8526 Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 

working toward being able to create 

such a database. However, it has not yet 

been established. Meanwhile, we 

believe it is useful to remove an obstacle 

to the implementation of State laws that 

do exist now. We simply recognize that 

the States are also stepping up to play 

a role in suspending CDLs based on Part 

40 results and we do not want to 

discourage such actions where 

appropriate. We do not want Part 40 to 

pose an impediment to employers in 

their efforts to comply with their own 

respective State’s legal requirements. 

Some of the commenters who favored 

the IFR, as well as some of those who 

opposed it, suggested that we require 

the States to tailor their laws to include 

certain provisions, protections and 

limitations. Some of the commenters 

wanted us to order the States to have 

certain service agents report the results. 

Others wanted us to require that the 

individual driver’s record be cleared of 

the violation after 2 years (which is not 

consistent with FMCSA requirements of 

3 years tracking and would not provide 

a window into follow-up testing). 

Others asked that we order the States to 

notify drivers when the information is 

reported to the State and to provide the 

drivers with privacy rights, due process, 

and the right to correct their records in 

the State databases. Some commenters 

wanted assurance that the States would 

purge records regarding violations once 

the CDL holder completed the return-toduty process under Part 40. Many of the 

commenters felt that, if DOT set 

standards for the States to meet within 

the scope of the respective legislation, 

this would address the concerns about 

inconsistent State laws. 

The purpose of the IFR was simply to 

avoid a conflict between State and 

Federal law with respect to State laws 

that direct employers and TPAs for 

owner-operators to report violation 

information to State agencies. Going 

beyond this limited purpose and 

imposing additional requirements on 

States, even where such additional 

requirements would arguably be good 

policy, would exceed the scope of the 

IFR and require an additional notice of 

proposed rulemaking and comment 

period. We do not believe that taking 

such additional rulemaking steps is 

justified at this time. 

Some of those who opposed the IFR 

appeared to suggest that, if we did not 

finalize this IFR, they would not need 

to comply with their State reporting 

laws. On a related, but slightly different 

note, some commenters assumed that 

this IFR was requiring compliance with 

State laws—and that the DOT Agencies 

would find employers and service 

agents out-of-compliance with Part 40 

and the Federal Agency regulations, if 

these parties failed to properly comply 

with the State law requirements. These 

are not correct assumptions. 

This IFR is intended to permit but not 

require employers and TPAs for owneroperator CMV drivers with CDLs to 

comply with State laws without running 

afoul of Part 40. We have not created 

compliance responsibilities under State 

law. That is within the jurisdiction of 

the States. It is up to the States to ensure 

compliance with their laws. Since we 

are not creating responsibilities, we also 

disagree with the commenter who 

believed that this IFR would impose 

significant costs resulting from new 

compliance requirements to conform to 

State laws. This IFR does not impose 

duties. It merely relieves a potential 

enforcement problem for certain 

employers and TPAs for owner-operator 

CMV drivers with CDLs. 

Finally, there were some comments 

outside the scope of this rulemaking. 

One commenter suggested that the DOT 

rely on an industry association to point 

out who may be violating Part 40. 

Others referenced new Federal 

requirements that should be imposed 

upon the States, including a 

recommendation that Part 40 require 

notification to States that individual 

CDL holders have been identified as no 

longer qualified to drive after a Part 40 

violation. Some commenters suggested 

higher fines levied by FMCSA for 

violations of § 40.25 and other 

provisions of Part 40. Others wanted 

this IFR to bring forward the FMCSA 

centralized database. All of these 

comments, and any others outside the 

scope of this rulemaking, have not 

resulted in changes to the IFR. 

There were no comments which 

provided substantive information to 

warrant changing the procedures in the 

IFR, the Department will adopt the IFR 

as final with no changes to the 

procedures. 

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, 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 represents a minor 

modification to our regulation to ensure 

that employers and TPAs for owneroperators are not held out-ofcompliance with our regulation for 

providing information required by the 

State. The rule does not increase costs 

on regulated parties. In fact, it will 

reduce the chance of civil penalty action 

and increase safety for employers and 

TPAs for owner-operators. 

Consequently, the Department certifies 

under the Regulatory Flexibility Act that 

this final rule does not have a 

significant economic impact on a 

substantial number of small entities. To 

the extent that there is any such impact, 

it is expected to be negligible. 

Issued at Washington DC, this 10th day of 

February 2010. 

Ray LaHood, 

Secretary of Transportation. 

PART 40—PROCEDURES FOR 

TRANSPORTATION WORKPLACE 

DRUG AND ALCOHOL TESTING 

PROGRAMS 

Accordingly, the Interim Final Rule 

amending 49 CFR Part 40 which was 

published at 73 FR 33735 on June 13, 

2008 is adopted as a final rule without 

change. 

[FR Doc. 2010–3729 Filed 2–24–10; 8:45 am] 

BILLING CODE 4910–9X–P 

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. 

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 

bohdan.baczara@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 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 

■ Accordingly, the Interim Final Rule 

amending 49 CFR part 40 which was 

published at 72 FR 1298 on January 11, 


jlentini on DSKJ8SOYB1PROD with RULES
8528 Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 

2007 is adopted as a final rule without 

change. 

[FR Doc. 2010–3730 Filed 2–24–10; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 40 

[Docket DOT–OST–2008–0088] 

RIN OST 2105–AD84 

Procedures for Transportation 

Workplace Drug and Alcohol Testing 

Programs 

AGENCY: Office of the Secretary, DOT. 

ACTION: Final rule. 

SUMMARY: The Department of 

Transportation is making technical 

amendments to its drug and alcohol 

testing procedures to authorize 

employers to begin using the updated 

U.S. DOT Alcohol Testing Form (ATF) 

and the Management Information 

System (MIS) Data Collection Form. The 

Department updated the information 

collection notice on the forms to 

conform to requirements under the 

Paperwork Reduction Act. 

DATES: The rule is effective February 25, 

2010. 

FOR FURTHER INFORMATION CONTACT: For 

program issues, Bohdan Baczara, 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 

bohdan.baczara@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 

Background and Purpose 

In compliance with the Paperwork 

Reduction Act of 1995, Public Law 104– 

13, (44 U.S.C. 3501 et seq.) the 

Department submitted a request to the 

Office of Management and Budget 

(OMB) for the extension of the currently 

approved Procedures for the 

Transportation Drug and Alcohol 

Testing Program. OMB approved the 

submission which included a revised 

U.S. DOT Alcohol Testing Form (ATF) 

and the Management Information 

System (MIS) Data Collection Form. 

As part of the approval process, the 

Department asked for public comment 

on ways to enhance the quality, utility, 

and clarity of the information being 

collected on the Alcohol Testing Form 

(ATF) and Management Information 

System (MIS) form Federal Register [73 

FR 14300] and [73 FR 33140]. There was 

one response, which contained several 

comments. As a result of the comments 

and other input from OMB and DOT 

agencies, both forms were updated. 

Specifically, the ATF and MIS were 

updated to include an updated 

Paperwork Reduction Act Burden 

Statement, the current address of the 

Department, new DOT form numbers. 

We provided additional instructions on 

the reverse side of Page 3 of the ATF 

that tamper evident tape must not 

obscure the printed information. Also, 

the legends in the test result boxes on 

the front of the ATF were adjusted and 

printed in a smaller font so they don’t 

obscure test results printed directly on 

the ATF. Other than these changes, the 

content and format of ATF from the 

previous versions remain the same. 

The Department recognizes that 

employers and alcohol testing 

technicians may currently have a large 

supply of old ATFs. To avoid 

unnecessarily wasting these forms, the 

Department will permit the use of the 

old ATF until supplies are exhausted, 

but the old ATF must not be used 

beyond August 1, 2010. Employers are 

authorized to begin using the updated 

ATF immediately. 

In 2006, the Department published a 

Federal Register notice [71 FR 49383] to 

update the MIS form and its 

accompanying instructions to change 

the name the Research and Special 

Programs Administration (RSPA) to the 

Pipeline and Hazardous Materials Safety 

Administration (PHMSA). This change 

reflects a February 2005 reorganization 

and renaming of that DOT agency. Since 

the change did not appear in the 

Federal Register notice, we are 

publishing the form with its 

accompanying instructions sheet again. 

The MIS form is a single-page form, 

and the information reported on the MIS 

data form can be submitted 

electronically via the Internet at http:// 

damis.dot.gov. As a result, it is less 

likely any employer would have a large 

number of MIS forms. Thus, employers 

required to report MIS data must begin 

using the revised MIS form in 2011 to 

report calendar year 2010 MIS data. 

Both revised forms can be found on 

our Web site at http://www.dot.gov/ost/ 

dapc/documents.html. 

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 45101 et seq.) and the 

Department of Transportation Act (49 

U.S.C. 322). 

This rule is a non-significant rule both 

for purposes of Executive Order 12886 

and the Department of Transportation’s 

Regulatory Policies and Procedures. The 

Department certifies that it will not have 

a significant economic effect on a 

substantial number of small entities, for 

purposes of the Regulatory Flexibility 

Act. The Department makes these 

statements on the basis that, as a series 

of technical amendments that correct or 

clarify existing regulatory provisions, 

this rule will not impose any significant 

costs on anyone. The costs of the 

underlying Part 40 final rule were 

analyzed in connection with its 

issuance in December 2000. Therefore, 

it has not been necessary for the 

Department to conduct a regulatory 

evaluation or Regulatory Flexibility 

Analysis for this final rule. The forms 

comply with the Paperwork Reduction 

Act. It has no Federalism impacts that 

would warrant a Federalism assessment. 

The amendments made in this rule are 

technical and corrective, to an existing 

rule that went through an extensive 

public notice and comment process. 

The amendments are purely technical, 

do not make significant changes to Part 

40, and we would not anticipate the 

receipt of meaningful comments on 

them. Consequently, the Department has 

determined, for purposes of section 553 

of the Administrative Procedure Act, 

that prior notice and comment are 

unnecessary, impracticable, or contrary 

to the public interest. For the same 

reasons, and because it will be very 

useful to program participants to be 

authorized to use the revised forms 

immediately, we have determined, 

under section 553, that there is good 

cause to make the rule effective 

immediately upon publication. 

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 9th day of February 2010, at 

Washington, DC. 

Ray LaHood, 

Secretary of Transportation. 

■ For reasons discussed in the 

preamble, the Department of 

Transportation is amending 49 CFR part 

40, Code of Federal Regulations, as 

follows: 

PART 40—PROCEDURES FOR 

TRANSPORTATION WORKPLACE 

DRUG AND ALCOHOL TESTING 

PROGRAMS 

■ 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. 


jlentini on DSKJ8SOYB1PROD with RULES