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Office of the Secretary of Transportation
SUMMARY: On September 27, 2010, the U.S. Department of Transportation (DOT) published an interim final rule (IFR) authorizing the use of a new Federal Drug Testing Custody and Control Form (CCF) in its drug testing program. Use of the form is authorized beginning October 1, 2010. This final rule responds to comments to the IFR and will finalize the authorization and procedures for using the new CCF for DOT-required drug tests. The intended effect of this final rule is to finalize the authority for use of the new CCF and to make a technical amendment to its drug testing procedures by amending a provision of the rule which was inadvertently omitted from a final rule in August 2010. The September 27, 2010 final rule was published under RIN 2105-AE03, however, it was inadvertently shown as a completed action on the Fall 2010 Agenda; this action replaces RIN 2105-AE03.
EFFECTIVE DATE: The rule is effective September 27, 2011.
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 [email protected] (e-mail).
SUPPLEMENTARY INFORMATION:
Background and Purpose
All urine specimens collected under the DOT drug testing regulation, 49 CFR Part 40, must be collected using chain-of-custody procedures that incorporate the use of the CCF promulgated by the Department of Health and Human Services (HHS). On November 17, 2009, HHS published a proposal to revise the CCF [74 FR 59196]. In their proposal, HHS stated that the CCF is used for the Federal workplace drug testing program, but also pointed out that DOT "* * *requires its regulated industries to use the Federal CCF" [74 FR 59196]. Because many of the commentors to the HHS proposal were transportation industry employers, Consortia/Third-party Administrators (C/TPAs), and associations, the Department was confident the commentors understood the new CCF would be used in the DOT-regulated program. All the comments submitted were thoroughly reviewed by HHS and taken into consideration in fashioning the new CCF. The Department worked closely with HHS on the new CCF. HHS announced the new CCF in the Federal Register [75 FR 41488]. The CCF became effective date of October 1, 2010.
However, because of the short time frame between the HHS publication of the new CCF and its October 1, 2010 effective date, the Department did not have an opportunity to propose a rulemaking and therefore issued an Interim Final Rule (IFR) on September 27, 2010 [75 FR 59105] authorizing DOT-regulated employers to also begin using the new CCF on October 1, 2010. The Department sought comments only on the actual implementation of the new CCF, and not on the form itself because HHS already sought and received comments on the form and its use because many of the commentors to the HHS proposal were transportation industry employers, C/TPAs, and associations. In the IFR, the Department made minor procedural amendments to the regulation to merely reflect the changes HHS made to the revised CCF, and clarified how collectors, laboratories, and medical review officers (MROs) must use the new form in the DOT regulated context. There were 15 comments from four commentors.
The Department is also making a technical amendment to address an omission in the rule text of a final rule published on August 16, 2010 [75 FR 49850]. Specifically, we had removed the requirement in SEC 40.121(d) for the MRO to complete continuing education units to satisfy the requalification training requirement but we failed to amend the definition of "Continuing education" in SEC 40.3 to reflect this change. We do so in this Final Rule.
Section-by-Section Discussion
The following part of the preamble discusses comments to each of the amended rule text sections.
Section 40.14 What collection information must employers provide to collectors?
The Department added a new SEC 40.14 to put into one section the information employers or their C/TPAs have been routinely providing collectors or should have been providing collectors; information such as, the reason for the test, whether the test is to be conducted under direct observation, the MRO name and address, and employee information (e.g., name and SSN or ID number), etc. All of this information would need to be provided in Step 1 of the CCF. Since a new Step 1-D was added to the CCF to specify which DOT Agency regulates the employee's safety-sensitive function, we included this among the information the employer or its C/TPA must provide to the collector.
One commentor, a large laboratory with many collection sites, concurred with the requirement for employers or C/TPAs to ensure the collector has the necessary information to complete Step 1. The commentor went on to say that it relied on the employer or C/TPA to pre-mark the demographic information (e.g., test reason, testing authority) in Step 1 since its collection sites don't keep employer-specific CCFs at their sites and the employee may not know this information. When the employer pre-marks this information, this helps ensure the information is completed correctly. The Department agrees. In the event Step 1 is not pre-marked, the employer would need to ensure the information is provided to the collector.
Two commentors, apparently from the same collection site, were concerned that requiring the employer to provide the DOT Agency information would be confusing for the employers and that not knowing this information would delay the testing process. They stated "* * * there are many instances when the employer has no idea if their donor is DOT or non-DOT" and "When inquiring of employers' DER to supply this information the majority of the responses are 'I don't know!' The Department also received several telephonic requests for clarification since October 1 in which collectors questioned how they would know this information if the employer didn't know it themselves.
The Department believes the collector should never be put in a situation to determine the DOT Agency that regulates an employee's safety-sensitive functions. This is the employer's responsibility. Furthermore, the Department was surprised to hear that any employer currently regulated by DOT would not know which DOT Agency regulates it. We can only surmise this is a rare occurrence and there is no reason to believe it is a systemic problem. Perhaps it was because the employer forgot the specific abbreviation of its respective regulator: Federal Motor Carrier Safety Administration (FMCSA); Federal Aviation Administration (FAA); Federal Railroad Administration (FRA); Federal Transit Administration (FTA); Pipeline and Hazardous Materials Safety Administration (PHMSA); and the United States Coast Guard (USCG). /1/ Nevertheless, not knowing this fundamental concept raised serious concerns and compliance questions. For example: Is the employer subject to the DOT's drug and alcohol testing regulations? If the employer is covered by the DOT regulations, then other questions arise. Is the employer testing its employees at the proper random testing rates? Is the employer conducting post-accident tests when required? Is the employer providing the correct educational material to its employees as required by the DOT regulations? Is the employer appropriately filling-out and submitting Management Information System (MIS) reports?
FOOTNOTE 1 For purposes of following the requirements of 49 CFR Part 40, " DOT, The Department, DOT Agency " is defined, at 40.3, to include the United States Coast Guard. END FOOTNOTE
In response to the comment that employers do not know which DOT Agency regulates them or their employees' safety-sensitive functions, we encourage employers and their C/TPAs to review the guidance documents available to them on our site http://www.dot.gov/odapc and affirm their regulating DOT Agency. The Department is also providing the following to assist employers and C/TPAs with understanding these critical elements:
Federal Motor Carrier Safety Administration (FMCSA)
Covered employee: A person who operates (i.e., drives) a Commercial Motor Vehicle (CMV) with a gross vehicle weight rating (gvwr) of 26,001 or more pounds; or is designed to transport 16 or more occupants (to include the driver); or is of any size and is used in the transport of hazardous materials that require the vehicle to be placarded.
Federal Railroad Administration (FRA)
Covered employee: A person who performs hours of service functions at a rate sufficient to be placed into the railroad's random testing program. Categories of personnel who normally perform these functions are locomotive engineers, trainmen, conductors, switchmen, locomotive hostlers/helpers, utility employees, signalmen, operators, and train dispatchers.
Federal Aviation Administration (FAA)
Covered employee: A person who performs flight crewmember duties, flight attendant duties, flight instruction duties, aircraft dispatch duties, aircraft maintenance or preventive maintenance duties; ground security coordinator duties; aviation screening duties; and air traffic control duties. Note: Anyone who performs the above duties directly or by contract for a part 119 certificate holder authorized to operate under parts 121 and/or 135, air tour operators defined in 14 CFR part 91.147, and air traffic control facilities not operated by the Government are considered covered employees.
Federal Transit Administration (FTA)
Covered employee: A person who performs a revenue vehicle operation; revenue vehicle and equipment maintenance; revenue vehicle control or dispatch (optional); Commercial Drivers License non-revenue vehicle operation; or armed security duties.
Pipeline and Hazardous Materials Safety Administration (PHMSA)
Covered employee: A person who performs on a pipeline or liquefied natural gas (LNG) facility an operation, maintenance, or emergency-response function.
--This is a summary of a Federal Register article originally published on the page number listed below--
Final Rule; Technical Amendment.
CFR Part: "49 CFR Part 40"
RIN Number: "RIN 2105-AE13"
Citation: "76 FR 59573"
Document Number: "Docket DOT-OST-2010-0161"
Federal Register Page Number: "59573"
"Rules and Regulations"
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