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[Federal Register: February 25, 2010 (Volume 75, Number 37)]
[Rules and Regulations]               
[Page 8524-8526]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25fe10-22]                         

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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.

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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

[[Page 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, Sec.  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 Sec.  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 Sec.  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 return-to-
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 non-negative results.
    The Department of Transportation continues to strongly support the 
establishment of a national database. Currently, the Federal Motor 
Carrier Safety Administration (FMCSA) is

[[Page 8526]]

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-
to-duty 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 owner-operator 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 Sec.  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 owner-operators are not held out-of-compliance 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
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