only conduct the 
confirmatory specimen validity test(s) needed to reconfirm the 
adulterated result reported by the first HHS-certified laboratory.

Section 14.4 How does an HHS-certified laboratory test a split (B) 
urine specimen when the primary (A) specimen was reported substituted?

    (a) An HHS-certified laboratory must use the following criteria to 
reconfirm a substituted result when testing a split (B) urine specimen:
    (1) For substitution based on creatinine and specific gravity 
testing: The creatinine must be measured using the laboratory's 
confirmatory creatinine test with a cutoff of less than 2 mg/dL, and 
the specific gravity must be measured using the laboratory's 
confirmatory specific gravity test with the specified cutoffs of less 
than or equal to 1.0010 or equal to or greater than 1.0200.
    (2) For substitution based on biomarker testing: The laboratory 
must test for the biomarker using its confirmatory test (i.e., using 
the confirmatory test analytes and cutoffs in the biomarker testing 
panel).
    (b) The second HHS-certified laboratory may only conduct the 
confirmatory specimen validity test(s) needed to reconfirm the 
substituted result reported by the first HHS-certified laboratory.

Section 14.5 Who receives the split (B) specimen result?

    The second HHS-certified laboratory must report the result to the 
MRO using the HHS-specified nomenclature published with the drug and 
biomarker testing panels.

Section 14.6 What action(s) does an MRO take after receiving the split 
(B) urine specimen result from the second HHS-certified laboratory?

    The MRO takes the following actions when the second HHS-certified 
laboratory reports the result for the split (B) urine specimen as:
    (a) Reconfirmed the drug(s), adulteration, and/or substitution 
result. The MRO reports reconfirmed to the agency.
    (b) Failed to reconfirm a single or all drug positive results and 
the specimen was adulterated. If the donor provides a legitimate 
medical explanation for the adulteration result, the MRO reports a 
failed to reconfirm result (specifying the drug[s]) and cancels both 
tests. If there is no legitimate medical explanation, the MRO reports a 
failed to reconfirm result (specifying the drug[s]) and a refusal to 
test to the agency and indicates the adulterant that is present in the 
specimen. The MRO gives the donor 72 hours to request that Laboratory A 
retest the primary (A) specimen for the adulterant. If Laboratory A 
reconfirms the adulterant, the MRO reports refusal to test and 
indicates the adulterant present. If Laboratory A fails to reconfirm 
the adulterant, the MRO cancels both tests and directs the agency to 
immediately collect another specimen using a direct observed collection 
procedure. The MRO shall notify the appropriate regulatory office about 
the failed to reconfirm and cancelled test.
    (c) Failed to reconfirm a single or all drug positive results and 
the specimen was substituted. If the donor provides a legitimate 
medical explanation for the substituted result, the MRO reports a 
failed to reconfirm result (specifying the drug[s]) and cancels both 
tests. If there is no legitimate medical explanation, the MRO reports a 
failed to reconfirm result (specifying the drug[s]) and a refusal to 
test (substituted) to the agency. The MRO gives the donor 72 hours to 
request additional review or testing as follows:
    (1) For substitution based on creatinine and specific gravity: 
request that Laboratory A review the creatinine and specific gravity 
results for the primary (A) specimen.
    (2) For substitution based on biomarker testing: request that 
Laboratory A test the primary (A) specimen using its confirmatory test 
for the biomarker.
    (i) If the primary (A) specimen's test results confirm that the 
specimen was substituted, the MRO reports a refusal to test 
(substituted) to the agency.
    (ii) If the primary (A) specimen's results fail to confirm that the 
specimen was substituted, the MRO cancels both tests and directs the 
agency to immediately collect another specimen using a direct observed 
collection procedure. The MRO shall notify the HHS office responsible 
for coordination of the drug-free workplace program about the failed to 
reconfirm and cancelled test.
    (d) Failed to reconfirm a single or all drug positive results and 
the specimen was not adulterated or substituted. The MRO reports to the 
agency a failed to reconfirm result (specifying the drug[s]), cancels 
both tests, and notifies the HHS office responsible for coordination of 
the drug-free workplace program.
    (e) Failed to reconfirm a single or all drug positive results and 
the specimen had an invalid result. The MRO reports to the agency a 
failed to reconfirm result (specifying the drug[s] and the reason for 
the invalid result), cancels both tests, directs the agency to 
immediately collect another specimen using a direct observed collection 
procedure, and notifies the HHS office responsible for coordination of 
the drug-free workplace program.
    (f) Failed to reconfirm one or more drugs, reconfirmed one or more 
drugs, and the specimen was adulterated. The MRO reports to the agency 
a reconfirmed result (specifying the drug[s]) and a failed to reconfirm 
result (specifying the drug[s]). The MRO tells the agency that it may 
take action based on the reconfirmed drug(s) although Laboratory B 
failed to reconfirm one or more drugs and found that the specimen was 
adulterated. The MRO shall notify the HHS office responsible for 
coordination of the drug-free workplace program regarding the test 
results for the specimen.
    (g) Failed to reconfirm one or more drugs, reconfirmed one or more 
drugs, and the specimen was substituted. The MRO reports to the agency 
a reconfirmed result (specifying the drug[s]) and a failed to reconfirm 
result (specifying the drug[s]). The MRO tells the agency that it may 
take action based on the reconfirmed drug(s) although Laboratory B 
failed to reconfirm one or more drugs and found that the specimen was 
substituted. The MRO shall notify the HHS office responsible for 
coordination of the drug-free workplace

[[Page 70807]]

program regarding the test results for the specimen.
    (h) Failed to reconfirm one or more drugs, reconfirmed one or more 
drugs, and the specimen was not adulterated or substituted. The MRO 
reports to the agency a reconfirmed result (specifying the drug[s]) and 
a failed to reconfirm result (specifying the drug[s]). The MRO tells 
the agency that it may take action based on the reconfirmed drug(s) 
although Laboratory B failed to reconfirm one or more drugs. The MRO 
shall notify the HHS office responsible for coordination of the drug-
free workplace program regarding the test results for the specimen.
    (i) Failed to reconfirm one or more drugs, reconfirmed one or more 
drugs, and the specimen had an invalid result. The MRO reports to the 
agency a reconfirmed result (specifying the drug[s]) and a failed to 
reconfirm result (specifying the drug[s]). The MRO tells the agency 
that it may take action based on the reconfirmed drug(s) although 
Laboratory B failed to reconfirm one or more drugs and reported an 
invalid result. The MRO shall notify the HHS office responsible for 
coordination of the drug-free workplace program regarding the test 
results for the specimen.
    (j) Failed to reconfirm substitution or adulteration. The MRO 
reports to the agency a failed to reconfirm result (not adulterated: 
specifying the adulterant/pH or not substituted) and cancels both 
tests. The MRO shall notify the HHS office responsible for coordination 
of the drug-free workplace program regarding the test results for the 
specimen.
    (k) Failed to reconfirm substitution or adulteration and the 
specimen had an invalid result. The MRO reports to the agency a failed 
to reconfirm result (not adulterated: specifying the adulterant/pH or 
not substituted, and the reason for the invalid result), cancels both 
tests, directs the agency to immediately collect another specimen using 
a direct observed collection procedure and notifies the HHS office 
responsible for coordination of the drug-free workplace program.
    (l) Failed to reconfirm a single or all drug positive results and 
reconfirmed an adulterated or substituted result. The MRO reports to 
the agency a reconfirmed result (adulterated or substituted) and a 
failed to reconfirm result (specifying the drug[s]). The MRO tells the 
agency that it may take action based on the reconfirmed result 
(adulterated or substituted) although Laboratory B failed to reconfirm 
the drug(s) result.
    (m) Failed to reconfirm a single or all drug positive results and 
failed to reconfirm the adulterated or substituted result. The MRO 
reports to the agency a failed to reconfirm result (specifying the 
drug[s] and not adulterated: specifying the adulterant/pH or not 
substituted) and cancels both tests. The MRO shall notify the HHS 
office responsible for coordination of the drug-free workplace program 
regarding the test results for the specimen.
    (n) Failed to reconfirm at least one drug and reconfirmed the 
adulterated result. The MRO reports to the agency a reconfirmed result 
(specifying the drug[s] and adulterated) and a failed to reconfirm 
result (specifying the drug[s]). The MRO tells the agency that it may 
take action based on the reconfirmed drug(s) and the adulterated result 
although Laboratory B failed to reconfirm one or more drugs.
    (o) Failed to reconfirm at least one drug and failed to reconfirm 
the adulterated result. The MRO reports to the agency a reconfirmed 
result (specifying the drug[s]) and a failed to reconfirm result 
(specifying the drug[s] and not adulterated: specifying the adulterant/
pH). The MRO tells the agency that it may take action based on the 
reconfirmed drug(s) although Laboratory B failed to reconfirm one or 
more drugs and failed to reconfirm the adulterated result.
    (p) Failed to reconfirm an adulterated result and failed to 
reconfirm a substituted result. The MRO reports to the agency a failed 
to reconfirm result (not adulterated: specifying the adulterant/pH, and 
not substituted) and cancels both tests. The MRO shall notify the HHS 
office responsible for coordination of the drug-free workplace program 
regarding the test results for the specimen.
    (q) Failed to reconfirm an adulterated result and reconfirmed a 
substituted result. The MRO reports to the agency a reconfirmed result 
(substituted) and a failed to reconfirm result (not adulterated: 
specifying the adulterant/pH). The MRO tells the agency that it may 
take action based on the substituted result although Laboratory B 
failed to reconfirm the adulterated result.
    (r) Failed to reconfirm a substituted result and reconfirmed an 
adulterated result. The MRO reports to the agency a reconfirmed result 
(adulterated) and a failed to reconfirm result (not substituted). The 
MRO tells the agency that it may take action based on the adulterated 
result although Laboratory B failed to reconfirm the substituted 
result.

Section 14.7 How does an MRO report a split (B) specimen test result to 
an agency?

    (a) The MRO must report all verified results to an agency using the 
completed MRO copy of the Federal CCF or a separate report using a 
letter/memorandum format. The MRO may use various electronic means for 
reporting (e.g., fax, computer). Transmissions of the reports must 
ensure confidentiality. The MRO and external service providers must 
ensure the confidentiality, integrity, and availability of the data and 
limit access to any data transmission, storage, and retrieval system.
    (b) A verified result may not be reported to the agency until the 
MRO has completed the review process.
    (c) The MRO must send a copy of either the completed MRO copy of 
the Federal CCF or the separate letter/memorandum report for all split 
specimen results.
    (d) The MRO must not disclose the numerical values of the drug test 
results to the agency.
    (e) The MRO must report drug test results using the HHS-specified 
nomenclature published with the drug and biomarker testing panels.

Section 14.8 How long must an HHS-certified laboratory retain a split 
(B) specimen?

    A split (B) specimen is retained for the same period of time that a 
primary (A) specimen is retained and under the same storage conditions, 
in accordance with Section 11.20. This applies even for those cases 
when the split (B) specimen is tested by a second HHS-certified 
laboratory and the second HHS-certified laboratory does not confirm the 
original result reported by the first HHS-certified laboratory for the 
primary (A) specimen.

Subpart O--Criteria for Rejecting a Specimen for Testing

Section 15.1 What discrepancies require an HHS-certified laboratory or 
an HHS-certified IITF to report a urine specimen as rejected for 
testing?

    The following discrepancies are considered to be fatal flaws. The 
HHS-certified laboratory or IITF must stop the testing process, reject 
the specimen for testing, and indicate the reason for rejecting the 
specimen on the Federal CCF when:
    (a) The specimen ID number on the primary (A) or split (B) specimen 
label/seal does not match the ID number on the Federal CCF, or the ID 
number is missing either on the Federal CCF or on either specimen 
label/seal;

[[Page 70808]]

    (b) The primary (A) specimen label/seal is missing, misapplied, 
broken, or shows evidence of tampering and the split (B) specimen 
cannot be re-designated as the primary (A) specimen;
    (c) The collector's printed name and signature are omitted on the 
Federal CCF;
    (d) There is an insufficient amount of specimen for analysis in the 
primary (A) specimen and the split (B) specimen cannot be re-designated 
as the primary (A) specimen;
    (e) The accessioner failed to document the primary (A) specimen 
seal condition on the Federal CCF at the time of accessioning, and the 
split (B) specimen cannot be re-designated as the primary (A) specimen;
    (f) The specimen was received at the HHS-certified laboratory or 
IITF without a CCF;
    (g) The CCF was received at the HHS-certified laboratory or IITF 
without a specimen;
    (h) The collector performed two separate collections using one CCF; 
or
    (i) The HHS-certified laboratory or IITF identifies a flaw (other 
than those specified above) that prevents testing or affects the 
forensic defensibility of the drug test and cannot be corrected.

Section 15.2 What discrepancies require an HHS-certified laboratory or 
an HHS-certified IITF to report a specimen as rejected for testing 
unless the discrepancy is corrected?

    The following discrepancies are considered to be correctable:
    (a) If a collector failed to sign the Federal CCF, the HHS-
certified laboratory or IITF must hold the specimen and attempt to 
obtain a memorandum for record to recover the collector's signature. 
If, after holding the specimen for at least 5 business days, the HHS-
certified laboratory or IITF cannot recover the collector's signature, 
the laboratory or IITF must report a rejected for testing result and 
indicate the reason for the rejected for testing result on the Federal 
CCF.
    (b) If a specimen is submitted using a non-Federal form or an 
expired Federal CCF, the HHS-certified laboratory or IITF must test the 
specimen and also attempt to obtain a memorandum for record explaining 
why a non-Federal form or an expired Federal CCF was used and ensure 
that the form used contains all the required information. If, after 
holding the report for at least 5 business days, the HHS-certified 
laboratory or IITF cannot obtain a memorandum for record from the 
collector, the laboratory or IITF must report a rejected for testing 
result and indicate the reason for the rejected for testing result on 
the report to the MRO.

Section 15.3 What discrepancies are not sufficient to require an HHS-
certified laboratory or an HHS-certified IITF to reject a urine 
specimen for testing or an MRO to cancel a test?

    (a) The following omissions and discrepancies on the Federal CCF 
that are received by the HHS-certified laboratory or IITF should not 
cause an HHS-certified laboratory or IITF to reject a urine specimen or 
cause an MRO to cancel a test:
    (1) An incorrect laboratory name and address appearing at the top 
of the form;
    (2) Incomplete/incorrect/unreadable employer name or address;
    (3) MRO name is missing;
    (4) Incomplete/incorrect MRO address;
    (5) A transposition of numbers in the donor's Social Security 
Number or employee identification number;
    (6) A telephone number is missing/incorrect;
    (7) A fax number is missing/incorrect;
    (8) A ``reason for test'' box is not marked;
    (9) A ``drug tests to be performed'' box is not marked;
    (10) A ``collection'' box is not marked;
    (11) The ``observed'' box is not marked (if applicable);
    (12) The collection site address is missing;
    (13) The collector's printed name is missing but the collector's 
signature is properly recorded;
    (14) The time of collection is not indicated;
    (15) The date of collection is not indicated;
    (16) Incorrect name of delivery service;
    (17) The collector has changed or corrected information by crossing 
out the original information on either the Federal CCF or specimen 
label/seal without dating and initialing the change; or
    (18) The donor's name inadvertently appears on the HHS-certified 
laboratory or IITF copy of the Federal CCF or on the tamper-evident 
labels used to seal the specimens.
    (19) The collector failed to check the specimen temperature box and 
the ``Remarks'' line did not have a comment regarding the temperature 
being out of range. If, after at least 5 business days, the collector 
cannot provide a memorandum for record to attest to the fact that the 
collector did measure the specimen temperature, the HHS-certified 
laboratory or IITF may report the test result for the specimen but 
indicates that the collector could not provide a memorandum to recover 
the omission.
    (b) The following omissions and discrepancies on the Federal CCF 
that are made at the HHS-certified laboratory or IITF should not cause 
an MRO to cancel a test:
    (1) The testing laboratory or IITF fails to indicate the correct 
name and address in the results section when a different laboratory or 
IITF name and address is printed at the top of the Federal CCF;
    (2) The accessioner fails to print their name;
    (3) The certifying scientist or certifying technician fails to 
print their name;
    (4) The certifying scientist or certifying technician accidentally 
initials the Federal CCF rather than signing for a specimen reported as 
rejected for testing;
    (c) The above omissions and discrepancies should occur no more than 
once a month. The expectation is that each trained collector and HHS-
certified laboratory or IITF will make every effort to ensure that the 
Federal CCF is properly completed and that all the information is 
correct. When an error occurs more than once a month, the MRO must 
direct the collector, HHS-certified laboratory, or HHS-certified IITF 
(whichever is responsible for the error) to immediately take corrective 
action to prevent the recurrence of the error.

Section 15.4 What discrepancies may require an MRO to cancel a test?

    (a) An MRO must attempt to correct the following errors:
    (1) The donor's signature is missing on the MRO copy of the Federal 
CCF and the collector failed to provide a comment that the donor 
refused to sign the form;
    (2) The certifying scientist failed to sign the Federal CCF for a 
specimen being reported drug positive, adulterated, invalid, or 
substituted; or
    (3) The electronic report provided by the HHS-certified laboratory 
or HHS-certified IITF does not contain all the data elements required 
for the HHS standard laboratory or IITF electronic report for a 
specimen being reported drug positive, adulterated, invalid result, or 
substituted.
    (b) If the error in Section 15.4(a)(1) occurs, the MRO must contact 
the collector to obtain a statement to verify that the donor refused to 
sign the MRO copy. If, after at least 5 business days, the collector 
cannot provide such a statement, the MRO must cancel the test.
    (c) If the error in Section 15.4(a)(2) occurs, the MRO must obtain 
a

[[Page 70809]]

statement from the certifying scientist that they forgot to sign the 
Federal CCF, but did, in fact, properly conduct the certification 
review. If, after at least 5 business days, the MRO cannot get a 
statement from the certifying scientist, the MRO must cancel the test.
    (d) If the error in Section 15.4(a)(3) occurs, the MRO must contact 
the HHS-certified laboratory or HHS-certified IITF. If, after at least 
5 business days, the laboratory or IITF does not retransmit a corrected 
electronic report, the MRO must cancel the test.

Subpart P--Laboratory or IITF Suspension/Revocation Procedures

Section 16.1 When may the HHS certification of a laboratory or IITF be 
suspended?

    These procedures apply when:
    (a) The Secretary has notified an HHS-certified laboratory or IITF 
in writing that its certification to perform drug testing under these 
Guidelines has been suspended or that the Secretary proposes to revoke 
such certification.
    (b) The HHS-certified laboratory or IITF has, within 30 days of the 
date of such notification or within 3 days of the date of such 
notification when seeking an expedited review of a suspension, 
requested in writing an opportunity for an informal review of the 
suspension or proposed revocation.

Section 16.2 What definitions are used for this subpart?

    Appellant. Means the HHS-certified laboratory or IITF which has 
been notified of its suspension or proposed revocation of its 
certification to perform testing and has requested an informal review 
thereof.
    Respondent. Means the person or persons designated by the Secretary 
in implementing these Guidelines.
    Reviewing Official. Means the person or persons designated by the 
Secretary who will review the suspension or proposed revocation. The 
reviewing official may be assisted by one or more of the official's 
employees or consultants in assessing and weighing the scientific and 
technical evidence and other information submitted by the appellant and 
respondent on the reasons for the suspension and proposed revocation.

Section 16.3 Are there any limitations on issues subject to review?

    The scope of review shall be limited to the facts relevant to any 
suspension or proposed revocation, the necessary interpretations of 
those facts, the relevant Mandatory Guidelines for Federal Workplace 
Drug Testing Programs, and other relevant law. The legal validity of 
these Guidelines shall not be subject to review under these procedures.

Section 16.4 Who represents the parties?

    The appellant's request for review shall specify the name, address, 
and telephone number of the appellant's representative. In its first 
written submission to the reviewing official, the respondent shall 
specify the name, address, and telephone number of the respondent's 
representative.

Section 16.5 When must a request for informal review be submitted?

    (a) Within 30 days of the date of the notice of the suspension or 
proposed revocation, the appellant must submit a written request to the 
reviewing official seeking review, unless some other time period is 
agreed to by the parties. A copy must also be sent to the respondent. 
The request for review must include a copy of the notice of suspension 
or proposed revocation, a brief statement of why the decision to 
suspend or propose revocation is wrong, and the appellant's request for 
an oral presentation, if desired.
    (b) Within 5 days after receiving the request for review, the 
reviewing official will send an acknowledgment and advise the appellant 
of the next steps. The reviewing official will also send a copy of the 
acknowledgment to the respondent.

Section 16.6 What is an abeyance agreement?

    Upon mutual agreement of the parties to hold these procedures in 
abeyance, the reviewing official will stay these procedures for a 
reasonable time while the laboratory or IITF attempts to regain 
compliance with the Guidelines or the parties otherwise attempt to 
settle the dispute. As part of an abeyance agreement, the parties can 
agree to extend the time period for requesting review of the suspension 
or proposed revocation. If abeyance begins after a request for review 
has been filed, the appellant shall notify the reviewing official at 
the end of the abeyance period, advising whether the dispute has been 
resolved. If the dispute has been resolved, the request for review will 
be dismissed. If the dispute has not been resolved, the review 
procedures will begin at the point at which they were interrupted by 
the abeyance agreement with such modifications to the procedures as the 
reviewing official deems appropriate.

Section 16.7 What procedures are used to prepare the review file and 
written argument?

    The appellant and the respondent each participate in developing the 
file for the reviewing official and in submitting written arguments. 
The procedures for development of the review file and submission of 
written argument are:
    (a) Appellant's Documents and Brief. Within 15 days after receiving 
the acknowledgment of the request for review, the appellant shall 
submit to the reviewing official the following (with a copy to the 
respondent):
    (1) A review file containing the documents supporting appellant's 
argument, tabbed and organized chronologically, and accompanied by an 
index identifying each document. Only essential documents should be 
submitted to the reviewing official.
    (2) A written statement, not to exceed 20 double-spaced pages, 
explaining why respondent's decision to suspend or propose revocation 
of appellant's certification is wrong (appellant's brief).
    (b) Respondent's Documents and Brief. Within 15 days after 
receiving a copy of the acknowledgment of the request for review, the 
respondent shall submit to the reviewing official the following (with a 
copy to the appellant):
    (1) A review file containing documents supporting respondent's 
decision to suspend or revoke appellant's certification to perform drug 
testing, which is tabbed and organized chronologically, and accompanied 
by an index identifying each document. Only essential documents should 
be submitted to the reviewing official.
    (2) A written statement, not exceeding 20 double-spaced pages in 
length, explaining the basis for suspension or proposed revocation 
(respondent's brief).
    (c) Reply Briefs. Within 5 days after receiving the opposing 
party's submission, or 20 days after receiving acknowledgment of the 
request for review, whichever is later, each party may submit a short 
reply not to exceed 10 double-spaced pages.
    (d) Cooperative Efforts. Whenever feasible, the parties should 
attempt to develop a joint review file.
    (e) Excessive Documentation. The reviewing official may take any 
appropriate step to reduce excessive documentation, including the 
return of or refusal to consider documentation found to be irrelevant, 
redundant, or unnecessary.

[[Page 70810]]

Section 16.8 When is there an opportunity for oral presentation?

    (a) Electing Oral Presentation. If an opportunity for an oral 
presentation is desired, the appellant shall request it at the time it 
submits its written request for review to the reviewing official. The 
reviewing official will grant the request if the official determines 
that the decision-making process will be substantially aided by oral 
presentations and arguments. The reviewing official may also provide 
for an oral presentation at the official's own initiative or at the 
request of the respondent.
    (b) Presiding Official. The reviewing official or designee will be 
the presiding official responsible for conducting the oral 
presentation.
    (c) Preliminary Conference. The presiding official may hold a 
prehearing conference (usually a telephone conference call) to consider 
any of the following: simplifying and clarifying issues, stipulations 
and admissions, limitations on evidence and witnesses that will be 
presented at the hearing, time allotted for each witness and the 
hearing altogether, scheduling the hearing, and any other matter that 
will assist in the review process. Normally, this conference will be 
conducted informally and off the record; however, the presiding 
official may, at their discretion, produce a written document 
summarizing the conference or transcribe the conference, either of 
which will be made a part of the record.
    (d) Time and Place of the Oral Presentation. The presiding official 
will attempt to schedule the oral presentation within 30 days of the 
date the appellant's request for review is received or within 10 days 
of submission of the last reply brief, whichever is later. The oral 
presentation will be held at a time and place determined by the 
presiding official following consultation with the parties.
    (e) Conduct of the Oral Presentation.
    (1) General. The presiding official is responsible for conducting 
the oral presentation. The presiding official may be assisted by one or 
more of the official's employees or consultants in conducting the oral 
presentation and reviewing the evidence. While the oral presentation 
will be kept as informal as possible, the presiding official may take 
all necessary steps to ensure an orderly proceeding.
    (2) Burden of Proof/Standard of Proof. In all cases, the respondent 
bears the burden of proving by a preponderance of the evidence that its 
decision to suspend or propose revocation is appropriate. The 
appellant, however, has a responsibility to respond to the respondent's 
allegations with evidence and argument to show that the respondent is 
wrong.
    (3) Admission of Evidence. The Federal Rules of Evidence do not 
apply and the presiding official will generally admit all testimonial 
evidence unless it is clearly irrelevant, immaterial, or unduly 
repetitious. Each party may make an opening and closing statement, may 
present witnesses as agreed upon in the prehearing conference or 
otherwise, and may question the opposing party's witnesses. Since the 
parties have ample opportunity to prepare the review file, a party may 
introduce additional documentation during the oral presentation only 
with the permission of the presiding official. The presiding official 
may question witnesses directly and take such other steps necessary to 
ensure an effective and efficient consideration of the evidence, 
including setting time limitations on direct and cross-examinations.
    (4) Motions. The presiding official may rule on motions including, 
for example, motions to exclude or strike redundant or immaterial 
evidence, motions to dismiss the case for insufficient evidence, or 
motions for summary judgment. Except for those made during the hearing, 
all motions and opposition to motions, including argument, must be in 
writing and be no more than 10 double-spaced pages in length. The 
presiding official will set a reasonable time for the party opposing 
the motion to reply.
    (5) Transcripts. The presiding official shall have the oral 
presentation transcribed and the transcript shall be made a part of the 
record. Either party may request a copy of the transcript and the 
requesting party shall be responsible for paying for its copy of the 
transcript.
    (f) Obstruction of Justice or Making of False Statements. 
Obstruction of justice or the making of false statements by a witness 
or any other person may be the basis for a criminal prosecution under 
18 U.S.C. 1505 or 1001.
    (g) Post-hearing Procedures. At their discretion, the presiding 
official may require or permit the parties to submit post-hearing 
briefs or proposed findings and conclusions. Each party may submit 
comments on any major prejudicial errors in the transcript.

Section 16.9 Are there expedited procedures for review of immediate 
suspension?

    (a) Applicability. When the Secretary notifies an HHS-certified 
laboratory or IITF in writing that its certification to perform drug 
testing has been immediately suspended, the appellant may request an 
expedited review of the suspension and any proposed revocation. The 
appellant must submit this request in writing to the reviewing official 
within 3 days of the date the HHS-certified laboratory or IITF received 
notice of the suspension. The request for review must include a copy of 
the suspension and any proposed revocation, a brief statement of why 
the decision to suspend and propose revocation is wrong, and the 
appellant's request for an oral presentation, if desired. A copy of the 
request for review must also be sent to the respondent.
    (b) Reviewing Official's Response. As soon as practicable after the 
request for review is received, the reviewing official will send an 
acknowledgment with a copy to the respondent.
    (c) Review File and Briefs. Within 7 days of the date the request 
for review is received, but no later than 2 days before an oral 
presentation, each party shall submit to the reviewing official the 
following:
    (1) A review file containing essential documents relevant to the 
review, which is tabbed, indexed, and organized chronologically; and
    (2) A written statement, not to exceed 20 double-spaced pages, 
explaining the party's position concerning the suspension and any 
proposed revocation. No reply brief is permitted.
    (d) Oral Presentation. If an oral presentation is requested by the 
appellant or otherwise granted by the reviewing official, the presiding 
official will attempt to schedule the oral presentation within 7-10 
days of the date of appellant's request for review at a time and place 
determined by the presiding official following consultation with the 
parties. The presiding official may hold a prehearing conference in 
accordance with Section 16.8(c) and will conduct the oral presentation 
in accordance with the procedures of Section 16.8(e), (f), and (g).
    (e) Written Decision. The reviewing official shall issue a written 
decision upholding or denying the suspension or proposed revocation and 
will attempt to issue the decision within 7-10 days of the date of the 
oral presentation or within 3 days of the date on which the transcript 
is received or the date of the last submission by either party, 
whichever is later. All other provisions set forth in Section 16.14 
will apply.
    (f) Transmission of Written Communications. Because of the 
importance of timeliness for these expedited procedures, all written 
communications between the parties and between either party and the 
reviewing official shall be by fax,

[[Page 70811]]

secured electronic transmissions, or overnight mail.

Section 16.10 Are any types of communications prohibited?

    Except for routine administrative and procedural matters, a party 
shall not communicate with the reviewing or presiding official without 
notice to the other party.

Section 16.11 How are communications transmitted by the reviewing 
official?

    (a) Because of the importance of a timely review, the reviewing 
official should normally transmit written communications to either 
party by fax, secured electronic transmissions, or overnight mail in 
which case the date of transmission or day following mailing will be 
considered the date of receipt. In the case of communications sent by 
regular mail, the date of receipt will be considered 3 days after the 
date of mailing.
    (b) In counting days, include Saturdays, Sundays, and Federal 
holidays. However, if a due date falls on a Saturday, Sunday, or 
Federal holiday, then the due date is the next Federal working day.

Section 16.12 What are the authority and responsibilities of the 
reviewing official?

    In addition to any other authority specified in these procedures, 
the reviewing official and the presiding official, with respect to 
those authorities involving the oral presentation, shall have the 
authority to issue orders; examine witnesses; take all steps necessary 
for the conduct of an orderly hearing; rule on requests and motions; 
grant extensions of time for good reasons; dismiss for failure to meet 
deadlines or other requirements; order the parties to submit relevant 
information or witnesses; remand a case for further action by the 
respondent; waive or modify these procedures in a specific case, 
usually with notice to the parties; reconsider a decision of the 
reviewing official where a party promptly alleges a clear error of fact 
or law; and to take any other action necessary to resolve disputes in 
accordance with the objectives of these procedures.

Section 16.13 What administrative records are maintained?

    The administrative record of review consists of the review file; 
other submissions by the parties; transcripts or other records of any 
meetings, conference calls, or oral presentation; evidence submitted at 
the oral presentation; and orders and other documents issued by the 
reviewing and presiding officials.

Section 16.14 What are the requirements for a written decision?

    (a) Issuance of Decision. The reviewing official shall issue a 
written decision upholding or denying the suspension or proposed 
revocation. The decision will set forth the reasons for the decision 
and describe the basis therefore in the record. Furthermore, the 
reviewing official may remand the matter to the respondent for such 
further action as the reviewing official deems appropriate.
    (b) Date of Decision. The reviewing official will attempt to issue 
their decision within 15 days of the date of the oral presentation, the 
date on which the transcript is received, or the date of the last 
submission by either party, whichever is later. If there is no oral 
presentation, the decision will normally be issued within 15 days of 
the date of receipt of the last reply brief. Once issued, the reviewing 
official will immediately communicate the decision to each party.
    (c) Public Notice. If the suspension and proposed revocation are 
upheld, the revocation will become effective immediately and the public 
will be notified by publication of a notice in the Federal Register. If 
the suspension and proposed revocation are denied, the revocation will 
not take effect and the suspension will be lifted immediately. Public 
notice will be given by publication in the Federal Register.

Section 16.15 Is there a review of the final administrative action?

    Before any legal action is filed in court challenging the 
suspension or proposed revocation, respondent shall exhaust 
administrative remedies provided under this subpart, unless otherwise 
provided by Federal Law. The reviewing official's decision, under 
Section 16.9(e) or 16.14(a) constitutes final agency action and is ripe 
for judicial review as of the date of the decision.

[FR Doc. 2023-21734 Filed 10-11-23; 8:45 am]
BILLING CODE 4162-20-P

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