8524 Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 

exceed the Simplified Acquisition 

Threshold; 

(c) Software and ownership rights. (1) 

All procurement and contract 

instruments must include a clause that 

provides that the comprehensive Tribal 

IV–D agency will have all ownership 

rights to Computerized Tribal IV–D 

System software or enhancements 

thereof and all associated 

documentation designed, developed or 

installed with FFP. Intergovernmental 

Service Agreements are not subject to 

this paragraph. 

(2) OCSE reserves a royalty-free, 

nonexclusive, and irrevocable license to 

reproduce, publish, or otherwise use 

and to authorize others to use for 

Federal Government purposes, such 

software, modifications and 

documentation. 

(3) FFP is not available for the costs 

of rental or purchase of proprietary 

application software developed 

specifically for a Computerized Tribal 

IV–D System. Commercial-off-the-shelf 

(COTS) software packages that are sold 

or leased to the general public at 

established catalog or market prices are 

not subject to the ownership and license 

provisions of this requirement. 

(d) Requirements for acquisitions 

under the threshold amount. A 

comprehensive Tribal IV–D agency is 

not required to submit procurement 

documents, contracts, and contract 

amendments for acquisitions under the 

Simplified Acquisition Threshold 

unless specifically requested to do so in 

writing by OCSE. 

§ 310.30 Under what circumstances would 

FFP be suspended or disallowed in the 

costs of Computerized Tribal IV–D 

Systems? 

(a) Suspension of APD approval. 

OCSE will suspend approval of the APD 

for a Computerized Tribal IV–D System 

approved under this part as of the date 

that the system ceases to comply 

substantially with the criteria, 

requirements, and other provisions of 

the APD. OCSE will notify a Tribal IV– 

D agency in writing in a notice of 

suspension, with such suspension 

effective as of the date on which there 

is no longer substantial compliance. 

(b) Suspension of FFP. If OCSE 

suspends approval of an APD in 

accordance with this part during the 

installation, operation, or enhancement 

of a Computerized Tribal IV–D System, 

FFP will not be available in any 

expenditure incurred under the APD 

after the date of the suspension until the 

date OCSE determines that the 

comprehensive Tribal IV–D agency has 

taken the actions specified in the notice 

of suspension described in paragraph (a) 

of this section. OCSE will notify the 

comprehensive Tribal IV–D agency in 

writing upon making such a 

determination. 

§ 310.35 Under what circumstances would 

emergency FFP be available for 

Computerized Tribal IV–D Systems? 

(a) Conditions that must be met for 

emergency FFP. OCSE will consider 

waiving the approval requirements for 

acquisitions in emergency situations, 

such as natural or man-made disasters, 

upon receipt of a written request from 

the comprehensive Tribal IV–D agency. 

In order for OCSE to consider waiving 

the approval requirements in § 310.25 of 

this part, the following conditions must 

be met: 

(1) The comprehensive Tribal IV–D 

agency must submit a written request to 

OCSE prior to the acquisition of any 

ADP equipment or services. The written 

request must be sent by registered mail 

and include: 

(i) A brief description of the ADP 

equipment and/or services to be 

acquired and an estimate of their costs; 

(ii) A brief description of the 

circumstances which resulted in the 

comprehensive Tribal IV–D agency’s 

need to proceed prior to obtaining 

approval from OCSE; and 

(iii) A description of the harm that 

will be caused if the comprehensive 

Tribal IV–D agency does not acquire 

immediately the ADP equipment and 

services. 

(2) Upon receipt of the information, 

OCSE will, within 14 working days of 

receipt, take one of the following 

actions: 

(i) Inform the comprehensive Tribal 

IV–D agency in writing that the request 

has been disapproved and the reason for 

disapproval; or 

(ii) Inform the comprehensive Tribal 

IV–D agency in writing that OCSE 

recognizes that an emergency exists and 

that within 90 calendar days from the 

date of the initial written request under 

paragraph (a)(1) of this section the 

comprehensive Tribal IV–D agency must 

submit a formal request for approval 

which includes the information 

specified at § 310.25 of this title in order 

for the ADP equipment or services 

acquisition to be considered for OCSE’s 

approval. 

(b) Effective date of emergency FFP. If 

OCSE approves the request submitted 

under paragraph (a)(2) of this section, 

FFP will be available from the date the 

comprehensive Tribal IV–D agency 

acquires the ADP equipment and 

services. 

Subpart D—Accountability and 

Monitoring Procedures for 

Computerized Tribal IV–D Systems 

§ 310.40 What requirements apply for 

accessing systems and records for 

monitoring Computerized Tribal IV–D 

Systems and Office Automation? 

In accordance with Part 95 of this 

title, a comprehensive Tribal IV–D 

agency must allow OCSE access to the 

system in all of its aspects, including 

installation, operation, and cost records 

of contractors and subcontractors, and 

of Service Agreements at such intervals 

as are deemed necessary by OCSE to 

determine whether the conditions for 

FFP approval are being met and to 

determine the efficiency, effectiveness, 

reasonableness of the system and its 

cost. 

[FR Doc. 2010–3572 Filed 2–24–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 40 

[Docket OST–2008–0184] 

RIN 2105–AD67 

Procedures for Transportation 

Workplace Drug and Alcohol Testing 

Programs 

AGENCY: Office of the Secretary, DOT. 

ACTION: Final rule; response to 

comments on Interim Final rule. 

SUMMARY: This final rule adopts as final, 

without change, a June 13, 2008, interim 

final rule (IFR) authorizing employers in 

the Department’s drug and alcohol 

testing program 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. The rule also responds to 

comments on the IFR. 

DATES: This rule is effective February 

25, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Patrice M. Kelly, Deputy Director, 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 

patrice.kelly@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 

Background and Purpose 

The Department’s drug and alcohol 

testing procedures regulation, 49 CFR 

Part 40, provides confidentiality of 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 8525 

employee test results as a fundamental 

part of the balance between employee 

privacy and the public safety need to 

test for illegal drugs. As we discussed in 

the preamble to this IFR (73 FR 33735, 

June 13, 2008), the Department’s 

regulation dates back to 1988 and has 

always limited the release of an 

employee’s test results in the interest of 

privacy. 

Generally, § 40.321 prohibits release 

of individual drug or alcohol test results 

to third parties without the employee’s 

specific written consent. Section 40.331 

creates certain exceptions to this general 

requirement. Of particular importance is 

§ 40.331(e), which provides that parties 

‘‘must provide drug or alcohol test 

records concerning the employee’’ to a 

‘‘state or local safety agency with 

regulatory authority over you or the 

employee.’’ 

We recognized that several States 

have undertaken legislative action to 

require employers and certain service 

agents to provide individual test results 

to State agencies (e.g., the State CDL 

issuing and licensing authority) 

whenever CDL holders have tested 

positive for drugs, had a breath alcohol 

concentration (BAC) of 0.04 or greater, 

or refused a required drug or alcohol 

test result. Absent regulatory action by 

the Department to modify its employee 

privacy procedures, employers and 

third party administrators (TPAs) for 

owner-operator CMV drivers with CDLs 

would have been in violation of 49 CFR 

40.321, if they released this information 

to State agencies under such State 

statutes. This is because doing so for all 

CDL drivers would not have fallen 

within the exception to the general 

privacy requirement created by 

§ 40.331(e). 

On June 13, 2008 [73 FR 33735], the 

Department issued an IFR to mitigate 

this conflict between the DOT rules and 

what we view as beneficial State laws 

by allowing employers and the TPAs for 

owner-operator CMV drivers with CDLs 

to comply with State laws of this type. 

The IFR permitted these parties to 

provide the information called for by 

State laws without violating Part 40. As 

a result of this IFR, employers and the 

TPAs for owner-operators will not be 

held in violation of 49 CFR 40.321 for 

complying with State law requirements 

to report violations that enable State 

CDL issuing and licensing authorities to 

act upon the DOT result. The IFR has 

now been in place since June 2008 

without causing any reported problems. 

At the time we issued the IFR, we noted 

that it did not create any new reporting 

requirements or obligations. It merely 

allowed employers and the TPAs for 

owner-operator CMV drivers with CDLs 

to comply with some specific reporting 

requirements under State laws without 

violating part 40 by such reporting. The 

IFR created no new Federal reporting 

requirements. It merely eliminated a 

conflict that would have precluded 

parties from complying with certain 

State laws. 

Discussion of Comments to the Docket 

There were eleven comments to the 

docket. Six of the comments supported 

the IFR, four of the comments opposed 

the IFR, and one comment was neutral. 

The neutral comment stated that the 

commenter did not know where, or to 

whom, within the State to report the 

results. This IFR is not intended to 

identify where reports are to be filed. 

That is a matter that program 

participants should take up with the 

State agencies in question. The IFR was 

only intended to make it clear that an 

employer or TPA for an owner-operator 

is not violating Part 40 when complying 

with its duty to report DOT drug and 

alcohol testing violations to State CDL 

issuing and licensing authorities. 

Several commenters stated that they 

supported the objective of the IFR—‘‘to 

ensure drug and/or alcohol abusing 

drivers are kept from behind the wheel 

of a large truck until they are 

successfully rehabilitated.’’ Other 

commenters urged that DOT expand the 

IFR to cover some or all other service 

agents, including Medical Review 

Officers (MROs), Substance Abuse 

Professionals (SAPs), Breath Alcohol 

Technicians (BATs), etc. Some of these 

commenters wanted MROs to be 

responsible for reporting both drug and 

alcohol results to States. 

The Department believes that, leaving 

aside TPAs serving owner-operators, it 

is not advisable, as a matter of policy, 

to task service agents with reporting 

drug and alcohol testing violations to 

State agencies. MROs often perform 

services for employers in multiple 

States and without having any ties or 

regular business dealings in those 

States. Consequently, it is questionable 

whether the State reporting laws could 

effectually apply to the out-of-state 

MROs. MROs would not have access to 

alcohol test results and many refusals, 

thus they would not be able to report 

such results, even if the States required 

them to do so. 

Other commenters thought that 

service agents would be more 

responsible about reporting violations 

because the employers were likely to 

terminate the employee who violated 

Part 40 and would not want to pursue 

filing the violation with the State. We 

do not think it is reasonable to expand 

the IFR to include service agents who 

have no meaningful business contacts 

with a State and may have no 

knowledge of the test results or 

violations of a particular driver. Instead, 

we believe that it was prudent for us to 

narrowly tailor the IFR to encourage the 

existing and future crafting of State 

legislation that is directed at employers 

communicating with the State in which 

they do business and which is most 

likely to be the State that issued the 

driver’s CDL. Employers have access to 

all the information needed by States; 

employers are directly regulated by the 

State agencies in question; it is 

reasonable to task employers with this 

reporting responsibility. 

Some commenters who supported the 

IFR wanted us to change the language in 

the IFR from ‘‘you are authorized to 

comply with State laws’’ to instead read 

as ‘‘you are authorized to comply with 

‘‘State laws and State regulations.’’ The 

commenters felt that the reference to 

‘‘laws’’ would not cover ‘‘regulations.’’ 

We disagree with that distinction. 

However, to address the commenters 

concerns on this point, we are stating in 

this preamble that when we refer to 

‘‘State law’’ in this provision, we are 

including State regulations that have the 

force and effect of State law. 

One commenter supported the IFR, 

but felt that it should have gone further 

by requiring that States be notified that 

these drivers are no longer qualified to 

drive and that their licenses must be 

suspended until they can show proof of 

a SAP evaluation and a negative returnto-duty test. This commenter would also 

like to see more rigorous enforcement by 

the DOT agencies against violators. 

While we appreciate the safety intent 

underlying this commenter’s 

suggestions, and we support vigorous 

enforcement of the rules, the purpose of 

the IFR was more limited: it intended 

only to remove a legal conflict that 

could have interfered with the 

implementation of beneficial State laws. 

Several of the commenters who 

supported the IFR pointed out that the 

objective of the IFR is aimed in the right 

direction, but that true consistency in 

tracking, reporting, and acting upon 

CDL driver Part 40 drug and alcohol 

violations can only come through a 

national clearing house database. These 

commenters referred to a ‘‘piecemeal, 

non-uniform, voluntary State licensing 

agency-based approach’’ that will 

continue to take place until there is a 

Federal database to track driver nonnegative results. 

The Department of Transportation 

continues to strongly support the 

establishment of a national database. 

Currently, the Federal Motor Carrier 

Safety Administration (FMCSA) is 


jlentini on DSKJ8SOYB1PROD with RULES
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