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###### Department of Transportation

###### Office of the Secretary 

          - 49 CFR Part 40 
          - [Docket OST-2007-26828] 
          - RIN 2105-AD64 

# 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:                           ( print page 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,                               ( print page 8528)                            2007 is adopted as a final rule without change.                     

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

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