Suspension of Pre-employment Alcohol Testing Requirement

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. 27065; Amendment 121-237]

RIN 2120-AE43

Federal Railroad Administration

49 CFR Part 219

[Docket No. RSOR-6]

RIN 2130-AA81

Federal Highway Administration

49 CFR Part 382

[Docket No. MC-116, MC-92-19, MC-92-23]

RIN 2125-AA79, 2125-AC85, 2125-AD06

Federal Transit Administration

49 CFR Part 654

[Docket No. 92-I]

RIN 2132-AA38

Suspension of Pre-employment Alcohol Testing Requirement

AGENCIES: Federal Aviation Administration, Federal Highway

Administration, Federal Railroad Administration, Federal Transit

Administration, DOT.

ACTION: Final rule.

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SUMMARY: The United States Court of Appeals for the Fourth Circuit

recently issued a decision that vacated the pre-employment alcohol

testing requirements of the Federal Highway Administration's alcohol

testing rule. The Court remanded this provision to the agency for

further proceedings consistent with its opinion. While the pre-

employment alcohol testing requirements of the Federal Transit

Administration, Federal Railroad Administration, and Federal Aviation

Administration were not before the Court in the case, the rationale of

the Court's decision applies to these requirements as well. For these

reasons, the Department is suspending the pre-employment alcohol

testing requirements of each of the four operating administrations

until further notice.

DATES: This rule is effective May 10, 1995, except for the amendment 49

CFR 382.301 which is effective May 1, 1995.

FOR FURTHER INFORMATION CONTACT: For general questions, the Office of

General Counsel (202-366-9306). For questions regarding a specific

operating administration, please call the following people: FTA--Judy

Meade (202) 366-2896, FRA--Lamar Allen (202) 366-0127, FHWA--Office of

Motor Carrier Research and Standards (202) 366-1790, FAA--Bill McAndrew

(202) 366-6710.

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 commercial motor vehicle employers 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 and thus permitted administration of the test either

before or after the driver was hired. In vacating and remanding the

rule, the court made the following key findings:

Giving employers the option of conducting ``pre-hire''

pre-employment tests did not satisfy the Act's requirement of testing

for alcohol use ``in violation of law or Federal regulation'' since

alcohol consumption prior to a job application is generally not

illegal.

If the agency believes that ``pre-employment'' testing

also means ``pre-activity'' testing, then it should require the driver

to be tested before the performance of each safety-sensitive activity,

not just his first.

The agency's explanation to the court that ``pre-

activity'' testing was permitted in order to reconcile the Act's pre-

employment testing requirement with its reference to unlawful alcohol

use was not supported by the rulemaking record.

On remand, the agency should consider whether ``pre-

employment'' could reasonably mean anything other than ``pre-hire.''

The court noted that it likely did not. The agency should also

determine whether Congress intended pre-employment alcohol testing to

apply only to the small group of drivers for whom prehire alcohol use

might be illegal and estimate how many job applicants will fall into

this group.

The court rejected ATA's alternative argument that FHWA

had the statutory authority to waive all drivers from the pre-

employment alcohol testing requirement and agreed with FHWA that such

an all-encompassing waiver would effectively repeal the requirement and

would thus be impermissibly broad.

This decision did not vacate the pre-employment alcohol testing

regulations of the other modes, which were not before the court, but

these regulations are based on parallel statutory language, and the

rationale of the court's decision applies to them as well.

Because the Court's decision has vacated FHWA's pre-employment

alcohol testing rule and created substantial uncertainty about the

legal validity of the other operating administration's rules, the

Department has decided to suspend all four pre-employment alcohol

testing rules at this time. This suspension will be until further

notice. Following its consideration of the issues involved on remand

from the Court, the Department will decide what course of action to

follow (e.g., withdrawal or amendment of the requirements, consistent

with the Court's opinion). Such action would be taken through the

rulemaking process.

As a result of this action, large employers regulated by FHWA are

not required to do pre-employment alcohol testing. Employers regulated

by FTA, FAA, and FRA who have begun testing are not required to

continue pre-employment alcohol testing. Employers who are scheduled to

begin pre-employment alcohol testing at a later date (e.g., January 1,

1996) will not be required to do so. Any employer may conduct pre-

employment alcohol testing under its own authority. Because of the

Court's decision and this suspension, employers who wish to continue

such testing may not claim a basis in Federal law or regulation for

doing so, however. We would also emphasize that this action applies

only to pre-employment alcohol testing. Drug testing, and other types

of alcohol tests, are not affected.

As announced by Secretary of Transportation Federico Pena before

the Court's decision was issued, the Department is sending a proposed

bill to [[Page 24766]] Congress that would make pre-employment alcohol

testing discretionary with employers. This legislation is based on the

Administration's policy of eliminating regulations that are unnecessary

or too costly and burdensome. It would clarify that employers are not

required to conduct such testing, but have the option of doing so under

the authority of Federal law.

Regulatory Process Matters

DOT Regulatory Policies and Procedures

The final 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 estimated, at the time it issued its final alcohol testing

rules in February 1994, that pre-employment alcohol testing in the four

operating administrations would cost approximately $28 million per

year. Suspending the rules will proportionally save these expenditures

during the period the suspension is in effect.

Executive Order 12612

This final rule has 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.

Immediate Effectiveness and Issuance Without Prior Notice and Comment

Because it is necessary for the Department immediately to implement

the Court's decision, because the Department does not have any

discretion with respect to compliance with this decision, and because

the Department must promptly resolve any legal uncertainty over the

validity of pre-employment alcohol testing the decision has created,

the Department finds that there is good cause to make this rule

effective immediately. For the same reasons, the Department finds that

prior notice and public comment would be impracticable, unnecessary,

and contrary to the public interest.

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 amends 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 continues to read as

follows:

Authority: 49 U.S.C. 1354(a), 1355, 1356, 1357, 1401, 1421-1430,

1485, and 1502 (revised Pub. L. 102-143, October 28, 1991); 49

U.S.C. 106(g) (revised, Pub. L. 97-449, January 12, 1983).

2. In Appendix J, Sec. III, subsection A (``Pre-employment'') is

suspended as of May 10, 1995.

Issued in Washington, DC on May 3, 1995.

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 amends 49 CFR Part 219,

as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

1. The authority for part 219 continues 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, paragraph (f) is added to read as follows:

Sec. 219.501 Pre-employment tests.

* * * * *

(f) Notwithstanding any other provisions of this subpart, all

provisions and requirements in this section pertaining to preemployment

testing for alcohol are suspended as of May 10, 1995.

Issued in Washington, DC on May 3, 1995.

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 amends 49 CFR Part

382, as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

1. The authority for part 382 continues 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 Sec. 382.301, paragraph (e) is added to read as follows:

Sec. 382.301 Pre-employment testing.

(e) Notwithstanding any other provisions of this subpart, all

provisions and requirements in this section pertaining to preemployment

testing for alcohol are suspended as of May 1, 1995.

Issued in Washington, DC on May 3, 1995.

Rodney Slater,

Administrator, Federal Highway Administration.

FTA

List of Subjects in 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 amends 49 CFR Part 654, as follows:

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

1. The authority for part 654 continues to read as follows:

Authority: 49 U.S.C. 5331; 49 CFR 1.51.

2. Section 654.31 is suspended as of May 10, 1995.

Issued in Washington, DC on May 3, 1995.

Gordon J. Linton,

Administrator, Federal Transit Administration.

[FR Doc. 95-11522 Filed 5-8-95; 11:27 am]

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