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Reading the regulations as they stood on October 1, 1998. Current text may differ.Switch to current
Historical textIn force on Oct. 1, 1998Source: annual CFR editions 1996–2000

§ 40.105 Inability to provide an adequate amount of breath or saliva.

Wording first on file in the 1996 annual edition, superseded by the 2001 annual edition.

govinfo, 1998 edition ↗
Before Jan. 1, 2017 the record is one snapshot per annual CFR edition, revised as of October 1. This is the 1998 edition's wording. An amendment that took effect between Oct. 1, 1998 and Oct. 1, 1998 would not appear until the next edition, so check the citations below and the Federal Register for exact effective dates.
49 CFR § 40.105 — Inability to provide an adequate amount of breath or saliva.. Text in force on October 1, 1998. This wording effective October 1, 1996 to October 1, 2001. Source: govinfo, 1998 edition, https://www.govinfo.gov/app/details/CFR-1998-title49-vol1/CFR-1998-title49-vol1-sec40-105. Retrieved from FMCSR.com, https://fmcsr.com/reg/40.105?asof=1998-10-01, on October 26, 2026. Unofficial compilation; verify against the official source.

(a) If an employee is unable to provide sufficient breath to complete a test on a non-evidential breath testing device, the procedures of § 40.69 apply.

(b) If an employee is unable to provide sufficient saliva to complete a test on a saliva screening device (e.g., the employee does not provide sufficient saliva to activate the device), the STT, as provided in § 40.101 of this part, shall conduct a new test using a new device. If the employee refuses to complete the new test, the STT shall terminate testing and immediately inform the employer. This constitutes a refusal to test.

(c) If the new test is completed, but there is an insufficient amount of saliva to activate the device, STT shall immediately inform the employer, which shall immediately cause an alcohol test to be administered to the employee using an EBT.

Amendment history

4 distinct wordings on file since Oct. 1, 1996
  1. Nov. 13, 2017 → Jan. 1, 2018eCFR, day-precisediff vs. previous
    [65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35971, June 25, 2008]
  2. Oct. 1, 2008 → Nov. 13, 2017annual editions 2008–2016diff vs. previous
    [65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35971, June 25, 2008]
  3. Oct. 1, 2001 → Oct. 1, 2008annual editions 2001–2007diff vs. previous
  4. Oct. 1, 1996 → Oct. 1, 2001annual editions 1996–2000viewing

A new entry appears whenever the regulatory words change between government snapshots. Day-precise from the eCFR (2017 onward); before that, one snapshot per annual CFR edition (revised as of October 1). Bracketed citations are the Federal Register history printed with the section.