[Federal Register Volume 61, Number 91 (Thursday, May 9, 1996)]
[Proposed Rules]
[Pages 21148-21151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11432]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 121
Federal Railroad Administration
49 CFR Part 219
Federal Highway Administration
49 CFR Part 382
Federal Transit Administration
49 CFR Part 653 and 654
[OST Docket No. OST-96-1333 , Notice 96-14]
RIN 2105-AC50
Amendments to Pre-Employment Alcohol Testing Requirements
AGENCIES: Federal Aviation Administration, Federal Highway
Administration, Federal Railroad Administration, Federal Transit
Administration, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This NPRM proposes provisions that would implement a recent
statutory change to the pre-employment alcohol testing provisions of
the Omnibus Transportation Employee Testing Act of 1991. The proposal
would harmonize the regulations with the statute by making pre-
employment testing voluntary for employers.
DATES: Comments should be received by July 8, 1996. Late-filed comments
will be considered to the extent practicable.
ADDRESSES: Comments should be sent, preferably in triplicate, to Docket
Clerk, Docket No. OST-96-1333., Department of Transportation, 400 7th
Street, S.W., Room PL-400, Washington, D.C., 20590. Comments will be
available for inspection at this address from 9:00 a.m. to 5:00 p.m.,
Monday through Friday. Commenters who wish the receipt of their
comments to be acknowledged should include a stamped, self-addressed
postcard with their comments. The Docket Clerk will date-stamp the
postcard and mail it back to the commenter. We note that, because this
is a multi-modal rulemaking, we are, for convenience, designating a
docket in the Office of the Secretary to receive comments for all
concerned operating administrations.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Room 10424, (202-366-
9306); 400 7th Street, S.W., Washington D.C., 20590.
SUPPLEMENTARY INFORMATION: In its April 5, 1995, decision in American
Trucking Associations, Inc. v. FHWA, the U.S. Court of Appeals for the
Fourth Circuit vacated the FHWA's pre-employment alcohol testing rule
and remanded it to the agency for further rulemaking consistent with
its opinion. The rule implemented the Omnibus Transportation Employee
Testing Act of 1991, which required pre-employment testing ``for use,
in violation of law or Federal regulation, of alcohol or a controlled
substance.'' The rule required trucking companies to administer pre-
employment tests to a new driver. The test could occur at any time up
to the performance of the driver's first safety-sensitive activity.
This decision did not vacate the pre-employment alcohol testing
regulations of the other modes, which were not before the court, but
these regulations were based on parallel statutory language, and the
rationale of the court's decision applied to them as well.
Because the Court's decision vacated FHWA's pre-employment alcohol
testing rule and created substantial uncertainty about the legal
validity of the other operating administrations' rules, the Department
took action in May 1995 to suspend all four pre-employment alcohol
testing rules. As announced by Secretary of Transportation Federico
Pena before the Court's decision was issued, the Department had decided
to transmit a bill to Congress that would make pre-employment alcohol
testing discretionary with employers. The Department's proposed
legislation was adopted by Congress as Sec. 342 of the National Highway
Systems Act of 1995. Section 342 amends the provisions of the Omnibus
Transportation Employee Testing Act of 1991 to repeal the requirement
that employers conduct pre-employment alcohol testing. In place of the
repealed requirement, Congress added a sentence that states ``The
[Secretary of Transportation's] regulations shall permit such motor
carriers to conduct preemployment testing of such employees for the use
of alcohol.'' (Sec. 342(c); the language of the provisions for the
aviation, transit, and railroad industries is parallel.)
To implement this statutory change, the Department's four operating
administrations involved--the Federal Aviation Administration, Federal
Highway Administration, Federal Railroad Administration, and Federal
Transit Administration--are proposing to remove their existing (but
suspended) pre-employment alcohol testing mandates and substitute a
provision that would explicitly authorize, but not require, employers
to conduct such testing as part of their DOT-based drug and alcohol
testing program. This means that an employer has discretion to conduct
preemployment alcohol testing under color of Federal statutory and
regulatory authority.
An employer's choice to exercise the option to test under Federal
authority would have a number of implications. First, the employer
would have to comply with Part 40 procedures for the tests. Second, the
employer would have to apply preemployment alcohol testing to all
safety-sensitive employees covered by DOT drug and alcohol testing
regulations. Third, the employer and employees would necessarily accept
the consequences of positive tests under DOT regulations. Fourth, the
pre-emption provisions of the Department's regulations would apply to
pre-employment alcohol testing under the proposed rules.
Each of the four modal amendments embodies these points. There are
some drafting differences among the four provisions, reflecting the
differences in the underlying modal provisions. It should also be noted
that the language of the modal provisions is intended to permit the
testing to take place after a conditional offer of employment, earlier
in the hiring process, or after a final commitment but before the first
performance of safety-sensitive functions (e.g., before the first time
a new driver takes a transit bus out on a route). These three
provisions also encompass situations in which an individual who has
been working for the employer in another capacity transfers to duties
involving the performance of safety-sensitive functions.
It is possible, of course, for an employer to conduct pre-
employment alcohol tests under its own authority, with no reference to
DOT rules, procedures, or authority. In this case, of course, the
exercise of the employer's authority is fully subject to any state laws
that may constrain the employer's discretion. If the employer chooses
to conduct pre-employment testing under the DOT rules, however, the
employer commits itself to conducting the tests in full compliance with
those rules.
The Department supported the legislation that became Sec. 342 in
the belief that a Federal mandate for pre-employment alcohol testing
was not necessary. However, employers may determine that pre-employment
alcohol testing is a useful part of their substance abuse prevention
policies (e.g., as a means of emphasizing to new employees the
employer's commitment to an alcohol abuse-free workplace). The
Department believes that the proposed rule will facilitate the efforts
of
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employers who choose to include this element in their programs.
Regulatory Process Matters
The proposed rule is considered to be a nonsignificant rulemaking
under DOT Regulatory Policies and Procedures, 44 FR 11034. It also is a
nonsignificant rule for purposes of Executive Order 12886. The
Department certifies, under the Regulatory Flexibility Act, that the
NPRM, if adopted, would not have a significant economic effect on a
substantial number of small entities. The NPRM would not impose any
costs or burdens on regulated entities, since it makes pre-employment
alcohol testing completely voluntary. The rule has also been analyzed
in accordance with the principles and criteria contained in Executive
Order 12612, and it has been determined that it does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
FAA
List of Subjects in 14 CFR Part 121
Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air
transportation, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots,
Safety, Transportation.
For the reasons set out in the preamble, the Federal Aviation
Administration proposes to amend 14 CFR part 121, as follows:
PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE
AIRCRAFT
1. The authority citation for part 121 would continue to read as
follows:
Authority: 49 U.S.C. 106(g), 400113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.
2. In Appendix J, Sec. III, the heading of Sec. III and subsection
A are proposed to be revised to read as follows:
Appendix J to Part 121--Alcohol Misuse Prevention Program
* * * * *
III. Types of Alcohol Tests
A. Pre-employment
1. As part of its alcohol misuse program under this part, an
employer is permitted, but not required, to conduct pre-employment
testing for the use of alcohol. If the employer chooses to conduct
such testing under this section, the requirements of paragraphs (2)-
(4) of this section apply.
2. The employer shall administer pre-employment alcohol tests to
each employee prior to the first time the employee performs safety-
sensitive functions for the employer.
3. The employer shall conduct the tests using the procedures of
49 CFR part 40.
4. The employer shall not allow a covered employee to perform
safety-sensitive functions, unless the result of the employee's test
indicates an alcohol concentration of less than 0.04. If a pre-
employment alcohol test result under this section indicates an
alcohol concentration of 0.02 or greater but less than 0.04, the
provisions of Paragraph F of Section V of this appendix apply.
Issued this 2nd day of May, 1996, at Washington, D.C.
David R. Hinson,
Administrator, Federal Aviation Administration.
FRA
List of Subjects in 49 CFR Part 219
Alcohol and drug abuse, Railroad safety, Reporting and
recordkeeping requirements.
For the reasons stated in the preamble, FRA proposes to amend 49
CFR Part 219, as follows:
PART 219--CONTROL OF ALCOHOL AND DRUG USE
1. The authority for part 219 would continue to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20113, 20140,
21301, 21304; Pub. L. 103-272 (July 5, 1994); and 49 CFR 1.49(m).
2. In Sec. 219.501, paragraphs (a) and (b) are revised to read as
follows:
Sec. 219.501 Pre-employment tests.
(a) Beginning on January 1, 1995, prior to the first time a covered
employee performs covered service for a railroad, the employee shall
undergo testing for drugs. No railroad shall allow a covered employee
to perform covered service, unless an employee has been administered a
test for drugs with a result that did not indicate the misuse of
controlled substances. This requirement shall apply to final applicants
for employment and to employees seeking transfer for the first time
from non-covered service to duties involving covered service.
(b) As part of its alcohol misuse program under this Part, a
railroad is permitted, but not required, to conduct pre-employment
testing for the use of alcohol. If a railroad chooses to conduct such
testing under this section, the requirements of paragraphs (b) (1) and
(2) apply.
(1) No railroad shall allow a covered employee to perform covered
service, unless an employee has been administered a test for alcohol
with a result indicating an alcohol concentration less than .04. This
requirement shall apply to final applicants for employment and to
employees seeking transfer for the first time from non-covered service
to duties involving covered service.
(2) If the test is result is .02 or greater but less than .04, the
applicant or employee shall not perform safety-sensitive functions for
the railroad, and the railroad shall not permit the applicant or
employee to perform such functions, until the applicant's alcohol
concentration measures less than .02.
* * * * *
Issued this 2nd day of May, 1996, at Washington, D.C.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
FHWA
List of Subjects in 49 CFR Part 382
Alcohol and drug abuse, Highway safety, Reporting and
recordkeeping requirements.
For the reasons stated in the preamble, the FHWA proposes to amend
49 CFR part 382, as follows:
PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING
1. The authority for part 382 would continue to read as follows:
Authority: 49 U.S.C. 31306; 49 U.S.C. app. 31201 et. seq.; 49
U.S.C. 31502; 49 CFR 1.48
2. In section 382.301, paragraphs (a) and (b) are revised to read
as follows:
Sec. 382.301 Pre-employment testing.
(a) Prior to the first time a driver performs safety-sensitive
functions for an employer, the driver shall undergo testing for
controlled substances. No employer shall allow a driver to perform
safety-sensitive functions unless the driver has received a controlled
substances test result from the medical review officer indicating a
verified negative test result.
(b) As part of its alcohol misuse program under this part, an
employer is permitted, but not required, to conduct pre-employment
testing for the use of alcohol. If the employer chooses to conduct such
testing under this section, the requirements of paragraphs (b) (1)
through (4) apply.
(1) The employer shall administer a pre-employment alcohol test to
each driver prior to the first time any driver performs a safety-
sensitive function for the employer, unless --
(i) The driver has undergone an alcohol test permitted or required
by this part or the alcohol misuse rule of another DOT agency under
part 40 of this title within the previous six
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months, with a result indicating an alcohol concentration of less than
0.04; and
(ii) The employer ensures that no prior employer of the driver of
whom the employer has knowledge has records of a violation of this part
or the alcohol misuse rule of another DOT agency within the previous
six months.
(2) Except as provided in paragraphs (b)(i)(1) and (ii) of this
section, the employer shall not allow a driver to perform a safety-
sensitive function unless the driver has been administered an alcohol
test with a result indicating an alcohol concentration of less than
0.04.
(3) If a pre-employment alcohol test result under this section
indicates an alcohol concentration of 0.02 or greater but less than
0.04, the provisions of Sec. 382.505 apply.
(4) The employer shall conduct the tests using the procedures of 49
CFR part 40.
* * * * *
3. In Sec. 382.301(d)(1) introductory text, the words ``(1) (i) and
(ii)'' are added after the words ``paragraph (b)''.
Issued this 2nd day of May, 1996, at Washington, D.C.
Rodney Slater,
Administrator, Federal Highway Administration.
FTA
List of Subjects
49 CFR Part 653
Drug testing, Grant programs-transportation, Mass transportation,
Reporting and recordkeeping requirements, Safety, Transportation.
49 CFR Part 654
Alcohol testing, Grant programs-transportation, Mass
transportation, Reporting and recordkeeping requirements, Safety,
Transportation.
For the reasons set out in the preamble, the Federal Transit
Administration proposes to amend 49 CFR Part 654, as follows:
PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS.
1. The authority for Part 654 would continue to read as follows:
Authority: 49 U.S.C. 5331; 49 CFR 1.51
2. Section 654.31 is proposed to be revised to read as follows:
Sec. 654.31 Pre-employment testing.
(a) As part of its alcohol misuse program under this part, an
employer is permitted, but not required, to conduct pre-employment
testing for the use of alcohol. If the employer chooses to conduct such
testing under this section, the requirements of paragraphs (b) through
(d) apply.
(b) The employer shall administer a pre-employment alcohol test
before the first time any covered employee performs a safety-sensitive
function for the employer.
(c) The employer shall conduct the tests using the procedures of 49
CFR Part 40.
(d) The employer shall not allow a covered employee to perform
safety-sensitive functions, unless the result of the employee's test
indicates an alcohol concentration of less than 0.04. If a pre-
employment alcohol test result under this section indicates an alcohol
concentration of 0.02 or greater but less than 0.04, the provisions of
Sec. 654.65 apply.
Issued this 2nd day of May, 1996, at Washington, D.C.
Gordon J. Linton,
Administrator, Federal Transit Administration.
[FR Doc. 96-11432 Filed 5-8-96; 8:45 am]
BILLING CODE 4910-62-P
