[Federal Register Volume 66, Number 154 (Thursday, August 9, 2001)]
[Rules and Regulations]
[Pages 41955-41958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19230]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

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

[Docket OST-99-6578]
RIN 2105-AD02, 2120-AH15, 2115-AG00, 2137-AD55, 2130-AB43, 2126-AA58, 
2132-AA71


Transportation Workplace Drug and Alcohol Testing Programs: 
Response to Comments on Pre-Employment Inquiry Requirement; Common 
Preamble for DOT Agency Conforming Rules

AGENCY: Office of the Secretary, DOT.

SUMMARY: This document does two things. First, it responds to comments 
by maritime industry groups and others concerning the pre-employment 
inquiry provision of the Department-wide

[[Page 41956]]

regulations on transportation workplace drug and alcohol testing 
procedures (Part 40 rule). The Department recently opened a 30-day 
comment period on that issue. Second, this document serves as a 
``common preamble'' discussing issues raised with respect to the Part 
40 rule in comments to DOT agency proposals to amend their drug and 
alcohol testing rules to conform to the Part 40 rule.

ADDRESSES: The public may also review the docketed material referred to 
in this document electronically. The following web address provides 
instructions and access to the DOT electronic docket: http://dms.dot.gov/search/.

FOR FURTHER INFORMATION CONTACT: Kenneth C. Edgell, Acting Director, 
Office of Drug and Alcohol Policy and Compliance (ODAPC), 400 7th 
Street, SW., Room 10403, Washington, DC 20590, 202-366-3784 (voice), 
202-366-3897 (fax), or [email protected] (e-mail); or 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:

Comments on Sec. 40.25

    The Department included a provision (Sec. 40.25) in the final 49 
CFR Part 40 rule that requires employers in all covered industries to 
seek information about the DOT-mandated drug and alcohol testing 
history of applicants for safety-sensitive work. We did so because it 
is very important, as a matter of safety, for employers to know whether 
new employees they are hiring have complied with drug and alcohol 
testing requirements, especially return-to-duty requirements (see 65 FR 
79486; December 19, 2000). In the absence of this information, 
employers cannot know whether an individual is eligible, under DOT 
rules, to perform safety-sensitive functions. Employers cannot know 
whether they have an obligation to perform additional follow-up tests.
    In industries that often have high employee turnover, such as some 
parts of the motor carrier and maritime industries, having this 
information is particularly important. If an employee tests positive 
for Employer A, quits or is fired, and then applies for work with 
Employer B, without having completed the mandatory return-to-duty 
process, Employer B could unknowingly allow the employee to perform 
safety-sensitive functions despite being prohibited from doing so by 
DOT rules. This is a situation in which ignorance, far from being 
bliss, becomes a threat to transportation safety. It also places 
Employer B in noncompliance with DOT rules.
    Several months after the publication of the final rule, in June 
2001, the Department received a letter from several maritime industry 
organizations objecting to the application of this requirement to the 
maritime industry. Because the text of Sec. 40.25 had not been part of 
the December 1999 notice of proposed rulemaking for Part 40, the 
organizations requested a comment period on the section. While the 
Department believes that the adoption of this provision met all 
rulemaking process requirements, we decided, in the interest of 
responsiveness to the concerns of the maritime industry organizations, 
to open a 30-day comment period on the issue (66 FR 32248; June 14, 
2001). By the July 16, 2001, comment closing date, we had received 48 
comments on the section. This includes a number of comments to the 
Coast Guard's proposed conforming rule that also mentioned this issue, 
which we have added to this docket. All but four of these letters were 
from employers and other organizations in the maritime industry.
    Generally, maritime industry commenters opposed the provision 
because, in their view, it created too heavy an administrative and cost 
burden for them. They said that the requirement was incompatible with 
the circumstances under which small maritime businesses operate. In 
particular, commenters said, their businesses have high employee 
turnover, and must often replace employees on very short notice. 
Commenters expressed the concern that the rule would delay hiring of 
workers while pre-employment inquiries were being made, resulting in 
vessels being shorthanded. In addition, some comments mentioned that 
they get employees through union hiring halls. If the hiring halls were 
unable to have performed the pre-employment inquiries on behalf of the 
employers, this would also lead to untenable delays in bringing new 
employees on board.
    Fortunately, the Department's rule, as presently written, 
accommodates both these concerns. Section 40.25(c) provides that ``if 
feasible,'' the employer must obtain the information before the 
employee begins performance of safety-sensitive functions. If this is 
not feasible--as it may well not be in the rapid replacement scenario 
mentioned in comments--then the employer may use the employee for 30 
days in safety-sensitive functions before obtaining either the 
information concerning the employee or documenting the employer's good 
faith effort to obtain it. This requirement does not, in any way, delay 
bringing new employees on board when needed, even in a situation where 
the employee must be used quickly.
    One comment suggested that, even given this 30-day window, the 
provision could be troublesome if a company found out, 30 days after 
bringing an employee on board a vessel, that the individual was out of 
compliance and had to replace him or her. We suggest that it would be 
even more troublesome for the employer to learn this information and 
not replace such an individual. Deliberately avoiding steps that could 
bring this information to the attention of the employer would be 
irresponsible from a safety point of view.
    The commenters' concerns about the role of hiring halls and other 
third parties involved in the drug and alcohol testing program (e.g., 
consortia and third party administrators (C/TPAs)) are also answered by 
the existing rule. Under the final Part 40 rule, C/TPAs are already 
permitted to perform the pre-employment inquiry function (see Appendix 
F). In the maritime and motor carrier industries, hiring halls already 
perform a number of drug and alcohol testing functions for employers 
(e.g., pre-employment testing). In the Department's view, hiring halls 
that perform drug and alcohol testing functions are properly viewed as 
C/TPAs. Consequently, if a hiring hall or other C/TPA has an 
arrangement that will ensure compliance with Sec. 40.25, then it is 
consistent with Part 40 for the C/TPA or hiring hall to perform this 
function on behalf of the individual employers. In such a situation, 
the third party could make the inquiries and maintain the needed 
documentation, on which employers could rely when they obtain employees 
covered by the third party's Sec. 40.25 program.
    With respect to costs and administrative burdens, some comments 
asserted that the Department had failed to analyze the cost or 
paperwork burdens of the pre-employment inquiry requirement. This 
assertion is incorrect. The Department's Paperwork Reduction Act 
analysis of the December 2000 final rule, which the Office of 
Management and Budget approved and which we have placed in the docket 
for the public's information, specifically considered the costs and 
paperwork provisions of applying this provision to all covered 
transportation industries. (Previously, this requirement had applied 
only in the motor carrier industry.) The cost and burden information 
pertaining to the maritime

[[Page 41957]]

industry is the following: An estimated 69,600 new employees each year 
would be subject to the pre-employment inquiry requirement. This figure 
is derived from Coast Guard data about the employment practices of the 
maritime industry, and includes both licensed and unlicensed personnel. 
Given this number of employees that would be subject in a year, the 
Department calculated that the combined paperwork burden for new 
employers and previous employers in the maritime industry would be 
12,821 annual burden hours. Using guidelines developed by the 
Association of Records Managers and Administrators and employee 
compensation hourly costs developed by the Department of Labor's Bureau 
of Labor Statistics, this would lead to an added annual cost of 
$256,430 to the maritime industry.
    These costs and burdens are not, in the Department's view, 
unreasonably high. Even if the cost of implementing the provision were 
a number of times higher than this estimate, it would still be within 
reasonable bounds. The motor carrier industry, like the maritime 
industry, has many small businesses and high employee turnover, and it 
has implemented this provision for a number of years without suffering 
the dire consequences envisioned in some maritime industry comments.
    Many comments made general assertions that the costs and burdens of 
carrying out Sec. 40.25 would be too high. For the most part, however, 
commenters did not provide data from which either they or the 
Department could quantify this asserted burden. Two comments made high 
estimates of the costs of the provision based on numbers apparently 
reflecting costs of background checks performed by professional 
background check companies. Section 40.25 requires neither ``background 
checks'' nor the services of such companies. It simply requires 
employers to seek information about previous DOT drug and alcohol test 
results.
    Two comments asserted that the provision should not be adopted 
because the motor carrier industry has not fully complied with the 
similar FMCSA provision. In the large, diverse industries that the 
Department regulates for safety, there is doubtless less than perfect 
compliance with this and other regulatory requirements. That is why 
FMCSA, the Coast Guard, and other DOT agencies have inspectors who 
check to see if employers are meeting their obligations. The potential 
for some noncompliance does not invalidate the rationale for a 
requirement, however.
    Commenters also suggested that the Coast Guard could develop a 
system for responding to inquiries about previous positive tests, based 
on test result information required to be submitted to the Coast Guard. 
The decision on whether it would be feasible to develop such a system 
rests with the Coast Guard. However, the Department does not regard it 
as essential for the Coast Guard to have such a system now, or in the 
future, in order for Sec. 40.25 to apply to the maritime industry.
    Some industry comments argued that the pre-employment inquiries 
requirement is illegal, a violation of the Americans with Disabilities 
Act (ADA), unconstitutional, discriminatory (because it seeks 
information only abut prior DOT-mandated drug and alcohol tests), or a 
draconian invasion of privacy. We would point out that inquiries under 
this provision are made only on the basis of the employee's written 
consent, which goes far to obviate privacy concerns. Obtaining 
employees' consent to gather information about whether employees have 
complied with DOT safety rules in no way violates the ADA. In its 
comment, the Equal Employment Opportunity Commission, the Federal 
agency charged with implementing the ADA in employment matters, agrees 
that the provision is consistent with the ADA.
    Only DOT drug and alcohol tests have consequences for regulated 
employers (such as the required completion of the return-to-duty 
process before further performance of safety-sensitive functions); it 
is, therefore, rational to request only information concerning these 
tests. To the best of the Department's knowledge, this provision has 
never been legally challenged in the several years it has applied to 
the motor carrier industry, including on the ground that the 
consequence of an employee's decision to decline to provide consent to 
the inquiry is the employer's inability to use the employee for safety-
sensitive functions.
    One commenter said that it should be sufficient to have a new hire 
pass a pre-employment test and expressed doubt about the value of the 
return-to-duty process. The Department is convinced of the safety 
necessity of a strong return-to-duty process, including evaluation by a 
substance abuse professional (SAP), education or treatment, 
reevaluation by the SAP, a return-to-duty test, and follow-up tests. 
Permitting an employee to test positive one day, ignore return-to-duty 
requirements, apply for a job with another company the next day, and 
pass a pre-employment test the day after and start work in a safety-
sensitive position, undermines not only the Department's drug testing 
program but, more importantly, transportation safety. It is for these 
safety reasons--and not, as some comments asserted, a mere desire for 
uniformity among transportation industries--that the Department views 
the pre-employment inquiry requirement as vital.
    For these reasons, the Department concludes that the comments on 
this provision do not justify any change in Sec. 40.25, which will go 
into effect as scheduled for all the transportation industries. We 
would also point out that we received a few comments from non-maritime 
industry sources that supported the provision and suggested that the 
cost impacts were minimal.

``Common Preamble'': Comments to DOT Agency Conforming Rules

    At the time the Department's agencies published their proposals to 
make their rules consistent with the new Part 40, the Department 
published a common preamble discussing certain common issues (66 FR 
21492, April 30, 2001). For the most part, the individual DOT agency 
preambles to their final ``conforming rules'' address the issues 
mentioned in this common preamble. However, comments to operating 
administration dockets raised some issues that cut across DOT agency 
lines or are otherwise pertinent to Part 40 itself. The Department is 
responding to these comments in this portion of the preamble.
    The Department had hoped to publish the six conforming rules 
together, on or before August 1, 2001. However, some of the operating 
administration rules remain in the final stages of coordination. We 
expect to publish them very shortly. However, with respect to any of 
DOT agencies whose rules have not been published by this date, the 
Department intends that new Part 40 control in the event of any 
inconsistency between Part 40 and the unmodified DOT agency rules 
during the brief time between August 1 and the effective dates of the 
amended DOT agency rules.
    One testing industry association requested that each of the six DOT 
agency regulations authorize service agents to make refusal 
determinations when owner-operators fail to appear for a test (see 
Sec. 40.355(j)(1)). The Department believes it is reasonable for 
service agents to make refusal determinations in this instance. For 
simplicity's sake, we are amending Part 40 to make this change, rather 
than amending six modal regulations. The amendment (published with the 
Department's technical amendments to Part 40) will remove the language 
making authorization by a DOT agency

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regulation a prerequisite to a service agent's refusal determination in 
this case. This means that Sec. 40.355(j)(1) will authorize service 
agents to make refusal determinations with respect to owner-operators 
and other self-employed individuals when the service agent has 
scheduled the test and the individual fails to appear for it without a 
legitimate reason.
    This commenter also asked that all DOT agencies require violations 
of DOT agency drug and alcohol testing rules to be reported to the DOT 
agency in question. While this may be feasible for some modes (e.g., 
the Coast Guard, which has adopted such a provision), it may be more 
difficult for others (e.g., FMCSA, given the very large size of the 
industry and work force involved). The Department is not adopting an 
across-the-board response to this comment, but individual operating 
administrations will continue to consider if and when it is appropriate 
to adopt such a requirement.
    This commenter also suggested that where the same individual acts 
as both an medical review officer (MRO) and substance abuse 
professional (SAP), he or she meet the training requirements for both 
professions. This is, indeed, the effect of the training requirements 
in the revised Part 40, and no regulatory change is needed on this 
point.
    The same commenter also recommended that all DOT agency rules 
require proof of having met pre-employment testing requirements before 
an individual is enrolled in a random testing program. The mandate of 
DOT rules is that someone meet applicable pre-employment testing 
requirements before he or she begins performing safety-sensitive 
functions. As long as employers meet this requirement, the Department's 
safety objectives for pre-employment testing have been met. An employer 
does not violate our rules if an employee is part of a random testing 
pool without proof of having complied with pre-employment requirements, 
as long as the employee does not perform safety-sensitive functions 
without having complied. Of course, employers must be able to document 
that employees whom they use for safety-sensitive functions in fact 
have met applicable pre-employment testing requirements. We do not 
believe that any further across-the-board action is needed in this area 
at this time.
    Many of the same maritime industry commenters who objected to 
Sec. 40.25 in their comments to the Coast Guard NPRM also objected to 
the collector training requirements of Sec. 40.33. As noted, these 
comments have been placed in the Department's Part 40 docket. 
Generally, they said that the requirements were too burdensome and 
costly for the maritime industry, especially small employers. Unlike 
Sec. 40.25, however, these training requirements of Part 40 were not 
the subject of a comment period at this time. Many commenters did speak 
to these provisions in response to the Department's December 1999 Part 
40 NPRM, and the Department responded to these comments in the December 
2000 final rule. The Department is not considering further changes to 
Sec. 40.33 at present. Indeed, we believe that, in the maritime 
industry, as elsewhere, well-trained collectors are essential for the 
operation of a fair and accurate drug testing program, which in turn is 
a key part of the Department's safety efforts.
    Old Part 40 required that a laboratory must have qualified 
personnel available to testify in an administrative or disciplinary 
proceeding based on a positive test of the employee's specimen [see 
former Sec. 40.29(n)(6)]. The Department never interpreted this 
provision as permitting a party to a proceeding to require the personal 
attendance at a hearing of one or more laboratory personnel or that the 
laboratory or employer must pay for the time or transportation of 
laboratory personnel involved in proceedings.
    When the Department revised Part 40, we deleted this provision, in 
the belief that the discovery process in administrative and judicial 
proceedings was sufficient to obtain all needed relevant testimony. One 
comment from a union docket raised the issue of this deletion, 
advocating that the deleted language should be put back into the rule 
and that laboratories and employers should have to produce and pay for 
laboratory witnesses in proceedings. A comment from another union 
raised a broader, but related, issue. It said that, based on experience 
gained in litigation concerning errors in the validity testing process 
at one laboratory, it believed that employees should always have access 
to all relevant documentation about laboratory procedures. According to 
the comment,

    Such relevant evidence includes but is not limited to: 
Laboratory quality control records, laboratory performance records 
on proficiency testing, results of laboratory inspections and 
critiques, all laboratory internal and external quality control 
data, instrument maintenance and corrective action documentation, 
instrument and software instruction manuals, as well as laboratory 
Standard Operating Procedures.

The commenter stressed that this information should be available to all 
employees subject to testing under DOT regulations, regardless of 
whether the employee had access to specific administrative adjudication 
proceedings (e.g., grievance procedures, certificate actions). The 
commenter believes that at least some of this information should be 
made available to unions as organizations, as distinct from individual 
employees.
    As noted above, many employees have access to discovery 
proceedings, through which they can gain access to a wide variety of 
information. As the union making the comment noted, it had conducted 
extensive discovery in one prominent substitution case. Nothing in the 
Department's rules protects laboratory data from such discovery. Even 
where administrative proceedings like FAA certificate actions or FRA 
locomotive engineer proceedings are not involved in a case, individuals 
who file cases in state or Federal court also have access to discovery. 
However, where an employee may not have ready access to discovery 
rules, access to potentially relevant laboratory data does potentially 
raise issues of fairness.
    Compiling and copying the often voluminous information involved 
(which in some cases can run into thousands of pages) can be a 
significant cost and administrative burden. It could also be burdensome 
for laboratory personnel to be compelled to give testimony in a wide 
variety of proceedings. Who should bear these costs and burdens (e.g., 
the requester, as is common in Federal freedom of information actions)? 
Laboratories may regard some of this information as proprietary 
business information (e.g., portions of Standard Operating Procedures). 
In the absence of a court or administrative decisionmaker (as is 
involved in a discovery proceeding), who determines the scope of 
relevance for the requested information or testimony, and by what 
standards?
    The Department would have to consider these and other matters 
before deciding on the shape of a regulatory requirement of the kind 
the commenters requested. We believe that, if we propose provisions of 
the kind requested by the commenter, they would properly reside in Part 
40, rather than in the DOT agency regulations. In the near future, we 
anticipate publishing a document requesting further comment on these 
issues.

    Issued this 24th day of July, 2001, at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.
[FR Doc. 01-19230 Filed 8-2-01; 4:41 pm]
BILLING CODE 4910-62-U