[Federal Register: November 20, 2008 (Volume 73, Number 225)]
[Rules and Regulations]
[Page 70283-70284]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20no08-23]
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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 and Alcohol Testing
Programs
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: On June 25, 2008, the Department issued a Final Rule amending,
among other provisions, paragraph (b) of our section pertaining to
urine specimen collections. This amendment required direct observation
collections for all return-to-duty and follow-up tests. We sought
additional comments to this provision on August 25, 2008. On October
22, 2008, the Department issued a notice responding to those comments.
The Department did not change the amendment, and determined that the
revised paragraph would go into effect, as scheduled, on November 1,
2008. On November 12, 2008, the United States Court of Appeals for the
District of Columbia
[[Page 70284]]
Circuit issued a stay of the revised paragragh (b). This document,
therefore, returns the language of 49 CFR 40.67(b) that existed prior
to the November 1, 2008, effective date pending further order of the
Court.
DATES: November 20, 2008.
FOR FURTHER INFORMATION CONTACT: Jim L. Swart, Director, U.S.
Department of Transportation, 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 jim.swart@dot.gov; or Robert
C. Ashby, Deputy Assistant General Counsel for Regulation and
Enforcement, U.S. Department of Transportation, same address, (202)
366-9310 (voice), (202) 366-9313 (fax), or bob.ashby@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
The Department issued a final rule on June 25, 2008 (73 FR 35961),
which included, among other things, two provisions (49 CFR 40.67(b) and
(i)) concerning the use of direct observation (DO) collections, a very
significant tool the Department uses to combat attempts by employees to
cheat on their drug tests.
Several petitioners, including the Association of American
Railroads (AAR), joined by the American Short Line and Regional
Railroad Association; the Transportation Trades Department (TTD) of the
American Federation of Labor and Congress of Industrial Organizations
(AFL-CIO); the International Brotherhood of Teamsters; and the Air
Transport Association (ATA), joined by the Regional Airline Association
(RAA), asked the Department to delay the effective date of these two
provisions, seek further comment on them, and reconsider them. In
response, the Department issued a notice delaying the effective date of
49 CFR 40.67(b)--the provision for making DO collections mandatory for
all return-to-duty and follow-up tests--until November 1, 2008 (73 FR
50222; August 26, 2008). The Department opened a comment period on that
provision, which closed on September 25, 2008. The Department did not
delay the effective date of 49 CFR 40.67(i), and that provision went
into effect, as scheduled, on August 25, 2008.
The Department fully considered the comments filed in the public
docket regarding the amendment to 49 CFR 40.67(b). On October 22, 2008,
at 73 FR 62910, the Department issued a notice responding to the
comments and stated ``the Department remains convinced that conducting
all return-to-duty and follow-up tests under DO is the most prudent
course from the viewpoint of safety.'' (73 FR 62918) The Department
decided not to change the amendment and announced that the revised 49
CFR 40.67(b) would go into effect, as scheduled, on November 1, 2008.
On October 24, 2008, several of the petitioners described above
again petitioned the Department for further postponement of the final
rule regarding 49 CFR 40.67(b). On October 30, 2008, the Department
denied the petition. Several of the petitioners also filed a motion for
stay with the United States Court of Appeals for the District of
Columbia Circuit. On October 31, 2008, the Court issued a temporary
administrative stay to allow more time for the court to consider the
request for stay. On November 12, 2008, the court issued a further
order to stay the effectiveness of section 40.67(b) (BNSF Railway
Company v. Department of Transportation, D.C. Circuit, September Term
2008, No. 08-1265, November 12, 2008). This stay will remain in effect
until the court issues a decision on the merits of petitioners'
challenge to the provisions of 40.67(b).
Therefore, DO collections for return-to-duty and follow-up testing
will continue to be an employer option, rather than mandatory. All
other requirements of 49 CFR part 40 that went into effect on August
25, 2008, including the DO provision at 40.67(i) [checking for
prosthetic and other devices used to carry ``clean'' urine and urine
substitutes] will remain in effect.
Therefore, the revised section 40.67(b), as issued in the
Department's final rule on June 25, 2008, is removed from the CFR in
order to comply with the court's stay, and the prior version of 49 CFR
40.67(b), which the department reinstates with this document, will
remain in effect until further notice.
Issued this 17th day of November, 2008, at Washington, DC.
Jim L. Swart,
Director, Office of Drug and Alcohol Policy Compliance.
49 CFR Subtitle A--Authority and Issuance
0
For reasons discussed in the preamble, the Department of Transportation
is amending part 40 of Title 49 Code of Federal Regulations, as
follows:
PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL
TESTING PROGRAMS
0
1. The authority citation for 49 CFR part 40 continues to read as
follows:
Authority: 40 U.S.C. 102, 301, 322, 5331, 20140, 31306, and
54101 et seq.
0
2. Section 40.67 is amended by revising paragraph (b) to read as
follows:
Sec. 40.67 When and how is a directly observed collection conducted?
* * * * *
(b) As an employer, you may direct a collection under direct
observation of an employee if the drug test is a return-to-duty test or
a follow-up test.
* * * * *
[FR Doc. E8-27617 Filed 11-17-08; 4:15 pm]
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