Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 37949-37952 [E9-18156]
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Part 52, Chapter I, Title 40 of the Code
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■
PART 52—[AMENDED]
1. The authority citation for Part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart F—California
2. Section 52.220, is amended by
adding paragraph (c)(354)(i)(E) to read
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■
§ 52.220
Identification of plan.
*
*
*
*
*
(c) * * *
(354) * * *
(i) * * *
(E) San Joaquin Valley Unified Air
Pollution Control District
(1) Rule 4662, ‘‘Organic Solvent
Degreasing Operations,’’ Adoption April
11, 1991 and amended September 20,
2007
(2) Rule 4663, ‘‘Organic Cleaning
Storage, and Disposal,’’ Adoption
December 20, 2001 and amended
September 20, 2007
*
*
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[FR Doc. E9–18001 Filed 7–29–09; 8:45 am]
BILLING CODE 6560–50–P
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37949
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
Office of the Secretary, DOT.
Final rule.
AGENCY:
ACTION:
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
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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,
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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 followup 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
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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
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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
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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 widelyavailable 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
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37951
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.
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§ 40.67 When and how is a directly
observed collection conducted?
in State of Maine (ME) waters. In
addition, the state waters exemption
provides an exemption from scallop
days-at-sea (DAS) for limited access
DAS scallop vessels, provided the vessel
fishes exclusively in ME state waters.
The scallop fishery regulations specify
that a state may be eligible for a state
waters exemption if it has a scallop
fishery and a scallop conservation
program that does not jeopardize the
biomass and fishing mortality/effort
limit objectives of the Atlantic Sea
Scallop Fishery Management Plan
(FMP). The regulations further state that
the Regional Administrator, Northeast
Region, NMFS (RA), shall determine
which states meet those criteria and
shall authorize the exemption for such
states by publishing a rule in the
Federal Register.
DATES: Effective August 31, 2009.
ADDRESSES: Documents supporting this
action, including ME’s request for the
exemption, Amendment 11 to the FMP,
and Framework 19 to the FMP, are
available upon request from Patricia A.
Kurkul, Regional Administrator, NMFS,
Northeast Regional Office, 55 Great
Republic Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT:
Peter Christopher, Policy Analyst, 978–
281–9288; fax 978–281–9135.
SUPPLEMENTARY INFORMATION:
*
Background
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
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
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.
2. Section 40.67 is amended by
revising paragraph (b) to read as follows:
■
*
*
*
*
(b) As an employer, you must direct
a collection under direct observation of
an employee if the drug test is a returnto-duty test or a follow-up test.
[FR Doc. E9–18156 Filed 7–29–09; 8:45 am]
BILLING CODE 4910–9X–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 090224231–91118–02]
RIN 0648–AX54
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Fisheries of the Northeastern United
States; Atlantic Sea Scallop Fishery;
State Waters Exemption
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
SUMMARY: This final rule allows an
exemption from the minimum twine-top
mesh size for vessels issued Federal
scallop permits and fishing exclusively
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Amendment 11 to the FMP
(Amendment 11), implemented on June
1, 2008 (73 FR 20090, April 14, 2008),
includes a comprehensive new
management program for the general
category scallop fleet. Amendment 11
created a Northern Gulf of Maine
Scallop Management Area (NGOM Area)
that includes a total allowable catch
(TAC), gear restrictions, and a
possession limit for the NGOM Area
that are more restrictive than previous
regulations for the area. Under
Amendment 11, NMFS determined that
the state waters exemptions for ME,
New Hampshire (NH), and
Massachusetts (MA), should be
suspended, pending submission of
additional information from those states
regarding their state waters fisheries and
the potential effects of allowing state
waters exemptions under the
Amendment 11 scallop regulations. In
response, ME requested a state waters
exemption and provided background
information on the State’s current
scallop fishery management measures,
the potential state waters scallop
fishery, and information regarding
potential new measures that the State
was developing at the time.
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The scallop fishery regulations at
§ 648.54(c) specify that a state may be
eligible for the state waters exemption if
it has a scallop fishery and a scallop
conservation program that do not
jeopardize the biomass and fishing
mortality/effort limit objectives of the
FMP. The regulations further state that
the RA shall determine which states
meet those criteria and shall publish a
rule in the Federal Register, in
accordance with the Administrative
Procedure Act, to provide the
exemption for such states.
Based on the information submitted,
NMFS determined that ME state waters
qualify for the state waters exemption
program under the FMP. The majority of
ME’s scallop fishery restrictions are
either equally or more restrictive than
Federal scallop fishing regulations. The
exception is that ME allows vessels to
use a minimum mesh size of 5.5–inch
(14–cm) twine tops on scallop dredges,
while the Federal regulations require a
10–inch (25.4–cm) minimum twine-top
mesh size. The state waters exemption
therefore allows an exemption from the
10–inch (25.4–cm) minimum twine-top
mesh size. In addition, the state waters
exemption provides an exemption from
scallop DAS for limited access DAS
scallop vessels, but does not exempt
such vessels from any other Federal
restrictions other than the minimum
twine-top mesh size as noted above. To
fish under the exemption, owners of
scallop vessels are required to declare
their intent to fish, and the vessel must
fish, exclusively in ME state waters,
subject to more restrictive state
measures, if applicable. Vessels with
Federal Incidental Catch scallop permits
are still confined to the 40–lb (18–kg)
limit under Federal regulations. The
target TAC was set at 50,000 lb (22,680
kg) for these vessels based partly on the
very low possession limit. Allowing
these vessels to harvest more than 40 lb
(18 kg) per trip could therefore
compromise the TAC.
As required by the scallop fishery
regulations, exemptions can only be
granted if the state’s scallop fishery
would not jeopardize the biomass and
fishing mortality/effort limit objectives
of the FMP. The exemption from the
Federal twine-top restriction and DAS
has no impact on the effectiveness of
Federal management measures for the
scallop fishery overall on the NGOM
Area because the remainder of ME’s
scallop fishery regulations are more
restrictive and would limit mortality
and effort beyond the Federal
management program. The twine top
minimum mesh size restrictions are
designed to help reduce bycatch in the
scallop fishery. In particular, larger
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]]>Agencies
[Federal Register Volume 74, Number 145 (Thursday, July 30, 2009)]
[Rules and Regulations]
[Pages 37949-37952]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-18156]
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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]
BILLING CODE 4910-9X-P
