[Federal Register Volume 61, Number 91 (Thursday, May 9, 1996)]
[Proposed Rules]
[Pages 21148-21151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11432]



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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]
BILLING CODE 4910-62-P