[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Rules and Regulations]
[Pages 8526-8528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3730]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[Docket OST-2007-26828]
RIN 2105-AD64
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: This final rule responds to the comments received regarding
the interim final rule (IFR) procedures for the use of a new alcohol
screening device (ASD) which is qualified for use in DOT Agency
regulated alcohol testing. The Department did not receive any comments
which were germane to the rulemaking. As such, the Department will
adopt the rule as final without change.
DATES: This rule is effective February 25, 2010.
FOR FURTHER INFORMATION CONTACT: Bohdan Baczara, 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 [email protected] (e-mail).
SUPPLEMENTARY INFORMATION:
[[Page 8527]]
Purpose
Department regulations require that in order for an employer to
utilize a specific ASD to conduct required DOT alcohol tests, the
device must (a) Have been approved by the National Highway Traffic
Safety Administration (NHTSA) as meeting required model specifications,
(b) be published by NHTSA in the Federal Register on their most current
ASD CPL, and (c) have Department-approved procedures in part 40 for its
use. By publishing the IFR, the Department ensured that procedures were
in place so that when NHTSA published its ASD CPL in the Federal
Register, the breath tube ASD was immediately available for use by DOT
regulated employers.
Background and Purpose
When it originally published its alcohol testing rules on February
15, 1994 [54 FR 7302 et seq.], the Department established breath
testing using evidential breath testing devices (EBTs) as the required
method. However, in response to comments requesting additional
flexibility in testing methods, the Department said that NHTSA would
develop model specifications for non-evidential alcohol screening
devices, evaluate additional screening devices against those
specifications, and periodically publish a conforming products list of
screening devices that met the model specifications. The Department
noted, too, that the Department would also have to undertake separate
rulemaking proceedings to establish part 40 procedures for use by DOT-
regulated industries of any devices approved by NHTSA.
On April 20, 1995 [60 FR 19675], the Department published
procedures for use of both breath and saliva ASDs. At that time, the
Department did not anticipate that additional breath and saliva
screening devices would be developed that would necessitate new
procedures for their use. As a result, the revised part 40 published
December 19, 2000 [65 FR 79462] stated, in part, that ASDs on the NHTSA
CPL could be used for part 40 alcohol screening tests. Because NHTSA
added an ASD to their CPL and the Department had no procedures for its
use, we were forced to amend that rule. On August 9, 2001 [65 FR
41944], part 40 was amended to read, ``You may use an ASD that is on
the NHTSA CPL for DOT alcohol tests only if there are instructions for
its use in this part.''
On October 1, 2002 [67 FR 61521], the Department published
procedures for the use of a breath tube ASD that had been approved by
NHTSA and added to their May 4, 2001 CPL [66 FR 22639]. By 2005, that
device was no longer being manufactured, and was removed from the CPL
effective September 19, 2005 [70 FR 54972]. Subsequently, NHTSA
approved a new breath tube ASD but had not yet added it to its ASD CPL
which was one of three critical criteria to permitting DOT regulated
employers to use the device.
Although DOT regulated employers could still not use the ASD, the
Department realized that the breath tube procedures currently in our
regulation were not consistent with instructions for use of the newly
approved ASD. As a result, on January 11, 2007 the Department published
an IFR [72 FR 1298] where it amended part 40 by eliminating procedures
specific for the breath tube ASD which is no longer being manufactured
and added procedures for use of the newly approved device.
The IFR provided instructions for use of the new ASD which were
generally similar to those for the previously approved breath tube
device. The principal difference was in how the alcohol result is read
by the technician. Instead of comparing the color of the crystals in
the ASD with the colored crystals in a manufacturer-produced control
tube, the new ASD used an electronic analyzer to provide the technician
and the employee with an automated visual result of negative (a
flashing green light) or positive (a flashing red light) at 0.02. The
Department also retained the requirement to read the result within 15
minutes of the test to ensure a confirmation test, when necessary, was
conducted in a timely manner. Finally, because of the manufacturer's
requirement to only use the detector device with a pre-calibrated
electronic analyzer, the IFR also added a fatal flaw to the current
list of fatal flaws. Specifically, the alcohol screening test was to be
cancelled if an electronic analyzer was not used with a specified lot
of detector devices.
Discussion of Comments to the Docket
There were two comments to the docket which were not germane to the
interim final rule and, therefore, the Department will not address
them. Because there were no comments which provided substantive
information to warrant changing the procedures in the IFR, the
Department will adopt the text in the IFR as final.
Regulatory Analyses and Notices
The statutory authority for this rule derives from the Omnibus
Transportation Employee Testing Act of 1991 (49 U.S.C. 102, 301, 322,
5331, 20140, 31306, and 54101 et seq.) and the Department of
Transportation Act (49 U.S.C. 322).
This final rule is not significant for purposes of Executive Order
12866 or the DOT's regulatory policies and procedures. It finalizes
minor modifications, already in effect, to our procedures that do not
increase costs on regulated parties. In fact, it facilitates the use of
an alcohol screening device that may increase flexibility and lower
costs for employers who choose to use them over more expensive options
previously approved by the Department. The rule will impose no burdens
on any parties, and NHTSA has already determined that the device is
technically acceptable for use in the DOT alcohol testing program.
While small entities are among those who may use the device, the
Department consequently certifies, under the Regulatory Flexibility
Act, that this rule does not have a significant economic impact on a
substantial number of small entities.
We issued the IFR on this subject to ensure that employers could
use the ASD when it is placed on NHTSA's CPL as a qualified device
(meeting DOT specifications for accuracy and precision). We determined,
at that time, under section 553 of the Administrative Procedure Act,
that prior notice and an opportunity for public comment were
unnecessary, impracticable, or contrary to the public interest. Given
the absence of any comment on the IFR, and the fact that this rule
simply finalizes a rule already in effect, the Department finds good
cause under 553 to make this rule effective immediately.
List of Subjects in 49 CFR Part 40
Administrative practice and procedures, Alcohol abuse, Alcohol
testing, Drug abuse, Drug testing, Laboratories, Reporting and
recordkeeping requirements, Safety, Transportation.
Issued at Washington DC, this 9th day of February 2010.
Ray LaHood,
Secretary of Transportation.
PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL
TESTING PROGRAMS
0
Accordingly, the Interim Final Rule amending 49 CFR part 40 which was
published at 72 FR 1298 on January 11,
[[Page 8528]]
2007 is adopted as a final rule without change.
[FR Doc. 2010-3730 Filed 2-24-10; 8:45 am]
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