[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29643]
[[Page Unknown]]
[Federal Register: December 2, 1994]
_______________________________________________________________________
Part VI
Department of Transportation
Federal Aviation Administration
14 CFR Part 121
Research and Special Programs Administration
49 CFR Part 199
Federal Railroad Administration
49 CFR Part 219
Federal Highway Administration
49 CFR Part 382
Federal Transit Administration
49 CFR Part 654
_______________________________________________________________________
Alcohol Misuse Prevention Program; Final Rule
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
Research and Special Programs Administration
49 CFR Part 199
Federal Railroad Administration
49 CFR Part 219
Federal Highway Administration
49 CFR Part 382
Federal Transit Administration
49 CFR Part 654
[Docket 49384]
RIN 2120-AE43; 2137-AC21; 2130-AA81; 2125-AA79, 2125-AC85; 2125-AD06;
2132-AA38
Alcohol Misuse Prevention Program for Personnel Engaged in
Specified Aviation Activities (FAA); Alcohol Misuse Prevention Program
(RSPA); Alcohol Testing; Amendments to Alcohol/Drug Regulations (FRA);
Controlled Substances and Alcohol Use and Testing (FHWA); Prevention of
Alcohol Misuse in Transit Operations (FTA)
AGENCIES: Federal Aviation Administration (FAA), Research and Special
Programs Administration (RSPA), Federal Railroad Administration (FRA),
Federal Highway Administration (FHWA), and Federal Transit
Administration (FTA), DOT.
ACTION: Final rule, request for comments.
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SUMMARY: On February 15, 1994, the Department of Transportation
published final alcohol testing rules, including a requirement that
evidential breath testing devices be used to conduct alcohol tests. The
Department also published a notice of proposed rulemaking seeking
comment on whether blood testing should be used in very limited
circumstances (i.e., for reasonable suspicion and post-accident tests,
where evidential breath testing was not available). After reviewing the
comments, the Department has decided not to authorize blood testing as
proposed. The Department's operating administrations are amending their
alcohol testing rules to require employers to submit to the Department
reports of reasonable suspicion and post-accident tests that could not
be conducted because breath testing was unavailable.
DATES: The amendments to the FAA, RSPA, FRA, FHWA, and FTA alcohol
testing regulations are effective January 1, 1995. Comments concerning
the reporting requirement added to the five operating administration
alcohol testing regulations should be received by January 17, 1995.
Late filed comments will be considered to the extent practicable.
ADDRESSES: Comments should be sent to Docket Clerk, Docket No. 49384,
Room 4107, Department of Transportation, 400 7th Street, S.W.,
Washington D.C., 20590. This is a consolidated docket that will accept
comments on the amendments to all five operating administration rules
involved. Commenters wishing to have their comments acknowledged should
send a stamped, self-addressed postcard with their comments. The Docket
Clerk will date stamp the card and return it to the commenter.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Acting Director,
Department of Transportation Office of Drug Enforcement and Program
Compliance, 400 7th Street, S.W., Washington, D.C., 20590 (202-366-
3784).
SUPPLEMENTARY INFORMATION: This rulemaking concerns the Department of
Transportation's alcohol testing requirements. Larger employers are
required to begin alcohol testing in accordance with the Department's
regulations on January 1, 1995. Smaller employers are required to begin
testing on July 1, 1995, or January 1, 1996, as provided in applicable
operating administration rules. Those employers who are scheduled to
begin testing January 1, 1995, are expected to be ready to begin
testing on that date, including acquisition of equipment and training
of personnel. No postponements of this compliance date have been
granted. Since employers will have been on notice of this compliance
date since February 15, 1994, the Department believes that employers
will have had a reasonable time to prepare.
The NPRM
When the Department proposed the alcohol testing rules that it
adopted in February 1994, one of the most important, most frequently
commented-upon issues was the choice of testing methodology. After
carefully considering comments about a variety of methods and devices,
including arguments concerning the degree of discretion employers
should have in choosing a testing method, the Department decided that
the use of evidential breath testing devices (EBTs) was the most
appropriate approach to take. The Department discussed the reasons for
this decision at some length in the preamble to its alcohol testing
procedures rule. See 59 FR 7342-7347; February 15, 1994.
At the same time, the Department sought comments, through a notice
of proposed rulemaking (NPRM), on whether the Department should
authorize blood testing for alcohol to be used in certain specific,
very limited circumstances. See 59 FR 7367-7371; February 15, 1994.
Under the proposal, blood would be used ``only in those reasonable
suspicion and post-accident testing circumstances where it is not
practicable to use breath testing.'' Id. at 7367. The Department
specifically noted that blood testing was ``not intended, under the
proposal, to be an equal alternative method that an employer can choose
as a matter of preference.'' Id. The NPRM did not propose re-opening
the underlying decision that breath testing is to be the basic testing
method under the rules.
The rationale for the proposal was that ``in some circumstances,
the unavailability of EBTs * * * may make breath testing
impracticable.'' Id. The Department noted that
[R]easonable suspicion and post-accident tests are more likely
than other kinds of tests to happen at unpredictable times and in
remote locations * * * [I]t may be substantially easier and less
costly to arrange for a blood alcohol test [than a breath test] in
these circumstances. In some cases, it may be impossible to get an
EBT to a remote location in time to conduct a meaningful test. Id.
Under such circumstances, the NPRM said, it might be better to test
using blood, despite its known disadvantages (which the preambles to
both the Part 40 final rule and the NPRM spelled out), than to be
unable to complete a reasonable suspicion or post-accident test. The
NPRM noted that there would probably be a small number of such tests
per year (roughly estimated at 2500 per year), which could mitigate the
effect of these disadvantages.
The remainder of the NPRM proposed procedures that would be used in
the event the Department adopted the proposal. These proposals
addressed such subjects as collection procedures, qualification of
testing personnel, laboratories and laboratory procedures, and ``fatal
flaws'' that would invalidate tests.
Comments
The Department received 185 comments on this NPRM. The commenters
included 15 transportation employers or their associations, 9 testing
industry organizations, 6 unions, and 155 individual transportation
employees. Several months after the close of the comment period, the
Department received additional correspondence on this subject, but the
comments arrived so late in the rulemaking process that it was not
practicable to consider them.
Comment was divided on the basic issue of whether blood testing
should be authorized. Employee comments were uniformly against the
proposal. Six unions representing transportation workers and 155
individual transportation employees opposed blood testing. They cited a
number of reasons. Blood testing was too invasive, causing pain and
fear in many employees and severely invading employees' privacy. There
was no possibility of immediate confirmation. There would be too much
employer discretion as to when blood could be used, which could lead to
abuse (e.g., overuse of blood by employers). Some of these comments
expressed concern about incompetent or dangerous collection practices.
Two additional commenters (one of whom favored using blood testing)
expressed concern about confrontations arising from employees who
objected to giving blood.
Twenty-five commenters, most of them employers or employer
associations, favored blood testing. Thirteen of these endorsed the
NPRM proposal. Most did so on the basis that it would be less costly
and more convenient to be able to use blood testing for reasonable
suspicion and post-accident testing. Specifically, commenters were
concerned that, in the absence of a blood option for these types of
testing, employers would have to buy an unreasonably large number of
EBTs to cover all their work locations. The other 12 commenters in this
group favored much wider discretion for employers, saying that blood
testing should be available for confirmation in all types of testing,
with non-evidential devices (such as saliva devices) available for
screening tests. The result would be that EBTs need never be obtained
or used. Employers in the pipeline industry were particularly in favor
of this approach, noting that only reasonable suspicion and post-
accident alcohol tests are required for their industry, which has
employees at many remote sites.
A related issue was how to define ``readily available.'' The NPRM
proposed that blood could be used when breath testing was not ``readily
available,'' and asked for comment on what that term should mean. Five
commenters believed that a specific number of hours (e.g., two or
eight) should be used as the criterion. That is, if breath testing
could not be performed within that number of hours after the event
leading to the test, then blood could be used. Nine commenters, to the
contrary, said that employers should be able to decide when breath
testing was readily available, based on such factors as cost,
convenience, or preference. (One comment, on the other hand, said
employers should never have this discretion.) The latter view was
advocated by several of the commenters who favored a broader use of
blood testing than the NPRM proposed, as it would reduce the number of
occasions on which breath testing would be needed and perhaps make it
possible for some employers to avoid breath testing altogether. Two
commenters, representing aviation management and labor, respectively,
disagreed about whether EBTs would typically be available in airports.
Two other commenters proposed more complex schemes for determining when
blood testing could be used.
On the question of what laboratories should be used for blood
testing, six comments favored using state-certified laboratories, when
they were available. Some of them said that these laboratories should
be viewed as adequate at least until Department of Health and Human
Services (DHHS) -certified laboratories became available. Ten comments
favored DHHS certification for blood testing laboratories, though these
commenters differed among themselves about whether DHHS-certified
laboratories should be the only laboratories permitted to test blood in
DOT-mandated tests. Two other comments favored using laboratories
certified by the College of American Pathologists (CAP), and three
others supported using whatever laboratories were available, whether
certified by DHHS, states, or CAP.
Eleven commenters thought DOT should develop uniform, national
testing procedures. Some of these commenters argued that state
procedures are unreliable or that it would be too confusing to apply a
variety of state standards, particularly for employers who operate in
more than one state. Two testing industry organizations suggested using
an existing industry blood collection standard. Eight other commenters
thought that state procedures, or procedures developed at the
discretion of the employer, should be viewed as adequate.
Nine commenters thought employers should either be authorized or
required to ``stand down'' employees based on a positive screening
test, pending receipt of the results of the blood confirmation test
from the laboratory. Eight comments favored allowing an employee's
supervisor to act as the collector for the screening test, the
confirmation test, or both, at least if other trained collectors were
not available. One comment opposed ever allowing a supervisor to act as
a collector. With respect to fatal flaws, nine commenters agreed (and
two disagreed) that a sample collected by an unauthorized collector
should be regarded as invalid, eight said it should not be a fatal flaw
if the procedures of the wrong state were used for collection. There
were also several comments concerning the details of blood testing
kits.
DOT Response
The Department clearly and specifically limited the NPRM to
consideration of whether blood testing should be used for situations in
which breath testing was not readily available for reasonable suspicion
and post-accident tests, or in ``shy lung'' situations. For this
reason, the issue raised by some commenters of whether employers should
have the flexibility or discretion to use blood testing as an
alternative to breath testing, even when breath testing is readily
available in reasonable suspicion and post-accident testing or even in
random or pre-employment testing, is outside the scope of the
rulemaking.
Moreover, we remain convinced, for the reasons explained in the
preamble to 49 CFR Part 40 published on February 15, 1994, that the
Department made a sound decision to designate evidential breath testing
as the basic method of alcohol testing to be used in DOT programs.
Consequently, the Department will not authorize the use of blood
testing as an alternative to breath in the wide range of circumstances
recommended by some commenters.
With respect to the NPRM proposal itself, the Department is mindful
of the concerns expressed by employees and unions about the
invasiveness of blood testing. As the Department recognized in the
preambles to the NPRM and to the February 15 final rule, blood testing
is the most invasive type of testing available, and is likely to create
more anxiety among employees than other methods. Blood testing is the
only testing method that, if conducted improperly by an ill-trained or
inattentive collector, can do serious physical harm to an employee.
Moreover, while we recognize a point made by some commenters that
employees have accepted blood alcohol testing in some circumstances, we
think that the greater invasiveness of this approach would, on the
whole, make employee acceptance of the program more, rather than less,
difficult to obtain. Employee acceptance is one factor that leads to
the success of an alcohol misuse prevention program.
Another factor we have taken into consideration is the added
program complexity that would result from including blood testing in
the Department's programs. Laboratories would have to be certified to
test the blood samples. As the division among commenters on this point
demonstrates, the best solution to this problem is not clear. In our
view, DHHS certification would be the highest standard for accuracy and
reliability of testing. However, there would be considerable costs to
laboratories and the Department, as well as some delays in program
implementation, if DHHS had to create a laboratory certification
program for blood alcohol testing, as it has for urine drug testing.
Assuming that the number of tests involved is small (see discussion
below) it might well not be cost effective for laboratories to go
through a DHHS certification process. State-certified laboratories
appear to vary in reputation for quality as well as in terms of
availability; not all states have state or state-certified laboratories
that would accept specimens for purposes of DOT-mandated testing.
As mentioned in the preamble of the NPRM, the Department has
expressly declined to use laboratories certified by private
organizations (such as the CAP) in the drug testing context, and the
comments did not provide a persuasive rationale for taking a different
course with respect to alcohol testing. Using state or privately
certified laboratories as an interim measure until DHHS-certified
laboratories are ready could create concern among employees and
employers about ensuring the highest level of accuracy in the program.
The other procedural issues discussed in the comments--DOT national
uniform procedures vs. reliance on differing state procedures, whether
there should be a standard DOT blood testing kit and what should be in
it, what should constitute a fatal flaw, etc.--also suggest that it
would be a very complex matter to devise an appropriate set of
procedures for blood testing.
Other questions arise because of the relationship of non-evidential
screening test devices and blood tests. For example, suppose a saliva
screening device indicates that an employee tests positive for alcohol.
The blood test result will not be available from the laboratory for two
or three days. What happens to the employee in the meantime? This is a
problem we do not face with evidential breath testing, since a
confirmation test result is available immediately, a point which we
view as a significant advantage of breath testing.
In the drug testing rules, we explicitly prohibit on-site testing,
in part for the reason that we consider it inappropriate for an
employer to take any action against an employee, absent a confirmed and
verified positive test result. (Concern about the accuracy of devices
was also involved in this decision.) A similar situation would occur if
an employee had a positive on-site screening test for alcohol and the
employer stood him or her down pending receipt of the laboratory
confirmation test result. On the other hand, from a safety point of
view, there is much to recommend to employers that they stand an
employee down after a positive on-site screening test, since no one
wants to send (for example) a truck driver back onto the road when we
have a test result suggesting that the driver may have alcohol in his
or her system. The comments on the subject favored standing employees
down in this situation.
Should the Department, contrary to the drug testing rules, permit
or require the employer to stand an employee down in this situation? If
the employer stands an employee down in this situation, should DOT
rules mandate that the employer pay the employee for the ``stand down''
period? In any case? Only if the confirmation test is negative? These
are difficult and troubling questions, to which the best answers are
far from self-evident.
This is not to say that the issues of invasiveness, added
procedural complexity, and stand-down are incapable of resolution. But
is it worthwhile, from the point of view of employers, employees, and
the Department, to create a new component of the alcohol testing
program carrying these problems with it? The basic rationale for adding
blood testing to the program is that, in its absence, employers will
``miss'' post-accident and reasonable suspicion tests. That is, there
will be situations in which, because breath testing cannot be made
available within eight hours, a post-accident or reasonable suspicion
test that the regulations call for will not take place at all. In some
number of these cases, blood testing might be available where breath
testing is not.
How often will there be reasonable suspicion and post-accident
tests that are ``missed'' because of the unavailability of breath
testing that would be ``caught'' by blood testing? Our expectation is
that there would be a small number of such situations. First, occasions
for post-accident and reasonable suspicion tests are likely to be far
fewer in number than occasions for pre-employment and random tests. The
motor carrier industry accounts for 7.0 million of the approximately
7.8 million transportation employees who will be subject to alcohol
testing. FHWA's very stringent criteria for post-accident testing (only
a (1) fatal accident or (2) an accident in which the driver is issued a
citation for a moving violation plus either (a) there is disabling
damage to a vehicle or (b) an injury requiring immediate medical
treatment away from the scene results in a post-accident test) mean
that only a small percentage of all motor carrier accidents are likely
to result in post-accident tests. The nature of drivers' jobs, which do
not involve frequent or long-term observation by supervisors, suggests
that there will be relatively few occasions for reasonable suspicion
tests. The pipeline industry, in which most accidents happen because of
non-pipeline employees damaging pipelines (e.g., construction crews
digging into a pipeline), and in which employees may often operate in
remote locations with little supervision, appears to share this
relatively low probability of reasonable suspicion and post-accident
testing. We also anticipate few ``shy lung'' situations, and Part 40
has a provision to deal with them.
Other industries, which involve closer supervision of employees
and/or broader definitions of triggering accidents may produce somewhat
greater rates of post-accident or reasonable suspicion test situations.
(In one of these, the railroad industry, post-accident blood testing is
done by FRA under a long-standing rule using an FRA contract lab.
Nothing in this today's action in any way changes FRA's existing
requirements involving blood testing.) However, since the absolute
numbers of employees in these industries are much smaller, they will
have less of an effect on the total number of such occasions. Even in
these industries, the numbers may not be very high. Data from the
aviation industry, for example, suggests that there have been
relatively few post-accident or reasonable cause drug tests (e.g., 720
out of 268,809 total tests conducted in 1993 under the FAA rule).
This brings us to the next factor. What data we have from
situations where reasonable suspicion/cause tests have been
administered for both drugs and alcohol suggests that there may be
substantially fewer such tests for alcohol than for drugs. For example,
recent railroad industry data suggest that of the total of such tests,
alcohol tests made up only about 17 percent of the total.
Finally, we expect that a substantial percentage of the reasonable
suspicion and post-accident testing situations can be ``caught'' by
breath testing. This is particularly true in those industries (e.g.,
the railroad, transit, and aviation industries) where employees perform
most safety-sensitive duties on known routes or in known locations, and
where supervision is more readily available. Even in the motor carrier
industry, the provision in the FHWA rule that allows use for purposes
of the DOT testing program of results of tests conducted by law
enforcement can help to reduce the incidence of ``missed'' tests.
However, there are likely to be some situations in which no testing
method--including blood--can be brought to bear in time to conduct a
post-accident or reasonable suspicion test. The oft-mentioned example
of a truck accident at 2 a.m. on a remote highway in the middle of the
desert may well be an example of a situation in which blood, as well as
breath, testing will not be available in a timely manner. Certainly it
would be a doubtful assumption that all, or perhaps even a majority, of
tests that would be ``missed'' with breath would be ``caught'' with
blood.
Consequently, if we added blood testing to the alcohol testing
program as proposed in the NPRM, we would be incurring the
disadvantages of such a step in order to catch a subset of a subset of
the universe of all reasonable suspicion and post-accident alcohol
tests required under the Department's rules. This universe itself will
probably not be a large one. Many of the tests can be caught by breath
testing. Of those that cannot, many could not be caught by blood
testing either.
In the NPRM, we made a rough estimate of perhaps 2500 situations
per year in which blood would catch a test that breath could not.
Commenters did not present data suggesting that the number would be
significantly higher; we tend to think, at this time, that the estimate
may have been too high.
We have concluded that it is not worth subjecting employees to an
invasive testing procedure and incurring the other disadvantages of
adding blood alcohol testing to our program to capture this probably
small number of cases. For this reason, we are withdrawing the proposed
authorization of the use of blood in some post-accident and reasonable
suspicion test situations, and we will not include blood testing as a
part of the DOT alcohol testing program. As noted below, we are issuing
a final rule establishing a temporary reporting requirement concerning
missed reasonable suspicion and post-accident tests.
We believe that following this course will be less disadvantageous
to employers than some commenters appear to believe. There is no
requirement in the DOT rules--and never has been--that employers buy
their own EBT for every conceivable location in which a reasonable
suspicion or post-accident test could occur, including every company
facility or location. We expect that companies may move EBTs around
from facility to facility for scheduled tests such as pre-employment
and random tests. For the non-scheduled reasonable suspicion and post-
accident tests, we expect employers to take reasonable steps to ensure
coverage. We recognize that tests will not be able to be completed in
some instances. That is why, for example, the reasonable suspicion and
post-accident testing provisions of the alcohol rules issued by the
operating administrations on February 15, 1994, tell employers to
discontinue attempts at testing after eight hours but require them to
keep a record explaining the inability to conduct the test.
Consortia and third-party service providers can often provide both
more economical service and wider coverage than employers would find
possible on their own. Reimbursable agreements among employers, even
across various industries, could make EBT and BAT services available in
locations where a single employer would not have coverage. The
operating administrations will also provide guidance and work with
their employers to ensure appropriate coverage by employers. Finally,
the Department recognizes that there will be some situations in which
the best good faith efforts on the part of an employer (as distinct
from an abdication of the effort) cannot result in a test being
completed. That is, we acknowledge and accept the fact that there will
be some ``missed'' tests.
The Department's judgment on this issue is based, to a considerable
extent, on the premise that there will not be excessive numbers of
``missed'' tests. This premise, while based on a logical view of how
our program will work, is not, at this stage, based on hard data. This
is because the alcohol testing program has not begun yet, so there is
little data on which we can rely. (That is, the first MIS reports for
alcohol are not due until March 15, 1996. The first MIS reports for
drugs are not due until March 15, 1995, so we do not even have
comprehensive data yet for drug testing in most of the affected
industries which might serve as a basis for inferences about the
alcohol testing program.) For this reason, the Department is modifying
an existing regulatory requirement to generate relevant data.
All the operating administration alcohol testing regulations
include a requirement for employers to prepare and maintain on file a
record of when a post-accident or reasonable suspicion test is not
administered within eight hours. At this point, the employer must stop
attempts to administer the test. This is, in other words, an existing
requirement to document a ``missed'' test and the reasons for it. This
requirement applies to all covered employers.
For a three-year period beginning January 1, 1995, the Department
will require those employers who transmit an MIS report to the
Department to transmit a copy of these records along with their MIS
report. They should be sent to the same address as MIS reports are sent
for the operating administration involved. Reports should be sent to
the operating administration only at the time that MIS reports are
sent. That is, the employer should send a year's worth of reports (a
separate report for each ``missed test'') to the operating
administration at one time. Employers should not send reports
concerning tests which are conducted within the 8-hour period, only
concerning tests that are not conducted because more than 8 hours have
passed since the triggering event. (The existing rules also require
employers to document when a reasonable suspicion or post-accident test
cannot be conducted within two hours. This requirement remains in
effect, but employers are not required to report to DOT concerning
tests that are conducted more than two but less than eight hours after
the triggering event. This is because such tests, while perhaps of
diminished value, are not truly ``missed tests.'')
The rule specifies the information that would be part of the
records. The required information is the following:
(1) Type of test. Is the test a reasonable suspicion or post-
accident test? (This information is not required from railroad
employers, since FRA has always conducted post-accident blood tests and
does not conduct post-accident breath alcohol testing parallel to that
conducted under other operating administrations' rules. All ``missed
tests'' under the FRA rule would be reasonable suspicion tests.)
(2) Triggering event. What was the date, time and location of the
accident or supervisor's determination of reasonable suspicion that led
to the requirement for the test?
(3) Employee category. What type of safety-sensitive function was
the employee performing? In responding to this item, employers should
use the employee categories listed in each of the operating
administrations' regulations (e.g., in mass transit, operator of a
revenue service vehicle, operator of a non-revenue service vehicle,
controller/dispatcher, maintenance personnel, security personnel).
These regulatory categories, rather than the employer's job title for
the individual, should be used for this purpose. Under no circumstances
should the employee's name or other identifying information be
provided. (This information is not required in reports to FHWA, since
all FHWA-covered personnel are drivers.)
(4) Explanation. The reason(s) the test could not be completed
within 8 hours. That is, what prevented the employer from conducting
the test within this time period using breath testing?
(5) Possible Use of Blood. If blood testing would have been
available to complete the test within eight hours, the record would
include the name, address, and telephone number of the testing site at
which blood testing could have occurred. (This information will help
the Department to estimate the frequency of situations in which blood
testing would have been available where breath testing is not.)
The Department will analyze these reports (which, since they
concern 1995, 1996, and 1997, will include three years' data for large
employers and two years' data for small employers) in 1998. We will
revisit, at that time, the issue of whether there are sufficient
numbers of post-accident and reasonable suspicion testing occasions
which are missed by breath testing and could be captured by blood
testing to make the addition of blood testing (or some other, new
technology) a worthwhile step. While this data collection requirement
is a response to the issues raised by the NPRM, and is a logical
outgrowth of our consideration of those issues and the comments on
them, it was not itself specifically proposed in that document.
Therefore, we are asking for comment on the reporting requirement.
Because we believe it is important to be in a position to have
responded to comments on the reporting requirement before January 1,
1995, when alcohol testing begins and records of missed tests would
need to start being kept for the reports that are due March 15, 1996,
we have established a 45-day, rather than a 60-day, comment period on
the reporting requirement. This opportunity for comment concerns only
the reporting requirement itself, and not the underlying decision to
withdraw the proposal to allow blood testing. Comments on that decision
will be considered as outside the scope of this request for comments.
Regulatory Analyses and Notices
The Department has determined that this rule is a significant rule
for purposes of Executive Order 12886 and the Department's Regulatory
Policies and Procedures. While it makes only small changes to the
Department's existing alcohol testing requirements, it pertains to a
Department-wide regulatory program, and has been reviewed by all
concerned Departmental offices and the Office of Management and Budget
(OMB). The costs and benefits of alcohol testing were fully analyzed as
part of the final rules issued February 15, 1994. Because the rule does
impose a new reporting requirement, we have submitted this requirement
to OMB for review under the Paperwork Reduction Act. The new reporting
requirement will not be effective until OMB has approved it. DOT will
publish a Federal Register notice when OMB approves the requirement.
Under the Regulatory Flexibility Act, the Department certifies that
the requirements imposed by this rule will not have a significant
economic effect on a substantial number of small entities. There are
not sufficient Federalism impacts to warrant a Federalism assessment
under Executive Order 12612.
List of Subjects
14 CFR Part 121
Air carriers, Air transportation, Aircraft, Aircraft pilots,
Airmen, Airplanes, Alcohol, Alcoholism, Aviation safety, Pilots,
Safety, Transportation.
49 CFR Part 199
Alcohol testing, Drug testing, Pipeline safety, Recordkeeping and
reporting.
49 CFR Part 219
Alcohol and drug abuse, Railroad safety, Reporting and
recordkeeping requirements.
49 CFR Part 382
Alcohol testing, Controlled substances testing, Highways and roads,
Highway safety, Motor carriers, Motor vehicle safety.
49 CFR Part 654
Alcohol testing, Grant programs--transportation, Mass transit,
Reporting and recordkeeping requirements, Safety, Transportation.
Issued this 22nd day of November, 1994, at Washington, D.C.
Mortimer L. Downey,
Deputy Secretary.
David R. Hinson,
Administrator, Federal Aviation Administration.
D.K. Sharma,
Administrator, Research and Special Programs Administration.
S. Mark Lindsey,
Acting Deputy Administrator, Federal Railroad Administration.
Rodney E. Slater,
Administrator, Federal Highway Administration.
Gordon J. Linton,
Administrator, Federal Transit Administration.
For the reasons set forth in the preamble, the Department of
Transportation amends 14 CFR Part 121, 49 CFR Part 199, 49 CFR Part
219, 49 CFR Part 382, and 49 CFR Part 654, as follows:
14 CFR CHAPTER I
PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE
AIRCRAFT
1. The authority citation for Part 121 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 1354(a), 1355, 1356, 1357, 1401,
1421-1430, 1485, and 1502.
2. In Appendix J to Part 121, paragraph III. B. 2. is amended by
designating the existing text as paragraph (a) and adding a new
paragraph (b), to read as follows:
Appendix J to Part 121--Alcohol Misuse Prevention Program
* * * * *
III. Tests Required
* * * * *
B. Post-accident
* * * * *
2. (a) * * *
(b) For the years stated in this paragraph, employers who submit
MIS reports shall submit to the FAA each record of a test required
by this section that is not completed within 8 hours. The employer's
records of tests that are not completed within 8 hours shall be
submitted to the FAA by March 15, 1996; March 15, 1997; and March
15, 1998; for calendar years 1995, 1996, and 1997, respectively.
Employers shall append these records to their MIS submissions. Each
record shall include the following information:
(i) Type of test (reasonable suspicion/post-accident);
(ii) Triggering event (including date, time, and location);
(iii) Employee category (do not include employee name or other
identifying information);
(iv) Reason(s) test could not be completed within 8 hours; and
(v) If blood alcohol testing could have been completed within
eight hours, the name, address, and telephone number of the testing
site where blood testing could have occurred.
* * * * *
3. In Appendix J to Part 121, paragraph III D. 4. is amended by
designating the existing paragraphs (b) and (c) as paragraphs (c) and
(d), respectively, and adding a new paragraph (b), to read as follows:
* * * * *
III. Tests Required
* * * * *
D. Reasonable suspicion testing
* * * * *
4. * * *
(b) For the years stated in this paragraph, employers who submit
MIS reports shall submit to the FAA each record of a test required
by this section that is not completed within 8 hours. The employer's
records of tests that are not completed within 8 hours shall be
submitted to the FAA by March 15, 1996; March 15, 1997; and March
15, 1998; for calendar years 1995, 1996, and 1997, respectively.
Employers shall append these records to their MIS submissions. Each
record shall include the following information:
(i) Type of test (reasonable suspicion/post-accident);
(ii) Triggering event (including date, time, and location);
(iii) Employee category (do not include employee name or other
identifying information);
(iv) Reason(s) test could not be completed within 8 hours; and
(v) If blood alcohol testing could have been completed within
eight hours, the name, address, and telephone number of the testing
site where blood testing could have occurred.
* * * * *
49 CFR CHAPTER I
PART 199--DRUG AND ALCOHOL TESTING
4. The authority citation for Part 199 is revised to read as
follows:
Authority: 46 U.S.C. 60101 et seq.; 49 CFR 1.53.
5. Section 199.225 is amended by designating the existing text of
paragraph (a)(2) as paragraph (a)(2)(i) and adding a new paragraph (a)
(2) (ii), to read as follows:
Sec. 199.225 Alcohol tests required.
* * * * *
(a) Post-accident. * * *
(2)(i) * * *
(ii) For the years stated in this paragraph, employers who submit
MIS reports shall submit to RSPA each record of a test required by this
section that is not completed within 8 hours. The employer's records of
tests that could not be completed within 8 hours shall be submitted to
RSPA by March 15, 1996; March 15, 1997; and March 15, 1998; for
calendar years 1995, 1996, and 1997, respectively. Employers shall
append these records to their MIS submissions. Each record shall
include the following information:
(A) Type of test (reasonable suspicion/post-accident);
(B) Triggering event (including date, time, and location);
(C) Employee category (do not include employee name or other
identifying information);
(D) Reason(s) test could not be completed within 8 hours; and
(E) If blood alcohol testing could have been completed within eight
hours, the name, address, and telephone number of the testing site
where blood testing could have occurred.
* * * * *
6. Section 199.225 is amended by designating the text of paragraphs
(b)(4)(ii) and (b)(4)(iii) as paragraphs (b)(4)(iii) and (b)(4)(iv),
respectively, and adding a new paragraph (b)(4)(ii), to read as
follows:
* * * * *
(b) Reasonable Suspicion Testing. * * *
(4) * * *
(ii) For the years stated in this paragraph, employers who submit
MIS reports shall submit to RSPA each record of a test required by this
section that is not completed within 8 hours. The employer's records of
tests that could not be completed within 8 hours shall be submitted to
RSPA by March 15, 1996; March 15, 1997; and March 15, 1998; for
calendar years 1995, 1996, and 1997, respectively. Employers shall
append these records to their MIS submissions. Each record shall
include the following information:
(A) Type of test (reasonable suspicion/post-accident);
(B) Triggering event (including date, time, and location);
(C) Employee category (do not include employee name or other
identifying information);
(D) Reason(s) test could not be completed within 8 hours; and
(E) If blood alcohol testing could have been completed within eight
hours, the name, address, and telephone number of the testing site
where blood testing could have occurred.
* * * * *
49 CFR CHAPTER II
PART 219--CONTROL OF ALCOHOL AND DRUG USE
7. The authority citation for Part 219 is revised to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20113, 20140,
21301, 21304; and 49 CFR 1.49(m).
9. A new paragraph (d) is added to Sec. 219.300, to read as
follows:
Sec. 219.300 Mandatory reasonable suspicion testing.
* * * * *
(d)(1) If a test required by this section is not administered
within two hours following the determination under this section, the
railroad shall prepare and maintain on file a record stating the
reasons the test was not properly administered. If a test required by
this section is not administered within eight hours of the
determination under this section, the railroad shall cease attempts to
administer an alcohol test and shall state in the record the reasons
for not administering the test. Records shall be submitted to FRA upon
request of the Administrator.
(2) For the years stated in this paragraph, employers who submit
MIS reports shall submit to the FRA each record of a test required by
this section that is not completed within 8 hours. The employer's
records of tests that are not completed within 8 hours shall be
submitted to the FRA by March 15, 1996; March 15, 1997; and March 15,
1998; for calendar years 1995, 1996, and 1997, respectively. Employers
shall append these records to their MIS submissions. Each record shall
include the following information:
(i) Triggering event (including date, time, and location);
(ii) Employee category (do not include employee name or other
identifying information);
(iii) Reason(s) test could not be completed within 8 hours; and
(iv) If blood alcohol testing could have been completed within
eight hours, the name, address, and telephone number of the testing
site where blood testing could have occurred.
Sec. 219.302 [Amended]
10. Section 219.302 is amended by removing paragraph (f).
49 CFR CHAPTER III
PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING
11. The authority citation for 49 CFR Part 382 continues to read as
follows:
Authority: 49 U.S.C. 31136, 31301, et seq., 31502; and 49 CFR
1.48.
12. Section 382.303 is amended by designating the existing text of
paragraph (b)(2) as paragraph (b)(4) and adding new paragraphs (b)(2)
and (b)(3), to read as follows:
Sec. 382.303 Post-accident testing.
* * * * *
(b) * * * (1) * * *
(2) For the years stated in this paragraph, employers who submit
MIS reports shall submit to the FHWA each record of a test required by
this section that is not completed within 8 hours. The employer's
records of tests that are not completed within 8 hours shall be
submitted to the FHWA by March 15, 1996; March 15, 1997; and March 15,
1998; for calendar years 1995, 1996, and 1997, respectively. Employers
shall append these records to their MIS submissions. Each record shall
include the following information:
(i) Type of test (reasonable suspicion/post-accident);
(ii) Triggering event (including date, time, and location);
(iii) Reason(s) test could not be completed within 8 hours; and
(iv) If blood alcohol testing could have been completed within
eight hours, the name, address, and telephone number of the testing
site where blood testing could have occurred.
(3) Records of tests that could not be completed in 8 hours shall
be submitted to the FHWA at the following address: Attn.: Alcohol
Testing program, Office of Motor Carrier Standards (HCS-1), Federal
Highway Administration, 400 Seventh Street, S.W., Washington, DC 20590.
* * * * *
13. Section 382.307 is amended by designating the existing text of
paragraphs (e)(2) and (e)(3) as paragraphs (e)(4) and (e)(5),
respectively, and adding new paragraphs (e)(2) and (e)(3), to read as
follows:
Sec. 382.307 Reasonable suspicion testing.
* * * * *
(e) * * *
(2) For the years stated in this paragraph, employers who submit
MIS reports shall submit to the FHWA each record of a test required by
this section that is not completed within 8 hours. The employer's
records of tests that could not be completed within 8 hours shall be
submitted to the FHWA by March 15, 1996; March 15, 1997; and March 15,
1998; for calendar years 1995, 1996, and 1997, respectively. Employers
shall append these records to their MIS submissions. Each record shall
include the following information:
(i) Type of test (reasonable suspicion/post-accident);
(ii) Triggering event (including date, time, and location);
(iii) Reason(s) test could not be completed within 8 hours; and
(iv) If blood alcohol testing could have been completed within
eight hours, the name, address, and telephone number of the testing
site where blood testing could have occurred.
(3) Records of tests that could not be completed in 8 hours shall
be submitted to the FHWA at the following address: Attn: Alcohol
Testing Program, Office of Motor Carrier Standards (HCS-1), Federal
Highway Administration, 400 Seventh Street, SW., Washington, DC 20590.
* * * * *
49 CFR CHAPTER VI
PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS
14. The authority citation for 49 CFR Part 654 is revised to read
as follows:
Authority: 49 U.S.C. 5331; 49 CFR 1.51.
15. Section 654.33 is amended by designating the existing text of
paragraph (b) as paragraph (b)(1) and adding a new paragraph (b)(2), to
read as follows:
Sec. 654.33 Post-accident testing.
* * * * *
(b)(1) * * *
(2) For the years stated in this paragraph, the employer shall
submit to the FTA each record of a test required by this section that
is not completed within 8 hours. The employer's records of tests that
could not be completed within 8 hours shall be submitted to the FTA by
March 15, 1996; March 15, 1997; and March 15, 1998; for calendar years
1995, 1996, and 1997, respectively. Employers shall append these
records to their MIS submissions. Each record shall include the
following information:
(i) Type of test (reasonable suspicion/post-accident);
(ii) Triggering event (including date, time, and location);
(iii) Employee category (do not include employee name or other
identifying information);
(iv) Reason(s) test could not be completed within 8 hours; and
(v) If blood alcohol testing could have been completed within eight
hours, the name, address, and telephone number of the testing site
where blood testing could have occurred.
* * * * *
16. Section 654.37 is amended by designating the existing text of
paragraphs (d)(2) and (d)(3) as paragraphs (d)(3) and (d)(4),
respectively, and adding a new paragraph (d)(2), to read as follows:
Sec. 654.37 Reasonable suspicion testing.
* * * * *
(d) * * *
(2) For the years stated in this paragraph, the employer shall
submit to the FTA each record of a test required by this section that
is not completed within 8 hours. The employer's records of tests that
could not be completed within 8 hours shall be submitted to the FTA by
March 15, 1996; March 15, 1997; and March 15, 1998; for calendar years
1995, 1996, and 1997, respectively. Employers shall append these
records to their MIS submissions. Each record shall include the
following information:
(i) Type of test (reasonable suspicion/post-accident);
(ii) Triggering event (including date, time, and location);
(iii) Employee category (do not include employee name or other
identifying information);
(iv) Reason(s) test could not be completed within 8 hours; and
(v) If blood alcohol testing could have been completed within eight
hours, the name, address, and telephone number of the testing site
where blood testing could have occurred.
[FR Doc. 94-29643 Filed 11-29-94; 12:03 pm]
BILLING CODE 4910-62-P
