[Federal Register Volume 66, Number 83 (Monday, April 30, 2001)]
[Proposed Rules]
[Pages 21492-21494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9409]



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Part III





Department of Transportation





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Federal Aviation Administration



14 CFR Part 121

Coast Guard

46 CFR Parts 4, 5, and 16



Research and Special Programs Administration

49 CFR Part 199



Federal Railroad Administration

49 CFR Part 219



Federal Motor Carrier Safety Administration

49 CFR Part 382



Federal Transit Administration

49 CFR Parts 653, 654, and 655



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Workplace Drug and Alcohol Testing Programs; Amendments to DOT Agency 
Rules Conforming to Department of Transportation Final Rule; Proposed 
Rules

  Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

Coast Guard

46 CFR Parts 4, 5, and 16

Research and Special Programs Administration

49 CFR Part 199

Federal Railroad Administration

49 CFR Part 219

Federal Motor Carrier Safety Administration

49 CFR Part 382

Federal Transit Administration

49 CFR Parts 653, 654, and 655

RINs 2105-AC49, 2120-AH15, 2115-AG00, 2137-AD55, 2130-AB43, 2126-AA58, 
2132-AA71


Transportation Workplace Drug and Alcohol Testing Programs; 
Amendments to DOT Agency Rules Conforming to Department of 
Transportation Final Rule

AGENCIES: Federal Aviation Administration, Coast Guard, 
Research and Special Programs Administration, Federal Railroad 
Administration, Federal Motor Carrier Safety Administration; Federal 
Transit Administration; Office of the Secretary, DOT.

ACTION: Notices of Proposed Rulemaking; Common Preamble.

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SUMMARY: In a rule published December 19, 2000, the Department 
of Transportation has revised its drug and alcohol testing procedures 
regulation. The purposes of these proposed amendments is to make DOT 
agency drug and alcohol testing regulations consistent with the revised 
testing procedures regulation, avoid duplication and inconsistency, and 
make certain other changes to update and clarify the operating 
administration rules.

DATES: Comments should be submitted by June 14, 2001, except 
comments on the Coast Guard notice of proposed rulemaking, which should 
be submitted by June 29, 2001. Late-filed comments will be considered 
to the extent practicable.

ADDRESSES: See each individual DOT agency proposed rule for 
information on the docket number and address to use when commenting on 
each agency's proposed rule.

FOR FURTHER INFORMATION CONTACT: For information concerning the 
relationship of the proposed DOT agency amendments to the revised 49 
CFR Part 40, Robert C. Ashby (400 7th St., SW., Washington DC, 20590; 
202-366-9310). For information on the individual DOT agency proposed 
rules, see the For Further Information Contact persons listed 
in each DOT agency proposed rule.

SUPPLEMENTARY INFORMATION: On December 19, 2000 (65 FR 79462), 
the Department of Transportation published a comprehensive revision to 
our drug and alcohol testing procedural rules (49 CFR part 40). The new 
Part 40 makes numerous changes in the way that drug and alcohol testing 
will be conducted in the future. While some provisions of the new rules 
will be made effective more quickly, as amendments to the existing Part 
40, the entire revised part is scheduled to go into effect on August 1, 
2001.
    Part 40 is one element of a Department-wide set of regulations 
designed to deter and detect the use of illegal drugs and the misuse of 
alcohol by employees performing safety-sensitive transportation 
functions. It is important that the six DOT agency rules that cover 
specific transportation industries be consistent with the revised Part 
40, to avoid duplication, conflict, or confusion among DOT regulatory 
requirements. For these reasons, we are proposing amendments to each of 
the six DOT agency drug and alcohol testing regulations connected to 
Part 40. We intend to issue final versions of these ``conforming 
amendments'' in time to be effective on August 1, 2001, the same date 
that the revised Part 40 takes effect.
    There are several actions that all or some of the DOT agencies 
propose to take in order to ensure consistency with the revised Part 
40. The next section of this preamble discusses each of these items in 
turn. In addition, there are some provisions of the proposed rules that 
are DOT agency-specific. These items are discussed in a subsequent 
section of the preamble.

Common Proposals

Substance Abuse Professionals and the Return-to-Duty Process

    Currently, most of the DOT agency drug and alcohol testing rules 
have their own similar, but not identical, provisions concerning the 
return-to-duty (RTD) process for employees who have tested positive or 
otherwise violated the rules. These provisions also include (with the 
exception of the Coast Guard) material on the qualifications and role 
of the substance abuse professional (SAP).
    The new Part 40 centralizes the material concerning the RTD process 
and the qualifications and role of SAPs. Among the provisions in new 
Part 40 are requirements for the qualification and training of SAPs, 
requirements for follow-up tests in all cases of violations, and 
clarification of the scope of the RTD process (i.e., that it applies 
following any violation, including a violation arising from a pre-
employment test; that the RTD requirements follow an employee to 
subsequent employers).
    To avoid potential duplication and inconsistency, we are proposing 
to remove RTD and SAP provisions from the six DOT agency rules. All six 
DOT agency programs would use the RTD and SAP provisions of Part 40 
beginning August 1, 2001.

Pre-Employment Alcohol Testing

    For several years, as the result of a court decision and subsequent 
legislation (Sec. 342 of the National Highway Systems Act of 1995), 
pre-employment alcohol testing requirements in the FTA, FMCSA, FRA, and 
FAA rules have been suspended. (Parallel pre-employment alcohol testing 
requirements did not exist in the RSPA and Coast Guard rules.) Section 
342 deleted former provisions of the Omnibus Transportation Employee 
Testing Act of 1991 requiring pre-employment alcohol testing and 
substituted a sentence providing that ``The [Secretary of 
Transportation's] regulations shall permit [employers] to conduct pre-
employment testing of such employees for the use of alcohol.''
    The practical effect of the suspension of pre-employment alcohol 
testing requirements has been to give employers the discretion to 
conduct DOT pre-employment alcohol testing. However, the Department has 
never amended its rules to specifically reflect the legislation. In 
these proposed rules, we would formalize the existing situation and 
make the requirements consistent throughout all DOT agency rules. That 
is, in all six DOT agency programs, the proposed rules would authorize, 
but not require, employers to conduct pre-employment alcohol testing. 
If an employer chose to conduct pre-employment alcohol testing under 
Federal authority, the employer would have to conduct the testing in 
accordance with all Part 40 requirements.

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Split Specimen Testing

    At the present time, FTA, FMCSA, FRA, and FAA are required by 
statute to collect split specimens for drug testing. Employees have the 
right, within 72 hours of being notified of a verified positive test, 
to request a test of the split specimen at a second HHS-certified 
laboratory. The statute in question does not apply to the Coast Guard 
and RSPA programs, in which split specimen testing is currently 
discretionary with employers.
    As noted in the Part 40 rulemaking, this situation has caused some 
confusion among employers, employees, and service agents. Consequently, 
the revised Part 40 requires split specimen testing for all DOT 
collections. In these proposed rules, RSPA and Coast Guard propose 
conforming to the Part 40 requirement to use split specimen collections 
in all cases. The split specimen testing rules of Part 40 (including 
their application to validity testing) would apply to all DOT 
collections, including those under RSPA and Coast Guard rules. RSPA 
would remove a provision allowing requests for split specimens to be 
made within 60 days, which is inconsistent with the 72-hour provision 
of Part 40 and the other operating administration rules.

Stand-Down Waivers

    The new Part 40 permits employers to petition DOT agencies for a 
waiver allowing the employer to stand employees down following a report 
of a laboratory confirmed positive test or refusal, pending the outcome 
of the verification process. The stand-down provision contains the 
substantive requirements for obtaining a waiver, but does not include 
specific waiver procedures.
    Each of the operating administrations has, or will add, its own 
process for granting waivers from its regulations. In each of today's 
proposed rules, the DOT agency involved proposes to connect its own 
waiver process with the stand-down waiver provision of new Part 40. 
Doing so will inform employers how they should frame stand-down waiver 
requests and to whom the requests should be sent.

Definitions

    The revised Part 40 includes a number of new or altered definitions 
of terms. Examples of new terms are affiliate, adulterated specimen, 
consortium/third-party administrator (C/TPA), continuing education, 
designated employer representative, dilute specimen, initial and 
confirmatory validity test, error correction training, qualification 
and refresher training, service agent, stand-down, and substituted 
specimen. Other terms have altered definitions (e.g., employer, which 
now specifies that service agents are not employers).
    In the interest of consistency and the convenience of having a 
definition in only one place, the DOT agencies are proposing to delete 
definitions of terms that duplicate terms defined in Part 40 (except 
where differences or greater specificity are needed in the agency 
rules). The DOT agency rules will make use of the terms defined in Part 
40, and in some cases would be amended to use those terms.

Qualifications and Training

    The revised Part 40 contains new or modified qualification and 
training requirements for testing personnel, such as collectors, breath 
alcohol technicians (BATs) and screening test technicians (STTs), 
medical review officers (MROs), and SAPs. These include requirements 
for qualification training, refresher training, continuing education, 
and error correction training.
    The DOT agency rules do not need to retain provisions related to 
the qualifications and training of these personnel that are now covered 
in Part 40. Therefore, these proposed rules would delete any references 
to the qualifications and training of collectors, BATs and STTs, MROs, 
and SAPs.

Enforcement Matters

    Each of the DOT agency rules incorporates Part 40 by reference. A 
violation of a Part 40 provision automatically becomes a violation of 
the DOT agency rule, and is subject to the same kinds of sanctions as 
other violations of the agency's rules. In some cases, the DOT agencies 
have predetermined sanctions for different kinds of rule violations 
(e.g., a ``penalty table''). These agencies, as part of their 
proposed rules, will work Part 40 violations into their sanctions 
systems.
    Each of the proposed rules would make clear that a violation of 
Part 40 is a violation of DOT agency rules. In some cases, existing DOT 
agency rule language says that in the event of inconsistency or 
conflict between Part 40 and the DOT agency rule, the latter controls. 
This language has created confusion about the enforceability of Part 
40, and the proposed rules would delete it. Where there is a difference 
between Part 40 and another DOT agency rule (i.e., one required 
by a special circumstance of a particular industry or agency program), 
the agency rule will state the difference explicitly.

Role of C/TPAs, MROs, and Service Agents

    The new Part 40 makes a significant change in the role of C/TPAs, 
permitting them, for the first time, to transmit some test results and 
other information from MROs to employers and persons designated by an 
employer, as permitted by Part 40, to receive information on behalf of 
a specified employer. Some provisions of DOT agency rules are 
inconsistent with this new provision, and these proposed rules would 
change such provisions to be consistent with new Part 40. The new Part 
40 also elaborates roles and responsibilities of service agents to a 
greater degree than the present Part 40, and the proposed rules, where 
necessary, alter DOT agency rules to be consistent with these 
provisions.
    The new Part 40 also provides more details concerning the duties 
and responsibilities of MROs (e.g., in the validity testing 
process, with respect to conflicts of interest and supervision of 
staff). To the extent that any DOT agency rule has provisions that are 
inconsistent or overlapping with these provisions, the agency proposals 
would make appropriate changes to ensure consistency.

Employer Checks on Test Results of Applicants and Employees

    Previously, only FMCSA rules had a provision requiring employees to 
check on the previous drug and alcohol testing results of applicants 
for jobs involving safety-sensitive duties. The new Part 40 applies a 
requirement of this kind to all the DOT agency programs. The Part 40 
provision is not identical to the current FMCSA rule. For example, the 
new provision requires employers to ask applicants whether there were 
any situations in which they tested positive on a pre-employment test 
for an employer that subsequently did not hire them. To ensure 
consistency, FMCSA would delete its current pre-employment check 
provision. The Part 40 provision would apply to employers by virtue of 
the incorporation of Part 40 in the DOT agency regulations. We seek 
comment on whether any additional reference to the Part 40 provision is 
needed in the DOT agency rules.

C/TPA Reports of Refusals

    Section 40.355(i) of the revised Part 40 provides that, as a 
general matter, service agents, including C/TPAs, must not make a 
determination that an employee has refused a drug or alcohol test. 
Section 40.355(j)(1) creates an exception to this general prohibition, 
permitting a service agent to make a

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determination that an employee has refused a drug or alcohol test if 
``You are authorized by a DOT agency regulation to do so, you schedule 
a required test for an owner-operator, and the individual fails to 
appear for the test without a legitimate reason.''
    This section was drafted in response to a situation that sometimes 
occurs, in which a C/TPA directs an owner-operator or other self-
employed individual to appear for a random or other test and the 
individual is a ``no show.'' Because this individual is self-employed, 
there is usually no party (like an employer in a larger business) who 
can determine that the individual has refused to test and cause the 
individual to be removed from performing safety-sensitive functions. 
Section 40.355(j)(1) contemplates that, where DOT agency regulations 
permit, C/TPAs could make a refusal determination in this situation, 
since there basically is no one else in position to do it.
    At present, DOT agency regulations do not address this issue. In 
some cases (e.g., FRA, FTA), the provision is irrelevant, 
because these agencies do not regulate any owner-operators. The 
Department seeks comment, however, on whether DOT agencies that do 
regulate owner-operators or other self-employed safety-sensitive 
personnel should add a provision to their final conforming rules 
authorizing this action by C/TPAs. DOT agency rule provisions could 
also permit or require C/TPAs, in this situation, to report the 
refusals to the applicable DOT agency. The Department seeks comment on 
whether such a reporting authorization or requirement is advisable. 
Another alternative would be for Part 40 to authorize reporting of this 
kind on a Department-wide basis, obviating the need for amendments to 
individual operating administration rules.

Rulemaking Process Matters

    In addition to these common provisions of the NPRMs, the individual 
DOT agencies, in some cases, have agency-specific provisions they wish 
to propose. These agency-specific provisions are discussed in the 
preambles to each DOT agency rule.
    Each of the DOT agencies involved with this rulemaking will be 
reviewing one another's dockets, so that suggestions that may have been 
made in response to only one agency's proposed rule will be available 
to all the agencies. Any or all of the six agencies may make changes to 
their proposed rules based on comments that came into the docket of 
another of the agencies. In addition, in some cases one agency has 
proposed an idea (e.g., an FMCSA proposal to issue notices 
concerning random testing rates only when there is a change, rather 
than every year) that, after reviewing the dockets, other agencies may 
choose to adopt.

Regulatory Analyses and Notices

    These proposed rules have been designated as non-significant under 
Executive Order 12886 and the Department of Transportation's Regulatory 
Policies and Procedures. They are non-significant because they merely 
make conforming changes to the revised 49 CFR Part 40, which has 
already been subject to extensive comment and analysis. The proposed 
changes would not have any incremental economic impacts on their own. 
The economic impacts of the underlying Part 40 changes were analyzed in 
connection with the Part 40 rulemaking.
    Because these proposals have no incremental economic impacts, the 
Department certifies, under the Regulatory Flexibility Act, that these 
proposals, if adopted, would not have a significant economic impact on 
a substantial number of small entities. These proposals likewise have 
no incremental Federalism impacts for purposes of Executive Order 
13132, so no further analysis is needed for Federalism purposes. All 
the information collection requirements of Part 40 have been analyzed 
and approved by OMB. These proposed rules would impose no information 
collection requirements that have not already been reviewed in context 
of the Part 40 rulemaking, so no further Paperwork Reduction Act review 
is necessary.
    There are a number of other Executive Orders that can affect 
rulemakings. These include Executive Orders 13084 (Consultation and 
Coordination with Indian Tribal Governments), 12988 (Civil Justice 
Reform), 12875 (Enhancing the Intergovernmental Partnership), 12630 
(Governmental Actions and Interference with Constitutionally Protected 
Property Rights), 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations), 13045 
(Protection of Children from Environmental Health Risks and Safety 
Risks), and 12889 (Implementation of North American Free Trade 
Agreement). We have considered these Executive Orders in the context of 
this NPRM, and we believe that the proposed rules do not directly 
affect the matters that the Executive Orders cover.

    Issued this 9th day of April 2001, at Washington, D.C.
 Jon L. Jordan,
Federal Air Surgeon, Federal Aviation Administration.
R.C. North,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety 
and Environmental Protection.
 Stacy L. Gerard,
Associate Administrator for Pipeline Safety, Research and Special 
Programs Administration.
 S. Mark Lindsey,
Acting Deputy Administrator, Federal Railroad Administration.
 Julie Anna Cirillo,
Acting Deputy Administrator, Federal Motor Carrier Safety 
Administration.
 Hiram J. Walker,
Acting Deputy Administrator, Federal Transit Administration.
 Kenneth C. Edgell,
Acting Director, Office of Drug and Alcohol Policy and Compliance, 
Office of the Secretary.
[FR Doc. 01-9409 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-62-U