[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Rules and Regulations]
[Pages 50222-50226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19816]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[Docket OST-2003-15245]
RIN 2105-AD55
Procedures for Transportation Workplace Drug Testing Programs
AGENCY: Office of the Secretary, DOT.
[[Page 50223]]
ACTION: Change in effective date; request for comments.
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SUMMARY: In response to petitions from certain transportation industry
and labor groups, the Department of Transportation is changing the
effective date of 49 CFR 40.67(b) from August 25, 2008, to November 1,
2008. The Department is also requesting comments concerning the content
of Sec. 40.67(b) for 30 days. This section of the Department's drug
testing procedural rule requires employers to ensure that all follow-up
and return-to-duty drug tests are directly observed.
DATES: The effective date of the revision of 49 CFR 40.67(b) published
June 25, 2008 (73 FR 35970) is delayed from August 25, 2008, to
November 1, 2008. Comments should be submitted by September 25, 2008.
ADDRESSES: You may submit comments identified by the docket number
(OST-2003-15245) by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
Instructions: Identify the agency and docket number (OST-2003-
15245) at the beginning of your submission. Except for comments that
receive confidential treatment, all comments received will be posted
without change to the Federal Docket Management System (FDMS),
including any personal information provided. Detailed instructions for
requesting confidential treatment are provided below, under the Privacy
Act heading.
Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
Privacy Act: Anyone is able to search the electronic form of any
written communications and comments received into any of our dockets by
the name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78), which may also be found at http://www.regulations.gov.
You may request confidential treatment of comments or portions of
comments under the procedures set forth in 49 CFR part 105. While all
comments should be sent to the FDMS, OST will consider separately and
not place in the public docket those comments or portions of comments
OST determines to include trade secrets, other confidential commercial
information, or sensitive security information (SSI). In accordance
with 49 CFR 105.30, you may ask OST to keep information confidential
using the following procedures: (1) Mark ``confidential'' on each page
of the original document you would like to keep confidential; (2) send
FDMS both the original document and a second copy of the original
document with the confidential information redacted; and (3) explain
why the information is confidential (as a trade secret, other
confidential commercial information, or SSI). In your explanation, you
should provide enough information to enable OST to determine whether
the information provided is protected by law and must be handled
separately.
FOR FURTHER INFORMATION CONTACT: For program issues, Jim Swart,
Director, Office of Drug and Alcohol Policy and Compliance, 1200 New
Jersey Avenue, SE., Washington, DC 20590; (202) 366-3784 (voice), (202)
366-3897 (fax), or [email protected] (e-mail). For legal issues, Robert
C. Ashby, Deputy Assistant General Counsel for Regulations and
Enforcement, 1200 New Jersey Avenue, SE., Washington, DC 20590; (202)
366-9310 (voice); (202) 366-9313 (fax); or [email protected] (e-mail).
SUPPLEMENTARY INFORMATION: This document responds to petitions and
letters from several parties seeking to postpone the effective date of
portions of the Department's June 25, 2008, final rule amending 49 CFR
part 40 (73 FR 35961) and/or reconsider these provisions. The petitions
concern the new section 40.67(b) and (i), described in more detail
below. Petitioners include the Association of American Railroads (AAR),
joined by the American Short Line and Regional Railroad Association;
the Transportation Trades Department (TTD) of the AFCL-CIO; the
International Brotherhood of Teamsters; and the Air Transport
Association (ATA), joined by the Regional Airline Association (RAA).
Background
On October 31, 2005, the Department of Transportation issued a
notice of proposed rulemaking (NPRM) to amend 49 CFR part 40, the
Department's drug and alcohol testing procedures rule (70 FR 62276).
The primary purpose of the NPRM was to propose making specimen validity
testing (SVT) mandatory. Mandatory SVT is an important step in
combating the safety problem of cheating on drug tests. The two
provisions that are the subject of the petitions concern direct
observation (DO), another significant tool the Department uses to
combat cheating.
The history of DO testing under part 40 goes back to the beginnings
of the Department's drug testing program. The principle that animates
this history is that DO, because it is intrusive, is appropriate to
use, not in the great mass of testing situations (e.g., all pre-
employment and random tests), but only in those situations in which
there is a heightened incentive to cheat or circumstances demonstrating
the likelihood of cheating. In this way, the Department has maintained
the proper balance between the legitimate privacy expectations of
employees and the safety and program integrity interests of the
Department. As a result, DO tests constitute only a tiny percentage of
the drug tests conducted each year under DOT drug testing rules.
In the December 1, 1989, preamble to part 40 (54 FR 49854), we said
that the limitations on using observed collections in only four
circumstances would be maintained despite the fact that some comments
requested that the Department allow greater discretion for observed
collections. The Department decided that ``existing safeguards in part
40 are adequate to prevent tampering and that direct observation,
because of its increased intrusiveness, should be strictly limited.''
The Department considered that limiting the circumstances that would
result in a DO is ``one factor in the balance between privacy and
safety necessity considered by the courts.''
The preamble went on to say that some comments specifically opposed
direct observation ``as part of follow-up (i.e., post-positive)
testing, while other commenters favored this practice.'' We said that
the Department ``believes that direct observation may be a useful tool
in follow-up testing.'' There was concern expressed about drug use
relapses, especially for cocaine. We went on to say, ``An individual
who has returned to work after rehabilitation but has suffered such a
relapse may have a greater incentive to attempt to beat a
[[Page 50224]]
follow-up test, because the employer may not provide a second
opportunity for rehabilitation.'' Regarding directly observed follow-up
testing, the preamble concludes, ``If the employer or EAP counselor
believes that this may be the case, the opportunity for direct
observation should exist.''
Currently, section 40.67(a) requires that employers direct an
immediate collection under direct observations in three circumstances:
(1) When the laboratory reported an invalid specimen and the MRO
reported that there was not an adequate medical explanation for the
result; (2) when the MRO reports to the employer that the original non-
negative result had to be cancelled because there was not a split
specimen available for testing; and (3) when the MRO reports a
negative-dilute specimen with a creatinine concentration greater than
or equal to 2 mg/L or less than or equal to 5 mg/L. We added the third
provision in 2003 in an interim final rule (68 FR 31624, May 28, 2003)
and revised it in an interim final rule (69 FR 64865). Direct
observation is also mandated at collection sites if the collector finds
materials brought to the collection site to tamper with a specimen
(section 40.61(f)(5)(i)), determines that a specimen is out of
temperature range (section 40.65(b)(5)) or detects other evidence
indicating an attempt to tamper with a specimen (section 40.65 (c)(1)).
In addition, employers are currently allowed, but not required, to
order a directly observed test under section 40.67(b) for return-to-
duty and follow-up tests.
We acknowledge that DO collections are, and always have been,
controversial. In the December 19, 2000 preamble to a major update to
part 40 (65 FR 79462), about observed collections we said, ``Directly
observed specimens are controversial because of their greater impact on
employee privacy. They can be useful because they reduce the
opportunity for tampering. On privacy grounds, some commenters,
including unions and some service agents, would prefer not to conduct
directly observed collections at all.'' (65 FR at 79489) These
commenters opposed adding any situations in which direct observation
was authorized or required.
The 2000 preamble went on to say, ``Other commenters said that the
benefit of greater protection against specimen tampering warranted
direct observation in situations that suggested a heightened risk of
tampering.'' (65 FR at 79489) The Department agreed with these
commenters and increased the number of circumstances for which an
observed collection was required or authorized. In circumstances that
pose a higher risk or greater risk for tampering, ``the interests of
the integrity of the testing process, with its safety implications,
outweigh the additional privacy impact of the direct observation
process.'' (65 FR at 79489-79490)
More recently, there has been a sharply increased emphasis, at the
level of national policy, on the problem of cheating and how to deal
with it. The Department has been aware for several years of the
increasing proliferation of products designed and sold to help workers
who use drugs defeat drug tests. Not only was the Department working on
the specimen validity testing rulemaking between 2005 and 2008, but the
United States Congress was conducting its own inquiries on the issues.
During a May 17, 2005 hearing before the Investigations Committee
on Energy and Commerce, the Department of Health and Human Services
provided the following testimony regarding prosthetic devices
delivering synthetic or drug-free human urine:
The most cumbersome, yet highly effective, way to beat a urine
drug test is to use a physical belt-like device hidden under the
clothing which contains a reservoir to unobtrusively hold real human
urine from another person that is free from drugs, and deliver that
bogus specimen into the collection container through a straw-like
tube, or through a prosthetic device that looks like real human
anatomy, color-matched. This last described device is heavily
marketed for workplace drug testing and criminal justice urine
collection situations that require directly observed urine specimens
to be provided. Synthetic urine can be used in place of real human
drug free urine. [Testimony before the Subcommittee on Oversight and
Investigations Committee on Energy and Commerce United States House
of Representatives Products Used to Thwart Detection in Drug Testing
Programs, Statement of Robert L. Stephenson II, M.P.H. Director,
Division of Workplace Programs Center for Substance Abuse
Prevention, Substance Abuse and Mental Health Services
Administration, U.S. Department of Health and Human Services at
pages 4-5].
Also at the 2005 hearing, the GAO testified that
In summary, we found that products to defraud drug tests are
easily obtained. They are brazenly marketed on Web sites by vendors
who boast of periodically reformulating their products so that they
will not be detected in the drug test process. In addition to an
array of products designed to dilute, cleanse, or substitute urine
specimens submitted to testers by drug users, approximately 400
different products are available to adulterate urine samples. The
sheer number of these products, and the ease with which they are
marketed and distributed through the Internet, present formidable
obstacles to the integrity of the drug testing process. [Testimony
Statement of Robert J. Cramer, Managing Director, Office of Special
Investigations, the United States Government Accountability Office
(GAO), before the Chairman, Subcommittee on Oversight and
Investigations, Committee on Energy and Commerce, House of
Representatives, GAO-05-653T, May 1, 2005].
On November 1, 2007, following media coverage regarding compromised
collection integrity and security issues, the Congressional
Subcommittee on Transportation and Infrastructure held a hearing on the
problem of cheating on DOT-required tests. At the hearing, the GAO
testified at the hearing about the threat to the integrity of the
testing program posed by the devices being used to substitute urine in
DO collections. In the final report the GAO issued in May of 2008, the
GAO noted that the ease of subverting the testing process was a factor
contributing to failures to detect drug use. Specifically, GAO noted
that transportation employees ``are successfully adulterating or
substituting their urine specimens with products that are widely
available and marketed as * * * [ways to beat a test.]'' [GAO Report
No. GAO-08-600, Motor Carrier Safety: Improvements to Drug Testing
Programs Could Better Identify Illegal Drug Users and Keep them off the
Road, May 2008 at pages 2-3.] The GAO further found that ``Several
hundred products designed to dilute, cleanse, or substitute urine
specimens can be easily obtained.'' [GAO Report No. GAO-08-600 at page
20.]
In light of the by-now well-recognized availability of substances
and devices for substituting or adulterating specimens, the
Department's premise for the changes it made to section 40.67 was that
taking additional steps to combat cheating on drug tests was
appropriate. Such steps are needed to avoid damage to the safety
purposes of the program. Given the greater availability of means to
cheat on tests, compared to the late 1980s, the Department took the
position in the June 25 final rule that it is appropriate to strike the
balance between the Department's interests in safety and program
integrity and employees' interest in privacy at a different point than
it did two decades ago.
In the Omnibus Transportation Employee Testing Act of 1991,
Congress recognized that, while privacy is a very important value in
the drug testing process, it is not an absolute value. The Act directs
the Department to ``promote, to the maximum extent practicable,
individual privacy in the collection of specimens'' (49 U.S.C.
20140(c)(1), emphasis added). In issuing the June 25
[[Page 50225]]
final rule, the Department, in effect, took the position that it is no
longer ``practicable'' to operate a drug testing program without adding
countermeasures to well-publicized cheating techniques and devices.
New Procedure To Check for Prosthetic Cheating Devices
Based on what the Department viewed as the need for additional
safeguards against prosthetic devices used to cheat on DO tests, the
Department explicitly sought comment in its October 2005 NPRM (70 FR
62281), on whether collectors should check to make sure that employees
providing a specimen under DO are not using a prosthetic device to
cheat on the test (e.g., by having an employee lower his pants and
underwear so that the collector or observer could determine whether the
employee was using such a device).
In the preamble to the Department's final rule based on this NPRM
(73 FR 35968), the Department responded to comments on this proposal.
This response set forth the Department's rationale for adopting a new
provision, found in section 40.67(i), requiring employees to raise and
lower their clothing to show the collector or observer that the
employee is not using a prosthetic device. The Department reaffirms
this rationale, and the Department does not believe that any delay in
the effective date of this provision is appropriate. The Department
believes that there would be nothing to be gained by delaying this
significant anti-cheating, pro-safety initiative.
Consequently, this provision will go into effect, as scheduled, on
August 25, 2008. The Department is not soliciting further comment on
section 40.67(i). The effect of this decision is that, beginning August
25, 2008, observers in all DO collections will be required to carry out
the anti-prosthetic device procedure of section 40.67(i) in all
directly observed collections, including FU and RTD tests where
employers choose to use DO. There is no requirement to use the section
40.67(i) procedure except in circumstances where DO tests otherwise are
taking place.
We do not believe that petitioners have made a persuasive case that
a delay is necessary to train collectors in this new procedure, which
is simple to carry out and easy to understand. Moreover, it is
observers--who need not be trained collectors--who are to carry out the
task of having employees raise and lower clothing to determine whether
prosthetic cheating devices are present. Any individual of the
appropriate gender should be able to perform this function with minimal
instruction. In addition, having waited until mid-August to file their
petitions saying they had insufficient time to train personnel,
railroad and aviation employers appear to have missed the opportunity
to begin training personnel during the several weeks since the June
publication of the final rule, if they believed additional time to be
necessary.
It is important for employers to keep in mind, in view of the
Department's decision to postpone the effective date of section
40.67(b), that for the period between August 25 and October 31, 2008,
there will be no need to recruit or train additional observers, because
there will be no additional direct observation tests required beyond
those the Department's rules required before August 25. All that will
be required during this period is that employers and collection
contractors instruct observers to follow the additional procedure to
guard against the use of prosthetic devices.
We also note that it is common for DOT operating administrations'
enforcement personnel, in the initial months of a new requirement, to
focus on information and education rather than the imposition of
penalties. Employers who are making good faith efforts to comply with
the provision should benefit from this typical enforcement practice.
Mandatory Use of Direct Observation in Return-to-Duty and Follow-up
Testing
At the end of the discussion of this provision on page 35968 of the
final rule preamble, the Department said, in the context of taking
additional steps to address the problem of cheating on drug tests, that
DO would be required for all FU and RTD tests. The new requirement was
included as section 40.67(b). Under part 40 as it existed before this
amendment, employers had the discretion to require direct observation
in FU and RTD tests, but were not mandated to do so.
In the Department's view, this new requirement was a logical
outgrowth of the development of the Department's increasing efforts to
deal with the problem of cheating in drug tests. Even though we did not
foresee [and few did] in 1989 the degree to which products designed to
beat the drug test would be available, the Department was concerned
about specimen tampering and about the heightened motivation of those
employees returning to safety sensitive positions after positive tests
to tamper with their specimens. That concern has increased in recent
years as information about the widespread availability of cheating
products has become available.
As a consequence, the Department believed, in adding this
provision, that it was important for us to be consistent with the other
DO provisions, which make DO testing mandatory in circumstances
involving heightened motivation for or evidence suggesting attempts to
cheat (see sections 40.61(f)(5)(i); 40.65 (b)(5) and (c)(1); 40.67(a)).
In all these cases, use of DO is mandatory. If safety necessitates a DO
in one of these circumstances, then, the Department believed, safety
likewise necessitates DO as part of FU and RTD tests. The Department
was mindful that everyone who has to take an RTD or FU test had already
violated the rule (e.g., by testing positive or refusing to test),
showing that he or she has behaved in a way that presents an increased
risk to transportation safety. Such employees will be acutely aware
that that they must test negative on all RTD and FU tests in order to
regain or retain their ability to perform safety-sensitive functions.
These circumstances, the Department believed, present just the sort of
heightened incentive for cheating on a test that DO testing is intended
to combat.
It was but a modest, incremental step from the current regulation's
authorization of DO in FU and RTD situations to the June 25 final
rule's requirement for DO in these situations. Consequently, the
Department believed that taking this step was timely and appropriate.
Postponement of Effective Date of Section 40.67(b) and Request for
Comment
Petitioners pointed out that the Department's 2005 NPRM did not
specifically raise for comment a proposal to make DO testing mandatory,
rather than discretionary, in FU and RTD testing. While the Department
believes, as discussed above, that section 40.67(b) is justified as a
logical outgrowth of Part 40 rulemaking, even in the absence of a
specific request for comment, the Department will seek comment on
section 40.67(b) for 30 days.
In order to accommodate this comment period, as well as to allow
time for the Department to review and respond to any comments we
receive, the Department will change the effective date of section
40.67(b) to November 1, 2008, the date suggested by petitioners. We
want all interested parties to realize that this change in the
effective date affects ONLY section 40.67(b). The rest
[[Page 50226]]
of the June 25, 2008, final rule goes into effect on August 25, 2008,
as scheduled.
We will place the petitions we have received into the docket, and
we will consider the arguments made in these petitions about the
content of section 40.67(b) along with other comments that we receive.
On the basis of the comments we receive and any other information
available to the Department, the Department will reconsider section
40.67(b) and may retain, eliminate, or modify it.
Because this action and the decision not to take similar action
with respect to section 40.67(i) also completely respond to the
parallel petitions to the Federal Railroad Administration (FRA) by some
of the same parties, which raise the same issues about the same
provisions of part 40, FRA is not taking any separate action on the
petitions concerning the implementation of the amendments to 40.67 in
the railroad industry.
Issued this 21st day of August, 2008, at Washington, DC.
Jim Swart,
Director, Office of Drug and Alcohol Policy and Compliance.
[FR Doc. E8-19816 Filed 8-22-08; 11:15 am]
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