Proposed Rule2024-28561
Procedures for Transportation Workplace Drug and Alcohol Testing Programs
Primary source
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Published
December 9, 2024
Issuing agencies
Transportation Department
Abstract
The U.S. Department of Transportation (DOT) proposes to revise its drug testing procedures rule, which became effective on June 1, 2023, to provide interim provisions to require the conduct of directly observed urine tests in situations where oral fluid tests are currently required, but oral fluid testing is not yet available.
Full Text
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<title>Federal Register, Volume 89 Issue 236 (Monday, December 9, 2024)</title>
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[Federal Register Volume 89, Number 236 (Monday, December 9, 2024)]
[Proposed Rules]
[Pages 97579-97581]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28561]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[Docket DOT-OST-2021-0093]
RIN 2105-AF28
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs
AGENCY: Office of the Secretary, Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Transportation (DOT) proposes to revise
its drug testing procedures rule, which became effective on June 1,
2023, to provide interim provisions to require the conduct of directly
observed urine tests in situations where oral fluid tests are currently
required, but oral fluid testing is not yet available.
DATES: Comments must be received on or before January 8, 2025.
ADDRESSES: Submit your comments, identified by Docket ID No. DOT-OST-
2021-0093, at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. DOT may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. For
additional submission methods and general guidance on making effective
comments, please visit <a href="https://www.transportation.gov/regulations/rulemaking-process">https://www.transportation.gov/regulations/rulemaking-process</a>.
FOR FURTHER INFORMATION CONTACT: Bohdan Baczara, Deputy Director,
Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey
Avenue SE, Washington, DC 20590; telephone number 202-366-3784;
<a href="/cdn-cgi/l/email-protection#f6b9b2b7a6b58193949b979f9ab6929982d8919980"><span class="__cf_email__" data-cfemail="b9f6fdf8e9facedcdbd4d8d0d5f9ddd6cd97ded6cf">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Why is DOT proposing this rule?
DOT proposes to revise its drug testing regulation, Procedures for
Transportation Workplace Drug and Alcohol Testing Programs (49 CFR part
40), to address unforeseen circumstances rendering it impossible to
comply with requirements in the final rule.
II. General Information
DOT published a final rule amending the procedures for its drug
testing program (49 CFR part 40) on May 2, 2023 (88 FR 27596) (May 2023
Final Rule). The May 2023 Final Rule went into effect on June 1, 2023.
The May 2023 Final Rule authorized oral fluid drug testing as an
additional methodology for employers to use as a means of achieving the
safety goals of the program. In the May 2023 Final Rule, we required an
oral fluid test to be conducted in certain circumstances where an
observed collection is required. However, because oral fluid testing is
not yet available, DOT proposes to amend DOT's regulations to require
the conduct of directly observed urine collections in those
circumstances for an interim period. This rulemaking would correct the
inadvertent factual impossibility created by the May 2023 Final Rule.
Section 40.67 When and how is a directly observed urine collection
conducted?
DOT regulations at Sec. 40.67 require that a collection be
directly observed in certain circumstances, e.g., if the original
sample was invalid without adequate medical explanation or the test is
for a return to duty. In the May 2023 Final Rule, DOT codified a
procedure requiring the directly observed collection to be an oral
fluid test rather than a urine test in certain situations. However,
oral fluid testing cannot be implemented until the Department of Health
and Human Services (HHS) certifies at least two laboratories, one to
serve as a primary laboratory, and a second to serve as a split
specimen laboratory. Because no oral fluid laboratories have been
certified, it is not yet possible to comply with this provision.
In the interim, it is necessary to ensure that directly observed
collections can still be conducted when required. DOT proposes to
require directly observed urine collections in the situations specified
in Sec. 40.67(g)(3) if an oral fluid collection is not yet available.
We emphasize that the responsibility of ensuring the collection takes
place has always been a requirement the employer must satisfy. If a
directly observed urine collection is required, the burden--as is
currently the case--remains on the employer to provide an observer as
specified in Sec. 40.67(g) if the collection site cannot do so.
We intend this provision to require directly observed urine tests
in situations where an oral fluid collection is required, but is not
yet available, to be a temporary, short-term solution because there are
currently no certified oral fluid laboratories. This provision will
sunset one year after HHS publishes a Federal Register notice that it
certified the second oral fluid drug testing laboratory. So that all
are aware of the date when this provision will sunset, we will publish
a Federal Register document specifying the date the second oral fluid
laboratory is certified by HHS. If, during the interim period, a
collection site is able to conduct an oral fluid collection (HHS has
certified at least two oral fluid drug testing laboratories, and both a
qualified oral fluid collector and a conforming oral fluid collection
device are available at the collection site), an oral fluid collection
would be required to be conducted.
In the May 2023 Final Rule, we added Sec. 40.67(g)(3) to address
situations where an observer who meets the regulatory requirements
cannot be found at the collection site, but mistakenly used the term
``collector'' instead of ``observer'' in the regulatory text of that
section. In this rule, we propose to correct the error.
III. Regulatory Notices and Analyses
Executive Orders 12866, 13563, and 14094
This proposed rule is a non-significant rule for purposes of
Executive Order (E.O.) 12886, as supplemented by E.O. 13563 and amended
by E.O. 14094, and will not impose any significant costs or have any
significant impacts. Given the uncertainty of testing costs and lack of
data on other aspects of testing, DOT did not estimate cost savings or
other benefits for the May 2023 Final Rule that permitted oral fluid
testing as an alternative to urine testing in most scenarios. In the
regulatory analyses for the May 2023 Final Rule, DOT stated that ``Oral
fluid testing is optional in all but very rare cases . . .'' However,
and because oral fluid testing is not yet
[[Page 97580]]
available, this proposed rule requires that a directly observed urine
collection be conducted in those ``very rare cases'' where an oral
fluid test is required but is not available. As an amendment to
establish a temporary requirement to conduct directly observed urine
collections in situations where oral fluid collections are required but
oral fluid testing is not yet available, which was the requirement in
existence before issuance of the May 2023 Final Rule, this proposed
rule will not affect a significant number of drug tests, and as such,
will not impose any significant costs or have any significant impacts
on the DOT testing program.
Regulatory Flexibility Act and Small Business Regulatory Enforcement
Fairness Act (SBREFA)
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires Federal agencies to consider the effects of their regulatory
actions on small businesses and other small entities and minimize any
significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with a population of less than 50,000.
For this rulemaking, potentially affected small entities include drug
testing companies (U.S. Small Business Administration (SBA) North
American Industry Classification System (NAICS) Sector 54
(Professional, Scientific and Technical Services), Code 541380 (Testing
Laboratories and Services)) as well as DOT-regulated entities (SBA
NAICS Sectors 48-49 (Transportation and Warehousing)).
The Department does not expect that the proposed rule would have a
significant economic impact on a substantial number of small entities.
The proposed rule, if adopted, would establish a temporary requirement
to conduct directly observed urine collections in situations where oral
fluid collections are required but oral fluid testing is not yet
available. Urine testing was the requirement in existence before
issuance of the May 2023 Final Rule, and regulated entities are
therefore familiar with the procedure for directly observed urine
tests. Because oral fluid testing is not yet available for use in DOT's
drug testing programs, regulated entities also likely still have the
collection devices and other equipment necessary to conduct urine
testing. In addition, the temporary procedures proposed in this
rulemaking would be used only in the specific circumstances in Sec.
40.67(g) where urine testing is currently required and would thus not
affect a significant number of drug tests. As a result, the temporary
amendments would not, if adopted, impose significant costs. For these
reasons, I certify that the proposed rule would not have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act. DOT requests comment on its
certification and the expected economic impacts of the proposed rule.
Unfunded Mandates
The Secretary has examined the impact of this proposed rule under
the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4). This
proposed rule does not trigger the requirement for a written statement
under sec. 202(a) of the UMRA because this rulemaking does not impose a
mandate that results in an expenditure of $200 million or more by
either State, local, and Tribal governments in the aggregate or by the
private sector in any one year.
Environmental Impact
The DOT has analyzed the environmental impacts of this action
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321 et seq.) and has determined that it is categorically
excluded pursuant to DOT Order 5610.1C, ``Procedures for Considering
Environmental Impacts'' (44 FR 56420, October 1, 1979). Categorical
exclusions are actions identified in an agency's NEPA implementing
procedures that do not normally have a significant impact on the
environment and therefore do not require either an environmental
assessment (EA) or environmental impact statement (EIS). This proposed
rule would amend the transportation industry drug testing program
procedures regulation to establish a temporary requirement to conduct
directly observed urine collections in situations where oral fluid
collections are required but oral fluid testing is not yet available.
This action is covered by the categorical exclusion listed at 23 CFR
771.118(c)(4), ``[p]lanning and administrative activities that do not
involve or lead directly to construction, such as: . . . promulgation
of rules, regulations, directives . . .'' The Department does not
anticipate any environmental impacts, and there are no extraordinary
circumstances present in connection with this rulemaking.
Executive Order 13132: Federalism
The Secretary has analyzed the proposed rule in accordance with
Executive Order 13132: Federalism. Executive Order 13132 requires
Federal agencies to carefully examine actions to determine if they
contain policies that have federalism implications or that preempt
State law. As defined in the order, ``policies that have federalism
implications'' refer to regulations, legislative comments or proposed
legislation, and other policy statements or actions that have
substantial direct effects on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government.
Most of the regulated parties under the Department's drug testing
program are private entities. Some regulated entities are public
entities (e.g., transit authorities and public works departments);
however, the Secretary has determined that the proposed rule, which
would provide temporary procedures to require the conduct of directly
observed urine testing where oral fluid testing is not available, does
not contain policies that have federalism implications.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 (65 FR 67249, November 6, 2000) requires
Federal agencies to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' ``Policies that
have tribal implications'' as defined in the Executive order, include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.'' This proposed rule
does not have Tribal implications. The proposed rule will also not have
substantial direct effects on Tribal governments, on the relationship
between the Federal Government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian Tribes, as specified in Executive Order 13175.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA)
requires that DOT consider the impact of paperwork and other
information collection burdens imposed on the public. This proposed
rule would not require any new collection of information under the PRA.
Notwithstanding any other provision of
[[Page 97581]]
law, no person shall be subject to any penalty for failing to comply
with a collection of information subject to the PRA that does not
display a currently valid Office of Management and Budget (OMB) control
number.
Privacy Act
Anyone is able to search the electronic form of all comments
received in any of our dockets by the name of the individual submitting
the comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). For information on DOT's
compliance with the Privacy Act, please visit <a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>.
Rule Summary
As required by 5 U.S.C. 553(b)(4), a summary of this proposed rule
can be found at regulations.gov, Docket DOT-OST-2021-0093, in the
SUMMARY section of this document.
Pay-As-You-Go Act of 2023
In accordance with Compliance with Pay-As-You-Go Act of 2023
(Fiscal Responsibility Act of 2023, Pub. L. 118-5, div. B, title III)
and OMB Memorandum (M-23-21) dated September 1, 2023, the Department
has determined that this proposed rule is not subject to the Pay-As-
You-Go Act of 2023 because it will not increase direct spending beyond
specified thresholds.
List of Subjects in 49 CFR Part 40
Administrative practice and procedure, Alcohol abuse, Alcohol
testing, Drug abuse, Drug testing, Laboratories, Reporting and
recordkeeping requirements, Safety, Transportation.
For the reasons stated in the preamble, DOT proposes to amend 49
CFR part 40 as follows:
PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL
TESTING PROGRAMS
0
1. The authority for 49 CFR part 40 continues to read as follows:
Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and
54101 et seq.
0
2. In Sec. 40.67:
0
a. In paragraph (g)(3) introductory text, remove the word ``collector''
and add in its place ``observer''; and
0
b. Add paragraph (g)(4).
The addition reads as follows:
Sec. 40.67 When and how is a directly observed urine collection
conducted?
* * * * *
(g) * * *
(4) Notwithstanding paragraphs (g)(3)(i) and (ii) of this section,
until otherwise specified (one year after HHS publishes a Federal
Register notification of the second certified oral fluid drug testing
laboratory), you must conduct an oral fluid collection if possible
(i.e., HHS has certified at least two oral fluid drug testing
laboratories, and both a qualified oral fluid collector and a
conforming oral fluid collection device are available at the collection
site). Otherwise, you must conduct a directly observed urine collection
as required in this section.
* * * * *
Signed pursuant to authority delegated at 49 CFR 1.27(c) in
Washington, DC.
Subash Iyer,
Acting General Counsel.
[FR Doc. 2024-28561 Filed 12-6-24; 8:45 am]
BILLING CODE 4910-9X-P
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