Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Rules and Regulations 24765

This incorporation by reference was

approved by the Director of the Federal

Register in accordance with 5 U.S.C. 552(a)

and 1 CFR part 51. Copies may be obtained

from AlliedSignal Inc., 550 Main St.,

Stratford, CT 06497; telephone (203) 385–

5452. Copies may be inspected at the FAA,

New England Region, Office of the Assistant

Chief Counsel, 12 New England Executive

Park, Burlington, MA; or at the Office of the

Federal Register, 800 North Capitol Street,

NW., suite 700, Washington, DC.

(h) This amendment becomes effective on

May 25, 1995.

Issued in Burlington, Massachusetts, on

May 1, 1995.

James C. Jones,

Acting Manager, Engine and Propeller

Directorate, Aircraft Certification Service.

[FR Doc. 95–11353 Filed 5–9–95; 8:45 am]

BILLING CODE 4910–13–P

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.

SUMMARY: The United States Court of

Appeals for the Fourth Circuit recently

issued a decision that vacated the preemployment 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 preemployment 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 preemployment 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 ‘‘preemployment’’ testing also means ‘‘preactivity’’ 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 allencompassing waiver would effectively

repeal the requirement and would thus

be impermissibly broad.

This decision did not vacate the preemployment 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 preemployment 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 preemployment alcohol testing. Employers

who are scheduled to begin preemployment 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
24766 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Rules and Regulations

Congress that would make preemployment 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 § 219.501, paragraph (f) is added

to read as follows:

§ 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 § 382.301, paragraph (e) is added

to read as follows:

§ 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 programstransportation, 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]

BILLING CODE 4910–62–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Food and Drug Administration

21 CFR Part 5

Delegations of Authority to the

Commissioner of Food and Drugs

AGENCY: Food and Drug Administration,

HHS.

ACTION: Final rule.

SUMMARY: The Food and Drug

Administration (FDA) is amending the

regulations for delegations of authority