ALEXANDRIA, Va. -- The U.S. Court of Appeals for the District of Columbia has denied a petition for judicial review of a new U.S. Department of Transportation rule that allows "direct observation" for certain federally mandated drug screenings, including return-to-duty and follow-up testing.

In its ruling, the appeals court quashed a petition filed by BNSF Railway and eight rail labor organizations.

The USDOT rule upheld by the court was designed to prevent cheating on drug tests by employees in the transportation industry who are required to take follow-up tests after successfully completing drug treatment programs.

Prior to the rule, employers had the option of conducting return-to-duty and follow-up tests using direct observation.

BNSF and the labor groups argued the requirement of follow-up tests violated the Administrative Procedure Act prohibition of "arbitrary and capricious" action and the Fourth Amendments protections against unreasonable searches.

The court ruled, however, that the "departments considered justification for its policy is neither arbitrary nor capricious, and although we recognize the highly intrusive nature of direct-observation testing, we conclude that the regulation complies with the Fourth Amendment."

Jim Swart, director of USDOTs office of drug and alcohol policy and compliance, said he was pleased with the ruling.

"Safety is the highest priority of the U.S. Department of Transportation and the upholding of our direct-observation drug testing rules helps to support this mission," Swart said.

The rule, which was scheduled to go into effect in November, was stayed by the court following BNSFs challenge and remains unenforced "because there is an opportunity for the parties to seek rehearing of the courts ruling," Swart said.

Days after the decision, four U.S. senators, led by Mark Pryor, D-Ark., introduced the Safe Roads Act, which would require USDOT to implement "a cost-effective, feasible database of drug testing information for commercial drivers" and authorize $5 million a year to establish and operate it. (See June 15 Bus & Motorcoach News.)