Amendments to Pre-Employment Alcohol Testing Requirements

[[Page 21149]]

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]

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