[Federal Register Volume 73, Number 115 (Friday, June 13, 2008)]
[Rules and Regulations]
[Pages 33735-33737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13377]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST-2008-0184]
RIN OST 2105-AD67


Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs: State Laws Requiring Drug and Alcohol Rule Violation 
Information

AGENCY: Office of the Secretary, DOT.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of the Secretary (OST) is amending its drug and 
alcohol testing procedures to authorize employers to disclose to State 
commercial driver licensing (CDL) authorities the drug and alcohol 
violations of employees who hold CDLs and operate commercial motor 
vehicles (CMVs), when a State law requires such reporting. This rule 
also permits third-party administrators (TPAs) to provide the same 
information to State CDL licensing authorities where State law requires 
the TPAs to do so for owner-operator CMV drivers with CDLs.

DATES: The rule is effective June 13, 2008. Comments to this interim 
final rule should be submitted by August 12, 2008. Late-filed comments 
will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2008-0184 by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal Holidays.
     Fax: (202) 493-2251.
    Instructions: You must include the agency name and docket number 
DOT-OST-2008-0184 or the Regulatory Identification Number (RIN) for the 
rulemaking at the beginning of your comment. All comments received will 
be posted without change to http://www.regulations.gov, including any 
personal information provided.

FOR FURTHER INFORMATION CONTACT: For program issues, Bohdan Baczara or 
Patrice M. Kelly, Office of Drug and Alcohol Policy and Compliance, 
1200 New Jersey Avenue, SE., Washington, DC 20590; (202) 366-3784 
(voice), (202) 366-3897 (fax), [email protected] 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: Confidentiality of an employee's test 
results is a cornerstone of the balance between public safety and 
employee privacy that is crucial to the Department of Transportation's 
testing program. Early in the Department of Transportation's drug 
testing program, we recognized the need for confidentiality of employee 
testing information and reflected this in our December 1, 1989 Federal 
Register notice (54 FR 49854). This rule required the Medical Review 
Officer (MRO) to disclose positive drug test result information only to 
employers. The rule also required laboratories to maintain employee 
test records in confidence, but permitted laboratories to disclose a 
positive drug test result to the employee, employer, or the decision 
maker in a lawsuit, grievance or other proceeding initiated by or on 
behalf of the employee as a result of the employee's positive drug 
test.
    Congress passed the Omnibus Transportation Employee Testing Act of 
1991, which directed the Department to implement significant changes to 
its substance abuse testing program, and specifically referenced 
providing for the confidentiality of employee test results. The 
Department amended its drug and alcohol testing regulations to 
implement these statutory requirements. (59 FR 7340; February 15, 
1994). As provided in the original 1989 DOT rules and the 1994 
amendments, Part 40 includes strict and specific provisions for 
maintaining the confidentiality of employee testing records. 
Specifically, employers are permitted to release employee drug and 
alcohol testing records to other employers only upon written consent 
from the employee, and only when the consent authorized the release to 
a specifically identified individual.
    In 2000, the Department revised its drug and alcohol testing 
regulations (65 FR 79462). In this revision, the Department prohibited 
MROs from disclosing employee drug testing information to other 
employers and prohibited service agents and employers from using 
blanket releases. We intended in 2000 for State safety agencies with 
regulatory authority over employers to be provided with certain testing 
information about an individual employee with no signed releases 
necessary. In recent years, several States have passed legislation 
requiring the release of certain test result and refusal information 
for all CDL holders without the employees' consent. Specifically, the 
States have required employers and/or their service agents to report to 
their respective State CDL issuing and licensing authorities the drug 
and alcohol violations of employees who are CMV drivers with CDLs. We 
do not want our regulations to have the effect of prohibiting employers 
and TPAs of owner-operators from providing the drug and alcohol test 
results of CMV drivers with CDLs. Consequently, the Department must 
take rapid action to avoid any such conflict.
    The Department believes that State action to suspend or revoke the 
CDLs of CMV drivers who violate DOT rules until they demonstrate that 
they have successfully completed the SAP process can have important 
safety benefits. We support State legislation that can reliably provide 
State CDL licensing authorities with the information they need to take 
such action. In particular, the Department is concerned that, in the 
absence of such action, CMV drivers with CDLs who do not seek required 
Substance Abuse Professional (SAP) evaluations, yet continue to perform 
safety-sensitive duties after they violate the Department's drug and 
alcohol regulations (so-called ``job hoppers''), pose an unacceptable 
safety risk to the public. We believe measures taken by States to 
suspend or revoke the CDL licenses of CMV drivers who violate DOT drug 
and alcohol rules will enhance the Department's efforts to ensure that 
such drivers are evaluated by SAPs and receive treatment or education 
before they resume safety-sensitive duties.
    To be consistent with our policy in enforcing the existing 
regulations and because we want to ensure that 49 CFR Part 40 is 
supportive of such State

[[Page 33736]]

legislation, we are acting at this time to amend section 40.331. This 
amendment specifies that employers are authorized to respond--without 
conflict with Part 40 confidentiality requirements--to State law 
requirements by providing drug and alcohol violation information to 
State CDL licensing authorities on all CMV drivers with CDLs who are 
covered by DOT testing rules. This same authorization applies to TPAs 
for owner-operators, since they are the party in the best position to 
provide this data if owner-operators choose not to report their own 
violations. We note that this amendment does not authorize the release 
of individually identifiable testing information outside the scope of 
the State laws requiring its provision to a State agency for safety 
purposes. For example, if a State statute requires employers to provide 
information on positive tests and refusals to the DMV for purposes of 
taking action against the driver's CDL, it would be improper for the 
DMV to release the test information to other third parties without the 
written consent of the driver.
    An employer, or a TPA for an owner-operator, is in the best 
position to provide this information reliably to State authorities 
because it is the only entity with knowledge and information about all 
drug and alcohol violations for an employee. For example, an MRO will 
not necessarily know that an employee refused to go to the collection 
site. Since MROs are not involved in the alcohol testing process, MROs 
will not have any information concerning an alcohol test. Likewise, a 
breath alcohol technician will not have any information about an 
employee's drug test result. A SAP will have no records on an employee 
who has not sought evaluation and treatment after a rule violation. 
Many service agents are located out of State and may not know of a 
State law requirement, and in any case they may not be readily subject 
to State law jurisdiction. Most have no way of knowing whether the 
employee is a CMV driver with a CDL or which DOT agency regulates the 
employee. Employers, on the other hand, have all this information, and 
are in-State employers subject to the State's jurisdiction.
    This amendment is not a mandate to employers or TPAs for owner-
operators to send information to State authorities. It simply 
authorizes them to comply with the specifics of State information 
collection requirements. For example, if State A requires only positive 
drug tests to be transmitted to its Department of Motor Vehicles, an 
employer or TPA could provide only records of the employee's positive 
drug test without written employee consent. The employer or TPA could 
not provide ``blanket'' information about refusals or alcohol tests to 
State A without written employee consent, since this was not required 
by State law. We note that enforcement of State laws that apply to a 
given employer or TPA would remain a State responsibility.

Regulatory Analyses and Notices

Authority

    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 45101 et seq.) and the Department of 
Transportation Act (49 U.S.C. 322).

Administrative Procedure Act

    The Department has determined that this rule may be issued without 
a prior opportunity for notice and comment because providing prior 
notice and comment would be unnecessary, impracticable, or contrary to 
the public interest. Because several States already have laws requiring 
the reporting of test result information and other States may be 
contemplating enacting such laws, it is important to clarify the status 
of employers and TPAs for owner-operators seeking to comply with these 
laws. As States work with drug testing program participants to 
implement their laws, it is essential that the Department work, without 
delay, to avoid any potential conflicts with Federal regulations that 
could impede such employers and TPAs from providing needed information 
to State agencies. It is important to resolve, as soon as possible, 
questions that States and other participants have already raised about 
the relationship of State law and DOT regulations in this area. Issuing 
the interim final rule should help to avoid confusion that could, to 
some extent, diminish the safety benefits that the combination of 
Federal and State requirements concerning persons who violate drug 
testing rules would otherwise have.
    This rule clarifies that, in the interest of safety, employers and 
TPAs for owner-operators may comply with State reporting requirements 
to disclose to their State CDL authorities the DOT drug and alcohol 
violations of CMV drivers with CDLs. It would be inadvisable for the 
Department to delay issuing this rule and consequently to delay the 
safety benefits from continued compliance by employers with State laws. 
For the same reasons, the Department finds that there is good cause to 
make the rule effective immediately.

Executive Order 12866 and Regulatory Flexibility Act

    The Department has determined that this action is not considered a 
significant regulatory action for purposes of Executive Order 12866 or 
the Department's regulatory policies and procedures. The interim final 
rule makes minor modifications to our rules to clarify that employers 
and TPAs for owner-operators are authorized to release employee-
specific drug and alcohol testing information where required by State 
law.
    This rule is being adopted solely to clarify that DOT rules do not 
conflict with State laws requiring employers to submit drug and alcohol 
test results to State safety agencies. As such, it imposes no 
compliance costs on any business or governmental entity. Any costs 
resulting from compliance of employers with State laws are attributable 
to those State laws, not to this rule. Given the absence of compliance 
costs to anyone, I certify that the interim final rule does not have a 
significant economic impact on a substantial number of small entities.
    The benefits of this rule, which are not quantifiable, involve 
potential improvements to safety as the result of State procedures that 
could prevent violators of DOT rules from driving commercial vehicles 
for a time and in helping to prevent ``job hopping'' by drivers who 
test positive for one company and then seek a job at another company. 
It is important for the Department and States to begin realizing these 
benefits at this time.

Executive Order 13132

    The Department has analyzed this proposed action in accordance with 
the principles and criteria contained in Executive Order 13132, and has 
determined that, by explicitly facilitating the operation of State 
laws, the amendments is consistent with the Executive Order and that no 
consultation is necessary. It avoids the preemption of State laws with 
respect to the reporting of testing information by employers and third-
party administrators providing services to owner-operators.

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.


[[Page 33737]]


    Issued at Washington, DC, this 22nd day of May, 2008.
Mary E. Peters,
Secretary of Transportation.

0
For reasons discussed in the preamble, the Department of Transportation 
amends Title 49 of the Code of Federal Regulations, Part 40, 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: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 
45101 et seq.; 49 U.S.C. 322.


0
2. Amend 40.331 by adding a new paragraph (g) to read as follows:


Sec.  40.331  To what additional parties must employers and service 
agents release information?

* * * * *
    (g) Notwithstanding any other provision of this Part, as an 
employer of Commercial Motor Vehicle (CMV) drivers holding commercial 
driving licenses (CDLs) or as a third party administrator for owner-
operator CMV drivers with CDLs, you are authorized to comply with State 
laws requiring you to provide to State CDL licensing authorities 
information about all violations of DOT drug and alcohol testing rules 
(including positive tests and refusals) by any CMV driver holding a 
CDL.
* * * * *
[FR Doc. E8-13377 Filed 6-12-08; 8:45 am]
BILLING CODE 4910-62-P