[Federal Register Volume 73, Number 160 (Monday, August 18, 2008)]
[Notices]
[Pages 48276-48277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19037]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Petition for Waiver of Compliance

    In accordance with Title 49 Code of Federal Regulations (CFR) Sec.  
211.41, and 49 U.S.C. 20103, this notice is hereby given that the 
Federal Railroad Administration (FRA) has received a request for a 
waiver of compliance from certain requirements of its safety 
regulations. The individual petition is described below, including the 
parties seeking relief, the regulatory provisions involved, the nature 
of the relief being sought, and the petitioners' argument in favor of 
relief.

Association of American Railroads and The American Short Line and 
Regional Railroad Association

[FRA Docket No. FRA-2008-0092]

    On August 6, 2008, the Association of American Railroads (AAR) and 
The American Short Line and Regional Railroad Association (ASLRRA) 
jointly

[[Page 48277]]

filed a waiver request seeking to delay the August 25, 2008 
implementation date of amendments to Title 49, CFR, Sec.  40.67, which 
was issued by the Department of Transportation (DOT) on June 25, 2008 
(73 FR 35961). Part 40 is incorporated by reference in Sec.  219.701 of 
Title 49, CFR, Part 219, Control of Drug and Alcohol Use in Railroad 
Operations. The amendments to Sec.  40.67 apply to drug tests where a 
direct observation of the urine collection is required (e.g., the 
employee presented a cold specimen at the collection site; had an 
invalid test result without a legitimate medical reason; had a positive 
or adulterated test result which had to be cancelled because the 
required test of the employee's split specimen could not be performed; 
or had a prior positive or refusal to test and was subject to return-
to-duty and follow-up testing).
    As amended, Sec.  40.67 will require an employee to raise his/her 
shirt and lower his/her pants and undergarments to show an observer 
that he or she does not have a prosthetic device which could be used to 
affect the validity of the test; the direct observer must be of the 
same gender as the employee because of privacy concerns. In their 
petition, the AAR and ASLRRA state that the railroad industry is 
comprised mainly of male employees, while the majority of their current 
contract collectors are female, and that they need additional time to 
arrange for more male contract collectors and to complete training on 
the new direct observation procedures.
    For the reasons stated above, the petitioners ask FRA to waive 
until November 1, 2008, Sec.  219.701's incorporation by reference of 
Part 40 to the extent that it incorporates Sec.  40.67's new 
requirements for directly observed collections. Although the specific 
relief requested is a waiver of Part 219's incorporation of the August 
25, 2008 effective date of Sec.  40.67 as applied to return-to-duty and 
follow-up tests, the petitioners elsewhere state that their purpose is 
to seek ``a delay in the effective date until November 1, 2008, for 
amendments to 49 CFR 40.67 issued by the Department of Transportation 
on June 25, 2008.'' FRA therefore infers that petitioners are also 
seeking to defer the effective date of Part 219's incorporation of 
Sec.  40.67 as applied to mandatory direct observations triggered by 
employee behavior at the collection site. The petitioner also requests 
that DOT and the FRA reassess whether the new direct observation 
requirements are necessary, by monitoring observed drug tests over the 
next two years.
    The petitioners have sent a very similar petition to the Office of 
the Secretary of Transportation (OST). Both petitions focus on portions 
of the direct observation provisions of 49 CFR Part 40, an OST 
regulation applicable to all DOT agencies having drug testing programs, 
making parallel arguments concerning these provisions. FRA will fully 
coordinate its response to the petition sent to FRA with OST's response 
to the petitions sent to OST, and FRA's response will be consistent 
with that of OST with respect to the issues involved.
    Comments should reference Docket No. FRA 2008-0092, and may be 
submitted by any of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> Mail: Docket Management Facility, U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    <bullet> Hand Delivery or Courier: Docket Management Facility, U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. 
ET, Monday through Friday, except Federal holidays.
    <bullet> Fax: (202) 493-2251.
    All documents in the public docket, including the AAR/ASLRRA joint 
waiver request and all comments received, will be posted without change 
to http://www.regulations.gov, including any personal information 
provided. Because of the necessity for expedited processing of this 
petition, FRA does not anticipate scheduling a public hearing in 
connection with this request for a waiver of certain regulatory 
provisions. Communications received by Aug. 21, 2008 will be considered 
by FRA before final action is taken. Comments received after that date 
will be considered as far as practicable.
    For access to the docket, go to http://www.regulations.gov anytime, 
or to the Docket Management Facility, U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays. Follow the online 
instructions for accessing the dockets, where you may also review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78).

    Issued in Washington, DC on August 12, 2008.
Michael J. Logue,
Deputy Associate Administrator for Safety Compliance and Program 
Implementation.
[FR Doc. E8-19037 Filed 8-15-08; 8:45 am]
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