E8-19037. Petition for Waiver of Compliance

In accordance with Title 49 Code of Federal Regulations (CFR) § 211.41, and 49 U.S.C. 20103, this notice is hereby given that the Federal Railroad Administration (FRA) has received a request for a waiver of compliance from certain requirements of its safety regulations. The individual petition is described below, including the parties seeking relief, the regulatory provisions involved, the nature of the relief being sought, and the petitioners' argument in favor of relief.

Association of American Railroads and The American Short Line and Regional Railroad Association

On August 6, 2008, the Association of American Railroads (AAR) and The American Short Line and Regional Railroad Association (ASLRRA) jointly filed a waiver request seeking to delay the August 25, 2008 implementation date of amendments to Title 49, CFR, § 40.67, which was issued by the Department of Transportation (DOT) on June 25, 2008 (73 FR 35961). Part 40 is incorporated by reference in § 219.701 of Title 49, CFR, Part 219, Control of Drug and Alcohol Use in Railroad Operations. The amendments to § 40.67 apply to drug tests where a direct observation of the urine collection is required (e.g., the employee presented a cold specimen at the collection site; had an invalid test result without a legitimate medical reason; had a positive or adulterated test result which had to be cancelled because the required test of the employee's split specimen could not be performed; or had a prior positive or refusal to test and was subject to return-to-duty and follow-up testing).

As amended, § 40.67 will require an employee to raise his/her shirt and lower his/her pants and undergarments to show an observer that he or she does not have a prosthetic device which could be used to affect the validity of the test; the direct observer must be of the same gender as the employee because of privacy concerns. In their petition, the AAR and ASLRRA state that the railroad industry is comprised mainly of male employees, while the majority of their current contract collectors are female, and that they need additional time to arrange for more male contract collectors and to complete training on the new direct observation procedures.

For the reasons stated above, the petitioners ask FRA to waive until November 1, 2008, § 219.701's incorporation by reference of Part 40 to the extent that it incorporates § 40.67's new requirements for directly observed collections. Although the specific relief requested is a waiver of Part 219's incorporation of the August 25, 2008 effective date of § 40.67 as applied to return-to-duty and follow-up tests, the petitioners elsewhere state that their purpose is to seek “a delay in the effective date until November 1, 2008, for amendments to 49 CFR 40.67 issued by the Department of Transportation on June 25, 2008.” FRA therefore infers that petitioners are also seeking to defer the effective date of Part 219's incorporation of § 40.67 as applied to mandatory direct observations triggered by employee behavior at the collection site. The petitioner also requests that DOT and the FRA reassess whether the new direct observation requirements are necessary, by monitoring observed drug tests over the next two years.

The petitioners have sent a very similar petition to the Office of the Secretary of Transportation (OST). Both petitions focus on portions of the direct observation provisions of 49 CFR Part 40, an OST regulation applicable to all DOT agencies having drug testing programs, making parallel arguments concerning these provisions. FRA will fully coordinate its response to the petition sent to FRA with OST's response to the petitions sent to OST, and FRA's response will be consistent with that of OST with respect to the issues involved.

Comments should reference Docket No. FRA 2008-0092, and may be submitted by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
• Mail: Docket Management Facility, U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
• Hand Delivery or Courier: Docket Management Facility, U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
• Fax: [phone].

All documents in the public docket, including the AAR/ASLRRA joint waiver request and all comments received, will be posted without change to http://www.regulations.gov, including any personal information provided. Because of the necessity for expedited processing of this petition, FRA does not anticipate scheduling a public hearing in connection with this request for a waiver of certain regulatory provisions. Communications received by Aug. 21, 2008 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.

For access to the docket, go to http://www.regulations.gov anytime, or to the Docket Management Facility, U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. Follow the online instructions for accessing the dockets, where you may also review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78).

Issued in Washington, DC on August 12, 2008.

Michael J. Logue,

Deputy Associate Administrator for Safety Compliance and Program Implementation.