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, 50298-50303 [2016-17738]
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charges for the transmission or sale of
electric energy subject to the
Commission’s jurisdiction, plus the
classification, practices, contracts and
regulations that affect rates, charges,
classifications, and services.68 The
revisions adopted in this Final Rule
would update and clarify the
application of the Commission’s
standard interconnection requirements
to small generating facilities.
58. Therefore, this Final Rule falls
within the categorical exemptions
provided in the Commission’s
regulations, and as a result neither an
Environmental Impact Statement nor an
Environmental Assessment is required.
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VIII. Document Availability
59. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the Internet through the
Commission’s Home Page (https://
www.ferc.gov) and in the Commission’s
Public Reference Room during normal
business hours (8:30 a.m. to 5:00 p.m.
Eastern time) at 888 First Street NE.,
Room 2A, Washington, DC 20426.
60. From the Commission’s Home
Page on the Internet, this information is
available on eLibrary. The full text of
this document is available on eLibrary
in PDF and Microsoft Word format for
viewing, printing, and/or downloading.
To access this document in eLibrary,
type the docket number of this
document, excluding the last three
digits, in the docket number field.
61. User assistance is available for
eLibrary and the Commission’s Web site
during normal business hours from the
Commission’s Online Support at (202)
502–6652 (toll free at 1–866–208–3676)
or email at ferconlinesupport@ferc.gov,
or the Public Reference Room at (202)
502–8371, TTY (202) 502–8659. Email
the Public Reference Room at
public.referenceroom@ferc.gov.
IX. Effective Date and Congressional
Notification
62. The Final Rule is effective October
5, 2016. However, as noted above, the
requirements of this Final Rule will
apply only to all newly interconnecting
small generating facilities that execute
or request the unexecuted filing of an
SGIA on or after the effective date of
this Final Rule as well as existing
interconnection customers that,
pursuant to a new interconnection
request, execute or request the
unexecuted filing of a new or modified
SGIA on or after the effective date. The
68 18
CFR 380.4(a)(15).
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Commission has determined, with the
concurrence of the Administrator of the
Office of Information and Regulatory
Affairs of OMB, that this Final Rule is
not a ‘‘major rule’’ as defined in section
351 of the Small Business Regulatory
Enforcement Fairness Act of 1996. This
Final Rule is being submitted to the
Senate, House, Government
Accountability Office, and Small
Business Administration.
By the Commission.
Issued: July 21, 2016.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
Note: The following Attachment will not
appear in the Code of Federal Regulations.
Appendix A—List of Substantive
Commenters (RM16–8–000)
Bonneville Bonneville Power
Administration
Trade Associations Edison Electric
Institute/American Public Power
Association/Large Public Power Council/
National Rural Electric Cooperative
Association
EPRI Electric Power Research Institute
Idaho Power Idaho Power Company
IEEE Institute of Electrical and Electronics
Engineers
ISO/RTO Council ISO/RTO Council
NERC North American Electric Reliability
Corporation
PG&E Pacific Gas and Electric Company
Peak Reliability Peak Reliability
PNM Public Service Company of New
Mexico
SoCal Edison Southern California Edison
Company
In addition, Entergy Services, Inc.
submitted non-substantive comments.
[FR Doc. 2016–17843 Filed 7–29–16; 8:45 am]
BILLING CODE 6717–01–P
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
Employment and Training
Administration, Labor.
ACTION: Final rule.
AGENCY:
The Employment and
Training Administration (ETA) of the
U.S. Department of Labor (Department)
SUMMARY:
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is issuing this final rule to establish, for
State Unemployment Compensation
(UC) program purposes, occupations
that regularly conduct drug testing.
These regulations 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 UC
agencies to conduct drug testing on UC
applicants for whom suitable work (as
defined under the State law) is available
only 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.
DATES: Effective Date: This final rule is
effective September 30, 2016.
FOR FURTHER INFORMATION CONTACT:
Suzanne Simonetta, Office of
Unemployment Insurance, ETA, U.S.
Department of Labor, 200 Constitution
Avenue NW., Room S–4524,
Washington, DC 20210; telephone: (202)
693–3225 (this is not a toll-free
number); email: simonetta.suzanne@
dol.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On October 9, 2014, The Department
published a Notice of Proposed
Rulemaking (NPRM) concerning
occupations that regularly conduct drug
testing at 79 FR 61013. The Department
invited comments through December 8,
2014.
II. General Discussion of the Final Rule
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 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). If an applicant who is tested
for drug use under either circumstance
tests positive, the State may deny UC to
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that applicant. On October 9, 2014, the
Department published a Notice of
Proposed Rulemaking (NPRM)
concerning occupations that regularly
conduct drug testing at 79 FR 61013.
The NPRM proposed that occupations
that regularly drug test be defined as
those required to be drug tested in
Federal or State laws at the time the
NPRM was published. The NPRM also
defined key terms:
• An ‘‘applicant’’ means an
individual who files an initial claim for
UC.
• ‘‘Controlled substance’’ is defined
by reference to the definition of the term
in Section 102 of the Controlled
Substances Act. (This definition is in
the Act.)
• ‘‘Suitable work’’ means suitable
work as defined under the UC law of the
State against which the claim is filed. It
must be the same definition that the
State otherwise uses for determining UC
eligibility based on seeking work or
refusal of work for an initial applicant
for UC.
• Occupation means a position or
class of positions.
• ‘‘Unemployment compensation’’ is
defined as ‘‘cash benefits payable to an
individual with respect to their
unemployment under the State law.’’
This definition derives from the
definition found in Federal UC law at
Section 3306(h), FUTA.
The Department invited comments
through December 8, 2014. This final
rule defines those occupations that
regularly conduct drug testing as
required by section 303(l)(1)(A)(ii), SSA.
The Department, separately from this
rulemaking, issued guidance
(Unemployment Insurance Program
Letter (UIPL) No. 1–15) to States to
address other issues related to the
implementation of drug testing under
303(l), SSA.
III. Summary of the Comments
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Comments Received on the Proposed
Rule
The Department received sixteen (16)
comments (by letter or through the
Federal e-Rulemaking Portal) by the
close of the comment period. Ten (10)
of the comments were from individuals;
one was from an employer advocacy
group; one was from an industry
association; one was from a worker
advocacy group; and three (3) were from
governmental officials or committees.
The Department considered all timely
comments and included them in the
rulemaking record. There were no late
comments.
These comments are discussed below
in the Discussion of Comments. We
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address only those comments
addressing the scope and purpose of the
rule, the identification of occupations
that regularly conduct drug testing.
Therefore, comments received
concerning the Department’s previously
issued guidance about drug testing in
UIPL No. 1–15; comments supporting or
opposing drug testing in general; and
comments about drug testing
procedures, the efficacy of drug tests,
and the cost of drug tests, are not
addressed as these issues fall outside
the scope of the statutory requirement
that is the basis for this regulation. We
made one change, discussed below, in
response to the comments.
Discussion of Comments
A number of commenters opposed the
limitation on the list of occupations
requiring drug testing. Three
commenters wrote that limiting the list
of occupations requiring drug testing to
those identified in Federal or State laws
that were in effect on the date of
publication of the NPRM (October 9,
2014) was not appropriate. Of those, one
wrote it was uncertain if future
amendments to the Federal regulations
would incorporate future State law
enactments mandating testing. One
wrote that States would not be given
sufficient time to enact legislation to
add any occupations to the list already
established by Federal or State law, and
the public interest would be served by
a broader interpretation of ‘‘regularly
conducting drug testing.’’ One wrote it
was an unnecessary obstacle to States
using drug screening and testing to
improve the chances that unemployed
workers are ready to return to work.
One commenter wrote that the
limitation was appropriate in order to
provide the ability to assess the cost
effectiveness of implementing drug
testing in the UC program and that to do
otherwise would circumvent the intent
of Congress to limit authority to drug
test to a small pool of workers for
whom, because of their job
requirements, drug testing is directly
related to continued employment. The
commenter asserted it was not the intent
of Congress to cover a more expansive
segment of the workforce, such as those
subject to pre-employment screening.
The Department agrees with the
commenters that the rule should not
limit the list of occupations requiring
drug testing, set forth in the NPRM, to
those identified in specified Federal
laws or those State laws that were in
effect on the date of publication of the
NPRM; thus, this provision is revised in
the final rule to broaden its applicability
as requested by commenters. In a
dynamic economy, occupations change
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over time, sometimes rapidly, and new
occupations are created, and it is
important that this rule contain the
flexibility necessary to allow States and
the Federal government to adapt to
those changes. Thus, the regulation has
been expanded to encompass any
Federal or State law requiring drug
testing regardless of when enacted.
Specifically, section 620.3(h) has been
revised to specify that occupations that
regularly conduct drug testing include
any ‘‘occupation specifically identified
in a State or Federal law as requiring an
employee to be tested for controlled
substances.’’ In recognition of the fact
that new federal laws may be enacted
that may require drug testing for other
occupations, and that those occupations
may not necessarily be included in
§ 620.3(a)–(g), the Department added
‘‘Federal law’’ to § 620.3(h). This
additional change ensures the final rule
is consistent with the policy change
being made in response to the
comments. Additionally, the final rule
eliminates the reference to dates where
the proposed rule referenced State law
and the specified Federal regulations in
§ 620.3(a)–(g). The Department will
monitor changes in Federal law that
affect the definition of ‘‘occupations’’
for which drug testing is required and
inform States of any changes through
guidance.
There is no evidence of Congressional
intent for the legislation to permit
testing on any basis other than the plain
language of the statute, i.e., occupations
that regularly test for drugs. However,
the Department agrees that changes to
those occupations for which Federal or
State law require drug testing should be
accommodated by the regulation.
One commenter wrote that the
proposed rule in Section 620.4(a), that
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,
would unduly limit drug testing to only
the period after an applicant files an
initial claim and before the applicant
files a continued claim for
unemployment compensation.
The plain language of Section 303(l),
SSA, limits permissible drug testing to
applicants for UC. ‘‘Applicants’’ are
individuals who have submitted an
initial application for UC. Once
individuals have been determined
eligible to receive UC, they are no longer
applicants for UC. The act of certifying
that certain conditions are met to
maintain eligibility is different than
making an application for UC benefits.
This is illustrated throughout Title III,
SSA. Section 303(h)(3)(B), SSA,
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requiring UC information disclosures to
the Department of Health and Human
Services, and Section 303(i)(1)(A)(ii)),
SSA, requiring UC information
disclosures to the Department of
Housing and Urban Development, both
refer to an individual who ‘‘has made
application for’’ UC, distinguishing
them from an individual who ‘‘is
receiving’’ or ‘‘has received’’ UC.
Similarly, Section 303(d)(2)(B), SSA,
and Section 303(e)(2)(A), SSA, both
refer to a ‘‘new applicant’’ for UC and
then use the term ‘‘applicant’’
throughout the remainder of the
subsection, signifying that the term is
used to denote only an individual
applying for UC for the first time. Thus,
those provisions clarify that, as used in
Section 303, SSA, an applicant is not a
continuing claimant. Similarly, Section
303(l)(1)(B), SSA, permits the denial of
UC based on the results of a drug test
only to ‘‘applicants,’’ not as a condition
of continued eligibility. As these
provisions demonstrate, ‘‘applicant’’
refers to an initial claimant, not a
continuing claimant; therefore, the final
rule includes no changes to the
requirements of Section 620.4(a).
Two commenters wrote that the rule
arbitrarily narrows the definition of
‘‘occupations that regularly test for
drugs’’ so that the potential number of
applicants affected is negligible. They
also noted that businesses regularly
conduct drug testing in occupations
without Federal or State mandate. For
this reason, they believe the definition
‘‘occupations that regularly conduct
drug testing’’ should include
occupations for which employers
already conduct drug testing outside
those mandated by State or Federal law.
Section 303(l)(1)(A)(ii), SSA, requires
the Secretary to identify those
‘‘occupations,’’ not employers, that
regularly conduct drug testing. As
explained in the NPRM, whether an
occupation is subject to ‘‘regular’’ drug
testing in private employment was not
chosen as the standard here because it
would be very difficult to implement in
a consistent manner. Drug testing in
occupations where it is not required by
law is not consistent across employers,
across industries, across the States, or
over time; thus, we are unable to
reliably and consistently determine
which occupations require ‘‘regular’’
drug testing where not required by law.
Even if certain employers do conduct
drug testing for certain occupations
when permitted to do so, that is not
sufficient to show that those
occupations are subject to regular drug
testing because a significant number of
employers may not drug test individuals
working in those occupations. In
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addition, those employers who conduct
drug testing when they are not required
by law to do so do not necessarily limit
the testing to applicants or employees
working in a specific occupation. The
determination by an employer to drugtest all of its employees is not a
determination that all of the
occupations in which its employees fall
are occupations for which drug testing
is appropriate, under the requirements
of this rule, but rather a determination
in keeping with that employer’s beliefs
about its business needs that drug
testing is appropriate for all of its
employees.
The final rule will permit States to
require drug testing for UC eligibility for
occupations that are subjected under
State law to drug testing after the date
of the NPRM publication, which ensures
that there is flexibility for States to
require drug testing for other
occupations, while still providing
predictability and consistency in
identifying in this final rule what
occupations are ‘‘regularly’’ drug tested.
Thus, the Department has not changed
the rule to address this concern.
One commenter wrote that the
proposed rules would impose an
unnecessary burden on the State agency
to determine whether ‘‘suitable work’’
in a specific occupation is available in
the local labor market.
The comment appears to
misunderstand the proposed rule,
which requires only that a State use the
same definition of ‘‘suitable work’’ for
UC drug testing as otherwise used in
State UC law. The rule does not use the
term ‘‘local labor market’’ when
addressing suitable work. State UC
agencies routinely make eligibility
determinations about availability for
work, search for work, and refusal of
offers of suitable work. Whether work is
available in the local labor market for
UC claimants is one criterion for
determining what constitutes ‘‘suitable’’
work under State UC law in some
States, but this rule does not require it.
For drug testing, section 303(l)(1)(A)(ii),
SSA, provides, as one of the two
permissible reasons for drug testing as a
condition for the receipt of UC, that the
applicant ‘‘is an individual for whom
suitable work (as defined under the
State law) is only available in an
occupation that regularly conducts drug
testing . . . ’’ [Emphasis added.] Thus,
the NPRM required that drug testing is
permitted only if the applicant’s only
suitable work requires it as a condition
of employment. Because the rule’s
definition of ‘‘suitable work’’ allows the
States to apply their own current laws,
the definition of suitable work in the
proposed rule would not impose any
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burden on States, and the Department
has not changed the definition in the
final rule.
One commenter wrote that the
proposed rule, by limiting the scope of
permissible drug testing, contradicts
Congressional intent and the practices
of many American businesses and the
best interests of American workers.
The Department drafted the NPRM to
be consistent with the language of the
statute. The scope of drug testing
contemplated in the NPRM is consistent
with the statutory language; there is no
evidence of Congressional intent in the
legislative history which would require
it to be interpreted more broadly than
the Department interprets it in this
regulation. Therefore, the Department
declines to expand the scope of drug
testing in this rule.
IV. 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.1 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 purpose of determining
which applicants may be drug tested
when applying for State unemployment
compensation. OMB has determined
that this rule is ‘‘significant’’ as defined
in section 3(f) of E.O. 12866. 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.
However, the Department has
determined that this final rule 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
1 Executive
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Order No. 12866, section 6(a)(3)(B).
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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 drug
testing of UC applicants as a condition
of UC eligibility is entirely voluntary on
the part of the States, and since Section
303(l), SSA, is written narrowly, the
Department believes that it is unlikely
that many States will establish a testing
program because they will not deem it
cost effective to do so. The Department
sought comment from interested
stakeholders on this assumption. We
received no comments on this topic.
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 State UI
computer 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 final 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 rule, States
are prohibited from testing applicants
for unemployment compensation who
do not meet the narrow criteria
established in the law. The Department
requested 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.
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We received no comments that provided
the requested information.
In the absence of data, the Department
is unable to quantify the administrative
costs States will incur if they choose to
implement drug testing under 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. States
will need to fund the cost of the drug
tests, 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 under 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.
The benefits of the rule are equally
hard to determine. As discussed above,
because permissible drug testing is
limited under the statute and this rule,
the Department of Labor believes that
the provisions will impact a very
limited number of applicants for
unemployment compensation benefits.
Only one State has estimated savings
from a drug testing program in a fiscal
note and the Department cannot and
should not extrapolate results from
those estimates.
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
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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 final rule does not contain a
‘‘collection of information,’’ as the term
is defined. See 5 CFR 1320.3(c). The
Department received no 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 final 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 final 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 a Federal mandate.
Accordingly, it is unnecessary for the
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Department to prepare a budgetary
impact statement.
Plain Language
The Department drafted this final rule
in plain language.
Effect on Family Life
The Department certifies that this
final 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 final rule
does not adversely impact family wellbeing 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 final 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 or
final rulemaking is not expected to have
a significant economic impact on a
substantial number of small entities.
This final 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
sradovich on DSK3GMQ082PROD with RULES
Unemployment compensation.
For the reasons stated in the
preamble, the Department amends 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
VerDate Sep<11>2014
17:30 Jul 29, 2016
Jkt 238001
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
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.
§ 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
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Fmt 4700
Sfmt 4700
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.)
§ 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 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 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 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 by the Federal Transit
Administration, in which the employee
must be tested (Public transportation
operators);
(f) An occupation identified in 49 CFR
199.2 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 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 in a State or Federal law as
requiring an employee to be tested for
controlled substances.
§ 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, 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
E:\FR\FM\01AUR1.SGM
01AUR1
Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Rules and Regulations
for whom suitable work, as defined in
State law, as defined in § 620.2, is only
available in an occupation that regularly
conducts drug testing under § 620.3.
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.
sradovich on DSK3GMQ082PROD with RULES
§ 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
VerDate Sep<11>2014
17:30 Jul 29, 2016
Jkt 238001
Secretary of Labor is satisfied that there
is no longer any such failure. Until the
Secretary of Labor is so satisfied, the
Department of Labor will not make
further payments to such State.
Portia Wu,
Assistant Secretary for Employment and
Training, Labor.
[FR Doc. 2016–17738 Filed 7–29–16; 8:45 am]
BILLING CODE 4510–FN–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 11 and 101
[Docket No. FDA–2011–F–0171]
RIN 0910–AG56
Food Labeling; Calorie Labeling of
Articles of Food in Vending Machines;
Extension of Compliance Date
AGENCY:
Food and Drug Administration,
HHS.
Final rule; extension of
compliance date.
ACTION:
The Food and Drug
Administration (FDA or we) is
extending the compliance date for
certain requirements in the final rule
requiring disclosure of calorie
declarations for food sold from certain
vending machines. The final rule
appeared in the Federal Register of
December 1, 2014. We are taking this
action in response to requests for an
extension and for reconsideration of the
rule’s requirements pertaining to the
size of calorie disclosures on front-ofpackage labeling.
DATES: Effective date: This final rule is
effective December 1, 2016.
Compliance date: The compliance
date for type size front-of-pack labeling
requirements (§ 101.8(b)(2) (21 CFR
101.8(b)(2))) and calorie disclosure
requirements (§ 101.8(c)(2)) for certain
gums, mints, and roll candy products in
glass-front machines in the final rule
published December 1, 2014 (79 FR
71259) is extended to July 26, 2018. The
compliance date for all other
requirements in the final rule (79 FR
71259) remains December 1, 2016.
FOR FURTHER INFORMATION CONTACT:
April Kates, Center for Food Safety and
Applied Nutrition (HFS–820), Food and
Drug Administration, 5001 Campus Dr.,
College Park, MD 20740, 240–402–2371,
email: april.kates@fda.hhs.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Frm 00021
Fmt 4700
Sfmt 4700
50303
I. Background
In the Federal Register of December 1,
2014 (79 FR 71259), we published a
final rule establishing requirements for
providing calorie declarations for food
sold from certain vending machines.
The final rule, which is codified
primarily at § 101.8, will ensure that
calorie information is available for
certain food sold from a vending
machine that does not permit a
prospective purchaser to examine the
Nutrition Facts Panel before purchasing
the article, or does not otherwise
provide visible nutrition information at
the point of purchase. The declaration
of accurate and clear calorie information
for food sold from vending machines
will make calorie information available
to consumers in a direct and accessible
manner to enable consumers to make
informed and healthful dietary choices.
The final rule applies to certain food
from vending machines operated by a
person engaged in the business of
owning or operating 20 or more vending
machines. Vending machine operators
not subject to the rules may elect to be
subject to the Federal requirements by
registering with FDA.
The final rule also specifies how
calories must be declared. In brief,
• Vending machine operators do not
have to declare calorie information for
a food if a prospective purchaser can
view certain calorie information on the
front of the package, in the Nutrition
Facts label on the food, or in a
reproduction of the Nutrition Facts label
on the food subject to certain
requirements, or if the vending machine
operator does not own or operate 20 or
more vending machines.
• Calorie declarations must be clear
and conspicuous and placed
prominently, and may be placed on a
sign in, on, or adjacent to the vending
machine, so long as the sign is in close
proximity to the article of food or
selection button.
• The final rule establishes type size,
color, and contrast requirements for
calorie declarations in or on the vending
machines, and for calorie declarations
on signs adjacent to the vending
machines.
• The final rule establishes
requirements for calorie declarations on
electronic vending machines, those
vending machines with only pictures or
names of the food items, and those
vending machines with few choices
(e.g., popcorn machines).
The final rule also requires vending
machine operator contact information to
be displayed for enforcement purposes.
The final rule implements provisions
of section 403(q)(5)(H) of the Federal
E:\FR\FM\01AUR1.SGM
01AUR1
]]>Agencies
[Federal Register Volume 81, Number 147 (Monday, August 1, 2016)]
[Rules and Regulations]
[Pages 50298-50303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17738]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration (ETA) of the U.S.
Department of Labor (Department) is issuing this final rule to
establish, for State Unemployment Compensation (UC) program purposes,
occupations that regularly conduct drug testing. These regulations
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 UC agencies to conduct drug
testing on UC applicants for whom suitable work (as defined under the
State law) is available only 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.
DATES: Effective Date: This final rule is effective September 30, 2016.
FOR FURTHER INFORMATION CONTACT: Suzanne Simonetta, Office of
Unemployment Insurance, ETA, U.S. Department of Labor, 200 Constitution
Avenue NW., Room S-4524, Washington, DC 20210; telephone: (202) 693-
3225 (this is not a toll-free number); email:
simonetta.suzanne@dol.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On October 9, 2014, The Department published a Notice of Proposed
Rulemaking (NPRM) concerning occupations that regularly conduct drug
testing at 79 FR 61013. The Department invited comments through
December 8, 2014.
II. General Discussion of the Final Rule
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 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). If an applicant who is tested for drug
use under either circumstance tests positive, the State may deny UC to
[[Page 50299]]
that applicant. On October 9, 2014, the Department published a Notice
of Proposed Rulemaking (NPRM) concerning occupations that regularly
conduct drug testing at 79 FR 61013. The NPRM proposed that occupations
that regularly drug test be defined as those required to be drug tested
in Federal or State laws at the time the NPRM was published. The NPRM
also defined key terms:
An ``applicant'' means an individual who files an initial
claim for UC.
``Controlled substance'' is defined by reference to the
definition of the term in Section 102 of the Controlled Substances Act.
(This definition is in the Act.)
``Suitable work'' means suitable work as defined under the
UC law of the State against which the claim is filed. It must be the
same definition that the State otherwise uses for determining UC
eligibility based on seeking work or refusal of work for an initial
applicant for UC.
Occupation means a position or class of positions.
``Unemployment compensation'' is defined as ``cash
benefits payable to an individual with respect to their unemployment
under the State law.'' This definition derives from the definition
found in Federal UC law at Section 3306(h), FUTA.
The Department invited comments through December 8, 2014. This
final rule defines those occupations that regularly conduct drug
testing as required by section 303(l)(1)(A)(ii), SSA. The Department,
separately from this rulemaking, issued guidance (Unemployment
Insurance Program Letter (UIPL) No. 1-15) to States to address other
issues related to the implementation of drug testing under 303(l), SSA.
III. Summary of the Comments
Comments Received on the Proposed Rule
The Department received sixteen (16) comments (by letter or through
the Federal e-Rulemaking Portal) by the close of the comment period.
Ten (10) of the comments were from individuals; one was from an
employer advocacy group; one was from an industry association; one was
from a worker advocacy group; and three (3) were from governmental
officials or committees. The Department considered all timely comments
and included them in the rulemaking record. There were no late
comments.
These comments are discussed below in the Discussion of Comments.
We address only those comments addressing the scope and purpose of the
rule, the identification of occupations that regularly conduct drug
testing. Therefore, comments received concerning the Department's
previously issued guidance about drug testing in UIPL No. 1-15;
comments supporting or opposing drug testing in general; and comments
about drug testing procedures, the efficacy of drug tests, and the cost
of drug tests, are not addressed as these issues fall outside the scope
of the statutory requirement that is the basis for this regulation. We
made one change, discussed below, in response to the comments.
Discussion of Comments
A number of commenters opposed the limitation on the list of
occupations requiring drug testing. Three commenters wrote that
limiting the list of occupations requiring drug testing to those
identified in Federal or State laws that were in effect on the date of
publication of the NPRM (October 9, 2014) was not appropriate. Of
those, one wrote it was uncertain if future amendments to the Federal
regulations would incorporate future State law enactments mandating
testing. One wrote that States would not be given sufficient time to
enact legislation to add any occupations to the list already
established by Federal or State law, and the public interest would be
served by a broader interpretation of ``regularly conducting drug
testing.'' One wrote it was an unnecessary obstacle to States using
drug screening and testing to improve the chances that unemployed
workers are ready to return to work.
One commenter wrote that the limitation was appropriate in order to
provide the ability to assess the cost effectiveness of implementing
drug testing in the UC program and that to do otherwise would
circumvent the intent of Congress to limit authority to drug test to a
small pool of workers for whom, because of their job requirements, drug
testing is directly related to continued employment. The commenter
asserted it was not the intent of Congress to cover a more expansive
segment of the workforce, such as those subject to pre-employment
screening.
The Department agrees with the commenters that the rule should not
limit the list of occupations requiring drug testing, set forth in the
NPRM, to those identified in specified Federal laws or those State laws
that were in effect on the date of publication of the NPRM; thus, this
provision is revised in the final rule to broaden its applicability as
requested by commenters. In a dynamic economy, occupations change over
time, sometimes rapidly, and new occupations are created, and it is
important that this rule contain the flexibility necessary to allow
States and the Federal government to adapt to those changes. Thus, the
regulation has been expanded to encompass any Federal or State law
requiring drug testing regardless of when enacted. Specifically,
section 620.3(h) has been revised to specify that occupations that
regularly conduct drug testing include any ``occupation specifically
identified in a State or Federal law as requiring an employee to be
tested for controlled substances.'' In recognition of the fact that new
federal laws may be enacted that may require drug testing for other
occupations, and that those occupations may not necessarily be included
in Sec. 620.3(a)-(g), the Department added ``Federal law'' to Sec.
620.3(h). This additional change ensures the final rule is consistent
with the policy change being made in response to the comments.
Additionally, the final rule eliminates the reference to dates where
the proposed rule referenced State law and the specified Federal
regulations in Sec. 620.3(a)-(g). The Department will monitor changes
in Federal law that affect the definition of ``occupations'' for which
drug testing is required and inform States of any changes through
guidance.
There is no evidence of Congressional intent for the legislation to
permit testing on any basis other than the plain language of the
statute, i.e., occupations that regularly test for drugs. However, the
Department agrees that changes to those occupations for which Federal
or State law require drug testing should be accommodated by the
regulation.
One commenter wrote that the proposed rule in Section 620.4(a),
that 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, would unduly limit drug testing to
only the period after an applicant files an initial claim and before
the applicant files a continued claim for unemployment compensation.
The plain language of Section 303(l), SSA, limits permissible drug
testing to applicants for UC. ``Applicants'' are individuals who have
submitted an initial application for UC. Once individuals have been
determined eligible to receive UC, they are no longer applicants for
UC. The act of certifying that certain conditions are met to maintain
eligibility is different than making an application for UC benefits.
This is illustrated throughout Title III, SSA. Section 303(h)(3)(B),
SSA,
[[Page 50300]]
requiring UC information disclosures to the Department of Health and
Human Services, and Section 303(i)(1)(A)(ii)), SSA, requiring UC
information disclosures to the Department of Housing and Urban
Development, both refer to an individual who ``has made application
for'' UC, distinguishing them from an individual who ``is receiving''
or ``has received'' UC. Similarly, Section 303(d)(2)(B), SSA, and
Section 303(e)(2)(A), SSA, both refer to a ``new applicant'' for UC and
then use the term ``applicant'' throughout the remainder of the
subsection, signifying that the term is used to denote only an
individual applying for UC for the first time. Thus, those provisions
clarify that, as used in Section 303, SSA, an applicant is not a
continuing claimant. Similarly, Section 303(l)(1)(B), SSA, permits the
denial of UC based on the results of a drug test only to
``applicants,'' not as a condition of continued eligibility. As these
provisions demonstrate, ``applicant'' refers to an initial claimant,
not a continuing claimant; therefore, the final rule includes no
changes to the requirements of Section 620.4(a).
Two commenters wrote that the rule arbitrarily narrows the
definition of ``occupations that regularly test for drugs'' so that the
potential number of applicants affected is negligible. They also noted
that businesses regularly conduct drug testing in occupations without
Federal or State mandate. For this reason, they believe the definition
``occupations that regularly conduct drug testing'' should include
occupations for which employers already conduct drug testing outside
those mandated by State or Federal law.
Section 303(l)(1)(A)(ii), SSA, requires the Secretary to identify
those ``occupations,'' not employers, that regularly conduct drug
testing. As explained in the NPRM, whether an occupation is subject to
``regular'' drug testing in private employment was not chosen as the
standard here because it would be very difficult to implement in a
consistent manner. Drug testing in occupations where it is not required
by law is not consistent across employers, across industries, across
the States, or over time; thus, we are unable to reliably and
consistently determine which occupations require ``regular'' drug
testing where not required by law. Even if certain employers do conduct
drug testing for certain occupations when permitted to do so, that is
not sufficient to show that those occupations are subject to regular
drug testing because a significant number of employers may not drug
test individuals working in those occupations. In addition, those
employers who conduct drug testing when they are not required by law to
do so do not necessarily limit the testing to applicants or employees
working in a specific occupation. The determination by an employer to
drug-test all of its employees is not a determination that all of the
occupations in which its employees fall are occupations for which drug
testing is appropriate, under the requirements of this rule, but rather
a determination in keeping with that employer's beliefs about its
business needs that drug testing is appropriate for all of its
employees.
The final rule will permit States to require drug testing for UC
eligibility for occupations that are subjected under State law to drug
testing after the date of the NPRM publication, which ensures that
there is flexibility for States to require drug testing for other
occupations, while still providing predictability and consistency in
identifying in this final rule what occupations are ``regularly'' drug
tested. Thus, the Department has not changed the rule to address this
concern.
One commenter wrote that the proposed rules would impose an
unnecessary burden on the State agency to determine whether ``suitable
work'' in a specific occupation is available in the local labor market.
The comment appears to misunderstand the proposed rule, which
requires only that a State use the same definition of ``suitable work''
for UC drug testing as otherwise used in State UC law. The rule does
not use the term ``local labor market'' when addressing suitable work.
State UC agencies routinely make eligibility determinations about
availability for work, search for work, and refusal of offers of
suitable work. Whether work is available in the local labor market for
UC claimants is one criterion for determining what constitutes
``suitable'' work under State UC law in some States, but this rule does
not require it. For drug testing, section 303(l)(1)(A)(ii), SSA,
provides, as one of the two permissible reasons for drug testing as a
condition for the receipt of UC, that the applicant ``is an individual
for whom suitable work (as defined under the State law) is only
available in an occupation that regularly conducts drug testing . . .
'' [Emphasis added.] Thus, the NPRM required that drug testing is
permitted only if the applicant's only suitable work requires it as a
condition of employment. Because the rule's definition of ``suitable
work'' allows the States to apply their own current laws, the
definition of suitable work in the proposed rule would not impose any
burden on States, and the Department has not changed the definition in
the final rule.
One commenter wrote that the proposed rule, by limiting the scope
of permissible drug testing, contradicts Congressional intent and the
practices of many American businesses and the best interests of
American workers.
The Department drafted the NPRM to be consistent with the language
of the statute. The scope of drug testing contemplated in the NPRM is
consistent with the statutory language; there is no evidence of
Congressional intent in the legislative history which would require it
to be interpreted more broadly than the Department interprets it in
this regulation. Therefore, the Department declines to expand the scope
of drug testing in this rule.
IV. 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.\1\ 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 purpose of determining which
applicants may be drug tested when applying for State unemployment
compensation. OMB has determined that this rule is ``significant'' as
defined in section 3(f) of E.O. 12866. 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.
---------------------------------------------------------------------------
\1\ Executive Order No. 12866, section 6(a)(3)(B).
---------------------------------------------------------------------------
However, the Department has determined that this final rule 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
[[Page 50301]]
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 drug testing of UC applicants as a condition of UC
eligibility is entirely voluntary on the part of the States, and since
Section 303(l), SSA, is written narrowly, the Department believes that
it is unlikely that many States will establish a testing program
because they will not deem it cost effective to do so. The Department
sought comment from interested stakeholders on this assumption. We
received no comments on this topic.
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
State UI computer 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 final 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 rule, States are
prohibited from testing applicants for unemployment compensation who do
not meet the narrow criteria established in the law. The Department
requested 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. We received no comments that
provided the requested information.
In the absence of data, the Department is unable to quantify the
administrative costs States will incur if they choose to implement drug
testing under 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.
States will need to fund the cost of the drug tests, 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 under 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.
The benefits of the rule are equally hard to determine. As
discussed above, because permissible drug testing is limited under the
statute and this rule, the Department of Labor believes that the
provisions will impact a very limited number of applicants for
unemployment compensation benefits. Only one State has estimated
savings from a drug testing program in a fiscal note and the Department
cannot and should not extrapolate results from those estimates.
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 final rule does not contain
a ``collection of information,'' as the term is defined. See 5 CFR
1320.3(c). The Department received no 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 final 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 final 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 a Federal mandate. Accordingly, it is unnecessary
for the
[[Page 50302]]
Department to prepare a budgetary impact statement.
Plain Language
The Department drafted this final rule in plain language.
Effect on Family Life
The Department certifies that this final 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 final 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
final 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 or
final rulemaking is not expected to have a significant economic impact
on a substantial number of small entities. This final 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 amends 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 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 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 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 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 by the Federal Transit
Administration, in which the employee must be tested (Public
transportation operators);
(f) An occupation identified in 49 CFR 199.2 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 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 in a State or Federal law
as requiring an employee to be tested for controlled substances.
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, 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
[[Page 50303]]
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. 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 Department of Labor will not make further payments to such State.
Portia Wu,
Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2016-17738 Filed 7-29-16; 8:45 am]
BILLING CODE 4510-FN-P
