[Federal Register: October 22, 2008 (Volume 73, Number 205)]
[Rules and Regulations]
[Page 62910-62918]
[DOCID:fr22oc08-19]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST-2003-15245]
RIN 2105-AD55

Procedures for Transportation Workplace Drug and Alcohol Testing
Programs

AGENCY: Office of the Secretary, DOT.

ACTION: Response to comments.

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SUMMARY: The Department is issuing this notice to respond to comments
on the amendment to 49 CFR 40.67(b) issued as part of a final rule on
June 25, 2008. The Department is not changing this amendment, which
will go into effect, as scheduled, on November 1, 2008. Beginning on
that date, direct observation collections will be required for all
return-to-duty and follow-up tests. When additional testing
methodologies appropriate for use in return-to-duty and follow-up
testing (e.g., oral fluid and sweat specimens) are approved by the
Department of Health and Human Services and adopted by the Department,
the Department intends to make these methods available to employers and
employees as an alternative to direct observation urine testing in
these situations.

DATES: The effective date of 49 CFR 40.67(b), as amended by the
Department on June 25, 2008, and delayed on August 26, 2008, is
November 1, 2008.

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),<PHONE_NUMBER> (fax), or<EMAIL_ADDRESS>or Robert
C. Ashby, Deputy Assistant General Counsel for Regulation and
Enforcement, U.S. Department of Transportation, same address, (202)
366-9310 (voice),<PHONE_NUMBER> (fax), or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Background

    On October 31, 2005, the Department of Transportation issued a
notice of proposed rulemaking (NPRM) to amend 49 CFR Part 40, the
Department's drug and alcohol testing procedures rule (70 FR 62276).
The primary purpose of the NPRM was to propose making specimen validity
testing (SVT) mandatory. Mandatory SVT is an important step in
combating the safety problem of cheating on drug tests. Based on this
NPRM, the Department issued a final rule on June 25, 2008 (73 FR
35961). The final rule included two provisions (49 CFR 40.67(b) and
(i)) concerning the use of direct observation (DO) collections, another
significant tool the Department uses to combat cheating.
    Petitioners, including the Association of American Railroads (AAR),
joined by the American Short Line and Regional Railroad Association;
the Transportation Trades Department (TTD) of the American Federation
of Labor and Congress of Industrial Organizations (AFL-CIO); the
International Brotherhood of Teamsters; and the Air Transport
Association (ATA), joined by the Regional Airline Association (RAA),
asked the Department to delay the effective date of these two
provisions, seek further comment on them, and reconsider them. In
response to these petitions, the Department issued a notice delaying
the effective date of 49 CFR 40.67(b) until November 1, 2008 (73 FR
50222; August 26, 2008). We opened a comment period on that provision,
which closed on September 25, 2008. The Department did not delay the
effective date of 49 CFR 40.67(i), which went into effect, as
scheduled, on August 25, 2008.
    The history of DO collections under Part 40 goes back to the
beginnings of the Department's drug testing program. The principle that
animates this history is that DO, because it is intrusive, is not
appropriate to use in the great mass of testing situations (e.g., all
pre-employment and random tests), but only in those situations in which
there is a heightened incentive to cheat or circumstances demonstrating
the likelihood of cheating. In this way, the Department has maintained
the proper balance between the legitimate privacy

expectations of employees and the safety and program integrity
interests of the Department. As a result, DO collections constitute
only a tiny percentage of the drug collections conducted each year
under DOT drug testing rules. DO collections have always required the
use of a same-gender observer and for the observer to watch the flow of
urine from the individual's body into the collection container.
    In the December 1, 1989, preamble to Part 40 (54 FR 49854), we said
that the limitations on using observed collections in only four
circumstances would be maintained despite the fact that some comments
requested that the Department allow greater discretion for observed
collections. The Department decided that ``existing safeguards in Part
40 are adequate to prevent tampering and that direct observation,
because of its increased intrusiveness, should be strictly limited.''
The Department considered that limiting the circumstances that would
result in a DO collection is ``one factor in the balance between
privacy and safety necessity considered by the courts.''
    The preamble went on to say that some commenters specifically
opposed direct observation ``as part of follow-up (i.e., post-positive)
testing, while other commenters favored this practice.'' We said that
the Department ``believes that direct observation may be a useful tool
in follow-up testing.'' There was concern expressed about drug use
relapses, especially for cocaine. We went on to say, ``An individual
who has returned to work after rehabilitation but has suffered such a
relapse may have a greater incentive to attempt to beat a follow-up
test, because the employer may not provide a second opportunity for
rehabilitation.'' Regarding directly observed follow-up testing, the
preamble concludes, ``If the employer or EAP [employee assistance
program] counselor believes that this may be the case, the opportunity
for direct observation should exist.''
    Currently, section 40.67(a) requires that employers direct
immediate collections under direct observation in three circumstances:
(1) When the laboratory reported an invalid specimen (e.g., one that
has an interfering substance preventing a normal result but the
laboratory cannot identify a specific adulterant) and the Medical
Review Officer (MRO) reported that there was not an adequate medical
explanation for the result; (2) when the MRO reports to the employer
that the original positive, adulterated, or substituted test result had
to be cancelled because there was not a split specimen available for
testing; and (3) when the MRO reports a negative-dilute specimen with a
creatinine concentration greater than or equal to 2 mg/dL or less than
or equal to 5 mg/dL. We added the third provision in 2003 in an interim
final rule (68 FR 31624) and revised it in an interim final rule (69 FR
64865). All these situations involve results indicating a heightened
risk of cheating or that an attempt to cheat had taken place.
    Direct observation is also mandated at collection sites if the
collector finds materials brought to the collection site to tamper with
a specimen (section 40.61(f)(5)(i)), determines that a specimen is out
of temperature range (section 40.65(b)(5)) or detects other evidence
indicating an attempt to tamper with a specimen (section 40.65 (c)(1)).
These are also situations involving evidence indicating an attempt to
cheat. In addition, employers are currently allowed, but not required,
to order a directly observed test under section 40.67(b) for return-to-
duty and follow-up tests.
    We acknowledge that DO collections are, and always have been,
controversial. The Department is well aware that they intrude on
personal privacy to a greater extent than non-observed collection
methods, and consequently we have limited the use of DO to situations
where we believe using this approach is necessary to protect the
integrity of the testing process and strengthen the safety objectives
of the program. In the December 19, 2000 preamble to a major update to
part 40 (65 FR 79462), about observed collections we said, ``Directly
observed specimens are controversial because of their greater impact on
employee privacy. They can be useful because they reduce the
opportunity for tampering. On privacy grounds, some commenters,
including unions and some service agents, would prefer not to conduct
directly observed collections at all.'' (65 FR at 79489) These
commenters opposed adding any situations in which direct observation
was authorized or required.
    The 2000 preamble went on to say, ``Other commenters said that the
benefit of greater protection against specimen tampering warranted
direct observation in situations that suggested a heightened risk of
tampering.'' (65 FR at 79489) The Department agreed with these
commenters. In circumstances that pose a higher risk or greater risk
for tampering, ``the interests of the integrity of the testing process,
with its safety implications, outweigh the additional privacy impact of
the direct observation process.'' (65 FR at 79489-79490)
    More recently, there has been a sharply increased emphasis, at the
level of national policy, on the problem of cheating and how to deal
with it. The Department has been aware for several years of the
increasing proliferation of products designed and sold to help workers
who use drugs defeat drug tests. As a result we have worked on specimen
validity testing rulemaking.
    Also, based upon our concerns and those expressed to us by
collection site personnel and medical review officers about use of
these products, we issued in July 2007 an interpretation outlining
additional examples of an employee's failure to cooperate with the
testing process that would cause a refusal to test. In that
interpretation we said that one refusal to test would be: ``The
employee is found to have a device--such as a prosthetic appliance--the
purpose of which is to interfere with providing an actual urine
specimen.'' We also gave instructions to collectors about how to handle
this situation.
    Not only was the Department working on the specimen validity
testing rulemaking between 2005 and 2008, but also the United States
Congress was conducting its own inquiries on the issues. During a May
17, 2005 hearing before the Investigations Committee on Energy and
Commerce, the Department of Health and Human Services (HHS) provided
the following testimony regarding prosthetic devices delivering
synthetic or drug-free human urine:

    The most cumbersome, yet highly effective, way to beat a urine
drug test is to use a physical belt-like device hidden under the
clothing which contains a reservoir to unobtrusively hold real human
urine from another person that is free from drugs, and deliver that
bogus specimen into the collection container through a straw-like
tube, or through a prosthetic device that looks like real human
anatomy, color-matched. This last described device is heavily
marketed for workplace drug testing and criminal justice urine
collection situations that require directly observed urine specimens
to be provided. Synthetic urine can be used in place of real human
drug free urine. [Testimony before the Subcommittee on Oversight and
Investigations Committee on Energy and Commerce United States House
of Representatives Products Used to Thwart Detection in Drug Testing
Programs, Statement of Robert L. Stephenson II, M.P.H., Director,
Division of Workplace Programs Center for Substance Abuse
Prevention, Substance Abuse and Mental Health Services
Administration, U.S. Department of Health and Human Services at
pages 4-5].

    Also at the 2005 hearing, the United States Government
Accountability Office (GAO) testified that:

    In summary, we found that products to defraud drug tests are
easily obtained. They

are brazenly marketed on Web sites by vendors who boast of
periodically reformulating their products so that they will not be
detected in the drug test process. In addition to an array of
products designed to dilute, cleanse, or substitute urine specimens
submitted to testers by drug users, approximately 400 different
products are available to adulterate urine samples. The sheer number
of these products, and the ease with which they are marketed and
distributed through the Internet, present formidable obstacles to
the integrity of the drug testing process. [Testimony Statement of
Robert J. Cramer, Managing Director, Office of Special
Investigations, the United States Government Accountability Office
(GAO), before the Chairman, Subcommittee on Oversight and
Investigations, Committee on Energy and Commerce, House of
Representatives, GAO-05-653T, May 1, 2005].

    On November 1, 2007, following media coverage regarding compromised
collection integrity and security issues, the Congressional
Subcommittee on Transportation and Infrastructure held a hearing on the
problem of cheating on DOT-required tests. At the hearing, the GAO
testified about the threat to the integrity of the testing program
posed by the devices being used to substitute urine in DO collections.
In its final report issued in May 2008, the GAO noted that the ease of
subverting the testing process was a factor contributing to failures to
detect drug use. Specifically, GAO noted that transportation employees
``are successfully adulterating or substituting their urine specimens
with products that are widely available and marketed as * * * [ways to
beat a test.]'' [GAO Report No. GAO-08-600, Motor Carrier Safety:
Improvements to Drug Testing Programs Could Better Identify Illegal
Drug Users and Keep them off the Road, May 2008 at pages 2-3.] The GAO
further found that ``Several hundred products designed to dilute,
cleanse, or substitute urine specimens can be easily obtained.'' [GAO
Report No. GAO-08-600 at page 20.]
    In light of the by-now well-recognized availability of substances
and devices for substituting or adulterating specimens, the
Department's premise for the changes it made to section 40.67 was that
taking additional steps to combat cheating on drug tests was
appropriate. Such steps are needed to avoid placing the traveling
public in danger of workers who try to cheat on their drug tests. Given
the greater availability of means to cheat on tests, compared to the
late 1980s, the Department took the position in the June 25 final rule
that it is appropriate to strike the balance between the Department's
interests in safety and program integrity and employees' interest in
privacy at a different point than it did two decades ago.
    In the Omnibus Transportation Employee Testing Act of 1991,
Congress recognized that, while privacy is a very important value in
the drug testing process, it is not an absolute value. The Act directs
the Department to ``promote, to the maximum extent practicable,
individual privacy in the collection of specimens'' (49 U.S.C.
20140(c)(1), emphasis added). In issuing the June 25 final rule, the
Department, took the position that it is no longer ``practicable'' to
operate a drug testing program without adding countermeasures to well-
publicized cheating techniques and devices.
    With respect specifically to the new section 40.67(b), the
Department, in the June 25 final rule, said that DO collections would
be required for all follow-up and return-to-duty tests. The new
requirement, aimed at counteracting cheating in these tests, was
included as section 40.67(b). It read, ``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.'' Under Part 40 as
it existed before this amendment, employers had the discretion to
require direct observation in follow-up and return-to-duty tests, but
were not mandated to do so. It is significant that employers rarely
exercised this important option.
    Notably, the November 1, 2007 GAO report indicated that even when
collectors followed the appropriate procedures for integrity and
security of specimens, the GAO inspectors were able to bring
adulterants into the collection sites and successfully adulterate their
specimens. These adulterants went undetected during laboratory testing.
The GAO report said:

    Even in cases where the collector followed DOT protocol and
asked our investigator to empty his pockets, our investigators
simply hid these products in their pockets and elsewhere in their
clothing.* * * Investigators determined that there is information on
the Internet about concealing drug-masking products. For example,
one Web site noted that ``although most testing sites will require
you to remove items from your pockets, it is still possible to sneak
in another specimen.''

    In the Department's view, this new requirement mandating DO for
return-to-duty and follow-up testing was a logical outgrowth of the
development of the Department's increasing efforts to deal with the
problem of cheating in drug tests. Even though we did not foresee in
1989 the degree to which products designed to beat the drug test would
later become available, the Department was concerned about specimen
tampering and about the heightened motivation of those employees
returning to safety sensitive positions after positive tests or
refusals to tamper with their specimens. That concern has increased in
recent years as information about the widespread availability of
cheating products has become available.
    As a consequence, the Department believed, in adding this
provision, that it was important for us to be consistent with the other
DO collection provisions, which make DO collections mandatory in
circumstances involving heightened motivation for or evidence
suggesting attempts to cheat (see sections 40.61(f)(5)(i); 40.65(b)(5)
and (c)(1); 40.67(a)). In all these cases, use of DO is mandatory. If
safety necessitates a DO in one of these circumstances, then, the
Department believed, safety likewise necessitates DO collections as
part of follow-up and return-to-duty tests. The Department was mindful
that everyone who has to take a return-to-duty or follow-up test had
already violated the rule (e.g., by testing positive or refusing to
test), showing that he or she has knowingly chosen to act in a way that
presents an increased risk to transportation safety. Such employees
will be acutely aware that they must test negative on all return-to-
duty and follow-up tests in order to regain or retain their ability to
perform safety-sensitive functions. These circumstances, the Department
believed, present just the sort of heightened incentive for cheating on
a test that DO collections are intended to combat.
    It was but a modest, incremental step from the current regulation's
authorization of DO in follow-up and return-to-duty situations to the
June 25 final rule's requirement for DO in these situations.
Consequently, the Department believed that taking this step was timely
and appropriate. Nevertheless, the NPRM had not specifically requested
comments on this subject, and the Department consequently opened a
comment period on this provision and delayed its effective date until
November 1, 2008.
    In considering all issues regarding drug testing, the Department
keeps squarely in mind the vital safety purposes of its program. Recent
multi-fatality transportation accidents in which drug use by safety-
sensitive personnel was involved underline the importance of deterring
use of illegal drugs by transportation workers. When workers who use
drugs believe they can get away with their misconduct by cheating, the
deterrent effect of the

Department's rules is undermined. This is detrimental to public safety,
and the Department cannot tolerate it.

Comments and DOT Responses

    The docket includes 86 comments. The breakdown of comments by
source is the following:

Substance Abuse Professionals: 20
Unions or other employee organizations: 17
Collection sites or collection site organizations: 16
Individual employees: 10
Other individuals: 9
Employers or employer organizations: 9
Third-party Administrators: 3
Laboratories: 1
Medical Review Officers: 1

Some union and employer commenters are represented twice in this
breakdown (e.g., because the docket includes a petition requesting an
opportunity for further comment and an additional comment from the same
organization once the docket was opened). Many of the individual
comments from employees and others were submitted anonymously.

Comments on Direct Observation Procedure (Section 40.67(I))

    The August 26, 2008, notice opening a comment period sought
comments only on the provision of section 40.67(b) that would make DO
mandatory, rather than optional, in follow-up and return-to-duty
testing. The notice specifically said that comments were not sought on
the provisions of section 40.67(i). This section, which went into
effect August 25, 2006, requires observers in directly observed
collections to direct employees to raise and lower clothing and turn
around, so that the observer can note any prosthetic or other device
that the employee may possess in an attempt to cheat on the test.
    Nevertheless, a number of parties did comment on 40.67(i). One
union and a comment from two employer organizations said that the
Department should have postponed the effective date for this provision
and opened a comment period, since in their view the notice of proposed
rulemaking leading to the June 25 rule did not provide sufficient
notice concerning the provision. Twenty commenters, mostly unions and
individual employees, but also including a few collection sites,
objected to the idea of the revised observation procedure, saying that
it was too great an intrusion on employees' privacy. Many of these
commenters also said that there was insufficient evidence that people
in transportation industries were actually using prosthetic and other
devices, and that therefore the Department's countermeasure was
unnecessary. Two commenters expressed the concern that the rule could
create confusion among collectors between cheating devices and
medically-necessary prostheses, or devices used as a form of sexual
expression, with the result that users of legitimate devices could
unfairly be determined to have refused to test. Two Substance Abuse
Professionals (SAPs) who commented on the provision and a Third Party
Administrator (TPA) supported its inclusion, as a useful measure to
counter attempts to cheat.

DOT Response

    Because matters concerning section 40.67(i) are outside the scope
of the August 26 notice, these comments are not relevant to the
decision the Department is making in this document: whether the
provisions of section 40.67(b) should be retained, removed, or
modified.
    We would note, however, that the basic procedure of body-to-bottle
direct observation of certain tests involving a heightened risk of
cheating, or evidence of a possible attempt to cheat, has been part of
the Department's testing procedure since the program's beginnings in
the 1980s. As attempts to cheat even on direct observation tests have
become more sophisticated over the years--the Department's 1988-89
testing procedure rules did not need to take prosthetic and other
cheating devices into account, in particular--it is important for the
Department's procedures to change to accommodate new circumstances.
People who believe they can use cheating devices to get away with using
illegal drugs while continuing to perform safety-sensitive functions
are a threat to public safety.
    Some commenters argued that the Department has not provided data on
how often prosthetic and other cheating devices are being used, so the
Department need not take measures to prevent their use. The anecdotal
evidence provided by several commenters to the docket, along with
experience the Department has gained through the compliance activities
of the DOT Agencies, provides sufficient justification to us that such
devices are not only readily available, but are actually being used.
The successful use of prosthetic and other cheating devices is, by
nature, a matter of stealth. If someone uses such a device, and gets
away with it, the drug test result will be a negative test result.
Consequently, the cheater's action will never turn up in drug testing
statistics. It is illogical to argue that the Department cannot take
action to prevent cheating because successful cheating is absent from
the program's statistics.
    The Department disagrees with commenters who said that there was
insufficient notice of this anti-prosthetic provision in the NPRM. The
Department explicitly sought comment in its October 2005 NPRM (70 FR
62281) on whether collectors should check to make sure that employees
providing a specimen under DO are not using a prosthetic or other
device to cheat on the test (e.g., by having an employee lower his
pants and underwear so that the collector or observer could determine
whether the employee was using such a device). This notice fully meets
the requirement of the Administrative Procedure Act (APA) for a
meaningful participation from the public by fairly apprising interested
persons of the issues in the rulemaking. While DOT and agencies
commonly do publish proposed rule text, there is no statutory
requirement in the APA to do so, and doing so is not a mandatory
prerequisite to issuing a final rule. A ``description of the subjects
and issues involved'' (5 U.S.C. 553(b)(3)) is sufficient. That the
notice did provide interested persons a meaningful opportunity to
comment on this issue is evidenced by the comments that the Department
in fact received.
    In the preamble to the Department's final rule based on this NPRM
(73 FR 35968), the Department responded to comments on this proposal.
This response set forth the Department's rationale for adopting the new
provision, found in section 40.67(i), requiring employees to raise and
lower their clothing to show the collector or observer that the
employee does not possess a prosthetic or other device designed to beat
the test.
    The Department has fully explained in regulation text, guidelines,
and supportive materials that the devices subject to the new procedures
would be those expressly designed to interfere with the collection
process (e.g., designed to carry ``clean'' urine or urine substitutes
into the collection site). Likewise, our guidelines have always had
provisions for those employees whose medical conditions require them to
provide urine via indwelling catheters or external urine bags.

Comments Favoring Mandatory Direct Observation Testing on Return-to-
Duty and Follow-Up Tests

    The Department received 29 comments favoring the concept of DO
collections in general and/or the mandatory application of DO to
follow-up and return-to-duty testing. The

majority of these comments were from SAPs, though a few collection
sites, a testing industry association, an MRO, an employer, and a few
individuals took this view as well. The common theme among these
commenters was that conducting direct observations on return-to-duty
and follow-up tests is important to safety.
    SAP commenters generally said, based on their personal experience
of working with individuals who had failed or refused drug tests, that
people with addiction or other substance abuse problems had a great
deal of difficulty in changing their behavior. They often exhibit
denial of their problems and have a powerful drive to cheat in order to
continue using the substances to which they are attached while
continuing to work. One of the SAPs commented that for an individual
who had failed or refused a drug test, being subject to DO and a
return-to-duty or follow-up test is a consequence of substance abuse
problems and/or a violation of Federal law, and as such was justified.
Some commenters pointed to the fact that many treatment programs use
direct observations for their own testing during rehabilitation, so
many who have undergone treatment would expect direct observations.
    A number of SAPs indicated that when they recommended DO, employers
responded by saying they would not have employees observed. Some
employers were alleged to have stopped using SAPs who made these
recommendations. In essence, SAPs said that employers were undermining
the entire purpose of having the DO option. For this reason, one SAP
recommended that any violation related to an employee's attempt to beat
the test by adulteration, substitution, or other refusal should be met
with long-term, if not permanent, removal from safety sensitive duties.
    The collection site organization that commented noted that DO
collections make up a very small number of all DOT tests and can be an
effective deterrent against cheating on return-to-duty and follow-up
tests. One SAP commented that making DO mandatory in the return-to-duty
and follow-up contexts would counteract what he viewed as hesitancy on
the part of many employers under the present discretionary rule. This
timidity, in his view, has led to a significant amount of cheating on
these tests. Finally, some employer associations, while objecting to
making DO mandatory for all follow-up and return-to-duty tests,
supported requiring DO when the follow-up and return-to-duty tests
resulted from a refusal to test, as distinct from a positive test.

DOT Response

    The Department believes that the expertise of SAPs--the individuals
in the drug testing system who most often have first-hand, day-to-day
observation of the individuals who violate DOT drug testing rules and
the behaviors and motivations of these individuals--carries a great
deal of weight in this discussion. They are the ``Gatekeepers'' of the
return-to-duty process. SAPs have the education, qualifications, and
experience that vest them with a significant role in evaluation,
treatment, return-to-duty recommendations, and follow-up testing plans
of the individuals who have violated Part 40 through their refusals
and/or positive test results. Their nearly unanimous view that DO
collections, particularly in the context of return-to-duty and follow-
up testing, is a necessary and appropriate response to the predictable
behaviors of many violators strongly supports the Department's view
that there is a heightened risk of cheating by individuals who are
seeking to reclaim or retain the ability to perform safety-sensitive
work after a violation.
    We also agree with SAPs who pointed out that individuals in
recovery often need support to help them in their efforts to remain
abstinent from drugs. They point out that people with substance abuse
problems or who suffer from addiction are prone to having problems
dealing with their drug use and in changing their drug use behavior,
even after rehabilitation. In short, these employees are prone to
relapse into drug use. We agree with SAPs who believe that DO
collections would help these employees in their struggle to stop drug
use.
    We also agree with SAPs comments indicating that drug treatment and
education programs require DO collections during their program efforts.
Therefore, most employees coming back into the workplace after testing
positive or refusing a DOT test would be accustomed to having their
collections observed.
    Employees who fail or refuse a drug test, and who are offered the
opportunity by their employer to return to work, are frequently covered
by a ``last chance agreement,'' a ``two strikes and out'' policy that
means that a second violation will result in the individual being
fired. In the aviation industry, the statutory ``permanent bar'' means
that employees who fail a second test will never work in a particular
occupation again. Where an individual cannot resist the powerful pull
of drug dependence, and realizes that a positive result can cost him or
her a job or even a career, cheating using one of the readily available
techniques can prove an attractive option.
    We agree with the point that tests requiring DO collections make up
only a small percentage of all DOT drug tests, and hence do not affect
the vast majority of workers who take and pass DOT drug tests. We want
to correct the misunderstanding of some commenters, who appeared to
believe that all DOT tests would be directly observed under the new
rules. To the contrary, people taking pre-employment, random,
reasonable suspicion, and post-accident tests are not subject to DO,
unless their actions trigger a suspicion that they are trying to cheat.
The only workers who are affected by DO testing are those who by their
conduct at the collection site or by the results of their tests have
demonstrated that they are willing to endanger public safety through
violating Federal law prohibiting illegal drug use. As a joint comment
from two employer associations noted, the propensity to avoid
accountability for drug use is particularly marked among individuals
who refuse to take a drug test.

Comments Opposing Mandatory Direct Observation Testing on Return-to-
Duty and Follow-Up Tests

    Sixteen commenters, including several unions and a number of
individuals, opposed DO in general. They said it was too intrusive,
violated employees' privacy, and would work a particular hardship on
people who had anxiety disorders that made it difficult for them to
urinate when someone was watching. A number of union commenters also
said that they believed that expanding the scope of mandatory DO
testing to all follow-up and return-to-duty tests would exceed the
Department's constitutional authority as outlined in the 1989 Supreme
Court case (Skinner v. Railway Labor Executives' Association, 489 U.S.
602 (1989)) that upheld the constitutionality of Federal Railroad
Administration (FRA) drug testing requirements applying to the rail
industry. In addition, some of these comments cited the provision of
the Omnibus Transportation Employee Testing Act of 1991 directing the
Department to ``promote, to the maximum extent practicable, individual
privacy in the collection of specimens'' (see 49 U.S.C. 31306(c)(1) and
parallel sections).
    Three unions suggested that DO testing was not needed for return-
to-duty and follow-up tests because employees who had tested positive
had, in effect, shown themselves to be

willing to submit to testing without cheating. The unions reasoned that
these employees were not the sort of people who had the motivation or
propensity to cheat on tests. Moreover, one of the unions said,
employees it represented must go through a detailed SAP evaluation
process as well as vetting by DOT before returning to duty, so are
likely to be drug-free.
    One of the most frequent comments made by commenters opposing the
mandatory use of DO for return-to-duty and follow-up tests was that
there was insufficient evidence of the need to take this step. Sixteen
comments, mostly from unions and some employer groups, took this view.
One union said that the low overall violation rate and the small number
of recorded cases of adulteration and substitution showed that DO
collections were not needed. In addition, the commenter said,
individuals had shown a SAP that they were successfully rehabilitated
by the time they got to the follow-up test stage of the process. Four
other unions said that there was no evidence demonstrating a higher
level of adulterated or substituted tests in the return-to-duty and
follow-up contexts, and there was no documentation that transportation
employees actually used prosthetic and other cheating devices, or that
DOT agency personnel had not seen evidence of cheating.
    Eleven commenters, among which were unions, employers or employer
associations, and collection sites or TPAs, urged the Department to
retain the existing rule that makes the use of DO an employer option in
the follow-up and return-to-duty contexts. One union said that DO
should not be required for follow-up and return-to-duty tests unless
there were specific findings or medical determinations backing the
requirement for a given employee. Two other unions suggested that SAPs
were in a good position to determine when DO was appropriate for an
individual subject to return-to-duty and follow-up tests, and their
findings could be a basis for such a decision. Another union suggested
that the employer's designated employer representative (DER) could
appropriately make this decision. On the other hand, two unions and a
collection site operator said that, under existing DOT rules and
guidance, DERs had too much discretion to direct that a test be
conducted under DO.
    Twelve commenters, mostly collection sites, expressed the concern
that they would be unable to find enough people to act as observers.
The rule requires observers to be the same gender as the employee being
tested, they noted, and their experience was that most or all
collection site personnel were women while most employees reporting for
testing were men.
    Seven commenters said that making DO mandatory in follow-up and
return-to-duty testing would significantly increase the total number of
DO collections. One employer association said that of the approximately
4000 such tests in its industry, employers found it necessary to use DO
only rarely. A large employer said it chose to use DO in only a small
number of the approximately 1200 return-to-duty and follow-up tests it
administered per year. Another employer association predicted that the
number of DO collections would double. A union projected that there
would be a dramatic increase in the number of employees subject to DO
tests and the number of such tests conducted, if all follow-up and
return-to-duty tests are directly observed. Some commenters said that
there would be increased costs, since in many cases a second person,
other than the collector, would have to be paid to observe the tests.
Five commenters, including a TPA, two collection sites, an employer,
and an individual, said they feared that mandatory DO in follow-up and
return-to-duty testing would lead to a decrease in the availability of
collection facilities. Two commenters said that the prospect of
additional costs had already persuaded a few collection sites to stop
doing DOT testing.
    In other comments, a TPA expressed concern that mandatory DO would
lead employers to fire people rather than giving them a chance to
return to work, because of extra costs of DO testing. A collection site
said that only medical personnel should be observers in DO collections,
while another collection site organization said that employer
representatives should be able to act as observers.

DOT Response

    The Department agrees with commenters that DO collections are
intrusive. The Department's rule has always recognized that there is a
subset of cases in which this intrusion is justified in the interests
of program integrity and public safety. When employees' conduct at the
collection site shows the likelihood of an attempt to tamper with a
specimen, when unexplained invalid test results come back from the
laboratory, or when employees test positive or refuse to take a test,
the Department's regulations have always recognized that there is a
higher risk of cheating and a higher risk to safety. In these
situations, the Department's existing rules require or permit the use
of DO testing in order to deter and/or detect attempts to cheat.
    The Supreme Court's decision in Skinner held that the FRA's post-
accident drug testing program for railroad employees was
constitutional, notwithstanding the absence of individualized suspicion
of drug use by employees subject to testing. A companion case (National
Treasury Employees' Union v. Von Raab, 489 U.S. 656 (1989)) concerning
the testing of Federal customs personnel and a subsequent case
concerning the Federal Aviation Administration's (FAA) drug testing
program (Bluestein v. Skinner, 908 F.2d 451 (9th Cir., 1990), cert.
denied 498 U.S. 1083 (1991)) made similar findings with respect to
random testing programs. All of these cases found that Federally
mandated drug testing was subject to 4th amendment scrutiny but that
the Federal agencies involved had successfully struck a balance between
the safety needs of the government and the privacy interests of
employees.
    The courts in Skinner and Von Raab noted that the FRA's testing
program avoided additional intrusion into employees' privacy by not
using direct observation. Indeed, the FRA and Customs programs, like
the current DOT program, did not use DO for all tests, as the
Department of Defense program for military personnel does. Nothing in
the decisions, however, suggests that the courts would regard any and
all use of DO as unconstitutional on its face. In fact, Bluestein
pertained to the FAA's drug testing program that was subject to 49 CFR
Part 40 which, as noted above, has always made use of DO. In
determining whether requiring, rather than merely permitting, the use
of DO in return-to-duty and follow-up exceeds constitutional bounds, it
is reasonable to believe that courts would continue to examine whether
the Department had appropriately balanced the government's compelling
safety interest with the legitimate privacy interests of employees.
[See Gonzales v. Metropolitan Transportation Authority, 73 Fed. Appx.
986, 2003 WL 22006014 (9th Cir. August 25, 2003) (compelling interest
in public safety supports random testing of employees who only very
rarely perform safety-sensitive functions).] Given that the precise
place where the Department strikes this balance can properly be
affected by changes in society, such as the greater prevalence of
cheating devices and products now compared to the 1980s, the Department
believes it likely that the courts would find that the Department had
acted constitutionally.

    The privacy provision in the Omnibus Transportation Employee
Testing Act gives discretion to the Department to determine the maximum
extent to which the protection of individual privacy in the testing
process is practicable. Part 40 has always contained extensive
protections for individual privacy in the testing process. However,
given the now-widespread availability and promotion of cheating devices
and products, the purpose of which is to allow employees to conceal
their illegal drug use while continuing to perform safety-sensitive
functions, it is not practicable to turn a blind eye to the damage that
cheating on drug tests can have on public safety. In the Department's
judgment, it is essential to put into place additional countermeasures
to deter and detect cheating, the likelihood of which has increased in
the years since Part 40 was first adopted.
    The Department gives little weight to the unions' argument that
people who have tested positive are unlikely to try to cheat, simply
because they either apparently did not cheat while providing a positive
specimen the first time around or have been through the SAP process.
(This argument does not apply at all to people who have refused a test,
since they have already demonstrated their determination to circumvent
the testing process.) Employees in safety-sensitive positions who test
positive have shown a willingness to knowingly disregard public safety
and violate Federal law by using illegal drugs. Employees who know that
they have duties that impact public safety and then engage in illegal
drug use have, by their actions, demonstrated a lack of integrity that
could readily manifest itself in an attempt to cheat on return-to-duty
and follow-up tests.
    In this context, we note that DOT drug program statistics show that
the violation (i.e., positives and refusals to test) rates for return-
to-duty and follow-up tests, in every regulated industry, are higher
than the random testing violation rates. While a number of commenters
asserted that employees who have previously violated the rules were
seen by a SAP, participated in a program, and returned to duty were
less likely to be prone to the temptation of continuing to use drugs or
of adulterating or substituting their specimen on return-to-duty/
follow-up tests, the Management Information System (MIS) data submitted
by all transportation modes indicates that the violation rate for
return-to-duty and follow-up testing is two to four times higher than
that of random testing.
    This situation is starkly illustrated in the aviation and rail
industries, those most frequently represented in comments opposing DO
in return-to-duty and follow-up testing. This data comes from the
Department's MIS reports for 2007:

------------------------------------------------------------------------
                                                    Return-to-
                                           Random      duty    Follow-up
                                         (percent)  (percent)  (percent)
------------------------------------------------------------------------
Aviation...............................        .60       2.12       1.86
Rail...................................        .52        1.2        1.5
------------------------------------------------------------------------

    Put another way, the violation rate on return-to-duty tests is
almost four times as high as the random violation rate in the aviation
industry. The violation rate on follow-up tests is over three times the
random violation rate. In the rail industry, the return-to-duty
violation rate is over twice the random violation rate, while the
follow-up violation rate is nearly three times the random violation
rate. In addition, when employees in these two industries tested
positive on their follow-up tests, the most prevalent drugs identified
were--in order--cocaine, marijuana, and amphetamines/methamphetamines.
    This information supports SAP commenters' views of the motivation
of previous violators to cheat. As SAP commenters pointed out, people
who return to illegal drug use and realize that their jobs are at stake
have strong motivation to take all necessary steps, including cheating,
to avoid another positive result. The motive to cheat exists, widely
advertised cheating devices and substances provide the means, and--in
the absence of DO collections--current procedures for non-observed
collections provide the opportunity. The Department stands by its view
that return-to-duty and follow-up tests involve a heightened risk of
cheating, compared to other testing occasions.
    As noted above in the discussion of section 40.67(i), the
Department believes it is illogical to conclude that a lack of drug
test result data showing use of prosthetic and other devices supports a
conclusion that there is no need for DO tests in follow-up and return-
to-duty tests. Cheating attempts that evade detection, by definition,
are not captured in program statistics. They are likely to be counted
as normal negative test results, and not as adulterated or substituted
tests. In any case, through experience in inspections, investigations,
and during the course of its duties in assisting the public with
complying with Part 40, the Department is aware of many instances of
cheating. The FAA and the Federal Transit Administration, for example,
have found hidden above ceiling tiles empty urine containers and
plastic baggies brought into collection sites. Collectors have reported
finding collection containers, baggies, bottles and plastic tubing
hidden above ceiling tiles and in trash containers. MROs and collectors
have told us about commercial vehicle drivers who used prosthetic
cheating devices and accidentally revealed them to physicians and
collectors shortly after providing their specimens. There are many more
specific instances of cheating that we have become aware of over time.
    While this information is anecdotal rather than statistical, it is
the Department's view that when well-publicized and advertised means of
cheating exist, and we know these means are being used to thwart our
testing program, it is clear that the Department's program is not
immune. Thus, it is reasonable for the Department to take steps to
deter and detect the use of cheating devices.
    At the time the Department initiated its drug testing program in
the late 1980s, it was common for unions and other opponents of testing
(including those whose challenges to the program were rejected by the
courts in cases like Skinner, Bluestein, and Von Raab) to argue that
the Department had no basis for its testing program because the
Department had not proven by statistics or otherwise that there was
really a drug abuse problem in the transportation industries. The
Department replied that, when public safety was at stake, the
Department could not take the risk of assuming that transportation
workers were immune from a society-wide problem. Likewise, the
Department cannot, in keeping with its public safety responsibilities,
assume that means of cheating made widely available are somehow never
used by transportation workers, especially when our experience
demonstrates otherwise.
    The Department does not intend to depend solely on DO testing to
combat the problem of cheating. The June 25 final rule made specimen
validity testing (SVT) mandatory for all DOT specimens. The Department
has provided additional guidance to collection sites on maintaining the
appropriate safeguards against cheating, mailing to over 24,000
collection sites ``DOT's 10 Steps to Collection Site Security and
Integrity'' posters. The Department has explicitly supported
legislation to strengthen program integrity, such as criminalizing the
sale of cheating products and providing DOT agencies with civil penalty
authority to sanction collection sites and other

service agents who do not carry out the rules properly. While these
steps are important, they do not replace DO testing as a means of
deterring and detecting cheating at the collection site when there is a
heightened risk of cheating.
    Some comments said that large employers or groups of employers
choose to conduct DO testing on only a few follow-up and return-to-duty
tests. The employer option in previous versions of Part 40 was intended
to give employers the chance to make careful, case-by-case,
determinations of whether DO was appropriate for particular employees
undergoing these post-violation tests, using their discretion wisely to
protect against cheating that undermines the deterrent effect of the
testing program (We note with interest that some union commenters
suggested that, under present rules, it would be appropriate for an
employer to require DO in follow-up and return-to-duty testing based on
the findings of a SAP or a designated employer representative.) To the
extent that employers are not taking responsibility for doing so, and
are instead using the option to avoid using DO in all or most return-
to-duty and follow-up tests (e.g., for reasons of labor-management
agreements, fear of upsetting employees, concern about costs), their
behavior provides additional reason for the Department to mandate DO
for these types of tests.
    For almost 20 years, the rules have required same-gender observers
for DO collections. This requirement has not changed. If some
collection sites are staffed mostly by women at the present time, while
employees being tested are mostly men, the evident course of action for
these sites to follow would be to hire additional men, at least on an
on-call basis, to handle DO duties. Return-to-duty and follow-up tests
are conducted at a day and time set by the employer, so the employer
has ample time to notify the collection site in advance that a same-
gender observer will be needed for a DO collection. As a major drug and
alcohol testing industry association responsible for training many
collectors noted in their docket comment, collectors and collection
facilities must have the ability to perform DO collections in order to
be in compliance with 49 CFR part 40. Collection sites and employers
have had to be ready with same gender observers for two decades.
    It should be noted that observers do not need to be trained
collectors. They need only be able to carry out basic instructions for
the observation process. Being male would be a bona fide occupational
qualification for such a position, such that collection sites could
specifically seek men to play this role without running afoul of equal
employment opportunity laws because most employees requiring
observation are men. We do not believe that people acting as observers
need to be medically trained, as they are not performing any
specifically medical tasks (even trained collectors do not need to be
medical professionals). DOT has produced an instruction sheet about DO
procedures and made it available to all collectors and collection
sites, as well as collector and MRO training organizations.
    The Department also believes that, while there would be some
increase in the number of DO tests, the increase would not be as
dramatic as some commenters asserted. Therefore, the costs to
collection sites and employers would not increase significantly.
    One major drug and alcohol testing association specializing in
collection activities, in their docket comments, estimated that the
Department's new rule would effect less than 2% of employees. Our MIS
data for 2006 shows that return-to-duty and follow-up made up 2% of all
DOT tests. HHS Data for 2006 indicated that there were approximately
7.5 million tests conducted by HHS certified laboratories, of which we
estimate that 7.32 million were DOT tests. That would mean that there
could be approximately 146,400 return-to-duty and follow-up DOT tests
annually. This figure includes those return-to-duty and follow-up tests
already being conducted under DO by employer request.
    The Department estimates that there are more than 24,000 collection
sites throughout the United States. Even if there had been no DO
collections for return-to-duty and follow-up testing, this would
average only an increase of 6 DO collections per site per year. This is
certainly a manageable number. As one testing industry commenter noted,
if a collection site facility is currently required to conduct DO
collections at any time to be compliant with part 40, ``it should not
matter whether they perform 1000 DO collections or 1020 (2% more).''
    The Department recognizes that some collection sites may have to
collect more than that, but then there will be others who will collect
fewer than the average, just as some employers will be responsible for
more than an average number of employees in return-to-duty and follow-
up programs and others fewer than average.
    The Department believes that a wide variety of factors affect an
employer's decision about whether to retain an employee who has
violated the rules, and we consequently doubt that requiring DO in
follow-up and return-to-duty tests will cause a major shift in
employers' decisions about retention. In any case, the Department's
interest is in safety, and we have always left personnel decisions to
employers.
    The Department's experience is that there is a good deal of
turnover in the collection site business, as some sites open and others
close. Having to perform additional DO tests could lead some sites to
leave the business; where there is a market demand for services, others
are likely to take their place. Finally, we believe commenters did not
correctly understand DOT guidance concerning the rule of employers and
DERs in directing collection sites to conduct tests under DO. Employers
and their DERs do not have unfettered discretion to direct collectors
to use DO; they can only do so where the Department's rules require DO
to be used. The Department will review its guidance documents to
determine if any further clarification of this point should be made.

Use of Alternative Specimens

    Fourteen commenters said that, rather than making DO mandatory in
follow-up and return-to-duty tests, the Department should take other,
less intrusive, actions to reduce the likelihood of cheating. One
testing industry association, a collection site, an employer, and a few
individuals recommended that the Department adopt hair or saliva
testing as an alternative to urine testing, believing that these
methods were less vulnerable to cheating. Other suggestions included
tighter supervision of the collection process and better training of
collection personnel and support of anti-cheating legislative proposals
in Congress.

DOT Response

    The Department is not opposed to the use of alternative, less
intrusive, testing methods as a means of accomplishing the safety
purposes of the program while preventing individuals from cheating.
Under the Omnibus Transportation Employee Testing Act of 1991, however,
the Department is authorized to use only testing methods that have been
approved by the Department of Health and Human Services (HHS). To date,
HHS has not approved any specimen testing except urine. To counteract
serious concerns about potential cheating in urine testing, DOT must
therefore rely for now on DO collections in the situations spelled out
in Part 40; this is the tool we have available at this time to ensure
that

cheating does not undermine the safety objectives of the Department's
program.
    However, we know that HHS is in the process of working toward the
approval of updates to the Mandatory Guidelines for urine testing which
also supports use of some alternative testing methodologies. Based upon
our discussions with HHS, oral fluids and sweat specimen testing are
areas of promise which will receive maximum focus in HHS's next
approval process. When they are approved by HHS, these methodologies
will be forensically and scientifically suitable to be used in the DOT
testing programs. Both oral fluid and sweat specimen testing are
considerably less intrusive than DO of urine collections. Because of
their drug use detection timetables, after approval by HHS oral fluids
would be very suitable for return-to-duty testing and sweat specimens
would be very suitable for follow-up testing.
    When HHS approves these specimens for testing, the Department
intends to propose to amend Part 40 to provide for their use in
appropriate testing situations. By doing so, the Department will
provide a less intrusive alternative to DO urine testing in the return-
to-duty and/or follow-up situations.
    HHS is also considering the use of hair testing. There are a number
of significant scientific and policy questions raised in public
comments and Federal agency internal reviews of proposed revisions to
the Mandatory Guidelines that must be answered before HHS and DOT could
adopt the use of hair testing in the agencies' programs. The claimed
90-day detection window for hair testing also makes its use problematic
in RTD testing and for FU tests as well, depending on when they occur.
Nevertheless, at such time as HHS approves hair testing, we are open to
considering its use as part of the DOT testing program.
    Under authority separate from and predating the Omnibus Act, the
FRA has long used blood testing and urine testing [as well as tissue
and vitreous humor from cadavers] in its special post-accident testing.
While blood testing is scientifically and forensically sound, its
collection by needle is considered very intrusive. It also requires the
use of medically-trained personnel as collectors. Importantly, blood
affords a very brief window of detection. Consequently, while it can be
used by the FRA appropriately in their special post-accident testing as
a means of determining accident causative factors, it would not be a
suitable methodology for return-to-duty and follow-up testing.

Other Agencies' Rules

    While the drug testing rules of other Federal agencies do not
determine the way the Department responds to comments on section
40.67(b), it is instructive to note that other agencies make
significant use of DO in their testing programs. The Department of
Defense, of course, has always used DO for all drug tests of military
personnel, who generally are regarded, however, as having a lower
expectation of privacy than civilian workers.
    In new final rules that go into effect in March 2009 (73 FR 16966;
March 31, 2008), the Nuclear Regulatory Commission (NRC) will also
afford less privacy for its DO collections for return-to-duty and
follow-up tests for nuclear industry personnel, as well as tests in
which collection site behavior or laboratory results indicate an
attempt to cheat. The NRC regulation requires an anti-prosthetic
procedure as part of all its DO tests, in which an individual must
raise and lower his or her clothing from waist to knee not only before
providing the specimen (as in the DOT procedure) but also during
urination. NRC's rationale for this action was the following:

    More detailed procedures are necessary because devices and
techniques to subvert the testing process have been developed since
[the NRC rule was originally issued] that are difficult to detect in
many collection circumstances, including direct observation, such as
a false penis or other realistic urine delivery device containing a
substitute urine specimen and heating element that may be used to
replicate urination. Therefore, the agency has made these changes to
increase the likelihood of detecting attempts to subvert the testing
process and increase the effectiveness of directly observed
collections in assuring that a valid specimen is obtained from the
donor. 73 FR 17071; March 31, 2008.

    The HHS intends, in its upcoming Mandatory Guidelines for the
Federal employee drug testing program, to require DO collections in all
follow-up and return-to-duty tests. The HHS and NRC procedures are
based on the same rationale as the DOT June 25 final rule: types of
testing that present a heightened risk for cheating, given the ready
availability of cheating products, call for appropriate
countermeasures.

The Department's Decision

    Having considered the comments, the Department remains convinced
that conducting all return-to-duty and follow-up tests under DO is the
most prudent course from the viewpoint of safety. It is the method we
have available today to deter and detect attempts to cheat, pending the
availability of less intrusive alternative specimen testing methods.
    Under 40.67(b), there are no individuals who will be directly
observed who have not already been subject to being directly observed
under previous versions of Federal safety requirements by refusing to
test, using illegal drugs, or otherwise breaching the rules. By this
conduct, each of these individuals has shown a willingness to endanger
public safety. Individuals in this category have a greater than average
likelihood of using illegal drugs in the future and a higher than
average motivation to cheat on a test. Under these circumstances, the
Department is justified in regarding these individuals as having a
reduced legitimate expectation of privacy, compared to covered
employees in general. Given the increased availability of cheating
products, compared to twenty years ago when Part 40 was first issued,
the Department can properly adjust the balance between safety and
privacy by making DO collections mandatory, rather than optional, in
follow-up and return-to-duty testing.
    The Department realizes that there may need to be some adjustments
necessary for employers, collection sites and others in order to begin
implementing this requirement. However, by the time the rule goes into
effect on November 1, affected parties will have had four months to
address implementation issues, including labor-management relations,
providing for the availability of same-gender observers etc.
Consequently, we do not believe that any further delay in the effective
date of this provision is warranted. We emphasize that conducting all
future return-to-duty and follow-up tests under DO is a requirement of
Federal law (including for employees whose initial violations of the
rules occurred or whose series of follow-up tests began before November
1).
    For the reasons set forth in this notice, section 40.67(b), as
issued in the Department's June 25, 2008, final rule will go into
effect, without change, on November 1, 2008.

    Issued this 16th day of October, 2008, at Washington, DC.
Jim L. Swart,
Director, Office of Drug and Alcohol Policy Compliance.
 [FR Doc. E8-25102 Filed 10-21-08; 8:45 am]

BILLING CODE 4910-9X-P


[Federal Register Volume 84, Number 241 (Monday, December 16, 2019)]
[Notices]
[Pages 68542-68543]
[FR Doc No: 2019-27006]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

[Docket No. DOT-OST-2004-16951]

Request for Comments of a Reinstatement With Change of a
Previously Approved Information Collection: Aircraft Accident Liability
Insurance

AGENCY: Office of the Secretary, DOT.

ACTION: Notice and request for comments.

-----------------------------------------------------------------------

SUMMARY: In compliance with the Paperwork Reduction Act of 1995, this
notice announces that the Information Collection Request (ICR)
abstracted below is being forwarded to the Office of Management and
Budget (OMB) for review and comments. A Federal Register Notice with a
60-day comment period soliciting comments on the following information
collection was published on October 2, 2019 [Vol. 84,

No. 190, Page 52172]. No comments were received.

DATES: Comments must be submitted on or before January 15, 2020.

ADDRESSES: Send comments regarding the burden estimate, including
suggestions for reducing the burden, to the Office of Management and
Budget, Attention: Desk Officer for the Office of the Secretary of
Transportation, 725 17th Street NW, Washington, DC 20503.
    Comments are invited on: Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Department, including whether the information will have practical
utility; the accuracy of the Department's estimate of the burden of the
proposed information collection; ways to enhance the quality, utility
and clarity of the information to be collected; and ways to minimize
the burden of the collection of information on respondents, including
the use of automated collection techniques or other forms of
information technology.

FOR FURTHER INFORMATION CONTACT:  Barbara Snoden,<PHONE_NUMBER>,
Office of Aviation Analysis, Office of the Secretary, U.S. Department
of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:
    Title: Aircraft Accident Liability Insurance.
    OMB Control Number: 2106-0030.
    Type of Request: Reinstatement with changes of a previously
approved collection.
    Abstract: 49 U.S.C. 41112 provides that an air carrier may not be
issued or continue to hold air carrier authority unless it has filed
with DOT evidence that it possesses insurance in accordance with DOT
regulations. 14 CFR part 205 establishes procedures for filing evidence
of liability insurance for air carriers, and contains the minimum
requirements for air carrier accident liability insurance to protect
the public from losses, and directs that certificates evidencing
appropriate coverage must be filed with the Department. This insurance
information is submitted to DOT using OST Form 6410 (U.S. air carriers)
or OST Form 6411 (foreign air carriers).
    DOT expects to receive approximately 2,051 filed insurance
certificates from U.S. air carriers and approximately 457 filed
certificates from foreign air carriers. DOT expects to receive
approximately 2,728 amended certificates each year from U.S. air
carriers and approximately 608 amended filings from foreign air
carriers. Total respondents expected is approximately 2,508. Further,
DOT expects filers of certificates to take 30 minutes to complete the
form and approximately 15 minutes (for approximately 5 percent of
respondents) to prepare amendments to the form. Thus, the total annual
burden is expected to be 875 hours.
    Affected Public: U.S. and foreign air carriers.
    Number of Respondents: 2,508.
    Frequency: On occasion.
    Number of Responses: 3,336.
    Total Annual Burden: 875 hours.

    Authority:  The Paperwork Reduction Act of 1995; 14 CFR part
205.

    Issued in Washington, DC, on December 10, 2019.
Lauralyn J. Remo,
Chief, Air Carrier Fitness, Office of Aviation Analysis.
[FR Doc. 2019-27006 Filed 12-13-19; 8:45 am]
 BILLING CODE 4910-9X-P