November 28, 2003

Ms. Laura E. Shelton
Executive Director
Drug & Alcohol Testing Industry Association
1600 Duke Street
Alexandria, VA 22314

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•DATIA Addresses Conflicting Part 40 Regulatory Text

Dear Ms. Shelton:

Thank you for your letter of July 1 concerning the U.S. Department of Transportation's (DOT) drug and alcohol testing program.

You raised the question of whether the statement in section 40.355 (i)-- that a service agent cannot make a refusal determination--in any way precludes collectors or Medical Review Officers from carrying out their responsibilities under section 40.191. It does not.

The Department's instructions, in Part 40, to collectors and MRO's concerning refusal-to test designations are unmistakable and unambiguous. In construing a statute or regulation, it is essential to read provisions together so that they harmonize with one another and lead to a result consistent with the purpose of the statute or regulation. It is improper to interpret sections together in a way that produces an irrational result. To read section 40.355 (i) to preclude collectors or MRO's from carrying out their respective functions specifically assigned in other sections of Part 40 would clearly produce an irrational result at odds with the purpose of the regulation. The proper interpretation of the limitations of section 40.355 (i) is that it applies only in situations where there is not an explicit mandate elsewhere in the regulation for collectors or MROs to take specified actions with respect to refusals. Section 40.355(i) does not authorize the employer to pick and choose reports of refusals to honor, or to override the decisions of collectors and MROs who are reporting refusals to the employer as the rule requires.

If I can be of further assistance, please do not hesitate to contact me.

Sincerely yours,



Kenneth Edgell
Acting Director
Office of Drug and Alcohol Policy and Compliance

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