[Federal Register: July 30, 2009 (Volume 74, Number 145)]
[Rules and Regulations]
[Page 37949-37952]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jy09-12]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[Docket OST-2003-15245]
RIN 2105-AD89
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: This amendment reinstates the requirement for direct
observation collections for all return-to-duty and follow-up tests.
This provision was stayed by the United States Court of Appeals for the
District of Columbia Circuit effective November 1, 2008, but that stay
was lifted on July 1, 2009. This amendment, therefore, restores
language to the version that became a final rule on June 25, 2008.
DATES: Effective Date: August 31, 2009.
FOR FURTHER INFORMATION CONTACT: Jim L. Swart, Director, 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 jim.swart@dot.gov; or Robert
C. Ashby, Deputy Assistant General Counsel for Regulation and
Enforcement, U.S. Department of Transportation, same address, (202)
366-9310 (voice), (202) 366-9313 (fax), or bob.ashby@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
The Department issued a final rule on June 25, 2008 (73 FR 35961)
that, among other changes, modified 49 CFR 40.67(b) and added a new
paragraph (i) concerning the use of direct observation collections, a
very significant tool the Department employs to combat attempts by
employees to cheat on their drug tests. The amendment to 49 CFR
40.67(b) required direct observation collections for all return-to-duty
and follow-up tests. Section 40.67(i) required that direct observations
be conducted so as to allow the observer to check the individual for
prosthetic or other cheating devices.
Several petitioners asked the Department to delay the effective
date of these two provisions, seek further comment on them, and
reconsider them. In response, the Department issued a notice delaying
the effective date of 49 CFR 40.67(b)--the provision for making direct
observation collections mandatory for all return-to-duty and
[[Page 37950]]
follow-up tests--until November 1, 2008 (73 FR 50222; August 26, 2008).
We opened a comment period on 49 CFR 40.67(b), which closed on
September 25, 2008. The Department did not delay the effective date of
49 CFR 40.67(i), and that provision went into effect, as scheduled, on
August 25, 2008.
The Department fully considered the comments filed in the public
docket regarding the amendment to 49 CFR 40.67(b). On October 22, 2008,
at 73 FR 62910, the Department issued a notice responding to the
comments and stated ``the Department remains convinced that conducting
all return-to-duty and follow-up tests under direct observation is the
most prudent course from the viewpoint of safety.'' (73 FR 62918) The
Department decided not to change the amendment and announced that the
revised 49 CFR 40.67(b) would go into effect, as scheduled, on November
1, 2008.
On October 24, 2008, several of the petitioners again requested
that the Department further postpone the revised 49 CFR 40.67(b). On
October 30, 2008, the Department denied that petition. Several of the
petitioners then filed a motion for stay with the United States Court
of Appeals for the District of Columbia Circuit. On October 31, 2008,
the Court issued a temporary administrative stay to allow more time for
the court to consider the request for stay. On November 12, 2008, the
court issued a further order to stay the effectiveness of section
40.67(b) (BNSF Railway Company v. Department of Transportation, U.S.
Court of Appeals for the D.C. Circuit, September Term 2008, No. 08-
1265, November 12, 2008). This stay remained in effect until the court
issued a decision on the merits of petitioners' challenge to the
provisions of 40.67(b). On November 20, 2008, at 73 FR 70283, in
response to the stay, the Department issued a final rule to return to
the language of section 40.67(b) that existed prior to June 25 final
rule ``pending further order of the Court.''
Therefore, direct observation collections for return-to-duty and
follow-up testing remained an employer option, rather than mandatory.
All other requirements of the June 25, 2008 final rule that went into
effect on August 25, 2008, including the direct observation provision
at 40.67(i) [directing observers to check for prosthetic and other
devices used to carry ``clean'' urine and urine substitutes] were not
affected and have continued in effect.
On May 15, 2009, the United States Court of Appeals for the
District of Columbia Circuit unanimously upheld DOT's direct
observation drug testing rules applicable to return-to-duty, safety-
sensitive transportation industry employees who have already failed or
refused to take a prior drug test. (BNSF Railway Company v. Department
of Transportation, 566 F.3d 200 (DC Cir. 2009)). Because there was an
opportunity for the parties to seek rehearing of the Court's ruling,
the Court's stay of the direct observation rule continued in effect.
The Court issued a Mandate on July 1, 2009, which finalized the
decision, thereby lifting the stay. This document, therefore,
reinstates the language of 49 CFR 40.67(b) that the Department
originally issued on June 25, 2008, and that would have gone into
effect on November 1, 2008, but for the court's stay.
The Court's Decision
In its May 15, 2008 decision on the merits of section 40.67, the
Court determined that direct observation drug testing for return-to-
duty employees was not arbitrary and capricious because the Department
had chosen a reasonable way of responding to the compelling
governmental interest in transportation safety. The circumstances the
Court took into account included the recent development of a wide array
of available cheating devices, and the substantial incentive for these
return-to-duty employees to use such devices to cheat on required
return-to-duty and follow-up drug tests. The Court's unanimous decision
also held that the rules did not violate the Fourth Amendment
constitutional prohibition on unreasonable searches and seizures,
taking into account, among other factors, the diminished expectation of
privacy of employees who have failed or refused a prior drug test.
Administrative Procedure Act Analysis
The Court determined that the Department's issuance of the revised
regulation was not arbitrary and capricious. In reaching this
determination, the court noted that the ``Department marshaled and
carefully considered voluminous evidence of the increasing availability
of a variety of products designed to defeat drug tests.'' BNSF Railway
Company v. Department of Transportation, 566 F.3d at 203. Since any
successful use of cheating devices would not show up in statistics, the
Court agreed with the Department's reasoning that it was ``illogical''
to require statistical evidence of cheating. Id. In this regard, the
Court cited a recent Supreme Court decision, which said that ``It is
one thing to set aside agency action under the Administrative Procedure
Act because of failure to adduce empirical data that can readily be
obtained. It is something else to insist upon obtaining the
unobtainable.'' FCC v. Fox Television Stations, Inc., No. 07-582, 2009
WL 1118715, at *11 (U.S. Apr. 28, 2009) (citation omitted) Id. at 203-
204.
The Court stated ``the Department's approach was sound.
Acknowledging the intrusiveness of direct observation testing, the
Department sought to limit it to situations posing a high risk of
cheating * * * and then concluded--reasonably in our view--that
returning employees have a heightened incentive to cheat, and that this
incentive, coupled with the increased availability of cheating devices,
creates such a high risk, * * *.'' Id. at 204. In reaching its
determination that ``[s]ubstantial additional evidence supports the
Department's conclusion that returning employees are particularly
likely to cheat.'' Id., the court relied heavily upon the expertise of
the Substance Abuse Professionals (SAPs) who commented upon 49 CFR
40.67(b). ``Given the experience possessed by these substance abuse
professionals, such assessments provide substantial evidence supporting
the Department's conclusion that returning employees are particularly
likely to cheat on drug tests.'' Id.
In addition to the SAP comments and other evidence it referenced,
the Court noted with interest that return-to-duty employees pose a high
risk to transportation safety. Specifically, the Court noted with
interest that ``the Department supplemented its conclusion about
returning employees' motivations with evidence of their actual
behavior. To rebut the argument--offered by several commenters and
echoed here by petitioners--that returning employees are lower risk
because they have successfully completed drug treatment programs, the
Department emphasized data showing that `the violation rate for return-
to-duty and follow-up testing is two to four times higher than that of
random testing.' '' Id. at 205. The Court stated ``[w]e can hardly
fault the Department for inferring that the reason for higher failure
rates is not that returning employees are more honest, but that they
are more likely to use drugs. And given that employees who never use
drugs are--to say the least--much less likely to cheat on drug tests
than those who do, we think it quite reasonable for the Department to
see a higher underlying rate of drug use as evidence of a higher risk
of cheating.'' Id.
The Court considered and rejected alternatives proposed by the
petitioners, including maintaining the status quo of continuing to
allow employers the
[[Page 37951]]
option of conducting direct observation collections on return-to-duty
employees. The Court supported the Department's determination that
employers, concerned about the effects on ``labor management
agreements'' and fearing ``upsetting employees,'' rarely exercise this
option. The Court referred to a statement in the amicus brief from the
Association of American Railroads that direct observation tests
``generate resentment and ill will towards management,'' as further
supporting the Department's conclusion that the status quo was
untenable. Id.
The Court concluded ``the Department acted neither arbitrarily nor
capriciously in concluding that the growth of an industry devoted to
circumventing drug tests, coupled with returning employees' higher rate
of drug use and heightened motivation to cheat, presented an elevated
risk of cheating on return-to-duty and follow-up tests that justified
the mandatory use of direct observation.'' Id.
Fourth Amendment Analysis
The Court carefully considered whether the Department's final rule
struck the appropriate Fourth Amendment balancing of the needs of
transportation safety with the reasonableness of the search. The Court
stated that the Department's ``interest in transportation safety is
`compelling' to say the least.'' Citing Skinner, 489 U.S. at 628, 109
S.Ct. 1402. BNSF at 206. Further, the Court recognized that ``[g]iven
the proliferation of cheating devices, we have little difficulty
concluding that direct observation furthers the government's interest
in effective drug testing.'' Id. Since employees returning-to-duty can
anticipate that they will be subject to more frequent testing,
``[a]rmed with such foreknowledge, returning employees can easily
obtain and conceal cheating devices, keeping them handy even for
unannounced follow-up tests.'' Id. The Court concluded that the
Department ``has a strong interest in conducting direct observation
testing to ensure transportation safety.'' Id.
The Court then turned to the second prong of the Fourth Amendment
analysis--the reasonableness of the actual search. ``Individuals
ordinarily have extremely strong interests in freedom from searches as
intrusive as direct observation urine testing. In this case, however,
those interests are diminished because the airline, railroad, and other
transportation employees subject to direct observation perform safety-
sensitive duties in an industry that is `regulated pervasively to
ensure safety.' '' Id. However, the Court noted that the Department's
direct observation provisions were not structured to apply to all
safety-sensitive employees. Only violators and suspected cheaters are
affected. ``By choosing to violate the Department's perfectly
legitimate--and hardly onerous--drug regulations, returning employees
have placed themselves in a very different position from their
coworkers.'' Id. at 207. Thus, the court stated, ``we have little
trouble concluding that employees who have intentionally violated a
valid drug regulation * * * [would] have less of a legitimate interest
in resisting a search intended to prevent future violations of that
regulation than do employees who never violated the rule.'' Id. The
Court explained, ``we think that the employees' prior misconduct is
particularly salient, especially compared to their choice to work in a
pervasively regulated industry. It's one thing to ask individuals
seeking to avoid intrusive testing to forgo a certain career entirely;
it's a rather lesser thing to ask them to comply with regulations
forbidding drug use.'' Id. at 208. The Court acknowledged that ``direct
observation is extremely invasive, but that intrusion is mitigated by
the fact that employees can avoid it altogether by simply complying
with the drug regulations.'' Id.
The Court also took into account that the provision making direct
observation optional in return-to-duty and follow-up situations came
into effect well before present threats to the integrity of urine
testing became known. ``[T]hat was before the Whizzinator and its like.
Given the proliferation of such cheating devices, here we have a very
different record, one that fully supports the Department's finding that
standard monitoring procedures are inadequate. We thus conclude that
here * * * direct observation testing will `significantly improve
testing accuracy.' '' Id.
In finding that circumstances necessitated the Department's
increased requirements for the scope and nature of direct observation
collections, the Court stated, ``we recognize the intrusiveness of the
partial disrobing requirement, but find it only somewhat more invasive
than direct observation, which already requires employees to expose
their genitals to some degree. Because of this, and because the
Department has permissibly found the requirement necessary to detect
certain widely-available prosthetic devices, we conclude that it
represents a reasonable procedure for situations posing such a
heightened risk of cheating as to justify direct observation in the
first place.'' Id.
``[T]he Department has reasonably concluded that the proliferation
of cheating devices makes direct observation necessary to render these
drug tests--needed to protect the traveling public from lethal
hazards--effective. Weighing these factors, we strike the balance in
favor of permitting direct observation testing in these
circumstances.'' Id. The court concluded, ``[g]iven the combination of
the vital importance of transportation safety, the employees'
participation in a pervasively regulated industry, their prior
violations of the drug regulations, and the ease of obtaining cheating
devices capable of defeating standard testing procedures, we find the
challenged regulations facially valid under the Fourth Amendment.'' Id.
Collective Bargaining Agreements
We are aware that some employers and labor organizations may have
entered into collective bargaining agreements (CBAs) that prohibit or
limit the use of direct observation collections in return-to-duty and
follow-up testing situations. Employers and employees, of course, do
not have the authority to agree to avoid compliance with the
requirements of Federal law. When this final rule goes into effect,
conducting all follow-up and return-to-duty testing using direct
observation collections will be a requirement of Federal law. Employers
must use direct observation collections for such tests that take place
after the effective date of this rule, and any contrary provisions of
CBAs in the present or in the future will not be effective.
Conclusion
The Department wants to ensure that employers, employees,
collection sites, collectors, Third-Party Administrators and other
service agents know about and are fully prepared for mandatory direct
observation for follow-up and return-to-duty testing. We view this to
be important in light of the fact that there has been a good deal of
conflicting information in the transportation and drug testing
industries about the requirements and because of the complexities of
the various petitions, court actions, and rule changes on the matter.
Regulatory Analyses and Notices
This document simply reinstates, without change, following the
dissolution of a court stay, a provision issued as part of a final rule
on June 25, 2009. The regulatory analyses and notices set forth in that
document (73 FR 35968-69) apply to today's rule.
[[Page 37952]]
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 this 24th day of July 2009, at Washington, DC.
Jim L. Swart,
Director, Office of Drug and Alcohol Policy Compliance.
49 CFR Subtitle A--Authority and Issuance
0
For reasons discussed in the preamble, the Department of Transportation
is amending part 40 of Title 49 Code of Federal Regulations as follows:
PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL
TESTING PROGRAMS
0
1. The authority citation for 49 CFR Part 40 continues to read as
follows:
Authority: 40 U.S.C. 102, 301, 322, 5331, 20140, 31306, and
54101 et seq.
0
2. Section 40.67 is amended by revising paragraph (b) to read as
follows:
Sec. 40.67 When and how is a directly observed collection conducted?
* * * * *
(b) As an employer, you must direct a collection under direct
observation of an employee if the drug test is a return-to-duty test or
a follow-up test.
[FR Doc. E9-18156 Filed 7-29-09; 8:45 am]
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