[Federal Register: February 25, 2010 (Volume 75, Number 37)]
[Rules and Regulations]               
[Page 8526-8528]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Office of the Secretary

49 CFR Part 40

[Docket OST-2007-26828]
RIN 2105-AD64

Procedures for Transportation Workplace Drug and Alcohol Testing 

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).


[[Page 8527]]


    Department regulations require that in order for an employer to 
utilize a specific ASD to conduct required DOT alcohol tests, the 
device must (a) Have been approved by the National Highway Traffic 
Safety Administration (NHTSA) as meeting required model specifications, 
(b) be published by NHTSA in the Federal Register on their most current 
ASD CPL, and (c) have Department-approved procedures in part 40 for its 
use. By publishing the IFR, the Department ensured that procedures were 
in place so that when NHTSA published its ASD CPL in the Federal 
Register, the breath tube ASD was immediately available for use by DOT 
regulated employers.

Background and Purpose

    When it originally published its alcohol testing rules on February 
15, 1994 [54 FR 7302 et seq.], the Department established breath 
testing using evidential breath testing devices (EBTs) as the required 
method. However, in response to comments requesting additional 
flexibility in testing methods, the Department said that NHTSA would 
develop model specifications for non-evidential alcohol screening 
devices, evaluate additional screening devices against those 
specifications, and periodically publish a conforming products list of 
screening devices that met the model specifications. The Department 
noted, too, that the Department would also have to undertake separate 
rulemaking proceedings to establish part 40 procedures for use by DOT-
regulated industries of any devices approved by NHTSA.
    On April 20, 1995 [60 FR 19675], the Department published 
procedures for use of both breath and saliva ASDs. At that time, the 
Department did not anticipate that additional breath and saliva 
screening devices would be developed that would necessitate new 
procedures for their use. As a result, the revised part 40 published 
December 19, 2000 [65 FR 79462] stated, in part, that ASDs on the NHTSA 
CPL could be used for part 40 alcohol screening tests. Because NHTSA 
added an ASD to their CPL and the Department had no procedures for its 
use, we were forced to amend that rule. On August 9, 2001 [65 FR 
41944], part 40 was amended to read, ``You may use an ASD that is on 
the NHTSA CPL for DOT alcohol tests only if there are instructions for 
its use in this part.''
    On October 1, 2002 [67 FR 61521], the Department published 
procedures for the use of a breath tube ASD that had been approved by 
NHTSA and added to their May 4, 2001 CPL [66 FR 22639]. By 2005, that 
device was no longer being manufactured, and was removed from the CPL 
effective September 19, 2005 [70 FR 54972]. Subsequently, NHTSA 
approved a new breath tube ASD but had not yet added it to its ASD CPL 
which was one of three critical criteria to permitting DOT regulated 
employers to use the device.
    Although DOT regulated employers could still not use the ASD, the 
Department realized that the breath tube procedures currently in our 
regulation were not consistent with instructions for use of the newly 
approved ASD. As a result, on January 11, 2007 the Department published 
an IFR [72 FR 1298] where it amended part 40 by eliminating procedures 
specific for the breath tube ASD which is no longer being manufactured 
and added procedures for use of the newly approved device.
    The IFR provided instructions for use of the new ASD which were 
generally similar to those for the previously approved breath tube 
device. The principal difference was in how the alcohol result is read 
by the technician. Instead of comparing the color of the crystals in 
the ASD with the colored crystals in a manufacturer-produced control 
tube, the new ASD used an electronic analyzer to provide the technician 
and the employee with an automated visual result of negative (a 
flashing green light) or positive (a flashing red light) at 0.02. The 
Department also retained the requirement to read the result within 15 
minutes of the test to ensure a confirmation test, when necessary, was 
conducted in a timely manner. Finally, because of the manufacturer's 
requirement to only use the detector device with a pre-calibrated 
electronic analyzer, the IFR also added a fatal flaw to the current 
list of fatal flaws. Specifically, the alcohol screening test was to be 
cancelled if an electronic analyzer was not used with a specified lot 
of detector devices.

Discussion of Comments to the Docket

    There were two comments to the docket which were not germane to the 
interim final rule and, therefore, the Department will not address 
them. Because there were no comments which provided substantive 
information to warrant changing the procedures in the IFR, the 
Department will adopt the text in the IFR as final.

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, 322, 
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 finalizes 
minor modifications, already in effect, to our procedures that do not 
increase costs on regulated parties. In fact, it facilitates the use of 
an alcohol screening device that may increase flexibility and lower 
costs for employers who choose to use them over more expensive options 
previously approved by the Department. The rule will impose no burdens 
on any parties, and NHTSA has already determined that the device is 
technically acceptable for use in the DOT alcohol testing program. 
While small entities are among those who may use the device, the 
Department consequently certifies, under the Regulatory Flexibility 
Act, that this rule does not have a significant economic impact on a 
substantial number of small entities.
    We issued the IFR on this subject to ensure that employers could 
use the ASD when it is placed on NHTSA's CPL as a qualified device 
(meeting DOT specifications for accuracy and precision). We determined, 
at that time, under section 553 of the Administrative Procedure Act, 
that prior notice and an opportunity for public comment were 
unnecessary, impracticable, or contrary to the public interest. Given 
the absence of any comment on the IFR, and the fact that this rule 
simply finalizes a rule already in effect, the Department finds good 
cause under 553 to make this rule effective immediately.

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 at Washington DC, this 9th day of February 2010.
Ray LaHood,
Secretary of Transportation.


Accordingly, the Interim Final Rule amending 49 CFR part 40 which was 
published at 72 FR 1298 on January 11,

[[Page 8528]]

2007 is adopted as a final rule without change.

[FR Doc. 2010-3730 Filed 2-24-10; 8:45 am]