[Federal Register Volume 60, Number 4 (Friday, January 6, 1995)]
[Rules and Regulations]
[Pages 2030-2032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-342]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 382

[FHWA Docket Nos. MC-116, MC-92-19, MC-92-23]
RIN 2125-AA79, 2125-AC85, 2125-ADO6


Controlled Substance and Alcohol Use and Testing

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: On February 15, 1994, the Federal Highway Administration 
published final alcohol testing rules. Larger employers were scheduled 
to begin testing under these rules on January 1, 1995. In response to a 
number of petitions from the motor carrier industry, FHWA is briefly 
postponing this implementation date with respect to pre-employment 
testing only until May 1, 1995, to assist the motor carrier industry to 
comply effectively with the rule's provisions.

DATES: This amendment is effective December 31, 1994.

FOR FURTHER INFORMATION CONTACT:
David Miller, Office of Motor Carrier Standards (202-366-1790), or 
David Sett, Office of the Chief Counsel (202-366-0834), Federal Highway 
Administration, Department of Transportation, 400 7th Street, SW., 
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., 
Monday through Friday, except Federal legal holidays.

SUPPLEMENTARY INFORMATION: On February 15, 1994, FHWA, along with other 
Department of Transportation (DOT) operating administrations, published 
final alcohol testing regulations. These rules implemented the Omnibus 
Transportation Employee Testing Act of 1991. The FHWA rules (49 CFR 
part 382) require motor carriers to conduct pre-employment, post-
accident, reasonable suspicion, and random alcohol testing of covered 
drivers, and also provide for return-to- [[Page 2031]] duty and follow-
up testing for drivers who have tested at a level of .04 or above and 
whom their employers wish to return to the performance of safety-
sensitive functions.
    The FHWA rules also require that employers conduct these tests 
using the procedures of 49 CFR part 40. Part 40 requires that the use 
of evidential breath testing devices (EBTs) for alcohol testing. When 
it published part 40 in February 1994, the Department noted that the 
National Highway Traffic Safety Administration (NHTSA) would issue 
model specifications for non-evidential alcohol screening devices. Any 
such devices that NHTSA approved under these specifications could be 
used in place of EBTs for the screening tests required by part 40 (but 
not for the confirmation tests, which would still have to be conducted 
on EBTs). As the Department noted in its February publication, the 
Department would have to amend part 40 to establish procedures for the 
use of non-evidential alcohol screening devices before NHTSA-approved 
devices could actually be used by employers for DOT-mandated alcohol 
testing.
    On December 2, 1994, NHTSA published a list of five non-evidential 
alcohol screening devices that met its model specifications. However, 
the Department has not yet published an amendment to part 40 providing 
procedures for the use of these devices, with the result that employers 
who are scheduled to begin testing on January 1, 1995, will not 
immediately be able to begin using non-evidential devices.
    FHWA has received 12 petitions from motor carrier industry groups 
requesting postponement of the January 1, 1995, implementation date for 
alcohol testing. Among other reasons, the petitions suggested that it 
would be beneficial for the motor carrier industry to be able to 
postpone the beginning of alcohol testing until non-evidential 
screening devices could actually be used. Copies of these documents 
have been placed in the docket for this rulemaking.
    FHWA is mindful that the motor carrier industry is, by a 
substantial margin, the largest industry covered by DOT alcohol testing 
rules. Approximately 7.1 million drivers, and over 500,000 motor 
carriers, are affected by these rules. The number of employers and the 
number of employees affected by the FHWA alcohol testing rule is far 
higher than the combined numbers of employers and employees in other 
covered transportation industries. The industry is also widely 
dispersed geographically, and the mobile and fluid nature of motor 
carrier operations creates complex implementation problems for 
employers.
    The turnover rate for drivers in the industry is very high, 
approaching 100 percent per year in some segments. This places a 
particularly heavy responsibility on employers with respect to meeting 
the statutory requirement for pre-employment testing. All these factors 
suggest that it is particularly important to provide employers in this 
industry with additional flexibility before requiring random and pre-
employment testing to begin.
    We recognize the important safety benefits that will be derived 
from these rules but believe that it is reasonable to briefly delay 
them for the motor carrier industry because the rule will be more 
effectively implemented. This action is reasonable because, in addition 
to the complex problems caused by the size of the industry, there are 
other provisions in the FHWA rule that provide for additional safety 
checks of new employees. The provisions of 49 CFR 382.413, which 
require employers to obtain information about previous alcohol and 
controlled substance tests, can help employers, early in an employment 
relationship, to discover information about potential problems that new 
employees may have. Finally, there are already several existing rules 
that prohibit any alcohol use by drivers of commercial motor vehicles. 
These rules are enforced by Federal, state, and local officials who 
conducted over 1.9 million roadside safety inspections in 1993.
    For these reasons, FHWA believes that postponing the implementation 
date for this kind of testing until non-evidential screening devices 
are fully authorized for use in the program is sensible. FHWA expects 
the postponement to be a short one. The Department will issue a notice 
of proposed rulemaking (NPRM) on non-evidential screening device 
procedures in the very near future, which, we anticipate, will have a 
30-day comment period. The Department will review comments quickly and 
prepare a final rule, the effective date of which should be no later 
than May 1, 1995. In any case, pre-employment testing must begin by May 
1, 1995, regardless of the effective date of this procedural rule. 
Should the procedural rule be published before April 1, 1995, the 
Department intends to amend part 382 to establish an implementation 
date for pre-employment testing that is 30 days from the publication 
date of the procedural rule.
    Large employers must begin all kinds of alcohol tests except pre-
employment, and are authorized to begin pre-employment tests, under 
part 382 on January 1, 1995. Employers who begin pre-employment testing 
on or after January 1 can do so with the confidence that the authority 
of Federal law stands behind them.
    Reasonsable suspicion and post-accident tests are particularly 
crucial kinds of tests for a safety-oriented program like this one. 
However, the overall number of such tests is expected to be small. 
Consequently, all larger carriers will remain responsible for 
conducting these types of tests beginning January 1, 1995, using 
existing Part 40 procedures. In addition, it is very important for 
safety that a driver who has tested ``positive'' for alcohol not return 
to performance of safety-sensitive functions until he or she has passed 
a return-to-duty alcohol test and been made subject to follow-up tests. 
After January 1, 1995, employers who wish to return a driver to duty 
after a ``positive'' test must ensure that these tests are conducted, 
using existing Part 40 procedures.
    While random testing implementation will continue to begin on 
January 1, 1995, this does not necessarily mean that employers must 
actually conduct random tests on that date. Random tests must be 
reasonably spread throughout the year. Employers must conduct a 
sufficient number of tests during the year to meet the 25 percent 
random testing rate requirement. Employers who wished to use non-
evidential screening devices for most of their random tests have the 
flexibility to schedule their random tests so that most were conducted 
after the first few months of the year, when it is likely that 
procedures for their use will be in place. We would caution employers 
that this could not be an explicit, stated company policy, however. The 
intent of random testing under the rule is that employees never know 
when they might be tested. Employers cannot tell employees that no 
testing will be conducted during a certain time period. Random tests 
are also a more significant part of a deterrence and detection-based 
program than pre-employment tests, in any case. Consequently, it is not 
necessary or prudent to postpone random testing.
    It should be emphasized that none of these points apply to smaller 
employers, who will begin conducting all types of tests, as scheduled, 
on January 1, 1996. Nor does anything in this rule change the January 
1, 1995, implementation date for controlled substances testing under 49 
CFR part 382. [[Page 2032]] 

Rulemaking Analyses and Notices

    This rule is not subject to review under Executive Order 12866. It 
is significant within the meaning of the Department's Regulatory 
Policies and Procedures, since it affects an important Departmental 
safety initiative and is of substantial public interest. It is 
anticipated that this postponement will create some savings for the 
motor carrier industry, resulting, from the absence of the pre-
employment testing requirements of the rule during the first four 
months of 1995. A portion of the anticipated annual benefits of the 
rule will also be forgone, however.
    FHWA has determined that this rule does not have a significant 
economic impact on a substantial number of small entities, for purposes 
of the Regulatory Flexibility Act. In addition to the reason cited 
above, FHWA makes this determination because small entities, for 
purposes of Part 382, are those motor carriers with fewer than 50 
covered drivers who are not scheduled to begin alcohol testing until 
January 1, 1996, in any case. There is not a sufficient Federalism 
impact to warrant preparation of a Federalism assessment under 
Executive Order 12612.
    FHWA is making this rule final without first issuing a notice of 
proposed rulemaking. The rule is also being made effective before 30 
days from the date of its publication. FHWA is taking these steps on 
the basis that notice and comment are impracticable, unnecessary, and 
contrary to the public interest, and that there is good cause for 
making the rule effective immediately. The rationale for this finding 
is as follows: all requirements of 49 CFR part 382 would have to be 
implemented by larger motor carriers on January 1, 1995, absent this 
action. Carriers would be in noncompliance with part 382 in any 
interval between that date and the date that this amendment takes 
effect. This amendment could not have its intended impact unless it is 
put into effect before January 1. Moreover, this amendment is one that 
relieves a restriction.

List of Subjects in 49 CFR Part 382

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

    Issued this 30th day of December, 1994, at Washington, DC.
Rodney E. Slater,
Federal Highway Administrator.

    For the reasons stated in the preamble, 49 CFR part 382 is amended 
as follows:
    1. The authority citation is revised to read as follows:

    Authority: 49 U.S.C. 31136, 31302 et seq., and 31502; 49 CFR 
1.48.

    2. 49 CFR Sec. 382.115(a) is revised to read as follows:


Sec. 382.115  Starting date for testing programs.

    (a) Large employers. (1) Except as otherwise provided in this 
paragraph, each employer with fifty or more drivers on March 17, 1994, 
shall implement the requirements of this part beginning on January 1, 
1995.
    (2) Large employers may begin implementing the requirements of 
Sec. 382.301 of this part with respect to alcohol testing on January 1, 
1995, but are not required to do so until May 1, 1995.
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[FR Doc. 95-342 Filed 1-5-95; 8:45 am]
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