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###### Department of Transportation

###### Office of the Secretary

          - 49 CFR Part 40
          - [Docket OST-99-6578]
          - RIN 2105-AC49

# AGENCY:

Office of the Secretary, DOT.

# ACTION:

Request for comments on final rule.

# SUMMARY:

On December 19, 2000, the Department of Transportation published its final rule on drug and alcohol testing procedures. One provision of this rule requires employers to inquire into the drug and alcohol testing records of applicants for employment. A group of maritime industry organizations requested that the Department provide a comment period on this provision. In response to this request, the Department is opening a comment period for 30 days.

# DATES:

Comments on 40 CFR 40.25 must be received by July 16, 2001.

# ADDRESSES:

                        Comments should be sent to Docket Clerk, Attn: Docket No. OST-99-6578, Department of Transportation, 400 7th Street, SW., Room PL401, Washington DC, 20590. Persons wishing their comments to be acknowledged should enclose a stamped, self-addressed postcard with their comments. The docket clerk will date stamp the postcard and return it to the sender. Comments may be reviewed at the above address from 9:00 a.m. through 5:30 p.m. Monday through Friday. Commenters may also submit their comments electronically.                               ( print page 32249)                            Instructions for electronic submission may be found at the following web address: http://dms.dot.gov/​submit/​. The public may also review docketed comments electronically. The following web address provides instructions and access to the DOT electronic docket: http://dms.dot.gov/​search/​.                    

# FOR FURTHER INFORMATION CONTACT:

Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, 400 7th Street, SW., Room 10424, Washington DC, 20590, 202-366-9306 (voice), 202-366-9313 (fax), or bob.ashby@ost.dot.gov (e-mail).

# SUPPLEMENTARY INFORMATION:

On December 19, 2000 (65 FR 79462), the Department published a final rule revising its drug and alcohol testing procedures (49 CFR Part 40). One provision of this rule, § 40.25, requires employers to make inquiries about the drug and alcohol testing history of applicants for employment in jobs involving the performance of safety-sensitive functions. The employee must provide a written consent to the inquiry before it is made. The purpose of the provision is to ensure that new employers have the opportunity to learn about recent violations (within two years of the application) of the Department's rules. This information is important to allow employers to comply with the obligation to ensure that employees fully complete return-to-duty process requirements. The provision is based on a long-standing provision of the Federal Motor Carrier Safety Administration's drug and alcohol testing rule (49 CFR Part 382).

The history of this provision in the Part 40 rulemaking is as follows: In § 40.329 of the Department's December 1999 notice of rulemaking (NPRM) on this subject, the Department proposed allowing medical review officers (MROs) to provide information on employees' drug test results to third-party employers under some circumstances. Most commenters, while agreeing that providing information to third-party employers about violations of drug testing rules has value for safety purposes, found the specifics of the proposal problematical. Some urged the Department to find an alternative. Employing a provision like the Federal Motor Carrier Safety Administration provision mandating pre-employment inquiries about applicants' drug and alcohol testing history was one suggestion mentioned in comments (see 65 FR 79475, December 19, 2000). An agency is entitled to respond to comments on a proposed rule by changing, adding, or deleting provisions. As explained in the preamble to the final rule, this is the course the Department chose in moving from the NPRM's § 40.329 to the final rule's § 40.25.

Nevertheless, a group of maritime organizations requested that the Department open a comment period for the purpose of commenting on § 40.25. While we believe the Department acted fully in accordance with all applicable rulemaking procedures, we will, in response to this request, open a comment period on the provision for 30 days. We are able to be responsive to this request because we have sufficient time, before the August 1, 2001, effective date of the revised Part 40, to consider comments and make any changes we believe to be appropriate without disrupting the implementation of the rule. We do not believe that a longer period is needed to provide comments on this one particular provision of the rule that we published on December 19, 2001. Interested persons should therefore be able to comment readily within the 30-day period.

The groups that requested the opportunity to comment on this provision of the final rule also requested that the Department suspend the implementation of § 40.25. This provision goes into effect August 1, 2001. It is not necessary to suspend a provision that is not yet in effect.

Please note that this opportunity for comment concerns only § 40.25, and the Department is not accepting comments on other provisions of the rule at this time. For readers' convenience, we are reprinting below the text of § 40.25:

### Section 40.25 Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?

(a) Yes, as an employer, you must, after obtaining an employee's written consent, request the information about the employee listed in paragraph (b) of this section. This requirement applies only to employees seeking to begin performing safety-sensitive duties for you for the first time (i.e., a new hire, an employee transfers into a safety-sensitive position). If the employee refuses to provide this written consent, you must not permit the employee to perform safety-sensitive functions.

(b) You must request the information listed in this paragraph (b) from DOT-regulated employers who have employed the employee during any period during the two years before the date of the employee's application or transfer:

(1) Alcohol tests with a result of 0.04 or higher alcohol concentration;

(2) Verified positive drug tests;

(3) Refusals to be tested (including verified adulterated or substituted drug test results);

(4) Other violations of DOT agency drug and alcohol testing regulations; and 

(5) With respect to any employee who violated a DOT drug and alcohol regulation, documentation of the employee's successful completion of DOT return-to-duty requirements (including follow-up tests). If the previous employer does not have information about the return-to-duty process (e.g., an employer who did not hire an employee who tested positive on a pre-employment test), you must seek to obtain this information from the employee.

(c) The information obtained from a previous employer includes any drug or alcohol test information obtained from previous employers under this section or other applicable DOT agency regulations.

(d) If feasible, you must obtain and review this information before the employee first performs safety-sensitive functions. If this is not feasible, you must obtain and review the information as soon as possible. However, you must not permit the employee to perform safety-sensitive functions after 30 days from the date on which the employee first performed safety-sensitive functions, unless you have obtained or made and documented a good faith effort to obtain this information.

(e) If you obtain information that the employee has violated a DOT agency drug and alcohol regulation, you must not use the employee to perform safety-sensitive functions unless you also obtain information that the employee has subsequently complied with the return-to-duty requirements of Subpart O of this part and DOT agency drug and alcohol regulations.

(f) You must provide to each of the employers from whom you request information under paragraph (b) of this section written consent for the release of the information cited in paragraph (a) of this section.

(g) The release of information under this section must be in any written form (e.g., fax, e-mail, letter) that ensures confidentiality. As the previous employer, you must maintain a written record of the information released, including the date, the party to whom it was released, and a summary of the information provided.

                    (h) If you are an employer from whom information is requested under paragraph (b) of this section, you must, after reviewing the employee's specific, written consent, immediately release the                           ( print page 32250)                        requested information to the employer making the inquiry.                

(i) As the employer requesting the information required under this section, you must maintain a written, confidential record of the information you obtain or of the good faith efforts you made to obtain the information. You must retain this information for three years from the date of the employee's first performance of safety-sensitive duties for you.

(j) As the employer, you must also ask the employee whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years. If the employee admits that he or she had a positive test or a refusal to test, you must not use the employee to perform safety-sensitive functions for you, until and unless the employee documents successful completion of the return-to-duty process (see paragraphs (b)(5) and (e) of this section).

## Regulatory Analyses and Notices

                    The Department has previously considered all of 49 CFR Part 40 with respect to rulemaking process requirements (see 65 FR 79516-79518; December 19, 2000). The proposed rule, analyses concerning it, and the comments on it can be found in the Department's docket or on the Department's Dockets Management System (DMS) web site. The address for the Dockets office and the DMS web site are listed under                     **Addresses**                     above. This action is simply a response to an industry request for, essentially, the reopening of a comment period; the Department does not propose to take any new action through this document that would be subject to statutory or Executive Order requirements concerning the regulatory process.                

Issued this 11th Day of June, 2001, at Washington DC.

Kenneth C. Edgell,

Acting Director, Office of Drug and Alcohol Policy and Compliance.

[FR Doc. 01-15072 Filed 6-12-01; 10:41 am]

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