Federal Register / Vol. 84, No. 193 / Friday, October 4, 2019 / Rules and Regulations 53037

DEPARTMENT OF LABOR I. Background the Federal Register at 82 FR 21916 President Obama signed the Middle (May 11, 2017). Employment and Training Class Tax Relief and Job Creation Act of Because 42 U.S.C. 503(l) was not Administration 2012 (the Act), Public Law 112–96, on repealed or amended following the February 22, 2012. Title II of the Act resolution of disapproval, the statute 20 CFR Part 620 continues to require the Secretary to amended 42 U.S.C. 503 to add a new issue regulations to enable the subsection (l) permitting States to enact determination of occupations in which RIN 1205–AB81 legislation to require drug testing of UC drug testing regularly occurs. To comply applicants as a condition of UC with both the mandate to issue Federal-State Unemployment eligibility under two specific regulations to enable the determination Compensation Program; Establishing circumstances: (1) If the applicant was of occupations in which drug testing Appropriate Occupations for Drug terminated from employment with his regularly occurs, and the CRA Testing of Unemployment or her most recent employer because of prohibition on reissuing the rule ‘‘in Compensation Applicants Under the the unlawful use of a controlled substantially the same form,’’ on Middle Class Tax Relief and Job substance, see 42 U.S.C. 503(l)(1)(A)(i); Creation Act of 2012 November 5, 2018, the Department or (2) if the only available suitable work issued a new NPRM substantially AGENCY: Employment and Training (as defined in the law of the State departing from the rescinded final rule. Administration, Labor. providing the UC) for that individual is See 83 FR 55311. ‘‘in an occupation that regularly ACTION: Final rule. In this final rule, the Department conducts drug testing (as determined implements a more flexible approach to under regulations issued by the the statutory requirement that is not SUMMARY: The Department of Labor Secretary).’’ See 42 U.S.C. (DOL or the Department) is issuing this substantially the same as the rescinded 503(l)(1)(A)(ii). States are not required 2016 final rule, enabling States to enact final rule to permit States to drug test to drug test in either circumstance; the unemployment compensation (UC) legislation to require drug testing for a law merely permits States to enact far larger group of UC applicants than applicants and to identify occupations legislation to do so when either of the that the Secretary of Labor (Secretary) the previous final rule permitted. This two circumstances is present. A State flexibility recognizes the diversity of has determined regularly conduct drug may deny UC to an applicant who tests testing. These regulations implement States’ economies and the different roles positive for drug use under either of of employer drug testing across the the Middle Class Tax Relief and Job these circumstances. See 42 U.S.C. Creation Act of 2012 (the Act) States. The Department has determined 503(l)(1)(B). that imposing a nationally uniform amendments to the Social Security Act On October 9, 2014, the Department (SSA), permitting States to enact list—like the one-size-fits-all approach published a Notice of Proposed that the Department attempted in the legislation that would allow State UC Rulemaking (NPRM) determining agencies to conduct drug testing on UC disapproved 2016 rule—does not fully occupations that regularly conduct drug effectuate Congress’ intent regarding applicants for whom suitable work (as testing for the purposes of 42 U.S.C. what constitutes employer drug testing defined under the State law) is available 503(l)(1)(A)(ii). See 79 FR 61013 (Oct. 9, in an occupation. Employers exercise a only in an occupation that regularly 2014). After reviewing the comments variety of approaches and practices in conducts drug testing (as determined received, the rule, as proposed in the conducting drug testing of employees. under regulations issued by the 2014 NPRM, was modified, and on Some States have laws that impose very Secretary). The Secretary is required August 1, 2016, the Department minimal restrictions on employer drug under the SSA to issue regulations published regulations determining testing of employees, while other States determining those occupations that occupations ‘‘that regularly conduct[ ] have very detailed and prescriptive regularly conduct drug testing. These drug testing’’ in the Federal Register as requirements about what actions the regulations succeed a final rule issued 20 CFR part 620 (81 FR 50298). The employer may take; this means on August 1, 2016, that Congress 2016 final rule established, as occupations may be regularly drug- rescinded under the authority of the occupations that regularly conduct drug tested in some States, but not in others. Congressional Review Act (CRA). These testing, only those occupations This diversity among States also renders regulations, as required under the CRA, ‘‘specifically identified in a State or an exhaustive list of such occupations are not substantially the same as the Federal law as requiring an employee to impractical. This final rule lays out a rescinded final rule. be tested for controlled substances,’’ as flexible standard that States can DATES: This final rule is effective well as specific occupations identified individually meet under the facts of November 4, 2019. in Federal regulations and any their specific economies and practices. occupation that required employees to FOR FURTHER INFORMATION CONTACT: Gay Its substantially different scope and Gilbert, Administrator, Office of carry firearms. See former 20 CFR 620.3 fundamentally different approach Unemployment Insurance, U.S. (81 FR 50298). It became effective on satisfies the requirements of the CRA, Department of Labor, 200 Constitution September 30, 2016. while still meeting the requirement of On March 31, 2017, President Trump Avenue NW, Room S–4524, 42 U.S.C. 503(l)(1)(A)(ii) to issue signed a joint resolution of disapproval Washington, DC 20210; telephone (202) regulations addressing what under the authority of 5 U.S.C. 801(b), 693–3029 (this is not a toll-free occupations regularly conduct drug CRA (5 U.S.C. 801 et seq.), Public Law number). testing. 104–121. Section 801(b) provides that a When developing the previous Individuals with hearing or speech disapproved rule shall not take effect proposed rule published in 2014, the impairments may access the telephone and that such a rule may not be reissued Department consulted with a number of number above via TTY by calling the in substantially the same form unless Federal agencies with expertise in drug toll-free Federal Information Relay authorized by Congress. Consistent with testing to inform the proposed Service at 1–800–877–8339. this law, the Department published the regulations. Specifically, the SUPPLEMENTARY INFORMATION: notice of revocation of the regulations in Department consulted with the

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Substance Abuse and Mental Health were initially included in the 2016 final may not be issued, unless the reissued Services Administration (SAMHSA) in rule. or new rule is specifically authorized by the U.S. Department of Health and This final rule also provides a law enacted after the date of the joint Human Services (HHS); the U.S. definitions of key terms. In particular, resolution disapproving the original Department of Transportation (DOT); for the purpose of determining rule. It is clear from a plain reading of the U.S. Department of Defense (DOD); occupations that regularly test for drugs, this provision that a reissued or new the U.S. Department of Homeland this rule defines an ‘‘occupation’’ as a rule on the same subject is permitted Security (DHS); DOL’s Bureau of Labor position or a class of positions with provided that it is not substantially the Statistics (BLS); and DOL’s similar functions or duties. While the same. Further, the legislative history for Occupational Safety and Health Department considered adopting a Public Law 115–17 demonstrates Administration (OSHA). The specific taxonomy of occupations, such Congressional intent that the Department consulted these agencies as the Standard Occupational Department issue a new rule permitting because they have experience with Classification (SOC), this rule does not drug testing for a broader scope of required drug testing. DOD and DHS do so, in order to provide flexibility to occupations than the rescinded rule deferred to SAMHSA for interpretation States to choose an approach that best permitted. See, e.g., 163 Cong. Rec. of the drug testing requirements, and the matches its workforce. For further H1200–01 (Feb. 15, 2017) (Rep. Brady, Department gave due consideration to explanation, see the preamble describing the eventually-rescinded rule the SAMHSA guidance when discussion related to § 620.3. as ‘‘incredibly narrow,’’ stated that it developing the 2014 proposed rule. In this rule, the Department is ‘‘ignored the intent of Congress,’’ and adopting the finding in the 2016 Rule noted that a comment was submitted by II. Summary Discussion of the Final that any occupation for which Federal the House Ways and Means Committee Rule or State law requires drug testing is during the rulemaking process calling The rule implements the statutory among those that are drug tested for the Department to issue a broader requirement that the Secretary issue ‘‘regularly.’’ The Department recognizes rule). regulations determining how to identify that Federal and State laws may evolve The Department looks to the plain ‘‘an occupation that regularly conducts in identifying which positions or meaning of the term ‘‘substantially.’’ drug testing’’ for the purposes of occupations are required to drug test. The Merriam-Webster Dictionary permitting States to require an applicant Thus, this rule allows for occupations defines ‘‘substantial,’’ the adjective form for UC, for whom suitable work is only identified in future Federal or State laws of the adverb ‘‘substantially,’’ as ‘‘being available in an occupation that regularly as requiring drug testing to be largely but not wholly that which is drug tests, to pass a drug test to be occupations that States will be able to specified.’’ The Oxford English eligible for UC. consider for drug testing of UC Dictionary provides two slightly applicants. different definitions of ‘‘substantially:’’ In this final rule, the Department (1) ‘‘[t]o a great or significant extent;’’ takes a fundamentally different This rule also includes a section on conformity and substantial compliance. and (2) ‘‘[f]or the most part; essentially.’’ approach to identifying these These definitions suggest that a rule is occupations than it did in the previous Finally, this final rule includes minor changes from the proposed rule to add ‘‘substantially the same’’ where it is for final rule that Congress later rescinded. the most part the same as the prior rule. The list of occupations in the 2016 final clarity. Specifically, changes were made to the rule text in the introductory text The changes in this rule clear the bar. rule that ‘‘regularly’’ conduct drug The scope of occupations that ‘‘regularly testing was limited to certain of section 620.3 and in paragraphs (b) through (g) of that section. conduct drug testing’’ is the central specifically listed occupations and those issue, and the change in scope here is in which drug testing is required by III. Summary of the Comments a significant change to the previous final Federal or State law. In this final rule, rule. Thus, a rule that substantially the Department has expanded that list Compliance With the Congressional Review Act broadens the list of occupations that in light of the congressional disapproval ‘‘regularly conduct[ ] drug testing’’ of the 2016 final rule. It expands the Comment: The Department received clearly is not ‘‘in substantially the same consideration of what occupations one comment regarding the CRA and the form’’ as the much more restrictive final regularly conduct drug testing by Department’s initiation of new rule that Congress rescinded. Further, accounting for significant variations in rulemaking. This commenter asserted there is very little legislative history State practices with respect to drug that the NPRM is inconsistent with the regarding the CRA interpreting what is testing. An occupation that regularly CRA prohibition in 5 U.S.C. 801(b)(2) meant by a rule ‘‘reissued in drug tests in one State may not regularly because that provision, according to the substantially the same form,’’ or a ‘‘new test in another, making a national one- commenter, ‘‘forbids the executive rule’’ that is ‘‘substantially the same,’’ size-fits-all list impractical and branch from re-regulating the same and the courts have not ruled on the infeasible, and therefore inappropriate. matter without additional legislation.’’ matter. Thus the Secretary has determined in Department’s Response: The In the NPRM, the Department this rule to include in the list of commenter misunderstands the proposed a substantially different and occupations that regularly conduct drug prohibition in 5 U.S.C. 801(b)(2). That more flexible approach to the statutory testing those occupations for which provision does not prohibit re-regulating requirements than the rescinded final each State has a factual basis for finding ‘‘the same matter;’’ rather, it prohibits rule, enabling States to enact legislation that employers in that State conduct issuing a regulation on the same matter to require drug testing for a larger group drug testing as a standard eligibility that is ‘‘substantially the same’’ as the of UC applicants than the previous final requirement for employing or retaining rescinded regulation. rule permitted. The proposed rule’s employees in the occupation. This new Section 801(b)(2) provides, in relevant substantially different scope and addition provides substantially more part, that a [disapproved] rule may not fundamentally different approach flexibility to States and recognizes that, be reissued in substantially the same satisfies the requirements of the CRA in some States, drug testing is regularly form, and a new rule that is that the Department not reissue a rule conducted in more occupations than substantially the same as such a rule that is ‘‘substantially the same’’ as the

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rule disapproved by Congress. Thus, no benefits, or any government benefit. The proposed regulation does not attempt changes have been made to the rule text These commenters asserted that if job to limit the State’s use of this authority to as a result of the comment. applicants and employees are required drug test UI applicants to Constitutional to undergo drug testing for certain boundaries. The previous version of this Additional Comments Received on the regulation may have passed Constitutional occupations, it stands to reason that Proposed Rule muster because of its close adherence to the individuals seeking unemployment language of the authorizing statute. However, The analysis in this section provides benefits or any form of government in this NPRM, the Department’s open-ended the Department’s responses to public assistance should be drug tested as well. invitation to impose drug testing on comments received on the proposed Department’s Response: The specific applicants for unemployment compensation rule. If a section or paragraph that language in 42 U.S.C. 503(l)(1)(A) limits based on a standardless exercise in alleged appeared in the proposed rule is not States’ authority to test UC applicants fact-finding opens the door to widespread addressed in the discussion below, it is for drugs to only two circumstances: application of this authority in a manner in because the public comments submitted Where the individual was fired from his clear violation of the Fourth Amendment. in response to the proposed rule did not or her last employer for testing positive Department’s Response: As the substantively address that specific for drugs; or where suitable work is only comments acknowledge, the NPRM section, or that no comments were available in an occupation that regularly itself did not conflict with the Fourth received on that section or paragraph; tests for drugs. Thus, the Department is Amendment. The NPRM merely thus, no changes have been made to the limited in these regulations to proposed adding a provision permitting regulatory text. Further, the Department implementing the specific terms of the a State to identify additional received a number of comments on the statute, and makes no change to the occupations in that State where proposed rule that were outside the final rule. employers ‘‘regularly’’ require drug scope of the proposed regulations. Comments: Several commenters testing as a condition of employment, Accordingly, the Department offers no asserted that the drug testing permitted provided that the State has a factual response to such comments. These by the NPRM is inconsistent with the basis for doing so; the proposed rule did comments expressed support for or prohibition against unreasonable not mandate that States engage in drug opposition to drug testing in general, searches in the Fourth Amendment to testing, and the proposed rule did not discussed personal narratives, or were the U.S. Constitution. The objections relieve the States from the responsibility opinions on marijuana legalization. cited Federal court decisions that have to ensure that whatever practices they The Department’s proposed rule to struck down mandatory drug testing as adopt meet Constitutional requirements. implement 42 U.S.C. 503(l)(1)(A)(ii) was a condition of benefits under the Thus, the NPRM did not require any published on November 5, 2018 (83 FR Temporary Aid to Needy Families action by States that would conflict with 55311). During the 60-day public program in Lebron v. Secretary of the Constitution, nor did it grant States comment period, the Department Florida, Department of Children & authority to implement the rule in a way received a total of 211 public comments Families, 772 F.3d 1352 (11th Cir. that would not meet Constitutional on the proposed rule. Of those, 56 2014), and as a condition of candidacy requirements. comments were deemed substantive, for elected office in Chandler v. Miller, In granting broader flexibility to and three were duplicates. The 520 U.S. 305 (1997). One commenter States to identify occupations that Department, in the NPRM, sought asserted that the proposed rule would regularly test for drugs in the State comments on the entirety of the be ‘‘saddling states with the prospect of where there is a factual basis for doing proposed rule, in addition to specific costly litigation,’’ and that it ‘‘would so, the Department neither encourages areas where the Department solicited leave states wide open to likely legal nor discourages drug testing as a comments, as noted below. The challenges in which most courts would condition of UC eligibility. The comments of general application rule against the states.’’ Another flexibility granted is in keeping with the received in response to the solicitation commenter, citing Chandler v. Miller, nature of the UC system as a Federal- have been grouped by subject matter above, asserted that ‘‘a suspicion-less State partnership that grants broad and are discussed below. No changes drug test can only be Constitutional if discretion to States to implement their have been made to the rule text as a the Government shows a ‘special need’ UC programs. Granting States broader result of any of the comments received. to conduct testing,’’ and that the flexibility to implement drug testing in ‘‘proposed regulation makes no attempt occupations that regularly test for drugs General Comments to limit the State’s use of this authority in their particular State does not violate Comments: Several commenters to Constitutional boundaries of a the Fourth Amendment, and States that voiced support for the proposed rule as ‘special need.’ ’’ A commenter also choose to drug test under this rule are a means to help prevent fraud and asserted that the Department, ‘‘as responsible for implementing drug waste, and to ensure a more efficient administrator of the Federal-State UI testing in a manner consistent with unemployment insurance (UI) program. system, has a responsibility to foster Constitutional requirements. Department’s Response: The issues compliance with all applicable Accordingly, the Department makes no raised by the comments point to an Constitutional and statutory changes to the final rule in response to important issue for the Department; that requirements’’ and ‘‘should not issue these comments. is, the integrity of the UI program. This regulations that specifically authorize Comments: Numerous commenters rule and 42 U.S.C. 503(l)(1)(A) provide drug testing that would clearly violate asserted that some individuals could a means of ensuring continued integrity the Fourth Amendment.’’ have difficulty accessing testing by enabling States to enact laws that Most commenters acknowledged that services, for a variety of reasons: will bolster their findings that a any possible Constitutional issues Distance to testing services and lack of claimant is able and available for work would arise from inappropriate State transportation, particularly in rural as required by Federal law and, implementation of drug testing, rather areas; lack of childcare; and lack of therefore, eligible for benefits. than from the regulations themselves. income for transportation. Comments: A number of commenters For example, several commenters (in Department’s Response: The asserted that drug testing should be identical or nearly identical language) Department issued Unemployment mandatory to receive unemployment stated: Insurance Program Letter (UIPL) No.

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2–16 (October 1, 2016) to ensure both to drug test applicants under the rule the individual being able to and physical and meaningful access to the are responsible for implementing the available for work. UC program. As a result, State UC drug testing program in a manner that There is no intent to stigmatize agencies are already required to ensure does not result in discrimination against employment in these occupations or access to services, a requirement that protected classes. receipt of UI benefits, and no stigma will also cover drug testing under this States’ UI programs remain subject to should attach simply because the State rule. Thus, the Department has not sec. 188 of the Workforce Innovation UI agency conducts such a test as a made any changes to the rule as a result and Opportunity Act and 29 CFR condition of the applicant being able of these comments. 38.2(a)(2), so they are prohibited from and available for work in occupations Comments: Several commenters discriminating against UC applicants on which regularly conduct drug testing. asserted that the drug testing provision the bases of, among other protected Nor is such testing intended to in 42 U.S.C. 503(l)(1)(A)(ii) would add characteristics, race, color, sex, national demonize or humiliate the UC applicant unfair and unnecessary hurdles to origin, and disability. See 29 U.S.C. for whom drug testing is a usual receipt of UC, and will increase harm to 3248; see also 29 CFR 38.2(a)(2) and condition of hire, or continued workers and families already struggling 38.5. Section 188’s prohibition on employment, in those occupations that to meet basic needs. Still others stated discrimination extends to policies and regularly test employees for drugs, that government, and in particular the procedures that have discriminatory either pre-hire or post-hire. Thus, the Department, should be focused on effects as well as those that have Department makes no change to the helping more individuals obtain jobs discriminatory purposes. See, e.g., 29 final rule based on these comments. and on protecting workers by addressing CFR 38.6, 38.11, and 38.12. States are As noted in the preamble discussion challenges to the unemployment required to collect and maintain data related to § 620.4, below, States may insurance system before the next necessary to determine whether they are provide information on the availability recession. Other commenters urged the in compliance with the provisions of of treatment for drug use or addiction if Department to withdraw the proposed sec. 188. See 29 CFR 38.41. they so choose, but may not use federal rule, with one commenter asserting that The Department previously made UI administrative funding to do so. the Department should follow the clear clear to the States in UI Program Letter Discussion of Comments by Section intent of 42 U.S.C. 503(l)(1)(A)(ii). (UIPL) No. 2–16 (published October 1, Department’s Response: The purpose 2015) that nondiscrimination laws Comments Regarding § 620.2 of this regulation is to implement 42 applicable to State UC agencies prohibit Definitions U.S.C. 503(l)(1)(A)(ii) permitting States discrimination based on both disparate to enact legislation providing for drug The NPRM proposed definitions for treatment and disparate impact. testing of UC applicants if the applicant several key terms used in the proposed ‘‘is an individual for whom suitable Therefore, the Department makes no regulatory text. These are: Applicant, work . . . is only available in an changes to the final rule in response to controlled substance, occupation, occupation that regularly conducts drug these comments. suitable work, and unemployment testing[.]’’ This rule implements the Comments: Numerous commenters compensation. The Department received statute and assists States in determining expressed concern that drug testing UC no comments on the definitions of that individuals are able and available applicants stigmatizes both occupation, suitable work, and for work, and can accept work when it unemployment insurance use and unemployment compensation. is offered in their occupations that individuals who use or are addicted to Accordingly, the definitions of these regularly conduct drug testing. drugs. Some of those commenters terms are adopted in the final rule as Therefore, the Department makes no suggested that the rule is an attempt to proposed. demonize UC applicants, or that changes to the final rule in response to Definition of Applicant these comments. requiring drug testing of UC applicants Comments: Several commenters would be arbitrary and would result in Comment: The Department received expressed concern that this regulation humiliating UC applicants. One one comment agreeing with the analysis would adversely affect low-wage commenter suggested the rule require in the Preamble that limited the workers, low-income communities, and States to create funded programs for definition of ‘‘applicant’’ to an people of color. Among those drug treatment. individual filing an initial claim for commenters, one specifically addressed Department’s Response: The purpose unemployment compensation. The the wage gap between white males and of this regulation is to implement the commenter asserted that the definition black males, white women and black provisions of 42 U.S.C. 503(l)(1)(A)(ii) to adopts an interpretation of ‘‘applicant’’ women, and white men and women and permit States to test UC applicants for that has been consistently applied by Latinos and Latinas. drugs if the applicant ‘‘is an individual both the previous and current Department’s Response: The purpose for whom suitable work . . . is only administrations at DOL, and which of this rule is to implement the available in an occupation that regularly appears well supported by analysis of provisions of sec. 2105 of the Middle conducts drug testing[.]’’ the language of various statutory Class Tax Act (the Act), which amended This rule, and the enabling statute, do provisions relating to initial sec. 303 of the Social Security Act (SSA) not permit states to indiscriminately test applications for unemployment to add sec. 303(l)(1)(A), permitting UC applicants for illegal drug use. compensation and claimants for States to drug test UC applicants in the Rather, only UC applicants who meet continuing compensation. There were specified limited circumstances. the statutory threshold set out above no comments opposed to the proposed This rule is not designed to negatively may be tested. Those applicants should, definition. Accordingly, the definition impact any specific demographic among based on prior employment in such an of ‘‘applicant’’ is adopted in the final applicants for UC. It permits States to occupation, already know that pre- rule as proposed. conduct drug testing of UC applicants employment or post-hire drug testing is for whom suitable work is available a requirement for the occupation in Definition of Controlled Substance only in an occupation that regularly which suitable work is available to With regard to the definition of conducts drug testing. States that choose them. Further, such testing is related to ‘‘controlled substance,’’ the Department,

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as required by statute (see 42 U.S.C. Department’s Response: Proposed provides sufficient flexibility for States 503(l)(2)(B)), adopted the definition of § 620.4(a) of the NPRM provides, in to exempt claimants from drug testing in that term as set forth in sec. 102 of the relevant part, that ‘‘[s]tates may require such circumstances, or to omit Controlled Substances Act (Pub. L. 91– drug testing for unemployment marijuana from drug testing altogether. 513, 21 U.S.C. 802). As explained in that compensation applicants, as defined in However, the Department has no Act, ‘‘[c]ontrolled substance’’ means a sec. 620.2, for the unlawful use of one or authority to require States to provide drug or other substance, or immediate more controlled substances, as defined such waivers. in § 620.2, as a condition of eligibility precursor, included in schedule I, II, III, Comments Regarding § 620.3 for unemployment compensation. . . .’’ IV, or V of part B of 21 U.S.C. 801 et Occupations That Regularly Conduct Proposed § 620.2 defines ‘‘controlled seq. The term does not include distilled Drug Testing for Purposes of substances’’ consistent with how that spirits, wine, malt beverages, or tobacco, Determining Which Applicants May Be term is defined in sec. 102 of the as those terms are defined or used in Drug Tested When Applying for State Controlled Substances Act (21 U.S.C. subtitle E of the Internal Revenue Code Unemployment Compensation of 1986. 802). Comments: The Department received The Department has made no changes In this regulation, the Department comments related to the proposed to the final rule in response to these recognizes both the historic Federal- definition of ‘‘controlled substances,’’ comments. As noted above, the statute State partnership that is a key hallmark which includes marijuana, and its requires that the Department define of the UC program, as well as the wide impact on States with laws that ‘‘controlled substance’’ according to a variation among States’ economies and decriminalize the use of marijuana for provision in a Federal statute, the practices. This rule recognizes the need medical and/or recreational purposes. Controlled Substances Act. Thus, for States’ participation in identifying which occupations regularly conduct One commenter asserted that the regardless of how State laws treat drug testing in each State, and whether Department was acting arbitrarily and marijuana, the Department is statutorily additional occupations should be capriciously by defining ‘‘controlled required to adopt the definition of ‘‘controlled substances’’ as set forth in included. Section 620.3 describes a substances’’ as that term is defined in the Controlled Substances Act. See 42 number of different occupations that the Federal law in light of the fact that U.S.C. 503(l)(2)(B). The Department Department has determined regularly various States have decriminalized the does not have the authority to adopt a drug test. States may use this list, in possession of marijuana for medical definition of ‘‘controlled substances’’ addition to the broader criterion, in and/or recreational use. By adopting different from what Congress expressly identifying occupations for which drug such a definition, the commenter provided. Furthermore, the Department testing is regularly conducted, based on asserted, some States may ‘‘deny has no statutory authority to prohibit a the criteria set by the Secretary under unemployment compensation benefits State from testing for a substance that is these regulations. A minor edit to the to an individual using marijuana for a ‘‘controlled substance’’ under Federal introductory text of this section, either medical or recreational purposes law if the other statutory requirements inserting, ‘‘enact legislation to,’’ more that are not in violation of any State to allow testing are met. This is the case closely aligns the regulation with the law.’’ This commenter also noted that regardless of whether the State has statutory text, but does not change the the NPRM preamble did not even partially or wholly decriminalized substance of the requirements in this discuss marijuana decriminalization in marijuana possession or use, or whether section. some States ‘‘thus failing the an interstate UC claim is filed by a Paragraph (a) includes the class of [Administrative Procedures Act] APA claimant who resides in a State where positions that requires the employee to requirement that an agency explain the marijuana is decriminalized and seeks carry a firearm as an ‘‘occupation’’ that basis for its actions.’’ Another work in another State where it is not regularly drug tests. commenter argued that ‘‘the decriminalized. Paragraphs (b)–(g) include various implementation of drug testing We also note proposed § 620.4(a) is specific occupations that were listed in requirements for UI applicants as permissive in nature and not the previous rule as ones that regularly endorsed by this proposed rule would mandatory. It provides that a State may require drug test, since various Federal disproportionately punish individuals drug test, as a condition of UC laws require drug testing of employees who use marijuana in compliance with eligibility, ‘‘for the unlawful use of one in each of these occupations. This rule State law.’’ or more controlled substances’’ as identifies in paragraphs (b)–(g) six Several commenters expressed defined in Federal law. The plain specific sections of regulations issued concerns that the proposed rule would language of this regulation allows drug by several agencies of DOT and the exacerbate the existing conflict between testing; it does not require it. Further, it Coast Guard that identify classes of Federal and State laws regarding permits States to omit any controlled positions that are subject to drug testing. marijuana use and would substances they so choose from drug Any position with a Federal legal disproportionately punish individuals testing. Thus, States that choose to drug requirement for drug testing was whose marijuana use is decriminalized test as a condition of UC eligibility are determined to constitute an occupation in their respective States. These permitted to omit marijuana, or any that regularly conducts drug testing. commenters added that the proposed other controlled substance(s), from drug However, this final rule departs from rule ‘‘could create issues with states testing. Accordingly, the rule does not the NPRM by removing the [sic] rights and workers who live in conflict with any State laws that parentheticals describing the categories states with legal marijuana but work in partially or wholly decriminalize of occupations. This is because the states without it.’’ As a solution, a marijuana, nor can it resolve any parentheticals did not fully describe the couple of commenters suggested that conflicts of law within or between regulations cited and because the States could provide waivers to those States. Regarding the comments that regulations are subject to amendment UC claimants who live in States that States provide waivers to interstate that could render the descriptions have decriminalized the use of claimants who live in States that have obsolete. marijuana, noting that the United States decriminalized marijuana but work in Paragraphs (h) and (i) include in the Army has adopted such a solution. States that have not, the rule already list of occupations that regularly

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conduct drug testing any occupation any changes to State UI laws. Such tested as a condition of employment that is required to be drug tested under reports would similarly be submitted under Federal or State law in any Federal law or under the law of the prior to implementation of drug testing paragraphs (h) and (i). Proposed State seeking to drug test UC applicants of applicants in occupations the State paragraph (j) was added to account for in that occupation. The law need not identifies as meeting the Federal any variations that may exist from State currently exist; future Federal or State standard described above. to State with regard to occupations that law requiring drug testing is included The NPRM requested comments on regularly conduct drug testing, but under this provision. As with the the proposed standard and whether the where such testing is not required by previous six sections, any position with Department should instead impose a law. As described elsewhere, the a legal requirement for drug testing has heightened standard of evidence to proposed rule required a factual basis been determined to constitute an demonstrate that an occupation is one for identifying such occupations, and occupation that regularly conducts drug that regularly conducts drug tests and, the Department will receive and review tests. therefore, is an occupation for which such identifications. Acknowledging Paragraph (j) adds to the list of drug testing is a standard eligibility these variations across States is occupations that regularly drug test a requirement. The NPRM sought consistent with the flexibility granted to significant provision not contained in comments also on what heightened States in the Federal-State partnership the previous final rule, and that level of evidence of drug testing would that Federal UC law broadly embraces. fundamentally transforms the regulatory be appropriate, if commenters believed Regarding the portion of the comment a different standard than what was suggesting that DOL adopt a standard approach and scope of the proposed proposed in the NPRM should be used. that would at least survive a Daubert regulations. This fundamental change Comments: The Department received challenge, the comment offered no clear satisfies the requirements of the CRA a number of comments regarding the alternative standard of evidence. A and allows the Department to fulfill its proposed standard, many asserting that Daubert challenge, originating from the continuing statutory obligation to the standard was vague. Several court decision in Daubert v. Merrell regulate. Paragraph (j) provides that commenters favored a heightened Dow Pharmaceuticals, Inc., 509 U.S. 579 where there is a factual basis for doing standard of evidence, arguing that the (1993), which established criteria for the so, a State may identify additional standard in the NPRM is insufficient. A admissibility of scientific expert occupations in that State which require few commenters also recommended an testimony, refers to the process for pre-hire or post-hire drug testing as a alternative standard. challenging the validity and standard eligibility requirement. This One commenter argued that the admissibility of expert testimony. The provision reflects the Secretary’s proposed rule provides ‘‘little to no expert is required to demonstrate that determination that, because there is guidance concerning how the his/her methodology and reasoning are wide variation among State economies determination’’ of occupations is to be scientifically valid and can be applied and employment practices, it is not made. The commenter asserted that ‘‘the to the facts of the case. However, practicable to exhaustively list all regulatory text merely requires the State Daubert does not provide an occupations that ‘‘regularly conduct[ ] to have an undefined ‘factual basis,’ ’’ administrable substantive standard of drug testing.’’ Instead, the Department and that the NPRM preamble ‘‘offers evidence, or a clear level of evidence, sets out a Federal standard by which it little guidance with its undescriptive that the Department or a State can apply is possible to assess—under Federal, not and nonexclusive list of vague examples in the context of this regulation. State, law—whether a State has a ranging from reports of trade and Therefore, the Department makes no sufficient basis to require drug testing of professional organizations to a virtually changes to the final rule in response to a particular class of UC applicants. The standard-less ‘other studies’.’’ The these comments. Federal standard is as follows: When commenter asserted that this ‘‘is the Comments: Many commenters argued identifying an occupation that regularly polar opposite of a determination under that the Department should use conducts drug testing, the State must DOL regulations.’’ submissions from States to narrowly identify a factual basis for its finding Another commenter stated that ‘‘we define the relevant occupations into a that employers conduct pre- the regulated community have no idea nationally applicable list. employment or post-hire drug testing as what the standard is that DOL has Department’s Response: The a standard eligibility requirement for proposed, so we don’t know how to Department finds that using obtaining or maintaining employment in assess what would be ‘heightened’ submissions of information from States the identified occupation. Factual bases standard.’’ The commenter added that to produce a nationally applicable list of may include, but are not limited to: ‘‘[a]t the least, a standard should require occupations is not administratively Labor market surveys; reports of trade facts and conclusions that would feasible. It is extraordinarily difficult to and professional organizations; and survive a Daubert challenge to an expert develop a nationally applicable list of academic, government, or other studies. witness in federal court.’’ occupations that regularly drug test, This proposed standard effectuates the Department’s Response: The beyond those that are legally required, plain meaning of the Act’s authorization Department does not consider the while leaving flexibility to account for of drug testing where suitable work ‘‘is standard of evidence in the proposed differences between practices in only available in an occupation that rule to be vague or overly broad. The different States to allow for full regularly conducts drug testing.’’ Department also disagrees with the implementation of the Congressional Section 303(l)(1)(A)(ii). Once this final assertion that the proposed rule mandate. An occupation that is rule takes effect, the Department will provides insufficient guidance on how regularly drug-tested in some States review States’ factual bases through the determination of occupations must might not be regularly drug-tested in reports authorized under 42 U.S.C. be made. Proposed § 620.3, like the others; a national list might not capture 503(a)(6) and 20 CFR 601.3; these rescinded final rule, contained a list of this discrepancy, and, indeed, could reports are currently made through specific occupations in paragraphs (a) result in even broader drug testing than States’ submissions of ETA Form MA 8– through (g), and a provision permitting is consistent with the statute. Therefore, 7 (OMB control number 1205–0222) drug testing for UC eligibility of any the Department declines this prior to implementation by the State or other occupation required to be drug- recommendation and makes no changes

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to the final rule as a result of these Therefore, the Department makes no general or with whether the claimant is comments. changes to the final rule in response to able and available for work in Comment: One commenter argued this comment. particular.’’ that the Department should impose Comment: A commenter cited the Department’s Response: The ‘‘quality standards’’ in the States’ Conference Report accompanying the Department did not make changes in gathering of information for submissions enactment of the statutory provision on response to the comments suggesting to the Department on occupations that UC drug testing, noting the Conference that the standard should connect drug regularly drug-test; however, the Report stated that drug testing is testing to unemployment. The purpose commenter did not specify any permitted under 42 U.S.C. of the standard is to implement the recommended ‘‘quality standards.’’ 503(l)(1)(A)(ii) only where passing a requirements of 42 U.S.C. 503(l). Department’s Response: The drug test is ‘‘a standard eligibility Section 503(l) of 42 U.S.C. does not Department finds it is not requirement.’’ The commenter argued require a connection between administratively feasible to provide that drug testing is not a standard unemployment and drug testing, only more definite standards in the rule text eligibility requirement in any that it be established that an occupation while maintaining States’ flexibility to occupation unless drug testing is regularly conducts drug testing. provide factual information from a wide conducted for every single employee in However, though no such connection is range of sources. The Department that occupation. The commenter argued required, if the only suitable work monitors and exercises oversight of all that a requirement that all employees in available to an individual is in an aspects of all States’ UC administration, an occupation be drug tested would be occupation that regularly conducts drug and works with States to address consistent with the treatment of testing, there is a strong connection deficiencies of conformity or substantial employees in virtually all of the other between being able to pass a drug test compliance with Federal law categories in proposed § 620.3 with and being able and available for work as requirements. Just as with all aspects of regard to drug testing. required by 42 U.S.C. 503(a)(12). Under oversight of State UC, the Department Department’s Response: The the final rule, the Department intends to will provide oversight of States to Department disagrees that ‘‘a standard give States the flexibility to consider ensure conformity and substantial eligibility requirement’’ necessarily these reasons in their particular compliance with this rule and take requires that all employers drug test all circumstances. appropriate action as necessary. The employees in an occupation in order to Comments: Several commenters Department makes no changes to the include the occupation as among those expressed a concern that the proposed final rule in response to this comment. subject to drug-testing. Such an standard set forth in the NPRM for Comment: A commenter criticized interpretation is not required by the identifying occupations that regularly abandoning the rescinded regulations’ statute or the Conference Report conduct drug testing ‘‘is rife with reliance on SOCs established by the language cited by the commenter. An potential for abuse and for inappropriate Bureau of Labor Statistics (BLS), occupation that ‘‘regularly’’ drug tests, motives.’’ These commenters suggested because these codes ‘‘are used in a or for which drug testing is ‘‘a standard that the Department should require variety of other setting [sic] for other eligibility requirement,’’ need not States to provide more information uses such as establishing prevailing uniformly require testing under the about the fact-finding conducted than is wages,’’ which the commenter asserted plain meaning of either term. The plain specified in the proposed rule. In undermined a statement in the NPRM meaning of ‘‘standard’’ does not support general, these commenters did not that the BLS SOCs ‘‘may not provide the the commenter’s recommendation. The specify the abuse or inappropriate best mechanism to support states in Merriam-Webster Dictionary defines motives that would be risked, nor did identifying occupations in which ‘‘standard’’ in the most relevant they recommend an alternative employers regularly drug test.’’ definition as ‘‘regularly and widely heightened standard for the Department Department’s Response: That the used.’’ The Oxford Dictionary in the to consider. A few of the commenters proposed rule does not rely on BLS relevant definition describes ‘‘standard’’ elaborated that drug test providers SOCs does not mean States may not rely as something ‘‘used or accepted as contracted by States might have an on SOCs to identify occupations. normal or average.’’ The Cambridge inappropriate financial self-interest to Indeed, the rescinded final rule did not Dictionary defines ‘‘standard’’ as ‘‘usual encourage broader drug testing by States define occupations by BLS SOCs, and or expected.’’ None of these definitions than is merited by evidence, which the NPRM in 2014 that preceded the requires that a practice be universal in could inappropriately influence the rescinded final rule (which left order to be ‘‘standard.’’ Thus, the decisions of policy makers to authorize unchanged the NPRM definition of Department does not find a ‘‘standard broad drug testing. ‘‘occupation’’) explained that the eligibility requirement’’ need be Department’s Response: The reliance on a ‘‘class of positions’’ in the universal in order to be standard. To be Department did not make changes in definition was in contrast to reliance on ‘‘regular’’ or ‘‘standard’’ it is sufficient response to these comments. These single occupations identified in the BLS that drug testing in an occupation be assertions are unrelated to the SOCs. The reference to BLS SOCs in the usual. While the other categories listed requirements of 42 U.S.C. 503(l), and rescinded final rule was merely in this regulation do cover occupations issues such as these, if they arise, will illustrative, not a requirement to use the in which drug testing is required by all be addressed administratively by the system in determining occupations. As employers, that is not the statutory Department’s monitoring and oversight in the rescinded final rule, the absence requirement. of § 620.3(j). of BLS SOCs in the proposed rule does Therefore, the Department makes no Comments: Several commenters not discourage States from embracing changes to the final rule in response to argued that the proposed rule could SOCs. However, the Department does this comment. lead, in various ways, to discrimination. not find it necessary or desirable to Comments: Commenters also One commenter argued that the impose the SOCs established by BLS, as suggested that the Department consider proposed standard could allow States to it may not always be the best system the reason an occupation regularly tests ‘‘depress equal access to earned through which to classify occupations employees and whether that reasoning benefits,’’ and that the Department for the purposes of these regulations. has a ‘‘nexus with unemployment in should take steps to minimize this

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possible consequence by ‘‘working with advanced two types of arguments requirements. These commenters argued states to make sure working people have toward this conclusion. One was that that ‘‘[t]here is no basis whatsoever to fair access to earned benefits.’’ However, Federal law prohibits a Federal agency assume that state agencies delegated this commenter did not recommend an from delegating its authority to an with new administrative authority to alternative standard of evidence. outside entity absent clear deny benefits will use such authority Relatedly, one commenter argued for Congressional authorization to do so. A consistent with the U.S. Constitution or heightened standards of evidence second argument was that proposed the rules and regulations of the Social because drug testing ‘‘should not be paragraph (j) is arbitrary and capricious Security Act.’’ permitted as a blanket for all under § 706 of the APA. Department’s Response: The occupations which could lead to In support of the unlawful delegation Department disagrees with the discriminatory implementation.’’ This argument, commenters relied on several comments that the rule improperly commenter also did not specify an court decisions that have held that ‘‘[a]n shifts to the States the determination of alternative standard of evidence. agency [unlawfully] delegates its which occupations regularly conduct Another commenter argued that ‘‘[t]he authority when it shifts to another party drug testing. The proposed rule degree of flexibility this regulation gives almost the entire determination of explicitly determined, in paragraphs (a) to states has tremendous potential to whether a specific statutory requirement through (g) of proposed § 620.3, specific target occupations that are more likely has been satisfied or where the agency occupations that may be drug-tested, to employ working people of color.’’ abdicates its final reviewing authority.’’ thus directly determining many Similarly, another commenter argued Fund for Animals v. Kempthorne, 538 occupations that are regularly drug F.3d 124, 133 (2d Cir. 2008), citing U.S. that it is ‘‘problematic’’ that each ‘‘state tested. Similarly, paragraphs (h) and (i) Telecom Ass’n v. FCC, 359 F.3d 554, can decide which professions to specify that States may drug test for 567 (D.C. Cir. 2004), and Nat’l Park & routinely drug test,’’ because the occupations in which employees are Conservation Ass’n v. Stanton, 54 ‘‘tendency is to administer drug tests to required by Federal or State law to be F.Supp.2d 7, 19 (D.D.C. 1999). industries which disproportionately drug tested. Paragraph (j) of § 620.3 According to these commenters, employ people of color.’’ These allows each State to identify paragraph (j) impermissibly shifts the commenters also did not recommended occupations in that State that regularly a specific alternative standard. entire determination of which drug test and relies on each State as a Department’s Response: Commenters’ occupations regularly drug test by fact-finder with regard to its local concerns relate to a State’s allowing each State to identify those implementation of paragraph (j), rather occupations within its State that circumstances. Furthermore, the than to the proposed Federal standard regularly drug test without providing Department will review additional for drug testing by States. This guidance concerning how the States occupations identified by the State. particular provision does not provide should make such determinations. Each State will be required to submit for States with unfettered discretion to drug One commenter noted that ‘‘[w]hile Departmental review and oversight the test UC applicants and it must be an agency may be able to delegate some occupations that the State finds viewed in connection with the other amount of ‘fact gathering’ to an outside regularly conduct drug testing as a requirements of this rule, namely that party [citing the U.S. Telecom court standard eligibility requirement for drug testing of UC applicants in general decision above], the grant of authority to obtaining or maintaining employment in is not permitted unless the only suitable States to determine occupations that the State, and the factual bases on work for an applicant is in an regularly drug test goes far beyond fact which it relied. Thus, contrary to the occupation that regularly conducts drug gathering.’’ Specifically, the commenter commenters’ assertions, this rule does testing. As discussed above, States’ UI argued that ‘‘[d]etermining how to not abdicate the Department’s programs are subject to sec. 188 of the interpret and define the concept of responsibility to determine the Workforce Innovation and Opportunity ‘regularly’ is the antithesis of fact occupations that regularly drug test. It Act, and States are prohibited from gathering. It is exercising discretion and simply allows each State to identify discriminating against UC applicants on policy-making.’’ The commenter factual bases for finding that additional the bases of the protected characteristics added— occupations regularly conduct drug listed above, which include race and testing in that particular State. Such a [T]he requirement to determine which grant of limited discretion is lawful, color. Also, States will be subject to occupations regularly drug test leaves states Department monitoring and oversight of with another substantial interpretative task. particularly as the Department will occupations to be drug tested under While ‘‘occupations’’ do not drug test, retain reviewing authority over the proposed § 620.3(j). Therefore, the employers drug test and employees are drug States’ identification of occupations that Department made no changes to the tested. Thus, a decision has to be made in regularly conduct drug testing, as well final rule in response to these interpreting how to determine what to as the authority to take action to ensure comments. measure. To the extent that this provision conformity and substantial compliance can be interpreted to carry out Congressional with Federal law requirements. See The Department also asked for intent, DOL, not state agencies, must exercise comments on any suggested additions, discretion to decide whether an occupation Kempthorne, 538 F.3d 124 (finding that deletions, or edits to the list and regularly drug tests when measured by the the Fish and Wildlife Service did not descriptions of occupations that percentage of employers of that occupation abdicate its authority to regulate the regularly conduct drug testing, or on the drug testing employees in that occupation or takings of migratory birds when it scope of the latitude accorded to States when measured by the percentage of granted limited discretion to state in the proposed approach. employees in that occupation who are drug agencies to determine whether the Comments: The Department received tested. killing of a migratory bird in the a number of comments that proposed Separately, regarding delegation, agency’s State was necessary to prevent paragraph (j) constitutes an unlawful some commenters asserted that the State the depredation of fish, wildlife, plants, delegation to the States of the UC agencies in their respective States and their habitats in the State’s local Department’s authority to determine have a pattern of administrative area); see also Stanton, 54 F.Supp.2d at which occupations regularly conduct practices that are inconsistent with State 19 (finding that ‘‘[t]he relevant inquiry’’ drug testing. In general, commenters and Federal Constitutional is whether the Federal agency ‘‘retained

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sufficient final reviewing authority’’ requirement that occupations that different approach in this rule than was over the subordinate’s actions.) regularly drug test be determined under taken in the 2016 rule. Finally, regarding some commenters’ regulations issued by DOL and why a Second, even if the Department was assertions that a State UC agency might uniform application of the drug testing required to explain why it had changed not administer the program consistent requirements for unemployment its earlier position, the argument that with State or Federal Constitutional compensation applications is not the Department did not give an adequate requirements if given discretion, the required.’’ Fourth, the commenter rationale for departing from the Department monitors and exercises argued that it is arbitrary and capricious rescinded 2016 final rule is inaccurate. oversight of all aspects of all States’ UC ‘‘to allow States to gather facts By rescinding the previous rule, administration, and works with States to concerning which occupations drug test Congress rejected the approach in the address deficiencies of conformity or without detailed quality standards 2016 rule of limiting the standard to substantial compliance with Federal law setting forth how that fact gathering occupations drug tested as a condition requirements. Just as with all aspects of should be conducted.’’ of employment under State or Federal oversight of State UC, the Department Some commenters argued that the law. Given the CRA’s prohibition on will monitor States to ensure conformity Department failed to set out with any republishing the 2016 rule in and substantial compliance with this specificity what would constitute a substantially the same form and the rule and take appropriate action as sufficient factual basis for identifying requirement that the Department necessary. occupations that regularly drug test. promulgate a regulation to implement Therefore, the Department makes no These commenters stated that ‘‘[r]eports sec. 303(l) of the SSA, the Department changes to the final rule in response to by trade and professional organizations was legally required to adopt a different these comments. may reflect initiatives that do not regulatory approach. The rescinded Comments: Separately from the above comport with the narrow strictures of final rule noted that it rejected the arguments regarding improper [Sec. 303(l)(1)(A)(ii), SSA] and may not regularity of drug testing in private delegation, many commenters asserted establish a ‘factual basis’ for testing. In employment as a standard because it that proposed § 620.3(j) is arbitrary and addition, allowing ‘other studies’ would be very difficult to implement in capricious under the APA. One provides so little guidance that it is a consistent manner and that the commenter in particular elaborated in rendered essentially meaningless.’’ Department determined that it would be detail this argument. This commenter Commenters added, ‘‘Congress clearly unable to reliably and consistently argued that the Department: assigned to the DOL, in the plain determine which occupations regularly was arbitrary and capricious in adding language of the authorizing statute, the require drug testing beyond those section 620.3(j) of the NPRM after responsibility to define which required by law. In developing its new determining in its 2016 Final Rule that (1) occupations are covered.’’ proposal, the Department, for the reasons explaining proposed § 602.3(j) ‘‘whether an occupation is subject to ‘regular’ The commenters argued that sec. drug testing was not chosen as a standard in the preamble to the NPRM, adopted 303(l), SSA, was drafted as it was in here it would be very difficult to implement a standard that overcomes the issues order ‘‘to limit inappropriate influence in a consistent manner’’ and (2) ‘‘we are identified by the commenter by utilizing in the determination of which working unable to reliably and consistently determine States’ expertise to research and identify which occupations require ‘regular’ drug people could be required to take drug testing where not required by law.’’ which occupations drug test regularly in tests as a condition of receiving UI.’’ their own States. See 81 FR 50300 (August 1, 2016). Another commenter suggested that Regarding other arguments that the The commenter continued that the proposed § 602.3(j) was subject to proposed rule is ‘‘arbitrary and proposed rule provides ‘‘no specific potential inappropriate influence, that capricious,’’ first, the proposed rule explanation of its change in position on ‘‘[d]epending on the experience rating does not assign responsibility for those two statements in the preamble to system in a state, employers could also determining which occupations the 2016 Final Rule,’’ as required by be incentivized to adopt new drug regularly drug test to States. Rather, law. The commenter made four testing regimes solely for the purpose of under the proposed rule, the additional assertions arguing the minimizing their liability for Department is leveraging the expertise proposed rule is arbitrary and unemployment benefits.’’ of the States to identify occupations in capricious in its delegation of authority. Department’s Response: The which employers regularly drug test in First, the commenter argued that it is Department has considered the various their States, while the Department arbitrary and capricious ‘‘to assign assertions that the proposed rule is retains authority to review, monitor, and responsibility for determining which arbitrary and capricious in violation of oversee States’ identification of those occupations regularly drug test to the APA and, for the following reasons, occupations and the factual bases for States.’’ Second, the commenter argued disagrees. their identification. Second, 42 U.S.C. that it is arbitrary and capricious ‘‘to First, the assertion that the 2016 final 503(l), by its terms, does not require a allow States to have inconsistent rule has any bearing on this proposal is determination of occupations which determinations of which occupations inconsistent with the CRA. 5 U.S.C. regularly test for drugs in all States; it drug test in the face of a Congressional 801(f) provides that ‘‘[a]ny rule that simply prohibits the Department from provision clearly calling for one uniform takes effect and later is made of no force interfering with State requirements for determination on that issue by or effect by enactment of a joint drug testing of an applicant in an specifically assigning that responsibility resolution under sec. 802 shall be occupation that regularly conducts drug to DOL.’’ Third, the commenter argued treated as though such rule had never testing. As mentioned above, the that it is arbitrary and capricious ‘‘to taken effect.’’ Public Law 115–17 proposed rule is consistent with the allow States to individually determine invalidated the 2016 final rule, stating rescinded final rule, which also allowed how to interpret the concepts of that the rule ‘‘shall have no force or differences across States based on the ‘regular’ and ‘standard eligibility effect.’’ As this rule is not an occupations each State’s law required to requirement’ without [the Department] amendment to the prior, rescinded final be drug-tested as a condition of explaining why . . . [such an approach] rule, it is not necessary under the APA employment. The proposed rule departs was consistent with the statutory to explain the rationale for taking a from the rescinded final rule, not in

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allowing ‘‘inconsistent’’ choices of Finally, regarding incentives to drug Comments: One commenter stated occupations across States, but in test, it is highly unlikely that employers that creating a uniform list of whether drug testing must be a State law in an occupation will adopt drug testing occupations that drug test is requirement to consider the occupation based upon the distant potential that impractical, and the Secretary, in the one in which drug testing is a regular other employers will adopt testing to alternative, should provide national requirement for employment. Third, it is result in the occupation being one guidelines for categories of positons for inaccurate to describe the proposed rule which regularly requires drug testing in which States may drug test. as deferring to States the interpretation order to reduce their experience rating. Several commenters made statements of what constitutes ‘‘regular’’ drug Further, as a number of commenters of support for the promulgation of a testing and what constitutes a ‘‘standard pointed out, Federal funding for nationally uniform list of occupations eligibility requirement.’’ Rather, the administration of the UI program is that regularly drug test, stating that, by proposed rule articulates a Federal currently low, and States will have a not creating one, the Department was standard—the Secretary’s interpretation strong incentive to control the cost of not adhering to the authorizing statute of those statutory terms, not the States’ drug testing because they will receive or the will of Congress. Commenters interpretations—under which States no additional Federal funding for those stated that the Department was avoiding make factual findings, i.e., as the NPRM costs. Thus, these objections are its responsibility by allowing flexibility, preamble clearly states, the proposed unsupported, and are not a basis to find and did not explain how it reached its rule requires States to have a factual proposed § 620.3(j) to be arbitrary or interpretation of Congressional intent. basis for identifying additional capricious. Commenters asked for these occupations that regularly conduct drug Therefore, the Department makes no occupations to be defined narrowly, testing, which is subject to the changes to the final rule in response to because the occupation must be the only Department’s review. Further, the these comments. viable option available for the applicant Department has never required a Comment: One commenter expressed to find new employment. In the absence ‘‘uniform application of the drug testing that States should be permitted to drug of a nationally uniform list, one requirements’’ across the States. As test for occupations that are potentially commenter suggested, the Department noted above, the rescinded final rule dangerous or those that regularly should keep a list of nationally also permitted States to drug test involve drug testing, and another applicable occupations. different occupations based on what commenter stated that drug testing One commenter stated the occupations must be drug-tested as a should be limited to those positions Department suffered a lack of will to condition of employment under with legitimate safety concerns and exhaustively catalogue all employment- different States’ laws. Fourth, there is no proper justification for what the related drug testing requirements under commenter characterized as invasive State laws, and to do so for the benefit requirement that regulations contain testing. of this rulemaking is not beyond the specific ‘‘quality standards’’ for fact- Department’s Response: The purpose Department’s capabilities. The gathering by States, nor is it arbitrary or of this regulation is to implement the commenter asserted that the Department capricious for the proposed rule to let provision in 42 U.S.C. 503(l)(1)(A)(ii) lacked any ‘‘robust’’ evidence to support the ‘‘factual basis’’ standard be fleshed that States may drug test applicants for the asserted impracticality of creating out through Department review of UC for whom the only suitable work is such a list. States’ particular findings. Rather, this in an occupation that regularly conducts Department’s Response: The flexible approach is consistent with case drug testing. Safety concerns can be a Department considered these comments law discussed above, and with the reason why drug testing is regularly and maintains that the creation of a Federal-State UC partnership, by which conducted for some occupations. nationally uniform list is impractical the Department is responsible for However, limiting those occupations for and will not provide the flexibility monitoring and overseeing broad which a UC applicant may be tested for needed by States to implement the will requirements that States must meet to drugs to only those where there are of Congress. The Department disagrees receive administrative grants, and for safety concerns is inconsistent with the with the comments that it improperly employers in a State to receive credits statutory language permitting drug shifted to the States the determination against their Federal unemployment testing where an occupation regularly of which occupations regularly conduct taxes. conducts such testing. drug testing. The proposed rule Regarding assertions that the Congress disapproved the earlier explicitly identified, in paragraphs (a) proposed rule is arbitrary and regulation implementing 42 U.S.C. through (g) of proposed § 620.3, specific capricious because it lacks specificity, 503(l)(1)(A)(ii), which limited testing to occupations that may be drug-tested, and that the Department has deferred those positions or occupations where thus directly determining many the decision-making regarding which there are certain safety concerns or occupations that may be drug tested. occupations regularly conduct drug where drug testing is required by Similarly, paragraphs (h) and (i) specify testing to States, proposed § 620.3(j) Federal or State law. Thus, it is clear that States may drug test for occupations does not remove the Department from Congress intended the regulation to in which employees are required by exercising independent judgment in the reflect a broader interpretation of Federal or State law to be drug tested. determination of occupations. Rather, ‘‘occupations that regularly drug test,’’ Paragraph (j) of proposed § 620.3 the NPRM made clear that any ‘‘factual not a narrower one. As a result, the provides States with fact-finding basis’’ by a State for identifying an Department makes no changes to the authority to identify occupations that occupation that regularly conducts drug rule based on this comment. regularly drug test in their own State testing is subject to Departmental The Department likewise sought and relies on each State as a fact-finder review. The Department retains comments on its conclusion that it is with regard to its own localized context. authority to find that a State lacks impracticable to develop a nationally Furthermore, the Department will sufficient factual basis to include an uniform list of occupations that review any occupations the State occupation it wishes to drug test. regularly drug test, given the wide identifies and the facts presented to Therefore, the Department retains variations in regional economies, substantiate adding them. Each State independent judgment. employer practices, and in State law. will be required to submit for

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Departmental review and oversight the maintaining employment in the denied UC based on the results of these occupations that the State finds identified occupation. tests. States are not required to drug test regularly conduct drug testing as a Comments: Some commenters as a condition of UC eligibility based on standard eligibility requirement in the asserted that the ETA Form MA 8–7 any of the occupations set out under State, and will require the State to ‘‘requires too little analysis on the part this final rule. States may choose to do submit the factual bases it relied on. of the States.’’ These commenters stated so based on some or all of the identified Thus, contrary to the commenters’ that the form should require reasoned occupations; however, States may not, assertions, this rule does not abdicate analysis of attached supporting except as permitted by 42 U.S.C. the Department’s responsibility to documentation to address the rationale 503(l)(1)(A)(i) (governing drug testing of determine the occupations that regularly for drug testing in specific occupations individuals terminated for the unlawful drug test. It simply grants States fact- and whether that reasoning should use of a controlled substance), conduct finding authority to find factual bases extend to prevent deserving claimants drug testing based on any occupation for identifying additional occupations from receiving UC. that does not meet the definition in that regularly conduct drug testing in Department’s Response: Form MA 8– § 620.3 for purposes of determining UC their own States. Such a grant of fact- 7 is not intended to be a stand-alone eligibility. finding authority is lawful, particularly tool for analyzing materials submitted Paragraph (a) provides that an as the Department will retain reviewing by States. Rather, it is the form used by applicant, as defined in § 620.2, may be authority over the States’ identification the Department to collect the necessary tested for the unlawful use of one or of occupations that regularly conduct information, authorized under section more controlled substances—also drug testing, as well as the authority to 303(a)(6), SSA and 20 CFR 601.3, to defined in § 620.2—as an eligibility take action to ensure conformity and ensure State laws, regulations, and condition for UC, if the individual is substantial compliance with Federal law policies conform to and comply with one for whom suitable work, as defined requirements. See Kempthorne, 538 Federal law. The Department has an by that State’s UC law, is only available F.3d 124; see also Stanton, 54 established methodology in place to in an occupation that regularly conducts F.Supp.2d at 19. identify and review all changes to drug testing, as determined under Therefore, the Department makes no States’ UI programs. By reviewing § 620.3. As discussed in the Summary materials submitted with ETA Form MA changes to the final rule in response to of the proposed rule, the term 8–7, which States are already required these comments. ‘‘applicant’’ means an individual who is to use for all changes in law, Comments: Several commenters filing an initial UC claim, not a claimant regulations, policies, and procedures, expressed support for the Department’s filing a continued claim. Thus, States the Department will analyze a State’s may only subject applicants to drug determination, stating that it recognized factual basis for identifying an testing. the value and importance of giving occupation as one in which employers flexibility to individual States to conduct pre- or post-employment drug Paragraph (b) provides that a State identify what type of oversight system is testing as a standard eligibility choosing to require drug testing as a most appropriate for employers and requirement for obtaining or condition of UC eligibility may apply employees, and that State governments maintaining employment. As provided drug testing based on one or more of the and officials are more familiar with the in 20 CFR 601.3, the Secretary of Labor occupations under § 620.3. This industries and occupations of a State. requires States to submit State laws and flexibility is consistent with the statute, This will alleviate arbitrary plans of operation for implementing which permits, but does not require, determinations, stated one commenter, those laws. The Department implements drug testing, and the partnership nature by recognizing State officials’ power to this provision through ETA FORM MA of the Federal-State UC system. develop policies pertinent to drug 8–7 which requires States to submit ‘‘all Paragraph (c) provides that no State testing in the State. Flexible standards relevant state materials.’’ Plans of would be required to drug test UC based on State-specific economies, one operation in this context includes states’ applicants under this part. This commenter put forth, means the factual bases for identifying any provision was not in the 2016 final rule, regulations States enact will ensure additional occupations that regularly but again reflects the partnership nature effectiveness and consistency within the conduct drug testing pursuant to the of the Federal-State UC system and the State. These commenters stated that it Rule. In addition, the Department Department’s understanding that the would be poor public policy to apply retains oversight authority and will Act permits, but does not require, States the same standards to vastly different conduct routine monitoring of State to drug test UC applicants under the economies. Standards for a State with a administration of the UI program, identified circumstances. large manufacturing base may not be including state implementation of the Comment: In response to the NPRM’s appropriate for a State with a primarily drug testing provisions of 42 U.S.C. broader, more flexible approach for rural economy, stated one of these 503(l)(1)(A) and this final rule. As a identifying occupations that regularly commenters. result, the Department makes no drug test, one commenter raised a Department’s Response: The changes to the final rule. concern that such an approach ‘‘risks Department considered these comments conflicting with statutory protections and will be maintaining the policies and Comments Regarding: § 620.4 Testing mandated by the [Americans with approaches noted in the commenters’ of Unemployment Compensation Disabilities Act] ADA,’’ and noted that supportive statements. Applicants for the Unlawful Use of a ‘‘[t]he Equal Employment Opportunity Finally, the Department asked for Controlled Substance Commission has been aggressively comments on its planned approach of Consistent with 42 U.S.C. 503(l), challenging employers whose drug using submissions through ETA’s Form § 620.4 provides that a State may screens lead to denial of a job without MA 8–7 as the method for reviewing require applicants to take and pass a test an individualized assessment to States’ factual bases for finding that for the illegal use of controlled determine whether the person’s lawful employers conduct pre-employment or substances as a condition of initial use of prescription drugs may be post-hire drug testing as a standard eligibility for UC under specified considered a disability.’’ However, the eligibility requirement for obtaining or conditions, and that applicants may be commenter never explained how the

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proposed rule risks a conflict with the confront and overcome the challenges false positives,’’ and that urinalysis ADA. associated with substance use disorder indicates only the presence of a drug or Department’s Response: Section 620.3 by getting treatment, and to successfully metabolites in the body. One commenter of the NPRM sets forth a proposed list return to the workforce. stated that drug testing of chemically of occupations for which drug testing is States may not pay those costs, treated hair, or hair that is dark in color, regularly conducted. Proposed including costs of providing information ‘‘can be especially susceptible to paragraph (j) of this section embodied on substance use disorder or the cost of external contamination.’’ the Department’s new, more flexible, treatment, from Federal UI Department’s Response: This approach to identifying the occupations administrative grant funds. However, rulemaking is limited to implementing which regularly drug test, by allowing nothing in this rule prevents States from the statutory requirement to identify each State to identify additional providing brochures or other occupations that regularly conduct drug occupations in that State where information, paid for from other testing. These comments regarding employers require pre-hire or post-hire sources, on the availability of drug potential false positives are outside the drug testing as a standard eligibility treatment to UC applicants who have scope of this rule, therefore, the requirement provided that the State has failed a drug test. Moreover, as noted Department makes no changes to the a factual basis for doing so. As below, the Department has made funds regulatory text in response to these explained in the NPRM, factual bases available to States to address the effects comments. may include, but are not limited to: of the opioid crisis on the economy. Comment: Another commenter Labor market surveys; reports of trade In March 2018, the Department asserted that drug testing UC applicants and professional organizations; and announced a National Health is a waste of tax dollars, and the ‘‘only academic, government, or other studies, Emergency demonstration project ones who will win in this case will be and would be reviewed by the through Training and Employment the companies billing the State after the Department. See 83 FR 55311, 55315 Letter (TEGL) No. 12–17, to identify, test has been administered.’’ develop, and test innovative approaches (Nov. 5, 2018). Department’s Response: The purpose Section 303(l)(1), SSA, permits States to address the economic and workforce- of this regulation is to implement the to drug test applicants whose only related impacts of the opioid epidemic. provision in 42 U.S.C. 503(l)(1)(A)(ii) suitable employment is in an In July 2018, the Department approved that States may drug test applicants for occupation that regularly conducts drug six grant awards, totaling more than $22 UC for whom the only suitable work is testing or who were terminated from million, to the following states: Alaska in an occupation that regularly conducts employment with their most recent ($1,263,194), Maryland ($1,975,085), employer because of the unlawful use of New Hampshire ($5,000,000), drug testing. Thus, whether and to what a controlled substance; this rule does Pennsylvania ($4,997,287), Rhode extent a State’s activities may benefit not authorize States to engage in Island ($3,894,875), and Washington drug testing companies is unrelated to conduct that would violate Federal State ($4,892,659). the purpose of this regulation. The disability non-discrimination laws, In September, 2018, the Department Department makes no changes to the including the ADA. Indeed, States must issued TEGL No. 4–18 to describe how final rule as a result of this comment. continue to adhere to Federal disability the National Dislocated Worker Grant Comments: A number of commenters non-discrimination law as a condition (Disaster Recovery DWG) Program’s expressed that drug testing of UC of receiving UC administrative grants disaster grants apply to the unique applicants undermines the purpose of under Title III of the SSA, and the challenges of the opioid crisis. All the UC program. These commenters annual unemployment insurance states, outlying areas, and appropriate stated that making it more difficult for funding agreements between the tribal entities are eligible to apply for unemployed workers to access benefits Department and each State includes this Disaster Recovery DWG assistance as blunts the UC program’s capacity as a requirement. Accordingly, the described in TEGL No. 4–18. Eligible counter-cyclical economic tool and Department makes no changes to the applicants use Disaster Recovery DWGs weakens the safety net. final rule in response to this to create disaster-relief employment to Department’s Response: The purpose commenter’s concern. alleviate the effects of the opioid crisis of this regulation is to implement the Comments: A number of commenters in affected communities, as well as provision in 42 U.S.C. 503(l)(1)(A)(ii) stated that there is no evidence that provide employment and training permitting States to drug test UC unemployed workers are more likely to activities, including supportive services, applicants for whom the only suitable use drugs, while one commenter stated to address economic and workforce work is in an occupation that regularly that there is no evidence suggesting that impacts related to widespread opioid conducts drug testing. The regulation drug testing deters drug use. Several use, addiction, and overdose. does not require States to implement a commenters raised concerns that drug Therefore, the Department makes no drug testing program, and the basic testing UC applicants would do nothing changes to the final rule in response to eligibility requirements for UC are to help people struggling with these comments. unchanged. To be eligible for UC, addiction, or to identify individuals in Comments: Numerous commenters claimants must be able and available to need of treatment. expressed concern over the possibility accept suitable work. This rule allows Department’s Response: These of positive test results that could occur States to implement drug testing as a regulations, which implement 42 U.S.C. because an applicant was taking means for ensuring that UC applicants 503(l)(1)(A)(ii), specifically address drug prescription medication or over-the- for whom the only suitable work is in testing of UC applicants for whom counter medication. One commenter an occupation that regularly conducts suitable work is only available in an addressed drug testing of individuals drug testing can demonstrate that they occupation that regularly conducts drug who are enrolled in medication-assisted are able and available to accept suitable testing. treatment for opioid addiction, noting work by passing a drug test. We also While the Department is without that some drug tests can detect note that the drug testing provisions in authority to use this rule to mandate methadone and buprenorphine. A 42 U.S.C. 503(l)(1)(A)(ii) are narrowly drug treatment, UC applicants who fail commenter noted that ‘‘conventional drawn. There will be minimal effect on drug tests may be encouraged to urinalysis testing methods are prone to the UC program’s role in minimizing

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economic impacts in an economic admission that it lacked data to quantify The Department requested comments downturn. administrative costs. on the costs of establishing and Therefore, the Department makes no Department’s Response: E.O.s 12866 administering a State-wide testing changes to the final rule in response to and 13563 direct agencies to assess all program; the number of applicants for these comments. costs and benefits of available regulatory unemployment compensation that fit alternatives, and, if regulation is the criteria established in the law; IV. Administrative Information necessary, to select regulatory estimates of the number of individuals Paperwork Reduction Act approaches that maximize net benefits who would subsequently be denied (including potential economic, unemployment compensation due to a The Department has determined that environmental, public health, and safety failed drug test; and the offsetting any use of the existing form MA 8–7 effects, distributive impacts, and savings that could result. The under this rule is already approved equity). E.O. 13563 emphasizes the Department received comments, under OMB control number 1205–0222. importance of quantifying both costs discussed below, on the costs of Plain Language and benefits, of reducing costs, of establishing and administering a testing harmonizing rules, and of promoting program and the cost of drug tests. The Department drafted this rule in flexibility. For a ‘‘significant regulatory However, no other comments were plain language. action,’’ E.O. 12866 asks agencies to received providing specific information Regulatory Flexibility Act/Small describe the need for the regulatory on the other issues on which the Business Regulatory Enforcement action and explain how the regulatory Department requested comment. Fairness Act action will meet that need, as well as Comments: One commenter wrote assess the costs and benefits of the that Ohio had a 4.3 percent The Regulatory Flexibility Act (RFA), regulation.1 unemployment rate as of May 2018, at 5 U.S.C. 603(a), requires agencies to This regulation is necessary because which equates to approximately 530,000 prepare and make available for public of the statutory requirement contained unemployed workers in Ohio. At an comment an initial regulatory flexibility in 42 U.S.C. 503(l)(1)(A)(ii), which average cost of $30 per drug test, it analysis, which describes the impact of requires the Secretary to determine the would cost $18 million to test UC this final rule on small entities. Section occupations that regularly conduct drug applicants. The commenter stated that 605 of the RFA allows an agency to testing for the purpose of determining that money could instead be allocated certify a rule, in lieu of preparing an which applicants may be drug tested for improving infrastructure issues, drug analysis, if the proposed rulemaking is when applying for unemployment treatment programs, education not expected to have a significant compensation. This rule is a ‘‘significant programs, and job training programs. economic impact on a substantial regulatory action,’’ as defined in sec. 3(f) A number of commenters wrote that number of small entities. This rule does of E.O. 12866, because it raises novel States would spend much more to not affect small entities as defined in the legal or policy issues arising out of legal implement a drug testing program than RFA. Therefore, the rule will not have mandates. Before the amendment of it would be worth in savings to the UI a significant economic impact on a Federal law to add the new 42 U.S.C. trust funds. These commenters stated substantial number of these small 503(l)(1), Federal law did not permit that when 13 States spent $1.6 million entities. The Department has certified drug testing of applicants for UC as a collectively to drug test Temporary this to the Chief Counsel for Advocacy, condition of eligibility. Assistance for Needy Families (TANF) Small Business Administration, The decision to conduct drug testing applicants in 2016, only 369 people pursuant to the RFA. for any of the occupations identified in tested positive out of approximately Executive Order 13771 the final rule is entirely voluntary on 250,000. The commenters argued that the part of the States (see § 620.4). To because States are experiencing record- Comments: The Department received date, only three States (Mississippi, low administrative funding, they cannot one comment asserting that the Texas, and Wisconsin) have enacted afford additional administrative proposed rule did not comply with laws to permit drug testing of UC burdens, particularly when few people Executive Order (E.O.) 13771 (Reducing applicants under the circumstances tested positive. Regulations and Controlling Regulatory addressed by this rule. These States, Only three States have enacted laws Costs). however, have not yet begun testing to pursue drug testing of UC applicants Department’s Response: This final because the prior rule was rescinded, under this statutory provision to date, rule is not subject to E.O. 13771 because and this rule was not yet published. As and they have not yet begun testing. the cost is de minimis. The drug testing a result, the Department does not have There are limited data on which to base of UC applicants as a condition of UC sufficient information to determine how estimates of the cost associated with eligibility is entirely voluntary on the many States will establish a drug testing establishing a testing program, or the part of the States, and because program, and what the costs and offsetting savings that a testing program permissible drug testing is limited benefits of such a program might be to could realize. Only one of the three under the statute and this rule, the States. Before the enactment of the States that enacted conforming drug Department believes only a small Federal law in 2012, States were not testing laws issued a fiscal estimate. number of States will establish a testing permitted to condition eligibility for UC That State, Texas, estimated that the 5- program for a limited number of on drug testing. Due to variations among year cost of administering the program applicants for unemployment States’ laws, and in the number of UC would be $1,175,954, taking into compensation benefits. applicants, level of benefits, and account both one-time technology prevalence of drug use in a State, the personnel services to program the Executive Orders 12866 and 13563: Department is unable to estimate the system and ongoing administrative costs Regulatory Planning and Review extent to which States’ costs in for personnel. The Department has not Comment: The Commenter argues that administering drug testing would be evaluated the methodology of Texas’ the Department’s cost and benefits offset by savings in their UC programs. estimate. Separately, it would be analysis was ‘‘cursory and unrigorous;’’ inappropriate to extrapolate the Texas the argument relies on the Department’s 1 Exec. Order No. 12866, section 6(a)(3)(B). cost analysis to all States, in part

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because of differences between Texas denied UC due to a failed drug test. In no changes as a result of these law and the laws of other States, and the absence of such data, the comments. because of the variations in States’ Department is unable to quantify the Executive Order 13132: Federalism programs noted above. Therefore, the administrative costs States would incur Department cites this information only if they choose to implement drug testing Comment: The specific comment for the purpose of disclosing the pursuant to this final rule. regarding noncompliance with E.O. minimal information available for As explained above, nothing in the 13132 is that the rule would permit drug review. Act amending section 303, SSA, or in testing of UC applicants when testing is One commenter wrote that drug tests this regulation requires States to required under Federal law, and that the can be expensive and that funds could establish a drug testing program. See rule would have a substantial effect on be reappropriated for initiatives such as § 620.4 of this final rule. States may States by compelling them to provide a rehabilitation, common-sense drug choose to enact legislation to permit factual basis for imposing a drug-testing education, and overdose first aid. The drug testing of UC applicants consistent requirement using ETA form MA 8–7. commenter also stated that it is not the with Federal law. In doing so, States Department’s Response: Section 6 of States’ duty to drug test unemployed will make that decision based on many E.O. 13132 requires Federal agencies to workers; rather, it is a potential factors, including the costs and benefits consult with State entities when a employer’s duty to test applicants if the of a drug testing program that is limited regulation or policy may have a employer wishes. to only those UC applicants specifically substantial direct effect on the States, Several commenters wrote that the permitted to be drug tested as a the relationship between the national cost of drug testing would be an condition of UC eligibility in the Act. government and the States, or the unnecessary drain on resources that The Department reiterates that States distribution of power and should be made available to workers will voluntarily make their own responsibilities among the various affected by reductions in force. The determination whether to establish a levels of government, within the commenters argued that the financial testing program. States may determine meaning of the E.O. Sec. 3(b) of the E.O. costs would far outweigh any savings that current funding for the further provides that Federal agencies from drug testing UC applicants and administration of State UC programs is must implement regulations that have a would place further stress on State insufficient to support the additional substantial direct effect only if statutory budgets, especially when the Federal authority permits the regulation and it grants that States principally rely on to costs of establishing and administering a drug testing program, which would is of national significance. administer their programs have been E.O. 13132, sec. 3, establishes include the cost of the drug tests, staff reduced significantly. Simply put, these Federalism Policymaking Criteria that for administration of the drug testing commenters concluded that drug testing agencies must follow when formulating function, and technology to track drug is not a good use of scarce resources. and implementing policies with testing outcomes. States would also One commenter wrote that studies Federalism implications. Those criteria incur ramp-up costs to implement the have shown that the vast majority of include: individuals receiving public assistance processes necessary for determining • That agencies consider statutory do not use drugs. The commenter whether an applicant is one for whom authority for any action that would limit supports a policy orientation in favor of drug testing is legally permissible; State policymaking discretion; an exercise of this authority, if at all, referring and tracking applicants for • That the national government grant only for occupations in which the drug testing; and conducting and States maximum administrative rationale for drug testing is truly processing the drug tests. States would discretion possible; and compelling. also have to factor in the increased costs • That agencies encourage States to Two commenters wrote that Michigan of adjudication and appeals of both the develop their own policies to achieve has unsuccessfully attempted to test determination that an individual is program objectives and, where possible, recipients of cash assistance. In 2000, a subject to drug testing and resulting defer to States to develop standards. Michigan law providing for random determinations of benefit eligibility This rule accomplishes each of the testing of welfare recipients was based on the test results. However, these requirements set out above. First, the declared unconstitutional by a federal costs could vary widely across States, Department is required by 42 U.S.C. court. In 2016, Michigan administered a and the Department has no ability to 503(l)(1)(A)(ii) to identify in regulation pilot program of suspicion-based drug develop an estimate that could be the occupations that regularly conduct testing, but no recipients or applicants relevant across multiple States. drug testing. State UC agencies are were tested. The commenters argued The benefits of the rule are equally permitted to drug test UC applicants for that these programs did not save money difficult to quantify. As explained whom the only suitable work is in an or reveal any undeserving claimants— above, the Texas analysis estimated a occupation that regularly drug tests. they merely increased administrative potential savings to the Unemployment Thus, the Department has statutory costs. These commenters asserted that Trust Fund of $13,700,580 over the 5- authority to issue this regulation. States may be pressured by this final year period, resulting in a net savings of Second, this rule gives States rule to use already-limited UI funding to approximately $12.5 million. However, significant flexibility to identify establish and administer a testing due to differences in State laws, the additional occupations in their State program. number of claims, benefit levels, and the that regularly drug test job applicants, Department’s response: The prevalence of substance use disorder in either pre-hire or post-hire based on a Department carefully reviewed the a State, the Department is unable to use factual analysis. See sections 620.3 and comments and concluded that they did the savings anticipated by Texas as a 620.4 of this final rule. not adequately provide reliable national norm. In addition, as Third, this rule encourages States that information on the costs of establishing previously discussed, permissible drug choose to enact drug testing legislation and administering a State-wide testing testing is limited under the statute and as permitted by 42 U.S.C. 503(l)(1)(A)(ii) program; the number of applicants for this rule; the Department expects only a to develop policies and establish UC who would be tested; and small number of UC applicants will be standards to achieve the program individuals who would subsequently be tested. As such, the Department makes objectives, consistent with Federal law.

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The Department retains oversight Department’s Response: This discharged for unlawful use of responsibility to ensure State law regulation has no impact on family well- controlled substances by his or her most conforms to, and the State is in being because it merely affords States an recent employer, or if suitable work (as compliance with, Federal UC law. option that they must independently defined under the State unemployment Thus, this rule does not have a choose. Allowing States to drug test UC compensation law) is only available in substantial direct effect on the States, applicants in the very limited an occupation for which drug testing is the relationship between the national circumstances set out in 42 U.S.C. regularly conducted (as determined government and the States, or the 503(l)(1)(A)(ii) does not, in and of itself, under this part). 42 U.S.C. distribution of power and increase or decrease disposable income 503(l)(1)(A)(ii) provides that the responsibilities among the various or poverty, or otherwise affect family occupations that regularly conduct drug levels of government within the well-being. testing will be determined under meaning of the E.O. because drug testing Based on available data (or lack regulations issued by the Secretary of authorized by the regulation remains thereof), it is impossible for the Labor. voluntary on the part of the State—it is Department to predict the number of not required. States that will exercise this option or § 620.2 Definitions. how broadly they will implement any Unfunded Mandates Reform Act of 1995 drug testing in their State. Similarly, As used in this part— Comment: The commenter states that there is no existing data or way to Applicant means an individual who the Department incorrectly concluded predict, positively or negatively, what files an initial claim for unemployment that the Unfunded Mandates Reform Act impact, if any, such State drug testing compensation under State law. of 1995 does not apply to this rule. The may have on family well-being. This Applicant excludes an individual commenter’s reasoning is that required regulation only implements the already found initially eligible and drug testing under other federal laws provision in 42 U.S.C. 503(l)(1)(A)(ii) filing a continued claim. would be required of a State that enacts that States may drug test applicants for Controlled substance means a drug or UC for whom the only suitable work is a drug testing law consistent with 42 other substance, or immediate in an occupation that regularly conducts U.S.C. 503(l)(1)(A), and that the State precursor, included in schedule I, II, III, drug testing. UC agency would have unfunded IV, or V of part B of 21 U.S.C. 801 et mandates conditioned on designating Thus, the Department makes no change to its certifications that the rule seq., as defined in Sec. 102 of the some occupations for drug testing. Controlled Substances Act (21 U.S.C. Department’s Response: The complies with each of the Executive Orders and other provisions discussed 802). The term does not include Unfunded Mandates Reform Act of 1995 distilled spirits, wine, malt beverages, or defines ‘‘Federal Intergovernmental above. tobacco, as those terms are defined or Mandate’’ to mean ‘‘any provision in List of Subjects in 20 CFR Part 620 used in subtitle E of the Internal legislation, statute, or regulation that (i) Revenue Code of 1986. would impose an enforceable duty upon Unemployment compensation. a State. . . .’’ ■ For the reasons stated in the preamble, Occupation means a position or class This regulation does not impose any the Department amends 20 CFR chapter of positions with similar functions and duty on States; rather, it permits States, V by adding part 620 to read as follows: duties. Federal and State laws governing consistent with the statutory authority drug testing refer to classes of positions in 42 U.S.C. 503(l)(1)(A) to enact PART 620—DRUG TESTING FOR that are required to be drug tested. Other legislation to test UC applicants for STATE UNEMPLOYMENT taxonomies of occupations, such as drugs under the limited circumstances COMPENSATION ELIGIBILITY those in the Standard Occupational set out in the statute. The requirement DETERMINATION PURPOSES Classification (SOC) system, may be that States submit the factual basis for Sec. used by States in determining the identifying an occupation under 620.1 Purpose. boundaries of a position or class of § 620.3(j) of the regulation using ETA 620.2 Definitions. positions with similar functions and form MA 8–7 is consistent with long- 620.3 Occupations that regularly conduct duties under § 620.3. Use of the SOC standing procedures by which States drug testing for purposes of determining codes, however, is not required, and must inform the Department of changes which applicants may be drug tested States may use other taxonomies to in State law. when applying for State unemployment identify a position or class of positions compensation. with similar functions and duties. Effect on Family Life 620.4 Testing of unemployment compensation applicants for the Suitable work means suitable work as Comment: The commenter referred to unlawful use of a controlled substance. defined by the unemployment at the beginning of this discussion of 620.5 Conformity and substantial compensation law of a State against compliance with several E.O.s and compliance. which the claim is filed. It must be the statutory requirements questions the Authority: 42 U.S.C. 1302(a); 42 U.S.C. same definition the State law otherwise Department’s certification that this rule 503(l)(1)(A)(ii). uses for determining the type of work an does not impact family well-being. The individual must seek, given the commenter cites the requirement in § 620.1 Purpose. individual’s education, experience, and section 654(c) of the Treasury and The regulations in this part General Government Appropriations implement 42 U.S.C. 503(l). 42 U.S.C. previous level of remuneration. Act that agencies must determine 503(l) permits States to enact legislation Unemployment compensation means whether the action increases or to provide for State-conducted testing of any cash benefits payable to an decreases disposable income or poverty an unemployment compensation individual with respect to the of families and children and determine applicant for the unlawful use of individual’s unemployment under the whether the proposed benefits of the controlled substances, as a condition of State law (including amounts payable action justify the financial impact on the unemployment compensation under an agreement under a Federal family. eligibility, if the applicant was unemployment compensation law).

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§ 620.3 Occupations that regularly occupation that regularly conducts drug TO PARAGRAPH (b)(2)(vi)(B)(1)’’ conduct drug testing for purposes of testing as identified under § 620.3. should read ‘‘TABLE 1 TO determining which applicants may be drug (b) A State conducting drug testing as PARAGRAPH (b)(2)(vi)(B)(1)’’. tested when applying for State a condition of unemployment [FR Doc. C2–2019–12437 Filed 10–3–19; 8:45 am] unemployment compensation. compensation eligibility, as provided in BILLING CODE 1300–01–D In electing to test applicants for paragraph (a) of this section, may only unemployment compensation under elect to require drug testing of this part, States may enact legislation to applicants for whom the only suitable require drug testing for applicants for work is available in one or more of the OCCUPATIONAL SAFETY AND whom the only suitable work is in one occupations listed under § 620.3. States HEALTH REVIEW COMMISSION or more of the following occupations are not required to apply drug testing to that regularly conduct drug testing, for any applicants for whom the only 29 CFR Part 2200 purposes of § 620.4: suitable work is available in any or all Rules of Procedure; Corrections (a) An occupation that requires the of the occupations listed. employee to carry a firearm; (c) No State is required to drug test AGENCY: Occupational Safety and Health (b) An occupation identified in 14 UC applicants under this part 620. Review Commission. CFR 120.105 by the Federal Aviation Administration, in which the employee § 620.5 Conformity and substantial ACTION: Correcting amendments. must be tested; compliance. SUMMARY: This document makes (c) An occupation identified in 49 (a) In general. A State law technical amendments to the final rule CFR 382.103 by the Federal Motor implementing the drug testing of published by the Occupational Safety Carrier Safety Administration, in which applicants for unemployment and Health Review Commission in the the employee must be tested; compensation must conform with—and Federal Register on April 10, 2019 and (d) An occupation identified in 49 the law’s administration must corrected on August 30, 2019. That rule CFR 219.3 by the Federal Railroad substantially comply with—the revised the procedural rules governing Administration, in which the employee requirements of this part 620 for practice before the Occupational Safety must be tested; purposes of certification under 42 and Health Review Commission. (e) An occupation identified in 49 U.S.C. 502(a), governing State eligibility CFR 655.3 by the Federal Transit to receive Federal grants for the DATES: Effective on October 4, 2019. Administration, in which the employee administration of its UC program. FOR FURTHER INFORMATION CONTACT: Ron must be tested; (b) Resolving issues of conformity and Bailey, Attorney-Advisor, Office of the (f) An occupation identified in 49 CFR substantial compliance. For the General Counsel, by telephone at (202) 199.2 by the Pipeline and Hazardous purposes of resolving issues of 606–5410, by email at rbailey@ Materials Safety Administration, in conformity and substantial compliance oshrc.gov, or by mail at: 1120 20th which the employee must be tested; with the requirements of this part 620, Street NW, Ninth Floor, Washington, DC (g) An occupation identified in 46 the provisions of 20 CFR 601.5 apply. 20036–3457. CFR 16.201 by the United States Coast John P. Pallasch, SUPPLEMENTARY INFORMATION: OSHRC Guard, in which the employee must be Assistant Secretary for Employment and published revisions to its rules of tested; Training, Labor. procedure in the Federal Register on (h) An occupation specifically [FR Doc. 2019–21227 Filed 10–3–19; 8:45 am] April 10, 2019 (84 FR 14554) and identified in Federal law as requiring an BILLING CODE 4510–FW–P published corrections on August 30, employee to be tested for controlled 2019 (84 FR 45654). This document substances; makes further technical amendments to (i) An occupation specifically DEPARTMENT OF THE TREASURY the final rule. identified in the State law of that State List of Subjects in 29 CFR Part 2200 as requiring an employee to be tested for Internal Revenue Service controlled substances; and Administrative practice and (j) An occupation where the State has 26 CFR Part 1 procedure, Hearing and appeal a factual basis for finding that procedures. [TD 9866] employers hiring employees in that Accordingly, 29 CFR part 2200 is occupation conduct pre- or post-hire RIN 1545–BO54; 1545–BO62 amended by making the following drug testing as a standard eligibility correcting amendments: requirement for obtaining or Guidance Related to Section 951A maintaining employment in the (Global Intangible Low-Taxed Income) PART 2200—RULES OF PROCEDURE occupation. and Certain Guidance Related to Foreign Tax Credits ■ 1. The authority citation for part 2200 § 620.4 Testing of unemployment continues to read as follows: compensation applicants for the unlawful Correction use of a controlled substance. Authority: 29 U.S.C. 661(g), unless In rule document C1–2019–12437, otherwise noted. (a) States may require drug testing for appearing on page 44223 in the issue of unemployment compensation Section 2200.96 is also issued under 28 Friday, August 23, 2019 make the U.S.C. 2112(a). applicants, as defined in § 620.2, for the following corrections in § 1.951–1: unlawful use of one or more controlled ■ 2. Amend § 2200.7 by revising substances, as defined in § 620.2, as a § 1.951–1 [Corrected] paragraph (k)(1)(ii) to read as follows: condition of eligibility for 1. In the center column, in instruction unemployment compensation, if the 2, on the second line, ‘‘(b)(2)(vi)(B)(1)’’ § 2200.7 Service, notice, and posting. individual is one for whom suitable should read ‘‘(b)(2)(vi)(B)(1)’’. * * * * * work, as defined in State law, as defined 2. In the same column, in the same (k) * * * in § 620.2, is only available in an instruction, the table heading ‘‘TABLE 1 (1) * * *

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