[Federal Register Volume 73, Number 225 (Thursday, November 20, 2008)]
[Rules and Regulations]
[Pages 70283-70284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27617]


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

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.

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

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 [email protected]; 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 [email protected].

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]
BILLING CODE 4910-9X-P