01-648. Procedures for Transportation Workplace Drug and Alcohol Testing Programs; Correction

AGENCY:

Office of the Secretary, DOT.

ACTION:

Final rule; correction.

SUMMARY:

In its final drug and alcohol testing rule published on December 19, 2000, the Department made an editorial error in the numbering of a section in the complete new version regulation. This document corrects this error by inserting the proper numbering. In addition, the Department inadvertently omitted one item from its amendments to the existing regulation. This document adds this item, which concerns the responsibilities of the medical review officer in reviewing chain of custody documentation.

EFFECTIVE DATES:

The correction to the amendments to the current 49 CFR Part 40 (i.e., the addition of § 40.227) is effective January 18, 2001. The correction to the revised 49 CFR Part 40 (i.e., corrected designation of § 40.33(f)) is effective August 1, 2001.

FOR FURTHER INFORMATION CONTACT:

Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, Department of Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590, at [phone] (voice), [phone] (fax), [phone] (TDD), or [e-mail] (e-mail).

SUPPLEMENTARY INFORMATION:

In the December 19, 2000, Federal Register (65 FR 79462), the Department published a comprehensive revision to its drug and alcohol procedures testing regulation (49 CFR Part 40). This complete revision becomes effective August 1, 2001. In this revision, the Department made an error in numbering § 40.33(f). Following the introductory text of paragraph (f), the Department numbered three paragraphs (i), (ii), and (iii), respectively. They should have been numbered (1), (2), and (3). We are correcting this error.

In the same Federal Register document, we also published amendments to the existing 49 CFR Part 40, effective January 18, 2001. We inadvertently omitted from these amendments one provision we intended to make effective on this date. This provision concerns the responsibility of the medical review officer (MRO) to review the chain of custody documentation for a drug test. In § 40.123(b)(1) and § 40.129(a)(2) of the complete revision of Part 40, the Department specifies that MROs are not required to review the laboratory internal chain of custody documentation as part of this process, and that no one is authorized to cancel a test because the MRO does not review the internal laboratory chain of custody documentation.

These provisions of the complete revision of Part 40 are fully consistent with the Department's intent in, and interpretation of, the existing regulation. However, we learned last year that some parties have been confused about this point, and one state court decision—mistakenly, in our view—determined that MROs were required to review internal laboratory chain of custody documentation. We added the cited provisions to the complete revision of Part 40 to emphasize that MRO review of this documentation is not needed.

We intended to add the substance of these provisions to the amendments to the existing Part 40 that become effective January 18, 2001, lest there be any misunderstanding of this point in the interim before August 1, 2001. However, through editorial oversight, we failed to do so. We are correcting this omission by adding a new § 40.227 to Subpart E of the existing Part 40.

The Department finds that there is good cause to issue this correction without a prior notice and opportunity for comment. The underlying regulatory provisions were part of a rulemaking that was promulgated through the normal notice and comment provisions of the Administrative Procedure Act. The editorial correction to the numbering of § 40.33(f) has no substantive significance. The addition of a provision of the complete revision of Part 40 to the amendments to the existing Part 40 merely ensures that this restatement of the Department's understanding of MRO review responsibilities under the existing rule becomes part of the regulatory text in January as we intended, rather than in August.

The Department would not anticipate receiving any useful public comment on these matters. Therefore, the Department finds that it would be impracticable, unnecessary, and contrary to the public interest to go through a notice-and-comment process to fix a minor editorial mistake. For the same reason, we find good cause to make the correction with respect to MRO review responsibilities effective in less than 30 days.

This is a nonsignificant rule under both Executive Order 12886 and the Department's regulatory policies and procedures. The Department certifies, under the Regulatory Flexibility Act, that the rule will not have a significant economic effect on a substantial number of small entities. This is because we anticipate that this amendment will have no economic effect on anyone. It does not have Federalism impacts sufficient to warrant consultation or the preparation of a Federalism impact statement. It does not impose information collection requirements.

Issued this 4th Day of January 2000, at Washington, DC.

Rosalind A. Knapp,

Acting General Counsel.

Accordingly, in FR Doc. 00-31251, published in 65 FR 79462, December 19, 2000, make the following corrections:

PART 40—[CORRECTED]

1. On page 79521, in the second column, add § 40.227 to Subpart E, to read as follows:

§ 40.227

Is the MRO required to review laboratory internal chain of custody documentation?

(a) As the MRO, you are not required to review laboratory internal chain of custody documentation.

(b) No one is permitted to cancel a test because you have not reviewed this documentation.

§ 40.33

[Corrected]

2. Beginning on page 79533, in the third column, in § 40.33, correctly designate paragraphs (f)(i), (f)(ii), and (f)(iii) as paragraphs (f)(1), (f)(2), and (f)(3), respectively.