[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 4910-62-P