July 16, 2001
Docket Management Facility (OST-99-6578)
U.S. Dept. of Transportation
400 Seventh St., S.W. Room PL-401
Washington, DC 20590-0001
RE: Section 40.25
The Drug & Alcohol Testing Industry Association (DATIA) appreciates this opportunity to comment on 49 CFR section 40.25, which requires background checks with previous employers of an applicant’s drug and alcohol record. DATIA is the 1,100 member industry association representing service providers, including collectors, Consortia/Third Party Administrators (C/TPAs), Substance Abuse Professionals (SAPs), labs, Medical Review Officers (MROs), in-house administrators, and other professionals.
Since the DOT announced this provision in the Final Rule and has opened a comment period on this issue only 30 days ago, no clear consensus was determined on this issue within the industry. However, there do seem to be some policy and procedural problems, which question the wisdom of adoption of section 40.25 at this time without full consideration of the facts and impacts.
We believe that this issue needs more consideration than just this 30-day comment period, which ends just 16 days before the rule is scheduled to go into effect on August 1, 2001. The verification check provision contained in 40.25 was not part of the initial DOT Notice of Proposed Rulemaking and therefore was not subject to the exhaustive comment and public hearings held on the part 40 provisions. The hearing and comment process lasted over one year. As many commenters have pointed out, a question arises whether the new 40.25 section is in violation of the Administrative Procedures Act (APA), which requires full opportunity for comment on any proposed regulation.
Members report that the experience with the Federal Motor Carrier Safety Administration (FMCSA) on the verification checks is mixed, thus questioning the validity of adopting the FMCSA model for all DOT modes at this time. Our members report massive non-compliance with the background check provision with many truck operators ignoring or circumventing it. At the very least, there should be proof of the FMCSA’s success in a study or research, none of which is contained in the June 16, 2001 DOT announcement.
As DATIA has pointed out before, it is not only important, but also part of the administrative law contained in the Regulatory Flexibility Act (RFA), to estimate the costs of section 40.25 and economic impact on small business. No such action was taken to comply with RFA.
As the agents for the employers, our members want to be sure that their clients are not burdened with unnecessary or costly drug and alcohol testing rules. For our industry to succeed, the rules must be workable for the clients. Our concern here is that section 40.25 may contain difficult and unjustified new burdens, which will be widely unpopular with our members’ clients. The only way to know is for more consideration through a longer comment period and study of the FMCSA’s experience on this issue.
Sincerely,
 |
Laura Norfolk
Executive Director
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