[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29643]


[[Page Unknown]]

[Federal Register: December 2, 1994]


_______________________________________________________________________

Part VI

Department of Transportation
Federal Aviation Administration



14 CFR Part 121



Research and Special Programs Administration



49 CFR Part 199



Federal Railroad Administration



49 CFR Part 219



Federal Highway Administration



49 CFR Part 382



Federal Transit Administration



49 CFR Part 654



_______________________________________________________________________



Alcohol Misuse Prevention Program; Final Rule
DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

Research and Special Programs Administration

49 CFR Part 199

Federal Railroad Administration

49 CFR Part 219

Federal Highway Administration

49 CFR Part 382

Federal Transit Administration

49 CFR Part 654

[Docket 49384]
RIN 2120-AE43; 2137-AC21; 2130-AA81; 2125-AA79, 2125-AC85; 2125-AD06; 
2132-AA38

 

Alcohol Misuse Prevention Program for Personnel Engaged in 
Specified Aviation Activities (FAA); Alcohol Misuse Prevention Program 
(RSPA); Alcohol Testing; Amendments to Alcohol/Drug Regulations (FRA); 
Controlled Substances and Alcohol Use and Testing (FHWA); Prevention of 
Alcohol Misuse in Transit Operations (FTA)

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

ACTION: Final rule, request for comments.

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

SUMMARY: On February 15, 1994, the Department of Transportation 
published final alcohol testing rules, including a requirement that 
evidential breath testing devices be used to conduct alcohol tests. The 
Department also published a notice of proposed rulemaking seeking 
comment on whether blood testing should be used in very limited 
circumstances (i.e., for reasonable suspicion and post-accident tests, 
where evidential breath testing was not available). After reviewing the 
comments, the Department has decided not to authorize blood testing as 
proposed. The Department's operating administrations are amending their 
alcohol testing rules to require employers to submit to the Department 
reports of reasonable suspicion and post-accident tests that could not 
be conducted because breath testing was unavailable.

DATES: The amendments to the FAA, RSPA, FRA, FHWA, and FTA alcohol 
testing regulations are effective January 1, 1995. Comments concerning 
the reporting requirement added to the five operating administration 
alcohol testing regulations should be received by January 17, 1995. 
Late filed comments will be considered to the extent practicable.

ADDRESSES: Comments should be sent to Docket Clerk, Docket No. 49384, 
Room 4107, Department of Transportation, 400 7th Street, S.W., 
Washington D.C., 20590. This is a consolidated docket that will accept 
comments on the amendments to all five operating administration rules 
involved. Commenters wishing to have their comments acknowledged should 
send a stamped, self-addressed postcard with their comments. The Docket 
Clerk will date stamp the card and return it to the commenter.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Acting Director, 
Department of Transportation Office of Drug Enforcement and Program 
Compliance, 400 7th Street, S.W., Washington, D.C., 20590 (202-366-
3784).

SUPPLEMENTARY INFORMATION: This rulemaking concerns the Department of 
Transportation's alcohol testing requirements. Larger employers are 
required to begin alcohol testing in accordance with the Department's 
regulations on January 1, 1995. Smaller employers are required to begin 
testing on July 1, 1995, or January 1, 1996, as provided in applicable 
operating administration rules. Those employers who are scheduled to 
begin testing January 1, 1995, are expected to be ready to begin 
testing on that date, including acquisition of equipment and training 
of personnel. No postponements of this compliance date have been 
granted. Since employers will have been on notice of this compliance 
date since February 15, 1994, the Department believes that employers 
will have had a reasonable time to prepare.

The NPRM

    When the Department proposed the alcohol testing rules that it 
adopted in February 1994, one of the most important, most frequently 
commented-upon issues was the choice of testing methodology. After 
carefully considering comments about a variety of methods and devices, 
including arguments concerning the degree of discretion employers 
should have in choosing a testing method, the Department decided that 
the use of evidential breath testing devices (EBTs) was the most 
appropriate approach to take. The Department discussed the reasons for 
this decision at some length in the preamble to its alcohol testing 
procedures rule. See 59 FR 7342-7347; February 15, 1994.
    At the same time, the Department sought comments, through a notice 
of proposed rulemaking (NPRM), on whether the Department should 
authorize blood testing for alcohol to be used in certain specific, 
very limited circumstances. See 59 FR 7367-7371; February 15, 1994. 
Under the proposal, blood would be used ``only in those reasonable 
suspicion and post-accident testing circumstances where it is not 
practicable to use breath testing.'' Id. at 7367. The Department 
specifically noted that blood testing was ``not intended, under the 
proposal, to be an equal alternative method that an employer can choose 
as a matter of preference.'' Id. The NPRM did not propose re-opening 
the underlying decision that breath testing is to be the basic testing 
method under the rules.
    The rationale for the proposal was that ``in some circumstances, 
the unavailability of EBTs * * * may make breath testing 
impracticable.'' Id. The Department noted that

    [R]easonable suspicion and post-accident tests are more likely 
than other kinds of tests to happen at unpredictable times and in 
remote locations * * * [I]t may be substantially easier and less 
costly to arrange for a blood alcohol test [than a breath test] in 
these circumstances. In some cases, it may be impossible to get an 
EBT to a remote location in time to conduct a meaningful test. Id.

Under such circumstances, the NPRM said, it might be better to test 
using blood, despite its known disadvantages (which the preambles to 
both the Part 40 final rule and the NPRM spelled out), than to be 
unable to complete a reasonable suspicion or post-accident test. The 
NPRM noted that there would probably be a small number of such tests 
per year (roughly estimated at 2500 per year), which could mitigate the 
effect of these disadvantages.
    The remainder of the NPRM proposed procedures that would be used in 
the event the Department adopted the proposal. These proposals 
addressed such subjects as collection procedures, qualification of 
testing personnel, laboratories and laboratory procedures, and ``fatal 
flaws'' that would invalidate tests.

Comments

    The Department received 185 comments on this NPRM. The commenters 
included 15 transportation employers or their associations, 9 testing 
industry organizations, 6 unions, and 155 individual transportation 
employees. Several months after the close of the comment period, the 
Department received additional correspondence on this subject, but the 
comments arrived so late in the rulemaking process that it was not 
practicable to consider them.
    Comment was divided on the basic issue of whether blood testing 
should be authorized. Employee comments were uniformly against the 
proposal. Six unions representing transportation workers and 155 
individual transportation employees opposed blood testing. They cited a 
number of reasons. Blood testing was too invasive, causing pain and 
fear in many employees and severely invading employees' privacy. There 
was no possibility of immediate confirmation. There would be too much 
employer discretion as to when blood could be used, which could lead to 
abuse (e.g., overuse of blood by employers). Some of these comments 
expressed concern about incompetent or dangerous collection practices. 
Two additional commenters (one of whom favored using blood testing) 
expressed concern about confrontations arising from employees who 
objected to giving blood.
    Twenty-five commenters, most of them employers or employer 
associations, favored blood testing. Thirteen of these endorsed the 
NPRM proposal. Most did so on the basis that it would be less costly 
and more convenient to be able to use blood testing for reasonable 
suspicion and post-accident testing. Specifically, commenters were 
concerned that, in the absence of a blood option for these types of 
testing, employers would have to buy an unreasonably large number of 
EBTs to cover all their work locations. The other 12 commenters in this 
group favored much wider discretion for employers, saying that blood 
testing should be available for confirmation in all types of testing, 
with non-evidential devices (such as saliva devices) available for 
screening tests. The result would be that EBTs need never be obtained 
or used. Employers in the pipeline industry were particularly in favor 
of this approach, noting that only reasonable suspicion and post-
accident alcohol tests are required for their industry, which has 
employees at many remote sites.
    A related issue was how to define ``readily available.'' The NPRM 
proposed that blood could be used when breath testing was not ``readily 
available,'' and asked for comment on what that term should mean. Five 
commenters believed that a specific number of hours (e.g., two or 
eight) should be used as the criterion. That is, if breath testing 
could not be performed within that number of hours after the event 
leading to the test, then blood could be used. Nine commenters, to the 
contrary, said that employers should be able to decide when breath 
testing was readily available, based on such factors as cost, 
convenience, or preference. (One comment, on the other hand, said 
employers should never have this discretion.) The latter view was 
advocated by several of the commenters who favored a broader use of 
blood testing than the NPRM proposed, as it would reduce the number of 
occasions on which breath testing would be needed and perhaps make it 
possible for some employers to avoid breath testing altogether. Two 
commenters, representing aviation management and labor, respectively, 
disagreed about whether EBTs would typically be available in airports. 
Two other commenters proposed more complex schemes for determining when 
blood testing could be used.
    On the question of what laboratories should be used for blood 
testing, six comments favored using state-certified laboratories, when 
they were available. Some of them said that these laboratories should 
be viewed as adequate at least until Department of Health and Human 
Services (DHHS) -certified laboratories became available. Ten comments 
favored DHHS certification for blood testing laboratories, though these 
commenters differed among themselves about whether DHHS-certified 
laboratories should be the only laboratories permitted to test blood in 
DOT-mandated tests. Two other comments favored using laboratories 
certified by the College of American Pathologists (CAP), and three 
others supported using whatever laboratories were available, whether 
certified by DHHS, states, or CAP.
    Eleven commenters thought DOT should develop uniform, national 
testing procedures. Some of these commenters argued that state 
procedures are unreliable or that it would be too confusing to apply a 
variety of state standards, particularly for employers who operate in 
more than one state. Two testing industry organizations suggested using 
an existing industry blood collection standard. Eight other commenters 
thought that state procedures, or procedures developed at the 
discretion of the employer, should be viewed as adequate.
    Nine commenters thought employers should either be authorized or 
required to ``stand down'' employees based on a positive screening 
test, pending receipt of the results of the blood confirmation test 
from the laboratory. Eight comments favored allowing an employee's 
supervisor to act as the collector for the screening test, the 
confirmation test, or both, at least if other trained collectors were 
not available. One comment opposed ever allowing a supervisor to act as 
a collector. With respect to fatal flaws, nine commenters agreed (and 
two disagreed) that a sample collected by an unauthorized collector 
should be regarded as invalid, eight said it should not be a fatal flaw 
if the procedures of the wrong state were used for collection. There 
were also several comments concerning the details of blood testing 
kits.

DOT Response

    The Department clearly and specifically limited the NPRM to 
consideration of whether blood testing should be used for situations in 
which breath testing was not readily available for reasonable suspicion 
and post-accident tests, or in ``shy lung'' situations. For this 
reason, the issue raised by some commenters of whether employers should 
have the flexibility or discretion to use blood testing as an 
alternative to breath testing, even when breath testing is readily 
available in reasonable suspicion and post-accident testing or even in 
random or pre-employment testing, is outside the scope of the 
rulemaking.
    Moreover, we remain convinced, for the reasons explained in the 
preamble to 49 CFR Part 40 published on February 15, 1994, that the 
Department made a sound decision to designate evidential breath testing 
as the basic method of alcohol testing to be used in DOT programs. 
Consequently, the Department will not authorize the use of blood 
testing as an alternative to breath in the wide range of circumstances 
recommended by some commenters.
    With respect to the NPRM proposal itself, the Department is mindful 
of the concerns expressed by employees and unions about the 
invasiveness of blood testing. As the Department recognized in the 
preambles to the NPRM and to the February 15 final rule, blood testing 
is the most invasive type of testing available, and is likely to create 
more anxiety among employees than other methods. Blood testing is the 
only testing method that, if conducted improperly by an ill-trained or 
inattentive collector, can do serious physical harm to an employee. 
Moreover, while we recognize a point made by some commenters that 
employees have accepted blood alcohol testing in some circumstances, we 
think that the greater invasiveness of this approach would, on the 
whole, make employee acceptance of the program more, rather than less, 
difficult to obtain. Employee acceptance is one factor that leads to 
the success of an alcohol misuse prevention program.
    Another factor we have taken into consideration is the added 
program complexity that would result from including blood testing in 
the Department's programs. Laboratories would have to be certified to 
test the blood samples. As the division among commenters on this point 
demonstrates, the best solution to this problem is not clear. In our 
view, DHHS certification would be the highest standard for accuracy and 
reliability of testing. However, there would be considerable costs to 
laboratories and the Department, as well as some delays in program 
implementation, if DHHS had to create a laboratory certification 
program for blood alcohol testing, as it has for urine drug testing. 
Assuming that the number of tests involved is small (see discussion 
below) it might well not be cost effective for laboratories to go 
through a DHHS certification process. State-certified laboratories 
appear to vary in reputation for quality as well as in terms of 
availability; not all states have state or state-certified laboratories 
that would accept specimens for purposes of DOT-mandated testing.
    As mentioned in the preamble of the NPRM, the Department has 
expressly declined to use laboratories certified by private 
organizations (such as the CAP) in the drug testing context, and the 
comments did not provide a persuasive rationale for taking a different 
course with respect to alcohol testing. Using state or privately 
certified laboratories as an interim measure until DHHS-certified 
laboratories are ready could create concern among employees and 
employers about ensuring the highest level of accuracy in the program. 
The other procedural issues discussed in the comments--DOT national 
uniform procedures vs. reliance on differing state procedures, whether 
there should be a standard DOT blood testing kit and what should be in 
it, what should constitute a fatal flaw, etc.--also suggest that it 
would be a very complex matter to devise an appropriate set of 
procedures for blood testing.
    Other questions arise because of the relationship of non-evidential 
screening test devices and blood tests. For example, suppose a saliva 
screening device indicates that an employee tests positive for alcohol. 
The blood test result will not be available from the laboratory for two 
or three days. What happens to the employee in the meantime? This is a 
problem we do not face with evidential breath testing, since a 
confirmation test result is available immediately, a point which we 
view as a significant advantage of breath testing.
    In the drug testing rules, we explicitly prohibit on-site testing, 
in part for the reason that we consider it inappropriate for an 
employer to take any action against an employee, absent a confirmed and 
verified positive test result. (Concern about the accuracy of devices 
was also involved in this decision.) A similar situation would occur if 
an employee had a positive on-site screening test for alcohol and the 
employer stood him or her down pending receipt of the laboratory 
confirmation test result. On the other hand, from a safety point of 
view, there is much to recommend to employers that they stand an 
employee down after a positive on-site screening test, since no one 
wants to send (for example) a truck driver back onto the road when we 
have a test result suggesting that the driver may have alcohol in his 
or her system. The comments on the subject favored standing employees 
down in this situation.
    Should the Department, contrary to the drug testing rules, permit 
or require the employer to stand an employee down in this situation? If 
the employer stands an employee down in this situation, should DOT 
rules mandate that the employer pay the employee for the ``stand down'' 
period? In any case? Only if the confirmation test is negative? These 
are difficult and troubling questions, to which the best answers are 
far from self-evident.
    This is not to say that the issues of invasiveness, added 
procedural complexity, and stand-down are incapable of resolution. But 
is it worthwhile, from the point of view of employers, employees, and 
the Department, to create a new component of the alcohol testing 
program carrying these problems with it? The basic rationale for adding 
blood testing to the program is that, in its absence, employers will 
``miss'' post-accident and reasonable suspicion tests. That is, there 
will be situations in which, because breath testing cannot be made 
available within eight hours, a post-accident or reasonable suspicion 
test that the regulations call for will not take place at all. In some 
number of these cases, blood testing might be available where breath 
testing is not.
    How often will there be reasonable suspicion and post-accident 
tests that are ``missed'' because of the unavailability of breath 
testing that would be ``caught'' by blood testing? Our expectation is 
that there would be a small number of such situations. First, occasions 
for post-accident and reasonable suspicion tests are likely to be far 
fewer in number than occasions for pre-employment and random tests. The 
motor carrier industry accounts for 7.0 million of the approximately 
7.8 million transportation employees who will be subject to alcohol 
testing. FHWA's very stringent criteria for post-accident testing (only 
a (1) fatal accident or (2) an accident in which the driver is issued a 
citation for a moving violation plus either (a) there is disabling 
damage to a vehicle or (b) an injury requiring immediate medical 
treatment away from the scene results in a post-accident test) mean 
that only a small percentage of all motor carrier accidents are likely 
to result in post-accident tests. The nature of drivers' jobs, which do 
not involve frequent or long-term observation by supervisors, suggests 
that there will be relatively few occasions for reasonable suspicion 
tests. The pipeline industry, in which most accidents happen because of 
non-pipeline employees damaging pipelines (e.g., construction crews 
digging into a pipeline), and in which employees may often operate in 
remote locations with little supervision, appears to share this 
relatively low probability of reasonable suspicion and post-accident 
testing. We also anticipate few ``shy lung'' situations, and Part 40 
has a provision to deal with them.
    Other industries, which involve closer supervision of employees 
and/or broader definitions of triggering accidents may produce somewhat 
greater rates of post-accident or reasonable suspicion test situations. 
(In one of these, the railroad industry, post-accident blood testing is 
done by FRA under a long-standing rule using an FRA contract lab. 
Nothing in this today's action in any way changes FRA's existing 
requirements involving blood testing.) However, since the absolute 
numbers of employees in these industries are much smaller, they will 
have less of an effect on the total number of such occasions. Even in 
these industries, the numbers may not be very high. Data from the 
aviation industry, for example, suggests that there have been 
relatively few post-accident or reasonable cause drug tests (e.g., 720 
out of 268,809 total tests conducted in 1993 under the FAA rule).
    This brings us to the next factor. What data we have from 
situations where reasonable suspicion/cause tests have been 
administered for both drugs and alcohol suggests that there may be 
substantially fewer such tests for alcohol than for drugs. For example, 
recent railroad industry data suggest that of the total of such tests, 
alcohol tests made up only about 17 percent of the total.
    Finally, we expect that a substantial percentage of the reasonable 
suspicion and post-accident testing situations can be ``caught'' by 
breath testing. This is particularly true in those industries (e.g., 
the railroad, transit, and aviation industries) where employees perform 
most safety-sensitive duties on known routes or in known locations, and 
where supervision is more readily available. Even in the motor carrier 
industry, the provision in the FHWA rule that allows use for purposes 
of the DOT testing program of results of tests conducted by law 
enforcement can help to reduce the incidence of ``missed'' tests.
    However, there are likely to be some situations in which no testing 
method--including blood--can be brought to bear in time to conduct a 
post-accident or reasonable suspicion test. The oft-mentioned example 
of a truck accident at 2 a.m. on a remote highway in the middle of the 
desert may well be an example of a situation in which blood, as well as 
breath, testing will not be available in a timely manner. Certainly it 
would be a doubtful assumption that all, or perhaps even a majority, of 
tests that would be ``missed'' with breath would be ``caught'' with 
blood.
    Consequently, if we added blood testing to the alcohol testing 
program as proposed in the NPRM, we would be incurring the 
disadvantages of such a step in order to catch a subset of a subset of 
the universe of all reasonable suspicion and post-accident alcohol 
tests required under the Department's rules. This universe itself will 
probably not be a large one. Many of the tests can be caught by breath 
testing. Of those that cannot, many could not be caught by blood 
testing either.
    In the NPRM, we made a rough estimate of perhaps 2500 situations 
per year in which blood would catch a test that breath could not. 
Commenters did not present data suggesting that the number would be 
significantly higher; we tend to think, at this time, that the estimate 
may have been too high.
    We have concluded that it is not worth subjecting employees to an 
invasive testing procedure and incurring the other disadvantages of 
adding blood alcohol testing to our program to capture this probably 
small number of cases. For this reason, we are withdrawing the proposed 
authorization of the use of blood in some post-accident and reasonable 
suspicion test situations, and we will not include blood testing as a 
part of the DOT alcohol testing program. As noted below, we are issuing 
a final rule establishing a temporary reporting requirement concerning 
missed reasonable suspicion and post-accident tests.
    We believe that following this course will be less disadvantageous 
to employers than some commenters appear to believe. There is no 
requirement in the DOT rules--and never has been--that employers buy 
their own EBT for every conceivable location in which a reasonable 
suspicion or post-accident test could occur, including every company 
facility or location. We expect that companies may move EBTs around 
from facility to facility for scheduled tests such as pre-employment 
and random tests. For the non-scheduled reasonable suspicion and post-
accident tests, we expect employers to take reasonable steps to ensure 
coverage. We recognize that tests will not be able to be completed in 
some instances. That is why, for example, the reasonable suspicion and 
post-accident testing provisions of the alcohol rules issued by the 
operating administrations on February 15, 1994, tell employers to 
discontinue attempts at testing after eight hours but require them to 
keep a record explaining the inability to conduct the test.
    Consortia and third-party service providers can often provide both 
more economical service and wider coverage than employers would find 
possible on their own. Reimbursable agreements among employers, even 
across various industries, could make EBT and BAT services available in 
locations where a single employer would not have coverage. The 
operating administrations will also provide guidance and work with 
their employers to ensure appropriate coverage by employers. Finally, 
the Department recognizes that there will be some situations in which 
the best good faith efforts on the part of an employer (as distinct 
from an abdication of the effort) cannot result in a test being 
completed. That is, we acknowledge and accept the fact that there will 
be some ``missed'' tests.
    The Department's judgment on this issue is based, to a considerable 
extent, on the premise that there will not be excessive numbers of 
``missed'' tests. This premise, while based on a logical view of how 
our program will work, is not, at this stage, based on hard data. This 
is because the alcohol testing program has not begun yet, so there is 
little data on which we can rely. (That is, the first MIS reports for 
alcohol are not due until March 15, 1996. The first MIS reports for 
drugs are not due until March 15, 1995, so we do not even have 
comprehensive data yet for drug testing in most of the affected 
industries which might serve as a basis for inferences about the 
alcohol testing program.) For this reason, the Department is modifying 
an existing regulatory requirement to generate relevant data.
    All the operating administration alcohol testing regulations 
include a requirement for employers to prepare and maintain on file a 
record of when a post-accident or reasonable suspicion test is not 
administered within eight hours. At this point, the employer must stop 
attempts to administer the test. This is, in other words, an existing 
requirement to document a ``missed'' test and the reasons for it. This 
requirement applies to all covered employers.
    For a three-year period beginning January 1, 1995, the Department 
will require those employers who transmit an MIS report to the 
Department to transmit a copy of these records along with their MIS 
report. They should be sent to the same address as MIS reports are sent 
for the operating administration involved. Reports should be sent to 
the operating administration only at the time that MIS reports are 
sent. That is, the employer should send a year's worth of reports (a 
separate report for each ``missed test'') to the operating 
administration at one time. Employers should not send reports 
concerning tests which are conducted within the 8-hour period, only 
concerning tests that are not conducted because more than 8 hours have 
passed since the triggering event. (The existing rules also require 
employers to document when a reasonable suspicion or post-accident test 
cannot be conducted within two hours. This requirement remains in 
effect, but employers are not required to report to DOT concerning 
tests that are conducted more than two but less than eight hours after 
the triggering event. This is because such tests, while perhaps of 
diminished value, are not truly ``missed tests.'')
    The rule specifies the information that would be part of the 
records. The required information is the following:
    (1) Type of test. Is the test a reasonable suspicion or post-
accident test? (This information is not required from railroad 
employers, since FRA has always conducted post-accident blood tests and 
does not conduct post-accident breath alcohol testing parallel to that 
conducted under other operating administrations' rules. All ``missed 
tests'' under the FRA rule would be reasonable suspicion tests.)
    (2) Triggering event. What was the date, time and location of the 
accident or supervisor's determination of reasonable suspicion that led 
to the requirement for the test?
    (3) Employee category. What type of safety-sensitive function was 
the employee performing? In responding to this item, employers should 
use the employee categories listed in each of the operating 
administrations' regulations (e.g., in mass transit, operator of a 
revenue service vehicle, operator of a non-revenue service vehicle, 
controller/dispatcher, maintenance personnel, security personnel). 
These regulatory categories, rather than the employer's job title for 
the individual, should be used for this purpose. Under no circumstances 
should the employee's name or other identifying information be 
provided. (This information is not required in reports to FHWA, since 
all FHWA-covered personnel are drivers.)
    (4) Explanation. The reason(s) the test could not be completed 
within 8 hours. That is, what prevented the employer from conducting 
the test within this time period using breath testing?
    (5) Possible Use of Blood. If blood testing would have been 
available to complete the test within eight hours, the record would 
include the name, address, and telephone number of the testing site at 
which blood testing could have occurred. (This information will help 
the Department to estimate the frequency of situations in which blood 
testing would have been available where breath testing is not.)
    The Department will analyze these reports (which, since they 
concern 1995, 1996, and 1997, will include three years' data for large 
employers and two years' data for small employers) in 1998. We will 
revisit, at that time, the issue of whether there are sufficient 
numbers of post-accident and reasonable suspicion testing occasions 
which are missed by breath testing and could be captured by blood 
testing to make the addition of blood testing (or some other, new 
technology) a worthwhile step. While this data collection requirement 
is a response to the issues raised by the NPRM, and is a logical 
outgrowth of our consideration of those issues and the comments on 
them, it was not itself specifically proposed in that document. 
Therefore, we are asking for comment on the reporting requirement. 
Because we believe it is important to be in a position to have 
responded to comments on the reporting requirement before January 1, 
1995, when alcohol testing begins and records of missed tests would 
need to start being kept for the reports that are due March 15, 1996, 
we have established a 45-day, rather than a 60-day, comment period on 
the reporting requirement. This opportunity for comment concerns only 
the reporting requirement itself, and not the underlying decision to 
withdraw the proposal to allow blood testing. Comments on that decision 
will be considered as outside the scope of this request for comments.

Regulatory Analyses and Notices

    The Department has determined that this rule is a significant rule 
for purposes of Executive Order 12886 and the Department's Regulatory 
Policies and Procedures. While it makes only small changes to the 
Department's existing alcohol testing requirements, it pertains to a 
Department-wide regulatory program, and has been reviewed by all 
concerned Departmental offices and the Office of Management and Budget 
(OMB). The costs and benefits of alcohol testing were fully analyzed as 
part of the final rules issued February 15, 1994. Because the rule does 
impose a new reporting requirement, we have submitted this requirement 
to OMB for review under the Paperwork Reduction Act. The new reporting 
requirement will not be effective until OMB has approved it. DOT will 
publish a Federal Register notice when OMB approves the requirement.
    Under the Regulatory Flexibility Act, the Department certifies that 
the requirements imposed by this rule will not have a significant 
economic effect on a substantial number of small entities. There are 
not sufficient Federalism impacts to warrant a Federalism assessment 
under Executive Order 12612.

List of Subjects

14 CFR Part 121

    Air carriers, Air transportation, Aircraft, Aircraft pilots, 
Airmen, Airplanes, Alcohol, Alcoholism, Aviation safety, Pilots, 
Safety, Transportation.

49 CFR Part 199

    Alcohol testing, Drug testing, Pipeline safety, Recordkeeping and 
reporting.

49 CFR Part 219

    Alcohol and drug abuse, Railroad safety, Reporting and 
recordkeeping requirements.

49 CFR Part 382

    Alcohol testing, Controlled substances testing, Highways and roads, 
Highway safety, Motor carriers, Motor vehicle safety.

49 CFR Part 654

    Alcohol testing, Grant programs--transportation, Mass transit, 
Reporting and recordkeeping requirements, Safety, Transportation.

    Issued this 22nd day of November, 1994, at Washington, D.C.
Mortimer L. Downey,
Deputy Secretary.
David R. Hinson,
Administrator, Federal Aviation Administration.
D.K. Sharma,
Administrator, Research and Special Programs Administration.
S. Mark Lindsey,
Acting Deputy Administrator, Federal Railroad Administration.
Rodney E. Slater,
Administrator, Federal Highway Administration.
Gordon J. Linton,
Administrator, Federal Transit Administration.

    For the reasons set forth in the preamble, the Department of 
Transportation amends 14 CFR Part 121, 49 CFR Part 199, 49 CFR Part 
219, 49 CFR Part 382, and 49 CFR Part 654, as follows:

14 CFR CHAPTER I

PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND 
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE 
AIRCRAFT

    1. The authority citation for Part 121 is revised to read as 
follows:

    Authority: 49 U.S.C. 106(g), 1354(a), 1355, 1356, 1357, 1401, 
1421-1430, 1485, and 1502.

    2. In Appendix J to Part 121, paragraph III. B. 2. is amended by 
designating the existing text as paragraph (a) and adding a new 
paragraph (b), to read as follows:

Appendix J to Part 121--Alcohol Misuse Prevention Program

* * * * *

III. Tests Required

* * * * *

B. Post-accident

* * * * *
    2. (a) * * *
    (b) For the years stated in this paragraph, employers who submit 
MIS reports shall submit to the FAA each record of a test required 
by this section that is not completed within 8 hours. The employer's 
records of tests that are not completed within 8 hours shall be 
submitted to the FAA by March 15, 1996; March 15, 1997; and March 
15, 1998; for calendar years 1995, 1996, and 1997, respectively. 
Employers shall append these records to their MIS submissions. Each 
record shall include the following information:
    (i) Type of test (reasonable suspicion/post-accident);
    (ii) Triggering event (including date, time, and location);
    (iii) Employee category (do not include employee name or other 
identifying information);
    (iv) Reason(s) test could not be completed within 8 hours; and
    (v) If blood alcohol testing could have been completed within 
eight hours, the name, address, and telephone number of the testing 
site where blood testing could have occurred.
* * * * *
    3. In Appendix J to Part 121, paragraph III D. 4. is amended by 
designating the existing paragraphs (b) and (c) as paragraphs (c) and 
(d), respectively, and adding a new paragraph (b), to read as follows:
* * * * *

III. Tests Required

* * * * *
    D. Reasonable suspicion testing
* * * * *
    4. * * *
    (b) For the years stated in this paragraph, employers who submit 
MIS reports shall submit to the FAA each record of a test required 
by this section that is not completed within 8 hours. The employer's 
records of tests that are not completed within 8 hours shall be 
submitted to the FAA by March 15, 1996; March 15, 1997; and March 
15, 1998; for calendar years 1995, 1996, and 1997, respectively. 
Employers shall append these records to their MIS submissions. Each 
record shall include the following information:
    (i) Type of test (reasonable suspicion/post-accident);
    (ii) Triggering event (including date, time, and location);
    (iii) Employee category (do not include employee name or other 
identifying information);
    (iv) Reason(s) test could not be completed within 8 hours; and
    (v) If blood alcohol testing could have been completed within 
eight hours, the name, address, and telephone number of the testing 
site where blood testing could have occurred.
* * * * *

49 CFR CHAPTER I

PART 199--DRUG AND ALCOHOL TESTING

    4. The authority citation for Part 199 is revised to read as 
follows:

    Authority: 46 U.S.C. 60101 et seq.; 49 CFR 1.53.

    5. Section 199.225 is amended by designating the existing text of 
paragraph (a)(2) as paragraph (a)(2)(i) and adding a new paragraph (a) 
(2) (ii), to read as follows:


Sec. 199.225  Alcohol tests required.

* * * * *
    (a) Post-accident. * * *
    (2)(i) * * *
    (ii) For the years stated in this paragraph, employers who submit 
MIS reports shall submit to RSPA each record of a test required by this 
section that is not completed within 8 hours. The employer's records of 
tests that could not be completed within 8 hours shall be submitted to 
RSPA by March 15, 1996; March 15, 1997; and March 15, 1998; for 
calendar years 1995, 1996, and 1997, respectively. Employers shall 
append these records to their MIS submissions. Each record shall 
include the following information:
    (A) Type of test (reasonable suspicion/post-accident);
    (B) Triggering event (including date, time, and location);
    (C) Employee category (do not include employee name or other 
identifying information);
    (D) Reason(s) test could not be completed within 8 hours; and
    (E) If blood alcohol testing could have been completed within eight 
hours, the name, address, and telephone number of the testing site 
where blood testing could have occurred.
* * * * *
    6. Section 199.225 is amended by designating the text of paragraphs 
(b)(4)(ii) and (b)(4)(iii) as paragraphs (b)(4)(iii) and (b)(4)(iv), 
respectively, and adding a new paragraph (b)(4)(ii), to read as 
follows:
* * * * *
    (b) Reasonable Suspicion Testing. * * *
    (4) * * *
    (ii) For the years stated in this paragraph, employers who submit 
MIS reports shall submit to RSPA each record of a test required by this 
section that is not completed within 8 hours. The employer's records of 
tests that could not be completed within 8 hours shall be submitted to 
RSPA by March 15, 1996; March 15, 1997; and March 15, 1998; for 
calendar years 1995, 1996, and 1997, respectively. Employers shall 
append these records to their MIS submissions. Each record shall 
include the following information:
    (A) Type of test (reasonable suspicion/post-accident);
    (B) Triggering event (including date, time, and location);
    (C) Employee category (do not include employee name or other 
identifying information);
    (D) Reason(s) test could not be completed within 8 hours; and
    (E) If blood alcohol testing could have been completed within eight 
hours, the name, address, and telephone number of the testing site 
where blood testing could have occurred.
* * * * *

49 CFR CHAPTER II

PART 219--CONTROL OF ALCOHOL AND DRUG USE

    7. The authority citation for Part 219 is revised to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20113, 20140, 
21301, 21304; and 49 CFR 1.49(m).

    9. A new paragraph (d) is added to Sec. 219.300, to read as 
follows:


Sec. 219.300  Mandatory reasonable suspicion testing.

* * * * *
    (d)(1) If a test required by this section is not administered 
within two hours following the determination under this section, the 
railroad shall prepare and maintain on file a record stating the 
reasons the test was not properly administered. If a test required by 
this section is not administered within eight hours of the 
determination under this section, the railroad shall cease attempts to 
administer an alcohol test and shall state in the record the reasons 
for not administering the test. Records shall be submitted to FRA upon 
request of the Administrator.
    (2) For the years stated in this paragraph, employers who submit 
MIS reports shall submit to the FRA each record of a test required by 
this section that is not completed within 8 hours. The employer's 
records of tests that are not completed within 8 hours shall be 
submitted to the FRA by March 15, 1996; March 15, 1997; and March 15, 
1998; for calendar years 1995, 1996, and 1997, respectively. Employers 
shall append these records to their MIS submissions. Each record shall 
include the following information:
    (i) Triggering event (including date, time, and location);
    (ii) Employee category (do not include employee name or other 
identifying information);
    (iii) Reason(s) test could not be completed within 8 hours; and
    (iv) If blood alcohol testing could have been completed within 
eight hours, the name, address, and telephone number of the testing 
site where blood testing could have occurred.


Sec. 219.302  [Amended]

    10. Section 219.302 is amended by removing paragraph (f).

49 CFR CHAPTER III

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

    11. The authority citation for 49 CFR Part 382 continues to read as 
follows:

    Authority: 49 U.S.C. 31136, 31301, et seq., 31502; and 49 CFR 
1.48.

    12. Section 382.303 is amended by designating the existing text of 
paragraph (b)(2) as paragraph (b)(4) and adding new paragraphs (b)(2) 
and (b)(3), to read as follows:


Sec. 382.303  Post-accident testing.

* * * * *
    (b) * * * (1) * * *
    (2) For the years stated in this paragraph, employers who submit 
MIS reports shall submit to the FHWA each record of a test required by 
this section that is not completed within 8 hours. The employer's 
records of tests that are not completed within 8 hours shall be 
submitted to the FHWA by March 15, 1996; March 15, 1997; and March 15, 
1998; for calendar years 1995, 1996, and 1997, respectively. Employers 
shall append these records to their MIS submissions. Each record shall 
include the following information:
    (i) Type of test (reasonable suspicion/post-accident);
    (ii) Triggering event (including date, time, and location);
    (iii) Reason(s) test could not be completed within 8 hours; and
    (iv) If blood alcohol testing could have been completed within 
eight hours, the name, address, and telephone number of the testing 
site where blood testing could have occurred.
    (3) Records of tests that could not be completed in 8 hours shall 
be submitted to the FHWA at the following address: Attn.: Alcohol 
Testing program, Office of Motor Carrier Standards (HCS-1), Federal 
Highway Administration, 400 Seventh Street, S.W., Washington, DC 20590.
* * * * *
    13. Section 382.307 is amended by designating the existing text of 
paragraphs (e)(2) and (e)(3) as paragraphs (e)(4) and (e)(5), 
respectively, and adding new paragraphs (e)(2) and (e)(3), to read as 
follows:


Sec. 382.307  Reasonable suspicion testing.

* * * * *
    (e) * * *
    (2) For the years stated in this paragraph, employers who submit 
MIS reports shall submit to the FHWA each record of a test required by 
this section that is not completed within 8 hours. The employer's 
records of tests that could not be completed within 8 hours shall be 
submitted to the FHWA by March 15, 1996; March 15, 1997; and March 15, 
1998; for calendar years 1995, 1996, and 1997, respectively. Employers 
shall append these records to their MIS submissions. Each record shall 
include the following information:
    (i) Type of test (reasonable suspicion/post-accident);
    (ii) Triggering event (including date, time, and location);
    (iii) Reason(s) test could not be completed within 8 hours; and
    (iv) If blood alcohol testing could have been completed within 
eight hours, the name, address, and telephone number of the testing 
site where blood testing could have occurred.
    (3) Records of tests that could not be completed in 8 hours shall 
be submitted to the FHWA at the following address: Attn: Alcohol 
Testing Program, Office of Motor Carrier Standards (HCS-1), Federal 
Highway Administration, 400 Seventh Street, SW., Washington, DC 20590.
* * * * *

49 CFR CHAPTER VI

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

    14. The authority citation for 49 CFR Part 654 is revised to read 
as follows:

    Authority: 49 U.S.C. 5331; 49 CFR 1.51.

    15. Section 654.33 is amended by designating the existing text of 
paragraph (b) as paragraph (b)(1) and adding a new paragraph (b)(2), to 
read as follows:


Sec. 654.33   Post-accident testing.

* * * * *
    (b)(1) * * *
    (2) For the years stated in this paragraph, the employer shall 
submit to the FTA each record of a test required by this section that 
is not completed within 8 hours. The employer's records of tests that 
could not be completed within 8 hours shall be submitted to the FTA by 
March 15, 1996; March 15, 1997; and March 15, 1998; for calendar years 
1995, 1996, and 1997, respectively. Employers shall append these 
records to their MIS submissions. Each record shall include the 
following information:
    (i) Type of test (reasonable suspicion/post-accident);
    (ii) Triggering event (including date, time, and location);
    (iii) Employee category (do not include employee name or other 
identifying information);
    (iv) Reason(s) test could not be completed within 8 hours; and
    (v) If blood alcohol testing could have been completed within eight 
hours, the name, address, and telephone number of the testing site 
where blood testing could have occurred.
* * * * *
    16. Section 654.37 is amended by designating the existing text of 
paragraphs (d)(2) and (d)(3) as paragraphs (d)(3) and (d)(4), 
respectively, and adding a new paragraph (d)(2), to read as follows:


Sec. 654.37   Reasonable suspicion testing.

* * * * *
    (d) * * *
    (2) For the years stated in this paragraph, the employer shall 
submit to the FTA each record of a test required by this section that 
is not completed within 8 hours. The employer's records of tests that 
could not be completed within 8 hours shall be submitted to the FTA by 
March 15, 1996; March 15, 1997; and March 15, 1998; for calendar years 
1995, 1996, and 1997, respectively. Employers shall append these 
records to their MIS submissions. Each record shall include the 
following information:
    (i) Type of test (reasonable suspicion/post-accident);
    (ii) Triggering event (including date, time, and location);
    (iii) Employee category (do not include employee name or other 
identifying information);
    (iv) Reason(s) test could not be completed within 8 hours; and
    (v) If blood alcohol testing could have been completed within eight 
hours, the name, address, and telephone number of the testing site 
where blood testing could have occurred.

[FR Doc. 94-29643 Filed 11-29-94; 12:03 pm]
BILLING CODE 4910-62-P