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Proposed Rule

Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations

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Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

Federal Transit Administration, Department of Transportation.

ACTION:

Notice of proposed rulemaking (NPRM).

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 Start Printed Page 21552the 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/​.

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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).

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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 (§ 653.7 and § 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 Start Printed Page 215531997. 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 (§ 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 Start Printed Page 21554under 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 (§ 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 (§ 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 § 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 § 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 (§ 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 Start Printed Page 21555result 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 (§ 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 (§ 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 (§ 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 (§ 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 (§ 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 Start Printed Page 21556accommodations 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.

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List of Subjects

End List of Subjects

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:

Start Part

PART 653—[REMOVED]

1. Remove part 653.

End Part Start Part

PART 654—[REMOVED]

2. Remove part 654.

3. Add part 655 to read as follows:

End Part Start Part

PART 655—PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN TRANSIT OPERATIONS

Subpart A—General
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
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Authority: 49 U.S.C. 5331; 49 CFR 1.51.

End Authority

Subpart A_General

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.

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 Start Printed Page 21557use. 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.

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 § 655.83 for its railroad operations, and shall follow this part for its non-railroad operations, if any.

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 § 655.82 and § 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 Start Printed Page 21558service 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.

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).

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.

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

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.

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 § 655.15. Each employer shall disseminate the policy consistent with the provisions of § 655.16.

(b) An education and training program which meets the requirements of § 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.

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.

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.

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. Start Printed 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 § 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.

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.

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

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

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.

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.

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.

Use following an accident.

Each employer shall prohibit alcohol use by any covered employee required to take a post-accident alcohol test under § 655.44 for eight hours following the accident or until he or she undergoes a post-accident alcohol test, whichever occurs first.

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

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 § 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.

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: Start Printed 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.

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.

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.

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 § 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 § 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 Start Printed Page 21561random 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 § 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 § 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 § 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 § 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.

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.

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.

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 § 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.

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 § 655.44, a random drug and alcohol test required under § 655.45, a reasonable suspicion drug and alcohol test required under § 655.43, or a follow-up drug and alcohol test required under § 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

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.

Start Printed Page 21562
Substance abuse professional (SAP).

The SAP must perform the functions in 49 CFR part 40, subpart O.

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

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.

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

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.

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 Start Printed Page 21563of 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 § 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 § 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 § 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).

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 § 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, Start Printed Page 21564upon 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

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.

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 § 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.

Requirement to certify compliance

(a) A recipient of FTA financial assistance shall annually certify compliance, as set forth in § 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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Start Signature

Issued on: April 2, 2001.

Hiram J. Walker,

Acting Deputy Administrator, Federal Transit Administration.

End Signature End Part End Supplemental Information

BILLING CODE 4910-57-P

[FR Doc. 01-9415 Filed 4-27-01; 8:45 am]

BILLING CODE 4910-57-C