{"operation":"document","citation":"60 FR 19675","title":"Procedures for Transportation Workplace Drug and Alcohol Testing Programs; Procedures for Non-Evidential Alcohol Screening Devices","source_type":"rulemaking","agency":"Office of the Secretary","status":"historical","official":true,"published_on":"1995-04-20","effective_on":"1995-05-22","summary":"When the Department of Transportation published its final alcohol testing rules in February 1994, it said that if non-evidential screening devices were approved, the devices could be used for screening tests in DOT-mandated alcohol testing programs. Several such devices have now been determined by the National Highway Traffic Safety Administration to be capable of detecting the presence of alcohol at the 0.02 or greater level of alcohol concentration. This rule establishes procedures for the use of these devices.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-95-9552.json","markdown":"https://regulus.evalyn.ai/document/federal-register-95-9552.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-95-9552","source_url":"https://www.federalregister.gov/documents/1995/04/20/95-9552/procedures-for-transportation-workplace-drug-and-alcohol-testing-programs-procedures-for","body":"Federal Register, Volume 60 Issue 76 (Thursday, April 20, 1995) [Federal Register Volume 60, Number 76 (Thursday, April 20, 1995)] [Rules and Regulations] [Pages 19675-19681] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 95-9552] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Office of the Secretary 49 CFR Part 40 [Docket 50018] RIN 2105-AC20 Procedures for Transportation Workplace Drug and Alcohol Testing Programs; Procedures for Non-Evidential Alcohol Screening Devices AGENCY: Office of the Secretary, DOT. ACTION: Final rule; request for comments. ----------------------------------------------------------------------- SUMMARY: When the Department of Transportation published its final alcohol testing rules in February 1994, it said that if non-evidential screening devices were approved, the devices could be used for screening tests in DOT-mandated alcohol testing programs. Several such devices have now been determined by the National Highway Traffic Safety Administration to be capable of detecting the presence of alcohol at the 0.02 or greater level of alcohol concentration. This rule establishes procedures for the use of these devices. DATES: This rule is effective May 22, 1995. Comments on amendments to Secs. 40.59(c), 40.63(d)(1), and 40.63(e)(2) should be received by June 5, 1995. Late-filed comments will be considered to the extent practicable. FOR FURTHER INFORMATION CONTACT: Albert Alvarez, Director, Department of Transportation, Office of Drug Enforcement and Program Compliance, 400 7th Street SW., Washington, DC 20590, Room 9404A, 202-366-3784; or Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, 400 7th Street SW., Room 10424, Washington, DC 20590; 202- 366-9306. SUPPLEMENTARY INFORMATION: Background When the Department published its final alcohol testing rules on February 15, 1994 (59 FR 7302 et seq.), the Department established breath testing, using evidential breath testing devices (EBTs), as the method to be used. However, in response to comments requesting additional flexibility in testing methods, the Department said that-- NHTSA [the National Highway Traffic Safety Administration] will develop model specifications (using precision and accuracy criteria), evaluate additional screening devices against them, and periodically publish a conforming products list of those additional screening devices (not exclusively breath testing devices) that meet the model specifications. * * * Please note that the Department will also have to undertake separate rulemaking proceedings to establish procedures for the use of any devices after they are approved. (Id. at 7316.) NHTSA published model specifications, tested several screening devices and, on December 2, 1994, published a conforming products list (CPL) including four non-evidential breath testing devices and one saliva testing device. As noted in the February 15 common preamble cited above, before these devices can be used in DOT alcohol testing programs, this procedural rule has to be issued. When this rule becomes effective, employers may begin using the approved non-evidential screening devices. We emphasize that these devices may be used only for alcohol screening tests. Confirmation tests must be performed on EBTs. To the greatest extent feasible, we have drafted these procedures to incorporate the same basic requirements as the existing alcohol testing procedures. This makes the procedures simple and achieves the flexibility that is the goal of using non-evidential devices. Comments and Responses As of the close of the comment period, the Department received 23 comments on the January 17, 1995, notice of proposed rulemaking (NPRM) for this rule (60 FR 3371). Ten of these comments were from employers or employer associations, another 10 were from manufacturers or distributors of breath testing equipment, and three were from other testing industry participants. The comments focused on several issues. Interval Between Screening and Confirmation Tests In the NPRM leading to the February 15, 1994, final rule on alcohol testing procedures (57 FR 59416; December 15, 1992), the Department proposed a 15-minute waiting period before the confirmation test. The purpose of this waiting period was to ensure that residual mouth alcohol did not artificially raise the confirmation test result. The Department had considered, [[Page 19676]] and asked for comment on, the idea of requiring such a waiting period before all screening tests, but we decided against proposing such a requirement because it would waste employers' and employees' time in the great majority of screening tests that we expect to be negative. Because the Department believed, and notable forensic experts in the alcohol testing field agreed, that the confirmation test should follow the screening test as immediately as possible, the Department proposed a maximum of 20 minutes (i.e., no more than 5 minutes beyond the 15-minute waiting period) between the two tests. The NPRM said that-- The purpose of establishing a maximum limit for the waiting period is to prevent the manipulation of confirmation results by affording time for the metabolism of alcohol so that results will be lower than first recorded on the initial test. Should there be greater flexibility in the timing of confirmation tests? (Id.) In the final rule (59 FR 7351; February 15, 1994), the Department retained the 15-20-minute interval between the screening and confirmation tests. The preamble discussion of this issue was as follows: There were 29 comments concerning the waiting period before the confirmation test, fifteen of which supported the 15-minute minimum time proposed in the NPRM. Four comments wanted a shorter interval (e.g., two or five minutes) and four supported a longer interval (e.g., 20 or 30 minutes). Two comments opposed any requirement concerning an interval. Six comments either wanted no maximum waiting time or preferred to rely on the employer's or EBT manufacturer's discretion. The waiting period is important. It is intended to give the employee the opportunity to ensure that any residual mouth alcohol does not influence the result of the confirmation test. According to the Department's information, fifteen minutes is the minimum period after which one can be confident that any residual mouth alcohol has disappeared. A shorter interval is not feasible for this reason. At the same time, waiting a long period between tests can be costly in terms of lost employee time and could influence the outcome of the confirmation test. In order to guard against lengthy delays in the performance of confirmation tests, which can allow alcohol concentration levels to fall, the final rule retains the 20-minute maximum. It should be pointed out that failing to observe the minimum 15-minute period is a ``fatal flaw'' (see Sec. 40.79(a)), automatically invalidating a test. This is because the Department believes it is important to prevent artificially high readings due to mouth alcohol residue. However, taking longer than 20 minutes between tests is not a ``fatal flaw.'' The Department is aware that circumstances may sometimes result in stretching the time between tests for a few additional minutes. (Id.) In establishing the 15-20-minute interval, then, the Department considered and decided the issue based on a specific request for and review of comments. In the NPRM leading to this final rule, the Department again addressed this issue. Confirmation tests must be performed on EBTs, within 20 minutes of the screening test, as provided in existing 49 CFR 40.65(b). The Department is aware that increasing this interval for situations in which non-evidential devices are used could provide additional flexibility to employers, by increasing the distance that a non- evidential screening test could be conducted away from a confirmation EBT. However, as noted in the preamble to the February 15, 1994, final Part 40 rule, conducting the confirmation test within a brief time from the screening test is important to prevent metabolization of alcohol over time from negating what would otherwise be ``positive'' test results. This is no less true in a case where the screening test is conducted on a non-evidential device than where the screening test is conducted on an EBT. For this reason, the Department is not proposing to increase this interval, though we seek comment on the degree to which an increased interval between screening and confirmation tests could increase the utility of non-evidential devices, without concomitant loss of otherwise positive tests. (60 FR 3371; January 17, 1995.) The Department received 11 comments on this issue. Four of these comments, all from breath testing equipment manufacturers or distributors, recommended retaining the 15-20-minute timeframe for completing tests. One commented that even a brief increase (e.g., five minutes) in the interval could result in losing otherwise positive results. Seven comments (5 employers or employer associations and 2 testing service providers) recommended increasing the interval. The longer intervals they suggested included 30 minutes, one hour, and two hours. Their basic rationale was that if employers had to get an employee from a field site where a non-evidential device was used for a screening test to a site where an EBT was available within 20 minutes, it would deter the use of non-evidential screening devices and limit the cost savings and increased flexibility that would result from using such devices. Two of the comments said that the loss of otherwise positive tests could be a small one. The Department established consequences for employees testing at the .02 and .04 alcohol concentration levels because even these low levels of alcohol concentration can adversely affect the performance of safety-sensitive functions by transportation employees. If, because long periods of time intervene between screening and confirmation tests, significant numbers of individuals with such alcohol concentrations are able to avoid the consequences of their conduct, the deterrent effects and safety benefits of the alcohol testing rules will be reduced. Consequently, to help determine its response to the comments on this issue, the Department obtained further information about the effects of lengthier delays on tested alcohol concentration. According to this information, most people (male and female) appear to eliminate alcohol in a range between 0.01 and 0.02 percent per hour. This is the range most forensically accepted and commonly cited. Individual employees' results will, of course, have individual differences based on such factors as gender, body weight, acquired tolerance for alcohol, etc. The following chart displays this data. The chart starts with a screening test alcohol concentration, at the moment the screening test result is obtained. It then shows what the predicted range of confirmation tests results would be after a 30-120 minute interval, assuming (as is very likely to be the case in most instances) that the individual's alcohol concentration is in the declining phase at the time of the screening test. Screening Test Alcohol Concentration ---------------------------------------------------------------------------------------------------------------- Interval .06 .05 .04 .03 ---------------------------------------------------------------------------------------------------------------- 20 minutes...................................... .053-.056 .043-.046 .033-.036 .023-.026 30 minutes...................................... .050-.055 040-.045 .030-.035 .020-.025 40 minutes...................................... .046-.053 .036-.043 .026-.033","truncated":false,"body_characters":11895}