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Federal Register / Vol. 68, No. 143 / Friday, July 25, 2003 / Rules and Regulations 43951 original collection and the observed collection be sent to the laboratory (e.g., specimen out of temperature range) [the result requiring the most stringent consequence will ultimately be the result of record]. The Department is also clarifying and making uniform among DOT agencies how employers determine the total number of employees against which the annual random rate applies. Some DOT agencies have told employers to count the number of covered employees working at the start of the calendar year; some DOT agencies have directed employers to count the total number of covered employees that worked for the company within the year; and still others have advised employers to count the average number of employees on a monthly or quarterly basis. This rule directs employers to add the total number of covered employees eligible for random testing in each random testing selection period for the year and divide that total by the number of random testing periods. For instance, a company conducting random testing quarterly will add the total of safetysensitive employees they had in the random pool when each selection was made; then divide this number by 4 to obtain the yearly average number of covered employees. [As an example, if Company A had 1500 employees in the first quarter random pool, 2250 in the second quarter, 2750 in the third quarter; and 1500 in the fourth quarter; 1500 + 2250 + 2750 + 1500 = 8000; 8000 / 4 = 2000; the total number of employees subject to testing for the year would be reported as ‘‘2000’’. (Note: This number, ‘‘2000’’, would also be the number on which an employer would base the random testing rate.)] As stated earlier, no company will be required to factor the average number of employees more often than once per month: No more than 12 times per year. Companies (and their contractors, as applicable) will continue to submit the MIS reports in accordance with requirements (e.g., dates for submission; selection of companies required to submit, etc.) that will continue to be in each DOT agency regulation. Likewise, DOT agency regulations will continue to address the manner (e.g., mail; CD; electronic transmission) and locations for submitting the forms. Responding to a commenter, we have added a reference to this in rule text. It is important to note that MIS alcohol testing data reflects all these proposals made for MIS drug testing data. Refusals will count as testing events; cancelled tests will not; and random pool averages will determine the number of employees against which the annual testing rate applies. The Department is currently working toward an electronic MIS form capable of Internet submission. Each form would be DOT agency specific and would not have extraneous items showing (for example, the USCGspecific form would not include an alcohol testing section; the RSPAspecific form would not show an alcohol random testing category). Additionally, the system would bring to the attention of the person completing the form any items that did not accurately compute mathematically. Finally, employee categories listed would only be those for the specific DOT agency. The Department recognizes that Consortia/Third Party Administrators (C/TPAs) are responsible for administering a large number of transportation industry drug and alcohol testing programs. For this reason, the MIS form will contain a space for the employer to note the name of the C/TPA the company uses, if any. Finally, we have made some of the minor, but useful changes recommended by several commenters and DOT agency representatives. These include typographical, counting, and example errors; and the option to use zeros instead of leaving testing data items blank. Finally, the Department wants reasonable suspicion and reasonable cause testing to be counted together on the MIS form with no differentiation between the two. The issue of how to count these two types of tests has been complicated by the fact that neither the CCF nor the BATF distinguish between the two even though the DOT agencies do. For instance, FMCSA and FTA authorize reasonable suspicion drug testing; FAA, RSPA, and USCG authorize reasonable cause drug testing; and FRA authorizes both. FMCSA, FAA, FTA, and RSPA authorize reasonable suspicion alcohol testing; and FRA authorizes both reasonable suspicion and reasonable cause alcohol testing. Sufficient documentation should exist with employers for DOT agency representatives to tell the difference between the two during inspections and audits. Regulatory Analyses and Notices This rule is not a significant rule for purposes of Executive Order 12866 or the DOT’s regulatory policies and procedures. Nor is the rule an economically significant regulation. It is a reworking of existing requirements; it imposes no new mandates; and it will not create any new costs. In fact, the VerDate Jan2003 15:04 Jul 24, 2003 Jkt 200001 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\25JYR1.SGM 25JYR1 rule will serve to reduce requirements and costs. The Department realizes that some companies maintain their current MIS data items on basic computer spreadsheets. However, we are requiring only a minimal number of additions to the format while removing a larger number of items. This final rule does not have sufficient Federalism impact to warrant a Federalism assessment under Executive Order 13132. With respect to the Regulatory Flexibility Act, the certifies that, if adopted, this rule would not have a significant economic impact on a substantial number of small entities, so a Regulatory Flexibility analysis has not been prepared. Even though this rule might affect a large number of small entities, we do not expect the new MIS requirements to have a significant economic impact on anyone. The rule also contains information collection requirements. As required by the Paperwork Reduction Act of 1995, (the PRA, 44 U.S.C. 3507(d)), the Department is submitting these requirements to the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) for review, as required under the PRA. For informational purposes, the Department will place its entire PRA package for the MIS form on the Internet when that submission is approved. As noted elsewhere in this preamble, the proposal would amend part 40 to include a new format and a new set of instructions for the MIS form. This single form would be used across DOT agencies rather than the multiple forms with multiple instructions currently in use. The form’s data elements would be reduced significantly as well. Completing an MIS report requires a company to collect and compile drug and alcohol testing data generated throughout the year by that company’s drug and alcohol testing program and placing some of that data onto the form. Certainly, the more complex a company’s testing program set-up, the more complex assembling needed data becomes. Companies having decentralized program locations may have to draw information from a variety of localized programs. Companies with a number of subsidiaries may have large amounts of data to compile and authenticate. In addition, companies failing to regularly update and bring together their testing data may find themselves in positions of having to do so in a hurried manner at the end of the year. Also, companies lacking computerization of data capabilities may have to rely on manual methods.
43952 Federal Register / Vol. 68, No. 143 / Friday, July 25, 2003 / Rules and Regulations Because MIS reporting has been part of the DOT testing equation for several years, many companies have become experienced in and have applied sound business sense to putting the report together. Many companies update their drug and alcohol program data on a regular, throughout-the-year basis rather than doing so at the last minute. Most companies require their localized programs, subsidiaries, and contractors to regularly provide program updates rather than authenticate data at the end of the year. Many companies utilize computer databases rather than ‘‘penand-ink’’ data entries. Still other companies prefer to have data entry provided as part of their C/TPA’s contracted services. Whatever the case, the Department does not require any particular management approach to compiling program data: We simply require that the data be accurate; that it be in a system that has controlled access; that it be readily auditable; and that specific data be included in MIS reports when they are required or requested by DOT agencies. The Department would prefer that companies update their drug and alcohol program data throughout the year; require their divisions, subsidiaries, and contractors to report their data regularly to them; and computerize their data-entry methodologies. However, we do not mandate these actions even though we think they are all preferable to end-ofthe-year company scrambles to complete MIS forms. The Department believes that requiring less data entry on MIS forms and having only one form throughout the transportation industries will make data gathering and compilation simpler. For instance, no longer will employers need to provide employee and supervisor training data, violation consequence data, and non-Part 40 violation data (among other entries). Furthermore, the single-format MIS form replaces the ‘‘EZ’’ drug form, the ‘‘EZ’’ alcohol form, the long drug form, and the long alcohol form, the formats of which were different for each DOT agency. Therefore, employers subject to more than one DOT agency rule will not have to navigate their ways through multiple MIS formats. These represent important steps in reducing the amount of time needed to compile data for MIS purposes—no matter how a company chooses to manage their drug and alcohol testing data. The Department believes the simplicity of the form will result in another significant time saving action for employers. DOT agency MIS PRA submissions for the old MIS forms reveal that nearly 6,800 companies submit 13,541 MIS forms annually to DOT; and the time it takes to fill out the forms is 18,406 hours. Estimates for the new MIS form indicate that these companies will send 7,186 MIS reports to DOT and the time to complete them will be 10,779 hours. Therefore, we foresee over 7,500 hours saved per year in filling out the new MIS form as opposed to completing the old multiple MIS forms. [Based upon industry and DOT agency estimates, we have concluded that the new MIS report will take between 45 minutes and 1.5 hours to complete. We have chosen, for this paragraph and for our OMB PRA submission, to use the highest industry and DOT agency estimate —1.5 hours. We estimate that slightly over 300 companies report to more than one DOT agency.] According to OMB’s regulations implementing the PRA (5 CFR 1320.8(b)(2)(vi)), an agency may not conduct or sponsor, and a person need not respond to a collection of information unless it displays a currently valid OMB control number. The OMB control number for this information will be published in the Federal Register after OMB approves it. A number of other Executive Orders can affect rulemakings. These include Executive Orders 13084 (Consultation and Coordination with Indian Tribal Governments), 12988 (Civil Justice Reform), 12875 (Enhancing the Intergovernmental Partnership), 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights), 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), 13045 (Protection of Children from Environmental Health Risks and Safety Risks), and 12889 (Implementation of North American Free Trade Agreement). We have VerDate Jan2003 15:04 Jul 24, 2003 Jkt 200001 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\25JYR1.SGM 25JYR1 considered these Executive Orders in the context of this rule, and we believe that the rule does not directly affect matters that the Executive Orders cover. We have prepared this rulemaking in accordance with the Presidential Directive on Plain Language. List of Subjects in 49 CFR Part 40 Administrative practice and procedure, Alcohol abuse, Alcohol testing, Drug testing, Laboratories, Reporting and recordkeeping requirements, Safety, Transportation. Issued this 9th day of July, 2003, at Washington, DC. Norman Y. Mineta, Secretary of Transportation. PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS ■ For reasons set forth in the preamble, the Department of Transportation amends Part 40 of Title 49, Code of Federal Regulations, as follows: ■ 1. The authority citation for 49 CFR Part 40 continues to read as follows: Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 45101 et seq. ■ 2. Add a new § 40.26 to read as follows: § 40.26 What form must an employer use to report Management Information System (MIS) data to a DOT agency? As an employer, when you are required to report MIS data to a DOT agency, you must use the form and instructions at appendix H to part 40. You must submit the MIS report in accordance with rule requirements (e.g., dates for submission; selection of companies required to submit, and method of reporting) established by the DOT agency regulating your operation. ■ 3. Add a new Appendix H to read as follows: Appendix H to Part 40—DOT Drug and Alcohol Testing Management Information System (MIS) Data Collection Form The following form and instructions must be used when an employer is required to report MIS data to a DOT agency. BILLING CODE 4910–62–P
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October 2009 Implementation Guideli
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Notice This document is disseminate
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METRIC/ENGLISH CONVERSION FACTORS E
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Table of Contents Chapter 1. INTROD
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Table of Contents (continued) Secti
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Chapter 1. INTRODUCTION Section 1.
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Transit employers may go beyond the
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Recommendation: Know the Regulation
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Sample Documentation Chapter 1. Int
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DHHS-Certified Laboratories, Center
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FTA Drug and Alcohol Management Inf
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Research And Special Programs Admin
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employment in safety-sensitive posi
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What happens in these cases? The pu
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Section 3. SAFETY-SENSITIVE • Ope
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performing the volunteer service ar
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Safety-sensitive Examples of Nation
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• A description of the consequenc
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projects, the employer should notif
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Sample Documentation Chapter 2. Reg
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Certification of Compliance for FTA
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4. Atlanta Federal Center Suite 17T
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1. Liability of Service Agents Yasu
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plaintiffs agreed that their positi
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FTA and FMCSA Regulatory Comparison
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FTA and FMCSA Regulatory Comparison
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process ensures that all critical c
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Chapter 3. Program Formulation 3-4
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Chapter 4. POLICY DEVELOPMENT AND C
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concentration of 0.04 or greater th
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has a confirmed alcohol concentrati
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MRO before the employer is notified
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policy with the requirement to form
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Do not assume that your contractors
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PRE-EMPLOYMENT DRUG TESTING NOTIFIC
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Sample Program Notification Letter
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authorized by the employer to make
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The 60 minutes of awareness trainin
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medications which could result in p
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employees who have problems with pr
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particular alcohol testing device t
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emain current with the regulations
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− Changes in Rules, Guidance and
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Exhibit 5-1 Summary of Education an
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Exhibit 5-3 Typical Agenda for Supe
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Exhibit 5-4 REASONABLE SUSPICION TR
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Chapter 6. TYPES OF TESTING Six typ
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Previous DOT Employer Record Check
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the “insufficient volume” proce
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for employees what is meant by on-d
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Nonfatal accidents involving a bus,
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Testing for drugs and alcohol follo
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iases in the process. To be conside
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1. Determine how frequently random
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In many small transit systems, ever
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Before making the return-to-duty re
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up testing program. The SAP must do
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Employee Discharged BAC >= 0.04 Con
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Employee Discharged Split Specimen
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Sample Documentation Chapter 6. Typ
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1) Accident Report Number: 2) Locat
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Chapter 7. DRUG TESTING PROCEDURES
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Recommendation Multiple Collection
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spouse, relative) or a close person
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The DOT requires the new version of
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9. The collector must direct the em
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evening contact telephone numbers i
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temperature range (90.0 to 100.0 F)
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publishes its final rule establishi
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for the preceding 6 months ending o
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Chapter 7. Drug Testing Procedures
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• The MRO will verify the test re
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The MRO may change a verified test
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direct the DER to have the employee
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employee for a retest under direct
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Sample Documentation Chapter 7. Dru
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Collection Site Checklist (cont.) (
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12. You may now wash your hands and
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Privacy Act Statement: (For Federal
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than an EBT, that is approved by th
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Breath Alcohol Technician (§40.213
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availability and the need for backu
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At the conclusion of the screen tes
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sufficient amount of breath. A medi
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In addition to stipulating the cons
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Sample Documentation Chapter 8. Alc
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[Federal Register: May 4, 2001 (Vol
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The Conforming Products List is the
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Highway Safety Programs; Model Spec
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45420 Federal Register / Vol. 65, N
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45422 Federal Register / Vol. 65, N
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U.S. Department of Transportation (
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Section 1. SAP QUALIFICATIONS A sub
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Education/Treatment Program Referra
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Employers are not required to follo
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SAP, many employers have looked to
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10 weeks, with most sessions schedu
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_____________________________ _____
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FOLLOW-UP TESTING PROCESS SAP Input
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Alcohol Test Results
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when the applicant was assigned saf
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may arrange to have the consortium
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• Employers and service agents sh
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The list of randomly selected trans
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A. At a Nonprofit Agency or Indepen
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Reporting Period: Laboratory Name a
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Record Retention Checklists (page 2
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Retains CCF1 Split Lab - CCF1 Labor
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CCF1 Split Lab Retains - CCF1 Labor
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U.S. DEPARTMENT OF TRANSPORTATION D
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Chapter 11. CONSORTIA AND THIRD PAR
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Greater Expertise. The FTA and DOT
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Section 2. CONSIDERATIONS IN ESTABL
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esults (≥0.02) between the BAT an
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consideration. Thus, the more diver
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Section 5. IS A CONSORTIUM RIGHT FO
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• Procurement of testing services
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• Consider which consortium model
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Exhibit 11-1 Role of State DOTs in
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Exhibit 11-3 CONSORTIA RESPONSIBILI
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Chapter 12. PROGRAM MONITORING As a
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• Conduct periodic review of serv
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compliance. You are encouraged to c
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Chapter 13. THE DRUG-FREE WORKPLACE
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Violations of the act may result in
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Exhibit 13-1 DRUG-FREE WORKPLACE AC
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Chapter 14. SUBSTANCE ABUSE MANAGEM
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Notification of audit Requested mat
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them to move throughout the facilit
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above materials. ⎯⎯Procedures t
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DAY 3 Time Activity Team Address of
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Date of Collection Jan-01 Nov-00 Se
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Time of the Test Time of the Test 8
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Each auditor will discuss the porti
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Sample Re-audit Agenda DAY 1 Time A
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Index of Appendices Appendix A. Acr
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AA Alcoholics Anonymous Appendix A.
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RFP Request for Proposal RIA Radio
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Newsletters Appendix B. Additional
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U.S. Department of Labor. What Work
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Other Government Web sites Drug and
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Appendix C Americans with Disabilit
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sensitive duties for the illegal us
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If the individual is qualified and
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allegation of discrimination under
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Appendix D. Certified Laboratories
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DrugProof, Divison of Dynacare 543
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One Source Toxicology Laboratory, I
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The following laboratories are volu
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Federal Register / Vol. 65, No. 141
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Appendix F. Fact Sheets Drug Detect
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Social Issues • Two-thirds of all
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• The euphoric stimulation increa
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• Paranoia • Profuse sweating a
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connection between marijuana smokin
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Opiates (Narcotics) Fact Sheet Opia
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Phencyclidine (PCP) Fact Sheet Phen
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Appendix G Questions and Answers
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ecipient, and someone other than th
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Q. Can transit operators receive wa
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Q. If an employee changed jobs prio
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Q. How much training are employers
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acceptable for the company-required
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Q. In a post-accident situation req
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employees and 50 non-DOT employees,
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Q: What actual address is required
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Q: Can a split specimen be sent to
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actual employee of the employer may
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Q: Must collectors, BATs, STTs, MRO
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an observer, or a monitor for co-wo
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Q: If a collector makes an error on
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Appendix H Terms and Definitions
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indirectly, one controls or has the
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Confirmation validity test Confirme
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These terms include any designee of
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Medical Review Officer (MRO) A pers
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Random test Reason to believe Reaso
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Safety-sensitive function Any of th
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trolley bus, or vessel. A “mass t
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49 CFR Part 40 Updated August 31, 2
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§ 40.89 What is validity testing,
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Page 4 of 100 § 40.287 What inform
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Page 6 of 100 Subpart A - Administr
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Page 8 of 100 Medical Review Office
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Page 30 of 100 (a) Review Copy 2 of
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esponsibility of FTA transit funds
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26 Federalism assessment. However,
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Part 655 - Prevention of Alcohol Mi
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655.52 Substance abuse professional
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(b) This part must be read in conju
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(2) The volunteer performs a safety
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Refuse to submit means any circumst
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An employer must have an anti-drug
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part. (c) Specific information conc
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(5) Phencyclidine. (c) Consumption
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concentration less than 0.04. This
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§655.43 Reasonable suspicion testi
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48 the reasons the alcohol test was
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(c) Rates for drug testing. (1) Whe
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annual percentage rate under this p
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(a) Each employer shall require a c
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56 for evaluating and resolving pro
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qualifying the supervisors to make
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60 (12) Number of covered employees
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post-accident alcohol test indicati
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equired to be maintained by this pa
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(b) A certification must be authori
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Drug-Free Workplace Act
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TABLE OF CONTENTS INTRODUCTION ....
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egulations that have been made sinc
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The behaviors that are prohibited b
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⎯ An individual who refuses to su
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Have employees been notified that p
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⎯ Add a bluing agent to the toile
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Are employees who are subject to te
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LABORATORY TESTING Are all drug tes
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⎯ Direct the analysis of the spli
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Is only one test conducted at a tim
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Does the BAT notify the employer’
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Does the SAP evaluate whether a saf
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ADMINISTRATIVE REQUIREMENTS If a pr
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Are procedures in place to have emp
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hours following the accident, the e
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Are random numbers substituted only
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Are employees that are subject to f
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OTHER TRAINING Consistent with the
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♦ Documents presented by a covere
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CERTIFICATION ♦ Each year transit
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A R DMINISTRATIVE EQUIREMENTS Do th
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DRUG AND ALCOHOL POLICY REVIEW QUES
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Meeting FTA thresholds; Meeting dru
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CONSEQUENCES OF A FAILED OR REFUSED
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How much notice is given to the emp
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RECORDS MANAGEMENT QUESTIONNAIRE AP
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If the information requested is not
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Has the employer met the minimum an
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Do the records indicate that any dr
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Does the employer utilize the stand
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If tests are cancelled because of a
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If you conducted the initial test,
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SALIVA TEST TECHNICIAN QUESTIONNAIR
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MEDICAL REVIEW OFFICER (MRO) QUESTI
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What action would you take if the s
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• • • As the SAP, can you sub
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Do you assist your members in any w
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