Controlled Substance and Alcohol Use and Testing

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 382

[FHWA Docket Nos. MC-116, MC-92-19, MC-92-23]

RIN 2125-AA79, 2125-AC85, 2125-ADO6

Controlled Substance and Alcohol Use and Testing

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: On February 15, 1994, the Federal Highway Administration

published final alcohol testing rules. Larger employers were scheduled

to begin testing under these rules on January 1, 1995. In response to a

number of petitions from the motor carrier industry, FHWA is briefly

postponing this implementation date with respect to pre-employment

testing only until May 1, 1995, to assist the motor carrier industry to

comply effectively with the rule's provisions.

DATES: This amendment is effective December 31, 1994.

FOR FURTHER INFORMATION CONTACT:

David Miller, Office of Motor Carrier Standards (202-366-1790), or

David Sett, Office of the Chief Counsel (202-366-0834), Federal Highway

Administration, Department of Transportation, 400 7th Street, SW.,

Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,

Monday through Friday, except Federal legal holidays.

SUPPLEMENTARY INFORMATION: On February 15, 1994, FHWA, along with other

Department of Transportation (DOT) operating administrations, published

final alcohol testing regulations. These rules implemented the Omnibus

Transportation Employee Testing Act of 1991. The FHWA rules (49 CFR

part 382) require motor carriers to conduct pre-employment, post-

accident, reasonable suspicion, and random alcohol testing of covered

drivers, and also provide for return-to- [[Page 2031]] duty and follow-

up testing for drivers who have tested at a level of .04 or above and

whom their employers wish to return to the performance of safety-

sensitive functions.

The FHWA rules also require that employers conduct these tests

using the procedures of 49 CFR part 40. Part 40 requires that the use

of evidential breath testing devices (EBTs) for alcohol testing. When

it published part 40 in February 1994, the Department noted that the

National Highway Traffic Safety Administration (NHTSA) would issue

model specifications for non-evidential alcohol screening devices. Any

such devices that NHTSA approved under these specifications could be

used in place of EBTs for the screening tests required by part 40 (but

not for the confirmation tests, which would still have to be conducted

on EBTs). As the Department noted in its February publication, the

Department would have to amend part 40 to establish procedures for the

use of non-evidential alcohol screening devices before NHTSA-approved

devices could actually be used by employers for DOT-mandated alcohol

testing.

On December 2, 1994, NHTSA published a list of five non-evidential

alcohol screening devices that met its model specifications. However,

the Department has not yet published an amendment to part 40 providing

procedures for the use of these devices, with the result that employers

who are scheduled to begin testing on January 1, 1995, will not

immediately be able to begin using non-evidential devices.

FHWA has received 12 petitions from motor carrier industry groups

requesting postponement of the January 1, 1995, implementation date for

alcohol testing. Among other reasons, the petitions suggested that it

would be beneficial for the motor carrier industry to be able to

postpone the beginning of alcohol testing until non-evidential

screening devices could actually be used. Copies of these documents

have been placed in the docket for this rulemaking.

FHWA is mindful that the motor carrier industry is, by a

substantial margin, the largest industry covered by DOT alcohol testing

rules. Approximately 7.1 million drivers, and over 500,000 motor

carriers, are affected by these rules. The number of employers and the

number of employees affected by the FHWA alcohol testing rule is far

higher than the combined numbers of employers and employees in other

covered transportation industries. The industry is also widely

dispersed geographically, and the mobile and fluid nature of motor

carrier operations creates complex implementation problems for

employers.

The turnover rate for drivers in the industry is very high,

approaching 100 percent per year in some segments. This places a

particularly heavy responsibility on employers with respect to meeting

the statutory requirement for pre-employment testing. All these factors

suggest that it is particularly important to provide employers in this

industry with additional flexibility before requiring random and pre-

employment testing to begin.

We recognize the important safety benefits that will be derived

from these rules but believe that it is reasonable to briefly delay

them for the motor carrier industry because the rule will be more

effectively implemented. This action is reasonable because, in addition

to the complex problems caused by the size of the industry, there are

other provisions in the FHWA rule that provide for additional safety

checks of new employees. The provisions of 49 CFR 382.413, which

require employers to obtain information about previous alcohol and

controlled substance tests, can help employers, early in an employment

relationship, to discover information about potential problems that new

employees may have. Finally, there are already several existing rules

that prohibit any alcohol use by drivers of commercial motor vehicles.

These rules are enforced by Federal, state, and local officials who

conducted over 1.9 million roadside safety inspections in 1993.

For these reasons, FHWA believes that postponing the implementation

date for this kind of testing until non-evidential screening devices

are fully authorized for use in the program is sensible. FHWA expects

the postponement to be a short one. The Department will issue a notice

of proposed rulemaking (NPRM) on non-evidential screening device

procedures in the very near future, which, we anticipate, will have a

30-day comment period. The Department will review comments quickly and

prepare a final rule, the effective date of which should be no later

than May 1, 1995. In any case, pre-employment testing must begin by May

1, 1995, regardless of the effective date of this procedural rule.

Should the procedural rule be published before April 1, 1995, the

Department intends to amend part 382 to establish an implementation

date for pre-employment testing that is 30 days from the publication

date of the procedural rule.

Large employers must begin all kinds of alcohol tests except pre-

employment, and are authorized to begin pre-employment tests, under

part 382 on January 1, 1995. Employers who begin pre-employment testing

on or after January 1 can do so with the confidence that the authority

of Federal law stands behind them.

Reasonsable suspicion and post-accident tests are particularly

crucial kinds of tests for a safety-oriented program like this one.

However, the overall number of such tests is expected to be small.

Consequently, all larger carriers will remain responsible for

conducting these types of tests beginning January 1, 1995, using

existing Part 40 procedures. In addition, it is very important for

safety that a driver who has tested ``positive'' for alcohol not return

to performance of safety-sensitive functions until he or she has passed

a return-to-duty alcohol test and been made subject to follow-up tests.

After January 1, 1995, employers who wish to return a driver to duty

after a ``positive'' test must ensure that these tests are conducted,

using existing Part 40 procedures.

While random testing implementation will continue to begin on

January 1, 1995, this does not necessarily mean that employers must

actually conduct random tests on that date. Random tests must be

reasonably spread throughout the year. Employers must conduct a

sufficient number of tests during the year to meet the 25 percent

random testing rate requirement. Employers who wished to use non-

evidential screening devices for most of their random tests have the

flexibility to schedule their random tests so that most were conducted

after the first few months of the year, when it is likely that

procedures for their use will be in place. We would caution employers

that this could not be an explicit, stated company policy, however. The

intent of random testing under the rule is that employees never know

when they might be tested. Employers cannot tell employees that no

testing will be conducted during a certain time period. Random tests

are also a more significant part of a deterrence and detection-based

program than pre-employment tests, in any case. Consequently, it is not

necessary or prudent to postpone random testing.

It should be emphasized that none of these points apply to smaller

employers, who will begin conducting all types of tests, as scheduled,

on January 1, 1996. Nor does anything in this rule change the January

1, 1995, implementation date for controlled substances testing under 49

CFR part 382. [[Page 2032]]

Rulemaking Analyses and Notices

This rule is not subject to review under Executive Order 12866. It

is significant within the meaning of the Department's Regulatory

Policies and Procedures, since it affects an important Departmental

safety initiative and is of substantial public interest. It is

anticipated that this postponement will create some savings for the

motor carrier industry, resulting, from the absence of the pre-

employment testing requirements of the rule during the first four

months of 1995. A portion of the anticipated annual benefits of the

rule will also be forgone, however.

FHWA has determined that this rule does not have a significant

economic impact on a substantial number of small entities, for purposes

of the Regulatory Flexibility Act. In addition to the reason cited

above, FHWA makes this determination because small entities, for

purposes of Part 382, are those motor carriers with fewer than 50

covered drivers who are not scheduled to begin alcohol testing until

January 1, 1996, in any case. There is not a sufficient Federalism

impact to warrant preparation of a Federalism assessment under

Executive Order 12612.

FHWA is making this rule final without first issuing a notice of

proposed rulemaking. The rule is also being made effective before 30

days from the date of its publication. FHWA is taking these steps on

the basis that notice and comment are impracticable, unnecessary, and

contrary to the public interest, and that there is good cause for

making the rule effective immediately. The rationale for this finding

is as follows: all requirements of 49 CFR part 382 would have to be

implemented by larger motor carriers on January 1, 1995, absent this

action. Carriers would be in noncompliance with part 382 in any

interval between that date and the date that this amendment takes

effect. This amendment could not have its intended impact unless it is

put into effect before January 1. Moreover, this amendment is one that

relieves a restriction.

List of Subjects in 49 CFR Part 382

Alcohol testing, Controlled substances testing, Highways and roads,

Highway safety, Motor carriers, Motor vehicle safety.

Issued this 30th day of December, 1994, at Washington, DC.

Rodney E. Slater,

Federal Highway Administrator.

For the reasons stated in the preamble, 49 CFR part 382 is amended

as follows:

1. The authority citation is revised to read as follows:

Authority: 49 U.S.C. 31136, 31302 et seq., and 31502; 49 CFR

1.48.

2. 49 CFR Sec. 382.115(a) is revised to read as follows:

Sec. 382.115 Starting date for testing programs.

(a) Large employers. (1) Except as otherwise provided in this

paragraph, each employer with fifty or more drivers on March 17, 1994,

shall implement the requirements of this part beginning on January 1,

1995.

(2) Large employers may begin implementing the requirements of

Sec. 382.301 of this part with respect to alcohol testing on January 1,

1995, but are not required to do so until May 1, 1995.

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[FR Doc. 95-342 Filed 1-5-95; 8:45 am]

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