[Federal Register Volume 74, Number 145 (Thursday, July 30, 2009)]
[Rules and Regulations]
[Pages 37949-37952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18156]



Office of the Secretary

49 CFR Part 40

[Docket OST-2003-15245]
RIN 2105-AD89

Procedures for Transportation Workplace Drug and Alcohol Testing 

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.


SUMMARY: This amendment reinstates the requirement for direct 
observation collections for all return-to-duty and follow-up tests. 
This provision was stayed by the United States Court of Appeals for the 
District of Columbia Circuit effective November 1, 2008, but that stay 
was lifted on July 1, 2009. This amendment, therefore, restores 
language to the version that became a final rule on June 25, 2008.

DATES: Effective Date: August 31, 2009.

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].



    The Department issued a final rule on June 25, 2008 (73 FR 35961) 
that, among other changes, modified 49 CFR 40.67(b) and added a new 
paragraph (i) concerning the use of direct observation collections, a 
very significant tool the Department employs to combat attempts by 
employees to cheat on their drug tests. The amendment to 49 CFR 
40.67(b) required direct observation collections for all return-to-duty 
and follow-up tests. Section 40.67(i) required that direct observations 
be conducted so as to allow the observer to check the individual for 
prosthetic or other cheating devices.
    Several petitioners 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 direct 
observation collections mandatory for all return-to-duty and

[[Page 37950]]

follow-up tests--until November 1, 2008 (73 FR 50222; August 26, 2008). 
We opened a comment period on 49 CFR 40.67(b), 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 direct observation 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 again requested 
that the Department further postpone the revised 49 CFR 40.67(b). On 
October 30, 2008, the Department denied that petition. Several of the 
petitioners then 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, U.S. 
Court of Appeals for the D.C. Circuit, September Term 2008, No. 08-
1265, November 12, 2008). This stay remained in effect until the court 
issued a decision on the merits of petitioners' challenge to the 
provisions of 40.67(b). On November 20, 2008, at 73 FR 70283, in 
response to the stay, the Department issued a final rule to return to 
the language of section 40.67(b) that existed prior to June 25 final 
rule ``pending further order of the Court.''
    Therefore, direct observation collections for return-to-duty and 
follow-up testing remained an employer option, rather than mandatory. 
All other requirements of the June 25, 2008 final rule that went into 
effect on August 25, 2008, including the direct observation provision 
at 40.67(i) [directing observers to check for prosthetic and other 
devices used to carry ``clean'' urine and urine substitutes] were not 
affected and have continued in effect.
    On May 15, 2009, the United States Court of Appeals for the 
District of Columbia Circuit unanimously upheld DOT's direct 
observation drug testing rules applicable to return-to-duty, safety-
sensitive transportation industry employees who have already failed or 
refused to take a prior drug test. (BNSF Railway Company v. Department 
of Transportation, 566 F.3d 200 (DC Cir. 2009)). Because there was an 
opportunity for the parties to seek rehearing of the Court's ruling, 
the Court's stay of the direct observation rule continued in effect. 
The Court issued a Mandate on July 1, 2009, which finalized the 
decision, thereby lifting the stay. This document, therefore, 
reinstates the language of 49 CFR 40.67(b) that the Department 
originally issued on June 25, 2008, and that would have gone into 
effect on November 1, 2008, but for the court's stay.

The Court's Decision

    In its May 15, 2008 decision on the merits of section 40.67, the 
Court determined that direct observation drug testing for return-to-
duty employees was not arbitrary and capricious because the Department 
had chosen a reasonable way of responding to the compelling 
governmental interest in transportation safety. The circumstances the 
Court took into account included the recent development of a wide array 
of available cheating devices, and the substantial incentive for these 
return-to-duty employees to use such devices to cheat on required 
return-to-duty and follow-up drug tests. The Court's unanimous decision 
also held that the rules did not violate the Fourth Amendment 
constitutional prohibition on unreasonable searches and seizures, 
taking into account, among other factors, the diminished expectation of 
privacy of employees who have failed or refused a prior drug test.

Administrative Procedure Act Analysis

    The Court determined that the Department's issuance of the revised 
regulation was not arbitrary and capricious. In reaching this 
determination, the court noted that the ``Department marshaled and 
carefully considered voluminous evidence of the increasing availability 
of a variety of products designed to defeat drug tests.'' BNSF Railway 
Company v. Department of Transportation, 566 F.3d at 203. Since any 
successful use of cheating devices would not show up in statistics, the 
Court agreed with the Department's reasoning that it was ``illogical'' 
to require statistical evidence of cheating. Id. In this regard, the 
Court cited a recent Supreme Court decision, which said that ``It is 
one thing to set aside agency action under the Administrative Procedure 
Act because of failure to adduce empirical data that can readily be 
obtained. It is something else to insist upon obtaining the 
unobtainable.'' FCC v. Fox Television Stations, Inc., No. 07-582, 2009 
WL 1118715, at *11 (U.S. Apr. 28, 2009) (citation omitted) Id. at 203-
    The Court stated ``the Department's approach was sound. 
Acknowledging the intrusiveness of direct observation testing, the 
Department sought to limit it to situations posing a high risk of 
cheating * * * and then concluded--reasonably in our view--that 
returning employees have a heightened incentive to cheat, and that this 
incentive, coupled with the increased availability of cheating devices, 
creates such a high risk, * * *.'' Id. at 204. In reaching its 
determination that ``[s]ubstantial additional evidence supports the 
Department's conclusion that returning employees are particularly 
likely to cheat.'' Id., the court relied heavily upon the expertise of 
the Substance Abuse Professionals (SAPs) who commented upon 49 CFR 
40.67(b). ``Given the experience possessed by these substance abuse 
professionals, such assessments provide substantial evidence supporting 
the Department's conclusion that returning employees are particularly 
likely to cheat on drug tests.'' Id.
    In addition to the SAP comments and other evidence it referenced, 
the Court noted with interest that return-to-duty employees pose a high 
risk to transportation safety. Specifically, the Court noted with 
interest that ``the Department supplemented its conclusion about 
returning employees' motivations with evidence of their actual 
behavior. To rebut the argument--offered by several commenters and 
echoed here by petitioners--that returning employees are lower risk 
because they have successfully completed drug treatment programs, the 
Department emphasized data showing that `the violation rate for return-
to-duty and follow-up testing is two to four times higher than that of 
random testing.' '' Id. at 205. The Court stated ``[w]e can hardly 
fault the Department for inferring that the reason for higher failure 
rates is not that returning employees are more honest, but that they 
are more likely to use drugs. And given that employees who never use 
drugs are--to say the least--much less likely to cheat on drug tests 
than those who do, we think it quite reasonable for the Department to 
see a higher underlying rate of drug use as evidence of a higher risk 
of cheating.'' Id.
    The Court considered and rejected alternatives proposed by the 
petitioners, including maintaining the status quo of continuing to 
allow employers the

[[Page 37951]]

option of conducting direct observation collections on return-to-duty 
employees. The Court supported the Department's determination that 
employers, concerned about the effects on ``labor management 
agreements'' and fearing ``upsetting employees,'' rarely exercise this 
option. The Court referred to a statement in the amicus brief from the 
Association of American Railroads that direct observation tests 
``generate resentment and ill will towards management,'' as further 
supporting the Department's conclusion that the status quo was 
untenable. Id.
    The Court concluded ``the Department acted neither arbitrarily nor 
capriciously in concluding that the growth of an industry devoted to 
circumventing drug tests, coupled with returning employees' higher rate 
of drug use and heightened motivation to cheat, presented an elevated 
risk of cheating on return-to-duty and follow-up tests that justified 
the mandatory use of direct observation.'' Id.

Fourth Amendment Analysis

    The Court carefully considered whether the Department's final rule 
struck the appropriate Fourth Amendment balancing of the needs of 
transportation safety with the reasonableness of the search. The Court 
stated that the Department's ``interest in transportation safety is 
`compelling' to say the least.'' Citing Skinner, 489 U.S. at 628, 109 
S.Ct. 1402. BNSF at 206. Further, the Court recognized that ``[g]iven 
the proliferation of cheating devices, we have little difficulty 
concluding that direct observation furthers the government's interest 
in effective drug testing.'' Id. Since employees returning-to-duty can 
anticipate that they will be subject to more frequent testing, 
``[a]rmed with such foreknowledge, returning employees can easily 
obtain and conceal cheating devices, keeping them handy even for 
unannounced follow-up tests.'' Id. The Court concluded that the 
Department ``has a strong interest in conducting direct observation 
testing to ensure transportation safety.'' Id.
    The Court then turned to the second prong of the Fourth Amendment 
analysis--the reasonableness of the actual search. ``Individuals 
ordinarily have extremely strong interests in freedom from searches as 
intrusive as direct observation urine testing. In this case, however, 
those interests are diminished because the airline, railroad, and other 
transportation employees subject to direct observation perform safety-
sensitive duties in an industry that is `regulated pervasively to 
ensure safety.' '' Id. However, the Court noted that the Department's 
direct observation provisions were not structured to apply to all 
safety-sensitive employees. Only violators and suspected cheaters are 
affected. ``By choosing to violate the Department's perfectly 
legitimate--and hardly onerous--drug regulations, returning employees 
have placed themselves in a very different position from their 
coworkers.'' Id. at 207. Thus, the court stated, ``we have little 
trouble concluding that employees who have intentionally violated a 
valid drug regulation * * * [would] have less of a legitimate interest 
in resisting a search intended to prevent future violations of that 
regulation than do employees who never violated the rule.'' Id. The 
Court explained, ``we think that the employees' prior misconduct is 
particularly salient, especially compared to their choice to work in a 
pervasively regulated industry. It's one thing to ask individuals 
seeking to avoid intrusive testing to forgo a certain career entirely; 
it's a rather lesser thing to ask them to comply with regulations 
forbidding drug use.'' Id. at 208. The Court acknowledged that ``direct 
observation is extremely invasive, but that intrusion is mitigated by 
the fact that employees can avoid it altogether by simply complying 
with the drug regulations.'' Id.
    The Court also took into account that the provision making direct 
observation optional in return-to-duty and follow-up situations came 
into effect well before present threats to the integrity of urine 
testing became known. ``[T]hat was before the Whizzinator and its like. 
Given the proliferation of such cheating devices, here we have a very 
different record, one that fully supports the Department's finding that 
standard monitoring procedures are inadequate. We thus conclude that 
here * * * direct observation testing will `significantly improve 
testing accuracy.' '' Id.
    In finding that circumstances necessitated the Department's 
increased requirements for the scope and nature of direct observation 
collections, the Court stated, ``we recognize the intrusiveness of the 
partial disrobing requirement, but find it only somewhat more invasive 
than direct observation, which already requires employees to expose 
their genitals to some degree. Because of this, and because the 
Department has permissibly found the requirement necessary to detect 
certain widely-available prosthetic devices, we conclude that it 
represents a reasonable procedure for situations posing such a 
heightened risk of cheating as to justify direct observation in the 
first place.'' Id.
    ``[T]he Department has reasonably concluded that the proliferation 
of cheating devices makes direct observation necessary to render these 
drug tests--needed to protect the traveling public from lethal 
hazards--effective. Weighing these factors, we strike the balance in 
favor of permitting direct observation testing in these 
circumstances.'' Id. The court concluded, ``[g]iven the combination of 
the vital importance of transportation safety, the employees' 
participation in a pervasively regulated industry, their prior 
violations of the drug regulations, and the ease of obtaining cheating 
devices capable of defeating standard testing procedures, we find the 
challenged regulations facially valid under the Fourth Amendment.'' Id.

Collective Bargaining Agreements

    We are aware that some employers and labor organizations may have 
entered into collective bargaining agreements (CBAs) that prohibit or 
limit the use of direct observation collections in return-to-duty and 
follow-up testing situations. Employers and employees, of course, do 
not have the authority to agree to avoid compliance with the 
requirements of Federal law. When this final rule goes into effect, 
conducting all follow-up and return-to-duty testing using direct 
observation collections will be a requirement of Federal law. Employers 
must use direct observation collections for such tests that take place 
after the effective date of this rule, and any contrary provisions of 
CBAs in the present or in the future will not be effective.


    The Department wants to ensure that employers, employees, 
collection sites, collectors, Third-Party Administrators and other 
service agents know about and are fully prepared for mandatory direct 
observation for follow-up and return-to-duty testing. We view this to 
be important in light of the fact that there has been a good deal of 
conflicting information in the transportation and drug testing 
industries about the requirements and because of the complexities of 
the various petitions, court actions, and rule changes on the matter.

Regulatory Analyses and Notices

    This document simply reinstates, without change, following the 
dissolution of a court stay, a provision issued as part of a final rule 
on June 25, 2009. The regulatory analyses and notices set forth in that 
document (73 FR 35968-69) apply to today's rule.

[[Page 37952]]

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 this 24th day of July 2009, at Washington, DC.
Jim L. Swart,
Director, Office of Drug and Alcohol Policy Compliance.

49 CFR Subtitle A--Authority and Issuance

For reasons discussed in the preamble, the Department of Transportation 
is amending part 40 of Title 49 Code of Federal Regulations as follows:


1. The authority citation for 49 CFR Part 40 continues to read as 

    Authority: 40 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 
54101 et seq.

2. Section 40.67 is amended by revising paragraph (b) to read as 

Sec.  40.67  When and how is a directly observed collection conducted?

* * * * *
    (b) As an employer, you must 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. E9-18156 Filed 7-29-09; 8:45 am]