FR 2024-28561

The document under review is a proposed rule from the U.S. Department of Transportation (DOT) concerning drug and alcohol testing procedures in transportation workplaces. This proposed rule seeks to address a temporary issue arising from the May 2023 Final Rule that included provisions for oral fluid drug testing, which are currently unimplementable due to the absence of certified laboratories. As a stopgap measure, the DOT proposes allowing directly observed urine tests in situations where oral fluid tests are mandated but not yet feasible.

General Summary

This proposal aims to ensure that drug testing remains compliant in the interim period until the certification of oral fluid testing laboratories is completed. The rule will only allow directly observed urine tests, a procedure already familiar to regulated entities, until two laboratories are certified to perform oral fluid tests. These temporary measures are expected to sunset one year after the second laboratory's certification is publicly announced.

Significant Issues and Concerns

There are several areas in the document that raise concerns:

1. Lack of Economic Impact Analysis: The document does not provide a detailed cost analysis or estimate of the economic impact caused by switching to directly observed urine tests temporarily. This oversight leaves stakeholders uncertain about the potential financial implications.

2. Certification Timeline Ambiguity: The proposal mentions the lack of certified laboratories as the reason for this interim rule but provides no specific timeline for when oral fluid testing might become available. This lack of clarity can lead to uncertainty among employers and employees.

3. Language Clarity: The section describing directly observed urine collections uses terminology that might be confusing regarding the roles and responsibilities of test collectors and observers.

4. Environmental Considerations: While the document claims a categorical exclusion regarding environmental impact, it does not provide comprehensive justification, which could signal a lack of due diligence in assessing environmental effects.

Public and Stakeholder Impact

Broad Public Impact

For the general public, this proposed rule represents an administrative effort to ensure that workplace safety and compliance with drug testing regulations are maintained. Although the rule is technical, its goal is to prevent lapses in drug testing due to the unavailability of oral fluid testing. For transportation workers and the broader public who rely on transportation safety, this assurance can be seen as a positive measure.

Impact on Specific Stakeholders

• Employers: Transportation employers might face logistical challenges as they shift back, albeit temporarily, to directly observed urine tests. However, such tests are not new, and many organizations already have the necessary infrastructure in place, minimizing disruption.

• Drug Testing Companies: These companies, especially small businesses, might experience operational impacts due to this temporary shift. The rule changes may also affect laboratory businesses waiting on certification to offer oral fluid testing, impacting their business plans.

• Regulatory Agencies: The DOT's effort to quickly adapt its regulations to unforeseen challenges reflects a proactive stance. However, the lack of a defined timeline for the availability of oral fluid testing could point to a need for improved planning and communication.

In conclusion, while this proposed rule aims to address a temporary gap in the drug testing process for transportation workers, it brings to light several areas needing further clarification and analysis. Stakeholders would benefit from clear timelines and cost assessments to better understand the full implications of this temporary measure.

The proposed rule addressed in the Federal Register document primarily focuses on modifying drug testing procedures for the transportation industry due to the unavailability of oral fluid testing. While financial aspects are not prominently highlighted, there are notable points related to potential expenditures and economic impacts.

Financial Implications

One of the key financial-related statements in the document indicates that the proposed rule does not trigger the requirement for a written statement under section 202(a) of the Unfunded Mandates Reform Act (UMRA). Specifically, this is because the rule does not propose a mandate that would result in an expenditure of $200 million or more by state, local, and Tribal governments, or by the private sector in any one year. This suggests that the financial burden of implementing the rule is projected to be below that threshold.

Economic Impact and Cost Analysis

The document does not provide a detailed cost analysis or estimate of the economic impact associated with the requirement for directly observed urine tests as a temporary measure. This absence could lead to uncertainty among stakeholders, such as drug testing companies and employers, about the financial implications of implementing directly observed urine tests where oral fluid testing is currently mandated but unavailable. This is a significant point since prior rules have relied on estimated savings or identified costs to convey the expected economic impact adequately.

Alignment with Identified Issues

Some identified issues in the document relate to financial references but remain unaddressed. For instance, without clear cost estimates or financial impacts, stakeholders may struggle to understand how the temporary switch affects their operational costs or budgeting. Furthermore, an absence of financial clarity might complicate decisions made by small businesses or testing laboratories affected by this rule change.

The document also does not explain why oral fluid testing is not available, which could prevent an analysis of the potential cost discrepancies or savings conferred by such testing relative to the mandated urine tests. Understanding the comparative costs could be crucial in assessing the economic impact on affected entities.

In conclusion, while the proposed rule assures no significant financial burden as per UMRA's stipulations, the lack of detailed economic analysis leaves room for uncertainty among stakeholders obligated to adapt their current practices to comply with the temporary requirements. Such clarity could facilitate a smoother transition and adherence to the revised testing processes.