50298 Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Rules and Regulations 

68 18 CFR 380.4(a)(15). 

charges for the transmission or sale of 

electric energy subject to the 

Commission’s jurisdiction, plus the 

classification, practices, contracts and 

regulations that affect rates, charges, 

classifications, and services.68 The 

revisions adopted in this Final Rule 

would update and clarify the 

application of the Commission’s 

standard interconnection requirements 

to small generating facilities. 

58. Therefore, this Final Rule falls 

within the categorical exemptions 

provided in the Commission’s 

regulations, and as a result neither an 

Environmental Impact Statement nor an 

Environmental Assessment is required. 

VIII. Document Availability 

59. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the Internet through the 

Commission’s Home Page (http://

www.ferc.gov) and in the Commission’s 

Public Reference Room during normal 

business hours (8:30 a.m. to 5:00 p.m. 

Eastern time) at 888 First Street NE., 

Room 2A, Washington, DC 20426. 

60. From the Commission’s Home 

Page on the Internet, this information is 

available on eLibrary. The full text of 

this document is available on eLibrary 

in PDF and Microsoft Word format for 

viewing, printing, and/or downloading. 

To access this document in eLibrary, 

type the docket number of this 

document, excluding the last three 

digits, in the docket number field. 

61. User assistance is available for 

eLibrary and the Commission’s Web site 

during normal business hours from the 

Commission’s Online Support at (202) 

502–6652 (toll free at 1–866–208–3676) 

or email at ferconlinesupport@ferc.gov, 

or the Public Reference Room at (202) 

502–8371, TTY (202) 502–8659. Email 

the Public Reference Room at 

public.referenceroom@ferc.gov. 

IX. Effective Date and Congressional 

Notification 

62. The Final Rule is effective October 

5, 2016. However, as noted above, the 

requirements of this Final Rule will 

apply only to all newly interconnecting 

small generating facilities that execute 

or request the unexecuted filing of an 

SGIA on or after the effective date of 

this Final Rule as well as existing 

interconnection customers that, 

pursuant to a new interconnection 

request, execute or request the 

unexecuted filing of a new or modified 

SGIA on or after the effective date. The 

Commission has determined, with the 

concurrence of the Administrator of the 

Office of Information and Regulatory 

Affairs of OMB, that this Final Rule is 

not a ‘‘major rule’’ as defined in section 

351 of the Small Business Regulatory 

Enforcement Fairness Act of 1996. This 

Final Rule is being submitted to the 

Senate, House, Government 

Accountability Office, and Small 

Business Administration. 

By the Commission. 

Issued: July 21, 2016. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

Note: The following Attachment will not 

appear in the Code of Federal Regulations. 

Appendix A—List of Substantive 

Commenters (RM16–8–000) 

Bonneville Bonneville Power 

Administration 

Trade Associations Edison Electric 

Institute/American Public Power 

Association/Large Public Power Council/

National Rural Electric Cooperative 

Association 

EPRI Electric Power Research Institute 

Idaho Power Idaho Power Company 

IEEE Institute of Electrical and Electronics 

Engineers 

ISO/RTO Council ISO/RTO Council 

NERC North American Electric Reliability 

Corporation 

PG&E Pacific Gas and Electric Company 

Peak Reliability Peak Reliability 

PNM Public Service Company of New 

Mexico 

SoCal Edison Southern California Edison 

Company 

In addition, Entergy Services, Inc. 

submitted non-substantive comments. 

[FR Doc. 2016–17843 Filed 7–29–16; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 620 

RIN 1205–AB63 

Federal-State Unemployment 

Compensation Program; Middle Class 

Tax Relief and Job Creation Act of 

2012 Provision on Establishing 

Appropriate Occupations for Drug 

Testing of Unemployment 

Compensation Applicants 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Final rule. 

SUMMARY: The Employment and 

Training Administration (ETA) of the 

U.S. Department of Labor (Department) 

is issuing this final rule to establish, for 

State Unemployment Compensation 

(UC) program purposes, occupations 

that regularly conduct drug testing. 

These regulations implement the 

Middle Class Tax Relief and Job 

Creation Act of 2012 (the Act) 

amendments to the Social Security Act 

(SSA), permitting States to enact 

legislation that would allow State UC 

agencies to conduct drug testing on UC 

applicants for whom suitable work (as 

defined under the State law) is available 

only in an occupation that regularly 

conducts drug testing (as determined 

under regulations issued by the 

Secretary of Labor (Secretary)). States 

may deny UC to an applicant who tests 

positive for drug use under these 

circumstances. The Secretary is required 

under the SSA to issue regulations 

determining those occupations that 

regularly conduct drug testing. 

DATES: Effective Date: This final rule is 

effective September 30, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Suzanne Simonetta, Office of 

Unemployment Insurance, ETA, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Room S–4524, 

Washington, DC 20210; telephone: (202) 

693–3225 (this is not a toll-free 

number); email: simonetta.suzanne@

dol.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 9, 2014, The Department 

published a Notice of Proposed 

Rulemaking (NPRM) concerning 

occupations that regularly conduct drug 

testing at 79 FR 61013. The Department 

invited comments through December 8, 

2014. 

II. General Discussion of the Final Rule 

On February 22, 2012, President 

Obama signed the Act, Public Law 112– 

96. Title II of the Act amended section 

303, SSA, to add a new subsection (l) 

permitting States to drug test UC 

applicants as a condition of UC 

eligibility under two circumstances. The 

first circumstance is if the applicant was 

terminated from employment with the 

applicant’s most recent employer 

because of the unlawful use of a 

controlled substance. (Section 

303(l)(1)(A)(i), SSA.) The second 

circumstance is if the only available 

suitable work (as defined in the law of 

the State conducting the drug testing) 

for an individual is in an occupation 

that regularly conducts drug testing (as 

determined in regulations by the 

Secretary). If an applicant who is tested 

for drug use under either circumstance 

tests positive, the State may deny UC to 


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Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Rules and Regulations 50299 

that applicant. On October 9, 2014, the 

Department published a Notice of 

Proposed Rulemaking (NPRM) 

concerning occupations that regularly 

conduct drug testing at 79 FR 61013. 

The NPRM proposed that occupations 

that regularly drug test be defined as 

those required to be drug tested in 

Federal or State laws at the time the 

NPRM was published. The NPRM also 

defined key terms: 

• An ‘‘applicant’’ means an 

individual who files an initial claim for 

UC. 

• ‘‘Controlled substance’’ is defined 

by reference to the definition of the term 

in Section 102 of the Controlled 

Substances Act. (This definition is in 

the Act.) 

• ‘‘Suitable work’’ means suitable 

work as defined under the UC law of the 

State against which the claim is filed. It 

must be the same definition that the 

State otherwise uses for determining UC 

eligibility based on seeking work or 

refusal of work for an initial applicant 

for UC. 

• Occupation means a position or 

class of positions. 

• ‘‘Unemployment compensation’’ is 

defined as ‘‘cash benefits payable to an 

individual with respect to their 

unemployment under the State law.’’ 

This definition derives from the 

definition found in Federal UC law at 

Section 3306(h), FUTA. 

The Department invited comments 

through December 8, 2014. This final 

rule defines those occupations that 

regularly conduct drug testing as 

required by section 303(l)(1)(A)(ii), SSA. 

The Department, separately from this 

rulemaking, issued guidance 

(Unemployment Insurance Program 

Letter (UIPL) No. 1–15) to States to 

address other issues related to the 

implementation of drug testing under 

303(l), SSA. 

III. Summary of the Comments 

Comments Received on the Proposed 

Rule 

The Department received sixteen (16) 

comments (by letter or through the 

Federal e-Rulemaking Portal) by the 

close of the comment period. Ten (10) 

of the comments were from individuals; 

one was from an employer advocacy 

group; one was from an industry 

association; one was from a worker 

advocacy group; and three (3) were from 

governmental officials or committees. 

The Department considered all timely 

comments and included them in the 

rulemaking record. There were no late 

comments. 

These comments are discussed below 

in the Discussion of Comments. We 

address only those comments 

addressing the scope and purpose of the 

rule, the identification of occupations 

that regularly conduct drug testing. 

Therefore, comments received 

concerning the Department’s previously 

issued guidance about drug testing in 

UIPL No. 1–15; comments supporting or 

opposing drug testing in general; and 

comments about drug testing 

procedures, the efficacy of drug tests, 

and the cost of drug tests, are not 

addressed as these issues fall outside 

the scope of the statutory requirement 

that is the basis for this regulation. We 

made one change, discussed below, in 

response to the comments. 

Discussion of Comments 

A number of commenters opposed the 

limitation on the list of occupations 

requiring drug testing. Three 

commenters wrote that limiting the list 

of occupations requiring drug testing to 

those identified in Federal or State laws 

that were in effect on the date of 

publication of the NPRM (October 9, 

2014) was not appropriate. Of those, one 

wrote it was uncertain if future 

amendments to the Federal regulations 

would incorporate future State law 

enactments mandating testing. One 

wrote that States would not be given 

sufficient time to enact legislation to 

add any occupations to the list already 

established by Federal or State law, and 

the public interest would be served by 

a broader interpretation of ‘‘regularly 

conducting drug testing.’’ One wrote it 

was an unnecessary obstacle to States 

using drug screening and testing to 

improve the chances that unemployed 

workers are ready to return to work. 

One commenter wrote that the 

limitation was appropriate in order to 

provide the ability to assess the cost 

effectiveness of implementing drug 

testing in the UC program and that to do 

otherwise would circumvent the intent 

of Congress to limit authority to drug 

test to a small pool of workers for 

whom, because of their job 

requirements, drug testing is directly 

related to continued employment. The 

commenter asserted it was not the intent 

of Congress to cover a more expansive 

segment of the workforce, such as those 

subject to pre-employment screening. 

The Department agrees with the 

commenters that the rule should not 

limit the list of occupations requiring 

drug testing, set forth in the NPRM, to 

those identified in specified Federal 

laws or those State laws that were in 

effect on the date of publication of the 

NPRM; thus, this provision is revised in 

the final rule to broaden its applicability 

as requested by commenters. In a 

dynamic economy, occupations change 

over time, sometimes rapidly, and new 

occupations are created, and it is 

important that this rule contain the 

flexibility necessary to allow States and 

the Federal government to adapt to 

those changes. Thus, the regulation has 

been expanded to encompass any 

Federal or State law requiring drug 

testing regardless of when enacted. 

Specifically, section 620.3(h) has been 

revised to specify that occupations that 

regularly conduct drug testing include 

any ‘‘occupation specifically identified 

in a State or Federal law as requiring an 

employee to be tested for controlled 

substances.’’ In recognition of the fact 

that new federal laws may be enacted 

that may require drug testing for other 

occupations, and that those occupations 

may not necessarily be included in 

§ 620.3(a)–(g), the Department added 

‘‘Federal law’’ to § 620.3(h). This 

additional change ensures the final rule 

is consistent with the policy change 

being made in response to the 

comments. Additionally, the final rule 

eliminates the reference to dates where 

the proposed rule referenced State law 

and the specified Federal regulations in 

§ 620.3(a)–(g). The Department will 

monitor changes in Federal law that 

affect the definition of ‘‘occupations’’ 

for which drug testing is required and 

inform States of any changes through 

guidance. 

There is no evidence of Congressional 

intent for the legislation to permit 

testing on any basis other than the plain 

language of the statute, i.e., occupations 

that regularly test for drugs. However, 

the Department agrees that changes to 

those occupations for which Federal or 

State law require drug testing should be 

accommodated by the regulation. 

One commenter wrote that the 

proposed rule in Section 620.4(a), that 

drug testing is permitted only of an 

applicant, and not of an individual 

filing a continued claim for 

unemployment compensation after 

initially being determined eligible, 

would unduly limit drug testing to only 

the period after an applicant files an 

initial claim and before the applicant 

files a continued claim for 

unemployment compensation. 

The plain language of Section 303(l), 

SSA, limits permissible drug testing to 

applicants for UC. ‘‘Applicants’’ are 

individuals who have submitted an 

initial application for UC. Once 

individuals have been determined 

eligible to receive UC, they are no longer 

applicants for UC. The act of certifying 

that certain conditions are met to 

maintain eligibility is different than 

making an application for UC benefits. 

This is illustrated throughout Title III, 

SSA. Section 303(h)(3)(B), SSA, 


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50300 Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Rules and Regulations 

1Executive Order No. 12866, section 6(a)(3)(B). 

requiring UC information disclosures to 

the Department of Health and Human 

Services, and Section 303(i)(1)(A)(ii)), 

SSA, requiring UC information 

disclosures to the Department of 

Housing and Urban Development, both 

refer to an individual who ‘‘has made 

application for’’ UC, distinguishing 

them from an individual who ‘‘is 

receiving’’ or ‘‘has received’’ UC. 

Similarly, Section 303(d)(2)(B), SSA, 

and Section 303(e)(2)(A), SSA, both 

refer to a ‘‘new applicant’’ for UC and 

then use the term ‘‘applicant’’ 

throughout the remainder of the 

subsection, signifying that the term is 

used to denote only an individual 

applying for UC for the first time. Thus, 

those provisions clarify that, as used in 

Section 303, SSA, an applicant is not a 

continuing claimant. Similarly, Section 

303(l)(1)(B), SSA, permits the denial of 

UC based on the results of a drug test 

only to ‘‘applicants,’’ not as a condition 

of continued eligibility. As these 

provisions demonstrate, ‘‘applicant’’ 

refers to an initial claimant, not a 

continuing claimant; therefore, the final 

rule includes no changes to the 

requirements of Section 620.4(a). 

Two commenters wrote that the rule 

arbitrarily narrows the definition of 

‘‘occupations that regularly test for 

drugs’’ so that the potential number of 

applicants affected is negligible. They 

also noted that businesses regularly 

conduct drug testing in occupations 

without Federal or State mandate. For 

this reason, they believe the definition 

‘‘occupations that regularly conduct 

drug testing’’ should include 

occupations for which employers 

already conduct drug testing outside 

those mandated by State or Federal law. 

Section 303(l)(1)(A)(ii), SSA, requires 

the Secretary to identify those 

‘‘occupations,’’ not employers, that 

regularly conduct drug testing. As 

explained in the NPRM, whether an 

occupation is subject to ‘‘regular’’ drug 

testing in private employment was not 

chosen as the standard here because it 

would be very difficult to implement in 

a consistent manner. Drug testing in 

occupations where it is not required by 

law is not consistent across employers, 

across industries, across the States, or 

over time; thus, we are unable to 

reliably and consistently determine 

which occupations require ‘‘regular’’ 

drug testing where not required by law. 

Even if certain employers do conduct 

drug testing for certain occupations 

when permitted to do so, that is not 

sufficient to show that those 

occupations are subject to regular drug 

testing because a significant number of 

employers may not drug test individuals 

working in those occupations. In 

addition, those employers who conduct 

drug testing when they are not required 

by law to do so do not necessarily limit 

the testing to applicants or employees 

working in a specific occupation. The 

determination by an employer to drugtest all of its employees is not a 

determination that all of the 

occupations in which its employees fall 

are occupations for which drug testing 

is appropriate, under the requirements 

of this rule, but rather a determination 

in keeping with that employer’s beliefs 

about its business needs that drug 

testing is appropriate for all of its 

employees. 

The final rule will permit States to 

require drug testing for UC eligibility for 

occupations that are subjected under 

State law to drug testing after the date 

of the NPRM publication, which ensures 

that there is flexibility for States to 

require drug testing for other 

occupations, while still providing 

predictability and consistency in 

identifying in this final rule what 

occupations are ‘‘regularly’’ drug tested. 

Thus, the Department has not changed 

the rule to address this concern. 

One commenter wrote that the 

proposed rules would impose an 

unnecessary burden on the State agency 

to determine whether ‘‘suitable work’’ 

in a specific occupation is available in 

the local labor market. 

The comment appears to 

misunderstand the proposed rule, 

which requires only that a State use the 

same definition of ‘‘suitable work’’ for 

UC drug testing as otherwise used in 

State UC law. The rule does not use the 

term ‘‘local labor market’’ when 

addressing suitable work. State UC 

agencies routinely make eligibility 

determinations about availability for 

work, search for work, and refusal of 

offers of suitable work. Whether work is 

available in the local labor market for 

UC claimants is one criterion for 

determining what constitutes ‘‘suitable’’ 

work under State UC law in some 

States, but this rule does not require it. 

For drug testing, section 303(l)(1)(A)(ii), 

SSA, provides, as one of the two 

permissible reasons for drug testing as a 

condition for the receipt of UC, that the 

applicant ‘‘is an individual for whom 

suitable work (as defined under the 

State law) is only available in an 

occupation that regularly conducts drug 

testing . . . ’’ [Emphasis added.] Thus, 

the NPRM required that drug testing is 

permitted only if the applicant’s only 

suitable work requires it as a condition 

of employment. Because the rule’s 

definition of ‘‘suitable work’’ allows the 

States to apply their own current laws, 

the definition of suitable work in the 

proposed rule would not impose any 

burden on States, and the Department 

has not changed the definition in the 

final rule. 

One commenter wrote that the 

proposed rule, by limiting the scope of 

permissible drug testing, contradicts 

Congressional intent and the practices 

of many American businesses and the 

best interests of American workers. 

The Department drafted the NPRM to 

be consistent with the language of the 

statute. The scope of drug testing 

contemplated in the NPRM is consistent 

with the statutory language; there is no 

evidence of Congressional intent in the 

legislative history which would require 

it to be interpreted more broadly than 

the Department interprets it in this 

regulation. Therefore, the Department 

declines to expand the scope of drug 

testing in this rule. 

IV. Administrative Information 

Executive Orders 12866 and 13563: 

Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. For a 

‘‘significant regulatory action,’’ E.O. 

12866 asks agencies to describe the need 

for the regulatory action and explain 

how the regulatory action will meet that 

need, as well as assess the costs and 

benefits of the regulation.1 This 

regulation is necessary because of the 

statutory requirement contained in new 

section 303(l)(1)(A)(ii), SSA, which 

requires the Secretary to determine the 

occupations that regularly conduct drug 

testing for the purpose of determining 

which applicants may be drug tested 

when applying for State unemployment 

compensation. OMB has determined 

that this rule is ‘‘significant’’ as defined 

in section 3(f) of E.O. 12866. Before the 

amendment of Federal law to add new 

section 303(l)(1), SSA, drug testing of 

applicants for UC as a condition of 

eligibility was prohibited. 

However, the Department has 

determined that this final rule is not an 

economically significant rulemaking 

within the definition of E.O. 12866 

because it is not an action that is likely 

to result in the following: An annual 


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effect on the economy of $100 million 

or more; an adverse or material effect on 

a sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

Tribal governments or communities; 

serious inconsistency or interference 

with an action taken or planned by 

another agency; or a material change in 

the budgetary impact of entitlements, 

grants, user fees, or loan programs, or 

the rights and obligations of recipients 

thereof. In addition, since the drug 

testing of UC applicants as a condition 

of UC eligibility is entirely voluntary on 

the part of the States, and since Section 

303(l), SSA, is written narrowly, the 

Department believes that it is unlikely 

that many States will establish a testing 

program because they will not deem it 

cost effective to do so. The Department 

sought comment from interested 

stakeholders on this assumption. We 

received no comments on this topic. 

There are limited data on which to 

base estimates of the cost associated 

with establishing a testing program. 

Only one of the two States that have 

enacted a conforming drug testing law 

issued a fiscal note. That State is Texas, 

which estimated that the 5-year cost of 

administering the program would be 

$1,175,954. This includes both one-time 

technology personnel services for the 

first year to program the State UI 

computer system and ongoing 

administrative costs for personnel. The 

Texas analysis estimated a potential 

savings to the Unemployment Trust 

Fund of $13,700,580 over the 5-year 

period, resulting in a net savings of 

approximately $12.5 million. The 

Department believes it would be 

inappropriate to extrapolate the Texas 

analysis to all States in part because of 

differences in the Texas law and the 

requirements in this final rule. The 

Department has included this 

information about Texas for illustrative 

purposes only and emphasizes that by 

doing so, it is not validating the 

methodology or assumptions in the 

Texas analysis. Under the rule, States 

are prohibited from testing applicants 

for unemployment compensation who 

do not meet the narrow criteria 

established in the law. The Department 

requested that interested stakeholders 

with data on the costs of establishing a 

state-wide testing program; the number 

of applicants for unemployment 

compensation that fit the narrow criteria 

established in the law; and estimates of 

the number of individuals that would 

subsequently be denied unemployment 

compensation due to a failed drug test 

submit it during the comment period. 

We received no comments that provided 

the requested information. 

In the absence of data, the Department 

is unable to quantify the administrative 

costs States will incur if they choose to 

implement drug testing under this rule. 

States may need to find funding to 

implement a conforming drug testing 

program for unemployment 

compensation applicants. No additional 

funding has been appropriated for this 

purpose and current Federal funding for 

the administration of State 

unemployment compensation programs 

may be insufficient to support the 

additional costs of establishing and 

operating a drug testing program. States 

will need to fund the cost of the drug 

tests, staff costs for administration of the 

drug testing function, and technology 

costs to track drug testing outcomes. 

States will incur ramp up costs that will 

include implementing business 

processes necessary to determine 

whether an applicant is one for whom 

drug testing is permissible under the 

law; developing a process to refer and 

track applicants referred for drug 

testing; and the costs of testing that 

meets the standards required by the 

Secretary of Labor. States will also have 

to factor in increased costs of 

adjudication and appeals of both the 

determination of applicability of the 

drug testing to the individual and of the 

resulting determinations of benefit 

eligibility based on the test results. 

The benefits of the rule are equally 

hard to determine. As discussed above, 

because permissible drug testing is 

limited under the statute and this rule, 

the Department of Labor believes that 

the provisions will impact a very 

limited number of applicants for 

unemployment compensation benefits. 

Only one State has estimated savings 

from a drug testing program in a fiscal 

note and the Department cannot and 

should not extrapolate results from 

those estimates. 

Paperwork Reduction Act 

The purposes of the Paperwork 

Reduction Act of 1995 (PRA), 44 U.S.C. 

3501 et seq., include minimizing the 

paperwork burden on affected entities. 

The PRA requires certain actions before 

an agency can adopt or revise a 

collection of information, including 

publishing a summary of the collection 

of information, a brief description of the 

need for and proposed use of the 

information, and a request for comments 

on the information collections. 

A Federal agency may not conduct or 

sponsor a collection of information 

unless it is approved by OMB under the 

PRA, and displays a currently valid 

OMB control number, and the public is 

not required to respond to a collection 

of information unless it displays a 

currently valid OMB control number. 

Also, notwithstanding any other 

provisions of law, no person shall be 

subject to penalty for failing to comply 

with a collection of information if the 

collection of information does not 

display a currently valid OMB control 

number (44 U.S.C. 3512). 

The Department has determined that 

this final rule does not contain a 

‘‘collection of information,’’ as the term 

is defined. See 5 CFR 1320.3(c). The 

Department received no comments on 

this determination. 

Executive Order 13132: Federalism 

Section 6 of Executive Order 13132 

requires Federal agencies to consult 

with State entities when a regulation or 

policy may have a substantial direct 

effect on the States or the relationship 

between the National Government and 

the States, or the distribution of power 

and responsibilities among the various 

levels of government, within the 

meaning of the Executive Order. Section 

3(b) of the Executive Order further 

provides that Federal agencies must 

implement regulations that have a 

substantial direct effect only if statutory 

authority permits the regulation and it 

is of national significance. 

This final rule does not have a 

substantial direct effect on the States or 

the relationship between the National 

Government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of Government, within the 

meaning of the Executive Order. This is 

because drug testing authorized by the 

regulation is voluntary on the part of the 

State, not required. 

Unfunded Mandates Reform Act of 1995 

This regulatory action has been 

reviewed in accordance with the 

Unfunded Mandates Reform Act of 1995 

(the Reform Act). Under the Reform Act, 

a Federal agency must determine 

whether a regulation proposes a Federal 

mandate that would result in the 

increased expenditures by State, local, 

or tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more in any single year. The 

Department has determined that since 

States have an option of drug testing UC 

applicants and can elect not to do so, 

this final rule does not include any 

Federal mandate that could result in 

increased expenditure by State, local, 

and Tribal governments. Drug testing 

under this rule is purely voluntary, so 

that any increased cost to the States is 

not the result of a Federal mandate. 

Accordingly, it is unnecessary for the 


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50302 Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Rules and Regulations 

Department to prepare a budgetary 

impact statement. 

Plain Language 

The Department drafted this final rule 

in plain language. 

Effect on Family Life 

The Department certifies that this 

final rule has been assessed according to 

section 654 of the Treasury and General 

Government Appropriations Act, 

enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

1999 (Pub. L. 105–277, 112 Stat. 2681) 

for its effect on family well-being. The 

Department certifies that this final rule 

does not adversely impact family wellbeing as discussed under section 654 of 

the Treasury and General Government 

Appropriations Act of 1999. 

Regulatory Flexibility Act/Small 

Business Regulatory Enforcement 

Fairness Act 

The Regulatory Flexibility Act (RFA) 

at 5 U.S.C. 603(a) requires agencies to 

prepare and make available for public 

comment an initial regulatory flexibility 

analysis which will describe the impact 

of the final rule on small entities. 

Section 605 of the RFA allows an 

agency to certify a rule, in lieu of 

preparing an analysis, if the proposed or 

final rulemaking is not expected to have 

a significant economic impact on a 

substantial number of small entities. 

This final rule does not affect small 

entities as defined in the RFA. 

Therefore, the rule will not have a 

significant economic impact on a 

substantial number of these small 

entities. The Department has certified 

this to the Chief Counsel for Advocacy, 

Small Business Administration, 

pursuant to the Regulatory Flexibility 

Act. 

List of Subjects in 20 CFR Part 620 

Unemployment compensation. 

For the reasons stated in the 

preamble, the Department amends 20 

CFR chapter V by adding part 620 to 

read as follows: 

PART 620—OCCUPATIONS THAT 

REGULARLY CONDUCT DRUG 

TESTING FOR STATE 

UNEMPLOYMENT COMPENSATION 

ELIGIBILITY DETERMINATION 

PURPOSES 

Sec. 

620.1 Purpose. 

620.2 Definitions. 

620.3 Occupations that regularly conduct 

drug testing for purposes of determining 

which applicants may be drug tested 

when applying for state unemployment 

compensation. 

620.4 Testing of unemployment 

compensation applicants for the 

unlawful use of a controlled substance. 

620.5 Conformity and substantial 

compliance. 

Authority: 42 U.S.C. 1302(a); 42 U.S.C. 

503(l)(1)(ii) 

§ 620.1 Purpose. 

The regulations in this part 

implement section 303(l) of the Social 

Security Act (SSA) (42 U.S.C. 503(l)). 

Section 303(l), SSA, permits States to 

enact legislation to provide for the Stateconducted testing of an unemployment 

compensation applicant for the 

unlawful use of controlled substances, 

as a condition of unemployment 

compensation eligibility, if the 

applicant was discharged for unlawful 

use of controlled substances by his or 

her most recent employer, or if suitable 

work (as defined under the State 

unemployment compensation law) is 

only available in an occupation for 

which drug testing is regularly 

conducted (as determined under this 

part 620). Section 303(l)(1)(A)(ii), SSA, 

requires the Secretary of Labor to issue 

regulations determining the occupations 

that regularly conduct drug testing. 

These regulations are limited to that 

requirement. 

§ 620.2 Definitions. 

As used in this part— 

Applicant means an individual who 

files an initial claim for unemployment 

compensation under State law. 

Applicant excludes an individual 

already found initially eligible and 

filing a continued claim. 

Controlled substance means a drug or 

other substance, or immediate 

precursor, included in schedule I, II, III, 

IV, or V of part B of 21 U.S.C. 801 et 

seq., as defined in section 102 of the 

Controlled Substances Act (Pub. L. 91– 

513, 21 U.S.C. 801 et seq.). The term 

does not include distilled spirits, wine, 

malt beverages, or tobacco, as those 

terms are defined or used in subtitle E 

of the Internal Revenue Code of 1986. 

Occupation means a position or class 

of positions. Federal and State laws 

governing drug testing refer to the 

classes of positions that are required to 

be drug tested rather than occupations, 

such as those defined by the Bureau of 

Labor Statistics in the Standard 

Occupational Classification System. 

Therefore, for purposes of this 

regulation, a position or class of 

positions will be considered the same as 

an ‘‘occupation.’’ 

Suitable work means suitable work as 

defined by the unemployment 

compensation law of a State against 

which the claim is filed. It must be the 

same definition the State law otherwise 

uses for determining the type of work an 

individual must seek given the 

individual’s education, experience and 

previous level of remuneration. 

Unemployment compensation means 

any cash benefits payable to an 

individual with respect to their 

unemployment under the State law 

(including amounts payable under an 

agreement under a Federal 

unemployment compensation law.) 

§ 620.3 Occupations that regularly 

conduct drug testing for purposes of 

determining which applicants may be drug 

tested when applying for state 

unemployment compensation. 

Occupations that regularly conduct 

drug testing, for purposes of § 620.4, are: 

(a) An occupation that requires the 

employee to carry a firearm; 

(b) An occupation identified in 14 

CFR 120.105 by the Federal Aviation 

Administration, in which the employee 

must be tested (Aviation flight crew 

members and air traffic controllers); 

(c) An occupation identified in 49 

CFR 382.103 by the Federal Motor 

Carrier Safety Administration, in which 

the employee must be tested 

(Commercial drivers); 

(d) An occupation identified in 49 

CFR 219.3 by the Federal Railroad 

Administration, in which the employee 

must be tested (Railroad operating crew 

members); 

(e) An occupation identified in 49 

CFR 655.3 by the Federal Transit 

Administration, in which the employee 

must be tested (Public transportation 

operators); 

(f) An occupation identified in 49 CFR 

199.2 by the Pipeline and Hazardous 

Materials Safety Administration, in 

which the employee must be tested 

(Pipeline operation and maintenance 

crew members); 

(g) An occupation identified in 46 

CFR 16.201 by the United States Coast 

Guard, in which the employee must be 

tested (Crewmembers and maritime 

credential holders on a commercial 

vessel); 

(h) An occupation specifically 

identified in a State or Federal law as 

requiring an employee to be tested for 

controlled substances. 

§ 620.4 Testing of unemployment 

compensation applicants for the unlawful 

use of a controlled substance. 

(a) States may conduct a drug test on 

an unemployment compensation 

applicant, as defined in § 620.2, for the 

unlawful use of controlled substances, 

as defined in § 620.2, as a condition of 

eligibility for unemployment 

compensation if the individual is one 


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Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Rules and Regulations 50303 

for whom suitable work, as defined in 

State law, as defined in § 620.2, is only 

available in an occupation that regularly 

conducts drug testing under § 620.3. 

Drug testing is permitted only of an 

applicant, and not of an individual 

filing a continued claim for 

unemployment compensation after 

initially being determined eligible. No 

State is required to apply drug testing to 

UC applicants under this part 620. 

(b) A State conducting drug testing as 

a condition of unemployment 

compensation eligibility as provided in 

paragraph (a) of this section may apply 

drug testing only to the occupations 

listed under § 620.3, but is not required 

to apply drug testing to any of them. 

(c) State standards governing drug 

testing of UC applicants must be in 

accordance with guidance, in the form 

of program letters or other issuances, 

issued by the Department of Labor. 

§ 620.5 Conformity and substantial 

compliance. 

(a) In general. A State law 

implementing the drug testing of 

applicants for unemployment 

compensation must conform with, and 

the law’s administration must 

substantially comply with, the 

requirements of this part 620 for 

purposes of certification under Section 

302 of the SSA (42 U.S.C. 502), of 

whether a State is eligible to receive 

Federal grants for the administration of 

its UC program. 

(b) Resolving issues of conformity and 

substantial compliance. For the 

purposes of resolving issues of 

conformity and substantial compliance 

with the requirements of this part 620, 

the following provisions of 20 CFR 

601.5 apply: 

(1) Paragraph (b) of 20 CFR 601.5, 

pertaining to informal discussions with 

the Department of Labor to resolve 

conformity and substantial compliance 

issues, and 

(2) Paragraph (d) of 20 CFR 601.5, 

pertaining to the Secretary of Labor’s 

hearing and decision on conformity and 

substantial compliance. 

(c) Result of failure to conform or 

substantially comply. Whenever the 

Secretary of Labor, after reasonable 

notice and opportunity for a hearing to 

the State UC agency, finds that the State 

UC law fails to conform, or that the 

State or State UC agency fails to comply 

substantially, with the requirements of 

title III, SSA (42 U.S.C. 501–504), as 

implemented in this part 620, then the 

Secretary of Labor must notify the 

Governor of the State and such State UC 

agency that further payments for the 

administration of the State UC law will 

not be made to the State until the 

Secretary of Labor is satisfied that there 

is no longer any such failure. Until the 

Secretary of Labor is so satisfied, the 

Department of Labor will not make 

further payments to such State. 

Portia Wu, 

Assistant Secretary for Employment and 

Training, Labor. 

[FR Doc. 2016–17738 Filed 7–29–16; 8:45 am] 

BILLING CODE 4510–FN–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Parts 11 and 101 

[Docket No. FDA–2011–F–0171] 

RIN 0910–AG56 

Food Labeling; Calorie Labeling of 

Articles of Food in Vending Machines; 

Extension of Compliance Date 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule; extension of 

compliance date. 

SUMMARY: The Food and Drug 

Administration (FDA or we) is 

extending the compliance date for 

certain requirements in the final rule 

requiring disclosure of calorie 

declarations for food sold from certain 

vending machines. The final rule 

appeared in the Federal Register of 

December 1, 2014. We are taking this 

action in response to requests for an 

extension and for reconsideration of the 

rule’s requirements pertaining to the 

size of calorie disclosures on front-ofpackage labeling. 

DATES: Effective date: This final rule is 

effective December 1, 2016. 

Compliance date: The compliance 

date for type size front-of-pack labeling 

requirements (§ 101.8(b)(2) (21 CFR 

101.8(b)(2))) and calorie disclosure 

requirements (§ 101.8(c)(2)) for certain 

gums, mints, and roll candy products in 

glass-front machines in the final rule 

published December 1, 2014 (79 FR 

71259) is extended to July 26, 2018. The 

compliance date for all other 

requirements in the final rule (79 FR 

71259) remains December 1, 2016. 

FOR FURTHER INFORMATION CONTACT: 

April Kates, Center for Food Safety and 

Applied Nutrition (HFS–820), Food and 

Drug Administration, 5001 Campus Dr., 

College Park, MD 20740, 240–402–2371, 

email: april.kates@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In the Federal Register of December 1, 

2014 (79 FR 71259), we published a 

final rule establishing requirements for 

providing calorie declarations for food 

sold from certain vending machines. 

The final rule, which is codified 

primarily at § 101.8, will ensure that 

calorie information is available for 

certain food sold from a vending 

machine that does not permit a 

prospective purchaser to examine the 

Nutrition Facts Panel before purchasing 

the article, or does not otherwise 

provide visible nutrition information at 

the point of purchase. The declaration 

of accurate and clear calorie information 

for food sold from vending machines 

will make calorie information available 

to consumers in a direct and accessible 

manner to enable consumers to make 

informed and healthful dietary choices. 

The final rule applies to certain food 

from vending machines operated by a 

person engaged in the business of 

owning or operating 20 or more vending 

machines. Vending machine operators 

not subject to the rules may elect to be 

subject to the Federal requirements by 

registering with FDA. 

The final rule also specifies how 

calories must be declared. In brief, 

• Vending machine operators do not 

have to declare calorie information for 

a food if a prospective purchaser can 

view certain calorie information on the 

front of the package, in the Nutrition 

Facts label on the food, or in a 

reproduction of the Nutrition Facts label 

on the food subject to certain 

requirements, or if the vending machine 

operator does not own or operate 20 or 

more vending machines. 

• Calorie declarations must be clear 

and conspicuous and placed 

prominently, and may be placed on a 

sign in, on, or adjacent to the vending 

machine, so long as the sign is in close 

proximity to the article of food or 

selection button. 

• The final rule establishes type size, 

color, and contrast requirements for 

calorie declarations in or on the vending 

machines, and for calorie declarations 

on signs adjacent to the vending 

machines. 

• The final rule establishes 

requirements for calorie declarations on 

electronic vending machines, those 

vending machines with only pictures or 

names of the food items, and those 

vending machines with few choices 

(e.g., popcorn machines). 

The final rule also requires vending 

machine operator contact information to 

be displayed for enforcement purposes. 

The final rule implements provisions 

of section 403(q)(5)(H) of the Federal 


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