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)

[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.

-----------------------------------------------------------------------

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