[Federal Register: April 30, 2001 (Volume 66, Number 83)]
[Proposed Rules]
[Page 21491-21494]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap01-26]
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Part III
Department of Transportation
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Federal Aviation Administration
14 CFR Part 121
Coast Guard
46 CFR Parts 4, 5, and 16
Research and Special Programs Administration
49 CFR Part 199
Federal Railroad Administration
49 CFR Part 219
Federal Motor Carrier Safety Administration
49 CFR Part 382
Federal Transit Administration
49 CFR Parts 653, 654, and 655
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Workplace Drug and Alcohol Testing Programs; Amendments to DOT Agency
Rules Conforming to Department of Transportation Final Rule; Proposed
Rules
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
Coast Guard
46 CFR Parts 4, 5, and 16
Research and Special Programs Administration
49 CFR Part 199
Federal Railroad Administration
49 CFR Part 219
Federal Motor Carrier Safety Administration
49 CFR Part 382
Federal Transit Administration
49 CFR Parts 653, 654, and 655
RINs 2105-AC49, 2120-AH15, 2115-AG00, 2137-AD55, 2130-AB43, 2126-AA58,
2132-AA71
Transportation Workplace Drug and Alcohol Testing Programs;
Amendments to DOT Agency Rules Conforming to Department of
Transportation Final Rule
AGENCIES: Federal Aviation Administration, Coast Guard,
Research and Special Programs Administration, Federal Railroad
Administration, Federal Motor Carrier Safety Administration; Federal
Transit Administration; Office of the Secretary, DOT.
ACTION: Notices of Proposed Rulemaking; Common Preamble.
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SUMMARY: In a rule published December 19, 2000, the Department
of Transportation has revised its drug and alcohol testing procedures
regulation. The purposes of these proposed amendments is to make DOT
agency drug and alcohol testing regulations consistent with the revised
testing procedures regulation, avoid duplication and inconsistency, and
make certain other changes to update and clarify the operating
administration rules.
DATES: Comments should be submitted by June 14, 2001, except
comments on the Coast Guard notice of proposed rulemaking, which should
be submitted by June 29, 2001. Late-filed comments will be considered
to the extent practicable.
ADDRESSES: See each individual DOT agency proposed rule for
information on the docket number and address to use when commenting on
each agency's proposed rule.
FOR FURTHER INFORMATION CONTACT: For information concerning the
relationship of the proposed DOT agency amendments to the revised 49
CFR Part 40, Robert C. Ashby (400 7th St., SW., Washington DC, 20590;
202-366-9310). For information on the individual DOT agency proposed
rules, see the For Further Information Contact persons listed
in each DOT agency proposed rule.
SUPPLEMENTARY INFORMATION: On December 19, 2000 (65 FR 79462),
the Department of Transportation published a comprehensive revision to
our drug and alcohol testing procedural rules (49 CFR part 40). The new
Part 40 makes numerous changes in the way that drug and alcohol testing
will be conducted in the future. While some provisions of the new rules
will be made effective more quickly, as amendments to the existing Part
40, the entire revised part is scheduled to go into effect on August 1,
2001.
Part 40 is one element of a Department-wide set of regulations
designed to deter and detect the use of illegal drugs and the misuse of
alcohol by employees performing safety-sensitive transportation
functions. It is important that the six DOT agency rules that cover
specific transportation industries be consistent with the revised Part
40, to avoid duplication, conflict, or confusion among DOT regulatory
requirements. For these reasons, we are proposing amendments to each of
the six DOT agency drug and alcohol testing regulations connected to
Part 40. We intend to issue final versions of these ``conforming
amendments'' in time to be effective on August 1, 2001, the same date
that the revised Part 40 takes effect.
There are several actions that all or some of the DOT agencies
propose to take in order to ensure consistency with the revised Part
40. The next section of this preamble discusses each of these items in
turn. In addition, there are some provisions of the proposed rules that
are DOT agency-specific. These items are discussed in a subsequent
section of the preamble.
Common Proposals
Substance Abuse Professionals and the Return-to-Duty Process
Currently, most of the DOT agency drug and alcohol testing rules
have their own similar, but not identical, provisions concerning the
return-to-duty (RTD) process for employees who have tested positive or
otherwise violated the rules. These provisions also include (with the
exception of the Coast Guard) material on the qualifications and role
of the substance abuse professional (SAP).
The new Part 40 centralizes the material concerning the RTD process
and the qualifications and role of SAPs. Among the provisions in new
Part 40 are requirements for the qualification and training of SAPs,
requirements for follow-up tests in all cases of violations, and
clarification of the scope of the RTD process (i.e., that it applies
following any violation, including a violation arising from a pre-
employment test; that the RTD requirements follow an employee to
subsequent employers).
To avoid potential duplication and inconsistency, we are proposing
to remove RTD and SAP provisions from the six DOT agency rules. All six
DOT agency programs would use the RTD and SAP provisions of Part 40
beginning August 1, 2001.
Pre-Employment Alcohol Testing
For several years, as the result of a court decision and subsequent
legislation (Sec. 342 of the National Highway Systems Act of 1995),
pre-employment alcohol testing requirements in the FTA, FMCSA, FRA, and
FAA rules have been suspended. (Parallel pre-employment alcohol testing
requirements did not exist in the RSPA and Coast Guard rules.) Section
342 deleted former provisions of the Omnibus Transportation Employee
Testing Act of 1991 requiring pre-employment alcohol testing and
substituted a sentence providing that ``The [Secretary of
Transportation's] regulations shall permit [employers] to conduct pre-
employment testing of such employees for the use of alcohol.''
The practical effect of the suspension of pre-employment alcohol
testing requirements has been to give employers the discretion to
conduct DOT pre-employment alcohol testing. However, the Department has
never amended its rules to specifically reflect the legislation. In
these proposed rules, we would formalize the existing situation and
make the requirements consistent throughout all DOT agency rules. That
is, in all six DOT agency programs, the proposed rules would authorize,
but not require, employers to conduct pre-employment alcohol testing.
If an employer chose to conduct pre-employment alcohol testing under
Federal authority, the employer would have to conduct the testing in
accordance with all Part 40 requirements.
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Split Specimen Testing
At the present time, FTA, FMCSA, FRA, and FAA are required by
statute to collect split specimens for drug testing. Employees have the
right, within 72 hours of being notified of a verified positive test,
to request a test of the split specimen at a second HHS-certified
laboratory. The statute in question does not apply to the Coast Guard
and RSPA programs, in which split specimen testing is currently
discretionary with employers.
As noted in the Part 40 rulemaking, this situation has caused some
confusion among employers, employees, and service agents. Consequently,
the revised Part 40 requires split specimen testing for all DOT
collections. In these proposed rules, RSPA and Coast Guard propose
conforming to the Part 40 requirement to use split specimen collections
in all cases. The split specimen testing rules of Part 40 (including
their application to validity testing) would apply to all DOT
collections, including those under RSPA and Coast Guard rules. RSPA
would remove a provision allowing requests for split specimens to be
made within 60 days, which is inconsistent with the 72-hour provision
of Part 40 and the other operating administration rules.
Stand-Down Waivers
The new Part 40 permits employers to petition DOT agencies for a
waiver allowing the employer to stand employees down following a report
of a laboratory confirmed positive test or refusal, pending the outcome
of the verification process. The stand-down provision contains the
substantive requirements for obtaining a waiver, but does not include
specific waiver procedures.
Each of the operating administrations has, or will add, its own
process for granting waivers from its regulations. In each of today's
proposed rules, the DOT agency involved proposes to connect its own
waiver process with the stand-down waiver provision of new Part 40.
Doing so will inform employers how they should frame stand-down waiver
requests and to whom the requests should be sent.
Definitions
The revised Part 40 includes a number of new or altered definitions
of terms. Examples of new terms are affiliate, adulterated specimen,
consortium/third-party administrator (C/TPA), continuing education,
designated employer representative, dilute specimen, initial and
confirmatory validity test, error correction training, qualification
and refresher training, service agent, stand-down, and substituted
specimen. Other terms have altered definitions (e.g., employer, which
now specifies that service agents are not employers).
In the interest of consistency and the convenience of having a
definition in only one place, the DOT agencies are proposing to delete
definitions of terms that duplicate terms defined in Part 40 (except
where differences or greater specificity are needed in the agency
rules). The DOT agency rules will make use of the terms defined in Part
40, and in some cases would be amended to use those terms.
Qualifications and Training
The revised Part 40 contains new or modified qualification and
training requirements for testing personnel, such as collectors, breath
alcohol technicians (BATs) and screening test technicians (STTs),
medical review officers (MROs), and SAPs. These include requirements
for qualification training, refresher training, continuing education,
and error correction training.
The DOT agency rules do not need to retain provisions related to
the qualifications and training of these personnel that are now covered
in Part 40. Therefore, these proposed rules would delete any references
to the qualifications and training of collectors, BATs and STTs, MROs,
and SAPs.
Enforcement Matters
Each of the DOT agency rules incorporates Part 40 by reference. A
violation of a Part 40 provision automatically becomes a violation of
the DOT agency rule, and is subject to the same kinds of sanctions as
other violations of the agency's rules. In some cases, the DOT agencies
have predetermined sanctions for different kinds of rule violations
(e.g., a ``penalty table''). These agencies, as part of their
proposed rules, will work Part 40 violations into their sanctions
systems.
Each of the proposed rules would make clear that a violation of
Part 40 is a violation of DOT agency rules. In some cases, existing DOT
agency rule language says that in the event of inconsistency or
conflict between Part 40 and the DOT agency rule, the latter controls.
This language has created confusion about the enforceability of Part
40, and the proposed rules would delete it. Where there is a difference
between Part 40 and another DOT agency rule (i.e., one required
by a special circumstance of a particular industry or agency program),
the agency rule will state the difference explicitly.
Role of C/TPAs, MROs, and Service Agents
The new Part 40 makes a significant change in the role of C/TPAs,
permitting them, for the first time, to transmit some test results and
other information from MROs to employers and persons designated by an
employer, as permitted by Part 40, to receive information on behalf of
a specified employer. Some provisions of DOT agency rules are
inconsistent with this new provision, and these proposed rules would
change such provisions to be consistent with new Part 40. The new Part
40 also elaborates roles and responsibilities of service agents to a
greater degree than the present Part 40, and the proposed rules, where
necessary, alter DOT agency rules to be consistent with these
provisions.
The new Part 40 also provides more details concerning the duties
and responsibilities of MROs (e.g., in the validity testing
process, with respect to conflicts of interest and supervision of
staff). To the extent that any DOT agency rule has provisions that are
inconsistent or overlapping with these provisions, the agency proposals
would make appropriate changes to ensure consistency.
Employer Checks on Test Results of Applicants and Employees
Previously, only FMCSA rules had a provision requiring employees to
check on the previous drug and alcohol testing results of applicants
for jobs involving safety-sensitive duties. The new Part 40 applies a
requirement of this kind to all the DOT agency programs. The Part 40
provision is not identical to the current FMCSA rule. For example, the
new provision requires employers to ask applicants whether there were
any situations in which they tested positive on a pre-employment test
for an employer that subsequently did not hire them. To ensure
consistency, FMCSA would delete its current pre-employment check
provision. The Part 40 provision would apply to employers by virtue of
the incorporation of Part 40 in the DOT agency regulations. We seek
comment on whether any additional reference to the Part 40 provision is
needed in the DOT agency rules.
C/TPA Reports of Refusals
Section 40.355(i) of the revised Part 40 provides that, as a
general matter, service agents, including C/TPAs, must not make a
determination that an employee has refused a drug or alcohol test.
Section 40.355(j)(1) creates an exception to this general prohibition,
permitting a service agent to make a
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determination that an employee has refused a drug or alcohol test if
``You are authorized by a DOT agency regulation to do so, you schedule
a required test for an owner-operator, and the individual fails to
appear for the test without a legitimate reason.''
This section was drafted in response to a situation that sometimes
occurs, in which a C/TPA directs an owner-operator or other self-
employed individual to appear for a random or other test and the
individual is a ``no show.'' Because this individual is self-employed,
there is usually no party (like an employer in a larger business) who
can determine that the individual has refused to test and cause the
individual to be removed from performing safety-sensitive functions.
Section 40.355(j)(1) contemplates that, where DOT agency regulations
permit, C/TPAs could make a refusal determination in this situation,
since there basically is no one else in position to do it.
At present, DOT agency regulations do not address this issue. In
some cases (e.g., FRA, FTA), the provision is irrelevant,
because these agencies do not regulate any owner-operators. The
Department seeks comment, however, on whether DOT agencies that do
regulate owner-operators or other self-employed safety-sensitive
personnel should add a provision to their final conforming rules
authorizing this action by C/TPAs. DOT agency rule provisions could
also permit or require C/TPAs, in this situation, to report the
refusals to the applicable DOT agency. The Department seeks comment on
whether such a reporting authorization or requirement is advisable.
Another alternative would be for Part 40 to authorize reporting of this
kind on a Department-wide basis, obviating the need for amendments to
individual operating administration rules.
Rulemaking Process Matters
In addition to these common provisions of the NPRMs, the individual
DOT agencies, in some cases, have agency-specific provisions they wish
to propose. These agency-specific provisions are discussed in the
preambles to each DOT agency rule.
Each of the DOT agencies involved with this rulemaking will be
reviewing one another's dockets, so that suggestions that may have been
made in response to only one agency's proposed rule will be available
to all the agencies. Any or all of the six agencies may make changes to
their proposed rules based on comments that came into the docket of
another of the agencies. In addition, in some cases one agency has
proposed an idea (e.g., an FMCSA proposal to issue notices
concerning random testing rates only when there is a change, rather
than every year) that, after reviewing the dockets, other agencies may
choose to adopt.
Regulatory Analyses and Notices
These proposed rules have been designated as non-significant under
Executive Order 12886 and the Department of Transportation's Regulatory
Policies and Procedures. They are non-significant because they merely
make conforming changes to the revised 49 CFR Part 40, which has
already been subject to extensive comment and analysis. The proposed
changes would not have any incremental economic impacts on their own.
The economic impacts of the underlying Part 40 changes were analyzed in
connection with the Part 40 rulemaking.
Because these proposals have no incremental economic impacts, the
Department certifies, under the Regulatory Flexibility Act, that these
proposals, if adopted, would not have a significant economic impact on
a substantial number of small entities. These proposals likewise have
no incremental Federalism impacts for purposes of Executive Order
13132, so no further analysis is needed for Federalism purposes. All
the information collection requirements of Part 40 have been analyzed
and approved by OMB. These proposed rules would impose no information
collection requirements that have not already been reviewed in context
of the Part 40 rulemaking, so no further Paperwork Reduction Act review
is necessary.
There are a number of other Executive Orders that can affect
rulemakings. These include Executive Orders 13084 (Consultation and
Coordination with Indian Tribal Governments), 12988 (Civil Justice
Reform), 12875 (Enhancing the Intergovernmental Partnership), 12630
(Governmental Actions and Interference with Constitutionally Protected
Property Rights), 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations), 13045
(Protection of Children from Environmental Health Risks and Safety
Risks), and 12889 (Implementation of North American Free Trade
Agreement). We have considered these Executive Orders in the context of
this NPRM, and we believe that the proposed rules do not directly
affect the matters that the Executive Orders cover.
Issued this 9th day of April 2001, at Washington, D.C.
Jon L. Jordan,
Federal Air Surgeon, Federal Aviation Administration.
R.C. North,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety
and Environmental Protection.
Stacy L. Gerard,
Associate Administrator for Pipeline Safety, Research and Special
Programs Administration.
S. Mark Lindsey,
Acting Deputy Administrator, Federal Railroad Administration.
Julie Anna Cirillo,
Acting Deputy Administrator, Federal Motor Carrier Safety
Administration.
Hiram J. Walker,
Acting Deputy Administrator, Federal Transit Administration.
Kenneth C. Edgell,
Acting Director, Office of Drug and Alcohol Policy and Compliance,
Office of the Secretary.
[FR Doc. 01-9409 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-62-U