[Federal Register Volume 66, Number 11 (Wednesday, January 17, 2001)]
[Rules and Regulations]
[Pages 3884-3885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-648]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST-99-6578]
RIN 2105-AAC49


Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs; Correction

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule; correction.

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SUMMARY: In its final drug and alcohol testing rule published on 
December 19, 2000, the Department made an editorial error in the 
numbering of a section in the complete new version regulation. This 
document corrects this error by inserting the proper numbering. In 
addition, the Department inadvertently omitted one item from its 
amendments to the existing regulation. This document adds this item, 
which concerns the responsibilities of the medical review officer in 
reviewing chain of custody documentation.

EFFECTIVE DATES: The correction to the amendments to the current 49 CFR 
Part 40 (i.e., the addition of Sec. 40.227) is effective January 18, 
2001. The correction to the revised 49 CFR Part 40 (i.e., corrected 
designation of Sec. 40.33(f)) is effective August 1, 2001.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and Enforcement, Department of 
Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590, 
at (202) 366-9306 (voice), (202) 366-9313 (fax), (202) 755-7687 (TDD), 
or [email protected] (e-mail).

SUPPLEMENTARY INFORMATION: In the December 19, 2000, Federal Register 
(65 FR 79462), the Department published a comprehensive revision to its 
drug and alcohol procedures testing regulation (49 CFR Part 40). This 
complete revision becomes effective August 1, 2001. In this revision, 
the Department made an error in numbering Sec. 40.33(f). Following the 
introductory text of paragraph (f), the Department numbered three 
paragraphs (i), (ii), and (iii), respectively. They should have been 
numbered (1), (2), and (3). We are correcting this error.
    In the same Federal Register document, we also published amendments 
to the existing 49 CFR Part 40, effective January 18, 2001. We 
inadvertently omitted from these amendments one provision we intended 
to make effective on this date. This provision concerns the 
responsibility of the medical review officer (MRO) to review the chain 
of custody documentation for a drug test. In Sec. 40.123(b)(1) and 
Sec. 40.129(a)(2) of the complete revision of Part 40, the Department 
specifies that MROs are not required to review the laboratory internal 
chain of custody documentation as part of this process, and that no one 
is authorized to cancel a test because the MRO does not review the 
internal laboratory chain of custody documentation.
    These provisions of the complete revision of Part 40 are fully 
consistent with the Department's intent in, and interpretation of, the 
existing regulation. However, we learned last year that some parties 
have been confused about this point, and one state court decision--
mistakenly, in our view--determined that MROs were required to review 
internal laboratory chain of custody documentation. We added the cited 
provisions to the complete revision of Part 40 to emphasize that MRO 
review of this documentation is not needed.
    We intended to add the substance of these provisions to the 
amendments to the existing Part 40 that become effective January 18, 
2001, lest there be any misunderstanding of this point in the interim 
before August 1, 2001. However, through editorial oversight, we failed 
to do so. We are correcting this omission by adding a new Sec. 40.227 
to Subpart E of the existing Part 40.
    The Department finds that there is good cause to issue this 
correction without a prior notice and opportunity for comment. The 
underlying regulatory provisions were part of a rulemaking that was 
promulgated through the

[[Page 3885]]

normal notice and comment provisions of the Administrative Procedure 
Act. The editorial correction to the numbering of Sec. 40.33(f) has no 
substantive significance. The addition of a provision of the complete 
revision of Part 40 to the amendments to the existing Part 40 merely 
ensures that this restatement of the Department's understanding of MRO 
review responsibilities under the existing rule becomes part of the 
regulatory text in January as we intended, rather than in August.
    The Department would not anticipate receiving any useful public 
comment on these matters. Therefore, the Department finds that it would 
be impracticable, unnecessary, and contrary to the public interest to 
go through a notice-and-comment process to fix a minor editorial 
mistake. For the same reason, we find good cause to make the correction 
with respect to MRO review responsibilities effective in less than 30 
days.
    This is a nonsignificant rule under both Executive Order 12886 and 
the Department's regulatory policies and procedures. The Department 
certifies, under the Regulatory Flexibility Act, that the rule will not 
have a significant economic effect on a substantial number of small 
entities. This is because we anticipate that this amendment will have 
no economic effect on anyone. It does not have Federalism impacts 
sufficient to warrant consultation or the preparation of a Federalism 
impact statement. It does not impose information collection 
requirements.

    Issued this 4th Day of January 2000, at Washington, DC.
Rosalind A. Knapp,
Acting General Counsel.

    Accordingly, in FR Doc. 00-31251, published in 65 FR 79462, 
December 19, 2000, make the following corrections:

PART 40--[CORRECTED]

    1. On page 79521, in the second column, add Sec. 40.227 to Subpart 
E, to read as follows:


Sec. 40.227  Is the MRO required to review laboratory internal chain of 
custody documentation?

    (a) As the MRO, you are not required to review laboratory internal 
chain of custody documentation.
    (b) No one is permitted to cancel a test because you have not 
reviewed this documentation.


Sec. 40.33  [Corrected]

    2. Beginning on page 79533, in the third column, in Sec. 40.33, 
correctly designate paragraphs (f)(i), (f)(ii), and (f)(iii) as 
paragraphs (f)(1), (f)(2), and (f)(3), respectively.

[FR Doc. 01-648 Filed 1-16-01; 8:45 am]
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