[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2027]


[[Page Unknown]]

[Federal Register: February 15, 1994]


  
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Part II





Department of Transportation





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Federal Aviation Administration



Federal Highway Administration



Federal Railroad Administration



Federal Transit Administration



Research and Special Programs Administration



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Limitation on Alcohol Use by Transportation Workers; Notice
DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
Research and Special Programs Administration
RIN Nos. 2120-AE43; 2125-AC85; 2130-AA43; 2132-AA38; 2137-AC21.

 
Limitation on Alcohol Use by Transportation Workers

AGENCies: The Federal Aviation Administration (FAA), the Federal 
Highway Administration (FHWA), the Federal Railroad Administration 
(FRA), the Federal Transit Administration (FTA) and the Research and 
Special Programs Administration (RSPA), DOT.

ACTION: Final rules; common preamble.

-----------------------------------------------------------------------

SUMMARY: This document is a common preamble to five alcohol misuse 
prevention program final rules being published by several operating 
administrations (OAs) of the Department of Transportation (FAA, FHWA, 
FRA, FTA, and RSPA) elsewhere in today's issue of the Federal Register. 
Four of these rules are required by the Omnibus Transportation Employee 
Testing Act of 1991. All of them will enhance the overall safety of the 
transportation industry and the public.

DATES: Effective March 17, 1994. See separate operating administration 
rules for specific effective and compliance dates.

FOR FURTHER INFORMATION CONTACT: Gwyneth Radloff, Office of the General 
Counsel, Department of Transportation, (202) 366-9305, 400 7th Street, 
SW., Washington, DC 20590, with respect to the overall Departmental 
effort. For information concerning a particular operating 
administration rule, contact the individual(s) listed under the FOR 
FURTHER INFORMATION CONTACT section for that rule.

SUPPLEMENTARY INFORMATION:

Summary

    FAA, FHWA, FRA, and FTA are promulgating rules to implement the 
Omnibus Transportation Employee Testing Act of 1991 (``the Act''), 
which requires alcohol and drug testing programs in the aviation, motor 
carrier, rail, and transit industries in the interest of public safety; 
FAA, FHWA and FRA also are relying on their other general safety 
authority as a basis for issuing these rules. RSPA is applying similar, 
but more limited, requirements to the safety-sensitive employees in the 
pipeline transportation industry using existing statutory authority.
    The five rules generally have the same requirements and common 
language to the extent possible, in recognition of the common elements 
of the statute and the problem being addressed. This will ease 
compliance for those companies, employers and third-party service 
providers that may be subject to, or performing testing under, the 
rules of more than one of the OAs. Intended substantive differences 
(where industry-specific differences are necessary or to comport with 
existing regulatory format or statutory requirements) are explained in 
the preambles to the individual OA rules.
    In general, the rules prohibit covered employees from performing 
safety-sensitive functions: (1) When test results indicate an alcohol 
concentration of 0.04 or greater; (2) Within four hours after using 
alcohol; (3) While using alcohol on the job; (4) During the 8 hours 
following an accident if their involvement has not been discounted as a 
contributing factor in the accident or until they are tested; and (5) 
If they refuse to submit to required alcohol tests. Employers have to 
remove from a safety-sensitive function any covered employee who 
violates any of these prohibitions until he or she has met the 
conditions for returning to a safety-sensitive function. If an employee 
is found to have an alcohol concentration of 0.02 or greater but less 
than 0.04 or if the employee is under the influence of or impaired by 
alcohol, as indicated by behavior, speech and performance indicators of 
alcohol misuse, and a reasonable suspicion alcohol test result cannot 
be obtained, the employee will have to be removed from safety-sensitive 
duties for 8 hours or until a test result below 0.02 is obtained. Four 
of the rules require employers to conduct pre-employment, reasonable 
suspicion (the term used in the Act, which is comparable to the term 
``reasonable cause'' testing used in the DOT OAs' existing drug rules 
and in the DOT advance notice of proposed rulemaking (ANPRM) on alcohol 
testing discussed below), post-accident, random, return-to-duty and 
follow-up alcohol testing. These rules also establish a performance 
standard for adjusting the initial 25 percent random alcohol testing 
rate for each transportation industry (except RPSA).
    RSPA's rule requires only reasonable suspicion, post-accident, 
return-to-duty and follow-up testing. Most of RSPA's commenters opposed 
the proposed alcohol prevention program; others supported it with 
various modifications tailored to the specific needs of the pipeline 
industry. Those in opposition noted that RSPA is not covered by the Act 
and that we do not have data indicating that there is a problem in the 
pipeline industry to support the costly imposition of the proposed 
program. They also perceived pipeline safety risks as different from 
those in other forms of public transportation, since pipelines do not 
carry people. Some commenters urged that we conduct a pilot program 
until we obtain sufficient data to make a decision on whether 
imposition of the program is justified.
    The lack of data cited by some commenters could result as easily 
from the lack of testing and industry alcohol prevention programs as 
from the absence of an alcohol problem in the pipeline industry. Our 
primary job in these rules is to implement the Act, which we have done 
in the other four OA rules. But to be sure we are providing a margin of 
safety where the Act does not extend, we are establishing an alcohol 
prevention program, including reasonable suspicion and post-accident 
testing, for the pipeline industry. Pipeline safety, obviously, is very 
important. While pipelines do not carry people, they carry dangerous 
materials that could do tremendous damage to people and property if 
someone affected by alcohol makes mistakes. Therefore, for safety 
reasons, we have decided to impose an alcohol misuse prevention program 
on the pipeline industry. We will monitor the data from the testing 
that is conducted to determine whether any further action is warranted. 
The rule will still ensure that pipeline employees are subject to the 
same alcohol misuse prohibitions, consequences and educational efforts 
that apply to other transportation industry employees. Pipeline 
operators can, of course, conduct other types of alcohol testing under 
their own authority.
    The rules will provide more flexibility to use different testing 
technologies for screening tests than we proposed in the OA notices of 
proposed rulemaking (NPRMs). When, in the future, we evaluate and 
approve a device as meeting NHTSA model specifications and we have 
established rules setting forth the procedures for its use, employers 
may use the device. However, at the present time, only evidential 
breath testing (EBT) devices on the National Highway Traffic Safety 
Administration's (NHTSA) Conforming Products List (CPL), including 
those without printers, meet these specifications and will have 
procedures in place at the time the five OA final rules take effect. 
(58 FR 48705, September 17, 1993). The CPL is a list of alcohol breath 
testing devices that have been found to conform to NHTSA's Model 
Specifications for EBTs. The CPL serves as a guide to State and local 
governments when they make purchasing decisions about these devices. 
(NHTSA develops programs relating to motor vehicle and highway safety, 
some of which are designed to reduce alcohol and other drug use among 
drivers.) NHTSA has published elsewhere in today's Federal Register 
proposed model specifications for additional alcohol screening devices, 
which could lead to their approval for future use in conducting 
screening tests under these rules.
    We also are considering requiring the employer to conduct a blood 
test in reasonable cause and post-accident situations where an EBT is 
not readily available. The blood alcohol testing proposal, including 
testing procedures, is addressed in a separate NPRM published elsewhere 
in today's Federal Register. Before we issue a final rule, we need to 
resolve specimen collection issues and determine how to identify those 
laboratories that we can rely on to accurately analyze blood samples 
for alcohol concentration.
    All of the OA alcohol misuse prevention final rules also impose 
reporting and recordkeeping requirements and provide for dissemination 
of alcohol misuse information to employees, supervisor training, and 
referral of employees to substance abuse professionals (SAPs) for 
evaluation.
    This document is a common preamble jointly issued by each of the 
five OAs and provides the background for and an overview of the 
general, common elements of their rules. It is incorporated as part of 
the preamble for each individual OA's rule; additional modal-specific 
preambles have been issued by each of the OAs to provide an explanation 
of any differences from, or additions to, the common language. The 
following related documents appear in today's Federal Register:
    (1) This common preamble;
    (2) An Office of the Secretary (OST) final rule on alcohol testing 
procedures and conforming changes to the existing drug testing 
procedures that is incorporated by reference into the OA alcohol misuse 
prevention final rules;
    (3) An Office of the Secretary (OST) NPRM proposing blood alcohol 
testing requirements and procedures that would be incorporated by 
reference into the OA alcohol misuse prevention final rules, if they 
become final;
    (4) The modal-specific OA alcohol misuse prevention final rules 
for: FAA; FHWA (also includes changes to its existing drug rule 
mandated by the Act, including extension of its rule to persons 
required to hold a commercial drivers license (CDL), including 
intrastate truck and motor coach operations); FRA (also includes 
changes to its existing drug rule); FTA; and RSPA;
    (5) FAA and FHWA NPRMs seeking public comment on application of 
alcohol and drug testing requirements to foreign operators in the 
United States in the aviation and motor carrier industries. A similar 
FRA ANPRM issued December 15, 1992, is being withdrawn by a notice 
published elsewhere in today's Federal Register. Foreign railroad 
operators have very limited operations in the U.S. and already comply 
with FRA's existing substance abuse requirements;
    (6) An FTA final rule that imposes on recipients of Federal funding 
in the transit industry drug testing requirements similar to those in 
the other transportation industries (it also contains MIS requirements 
discussed below);
    (7) An FAA NPRM proposing conforming changes to its existing drug 
testing rule to implement the requirements of the Act and for other 
purposes; and
    (8) A DOT-wide common preamble with rule language from 6 OAs that 
proposes a performance standard for adjusting the random drug testing 
rate for the current random drug testing programs in the aviation, 
motor carrier, rail, pipeline and maritime industries and the new drug 
testing program for the transit industry. The proposals contain 
safeguards that would ensure maintenance of an adequate level of 
deterrence and detection of illegal drug use.
    Related Management Information System (MIS) final rules issued by 
FAA, FHWA, FRA, RSPA and the U.S. Coast Guard (USCG) that require 
employers to submit annual drug testing program information (USCG rule 
also contains alcohol requirements) were published December 23, 1993 
(58 FR 68194 et seq.). FTA's final drug testing rule contains its MIS 
requirements. Similar MIS programs for alcohol are established in the 
OA alcohol rules.
    Regulatory assessments that analyze the costs and benefits of and 
the alternatives considered for each of the final rules and NPRMs 
published in today's Federal Register have been placed in the 
individual rulemaking dockets.

Table of Contents

Background

The Omnibus Transportation Employee Testing Act of 1991
Regulatory History
    ANPRM
    The Public Hearing on Breath Test Device Capability
    The NPRMs
    Summary of Comments
    The Public Meeting
    The National Airline Commission

The Existing Safety Problem

General Information and Definitions
The Effects of Alcohol
The Alcohol Problem--Generally
National Health Care Reform
Alcohol Misuse in the Transportation Industry
    General
    Aviation
    Motor Carriers
    FHWA Pilot Project
    Rail
    Transit
    Pipeline

Legal Authority/Issues

Background
General
The Americans with Disabilities Act and DOT Drug and Alcohol Testing
The Family and Medical Leave Act of 1993

Overview of the Operating Administrations' Final Rules

Purpose
Applicability
Alcohol Testing Procedures
Definitions
Preemption of State and Local Laws
Other Requirements Imposed by Employers
Requirement for Notice
Starting Date for Alcohol Testing Programs

Prohibitions

Alcohol Concentration
On-duty Use
Pre-duty Use
Use Following an Accident
Refusal to Submit to a Required Alcohol Test

Tests Required

General
Pre-employment Testing
Post-accident Testing
Random Testing
    Consortia/Random Testing Pools
    Random Alcohol Rate Performance Standard
    Implementation Issues
Reasonable Suspicion Testing
    Behavior and Appearance
Return-to-duty Testing
Follow-up Testing
Retesting of Covered Employees with an Alcohol Concentration of 0.02 
or Greater, but Less than 0.04

Handling of Test Results, Record Retention, and Confidentiality

Retention of Records
Reporting of Results in a Management Information System
Access to Facilities and Records

Consequences for Employees Engaging in Alcohol-Related Conduct

Removal from Safety-sensitive Function/Required Evaluation and 
Testing
Other Alcohol-related Conduct
Use of Back Extrapolation

Alcohol Misuse Information, Training, and Referral

Employer Obligation to Promulgate a Policy on Alcohol Misuse
    Self-Identification/Peer-Referral Programs
Training for Supervisors
Employee Training
Referral, Evaluation, and Treatment

Other Issues

Flexible Approaches
Motor Carrier Safety Assistance Program (MCSAP Option)
Multi-Agency Coverage

International Issues

Regulatory Analyses and Notices

General
Paperwork Reduction Act

Appendix A to Common Preamble--Bibliography

Background

The Omnibus Transportation Employee Testing Act of 1991

    On October 28, 1991, President Bush signed the Omnibus 
Transportation Employee Testing Act of 1991 (``the Act''). (Pub. L. 
102-143, Title V). The Act requires the Department to prescribe 
regulations within one year that require testing of safety-sensitive 
employees in the aviation, highway, rail, and transit industries and in 
the Federal Aviation Administration for use, in violation of law or 
Federal regulation, of alcohol and drugs listed in the Controlled 
Substances Act. The Act preempts inconsistent State and local laws, 
except certain State criminal laws, in the aviation, highway, and 
transit industries and requires that the regulations be consistent with 
U.S. international obligations. It specifically mandates, among other 
things, privacy in collection techniques, incorporation of the 
Department of Health and Human Services' (DHHS) mandatory guidelines 
for drug testing and comparable safeguards for alcohol testing, 
quantified confirmation of any positive screening result, collection of 
split samples of body fluid specimens, confidentiality of test results, 
and scientifically-random selection of employees to be tested. It 
requires pre-employment, random, post-accident, and reasonable 
suspicion testing; periodic testing is discretionary. Regulations 
prescribed under the Act must include provisions for the identification 
of, and opportunity for treatment for, covered employees in need of 
assistance due to misuse of alcohol or illegal use of controlled 
substances. The Act states that current Federally-mandated programs are 
unaffected by the new statutory requirements.
    At the time of enactment of the Act, several OAs already had 
implemented programs designed to address the use and misuse of drugs 
and alcohol by transportation workers, and the Department had published 
an ANPRM to explore whether additional steps were warranted concerning 
alcohol misuse by employees in the DOT-regulated transportation 
industries (54 FR 46326, November 2, 1989). In 1988, six of the 
Department's OAs--FAA; FHWA; FRA; FTA (formerly the Urban Mass 
Transportation Administration, (UMTA)); USCG; and RSPA--issued drug 
testing rules for members of their regulated industries (53 FR 47002 
et. seq., Nov. 21, 1988). (The FTA rule was vacated by a Federal 
appellate court in January 1990 on the grounds that the agency lacked 
statutory authority to issue nationwide standards requiring drug 
testing.) The drug testing rules generally apply to persons performing 
safety-sensitive functions in commercial transportation operations. The 
Department also published in 1988, and revised in 1989, a Department-
wide drug testing procedures rule (49 CFR part 40) that governs testing 
under all the OA rules (53 FR 47002, Nov. 21, 1988; 54 FR 49854, Dec. 
1, 1989). As noted above, the Act requires certain changes to the 
existing drug testing rules (e.g., it requires split samples and 
extends coverage to persons requires to obtain a CDL, generally 
intrastate truck and motorcoach operations under the FHWA rule). It 
also directs FTA to issue a drug testing rule.
    In addition to the requirements discussed above, the Act requires 
alcohol and drug testing for safety-sensitive FAA employees. Air 
traffic controllers are the largest group of employees subject to this 
testing (they are already subject to drug testing under an existing DOT 
policy). In addition, DOT employees and other Federal agency employees 
in positions requiring a CDL are subject to coverage under the FHWA 
rule. The Department will issue a DOT Order (an internal program 
document) to conform the Department's drug testing program for its own 
employees to the requirements of the Act and to implement a similar 
alcohol misuse prevention program.

Regulatory History

ANPRM
    During the drug testing rulemakings, we noted that, although 
alcohol is a drug, the solution to the alcohol problem may be very 
different from that concerning other drugs, such as cocaine or 
marijuana, and we would address it in a separate rulemaking. For that 
reason, with one exception, the OAs did not include alcohol among the 
list of substances to be tested for under the drug testing regulations. 
(The Coast Guard, which is not covered by this rulemaking, has 
mandatory post-accident alcohol testing and authorized reasonable cause 
(suspicion) alcohol testing. FRA had previously included alcohol in its 
post-accident testing mandate and had authorized alcohol testing for 
reasonable cause.)
    On November 2, 1989, the Department published an advance notice of 
proposed rulemaking (ANPRM) to solicit public comment on whether the 
Department's existing regulatory requirements and programs were 
sufficient to respond to the hazards of alcohol misuse in DOT-regulated 
transportation industries and to determine what additional action, if 
any, should be taken. The ANPRM set forth a number of options for 
reducing alcohol misuse in DOT-regulated industries, if further action 
was deemed necessary. Over 225 comments were filed in response to the 
ANPRM; these comments were considered in developing the NPRMs.
The Public Hearing on Breath Test Device Capability
    After the enactment of the Act, to enable better evaluation and 
comparison of the capabilities of different alcohol testing methods, 
the Department of Transportation conducted a public hearing on November 
18, 1991, to obtain specific information from the manufacturers of 
breath test devices. Our purpose was to examine the current or feasible 
capabilities of equipment to handle the problems of testing in the 
transportation industry, particularly verification of the identity of 
tested individuals and the validity of the test result. At the hearing, 
the Department noted that attempts to tamper with the test and refusals 
to acknowledge the test result may be problems because an immediate 
result is available.
    The Department also indicated that it would need to ensure accurate 
test results without adding prohibitive costs to any proposed program. 
Representatives of eight manufacturers assured DOT officials that 
existing technology can keep adequate, verifiable records of tests. 
They claimed that they could incorporate safeguards against tampering 
with adjustments to hardware and software, such as the assignment of a 
serial number to each test. They pointed out, however, that currently 
available equipment alone cannot provide an indisputable verification 
procedure or replace trained human supervision of the testing process.
    The Department believes that the testing procedures set forth in 
the separate final rule establishing new alcohol testing procedures for 
49 CFR part 40 published in today's Federal Register provide adequate 
safeguards for breath testing in response to the above concerns.
The NPRMs
    On December 15, 1992, the Department published eighteen separate 
documents, including fourteen NPRMs and four ANPRMS, that proposed 
programs in several DOT-regulated transportation industries to reduce 
alcohol misuse and to amend existing industry drug testing programs (57 
FR 59382 et. seq., December 15, 1992). These included: A common 
preamble and an OST NPRM on alcohol testing procedures and conforming 
drug testing changes (part 40), both of which were incorporated by 
reference into the FAA, FHWA, FRA (also included drug changes), FTA, 
and RSPA NPRMs proposing alcohol misuse prevention programs; FAA, FRA, 
and FHWA ANPRMs on application of these requirements to foreign 
operators in the United States; an FTA NPRM proposing an anti-drug 
program for the transit industry; FAA, FHWA, FRA, RSPA, and USCG NPRMs 
proposing the new MIS (FTA drug NPRM included its MIS proposal); an 
FHWA NPRM proposing statutorily-mandated changes to its existing drug 
rule, including extending coverage to intrastate truck and motorcoach 
operations; and a DOT-wide ANPRM that sought comment on less costly 
alternatives to the current industry random drug testing requirements, 
particularly changes to the random drug testing rate. The alcohol 
misuse prevention NPRMs proposed prohibitions on alcohol misuse, 
related consequences, several types of alcohol testing, reporting and 
recordkeeping requirements, dissemination of alcohol information, 
supervisor training and referral of employees to a substance abuse 
professional (SAP) for evaluation.
Summary of Comments
    Since there are common requirements, bases and purposes for the 
rules, each DOT organization (term includes OAs and OST) involved may 
have relied upon comments submitted to the dockets of the other 
participating DOT organizations in developing its final rule. Where a 
DOT organization has relied upon a comment directed to the docket of 
another DOT organization, it will make available a copy of that 
comment. Comments addressing issues common to all of the OAs' alcohol 
prevention programs generally are addressed throughout this common 
preamble. Comments on OA-specific issues and the draft economic 
analyses have been addressed in the preambles to the OA rules. Comments 
on testing procedures, foreign application, drug testing rules and the 
drug testing random ANPRM have been addressed in the preambles to those 
documents.
    Approximately 700 comments were filed in response to the NPRMs in 
the various OA alcohol misuse prevention rule dockets. (Some commenters 
filed identical comments to more than one DOT organization.) Commenters 
included local, State and Federal governmental agencies, trade 
associations, employers, employees, labor unions, consortia, medical 
professionals, substance abuse professionals and individuals. Most of 
the comments were filed by employers, followed by trade associations 
and governmental bodies. The majority of the commenters had a mixed 
reaction to the proposed alcohol misuse prevention programs and 
suggested changes on a variety of issues. Some commenters applauded the 
efforts of Congress and the Department to reduce accidents and save 
lives by removing from our nation's transportation systems employees in 
safety-sensitive positions who misuse alcohol. However, approximately 
one-third of the commenters opposed the specific proposals and only a 
small percent (less than 5 percent) were enthusiastic about them. A 
significant number of those in opposition to this effort cited its high 
cost unsupported by data indicating that there is a serious problem in 
their industry. Other commenters did not believe that mandatory alcohol 
testing will effectively deter or eliminate alcohol use among covered 
employees. As discussed below, many of the requirements of these rules 
are mandated by the Act and the Department has no authority to modify 
or ignore them.
    In addition to soliciting written comments, the Department held 
three public hearings on part 40 and the OA alcohol misuse prevention 
and anti-drug rules in Washington, DC; Chicago; and San Francisco in 
February and March 1993. OST and all OAs, except USCG, which proposed 
only MIS requirements, participated in these hearings. The hearings, 
which ran for two days in each location, consisted of one day of 
testimony on part 40 and general issues and a second day for breakout 
sessions on OA concerns. Approximately eighty people presented 
testimony at those hearings. (Some commenters made presentations at 
more than one hearing.) Transcripts of all the hearings and any written 
materials submitted at the hearings are available in the appropriate 
rulemaking dockets. All comments received at those hearings have been 
fully considered in developing the final rules.
The Public Meeting
    In February 1993, the Department held a public meeting to 
facilitate presentation and discussion of relevant information on 
workplace random testing and its impact on drug use deterrence. Over 20 
participants presented papers and sparked discussions that ranged from 
mathematical models of drug testing rates and their impact on drug use 
to program data from corporations using random drug testing as part of 
a drug-free workplace strategy. The results of the meeting were 
inconclusive. The participants presented no definitive data that 
identified optimal random testing rates for achieving maximum 
deterrence of drug use. Many corporate representatives expressed views 
that favored reducing required random testing rates; however, they did 
not support their views with specific data on the causal or correlative 
relationship between random testing rates and drug use deterrence. The 
discussions also covered the corollary issue of detection of drug 
abusers who are not deterred by workplace drug prevention policies or 
programs. These issues also are relevant to alcohol random testing 
rates discussed later in this document.
The National Airline Commission
    In April 1993, President Clinton established the National 
Commission to Ensure a Strong Competitive Airline Industry (also known 
as the National Airline Commission). Its charter was to review the 
financial condition of the airline industry and to make recommendations 
to assist the industry in recovering from the financial and operational 
difficulties it had faced during the last several years. The National 
Airline Commission met with industry, labor, and government 
representatives in a number of public meetings before drafting its 
final recommendations. Specific to this rulemaking, the Commission 
stated that ``[n]ew pre-employment alcohol testing rules do not need to 
be adopted, and any random alcohol testing of airline employees should 
be at no more than a 10 percent rate.''

The Existing Safety Problem

General Information and Definitions

    Throughout this document, we have generally relied on or referred 
to the results of many studies concerning alcohol. Parenthetical 
references to these studies are included in the text; their full names 
are listed alphabetically in a bibliography in Appendix A. Copies of 
these studies have been placed in OST rulemaking docket 46574. It is 
important to note that the test data we have are not complete; often 
the database includes only those tests that were performed. Post-
accident tests are conducted after some accidents, but not others, 
depending upon current regulatory requirements, the availability of 
testing personnel, and location and timing of accidents. When they are 
conducted, they may occur hours after the accident (e.g., in the 
railroad industry it takes an average of 5 hours before the post-
accident tests can be conducted). Also, data are not comparable among 
the transportation modes, because of differences in reporting 
requirements, databases, and time periods. In addition, the referenced 
studies generally used different parameters and are therefore not 
comparable to each other.
    Many of the words relating to alcohol are used interchangeably in 
our society, which may cause some confusion. In this document, we use 
the terms ``driving while intoxicated'' (DWI) and ``driving under the 
influence'' (DUI) to refer to the same thing: Violation of State and/or 
Federal alcohol concentration standards defining intoxication. ``Zero 
tolerance'' refers to an alcohol concentration standard of 0.00, or in 
some cases, 0.01 or 0.02. Limits on current testing technology 
establish the limit of detection at 0.02 concentration for accuracy and 
precision. ``Impairment'' and ``under the influence'' refer to the 
effect of alcohol ingestion on the performance of a safety-sensitive 
function, without regard to a specific alcohol concentration.

The Effects of Alcohol

    The potential effects of alcohol misuse are substantial in terms of 
lives lost, injuries and environmental and property damage. Alcohol 
misuse claims at least 100,000 lives annually, 25 times as many as all 
illegal drugs combined. In 1992, 39,235 deaths occurred on our nation's 
highways, of which 36 percent involved a legally intoxicated driver or 
non-occupant (e.g., pedestrian), and another 9 percent involved a 
driver or non-occupant with at least some alcohol (with an alcohol 
concentration over 0.01). Alcohol is involved in 45 percent of total 
highway fatalities. (National Highway Traffic Safety Administration, 
``Traffic Safety Facts 1992--Alcohol'').
    Ethanol (the psychoactive component of alcoholic beverages) is a 
central nervous system depressant. It has been widely recognized for 
years that consumption of alcohol can degrade performance of demanding 
or delicate tasks. There is less agreement, however, about how much 
alcohol must be ingested before a significant degradation of 
performance occurs. Studies have indicated that the effects of alcohol 
vary among individuals, and, even for a given individual, alcohol will 
have varying effects depending on such factors as motivation, fatigue, 
and previous experience with alcohol (Zero Alcohol, 1987; Ryder, 1981; 
Landauer, 1983; Lister, 1983). One reason for the substantial variation 
among individuals is that ingestion of a specified quantity of alcohol 
by two people will not necessarily produce the same alcohol 
concentration in each, even if they have the same body weight (Zero 
Alcohol, 1987).
    In one study, for example, it was found that a given body-weight-
adjusted dose of ethanol could produce a range of alcohol 
concentrations of 0.036 to 0.095 (O'Neill, 1983). In addition, alcohol 
appears to enter the blood stream at different rates in different 
people (Zero Alcohol, 1987). In another study, subjects were given 
controlled doses and had equal amounts of food in their system. 
Nevertheless, the time required to reach the peak alcohol concentration 
varied from 15 to 90 minutes after ingestion (Wilson, 1984).
    There also are performance differences between individuals that are 
unrelated to their blood alcohol concentration. It appears that highly 
skilled professionals may be better able to compensate for the 
physiological effects of alcohol than persons who are less skilled, 
particularly at lower alcohol concentrations. In two studies comparing 
the effect of alcohol on the performance of racing drivers and ordinary 
drivers on a closed track, the skill of the ordinary drivers showed 
some degradation at an alcohol concentration of 0.05, while the racing 
drivers showed no impairment until they reached substantially higher 
alcohol concentrations (Forney, 1961). Similarly, in a comparison of 
nonprofessional and professional pilots at alcohol concentrations of 
0.04, 0.08, and 0.12, the nonprofessionals made numerous errors in 
tracking, while the professionals' tracking ability did not decrease 
even at the highest alcohol concentration (Billings, 1972). The study 
noted, however, that the professional pilots committed more procedural 
errors than normal after alcohol consumption. Compounding factors, such 
as fatigue and unexpected challenges, also are likely to affect results 
in a real-world situation.
    Most States have adopted an alcohol concentration of 0.10 as the 
definition of intoxication in connection with laws imposing civil or 
criminal penalties for driving under the influence for non-commercial 
as well as for commercial operators. Some use it as a rebuttable 
presumption of a violation; others as a per se violation. Ten states 
have lowered their alcohol concentration standards to 0.08; and a 
number of states have adopted or are in the process of considering 
adoption of the existing 0.04 FHWA alcohol concentration standard for 
commercial drivers established by previous rulemaking. States with 
alcohol concentration standards for operating recreational vessels or 
aircraft typically use 0.10.
    As indicated above, however, a number of laboratory studies have 
shown that performance on some tasks can begin to degrade at alcohol 
concentrations well under 0.10 (Moskowitz, 1973; Drew, 1959; Landauer, 
1983; NHTSA, 1988). Some studies have suggested that performance 
degrades in a linear fashion, beginning with the lowest levels tested 
(Moskowitz, 1985; Drew, 1959). Blood alcohol concentrations (BAC) lower 
than 0.05 have been associated with increases in errors in tasks 
requiring divided attention, and it appears that cognitive performance 
is decreased for most individuals at BAC's of 0.04 or less (Zero 
Alcohol, 1987; Evans, 1974). Low alcohol concentrations have also been 
shown to affect a driver's stopping distance and to increase errors in 
steering (Laurell, 1977). There is no definitive answer to how much the 
risk of accident occurrence increases as a result of the performance 
deficit, but some relationship can be assumed. Those OAs in the 
Department that have set existing alcohol concentration standards for 
transportation workers (FAA, FHWA, FRA and Coast Guard) generally have 
used 0.04 as the prohibited concentration.
    In its most recent edition of ``Fatality Facts,'' the Insurance 
Institute for Highway Safety notes that ``even at BACs as low as 0.02%, 
alcohol affects driving ability and crash likelihood. The probability 
of a crash begins to increase significantly at 0.05% BAC and climbs 
rapidly after about 0.08%. For drivers with BACs above 0.15% on weekend 
nights, the likelihood of being killed in a single-vehicle crash is 
more than 380 times higher than it is for nondrinking drivers.''

The Alcohol Problem--Generally

    The National Institute on Alcohol Abuse and Alcoholism (NIAAA) 
reported in 1987 that two of every three adults in the United States 
drink, but 10 percent of those drinkers consume half of the nation's 
beer, wine and liquor. The National Institute on Drug Abuse (NIDA) 
reported that an estimated 17 million U.S. adults are alcoholics, which 
is about six times higher than the number of cocaine users. (NIDA 
study, 1989). While it is difficult to estimate the precise cost to 
society from alcohol misuse, there is no doubt that the cost is 
enormous. The potential effects of alcohol misuse are substantial in 
terms of lives lost, personal injuries, property damage, business 
losses (lost productivity, absenteeism, increased health care costs, 
etc.) and environmental damage.
    According to a Research Triangle Institute study performed for the 
Department of Health and Human Services, the overall economic cost to 
American society from alcohol misuse was $89.5 billion in 1980. This 
amount represents direct costs, such as medical treatment, and indirect 
costs, such as lost wages and reduced productivity. In 1987, the NIAAA 
estimated the economic costs to society of alcohol misuse to be nearly 
$117 billion a year, including $18 billion from premature deaths, $66 
billion in lost productivity, and $13 billion for rehabilitation. 
Assuming the base numbers are still the same, inflation presumably has 
increased the cost in current dollars.
    The National Academy of Sciences (NAS) recently released a study of 
drug use in the American workforce. The study reviewed the existing 
research literature on (1) the effects of drug and alcohol use on 
workplace performance and productivity, (2) the effectiveness of 
workplace interventions, and (3) the scope of alcohol and other drug 
use. The study concluded that more epidemiological and longitudinal 
research is needed and that the current research literature does not 
provide definitive conclusions about the scope of use, the specific 
effects of drug and alcohol use on work performance tasks, and the 
effectiveness of workplace interventions such as drug and alcohol 
testing and employee assistance programs. We believe that the existing 
research literature supports the actions that we are taking here and 
that data gathered as a result of these rules will provide useful 
additional information concerning these issues.

National Health Care Reform

    Secretary of Transportation Federico Pena recently set a goal of 
reducing alcohol-related highway fatalities from 45 percent to 43 
percent of total highway fatalities by 1997. He noted that alcohol-
related traffic fatalities decreased by 20 percent between 1990 and 
1992 due to increased alcohol awareness among teenagers and tougher 
enforcement measures that reduced impaired driving by repeat offenders. 
Motor vehicle accidents are a major health problem. They are the 
primary cause of death for the American population between 5 and 34 
years of age, and account for half the total of injury deaths. More 
people are injured or die in motor vehicle-related accidents each year 
than from heart disease, cancer, and strokes combined. Alcohol 
involvement is the single largest factor in motor vehicle deaths and 
injuries, which as a whole cost the nation $14 billion in health care 
costs each year; any reduction in impaired driving would directly 
contribute to reducing health care and other economic costs. The 
Department estimates that reducing highway alcohol-related fatalities 
to 43 percent of total fatalities and reducing related injuries by a 
proportionate amount would save 1,200 lives annually and save U.S. 
taxpayers $282 million in health care costs annually. Obviously, 
reducing alcohol-related fatalities and injuries in other 
transportation industries would further reduce those costs.
    The measures contained in these rules and the Department's 
partnership with industry and State and local governments to educate 
the public about impaired driving are part of a broad Department effort 
to reduce accidents and injuries resulting from alcohol misuse in each 
of the transportation industries, which will, in turn, reduce health 
care costs under President Clinton's health care reform initiative. 
Increased detection of alcohol misusers and their diversion into the 
health care system could increase health care costs in the short term, 
since individuals with serious alcohol problems tend to neglect health 
care until intervention. This increase would be mitigated to a certain 
extent by a decrease in alcohol-related absenteeism. However, long term 
health care costs should decrease because early intervention prevents 
more serious and more costly health problems later.

Alcohol Misuse in the Transportation Industry

General
    The Department's previous alcohol misuse prevention efforts have 
developed unevenly and vary across the transportation industries. The 
existing OA rules focus on alcohol in terms of: Its effect on an 
individual's medical qualifications; prohibitions against on-duty use; 
operating while under the influence; use during defined pre-duty 
periods; and sanctions for violations of the Federal regulatory scheme, 
as well as sanctions for violations of State alcohol laws. Alcohol 
testing, with limited exceptions, has been left to State enforcement. 
(Current FRA rules require post-accident and authorize reasonable cause 
testing. The FAA requires crewmembers to submit to tests upon request 
by State and local officials and to furnish the results to the 
Administrator. The Coast Guard also has existing requirements 
concerning alcohol misuse, including some testing.) Each of the 
following sections briefly describes the existing OA rules on alcohol 
and contains available Departmental data on the alcohol problem in each 
segment of the transportation industry.
Aviation
    The current FAA regulations prohibit a person from acting or 
attempting to act as an aircraft crewmember if he or she is under the 
influence of alcohol, has consumed any alcoholic beverage within the 
prior 8 hours, or has an alcohol concentration of 0.04 or greater. The 
FAA may medically disqualify a pilot with a history of drug dependence, 
alcoholism, or mental problems.
    In 1987, the Department's Inspector General checked the National 
Driver Register (NDR) against records in the Florida Department of 
Motor Vehicles; it found that nearly 8,000 FAA-certified pilots in 
Florida had been convicted of drunk-driving offenses. Recent 
legislation allowed FAA and the rail industry to use the NDR to locate 
and review individual driving records to screen qualifications of 
airline pilots and locomotive engineers. The FAA was unaware of these 
DUI convictions because the pilots had not reported them to the FAA as 
required. The FAA then issued a DUI enforcement policy and a rule that 
includes, among other matters, a process for examining driving records. 
Pilots with 2 or more drug- or alcohol-related driving offenses within 
3 years are subject to FAA certificate revocation action.
    In 1991, the FAA began checking the NDR to identify pilot 
certificate holders who had drunk-driving convictions. Of pilots 
seeking medical recertification during the period May 1991 through May 
1993, 5.79 percent had at least one DWI conviction reported. The total 
number of pilots (for scheduled and non-scheduled airlines) who had one 
or more DWI's was 4,386, or 6.4 percent. There is no research that 
directly links impaired driving behavior to commercial aviation 
performance; however, impaired driving behavior is often associated 
with alcohol abuse and/or alcoholism.
    There has never been an accident involving a large U.S. passenger 
airline in which the probable cause was attributed to alcohol use. 
However, in 1990, three Northwest Airlines pilots were convicted of 
flying while intoxicated between Fargo, ND, and Minneapolis, MN. Two 
hours after the flight ended, the crew captain's alcohol concentration 
was found to be 0.13; he testified that he drank 20 rum and cokes the 
night before the 6 a.m. flight. Starting in the early 1970's, the Air 
Line Pilots Association and the major airlines, in cooperation with the 
FAA, developed a program to identify alcoholic pilots, so that they 
could be treated and, as appropriate, returned to duty. More than 1,500 
pilots have been through this program, with a relapse rate of 
approximately 10 percent. Since the program provides for stringent 
surveillance of treated pilots, there has been no compromise of safety. 
Nevertheless, the existence of such an extensive program and the 
occurrence of the Northwest pilots incident demonstrate that the air 
carrier industry is not immune to the problem of alcohol misuse.
    The National Transportation Safety Board (NTSB) has collected the 
following data concerning the relationship between alcohol and aviation 
accidents: From 1975 through 1986, eleven part 135 carriers (all except 
one were commercial air taxi cargo planes; the exception was a non-
scheduled charter carrier with a foreign crew) were involved in 
accidents in which alcohol was determined to be a factor. As noted 
above, there have been no part 121 or part 135 (large or air taxi/
commuter air carrier) accidents in which alcohol has been determined to 
be a cause.
    Virtually all commenters to the FAA docket claimed that, in light 
of the current financial state of the airline industry, DOT should not 
mandate an overzealous random alcohol testing program that is not 
statistically justified. As we noted above, we are constrained by the 
requirements of the Act. To the extent possible, we have tried to 
provide flexibility to employers that will enable them to make cost-
conscious decisions for their specific circumstances. With respect to 
our lack of data, it is difficult to know whether the lack of a large 
U.S. passenger aircraft accident caused by alcohol is due to the fact 
that it has never happened or because we have no required testing and 
could not determine that alcohol was involved.
Motor Carriers
    Currently, drivers found to be under the influence of alcohol or 
drugs are disqualified from operating a commercial motor vehicle (CMV). 
FHWA regulations prohibit the use of alcoholic beverages within four 
hours of reporting to work and also prohibit a driver from driving 
while having any measurable alcohol concentration or any detected 
presence of alcohol in his or her system. This effectively amounts to a 
zero alcohol limitation for CMV operators. In addition, a driver will 
not be considered physically qualified to drive a motor vehicle if, 
among other things, the driver has no current clinical diagnosis of 
alcoholism.
    Accident statistics indicate that nearly half of the fatally 
injured noncommercial motor vehicle drivers had a measurable amount of 
alcohol in their blood (usually 0.10 or more) compared with about 15 
percent of fatally injured drivers of medium and heavy trucks. 
Moreover, as the chart below indicates, for those truck drivers who had 
been drinking before an accident, the highest accident rate was among 
those consuming the most alcohol. Drivers of heavy and medium trucks 
with measurable alcohol concentrations are involved in about 750 fatal 
crashes annually, along with another 7,700 crashes resulting in 
personal injuries and 4,750 crashes involving only property damage 
(Zero Alcohol, 1987).

------------------------------------------------------------------------
                                                              Percentage
                                                              of the 15%
                                                 Percentage    of truck 
                                                   of all    drivers who
                                                fatal truck  had alcohol
                                                 accidents     in their 
                                                                blood   
------------------------------------------------------------------------
No Truck Driver Use of Alcohol................         85.0          N/A
AC=0.10 or more...............................          9.1           60
AC=0.04-0.10..................................          2.7           18
AC=.03 or less................................          3.2           21
------------------------------------------------------------------------
(Zero Alcohol, 1987) (FARS data tapes, 1982-1985) (AC means alcohol     
  concentration)                                                        

    In 1990, the NTSB published the results of a study of alcohol (and 
other drugs) used by CMV operators in fatal-to-the-driver, heavy truck 
accidents. Thirteen percent of the fatally injured drivers tested 
positive for alcohol. (Another 20 percent of the drivers tested 
positive for other drugs.) We also know that the cost of accidents to 
employers is substantial, over and above the lives lost, whether CMV 
accidents are caused by alcohol or something else. The National Safety 
Council estimates that an on-the-job accident is four times more costly 
than one that occurs in a personal vehicle, with an average cost to 
employers of $168,000 for a fatal accident and $6,900 for a non-fatal 
accident. The impact of on-the-job accidents caused by alcohol on 
employer costs is quite significant.
    FHWA Pilot Project. The Act required the Secretary of 
Transportation to conduct a pilot program for the purpose of testing 
drivers on a random basis to determine if a driver has used alcohol or 
a controlled substance in violation of law or federal regulation. The 
pilot testing program was administered as part of the FHWA's Motor 
Carrier Safety Assistance Program (MCSAP) and implemented in four 
States for a period of one year. At the completion of the pilot 
program, the Department will issue a report of the program, including 
recommendations concerning the desirability and implementation of a 
MCSAP-administered random testing program. FHWA began the 
implementation of the required pilot project in Fiscal Year 1993 
(October 1, 1993-September 30, 1994). (N.B.: the Fiscal Year for the 
Federal government may differ from that used by other entities.) 
Preliminary data from the pilot program show 88 breath test results of 
0.02 alcohol concentration or greater out of 43,170 tests conducted 
(0.2 percent). However, in two States (Minnesota and New Jersey) 
submitting to the breath test was voluntary and from 5 to 10 percent of 
drivers randomly selected declined to take a breath test.
Rail
    Current FRA regulations prohibit on-the-job use of, possession of, 
or impairment by, alcohol, or having an alcohol concentration of 0.04 
or more, for employees covered by the Hours of Service Act. Workers who 
report for duty under the influence can be identified, removed from the 
workplace, and referred for assistance under Operation RedBlock or 
other similar peer prevention substance abuse programs operated by the 
railroad industry. The covered employee can be referred for assistance 
by a peer, a supervisor or himself/herself.
    As part of the post-accident testing conducted under its current 
rules, FRA has gathered the following data. From February 1986, when 
mandatory FRA post-accident blood testing for alcohol began, through 
December 1992, 23 employees tested positive for alcohol (0.5 percent of 
employees tested). However, the number of positive findings has 
declined from 6 (1.0 percent of all persons tested) in 1989, to 1 (0.3 
percent of all persons tested) in 1992. Since 1986, alcohol appears to 
have played a causal role in 11 accidents/incidents involving four 
deaths, three injuries, and property damage in excess of $3.3 million. 
In one, the engineer tested positive at an alcohol concentration of 
0.16, and alcohol was found by the NTSB to be a contributing factor to 
the accident. The incident caused $1.58 million damage and the death of 
the engineer. In another accident, eight injuries and $194,000 in 
damages resulted, and a dispatcher tested positive at 0.15 alcohol 
concentration. In a 1990 accident, an engineer tested positive with an 
alcohol concentration of 0.05 after his train passed a stop signal and 
collided with another train, resulting in one injury and nearly 
$500,000 in property damage. In 1991, two brakemen were killed, one by 
a train when struck during a switching operation and the other when he 
fell from the side of a train. Post-mortem toxicology revealed alcohol 
concentrations of 0.04 and 0.08, respectively.
    Reasonable cause breath testing under the FRA program or pursuant 
to railroad authority (triggered by rule violations, less serious 
accidents and injuries, or reasonable suspicion) has produced the 
following results: 11 of 348 persons so identified tested positive in 
1986 (3.2 percent); 24 of 593 tested positive in 1987 (4.0 percent); 46 
of 1005 tested positive in 1988 (4.6 percent); 31 of 973 tested 
positive in 1989 (3.2 percent); 32 of 2662 tested positive in 1990 (1.2 
percent); 37 of 2798 tested positive in 1991 (1.32 percent); and 30 of 
2850 tested positive in 1992 (1.2 percent). FRA regulations define a 
``positive'' breath test as one indicating an alcohol concentration of 
0.02 or above. The significance of these results with respect to 
measuring prevalence in the population is difficult to determine. It 
should be expected that a higher percentage of reasonable suspicion 
tests will be positive, since prohibited use or impairment had already 
been identified or suspected.
Transit
    FTA does not have any existing regulations concerning alcohol. Its 
primary mission is to provide grants for the financing and improvement 
of transportation systems. Many of FTA's grantees, however, are subject 
to other Federal requirements on alcohol use. All commuter rail 
operations funded by FTA, for example, are subject to FRA regulations. 
Ferry operations that receive FTA funds are subject to USCG safety, 
drug and alcohol regulations, as well as the FTA drug and alcohol 
testing rules published today.
    The need for alcohol testing of transit employees was highlighted 
by a December 28, 1990, accident in Boston, Massachusetts, where a 
transit operator, with an alcohol concentration above 0.10, crashed a 
trolley car, injuring 33 people. In addition, the Senate Committee on 
Commerce, Science, and Transportation's report on S. 676, No. 102-54 
(May 2, 1991), noted that, in Philadelphia alone, transit operators 
have tested positive for drug or alcohol use in six major accidents 
between 1986 and 1990, involving at least 183 injuries and three 
deaths. (Separate figures for drug and alcohol involvement were not 
provided.) On August 28, 1991, a New York City Transit Authority 
motorman later found to have an alcohol concentration of 0.21 crashed a 
subway train resulting in 5 deaths and 171 injuries; this accident led 
to the prompt passage of the Act. Following issuance of the 1988 FTA 
anti-drug rulemaking, some industry members indicated that alcohol is a 
more serious problem than drugs.
    An FTA document entitled, ``Substance Abuse in the Transit 
Industry,'' November 1991, was based upon a transit agency survey and 
an employee survey. It revealed that responding transit managers 
perceived alcohol as the major substance of misuse and that 58 percent 
of the transit systems test for alcohol. Employee knowledge of coworker 
alcohol misuse was extensive; about 70 percent of employees surveyed 
had some knowledge, either through hearsay or by direct observation, of 
alcohol impairment of colleagues in the workplace during the previous 
year. About six percent of the safety-sensitive employees reported 
alcohol use during or just before duty. Another 15 percent of the 
safety-sensitive employees reported less frequent alcohol consumption, 
but at a nearly similar volume as those employees noted above. When 
comparing these data with those contained in the ``National Household 
Survey on Drug Abuse: Population Estimates 1988'' and the comparable 
1990 NIDA survey, it appears that reported alcohol use in the transit 
industry is slightly lower than that reported for the general 
population.
Pipeline
    RSPA has no specific regulations on alcohol. It does have a general 
regulation on health of pipeline workers at liquefied natural gas 
plants. Pipeline operators must look for any physical condition that 
would impair performance, including any observable disorder or 
condition that is discoverable by a professional examination.
    We have no specific data on alcohol-related accidents or lost 
productivity data in this area; however, a number of the commenters in 
the anti-drug rulemaking seemed to believe that alcohol is a more 
pervasive problem than drugs in the pipeline industry. We also are 
aware that many companies in the pipeline industry are known to have 
alcohol prevention programs. We do not have statistics or data on the 
prevalence of the problem in the industry, but we cannot assume that 
pipeline workers are immune from the problem and must err on the side 
of safety. The largest single cause of pipeline accidents is excavation 
damage by people digging into pipelines (people not regulated by RSPA).

Legal Authority/Issues

Background

    The following legal analysis was included in the common preamble to 
the proposed DOT alcohol testing rules published in the Federal 
Register of December 15, 1992, (See 57 FR 59389-59391) and is 
republished with this document for ease of reference. Since that time, 
there have been no significant case law developments to raise any 
doubts concerning the Department's stated belief that existing legal 
precedents support this rulemaking. To the contrary, the case law 
addressing the constitutionality of alcohol and drug testing is even 
more settled. Of particular note in this regard is a recent Federal 
district court ruling that random testing of commercial motor vehicle 
operators for alcohol and controlled substances pursuant to a one-year 
pilot study in four States, as mandated by section 5(b) of the Omnibus 
Transportation Employee Testing Act of 1991, Pub. L. 102-143, title V, 
codified at 49 U.S.C. app. 2717 note, comports with the Fourth 
Amendment of the U.S. Constitution and is not an unreasonable search 
and seizure. Owner-Operator Independent Drivers Association, Inc. v. 
Pena, No. 93-1427, U.S. District Court for the District of Columbia, 
November 1, 1993.

General

    The Omnibus Transportation Employee Testing Act of 1991 is a direct 
statutory mandate for alcohol testing in the aviation, motor carrier, 
rail, and transit industries. In addition to this authority, the 
general safety authority relied on for issuing the drug testing rules 
described above also provides a basis for issuing alcohol misuse 
prevention rules by FAA, FHWA, FRA, and RSPA. Although the existing 
case law addressing the constitutionality of employee alcohol testing 
programs remains more sparse than that for drug testing, the existing 
legal precedents support this rulemaking effort to require alcohol 
testing in the regulated transportation industries.
    Consistent with court findings in the area of government-mandated 
drug testing of employees, alcohol testing mandated by the government 
is considered a search within the meaning of the Fourth Amendment to 
the U.S. Constitution. See, Schmerber v. California, 384 U.S. 757, 767-
768 (1966) (``compelled intrusions into the body for blood to be 
analyzed for alcohol content'' must be considered a Fourth Amendment 
search); Skinner v. Railway Labor Executives' Association, 489 U.S. 
616-617 (1989) (``Subjecting a person to a breathalyzer test, which 
generally requires the production of alveolar or `deep lung' breath for 
chemical analysis * * * implicates * * * concerns about bodily 
integrity and, like the blood-alcohol test * * * considered in 
Schmerber, should also be deemed a search.'')
    In deciding whether a particular search comports with Fourth 
Amendment protections, courts must determine that under all the 
particular circumstances the search itself is ``reasonable.'' As the 
leading case on bodily fluid testing, Skinner, makes clear, issuance of 
a warrant or the existence of probable cause or individualized 
suspicion is not a minimum essential requirement in establishing the 
reasonableness of a search under an administrative testing program.
    In Skinner, the Supreme Court upheld regulations issued by the 
Federal Railroad Administration governing drug and alcohol post-
accident and reasonable cause testing of railroad employees (49 CFR 
part 219). The Court concluded that the testing procedures and methods 
of procuring blood, breath, or urine for testing as set forth in 
subparts C and D of the FRA regulations ``pose only limited threats to 
the justifiable expectations of privacy of covered employees.'' 489 
U.S. at 628. In specifically focusing on the privacy implications of 
breath alcohol tests, the Court also pointed out that:

    The breath tests authorized by subpart D of the regulations 
[testing for reasonable cause] are even less intrusive than the 
blood tests prescribed by subpart C [post-accident toxicological 
testing]. Unlike blood tests, breath tests do not require piercing 
the skin and may be conducted safely outside a hospital environment 
and with a minimum of inconvenience or embarrassment. Further, 
breath tests reveal the level of alcohol in an employee's 
bloodstream and nothing more. Like the blood-testing procedures 
mandated by Subpart C, which can be used only to ascertain the 
presence of alcohol or controlled substances in the bloodstream, 
breath tests reveal no other facts in which the employee has a 
substantial privacy interest. * * * In all the circumstances, we 
cannot conclude that the administration of a breath test implicates 
significant privacy concerns. Id. at 625-626.

    While the Court indicated that the collection of urine samples 
requires employees ``to perform an excretory function traditionally 
shielded by great privacy, [thus] rais[ing] concerns not implicated by 
blood or breath tests[,]'' it pointed out that the FRA collection 
procedures significantly reduced the degree of personal privacy 
intrusion. Id. at 626. The Court also examined the overall privacy 
expectations of covered railroad workers subject to the FRA testing 
requirements. It concluded that these expectations ``are diminished by 
reason of [`covered employees'] participation in an industry that is 
regulated pervasively to ensure safety * * *'' Id. at 627.
     By contrast, the Court found that the government's interests in 
seeking to determine the cause of an accident or incident, deterring 
alcohol and illegal drug use by rail employees, and safeguarding the 
general public are compelling. Under these circumstances, the Court 
held that alcohol and drug testing pursuant to the FRA regulations are 
reasonable within the meaning of the Fourth Amendment. Also, the Court 
found that the government's justification in testing for misuse of 
alcohol--a legal substance--was entitled to no less weight than its 
justification for testing for drugs, the possession of which is 
unlawful. Thus, as the Court pointed out, the FRA-prescribed 
toxicological tests were not designed ``to assist in the prosecution of 
employees, but rather to prevent accidents and casualties in railroad 
operations that result from impairment of employees by alcohol or 
drugs.'' Id. at 621-622, 633 (quoting FRA regulations at 49 CFR 
219.1(a)).
    The alcohol testing requirements for transportation industry 
workers published by each of the OAs in today's Federal Register are 
consistent with the Court's views in Skinner. Given the overwhelming 
public safety considerations associated with alcohol testing programs 
and the limited degree of intrusion into individual privacy interests 
engendered by the tests, the required testing programs would be 
constitutionally permissible under the Fourth Amendment.
    Also, the requirement that an employer perform random alcohol 
testing that is performance-related, i.e,, related closely in time to 
an employee's actual performance of safety-related duties, further 
demonstrates the reasonableness of the rules for Fourth Amendment 
purposes by ensuring that testing for misuse of alcohol is clearly 
related to the employee's performance of these duties. With respect to 
use of particular testing devices or methods, we note that, as a number 
of courts have pointed out, the reasonableness of a testing program 
does not necessarily turn on the existence of other alternatives that 
might be less intrusive. See American Federation of Government 
Employees v. Skinner, 885 F.2d 884, 897 (1989), cert. denied, 495 U.S. 
923-924 (1990).
    The lack of a demonstrated substance abuse problem among the 
workforce in a particular industry should not, of itself, pose 
insurmountable constitutional impediments to a testing program for that 
workforce. This point was made clear by the Supreme Court in National 
Treasury Employees Union v. Von Raab, 489 U.S. 656, 674-675 (1989), 
which was decided the same day as Skinner. In Von Raab, the Court 
upheld urinalysis testing for illegal drugs of U.S. Customs Service 
employees slated for promotions into positions that involved either 
interdicting illegal drugs or carrying a firearm. Despite the 
Commissioner of Customs' stated belief that ``Customs is largely drug-
free,'' the Court concluded that there was little reason to suspect 
that the Customs Service was ``immune'' from society's pervasive drug 
abuse problem and held that the testing program was constitutionally 
defensible as a means to ensure that employees promoted to these 
sensitive positions are drug-free. Id., at 660, 674. It stated that the 
government does not have to first establish that a specific industry 
has a problem. (``It is sufficient that the government have a 
compelling interest in preventing an otherwise pervasive societal 
problem from spreading through the particular context.'') Id. note 3 at 
675.
    Skinner and Von Raab established the analytical framework for 
courts to resolve constitutional challenges to various employee 
substance abuse testing programs. Not surprisingly, Federal courts 
reviewing anti-drug abuse regulations issued by the Department have 
relied extensively on these two decisions in upholding drug testing of 
safety- and security-sensitive workers in industries regulated by the 
Department. See, Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990), 
cert. denied, 111 S.Ct. 954 (1991) (upholding constitutionality of 
Federal Aviation Administration regulations requiring random drug 
testing of flightcrew members, maintenance personnel, and other 
categories of employees in the commercial aviation industry); 
International Brotherhood of Teamsters v. Department of Transportation, 
932 F.2d 1292 (9th Cir. 1991) (upholding constitutionality of Federal 
Highway Administration regulations requiring random, biennial, pre-
employment and post-accident drug testing of commercial motor vehicle 
drivers operating in interstate commerce); Railway Labor Executives' 
Association v. Skinner, 934 F.2d 1096 (9th Cir. 1991) (upholding 
constitutionality of Federal Railroad Administration's regulations 
requiring random drug testing of railroad workers in safety-sensitive 
positions); International Brotherhood of Electrical Workers v. Skinner, 
913 F.2d 1454 (9th Cir. 1990), and United Steelworkers of America v. 
Skinner, 768 F. Supp 30 (D. RI 1991)(upholding constitutionality of 
Research and Special Programs Administration's regulations requiring 
random, pre-employment, and post-accident drug testing of safety-
sensitive employees engaged in natural gas, liquefied natural gas, and 
hazardous liquid pipeline operations.) See also, Transportation 
Institute v. Coast Guard, 727 F. Supp. 648 (D.D.C. 1989) (upholding 
constitutionality of Coast Guard regulations requiring pre-employment, 
periodic, post-casualty, and reasonable cause drug testing for merchant 
marine personnel; however, regulations requiring random drug testing of 
all vessel crewmembers were found to violate the Fourth Amendment 
because the safety-sensitive duties performed by this entire class of 
employees was not evident. Although the court noted that random testing 
for employees could be constitutionally acceptable, it held that the 
Coast Guard had not adequately described the safety-sensitive functions 
of the covered employees to allow the court to establish the necessary 
nexus. The missing safety nexus was established in a subsequent Coast 
Guard final rule reimplementing random drug testing). Even pre-Skinner 
and Von Raab court decisions addressing the constitutionality of 
various employee alcohol testing programs have concluded that such 
testing comports with the Fourth Amendment. Thus, a State regulation 
requiring jockeys to submit to mandatory warrantless breath alcohol 
tests on each racing day was found to be constitutionally permissible. 
Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.), cert. denied, 479 U.S. 
986 (1986). Similarly, alcohol and drug testing during a pre-employment 
physical examination, work-related examination, return to work after 
unscheduled absence, or on the basis of reasonable suspicion or 
involvement in an accident or incident was upheld in the case of 
transit employees directly involved in the operation, maintenance, and 
decisionmaking of a public transit system. Amalgamated Transit Union, 
Local 933 v. City of Oklahoma City, 710 F. Supp. 1321 (W.D. Okla. 
1988). Accord, Amalgamated Transit Union, Division 1279 v. Cambria 
County Transit Authority, 691 F. Supp. 898 (W.D. Pa. 1988) (mandatory 
drug and alcohol testing during annual physical examination does not 
violate Fourth Amendment).
    Also, several more recent Federal court decisions upheld employee 
alcohol testing in the wake of Skinner. Thus, in Transport Workers 
Union, Local 234 v. Southeastern Pennsylvania Transportation Authority, 
863 F.2d 1110 (3d Cir. 1988), vacated and remanded, 492 U.S. 902 
(1989), aff'd on remand sub nom. United Transportation Union v. 
Southeastern Pennsylvania Transportation Authority, 884 F.2d 709 
(1989), the U.S. Court of Appeals for the Third Circuit upheld, inter 
alia, random breath testing of transit operating employees. See also, 
Tanks v. Greater Cleveland Regional Transit Authority, 930 F.2d 475 
(6th Cir. 1991) and Holloman v. Greater Cleveland Regional Transit 
Authority, 741 F. Supp. 677 (N.D. Ohio 1990), aff'd, 930 F.2d 918 (6th 
Cir. 1991) (upholding transit authority's drug and alcohol testing 
program requiring testing of blood, saliva, and urine in the face of 
challenges by two bus drivers subjected to random, post-accident, and 
periodic testing); Moxley v. Regional Transit Services, 722 F. Supp. 
977, 980 (W.D. NY 1989) (upholding constitutionality of transit 
authority's drug and alcohol testing program and noting that ``the 
Government's interest in the efficient and proper operation of the 
workplace is at a zenith where public's [sic] lives depend on the 
reliable and sober performance of Government employees'').
    Consistent with the Supreme Court's analysis in Skinner and Von 
Raab and lower court decisions, if the Congress determines that there 
is a need for properly-administered alcohol testing to ensure that 
employees in transportation industries are not adversely affected by 
alcohol while performing safety-sensitive functions, that need would 
outweigh the privacy interests of these employees and, thus, would be 
constitutionally permissible.

The Americans with Disabilities Act and DOT Drug and Alcohol Testing

    The Americans with Disabilities Act of 1990 (ADA) (Pub. L. 101-36) 
does not, in any way, preclude or interfere with employers' compliance 
with the Department's new or existing drug and alcohol testing 
regulations. However, title I of the ADA, which prohibits 
discrimination against a ``qualified individual with a disability,'' 
may affect the personnel actions an employer might wish to take with 
respect to some individuals who test positive for alcohol or drugs or 
otherwise violate the prohibitions of the Department's drug and alcohol 
rules.
    Title I covers employers who have fifteen or more employees for 
more than 20 calendar weeks in a year (section 101(5)(A)). (Until July 
26, 1994, only employers with 25 or more such employees are covered.) 
Covered employers may not discriminate against a qualified individual 
with a disability with respect to applications, hiring, advancement, 
discharge, compensation, or other terms, conditions or privileges of 
employment (section 102(a)).
    Before discussing the effect title I may have on employer personnel 
actions following a positive DOT-mandated drug or alcohol test or other 
violations of DOT drug and alcohol rules, it is important to note the 
specific ADA provisions that address DOT drug and alcohol rules. The 
ADA specifically authorizes employers covered by DOT regulations to 
require their employees to comply with the standards established in 
those regulations, including complying with any rules that apply to 
employment in safety-sensitive positions as defined in the DOT 
regulations. (section 104(c)(5)(C)). By authorizing employers to 
require employees to comply with the standards in DOT rules, this 
provision authorizes compliance not only with testing provisions of the 
rules but also of other drug and alcohol-related provisions that affect 
safety-sensitive employees (e.g., pre-duty abstinence, on-the-job use). 
The legality under the ADA of employer compliance with DOT drug and 
alcohol requirements other than those concerning testing is underlined 
by several other provisions of title I. An employer may prohibit the 
use of drugs and alcohol in the workplace, may require that employees 
not be under the influence of alcohol or be engaging in the illegal use 
of drugs in the workplace, and may require that employees conform to 
the requirements of the Drug-Free Workplace Act (Pub. L. 100-690, title 
V, subtitle D) (section 104(c)(1-3)).
    Concerning drug and alcohol testing and its consequences, the 
statute further provides that nothing in Title I shall be construed to 
encourage, prohibit, restrict, or authorize the otherwise lawful 
exercise by entities subject to the jurisdiction of the Department of 
Transportation of authority to (1) test employees of such entities in, 
and applicants for, positions involving safety-sensitive duties for the 
illegal use of drugs and for on-duty impairment by alcohol; and (2) 
remove such persons who test positive for illegal use of drugs and on 
duty-impairment by alcohol pursuant to paragraph (1) from safety-
sensitive duties in implementing subsection (c). (Subsection (c) 
includes the statutory language cited above.) (section 104(e)). These 
ADA provisions clearly specify that the ADA does not interfere with the 
compliance by covered employers with DOT regulations concerning drug 
and alcohol use, including requirements for testing and for removing 
persons who test positive from safety-sensitive functions. Under the 
ADA, an employer is not viewed as ``discriminating'' for following the 
mandates of DOT drug and alcohol rules.
    In considering the effects on the personnel actions that employers 
choose to take after a safety-sensitive employee tests positive for 
drugs or alcohol or otherwise violates DOT drug or alcohol rules, it is 
important to note that the ADA's prohibition of employment 
discrimination applies only with respect to a ``qualified individual 
with a disability.'' The ADA specifically provides that an employee or 
applicant who is currently engaging in the illegal use of drugs is not 
a ``qualified individual with a disability'' (section 104(a)). The ADA 
does not protect such an employee from adverse personnel actions. For 
purposes of the ADA, the drugs that trigger this provision are those 
the use, possession or distribution of which is prohibited by the 
Controlled Substances Act (section 101(6)). The five drugs for which 
DOT mandates tests fit this definition (alcohol is not a drug covered 
by the Controlled Substances Act).
    What does ``currently engaging'' in the illegal use of drugs mean? 
According to the Equal Employment Opportunity Commission (EEOC), whose 
rules carry out Title I, the term ``currently engaging'' is not 
intended to be limited to the use of drugs on the day of, or within a 
matter of days or weeks of, the employment action in question. Rather, 
the provision is intended to apply to the illegal use of drugs that has 
occurred recently enough to indicate that the individual is actively 
engaged in such conduct. (56 FR 35745-46, July 26, 1991). It is clear 
that an individual who has a positive result on a DOT-mandated drug 
test is currently engaging in the illegal use of drugs. Therefore, 
under Title I, an employer may discharge or deny employment to an 
individual who has a positive result on a DOT-mandated drug test.
    This provision that an individual who is currently engaging in the 
illegal use of drugs is not a ``qualified individual with a 
disability'' does not apply, of course, if the individual is 
erroneously regarded as engaging in the illegal use of drugs. In 
addition, if an individual, even a former user of illegal drugs, is not 
currently engaging in the illegal use of drugs and (1) has successfully 
completed a supervised rehabilitation program or otherwise has been 
successfully rehabilitated, or (2) is participating in a supervised 
rehabilitation program, the individual can continue to be regarded as a 
``qualified individual with a disability,'' if the individual is 
otherwise entitled to this status (section 104(b)). An employer may 
seek reasonable assurance that an individual is not currently engaging 
in the illegal use of drugs (including requiring a drug test) or is in 
or has completed rehabilitation. Some employers (EEOC uses the example 
of a law enforcement agency) may also be able to impose a job 
qualification standard that would exclude someone with a history of 
drug abuse if it can show that the standard is job-related and 
consistent with business necessity (56 FR 35746, July 26, 1991).
    Unlike the situation with respect to the current use of illegal 
drugs, the use of alcohol contrary to law, Federal regulation, or 
employer policy does not deprive an individual of status as a 
``qualified individual with a disability'' that he or she would 
otherwise have under title I. An individual is protected by title I, 
however, only if the individual has a disability in the first place. 
(This is also true with respect to a former drug user or any other 
individual who seeks the protection of the ADA.) To have a disability, 
an individual must have a ``physical or mental impairment that 
substantially limits one or more major life activities of such 
individual, a record of such impairment, or being regarded as having 
such an impairment'' (section 1(2)). While, as the EEOC notes in its 
title I regulation, ``individuals disabled by alcoholism are accorded 
the same protections accorded other individuals with disabilities'' (56 
FR 35752, July 26, 1991), not all individuals who use alcohol in 
violation of law, Federal regulation, or employer policy are ``disabled 
by alcoholism.''
    The courts interpreting section 504 of the Rehabilitation Act of 
1973 (with which ADA employment provisions are intended to be 
consistent) have concluded that alcoholism can be a disability which 
may call for reasonable accommodation. See, e.g., Walker v. Weinberger, 
600 F. Supp. 757 (D.D.C., 1985); Tinch v. Walters, 765 F.2d 599 (6th 
Cir., 1985); McKelvey v. Walters, 596 F. Supp. 1317 (D.D.C., 1984); 
Anderson v. University of Wisconsin, 665 F. Supp. 1372 (W.D. Wis., 
1987), aff'd 841 F.2d 737 (7th Cir., 1988); Richardson v. Postal 
Service, 613 F. Supp. 1213 (D.D.C., 1985); Sullivan v. City of 
Pittsburgh, 811 F.2d 171 (3rd Cir., 1987).
    The logic of the ADA, and EEOC's regulatory provisions implementing 
the statute, suggest that, in determining whether an employee or 
applicant who has a positive result on a DOT-mandated alcohol test or 
otherwise violates a DOT alcohol rule is disabled by alcoholism, the 
employer would answer two questions. First, does the individual have a 
physical or mental impairment; e.g., is the individual an alcoholic? 
(People who test positive for alcohol are not necessarily alcoholic.) 
This question would probably have to be answered with the assistance of 
a physician or substance abuse professional. Second, if the individual 
is an alcoholic, does this impairment substantially limit a major life 
activity or is it (even erroneously) regarded as substantially limiting 
a major life activity? This question would be answered on a case-by-
case basis, following EEOC's guidance (see 56 FR 35740-44, July 26, 
1991). Under DOT's alcohol prevention rules, these determinations will 
be made by or in cooperation with the substance abuse professional that 
the rules require to be involved following a positive test or rule 
violation.
    The determination of whether an individual is a qualified 
individual with a disability is made in two steps: (1) Whether the 
individual has the appropriate education, experience, skills, and 
licenses, and meets the other prerequisites of the position; and (2) 
whether the individual can perform the essential functions of the job 
desired or held with or without reasonable accommodation. Essential 
functions are the functions that the individual holding the position 
must be able to perform unaided or with reasonable accommodation. 
Several factors are considered in determining whether a job function is 
essential, including whether the employer actually requires employees 
in this position to perform the function, whether the position exists 
to perform the function, whether there are other employees who could 
perform the function, and whether there is a high degree of expertise 
or skill required to perform the function.
    If the individual is qualified and determined to be disabled by 
alcoholism, then the employer may not discriminate against the 
individual on the basis of his or her disability and, if job 
performance and behavior are not affected by alcoholism, must make 
``reasonable accommodations'' to the individual's known physical or 
mental limitations, unless the employer can demonstrate that doing so 
would impose an ``undue hardship'' on the employer's business.
    The selection of an appropriate ``reasonable accommodation'' is 
done on a case-by-case basis, as EEOC guidance provides (see 56 FR 
35744, July 26, 1991). Reasonable accommodation for an individual 
disabled by alcoholism could include such actions as referral to an 
Employee Assistance Program or other rehabilitation program, provision 
of rehabilitation services, and giving an employee sufficient time to 
demonstrate that rehabilitation had been successful. See, e.g., 
Washington v. Department of the Navy, 30 M.S.P.R. 323 (1986); Swafford 
v. Tennessee Valley Authority, 18 M.S.P.R. 481 (1983).
    Even when an individual is disabled by alcoholism, however, the 
employer is not required to provide a reasonable accommodation that 
creates an ``undue hardship.'' Undue hardship involves significant 
difficulty or expense in, or resulting from, providing an 
accommodation. EEOC describes an undue hardship as ``an accommodation 
that would be unduly costly, extensive, substantial or disruptive, or 
that would fundamentally alter the nature or operation of the 
business.'' (Id.) This concept takes into account the financial 
resources of the employer (e.g., an accommodation that would be 
reasonable for a large business may be an undue hardship for a small 
business). But the concept is not limited to financial difficulty. For 
example, if a small trucking company determined that the accommodation 
that one of its drivers needed for an alcoholism-related disability was 
lengthy in-patient rehabilitation, the company not only might find the 
accommodation beyond its financial resources but also too disruptive of 
its operations (i.e., a temporary replacement would have to be hired or 
the work of the firm be reduced significantly).
    Under title I, an employer may hold an employee who engages in the 
illegal use of drugs or who is an alcoholic to the same qualification 
standards for employment or job performance or behavior as it holds 
other employees, even if any unsatisfactory performance or behavior is 
related to the drug use or alcoholism of the employee (Section 
104(c)(4)). For example, if, as the result of alcoholism, an employee 
is chronically late or absent, or makes frequent job errors, the 
employee would be subject to personnel action on the same basis as any 
other employee who exhibited similar behavior for other reasons. 
(However, if the alcoholic employee were subjected to personnel actions 
that were not used against non-alcoholic employees who were chronically 
late or absent, or made frequent job errors, then the alcoholic 
employee might have a cause of action under the ADA.) The employer is 
not precluded from accommodating this alcoholic employee, but is not 
required to do so.
    It should also be pointed out that the ADA does not preclude an 
employer from disciplining or dismissing an employee who commits a 
violation of the employer's conduct and performance standards, even if 
the individual is an alcoholic or has another disability. For example, 
a violation of a DOT operating administration's alcohol misuse rules 
(e.g., a test demonstrating a prohibited alcohol concentration) could 
be a violation of the employer's performance and conduct rules, for 
which the employer's policy could call for the employee's dismissal. 
This result would not violate the ADA.
    There are also situations in which meeting qualification standards 
of DOT safety rules, or having a valid license or certificate from a 
DOT operating administration, is an essential job qualification. If a 
truck driver does not meet FHWA qualification standards to obtain a 
Commercial Driver's License from a State, or if a pilot does not 
qualify for an FAA medical certificate, that individual is not a 
``qualified'' individual with a disability, even if the reason for the 
failure to meet DOT qualifications is a condition that an employer 
might be required to accommodate under the ADA. The legislative history 
of the ADA specifically recognizes this special status for DOT 
qualification standards (see Senate Report 101-116 at 27, August 30, 
1989).
    Another issue that has been raised in context of the relationship 
between the ADA and alcohol testing concerns whether an alcohol test is 
a ``medical examination.'' Non-regulatory guidance issued by the EEOC 
suggests that ``a test to determine an individual's blood alcohol level 
would be a `medical examination' and only could be required by an 
employer in conformity with the ADA.'' It should be pointed out that 
this statement does not, on its face, apply to breath testing (or other 
methods that do not involve blood samples) for alcohol. The EEOC has 
not determined whether it views breath testing for alcohol as a 
``medical examination.''
    The Department of Transportation takes the position that alcohol 
testing under the program required by these rules is not properly 
viewed as a required medical examination. It is not the collection of a 
breath or body fluid sample that makes a test ``medical'' in nature. 
The tests in question are solely for the purpose of determining whether 
an employee has violated a DOT-mandated safety requirement. The tests 
are not used for any diagnostic or therapeutic purpose. They are not 
intended to ascertain whether an employee has any medical condition, 
and they will not be used for such a purpose. Under these 
circumstances, the policies underlying the ADA provisions on medical 
examinations do not apply. Because of the uncertainty that may be 
created by the EEOC guidance, however, it is useful to consider the 
implications of regarding alcohol tests as ``medical examinations.'' 
(The Department is working with the EEOC to resolve this uncertainty.)
    Even if alcohol tests are considered to be ``medical examinations'' 
for ADA purposes, the effects on compliance with DOT-mandated alcohol 
testing would be minimal. ``Medical examinations'' are permitted by the 
ADA if made after a conditional offer of employment. The pre-employment 
testing approach set forth in the rules clearly fits this model. For 
this reason as well as for reasons of efficiency, the Department 
believes that conducting pre-employment testing after an offer of 
employment, but before the first performance of a safety-sensitive 
function, has much to recommend it. In addition, EEOC has stated to the 
Department that, because of the statutory requirement in the Omnibus 
Transportation Employee Testing Act of 1991 for pre-employment testing, 
EEOC does not object to pre-offer alcohol testing under the DOT rules 
mandated by the statute. Other types of testing mandated by these 
rules, such as reasonable suspicion, post-accident, and random testing, 
are likewise acceptable under the ADA. (See 29 CFR 1630.15(e), which 
makes compliance with the requirements of Federal law or regulation a 
defense to an allegation of discrimination under Title I of the ADA.) 
Congress passed the Omnibus Act more than a year after it passed the 
ADA, and the former statute's specific mandates for various types of 
testing clearly, as a matter of statutory interpretation, would prevail 
over any contrary inferences anyone would attempt to draw from the more 
general provisions of the latter.
    A related issue concerns the confidentiality of the records of 
alcohol tests. To the extent that an alcohol test is regarded as a 
medical examination, the records of the test would be ``treated as a 
confidential medical record'' under the ADA (see Section 102(c)(3)(B) 
of the ADA). Under this provision, records of a medical examination are 
required to be kept in a separate medical file. The purpose of any 
requirement for confidentiality of a medical record is to safeguard the 
employee's right of privacy with respect to personal medical 
information. An employee may, of course, waive such a right. (As a 
general matter, medical confidentiality provisions allow a patient to 
permit medical information to be provided to third parties.) The DOT 
rules, by requiring the employee to consent, in writing, to the 
provision of test records to subsequent employers or third parties, are 
fully consistent with normal medical confidentiality waiver practices 
and with the ADA. It would clearly be anomalous to view a medical 
records confidentiality provision as prohibiting an employee from 
voluntarily agreeing that a previous employer, or physician, could send 
a medical record to a current employer or physician.

The Family and Medical Leave Act of 1993

    The Family and Medical Leave Act of 1993 (FMLA) provides certain 
protections for employees with ``serious health conditions.'' These 
protections include time off for treatment of these conditions and 
reinstatement in the employee's position or an equivalent position. 
Under Department of Labor (DOL) regulations implementing FMLA, 
``treatments for * * * substance abuse are serious health conditions if 
all conditions of the regulation are met'' (29 CFR 825.114(c)). The 
inclusion of substance abuse treatment under the DOL regulations has 
raised some concerns about the potential effect of FMLA requirements on 
DOT drug and alcohol testing requirements.
    As is the case with the ADA, the FMLA does not conflict with DOT 
drug and alcohol rules. FMLA requirements do not prevent an employer 
from testing employees as required by DOT rules; nor do they excuse 
employees from testing requirements or prohibitions on the use of drugs 
or the misuse of alcohol. They do not interfere with DOT's requirement 
that an individual who tests positive may not perform safety-sensitive 
functions again until the conditions established by DOT rules have been 
met. (We would point out that, just as every employee who tests 
positive for alcohol or drugs does not necessarily have a 
``disability'' for ADA purposes, such an employee does not necessarily 
have a ``serious health condition'' for FMLA purposes.)
    DOT drug and alcohol rules do not prescribe what personnel actions, 
if any, an employer may take with respect to an individual who tests 
positive. In certain circumstances, Federal law (e.g., the ADA), State 
law, or labor-management agreements may constrain the discretion that 
employers would otherwise exercise with respect to such personnel 
actions. The FMLA may create additional constraints in some situations.
    The scope of additional constraints on employer personnel actions 
stemming from the FMLA is limited. The statute applies only to 
employers with 50 or more employees. The statute's protections apply 
only to employees who work for such an employer at least 1250 hours 
during a 12-month period. DOL's rules establish a number of procedural 
requirements that employees must meet to avail themselves of the FMLA's 
protections. DOL also sets some substantive limits on the applicability 
of FMLA protections to treatment for substance abuse:

    Treatment of substance abuse may also be included, such as where 
a stay in an inpatient treatment facility is required. On the other 
hand, absence because of the employee's use of the substance, 
without treatment, does not qualify for leave. It should be pointed 
out that the inclusion of substance abuse as a ``serious health 
condition'' does not prevent an employer from taking employment 
action against an employee who is unable to perform the essential 
functions of the job--provided the employer complies with the ADA 
and does not take action against the employee who has exercised his 
or her right to take FMLA leave for treatment of that condition. (58 
FR 31799; June 4, 1993).

    The Department will work with DOL to resolve any questions that 
arise concerning the relationship of DOT drug and alcohol testing 
requirements and FMLA requirements.

Overview of the Operating Administrations' Final Rules

Purpose

    The OAs covered by the Act and RSPA are establishing alcohol misuse 
prevention programs designed to help prevent accidents and injuries 
resulting from the misuse of alcohol by employees who perform safety-
sensitive functions in their industries. Generally, the OA rules 
prohibit any alcohol misuse that could affect performance of a safety-
related function, including (1) Use on the job; (2) Use during the four 
hours (in most cases) before performance of a safety-sensitive 
function; (3) Having prohibited concentrations of alcohol in the system 
while performing safety-sensitive functions; (4) Use during the 8 hours 
following an accident if the employee's involvement has not been 
discounted as a contributing factor in the accident or until the 
employee tests below 0.02; and (5) Refusal to take a required alcohol 
test. The rules require pre-employment (except for RSPA), reasonable 
suspicion, random (except for RSPA), post-accident, return-to-duty and 
follow-up testing for alcohol. The rules also establish a performance 
standard for adjusting the initial 25 percent random alcohol testing 
rate for each transportation industry (except for RSPA). Published 
elsewhere in today's Federal Register is a proposal to establish a 
somewhat different performance standard for adjusting the random drug 
testing rate for each transportation industry.
    The part 40 procedural final rule published elsewhere in this 
Federal Register provides for two tests to ensure accuracy: A screening 
and a confirmation test. It provides more flexibility to use different 
testing technologies for screening tests than we had proposed. However, 
until additional devices can be evaluated and approved as meeting DOT 
precision and accuracy criteria and procedures for their use are 
established, the screening tests must be conducted using breath testing 
devices on the NHTSA CPL, which includes devices with and without 
printers. Evidential breath testing devices that provide printed 
results and sequential numbering of tests must be used for confirmation 
tests. We are separately proposing to permit blood testing in 
reasonable cause and post-accident situations where an EBT is not 
readily available. The primary purpose of the testing provisions is to 
deter and detect misuse of alcohol.
    Following a finding that an employee has misused alcohol, as 
determined through testing or other means, the rules generally require 
the employee's removal from safety-related functions and provide a 
bifurcated system of consequences:
    (1) Following a determination that the employee has violated 
prohibitions in these rules, the employer must remove the employee from 
and cannot return the employee to a safety-sensitive function until, at 
a minimum,
    (a) The employee undergoes evaluation, and where necessary, 
treatment,
    (b) A substance abuse professional determines that the employee has 
successfully complied with any recommended course of treatment, and
    (c) The employee tests at less than 0.02 on a return-to-duty test.
    (2) An employee with an alcohol concentration of 0.02 or greater 
but less than 0.04 is not permitted to perform safety-sensitive 
functions for
    (a) A minimum of eight hours (except FHWA), or
    (b) Until a retest shows that the employee's alcohol concentration 
has dropped below 0.02.
    The rules also impose reporting and recordkeeping requirements and 
provide for alcohol misuse information for employees, supervisor 
training, and referral of employees to a substance abuse professional 
(SAP) for evaluation.
    There are some differences among the OA final rules. For example, 
some OAs have regulatory authority over employers/companies only; 
others have regulatory authority over employees. Also, employees 
holding a license or certificate may be subject to agency action 
against their license or certificate under other rules in addition to 
the consequences established for violations of these rules. See the 
individual OA rule preambles for an explanation of any differences from 
the general requirements discussed above.

Applicability

    The existing OA drug rules generally cover persons who perform 
safety-sensitive functions in commercial transportation. Initially, 
they affected approximately 4 million persons and include, for example, 
commercial truck/bus drivers, pilots, pipeline employees, licensed and 
documented mariners and others serving on board a vessel with a 
licensed operator, and railroad workers subject to the Hours of Service 
Act. An FTA final rule published elsewhere in today's Federal Register 
adds drug testing for such workers as transit bus and subway operators. 
In accordance with the mandates of the Act, the FHWA rule adopting the 
alcohol provisions described in this common preamble extends their 
coverage as well as the coverage of the existing FHWA drug rules to 
persons required to obtain a CDL, including intrastate truck and motor 
coach operators. This includes drivers and employers not currently 
covered by the Federal Motor Carrier Safety Regulations (FMCSRs) such 
as: Federal, State and local government agencies, and church and civic 
organizations. As a result, the total number of persons covered by the 
alcohol and drug testing rules has increased to over 7 million. 
(Maritime industry personnel are covered by the drug rules, but not by 
these alcohol rules (other than certain ferry boat personnel), although 
USCG does have some alcohol testing requirements and intoxication 
standards already in effect.)
    In the common preamble to the NPRMs, we asked whether there is any 
rationale for covering a different population for alcohol testing than 
drug testing; no one provided such a rationale. The same employees who 
would cause safety problems if they are using illegal drugs would cause 
problems if they misuse alcohol. Consequently, the Department continues 
to believe that the basis for imposing alcohol misuse prevention 
requirements should be the performance of safety-sensitive functions. 
Each OA rule defines ``covered employee'' with respect to its industry 
and generally covers the same population under its alcohol prevention 
program. Numerous commenters addressed the categories included in the 
OAs' definitions of ``covered employee.'' Please refer to the specific 
OA preamble for the OA's disposition of those comments. Although the 
term ``security'' is used with respect to aviation passenger and 
baggage screeners, that term is redundant and unnecessary; these 
persons are performing what the FAA defines as safety-sensitive 
functions--maintaining aircraft security--as opposed to simply having a 
security clearance (which results in coverage of many Federal employees 
under government drug testing programs).
    The OA rules focus on function rather than a defined job or 
position. An individual's job may encompass several different 
functions, some of which are not safety-sensitive. Since alcohol is a 
legal substance, alcohol use is relevant only to the extent it affects 
performance of a safety-related function. As a safety regulatory 
matter, for example, we are not concerned if an aircraft mechanic has a 
drink before or while performing functions that are not safety-related 
(as long as no other rule is violated); if the mechanic is receiving 
all-day training on retirement planning along with non-safety employees 
and the other employees can have a drink at lunch, the mechanic may 
also.

Alcohol Testing Procedures

    Each of the OA final rules requires employers to ensure that all 
alcohol testing conducted under these rules complies with the 
procedures for alcohol testing contained in the amended 49 CFR part 40 
entitled ``Procedures for Transportation Workplace Drug and Alcohol 
Testing'' issued by DOT elsewhere in today's Federal Register. Each OA 
final rule incorporates the new 49 CFR part 40 by reference. Since all 
of those OAs publishing final rules today require alcohol testing 
conducted by their covered employers to comply with the part 40 testing 
procedures, the DOT is issuing these procedures separately in order to 
avoid their unnecessary duplication in each OA rule.
    Part 40 requires both screening and confirmation tests for alcohol. 
The rules require that screening tests with a result of 0.02 alcohol 
concentration or greater be confirmed by an EBT listed on the NHTSA 
CPL, which also is capable of printing out each test result and air 
blank (test of ambient air), and sequentially numbering each test. This 
provides an immediate confirmed result, which enables immediate removal 
of the employee who has misused alcohol and also provides a printed 
record of the result that will prevent disputes about the accuracy and 
integrity of the testing process. EBTs are reliable and highly accurate 
at detecting low alcohol concentrations and their use is possible in 
all transportation settings envisioned in those industries for which 
the OAs are issuing rules today.
    Breath testing devices have been in use a long time; all States 
accept evidential breath test device results as credible evidence of an 
individual's violation of a law establishing a per se prohibited blood 
alcohol concentration, so long as the devices are properly calibrated 
and operated by trained personnel. Each device on the NHTSA CPL, with 
or without printed results, has been accepted by at least one State for 
use in court proceedings in that State. (Acceptance by a State of a 
particular device is not, however, necessary for the use of that device 
in that State for purposes of the DOT testing program.) In addition, 
part 40 establishes training requirements for breath alcohol 
technicians (BATs), maintenance and calibration requirements in a 
quality assurance plan for EBTs, and additional testing procedures to 
protect the integrity of the process.
    In response to the comments received, the Department believes that 
greater flexibility to use different testing technologies would benefit 
employers, especially for testing in remote locations and tests for 
which employers do not control the timing or ``triggering'' event--
reasonable suspicion and post-accident. At the same time, the 
Department believes that any devices used in the testing program must 
meet the precision and accuracy criteria established by part 40 that 
the Department has determined are necessary to the integrity and 
success of these programs and to ensure protection for employees. Only 
EBTs on the CPL, including those without printers, currently meet these 
criteria; those without printers can be used for screening tests but 
part 40 requires that a logbook be kept with each such device to 
provide a crosscheck for the occurrence of a test and its result.
    In addition to the changes concerning EBTs without printers, part 
40 will, in the near future, provide more flexibility to use different 
testing technologies for screening tests than we proposed in the OA 
NPRMs. NHTSA will develop model specifications (using precision and 
accuracy criteria), evaluate additional screening devices against them 
and periodically publish a conforming products list of those additional 
screening devices (not exclusively breath testing devices) that meet 
the model specifications. We expect that publication of the model 
specifications will encourage manufacturers to develop products that 
meet them. NHTSA will approve those devices that meet its criteria for 
use in our alcohol testing programs. Please note that the Department 
also will have to undertake separate rulemaking proceedings to 
establish procedures for the use of any devices after they are 
approved. The proposed NHTSA model specifications are published 
elsewhere in today's Federal Register. NHTSA expects to begin 
evaluation of screening devices after the final model specifications 
are published. The device manufacturers also would have to certify that 
they meet existing Food and Drug Administration (FDA) good 
manufacturing practices and labeling requirements. The timing for the 
NHTSA approval of screening devices will depend on the volume of 
devices submitted for approval. The Department is continuing to 
coordinate with the FDA and other appropriate agencies to determine if 
additional product evaluations for alcohol screening devices will be 
necessary.
    We also are considering requiring blood alcohol testing in those 
reasonable cause and post-accident situations where an EBT is not 
readily available. It would provide increased flexibility to employers 
to use blood testing where an EBT is available, but would be difficult 
or expensive to transport to the test site. One benefit of requiring 
blood alcohol testing in these limited situations is that employers 
would not have to make EBTs available in as many locations as otherwise 
would have been necessary. This would also mean that an employer must 
conduct a blood test where a test would otherwise not occur because an 
EBT is unavailable. The blood alcohol testing proposal, including blood 
alcohol testing procedures, is addressed in a separate NPRM published 
elsewhere in today's Federal Register. Before we issue a blood alcohol 
testing final rule, we need to resolve specimen collection issues and 
determine how to identify those laboratories that we can rely on to 
test blood samples accurately. The NPRM also seeks comment on other 
issues, such as safeguards for employees and procedures for shipping 
and documentation of blood samples.
    Please refer to the part 40 preamble for discussion of other 
testing methods that are not appropriate for use in these programs at 
this time, such as urine, saliva, or non-alcohol-specific devices for 
``performance'' or ``fitness-for-duty'' testing. The flexibility 
provided by part 40 will enable reconsideration of alcohol-specific 
testing devices for future use if the device or method meets our 
precision and accuracy standards and other requirements.

Definitions

    Some of the definitions, such as those defining accident, covered 
employee, and safety-sensitive function, among others, will be 
different in each OA final rule based on differences in the individual 
regulated industries. Other definitions, such as alcohol, are identical 
in all of the OA final rules. In response to comments, we have changed 
the definition of alcohol to include other low molecular weight 
alcohols, such as methyl and isopropyl alcohols that could be used as 
intoxicants, in addition to ethyl alcohol. This will avoid arguments 
that a positive reading on a testing device could reflect the presence 
of other non-prohibited alcohols. They also should be prohibited since 
they have the same adverse effect. Alcohol concentration in all of the 
rules means the alcohol in a volume of breath expressed in terms of 
grams of alcohol per 210 liters of breath as indicated by an evidential 
breath test under these rules. For example, a breath alcohol 
concentration of 0.04 means 0.04 grams (four one-hundredths of one 
gram) of alcohol in 210 liters of expired deep lung air. This breath 
standard is analogous to a blood alcohol concentration of 0.04.
    The definition of alcohol use means consumption of any beverage, 
mixture, or preparation, including any medication, containing alcohol. 
Some commenters suggested an exception for medication if the employee 
notifies the employer and the employee's alcohol concentration never 
reaches 0.02; others strongly opposed such an exception. (See FAA 
preamble to its alcohol prevention rule for discussion of this issue in 
the context of the more severe consequences for certain aviation 
employees imposed by the Act.) Alcohol-based drugs could be used to 
satisfy alcohol needs rather than medical needs, if permitted. Since 
ingestion of a given amount of alcohol produces the same alcohol 
concentration in an individual whether the alcohol comes from a mixed 
drink or cough syrup, the Department is applying the prohibitions in 
these rules to the use of any substance containing alcohol, such as 
prescription or over-the-counter medication or liquor-filled 
chocolates. Allowing an exception for medication would make it very 
difficult, if not impossible, to enforce the rules. We believe there 
are now non-alcohol alternatives for all non-prescription medications. 
In addition, prescription medications containing alcohol may have a 
greater impairing effect due to the presence of other elements, e.g., 
antihistamines. We are not aware of prescription medications used (over 
a long term) that cannot be formulated in an aqueous preparation and 
that would themselves be safe to use while at work. Therefore, we have 
decided to prohibit the use of all medications containing alcohol 
during, and in the four hours prior to (eight hours for FAA), the 
performance of a safety-sensitive function. Several commenters opposed 
a prohibition on the possession of medication containing alcohol. We do 
not impose such a prohibition in these rules. However, some DOT 
agencies already have existing regulations tailored to their industries 
that prohibit or impose conditions on the possession of medications 
containing alcohol while on the job.
    The definition of substance abuse professional (SAP), as proposed, 
encompassed licensed physicians, limited to medical doctors and doctors 
of osteopathy; as well as licensed or certified psychologists, social 
workers and employee assistance professionals; we had asked commenters 
who else should be included. In response to comments, we have included 
alcohol and drug abuse counselors certified by the National Association 
of Alcoholism and Drug Abuse Counselors Certification Commission 
(NAADAC), a national organization that imposes qualification standards 
that we believe are necessary to perform a SAP's functions. We rejected 
suggestions that the definition include State-certified counselors, 
because the standards vary dramatically by State; in some States, 
certified counselors do not have what we consider the necessary 
experience and/or training. All of the categories listed in the 
definition must have knowledge of and clinical experience in the 
diagnosis and treatment of alcohol-related disorders in order to become 
a SAP.
    We have added a definition of violation rate, which each OA will 
use in annually determining whether covered employees in a particular 
industry meet the performance standard for adjusting the random alcohol 
testing rate for that industry. The violation rate represents the total 
of the number of covered employees as reported in OA MIS data annually 
found during required random tests to have an alcohol concentration of 
.04 or greater plus the number of employees who refuse a random alcohol 
test, divided by the total of the number of employees in the industry 
given random alcohol tests plus the number of those who refused a 
random alcohol test.

Preemption of State and Local Laws

    The Act contains an express preemption of State and local 
requirements that are inconsistent with the Federal alcohol rules 
applicable to the aviation, highway, and transit industries. Through 
its implementation of the Hazardous Materials Transportation Act 
(HMTA), the Department has long interpreted statutory preemption under 
an inconsistency standard by using a two-pronged test. The test was 
derived from Supreme Court decisions on preemption under the 
Constitution, has been followed successfully by the Department, and has 
been upheld by court decisions on preemption under the HMTA. In 1990, 
at the request of the Department, Congress recognized this long-
standing interpretation by incorporating it into the statutory 
preemption provision of the HMTA. (49 U.S.C. App. 1804) The final rules 
adopt this interpretation of the inconsistency standard for preemption 
by incorporating the two-pronged test.
    Generally, the OA rules preempt any State or local requirement if 
it is not possible to comply with both the Federal and the State or the 
local requirements, or if compliance with the State or the local 
requirement will frustrate the Federal requirement. For example, a 
State requirement prohibiting the alcohol testing of transit employees 
is preempted. Also a local requirement for a blood test (outside the 
limited exception proposed elsewhere in today's Federal Register--
assuming the proposal will be adopted) to confirm alcohol use by a 
commercial truck driver is preempted since it will frustrate 
accomplishment of the Federal rule by adding additional complicated 
procedures that may make it difficult to fully and accurately comply 
with the DOT procedures and by adding costs that may make compliance 
impossible for many companies. The rules do not preempt provisions of 
State criminal law that impose sanctions for reckless conduct leading 
to actual loss of life, injury, or damage to property, whether the rule 
applies specifically to transportation employees or employers or to the 
general public. One commenter asked whether a State could adopt and 
enforce the same alcohol prevention requirements as those we establish 
here. Since the same rules would not burden or conflict with the 
Federal program, a State would be free to do so.
    The purpose of preemption is to avoid the confusion and expense of 
inconsistent requirements for employers or testing entities that 
operate in several States and to prevent interference with the 
functioning of the Federal program by extraneous, burdensome 
requirements that may defeat its purpose and benefits by making 
effective implementation difficult or impossible (e.g., by requiring 
that employers pay for any rehabilitation or requiring confirmation 
tests beyond those required by DOT). Because of the nationwide 
application of the Federal program and the interstate nature of the 
operations covered, even minor requirements in the aggregate may become 
unduly burdensome. For this reason, we intend to scrutinize closely 
State and local requirements under this preemption authority. Comments 
on preemption are specifically addressed in the OA preambles.

Other Requirements Imposed by Employers

    Some employers commented that they want to be free to impose 
stricter requirements on their workforce. Except as provided in the OA 
rules, employers retain their existing authority with respect to 
alcohol testing and termination or rehabilitation of their employees 
and employees retain their rights with respect to the use or possession 
of alcohol. An employer may continue to conduct alcohol testing under 
his/her own authority in addition to meeting the requirements of these 
rules and provide or support alcohol rehabilitation programs. Employees 
are free to consume alcohol on their own time so long as that 
consumption does not violate any of the provisions of these rules or 
other applicable rules. Some commenters asked us to preserve their 
right to collectively bargain certain testing requirements. The rules 
contemplate that many aspects of the employer/employee relationship 
with respect to these programs will be subject to collective 
bargaining. For example, who pays for assessment and evaluation is one 
area we explicitly do not regulate. However, employers and employees 
are not free to bargain away any of the requirements of these rules. 
Whatever rights they may have to bargain collectively or otherwise 
agree on employer-employee relations, they cannot change or ignore 
Federal safety standards.

Requirement for Notice

    Before performing an alcohol test under these rules, the employer 
must notify the employee being tested that the alcohol test being 
administered is required by these rules. The notice can be oral, 
written or as specifically provided in an OA regulation. An employer 
shall not falsely represent that a test administered under other 
authority is being administered under Federal rules. The few comments 
that we received on this issue were evenly divided between those that 
supported the requirement and those that opposed it. Generally, we 
think the required alcohol testing form is sufficient to constitute 
adequate notice.

Starting Date for Alcohol Testing Programs

    Most commenters seemed satisfied with the proposed implementation 
schedule. Several larger employers requested additional time to develop 
their programs, enter into service provider contracts and to complete 
collective bargaining; some large employers believed that it would be 
fairer if all employers had to implement their programs in one year. 
The attached OA final rules establish the specific implementation 
schedules for each industry. The schedules are similar to those 
proposed in the NPRMs and those used in the DOT drug testing rules.
    Generally, large employers will have the better part of one year 
from the effective date of the final rules in which to implement the 
requirements and small employers have nearly two years. To accommodate 
the annual reporting requirements, large employers must implement these 
programs on January 1, 1995 and small employers must implement these 
programs on January 1, 1996. Each OA final rule defines employer size 
and notes variations justified by industry differences; FAA and FRA 
have a three tier phase-in for covered employers and contractors. The 
timetables generally allow smaller employers to join alcohol misuse 
programs already established by larger employers or consortia, which 
should reduce their costs. Consideration and appropriate mitigation of 
the rules' impacts on smaller employers is required by the Regulatory 
Flexibility Act and Executive Order 12866, ``Regulatory Planning and 
Review.'' We believe it appropriate for small employers to have more 
time since their size alone may make it more difficult to implement an 
alcohol misuse prevention program within one year (lack of expertise, 
resources, etc.). Our experience in the drug testing area shows that 
these implementation schedules provide sufficient time for larger 
employers to establish their programs.
    All employers must have an alcohol misuse program in place January 
1, 1996. Thus, employers that begin to operate after the effective date 
of these rules must have their programs in place by the deadline 
according to size or by the time they initiate their operation, 
whichever is later. These timetables also take into account the time 
needed by the manufacturers to produce the required modifications to 
breath test devices or to develop alternative devices. In addition, 
they will allow time to develop conforming products lists (CPLs) for 
other screening devices and to complete the blood alcohol testing 
rulemaking.

Prohibitions

    The OAs are establishing the following combination of prohibitions 
designed to prevent any adverse alcohol effect on a covered employee 
during performance of safety-sensitive functions.

Alcohol Concentration

    Unlike some other drugs, alcohol is a legal substance with legally 
and socially acceptable uses for persons 21 years of age and older. The 
Department already has some prohibitions on alcohol misuse. Those OAs 
that traditionally have regulated employee safety-related conduct in 
commercial transportation (FAA, FHWA, FRA and USCG) have selected a 
0.04 alcohol concentration as the per se standard for determining 
whether an individual is under the influence of alcohol, and prohibit 
any use of alcohol on the job. Some OA's (FAA, FHWA and USCG) subject 
certain persons to pre-duty abstinence periods. FHWA rules require that 
commercial vehicle operators with any measurable amount or detectable 
presence of alcohol be placed out-of-service for a 24-hour period. 
Until adoption of these rules, RSPA and FTA did not have alcohol 
concentration prohibitions, primarily because neither directly 
regulates employees.
    Today's final rules prohibit covered employees from reporting for 
duty or remaining on duty requiring the performance of safety-sensitive 
functions while having an alcohol concentration of 0.04 or greater. It 
is not possible to relate a given alcohol concentration definitively to 
impairment in specific individuals. However, as noted earlier, the 
presence of any alcohol can have an adverse effect on an individual. As 
a result, the rules define alcohol concentration in terms of breath 
testing measurement and specifically relate a violation of this 
prohibition to the alcohol concentration as indicated on the breath 
testing device. In addition, no employer who actually knows that an 
employee has that concentration can permit the employee to perform or 
continue to perform safety-sensitive functions.
    Commenters addressing the proposed breath alcohol concentration 
standard generally supported one of three choices: a 0.04 alcohol 
concentration standard that triggers the full sanctions of the rule 
with no consequences attached to lower levels; a similar 0.02 standard; 
or the proposed 0.02/0.04 standard with its bifurcated consequences.
    Most commenters supported a 0.04 alcohol concentration standard. 
These commenters noted that this standard has been in place in 
aviation, maritime, and railroad regulations for a number of years, and 
is the standard that the States are required to adopt for commercial 
motor vehicle drivers. Many commenters also noted that the evidence of 
impairment below 0.04 was equivocal, with as many or more studies 
finding no impairment below that concentration as those that identified 
some impairment. Commenters further stated that the bifurcated system 
would be difficult to implement and hard for employees to understand. 
Finally, both labor organizations and employers stated that a likely 
consequence of a test result between 0.02 and 0.039 would be 
termination of employment under company authority. Labor organizations 
stated that this consequence would be unfair and that, if the final 
rules imposed a standard lower than 0.04, employers should be 
prohibited from terminating employees based on such a result.
    We agree with commenters that an alcohol concentration of 0.04 
represents the point at or above which impairment for most individuals 
rises dramatically, thus justifying its use as the standard for 
commercial transportation employees and for imposing full sanctions 
under the rules issued today. However, adoption of a ``bright line'' 
0.04 alcohol concentration standard, while consistent with current 
regulations, does not address what to do with an employee who tests 
below 0.04.
    The existing rules that impose a 0.04 standard generally do not 
require testing unless there is a triggering event, so the problem of 
what to do with lower alcohol concentrations is not faced. In addition, 
when individuals exceed the standard, action is generally taken against 
a license or some other significant sanction is imposed. Under the 
rules the OAs are issuing today, we face the problem of whether a 
person who tests below 0.04 should be permitted to continue performing 
safety-sensitive functions. Studies about the effects of any alcohol 
raise our concern about the effects of lower alcohol concentrations on 
transportation employees. For example, the National Academy of Sciences 
(NAS) noted that several credible studies measuring task performance at 
low blood alcohol concentrations indicate that, ``[a]lthough individual 
reactions to alcohol vary depending on * * * [various] factors * * *, 
sensory and cognitive performance is significantly reduced at or below 
0.04 percent BAC.'' (Zero Alcohol, 1987) The study concluded that 
``across broad populations of drivers, BACs exceeding about 0.04 to 
0.05 clearly increase the probability of causing a crash. * * * [W]hen 
the driver's age and experience with alcohol are controlled for 
statistically, the risk of crash involvement increases at any recorded 
BAC above zero.''
    A recent NHTSA report to Congress stated that ``[a]lthough the 
effects of alcohol on impairment and crash risk appear more 
dramatically above 0.05 or 0.08, for some drivers, any measurable 
alcohol puts them at increased risk.'' (Alcohol Limits, 1991) It noted 
that relatively few studies have looked at alcohol concentrations below 
0.04; therefore, only a small number of studies have found clearly 
impairing effects for alcohol concentrations below 0.04 (commenters 
noted this as well). NHTSA noted that individuals performing more 
complex tasks (especially those involving a subsidiary task requiring 
time-sharing or divided attention) often show evidence of impairment at 
alcohol concentrations as low as 0.02. NHTSA concluded that one cannot 
specify an alcohol concentration above which all drivers are dangerous 
and below which they are safe or at ``normal'' risk.
    The Transportation Research Board, in a study performed for the 
FHWA during its Commercial Driver's License rulemaking, recommended a 
0.04 BAC as the concentration where the serious penalties should apply 
to commercial motor vehicle drivers, but it noted that some degree of 
impairment such as slowed reaction time, loss of coordination, and 
deterioration in judgment begins with any BAC above zero. (Zero 
Alcohol, 1987) FHWA, in fact, adopted this recommendation in 
promulgating its existing rules, from which we derived the bifurcated 
alcohol concentration standard proposed in the NPRMs. The FHWA rule 
imposes full sanctions for alcohol tests results of 0.04 and over. It 
requires removal of the employee from service for 24 hours for any 
alcohol test result between 0.00 and 0.04. Commercial motor vehicle 
operators engaged in interstate commerce have understood and complied 
with this bifurcated standard for several years, so other 
transportation industry employees should not have trouble understanding 
the standard. We do not believe that it is necessary to adopt a 
``bright line'' 0.02 or 0.04 alcohol concentration standard to avoid 
confusion.
    Commenters who supported a 0.02 standard generally favored a ``zero 
tolerance'' policy, and believed that the rules should set the standard 
at the lowest level of accurate detection. Many of these commenters 
stated that any person who would use alcohol sufficiently close in time 
to the performance of safety-sensitive duties to have any measurable 
alcohol concentration was acting in a manner contrary to safety and 
should be appropriately sanctioned. Additionally, like those commenters 
supporting a 0.04 standard, many commenters believed that a single 
standard would be easier to implement, understand, and enforce. We 
believe that the imposition of the relatively severe rule sanctions at 
the 0.02 ``bright line'' alcohol concentration proposed by some 
commenters is not justified. Although the available studies support 
removing the employee from safety-sensitive functions, the level of 
impairment or adverse effect does not warrant the additional actions 
required for concentrations of 0.04 and above. Employers will likely 
review employee test results between 0.02 and 0.04 on a case-by-case 
basis to determine any appropriate action under their own authority.
    A few commenters supported one of two other positions: absolute 
zero tolerance, with anything over 0.00 resulting in a rule violation, 
or a standard similar to those used by the States for driving while 
intoxicated (0.08 or 0.10). They presented the former position as being 
most consistent with safety. The NAS and the National Transportation 
Safety Board (NTSB) have favored setting an explicit policy of zero 
BAC. The NTSB said that ``[i]t should be absolutely clear that no 
alcohol is acceptable in commercial transportation because research has 
demonstrated that low blood alcohol levels can produce impairment.'' 
Its comments on these rules reiterate this position. As several 
commenters who favored an 0.02 standard noted, adoption of an absolute 
zero standard is not possible, as discussed below, because of the 
current limits on testing technology. Commenters supporting the latter 
standard based on State law believed that it would sufficiently protect 
safety without unnecessarily infringing on employees' rights. Adoption 
of either the 0.08 or 0.10 standard would be a step back from the 
current requirements imposed on commercial operators. In light of the 
studies referred to above, it also would be inconsistent with ensuring 
public safety.
    Those commenters who favored the proposed bifurcated system 
believed it would provide employers with the greatest flexibility in 
ensuring that alcohol use at very low levels did not adversely affect 
safety while not requiring the more significant costs (evaluation, 
replacement, etc.) or stigma associated with a rule violation. These 
commenters did not believe that the provision would be difficult to 
understand or enforce. We agree with them.
    Having any standard other than 0.00 raises troubling questions 
about whether an employer should allow an employee whose test shows an 
alcohol concentration between 0.00 and 0.04 to continue performing a 
safety-sensitive function. Clearly, the Department's concern about 
public safety and an employer's additional concern about liability are 
raised in a situation in which an employee ``passed'' a test with an 
indicated alcohol concentration below 0.04 and then begins or resumes 
performing safety-sensitive functions. The likelihood of being involved 
in an accident when performing safety-sensitive functions with a 
measurable alcohol concentration is increased. Therefore, we are 
adopting the 0.02-0.04 standard, as proposed, with the two-tiered 
system of consequences. The covered employee must be removed from a 
safety-sensitive position at any alcohol concentration of 0.02 or 
greater. If the employee's alcohol concentration is 0.02 or greater but 
less than 0.04, the employee will not be allowed to perform safety-
sensitive functions until (1) the next scheduled duty period (usually 
the next day), if at least eight hours has elapsed (24 hours for those 
regulated by FHWA), or (2) a retest shows the alcohol concentration has 
fallen below 0.02. If the employee has an alcohol concentration of 0.04 
or greater, the employee cannot return to a safety-sensitive function 
until (1) evaluated, (2) treated, if required by a SAP, and (3) 
retested with a result below 0.02. In either case, the employee will be 
prevented from posing any danger to the public. An employer can take 
more serious action for the presence of alcohol at any concentration if 
it has authority to do so independent of DOT regulations.
    The Department has used the 0.02 alcohol concentration as the lower 
standard rather than 0.00, because it represents the lowest level at 
which a scientifically accurate alcohol concentration can be measured 
given the limitations of any current technology (e.g., blood, breath). 
Results below 0.02 cannot be verified as indicating consumption of 
alcohol (could represent natural ketosis) and would be forensically 
insufficient to support consequences under these rules. We cannot be 
sure if such results indicate if the employee really has any alcohol in 
his or her system. In essence, use of a 0.02 standard represents a zero 
tolerance standard for alcohol.
    Some commenters raised questions about relying on the NHTSA CPL for 
testing devices that must measure as low as 0.02. NHTSA's model 
specifications for devices on the CPL were developed for police use 
under criminal laws prohibiting alcohol concentrations of 0.10 and 
above. Although all of the EBTs on the CPL exceed existing 
requirements, on September 17, 1993, NHTSA published a notice modifying 
the model specifications for evidential breath testing devices to be 
consistent with the requirements of these rules and updating the list 
of conforming products (58 FR 48705). The new specifications establish 
evaluations for precision and accuracy of devices at the 0.0, 0.02, 
0.04, 0.08 and 0.16 alcohol concentrations. When the OAs proposed the 
rules being issued in final today, we were aware that NHTSA was going 
to take this action to respond to the ongoing efforts of States to 
lower prohibited alcohol concentrations to 0.08 in general and to 0.02 
for drivers under 21 and to the prohibition on 0.04 alcohol 
concentration or greater for commercial drivers.

On-duty Use

    The rules also prohibit a covered employee from using alcohol while 
performing safety-related functions and prohibit an employer who 
actually knows of such use from allowing the employee to perform or 
continue to perform safety-sensitive functions. The need for this 
prohibition is self-evident. Some commenters suggested an exception for 
medication if the employee notifies the employer and the employee's 
alcohol concentration never reaches 0.02; others strongly opposed such 
an exception. As discussed above under the discussion on the definition 
of alcohol use, we have decided not to allow a medication exception in 
these rules.

Pre-duty Use

    Commenters had a mixed reaction to the pre-duty use prohibition. 
Several opposed it as unnecessary due to the on-duty prohibition, 
intrusive on an employee's private life (and legitimate use of a legal 
substance), unfair to ``on-call'' employees and unenforceable. Others 
supported the prohibition, but several of them wanted it extended from 
the proposed four hours to a range of five to 12 hours; eight hours 
proved to be the most popular and the choice of the NTSB for all OAs. 
One commenter wanted a clearer definition of what actual knowledge 
means. Some commenters wanted a medication exception for pre-duty use.
    Drinking during off-duty periods may impinge upon a person's 
ability to function safely on the job. Although the alcohol was 
consumed during the employee's private or off-duty time, it may still 
be in the employee's system when he or she reports for work. We do not 
and cannot effectively require the testing of all employees when they 
report to work, so the existence of testing is not in itself 
sufficient. Setting a pre-duty abstinence period also provides clear 
instructions to an employee who might not otherwise appreciate or 
understand that drinking before coming to work could result in a 
positive test. Therefore, we believe that we need to retain a pre-duty 
abstinence period in addition to the on-duty prohibition to avoid the 
possibility of adverse effects from alcohol in the system due to pre-
duty ingestion.
    The OA rules generally prohibit a covered employee from using 
alcohol within the four hours preceding the performance of safety-
sensitive functions. Four hours is sufficient to ensure that an 
employee is alcohol-free in most situations, without unduly intruding 
upon the employee's private life; a longer period would be more 
intrusive. The rules also prohibit an employer, who actually knows that 
the employee has used alcohol within that period of time, from allowing 
the employee to perform or continue to perform safety-sensitive 
functions. An employer cannot always be aware of an employee's pre-duty 
behavior, but actual knowledge can come from the employer's direct 
observation of the employee, a reliable witness or the employee's 
admission of alcohol use. Generally, this prohibition is enforceable 
vis-a-vis the employer only in ``actual knowledge'' situations.
    The FAA's long-standing eight-hour pre-duty use prohibition for 
crewmembers will remain in effect. The applicability of the four-hour 
prohibition to ``on-call'' employees varies by industry. Please refer 
to the specific OA rules on this issue. Because duty tours often are 
not predictable in the rail industry, the four-hour period is shortened 
for unscheduled assignments to the interval between being ``called to 
duty'' and ``reporting for duty.'' RSPA's rule provides an emergency 
exception to the prohibition on pre-duty use. For example, the only 
qualified employee in the area, who has used alcohol within the 
previous four hours, can be called to respond to an emergency call to 
perform the simple act of turning the valve to shut down a ruptured 
pipeline. The rule prohibits alcohol use after the employee has been 
notified to report for emergency duty. The exception does not support 
the employee's continued performance of the safety-sensitive functions 
once safety is achieved or if a replacement employee is readily 
available. As discussed above under the discussion on the definition of 
alcohol use, we have decided not to allow a medication exception in 
these rules.

 Use Following an Accident

    Most commenters had problems with this prohibition, although many 
supported the concept. Several noted that it would be unenforceable 
because the employer often does not have control over the employee and 
is unnecessary where the employee is in ``on-duty'' status, since the 
on-duty prohibition applies. Numerous commenters pointed out that the 
prohibition is too difficult to apply to employees who do not know 
about the accident or to mechanics who may have worked on the vehicle 
involved in the accident. Those comments on mechanics are specifically 
addressed in the OA preambles.
    Since it is important to determine whether alcohol is implicated in 
an accident, a covered employee who has actual knowledge of an accident 
in which his or her performance of a safety-sensitive function has not 
been discounted by the employer as a contributing factor to the 
accident is prohibited from using alcohol for eight hours following the 
accident. The prohibition ends eight hours after the accident (when a 
test is no longer required), once the covered employee has taken a 
post-accident test under these rules, or once the employer has 
determined that the employee's performance could not have contributed 
to the accident.
    While we recognize that there are some situations where it may be 
difficult to enforce, the prohibition is important. The Department is 
aware of accidents in which employees, who should have been tested, 
left the scene and then, when they were brought in for testing, alleged 
that they consumed alcohol after the accident. This rule prevents 
employees who know they are subject to testing from explaining 
``positive'' findings on an alcohol test by alleging they had a drink 
after the accident, since such action also constitutes a rule 
violation. It also is useful for employees who may not know whether or 
not they remain in ``on-duty'' status after an accident to be aware of 
this prohibition. We are imposing an ``actual knowledge'' requirement, 
because, in some situations, the employee involved in an accident may 
not know of the accident. For example, a mechanic makes a mistake that 
causes an accident a couple of hours later or half a continent away. If 
the mechanic is unaware of the accident, we agree with those commenters 
that do not believe a ban on drinking can be effectively enforced. 
However, if it is established that the mechanic did know of the 
accident and his or her potential involvement (e.g., was told by a 
supervisor) and performance of the safety-sensitive function was not 
too removed in time to make conducting a test futile, the mechanic 
would be prohibited from drinking. See the specific OA rules that limit 
the application of this prohibition to performance of a safety-
sensitive function at or near the time of the accident or on the 
vehicle or aircraft involved. Also, the FRA rule does not include this 
requirement because under current FRA rules the employees involved 
remain in on-duty status after an accident.

Refusal to Submit to a Required Alcohol Test

    The rules prohibit a covered employee from refusing to submit to 
required post-accident, random, reasonable suspicion or follow-up 
alcohol tests. The RSPA rule provision applies only to those types of 
tests it requires. This, in effect, provides that the employee must 
take those tests when required. The consequences for a refusal to 
submit to a required test are the same as if the employee had tested at 
0.04 or greater or had violated any of the other prohibitions in these 
rules. Failure to provide adequate breath for testing when required 
without a valid medical explanation, engaging in conduct that clearly 
obstructs the testing process, or failure to sign the alcohol testing 
form (if the employee did not take test) constitute a refusal to submit 
to testing. For further discussion of these points, see the preamble to 
part 40. A covered employee subject to a post-accident test who leaves 
the scene of the accident before being tested (except, for example, 
when necessary to receive medical treatment) and is not reasonably 
available for a test is deemed to have refused to submit to a required 
test. A refusal also can occur where an employee, who screens positive 
for alcohol, decides to admit alcohol misuse in violation of the rules 
and refuses the confirmation test. This situation is different from 
allowing employees to voluntarily ``mark off'' from duty when not 
threatened with a test under these rules, if they feel that they are 
unable to perform their jobs due to alcohol misuse. The employer must 
still confirm the positive screen to protect the integrity of the 
process and to comply with the statutory requirement for a confirmation 
test. In the absence of the confirmation test result, the employee 
could later disavow the admission and challenge the screen test result. 
The rules prohibit an employer from permitting an employee who refuses 
to submit to testing to perform or continue to perform safety-sensitive 
functions. In addition, the FRA rule prohibits anyone refusing a 
required test from engaging in covered service for nine months.
    Some commenters, including the NTSB, wanted the penalty for a 
refusal to test to be removal from safety-sensitive functions for 24 
hours. We disagree and intend to apply the full consequences of these 
rules to an employee's refusal to take required alcohol tests. Failure 
to treat a refusal as a positive has two major shortcomings: it 
eliminates deterrence since those misusing alcohol can simply refuse 
the test if caught and get only a ``minor'' penalty; in addition, 
simply removing them from safety-sensitive duties for 24 hours does not 
help fix the problem--the employee should be evaluated by a SAP before 
returning to a safety-sensitive function.
    An applicant's or employee's refusal to submit to a pre-employment 
test or a return-to-duty test does not trigger consequences under the 
rules that result in the need for evaluation. In those cases, the 
applicant or employee is not in a safety-sensitive position and does 
not have to be removed from a safety-sensitive position. Since those 
tests are a condition precedent to starting or returning to safety-
sensitive functions, the applicant or employee simply could not be 
hired or returned to duty.

Tests Required

General

    The Act requires that the industry alcohol misuse prevention 
programs provide for pre-employment, reasonable suspicion, post-
accident and random testing. Periodic tests, which generally are 
performed as part of required physical examinations for certification 
of some employees, are discretionary under the Act. The OA rules 
require the forms of testing mandated by the Act, as well as return-to-
duty and follow-up testing; however, the Department has decided not to 
require periodic testing for alcohol. We agree with the commenter who 
questioned the value of periodic alcohol testing if the employee knows 
when the test is to be conducted.
    The testing programs are designed for the deterrence and detection 
of alcohol misuse, which, in turn, promote our compelling interest in 
ensuring transportation safety. Whether conducted by breath, blood or 
other method, alcohol testing is considered a Federally-mandated 
``search'', under the Fourth Amendment. Accordingly, we are limiting 
alcohol testing to the specific time periods surrounding the 
performance of safety-related functions. That limitation provides the 
requisite nexus to ensuring proper performance of safety-related 
functions that is our primary concern and the principal purpose of 
these rules. The tests required by these rules will be conducted after 
a triggering event (pre-employment, post-accident, reasonable 
suspicion, return-to-duty, follow-up) and just before, during or just 
after performance of a safety-sensitive function (random). The 
determination (triggering event) that a reasonable suspicion test is 
necessary must occur during the time surrounding the performance of a 
safety-sensitive function. Many commenters raised practical and policy 
concerns about at least one of the different types of testing. These 
concerns are specifically addressed below in the discussions relating 
to each type of testing.

Pre-employment Testing

    A substantial number of commenters were concerned about the costs 
of pre-employment tests and considered them silly ``intelligence'' 
tests and a waste of time. The National Airline Commission specifically 
recommended that ``[n]ew pre-employment alcohol testing rules do not 
need to be adopted * * *'' The Act explicitly requires pre-employment 
testing for covered transportation industry employees, so we do not 
have the discretion to eliminate it from these programs. We recognize 
that, as the commenters noted, drinking off duty generally is legal and 
that alcohol remains in the body for only a short period of time. 
Often, a test result indicating alcohol use may only indicate bad 
judgment or bad timing (e.g., one notices an employment advertisement 
after having beer and a hamburger for lunch, immediately applies, and 
is tested) instead of alcohol misuse.
    To make such a test more meaningful, we are requiring a covered 
employee to undergo alcohol testing any time prior to the first time 
the employee performs safety-sensitive functions for an employer. This 
could occur the first time that the employee performs a safety-
sensitive function after being hired or after a transfer within the 
employer's organization. Some commenters suggested that such tests only 
be required upon a conditional offer of employment. The rules give the 
employer the flexibility to test at any time during the hiring process, 
including before or after the employee receives a conditional offer of 
employment, or before (preferably just before) the employee starts 
performing safety-sensitive functions. (Please refer to earlier ADA 
section for discussion of treatment of alcohol testing as a medical 
test, which would have to be done after a conditional offer.) The 
latter choice will enable the employer to avoid the cost of testing 
several applicants for each job, tie pre-employment tests to the 
performance of safety-sensitive functions and accommodate the statutory 
language requiring a pre-employment test for an ``employee'', rather 
than an applicant. The former option will permit identification of 
someone with alcohol in his/her system before incurring additional 
hiring expenses. For the above reasons, the definition of ``covered 
employee'' used in these rules includes applicants for a safety-
sensitive function as well as current employees applying to move into a 
safety-sensitive function. Many commenters thought that the rules would 
require every employee to report for work early every day for a 
regularly scheduled or randomly-conducted pre-duty test. The pre-
employment testing requirement does not apply each time the employee 
reports for safety-sensitive duties, only the first time. Some 
commenters were confused by the use of term ``pre-duty'' in ``pre-
employment/pre-duty'' testing and to describe the prohibition on using 
alcohol during a time period before performing a safety-sensitive 
function. For that reason, we have changed the name of the test to 
``pre-employment'', but note that it covers both new and transferring 
employees.
    The rules prohibit an employer from allowing an employee to perform 
safety-sensitive functions unless that employee has been pre-employment 
tested with a resulting alcohol concentration less than 0.04. If the 
pre-employment test result indicates an alcohol concentration of 0.02 
or greater but less than 0.04, the employee cannot perform or be 
allowed to perform safety-sensitive functions until the alcohol 
concentration falls below 0.02 on a subsequent test or until the next 
scheduled duty period, if it is not less than eight hours following the 
test. Nothing in the rules prohibits an employer from later retesting 
an applicant with a positive result. The rules do not confer any rights 
or consequences upon applicants or employees who have a positive result 
on a pre-employment test.
    Under the rules, an employer may elect not to administer a pre-
employment test if the employee has had an alcohol test conducted under 
any OA alcohol misuse rule following part 40 procedures with a result 
less than 0.04 within the previous six months and the employer ensures 
that no prior employer of whom the employer has knowledge has records 
showing a violation of these rules within the previous six months. 
Generally, this means that, when checking with a prior employer to 
verify that the applicant had ``passed'' a previous alcohol test, the 
new employer also must verify that the prior employer has no records of 
a violation of a OA alcohol misuse rule. If the new employer knows the 
applicant had other employers within the last six months, the new 
employer must check them too. This option provides the greatest 
flexibility for avoiding the constant retesting and related costs 
involved in an industry, such as trucking, which has a high employee 
turnover rate. Some commenters did not approve of the requirement to 
release previous test results to a new employer. We believe that it is 
important to include this option in these programs; therefore, we do 
not intend to allow employers to refuse to provide information on a 
former employee, so long as the request meets the requirements of these 
rules. Since the information can only be released with the employee/
applicant's permission, we do not believe there is a sound basis for 
the former employer refusing to release the information. An employer, 
of course, can choose to conduct pre-employment tests in lieu of 
reviewing information on past employment authorized by the employee and 
provided by a former employer.
    One commenter asked that the proposed exception to pre-employment 
testing be extended to include negative test results from the previous 
12 months, instead of the previous six months. We have decided not to 
extend the exception period to 12 months; we are trying to provide some 
flexibility, but beyond 6 months it does not seem to us that it would 
be a reasonable assumption that the employee continues to be free of 
alcohol misuse.
    In the common preamble to the NPRMs, we asked whether we should 
require employers to give notice that a pre-employment test will be 
conducted. We have decided not to impose such a requirement, because it 
would be too time-consuming and burdensome on the hiring process, 
particularly in those industries where hiring occurs on the spot. The 
fairness issue (testing positive after a beer at lunch) is likely to 
diminish over time as more and more employers conduct these tests and 
applicants become more aware of their use.

Post-accident Testing

    Post-accident alcohol testing already is required by Federal 
regulation in some transportation modes and is used as a valuable 
accident investigation and enforcement tool. States also conduct post-
accident tests, depending upon the circumstances and their authority to 
test.
    Effective post-accident testing for alcohol at remote locations can 
be more difficult to accomplish than drug testing, because alcohol 
passes from the blood and breath more quickly than most drugs. Also, 
delays in transporting trained personnel and testing equipment to an 
accident site can result in negative tests.
    The OA rules generally require that as soon as practicable during 
the 8 hours following an accident, each employer shall test each 
surviving covered employee for alcohol, if that employee's performance 
of a safety-sensitive function either contributed to an accident or 
cannot be discounted as a contributing factor to the accident. The need 
for testing is presumed; any decision not to administer a test must be 
based on the employer's determination, using the best information 
available at the time the determination is made, that the employee's 
performance could not have contributed to the accident. The definitions 
of accidents or occurrences that will trigger a post-accident test vary 
by industry and are discussed in each OA's final rule. They generally 
are the same as the triggering events for post-accident drug testing. 
See the OA final rules for modifications to the general approach or for 
disposition of comments on the events that trigger post-accident 
testing. For example, under the FTA rule, post-accident testing is 
mandatory if there is a fatality.
    Any employee subject to post-accident testing shall remain readily 
available for such testing or may be deemed by the employer to have 
refused to submit to testing; such a refusal is treated as if the 
employee recorded a test result of 0.04 or greater. Where possible, 
employers should make every effort under the circumstances surrounding 
the accident to ensure that the employee, even one who has been 
permitted to leave--or has had to leave--the site, is available for a 
post-accident test. This, of course, does not mean that necessary 
medical treatment for injured people should be delayed or that an 
employee cannot leave the scene of an accident for the period necessary 
to obtain assistance in responding to the accident, materials to secure 
the accident site, or necessary emergency medical care.
    A number of commenters believed that conducting a post-accident 
test within eight hours is unrealistic; they wanted a 32-hour maximum 
limit as required in most OA drug rules. Because alcohol is eliminated 
from the body much faster than drugs are, using a 32-hour limit for 
alcohol testing is inappropriate. We chose an eight-hour maximum time 
limit for post-accident alcohol tests, because if a test is not 
administered within eight hours following the accident, there is little 
likelihood of finding a meaningful alcohol concentration resulting from 
use preceding the accident. Some commenters, including the NTSB, wanted 
the post-accident time limit shortened to two to four hours because no 
alcohol is likely to be detected after eight hours. Although shorter 
time limits may result in a more useful test result, they may not be 
reasonable; they ignore the likelihood that additional time may be 
needed for those accidents that occur in remote areas or are not 
discovered right away.
    It is important that the employer administer a post-accident test 
as soon as possible to determine whether there was any alcohol misuse. 
If a post-accident test is not administered within two hours following 
the occurrence of the accident, the employer must prepare and maintain 
on file a record stating why the test was not promptly administered. 
Some commenters wondered if the time ran from the accident or from the 
time the site was secured. One commenter suggested that the two hours 
should begin after the determination that the employee may have caused 
the accident. Because alcohol metabolizes so rapidly, we disagree that 
the two hours should run from the determination that an employee may 
have caused the accident or after the site has been secured; those 
actions could take several hours.
    After eight hours has passed, the employer then shall cease 
attempts to administer the test and record why the employer was unable 
to administer a test. Some commenters grumbled about the record 
requirements. We believe that recording this information is necessary 
for program oversight and to encourage employers to make the maximum 
effort to conduct any necessary post-accident tests in a timely manner. 
The Department recognizes there may be valid reasons for not conducting 
the tests in these time frames, but every effort must be made to do so. 
We have tried to ease the reporting burden by dropping the proposed 
requirement that employers submit these post-accident reports to the 
appropriate OA. Instead, rules now require only that the employer 
maintain records on why a post-accident test could not be conducted and 
make the records available to the appropriate Department officials upon 
request. It is important to note that this test is not meant to be a 
full toxicological workup for the purpose of determining accident 
causation. The primary purpose of the test is to determine whether the 
employee(s) involved should be removed from safety-sensitive functions.
    Most commenters who addressed the issue of who should be required 
or permitted to perform the post-accident test supported OA acceptance 
of tests conducted by law enforcement officers, even if the testing 
does not comply with part 40 in every respect; a couple of commenters 
opposed this idea. One commenter pointed out that most States have 
implied consent laws; once the police test the employee and place him 
or her in jail (presumably after a positive test), the employer will 
not have access to the employee during the critical eight hours and 
must be able to use the police test as a substitute, if made available. 
Generally, we believe that employers should conduct their own post-
accident testing under these rules. However, as commenters have pointed 
out, the nationwide highway transportation system presents difficult 
post-accident testing problems. Motor vehicle operators can range far 
beyond the control of their employers, who may not be informed of the 
occurrence of an accident for an extended period. We agree that breath 
or blood alcohol tests conducted by on-site State and local law 
enforcement or public safety officials should be acceptable in lieu of 
post-accident testing by FHWA employers in situations where that test 
can be administered earlier than the employer can get to the scene or 
when an alcohol test cannot be conducted by the employer within eight 
hours. These local authorities often are first to arrive at an accident 
site, particularly if the accident occurs in a remote area, and 
sometimes are equipped to conduct tests. Such tests must meet State 
standards that would already make them acceptable in court. Although 
commenters to other OA rules expressed support of acceptance of such 
tests in their industries, only the FHWA rule will provide for the 
exception because the need is most acute for motor vehicle operations. 
Other OAs, e.g., FAA, have separate rules that would enable them to 
obtain the results of these tests, if necessary, or face fewer 
difficulties in finding out about or locating an accident. We recognize 
that we cannot always ensure cooperation in getting test reports from 
the police. However, where such results are made available, they would 
be acceptable under the FHWA program and part 40, provided that breath 
testing is conducted with an EBT on the CPL and by a law enforcement 
officer certified on that EBT, and that blood testing is conducted in 
compliance with State-approved procedures. Please refer to the FHWA 
preamble for additional discussion.
    Numerous commenters believed that post-accident testing is 
necessary, but that it is unreasonable and impracticable without the 
option to use other methodologies, such as blood, saliva and urine. As 
stated earlier, we are considering permitting the use of post-accident 
blood testing and the possible use of other devices for screening 
tests. Until more is done, we cannot ensure the reliability and 
integrity of other devices. FRA has its own preexisting procedures for 
conducting a full toxicological analysis following an accident; see the 
FRA rule for its post-accident testing requirements.

Random Testing

    A significant number of commenters opposed random testing, citing 
its costs and burdens in comparison to the perceived lack of 
significant problems in their industries. Several viewed training, 
educational efforts and employee assistance programs as better 
investments than random testing. Some commenters supported the need for 
random testing. The Act requires random alcohol testing of safety-
sensitive employees in the aviation, rail, motor carrier and transit 
industries. It is the only type of testing not triggered by or 
conducted in reaction to another event; its primary objective is 
deterrence. Although we agree that investment in education and employee 
assistance efforts will deter some employees from alcohol misuse and 
contribute to the overall success of the alcohol misuse prevention 
programs, some employees will only be deterred by the existence of 
random testing. The additional deterrence provided by random testing is 
critical to ensuring public safety. Court decisions have indicated that 
the lack of good data indicating a specific problem in a particular 
industry is not a bar to our taking action to prevent or address the 
spread of a societal problem to that industry. Moreover, the lack of 
data may be due to the fact that currently there is little or no 
testing. Finally, and most importantly, the Act provides no discretion; 
we must require random testing. The rule does provide, however, that 
two consecutive years of very low industry positive random alcohol 
rates will result in a lowering of the random alcohol testing rate for 
that industry, thereby reducing employers' costs.
    The OA rules (except RSPA) require each employer to randomly select 
a number of covered employees at various times during each year for 
unannounced alcohol testing. The number of employees selected must be 
sufficient to equal an annual rate of not less than 25 percent 
(initially) of the total number of employees subject to alcohol testing 
under a particular OA's rules. Thereafter, the industry's random 
alcohol rate will be adjusted based on a performance standard related 
to its random alcohol violation rate. Because of safety concerns, two 
years of data are necessary to justify lowering the random alcohol 
testing rate; one year of data is sufficient to raise it. (See more 
specific random rate discussion below.)
    The employer must select covered employees for testing through a 
scientifically valid method, such as a random number table or a 
computer-based random number generator that is matched with employees' 
Social Security numbers, payroll identification numbers, or other 
comparable identifying numbers. One commenter believed that in-house 
random selection is discriminatory in practice and employers need to 
use the services of an outside firm. Each covered employee must have an 
equal chance of being tested under the random selection process used. A 
system using random number table or random number generator would not 
be discriminatory because the employer could not designate particular 
employees for testing. The dates for administering random tests must be 
spread reasonably throughout the year (the deterrent effect would 
disappear if employees know that the employer had completed all 
required random tests for the year) and should not be predictable 
(e.g., every Monday or the first week of each month). To achieve this, 
many employers may find it best to join a consortium. Because of the 
randomness of the testing, some employees may be tested more than once 
during the year, while others will not be tested at all.
    In the view of some commenters, random testing would provide few 
safety benefits since it is limited in time to performance of safety-
sensitive functions. A few commenters suggested removing those 
limitations and applying the requirement to all employees at any time. 
As stated above, we believe that the deterrence provided by random 
testing will increase safety. To ensure their reasonableness for 
Constitutional purposes (discussed earlier in this document), the rules 
provide that an employee can be tested for alcohol only while the 
employee is performing safety-sensitive functions, just before the 
employee is to perform safety-sensitive functions, or just after the 
employee has ceased performing such functions. Obviously, the best time 
to test is before the employee begins to perform the safety-sensitive 
function. Detection at that point will prevent the employee from 
actually performing the function while he or she had alcohol in his or 
her system. However, if the employee understands that a random test can 
be administered only before he or she begins work and there is an 
opportunity to drink during work, deterrence is limited. The ability to 
test just before, during or just after performance increases the 
deterrent effect and may enable detection of employees who use alcohol 
on the job. Although it may be easier to test at any time, if the test 
is not tied to safety, we do not believe there would be a sufficient 
basis under the Constitution to conduct the test.
    One commenter wanted a better explanation of ``just before, during 
and just after'' performance of safety-sensitive functions. The purpose 
of the concept of ``just before'' and ``just after'' is to avoid the 
problem that some safety-sensitive functions cannot be interrupted for 
the performance of a test (e.g., piloting an aircraft). We have not 
defined the concept in terms of a specific time, but it is intended to 
be close enough to the actual performance of the safety-sensitive 
function that the test results will clearly indicate that the employee 
would be or was at 0.04 or above (or 0.02 or greater but less than 
0.04) at the time when performing those functions. To accomplish this, 
employers should ensure that each covered employee selected for random 
testing proceeds to the testing site immediately. In the event the 
employee is performing a safety-sensitive function when notified, the 
employer must ensure that the employee ceases the function consistent 
with safety and proceeds to the site as soon as possible. See 
discussion in the specific OA preambles on what the OAs expect 
``immediately'' to mean in the context of reporting for a random test.
Consortia/Random Testing Pools
    To promote efficiency and reduce costs, particularly for smaller 
employers and employers subject to more than one OA rule, we generally 
permit the combination of geographically-proximate employees covered by 
different OA rules into one random testing pool. To maintain fairness 
and the equal chance of each type of employee for selection, certain 
conditions apply. For example, employees in any industry who travel 
most of the time could constitute one pool; others who remain in the 
vicinity of the testing site would be in another. However, if the 
testing method chosen required testing of employees immediately upon 
selection or whenever they arrived at the testing location after their 
selection (but still unannounced), there would be no need for separate 
pools. Any acceptable method must ensure that each employee has an 
equal chance of being selected for testing. Although multi-modal pools 
are permitted, they must meet any other specific OA requirements, such 
as possible differing industry random testing rates.
    If the employer joins a consortium, the rules permit the 
calculation of the annual rate (where the rates are the same) on either 
the total number of covered employees for each individual employer or 
the total number of covered employees subject to random testing by the 
consortium's pool covering the employer. This means that a consortium 
member could have less than its required number of random tests 
conducted if the overall consortium rate equals the required rate. 
Thus, if Employer A has twenty covered employees and the consortium has 
500 covered employees in the pool covering Employer A, and a 25 percent 
rate applies, if Employer A chooses to have the rate based on the 
consortium, the consortium must conduct at least 125 tests even if none 
of the covered employees of Employer A are actually tested. So long as 
each employee has an equal chance of being tested each time the 
consortium conducts random tests, the requisite deterrence factor 
exists. Membership in a consortium should improve deterrence for small 
companies because their employees would continue to perceive an equal 
chance of being selected throughout the year.
Random Alcohol Rate Performance Standard
    In the NPRMs, we requested comment on what annual rate to require 
for random alcohol testing within a 10 to 50 percent range. Most 
commenters, particularly employers, wanted a 10 percent random alcohol 
testing rate beginning the first year; although substantial numbers 
selected 25 percent or a range between 10 and 25 percent and several 
wanted to use 50 percent as currently required in the drug testing 
rules. Many commenters expressed a greater preference for having the 
same testing rate (and the lower the better) for both drugs and 
alcohol, because combining the programs would save more money than just 
lowering the testing rate. They argued that, with drug testing, studies 
have shown that lowering the testing rate did not affect deterrence. 
(At least one commenter argued, candidly, that since in its view random 
alcohol testing is worthless but the Act required it, we should set the 
lowest random rate possible to reduce employer costs.) According to 
commenters, lower random alcohol testing rates are appropriate because 
alcohol use has declined, and many employers have strong employee 
assistance programs in place, which did not exist when drug testing was 
phased in. Finally, most noted that it is easier to detect alcohol 
misuse through supervisor or co-worker observation. Specific to this 
rulemaking, the National Airline Commission stated that ``* * * any 
random alcohol testing of airline employees should be at no more than a 
10 percent rate.''
    We note that in July 1991, the FRA initiated a comparative study of 
random drug testing rates and the impact on deterrence, as measured by 
the positive rate. The study compared 4 railroads testing at 50 percent 
(control group) with 4 railroads testing at 25 percent (experimental 
group) . The positive rate for the control group when the study was 
initiated was 1.1 percent; for the experimental group it was 0.89 
percent. In the first year (July 1991 through June 1992), the control 
group's positive rate was 0.90 percent; the experimental group's was 
0.87 percent. For the period July 1992 through June 1993, these groups 
had positive rates of 0.80 percent and 0.94 percent, respectively. 
Statistically, the differences in the positive rates between the 
control and experimental groups are not significant.
    Many would argue that the higher the random testing rate, the 
greater the likelihood of getting ``caught'' and, therefore the greater 
the likely deterrence. Detection is also higher at higher rates. 
However, if the likelihood of detection is small (e.g., because alcohol 
metabolizes so quickly), testing may result in little deterrence unless 
very high rates are used. But costs also rise as the number of tests 
increases. The concern is whether extra deterrence is worth the extra 
cost.
    The Department agrees with commenters that, since alcohol symptoms 
are somewhat better known and easier to detect, more alcohol misusers 
than drug users are likely to be caught by observation, which justifies 
a lower random alcohol testing rate. (Of course, observation alone will 
not always detect employees with very low alcohol concentrations, 
unless they have an open bottle of liquor.) The deterrent effect of 
random alcohol testing may not equal that provided by random drug 
testing because the window for detection is limited by the rapid 
elimination of alcohol from the body. An individual who has alcohol in 
his or her system while performing safety-sensitive functions may be 
``negative'' by the time he or she gets to the testing site and the 
testing is completed. In addition, there are many more programs in 
place to handle alcohol misuse problems than there were to handle drug 
use problems when we issued the drug rules. There is also no indication 
that alcohol is a growing problem; drug use was, and there is still 
much evidence that strong steps must continue to prevent drug use from 
increasing. Consequently, we believe that a lower initial random 
testing rate is appropriate for alcohol.
    For the above reasons, we believe we can permit the alcohol random 
testing rate to drop to 10 percent if performance criteria in our rules 
are met, but cannot permit a comparable drop in the drug testing random 
rate for a similar performance. In view of the small window of 
opportunity for detecting alcohol misuse, we agree with commenters that 
the added cost could be more useful if applied to other areas of the 
alcohol prevention program, such as training and employee assistance. 
On balance, we believe that an initial 25 percent random alcohol 
testing rate will best achieve deterrence and detection at a reasonable 
cost.
    Many employers commented that they wanted performance-adjusted 
rates, where the random testing rate would be set according to each 
employer's random positive rate for the preceding year. These 
commenters stated that testing based on measures of results would 
provide an incentive for employers to try alternative deterrence 
methods. Labor agreed with employers on this issue. Adjusted-rate 
testing could be used to reward those employers who have adopted 
rehabilitation and treatment programs or who have low positive rates. A 
few preferred adjusted-rate testing by industry. Other commenters noted 
that providing flexibility with respect to the random testing rate 
would be extremely difficult to administer.
    We agree that there is merit in using a random alcohol testing rate 
that is adjusted annually based on industry performance. To provide 
more incentive and flexibility, the rules allow those industries that 
demonstrate a very low positive alcohol random rate over two years, due 
to few employee alcohol misuse problems or the success of the alcohol 
prevention programs, to lower their random alcohol testing rate to 10 
percent. Ten percent would be insufficient to protect public safety, at 
least as an initial testing rate. The number of tests conducted at a 
ten percent rate and the visibility of testing to employees, especially 
in medium and small companies, would be insufficient to obtain data 
about prevalence or deterrence of alcohol misuse. We could not reliably 
make decisions on data gathered with such a rate--at least not for a 
number of years. If those who say usage is extremely low are correct, 
when the data gathered at the initial 25 percent rate verifies this, 
the testing rate can be lowered.
    The OA rules require employers to use an initial random alcohol 
testing rate of 25 percent. They provide that, after all employers have 
implemented the rules and industry-wide data for the first year is 
available, the OA Administrator will annually announce in the Federal 
Register the minimum required annual percentage rate for random alcohol 
testing applicable in that OA's covered industry during the calendar 
year following publication of the notice. Thereafter, each OA will 
determine the annual random alcohol testing rate for the industry 
regulated by the OA rule based on the reported violation rate (number 
of random alcohol tests results equal to or greater than 0.04 plus 
refusals-to-take random alcohol tests divided by the total random 
alcohol tests conducted plus refusals-to-take random alcohol tests) for 
the industry. The random rate adjustment indicated by industry 
performance will occur at the beginning of the next calendar year. 
(Thus, during calendar year 1997, an OA will receive results from its 
industry for calendar years 1995 and 1996 (the first year that 
industry-wide data will be available), evaluate them and publish in the 
Federal Register a determination of the need for the industry to adjust 
the random rate. Any such change would take effect on January 1, 1998. 
Please note that, once employers of all sizes are reporting data, a 
decrease in the rate would require two years of qualifying data and an 
increase in the rate would require only one year of data.) A refusal to 
take a random alcohol test will count as a positive for the purpose of 
calculating the industry random testing rate and count toward the 
number of random alcohol tests required to be conducted.
    Determination of the violation rate is based on data obtained from 
employers through the annual Management Information System (MIS) 
reports they must submit by the following March 15th. We envision that 
each OA and the OST Drug Office will review the MIS data and that the 
OA Administrator will issue a determination within a few months. We 
believe that covered entities need approximately one-half year of lead 
time to adjust their procedures, make changes in any contracts and take 
other necessary action to adjust to an increase or decrease.
    To make a decision, each OA will compare the violation rate to two 
specific criteria: 1 percent and 0.5 percent, respectively, to 
determine if the industry must change or maintain the random alcohol 
testing rate. If the industry violation rate is 1 percent or greater 
during a given year, the random alcohol testing rate will be 50 percent 
for the calendar year following the OA Administrator's announcement 
that the rate must change. If the industry violation rate is less than 
1 percent but greater than 0.5 percent during a given year (for two 
years if currently at 50 percent), the random alcohol testing rate will 
be 25 percent for the calendar year following the OA Administrator's 
announcement that the rate must change. If the industry violation rate 
is less than 0.5 percent during a given year (for two years if testing 
at a higher rate), the random alcohol testing rate will be 10 percent 
for the next calendar year. For example, an industry testing at a 50 
percent random rate for alcohol can drop the rate to 10 percent if its 
violation rate drops below 0.5 percent for two consecutive years. 
Because of safety concerns, two years of data are necessary to justify 
lowering the rate and one year of data is sufficient to raise it. The 
two years cannot be averaged; a violation rate of 0.07 one year and a 
0.11 violation rate the next year will not allow a drop in the random 
alcohol testing rate.
    We selected 1.0 percent and 0.5 percent as appropriate performance 
standards. We would prefer zero positives but recognize this may be 
impossible. These levels represent a balance, permitting cost savings 
when usage remains very low, while ensuring that if deterrence is not 
maintained, the rates will increase. We selected the 1 percent 
violation rate as the rate adjustment standard based on the experience 
that the military and other workplace programs have had with 
deterrence-based drug testing. Their results reveal that no matter what 
rate is used for random testing, the testing programs will never 
achieve zero positives. There always is a constant group of ``hard-
core'' individuals representing a fraction of 1 percent of the 
population who are detected positive over a period of time; these 
individuals are unaffected by deterrence-based testing because of 
addiction or belief in their invincibility. We also believe that a 
positive rate of 0.5 percent is achievable based on our limited data 
from the random roadside alcohol testing project, where rates below 0.5 
percent were obtained, and our experience with DOT Federal employee 
drug testing where positive rates have decreased to 0.25 percent.
    We recognize that because the reported violation rate is obtained 
from data whose precision is eroded by sampling variance and 
measurement error, and whose accuracy is diminished by non-response 
bias, there is a greater risk that it diverges from the actual 
violation rate in the population. Each OA will be using MIS data 
collection and sampling methods that address these issues to the extent 
possible and make sense in the context of its particular industry. 
Where not all employers are included in the reported data, the OA will 
decide how many covered employers must be required to report or be 
sampled; this decision will be based on the number of employers (not 
otherwise required to report) that must be sampled to ensure that the 
reported data from the sampled employers reliably reflects the data 
that would have been received if all were required to report. However, 
we retain for our discretion the decision on whether the reported data 
reliably support the conclusion (e.g., based on audits of company 
records that show significant falsification of reports). If the 
reported data are not sufficiently reliable, the OA will not permit the 
random rate adjustment to occur.
    We have decided to use industry violation rates (positive tests and 
refusals to test) as the performance benchmark rather than the employer 
violation rates urged by commenters. Company-by-company rates would be 
extremely difficult to implement and enforce, extremely difficult to 
apply to small companies, would require reports from all companies, 
could encourage cheating (especially in areas of heavy competition) and 
could excessively complicate the use of consortia. Although an 
individual company may have reduced incentive to lower its positive 
rate, industry organizations may pressure it to work toward a more 
favorable industry random alcohol testing rate. Industry-wide rates 
should be much easier to implement and enforce.
    Implementation Issues. The lower random alcohol testing rates will 
create implementation problems, particularly for small employers and 
consortia (see discussion below). Small companies that do not 
participate in a consortium may have to test at a higher effective rate 
even after the industry rate has been lowered to meet other 
requirements. A very low number of dates on which tests are conducted 
will have a detrimental effect on deterrence. Therefore, to promote 
deterrence (and as required under the Department's drug testing rules), 
an employer must spread alcohol tests throughout the year. A very small 
company (e.g., one that has to test two covered employees) will not be 
permitted to only test employees once every few years. Rather, it will 
have to test at least once a year and establish a program that will 
ensure that there is no period of time during which employees know 
testing ``is done for the year''. For example, if an employer is 
required to conduct only one to four tests and that number are 
completed by mid-summer, the employer's program must ensure that more 
tests could be conducted before the end of the calendar year. For 
example, such an employer could conduct random testing every quarter or 
could randomly select the month within the next 12 months for 
conducting the next test(s). Depending upon the month selected, the 
employer may in fact test more than once in a calendar year. For 
example, using a revolving calendar, the first selection is May 1994 
for the year January 1994 to December 1994; the next selection must be 
for the 12 months from May 1994 to April 1995.
    Another alternative is for small employers to join a consortium so 
that their employees are always subject to random testing. Although we 
have in a number of ways eased the burden on small employers, these 
restrictions that may raise the effective annual random rate are 
necessary to achieve deterrence in random testing in the context of 
allowing random rate adjustments. A small employer, of course, can 
achieve the benefits of a lower random rate without the higher costs of 
meeting the deterrence requirements if it joins a consortium. If the 
company is in a consortium, the employee is always subject to testing 
because he or she is part of a much larger pool and the necessary 
deterrence exists.
    Under the Department's current drug testing rules, employers must 
conduct random drug tests at a 50 percent annualized rate; that is, the 
number of annual random tests conducted must equal half the number of 
the covered population. Elsewhere in today's Federal Register, the 
Department is publishing a separate NPRM that seeks comment on a 
proposed industry performance standard to adjust the random testing 
rate for the current drug testing programs. The proposal is designed to 
lower costs and maintain an equivalent level of deterrence of illegal 
drug use. The NPRM proposes to allow each OA Administrator to lower the 
random drug testing rate to 25 percent if its industry has a positive 
testing rate of less than 1.0 percent for two consecutive years (while 
testing at 50 percent); the rate will increase back to 50 percent, if 
the industry random violation rate is 1 percent or higher in any year. 
The Department is not proposing a system to adjust the drug random 
rates identical to that established for alcohol random testing for the 
opposite of the reasons stated above. It is more difficult to justify a 
possible lowering of the testing rate to 10 percent because the 
symptoms of drug usage are less well known and more difficult to detect 
by observation than symptoms of alcohol misuse. Moreover, random drug 
testing is a more effective deterrent than random alcohol testing 
because the window of opportunity for detection is greater; drug 
metabolites are present in the body far longer than alcohol. However, 
we agree with commenters that we still should provide an incentive for 
each industry to achieve a low random drug positive rate and reduce 
testing costs.
    The random alcohol rate adjustments will have an impact on other 
aspects of random alcohol testing. If a given covered employee is 
subject to random alcohol testing under the alcohol misuse rules of 
more than one OA for the same employer, the employee shall be subject 
to random alcohol testing at the percentage rate established for the 
calendar year by the OA regulating more than 50 percent of the 
employee's safety-sensitive functions (or those that take the greatest 
percentage of the employee's time). If the employee's time is equally 
divided, the employer may choose the OA rule with the lowest random 
testing rate. If an employer is required to conduct random alcohol 
testing under the alcohol misuse prevention rules of more than one OA, 
the employer may (1) establish separate pools for random selection, 
with each pool containing the covered employees who are subject to 
testing at a different OA required rate; or (2) randomly select from 
all employees for testing at the highest percentage rate established 
for the calendar year by any OA to which the employer is subject. 
Consortia could meet different required random testing rates by setting 
up separate pools.
    Many commenters, particularly employers, supporting random testing 
claimed that it would be less burdensome if they could combine their 
drug and alcohol random testing programs. They noted that using the 
same employee selection for both alcohol testing and drug testing would 
allow flexibility and be more cost effective, by minimizing the impact 
on an employer's operations. Labor supported combination testing, where 
an employee would not know in advance whether he or she was being 
tested for alcohol, drugs, or both, as the most effective type of 
program. The rules do not prohibit employers from combining random drug 
and alcohol testing. However, the possibility of different testing 
rates for drug and alcohol random testing may cause difficulties for 
employers interested in combining their random testing programs. 
Differences in the testing rate for each program can be accommodated; 
for example, where an employer must use a 25 percent alcohol random 
rate and a 50 percent drug random rate, half (randomly selected) of the 
employees chosen for testing would be tested for both drugs and alcohol 
while the rest could be tested only for drugs. Other methods are 
possible so long as they meet the requirements of both programs. Of 
course, combined testing must occur around the time of performance of a 
safety-sensitive function to meet the requirements of the alcohol 
misuse prevention rules.

Reasonable Suspicion Testing

    The vast majority of commenters supported the need for reasonable 
suspicion testing, although one commenter opposed it as unnecessary in 
view of existing company policies. We agree that this type of testing 
may be more valuable for alcohol than for illegal drugs. People are 
more familiar with the symptoms of alcohol intoxication than with those 
of illegal drug use. The presence of alcohol is easier to detect (at 
least at higher consumption amounts) from physical symptoms (e.g., odor 
of breath) or behavior (e.g., inability to walk a straight line) and 
more research has been done on how to train people to make these 
observations. Supervisor observation is not a complete solution, 
however; ``practiced'' drinkers often can mask symptoms (e.g., they use 
a breath spray or can walk a straight line) and avoid detection. Also, 
supervisors may have reasons to overlook employee alcohol use (e.g., 
sympathy for the employee, the desire to avoid confrontation, or the 
lack of a readily available replacement). The U.S. Army has found that 
supervisors have a tendency to underreport alcohol involvement in 
accidents (The Alcohol and Accidents Guide, February 1987).
    The OA rules require employers to test covered employees for 
alcohol when the employer has reasonable suspicion to believe that the 
employee has violated the prohibitions in these rules or if the 
employee's behavior and appearance indicate alcohol misuse. The 
employer's determination that reasonable suspicion exists to require an 
alcohol test must be based on specific, contemporaneous, articulable 
observations by a trained supervisor concerning the appearance, 
behavior, speech, or body odors of the employee. Reasonable suspicion 
testing under these rules is authorized only if the required 
observations are made during, just preceding or just after the period 
of the work day that the covered employee is performing a safety-
sensitive function.
    Several commenters wanted supervisors to be able to use long-term 
performance factors, such as abuse of sick leave, in making their 
reasonable suspicion testing decisions. In addition, they believed that 
requiring the observation to occur close to or during the performance 
of a safety-sensitive function is too restrictive. Some commenters 
thought that use of long-term factors would be appropriate only in 
conjunction with short-term indications of alcohol misuse; others 
opposed any use of long-term factors. The factors set out for 
determining when reasonable suspicion exists in the drug and alcohol 
rules are short-term in the sense that they focus on what a supervisor 
sees at the time of performance of safety-sensitive duties. The 
Department believes that this restriction is appropriate because it 
accommodates Fourth Amendment concerns by relating the determination of 
the need for testing to factors indicating possible alcohol involvement 
that may affect the employee's present ability to safely perform 
required safety-related tasks. For example, even if the supervisor does 
not smell alcohol, he or she legitimately could decide to test an 
employee who cannot hit the correct buttons to operate a vehicle (a 
required safety-related task), but should not test an employee simply 
because he or she comes in late that day. Constant lateness, for 
example, may result from an alcohol problem, but it is not a reasonable 
basis for suspicion of alcohol misuse; there are too many other 
possible explanations. The rules do not interfere with the supervisor's 
own authority to take appropriate action in response to longer-term 
factors (e.g., a long-term decline in work performance, patterns of 
absenteeism, lateness, or abuse of sick leave) that may violate company 
policies.
    A covered employee is required to undergo reasonable suspicion 
testing for alcohol as soon as possible, because the body rapidly 
eliminates alcohol. Therefore, if a reasonable suspicion test is not 
conducted within two hours following the determination of reasonable 
suspicion, the employer shall prepare and maintain on file a record 
stating the reasons why the test was not conducted. If the test is not 
conducted within eight hours after the determination of reasonable 
suspicion, the employer shall cease attempts to conduct the test and 
shall state in the record the reasons for not administering the test. 
These records must be submitted to the appropriate Department officials 
upon request. This record requirement and the reasons we are imposing 
it are similar to those for post-accident testing discussed above. 
(Please note this is a change from the NPRMs.)
    A number of commenters expressed concerns that supervisors might 
abuse reasonable suspicion tests to harass unpopular employees and 
wanted strict requirements to prevent this possibility. Many wanted us 
to require that two supervisors make the decision to test (as in the 
existing drug testing rules) to limit possible harassment and to 
support management's case during future grievance and arbitration 
procedures. Others noted that a two-supervisor requirement would be 
impracticable because alcohol metabolizes so quickly and because in 
certain locations, many employees have only one supervisor available.
    The alcohol final rules generally require a single supervisor 
trained in detecting the symptoms of alcohol misuse to make the 
required observations and determine the existence of reasonable 
suspicion. We agree with several commenters that alcohol testing is too 
time-sensitive to incorporate as a general rule the time it takes to 
consult a second supervisor before making the testing decision, which 
also is difficult or impossible in some transportation industry 
locations. In addition, symptoms of alcohol use are more widely-known 
and easier to detect than those of drug use so there is less need for 
corroboration. To protect against possible harassment of a specific 
employee, the supervisor who makes the determination that reasonable 
suspicion exists generally is prohibited from conducting the reasonable 
suspicion test on that employee. Comments were mixed on whether we 
should allow supervisors to base their decisions to conduct reasonable 
suspicion tests on third-party reports of alcohol misuse. We decided 
not to permit a supervisor to base such a decision on reports by a 
third person who has made the observations, because of that person's 
possible credibility problems or lack of appropriate training.
    A few commenters suggested that supervisors document within two 
hours and annually report their reasons for conducting a reasonable 
suspicion test so that the OAs can check for harassment. We believe 
that the possibility that a review of company records would show 
whether particular individuals were harassed--i.e., tested without 
positive result too often--should help deter harassment. A couple of 
commenters envisioned holding supervisors liable for damages if the 
results of the test did not confirm their suspicions. We believe it 
inappropriate to require action against a supervisor for ordering a 
test where the results are negative. Reasonable suspicion is not a 
guarantee of a positive result on an alcohol test. Other factors can 
result in behavior or appearance that can reasonably cause one to 
suspect alcohol misuse; that is why we require a test before requiring 
action for a rule violation. In addition, the supervisor may have been 
correct, but, by the time a test can be conducted, the alcohol may have 
passed through the employee's system.
Behavior and Appearance
    Numerous commenters wanted to eliminate the proposed prohibition on 
employee behavior and appearance characteristic of alcohol misuse, 
because it is conceptually part of the reasonable suspicion prohibition 
and because it is so subjective. They noted that it would not be useful 
because managers do not always have daily contact with their employees. 
However, some commenters stated that they wanted the authority to 
remove an employee on behavior and appearance grounds when a reasonable 
suspicion test is not possible.
    We agree that simple ``behavior and appearance'' of alcohol misuse 
involves a subjective determination and should not be considered 
prohibited conduct that triggers the full consequences of violating 
these rules without confirmation of such misuse by a positive test. As 
a result, the final rules have been changed from the NPRMs: under the 
reasonable suspicion testing provisions, an employer who observes such 
behavior and appearance must conduct a test; however, when it is 
infeasible or impossible to conduct a reasonable suspicion test in a 
timely manner (e.g., an EBT is unavailable or broken), the employee is 
not permitted to perform safety-sensitive functions for eight hours (or 
until obtaining a result below 0.02 on a test if an EBT subsequently 
becomes available within the 8-hour period).
    The OA rules prohibit a covered employee from reporting for duty or 
remaining on duty requiring the performance of safety-sensitive 
functions while the employee is under the influence of or impaired by 
alcohol, as indicated by behavior, speech and performance indicators of 
alcohol misuse. They also prohibit an employer from allowing such an 
employee to perform or continue to perform safety-sensitive functions. 
However, since alcohol-related behavior tends to become apparent to 
persons without extensive training (such as that provided by police) 
only at alcohol concentrations well above 0.04, it is unlikely that 
misuse would be detected in this manner at alcohol concentrations in 
the 0.02-0.04 range. Thus, there are important safety reasons for 
requiring that an employee be removed from his or her safety-sensitive 
function based on behavior and/or appearance alone if no testing 
devices are available. Another reason that we decided not to eliminate 
this provision entirely as requested by many commenters is because some 
employers do not believe that they otherwise have the authority to 
remove an employee who appears to be under the influence of alcohol in 
the absence of a test. We do not want an employer to allow a safety-
sensitive employee to remain on duty for that reason.
    Some commenters, particularly in the aviation industry, wanted to 
retain existing prohibitions on operating ``under the influence'' and 
while ``impaired''. To the extent some existing OA rules already permit 
removal of an employee based on observation alone, the employee has a 
right to an evidentiary hearing (e.g., as part of a certificate 
revocation action). The rules we have published today do not provide 
for a right to a hearing. For that reason, and because removal from a 
safety-sensitive function in the absence of a reasonable suspicion test 
involves a subjective determination, unverified by a test, and may 
provide an opportunity for the employer to harass an employee, we 
believe that lesser consequences should apply, i.e., removal from the 
safety-sensitive function until the next regularly scheduled duty 
period if at least 8 hours has passed. Removal for this reason does not 
require a SAP evaluation. Existing consequences in other OA rules that 
have ``under the influence'' or ``impaired'' language will continue in 
effect; any consequences that attach as a result of those rules could 
be imposed in addition to removing the employee from safety-sensitive 
function for eight hours. An employer's separate existing authority to 
remove employees is not affected by this provision.

Return-to-Duty Testing

    The commenters split over whether return-to-duty testing should be 
mandated by regulation or left solely to the discretion of the 
employer; one commenter noted that it really is another 
``intelligence'' test. Commenters who believed that the test should be 
discretionary disagreed whether the decision to test should rest with 
the employer (in consultation with the SAP) or the SAP alone. Some 
commenters stated that using a 0.02 standard is too stringent. Others 
liked the provision as proposed.
    The OA rules require each employer to ensure that a covered 
employee, who has violated any of these alcohol misuse rules, has been 
evaluated, treated (where indicated) and tested with a result 
indicating an alcohol concentration of less than 0.02 before returning 
to a safety-sensitive function. We disagree with those commenters who 
thought return-to-duty testing should be left solely to the discretion 
of the employer. We believe that compelling concerns about safety and 
possible recidivism justify imposing a return-to-duty test requirement 
for those employees returning to safety-sensitive functions after they 
already have demonstrated problems with alcohol. Similar concerns 
justify use of a stricter 0.02 standard for return-to-duty tests. In 
any event, under other provisions of the rules, employees could not 
perform safety-sensitive functions until they have a result lower than 
0.02; since this test is specifically for return-to-duty, the 
application of the 0.02 standard is logical. A positive result on a 
return-to-duty test indicates a problem that has not been resolved; the 
employee cannot come back the next day to retake the test without 
seeing the SAP again. The decision to return the employee to safety-
sensitive functions and to conduct the test ultimately belongs to the 
employer. The SAP's function is to advise the employer as to whether 
the employee has complied with any recommended program of treatment.
    Given the potential for poly-drug misuse, the rules permit 
employers to conduct return-to-duty drug tests on an employee, when the 
SAP has reason to suspect drug involvement and recommends such testing. 
Any such testing must conform to the requirements of part 40. The 
opposite would be true as well. Employers would have similar authority 
to test for alcohol where an employee tested positive for drugs and the 
SAP had reason to suspect alcohol misuse. (The OA drug rules have been 
drafted or are being changed to permit this.)

Follow-Up Testing

    Commenters disagreed as to whether follow-up testing should be 
required or discretionary. As with return-to-duty testing, they divided 
over leaving the follow-up testing decision to the employer or to the 
SAP. Several commenters thought that a requirement for follow-up 
testing would be too costly and burdensome for employers and might 
cause them to fire the employee instead. Others thought that the 
concept had merit, but that the rules should require fewer tests over a 
shorter period of time, especially since the employee is also subject 
to random testing.
    After identification of an employee's alcohol problem, there is a 
strong chance of recidivism and a need to ensure continued 
disassociation from alcohol misuse through periodic unannounced follow-
up testing. We believe that a minimum number of follow-up tests is 
necessary to ensure public safety in view of various disincentives for 
imposing them, such as cost, the customary SAP preference for informal 
follow-up, and FRA's experience in its drug testing program (see 
below). In making the decision whether to return the employee to 
safety-sensitive duties, we assume the employer would determine 
whether, in its particular circumstances, the cost of hiring and 
training (and testing) a new employee would exceed that of testing a 
returned employee to ensure continued disassociation from alcohol. We 
agree with commenters that it is appropriate for the SAP to determine 
the employee's need for an individualized rehabilitation (if any) or 
follow-up program beyond the minimum specified here.
    The OA rules require that each covered employee, who has been 
identified by a SAP as needing assistance in resolving problems with 
alcohol misuse and who has returned to duty involving the performance 
of a safety-sensitive function, shall be subject to a minimum of 6 
unannounced, follow-up alcohol tests administered by the employer over 
the following 12 months. The SAP can direct additional testing during 
this period or for an additional period up to a maximum of 60 months 
from the date the employee returns to duty. The SAP can terminate the 
requirement for the follow-up testing in excess of the minimum at any 
time, if the SAP determines that the testing is no longer necessary. We 
believe that fewer follow-up alcohol tests over a shorter period would 
not provide sufficient deterrence of (or opportunity for detection of) 
alcohol misuse by an employee who has demonstrated a previous problem.
    The FRA's experience under its drug testing rules with required 
follow-up testing for employees who tested positive for prohibited 
drugs illustrates the need for a minimum number of required follow-up 
tests. In 1991, FRA conducted a compliance review on a large railroad 
company and found that 9 of ten employees who had tested positive and 
were returned to service had received no follow-up tests during the 
next year. One employee received one follow-up test six months after 
returning to work. One of the employees who had received no follow-up 
testing later tested positive on an FRA-required random drug test. The 
Department's Office of Inspector General (OIG) recently completed a 
review of the FRA's alcohol and drug program. The OIG reviewed follow-
up testing practices on several railroads and found inconsistent 
procedures and a lack of follow-up tests. Its report recommends 
prescribing procedures for follow-up tests, including a minimum number 
of tests and a minimum period for follow-up testing. For the above 
stated reasons, we believe that we must require a minimum amount of 
follow-up testing.
    The rules provide that the evaluation and treatment services may be 
furnished by the employer, by a SAP under contract with the employer or 
by a SAP not affiliated with the employer. In view of the 
``gatekeeper'' function that the SAP has under the rules, we believe 
that the employer should designate the SAP. Experts note that, due to 
training and the profession's normal employee orientation, the SAP may 
be eager to place the employee back into the normal work environment, 
i.e., the safety-sensitive function, but reluctant to require testing 
by the employer. The SAP may prefer to conduct any necessary follow-up 
testing as part of an after-care or follow-up treatment program. While 
we recognize that placement of the employee back on the job as soon as 
possible without follow-up testing may help the employee, it could put 
public safety at risk. The SAP's customary professional loyalty to the 
employee ``patient'' would directly conflict with the safety 
responsibility of the employer. In order for this program to work and 
to ensure public safety, the SAP must recognize his or her obligations 
to be cognizant of the employer's responsibilities and need for a fair 
evaluation of the employee.
    Given the potential for poly-drug misuse, the rules permit 
employers to conduct follow-up drug tests on an employee during the 
follow-up alcohol testing period, when the SAP has reason to suspect 
drug involvement. Any such testing must conform to the requirements of 
part 40. The opposite would be true as well. Employers would have 
similar authority to test for alcohol where an employee tested positive 
for drugs and the SAP had reason to suspect alcohol misuse. (The OA 
drug rules have been drafted or are being changed to permit this.)
    The rules do not use the stricter 0.02 alcohol concentration 
standard imposed on return-to-duty tests for follow-up tests, even 
though the employee has previously demonstrated problems with alcohol. 
In either case, the employee cannot perform safety-sensitive functions 
with an alcohol concentration of 0.02 or above. Unannounced follow-up 
tests of employees back on the job are similar to random tests. Because 
employers may find it convenient to conduct some follow-up testing at 
the same time as random tests, the consequences for follow-up test 
results must be the same as those for random tests. This will enable 
employers to conduct unannounced testing and combine follow-up testing 
with other types of testing, but avoid imposing total abstinence from 
alcohol on returned employees whose follow-up programs do not require 
it. We note that, under the Act, an aviation employee who has a second 
violation under the FAA alcohol misuse prevention rule will be forever 
barred from the employee's safety-sensitive function. Please see the 
preamble to the FAA rule for a more comprehensive discussion of this 
consequence.

Retesting of Covered Employees With an Alcohol Concentration of 0.02 or 
Greater, but Less Than 0.04

    Some commenters disagreed that there is any need to provide for 
retesting. Others used this issue as an opportunity to reiterate their 
opposition to the lesser consequences for test results indicating 
alcohol concentrations between 0.02-0.039.
    The rules provide that if the employer chooses to permit the 
employee to perform a safety-sensitive function within 8 hours 
following the administration of an OA-required alcohol test indicating 
an alcohol concentration of 0.02 or greater but less than 0.04, the 
employer must first retest the employee. The employee can return to the 
safety-sensitive function if the retest results in an alcohol 
concentration of less than 0.02. However, the FHWA rule does not 
contain a retesting provision because of a statutory requirement that 
drivers found to have a measurable amount of alcohol in their systems 
must be removed for 24 hours. The FRA rule also does not contain this 
provision because it would conflict with its existing rules. 
Eliminating this option from the other OA rules would impose a hardship 
on some employers; the employer will make the decision whether 
retesting is necessary to accommodate its employment circumstances.

Handling of Test Results, Record Retention and Confidentiality

Retention of Records

    We received very few comments directed to handling of alcohol 
recordkeeping requirements. Generally, those commenters wanted to 
shorten the record retention periods (the most popular option would 
reduce the proposed 5 years to 3 years and the proposed 2 years to 1 
year).
    To facilitate Department oversight and effective enforcement of the 
alcohol testing programs and to protect employee confidentiality, we 
are requiring each employer to maintain records of its alcohol misuse 
prevention program in a secure location with controlled access. One 
commenter wanted to know what that really means. The employer should 
lock the location (room, cabinet, or, if on computer, control access by 
password or other protections) and allow access only to persons with a 
legitimate need to see the records under these rules. The OA rules 
require employers to retain, for a minimum of five years, records of 
any employee alcohol test results indicating an alcohol concentration 
of 0.02 or greater; documentation of refusals to take required alcohol 
tests; equipment calibration documentation; and documentation of 
employee evaluations and referrals. They require employers to retain 
for a minimum of two years any records related to the collection 
process (except equipment calibration documentation) and training. 
Records of negative test results must be retained for a minimum of one 
year.
     Generally, the rules require each employer to maintain the 
following specific records:
    (1) Records related to the collection process, including: 
Collection logbooks, if used; documents relating to the random 
selection process; EBT equipment calibration documentation; 
documentation of BAT training; documents generated in connection with 
decisions to administer reasonable suspicion and post-accident tests; 
and documents verifying existence of a medical explanation of an 
employee's inability to provide adequate breath for testing;
    (2) Records related to test results, to the refusal of any covered 
employee to submit to a required alcohol test and to an employee 
dispute over the result of an alcohol test;
    (3) Records related to other violations of these rules;
    (4) Records related to evaluations and return to duty; and
    (5) Records related to education and training.
    We have decided to retain the retention periods as proposed 
because, considering the serious potential consequences of alcohol 
misuse, we believe it is important to be able to identify repeat 
offenders. In addition, the FAA has a need to track the number of 
repeated violations under its rule for mandatory permanent 
disqualification of an employee under the Act.
    In the common preamble to the NPRMs, we asked whether we should 
require documentation of reasonable suspicion determinations. Very few 
commenters addressed this issue; some favored the requirement because 
such documentation might deter harassment of employees, but others 
opposed it as burdensome and a violation of employee privacy. The rules 
do not require documentation of reasons for determinations made to 
conduct reasonable suspicion tests, but if employers generate them, 
they must maintain the records. We are not requiring that employers 
report the specific test results of individuals--just aggregate numbers 
for reasonable suspicion tests conducted and resulting positives. This 
requirement should not burden employers and will protect employee 
privacy. Employers may want to monitor their reasonable suspicion 
testing positive rate to determine if their supervisors need additional 
training.

Reporting of Results in a Management Information System

    For oversight purposes, each employer generally is required to 
compile for the OA that regulates it, at a minimum, an annual report 
summarizing the results of its alcohol misuse prevention program for 
each calendar year. This information will allow the Department to track 
progress in the programs and later make changes, if justified, that 
could reduce costs, ease implementation and enforcement, provide better 
employee protection, and/or increase benefits. Some OA rules require 
that all employers submit the data to the OA; others require a 
representative sampling of employers to submit the reports or a mix of 
required reports from some and a sampling of others. The OAs will rely 
on this data for program evaluation and enforcement purposes, as well 
as to adjust the random testing rates for alcohol. As noted earlier, 
FAA, FRA, FHWA, RSPA, and USCG separately published MIS rules on 
December 23, 1993, that describe the particular OA requirements for 
reporting information on drug testing (and alcohol testing for USCG). 
FTA's drug MIS requirements are in its final drug testing rule 
published elsewhere in today's Federal Register.
    Generally, employers subject to more than one DOT OA alcohol rule 
must identify each employee covered by the regulations of more than one 
OA and report the total number of such employees broken down by 
category of covered function and by the OA. Before conducting any 
alcohol test on an employee regulated by more than one OA, the employer 
must determine which OA rule requires the test and then include the 
test result in the appropriate OA MIS report. Pre-employment and random 
testing data must be reported to the OA that covers more than 50 
percent of the employee's function. Post-accident and reasonable 
suspicion testing results, however, must be reported to the OA that 
covers the function the employee was performing at the time of the 
accident or determination of reasonable suspicion. Finally, return-to-
duty and follow-up results must be reported to the same OA that 
received the initial results that led to the employee's removal from 
the safety-sensitive function. In response to one commenter's concerns 
about confidentiality of employee results, we note that the employer 
must provide aggregated, not individual, information under the MIS.
    Most of the comments addressed the drug MIS requirements; we 
received very few concerning the alcohol MIS proposal. Since the MIS 
requirements for drugs and alcohol are essentially similar, the 
Department's responses to specific comments on the drug MIS 
requirements, which are addressed in the preamble to the drug MIS rules 
published December 23, 1993 (FTA's MIS comments are addressed in the 
preamble to its final drug rule), also apply to the alcohol MIS 
requirements.
    Commenters generally expressed concerns about ensuring unimpeded 
access to employee testing information kept by third-party providers, 
e.g., consortia. The employer is responsible for the accuracy and 
timeliness of each report submitted by it or a third-party service 
provider acting on the employer's behalf. If necessary, the employer 
should ensure by contract or other means access to employee testing 
information held by a third-party provider.
    Employers required to submit the annual reports must do so no later 
than March 15 of each year for the preceding calendar year on the 
specified form. Each report will contain a number of information items 
relevant to program evaluation or enforcement. Eventually, we plan to 
merge the alcohol and drug testing reporting requirements where 
practical to permit one annual report and to eliminate any duplicative 
information items. The Department is committed to developing the 
capability for processing electronic submission of these reports where 
such capability is not currently available.

Access to Facilities and Records

    To preserve employee confidentiality, the rules generally prohibit 
employers from releasing information pertaining to an alcohol test of a 
covered employee or any violation of these rules, except as required by 
law. They provide, however, that the employee is entitled, upon written 
request, to obtain copies of any records concerning the employee's use 
of alcohol, including alcohol test records. The rules permit the 
employer to disclose information arising from the results of an alcohol 
test administered under these rules or from the employer's 
determination that the employee violated any prohibitions in these 
rules to the employee or in the context of a proceeding relating to: 
(1) An employee benefit; (2) DOT agency action against the employee 
(e.g., an action to revoke a certificate); or (3) an NTSB safety 
investigation. Employers must promptly provide any records requested by 
the employee, but cannot make access to an employee's records 
contingent upon payment for records other than those specifically 
requested. The bundling of requested records with unrequested material 
at much higher cost has been a problem under the drug rules. Employers 
also will have to release information as required by law, including 
court orders or subpoenae. Please refer to part 40 for additional 
discussion.
    The rules generally require an employer to permit access to all 
facilities involved in its alcohol testing program and make available 
copies of all test results and any other alcohol program records, upon 
request, to the Secretary of Transportation or any OA with regulatory 
authority over the employer or any of its covered employees. In 
addition, upon request by the NTSB as part of an accident 
investigation, employers are required to disclose information related 
to the employer's administration of a post-accident alcohol test 
following the accident under investigation. FTA's rule requires the 
employer to disclose test results to States to be consistent with 
obligations placed on States under FTA's State Safety Oversight rule. 
See the preamble to the FTA rule for a further discussion of this. 
RSPA's rule requires the employer to permit access to facilities and 
make available test results and records to a representative of a State 
agency with regulatory authority over the employer.
    Several commenters raised questions about the reporting of 
confidential information on individuals and opposed mandatory release 
of employee test results to subsequent employers and other parties 
because of unspecified liability concerns. Some commenters expressed 
their support for employer provision of test results in appropriate 
circumstances; a few others opposed allowing employers to require 
employees to authorize the release of previous test results as a 
condition of employment.
    Generally, the rules require an employer to release information 
regarding an employee's records as directed by the specific, written 
consent of the employee authorizing release to an identified person. In 
view of the fact that these rules permit employers to rely upon 
negative pre-employment alcohol tests conducted by other employers 
within the preceding six months, we believe that it is appropriate to 
require a prior employer, upon written request from the employee, to 
make records available to a subsequent employer. This pre-employment 
exception, which can significantly reduce hiring costs for some 
employers, might not otherwise be available to them. Since the previous 
employer would release the records only with the written consent of the 
employee for a specific limited purpose, commenters' liability concerns 
appear to be unfounded. To preserve the employee's confidentiality, the 
rules prohibit the identified person or recipient employer from 
subsequently disclosing the records, except as expressly authorized by 
the terms of the employee's written request. Please refer to part 40 
for additional discussion.
    These rules do not prohibit employers from using their own 
authority to require applicants to release previous test results. We 
believe that employers should be able to protect themselves from 
alcohol misusers who move from job to job as they are detected. A 
prudent employer can ask an applicant to request this information from 
former covered employers as a condition of employment and not hire the 
applicant until satisfactory information has been received. If the 
applicant does not provide this consent, the employer simply could 
choose not to hire the applicant for a safety-sensitive position. Of 
course, an employer must conduct a pre-employment test when a previous 
employer does not respond (e.g., had gone out of business, could not be 
located, failed or refused to provide the requested information).

Consequences for Employees Engaging in Alcohol-Related Conduct

Removal From Safety-Sensitive Function/Required Evaluation and Testing

    In general, the OA rules prohibit a covered employee who has 
engaged in conduct prohibited by any of the OA rules from performing 
safety-sensitive functions until he or she has met the conditions for 
returning to such work, which include a SAP evaluation, compliance with 
any required treatment program, and a successful return-to-duty test 
with a result below 0.02. The rules require employers, if they have 
determined that the employee has violated these rules, to ensure that 
the employee does not perform or continue to perform safety-sensitive 
functions.
    Some commenters expressed the opinion that employers should 
determine the appropriate consequences for a violation of these rules. 
We disagree; there may be situations where a conflict exists between 
protecting public safety and an employer's strong economic incentive to 
keep an employee who misuses alcohol on the job. We believe that we 
need to establish the appropriate consequences for violation of these 
rules to protect public safety and to ensure their uniform application 
to similarly-situated employees to the extent possible. The rules do 
not prohibit an employer with authority independent of these rules from 
taking any other action against an employee.
    A few commenters stated that employers who remove an employee from 
a safety-sensitive function should not be obligated to place that 
employee in another position or compensate the employee. All these 
rules require is removal from safety-sensitive functions. We leave the 
specific conditions under which an employee is removed, such as whether 
or not the employee is paid or moved to another non-safety-sensitive 
position, to employer policies or collective bargaining.
    A few commenters wanted the consequences to be the same for all of 
the OA rules. Some of the OA rules do impose different consequences; 
these result from differing statutory requirements and the need to 
place these programs within the frameworks of the OA's existing safety 
regulations. The Act mandates harsher treatment of certain aviation 
employees that violate these rules. FHWA had to fit its rule within a 
statutorily-required system of consequences for violations of its 
safety requirements. (See the FAA and FHWA rules for a specific 
discussion of these differences.)

Other Alcohol-Related Conduct

    Continuing the argument over the appropriate prohibited alcohol 
concentration, some commenters on this section wanted to eliminate the 
lesser consequences for a 0.02-0.039 alcohol concentration and impose 
the full consequences under these rules on any test result at 0.02 or 
above, while others believed that no action should be taken against an 
employee with a result below 0.04. We disagree with commenters who want 
no action taken against an employee at alcohol concentrations below 
0.04. Although the Department is not making alcohol concentrations 
below 0.04 a violation of the rules requiring removal from safety-
sensitive functions until evaluation and, if necessary, treatment, we 
are concerned about employees whose alcohol test indicates some alcohol 
in their system. As noted earlier in this preamble, an alcohol 
concentration of .039 may not warrant evaluation and treatment, but it 
may have an adverse effect on that individual's abilities to perform 
safety-sensitive functions. Alternatively, the individual's blood 
alcohol curve may be rising, (i.e., the individual may have just 
consumed enough to ultimately produce an alcohol concentration of 0.04 
or greater, but the alcohol is just entering the bloodstream and, at 
the time of testing, the alcohol concentration is below 0.04 and 
rising). Permitting such an employee to continue performing safety-
sensitive functions, when we know there is alcohol in his or her 
system, would violate our (and the employer's and employee's) safety 
responsibility.
    Therefore, in addition to the 0.04 alcohol concentration 
prohibition, the rules require removal of covered employees found to 
have an alcohol concentration of 0.02 or greater but less than 0.04 
from safety-sensitive functions, until the employee is retested with a 
result below 0.02, or until the start of the employee's next regularly 
scheduled duty period, if it occurs at least eight hours following 
administration of the test. If the retest result is above 0.04, the 
employee has violated the prohibition against having an alcohol 
concentration greater than 0.04. The employee will then be required to 
meet the conditions for returning to safety-sensitive functions. The 
rules do not prohibit the employer with authority independent of these 
rules from taking any other action against an employee based solely on 
test results showing an alcohol concentration greater than 0.02.
    The OA rules and the part 40 alcohol testing procedures treat any 
indicated alcohol concentration reading of less than 0.02 on an 
evidential breath testing device (EBT) as ``negative.'' Given the 
limits of technology for measuring alcohol concentration in body fluids 
or breath, the rules use 0.02 as the threshold for establishing any 
measured alcohol concentration. Below this level, we can not be certain 
an individual actually has alcohol in his or her system. Readings below 
0.02, therefore, have no significance for any purpose under our rules.

Use of Back Extrapolation

    Most commenters opposed allowing the use of back extrapolation 
because of its difficulty and uncertainty in application and because it 
could infringe upon an employee's legal use of alcohol. Back 
extrapolation is the calculation used to determine alcohol 
concentrations over time based on an average rate of alcohol 
metabolism. It is most generally used to determine whether the alcohol 
concentration during the performance of the safety-sensitive functions 
(e.g., at the time of the accident) was actually greater than a 
specific concentration obtained at a later time. The OA rules require 
action only based on actual readings on the EBTs. They do not permit 
back extrapolation because, given the wide individual variations in 
alcohol metabolism, it creates too many uncertainties in the context of 
these programs. This prohibition would not prevent an OA from making 
use of back extrapolation in certain situations. Some existing OA rules 
permit the use of back extrapolation through expert scientific 
testimony in reasonable cause and post-accident cases conducted with 
appropriate due process protections. The rules that we are publishing 
today do not provide such protections. Those situations are different 
from the use of back extrapolation by employers in interpreting the 
results of tests conducted under part 40.
    The rationale for back extrapolation is based on studies that show 
that the average rate of elimination of alcohol from the bloodstream is 
approximately .015 percent per hour, though this rate may well decline 
at low concentrations (0.02 and below). Individuals' rates of alcohol 
elimination are very often not ``average,'' however. Further, it is 
ordinarily not known when the individual last ingested alcohol or how 
much alcohol he or she consumed. All of these factors make back 
extrapolation subject to substantial inaccuracy. Such analysis requires 
a number of ``assumptions.'' Some of the assumptions relate to the 
individual subject (e.g., whether there is healthy liver function, 
whether food was ingested before consuming alcohol, or other metabolic 
differences), some to facts or claims that may be supplied by the 
individual (e.g., no on-duty consumption, no consumption during the 
pre-duty abstinence period), and others to data that can be supplied by 
the employer (e.g., when the event occurred that triggered the test, 
when the test occurred). It is not only desirable but necessary for 
such analysis to be conducted by an expert in forensic toxicology.
    We have decided not to permit back extrapolation of alcohol test 
results under these rules, because it would base serious consequences 
on the variable and uncertain results of this type of analysis. 
However, the requirement that employers remove persons with indicated 
alcohol concentrations of 0.02 or greater and less than 0.04 from 
safety-sensitive functions for a period of not less than 8 hours or 
until they retest below 0.02 will achieve some of the goals of back 
extrapolation.

Alcohol Misuse Information, Trading, and Referral

Employer Obligation to Promulgate a Policy on Alcohol Misuse

    The rules require each employer to ensure that each employee 
receives educational materials that explain these alcohol misuse 
prevention requirements and the employer's policies and procedures with 
respect to meeting those requirements prior to the start of alcohol 
testing. Each employer is required to provide written notice to every 
covered employee and to representatives of employee organizations 
concerning the availability of this information. Under the rules, the 
materials must include: the identity of a contact person knowledgeable 
about the materials; factual information on the effects of alcohol 
misuse on personal life, health, and safety in the work environment; 
signs and symptoms of alcohol misuse (the employee's or coworker's), 
particularly at low concentrations; where help can be obtained; 
available intervention methods, including referral to an employee 
assistance program (EAP), other SAPs and/or management; categories of 
employees subject to testing; what period of the workday or what 
functions would be covered by the rules; a description of prohibited 
conduct and the circumstances that trigger testing; testing procedures 
and safeguards; an explanation of what constitutes a refusal to submit 
to testing and the attendant consequences; and the consequences of 
violating the rules (as well as lesser consequences for employees found 
to have an alcohol concentration of 0.02 or greater but less than 
0.04.)
    Many commenters believed that simply providing the above 
information is not sufficient to ensure that employees understand the 
requirements of these rules and their consequences. This and other 
comments on this provision related to employee training are addressed 
below.
Self-Identification/Peer-Referral Programs
    Since our primary purpose is to deter alcohol misuse and keep 
employees who have alcohol in their systems from performing safety-
sensitive functions, employees should be able to identify themselves as 
unfit to work. A few commenters wanted to be able to ``mark-off''. Some 
segments of the transportation industry already have self-
identification programs that allow an employee to decline without 
penalty to perform or continue to perform his or her job if the 
employee knows that he or she is or may be impaired by alcohol. We do 
not require such programs, because we believe that they are a matter 
more appropriate for collective bargaining and employer policy. The 
successful implementation of such programs depends upon joint labor-
management commitment to an alcohol/drug-free work environment. 
However, we encourage employers to establish self-identification or 
peer-referral programs and encourage employees to use them.
    However, such programs cannot interfere with the conduct of the 
alcohol tests required by these rules. Employers who have set up such 
programs must ensure that employees are not allowed to self-identify 
after they know that they have been selected for testing. This would 
compromise safety and frustrate the goals of these programs. The rules 
do not interfere with an employer's discretion to impose its own 
sanctions against self-identifying employees, so long as the sanctions 
are not premised on our rules. Such a program could permit a covered 
employee to take a voluntary alcohol test to determine whether the 
employee would be in violation of these rules if the employee were to 
perform safety-sensitive functions (but not after the employee has been 
selected for DOT-required testing); there would be no Federal 
consequences or requirements pertaining to the test or its results, 
however, since that kind of test is not required by DOT rules.
    In addition to program information, the materials also may describe 
any peer-identification or self-identification programs or procedures 
that employers offer or are associated with under which a covered 
employee may decline to perform or continue to perform safety-sensitive 
functions without penalty when he or she may be in violation of these 
rules, including any limits on the programs. The employer also may 
include information on additional employer policies with respect to the 
use or possession of alcohol, including any consequences for an 
employee found to have a specified alcohol concentration, that are 
based on the employer's authority independent of these rules. These 
additional policies must be clearly communicated and identified as 
based on the employer's independent authority.

Training for Supervisors

    Commenters who addressed the issue of supervisor training or 
education requirements proposed in the OA rules generally supported one 
or a mix of the following: the necessity for annual or other recurrent 
supervisory training; the necessity for 2 hours or more of supervisory 
training; the adequacy of one hour of supervisory training; or a 
mandatory requirement for supervisory training with the amount or 
length of training left unspecified. For example, those who preferred a 
particular amount of time for training split between a one-time 
training requirement and an annual or other recurring training 
requirement.
    Those commenters who supported recurrent or annual supervisory 
training requirements expressed the belief that supervisory personnel 
need refresher or ongoing education to maintain and improve skills and 
knowledge necessary to making effective decisions regarding reasonable 
suspicion alcohol testing. These commenters cited experience with one-
time training for supervisors that did not provide sufficient exposure 
to the problems associated with confronting and identifying problem 
employees. Other commenters cited anecdotal information that reasonable 
suspicion testing was more appropriately and frequently used when 
supervisory training was part of an annual or periodic training 
program.
    The OA rules require employers to ensure that persons designated to 
determine whether reasonable suspicion exists to require an alcohol 
test receive at least 60 minutes of training on the physical, 
behavioral, speech, and performance indicators of probable alcohol 
misuse, particularly those associated with lower concentrations of 
alcohol. We believe that this amount of training time is adequate for 
this specific purpose and in view of the fact that the symptoms of 
alcohol misuse are commonly known and recognized. We believe that 
retaining the one-hour training requirement best balances the benefits 
of supervisor training with its high costs to employers. Additional 
supervisor training beyond a mandatory one-time, one-hour minimum may 
be desirable, but requiring it would significantly increase the costs 
imposed by these rules. At this time, we lack definitive information to 
corollate the cost of additional training with quantifiable benefits 
that would justify imposition of those additional costs on the 
transportation industries. Employers may, of course, provide additional 
information or annual (or other recurrent) training if they desire.
    Several commenters requested that the rules combine drug and 
alcohol training for supervisors. These commenters argued that training 
would be more effective if viewed in the context of all substance abuse 
rather than divided into separate courses for drug and alcohol abuse. 
Employers are free to combine supervisor training for alcohol misuse 
detection with the comparable training for drug use detection currently 
required by the OA drug testing rules for a total of two hours to 
minimize costs and inconvenience. Please note that FRA will retain its 
existing combined three-hour requirement for alcohol and drug abuse 
training for supervisors.
    A few commenters suggested that the requirements for supervisory 
training should be content- rather than time-specific. These commenters 
recommended that the rules specify core or essential components of the 
curriculum and employers would develop the supervisory courses 
accordingly. This approach reflects a preference for criterion or 
performance standard training requirements, rather than training based 
on a ``classroom hours'' concept. We have decided not to establish 
mandatory performance-based training because of the difficulty of 
developing meaningful specific core course components that cover 
various different industry situations and the administrative burden of 
evaluating whether or not employers have met the performance standards. 
We would rather allow employers the flexibility of tailoring supervisor 
training to their particular industry and programs. We do, however, 
take this approach with required BAT training, because that is much 
more technical and specific and must be the same for part 40 testing in 
all transportation industries.

Employee Training

    Commenters presented many of the same arguments on the issue of 
mandatory employee training as they did regarding supervisory training. 
Various commenters suggested that mandatory recurrent or periodic 
employee training would be advantageous and more effective as a 
prevention or deterrent strategy than testing. Commenters also 
suggested that the rules should combine alcohol awareness education 
with drug abuse education to address the total substance abuse problem. 
Some commenters opposed mandatory employee training because of cost 
concerns.
    Most comments on the issue of employee education criticized the 
lack of specific proposed requirements for mandatory employee education 
and training on alcohol misuse. These commenters argued that the 
proposals to provide employees printed literature and information were 
inadequate and, according to some, a waste of time and money. They 
expressed the belief that structured, ``classroom'' type training is 
more effective in presenting information about drug and alcohol abuse 
and to increase awareness and prevention of alcohol misuse. A few 
commenters argued that it is irresponsible and unnecessarily punitive 
to impose a comprehensive alcohol testing program with specific 
prohibitions on alcohol misuse, without requiring training for 
employees to be certain they understand the prohibited conduct and the 
consequences of misconduct.
    We believe motivating employees about safety in the workplace and 
good health is important to making an alcohol misuse prevention program 
work. Because the primary objective of any effective alcohol misuse 
program is deterrence rather than detection, it is especially important 
that, before any testing is begun, employers make their employees fully 
aware of the dangers of alcohol misuse in their jobs, advise them where 
help can be obtained if they have a problem with alcohol use, and alert 
them to the potential consequences for people who violate these rules.
    These rules require that employers give covered employees alcohol 
misuse information, but do not require classroom training for 
nonsupervisory employees. Although such training may be desirable, 
industry-wide mandatory employee classroom training would be 
prohibitively expensive. In the highway area alone, a one-time, one-
hour training requirement for approximately 6.3 million employees, with 
a large amount of turnover, at an average hourly wage of $14.50 plus 
travel time, cost of materials, etc., would cost in excess of $100 
million. At this time, we lack definitive information to corollate the 
cost of training with quantifiable benefits that would justify 
imposition of these costs. Because of the large number of employees 
covered by these rules, the widely varying relationships between 
employer and employee, and the difficulty in ensuring the effectiveness 
of such wide-spread training, we believe it appropriate to allow 
employers the discretion to determine the best means of educating their 
employees beyond the minimum requirement to distribute informational 
materials.
    Some researchers claim that education is more effective in 
preventing alcohol misuse than sanctions or enforcement initiatives. 
For example, a Boston University researcher concluded that social 
pressure and publicity ``may be as important as government regulations 
in reducing impaired driving and fatal crashes.'' (quoted in ``USA 
Today,'' Wednesday, August 3, 1988.) In the area of impaired driving 
deterrence, NHTSA believes that the most effective programs are those 
that combine education and enforcement. Information and education 
programs, in the absence of enforcement activities or sanctions, have 
never been shown to have an impact on reducing alcohol-related fatal 
crashes. Conversely, scores of studies have found that programs 
involving enhanced enforcement, roadside sobriety checkpoints, and the 
use of sanctions such as license suspensions frequently have resulted 
in significant reductions of alcohol-related fatalities. Although there 
is disagreement on the effectiveness of education alone, it appears 
that using education as an adjunct to other deterrent measures, such as 
those in these rules, will make both more effective.
    We recognize that it may be difficult to get the attention and 
support of workers by handing them literature or displaying various 
materials on a bulletin board. In conjunction with the implementation 
of the rules, the Department also plans to distribute educational 
materials and conduct seminars designed to help employers increase 
employee awareness of the risks of alcohol misuse by those who perform 
safety-sensitive functions. The Department took similar action in the 
drug area.

Referral, Evaluation, and Treatment

    Numerous commenters expressed concern that the NPRMs did not go far 
enough in ensuring that employees would get access to needed assistance 
and treatment. They felt that even though the proposed rules require 
``evaluation and assessment'' by a SAP, they do not protect employees 
who violate the alcohol misuse provisions from termination, and, 
therefore, the access to treatment via the SAP evaluation is a sham; a 
paperwork exercise. Several commenters favored mandatory employer-
provided or paid rehabilitation, citing our proposals as a cynical 
violation of the Congressional mandate to provide an opportunity for 
rehabilitation. Some commenters, particularly labor and union groups, 
expressed the view that the rules should specifically guarantee that 
employees who violate the regulations are evaluated by a SAP and 
provided access to treatment, regardless of personnel actions taken by 
the employer. Many commenters, however, opposed mandatory employer-
provided or paid rehabilitation.
    The Act requires that an opportunity for treatment be made 
available to covered employees. To implement this mandate, these rules 
require an employer to advise a covered employee, who engages in 
conduct prohibited under these rules, of the available resources for 
evaluation and treatment of alcohol problems, including the names, 
addresses, and telephone numbers of SAPs and counseling and treatment 
programs. They also provide for SAP evaluation to identify employees 
with alcohol misuse problems. The employer has no similar obligation to 
applicants who refuse to submit to or have a positive result on a pre-
employment test; this obligation runs only to current employees. The 
rules do not require employers to provide or pay for rehabilitation or 
to hold a job open for an employee with or without salary; the costs of 
such requirements could be prohibitive and could jeopardize the success 
of this program. In the drug testing rules, the Department decided that 
it was inappropriate to establish a Federal role in mandating that 
employers provide for rehabilitation and that it should be left for 
management/employee negotiation. The same logic applies here and the 
Department has decided not to require employer-provided rehabilitation 
in these rules. We believe that the rules' provisions concerning 
evaluation adequately address the Act's requirements.
    Many commenters noted that EAPs have proven successful in offering 
employees with alcohol problems an avenue to non-punitive resolution of 
their problems and in offering employers the ability to return 
employees to the workforce who might otherwise have been fired. 
Aviation employers pointed to the FAA-supported Human Intervention and 
Motivational Study (HIMS) as a particularly effective program, with its 
combination of alcohol awareness training for supervisors and peers, 
rehabilitation, return to duty/medical certification process, and 
intensive follow-up monitoring of recovery. Overall, the success rate 
for alcoholic pilots identified through the HIMS or related programs 
has been about ninety percent. Some transportation employers have 
established similar programs for all of their employees. A number of 
these commenters also expressed their concerns that resources currently 
dedicated to EAPs would have to be shifted to support the new alcohol 
testing requirements, resulting in the reduction or elimination of 
existing EAP services.
    We recognize that these programs will be costly and that, in 
specific circumstances, employers may decide that they have to divert 
funds from an EAP to conduct the required alcohol testing and 
prevention programs. The primary safety objective of these rules is to 
prevent, through deterrence and detection, alcohol misusers from 
performing safety-sensitive functions. The necessary resources must be 
provided to accomplish this objective. We hope that employers do not 
have to divert resources from EAPs to achieve this. We recognize the 
value of rehabilitation and encourage those employers who can afford to 
provide it to do so through established health insurance programs, 
since it helps their employees, benefits morale, is often cost-
effective and ultimately contributes to the success of both their 
business and their testing programs. Please note that repeated 
provision of access to rehabilitation services after ``positive'' 
testing, followed by repeated reinstatement and repeated violations, 
may raise public safety and liability concerns for employers. It also 
could dilute the deterrent value of testing programs and encourage 
further misuse of alcohol.
    Commenters also addressed the issue of the role of the SAP in 
return-to-duty determinations. Many of these commenters felt that the 
NPRMs were not clear in delineating how and by whom the decision of an 
employee's return to safety-sensitive function would be made. Some of 
these commenters believe that the SAP should play a crucial role in 
advising or recommending return-to-duty actions to employers.
    The rules provide that the evaluation may be provided by a SAP 
employed by the employer, by a SAP under contract with the employer, or 
by a SAP not affiliated with the employer. A SAP will evaluate each 
covered employee who violates these rules to determine whether the 
employee needs assistance resolving problems associated with alcohol 
misuse and refer the employee for any necessary treatment. Before 
returning to duty, each employee identified as needing assistance must 
(1) Be evaluated again by a SAP to determine whether the employee has 
successfully complied with the treatment program prescribed following 
the initial evaluation, (2) Undergo an alcohol test with a result of 
less than 0.02 alcohol concentration, and (3) Be subject to a minimum 
of six (6) unannounced, follow-up alcohol tests over the following 
twelve (12) months. Compliance with the prescribed treatment and 
passing the return-to-duty alcohol test do not guarantee a right of 
reemployment or return to safety-sensitive duties; they are 
preconditions the employee must meet in order to perform safety-
sensitive functions. The decision on whether to return the employee to 
his or her job we leave to the employer. The choice of SAP and 
assignment of costs should be made in accordance with employer/employee 
agreements and/or employer policies.
    In the common preamble to the NPRMs, we proposed categories of 
persons eligible to be SAPs and asked if other categories should be 
included. Numerous commenters complained that the proposed definition 
was too restrictive. The National Association of Alcoholism and Drug 
Abuse Counselors (NAADAC) organized a widespread effort for its 
membership to send comments supporting the position that certified 
addiction counselors were the most qualified professional or 
occupational group to serve as SAPs. These comments tended to emphasize 
NAADAC standards and certification requirements, especially in 
counseling, treatment and rehabilitation of alcoholics and addicts. 
Many commenters certified by other State or local boards also presented 
arguments for their inclusion in the definition of a SAP. A few 
commenters suggested that physicians, social workers, and psychologists 
do not generally have training or skills specific to alcohol and drug 
abuse diagnosis or treatment.
    The final rules define the SAP, as proposed, to include a licensed 
physician (with a Medical Doctor or Doctor of Osteopathy degree) with 
knowledge of and clinical experience in the diagnosis and treatment of 
alcohol-related disorders (the degrees alone do not confer this 
knowledge), or a licensed or certified psychologist, social worker, or 
employee assistance professional with knowledge of and clinical 
experience in the diagnosis and treatment of alcohol-related disorders. 
In response to comments, we also have included in the definition 
alcohol and drug abuse counselors certified by the NAADAC Certification 
Commission, a national organization that imposes qualification 
standards for treatment of alcohol-related disorders. The commenters 
provided information showing that the training and experience necessary 
to meet NAADAC standards are sufficient for participating as a SAP in 
our alcohol misuse prevention programs. We rejected commenters' 
suggestions that the definition include State-certified counselors, 
because the qualification standards vary dramatically by State; in some 
States, certified counselors do not have the experience or training we 
deem necessary to implement the objectives of our rules. State-
certified addiction counselors can, of course, take the NAADAC 
competency examination to become a certified alcoholism and drug abuse 
counselor. The rules require that all persons in the categories listed 
in the definition must have knowledge of and clinical experience in the 
diagnosis and treatment of alcohol-related disorders to qualify.
    A few commenters expressed concern about the relationship of the 
SAP to the treatment or rehabilitation staff or facility. These 
commenters specifically addressed potential conflicts of interest, a 
``referral-to-self'' practice, and the objectivity of return-to-duty 
evaluations. Many of these commenters believed that the rules should 
establish specific parameters that outline the SAP's duty or obligation 
to the employer as well as protections for employees against 
unscrupulous or unethical SAPs who would use the evaluation and 
assessment process to foster their own practice or treatment 
facilities.
    Professional organizations, such as the Employee Assistance 
Professionals Association, prohibit their members from making referrals 
for treatment to their own practice or to agencies from which they 
receive financial remuneration. We want to avoid conflict-of-interest 
problems that could arise where the SAP is involved in both the 
evaluation and treatment phases of employee assistance, which could 
lead to recommendations for inadequate or inappropriate treatment for 
the employee and/or the imposition of unnecessary costs on both 
employers and employees. For example, a SAP might recommend a one-time 
misuser for a 30-day treatment program in which the SAP has a financial 
interest or send an alcoholic through the SAP's own out-patient 
treatment program. Therefore, the rules generally require the employer 
to ensure that a SAP who determines that a covered employee requires 
assistance in resolving problems with alcohol misuse does not refer the 
employee to the SAP's private practice or to a person or organization 
from which the SAP receives remuneration or in which the SAP has a 
financial interest. However, this requirement could impose hardship and 
the unnecessary costs of requiring two different sources of assessment 
and treatment on employers in remote areas or in situations where 
employee assistance (including assessment and treatment) is provided by 
contract or through a health insurance program. Therefore, the rules do 
not prohibit a SAP from referring an employee for assistance provided 
through (1) a public agency; (2) the employer; (3) a person under 
contract to provide treatment for alcohol problems on behalf of the 
employer; (4) the sole source of therapeutically appropriate treatment 
under the employee's health insurance program; or (5) the sole source 
of therapeutically appropriate treatment reasonably accessible to the 
employee.
    Some commenters wanted a medical review officer (MRO) to review and 
interpret alcohol test results. Since the determination made in alcohol 
tests required by these rules is whether there is a prohibited 
concentration of alcohol in an individual's system, regardless of the 
source, there is no need to require an MRO to interpret positive test 
results, as required by the DOT drug testing rules. There is no 
``alternative medical explanation'' for the prohibited alcohol 
concentration, so there is no role for an MRO. The mental health and/or 
medical professionals to whom the employee is referred can evaluate the 
employee's problems, if any, associated with the alcohol misuse. A SAP 
will then determine whether the employee has complied with any 
recommended treatment program. In some OA rules, where the employee 
operates under a certificate or license, a licensed physician must 
certify, in conjunction with a medical examination, whether the 
employee can return to work.

Other Issues

Flexible Approaches

    As in the drug testing rules, we want to provide program 
flexibility to allow employers to carry out their programs in a more 
efficient, cost-effective manner and to ease the compliance burden on 
small businesses. Testing, for example, can be conducted by the 
employer, an outside contractor or program administrator, a consortium, 
a union, or any other entity. The use of consortia has worked well in 
the drug testing area; in fact, it is the predominant method of 
compliance in some industries, particularly among smaller employers. We 
have delayed implementation of the alcohol rules for smaller employers 
by an additional year to enable them to join established consortia or 
large employer testing programs, rather than have to establish their 
own programs.
    The OA rules have specific provisions to make it easier for smaller 
employers; FRA is retaining its existing exemption from its drug and 
alcohol rules for railroads with 15 or fewer employees that do not 
engage in joint operations. (These entities are not considered 
sufficiently safety-sensitive to be subject to testing, since they tend 
to operate on private track at slow speeds.) FRA, which requires 
covered employers to submit plans for their alcohol misuse programs, 
imposes significantly reduced plan requirements on smaller employers.
    Employers may find it more cost-effective and convenient to conduct 
alcohol testing, particularly random testing, at the same time they 
conduct drug testing. Because we require alcohol testing at or near the 
time of performance, however, all random and reasonable suspicion drug 
testing also would have to occur at such times. In addition, the 
testing would have to take into account differences in the alcohol and 
drug random testing rates for the employer's industry. For random 
testing, employers can randomly choose the employee's number and then 
test the employee for both drugs and alcohol the next time he or she 
performs safety-sensitive functions. As described earlier, we are 
allowing performance-based random alcohol testing rate adjustments and 
initiating additional rulemaking to provide for greater flexibility in 
testing methods.

Motor Carrier Safety Assistance Program (MCSAP Option)

    In the OA NPRMs, we sought public comment on whether the post-
accident and random (or other) roadside testing could be conducted by 
state and local law enforcement officials under the FHWA Motor Carrier 
Safety Assistance Program (MCSAP), which is a Federal/State cost 
reimbursement and matching grant-in-aid program to increase commercial 
motor vehicle safety, or a similar program. The FHWA NPRM specifically 
proposed this option. Under the MCSAP, participating States would have 
to submit a random (or other) alcohol testing plan as part of their 
application for FHWA MCSAP funding. The random alcohol testing plan 
component would conform to the requirements of these rules.
    Recognizing that statutory changes to implement the MCSAP option 
would be necessary, we sought public comment on whether involving State 
and local authorities in alcohol testing would work for the various 
types of testing in the different transportation industries. Since 
States already have some equipment and their law enforcement officials 
already are trained in using that equipment, overall costs might be 
less; user fees could be imposed on covered employers to cover State 
costs. As neutral, third-party testers, their tests might be better 
accepted by employees. Due to the fact that local officials may reach 
an accident first, they could help in determining who was involved in 
the accident and also conduct tests sooner.
    Commenters were divided on this proposal. Most employers, 
particularly motor carriers, liked the option because it would impose 
testing costs on State and local authorities, rather than on individual 
motor carriers, especially independent owner-operators. They opposed 
the proposed imposition of user fees to support this program. One 
commenter suggested that the Federal government should pay local or 
State governments to perform alcohol testing. A few employers noted 
that roadside testing would be too time-consuming and would disrupt 
their closely-timed shipment and travel schedules; they prefer 
employer-based testing where they have more control over scheduling. 
They also noted that the proposal would reduce training costs because 
the law enforcement officers already are trained in conducting alcohol 
tests. The States and local authorities, including MCSAP agencies, 
opposed this option because of the costs (another unfunded mandate 
imposed on States by the Federal Government), diversion of law 
enforcement personnel from traditional functions, and lack of legal 
authority to conduct alcohol tests under their existing statutes 
without the requisite probable cause. They believed that without 
additional appropriations, the expenses of such a testing program would 
lessen the financial resources available for other congressionally-
mandated MCSAP programs, i.e., roadside vehicle safety inspections.
    We have decided not to adopt the MCSAP option at this time for 
several reasons. On October 28, 1993, President Clinton issued 
Executive Order 12875, ``Enhancing the Intergovernmental Partnership,'' 
which prohibits executive departments from promulgating regulations 
that impose an unfunded mandate on State, local and tribal governments, 
unless the mandate is required by statute, direct costs are funded by 
the Federal Government, or the executive department justifies the need 
for the mandate to the Office of Management and Budget (OMB) after 
appropriate consultation with the affected governments. The costs of 
State-operated random alcohol testing would exceed the total annual 
MCSAP funding allocation of $65 million. With current limited budgetary 
resources, it is unlikely that the MCSAP program or any other Federal 
program will obtain additional appropriations to fund State testing. 
Legislation would be needed to collect user fees and use those fees to 
cover any additional, necessary MCSAP funding. Moreover, the MCSAP 
option could never completely replace employer-based programs; it could 
cover only three of the types of testing (random, reasonable suspicion 
and post-accident) and only on certain roads. Furthermore, in some 
States, the MCSAP program is directed through agencies other than the 
police, who would be the likely candidates to do the testing. Before it 
could be implemented, this option would require numerous changes to 
existing State statutes or constitutions to permit State and local 
officials to test without probable cause.

Multi-Agency Coverage

    Multi-Agency Coverage In some transportation industries, a 
significant percentage of employees are subject to the testing rules of 
more than one DOT OA; some are subject to the testing rules of more 
than one Federal agency (e.g., employee drivers covered by the 
Department of Energy (DOE) may also be covered by FHWA). This is one 
reason we have tried to make the DOT OA rules as uniform as possible 
(and why we have also consulted closely with other Federal agencies). 
Where it does not compromise the effectiveness of the testing program 
or other requirements, one DOT OA will defer to another or recognize 
the validity of the other's requirements. For example, FHWA defers to 
FTA for CDL holders employed by FTA grantees, and FTA defers to FRA for 
grantees that are part of the general railroad system of 
transportation.
    There are different situations in which multi-agency coverage can 
occur:
    (1) An employee may perform different modal functions for the same 
employer. For example, an employee may act as both a pipeline inspector 
and a truck driver for a single employer, activities regulated by RSPA 
and FHWA, respectively. Such an employee would be designated by the 
employer as either a pipeline worker or driver for purposes of random 
testing based on which function he or she performs the majority of the 
time. The employee would be subject to reasonable suspicion and post-
accident testing under RSPA or FHWA rules while performing either 
pipeline or driving functions.
    (2) An employee may have two employers. For example, an employee 
may fly for one employer and drive for another. That employee will be 
subject to two OA random testing requirements and will generally be in 
two different pools. As discussed above, however, the employee can be 
covered by one random testing pool, e.g., one run by a consortium; in 
both situations, the employee will be subject to random testing in 
either job at the appropriate industry rate.
    The rules require that employees cease safety-sensitive functions 
in every mode of transportation, once determined to be in violation of 
any one of the OA rules. We note that the Act clearly prohibits the 
performance of safety-sensitive functions in the aviation, rail, motor 
carrier, or transit industries by an employee who has used alcohol in 
violation of any law or any Federal regulation.
    We also have continued to consult with other Federal agencies that 
are considering developing similar programs during this rulemaking 
proceeding in an attempt to make Federal government rules as consistent 
as possible.

International Issues

    The Act mandates that the requirements for pre-employment, 
reasonable suspicion, random and post-accident tests for alcohol (and 
drugs) be applied to foreign operators in the aviation, rail and motor 
carrier industries to the extent those requirements are consistent with 
our international obligations. We must also ``take into consideration 
any applicable laws and regulations of foreign countries.'' Because of 
the many questions raised about the implementation of this statutory 
mandate, we issued advance notices of proposed rulemaking on these 
issues. Published elsewhere in today's Federal Register are FHWA, and 
FAA NPRMs that propose to cover foreign operators in the U.S., but 
would defer implementation until January 1, 1996. During this period, 
we will be working through international organizations or bilateral 
agreements to achieve programs comparable to DOT's for alcohol and 
drugs; if we are unsuccessful at making progress, the rules will go 
into effect. Because in their very limited foreign operations in the 
U.S., foreign railroad employers already are complying with FRA's 
existing alcohol and drug testing requirements, the FRA has published a 
notice withdrawing its advance notice of proposed rulemaking elsewhere 
in today's Federal Register.

Regulatory Analyses and Notices

General

    Each of the OA preambles separately addresses a number of 
administrative matters concerning compliance with administrative 
requirements in statutes, executive orders and Departmental policies 
and procedures. Readers should refer to the individual OA rules for 
statements specific to each rule. This common preamble and all the 
associated rulemakings published in today's Federal Register have been 
classified as significant under Executive Order 12866 and the 
Department's regulatory policies and procedures and have been reviewed 
by the Office of Management and Budget.

Paperwork Reduction Act

    The proposed information collection requirements contained in the 
notices of proposed rulemaking were reviewed by the Office of 
Management and Budget (OMB) under section 3504(H) of the Paperwork 
Reduction Act (44 U.S.C. 3501 et. seq.). Revisions of the information 
collection requirements contained in the final rules have been 
submitted to OMB for final approval. A Federal Register notice will be 
published when that approval has been obtained.

Appendix A to Common Preamble--Bibliography

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``The Effects of Alcohol on Pilot Performance During Instrument 
Flight''. Report FAA-AM-72-4. Federal Aviation Administration, U.S. 
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Drew, G. C., W. P. Colquhown, and H. A. Long. 1959. ``Effect of 
Small Doses of Alcohol on a Skill Resembling Driving.'' Her 
Majesty's Stationery Office, London.
Evans, M. A., et al. 1974. ``Quantitative Relationship Between Blood 
Alcohol Concentration and Psychomotor Performance''. Clinical 
Pharmacology and Therapeutics, Vol. 15, No. 3, pp. 253-260.
Federal Transit Administration (U.S. DOT) (1991). ``Substance Abuse 
in the Transit Industry.''
Forney, R. B., F. W. Hughes, H. R. Hulpieu, and C. A. Fsbod/ 1961. 
``Performance in a Gymkhana Sports Car Event with Low Levels of 
Blood Alcohol''. Traffic Safety Research Review, Vol. 5, No. 3, pp. 
5-12.
Landauer, A. A., and P. Howat. 1983. ``Low and Moderate Alcohol 
Doses, Psychomotor Performance and Perceived Drowsiness''. 
Ergonomics, Vol. 26, No. 7, pp. 647-657.
Laurell, H. 1977. ``Effects of Small Doses of Alcohol on Driver 
Performance in Emergency Traffic Situations''. Accident Analysis and 
Prevention, Vol. 9, pp. 191-201.
Lister, R. G., and S. E. File. 1983. ``Performance Impairment and 
Increased Anxiety Resulting from the Combination of Alcohol and 
Lorazepam''. Journal of Clinical Psychopharmacology, Vol. 3, pp. 66-
71.
Moskowitz, H. 1973. ``Laboratory Studies of the Effects of Alcohol 
on Some Variables Related to Driving''. Journal of Safety Research, 
Vol. 5, No. 3, pp. 185-197.
Moskowitz, H., M. Burns, and A. Williams. 1985. ``Skills Performance 
at Low Blood Alcohol Levels''. Journal of Studies on Alcohol, Vol. 
46.
National Highway Traffic Safety Administration (U.S. DOT) Report to 
Congress, February 1991. ``Alcohol Limits for Drivers: A Report on 
the Effects of Alcohol and Expected Institutional Responses to New 
Limits.''
National Highway Traffic Safety Administration (U.S. DOT) (1988) 
``Fatal Accident Reporting System: A Review of Information on Fatal 
Traffic Accidents in the United States in 1987''. National Center 
for Statistics and Analysis, Washington, D.C.
National Highway Traffic Safety Administration (U.S. DOT) (1988) 
``Effects of Low Doses of Alcohol on Driving-related Skills: A 
Review of the Evidence.''
National Highway Traffic Safety Administration (U.S. DOT). ``Traffic 
Safety Facts 1992--Alcohol.''
National Research Council, Institute of Medicine. ``Under the 
Influence? Drugs and the American Work Force.''
O'Neill, B., A. Williams, and K. Dubowski. 1983. ``Variability in 
Blood Alcohol Concentrations''. Journal of Studies on Alcohol, Vol. 
44, No. 2, pp. 222-230.
Ryder, J. M., S. A. Malin, and C. H. Kinsley. 1981. ``The Effects of 
Fatigue and Alcohol on Highway Safety''. Report DOT HS-805 854. 
National Highway Traffic Safety Administration, U.S. Department of 
Transportation.
U.S. Army (February 1987). ``The Alcohol and Accidents Guide''
U.S. Department of Health and Human Services. ``Preliminary 
Estimates from the 1992 National Household Survey on Drug Abuse.''
Wilson, J. R., et al. 1984. ``Effects of Ethanol II. Behavioral 
Sensitivity and Acute Behavioral Tolerance''. Alcoholism: Clinical 
and Experimental Research, Vol. 8, No. 4, pp. 366-374.
``Zero Alcohol and Other Options'', Special Report 216, 
Transportation Research Board, National Research Council, 1987, p. 
40.

    Issued on January 25, 1994, in Washington, DC.
Federico Pena,
Secretary of Transportation.
David R. Hinson,
Administrator, Federal Aviation Administration.
Rodney E. Slater,
Administrator, Federal Highway Administration.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
Gordon J. Linton,
Administrator, Federal Transit Administration.
Ana Sol Gutierrez,
Acting Administrator, Research and Special Programs Administration.
[FR Doc. 94-2027 Filed 2-3-94; 1:00 pm]
BILLING CODE 4910-62-U