[Federal Register Volume 66, Number 83 (Monday, April 30, 2001)]
[Proposed Rules]
[Pages 21551-21593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9415]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Parts 653, 654, and 655
[Docket No. FTA-2000-8513]
RIN 2132-AA71
Prevention of Alcohol Misuse and Prohibited Drug Use in Transit
Operations
AGENCY: Federal Transit Administration, Department of
Transportation.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Federal Transit Administration (FTA) proposes to
combine its drug and alcohol testing regulations. FTA believes this
action will make the rules more ``user-friendly'' and easier to
understand. Also, the new rule will take into account the guidance that
FTA has issued in the past several years, including technical
assistance, letters of interpretation, audit findings, newsletters,
training classes, safety seminars, and public speaking engagements. In
addition, this NPRM conforms FTA's rule to the Department of
Transportation's (DOT) revised drug and alcohol testing rule published
on December 19, 2000.
DATES: Comments on this proposed rule must be submitted by June
14, 2001.
ADDRESSES: Written comments must refer to the docket number
appearing above and must be submitted to the United States Department
of Transportation (U.S. DOT), Central Docket Office, PL-401, 400
Seventh Street SW., Washington, DC 20590. All comments received will be
available for inspection at the above address from 10 a.m. to 5 p.m.,
Monday through Friday, except Federal holidays. Those desiring
[[Page 21552]]
the agency to acknowledge receipt of their comments should include a
self-addressed stamped postcard with their comments.
Commenters may also submit their comments electronically.
Instructions for electronic submission may be found at the following
web address: http://dms.dot.gov/submit/. The public may also
review docketed comments electronically. The following web address
provides instructions and access to the DOT electronic docket:
http://dms.dot.gov/search/.
FOR FURTHER INFORMATION CONTACT: For program issues, Mark
Snider, Office of Safety and Security, (202) 366-2896 (telephone);
(202) 366-7951 (fax); or mark.snider@fta.dot.gov (e-mail). For legal
issues, Bruce Walker, Office of the Chief Counsel, (202) 366-4011
(telephone); (202) 366-3809 (fax); or Bruce.Walker@fta.dot.gov (e-
mail).
SUPPLEMENTARY INFORMATION:
Electronic Access
Electronic access to this rule and other safety rules may be
obtained through the FTA Office of Safety and Security home page at
http://transit-safety.volpe.dot.gov.
An electronic copy of this document may be downloaded, using a
modem and suitable communications software, from the Government
Printing Office's (GPO) Electronic Bulletin Board Service at (202) 512-
1661. Internet users may download this document from the Federal
Register's homepage at http://www.nara.gov/fedreg and from
the GPO database at http://www.access.gpo.gov/nara.
Internet users can access all comments received by the U.S. DOT
Dockets, Room PL-401, via the Dockets Management System (DMS) on the
DOT home page at http://dms.dot.gov. The DMS is available 24
hours each day, 365 days each year. Please follow the online
instructions for more information and help.
I. Background
The Omnibus Transportation Employee Testing Act of 1991 (the Act)
mandated the Secretary of Transportation to issue regulations to combat
prohibited drug use and alcohol misuse in the transportation industry.
(Public Law 102-143, October 28, 1991, FTA sections codified at 49
U.S.C. 5331). In December 1992, FTA issued two NPRMs to prevent
prohibited drug use and alcohol misuse by ``safety-sensitive''
employees in the transit industry. In February 1994, FTA adopted drug
and alcohol testing rules, which were promulgated at 49 CFR parts 653
and 654.
Omnibus Transportation Employee Testing Act of 1991
The Act requires FTA to issue regulations requiring recipients of
funds under 49 U.S.C. 5307, 5309, and 5311, and 23 U.S.C. 103(e)(4) to
test safety-sensitive employees for the use of alcohol or drugs in
violation of law or federal regulation. The Act allows FTA to defer to
regulations issued by the Federal Railroad Administration (FRA), for
operations covered by that agency.
As a condition of FTA funding, the Act requires recipients to
establish alcohol and drug testing programs. The Act mandates four
types of testing: Pre-employment, random, reasonable suspicion, and
post-accident. In addition, the Act permits return-to-duty and follow-
up testing under specific circumstances. The Act requires that
recipients follow the testing procedures set out by the Department of
Health and Human Services (DHHS).
The Act does not require recipients to follow a particular course
of action when they learn that a safety-sensitive employee has violated
a law or Federal regulation concerning alcohol or drug use. Rather, the
Act directs FTA to issue regulations establishing consequences for the
use of alcohol or drugs in violation of FTA regulations. Possible
consequences include education, counseling, rehabilitation programs,
and suspension or termination from employment.
In authorizing this regulatory scheme, the Act has pre-empted
inconsistent State or local laws, rules, regulations, ordinances,
standards, or orders. However, provisions of State criminal law, which
impose sanctions for reckless conduct leading to actual loss of life,
injury, or damage to property, are not pre-empted by the Act.
Previous Action by FTA
On December 15, 1992, FTA issued two NPRMs to prevent prohibited
drug use and alcohol misuse (49 CFR parts 653 and 654). The rules
established a scheme whereby safety-sensitive employees would be tested
on a pre-employment, random, reasonable suspicion, post-accident,
return-to-duty, and follow-up basis.
In the December 1992 Federal Register notice, FTA stated
that it was ``considering combining the final FTA alcohol and drug
testing regulations into one part in the Code of Federal Regulations.''
At that time, FTA noted that while the drug and alcohol testing rules
shared many similarities, there were still enough differences to
warrant two distinct CFR Parts. On February 15, 1994, FTA adopted two
separate rules--the drug testing rule, 49 CFR part 653, and the alcohol
testing rule, 49 CFR part 654.
Since the rules were first published, there have been two notable
amendments as well as several minor (technical) amendments. In December
1998, FTA amended its post-accident regulation to allow an employer to
seek post-accident test results from law enforcement agencies in the
limited circumstance when the employer has been unable to perform such
a test itself. FTA has stressed the limited applicability of this
amendment.
In January 1999, FTA amended its definition of ``[m]aintaining a
revenue service vehicle or equipment,'' located under safety-sensitive
function (Sec. 653.7 and Sec. 654.7). The new definition includes
persons that perform overhaul and rebuilding services of engines,
parts, and vehicles. This was a shift from FTA's previous position of
not including employees who performed those services. FTA has stressed
that this amendment applies both to employees working directly for FTA
grantees and to FTA grantees' contractors performing such safety-
sensitive work.
When the drug and alcohol rules became effective, FTA began an
aggressive outreach effort to assist affected entities in complying
with the new rules. FTA offered numerous courses throughout the country
on implementation. In addition, in April 1994, FTA published
Implementation Guidelines for Drug and Alcohol Regulations in Mass
Transit and made them available to any party seeking help in
implementing the rules. The Guidelines, which were published virtually
concurrently with the rules in the Federal Register and several
months prior to the effective date of the rule, are a step-by-step
manual on how to most effectively comply with Parts 653 and 654. FTA
envisions an update to the Guidelines in the near future, to assist
employers in implementing Part 655.
FTA has issued hundreds of letters of interpretation on the rules.
Public response to these letters, especially since they became
available on FTA's external Web page, has been highly favorable.
Employers and employees have found that the letters more fully explain
the rules, FTA's implementation of the rules, and FTA's reasons for
that implementation of the rules. FTA will continue to offer such
guidance and to amend its guidance, if necessary, based on the final
publication of the rule.
To determine compliance with the rules, FTA's Office of Safety and
Security began auditing grantee drug and alcohol testing programs in
March
[[Page 21553]]
1997. The audits quickly evolved into opportunities for FTA to provide
extensive technical assistance. Through the audits, FTA has gained a
better understanding of the difficulties that grantees encounter when
implementing the rules. In addition, audits have shown FTA where the
rules can be strengthened and improved. The impetus to combine Parts
653 and 654 is due, in no small part, to the audit program.
II. Overview of Proposed Rule
In its broadest sense, proposed Part 655 should be read as a
combination of Parts 653 and 654. FTA decided to combine the drug and
alcohol testing rules based on its experience since the rules have been
implemented. FTA believes that this change will allow the program to be
implemented more efficiently and will bring FTA into line with the
three other operating administrations that fall under the Omnibus
Transportation Employee Testing Act of 1991 (Federal Aviation
Administration, Federal Railroad Administration, Federal Motor Carrier
Safety Administration [formerly the Office of Motor Carrier and Highway
Safety within the Federal Highway Administration]), as well as the two
other operating administrations that have drug and alcohol testing
regulations (Research and Special Programs Administration and U.S.
Coast Guard).
The rule, as proposed, applies to recipients of funds under 49
U.S.C. 5307, 5309, and 5311, and 23 U.S.C. 103(e)(4). It requires each
transit operator (employer) who receives these funds to establish and
conduct a multi-faceted anti-drug and alcohol misuse testing program.
The regulation conditions financial assistance on the implementation of
a program. Failure of an employer to develop a program and implement
the program in compliance with this regulation will result in the
suspension of Federal transit funding.
A basic component of the regulation requires the testing of safety-
sensitive employees for the use of controlled substances and the misuse
of alcohol; however the regulation also requires education and
awareness about the problems associated with prohibited drug use and
alcohol misuse. In addition, the regulation mandates that each employer
have a policy statement describing its program policies and procedures.
The statement must include the consequences for prohibited drug use and
alcohol misuse.
The regulation specifies that safety-sensitive employees are
prohibited from using five illegal substances (marijuana, cocaine,
opiates, amphetamines, and phencyclidine) and are prohibited from
misusing alcohol. The NPRM proposes the testing of safety-sensitive
employees in five situations: (1) Pre-employment (including transfer to
a safety-sensitive position within the organization); (2) Reasonable
suspicion; (3) Random; (4) Post-accident; and (5) Return to duty/
follow-up (periodic). Drug testing is required in all five situations.
Alcohol testing is required for all situations except for pre-
employment, in which it is only encouraged.
This NPRM requires the use of the Department-wide drug and alcohol
testing procedures contained in 49 CFR part 40 (December 19, 2000, 65
FR 79462). Part 40 is consistent with the Department of Health and
Human Services (DHHS) regulation, ``Scientific and Technical Guidelines
for Drug Testing Programs,'' which was originally issued on April 11,
1988 and then re-issued on June 9, 1994. The DHHS regulation, which
includes the chain of custody procedures to be used when collecting
urine samples, provides procedures for ensuring the integrity of the
test and maximizing the privacy of the individual being tested.
If a covered employee tests positive for illegal drug use or
alcohol misuse or otherwise violates the rule, the employee must be
removed from his or her safety-sensitive position. Therefore, the
employee must be told, at a minimum, about education and rehabilitation
programs. Should the employer decide to retain a covered employee whose
test result has been verified positive, the employee must be evaluated
by a substance abuse professional. Prior to returning an employee to a
safety-sensitive function, the employer must ensure that the employee
has successfully completed rehabilitation; the rule does not require
the employer to pay for rehabilitation.
This NPRM applies to recipients of federal transit funds, i.e.,
transit systems, metropolitan planning organizations (MPOs), and
States; any enforcement action for noncompliance is against such
recipients. MPOs and States are affected by this regulation if (1) they
provide transit service or they provide money to a subrecipient who
provides transit service and (2) are required to provide certifications
of compliance on behalf of the subrecipient. MPO's or States that
provide transit service must develop and implement a program, like any
other recipient. MPO's or States that fund or manage transit providers,
but do not provide transit service, must ensure that transit provider
employers provide certifications of compliance.
FTA has its primary relationship with grantees. Many grantees both
receive transit funds and operate mass transit services. Typical among
these are large transit entities that receive funds under sections 49
U.S.C. 5307, 5309, and 5311. In addition, some grantees (typically
States) pass the money they receive to smaller subrecipients within
their States. In these situations, the FTA recipient is not the transit
operator.
This NPRM eliminates the distinction between large and small
operators. The term ``employer'' is now used to include both small and
large operators, as well as entities providing service under contract
or other arrangement with the transit operator.
III. General Discussion about the Rule
Today's Proposed Rule
This rule combines 49 CFR Parts 653 and 654. Both its rule text and
its preamble incorporate views expressed in letters of interpretation,
policy determinations, amendments, newsletters, and audits. In
addition, this NPRM conforms the new part 655 with the new Department
of Transportation procedures for drug and alcohol testing, 49 CFR Part
40 (December 19, 2000, 65 FR 79462).
The Common Preamble
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs, promulgated at 49 CFR part 40, have been revised. As a
result, the modal administrations' have proposed amendments to their
drug and alcohol regulations that conform accordingly. A common
preamble that outlines the proposed amendments is published elsewhere
in the Federal Register.
IV. Section-by-Section Analysis
In this section, FTA will discuss the differences between the
existing rules in Parts 653 and 654 and the proposed rules in Part 655.
There is no discussion for sections that have remained substantially
the same. In addition to seeking comments on the NPRM overall, FTA also
requests comments on the specific issues indicated below.
Subpart A--General
A. Definitions (Sec. 655.4).
Employer: FTA is clarifying the definition of employer. FTA
believes that, in addition to direct recipients of FTA funding, the
term ``employer'' includes State recipients that pass the money to
subrecipients and grantees that have contractors performing transit
operations. State recipients and grantees (that have contractors
performing transit operations) are considered employers
[[Page 21554]]
under this expanded definition, they will now have access to
individual's test records. States need access to an individual's test
records, because States are required to certify compliance with all of
their subrecipients' drug and alcohol testing programs. Without a
comprehensive review of their subrecipients' programs, States cannot,
in good faith, sign the certification of compliance. This is also true
for grantees whose operations are performed by contractors. The grantee
is responsible for ensuring compliance, and without the ability to take
a comprehensive look at its contractors' drug and alcohol programs, the
grantee is unable to certify compliance.
Second chance policy: FTA is adding this definition to the
rule; however, FTA would like to clarify that it has no position on
whether grantees must adopt a second chance policy, i.e., a policy
allowing an employee (who has previously violated the employer's drug
and/or alcohol policy) to return to a safety-sensitive position after
completing rehabilitation.
Taxi cab drivers and other transportation providers: The
duties performed by taxicab drivers and other transportation providers
can be considered safety-sensitive functions, pursuant to (1) the
definition of safety-sensitive function, ``operating a revenue service
vehicle, including when not in revenue service.''
FTA has expressed its policy regarding taxicab drivers and other
transportation providers in a series of interpretation letters (see,
e.g., Letter to Florida Commission for the Transportation Disadvantaged
dated 26 April 1999, Letter to King County in Washington dated 4
February 1999, Letter to AC Transit in Oakland, California dated 30
September 1998). According to the policy, drug and alcohol testing
rules do not apply to taxi cab drivers when patrons (using publicly
subsidized vouchers) or transportation providers can choose from a
variety of taxi cab companies. Alternatively, the rules do apply when a
transit patron has to contact one or two specific companies in order to
take advantage of certain publicly-financed transportation benefits.
This policy is based on the practical difficulty of administering a
drug and alcohol testing program to taxi companies that only
incidentally provide transit service. FTA proposes to incorporate this
reasoning when implementing Part 655.
FTA specifically seeks comment on whether there is a difference
between the transit patron choosing the transportation provider from a
variety of choices, and the grantee (or its contracted broker) choosing
from a limited number of choices. In the former, the patron chooses,
while in the latter, the grantee (or its contracted broker) chooses.
Dispatchers: The current rules defines ``safety-sensitive
function'' to include any individual ``controlling dispatch or movement
of a revenue service vehicle.'' At least one individual has questioned
whether the duties of certain types of transit dispatchers implicate
safety. Therefore, FTA welcomes comment on the duties and
responsibilities of dispatchers in the different transit systems. FTA
seeks to determine whether the duties and responsibilities vary
significantly enough to warrant modification of the current blanket
rule.
Maintenance contractors: The current rules include
maintenance work in their definition of safety-sensitive function. In
January 1999, FTA amended its definition of maintenance duties. FTA is
now clarifying that amendment. The amendment expanded the definition of
maintenance work to include all workers (including contractors) who
overhaul and rebuild engines, vehicles, and parts. There were few
objections to the amendment during the comment period. However, shortly
after the rule change became effective, grantees expressed concern
that, because overhaul and rebuild work is often contracted out, a
particular category of maintenance workers (i.e. contractors who
perform overhaul and rebuilding), who were previously not subject to
the rules, would now be subject to the rules.
In response, FTA explained that the rules should extend to
contractors that perform any type of maintenance work (i.e., the rules
should cover both direct recipient employees and contract employees
equally). FTA took this position, and maintains that position, for the
reasons stated in the preamble to the 1999 rule change, i.e., fairness
and safety (64 FR 425, January 5, 1999).
B. Stand-Down Waivers for Drug Testing (Sec. 655.5)
In accordance with changes made to 49 CFR part 40, FTA has added a
subsection on stand-down waivers. Section 655.5 provides the specific
FTA waiver procedures. The DOT-wide regulation, 49 CFR part 40,
contains the substantive requirements for obtaining a waiver.
Subpart B--Program Requirements
A. Policy Statement Contents (Sec. 655.15)
In response to current industry practices and FTA audit procedures,
FTA is clarifying its Policy Statement requirement. FTA has had
numerous questions as to what is required in a policy. FTA would like
to emphasize that the only information required in a Policy Statement
is the information listed in Sec. 655.15. A grantee may choose,
however, to include additional requirements not mandated by FTA. If a
grantee does so, the grantee's policy shall indicate that those
additional requirements are the employer's, and not FTA's.
Moreover, in order to comply with Sec. 655.15(e), employers may
incorporate by reference 49 CFR Part 40 in their Policy Statements,
provided that 49 CFR Part 40 is available for review by employees when
requested.
Finally, FTA is clarifying who must approve the policy. In most
instances, a grantee will have a governing board that can adopt the
policy. However, where there is no governing board or the governing
board does not have approval authority, the highest-ranking official
with authority to approve the policy can do so, and that will satisfy
the regulatory intent.
Subpart E--Types of Testing
A. Pre-employment Drug Testing (Sec. 655.41)
FTA is changing the pre-employment drug testing requirement
concerning hiring. In the past, employers had to administer a test and
receive a negative test result before they could hire an employee. FTA
believes that this provision is too restrictive on employers. FTA will
no longer use the word ``hire.'' In the new rule, FTA will instead
require that an employer administer the pre-employment test and receive
a negative drug test prior to the first time that an employee performs
a safety-sensitive function. This change has taken place to better
satisfy the intent of this section, which is to ensure that an employer
knows that an employee can successfully pass a drug test before
allowing the employee to perform a safety-sensitive function.
FTA is also clarifying another pre-employment provision. Numerous
affected entities have asked how long an employee can be off from work
before he or she must take another pre-employment test; this issue
arises most often for seasonal workers. FTA proposes that an employee
who is off for more than 90 consecutive calendar days and plans to
return to a safety-sensitive function must first successfully pass
another pre-employment drug test before returning to work. Likewise, an
applicant, who has not commenced performing a safety-sensitive function
within 90 consecutive calendar days of the employer's receipt of a
negative test
[[Page 21555]]
result for that applicant, must successfully pass another pre-
employment drug test before performing such safety-sensitive functions.
It is FTA's intention that employers assure themselves that employees
can successfully pass a drug test before returning them to safety-
sensitive functions.
B. Pre-Employment Alcohol Testing (Sec. 655.42)
For several years, due to a court decision and subsequent
legislation, the pre-employment alcohol testing requirements in FTA's
rule have been suspended. In order to better reflect the legislation
and to conform with the other DOT agency drug and alcohol testing
programs, all six DOT agencies with testing programs are adding this
subsection to their respective rules. This subsection allows, but does
not require, employers to conduct pre-employment alcohol testing. If an
employer chooses to conduct pre-employment alcohol testing, the
employer would have to conduct the testing in accordance with all of
the requirements of 49 CFR Part 40.
C. Post-Accident Testing (Sec. 655.44)
In December 1998, FTA amended its post-accident testing regulation
to allow, in extremely limited circumstances, an employer to use the
test results from a local law enforcement-administered post-accident
test. FTA wants to reiterate that such results may be used only when an
employer has been unable to perform a post-accident test within the
required time frame. FTA wishes to dispel the idea that employers can
simply ``count on'' local law enforcement to administer post-accident
tests and provide test results.
D. Random Testing (Sec. 655.45)
FTA is clarifying section 655.45(g), which is concerned with
ensuring that random tests are spread reasonably throughout the
calendar year. In the course of conducting its audits, FTA has learned
that current industry practice is to conduct random testing when it is
convenient, e.g., random tests are only performed every
Thursday afternoon. The purpose of random testing is deterrence, and
the most effective way to achieve the highest level of deterrence is to
conduct random drug and alcohol tests in an unpredictable manner. FTA
reiterates that the rule requires random testing to be spread out
throughout the calendar year. At a minimum, random testing shall be
conducted at least quarterly. Random tests must be spread throughout
all days and all hours of service. The testing should be completely
unpredictable and encompass all safety-sensitive employees.
Subpart H--Administrative Requirements
A. Reporting Results In A Management Information System (Sec. 655.72)
FTA is changing its Management Information System (MIS) reporting
requirement from census reporting to stratified random sampling. FTA
has required census reports for six years and believes it now has an
accurate portrait of the current state of drug and alcohol testing
(including positive rates) in the transit industry. By using sampling,
FTA will reduce the paperwork burden on a portion of the industry while
still maintaining a high confidence level in the results. Although
transit employers will still be required to prepare an MIS form
annually, they will only be required to submit an MIS form when
requested by FTA. FTA will officially notify employers when they must
submit an MIS form and will provide employers with all necessary forms
and instructions to prepare an MIS form.
B. Access to Facilities And Records (Sec. 655.73)
FTA seeks comment on access to facilities and records. This request
has arisen in the context of grantees that, in attempting to exercise
oversight responsibility, have been denied access to employee records
for confidentiality reasons. On one hand, FTA does not want employee
records made available to a potentially unlimited number of
individuals. On the other hand, FTA does not want to impede a grantee
(such as a State) from properly exercising its oversight role.
FTA seeks comment on a related issue, i.e., whether state
regulatory agencies should have access to drug and alcohol testing
results. Another DOT agency, the Federal Motor Carrier Safety
Administration (FMCSA), has included such a provision in its regulation
for quite some time. See 49 CFR 382.405(d). Grantees have expressed
concern about the undesirable consequences that result when state
regulatory agencies do not have access to drug and alcohol test
results. For example, a Department of Motor Vehicles, which is
responsible for issuing Commercial Drivers Licenses (CDLs), is not able
to obtain the drug and alcohol testing results from transit agencies
performing such tests for CDL holders. Thus, a transit employee with a
CDL who tests positive on a test and is discharged from his job, can
simply find another job requiring a CDL. Therefore, FTA seeks comment
on whether employers should be permitted to release employee data from
its drug and alcohol testing programs to State or local officials with
regulatory authority over the employer or any of its employees.
Similarly, FTA seeks comment on whether employers should be
permitted to release employee data from its drug and alcohol testing
programs to local law enforcement officials.
V. Effect of the Americans With Disabilities Act of 1990 on Alcohol
Testing Programs
Title I of the Americans With Disabilities Act of 1990 (ADA)
focuses on employers' responsibilities toward employees with
disabilities. According to Title I, an employer must provide reasonable
accommodations for work for persons with disabilities. Some covered
workers are considered persons with disabilities for purposes of
protection under the ADA. This issue was treated more fully in the 1994
DOT-wide preamble (59 FR 7302, 7311-14, February 15, 1994).
VI. Regulatory Process Matters
A. Executive Order 12866
FTA has evaluated the industry costs and benefits of this rule,
which requires that transit industry personnel who perform safety-
sensitive functions be covered by a program to control illegal drug
abuse and alcohol misuse in mass transportation operations. This rule
makes no noteworthy substantive changes. Any incremental costs are
negligible, and the policy and economic impact will have no significant
effect.
B. Departmental Significance
This rule is a ``non-significant regulation'' as defined by the
Department's Regulatory Policies and Procedures, because, while it
involves an important Departmental policy that is likely to generate a
great deal of public interest, in the larger scheme, it is simply a
combination of two existing regulations (49 CFR parts 653 and 654). It
also conforms FTA's drug and alcohol testing regulations with the
Department's drug and alcohol testing regulations (49 CFR part 40), to
which FTA grantees already are subject.
C. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FTA has made a preliminary assessment of the possible effects of
the rule on small businesses. To the extent possible, FTA has made
efforts to acknowledge the differences between small and large
entities, and has endeavored to make
[[Page 21556]]
accommodations when possible. Experience with Parts 653 and 654 has
shown that the rule has a significant impact on a substantial number of
small entities. FTA believes that this new rule will provide greater
clarity and ease of implementation for small entities.
D. Paperwork Reduction Act
This rule includes information collection requirements subject to
the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.) The Office of Management and Budget has approved FTA's PRA
request for Parts 653 and 654. This rule includes the same information
collection devices; therefore, FTA believes it already has OMB
approval. The management information system (MIS) forms currently
required by Parts 653 and 654 may be modified in the future, but will
continue to be required by FTA, without changes, under Part 655.
E. Executive Order 13132
This action has been reviewed under Executive Order 13132, on
Federalism. FTA has determined that this action has significant
federalism implications to warrant a federalism assessment, however,
this rulemaking is mandated by Congress in the Omnibus Transportation
Employee Testing Act of 1991. FTA has limited discretion.
The 1991 legislation mandates FTA to issue regulations requiring
grantees of funds under 49 U.S.C. 5307, 5309, and 5311, and 23 U.S.C.
103(e)(4) to test their safety-sensitive employees for the use of drugs
and the misuse of alcohol in violation of law or federal regulation.
Before passage of the Omnibus Transportation Employee Testing Act
of 1991, safety issues were largely handled as a local matter. This Act
clarifies the Federal role by including specific Federal pre-emption
language. This Act also makes it clear that, in the area of substance
abuse testing, Federal regulations are to take precedence over any
inconsistent State or local specifications.
Although Congress has pre-empted state or local law, FTA has
preserved the role of local entities in mass transit safety. This
regulation does not disturb testing programs which were created by
virtue of a grantee's own authority and which are not inconsistent with
this regulation.
List of Subjects
49 CFR Part 653
Drug abuse, Drug testing, Grant programs--transportation, Mass
transportation, Reporting and recordkeeping requirements, Safety,
Transportation.
49 CFR Part 654
Alcohol abuse, drug testing, Grant programs--transportation, Mass
transportation, Reporting and recordkeeping requirements, Safety,
Transportation.
49 CFR Part 655
Alcohol abuse, Drug abuse, Drug testing, grant programs--
transportation, Mass transportation, reporting and recordkeeping
requirements, Safety, Transportation.
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 5331, the agency proposes to amend Chapter VI of Title 49
of the Code of Federal Regulations as set forth below:
PART 653--[REMOVED]
1. Remove part 653.
PART 654--[REMOVED]
2. Remove part 654.
3. Add part 655 to read as follows:
PART 655--PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN
TRANSIT OPERATIONS
Subpart A--General
Sec.
655.1 Purpose.
655.2 Overview.
655.3 Applicability.
655.4 Definitions.
655.5 Stand-down waivers for drug testing.
655.6 Preemption of state and local laws.
655.7 Starting date for testing programs.
Subpart B--Program Requirements
655.11 Requirement to establish an anti-drug use and alcohol
misuse program.
655.12 Required elements of an anti-drug use and alcohol misuse
program.
655.13 Other requirements imposed by an employer.
655.14 Education and training programs.
655.15 Policy statement contents.
655.16 Requirement to disseminate policy.
655.17 Notice requirement.
Subpart C--Prohibited Drug Use
655.21 Drug testing.
Subpart D--Prohibited Alcohol Use
655.31 Alcohol testing.
655.32 On duty use.
655.33 Pre-duty use.
655.34 Use following an accident.
655.35 Other alcohol-related conduct.
Subpart E--Types of Testing
655.41 Pre-employment drug testing.
655.42 Pre-employment alcohol testing.
655.43 Reasonable suspicion testing.
655.44 Post-accident testing.
655.45 Random testing.
655.46 Return to duty following refusal to submit to a test,
verified positive drug test result and/or breath alcohol test result
greater than 0.04.
655.47 Follow-up testing after returning to duty.
655.48 Retesting of covered employees with an alcohol
concentration of 0.02 or greater but less than 0.04.
655.49 Refusal to submit to an alcohol or drug test.
Subpart F--Drug and Alcohol Testing Procedures
655.51 Compliance with testing procedures requirements.
655.52 Substance abuse professional (SAP).
655.53 Supervisor acting as collection site personnel.
Subpart G--Consequences
655.61 Action when an employee has a verified positive drug test
result or has a confirmed alcohol test result of 0.04 or greater, or
refuses to submit to a test.
655.62 Referral, evaluation, and treatment.
Subpart H--Administrative Requirements
655.71 Retention of records.
655.72 Reporting of results in a management information system.
655.73 Access to facilities and records.
Subpart I--Certifying Compliance
655.81 Grantee oversight responsibility.
655.82 Compliance a condition of financial assistance.
655.83 Requirement to certify compliance.
Appendix A to Part 655 Drug Testing Management Information
System (MIS) Data Collection Form
Appendix B to Part 655 Drug Testing Management Information
System (MIS) ``EZ'' Data Collection Form
Appendix C to Part 655 Alcohol Testing Management
Information System (MIS) Data Collection Form
Appendix D to Part 655 Alcohol Testing Management
Information System (MIS) ``EZ'' Data Collection Form
Authority: 49 U.S.C. 5331; 49 CFR 1.51.
Subpart A--General
Sec. 655.1 Purpose.
The purpose of this part is to establish programs, to be
implemented by employers that receive financial assistance from the
Federal Transit Administration (FTA) and by contractors of those
employers, that are designed to help prevent accidents, injuries, and
fatalities resulting from the misuse of alcohol and use of prohibited
drugs by employees who perform safety-sensitive functions.
Sec. 655.2 Overview.
(a) This part includes nine Subparts. Subpart A of this part covers
the general requirements of FTA's drug and alcohol testing programs.
Subpart B of this part specifies the basic requirements of each
employer's alcohol misuse and prohibited drug use program, including
the elements required to be in each employer's testing program. Subpart
C of this part describes prohibited drug
[[Page 21557]]
use. Subpart D of this part describes prohibited alcohol use. Subpart E
of this part describes the types of alcohol and drug tests to be
conducted. Subpart F of this part addresses the testing procedural
requirements mandated by the Omnibus Transportation Employee Testing
Act of 1991, and as required in 49 CFR Part 40. Subpart G of this part
lists the consequences for covered employees who engage in alcohol
misuse or prohibited drug use. Subpart H of this part contains
administrative matters, such as reports and recordkeeping requirements.
Subpart I of this part specifies how a recipient certifies compliance
with the rule.
(b) This part must be read in conjunction with 49 CFR Part 40,
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs.
Sec. 655.3 Applicability.
(a) Except as specifically excluded in paragraph (b) of this
section, this part applies to:
(1) Each recipient and subrecipient receiving federal assistance
under:
(i) 49 U.S.C. 5307, 5309, or 5311; or
(ii) 23 U.S.C. 103(e)(4); and
(2) Any contractor of a recipient or subrecipient of federal
assistance under:
(i) 49 U.S.C. 5307, 5309, or 5311; or
(ii) 23 U.S.C. 103(e)(4).
(b) A recipient operating a railroad regulated by the Federal
Railroad Administration (FRA) shall follow 49 CFR Part 219 and
Sec. 655.83 for its railroad operations, and shall follow this part for
its non-railroad operations, if any.
Sec. 655.4 Definitions.
For this part, the terms listed in this section have the following
definitions. The definitions of additional terms used in this part but
not listed in this section can be found in 49 CFR Part 40.
Accident means an occurrence associated with the operation
of a vehicle, if as a result:
(1) An individual dies; or
(2) An individual suffers bodily injury and immediately receives
medical treatment away from the scene of the accident; or
(3) With respect to an occurrence in which the mass transit vehicle
involved is a bus, electric bus, van, or automobile, one or more
vehicles (including non-FTA funded vehicles) incurs disabling damage as
the result of the occurrence and such vehicle or vehicles are
transported away from the scene by a tow truck or other vehicle; or
(4) With respect to an occurrence in which the mass transit vehicle
involved is a rail car, trolley car, trolley bus, or vessel, the mass
transit vehicle is removed from operation.
Administrator means the Administrator of the Federal
Transit Administration or the Administrator's designee.
Anti-drug program means a program to detect and deter the
use of prohibited drugs as required by this part.
Certification means a recipient's written statement,
authorized by the organization's governing board or other authorizing
official, that the recipient has complied with the provisions of this
part. (See Sec. 655.82 and Sec. 655.83 for certification requirements.)
Contractor means a person or organization that provides a
safety-sensitive service for a recipient, subrecipient, employer, or
operator consistent with a specific understanding or arrangement. The
understanding can be a written contract or an informal arrangement that
reflects an ongoing relationship between the parties.
Covered employee means a person, including an applicant or
transferee, who performs a safety-sensitive function for an entity
subject to this part. A volunteer is a covered employee if:
(1) The volunteer is required to hold a commercial driver's license
to operate the vehicle; or
(2) The volunteer performs a safety-sensitive function for an
entity subject to this part and works in the expectation of receiving
some type of in-kind or tangible benefit. Disabling damage
means damage that precludes departure of a motor vehicle from the
scene of the accident in its usual manner in daylight after simple
repairs.
(1) Inclusion. Damage to a motor vehicle, where the vehicle
could have been driven, but would have been further damaged if so
driven.
(2) Exclusions. (i) Damage that can be remedied temporarily
at the scene of the accident without special tools or parts.
(ii) Tire disablement without other damage even if no spare tire is
available.
(iii) Headlamp or taillight damage.
(iv) Damage to turn signals, horn, or windshield wipers, which
makes the vehicle inoperable.
DOT or The Department means the United States
Department of Transportation.
DOT agency means an agency (or ``operating
administration'') of the United States Department of Transportation
administering regulations requiring drug and alcohol testing. See 14
CFR part 121, appendices I and J; 33 CFR part 95; 46 CFR parts 4, 5,
and 16; and 49 CFR parts 199, 219, 382, and 655.
Employer means a recipient or other entity that provides
mass transportation service or which performs a safety-sensitive
function for such recipient or other entity. This term includes
subrecipients, operators, and contractors.
FTA means the Federal Transit Administration, an agency of
the U.S. Department of Transportation.
Large operator means a recipient or subrecipient primarily
operating in an urbanized area of 200,000 or more in population.
Performing (a safety-sensitive function) means a covered
employee is considered to be performing a safety-sensitive function and
includes any period in which he or she is actually performing, ready to
perform, or immediately available to perform such functions.
Positive rate means the annual number of positive results
for random drug tests conducted under this part divided by the total
annual number of random drug tests conducted under this part.
Railroad means:
(1) All forms of non-highway ground transportation that run on
rails or electromagnetic guideways, including:
(i) Commuter or other short-haul rail passenger service in a
metropolitan or suburban area, as well as any commuter rail service
that was operated by the Consolidated Rail Corporation as of January 1,
1979; and
(ii) High speed ground transportation systems that connect
metropolitan areas, without regard to whether they use new technologies
not associated with traditional railroads.
(2) Such term does not include rapid transit operations within an
urban area that are not connected to the general railroad system of
transportation.
Recipient means an entity receiving Federal financial
assistance under 49 U.S.C. 5307, 5309, or 5311; or under 23 U.S.C.
103(e)(4).
Refuse to submit means any circumstance outlined in 49 CFR
40.191 and 40.261.
Safety-sensitive function means any of the following
duties, when performed by employees of recipients, subrecipients,
operators, or contractors:
(1) Operating a revenue service vehicle, including when not in
revenue service;
(2) Operating a nonrevenue service vehicle, when required to be
operated by a holder of a Commercial Driver's License;
(3) Controlling dispatch or movement of a revenue service vehicle;
(4) Maintaining (including repairs, overhaul and rebuilding) a
revenue
[[Page 21558]]
service vehicle or equipment used in revenue service. This provision
does not apply to the following: an employer who receives funding under
49 U.S.C. 5309, is in an area under 50,000 in population, and contracts
out such services; and an employer who receives funding under 49 U.S.C.
5311 and contracts out such services;
(5) Carrying a firearm for security purposes.
Small operator means a recipient or subrecipient primarily
operating in a nonurbanized area or in an urbanized area of less than
200,000 in population.
Second chance policy means that an employer's substance
abuse policy permits employees who have previously violated that policy
to return to work (including performance of a safety-sensitive
function) after complying with the return-to-work testing requirements.
Vehicle means a bus, electric bus, van, automobile, rail
car, trolley car, trolley bus, or vessel. A mass transit vehicle is a
vehicle used for mass transportation or for ancillary services.
Violation rate means the number of covered employees found
during random tests given annually under this part to have an alcohol
concentration of .04 or greater, plus the number of employees who
refuse a random test required by this part, divided by the total
reported number of employees in the transit industry annually given
random alcohol tests under this part plus the total reported number of
employees in the transit industry who refuse a random test required by
this part.
Sec. 655.5 Stand-down waivers for drug testing.
(a) An employer subject to this part may petition the Federal
Transit Administration for a waiver allowing the employer to stand down
an employee following a report of a laboratory confirmed positive drug
test or refusal, pending the outcome of the verification process.
(b) Each petition for a waiver must be in writing and include facts
and justification to support the waiver. Each petition must satisfy the
substantive requirements for obtaining a waiver, as provided in 49 CFR
40.21.
(c) Each petition for a waiver must be submitted to the Office of
Safety and Security, Federal Transit Administration, Department of
Transportation, 400 Seventh Street, SW. Washington, DC 20590.
(d) The Administrator may grant a waiver subject to 49 CFR
40.21(d).
Sec. 655.6 Preemption of state and local laws.
(a) Except as provided in paragraph (b) of this section, this part
preempts any State or local law, rule, regulation, or order to the
extent that:
(1) Compliance with both the State or local requirement and any
requirement in this Part is not possible; or
(2) Compliance with the State or local requirement is an obstacle
to the accomplishment and execution of any requirement in this part.
(b) This part shall not be construed to preempt provisions of State
criminal laws that impose sanctions for reckless conduct, attributed to
prohibited drug use or alcohol misuse, leading to actual loss of life,
injury, or damage to property, whether the provisions apply
specifically to transportation employees or employers or to the general
public.
Sec. 655.7 Starting date for testing programs.
An employer must have an anti-drug and alcohol misuse testing
program in place by the date the employer begins operations.
Subpart B--Program Requirements
Sec. 655.11 Requirement to establish an anti-drug use and alcohol
misuse program.
Each employer shall establish an anti-drug use and alcohol misuse
program consistent with the requirements of this part.
Sec. 655.12 Required elements of an anti-drug use and alcohol misuse
program.
An anti-drug use and alcohol misuse program shall include the
following:
(a) A statement describing the employer's policy on prohibited drug
use and alcohol misuse in the workplace, including the consequences
associated with prohibited drug use and alcohol misuse. This policy
statement shall include all of the elements specified in Sec. 655.15.
Each employer shall disseminate the policy consistent with the
provisions of Sec. 655.16.
(b) An education and training program which meets the requirements
of Sec. 655.14.
(c) A testing program, as described in Subparts C and D of this
part, which meets the requirements of this part and 49 CFR part 40.
(d) Procedures for referring a covered employee who has a verified
positive drug test result or an alcohol concentration of 0.04 or
greater to a Substance Abuse Professional, consistent with 49 CFR Part
40.
Sec. 655.13 Other requirements imposed by an employer.
An employer may not impose requirements that are inconsistent with,
contrary to, or frustrate the provisions of this part.
Sec. 655.14 Education and training programs.
Each employer shall establish an employee education and training
program for all covered employees, including:
(a) Education. The education component shall include
display and distribution to every covered employee of: informational
material and a community service hot-line telephone number for employee
assistance, if available.
(b) Training--(1) Covered employees. Covered
employees must receive at least 60 minutes of training on the effects
and consequences of prohibited drug use on personal health, safety, and
the work environment, and on the signs and symptoms that may indicate
prohibited drug use.
(2) Supervisors. Supervisors who may make reasonable
suspicion determinations shall receive at least 60 minutes of training
on the physical, behavioral, and performance indicators of probable
drug use and at least 60 minutes of training on the physical,
behavioral, speech, and performance indicators of probable alcohol
misuse.
Sec. 655.15 Policy statement contents.
The local governing board of the employer or operator shall adopt
an anti-drug and alcohol misuse policy statement. The statement must be
made available to each covered employee, and shall include the
following:
(a) The identity of the person designated by the employer to answer
employee questions about the employer's anti-drug use and alcohol
misuse programs.
(b) The categories of employees who are subject to the provisions
of this part.
(c) Specific information concerning the behavior and conduct that
is prohibited by this part.
(d) The specific circumstances under which a covered employee will
be tested for prohibited drugs or alcohol misuse under this part.
(e) The procedures that will be used to test for the presence of
illegal drugs or alcohol misuse, protect the employee and the integrity
of the drug and alcohol testing process, safeguard the validity of the
test results, and ensure the test results are attributed to the correct
covered employee.
(f) The requirement that a covered employee submit to drug and
alcohol testing administered in accordance with this part.
(g) A description of the kind of behavior that constitutes a
refusal to take a drug or alcohol test, and a statement that such a
refusal constitutes a violation of the employer's policy.
[[Page 21559]]
(h) The consequences for a covered employee who has a verified
positive drug or a confirmed alcohol test result with an alcohol
concentration of 0.04 or greater, or who refuses to submit to a test
under this part, including the mandatory requirements that the covered
employee be removed immediately from his or her safety-sensitive
function and be evaluated by a substance abuse professional, as
required by 49 CFR part 40.
(i) The consequences, as set forth in Sec. 655.35, for a covered
employee who is found to have an alcohol concentration of 0.02 or
greater but less than 0.04.
(j) If the employer implements elements of an anti-drug use or
alcohol misuse program that are in addition to this part, the employer
shall give each covered employee specific information concerning which
provisions are mandated by this part and which are not.
Sec. 655.16 Requirement to disseminate policy.
Each employer shall provide written notice to every covered
employee and to representatives of employee organizations of the
employer's anti-drug and alcohol misuse policies and procedures.
Sec. 655.17 Notice requirement.
Before performing a drug or alcohol test under this part, each
employer shall notify a covered employee that the test is required by
this part. No employer shall falsely represent that a test is
administered under this part.
Subpart C--Prohibited Drug Use
Sec. 655.21 Drug testing.
(a) An employer shall establish a program that provides testing for
prohibited drugs and drug metabolites in the following circumstances:
pre-employment, post-accident, reasonable suspicion, random, and return
to duty/follow-up.
(b) When administering a drug test, an employer shall ensure that
the following drugs are tested for:
(1) Marijuana;
(2) Cocaine;
(3) Opiates;
(4) Amphetamines; and
(5) Phencyclidine.
(c) Consumption of these products is prohibited at all times.
Subpart D--Prohibited Alcohol Use
Sec. 655.31 Alcohol testing.
(a) An employer shall establish a program that provides for testing
for alcohol in the following circumstances: post-accident, reasonable
suspicion, random, and return to duty/follow-up. An employer may also
conduct pre-employment alcohol testing.
(b) Each employer shall prohibit a covered employee, while having
an alcohol concentration of 0.04 or greater, from reporting for duty to
perform a safety-sensitive function or remaining on duty while
performing a safety-sensitive function.
Sec. 655.32 On duty use.
Each employer shall prohibit a covered employee from using alcohol
while performing safety-sensitive functions. No employer having actual
knowledge that a covered employee is using alcohol while performing
safety-sensitive functions shall permit the employee to perform or
continue to perform safety-sensitive functions.
Sec. 655.33 Pre-duty use.
(a) General. Each employer shall prohibit a covered
employee from using alcohol within 4 hours prior to performing safety-
sensitive functions. No employer having actual knowledge that a covered
employee has used alcohol within four hours of performing a safety-
sensitive function shall permit the employee to perform or continue to
perform safety-sensitive functions.
(b) On-call employees. An employer shall prohibit the
consumption of alcohol for the specified on-call hours of each covered
employee who is on-call. The procedure shall include:
(1) The opportunity for the covered employee to acknowledge the use
of alcohol at the time he or she is called to report to duty and the
inability to perform his or her safety-sensitive function.
(2) The requirement that the covered employee take an alcohol test,
if the covered employee has acknowledged the use of alcohol, but claims
ability to perform his or her safety-sensitive function.
Sec. 655.34 Use following an accident.
Each employer shall prohibit alcohol use by any covered employee
required to take a post-accident alcohol test under Sec. 655.44 for
eight hours following the accident or until he or she undergoes a post-
accident alcohol test, whichever occurs first.
Sec. 655.35 Other alcohol-related conduct.
(a) No employer shall permit a covered employee tested under the
provisions of subpart E of this part who is found to have an alcohol
concentration of 0.02 or greater but less than 0.04 to perform or
continue to perform safety-sensitive functions, until:
(1) The employee's alcohol concentration measures less than 0.02;
or (2) The start of the employee's next regularly scheduled duty
period, but not less than eight hours following administration of the
test.
(b) Except as provided in paragraph (a) of this section, no
employer shall take any action under this part against an employee
based solely on test results showing an alcohol concentration less than
0.04. This does not prohibit an employer with authority independent of
this part from taking any action otherwise consistent with law.
Subpart E--Types of Testing
Sec. 655.41 Pre-employment drug testing
(a)(1) Before allowing a covered employee or applicant to perform a
safety-sensitive function for the first time, the employer must ensure
that the employee takes a pre-employment drug test administered under
this part with a verified negative result. An employer may not allow a
covered employee, including an applicant, to perform a safety-sensitive
function unless the employee takes a drug test administered under this
part with a verified negative result.
(2) When a covered employee or applicant has previously failed a
pre-employment drug test administered under this part, the employee
must present to the employer proof of successfully having completed a
referral, evaluation and treatment plan as described in Sec. 655.62.
(b) An employer may not transfer an employee from a nonsafety-
sensitive function to a safety-sensitive function until the employee
takes a pre-employment drug test administered under this part with a
verified negative result.
(c) If a pre-employment drug test is canceled, the employer shall
require the covered employee or applicant to take another pre-
employment drug test administered under this part with a verified
negative result.
(d) When a covered employee or applicant has not performed a
safety-sensitive function for 90 consecutive calendar days regardless
of the reason, and the employee has not been in the employer's random
selection pool during that time frame, the employer shall ensure that
the employee takes a pre-employment drug test with a verified negative
result.
Sec. 655.42 Pre-employment alcohol testing.
As an employer, you may, but are not required to, conduct pre-
employment alcohol testing under this part. If you choose to conduct
pre-employment alcohol testing, you must comply with the following
requirements:
[[Page 21560]]
(a) You must conduct a pre-employment alcohol test before the first
performance of safety-sensitive functions by every covered employee
(whether a new employee or someone who has transferred to a position
involving the performance of safety-sensitive functions).
(b) You must treat all safety-sensitive employees performing
safety-sensitive functions the same for the purpose of pre-employment
alcohol testing (i.e., you must not test some covered employees and not
others).
(c) You must conduct the pre-employment tests after making a
contingent offer of employment or transfer, subject to the employee
passing the pre-employment alcohol test.
(d) You must conduct all pre-employment alcohol tests using the
alcohol testing procedures of 49 CFR part 40.
(e) You must not allow a covered employee to begin performing
safety-sensitive functions unless the result of the employee's test
indicates an alcohol concentration of less than 0.04.
Sec. 655.43 Reasonable suspicion testing.
(a) An employer shall conduct a drug and/or alcohol test when the
employer has reasonable suspicion to believe that the covered employee
has used a prohibited drug and/or engaged in alcohol misuse.
(b) An employer's determination that reasonable suspicion exists
shall be based on specific, contemporaneous, articulable observations
concerning the appearance, behavior, speech, or body odors of the
covered employee. A supervisor who is trained in detecting the signs
and symptoms of drug use and alcohol misuse must make the required
observations.
(c) The decision to refer an employee for a reasonable suspicion
test shall be made by one trained supervisor. Employers are prohibited
from requiring two or more trained supervisors to participate and/or
agree on such a referral.
Sec. 655.44 Post-accident testing.
(a) Accidents. (1) Fatal accidents. As soon as practicable
following an accident involving the loss of human life, an employer
shall conduct drug and alcohol tests on each surviving covered employee
operating the mass transit vehicle at the time of the accident. The
employer shall also drug and alcohol test any other covered employee
whose performance could have contributed to the accident, as determined
by the employer using the best information available at the time of the
decision.
(2) Nonfatal accidents. (i) As soon as practicable
following an accident not involving the loss of human life, in which a
mass transit vehicle is involved, the employer shall drug and alcohol
test each covered employee operating the mass transit vehicle at the
time of the accident unless the employer determines, using the best
information available at the time of the decision, that the covered
employee's performance can be completely discounted as a contributing
factor to the accident. The decision not to administer a drug and/or
alcohol test under this paragraph (a)(2)(i) shall be based on the
employer's determination, using the best available information at the
time of the determination, that the employee's performance could not
have contributed to the accident. Such a decision must be documented in
detail, including the decision-making process used to reach the
decision not to test. The employer shall also drug and alcohol test any
other covered employee whose performance could have contributed to the
accident, as determined by the employer using the best information
available at the time of the decision.
(ii) If an alcohol test required by this section is not
administered within two hours following the accident, the employer
shall prepare and maintain on file a record stating the reasons the
alcohol test was not promptly administered. If an alcohol test required
by this paragraph (a)(2)(ii) is not administered within eight hours
following the accident, the employer shall cease attempts to administer
an alcohol test and shall maintain the same record. Records shall be
submitted to FTA upon request of the Administrator.
(b) An employer shall ensure that a covered employee required to be
drug tested under this section is tested as soon as practicable but
within 32 hours of the accident.
(c) A covered employee who is subject to post-accident testing who
fails to remain readily available for such testing, including notifying
the employer or the employer representative of his or her location if
he or she leaves the scene of the accident prior to submission to such
test, may be deemed by the employer to have refused to submit to
testing.
(d) Nothing in this section shall be construed to require the delay
of necessary medical attention for the injured following an accident or
to prohibit a covered employee from leaving the scene of an accident
for the period necessary to obtain assistance in responding to the
accident or to obtain necessary emergency medical care.
(e) The results of a blood, urine, or breath test for the use of
prohibited drugs or alcohol misuse, conducted by Federal, State, or
local officials having independent authority for the test, shall be
considered to meet the requirements of this section, provided such test
conforms to the applicable Federal, State, or local testing
requirements, and that the test results are obtained by the employer.
Sec. 655.45 Random testing.
(a) Except as provided in paragraphs (b) through (d) of this
section, the minimum annual percentage rate for random drug testing
shall be 50 percent of covered employees; the random alcohol testing
rate shall be 25 percent. As provided in paragraph (b) of this section,
this rate is subject to annual review by the Administrator.
(b) The Administrator's decision to increase or decrease the
minimum annual percentage rate for random drug and alcohol testing is
based, respectively, on the reported positive drug and alcohol
violation rates for the entire industry. All information used for this
determination is drawn from the drug and alcohol Management Information
System (MIS) reports required by this part. In order to ensure
reliability of the data, the Administrator shall consider the quality
and completeness of the reported data, may obtain additional
information or reports from employers, and may make appropriate
modifications in calculating the industry's verified positive results
and violation rates. Each year, the Administrator will publish in the
Federal Register the minimum annual percentage rates for random
drug and alcohol testing of covered employees. The new minimum annual
percentage rate for random drug and alcohol testing will be applicable
starting January 1 of the calendar year following publication.
(c) Rates for drug testing. (1) When the minimum annual percentage
rate for random drug testing is 50 percent, the Administrator may lower
this rate to 25 percent of all covered employees if the Administrator
determines that the data received under the reporting requirements of
Sec. 655.72 for the two preceding consecutive calendar years indicate
that the reported positive rate is less than 1.0 percent.
(2) When the minimum annual percentage rate for random drug testing
is 25 percent, and the data received under the reporting requirements
of Sec. 655.72 for the calendar year indicate that the reported
positive rate is equal to or greater than 1.0 percent, the
Administrator will increase the minimum annual percentage rate for
[[Page 21561]]
random drug or random alcohol testing to 50 percent of all covered
employees.
(d) Rates for alcohol testing. (1)(i) When the minimum annual
percentage rate for random alcohol testing is 25 percent or more, the
Administrator may lower this rate to 10 percent of all covered
employees if the Administrator determines that the data received under
the reporting requirements of Sec. 655.72 for two consecutive calendar
years indicate that the violation rate is less than 0.5 percent.
(ii) When the minimum annual percentage rate for random alcohol
testing is 50 percent, the Administrator may lower this rate to 25
percent of all covered employees if the Administrator determines that
the data received under the reporting requirements of Sec. 655.72 for
two consecutive calendar years indicate that the violation rate is less
than 1.0 percent but equal to or greater than 0.5 percent.
(2)(i) When the minimum annual percentage rate for random alcohol
testing is 10 percent, and the data received under the reporting
requirements of Sec. 655.72 for that calendar year indicate that the
violation rate is equal to or greater than 0.5 percent, but less than
1.0 percent, the Administrator will increase the minimum annual
percentage rate for random alcohol testing to 25 percent of all covered
employees.
(ii) When the minimum annual percentage rate for random alcohol
testing is 25 percent or less, and the data received under the
reporting requirements of Sec. 655.72 for that calendar year indicate
that the violation rate is equal to or greater than 1.0 percent, the
Administrator will increase the minimum annual percentage rate for
random alcohol testing to 50 percent of all covered employees.
(e) The selection of employees for random drug and alcohol testing
shall be made by a scientifically valid method, such as a random number
table or a computer-based random number generator that is matched with
employees' Social Security numbers, payroll identification numbers, or
other comparable identifying numbers. Under the selection process used,
each covered employee shall have an equal chance of being tested each
time selections are made.
(f) The employer shall randomly select a sufficient number of
covered employees for testing during each calendar year to equal an
annual rate not less than the minimum annual percentage rates for
random drug and alcohol testing determined by the Administrator. If the
employer conducts random drug and alcohol testing through a consortium,
the number of employees to be tested may be calculated for each
individual employer or may be based on the total number of covered
employees covered by the consortium who are subject to random drug and
alcohol testing at the same minimum annual percentage rate under this
part.
(g) Each employer shall ensure that random drug and alcohol tests
conducted under this part are unannounced and unpredictable, and that
the dates for administering random tests are spread reasonably
throughout the calendar year. Random testing must be conducted during
all time periods when safety-sensitive functions are performed.
(h) Each employer shall require that each covered employee who is
notified of selection for random drug or random alcohol testing
proceeds to the test site immediately; provided, however, that if the
employee is performing a safety-sensitive function at the time of the
notification, the employer shall instead ensure that the employee
ceases to perform the safety-sensitive function and proceeds to the
testing site immediately.
(i) A covered employee shall only be randomly tested for prohibited
drug use or alcohol misuse while the employee is performing safety-
sensitive functions; just before the employee is to perform safety-
sensitive functions; or just after the employee has ceased performing
such functions.
(j) If a given covered employee is subject to random drug and
alcohol testing under the testing rules of more than one DOT agency for
the same employer, the employee shall be subject to random drug and
alcohol testing at the percentage rate established for the calendar
year by the DOT agency regulating more than 50 percent of the
employee's function.
(k) If an employer is required to conduct random drug and alcohol
testing under the drug and alcohol testing rules of more than one DOT
agency, the employer may--
(1) Establish separate pools for random selection, with each pool
containing the covered employees who are subject to testing at the same
required rate; or
(2) Randomly select such employees for testing at the highest
percentage rate established for the calendar year by any DOT agency to
which the employer is subject.
Sec. 655.46 Return to duty testing following refusal to submit to a
test, verified positive drug test result and/or breath alcohol test
result greater than 0.04.
Where a covered employee refuses to submit to a test, has a
verified positive drug test result, and/or has a confirmed alcohol test
result greater than 0.04, the employer, before returning the employee
to duty to perform a safety-sensitive function, shall follow the
procedures outlined in 49 CFR part 40.
Sec. 655.47 Follow-up testing after returning to duty.
An employer shall conduct follow-up testing of each employee who
returns to duty, as specified in 49 CFR part 40, subpart O. The
substance abuse professional may terminate the requirement for follow-
up testing, as provided in 49 CFR 40.307.
Sec. 655.48 Retesting of covered employees with an alcohol
concentration of 0.02 or greater but less than 0.04.
Each employer shall retest a covered employee to ensure compliance
with the provisions of Sec. 655.35, if the employer chooses to permit
the employee to perform a safety-sensitive function within 8 hours
following the administration of an alcohol test indicating an alcohol
concentration of 0.02 or greater but less than 0.04. The employee may
not perform safety-sensitive functions unless the confirmation alcohol
test result is less than 0.02.
Sec. 655.49 Refusal to submit to a drug or alcohol test.
(a) Each employer shall require a covered employee to submit to a
post-accident drug and alcohol test required under Sec. 655.44, a
random drug and alcohol test required under Sec. 655.45, a reasonable
suspicion drug and alcohol test required under Sec. 655.43, or a
follow-up drug and alcohol test required under Sec. 655.47. No employer
shall permit an employee who refuses to submit to such a test to
perform or continue to perform safety-sensitive functions.
(b) Where an employee refuses to submit to a test, the employer
shall follow the procedures outlined in 49 CFR part 40.
Subpart F--Drug and Alcohol Testing Procedures
Sec. 655.51 Compliance with testing procedures requirements.
The drug and alcohol testing procedures in 49 CFR part 40 apply to
employers covered by this part, and must be read together with this
part, unless expressly provided otherwise in this part.
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Sec. 655.52 Substance abuse professional (SAP).
The SAP must perform the functions in 49 CFR part 40, subpart O.
Sec. 655.53 Supervisor acting as collection site personnel.
An employer shall not permit an employee with direct or immediate
supervisory responsibility or authority over another employee to serve
as the urine collection person, breath alcohol technician, or saliva-
testing technician for a drug or alcohol test of the employee.
Subpart G--Consequences
Sec. 655.61 Action when an employee has a verified positive drug test
result or has a confirmed alcohol test result of 0.04 or greater, or
refuses to submit to a test.
(a)(1) Immediately after receiving notice from a medical review
officer (MRO) or a consortium/third party administrator (C/TPA) that a
covered employee has a verified positive drug test result, the employer
shall require that the covered employee cease performing a safety-
sensitive function.
(2) Immediately after receiving notice from a Breath Alcohol
Technician (BAT) that a covered employee has a confirmed alcohol test
result of 0.04 or greater, the employer shall require that the covered
employee cease performing a safety-sensitive function.
(3) If an employee refuses to submit to a drug or alcohol test, the
employer shall require that the covered employee cease performing a
safety-sensitive function.
(b) Before allowing the covered employee to resume performing a
safety-sensitive function, the employer shall ensure that the covered
employee meets the requirements of 49 CFR part 40 for returning to
duty, including taking a return to duty drug and/or alcohol test.
Sec. 655.62 Referral, evaluation, and treatment.
(a) If a covered employee has a verified positive drug test result,
or has a confirmed alcohol test of 0.04 or greater, or refuses to
submit to a drug or alcohol test, the employer shall advise the
employee of the resources available for evaluating and resolving
problems associated with prohibited drug use and alcohol misuse,
including the names, addresses, and telephone numbers of substance
abuse professionals (SAPs) and counseling and treatment programs.
(b) A covered employee under a second chance agreement, who has had
a verified positive drug test result, or had a confirmed alcohol test
of 0.04 or greater, or refused to submit to a drug or alcohol test,
shall not resume performing safety-sensitive functions until the
covered employee has met all the requirements of 49 CFR part 40,
including a substance abuse professional (SAP) evaluation, referral,
and education treatment process.
Subpart H--Administrative Requirements
Sec. 655.71 Retention of records.
(a) General requirement. An employer shall maintain records
of its anti-drug and alcohol misuse program as provided in this
section. The records shall be maintained in a secure location with
controlled access.
(b) Period of retention. In determining compliance with the
retention period requirement, each record shall be maintained for the
specified period of time, measured from the date of the document's or
data's creation. Each employer shall maintain the records in accordance
with the following schedule:
(1) Five years. Records of covered employee verified
positive drug or alcohol test results, documentation of refusals to
take required drug or alcohol tests, and covered employee referrals to
the substance abuse professional, and copies of annual MIS reports
submitted to FTA.
(2) Two years. Records related to the collection process
and employee training.
(3) One year. Records of negative drug or alcohol test
results.
(c) Types of records. The following specific records must
be maintained:
(1) Records related to the collection process:
(i) Collection logbooks, if used.
(ii) Documents relating to the random selection process.
(iii) Documents generated in connection with decisions to
administer reasonable suspicion drug or alcohol tests.
(iv) Documents generated in connection with decisions on post-
accident drug and alcohol testing.
(v) MRO documents verifying existence of a medical explanation of
the inability of a covered employee to provide an adequate urine or
breathe sample.
(2) Records related to test results:
(i) The employer's copy of the custody and control form.
(ii) Documents related to the refusal of any covered employee to
submit to a test required by this part.
(iii) Documents presented by a covered employee to dispute the
result of a test administered under this part.
(3) Records related to referral and return to duty and follow-up
testing: Records concerning a covered employee's entry into and
completion of the treatment program recommended by the substance abuse
professional.
(4) Records related to employee training:
(i) Training materials on drug use awareness and alcohol misuse,
including a copy of the employer's policy on prohibited drug use and
alcohol misuse.
(ii) Names of covered employees attending training on prohibited
drug use and alcohol misuse and the dates and times of such training.
(iii) Documentation of training provided to supervisors for the
purpose of qualifying the supervisors to make a determination
concerning the need for drug and alcohol testing based on reasonable
suspicion.
(iv) Certification that any training conducted under this part
complies with the requirements for such training.
(5) Copies of annual MIS reports submitted to FTA.
Sec. 655.72 Reporting of results in a management information system.
(a) Each recipient shall annually prepare and maintain a summary of
the results of its anti-drug and alcohol misuse testing programs
performed under this part during the previous calendar year.
(b) When requested by FTA, each recipient shall submit to FTA's
Office of Safety and Security, or its designated agent, by March 15, a
report covering the previous calendar year (January 1 through December
31) summarizing the results of its anti-drug and alcohol misuse
programs.
(c) Each recipient shall be responsible for ensuring the accuracy
and timeliness of each report submitted by an employer, contractor,
consortium or joint enterprise or by a third party service provider
acting on the recipient's or employer's behalf.
(d) Drug use information: Long Form. Each report that
contains information on verified positive drug test results shall be
submitted on the FTA Drug Testing Management Information System (MIS)
Data Collection Form (Appendix A of this part) and shall include the
following informational elements:
(1) Number of FTA covered employees by employee category.
(2) Number of covered employees subject to testing under the anti-
drug regulations of the United States Coast Guard.
(3) Number of specimens collected by type of test (i.e., pre-
employment, follow-up, random, etc.) and employee category.
(4) Number of positives verified by a Medical Review Officer (MRO)
by type
[[Page 21563]]
of test, type of drug, and employee category.
(5) Number of negatives verified by an MRO by type of test and
employee category.
(6) Number of persons denied a position as a covered employee
following a verified positive drug test.
(7) Number of covered employees verified positive by an MRO or who
refused to submit to a drug test, who were returned to duty in covered
positions during the reporting period (having complied with the
recommendations of a substance abuse professional as described in
Sec. 655.61).
(8) Number of employees with tests verified positive by a MRO for
multiple drugs.
(9) Number of covered employees who were administered drug and
alcohol tests at the same time, with both a verified positive drug test
result and an alcohol test result indicating an alcohol concentration
of 0.04 or greater.
(10) Number of covered employees who refused to submit to a random
drug test required under this part.
(11) Number of covered employees who refused to submit to a non-
random drug test required under this part.
(12) Number of covered employees and supervisors who received
training during the reporting period.
(13) Number of fatal and nonfatal accidents which resulted in a
verified positive post-accident drug test.
(14) Number of fatalities resulting from accidents which resulted
in a verified positive post-accident drug test.
(15) Identification of FTA funding source(s).
(e) Drug Use Information: Short Form. If all drug test
results were negative during the reporting period, the employer must
use the ``EZ form'' (Appendix B of this part). It shall contain:
(1) Number of FTA covered employees.
(2) Number of covered employees subject to testing under the anti-
drug regulation of the United States Coast Guard.
(3) Number of specimens collected and verified negative by type of
test and employee category.
(4) Number of covered employees verified positive by an MRO or who
refused to submit to a drug test prior to the reporting period and who
were returned to duty in covered positions during the reporting period
(having complied with the recommendations of a substance abuse
professional as described in Sec. 655.62).
(5) Number of covered employees who refused to submit to a non-
random drug test required under this part.
(6) Number of covered employees and supervisors who received
training during the reporting period.
(7) Identification of FTA funding source(s).
(f) Alcohol misuse information: Long Form. Each report that
contains information on an alcohol screening test result of 0.02 or
greater or a violation of the alcohol misuse provisions of this part
shall be submitted on the FTA Alcohol Testing Management (MIS) Data
Collection Form (Appendix C of this part) and shall include the
following informational elements:
(1) Number of FTA covered employees by employee category.
(2)(i) Number of screening tests by type of test and employee
category.
(ii) Number of confirmed tests, by type of test and employee
category.
(3) Number of confirmed alcohol tests indicating an alcohol
concentration of 0.02 or greater but less than 0.04, by type of test
and employee category.
(4) Number of confirmed alcohol tests indicating an alcohol
concentration of 0.04 or greater, by type of test and employee
category.
(5) Number of covered employees with a confirmed alcohol test
indicating an alcohol concentration of 0.04 or greater who were
returned to duty in covered positions during the reporting period
(having complied with the recommendation of a substance abuse
professional as described in Sec. 655.61).
(6) Number of fatal and nonfatal accidents which resulted in a
confirmed post-accident alcohol test indicating an alcohol
concentration of 0.04 or greater.
(7) Number of fatalities resulting from accidents which resulted in
a confirmed post-accident alcohol test indicating an alcohol
concentration of 0.04 or greater.
(8) Number of covered employees who were found to have violated
other provisions of subpart B of this part and the action taken in
response to the violation.
(9) Number of covered employees who were administered alcohol and
drug tests at the same time, with a positive drug test result and an
alcohol test result indicating an alcohol concentration of 0.04 or
greater.
(10) Number of covered employees who refused to submit to a random
alcohol test required under this part.
(11) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
(12) Number of supervisors who have received training during the
reporting period in determining the existence of reasonable suspicion
of alcohol misuse.
(13) Identification of FTA funding source(s).
(g) Alcohol Misuse Information: Short Form. If an employer
has no screening test results of 0.02 or greater and no violations of
the alcohol misuse provisions of this part, the employer must use the
``EZ'' form (Appendix D of this part). It shall contain: (This report
may only be submitted if the program results meet these criteria.)
(1) Number of FTA covered employees.
(2) Number of alcohol tests conducted with results less than 0.02
by type of test and employee category.
(3) Number of employees with confirmed alcohol test results
indicating an alcohol concentration of 0.04 or greater prior to the
reporting period and who were returned to duty in a covered position
during the reporting period.
(4) Number of covered employees who refused to submit to a random
alcohol test required under this part.
(5) Number of supervisors who have received training during the
reporting period in determining the existence of reasonable suspicion
of alcohol misuse.
(6) Identification of FTA funding source(s).
Sec. 655.73 Access to facilities and records
(a) Except as required by law, or expressly authorized or required
in this section, no employer may release information pertaining to a
covered employee that is contained in records required to be maintained
by Sec. 655.71.
(b) A covered employee is entitled, upon written request, to obtain
copies of any records pertaining to the covered employee's use of
prohibited drugs or misuse of alcohol, including any records pertaining
to his or her drug or alcohol tests. The employer shall provide
promptly the records requested by the employee. Access to a covered
employee's records shall not be contingent upon the employer's receipt
of payment for the production of those records.
(c) An employer shall permit access to all facilities utilized and
records compiled in complying with the requirements of this part to the
Secretary of Transportation or any DOT agency with regulatory authority
over the employer or any of its employees or to a State oversight
agency authorized to oversee rail fixed guideway systems.
(d) An employer shall disclose data for its drug and alcohol
testing programs, and any other information pertaining to the
employer's anti-drug and alcohol misuse programs required to be
maintained by this part, to the Secretary of Transportation or any DOT
agency with regulatory authority over the employer or covered employee
or to a State oversight agency authorized to oversee rail fixed
guideway systems,
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upon the Secretary's request or the respective agency's request.
(e) When requested by the National Transportation Safety Board as
part of an accident investigation, employers shall disclose information
related to the employer's drug or alcohol testing related to the
accident under investigation.
(f) Records shall be made available to a subsequent employer upon
receipt of a written request from the covered employee. Subsequent
disclosure by the employer is permitted only as expressly authorized by
the terms of the covered employee's request.
(g) An employer may disclose information required to be maintained
under this part pertaining to a covered employee to the employee or the
decisionmaker in a lawsuit, grievance, or other proceeding initiated by
or on behalf of the individual, and arising from the results of a drug
or alcohol test under this part (including, but not limited to, a
worker's compensation, unemployment compensation, or other proceeding
relating to a benefit sought by the covered employee.)
(h) An employer shall release information regarding a covered
employee's record as directed by the specific, written consent of the
employee authorizing release of the information to an identified
person.
Subpart I--Certifying Compliance
Sec. 655.81 Grantee oversight responsibility
A grantee shall ensure that the recipients of funds under 49 U.S.C.
5307, 5309, or 5311 comply with this part.
Sec. 655.82 Compliance as a condition of financial assistance.
(a) General. A recipient may not be eligible for federal
financial assistance under 49 U.S.C. 5307, 5309, or 5311 or under 23
U.S.C. 103(e)(4), if a recipient fails to establish and implement an
anti-drug and alcohol misuse program as required by this part. Failure
to certify compliance with these requirements, as specified in
Sec. 655.83, may result in the suspension of a grantee's eligibility
for federal funding.
(b) Criminal violation. A recipient is subject to criminal
sanctions and fines for false statements or misrepresentations under 18
U.S.C. 1001.
(c) State's role. Each State shall certify compliance on
behalf of its section 5307, 5309, or 5311 subrecipients, as applicable,
whose grant the State administers. In so certifying, the State shall
ensure that each subrecipient is complying with the requirements of
this part. A section 5307, 5309, or 5311 subrecipient, through the
administering State, is subject to suspension of funding from the State
if such subrecipient is not in compliance with this part.
Sec. 655.83 Requirement to certify compliance
(a) A recipient of FTA financial assistance shall annually certify
compliance, as set forth in Sec. 655.82, to the applicable FTA Regional
Office.
(b) A certification must be authorized by the organization's
governing board or other authorizing official, and must be signed by a
party specifically authorized to do so.
(c) A recipient will be ineligible for further FTA financial
assistance if the recipient fails to establish and implement an anti-
drug and alcohol misuse program in accordance with this part.
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Issued on: April 2, 2001.
Hiram J. Walker,
Acting Deputy Administrator, Federal Transit Administration.
[FR Doc. 01-9415 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-57-C