Federal-State Unemployment Compensation Program; Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants, 61013-61020 [2014-24098]
Download as PDF
Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules
TABLE 2—LOADING CONDITIONS FOR A
MULTIPLE-VOLTAGE UNIT UNDER
TEST—Continued
Load Condition
5.
Load Condition
6.
10% of De-rated Nameplate
Output Current ± 2% (optional).
0%.
(6) Input and output power measurements
shall be conducted in sequence from Loading
Condition 1 to Loading Condition 5, as
indicated in Table 2 of this section. For
Loading Condition 6, place the unit under
test in no-load mode, disconnect any
additional signal connections to the unit
under test, and measure input power.
(B) * * *
(2) If D ≥1, then loading every bus to its
nameplate output current does not exceed
the overall nameplate output power for the
power supply. In this case, each output bus
will simply be loaded to the percentages of
its nameplate output current listed in Table
2 of this section. However, if D <1, it is an
indication that loading each bus to its
nameplate output current will exceed the
overall nameplate output power for the
power supply. In this case, and at each
loading condition, each output bus will be
loaded to the appropriate percentage of its
nameplate output current listed in Table 2,
multiplied by the derating factor D.
(C) Minimum output current requirements.
Depending on their application, some
multiple-voltage power supplies may require
a minimum output current for each output
bus of the power supply for correct
operation. In these cases, ensure that the load
current for each output at Loading Condition
4 in Table 2 of this section is greater than the
minimum output current requirement. Thus,
if the test method’s calculated load current
for a given voltage bus is lower than the
minimum output current requirement, the
minimum output current must be used to
load the bus. This load current shall be
recorded in the test report.
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*
*
*
*
*
(E) Efficiency calculation and data
recordation. The efficiency of a unit under
test shall be calculated by dividing the
measured active output power of that unit at
a given loading condition by the active AC
input power measured at that loading
condition. The average active-mode
efficiency of the unit shall be calculated by
averaging the efficiency of the unit under test
as calculated at Loading Conditions 1
through 4, unless output cannot be sustained
at one of those loading conditions. In that
case, average-active mode efficiency is
calculated as described in paragraph (a)(i)(D)
of this section. Additionally, an optional
calculation and individual recording of the
efficiency at Loading Condition 5 (specified
in Table 2 in paragraph (b)(i)A)(5) of this
section) may also be performed. Power factor
for Loading Conditions 1 through 5 (as
specified under the same Table 2) may also
be recorded, but these measurements are not
mandatory. The efficiency at each loading
condition and the power factor at each
loading condition shall be individually
recorded.
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(F) Power consumption calculation. Power
consumption of the unit under test at
Loading Conditions 1, 2, 3, 4, and 5 is the
difference between the active output power
at that Loading Condition and the active AC
input power at that Loading Condition. The
power consumption of Loading Condition 6
(no-load) is equal to the AC active input
power at that Loading Condition.
(ii) Off Mode Measurement—If the
multiple-voltage external power supply unit
under test incorporates any on-off switches,
the unit under test shall be placed in off
mode and its power consumption in off mode
measured and recorded. The measurement of
the off mode energy consumption shall
conform to the requirements specified in
paragraph (b)(i) of this section. The only
loading condition that will be measured for
off mode is ‘‘Loading Condition 6’’ in
paragraph (b)(i)(A), ‘‘Loading conditions and
testing sequence’’, except that all manual onoff switches shall be placed in the off
position for this measurement.
NASA will not proceed to finalize this
action at this time. NASA is currently
preparing guidance and regulations to
implement OMB’s Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards (78 FR 78589, Dec 26,
2013). Because implementation of
OMB’s guidance will necessitate major
changes to NASA’s Grant Handbook,
NASA will make changes to internal
delegation of administration procedures
concurrent with or following the
implementation of OMB’s uniform
requirements.
[FR Doc. 2014–24180 Filed 10–8–14; 8:45 am]
DEPARTMENT OF LABOR
BILLING CODE 6450–01–P
RIN 2700–AE12
Removal of Procedures for Delegation
of Administration of Grants and
Cooperative Agreements; Withdrawal
National Aeronautics and
Space Administration
ACTION: Proposed rule; withdrawal.
AGENCY:
NASA hereby provides notice
of the cancellation of a proposed rule
without further action.
DATES: The proposed rule published in
the Federal Register of November 14,
2013 (78 FR 68376) is withdrawn as of
October 9, 2014.
FOR FURTHER INFORMATION CONTACT:
Leigh Pomponio, NASA, Office of
Procurement, Contract Management
Division (Suite 2P77), 300 E Street SW.,
Washington DC, 30546–0001; email:
leigh.pomponio@nasa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
A. Background
On November 14, 2013, NASA
published a proposed rule (78 FR
68376) to remove internal procedures
for delegation of grant administration
from the regulation at 14 CFR 1260.70
and 1274.301. The action was published
with an incorrect RIN number (2700–
AE11). On December 26, 2013, a
correction was published (78 FR 78305)
to indicate that the correct RIN number
is 2700–AE12. No public comments
were received on the proposed rule.
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BILLING CODE 7510–13–P
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20 CFR Part 620
RIN 1205–AB63
14 CFR Parts 1260 and 1274
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[FR Doc. 2014–22693 Filed 10–8–14; 8:45 am]
Employment and Training
Administration
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
PO 00000
Cynthia Boots,
Alternate Federal Register Liaison.
Federal-State Unemployment
Compensation Program; Middle Class
Tax Relief and Job Creation Act of
2012 Provision on Establishing
Appropriate Occupations for Drug
Testing of Unemployment
Compensation Applicants
Employment and Training
Administration, Labor.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Employment and
Training Administration (ETA) of the
U.S. Department of Labor (Department)
proposes to establish in regulation, for
State Unemployment Insurance (UI)
program purposes, occupations that
regularly conduct drug testing. These
regulations would implement the
Middle Class Tax Relief and Job
Creation Act of 2012 (the Act)
amendments to the Social Security Act
(SSA), permitting States to enact
legislation that would allow State UI
agencies to conduct drug testing on
unemployment compensation (UC)
applicants for whom suitable work (as
defined under the State law) is only
available in an occupation that regularly
conducts drug testing (as determined
under regulations issued by the
Secretary of Labor (Secretary)). States
may deny UC to an applicant who tests
positive for drug use under these
circumstances. The Secretary is required
under the SSA to issue regulations
determining those occupations that
regularly conduct drug testing.
SUMMARY:
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Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules
To be ensured consideration,
comments must be submitted in writing
on or before December 8, 2014.
ADDRESSES: You may submit comments,
identified by Regulatory Information
Number (RIN) 1205–AB63, by one of the
following methods:
Federal e-Rulemaking Portal: https://
www.regulations.gov. Follow the Web
site instructions for submitting
comments.
Mail and hand delivery/courier:
Written comments, disk, and CD–ROM
submissions may be mailed to Adele
Gagliardi, Administrator, Office of
Policy Development and Research, U.S.
Department of Labor, 200 Constitution
Avenue NW., Room N–5641,
Washington, DC 20210.
Instructions: Label all submissions
with ‘‘RIN 1205–AB63.’’
Please submit your comments by only
one method. Please be advised that the
Department will post all comments
received that that related to this NPRM
on https://www.regulations.gov without
making any change to the comments or
redacting any information. The https://
www.regulations.gov Web site is the
Federal e-rulemaking portal and all
comments posted there are available
and accessible to the public. Therefore,
the Department recommends that
commenters remove personal
information such as Social Security
Numbers, personal addresses, telephone
numbers, and email addresses included
in their comments as such information
may become easily available to the
public via the https://
www.regulations.gov Web site. It is the
responsibility of the commenter to
safeguard personal information.
Also, please note that due to security
concerns, postal mail delivery in
Washington, DC may be delayed.
Therefore, the Department encourages
the public to submit comments on
https://www.regulations.gov.
Docket: All comments on this
proposed rule will be available on the
https://www.regulations.gov Web site
and can be found using RIN 1205–AB63.
The Department also will make all the
comments it receives available for
public inspection by appointment
during normal business hours at the
above address. If you need assistance to
review the comments, the Department
will provide appropriate aids such as
readers or print magnifiers. The
Department will make copies of this
proposed rule available, upon request,
in large print and electronic file on
computer disk. To schedule an
appointment to review the comments
and/or obtain the proposed rule in an
alternative format, contact the Office of
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DATES:
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Policy Development and Research at
(202) 693–3700 (this is not a toll-free
number). You may also contact this
office at the address listed below.
Comments under the Paperwork
Reduction Act: In addition to filing
comments with ETA, persons wishing to
comment on the information collection
aspects of this rule may send comments
to: Office of Information and Regulatory
Affairs, Attn: OMB Desk Officer for
DOL–ETA, Office of Management and
Budget, Room 10235, 725 17th Street
NW., Washington, DC 20503, Fax: 202–
395–6881 (this is not a toll-free
number), email: OIRA_submission@
omb.eop.gov.
FOR FURTHER INFORMATION CONTACT:
Adele Gagliardi, Administrator, Office
of Policy Development and Research,
U.S. Department of Labor, 200
Constitution Avenue NW., Room N–
5641, Washington, DC 20210; telephone
(202) 693–3700 (this is not a toll-free
number).
Individuals with hearing or speech
impairments may access the telephone
number above via TTY by calling the
toll-free Federal Information Relay
Service at 1–800–877–8339.
SUPPLEMENTARY INFORMATION: The
preamble to this proposed rule is
organized as follows:
I. Background—provides a brief description
of the development of the proposed rule
II. Section-by-Section Review—summarizes
and discusses the proposed regulations
III. Administrative Information—sets forth
the applicable regulatory requirements
I. Background
On February 22, 2012, President
Obama signed the Act, Public Law 112–
96. Title II of the Act amended section
303, SSA, to add a new subsection (l)
permitting States to drug test UC
applicants as a condition of UC
eligibility under two specific
circumstances. The first circumstance is
if the applicant was terminated from
employment with the applicant’s most
recent employer because of the unlawful
use of a controlled substance. (Section
303(l)(1)(A)(i), SSA.) The second
circumstance is if the only available
suitable work (as defined in the law of
the State conducting the drug testing)
for an individual is in an occupation
that regularly conducts drug testing (as
determined in regulations by the
Secretary). A State may deny UC to an
applicant who tests positive for drug use
under these circumstances. (Section
303(l)(1)(A)(ii), SSA.) This proposed
rule defines those occupations that
regularly conduct drug testing as
required by section 303(l)(1)(A)(ii), SSA.
The Department of Labor will,
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separately from this rulemaking, issue
further guidance to States to address
other issues related to the
implementation of drug testing under
303(l), SSA.
Consultations With Other Federal
Agencies
The Department consulted with a
number of Federal agencies with
expertise in drug testing to inform this
proposed regulation. Specifically, we
consulted with the Substance Abuse
and Mental Health Services
Administration (SAMHSA) in the U.S.
Department of Health and Human
Services (HHS); the U.S. Department of
Transportation (DOT); the U.S.
Department of Defense (DOD); the U.S.
Department of Homeland Security
(DHS); DOL’s Bureau of Labor Statistics
(BLS); and DOL’s Occupational Safety
and Health Administration (OSHA).
These agencies were consulted because
they have experience with required drug
testing. DOD and DHS defer to
SAMHSA for interpretation of the drug
testing requirements. Therefore, the
Department gave deference to the
SAMHSA guidance when developing
this rule. The Department also
canvassed State laws to develop an
understanding of what occupations
require regular drug testing at the State
level.
SAMHSA: The Department consulted
with SAMHSA because it is the Federal
agency mandated to oversee Federal
workplace drug testing by Pub. L. 100–
71 and, further, by E.O. 12564, entitled
Drug-Free Federal Workplace. E.O.
12564 requires that the head of each
Federal agency ‘‘shall establish a
program to test for the use of illegal
drugs by employees in sensitive
positions.’’ Public Law 100–71 directed
HHS to establish scientific and technical
guidelines and ensure that
comprehensive standards are published
to govern the drug testing of Federal
employees. SAMHSA provides
oversight for:
➢ The Federal Drug-Free Workplace
Program, which aims to eliminate illicit
drug use in the Federal workforce; and
➢ The National Laboratory
Certification Program, which certifies
laboratories to conduct forensic drug
testing for the Federal agencies and for
some Federally-regulated industries.
In order to oversee Federal workplace
drug testing, SAMHSA reviews Federal
agencies’ drug testing designated
positions (TDPs), which SAMSHA
requires Federal agencies to designate.
OSHA: ETA consulted with DOL’s
OSHA because of its knowledge of
employer drug testing programs. OSHA
also was instrumental in identifying
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expertise in other Federal agencies that
proved valuable to the development of
the NPRM.
DOT: ETA consulted with DOT partly
because DOT has a number of
occupations designated as TDPs by
SAMHSA, and more significantly
because DOT regulations at 49 CFR part
40 identify public and private
employment in transportation industries
as being subject to drug testing. These
regulations require that the Secretary of
Transportation ensure drug and alcohol
testing policies are developed and
carried out in a consistent, efficient, and
effective manner within the
transportation industries for the
ultimate safety and protection of the
traveling public.
BLS: ETA consulted with BLS and
determined that currently no statistical
collections exist that relate to
occupations where employers regularly
drug test.
Review of State Drug Testing Laws
ETA’s consultation did not reveal any
single reliable and current source of
occupations that regularly drug test.
Therefore, ETA relied on current
Federal and State laws as the primary
sources to determine what occupations
regularly drug test for purposes of
implementing Section 303(l), SSA.
Some States have not enacted workplace
drug and alcohol testing laws. Others
have enacted laws that permit and
encourage employers to conduct drug
testing of applicants and/or employees,
but they are not based on occupations
and therefore do not fall within the
scope of this rulemaking. For example,
most States allow a private employer to
decide whether and when to test job
applicants and employees, often in
accordance with a written policy
created by the employer according to
State law. In some instances, State law
specifies that the employer may test job
applicants and current employees for
any job-related purpose consistent with
business necessity and the terms of the
employer’s written policy. If States do
provide restrictions on workplace drug
testing, then they commonly provide
more protection to employees than to
job applicants. For example, a State’s
law may permit employers to require all
job applicants with conditional offers of
employment to take drug tests, but they
permit an employer to require a drug
test of an employee only if the employer
has reasonable suspicion that use of
drugs is impairing the employee’s job
performance or has probable cause to
believe that the employee, while on the
job, is using or is under the influence of
drugs. These provisions are not relevant
to this rulemaking, which must, under
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section 303(l)(1)(A)(ii), SSA, determine
what occupations are ‘‘regularly’’ drug
tested.
Many States also provide various
discounts and credits to employers that
adopt drug-free workplace programs.
Some States’ programs require drug
testing of applicants and/or employees
as part of these programs, while others
do not. Some States that require
participating employers to test job
applicants nevertheless allow the
employers to limit such testing based on
reasonable classifications of job
positions. Employer sponsorship of a
drug-free workplace program is usually
voluntary but may be required of state
contractors.
State laws that clearly fall within the
scope of this regulation include those
that identify types of positions for
which employers may conduct drug
testing. For example, a State’s law may
permit drug testing only of individuals
‘‘employed in safety-sensitive
positions’’ or if the ‘‘employee serves in
an occupation which has been
designated as a high-risk or safetysensitive occupation.’’ At least one State
permits testing of individuals who
‘‘participate in activities upon which
pari-mutuel wagering is authorized.’’
State laws that identify specific
classes of positions for which drug
testing of applicants and/or employees
is required also fall affirmatively within
the scope of this regulation. State laws
most commonly require drug testing of
drivers of school transportation vehicles
and commercial motor vehicles. States
may also require certain types of private
employers to conduct at least some drug
testing of employees and/or job
applicants (e.g., nursing homes and
home health agencies, residential
childcare facilities, public works
projects contractors, corrections
facilities, and nuclear and radioactive
storage and transfer facilities).
In conclusion, ETA’s research of some
Federal and State laws related to drug
testing found that they refer to classes
of positions (e.g., any position requiring
an employee to carry a firearm) that are
required to be drug tested, rather than
occupations as defined by BLS in the
Standard Occupational Classification
System. Therefore, this NPRM defines
(as explained below) an ‘‘occupation’’ to
mean a position or class of positions
identified as subject to drug testing
under specified Federal or State laws as
described in these proposed regulations.
Summary of the Proposed Rule
We concluded from our research of
what it means in Federal or State law to
‘‘regularly’’ drug test that no consistent
standard applies across classes of
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positions or occupations to determine
that ‘‘regular’’ drug testing occurs.
While some State laws might permit,
but not require, drug testing of certain
‘‘occupations,’’ whether drug testing is
‘‘regularly’’ conducted when merely
permitted can vary widely across
occupations and industries and trades,
and regularity also can change over
time. Thus, we believe it would be
overbroad to include occupations for
which State law merely permits, but
does not require, drug testing. However,
it is a given that any occupation for
which drug testing is required is one
that is drug tested ‘‘regularly.’’
Therefore, occupations that ‘‘regularly’’
require drug testing are limited in these
regulations to those for which drug
testing is required, not merely
permitted. Therefore, this proposed
regulation identifies classes of positions,
or ‘‘occupations,’’ that are required to be
drug tested in Federal or State law as
the standard for determining
‘‘occupations’’ that ‘‘regularly’’ drug
test.
Accordingly, we propose that an
applicant may be drug tested by the
State in order to be eligible to receive
State UC if the applicant’s only suitable
work, as defined under the State UC
law, is in a position or class of
positions, i.e., an ‘‘occupation,’’ for
which Federal law or that State’s law
requires employee drug testing in that
occupation. Additionally, we propose
that only those State laws which
identify occupations or positions (e.g.,
school bus drivers) may be the basis for
such testing; this regulation excludes, as
the basis for testing, State laws that go
beyond the scope of identifying
occupations or position classifications,
and instead identify types of employers
(e.g., public works projects contractors)
or permit testing at the employer
discretion (e.g., in connection with a
drug free workplace policy that applies
to all applicants).
We also propose that classes of
positions, or ‘‘occupations,’’ requiring
drug testing under Federal and State
laws be limited to those identified in
Federal and State laws already in effect
at the date of the publication of this
NPRM. Because drug testing as a
condition of UC eligibility is a new
policy and has the potential to be
implemented in ways that may have
unintended consequences, the
Department considers it prudent to
apply Federal and State law drug testing
requirements currently in place, to be
able to assess and evaluate most
effectively the impact of this new
policy. The Department recognizes that
Federal and State laws may evolve in
identifying which positions or
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occupations are required to drug test.
The Department will monitor such
changes and may amend this regulation
accordingly in the future. The
Department encourages comments on
methods to refresh the list of
occupations that regularly drug test.
For Federal laws requiring drug
testing, SAMHSA has designated some
classes of positions as ‘‘presumptive’’
TDPs, i.e., positions that may be
designated as requiring a drug test
without the agency being required to
justify the designation to SAMHSA. A
list of presumptive TDPs is included in
the HHS publication ‘‘2010 Guidance
for Selection of Testing Designated
Positions,’’ April 5, 2010, available on
the SAMHSA Web site at https://
workplace.samhsa.gov/federal.html.
These classes of positions include those
that require carrying a firearm, motor
vehicle operators carrying passengers,
aviation flight crew members and air
traffic controllers, and railroad
operating crews. This NPRM proposes
that these classes of positions be
deemed ‘‘occupations’’ that regularly
drug test.
In addition, DOT requires drug testing
for classes of positions in various
transportation industries in 49 CFR Part
40,1 Procedures for Transportation
Workplace Drug and Alcohol Testing
Programs. These regulations require the
Secretary of Transportation to ensure
drug and alcohol testing policies are
developed and carried out in a
consistent, efficient, and effective
manner within the transportation
industries for the ultimate safety and
protection of the traveling public. DOT’s
Office of Drug and Alcohol Policy and
Compliance provides guidance to the
Federal agencies covered by DOT on the
drug testing policy of covered
employees (i.e., those subject to drug
testing). The regulations apply to safetysensitive classes of positions in the
transportation industries including
aviation, trucking, mass transit,
railroads, pipelines, and other vital
transportation related industries.
Mandatory drug testing requirements
are identified in the sections of the CFR
that apply to the specific Federal
agencies that regulate these industry
sectors. Federal agency regulations that
implement the drug testing
requirements of 49 CFR part 40 for the
industries these agencies regulate are as
follows: Federal Aviation
Administration, 14 CFR part 120;
Federal Motor Carrier Safety
1 DOT was granted authority to establish
regulations at 49 CFR Part 40 by the Omnibus
Transportation Employee Testing Act of 1991,
Public Law 102–143.
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Administration, 49 CFR part 382;
Federal Railroad Administration, 49
CFR part 219; Federal Transit
Administration, 49 CFR part 655;
Pipeline and Hazardous Materials Safety
Administration, 49 CFR part 199; and
crewmembers and maritime credential
holders by the Coast Guard, 46 CFR part
16. The proposed regulation identifies
the specific sections of these regulations
that identify the classes of positions that
are subject to drug testing.
II. Section-by-Section Review
What is the purpose of the proposed
regulation? (§ 620.1)
Proposed § 620.1 explains that the
purpose of the NPRM is to implement
section 303(l)(A)(ii), SSA, permitting
drug testing UC applicants for the use of
controlled substances where suitable
work (as defined under the State’s UC
law) is only available in an occupation
for which drug testing is regularly
conducted (as determined under this
part 620).
What definitions apply to this part?
(§ 620.2)
‘‘Applicant’’ means an individual
who files an initial claim for UC under
State law. ‘‘Applicant’’ excludes an
individual already found initially
eligible and filing a continued claim.
This is consistent with common usage
of the term ‘‘applicant’’ in UC
nomenclature.
‘‘Controlled substance,’’ as defined by
Section 303(l)(2)(B), SSA, has the same
meaning given such term in section 102
of the Controlled Substances Act (Pub.
L. 91–513, 21 U.S.C. 801 et seq.).
‘‘Controlled substance’’ means a drug or
other substance, or immediate
precursor, included in schedule I, II, III,
IV, or V of part B of 21 U.S.C. 801 et
seq. The term does not include distilled
spirits, wine, malt beverages, or tobacco,
as those terms are defined or used in
subtitle E of the Internal Revenue Code
of 1986.
‘‘Occupation’’ means a position or
class of positions. As discussed above,
Federal and State laws on drug testing
do not specify or refer to ‘‘occupations’’
requiring drug testing, but rather
identify positions or classes of
positions, in descriptive terms such as,
for example, positions requiring the
carrying of a firearm. Because we
propose to refer to specific provisions of
law in defining ‘‘occupations’’ for
purposes of UC drug testing, the
proposed definition of occupation
identifies the specific provisions of law
in the later section.
‘‘Suitable Work’’ means suitable work
as defined under the UC law of the State
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against which the claim is filed. This is
the same definition of ‘‘suitable work’’
under that State law as the State
otherwise uses for determining UC
eligibility based on seeking work or
refusal of work.
‘‘Unemployment Compensation’’ is
defined in Section 303(l)(2)(A), SSA, to
have the same meaning given to the
term in Section 303(d)(2)(A), SSA,
which states that the term
unemployment compensation means
‘‘any unemployment compensation
payable under the State law (including
amounts payable pursuant to an
agreement under a Federal
unemployment compensation law.)’’
Section 3306(h) of the Federal
Unemployment Tax Act (26 U.S.C.
3306(h)) defines compensation to mean
‘‘cash benefits payable to individuals
with respect to their unemployment.’’
What are the occupations for which
drug testing is regularly conducted for
purposes of this part 620? (§ 620.3)
Proposed § 620.3 identifies
occupations for which drug testing is
regularly conducted. These occupations
are those that require the employee to
carry a firearm. They also include
classes of positions/occupations
identified by SAMHSA as presumptive
drug testing positions; classes of
positions/occupations for which
employers are required to drug test
employees as identified in DOT’s
regulations at 49 CFR parts 199, 219,
382, and 655; classes of positions/
occupations for which drug testing is
required under United States Coast
Guard regulations at 46 CFR part 16;
and classes of positions/occupations in
which an employee must be tested
under Federal Aviation Administration
regulations at 14 CFR part 120. As
explained above, these occupations are
limited to those identified in these
regulations as of the date of the
publication of the proposed rule. They
also include occupations for which drug
testing was required already under State
law in effect at the date of publication
of this NPRM. States are not required to
drug test as a condition of UC eligibility
for any of these occupations; however,
they may not, except as permitted by
section 303(l)(1)(A)(i), SSA, (governing
drug testing of individuals terminated
for the unlawful use of a controlled
substance) drug test for any occupation
that does not meet the definition in
§ 620.3. As noted previously, it is the
Department’s intent to monitor Federal
and State legislation in relation to
classes of positions or occupations that
are required to drug test and consider
changes to the regulation as appropriate.
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grants for the administration of its UC
program.
What are the parameters for the testing
of applicants for the unlawful use of a
controlled substance? (§ 620.4)
Proposed § 620.4, consistent with
section 303(l), SSA, provides that a
State may require applicants to take and
pass a drug test for the illegal use of
controlled substances as a condition of
initial eligibility for UC under specified
conditions. Applicants may be denied
UC based on the results of these tests.
Proposed paragraph (a) provides that
an applicant, as defined in proposed
§ 620.2, may be tested for the unlawful
use of controlled substances, as defined
in proposed § 620.2, as an eligibility
condition for UC if the individual is one
for whom suitable work, as defined by
that State’s UC law, is only available in
an occupation that regularly conducts
drug testing, as determined under
proposed § 620.3. The reference to
‘‘applicant,’’ ensures that only an
applicant who is filing an initial UC
claim, and not a claimant filing a
continued claim, may be subject to drug
testing.
Proposed paragraph (b) provides that
a State requiring drug testing as a
condition of UC eligibility may apply
drug testing to any one or more of the
occupations listed under § 620.3, but is
not required to apply drug testing to any
of them. The Act does not require a
State to conduct drug tests at all, and
consistent with the partnership nature
of the Federal-State UC system, the
Department proposes to allow States
flexibility to decide which permitted
occupations may be subject to Stateconducted drug testing.
Proposed paragraph (c) provides that
the standards which a State establishes
relating to drug testing of applicants for
UC must be in accordance with
guidance issued by the Department.
While section 303(l), SSA, requires the
Secretary to issue regulations on the
occupations that regularly conduct drug
testing, the Secretary will address all
other issues relating to section 303(l),
SSA, in later guidance such as program
letters and other issuances.
tkelley on DSK3SPTVN1PROD with PROPOSALS
DOL seeks comments on how to refresh
the list of occupations.
III. Administrative Information
What are the consequences of failing to
implement a drug testing program in
accordance with these regulations?
(§ 620.5)
Section 620.5 explains that
implementation of drug testing of UC
applicants as authorized under State
laws must be in conformity with these
regulations in order for States to be
certified under Section 302 of the SSA
(42 U.S.C. 502), with respect to whether
a State is eligible to receive Federal
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Executive Orders 12866 and 13563:
Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. For a
‘‘significant regulatory action,’’ E.O.
12866 asks agencies to describe the need
for the regulatory action and explain
how the regulatory action will meet that
need, as well as assess the costs and
benefits of the regulation.2 This
regulation is necessary because of the
statutory requirement contained in new
section 303(l)(1)(A)(ii), SSA, which
requires the Secretary to determine the
occupations that regularly conduct drug
testing for the propose of determining
which applicants may be drug tested
when applying for State unemployment
compensation. The Department
considers this rule to be a ‘‘significant
regulatory action’’ as defined in section
3(f) of E.O. 12866, because it raises
novel legal or policy issues arising out
of legal mandates. Before the
amendment of Federal law to add new
section 303(l)(1), SSA, drug testing of
applicants for UC as a condition of
eligibility was prohibited.
The Department believes this is not an
economically significant rulemaking
within the definition of E.O. 12866
because it is not an action that is likely
to result in the following: An annual
effect on the economy of $100 million
or more; an adverse or material effect on
a sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local or
Tribal governments or communities;
serious inconsistency or interference
with an action taken or planned by
another agency; or a material change in
the budgetary impact of entitlements,
grants, user fees, or loan programs, or
the rights and obligations of recipients
thereof. In addition, since the rule is
entirely voluntary on the part of the
States and since Section 303(l), SSA is
written so narrowly that the number of
UI applicants eligible to be tested will
2 Executive
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61017
be small, the Department believes it is
unlikely that many States will establish
a testing program because they won’t
deem it cost effective to do so. The
Department seeks comment from
interested stakeholders on this
assumption.
There are limited data on which to
base estimates of the cost associated
with establishing a testing program.
Only one of the two States that have
enacted a conforming drug testing law
issued a fiscal note. That State is Texas,
which estimated that the 5-year cost of
administering the program would be
$1,175,954. This includes both one-time
technology personnel services for the
first year to program the system and
ongoing administrative costs for
personnel. The Texas analysis estimated
a potential savings to the
Unemployment Trust Fund of
$13,700,580 over the 5-year period,
resulting in a net savings of
approximately $12.5 million. The
Department believes it would be
inappropriate to extrapolate the Texas
analysis to all States in part because of
differences in the Texas law and the
requirements in this proposed rule. The
Department has included this
information about Texas for illustrative
purposes only and emphasizes that by
doing so, it is not validating the
methodology or assumptions in the
Texas analysis. Under the proposed
rule, States will be prohibited from
testing applicants for unemployment
compensation who do not meet the
narrow criteria established in the law.
The Department requests that interested
stakeholders with data on the costs of
establishing a state-wide testing
program; the number of applicants for
unemployment compensation that fit
the narrow criteria established in the
law; and estimates of the number of
individuals that would subsequently be
denied unemployment compensation
due to a failed drug test submit it during
the comment period.
In the absence of data, the Department
is unable to quantify the administrative
costs States will incur if they choose to
implement drug testing pursuant to this
rule. States may need to find funding to
implement a conforming drug testing
program for unemployment
compensation applicants. No additional
funding has been appropriated for this
purpose and current Federal funding for
the administration of State
unemployment compensation programs
may be insufficient to support the
additional costs of establishing and
operating a drug testing program.
Permissible alternative funding sources
are not readily available. States will
need to fund the cost of the drug tests,
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staff costs for administration of the drug
testing function, and technology costs to
track drug testing outcomes. States will
incur ramp up costs that will include
implementing business processes
necessary to determine whether an
applicant is one for whom drug testing
is permissible pursuant to the law;
developing a process to refer and track
applicants referred for drug testing; and
the costs of testing that meets the
standards required by the Secretary of
Labor. States will also have to factor in
increased costs of adjudication and
appeals of both the determination of
applicability of the drug testing to the
individual and of the resulting
determinations of benefit eligibility
based on the test results.
To date, very few States have
expressed interest in drug testing
unemployment compensation
applicants. Only two States have
enacted conforming legislation. Only six
other States introduced conforming drug
testing bills so far and none of them
were passed by the house of
introduction.
Benefits of the rule are equally hard
to determine. As discussed above, the
provisions will impact a very limited
number of applicants for unemployment
compensation benefits.
tkelley on DSK3SPTVN1PROD with PROPOSALS
Paperwork Reduction Act
The purposes of the Paperwork
Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., include minimizing the
paperwork burden on affected entities.
The PRA requires certain actions before
an agency can adopt or revise a
collection of information, including
publishing a summary of the collection
of information, a brief description of the
need for and proposed use of the
information, and a request for comments
on the information collections.
A Federal agency may not conduct or
sponsor a collection of information
unless it is approved by OMB under the
PRA, and displays a currently valid
OMB control number, and the public is
not required to respond to a collection
of information unless it displays a
currently valid OMB control number.
Also, notwithstanding any other
provisions of law, no person shall be
subject to penalty for failing to comply
with a collection of information if the
collection of information does not
display a currently valid OMB control
number (44 U.S.C. 3512).
The Department has determined that
this proposed rule does not contain a
‘‘collection of information,’’ as the term
is defined. See 5 CFR 1320.3(c). DOL
expressly seeks comments on this
determination.
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Executive Order 13132: Federalism
Section 6 of Executive Order 13132
requires Federal agencies to consult
with State entities when a regulation or
policy may have a substantial direct
effect on the States or the relationship
between the National Government and
the States, or the distribution of power
and responsibilities among the various
levels of government, within the
meaning of the Executive Order. Section
3(b) of the Executive Order further
provides that Federal agencies must
implement regulations that have a
substantial direct effect only if statutory
authority permits the regulation and it
is of national significance.
This proposed rule does not have a
substantial direct effect on the States or
the relationship between the National
Government and the States, or the
distribution of power and
responsibilities among the various
levels of Government, within the
meaning of the Executive Order. This is
because drug testing authorized by the
regulation is voluntary on the part of the
State, not required.
Unfunded Mandates Reform Act of 1995
This regulatory action has been
reviewed in accordance with the
Unfunded Mandates Reform Act of 1995
(the Reform Act). Under the Reform Act,
a Federal agency must determine
whether a regulation proposes a Federal
mandate that would result in the
increased expenditures by State, local,
or tribal governments, in the aggregate,
or by the private sector, of $100 million
or more in any single year. The
Department has determined that since
States have an option of drug testing UC
applicants and can elect not to do so,
this proposed rule does not include any
Federal mandate that could result in
increased expenditure by State, local,
and Tribal governments. Drug testing
under this rule is purely voluntary, so
that any increased cost to the States is
not the result of any mandate.
Accordingly, it is unnecessary for the
Department to prepare a budgetary
impact statement.
Plain Language
The Department drafted this proposed
rule in plain language.
Effect on Family Life
The Department certifies that this
proposed rule has been assessed
according to section 654 of the Treasury
and General Government
Appropriations Act, enacted as part of
the Omnibus Consolidated and
Emergency Supplemental
Appropriations Act of 1999 (Pub. L.
105–277, 112 Stat. 2681) for its effect on
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Fmt 4702
Sfmt 4702
family well-being. The Department
certifies that this proposed rule does not
adversely impact family well-being as
discussed under section 654 of the
Treasury and General Government
Appropriations Act of 1999.
Regulatory Flexibility Act/Small
Business Regulatory Enforcement
Fairness Act
The Regulatory Flexibility Act (RFA)
at 5 U.S.C. 603(a) requires agencies to
prepare and make available for public
comment an initial regulatory flexibility
analysis which will describe the impact
of the proposed rule on small entities.
Section 605 of the RFA allows an
agency to certify a rule, in lieu of
preparing an analysis, if the proposed
rulemaking is not expected to have a
significant economic impact on a
substantial number of small entities.
This rule does not affect small entities
as defined in the RFA. Therefore, the
rule will not have a significant
economic impact on a substantial
number of these small entities. The
Department has certified this to the
Chief Counsel for Advocacy, Small
Business Administration, pursuant to
the Regulatory Flexibility Act.
List of Subjects in 20 CFR Part 620
Unemployment compensation.
For the reasons stated in the
preamble, the Department proposes to
amend 20 CFR chapter V by adding part
620 to read as follows:
PART 620—OCCUPATIONS THAT
REGULARLY CONDUCT DRUG
TESTING FOR STATE
UNEMPLOYMENT COMPENSATION
ELIGIBILITY DETERMINATION
PURPOSES
Sec.
620.1 Purpose.
620.2 Definitions.
620.3 Occupations that regularly conduct
drug testing for purposes of determining
which applicants may be drug tested
when applying for state unemployment
compensation.
620.4 Testing of unemployment
compensation applicants for the
unlawful use of a controlled substance.
620.5 Conformity and substantial
compliance.
Authority: 42 U.S.C. 1302(a); 42 U.S.C.
503(l)(1)(ii)
§ 620.1
Purpose.
The regulations in this part
implement section 303(l) of the Social
Security Act (SSA) (42 U.S.C. 503(l)).
Section 303(l), SSA, permits States to
enact legislation to provide for the Stateconducted testing of an unemployment
compensation applicant for the
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Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules
unlawful use of controlled substances,
as a condition of unemployment
compensation eligibility, if the
applicant was discharged for unlawful
use of controlled substances by his or
her most recent employer, or if suitable
work (as defined under the State
unemployment compensation law) is
only available in an occupation for
which drug testing is regularly
conducted (as determined under this
part 620). Section 303(l)(1)(A)(ii), SSA,
requires the Secretary of Labor to issue
regulations determining the occupations
that regularly conduct drug testing.
These regulations are limited to that
requirement.
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 620.2
Definitions.
As used in this part—
Applicant means an individual who
files an initial claim for unemployment
compensation under State law.
Applicant excludes an individual
already found initially eligible and
filing a continued claim.
Controlled substance means a drug or
other substance, or immediate
precursor, included in schedule I, II, III,
IV, or V of part B of 21 U.S.C. 801 et
seq., as defined in section 102 of the
Controlled Substances Act (Pub. L. 91–
513, 21 U.S.C. 801 et seq.). The term
does not include distilled spirits, wine,
malt beverages, or tobacco, as those
terms are defined or used in subtitle E
of the Internal Revenue Code of 1986.
Occupation means a position or class
of positions. Federal and State laws
governing drug testing refer to the
classes of positions that are required to
be drug tested rather than occupations,
such as those defined by the Bureau of
Labor Statistics in the Standard
Occupational Classification System.
Therefore, for purposes of this
regulation, a position or class of
positions will be considered the same as
an ‘‘occupation.’’
Suitable work means suitable work as
defined by the unemployment
compensation law of a State against
which the claim is filed. It must be the
same definition the State law otherwise
uses for determining the type of work an
individual must seek given the
individual’s education, experience and
previous level of remuneration.
Unemployment compensation means
any cash benefits payable to an
individual with respect to their
unemployment under the State law
(including amounts payable under an
agreement under a Federal
unemployment compensation law.)
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§ 620.3 Occupations that regularly
conduct drug testing for purposes of
determining which applicants may be drug
tested when applying for State
unemployment compensation.
Occupations that regularly conduct
drug testing, for purposes of § 620.4, are:
(a) An occupation that requires the
employee to carry a firearm;
(b) An occupation identified in 14
CFR 120.105 (as in effect on October 9,
2014) by the Federal Aviation
Administration, in which the employee
must be tested (Aviation flight crew
members and air traffic controllers);
(c) An occupation identified in 49
CFR 382.103 (as in effect on October 9,
2014) by the Federal Motor Carrier
Safety Administration, in which the
employee must be tested (Commercial
drivers);
(d) An occupation identified in 49
CFR 219.3 (as in effect on October 9,
2014) by the Federal Railroad
Administration, in which the employee
must be tested (Railroad operating crew
members);
(e) An occupation identified in 49
CFR 655.3 (as in effect on October 9,
2014) by the Federal Transit
Administration, in which the employee
must be tested (Public transportation
operators);
(f) An occupation identified in 49 CFR
199.2 (as in effect on October 9, 2014)
by the Pipeline and Hazardous Materials
Safety Administration, in which the
employee must be tested (Pipeline
operation and maintenance crew
members);
(g) An occupation identified in 46
CFR 16.201(as in effect on October 9,
2014) by the United States Coast Guard,
in which the employee must be tested
(Crewmembers and maritime credential
holders on a commercial vessel);
(h) An occupation specifically
identified as requiring an employee to
be tested for controlled substances in a
State law that took effect no later than
October 9, 2014, and still remains in
effect. DOL seeks comments specifically
on how to refresh the list of
occupations.
§ 620.4 Testing of unemployment
compensation applicants for the unlawful
use of a controlled substance.
(a) States may conduct a drug test on
an unemployment compensation
applicant, as defined in § 620.2 of this
part, for the unlawful use of controlled
substances, as defined in § 620.2, as a
condition of eligibility for
unemployment compensation if the
individual is one for whom suitable
work, as defined in State law, as defined
in § 620.2, is only available in an
occupation that regularly conducts drug
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61019
testing under § 620.3 of this part. Drug
testing is permitted only of an applicant,
and not of an individual filing a
continued claim for unemployment
compensation after initially being
determined eligible. No State is required
to apply drug testing to UC applicants
under this part 620.
(b) A State conducting drug testing as
a condition of unemployment
compensation eligibility as provided in
paragraph (a) of this section may apply
drug testing only to the occupations
listed under § 620.3, but is not required
to apply drug testing to any of them.
(c) State standards governing drug
testing of UC applicants must be in
accordance with guidance, in the form
of program letters or other issuances,
issued by the Department of Labor.
§ 620.5 Conformity and substantial
compliance.
(a) In general. A State law
implementing the drug testing of
applicants for unemployment
compensation must conform with, and
the law’s administration must
substantially comply with, the
requirements of this part 620 for
purposes of certification under section
302 of the SSA (42 U.S.C. 502), of
whether a State is eligible to receive
Federal grants for the administration of
its UC program.
(b) Resolving issues of conformity and
substantial compliance. For the
purposes of resolving issues of
conformity and substantial compliance
with the requirements of this part 620,
the following provisions of 20 CFR
601.5 apply:
(1) Paragraph (b) of 20 CFR 601.5,
pertaining to informal discussions with
the Department of Labor to resolve
conformity and substantial compliance
issues, and
(2) Paragraph (d) of 20 CFR 601.5,
pertaining to the Secretary of Labor’s
hearing and decision on conformity and
substantial compliance.
(c) Result of failure to conform or
substantially comply. Whenever the
Secretary of Labor, after reasonable
notice and opportunity for a hearing to
the State UC agency, finds that the State
UC law fails to conform, or that the
State or State UC agency fails to comply
substantially, with the requirements of
title III, SSA (42 U.S.C. 501–504), as
implemented in this part 620, then the
Secretary of Labor must notify the
Governor of the State and such State UC
agency that further payments for the
administration of the State UC law will
not be made to the State until the
Secretary of Labor is satisfied that there
is no longer any such failure. Until the
Secretary of Labor is so satisfied, the
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Department of Labor will not make
further payments to such State.
Portia Wu,
Assistant Secretary for Employment and
Training, Labor.
[FR Doc. 2014–24098 Filed 10–8–14; 8:45 am]
BILLING CODE 4510–FN–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Chapter II
[Docket No. FR–5817–N–01]
Federal Housing Administration (FHA):
Solicitation of Comment on Streamline
Refinance Provisions in the FHA
Single Family Housing Policy
Handbook
Office of the Assistant
Secretary for Housing—Federal Housing
Commissioner, HUD.
ACTION: Solicitation of comment.
AGENCY:
On September 30, 2014, FHA
issued the FHA Single Family Housing
Policy Handbook section for Title II
Insured Housing Programs Forward
Mortgages: Origination through PostClosing/Endorsement, Handbook
4000.1. The goal of the new FHA Single
Family Housing Policy Handbook
(Handbook) is to streamline and ease the
implementation of FHA’s various
programs by consolidating and
organizing all of FHA’s Single Family
policy into one document. FHA will be
issuing other individual sections of the
Handbook as they are completed. As
part of the consolidation of policy
pertaining to streamline refinance
transactions, FHA has taken the
opportunity to integrate the language
pertaining to streamline refinance
transactions in Mortgagee Letters 2013–
29, 2011–11, 2009–32 and 2008–40 into
a refined mortgage payment history and
calculation of the maximum insurable
mortgage for the streamline refinance
program. Prior to adopting in the
Handbook as final this refined
maximum insured mortgage calculation
for streamline refinance transactions,
HUD seeks public comment on this
language as presented in the Handbook.
DATES: Comment Due Date: November
10, 2014.
ADDRESSES: Interested persons are
invited to submit comments regarding
this document to the Regulations
Division, Office of General Counsel,
Department of Housing and Urban
Development, 451 7th Street SW., Room
10276, Washington, DC 20410–0500.
Communications must refer to the above
docket number and title. There are two
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SUMMARY:
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methods for submitting public
comments. All submissions must refer
to the above docket number and title.
1. Submission of Comments by Mail.
Comments may be submitted by mail to
the Regulations Division, Office of
General Counsel, Department of
Housing and Urban Development, 451
7th Street SW., Room 10276,
Washington, DC 20410–0500.
2. Electronic Submission of
Comments. Interested persons may
submit comments electronically through
the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly
encourages commenters to submit
comments electronically. Electronic
submission of comments allows the
commenter maximum time to prepare
and submit a comment, ensures timely
receipt by HUD, and enables HUD to
make them immediately available to the
public. Comments submitted
electronically through the
www.regulations.gov Web site can be
viewed by other commenters and
interested members of the public.
Commenters should follow the
instructions provided on that site to
submit comments electronically.
Note: To receive consideration as public
comments, comments must be submitted
through one of the two methods specified
above. Again, all submissions must refer to
the docket number and title of the document.
No Facsimile Comments. Facsimile
(FAX) comments are not acceptable.
Public Inspection of Public
Comments. All properly submitted
comments and communications
submitted to HUD will be available for
public inspection and copying between
8 a.m. and 5 p.m. weekdays at the above
address. Due to security measures at the
HUD Headquarters building, an
appointment to review the public
comments must be scheduled in
advance by calling the Regulations
Division at 202–708–3055 (this is not a
toll-free number). Individuals with
speech or hearing impairments may
access this number via TTY by calling
the Federal Relay Service at 800–877–
8339. Copies of all comments submitted
are available for inspection and
downloading at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Elissa Saunders, Deputy Director, Office
of Single Family Program Development,
Office of Housing, Department of
Housing and Urban Development, 451
7th Street SW., Room 9278, Washington,
DC 20410; telephone number 202–708–
2121 (this is not a toll-free number).
Persons with hearing or speech
impairments may access this number
through TTY by calling the toll-free
Federal Relay Service at 800–877–8339.
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SUPPLEMENTARY INFORMATION:
Payment history standards related to
streamline refinances are currently
found in Handbook HUD 4155.1,
entitled Mortgage Credit Analysis for
Mortgage Insurance on One- to FourUnit Mortgage Loans, in sections
3.A.1.h., but have subsequently been
modified by Mortgagee Letters,
including those referenced above. The
Maximum Insurable Mortgage
Calculation for streamline refinances is
found in section 3.C.2.c.
In an effort to ease program
implementation and reduce burden on
lenders, servicers, borrowers, and
interested members of the public, FHA,
as noted in the Summary of this
document, is consolidating and
reorganizing its guidance into a new,
comprehensive FHA Single Family
Housing Policy Handbook (Handbook),
which, once effective, will supersede all
mortgagee letters and prior handbook
provisions whose content has been
incorporated into the Handbook. This
consolidation and reorganization
alleviates unnecessary burdens on
lenders, servicers, and borrowers who
have had to keep track of individual
policy changes published in individual
mortgagee letters, and gives all
interested parties one place to find
important program requirements.
The Handbook section for Title II
Insured Housing Programs Forward
Mortgages—Origination through PostClosing/Endorsement was issued on
September 30, 2014, at https://
portal.hud.gov/hudportal/documents/
huddoc?id=40001HSGH.pdf and will be
effective for case numbers assigned on
or after June 15, 2015. Due to the timing
of the pre-scheduled release of the
Handbook and the complexity of
incorporating and organizing the
various guidance documents for
streamline refinances noted above, and
eliminating extraneous examples, HUD
has opted, in an abundance of caution,
to seek public comment on the refined
maximum mortgage amount calculation
provision and payment history for the
streamline refinance program which can
be found in Paragraphs (4)(b) and (j) of
II.A.8.d.vi.(C) ‘‘Streamline Refinances’’
in the Title II Insured Housing Programs
Forward Mortgages section of the
Handbook. The public comments
received on these provisions will be
given consideration, and notification
will be provided of changes, if any,
made to this section of the Handbook.
Given the significant transition period
that FHA is providing between the
posting of the Handbook and the
effective date of the Handbook, FHA
does not anticipate having to change the
effective date as a result of any changes
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Agencies
[Federal Register Volume 79, Number 196 (Thursday, October 9, 2014)]
[Proposed Rules]
[Pages 61013-61020]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24098]
=======================================================================
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 620
RIN 1205-AB63
Federal-State Unemployment Compensation Program; Middle Class Tax
Relief and Job Creation Act of 2012 Provision on Establishing
Appropriate Occupations for Drug Testing of Unemployment Compensation
Applicants
AGENCY: Employment and Training Administration, Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Employment and Training Administration (ETA) of the U.S.
Department of Labor (Department) proposes to establish in regulation,
for State Unemployment Insurance (UI) program purposes, occupations
that regularly conduct drug testing. These regulations would implement
the Middle Class Tax Relief and Job Creation Act of 2012 (the Act)
amendments to the Social Security Act (SSA), permitting States to enact
legislation that would allow State UI agencies to conduct drug testing
on unemployment compensation (UC) applicants for whom suitable work (as
defined under the State law) is only available in an occupation that
regularly conducts drug testing (as determined under regulations issued
by the Secretary of Labor (Secretary)). States may deny UC to an
applicant who tests positive for drug use under these circumstances.
The Secretary is required under the SSA to issue regulations
determining those occupations that regularly conduct drug testing.
[[Page 61014]]
DATES: To be ensured consideration, comments must be submitted in
writing on or before December 8, 2014.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB63, by one of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov. Follow the
Web site instructions for submitting comments.
Mail and hand delivery/courier: Written comments, disk, and CD-ROM
submissions may be mailed to Adele Gagliardi, Administrator, Office of
Policy Development and Research, U.S. Department of Labor, 200
Constitution Avenue NW., Room N-5641, Washington, DC 20210.
Instructions: Label all submissions with ``RIN 1205-AB63.''
Please submit your comments by only one method. Please be advised
that the Department will post all comments received that that related
to this NPRM on https://www.regulations.gov without making any change to
the comments or redacting any information. The https://www.regulations.gov Web site is the Federal e-rulemaking portal and all
comments posted there are available and accessible to the public.
Therefore, the Department recommends that commenters remove personal
information such as Social Security Numbers, personal addresses,
telephone numbers, and email addresses included in their comments as
such information may become easily available to the public via the
https://www.regulations.gov Web site. It is the responsibility of the
commenter to safeguard personal information.
Also, please note that due to security concerns, postal mail
delivery in Washington, DC may be delayed. Therefore, the Department
encourages the public to submit comments on https://www.regulations.gov.
Docket: All comments on this proposed rule will be available on the
https://www.regulations.gov Web site and can be found using RIN 1205-
AB63. The Department also will make all the comments it receives
available for public inspection by appointment during normal business
hours at the above address. If you need assistance to review the
comments, the Department will provide appropriate aids such as readers
or print magnifiers. The Department will make copies of this proposed
rule available, upon request, in large print and electronic file on
computer disk. To schedule an appointment to review the comments and/or
obtain the proposed rule in an alternative format, contact the Office
of Policy Development and Research at (202) 693-3700 (this is not a
toll-free number). You may also contact this office at the address
listed below.
Comments under the Paperwork Reduction Act: In addition to filing
comments with ETA, persons wishing to comment on the information
collection aspects of this rule may send comments to: Office of
Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA,
Office of Management and Budget, Room 10235, 725 17th Street NW.,
Washington, DC 20503, Fax: 202-395-6881 (this is not a toll-free
number), email: OIRA_submission@omb.eop.gov.
FOR FURTHER INFORMATION CONTACT: Adele Gagliardi, Administrator, Office
of Policy Development and Research, U.S. Department of Labor, 200
Constitution Avenue NW., Room N-5641, Washington, DC 20210; telephone
(202) 693-3700 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: The preamble to this proposed rule is
organized as follows:
I. Background--provides a brief description of the development of
the proposed rule
II. Section-by-Section Review--summarizes and discusses the proposed
regulations
III. Administrative Information--sets forth the applicable
regulatory requirements
I. Background
On February 22, 2012, President Obama signed the Act, Public Law
112-96. Title II of the Act amended section 303, SSA, to add a new
subsection (l) permitting States to drug test UC applicants as a
condition of UC eligibility under two specific circumstances. The first
circumstance is if the applicant was terminated from employment with
the applicant's most recent employer because of the unlawful use of a
controlled substance. (Section 303(l)(1)(A)(i), SSA.) The second
circumstance is if the only available suitable work (as defined in the
law of the State conducting the drug testing) for an individual is in
an occupation that regularly conducts drug testing (as determined in
regulations by the Secretary). A State may deny UC to an applicant who
tests positive for drug use under these circumstances. (Section
303(l)(1)(A)(ii), SSA.) This proposed rule defines those occupations
that regularly conduct drug testing as required by section
303(l)(1)(A)(ii), SSA. The Department of Labor will, separately from
this rulemaking, issue further guidance to States to address other
issues related to the implementation of drug testing under 303(l), SSA.
Consultations With Other Federal Agencies
The Department consulted with a number of Federal agencies with
expertise in drug testing to inform this proposed regulation.
Specifically, we consulted with the Substance Abuse and Mental Health
Services Administration (SAMHSA) in the U.S. Department of Health and
Human Services (HHS); the U.S. Department of Transportation (DOT); the
U.S. Department of Defense (DOD); the U.S. Department of Homeland
Security (DHS); DOL's Bureau of Labor Statistics (BLS); and DOL's
Occupational Safety and Health Administration (OSHA). These agencies
were consulted because they have experience with required drug testing.
DOD and DHS defer to SAMHSA for interpretation of the drug testing
requirements. Therefore, the Department gave deference to the SAMHSA
guidance when developing this rule. The Department also canvassed State
laws to develop an understanding of what occupations require regular
drug testing at the State level.
SAMHSA: The Department consulted with SAMHSA because it is the
Federal agency mandated to oversee Federal workplace drug testing by
Pub. L. 100-71 and, further, by E.O. 12564, entitled Drug-Free Federal
Workplace. E.O. 12564 requires that the head of each Federal agency
``shall establish a program to test for the use of illegal drugs by
employees in sensitive positions.'' Public Law 100-71 directed HHS to
establish scientific and technical guidelines and ensure that
comprehensive standards are published to govern the drug testing of
Federal employees. SAMHSA provides oversight for:
[rtarr8] The Federal Drug-Free Workplace Program, which aims to
eliminate illicit drug use in the Federal workforce; and
[rtarr8] The National Laboratory Certification Program, which
certifies laboratories to conduct forensic drug testing for the Federal
agencies and for some Federally-regulated industries.
In order to oversee Federal workplace drug testing, SAMHSA reviews
Federal agencies' drug testing designated positions (TDPs), which
SAMSHA requires Federal agencies to designate.
OSHA: ETA consulted with DOL's OSHA because of its knowledge of
employer drug testing programs. OSHA also was instrumental in
identifying
[[Page 61015]]
expertise in other Federal agencies that proved valuable to the
development of the NPRM.
DOT: ETA consulted with DOT partly because DOT has a number of
occupations designated as TDPs by SAMHSA, and more significantly
because DOT regulations at 49 CFR part 40 identify public and private
employment in transportation industries as being subject to drug
testing. These regulations require that the Secretary of Transportation
ensure drug and alcohol testing policies are developed and carried out
in a consistent, efficient, and effective manner within the
transportation industries for the ultimate safety and protection of the
traveling public.
BLS: ETA consulted with BLS and determined that currently no
statistical collections exist that relate to occupations where
employers regularly drug test.
Review of State Drug Testing Laws
ETA's consultation did not reveal any single reliable and current
source of occupations that regularly drug test. Therefore, ETA relied
on current Federal and State laws as the primary sources to determine
what occupations regularly drug test for purposes of implementing
Section 303(l), SSA. Some States have not enacted workplace drug and
alcohol testing laws. Others have enacted laws that permit and
encourage employers to conduct drug testing of applicants and/or
employees, but they are not based on occupations and therefore do not
fall within the scope of this rulemaking. For example, most States
allow a private employer to decide whether and when to test job
applicants and employees, often in accordance with a written policy
created by the employer according to State law. In some instances,
State law specifies that the employer may test job applicants and
current employees for any job-related purpose consistent with business
necessity and the terms of the employer's written policy. If States do
provide restrictions on workplace drug testing, then they commonly
provide more protection to employees than to job applicants. For
example, a State's law may permit employers to require all job
applicants with conditional offers of employment to take drug tests,
but they permit an employer to require a drug test of an employee only
if the employer has reasonable suspicion that use of drugs is impairing
the employee's job performance or has probable cause to believe that
the employee, while on the job, is using or is under the influence of
drugs. These provisions are not relevant to this rulemaking, which
must, under section 303(l)(1)(A)(ii), SSA, determine what occupations
are ``regularly'' drug tested.
Many States also provide various discounts and credits to employers
that adopt drug-free workplace programs. Some States' programs require
drug testing of applicants and/or employees as part of these programs,
while others do not. Some States that require participating employers
to test job applicants nevertheless allow the employers to limit such
testing based on reasonable classifications of job positions. Employer
sponsorship of a drug-free workplace program is usually voluntary but
may be required of state contractors.
State laws that clearly fall within the scope of this regulation
include those that identify types of positions for which employers may
conduct drug testing. For example, a State's law may permit drug
testing only of individuals ``employed in safety-sensitive positions''
or if the ``employee serves in an occupation which has been designated
as a high-risk or safety-sensitive occupation.'' At least one State
permits testing of individuals who ``participate in activities upon
which pari-mutuel wagering is authorized.''
State laws that identify specific classes of positions for which
drug testing of applicants and/or employees is required also fall
affirmatively within the scope of this regulation. State laws most
commonly require drug testing of drivers of school transportation
vehicles and commercial motor vehicles. States may also require certain
types of private employers to conduct at least some drug testing of
employees and/or job applicants (e.g., nursing homes and home health
agencies, residential childcare facilities, public works projects
contractors, corrections facilities, and nuclear and radioactive
storage and transfer facilities).
In conclusion, ETA's research of some Federal and State laws
related to drug testing found that they refer to classes of positions
(e.g., any position requiring an employee to carry a firearm) that are
required to be drug tested, rather than occupations as defined by BLS
in the Standard Occupational Classification System. Therefore, this
NPRM defines (as explained below) an ``occupation'' to mean a position
or class of positions identified as subject to drug testing under
specified Federal or State laws as described in these proposed
regulations.
Summary of the Proposed Rule
We concluded from our research of what it means in Federal or State
law to ``regularly'' drug test that no consistent standard applies
across classes of positions or occupations to determine that
``regular'' drug testing occurs. While some State laws might permit,
but not require, drug testing of certain ``occupations,'' whether drug
testing is ``regularly'' conducted when merely permitted can vary
widely across occupations and industries and trades, and regularity
also can change over time. Thus, we believe it would be overbroad to
include occupations for which State law merely permits, but does not
require, drug testing. However, it is a given that any occupation for
which drug testing is required is one that is drug tested
``regularly.'' Therefore, occupations that ``regularly'' require drug
testing are limited in these regulations to those for which drug
testing is required, not merely permitted. Therefore, this proposed
regulation identifies classes of positions, or ``occupations,'' that
are required to be drug tested in Federal or State law as the standard
for determining ``occupations'' that ``regularly'' drug test.
Accordingly, we propose that an applicant may be drug tested by the
State in order to be eligible to receive State UC if the applicant's
only suitable work, as defined under the State UC law, is in a position
or class of positions, i.e., an ``occupation,'' for which Federal law
or that State's law requires employee drug testing in that occupation.
Additionally, we propose that only those State laws which identify
occupations or positions (e.g., school bus drivers) may be the basis
for such testing; this regulation excludes, as the basis for testing,
State laws that go beyond the scope of identifying occupations or
position classifications, and instead identify types of employers
(e.g., public works projects contractors) or permit testing at the
employer discretion (e.g., in connection with a drug free workplace
policy that applies to all applicants).
We also propose that classes of positions, or ``occupations,''
requiring drug testing under Federal and State laws be limited to those
identified in Federal and State laws already in effect at the date of
the publication of this NPRM. Because drug testing as a condition of UC
eligibility is a new policy and has the potential to be implemented in
ways that may have unintended consequences, the Department considers it
prudent to apply Federal and State law drug testing requirements
currently in place, to be able to assess and evaluate most effectively
the impact of this new policy. The Department recognizes that Federal
and State laws may evolve in identifying which positions or
[[Page 61016]]
occupations are required to drug test. The Department will monitor such
changes and may amend this regulation accordingly in the future. The
Department encourages comments on methods to refresh the list of
occupations that regularly drug test.
For Federal laws requiring drug testing, SAMHSA has designated some
classes of positions as ``presumptive'' TDPs, i.e., positions that may
be designated as requiring a drug test without the agency being
required to justify the designation to SAMHSA. A list of presumptive
TDPs is included in the HHS publication ``2010 Guidance for Selection
of Testing Designated Positions,'' April 5, 2010, available on the
SAMHSA Web site at https://workplace.samhsa.gov/federal.html. These
classes of positions include those that require carrying a firearm,
motor vehicle operators carrying passengers, aviation flight crew
members and air traffic controllers, and railroad operating crews. This
NPRM proposes that these classes of positions be deemed ``occupations''
that regularly drug test.
In addition, DOT requires drug testing for classes of positions in
various transportation industries in 49 CFR Part 40,\1\ Procedures for
Transportation Workplace Drug and Alcohol Testing Programs. These
regulations require the Secretary of Transportation to ensure drug and
alcohol testing policies are developed and carried out in a consistent,
efficient, and effective manner within the transportation industries
for the ultimate safety and protection of the traveling public. DOT's
Office of Drug and Alcohol Policy and Compliance provides guidance to
the Federal agencies covered by DOT on the drug testing policy of
covered employees (i.e., those subject to drug testing). The
regulations apply to safety-sensitive classes of positions in the
transportation industries including aviation, trucking, mass transit,
railroads, pipelines, and other vital transportation related
industries. Mandatory drug testing requirements are identified in the
sections of the CFR that apply to the specific Federal agencies that
regulate these industry sectors. Federal agency regulations that
implement the drug testing requirements of 49 CFR part 40 for the
industries these agencies regulate are as follows: Federal Aviation
Administration, 14 CFR part 120; Federal Motor Carrier Safety
Administration, 49 CFR part 382; Federal Railroad Administration, 49
CFR part 219; Federal Transit Administration, 49 CFR part 655; Pipeline
and Hazardous Materials Safety Administration, 49 CFR part 199; and
crewmembers and maritime credential holders by the Coast Guard, 46 CFR
part 16. The proposed regulation identifies the specific sections of
these regulations that identify the classes of positions that are
subject to drug testing.
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\1\ DOT was granted authority to establish regulations at 49 CFR
Part 40 by the Omnibus Transportation Employee Testing Act of 1991,
Public Law 102-143.
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II. Section-by-Section Review
What is the purpose of the proposed regulation? (Sec. 620.1)
Proposed Sec. 620.1 explains that the purpose of the NPRM is to
implement section 303(l)(A)(ii), SSA, permitting drug testing UC
applicants for the use of controlled substances where suitable work (as
defined under the State's UC law) is only available in an occupation
for which drug testing is regularly conducted (as determined under this
part 620).
What definitions apply to this part? (Sec. 620.2)
``Applicant'' means an individual who files an initial claim for UC
under State law. ``Applicant'' excludes an individual already found
initially eligible and filing a continued claim. This is consistent
with common usage of the term ``applicant'' in UC nomenclature.
``Controlled substance,'' as defined by Section 303(l)(2)(B), SSA,
has the same meaning given such term in section 102 of the Controlled
Substances Act (Pub. L. 91-513, 21 U.S.C. 801 et seq.). ``Controlled
substance'' means a drug or other substance, or immediate precursor,
included in schedule I, II, III, IV, or V of part B of 21 U.S.C. 801 et
seq. The term does not include distilled spirits, wine, malt beverages,
or tobacco, as those terms are defined or used in subtitle E of the
Internal Revenue Code of 1986.
``Occupation'' means a position or class of positions. As discussed
above, Federal and State laws on drug testing do not specify or refer
to ``occupations'' requiring drug testing, but rather identify
positions or classes of positions, in descriptive terms such as, for
example, positions requiring the carrying of a firearm. Because we
propose to refer to specific provisions of law in defining
``occupations'' for purposes of UC drug testing, the proposed
definition of occupation identifies the specific provisions of law in
the later section.
``Suitable Work'' means suitable work as defined under the UC law
of the State against which the claim is filed. This is the same
definition of ``suitable work'' under that State law as the State
otherwise uses for determining UC eligibility based on seeking work or
refusal of work.
``Unemployment Compensation'' is defined in Section 303(l)(2)(A),
SSA, to have the same meaning given to the term in Section
303(d)(2)(A), SSA, which states that the term unemployment compensation
means ``any unemployment compensation payable under the State law
(including amounts payable pursuant to an agreement under a Federal
unemployment compensation law.)'' Section 3306(h) of the Federal
Unemployment Tax Act (26 U.S.C. 3306(h)) defines compensation to mean
``cash benefits payable to individuals with respect to their
unemployment.''
What are the occupations for which drug testing is regularly conducted
for purposes of this part 620? (Sec. 620.3)
Proposed Sec. 620.3 identifies occupations for which drug testing
is regularly conducted. These occupations are those that require the
employee to carry a firearm. They also include classes of positions/
occupations identified by SAMHSA as presumptive drug testing positions;
classes of positions/occupations for which employers are required to
drug test employees as identified in DOT's regulations at 49 CFR parts
199, 219, 382, and 655; classes of positions/occupations for which drug
testing is required under United States Coast Guard regulations at 46
CFR part 16; and classes of positions/occupations in which an employee
must be tested under Federal Aviation Administration regulations at 14
CFR part 120. As explained above, these occupations are limited to
those identified in these regulations as of the date of the publication
of the proposed rule. They also include occupations for which drug
testing was required already under State law in effect at the date of
publication of this NPRM. States are not required to drug test as a
condition of UC eligibility for any of these occupations; however, they
may not, except as permitted by section 303(l)(1)(A)(i), SSA,
(governing drug testing of individuals terminated for the unlawful use
of a controlled substance) drug test for any occupation that does not
meet the definition in Sec. 620.3. As noted previously, it is the
Department's intent to monitor Federal and State legislation in
relation to classes of positions or occupations that are required to
drug test and consider changes to the regulation as appropriate.
[[Page 61017]]
DOL seeks comments on how to refresh the list of occupations.
What are the parameters for the testing of applicants for the unlawful
use of a controlled substance? (Sec. 620.4)
Proposed Sec. 620.4, consistent with section 303(l), SSA, provides
that a State may require applicants to take and pass a drug test for
the illegal use of controlled substances as a condition of initial
eligibility for UC under specified conditions. Applicants may be denied
UC based on the results of these tests.
Proposed paragraph (a) provides that an applicant, as defined in
proposed Sec. 620.2, may be tested for the unlawful use of controlled
substances, as defined in proposed Sec. 620.2, as an eligibility
condition for UC if the individual is one for whom suitable work, as
defined by that State's UC law, is only available in an occupation that
regularly conducts drug testing, as determined under proposed Sec.
620.3. The reference to ``applicant,'' ensures that only an applicant
who is filing an initial UC claim, and not a claimant filing a
continued claim, may be subject to drug testing.
Proposed paragraph (b) provides that a State requiring drug testing
as a condition of UC eligibility may apply drug testing to any one or
more of the occupations listed under Sec. 620.3, but is not required
to apply drug testing to any of them. The Act does not require a State
to conduct drug tests at all, and consistent with the partnership
nature of the Federal-State UC system, the Department proposes to allow
States flexibility to decide which permitted occupations may be subject
to State-conducted drug testing.
Proposed paragraph (c) provides that the standards which a State
establishes relating to drug testing of applicants for UC must be in
accordance with guidance issued by the Department. While section
303(l), SSA, requires the Secretary to issue regulations on the
occupations that regularly conduct drug testing, the Secretary will
address all other issues relating to section 303(l), SSA, in later
guidance such as program letters and other issuances.
What are the consequences of failing to implement a drug testing
program in accordance with these regulations? (Sec. 620.5)
Section 620.5 explains that implementation of drug testing of UC
applicants as authorized under State laws must be in conformity with
these regulations in order for States to be certified under Section 302
of the SSA (42 U.S.C. 502), with respect to whether a State is eligible
to receive Federal grants for the administration of its UC program.
III. Administrative Information
Executive Orders 12866 and 13563: Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. For a ``significant regulatory action,'' E.O. 12866 asks
agencies to describe the need for the regulatory action and explain how
the regulatory action will meet that need, as well as assess the costs
and benefits of the regulation.\2\ This regulation is necessary because
of the statutory requirement contained in new section 303(l)(1)(A)(ii),
SSA, which requires the Secretary to determine the occupations that
regularly conduct drug testing for the propose of determining which
applicants may be drug tested when applying for State unemployment
compensation. The Department considers this rule to be a ``significant
regulatory action'' as defined in section 3(f) of E.O. 12866, because
it raises novel legal or policy issues arising out of legal mandates.
Before the amendment of Federal law to add new section 303(l)(1), SSA,
drug testing of applicants for UC as a condition of eligibility was
prohibited.
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\2\ Executive Order No. 12866, section 6(a)(3)(B).
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The Department believes this is not an economically significant
rulemaking within the definition of E.O. 12866 because it is not an
action that is likely to result in the following: An annual effect on
the economy of $100 million or more; an adverse or material effect on a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or Tribal
governments or communities; serious inconsistency or interference with
an action taken or planned by another agency; or a material change in
the budgetary impact of entitlements, grants, user fees, or loan
programs, or the rights and obligations of recipients thereof. In
addition, since the rule is entirely voluntary on the part of the
States and since Section 303(l), SSA is written so narrowly that the
number of UI applicants eligible to be tested will be small, the
Department believes it is unlikely that many States will establish a
testing program because they won't deem it cost effective to do so. The
Department seeks comment from interested stakeholders on this
assumption.
There are limited data on which to base estimates of the cost
associated with establishing a testing program. Only one of the two
States that have enacted a conforming drug testing law issued a fiscal
note. That State is Texas, which estimated that the 5-year cost of
administering the program would be $1,175,954. This includes both one-
time technology personnel services for the first year to program the
system and ongoing administrative costs for personnel. The Texas
analysis estimated a potential savings to the Unemployment Trust Fund
of $13,700,580 over the 5-year period, resulting in a net savings of
approximately $12.5 million. The Department believes it would be
inappropriate to extrapolate the Texas analysis to all States in part
because of differences in the Texas law and the requirements in this
proposed rule. The Department has included this information about Texas
for illustrative purposes only and emphasizes that by doing so, it is
not validating the methodology or assumptions in the Texas analysis.
Under the proposed rule, States will be prohibited from testing
applicants for unemployment compensation who do not meet the narrow
criteria established in the law. The Department requests that
interested stakeholders with data on the costs of establishing a state-
wide testing program; the number of applicants for unemployment
compensation that fit the narrow criteria established in the law; and
estimates of the number of individuals that would subsequently be
denied unemployment compensation due to a failed drug test submit it
during the comment period.
In the absence of data, the Department is unable to quantify the
administrative costs States will incur if they choose to implement drug
testing pursuant to this rule. States may need to find funding to
implement a conforming drug testing program for unemployment
compensation applicants. No additional funding has been appropriated
for this purpose and current Federal funding for the administration of
State unemployment compensation programs may be insufficient to support
the additional costs of establishing and operating a drug testing
program. Permissible alternative funding sources are not readily
available. States will need to fund the cost of the drug tests,
[[Page 61018]]
staff costs for administration of the drug testing function, and
technology costs to track drug testing outcomes. States will incur ramp
up costs that will include implementing business processes necessary to
determine whether an applicant is one for whom drug testing is
permissible pursuant to the law; developing a process to refer and
track applicants referred for drug testing; and the costs of testing
that meets the standards required by the Secretary of Labor. States
will also have to factor in increased costs of adjudication and appeals
of both the determination of applicability of the drug testing to the
individual and of the resulting determinations of benefit eligibility
based on the test results.
To date, very few States have expressed interest in drug testing
unemployment compensation applicants. Only two States have enacted
conforming legislation. Only six other States introduced conforming
drug testing bills so far and none of them were passed by the house of
introduction.
Benefits of the rule are equally hard to determine. As discussed
above, the provisions will impact a very limited number of applicants
for unemployment compensation benefits.
Paperwork Reduction Act
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
affected entities. The PRA requires certain actions before an agency
can adopt or revise a collection of information, including publishing a
summary of the collection of information, a brief description of the
need for and proposed use of the information, and a request for
comments on the information collections.
A Federal agency may not conduct or sponsor a collection of
information unless it is approved by OMB under the PRA, and displays a
currently valid OMB control number, and the public is not required to
respond to a collection of information unless it displays a currently
valid OMB control number. Also, notwithstanding any other provisions of
law, no person shall be subject to penalty for failing to comply with a
collection of information if the collection of information does not
display a currently valid OMB control number (44 U.S.C. 3512).
The Department has determined that this proposed rule does not
contain a ``collection of information,'' as the term is defined. See 5
CFR 1320.3(c). DOL expressly seeks comments on this determination.
Executive Order 13132: Federalism
Section 6 of Executive Order 13132 requires Federal agencies to
consult with State entities when a regulation or policy may have a
substantial direct effect on the States or the relationship between the
National Government and the States, or the distribution of power and
responsibilities among the various levels of government, within the
meaning of the Executive Order. Section 3(b) of the Executive Order
further provides that Federal agencies must implement regulations that
have a substantial direct effect only if statutory authority permits
the regulation and it is of national significance.
This proposed rule does not have a substantial direct effect on the
States or the relationship between the National Government and the
States, or the distribution of power and responsibilities among the
various levels of Government, within the meaning of the Executive
Order. This is because drug testing authorized by the regulation is
voluntary on the part of the State, not required.
Unfunded Mandates Reform Act of 1995
This regulatory action has been reviewed in accordance with the
Unfunded Mandates Reform Act of 1995 (the Reform Act). Under the Reform
Act, a Federal agency must determine whether a regulation proposes a
Federal mandate that would result in the increased expenditures by
State, local, or tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any single year. The
Department has determined that since States have an option of drug
testing UC applicants and can elect not to do so, this proposed rule
does not include any Federal mandate that could result in increased
expenditure by State, local, and Tribal governments. Drug testing under
this rule is purely voluntary, so that any increased cost to the States
is not the result of any mandate. Accordingly, it is unnecessary for
the Department to prepare a budgetary impact statement.
Plain Language
The Department drafted this proposed rule in plain language.
Effect on Family Life
The Department certifies that this proposed rule has been assessed
according to section 654 of the Treasury and General Government
Appropriations Act, enacted as part of the Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112
Stat. 2681) for its effect on family well-being. The Department
certifies that this proposed rule does not adversely impact family
well-being as discussed under section 654 of the Treasury and General
Government Appropriations Act of 1999.
Regulatory Flexibility Act/Small Business Regulatory Enforcement
Fairness Act
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603(a) requires
agencies to prepare and make available for public comment an initial
regulatory flexibility analysis which will describe the impact of the
proposed rule on small entities. Section 605 of the RFA allows an
agency to certify a rule, in lieu of preparing an analysis, if the
proposed rulemaking is not expected to have a significant economic
impact on a substantial number of small entities. This rule does not
affect small entities as defined in the RFA. Therefore, the rule will
not have a significant economic impact on a substantial number of these
small entities. The Department has certified this to the Chief Counsel
for Advocacy, Small Business Administration, pursuant to the Regulatory
Flexibility Act.
List of Subjects in 20 CFR Part 620
Unemployment compensation.
For the reasons stated in the preamble, the Department proposes to
amend 20 CFR chapter V by adding part 620 to read as follows:
PART 620--OCCUPATIONS THAT REGULARLY CONDUCT DRUG TESTING FOR STATE
UNEMPLOYMENT COMPENSATION ELIGIBILITY DETERMINATION PURPOSES
Sec.
620.1 Purpose.
620.2 Definitions.
620.3 Occupations that regularly conduct drug testing for purposes
of determining which applicants may be drug tested when applying for
state unemployment compensation.
620.4 Testing of unemployment compensation applicants for the
unlawful use of a controlled substance.
620.5 Conformity and substantial compliance.
Authority: 42 U.S.C. 1302(a); 42 U.S.C. 503(l)(1)(ii)
Sec. 620.1 Purpose.
The regulations in this part implement section 303(l) of the Social
Security Act (SSA) (42 U.S.C. 503(l)). Section 303(l), SSA, permits
States to enact legislation to provide for the State-conducted testing
of an unemployment compensation applicant for the
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unlawful use of controlled substances, as a condition of unemployment
compensation eligibility, if the applicant was discharged for unlawful
use of controlled substances by his or her most recent employer, or if
suitable work (as defined under the State unemployment compensation
law) is only available in an occupation for which drug testing is
regularly conducted (as determined under this part 620). Section
303(l)(1)(A)(ii), SSA, requires the Secretary of Labor to issue
regulations determining the occupations that regularly conduct drug
testing. These regulations are limited to that requirement.
Sec. 620.2 Definitions.
As used in this part--
Applicant means an individual who files an initial claim for
unemployment compensation under State law. Applicant excludes an
individual already found initially eligible and filing a continued
claim.
Controlled substance means a drug or other substance, or immediate
precursor, included in schedule I, II, III, IV, or V of part B of 21
U.S.C. 801 et seq., as defined in section 102 of the Controlled
Substances Act (Pub. L. 91-513, 21 U.S.C. 801 et seq.). The term does
not include distilled spirits, wine, malt beverages, or tobacco, as
those terms are defined or used in subtitle E of the Internal Revenue
Code of 1986.
Occupation means a position or class of positions. Federal and
State laws governing drug testing refer to the classes of positions
that are required to be drug tested rather than occupations, such as
those defined by the Bureau of Labor Statistics in the Standard
Occupational Classification System. Therefore, for purposes of this
regulation, a position or class of positions will be considered the
same as an ``occupation.''
Suitable work means suitable work as defined by the unemployment
compensation law of a State against which the claim is filed. It must
be the same definition the State law otherwise uses for determining the
type of work an individual must seek given the individual's education,
experience and previous level of remuneration.
Unemployment compensation means any cash benefits payable to an
individual with respect to their unemployment under the State law
(including amounts payable under an agreement under a Federal
unemployment compensation law.)
Sec. 620.3 Occupations that regularly conduct drug testing for
purposes of determining which applicants may be drug tested when
applying for State unemployment compensation.
Occupations that regularly conduct drug testing, for purposes of
Sec. 620.4, are:
(a) An occupation that requires the employee to carry a firearm;
(b) An occupation identified in 14 CFR 120.105 (as in effect on
October 9, 2014) by the Federal Aviation Administration, in which the
employee must be tested (Aviation flight crew members and air traffic
controllers);
(c) An occupation identified in 49 CFR 382.103 (as in effect on
October 9, 2014) by the Federal Motor Carrier Safety Administration, in
which the employee must be tested (Commercial drivers);
(d) An occupation identified in 49 CFR 219.3 (as in effect on
October 9, 2014) by the Federal Railroad Administration, in which the
employee must be tested (Railroad operating crew members);
(e) An occupation identified in 49 CFR 655.3 (as in effect on
October 9, 2014) by the Federal Transit Administration, in which the
employee must be tested (Public transportation operators);
(f) An occupation identified in 49 CFR 199.2 (as in effect on
October 9, 2014) by the Pipeline and Hazardous Materials Safety
Administration, in which the employee must be tested (Pipeline
operation and maintenance crew members);
(g) An occupation identified in 46 CFR 16.201(as in effect on
October 9, 2014) by the United States Coast Guard, in which the
employee must be tested (Crewmembers and maritime credential holders on
a commercial vessel);
(h) An occupation specifically identified as requiring an employee
to be tested for controlled substances in a State law that took effect
no later than October 9, 2014, and still remains in effect. DOL seeks
comments specifically on how to refresh the list of occupations.
Sec. 620.4 Testing of unemployment compensation applicants for the
unlawful use of a controlled substance.
(a) States may conduct a drug test on an unemployment compensation
applicant, as defined in Sec. 620.2 of this part, for the unlawful use
of controlled substances, as defined in Sec. 620.2, as a condition of
eligibility for unemployment compensation if the individual is one for
whom suitable work, as defined in State law, as defined in Sec. 620.2,
is only available in an occupation that regularly conducts drug testing
under Sec. 620.3 of this part. Drug testing is permitted only of an
applicant, and not of an individual filing a continued claim for
unemployment compensation after initially being determined eligible. No
State is required to apply drug testing to UC applicants under this
part 620.
(b) A State conducting drug testing as a condition of unemployment
compensation eligibility as provided in paragraph (a) of this section
may apply drug testing only to the occupations listed under Sec.
620.3, but is not required to apply drug testing to any of them.
(c) State standards governing drug testing of UC applicants must be
in accordance with guidance, in the form of program letters or other
issuances, issued by the Department of Labor.
Sec. 620.5 Conformity and substantial compliance.
(a) In general. A State law implementing the drug testing of
applicants for unemployment compensation must conform with, and the
law's administration must substantially comply with, the requirements
of this part 620 for purposes of certification under section 302 of the
SSA (42 U.S.C. 502), of whether a State is eligible to receive Federal
grants for the administration of its UC program.
(b) Resolving issues of conformity and substantial compliance. For
the purposes of resolving issues of conformity and substantial
compliance with the requirements of this part 620, the following
provisions of 20 CFR 601.5 apply:
(1) Paragraph (b) of 20 CFR 601.5, pertaining to informal
discussions with the Department of Labor to resolve conformity and
substantial compliance issues, and
(2) Paragraph (d) of 20 CFR 601.5, pertaining to the Secretary of
Labor's hearing and decision on conformity and substantial compliance.
(c) Result of failure to conform or substantially comply. Whenever
the Secretary of Labor, after reasonable notice and opportunity for a
hearing to the State UC agency, finds that the State UC law fails to
conform, or that the State or State UC agency fails to comply
substantially, with the requirements of title III, SSA (42 U.S.C. 501-
504), as implemented in this part 620, then the Secretary of Labor must
notify the Governor of the State and such State UC agency that further
payments for the administration of the State UC law will not be made to
the State until the Secretary of Labor is satisfied that there is no
longer any such failure. Until the Secretary of Labor is so satisfied,
the
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Department of Labor will not make further payments to such State.
Portia Wu,
Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2014-24098 Filed 10-8-14; 8:45 am]
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