2010-16159. Procedures for Transportation Workplace Drug and Alcohol Testing Programs

AGENCY:

Office of the Secretary, DOT.

ACTION:

Final rule.

SUMMARY:

The Department of Transportation published a final rule authorizing the use of an updated Alcohol Testing Form with a mandatory start date of August 1, 2010. The Department subsequently learned the industry might not use all the forms by that mandatory use date. To avoid wasting the forms, the Department is extending the mandatory use date to January 1, 2011.

DATES:

This rule is effective July 2, 2010.

FOR FURTHER INFORMATION CONTACT:

For program issues, Bohdan Baczara, Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey Avenue, SE., Washington, DC 20590; [phone] (voice), [phone] (fax), or [e-mail] (e-mail).

SUPPLEMENTARY INFORMATION:

Background and Purpose

On February 25, 2010, the Department published a final rule [75 FR 8528] updating the Alcohol Testing Form (ATF). The Department anticipated that employers and alcohol testing technicians could have a supply of old ATFs and, to avoid unnecessarily wasting these forms, the Department permitted the use of the old ATF until August 1, 2010. Employers were authorized to begin using the updated ATF immediately.

Since the final rule was published, the Department became aware that some vendors of the ATF might not be able to deplete their current supply of the ATFs before the August 1, 2010 implementation date. In light of this new information and to avoid wasting already printed forms, on May 11, 2010, the Department published a notice of proposed rulemaking [75 FR 26183] to propose to extend the implementation date to January 1, 2011.

Discussion of Comments to the Docket

There were fifteen commenters, including alcohol testing device manufacturers and suppliers, third party administrators, a medical facility, individuals and a trade association. The commenters unanimously agreed to extend the mandatory use date to January 1, 2011, citing that the extra time to use the old form will enable them to reduce their inventory of alcohol testing forms and give them the necessary time to design, print and distribute the new form. The commenters also appreciated the Department's sensitivity to minimizing the unnecessary waste of paper and expense that would have been caused by throwing away forms that could no longer be used. One commenter suggested for the Department to permit the use of the old ATF past the proposed mandatory use date of January 1, 2011. Two commenters asked for guidance on what would happen if an old ATF was used past the January 1, 2011 mandatory use date.

The Department agrees with the commenters that extending the mandatory use date from August 1, 2010 to January 1, 2011 will enable regulated employers and their service agents to reduce their inventory of old alcohol testing forms and give them sufficient time to design, print, and distribute the new ATF. As such, the final rule will reflect this new date. Regarding the use of the old ATF past the January 1, 2011 date, the Department expects that the ten month transition period from using the old ATF to the new ATF will be sufficient time for employers and TPAs to ensure the breath alcohol technicians (BATs) that service them are aware of the new form and have the new form for use by the January 1, 2011 date. The Department does not see the need to make a provision for use of the old ATF past the January 1, 2011.

Regulatory Analyses and Notices

The statutory authority for this proposed rule derives from the Omnibus Transportation Employee Testing Act of 1991 (49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 45101 et seq.) and the Department of Transportation Act (49 U.S.C. 322).

This proposed rule is a non-significant rule both for purposes of Executive Order 12886 and the Department of Transportation's Regulatory Policies and Procedures. The Department certifies that it will not have a significant economic effect on a substantial number of small entities, for purposes of the Regulatory Flexibility Act. The Department makes these statements on the basis that by extending the implementation date of the new form, this rule will not impose any significant costs on anyone. The costs of the underlying Part 40 final rule were analyzed in connection with its issuance in December 2000. Therefore, it has not been necessary for the Department to conduct a regulatory evaluation or Regulatory Flexibility Analysis for this proposed rule. The alcohol testing form complies with the Paperwork Reduction Act. It has no Federalism impacts that would warrant a Federalism assessment.

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 June 25, 2010, at Washington DC.

Jim L. Swart,

Director.

For reasons discussed in the preamble, the Department of Transportation is amending 49 CFR part 40, 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: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 45101 et seq.

2. In Appendix G to Part 40—Alcohol Testing Form, the paragraph is amended by removing the text “August 1, 2010” and adding in its place “January 1, 2011.”