[Federal Register Volume 66, Number 115 (Thursday, June 14, 2001)]
[Rules and Regulations]
[Pages 32248-32250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15072]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST-99-6578]
RIN 2105-AC49


Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs

AGENCY: Office of the Secretary, DOT.

ACTION: Request for comments on final rule.

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SUMMARY: On December 19, 2000, the Department of Transportation 
published its final rule on drug and alcohol testing procedures. One 
provision of this rule requires employers to inquire into the drug and 
alcohol testing records of applicants for employment. A group of 
maritime industry organizations requested that the Department provide a 
comment period on this provision. In response to this request, the 
Department is opening a comment period for 30 days.

DATES: Comments on 40 CFR 40.25 must be received by July 16, 2001.

ADDRESSES: Comments should be sent to Docket Clerk, Attn: Docket No. 
OST-99-6578, Department of Transportation, 400 7th Street, SW., Room 
PL401, Washington DC, 20590. Persons wishing their comments to be 
acknowledged should enclose a stamped, self-addressed postcard with 
their comments. The docket clerk will date stamp the postcard and 
return it to the sender. Comments may be reviewed at the above address 
from 9:00 a.m. through 5:30 p.m. Monday through Friday. Commenters may 
also submit their comments electronically.

[[Page 32249]]

Instructions for electronic submission may be found at the following 
web address: http://dms.dot.gov/submit/. The public may also review 
docketed comments electronically. The following web address provides 
instructions and access to the DOT electronic docket: http://dms.dot.gov/search/.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and Enforcement, 400 7th Street, SW., 
Room 10424, Washington DC, 20590, 202-366-9306 (voice), 202-366-9313 
(fax), or [email protected] (e-mail).

SUPPLEMENTARY INFORMATION: On December 19, 2000 (65 FR 79462), the 
Department published a final rule revising its drug and alcohol testing 
procedures (49 CFR Part 40). One provision of this rule, Sec. 40.25, 
requires employers to make inquiries about the drug and alcohol testing 
history of applicants for employment in jobs involving the performance 
of safety-sensitive functions. The employee must provide a written 
consent to the inquiry before it is made. The purpose of the provision 
is to ensure that new employers have the opportunity to learn about 
recent violations (within two years of the application) of the 
Department's rules. This information is important to allow employers to 
comply with the obligation to ensure that employees fully complete 
return-to-duty process requirements. The provision is based on a long-
standing provision of the Federal Motor Carrier Safety Administration's 
drug and alcohol testing rule (49 CFR Part 382).
    The history of this provision in the Part 40 rulemaking is as 
follows: In Sec. 40.329 of the Department's December 1999 notice of 
rulemaking (NPRM) on this subject, the Department proposed allowing 
medical review officers (MROs) to provide information on employees' 
drug test results to third-party employers under some circumstances. 
Most commenters, while agreeing that providing information to third-
party employers about violations of drug testing rules has value for 
safety purposes, found the specifics of the proposal problematical. 
Some urged the Department to find an alternative. Employing a provision 
like the Federal Motor Carrier Safety Administration provision 
mandating pre-employment inquiries about applicants' drug and alcohol 
testing history was one suggestion mentioned in comments (see 65 FR 
79475, December 19, 2000). An agency is entitled to respond to comments 
on a proposed rule by changing, adding, or deleting provisions. As 
explained in the preamble to the final rule, this is the course the 
Department chose in moving from the NPRM's Sec. 40.329 to the final 
rule's Sec. 40.25.
    Nevertheless, a group of maritime organizations requested that the 
Department open a comment period for the purpose of commenting on 
Sec. 40.25. While we believe the Department acted fully in accordance 
with all applicable rulemaking procedures, we will, in response to this 
request, open a comment period on the provision for 30 days. We are 
able to be responsive to this request because we have sufficient time, 
before the August 1, 2001, effective date of the revised Part 40, to 
consider comments and make any changes we believe to be appropriate 
without disrupting the implementation of the rule. We do not believe 
that a longer period is needed to provide comments on this one 
particular provision of the rule that we published on December 19, 
2001. Interested persons should therefore be able to comment readily 
within the 30-day period.
    The groups that requested the opportunity to comment on this 
provision of the final rule also requested that the Department suspend 
the implementation of Sec. 40.25. This provision goes into effect 
August 1, 2001. It is not necessary to suspend a provision that is not 
yet in effect.
    Please note that this opportunity for comment concerns only 
Sec. 40.25, and the Department is not accepting comments on other 
provisions of the rule at this time. For readers' convenience, we are 
reprinting below the text of Sec. 40.25:

Section 40.25  Must an employer check on the drug and alcohol testing 
record of employees it is intending to use to perform safety-sensitive 
duties?

    (a) Yes, as an employer, you must, after obtaining an employee's 
written consent, request the information about the employee listed in 
paragraph (b) of this section. This requirement applies only to 
employees seeking to begin performing safety-sensitive duties for you 
for the first time (i.e., a new hire, an employee transfers into a 
safety-sensitive position). If the employee refuses to provide this 
written consent, you must not permit the employee to perform safety-
sensitive functions.
    (b) You must request the information listed in this paragraph (b) 
from DOT-regulated employers who have employed the employee during any 
period during the two years before the date of the employee's 
application or transfer:
    (1) Alcohol tests with a result of 0.04 or higher alcohol 
concentration;
    (2) Verified positive drug tests;
    (3) Refusals to be tested (including verified adulterated or 
substituted drug test results);
    (4) Other violations of DOT agency drug and alcohol testing 
regulations; and
    (5) With respect to any employee who violated a DOT drug and 
alcohol regulation, documentation of the employee's successful 
completion of DOT return-to-duty requirements (including follow-up 
tests). If the previous employer does not have information about the 
return-to-duty process (e.g., an employer who did not hire an employee 
who tested positive on a pre-employment test), you must seek to obtain 
this information from the employee.
    (c) The information obtained from a previous employer includes any 
drug or alcohol test information obtained from previous employers under 
this section or other applicable DOT agency regulations.
    (d) If feasible, you must obtain and review this information before 
the employee first performs safety-sensitive functions. If this is not 
feasible, you must obtain and review the information as soon as 
possible. However, you must not permit the employee to perform safety-
sensitive functions after 30 days from the date on which the employee 
first performed safety-sensitive functions, unless you have obtained or 
made and documented a good faith effort to obtain this information.
    (e) If you obtain information that the employee has violated a DOT 
agency drug and alcohol regulation, you must not use the employee to 
perform safety-sensitive functions unless you also obtain information 
that the employee has subsequently complied with the return-to-duty 
requirements of Subpart O of this part and DOT agency drug and alcohol 
regulations.
    (f) You must provide to each of the employers from whom you request 
information under paragraph (b) of this section written consent for the 
release of the information cited in paragraph (a) of this section.
    (g) The release of information under this section must be in any 
written form (e.g., fax, e-mail, letter) that ensures confidentiality. 
As the previous employer, you must maintain a written record of the 
information released, including the date, the party to whom it was 
released, and a summary of the information provided.
    (h) If you are an employer from whom information is requested under 
paragraph (b) of this section, you must, after reviewing the employee's 
specific, written consent, immediately release the

[[Page 32250]]

requested information to the employer making the inquiry.
    (i) As the employer requesting the information required under this 
section, you must maintain a written, confidential record of the 
information you obtain or of the good faith efforts you made to obtain 
the information. You must retain this information for three years from 
the date of the employee's first performance of safety-sensitive duties 
for you.
    (j) As the employer, you must also ask the employee whether he or 
she has tested positive, or refused to test, on any pre-employment drug 
or alcohol test administered by an employer to which the employee 
applied for, but did not obtain, safety-sensitive transportation work 
covered by DOT agency drug and alcohol testing rules during the past 
two years. If the employee admits that he or she had a positive test or 
a refusal to test, you must not use the employee to perform safety-
sensitive functions for you, until and unless the employee documents 
successful completion of the return-to-duty process (see paragraphs 
(b)(5) and (e) of this section).

Regulatory Analyses and Notices

    The Department has previously considered all of 49 CFR Part 40 with 
respect to rulemaking process requirements (see 65 FR 79516-79518; 
December 19, 2000). The proposed rule, analyses concerning it, and the 
comments on it can be found in the Department's docket or on the 
Department's Dockets Management System (DMS) web site. The address for 
the Dockets office and the DMS web site are listed under Addresses 
above. This action is simply a response to an industry request for, 
essentially, the reopening of a comment period; the Department does not 
propose to take any new action through this document that would be 
subject to statutory or Executive Order requirements concerning the 
regulatory process.

    Issued this 11th Day of June, 2001, at Washington DC.
Kenneth C. Edgell,
Acting Director, Office of Drug and Alcohol Policy and Compliance.
[FR Doc. 01-15072 Filed 6-12-01; 10:41 am]
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