[Federal Register Volume 60, Number 90 (Wednesday, May 10, 1995)]
[Rules and Regulations]
[Pages 24765-24766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11522]



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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. 27065; Amendment 121-237]
RIN 2120-AE43
Federal Railroad Administration

49 CFR Part 219
[Docket No. RSOR-6]
RIN 2130-AA81
Federal Highway Administration

49 CFR Part 382
[Docket No. MC-116, MC-92-19, MC-92-23]
RIN 2125-AA79, 2125-AC85, 2125-AD06
Federal Transit Administration

49 CFR Part 654

[Docket No. 92-I]
RIN 2132-AA38


Suspension of Pre-employment Alcohol Testing Requirement

AGENCIES: Federal Aviation Administration, Federal Highway 
Administration, Federal Railroad Administration, Federal Transit 
Administration, DOT.

ACTION: Final rule.

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SUMMARY: The United States Court of Appeals for the Fourth Circuit 
recently issued a decision that vacated the pre-employment alcohol 
testing requirements of the Federal Highway Administration's alcohol 
testing rule. The Court remanded this provision to the agency for 
further proceedings consistent with its opinion. While the pre-
employment alcohol testing requirements of the Federal Transit 
Administration, Federal Railroad Administration, and Federal Aviation 
Administration were not before the Court in the case, the rationale of 
the Court's decision applies to these requirements as well. For these 
reasons, the Department is suspending the pre-employment alcohol 
testing requirements of each of the four operating administrations 
until further notice.
DATES: This rule is effective May 10, 1995, except for the amendment 49 
CFR 382.301 which is effective May 1, 1995.

FOR FURTHER INFORMATION CONTACT: For general questions, the Office of 
General Counsel (202-366-9306). For questions regarding a specific 
operating administration, please call the following people: FTA--Judy 
Meade (202) 366-2896, FRA--Lamar Allen (202) 366-0127, FHWA--Office of 
Motor Carrier Research and Standards (202) 366-1790, FAA--Bill McAndrew 
(202) 366-6710.

SUPPLEMENTARY INFORMATION: In its April 5, 1995, decision in American 
Trucking Associations, Inc. v. FHWA, the U.S. Court of Appeals for the 
Fourth Circuit vacated the FHWA's pre-employment alcohol testing rule 
and remanded it to the agency for further rulemaking consistent with 
its opinion. The rule implemented the Omnibus Transportation Employee 
Testing Act of 1991, which required pre-employment testing ``for use, 
in violation of law or Federal regulation, of alcohol or a controlled 
substance.'' The rule required commercial motor vehicle employers to 
administer pre-employment tests to a new driver. The test could occur 
at any time up to the performance of the driver's first safety-
sensitive activity and thus permitted administration of the test either 
before or after the driver was hired. In vacating and remanding the 
rule, the court made the following key findings:
     Giving employers the option of conducting ``pre-hire'' 
pre-employment tests did not satisfy the Act's requirement of testing 
for alcohol use ``in violation of law or Federal regulation'' since 
alcohol consumption prior to a job application is generally not 
illegal.
     If the agency believes that ``pre-employment'' testing 
also means ``pre-activity'' testing, then it should require the driver 
to be tested before the performance of each safety-sensitive activity, 
not just his first.
     The agency's explanation to the court that ``pre-
activity'' testing was permitted in order to reconcile the Act's pre-
employment testing requirement with its reference to unlawful alcohol 
use was not supported by the rulemaking record.
     On remand, the agency should consider whether ``pre-
employment'' could reasonably mean anything other than ``pre-hire.'' 
The court noted that it likely did not. The agency should also 
determine whether Congress intended pre-employment alcohol testing to 
apply only to the small group of drivers for whom prehire alcohol use 
might be illegal and estimate how many job applicants will fall into 
this group.
     The court rejected ATA's alternative argument that FHWA 
had the statutory authority to waive all drivers from the pre-
employment alcohol testing requirement and agreed with FHWA that such 
an all-encompassing waiver would effectively repeal the requirement and 
would thus be impermissibly broad.
    This decision did not vacate the pre-employment alcohol testing 
regulations of the other modes, which were not before the court, but 
these regulations are based on parallel statutory language, and the 
rationale of the court's decision applies to them as well.
    Because the Court's decision has vacated FHWA's pre-employment 
alcohol testing rule and created substantial uncertainty about the 
legal validity of the other operating administration's rules, the 
Department has decided to suspend all four pre-employment alcohol 
testing rules at this time. This suspension will be until further 
notice. Following its consideration of the issues involved on remand 
from the Court, the Department will decide what course of action to 
follow (e.g., withdrawal or amendment of the requirements, consistent 
with the Court's opinion). Such action would be taken through the 
rulemaking process.
    As a result of this action, large employers regulated by FHWA are 
not required to do pre-employment alcohol testing. Employers regulated 
by FTA, FAA, and FRA who have begun testing are not required to 
continue pre-employment alcohol testing. Employers who are scheduled to 
begin pre-employment alcohol testing at a later date (e.g., January 1, 
1996) will not be required to do so. Any employer may conduct pre-
employment alcohol testing under its own authority. Because of the 
Court's decision and this suspension, employers who wish to continue 
such testing may not claim a basis in Federal law or regulation for 
doing so, however. We would also emphasize that this action applies 
only to pre-employment alcohol testing. Drug testing, and other types 
of alcohol tests, are not affected.
    As announced by Secretary of Transportation Federico Pena before 
the Court's decision was issued, the Department is sending a proposed 
bill to [[Page 24766]] Congress that would make pre-employment alcohol 
testing discretionary with employers. This legislation is based on the 
Administration's policy of eliminating regulations that are unnecessary 
or too costly and burdensome. It would clarify that employers are not 
required to conduct such testing, but have the option of doing so under 
the authority of Federal law.

Regulatory Process Matters

DOT Regulatory Policies and Procedures

    The final rule is considered to be a nonsignificant rulemaking 
under DOT Regulatory Policies and Procedures, 44 FR 11034. It also is a 
nonsignificant rule for purposes of Executive Order 12886. The 
Department estimated, at the time it issued its final alcohol testing 
rules in February 1994, that pre-employment alcohol testing in the four 
operating administrations would cost approximately $28 million per 
year. Suspending the rules will proportionally save these expenditures 
during the period the suspension is in effect.

Executive Order 12612

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12612, and it has been 
determined that it does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment.

Immediate Effectiveness and Issuance Without Prior Notice and Comment

    Because it is necessary for the Department immediately to implement 
the Court's decision, because the Department does not have any 
discretion with respect to compliance with this decision, and because 
the Department must promptly resolve any legal uncertainty over the 
validity of pre-employment alcohol testing the decision has created, 
the Department finds that there is good cause to make this rule 
effective immediately. For the same reasons, the Department finds that 
prior notice and public comment would be impracticable, unnecessary, 
and contrary to the public interest.

FAA

List of Subjects in 14 CFR Part 121

    Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air 
transportation, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots, 
Safety, Transportation.

    For the reasons set out in the preamble, the Federal Aviation 
Administration amends 14 CFR part 121, as follows:

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

    1. The authority citation for part 121 continues to read as 
follows:

    Authority: 49 U.S.C. 1354(a), 1355, 1356, 1357, 1401, 1421-1430, 
1485, and 1502 (revised Pub. L. 102-143, October 28, 1991); 49 
U.S.C. 106(g) (revised, Pub. L. 97-449, January 12, 1983).

    2. In Appendix J, Sec. III, subsection A (``Pre-employment'') is 
suspended as of May 10, 1995.

    Issued in Washington, DC on May 3, 1995.
David R. Hinson,
Administrator, Federal Aviation Administration.

FRA

List of Subjects in 49 CFR Part 219

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

    For the reasons stated in the preamble, FRA amends 49 CFR Part 219, 
as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

    1. The authority for part 219 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20113, 20140, 
21301, 21304; Pub. L. 103-272 (July 5, 1994); and 49 CFR 1.49(m).

    2. In Sec. 219.501, paragraph (f) is added to read as follows:


Sec. 219.501  Pre-employment tests.

* * * * *
    (f) Notwithstanding any other provisions of this subpart, all 
provisions and requirements in this section pertaining to preemployment 
testing for alcohol are suspended as of May 10, 1995.

    Issued in Washington, DC on May 3, 1995.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.

FHWA

List of Subjects in 49 CFR Part 382

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

    For the reasons stated in the preamble, the FHWA amends 49 CFR Part 
382, as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

    1. The authority for part 382 continues to read as follows:

    Authority: 49 U.S.C. 31306; 49 U.S.C. app. 31201 et. seq.; 49 
U.S.C. 31502; 49 CFR 1.48.

    2. In Sec. 382.301, paragraph (e) is added to read as follows:


Sec. 382.301  Pre-employment testing.

    (e) Notwithstanding any other provisions of this subpart, all 
provisions and requirements in this section pertaining to preemployment 
testing for alcohol are suspended as of May 1, 1995.

    Issued in Washington, DC on May 3, 1995.
Rodney Slater,
Administrator, Federal Highway Administration.

FTA

List of Subjects in 49 CFR Part 654

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

    For the reasons set out in the preamble, the Federal Transit 
Administration amends 49 CFR Part 654, as follows:

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

    1. The authority for part 654 continues to read as follows:

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

    2. Section 654.31 is suspended as of May 10, 1995.

    Issued in Washington, DC on May 3, 1995.
Gordon J. Linton,
Administrator, Federal Transit Administration.
[FR Doc. 95-11522 Filed 5-8-95; 11:27 am]
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