Prevention of Alcohol Misuse in Transit Operations

SUMMARY: The Omnibus Transportation Employee Testing Act of 1991

directs the Federal Transit Administration to issue regulations on drug

and alcohol testing for mass transit workers in safety-sensitive

positions. This document accordingly sets forth the agency's alcohol

misuse prevention program, which is intended to increase the safety of

mass transit operations.

EFFECTIVE DATE: March 17, 1994.

FOR FURTHER INFORMATION CONTACT: For program issues, Judy Meade, Office

of Safety and Security, Federal Transit Administration, DOT, 400

Seventh St., SW., room 6432, Washington DC 20590. Telephone: 202-366-

2896. For legal questions, Nancy Zaczek or Daniel Duff, Office of the

Chief Counsel, Federal Transit Administration, DOT, 400 Seventh St.,

SW., room 9316, Washington DC 20590. Telephone: 202-366-4011 (voice);

202-366-2979 (TDD). Copies of the regulation are available in

alternative formats upon request.

SUPPLEMENTARY INFORMATION: Because of the length of this preamble, the

following outline of the rule's introductory material is provided.

I. How to read this rule.

II. Discussion

A. Background

B. The Omnibus Transportation Employee Testing Act of 1991

C. The Anti-Drug Rule

D. Study of alcohol use in the transit industry

E. Summary of the Final Rule

F. Overview of the Comments

III. Discussion of the Comments

A. Multi-modal jurisdiction

B. Accident

C. Safety-sensitive function

D. Covered employee/contractor

E. Pre-employment/pre-duty testing

F. Reasonable suspicion testing

G. Random testing/random testing rate

H. Post-accident testing

I. Return to duty/follow-up testing

J. Treatment

K. Training

L. Management Information System (MIS) reporting requirement

M. Implementation date

N. Combined drug and alcohol rules

P. Indian Tribal Governments

Q. Waivers

III. Section-by-Section Analysis

IV. Americans with Disabilities Act of 1990

V. Economic Analysis

VI. Regulatory Process Matters

I. How To Read This Rule

This rule has three components: Part 654, ``Prevention of Alcohol

Misuse in Transit Operations''; the common preamble by the Office of

the Secretary (OST), ``Limitation on Alcohol Use By Transportation

Workers'' published elsewhere in today's Federal Register; and Part 40,

``Procedures for Transportation Workplace Drug and Alcohol Testing

programs.'' This document is part 654, the Federal Transit

Administration's (FTA) alcohol testing regulations for recipients of

certain kinds of Federal funding. This preamble to part 654 briefly

explains those issues unique to the transit industry and is followed by

the text of the substantive regulation. The common preamble, on the

other hand, discusses the issues and comments common to all five DOT

agencies issuing final alcohol rules today. Finally, the testing

procedures for administering alcohol and drug tests are set forth in

part 40 and the issues concerning it are discussed in its preamble.

II. Discussion

A. Background

On December 15, 1992, the Federal Transit Administration (FTA)

published a Notice of Proposed Rulemaking (NPRM) in the Federal

Register at 57 FR 59646, entitled ``Prevention of Alcohol Misuse in

Transit Operations.'' The NPRM invited comment from the public on the

proposed rule, which would require certain recipients of Federal

transit funding to have a comprehensive alcohol misuse prevention

program. FTA provided a 120-day comment period and received over 125

comments on the regulation proposed in the NPRM.

In addition to receiving written comments on the NPRM, in 1993 FTA

held three public hearings on the rule: on February 25-26, in

Washington DC; on March 1-2, in Chicago, Illinois; and on March 4-5, in

San Francisco, California. Each hearing was recorded by a court

reporter; the transcript of each hearing and any statements or other

material submitted to the hearing officer during the hearings are

contained in the public docket to this rule and were considered in

developing this final rule.

B. The Omnibus Transportation Employee Testing Act of 1991

The Omnibus Transportation Employee Testing Act of 1991 (the Act)

(Title V, Pub. L. 102-143, October 28, 1991) mandates some operating

administrations within the Department of Transportation, including the

FTA, to issue regulations on the misuse of alcohol by safety-sensitive

employees. While there is a complete discussion of the various

provisions of the Act in the Department-wide preamble found elsewhere

in today's issue of the Federal Register, the following discussion

highlights provisions of the Act concerning the FTA.

The Federal Transit Administration must issue regulations requiring

recipients of funds under section 3, 9, or 18 of the Federal Transit

Act, as amended (FT Act), or section 103(e)(4) of title 23 of the

United States Code to test safety-sensitive employees for the use of

alcohol in violation of law or Federal regulation. Because certain

recipients of FTA funds are regulated by the Federal Railroad

Administration (FRA) or the Federal Highway Administration (FHWA), the

Act permits such recipients to be subject to the alcohol misuse

regulations of those agencies.

Compliance with FTA's rule is a condition of the receipt of Federal

transit funding. The Act authorizes FTA to withhold that funding if a

recipient is not in compliance with FTA's rule or, as appropriate, the

alcohol misuse rules of FRA or FHWA . Specifically, the Act authorizes

FTA to withhold Federal funding under section 3, 9, or 18 of the FT

Act, or section 103(e)(4) of title 23 of the U.S. Code.

The Act directs the FTA to require four kinds of alcohol testing:

pre-employment, reasonable suspicion, random, and post accident, and

permits FTA to require periodic alcohol testing. The Act further

directs FTA to require a post-accident test when there has been a loss

of human life.

The Act authorizes the testing only of employees who perform

safety-sensitive functions, but does not define what activities

constitute a safety-sensitive function, specifically authorizing the

agency to make that determination.

The Act directs FTA to require its recipients to test safety-

sensitive employees for the use of alcohol in violation of Federal law

or regulation (alcohol misuse) and in so doing to safeguard the privacy

of safety-sensitive employees to the maximum extent practicable. It

also directs that all tests which indicate the misuse of alcohol be

confirmed by a scientifically recognized method of testing capable of

providing quantitative data regarding alcohol.

If a safety-sensitive employee is found to have used alcohol in

violation of Federal law or regulation, the Act directs FTA to provide

that person with an opportunity for evaluation and treatment. Also, the

Act permits FTA, as appropriate, to permit the disqualification or

dismissal of any safety-sensitive employee who has used alcohol in

violation of Federal law or regulation.

In providing this regulatory authority, the Act authorizes the FTA

to preempt State or local laws, rules, regulations, ordinances,

standards, or orders inconsistent with this rule, except for certain

provisions of State criminal law which impose sanctions for reckless

conduct leading to actual loss of life, injury, or property damage.

C. The Anti-drug Rule

The Federal Transit Administration also is publishing its final

anti-drug program rule elsewhere in today's issue of the Federal

Register; the two rules will be implemented on the same dates.

D. Study of Alcohol Use in the Transit Industry. In 1991, FTA's Office

of Safety and Security conducted a study to determine the extent of

drug and alcohol use in the transit industry. The study's findings

analyze the results of two surveys designed to gather information on

substance abuse policies and programs as well as drug and alcohol use

patterns in the transit industry. Of the two surveys, one was completed

by transit system managers and the other by safety-sensitive transit

employees. (See ``Substance Abuse in the Transit Industry'', Rept. No.

DC-90-7021; November, 1991.)

The agency survey sought information on substance abuse program

policies and procedures, test results indicating drug or alcohol use

during calendar year 1990, disciplinary procedures, employee training,

and substance related accident data. The survey was mailed to four

hundred transit systems. Three hundred and six systems comprise the

agency data base.

The employee survey was given to 1,975 safety-sensitive employees

at nine randomly selected transit systems separated into three groups

based on annual ridership. The employee questionnaire focused solely on

personal use of drugs and alcohol; to a large extent the questions were

standardized to facilitate comparison with a National Institute on Drug

Abuse (NIDA) Household Survey.

The study was designed to guarantee respondent confidentiality for

both the agency and employee surveys. Since both surveys were

voluntary, no data were collected from any system or employee who did

not consent to participate.

The following are some key findings from the surveys about alcohol

use:

Of the 306 systems in the data base, 78 percent conduct

some type of drug testing and 58 percent conduct alcohol testing. When

asked which substance was most prevalently abused by the workforce, 75

percent of the agencies identified alcohol.

The personal use data provided in the 1988 and 1990 NIDA

household surveys provide a benchmark for comparisons of the transit

industry results with those of the general population. Those results

indicate that self-reported alcohol use by transit employees was only

slightly lower than reported use by the general population.

About six percent of the safety-sensitive employees

reported using alcohol within five hours before reporting to duty or

during duty hours.

Most of these duty-related drinkers were also high-volume

drinkers of six to ten or more drinks each occasion.

The positive alcohol rate for vehicle and equipment

maintenance personnel is 3.7 percent, twice that for vehicle operators.

Dispatchers also have a positive alcohol rate twice that of vehicle

operators.

Based on the study's findings, the statutorily mandated testing for

substance abuse is timely and well-founded. This rulemaking should aid

in the control of alcohol misuse in the transit industry.

E. Summary of the Final Rule

This rule applies to recipients of funds under section 3, 9, or 18

of the FT Act, or section 103(e)(4) of title 23 of the United States

Code. It requires each employer to establish and conduct an alcohol

misuse prevention program in which safety-sensitive employees are

tested for the misuse of alcohol and supervisors are trained to

recognize the signs and symptoms of alcohol misuse.

The rule requires the use of testing procedures found in Part 40 of

title 49 of the Code of Federal Regulations.

The rule establishes a prohibited alcohol concentration level of

0.04 but also establishes another alcohol concentration range, 0.02 or

greater but less than 0.04, with special ramifications attached to it.

The regulation specifies that employers may not allow safety-

sensitive employees to consume alcohol under certain circumstances: (1)

Four hours before performing a safety-sensitive function; (2) while

performing a safety-sensitive function; (3) after a fatal accident

unless the employee has been tested, or eight hours have elapsed,

whichever occurs first; or (4) after a nonfatal accident unless the

employee's involvement can be completely discounted as a contributing

factor to the accident, the employee has been tested, or eight hours

has elapsed. The rule requires testing in the following 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.

The rule requires breath testing for all tests with an evidential

breath testing device (EBT), which is a device listed on the National

Highway Traffic Safety Administration's (NHTSA) Conforming Product List

(CPL).

The rule requires both a screening and a confirmation test. An

employer may take action based only on the results of the confirmation

test.

As noted above, the rule establishes a prohibited alcohol

concentration level of 0.04. If a sample from an employee on a

confirmation alcohol test measures 0.04 or greater, the covered

employee must be removed from his or her safety-sensitive position, be

told about educational and treatment programs available, and be

evaluated by a substance abuse professional to determine whether the

employee has an alcohol problem. The rule does not address the issue of

who should pay for the employee's treatment, which is a local issue.

If, however, the sample tests at 0.02 or greater but less than

0.04, the covered employee must be removed from his safety-sensitive

position. The employer may, after some period of time, retest the

employee to ensure that his alcohol concentration level is less than

0.02 and then permit him to resume his safety-sensitive position. If

the employer does not retest the employee, the employer must remove him

from his safety-sensitive position for at least eight hours. If an

employer elects to remove the employee for eight hours, the employer is

not required subsequently to administer an alcohol test before the

employee resumes performing a safety-sensitive function unless the

employee exhibits signs of alcohol misuse when he returns to work.

The rule applies to any entity that receives certain Federal

funding from the FTA. Such an entity, called a recipient, must certify

to the FTA that it will carry out the requirements of this part. Not

all such recipients provide mass transit services directly, relying

instead upon other public or private entities to provide such services

in whole or in part. In these cases, the direct recipient of FTA funds

is legally responsible to the FTA for assuring that any entity

operating on its behalf is in compliance with the alcohol testing rule.

Compliance with the rule is a condition of Federal assistance.

Failure of a recipient to comply with the rule--either in its own

operations or in those of an entity operating on its behalf--will

result in the suspension of Federal transit funding to the recipient.

Because, as noted above, a recipient may not always directly carry

out mass transit services, the rule uses ``operator'' or ``employer''

to describe those who actually may be providing transit service and

therefore must comply with the alcohol testing program, but under the

rule it is always the direct recipient of FTA funds that legally is

responsible to FTA for complying with the rule.

F. Overview of the Comments

The FTA received 126 comments in response to the NPRM. FTA

considered all comments filed in a timely manner as well as all

statements and material presented at the public hearings on the rule.

The breakdown among commenter categories is as follows:

Transit operators (public and private).............................. 45

Cities and counties................................................. 8

State DOTs.......................................................... 22

Labor unions........................................................ 6

Trade associations.................................................. 7

Individual citizens................................................. 2

Nonprofit organizations/special transit providers................... 16

State governments................................................... 4

Public Utility...................................................... 1

Member of Congress.................................................. 1

Private business.................................................... 1

Others.............................................................. 6

Many commenters addressed issues common to all of the DOT final

alcohol rules published today, including what alcohol concentration

level should be prohibited; how alcohol should be defined; or what

conduct should constitute a refusal to submit to a test. All such

general issues are addressed in the common preamble published elsewhere

in today's Federal Register. Other commenters addressed issues unique

to the transit industry, such as whether volunteer drivers should be

subject to the rule, the applicability of the regulation to providers

of transportation paid with publicly subsidized vouchers or scrip

(user-side subsidies), or whether the rule applies to Indian tribal

governments or to section 16(b)(2) recipients. All of the major FTA

issues addressed by the commenters are discussed in Section III below.

III. Discussion of the Comments

A. Multi-modal Jurisdiction

Because many FTA recipients operate a variety of different mass

transit services--such as bus, rapid rail, commuter rail, or ferry boat

services--they may be regulated by the FTA and by another DOT agency or

agencies, such as the Federal Railroad Administration (FRA), the

Federal Highway Administration (FHWA), or the United States Coast Guard

(Coast Guard). In addition, the Act authorized FHWA, for the first

time, to regulate intrastate Commercial Driver's License (CDL) holders,

which include many transit employees. To limit the alcohol rules with

which such recipients would have to comply, the NPRM discussed a

proposal under which (1) FRA's alcohol misuse regulation would apply to

FTA recipients that operate railroads, including the recipient's

safety-sensitive employees; (2) FTA 's alcohol misuse program, not

FHWA's, would apply to recipients who employ or use the services of

safety-sensitive employees who hold a CDL, but the individual CDL

holder otherwise would remain subject to FHWA's implementation of the

Commercial Motor Vehicle Safety Act of 1986; and (3) both FTA's and

Coast Guard's alcohol misuse programs would apply to recipients

operating vessels, and the Coast Guard would continue to regulate the

individual safety-sensitive employee (vessel crew member) by pursuing

licensing actions or other punitive measures.

FTA received several comments concerning the multi-modal

jurisdictional issue suggesting a rather significant change to the

FTA's approach to this rulemaking. Several commenters suggested that

DOT should issue one regulation covering all entities regulated by any

DOT agency. In contrast, other commenters suggested that FTA and FHWA

should issue a joint regulation or issue two separate regulations using

identical language.

FTA Response. FTA is sympathetic to the concerns of recipients

regulated by more than one DOT agency alcohol testing rule, some of

whom proposed a single regulation. As a practical matter, however, an

agency-wide DOT alcohol rule would be difficult to implement because of

the different characteristics of the various communities each agency

regulates. Nevertheless, FTA addresses the multi-jurisdicitional issue

by clarifying the jurisdiction of FTA, FRA, FHWA, and Coast Guard over

transit entities. In this regard, we have adopted the proposal in the

NPRM discussed above.

B. Accident

The vast majority of comments concerning this definition focused on

incidents involving only property damage; specifically, how the

seriousness of these incidents should be measured, thus justifying the

administration of an alcohol test. In the NPRM we had proposed a dollar

measurement, whereby an accident was any incident resulting in at least

$1,000 in total property damage.

Most commenters addressed the dollar amount proposed in the NPRM

and stated that $1,000 was too low a threshold. Some of these

commenters proposed their own method of calculating a dollar threshold

such as a measurement based on a vehicle's gross vehicle weight--the

greater the weight the higher the property damage threshold.

Other commenters objected to the use of a dollar threshold to

measure the seriousness of incidents involving only damage to property.

These commenters urged us to adopt an objective measure of property

damage such as FHWA's definition of accident. FHWA defines an accident

involving only property damage as an incident that so disables the

vehicle that it must be towed away from the scene.

Another commenter objected to the use of dollar amounts and

requested that we adopt a reasonable cause standard.

Other commenters addressed the overall definition of accident. In

the NPRM we had limited the definition to an incident involving a

revenue service vehicle, and several commenters objected to this

limitation, proposing instead that we include any incident involving a

nonrevenue service vehicle as well.

FTA Response. FTA has changed the definition of ``accident'' in

such a way that it is broadened in some respects, and narrowed in

others. In particular, FTA has broadened the definition in the final

rule to include occurrences involving nonrevenue service vehicles

operated by a holder of a CDL. We recognize that this decision falls

short of the recommendation proposed by some commenters favoring the

inclusion of all occurrences involving nonrevenue service vehicles, but

it is based on another consideration, avoiding overlapping

jurisdictions of FTA and FHWA. Ordinarily, FHWA would regulate CDL

holders as well as their employers. This new coverage in our final rule

is consistent with the agreement between FTA and FHWA that FTA's

alcohol misuse program applies to the transit employers of CDL holders.

FTA has further modified the proposed definition of ``accident'' to

distinguish the situations of different kinds of mass transit vehicles.

Many mass transit vehicles, such as buses and vans, are passenger-

carrying motor vehicles. FTA believes that it is sensible to use a

definition of ``accident'' that is consistent with FHWA's for such

vehicles. Therefore, we are adopting a provision paralleling FHWA's

definition of ``accident'' (in 49 CFR 390.5). The definition states

that an ``accident'' occurs when a vehicle (whether a mass transit

vehicle or another vehicle, such as a private automobile) suffers

disabling damage and is towed away from the scene of the ``accident.''

This provision eliminates the subjectivity inherent in basing a

definition on estimates of property damage.

For other vehicles--light or rapid rail cars, ferry boats, trolley

cars and buses, etc.--we also believe it is best to eliminate a

property damage-based standard. Instead, the final rule provides that

if the mass transit vehicle is removed from revenue service as the

result of the occurrence, an ``accident'' is deemed to take place. FTA

believes that the operating practices of employers typically result in

at least the temporary removal from revenue service of vehicles that

have been involved in all but the most minor of mishaps.

Of course, any occurrence in which someone is killed, or injured

sufficiently to require medical treatment away from the accident scene,

is an ``accident'' for purposes of this rule, regardless of the type of

transit vehicle involved.

We have further narrowed the definition of accident by deleting the

reference to reportable accidents. In the NPRM we proposed that any

occurrence required to be reported to FRA, FHWA, or the Coast Guard

would constitute an accident, but the final rule uses only the criteria

discussed above.

C. Safety-sensitive Function

Most commenters addressed the definition of ``safety-sensitive''

function, one of the most important definitions in the rule. Because

the proposed definition had a list of functional categories, most

commenters objected either to the inclusion or exclusion of a

particular category. Some commenters, however, merely sought

clarification of the categories in the NPRM.

Including those employees who ``maintain a revenue service

vehicle'' in the definition particularly concerned several commenters.

While most commenters understood that this category included mechanics,

some thought that it covered workers who clean rather than repair

buses, rail cars, and other mass transit facilities. The remaining

commenters made specific recommendations concerning mechanics, some

arguing that we should exclude all mechanics, with others stating that

we should exclude only those working under contract for section 18

rural operators. Yet others suggested that we should include only those

mechanics working for large transit operators.

Commenters objected to only one other safety-sensitive category,

``controlling the movement of revenue service vehicles,'' the category

which includes dispatchers. These commenters contend that dispatchers

do not perform a safety-sensitive function.

Although we did not include any categories involving the

construction, design, or manufacture of revenue service vehicles or

other mass transit equipment or facilities, several commenters

suggested that we specifically exclude them from the definition.

Without this specific exclusion they believe there may be some

instances in which such workers might be considered to be performing a

safety-sensitive function.

Other commenters recommended that we add other employee categories

to the definition, including police and other security personnel, and

mechanics who repair nonrevenue service vehicles.

Finally, some commenters sought clarification of the definition:

whether it included volunteers and CDLs holders, and on the meaning of

``directly supervising an employee who is performing a safety-sensitive

function.''

FTA Response. We have made several changes to the definition of

``safety-sensitive employee.'' Before describing those changes,

however, we first explain why we proposed a definition based on

function rather than titles. Because each transit system uses its own

job classification categories, we wanted to avoid specifying particular

job titles. Instead, we concluded that four job functions were critical

to safety, and in the NPRM identified operating, maintaining, and

controlling the movement of vehicles as those functions critical to the

safety of the traveling public, and added a fourth category, first-line

supervisors of anyone operating, maintaining, or controlling the

movement of the vehicle. The final rule adopts these categories, with

some changes.

Now a discussion of the changes made. Most notably, we have created

two new categories of ``safety-sensitive functions'': The carrying of a

firearm for security purposes, and the operation of a nonrevenue

service vehicle by a CDL holder. We include firearm-bearing police and

security personnel because of the sensitivity of their position and the

danger to the public should they be under the influence of alcohol.

As discussed above, FHWA regulates CDL holders, both interstate and

intrastate, and their employers. FTA's relationship is with its

recipients, many of whom employ CDL holders. To avoid a jurisdictional

conflict, FTA and FHWA have agreed that FTA's alcohol misuse rule will

apply to transit entities that employ or use the services of CDL

holders, regardless of the kind of vehicle they operate.

We have also reduced the scope of the definition somewhat. While we

proposed in the NPRM to include first-line supervisors of safety-

sensitive employees, the final rule limits that category by covering

only supervisors whose responsibilities include the performance of a

safety-sensitive function. For instance, if a supervisor's job

description requires her to drive a vehicle, she would be covered, but

if it did not, she would not.

Further, in response to comments, we have excluded from the scope

of the rule contract mechanics for any entity receiving section 18

funds.

Regarding the recommendation specifically to exclude construction,

design, and manufacturing personnel, we believe it is unnecessary to do

so because the list of categories in the definition is exclusive. Any

functional category--such as construction or design or manufacturing--

not in the definition is not subject to the rule.

Finally, some clarification on the issue of safety-sensitive

employees. Volunteers are covered by the rule if they perform any

safety-sensitive function. Coverage under the rule should not be based

on whether an individual holds a paying position, but on whether that

individual is in a position to affect the safety of the transit-riding

public. The final rule definition of covered employee thus specifically

includes volunteers.

Another ambiguity mentioned by several commenters concerns the

maintenance category, which several commenters believed would include

workers who clean rather than repair transit equipment. We do not mean

to cover such workers and emphasize that only mechanics who repair

vehicles or who perform routine maintenance are the types of

maintenance workers covered by the rule.

D. Covered Employee/Contractor

In the NPRM the definition of covered employee included three

general categories of safety-sensitive employees--those directly

employed by an employer, those employed by a contractor, and applicants

for a safety-sensitive position. Most comments about this definition

pertained to the coverage of contractors in the NPRM which included any

person or organization providing services or performing work consistent

with a specific understanding or arrangement, which could be a written

contract or an informal arrangement reflecting an ongoing relationship

between the parties.

Many commenters objected to the inclusion of contractors within the

scope of the rule, believing that employers should not be accountable

for a contractor's compliance with the rule because employers have

little or no control over contractors or their employees.

While other commenters did not specifically object to the inclusion

of contractors, they did object to the scope of the definition of

contractor and recommended that it be defined to include only those who

perform work or provide service under a formal written agreement.

Other commenters sought to exclude contractors in rural areas

contending that many simply would refuse to do business with the

recipient rather than submit to an alcohol testing program. The

remaining commenters requested that we exclude only contract mechanics

from the definition.

FTA Response. In response to comments, we have made a number of

changes to the wording of this safety-sensitive function, although the

basic concepts in the NPRM remain unchanged.

The final rule includes direct employees, contractors and their

employees, and applicants under the definition, but reflects the

following changes. First, we specifically include volunteers in the

definition because, as noted above, we define ``safety-sensitive''

functionally and look only to the function that a person performs, not

whether they receive pay for their work.

Second, while many commenters objected to including contractors who

perform safety-sensitive functions, we have for the most part continued

to include them in light of legislative history on this issue. The

following was said during the debate on the bill:

Drug and alcohol-testing requirements must not be circumvented

through contracting out of work.

Safety-sensitive employees of recipients of the Federal transit

grant money identified in the bill, and those safety-sensitive

employees working for contractors of such recipients must be covered

exactly to the same extent and in the same fashion. I know that I

speak for all conferees when I say that we will not tolerate a

situation where employees performing substantially the same safety-

sensitive function are covered or not covered depending on whether

they work directly for a public authority or an outside contractor.

137 Cong Rec. S14766 (daily ed. Oct. 16, 1991.)(Statement of Sen.

D'Amato).

On the other hand, we are sympathetic to the persuasive arguments

of rural operators on this issue, and specifically exclude from

coverage under the rule contract mechanics who perform work or provide

services for section 18 rural recipients. We believe that the potential

cost and hardship of including such contractors outweighs any benefits

including them might bring, since so many rural operators believe that

they simply would be unable to get any outside servicing if providers

of that service were subject to this rule.

E. Pre-employment/Pre-duty Testing

Although the NPRM included the pre-employment/pre-duty tests within

one provision, in fact they apply to different types of workers-

applicants in one instance, and transferees from a nonsafety-sensitive

position to a safety-sensitive position in the other. Nevertheless,

both applicants and transferees must take an alcohol test indicating an

alcohol concentration level less than 0.04 before they can perform a

safety-sensitive function for the first time. Hence, the NPRM would

allow an employer to hire someone who has taken an alcohol test with a

result of 0.04 or greater so long as that individual is retested and

has a result less than 0.04 before he or she performs a safety-

sensitive function. Under the notice provision, the NPRM required

applicants and transferees to be notified that they must submit to an

alcohol test. Moreover, a pre-employment alcohol test could be waived

by the employer, which distinguishes the alcohol NPRM from the anti-

drug NPRM.

Commenters focused on these issues. Specifically, commenters

requested that we add a notification requirement to the pre-employment/

pre-duty testing provision of the final rule. On the other issue,

commenters stated that employers should not be able to accept the

results of an alcohol test administered under the requirements of

another DOT agency.

FTA Response. In the NPRM we did require an employer to notify an

applicant that he or she would be required to submit to an alcohol

test. We have made no changes to this requirement in the final rule.

We have, however, changed the language in the rule which ensures

that the employer is aware that it has the discretion to waive a pre-

employment alcohol test in one limited circumstance when the employee

has been tested within the previous six months under the rules of

another DOT agency. This is not a change from the NPRM, rather it is a

clarification.

We have made another change in response to commenters who were

confused by the term pre-duty testing and assumed that it meant that an

employee must be tested every time they were about to perform a safety-

sensitive function. This is not the case. We meant to apply that

provision to transferees from a nonsafety-sensitive position to a

safety-sensitive position. To clarify our intent we have deleted the

phrase ``pre-duty'' (in the context of pre-employment alcohol testing)

from the final rule.

F. Reasonable Suspicion Testing

Commenters responding to this general area raised numerous issues.

Before discussing those issues, however, we first briefly summarize the

reasonable suspicion testing provision as it appeared in the NPRM.

Reasonable suspicion testing is specifically required by the Act,

and the NPRM proposed authorizing an employer to conduct a test when it

believes the employee is exhibiting certain characteristics of alcohol

misuse. The NPRM never identifies or defines those characteristics, but

authorizes an employer to require a reasonable suspicion alcohol test

on the basis of specific, contemporaneous, articulable observations

concerning the appearance and behavior of the covered employee, which

characterize alcohol misuse.

Moreover, those observations must be made by a supervisor trained

in detecting the symptoms of alcohol misuse. The NPRM specifically

required that a supervisor receive one hour of training, which must

include information about the manifestations and behavioral

characteristics indicating alcohol misuse.

Commenters took a number of positions on this issue. Some wanted

only one supervisor to make the reasonable suspicion determination,

others wanted two. Some believed that the test could be based on the

observations of a third party, such as a transit passenger.

Commenters also took different positions on the amount of time a

supervisor should be trained, although most thought that one hour was

not enough time to adequately train a supervisor. Some commenters

suggested four hours of training, others suggested four hours of

combined alcohol and drug training, and yet another suggested five to

ten hours of training with the additional requirement of a proficiency

certification.

Many commenters suggested that the language of the reasonable

suspicion provision be broadened to include other factors in the

determination. For instance, some suggested that employers be allowed

to review an employee's attendance records for absenteeism and

tardiness. Others suggested that an employer be allowed to examine

other records indicating whether the employee had any moving traffic

violations, occupational injuries, or operating rule violations. And

others suggested that an employer be able to look at the pattern of the

employee's conduct both on and off the job.

Lastly, the commenters discussed the matter of whether there should

be written documentation of a reasonable suspicion determination. The

NPRM did not require written documentation, but stated that any

document generated as a result of a reasonable suspicion determination

must be maintained for a year. Several commenters recommended that a

written determination be required, with one suggesting that a checklist

also be required. One commenter recommended that a second supervisor

concur in the written determination before a reasonable suspicion test

could be conducted. Another commenter suggested that written

documentation be required only if the employee tested at 0.02 or

greater and subsequently was disciplined.

FTA Response. In the final rule we essentially have retained the

reasonable suspicion provision from the NPRM, with only minor changes,

because we believe it adequately balances the rights of employees

against the rights of the traveling public. For instance, we believe

that the observations must be made by a supervisor trained in detecting

the symptoms of alcohol misuse rather than by some third party. (Of

course a third party could alert a transit operator about a particular

situation, which might trigger a supervisor to pay particular attention

to the affected employee.)

We also believe that a determination made by a single supervisor

trained in detecting the signs of alcohol misuse adequately protects

the employee, and we were concerned about the cost of requiring two

supervisors to make the determination.

Although many commenters recommended that supervisors receive more

than one hour of training, we have not changed this requirement in the

final rule, being sensitive to the costliness of such training.

Individual employers of course are free to provide as much additional

training beyond the required one hour as they like. Employers also are

allowed to combine drug and alcohol training, provided the required

time frames are satisfied.

The standard used to authorize a reasonable suspicion test remains

unchanged in the final rule, which means that a supervisor may consider

only short-term indicators of alcohol misuse. We stress that long-term

indications of alcohol misuse such as absenteeism or tardiness or

moving traffic violations cannot be used as the basis for conducting a

reasonable suspicion alcohol test, which must only be based on

contemporaneous and articulable observations. Of course, a supervisor

may particularly be alert to the conduct and job performance of an

employee based on the supervisor's long-term knowledge of the employee.

We do not require a supervisor to document an employee's behavior

in writing. We do, however, provide that any documents generated by the

determination must be maintained for one year. Again, the final rule

does not require an employer to document each and every reasonable

suspicion determination, although an employer would be prudent to do

so.

G. Random Testing/Random Testing Rate

The random testing provision generated many comments, with most

commenters proposing the adoption of a particular random testing rate

or a particular method of determining a random testing rate. Other

commenters were concerned about the frequency of random testing and how

the test should be administered. Several commenters sought

clarification of certain aspects of the provision.

Several different alternatives for determining the random testing

rate were offered. Many commenters suggested a flat rate, ranging from

10 percent to 50 percent.

Others suggested a performance-based rate, that is, a rate

determined by the results of random testing. Under such a scheme, if

the number of results of 0.04 or greater exceeds a specified rate (for

example, 1 percent), then the employer would be required to test at a

higher specified random rate (for example, 50 percent). If the number

of positives is less than the specified rate, the employer would be

required to test at a reduced random rate (for example, 25 percent).

One commenter recommended that an employer could randomly test 20

percent of its employees if less than 3 percent, of its random tests

were positive, but if the number of positives exceeded 3 percent, the

employer would have to raise its testing rate.

Other variations were proposed. Several commenters suggested that

we set a minimum random testing rate of 10 percent, but give an

employer the discretion to test at a higher rate based on its own

experience. Another commenter suggested that we require a random rate

less than 50 percent and allow an employer to set its own rate for

different classes of employees. Yet another commenter recommended that

we set a rate anywhere from 10 percent to 50 percent but allow an

employer to reduce its rate if it has programs, such as training and

rehabilitation programs, in addition to those required by the final

rule.

Another commenter recommended that random testing be phased in, 15

percent the first year, 20 percent the second year, and 25 percent

thereafter, presumably to ease cost and administrative burdens. Another

commenter, however, recommended that those who had never randomly

tested employees should be required to test at a higher random rate

than those who have had a program in effect. Lastly, one commenter

believed that FTA should not set the rate at all, but the rate should

be determined by an agreement between labor and management. Aside from

the random testing rate issue, commenters also addressed how the test

itself should be conducted. In this regard, several commenters were

concerned about how truly random testing would be, and suggested that

the testing itself should be conducted by an outside agency.

FTA Response. In determining the random alcohol testing rate, FTA

has considered not only the comments on this issue but other factors as

well. We therefore have established a random alcohol testing rate of 25

percent, the rate at which all DOT agencies issuing rules today are

requiring. We recognize, however, that random alcohol testing does

subject a large number of employees to testing and is costly. We have

thus added a provision to the final rule allowing the random alcohol

testing rate to drop to 10 percent annually if, based on the MIS

reports, the violation rate for random alcohol testing in the transit

industry is less than 0.5 percent for two consecutive years. If

subsequently the violation random alcohol testing rate increases to

greater than 0.5 percent for any one calendar year, the random alcohol

testing rate would go to 25 percent, and if it increases to greater

than one percent, the random alcohol rate would be increased to 50

percent. Each year, FTA will announce the random alcohol testing rate

in the Federal Register.

Moreover, the NPRM required random testing to be completely random,

which means that it must be unannounced. It must also be unpredictable,

which is the reason we proposed that the tests be spread reasonably

throughout a 12-month period. We have retained both of these

requirements in the final rule.

We do not require the test to be conducted by an outside agency.

Although requiring a third party to conduct the random alcohol testing

may afford an employee additional protection, we believe the final rule

provides an employee with sufficient protection. Among other things,

the rule requires an employer to use a scientifically valid method to

randomly select employees from a pool in which each employee has an

equal chance of being selected.

Lastly, although some commenters were confused about when we would

require an employer to conduct random alcohol testing, we have retained

the NPRM restrictions in the final rule. In the NPRM we proposed to

restrict random testing to just before, during, or just after the

employee performs a safety-sensitive function because alcohol is a

legal substance, and an employee who is not performing or who will not

be performing a safety-sensitive function within four hours may engage

in a legal activity. Thus the alcohol rule strictly limits the period

of time when an employee is subject to random testing. This is

particularly important for supervisors who may rarely perform a safety-

sensitive function.

H. Post-accident Testing

The comments on this provision concerned three basic questions:

when should a test be performed following an accident, which employees

should be tested, and who should conduct the testing.

In determining when a post-accident test should be required, the

NPRM distinguished between fatal and nonfatal accidents. After an

accident involving a fatality, the NPRM required the employer to test

employees who were on duty and present in the vehicle at the time of

the accident as well as mechanics involved in the vehicle's most recent

maintenance. After an accident not involving a fatality had occurred,

the employer was required to test certain employees unless their

performance could be completely discounted as a contributing factor to

the accident.

Instead of this dual standard in the NPRM, one commenter suggested

that we adopt a reasonable cause standard for determining when a post-

accident test should be performed, regardless of the seriousness of the

accident.

Although other commenters did not specifically propose a reasonable

cause standard, they did object to the scope of the fatal accident

provision, in which all safety-sensitive employees on-duty and present

in the vehicle at the time of the accident, as well as mechanics, must

be tested.

Most of the comments on who should be tested stressed the

difficulty of testing mechanics, especially when vehicle maintenance is

contracted out. Some flatly stated that testing mechanics in rural

areas was not practical, while others stated that requiring the testing

of mechanics after an accident is unreasonable. While some commenters

opposed the testing of any mechanics, others suggested that we include

only certain mechanics. In this connection, one commenter suggested

that we require the testing only of those mechanics who have maintained

the affected vehicle within the two weeks before the accident occurred.

Another commenter made the same recommendation but suggested that only

those mechanics who maintained the vehicle two days before the accident

be tested.

Although most comments concerned the testing of mechanics, one

commenter also suggested that we require the testing of drivers only if

they are contributorily negligent.

Commenters also stressed the difficulty of testing employees after

an accident. They cited examples of employees leaving the scene of the

accident, or police or hospital personnel refusing to allow the

employee to be tested by the employer. These commenters contended that

the rule should address these problems.

FTA Response. FTA in its final rule has developed a dual post-

accident testing provision: after accidents involving a fatality, and

after accidents involving bodily injury or property damage. The Act

requires us to mandate an alcohol test whenever someone dies as a

result of a mass transit accident, and we thus have expressly rejected

the adoption of a probable cause standard in such cases. Simply put, if

an accident involving a fatality has occurred, an alcohol test must be

given within 8 hours to those safety-sensitive employees on-duty in the

vehicle at the time of the accident.

Other employees' conduct may contribute to an accident, however.

For example, if two trains are placed on the same track and collide,

the performance of safety-sensitive duties by a vehicle controller

could have contributed to the accident. If there are indications that

brake failure was involved in a bus accident, and the vehicle's brake

system was maintained a brief time before in the garage by an

identifiable mechanic, the performance of that mechanic could have

contributed to the accident. In situations of this kind, the rule

directs the employer to test the other employee, but only if the

employer determines, based on the best information available at the

time, that the other employee's performance could have contributed to

the accident. Implementing this provision rests substantially on the

good judgment of the employer. For example, if the performance of the

relevant work by a mechanic occurred long enough ago (e.g., more than

eight hours before a test could be administered) that a meaningful test

could not be administered, the employer would not be expected to

administer the test. If the bus was recently in the shop only for an

air conditioning repair, there would be no point in testing a mechanic

after an accident in which brake failure may have been involved.

With respect to non-fatal accidents involving road surface vehicles

(e.g., buses and vans), a covered employee on duty in the vehicle at

the time of the accident would have to be tested if the employee had

received a citation from a law enforcement officer. As in the case of

fatal accidents, the employer would test other employees if the

employer determined, based on the best information available at the

time, that such an employee's performance could have contributed to the

accident. Examples of such a test could include the situation of the

mechanics mentioned above and a situation in which a bus driver was not

cited by local law enforcement personnel but the employer, in its good

judgment, determined that the driver's performance could have

contributed to the accident.

With respect to other vehicles (e.g., rail vehicles), the employer

would have to test covered employees on duty in the vehicle at the time

of the accident, unless the employer determined, based on the best

information available at the time, that an employee's performance could

be completely discounted as a contributing factor in the accident. This

is a different standard than in the case of road surface vehicles,

because there is little likelihood of an on-the-spot law enforcement

citation to the operator of vehicles like rail cars. As in the other

post-accident testing situations, the employer could make a judgment to

test other covered employees, if the employer concluded that their

performance could have contributed to the accident.

After an accident has occurred, an employer--not police or hospital

personnel--must test affected employees for the misuse of alcohol. The

rule does not permit a waiver of the employer's obligation to test an

employee after an accident, nor does it allow an employer to use the

results of laboratory findings of an alcohol test administered by

police, for law enforcement purposes, or hospital personnel for

treatment of injury.

Under the final rule, however, an employee may be taken to a

medical treatment facility immediately after an accident without being

tested by the employer. An employee also may leave the scene of an

accident, without being tested, so long as he remains readily available

for testing, which means that the employer knows the whereabouts of the

employee until he is tested and that the employee is available to be

tested immediately after being notified by the employer and within 8

hours of the accident. Thus an employee may receive medical attention

or respond to police questions or seek assistance for injured

individuals.

I. Return to Duty/Follow-up Testing.

The comments concerning these two kinds of testing focused

primarily on the roles of the employer and the Substance Abuse

Professional (SAP). The NPRM proposed authorizing the SAP to determine

not only when an employee may return to duty after testing at 0.04 or

greater, but also how many follow-up tests an employee should take and

for what period of time.

Many commenters objected to the extent of authority given to the

SAP under the NPRM. An employer, not the SAP, should determine if and

when an employee may resume a safety-sensitive function after testing

at 0.04 or greater these commenters stated. They also contended that an

employer should control the follow-up testing requirements, such as the

length of time an employee must submit to follow-up testing and the

number of tests the employee must take annually.

Other commenters recommended that the final rule prescribe in

detail the follow-up testing requirements, with several offering

suggestions. One commenter recommended that the rule require 60 months

of follow-up testing, with 12 tests required in the first year and 6

annually thereafter. Another commenter recommended 60 months of testing

with a prescribed number of tests over the entire 60 month period;

another a 36 month follow-up period with 6 tests required annually; and

another a 24 month follow-up testing period with 3 tests required the

first year. And, lastly, one commenter stated that the rule should not

recommend a specific number of follow-up tests at all.

FTA Response. The final rule retains the authority of the SAP. In

making this decision, we strove to balance the rights and privacy of

the employee against the safety of the traveling public. Because of the

extensive credentials required to be an SAP, we believe that they are

most qualified to make the necessary decisions concerning the ability

of an employee to return to his or her safety-sensitive position. In

addition, because studies have shown that the relapse rate is highest

in the first year of recovery, we mandate a minimum of 6 alcohol tests

during that time. After that period, however, we believe that the SAP

should determine when follow-up testing should end; in any event, it

must end if 60 months have elapsed from the time of the employee's

return to duty. We note that an employer may require additional follow-

up testing under its own authority. It is important to emphasize,

moreover, that during the 60-month period the employee remains

separately subject to random testing as well.

J. Treatment

The NPRM proposed that any covered employee who tested at 0.04 or

greater must be advised by his employer of the resources available to

help him resolve problems associated with alcohol misuse and be

evaluated by an SAP. The NPRM neither authorized nor prohibited an

employer from disciplining or discharging an employee because he tested

at 0.04 or greater; it simply stated that the employee who tests in

that range must be removed from his safety-sensitive position.

Several commenters objected to our silence on this issue, and asked

us to clarify the rule by specifically authorizing the employer to take

whatever disciplinary action the employer deems necessary.

The remaining commenters addressed the issue of rehabilitation. One

commenter suggested that we mandate rehabilitation and treatment.

Another commenter recommended that the final rule require reinstatement

in addition to rehabilitation. Yet another commenter stated that the

final rule should not address the issue of rehabilitation, which should

be decided by the employer and the union. Lastly, a commenter stated

that an employer should not be required to refer an employee to an SAP

when the employer's policy is to discharge any employee who tests at

0.04 or greater.

FTA Response. FTA has retained the language in the NPRM on this

issue. We thus remain silent on whether an employer may dismiss or

disqualify an employee who has tested at 0.04 or greater, an issue best

decided at the local level.

Concerning rehabilitation, we believe that we have met the

requirements of the Act, which state that the rule must provide for

identification and opportunity for treatment of employees who are

determined to have misused alcohol. In this regard, we require that an

employee who tests at 0.04 or greater be evaluated to determine whether

he needs assistance. Such an employee may return to his safety-

sensitive position after he has properly completed a course of

treatment as determined by an SAP, and has passed a return to duty

alcohol test.

If an employee undergoes treatment, the rule does not address the

issue of who should pay for it. We believe that this issue should be

decided at the local level. Nor does the rule deal with the issue of

recidivism, when an employee has repeatedly tested at 0.04 or greater

and has repeatedly been referred to treatment. Again, we believe that

issue should be decided at the local level. This rule requires the

removal of a safety-sensitive employee from a safety position if the

employee tests at 0.04 or greater, but does not address employment or

disciplinary issues in connection with such action.

K. Training

The NPRM proposed that supervisors who make reasonable suspicion

determinations receive 60 minutes of training on the physical,

behavioral, and performance indicators of probable alcohol misuse,

which would enable the supervisor to make an informed reasonable

suspicion determination. In addition, the NPRM proposed that all

safety-sensitive employees be provided educational materials about the

effects of alcohol misuse on health, safety, and the work environment.

We received numerous comments on this issue, virtually all of them

in favor of requiring training, at least for supervisors. For

employees, most commenters were silent, although one favored requiring

60 minutes of training and another asked that we help develop a

curriculum for a general educational program.

Because almost all of the commenters were in favor of training for

supervisors, many commenters proposed certain training specifications.

Some commenters proposed a combined drug and alcohol training program;

one commenter specifically recommended four hours of combined drug and

alcohol training, while another made the same recommendation but added

a one-hour yearly refresher course.

The remaining commenters did not specifically recommend that the

drug and alcohol training be combined. Instead, one commenter suggested

that supervisors be required to receive four hours of training and that

the class size be limited to four individuals. Other commenters

recommended a full day of training, one suggesting that supervisors

should be certified after satisfactorily being trained. Lastly, several

commenters stated that we should require interactive training.

FTA Response. FTA believes that training will greatly improve the

efficacy of the alcohol misuse prevention program, and we agree with

the commenters who favor a training requirement for supervisors. We

note, however, that most of the comments addressed one of two areas,

the amount of training required and the actual content of the program

itself.

Although most commenters recommended that we increase the amount of

training for supervisors who make reasonable suspicion determinations,

we have not done so in the final rule. We believe that one hour of

training is sufficient to train supervisors who may make reasonable

suspicion determinations to recognize the signs and symptoms of alcohol

misuse; moreover, an employer may, at its own discretion, choose to

provide additional training. These requirements are one-time only; the

final rule does not require annual or recurring training, although an

employer certainly is not prohibited from providing any additional

training. Moreover, we do allow employers to combine drug and alcohol

training providing that the minimum time requirements are observed.

Nor does the final rule specify the content of the training

programs, since an employer should develop a program to meet its own

needs. We believe that it would be inappropriate for the rule to

specify the content of this kind of training program. The employer best

knows its workforce and the needs of its employees.

L. Management Information System (MIS) Reporting Requirement

The vast majority of comments on this issue concerned the State's

role in record collection. Under the NPRM, we proposed to require

States to collect and forward to FTA the annual reports prepared by

their subrecipients. Because the State merely ``passes through'' the

Federal grant funds to a subrecipient, most commenters believed that

the State should not be responsible for ensuring the accuracy of the

information collected, nor for submitting the reports to the FTA on

time. In fact, one commenter suggested that only large employers should

be required to keep and submit detailed information on test results.

Some States focused on the overlap between this NPRM and a

rulemaking required under section 28 of the FT Act, which requires

certain States to oversee the safety of certain kinds of fixed

guideways. Some commenters explained that they would not be able

effectively to oversee certain fixed guideway systems unless they were

given access to the records generated under this rule.

Finally, some commenters asked that we provide States an extra 60

days from the annual February 15th reporting date.

FTA Response. In the final rule we have retained the requirement

that a State collect and submit to FTA on behalf of its subrecipients

the data required under this rule. This requirement is consistent with

the fundamental legal relationship between FTA and the direct recipient

of Federal funding, which in some instances is a State, in which case

the State must collect and submit the annual report required under this

rule and meet the same reporting deadline as other recipients. The due

date of the annual report has been changed to March 15. A State must

collect the reports prepared by its subrecipients and their

contractors, as appropriate, and forward them to the FTA.

The final rule includes two different reporting forms, FTA Alcohol

Testing Management Information System (MIS) Data Collection Form

(Appendix B) and FTA Alcohol Testing Management Information System

(MIS) ``EZ'' Data Collection Form (Appendix C). Appendix B must be used

in reporting all alcohol test results of 0.02 or greater; Appendix C

must be used by employers who have no test results of 0.02 or greater

to report.

FTA intends to combine the drug and alcohol regulations' reporting

forms within two to three years after implementation.

We appreciate those comments directing our attention to the

potential overlap between this rule and the State Safety Oversight NPRM

published in the Federal Register on December 9, 1993 at FR 64856. We

have amended those provisions requiring access to certain facilities to

also permit access by State oversight agency officials to facilitate

their oversight role as proposed in the State Safety Oversight NPRM.

M. Implementation Date

The NPRM proposed to require compliance with this rule within one

year of publication in the Federal Register for large employers and

within two years for States and small employers. This provision

contrasted with implementation periods proposed in the drug NPRM, which

were six months for large employers and one year for States and small

employers.

Several commenters strongly favored implementing both the drug and

the alcohol rules simultaneously. Another commenter recommended that,

for budgeting reasons, FTA key the implementation period to the fiscal

year.

FTA Response. In the final rule, we have decided that large

employers must implement their alcohol testing programs on January 1,

1995, while small employers will have until January 1, 1996. This is

consistent with the implementation date of our related drug rule and

will ensure that the MIS annual report data collection effort will

coincide with the calendar year.

We provide small employers additional time to implement their rule

because they may find it necessary to form consortia. Large employers

in many instances already have experience in testing their employees

for alcohol misuse.

We further note, in response to several inquiries, that the rule

provides no authority for employers to begin its program before the

implementation dates included in this rule.

N. Combined Drug and Alcohol Rules

Many commenters urged us to combine the drug and alcohol NPRMs into

one final rule, or, in the alternative, to combine common aspects of

both rules, such as the training and reporting requirements.

FTA Response. We have decided not to combine the drug and alcohol

testing rules at this time because there are significant differences

between them. For instance, the random rate for the two rules differ,

25 percent for alcohol and 50 percent for drugs. Also, the time period

during which an employee may be subject to random testing differs in

the two rules. The alcohol rule contains an entire subpart,

Prohibitions, which specifies when an employee cannot use alcohol. In

contrast, the drug rule contains no comparable subpart because

prohibited drugs are controlled substances. On the other hand, we do

allow an employer to combine certain aspects of the rules, most notably

the training requirements. In addition, we encourage the employer to

formulate and promulgate one policy statement concerning both drugs and

alcohol.

O. Indian Tribal Governments

Several commenters have asked us to clarify the applicability of

the rule to Indian tribal governments and have suggested that we

preempt Indian tribal law. Because Indian tribal governments are not

subject to State law or regulation, these commenters are concerned

about the ability of a State section 18 recipient to require an Indian

tribal government subrecipient to comply with this regulation.

FTA Response. As a general matter, statutes apply to Indian Nations

or tribes unless (1) the law touches exclusive rights of self-goverance

in purely intramural matters; (2) the application of the law would

abrogate rights guaranteed by Indian treaties; or (3) there is proof by

legislative history or some other means that Congress intended the law

not to apply to Indians on their reservations, Donovan v. Coeur d'Alene

Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985).

In this regard, there is no legislative history indicating

congressional intent not to apply the Act to Indian tribes. We have no

information, moreover, on the issues addressed in points one and two.

In the absence of any such information, we conclude that the Act would

preempt Indian tribal law but of course would consider any arguments to

the contrary based on points one and two.

We stress that compliance with the rule is a condition of Federal

funding, which means that an Indian tribal recipient or operator would

have to comply with this rule if it wanted to receive the benefits of

Federal transit assistance. On the other hand, should a particular

Indian tribe object to drug or alcohol testing, it could simply choose

not to receive Federal funding.

P. Waivers

Several commenters have asked us to waive the application of the

rule to certain categories of employers. For instance, one commenter

recommended that employers with less than 16 employees be excluded from

complying with the rule. Another recommended that any section 18

recipient certifying that it has not had an alcohol or drug related

accident in three years should be exempted from the rule.

FTA Response. Language in a report of the Senate Committee on

Commerce, Science, and Transportation accompanying the Act addressed

the issue of FTA granting waivers of the rule in whole or in part:

The Committee is aware of concerns raised with regard to the

difficulties some believe may be faced by small transit operations

located in rural areas in complying with [FTA] drug and alcohol

testing requirements. If, after notice and opportunity for comment,

the Secretary determines that a waiver for certain operations from

such requirements would not be contrary to the public interest and

would not diminish the safe operation of rural transit conveyances,

the committee would not object to a waiver, in whole or in part, of

the application of regulations issued pursuant to this bill with

regard to recipients of funds under section 18 of the [Federal

Transit Act, as amended.]. S. Rep. No. 80, 102d Cong., 1st Sess. 36

(1991).

Notwithstanding this legislative history, the Act itself does not

specifically authorize the FTA to ``waive'' particular requirements of

the rule. Nonetheless, we believe we can implement the rule in such a

way that it minimizes burdens on small operators.

In this regard, we have adopted several provisions to ease the

rule's impact on small operators. Small operators, which includes

section 18 rural providers and smaller recipients of section 9 formula

funds--are provided additional time to comply with the rule. We have

also exempted from the rule mechanics under contract to or with

informal agreements with a section 18 employer. To reduce costs and

administrative burdens we allow and encourage section 18 providers to

join a consortium of operators to comply with the rule.

IV. Section-by-Section Analysis

Subpart A--General

A. Purpose. (Sec. 654.1)

This section explains that the purpose of the rule is to promote

safety by requiring a recipient to establish and implement an alcohol

testing program to detect the misuse of alcohol, by breath testing, and

to deter the misuse of alcohol by educating and training safety-

sensitive employees about the safety and health ramifications of

alcohol misuse.

B. Applicability. (Sec. 654.3) zI11This section describes FTA's

jurisdiction over recipients and covered employees and how it may

overlap with that of other modal agencies; whether section 16(b)(2)

recipients must comply with this rule; the effect of the rule on user-

side subsidies; and the effect of the rule on those who may no longer

receive FTA funding.

1. FTA grant programs under sections 3, 9, and 18 and the

Interstate Transfer Program. Under the section 3 discretionary grant

program, FTA funds three categories of capital projects: the

construction of new rail projects; the improvement and maintenance of

existing rail and other fixed guideway systems; and the rehabilitation

of bus systems. Under sections 9 and 18, the formula grant programs,

FTA funds both capital and operating assistance to specific categories

of recipients that receive Federal funds under a statutory formula

based on population, population density, and other factors. Generally,

urbanized areas receive section 9 funding directly, while nonurbanized

areas receive section 18 funding through the State.

FTA also provides funds under 23 U.S.C. section 103(e)(4), the

interstate transfer program. Under this program, FTA provides funding

to States and localities for capital transit projects in lieu of

nonessential interstate highway projects. Hence, recipients of these

types of FTA funding may be States, transit agencies, or other kinds of

localities, but all such recipients are public entities.

2. FTA jurisdiction. FTA is a Federal agency that makes grants of

Federal financial assistance under various statutory provisions. Under

all of these provisions, the agency's relationship is with the direct

receiver of Federal financial assistance, the recipient. Such a

recipient of Federal funds must comply with a variety of Federal

requirements, including this rule, and enters into a grant agreement

with the FTA to that end. After accepting a grant from the FTA, a

recipient is responsible for ensuring that it, or any entity that it

uses to provide mass transportation services, will comply with all

relevant Federal requirements.

While the Act requires us to issue this alcohol testing rule, it

does not change the fundamental relationship between FTA and a direct

recipient of Federal financial assistance.

That is, FTA does not directly regulate covered employees, which

means that FTA has no authority directly to deal with a covered

employee under any circumstances. Rather, the Act authorizes FTA to

require a recipient to implement an alcohol misuse prevention program,

and it is the recipient that is responsible for assuring that covered

employees comply with the rule. If a recipient fails to do so, FTA will

withhold Federal funding.

3. Multi-modal jurisdiction. As discussed below, recipients may be

regulated by another DOT modal agency such as the Federal Railroad

Administration (FRA), which regulates railroads, the Federal Highway

Administration (FHWA), which regulates holders of Commercial Driver's

Licenses (CDL) and their employers, or the United States Coast Guard,

which regulates certain vessels and mariners.

Both FRA and FHWA are authorized under the Act to establish an

alcohol testing program for their respective regulated communities,

which include some FTA recipients. Coast Guard has jurisdiction over

mariners and vessels, including the authority to take action against a

seaman based on alcohol intoxication.

Coast Guard's regulated community also includes some FTA

recipients. Therefore, to clarify the jurisdiction between FTA and

other DOT agencies, we have reached the following agreements with the

relevant agencies.

a. Federal Railroad Administration. The FRA regulates railroads. A

railroad is defined under the Federal Railroad Safety Act of 1970 as

[a]ll forms of non-highway ground transportation that run on rails or

electromagnetic guideways, including (1) commuter or other short-haul

rail passenger service in a metropolitan or suburban area, as well as

any commuter rail service which was operated by the Consolidated Rail

Corporation as of January 1, 1979, and (2) high speed ground

transportation systems that connect metropolitan areas, without regard

to whether they use new technologies not associated with traditional

railroads. Such term does not include rapid transit operations within

an urban area that are not connected to the general railroad system of

transportation.

45 U.S.C. 431(e)(1988).

If an FTA recipient solely operates a commuter railroad, those

railroad operations are subject to FRA's alcohol rule. Such a recipient

must certify to the FTA that it complies with FRA's rule as provided

for under Sec. 654.83 of this part. See Appendix A for the

certification such a recipient must execute.

If a recipient operates a railroad as well as other mass transit

services, its railroad operations are subject to FRA's rule while its

non-railroad mass transit operations are subject to the FTA rule.

b. Federal Highway Administration. The Act authorizes FHWA to

regulate intrastate motor carriers and specifically requires it to

issue an alcohol rule which applies to intrastate as well as interstate

motor carriers. Thus, to avoid subjecting recipients who are also motor

carriers to two different rules, FTA and FHWA have agreed that these

recipients are subject only to FTA's alcohol rule.

c. United States Coast Guard. If a recipient operates a ferry boat

service, it is subject to both FTA's and Coast Guard's alcohol misuse

regulations with regard to the ferry boat service. Applicable Coast

Guard regulations are located in 33 CFR part 95 and 46 CFR parts 4 and

16. FTA and Coast Guard agree, however, that a recipient in compliance

with FTA's alcohol misuse prevention rule will also probably be in

compliance with the relevant Coast Guard provisions.

It is important to note that Coast Guard's regulations require

alcohol testing in only one situation, when there has been a serious

marine incident. Serious marine incidents include large oil or

hazardous substance spills and reportable marine casualties which

result in (1) One or more deaths; (2) serious injuries; (3) damage to

property in excess of $100,000; (4) loss of an inspected vessel; or (5)

loss of a self-propelled uninspected vessel over 100 gross tons.

Under Coast Guard's regulations, a test must be conducted by using

blood or breath specimens. Use of an FTA--required EBT would satisfy

the Coast Guard requirement. Because FTA has defined accident more

broadly than Coast Guard, an FTA recipient who performs a post-accident

breath test under FTA's rule should be in compliance with Coast Guard's

rule as well.

Coast Guard also allows employer or law enforcement officer to

direct reasonable cause testing under situations specified in 33 CFR

part 95. We believe that this provision represents only a minor

difference from FTA's rule.

We note here that the Coast Guard is authorized to take certain

actions against a marine employer or a mariner. FTA's rule does not

affect Coast Guard's authority or requirements in any respect.

Consequently, a recipient that operates a ferry boat service is subject

to withholding of Federal funding if it is in non-compliance with FTA's

rule, and any appropriate action if it is in non-compliance with the

Coast Guard rule.

4. Covered employees of recipients. As noted above, FTA does not

directly regulate employees or workers who are subject to the

provisions of this rule through action of their employers. This general

proposition is not true of FHWA and the Coast Guard, which use

licensing actions or other measures to enforce their safety rules,

which would include their alcohol rules. A recipient's safety-sensitive

employees thus may be subject to licensing actions of these agencies,

even though the recipient is regulated by FTA and its employees are

covered only by FTA's alcohol regulations. For example, a CDL holder

employed by an FTA recipient remains subject to the Commercial Motor

Vehicle Safety Act of 1986, and the consequences that attach to a

violation of it. For example, a CDL holder convicted of driving under

the influence of drugs or alcohol may have his or her Commercial

Driver's License suspended or revoked. Similarly, the Coast Guard is

authorized to revoke a license, certificate, or document of a marine

employee under certain circumstances. Coast Guard's relevant provisions

specifying the rights and responsibilities of marine employees are

located in 46 CFR parts 4, 5, and 16 and 33 CFR part 95.

5. Section 16(b)(2) recipients. Some entities receive funding under

section 16(b)(2) of the FT Act, which provides capital assistance,

through a State, to organizations that provide specialized

transportation services to elderly persons and persons with

disabilities.

While some commenters suggested that we cover section 16(b)(2)

recipients under the rule, we do not do so, noting that the Act

references recipients of funds under sections 3, 9, or 18 of the FT Act

or section 103(e)(4) of title 23 of the U.S. Code, but not section 16.

Note, however, that a section 16(b)(2) recipient may be covered by the

alcohol regulation published by the FHWA elsewhere in today's Federal

Register.

6. User-side subsidies. A user-side subsidy refers to the practice

of providing passengers publicly subsidized script or vouchers, which

the passenger then uses to pay for transportation from a private

carrier such as a taxicab company. In essence, a recipient provides

transportation services indirectly through such subsidies.

The regulation applies to certain recipients of FTA funding, and to

transit operators providing service under contract or other

arrangements with those recipients. To the extent that a taxi operator

does not provide service under an arrangement with an FTA recipient,

but is chosen at random by the passenger, it would not be subject to

the rule. If, however, the taxicab company or private operator does

provide service under an arrangement with an FTA recipient, it is

covered by the rule as a contractor, as defined by the rule. In such

cases, the taxi company may wish to designate only certain drivers to

provide such service, in which case only those designated drivers would

be subject to the rule's alcohol testing program.

7. Continuing Federal interest. Not all recipients receive a

Federal grant or grants for capital or operating assistance each year

under the formula or discretionary programs. Some may receive capital

assistance only when they need to purchase equipment or construct or

repair a facility, which could occur once every few years. Indeed,

there may be a recipient that receives a capital grant just once over a

five or ten year period. It is important to emphasize in these cases

that once a recipient has received an FTA capital grant after the

effective date of this rule and has therefore agreed to comply with the

rule, it must continue to comply with the rule (and other Federal

requirements) during the useful life of the equipment or facility

funded under the grant. In short, this rule remains in effect so long

as the grant-acquired assets and related grant obligations remain in

effect, and is not contingent upon a recipient receiving Federal funds

each year.

This is not the case with operating assistance, however, which

essentially is ``used up'' each year and is not considered to have a

useful life beyond any given year. Thus in the event a recipient

receives an operating assistance grant just once (and has not

separately received a capital grant), it would only have to comply with

this rule for that one year. This is probably a hypothetical example,

however, since most recipients receive operating assistance on an

annual basis, while others receive capital funding at some point, in

which case they would have to comply with the rule over the life of the

grant-acquired asset.

D. Alcohol Testing Procedures. (Sec. 654.5)

This section mandates compliance with the alcohol testing

procedures in 49 CFR part 40, a separate rulemaking document published

elsewhere in today's issue of the Federal Register.

E. Definitions. (Sec. 654.7)

1. Accident. An accident may trigger a post-accident alcohol test,

and is defined as an incident in which a person has died or is treated

at a medical facility or when there has been property damage resulting

in the towing of a vehicle or the removal of a transit vehicle from

revenue service.

For accidents not involving a fatality, we have created two

categories of vehicles. The first is for ``road surface'' vehicles,

including buses, vans, automobiles, and electric buses. For this

category, an accident is an occurrence resulting in a vehicle--either a

mass transit vehicle or another vehicle--suffering disabling damage and

having to be towed away. This definition parallels that used by FHWA

for commercial motor vehicle accidents, and includes language drawn

from FHWA's regulations specifying what kind of damage is viewed as

disabling.

The second category includes rail cars, trolley buses and trolley

cars, and vessels. This category would also include other kinds of

transit conveyances operated by FTA recipients, such as people movers,

inclines, and monorails. An accident is deemed to occur to such a

vehicle when the occurrence results in the vehicle being removed from

revenue service. FTA views an accident happening when the vehicle is

not operating in revenue service (e.g., an accident that occurs in a

rail yard) as falling within this definition if it results in damage

that would result in a comparable vehicle being withdrawn from revenue

service or results in a delay in the vehicle being returned to revenue

service.

2. Administrator. Administrator means the Administrator of the

Federal Transit Administration or the Administrator's designee.

3. Alcohol. For a general discussion of this definition, see the

common preamble and the preamble to part 40 issued by the Office of the

Secretary, published elsewhere in today's Federal Register.

4. Alcohol concentration. For a general discussion of this

definition, see the common preamble and the preamble to part 40 issued

by the Office of the Secretary, published elsewhere in today's Federal

Register.

5. Alcohol use. For a general discussion of this definition, see

the common preamble and the preamble to part 40 issued by the Office of

the Secretary, published elsewhere in today's Federal Register.

6. Certification. This definition describes the statement that must

be executed by the recipient.

7. Confirmation test. For a general discussion of this definition,

see the preamble accompanying part 40 of this title, Procedures for

Transportation Workplace Drug and Alcohol Testing Programs, published

elsewhere in today's Federal Register.

8. Consortium. This definition describes an arrangement in which

employers place their safety-sensitive employees in a pool with the

safety-sensitive employees of other employers. Any employer subject to

any DOT agency alcohol misuse regulation may join a consortium for the

purpose of complying with the rule. It may be particularly advantageous

for smaller entities to join a consortium and thereby limit costs and

administrative burdens.

9. Contractor. This definition covers a broad range of arrangements

between an FTA recipient and those carrying out services for it and

includes not only written and oral commitments in which both parties

agree to specific terms and conditions but informal arrangements as

well. An informal arrangement essentially is any ongoing relationship

between two parties. Hence, repeatedly doing business with another

entity would come within the meaning of a contractual arrangement under

the rule.

10. Covered employee. This definition describes who is subject to

the rule. Only safety-sensitive employees that work for a recipient or

any entity performing a mass transit function on behalf of a recipient

are covered by the rule, except for contract mechanics for small

operators, which are not covered.

11. DOT. The abbreviation DOT stands for the United States

Department of Transportation.

12. DOT agency. DOT contains several operating agencies, five of

which are issuing alcohol misuse prevention rules in today's issue of

the Federal Register. Those agencies are: FHWA (49 CFR part 350), FRA

(49 CFR part 219), FAA (14 CFR part 61), and RSPA (49 CFR part 654).

13. Employer. This definition applies to entities that must

implement an alcohol misuse rule. It includes recipients and other

entities that provide mass transit service or perform a safety-

sensitive function for a recipient. It includes subrecipients,

operators, contractors, and consortia.

14. FTA. FTA is the abbreviation for the Federal Transit

Administration.

15. Large operator. A large operator is a transit provider

primarily operating in an area of 200,000 or more in population.

16. Performing (a safety-sensitive function). For a general

discussion of this definition, see the common preamble issued by the

Office of the Secretary, published elsewhere in today's Federal

Register.

17. Railroad. This definition is from the Railroad Safety Act of

1970 and is used in the rule to distinguish FTA's jurisdiction from

FRA's. Basically, FRA has jurisdiction over any form of transportation

that runs on rails and is connected to the general railroad system. FTA

thus has jurisdiction over all self-contained forms of mass

transportation that run on rails, so long as those systems receive

Federal funding from the FTA under sections 3, 9, or 18 of the FT Act

or section 103(e)(4) of title 23 of the U.S. Code.

18. Recipient. This definition, based on the Act, defines a

recipient as an entity receiving Federal financial assistance directly

from the FTA under section 3, 9, or 18 of the FT Act or section

103(e)(4) of title 23 of the U.S. Code.

19. Refuse to submit. For a general discussion of this definition,

see the common preamble as well as part 40 of this title, Procedures

for Transportation Workplace Drug and Alcohol Testing Programs,''

published elsewhere in today's Federal Register.

20. Safety-sensitive function. This definition determines which

categories of employees are subject to the rule. Because each recipient

uses its own terminology, we have decided to define safety-sensitive

based on the function performed instead of listing specific job

categories. Each employer must decide for itself whether a particular

employee performs any of the functions listed in this definition.

The definition lists five categories of safety-sensitive functions.

The list itself is exclusive, which means that either an employee

performs a safety-sensitive function listed in a category or she does

not. An employer may not add any category to the list unless it wishes

to test those additional employees separately under its own authority.

The first category is operating a revenue service vehicle, whether

or not the vehicle is in service. In short, an employee who operates a

revenue service vehicle for any purpose whatsoever is a safety-

sensitive employee and is subject to the rule.

The second category is operating a nonrevenue service vehicle when

required to be operated by a holder of a CDL. The third category is

controlling dispatch or movement of a revenue service vehicle or

equipment used in revenue service.

The fourth category is maintaining a revenue service vehicle unless

the recipient receives section 18 funding and contracts out such

services. Maintaining a revenue service vehicle includes any act which

repairs, provides upkeep to a vehicle, or any other process which keeps

the vehicle operational. It does not include cleaning either the

interior or the exterior of the vehicle or transit facility. This

category specifically excludes only the employees of a contractor or

other entity who maintains revenue service vehicles for section 18

recipients. Hence, all other employees who maintain revenue service

vehicles whether by contract or otherwise are safety-sensitive

employees.

The fifth category is carrying a firearm for security purposes. A

security guard who does not carry a firearm is excluded from this

category, and is not a safety-sensitive employee.

We note that supervisors are included in this definition so long as

the supervisor performs or the supervisor's job description includes

the performance of any of the functions listed in categories 1 through

5.

21. Screening test. For a general discussion of this definition,

see the preamble accompanying Part 40 of this title, Procedures for

Transportation Workplace Drug and Alcohol Testing Programs, published

elsewhere in today's Federal Register.

22. Small operator. A small operator is a recipient operating

primarily in an area of less than 200,000 in population.

23. Substance abuse professional. For a general discussion of this

definition see the common preamble published by the Office of the

Secretary, published elsewhere in today's Federal Register.

24. Vehicle. This definition lists types of vehicles used in mass

transportation, or which may be involved in accidents with such

vehicles. Because mass transit encompasses travel by bus, van, ferry

boat, and rail, the list is meant to be very broad, covering every type

of conveyance used to provide mass transit (including such things as

people movers and inclines). The term ``mass transit vehicle'' is used

to distinguish vehicles actually used for transit purposes from those

used by the general public.

25. Violation rate. For a general discussion of this definition,

please see the common preamble issued by the Office of the Secretary,

published elsewhere in today's Federal Register.

F. Preemption of State and Local Laws. (Sec. 654.9).

The Act provides that this rule preempts any inconsistent State or

local law, ordinance, rule, regulation, standard, or order.

Consistent with long-standing Department-wide interpretation of

this type of preemption language, the regulation specifies that

``inconsistent with'' means that the regulation:

(1) Preempts a State or local requirement if compliance with the

local requirement and the FTA regulation is not possible; or

(2) Preempts a State or local requirement if compliance with the

local requirement is an obstacle to accomplishing the provisions of the

FTA regulation.

On the other hand, neither the statute nor the regulation preempts

State criminal laws that impose sanctions for reckless conduct.

G. Other Requirements Imposed by an Employer. (Sec. 654.11)

An employer may impose other requirements in addition to those

imposed by this rule if those additional requirements do not conflict

or interfere with the requirements of this rule. For example, an

employer may require a supervisor to be trained for two hours instead

of one, or an employer may provide training for employees.

H. Requirement for Notice. (Sec. 654.13)

This section requires an employer to notify an employee that the

employee is being tested under Federal law. This section specifically

bars an employer from misrepresenting a test conducted under its own

authority as a test mandated by Federal law.

I. Starting Date for Alcohol Testing Programs. (Sec. 654.15)

This section states the implementation date for large operators,

States, and small operators.

Subpart B--Prohibitions

This subpart identifies the acts prohibited by the rule. Although

the rule text addresses the employer, we believe these sections are

best understood if they are directed to the employee.

A. Alcohol Concentration. (Sec. 654.21)

This section sets the alcohol concentration level prohibited by the

rule at 0.04. A covered employee may not perform a safety-sensitive

function when his or her alcohol concentration level is at 0.04 or

greater.

B. On-duty Use. (Sec. 654.23)

This section prohibits a covered employee from consuming alcohol

while performing a safety-sensitive function.

C. Pre-duty Use. (Sec. 654.25)

Paragraph (a) prohibits employees from consuming alcohol four hours

before performing a safety-sensitive function.

For on-call employees, the employer must prohibit a covered

employee from using alcohol within four hours of performing a safety-

sensitive function, and must establish a procedure that allows an

employee to: (1) Say he has used alcohol and (2) indicate whether he is

able to perform his safety-sensitive function. If the employee believes

he is not capable of performing his safety-sensitive function, the

employer shall excuse the employee from doing so. If, however, the

employee believes he is capable of performing a safety-sensitive

function, the employer shall test the employee and shall permit the

employee to perform a safety-sensitive function if his alcohol

concentration level measures less than 0.02. If an employee's alcohol

concentration level measures at 0.02 or greater but less than 0.04, the

employer may allow the employee to perform his safety-sensitive

function only if he is retested and his alcohol concentration level

measures less than 0.02. If an employee is not retested, he must wait

until eight hours has elapsed before resuming the performance of a

safety-sensitive function.

To encourage employees to admit that they have consumed alcohol,

they shall not be subject to the consequences specified in subpart E.

If, however, an on-call employee does not indicate that she has

consumed alcohol and exhibits signs of alcohol misuse, she may be

subject to reasonable suspicion testing. If the test indicates an

alcohol concentration level at 0.04 or greater she would be subject to

the consequences of violating this rule.

D. Use Following an Accident. (Sec. 654.27)

This section prohibits an employee from consuming alcohol after an

accident until she has been tested, eight hours have elapsed, or if an

employee's conduct is completely discounted as a contributing factor to

the accident. In the case of fatal accidents, the covered employee on

duty in the vehicle at the time of the accident must refrain from

drinking for eight hours or until she has been tested, whichever occurs

first.

E. Refusal to Submit to a Required Alcohol Test. (Sec. 654.29)

If an employee refuses to submit to a random, post-accident,

reasonable suspicion, or follow-up test, he is treated as if he tested

at 0.04 or greater and subjected to the consequences established in

subpart E.

Subpart C--Tests Required

A. Pre-employment Testing. (Sec. 654.31)

This section requires an employer to administer a pre-employment

alcohol test to applicants and employees transferring from a nonsafety-

sensitive position to a safety-sensitive position.

This section, however, does not preclude an employer from hiring an

applicant before the administration of an alcohol test. Nor does this

section preclude an employer from hiring an applicant who has taken an

alcohol test indicating an alcohol concentration level of 0.04 or

greater. It states that before an employee performs a safety-sensitive

function, an employee must take an alcohol test with a result

indicating an alcohol concentration level less than 0.04.

This section also applies to current employees transferring from a

nonsafety-sensitive position to a safety-sensitive position. Similarly

to an applicant, the transferee must take an alcohol test prior to the

first time she performs a safety-sensitive function with a result

indicating an alcohol concentration level less than 0.04.

If an applicant's or a transferee's alcohol concentration level

measures at 0.02 or greater but less than 0.04, they cannot perform a

safety-sensitive function until their alcohol concentration level

measures less than 0.02. The employer, therefore, may opt to retest

them until their alcohol concentration level measures less than 0.02 or

not to allow them to perform a safety-sensitive function for eight

hours.

Paragraph (b) of this section allows the employer to waive, under

very limited circumstances, the administration of a pre-employment

test. A test may be waived when (1) the applicant or transferee has

been tested within the previous six months under the requirements of

another DOT agency's alcohol misuse prevention rule; and (2) the

employer ensures that no prior employer has knowledge or records of an

employee's violation of an alcohol misuse rule within the previous six

months. This section requires an employer to contact prior employers

seeking this information.

If an employer does not wish to seek this information, it may

choose to administer a pre-employment test.

B. Post-accident Testing. (Sec. 654.33)

This section requires a test after an accident has occurred, and

establishes two categories of accidents, fatal and nonfatal. Nonfatal

accidents are treated differently depending on the type of transit

vehicle involved. For a more complete description of the ways in which

different kinds of accidents are treated, please refer to the

discussion of post-accident testing in the portion of the preamble that

responds to comments.

The rule requires an employer to test the appropriate covered

employees as soon as possible, but within 8 hours of the accident.

The rule also requires an employer to require an employee to remain

readily available for testing; if the employee does not do so, the

employer can treat such behavior as refusing to submit to an alcohol

test. Remaining readily available means that the employer knows the

whereabouts of the employee and must conduct the test as soon as

practicable but within 8 hours of the accident.

This section allows an employee to seek medical attention, assist

injured individuals, or obtain assistance in dealing with the accident

if necessary before being tested for misusing alcohol.

C. Random Testing. (Sec. 654.35)

The rule requires an employer to randomly test covered employees

for the misuse of alcohol. The testing must truly be random, which

means that it is random with respect to the person tested and the

predictability of the actual administration of the test.

An employer cannot use an employee's name in a random selection

pool. Rather, an employer must identify each covered employee by a

unique number, such as a social security or a payroll identification

number, which is entered into a pool from which the selection is made.

Each covered employee must have an equal chance of being tested. Once a

covered employee is selected and tested, their identification number is

reentered into the pool so that they will have an equal chance of being

tested the next time the employer conducts random testing.

An employer must test randomly throughout the calendar year.

Testing must be unannounced and occur on a reasonable basis throughout

the entire calendar year. Random tests must be conducted in an

unpredictable fashion. For example, an employer may not conduct random

tests only on a Monday or only at the beginning of a shift. Further,

once an employee is notified of his selection for a random test, he

must report (or be escorted) immediately to the collection site.

This section also describes the random alcohol testing rate which

is based on the number of test results indicating an alcohol

concentration of 0.04 or greater in the transit industry and thus may

be decreased or increased on the basis of data made available to FTA.

The rule requires employers to randomly test at a minimum annual rate

of 25 percent, which means that the number of tests to be administered

during a year must be equal to 25 percent of the number of employees in

the selection pool. Based on the data FTA receives, however, the rate

may be lowered to 10 percent if the positive random alcohol rate of the

transit industry is less than 0.5 percent per year for two consecutive

years. If the rate is lowered, it may subsequently be increased to 50

percent if the transit industry positive random alcohol rate is equal

to or greater than one percent for one year. FTA will publish a Notice

in the Federal Register annually announcing the random alcohol testing

rate. We emphasize that the rate is calculated and implemented

industry-wide, and not on the basis of any individual employer's rate.

For compliance purposes, it is important to note that in

calculating its positive random alcohol testing results an employer

must include a refusal to submit to a test as an alcohol test result of

0.02 or greater.

This section establishes definite periods of time an employee may

be randomly tested for alcohol, just before, during, and just after

performing a safety-sensitive function.

D. Reasonable Suspicion Testing. (Sec. 654.37)

This section establishes testing based on reasonable suspicion that

an employee has misused alcohol and establishes the standard the

employer must use in determining whether to conduct such a test. First,

a supervisor, trained in detecting the signs and symptoms of alcohol

misuse must observe the employee's appearance, behavior, speech, and

body odors for signs of alcohol misuse. Then the trained supervisor

determines, based on specific, contemporaneous, and articulable

observations, whether the employee must take a reasonable suspicion

alcohol test.

This standard precludes the use of long term indicators of alcohol

misuse such as absenteeism, tardiness, occupational injuries, or moving

traffic or operating rule violations as a basis for a reasonable

suspicion determination.

Although the observation and determination must be made by a

supervisor trained in the signs and symptoms of alcohol misuse, this

standard does not preclude the use of observations made by third

parties such as passengers. Should a passenger believe, however, that

an employee has misused alcohol, a trained supervisor should observe

the employee first hand and decide whether a reasonable suspicion test

is warranted.

This section limits the period of time the trained supervisor may

observe the employee for signs and symptoms of alcohol misuse to just

before, during, or just after the employee performs a safety-sensitive

function and limits the time frame for the employer to decide that a

reasonable suspicion alcohol test is necessary to these time periods as

well.

Once a reasonable suspicion determination is made, paragraph (d)

requires the employer to conduct a reasonable suspicion alcohol test.

If, for some reason a test cannot be administered after a reasonable

suspicion determination, paragraph (d) gives the employer two options.

The employer can wait for eight hours to elapse before allowing an

employee to perform a safety-sensitive function, or the employer can

administer an alcohol test sometime during the eight hours. In any

event, if a test is not conducted within two hours the employer must

record why it was not conducted. If it was not conducted within eight

hours, the employer must also record the reasons for that failure. The

employer must maintain these records and submit them to the FTA upon

request.

When an employee is not given a reasonable suspicion test, this

paragraph precludes an employer from applying the consequences

established in subpart E for a violation of the rule.

E. Return to Duty Testing. (Sec. 654.39)

This section requires an employee who has violated a prohibition of

Subpart B to take a return to duty test. The employee may not perform a

safety-sensitive function until she has taken a return to duty test

indicating that her alcohol concentration level is less than 0.02.

In addition, because of the prevalence of combined drug and alcohol

misuse, an employer may also subject an employee who previously tested

at 0.04 or greater under the FTA alcohol rule to a return to duty drug

test.

F. Follow-up Testing. (Sec. 654.41)

Upon taking a return to duty test with a result less than 0.02, an

employee is subject to follow-up testing for up to 60 months. During

the first 12 months the employee is subject to a minimum of 6 follow-up

alcohol tests, which must be unannounced and conducted reasonably

throughout the 12 months.

After those 12 months, the substance abuse professional determines

whether the employee should be subject to follow-up testing for the

remaining 48 months. Because many individuals abuse more than one

substance at a time, an employer may, based on the recommendations of

the SAP, subject an employee who previously tested at 0.04 or greater

under the FTA alcohol rule to follow-up testing for the use of

prohibited drugs. An employer may also subject an employee who

previously failed to pass a drug test under part 653 to follow-up

testing for the misuse of alcohol.

Like reasonable suspicion and random testing, follow-up testing

must be conducted just before, during, or just after the employee

performs a safety-sensitive function.

It is important to note that an employee subject to follow-up

testing remains separately subject to random testing under this rule.

G. Retesting of Covered Employees With an Alcohol Concentration of 0.02

or Greater but Less Than 0.04. (Sec. 654.43)

This section applies when an employee has taken an alcohol test

showing an alcohol concentration level of 0.02 or greater but less than

0.04. When this happens the consequences of subpart E do not apply. The

employee, however, may not perform a safety-sensitive function with

this amount of alcohol in his system. The rule provides, therefore,

that the employer may opt to retest the employee or prohibit him from

performing a safety-sensitive function for eight hours. If an employer

selects the first option and retests the employee, the employee may

perform a safety-sensitive function only if on retest his alcohol

concentration level measurers less than 0.02. If the employer elects to

do so, it may conduct several tests until the employee's alcohol

concentration level measures less than 0.02.

Subpart D--Administrative Requirements

A. Retention of Records. (Sec. 654.51)

Section 654.51 explains which records relating to the alcohol

testing program must be retained and for how long.

The rule provides for three separate record retention periods for

different types of records, five years, three years, and one year. Each

employer must maintain for five years records of covered employees'

alcohol test results of 0.02 or greater, documentation of refusals to

take an alcohol test, and covered employee referrals to the SAP.

Collection process and employee training documents must be retained for

two years, while records of test results less than 0.02 must be

retained for one year.

B. Reporting of Results in a Management Information System.

(Sec. 654.53)

The reporting requirements required in section 654.53 are part of a

Department-wide effort to standardize reporting for alcohol testing, by

establishing a Management Information System (MIS). The data collected

will be used by FTA and DOT to identify trends, to determine the random

alcohol testing rate, and to assess the success or failure of the

agency's regulatory program.

The data elements were selected to provide information on the scope

of the program, the prevalence of alcohol misuse in mass

transportation, the implementation of the program, and the deterrent

effect of the rules over time.

Recipients and subrecipients must submit to FTA their own annual

reports as well as an annual report from each of their contractors with

covered employees. Each report submitted must cover a calendar year.

The closing date for data is December 31 and the report is due at FTA

by March 15 of the following year.

C. Access to Facilities and Records. (Sec. 654.55)

Paragraph (a) of this section precludes an employer, in most

circumstances, from releasing information contained in records required

to be maintained under this rule. Examples of such records include any

document generated as a result of a reasonable suspicion determination

or a refusal to take an alcohol test. An employer, however, may release

information when required to do so by law or this rule, or if expressly

authorized.

Paragraph (b) provides that the employer must provide the employee

copies of records relating to the employee's alcohol tests or

pertaining to the employee's use of alcohol. Once the employee has

submitted his request in writing, the employer must promptly provide

the records to him. The employer may charge for reproducing the records

but only for those records specifically requested.

Paragraph (c) requires the employer to allow certain governmental

entities to have access to any facility used to comply with this rule.

The rule provides that the Secretary of Transportation or

representatives from any other DOT agency shall have access. In

addition, the rule requires an employer to allow the State agency

designated by the governor to oversee rail fixed guideway systems to

also have access to its facilities so as to properly oversee the safety

of a rail fixed guideway system as required by section 28 of the FT

Act. We note here that the State oversight of rail fixed guideway

system Notice of Proposed Rulemaking published in the Federal Register

on December 9, 1993 at 58 FR 64856 contains FTA's proposal for the

State oversight agency.

Paragraph (d) requires an employer to give certain governmental

entities copies of test results and any other information pertaining to

the employer's alcohol misuse prevention program. Those governmental

entities are the same as those specified in subsection (c).

Paragraph (e) requires an employer to disclose information about

the employer's administration of a post-accident alcohol test to the

National Transportation Safety Board (NTSB) when it investigates an

accident.

Paragraph (f) provides that the employer must give copies of

certain records to a subsequent employer if the employee makes such a

request in writing. The employer may disclose only that information

specifically authorized by the employee in her written request.

Paragraph (g) requires the employer to disclose certain information

when requested to do so by the employee or a decisionmaker in a

lawsuit, grievance, or other proceeding when such a proceeding has been

initiated by the employee and arises from the results of an alcohol

test administered under this part or from the employer's determination

that the employee has violated a provision in subpart B. This provision

does not cover any proceeding initiated by a third party. This

provision is limited to employment-type actions such as worker's

compensation or unemployment compensation which are initiated by the

employee.

Subsection (h) provides that the employer must release information

to any individual when requested to do so by the employee in writing.

The employer may release only that information specifically authorized

by the employee.

Subpart E--Consequences for Employees Engaging in Alcohol-Related

Conduct

In general, this subpart addresses the consequences to employees

for violating any provision contained in subpart B. This subpart

contains three sections, the first two of which apply to every employee

who has violated a provision in subpart B. The third section concerns

only those employees whose alcohol concentration level was tested at

0.02 or greater but less than 0.04.

A. Removal From Safety-sensitive Function. (Sec. 654.61)

This section requires employers to remove an employee from his

safety-sensitive function if the employee has violated any of the

prohibitions listed in subpart B. The regulation is silent concerning

any subsequent disciplinary actions, including termination's, to be

taken against the employee.

B. Required Evaluation and Testing. (Sec. 654.63)

Once an employee has committed a violation of subpart B, she must

not only be removed from her safety-sensitive position, she must also

be told of the resources available to her to evaluate and resolve

problems associated with alcohol misuse. She must then be evaluated by

a substance abuse professional.

C. Other Alcohol-related Conduct. (Sec. 654.65)

This section explains the consequences for those employees whose

alcohol concentration level measures at 0.02 or greater but less than

0.04. In this situation, the employer has two options: it can retest

the employee and return her to her safety-sensitive function when the

test indicates that her alcohol concentration level is less than 0.02.

Or, the employer may remove the employee from her safety-sensitive

position for at least eight hours.

An employer may not apply the consequences of Subpart E to an

employee whose alcohol level measures at 0.02 or greater but less than

0.04.

Subpart F--Alcohol Misuse Information, Training, and Referral

A. Employer Obligation to Promulgate a Policy on the Misuse of Alcohol.

(Sec. 654.71)

The rule requires an employer to make available to every safety-

sensitive employee a policy statement describing the employer's alcohol

testing program. The policy must include the following information:

1. Specific categories of employees subject to testing.

2. Where to go for more information about the program.

3. When and why an employee will be tested.

4. The consequences of failing an alcohol test.

5. Program elements in addition to those required by the FTA

regulation.

The FTA expects each employer to describe the consequences of a

covered employee's taking an alcohol test indicating an alcohol

concentration at 0.04 or greater, which must include removal of the

employee from his safety-sensitive position and evaluation and possible

referral for treatment. In addition, at the employer's discretion the

policy statement could describe funding arrangements for treatment. The

policy must indicate whether an employer would suspend or terminate a

covered employee who has taken a test with a result at 0.04 or greater,

and the circumstances under which such actions will be taken.

The rule does not mandate rehabilitation for a covered employee,

but only requires that an employee be evaluated by an SAP to determine

whether the employee has a problem with alcohol misuse. If treatment

for a covered employee is deemed necessary, the rule does not require

the employer to pay for it. Any decision to provide treatment, and who

should pay for it, is made at the local level.

This position on treatment is consistent with congressional debate

on the topic. Both Senators Danforth and Hollings clarified this point

by stating:

DOT must issue regulations . . . providing for the opportunity

for treatment of employees in need of assistance in resolving

problems with alcohol or drug use. My understanding is that this

does not mandate that rehabilitation be provided but does encourage

companies to make such programs available. The legislation does not

discuss who pays for treatment, wages during this period, or rights

of reinstatement. 137 Cong. Rec. S14770 (daily ed. Oct. 16, 1991)

(Statement of Sen. Danforth)

The Senator's understanding is correct. Such arrangement could

be left to negotiation between the employer and employee, either

through individual arrangement or collective bargaining, as

appropriate. . . 137 Cong. Rec. S14770 (daily ed. Oct. 16, 1991)

(Statement of Sen. Hollings).

B. Training for Supervisors. (Sec. 654.73)

This section provides that supervisors who may make reasonable

suspicion determinations must be trained about the physical,

behavioral, speech, and performance indicators of probable alcohol use.

Such a supervisor must receive at least 60 minutes of training, which

may be added to the 60 minutes of training required under the FTA drug

rule, published elsewhere in today's issue of the Federal Register.

C. Referral, Evaluation, and Treatment. (Sec. 654.75)

This section concerns only those employees who have violated a

provision in Subpart B. This section requires the employer to advise

such an employee of the resources available to her in resolving

problems associated with alcohol misuse. The information provided by

the employer should include the names, addresses, and telephone numbers

of substance abuse professionals and counseling and treatment programs.

Such an employee must be evaluated by a substance abuse

professional to determine whether the employee needs help in resolving

problems associated with alcohol misuse. The substance abuse

professional then determines what kind of help the employee needs. Any

employee who has violated subpart B must take a return to duty test

before she may be allowed to perform a safety-sensitive function with a

result showing that her alcohol concentration level measures less than

0.02.

If, however, the SAP determines that the employee needs help in

resolving problems with alcohol misuse, the employee must follow the

course of treatment prescribed by the SAP. To return to duty, the

employee must be evaluated by a substance abuse professional again to

determine whether the employee has properly followed the treatment

course originally prescribed and is able to return to work.

Then, such an employee must not only take a return to duty test but

she must also submit to follow-up testing, which occurs unpredictably

and unannounced for up to sixty months following her return to duty.

Based on the recommendations of the SAP, the employee may be subject to

both drug and alcohol follow-up testing. The employee must take at

least six follow-up alcohol tests (all indicating an alcohol level less

than 0.02) during the first 12 months following her return to duty.

After that period of time, the SAP determines whether the employee

should continue to be subject to follow-up testing for the additional

48 months and if so shall determine how many tests the employee should

take and how often they should be administered.

Such an employee remains separately subject to random alcohol

testing.

Paragraph (d) discusses several employment options concerning the

substance abuse professional. Who pays for the services of the

substance abuse professional, however, is determined at the local

level.

Paragraph (e) prohibits, in some circumstances, a substance abuse

professional from treating an employee after evaluation and

determination that the employee needs help. This section, however,

allows an evaluating SAP also to treat an employee when: (1) the SAP is

an employee of or under contract to an employer; (2) the SAP is the

only source of appropriate therapeutic treatment provided under the

employee's health plan or reasonably accessible to the employee; (3) or

the SAP works for a public agency such as a State, county, or

municipality.

Paragraph (f) provides that an employer is not required to provide

applicants with an opportunity for referral, evaluation, and treatment.

Subpart G--Compliance

This subpart establishes the certification requirements for

recipients of FTA funding under sections 3, 9, or 18 of the FT Act or

section 103(e)(4) of title 23 of the U.S. Code.

A. Compliance a Condition of FTA Financial Assistance. (Sec. 654.81)

This section mandates the withholding of Federal funds from a

recipient of FTA funding under sections 3, 9, or 18 of the FT Act, or

section 103(e)(4) of title 23 of the U.S. Code, if it is not in

compliance with the rule. To be in compliance with the rule, the

recipient either must implement the requirements of the rule or require

their implementation by subrecipients, operators, contractors,

employers, or any other entity performing a mass transit function on

behalf of the recipient.

It is important to note that any misrepresentation or false

statement to FTA is a criminal violation under section 1001 of title 18

of the United States Code.

B. Requirement to Certify Compliance. (Sec. 654.83)

This section requires a recipient to certify that the requirements

of the rule have been met. We emphasize that the direct recipient of

FTA funds makes this certification to FTA.

The certifications are required annually, with large operators

submitting their certifications before January 1, 1995, and small

operators and States submitting their certifications before January 1,

1996. States will certify on behalf of subrecipients and their

contractors.

The certification itself must comply with the sample certification

provided in Appendix A to this part, be authorized by the recipient's

governing board or other authorizing official, and be signed by a party

specifically authorized to do so.

V. Americans With Disabilities Act of 1990

Title I of the Americans With Disabilities Act of 1990 (ADA)

focuses on responsibilities of employers for employees. A basic premise

of title I is that a person with a disability must be provided a

reasonable accommodation to work. It is possible that some covered

workers will be considered persons with disabilities for purposes of

protections under the ADA. For a more complete discussion of this issue

please see the DOT-wide preamble preceding this FTA document in today's

Federal Register.

VI. Economic Analysis

The FTA has evaluated the industry-wide costs and benefits of the

rule, Prevention of Alcohol Misuse in Transit Operations. This rule

will require personnel who perform safety-sensitive functions to be

covered by a formal program to control alcohol misuse in mass transit

operations. This rule will cover FTA recipients and combine education

and testing in a comprehensive alcohol misuse prevention program. Five

types of alcohol tests will be administered:

Pre-Employment

Reasonable Suspicion

Post-Accident

Random

Return to Duty/Follow-up

Transit agencies will be required to report the number of tests

given, the number of test results at 0.02 or greater and other

attributes of their program to the FTA and to certify compliance with

this regulation annually.

Annual costs of the alcohol testing program range from $10 to $13

million per year. Total costs over 10 years are $115 million.

Annual benefits range from $6 to $55 million per year. Total

benefits over 10 years are $482 million.

A major premise in calculating both costs and benefits is the

assumption that all transit systems will start from scratch or ``ground

zero'' when implementing alcohol testing programs as a result of this

regulation.

Estimates in this analysis are based on (1) the 1989 and 1991

National Urban Mass Transportation Statistics Section 15 Annual

Reports, (2) the 1991 report, Substance Abuse in the Transit Industry,

prepared for the FTA by Booz, Allen & Hamilton, Inc., (3) data provided

by the Substance Abuse and Mental Health Service Administration, and

(4) information from other agencies, individuals, and organizations

knowledgeable about alcohol misuse in the United States.

VII. Regulatory Process Matters

A. Executive Order 12688

The FTA has evaluated the industry costs and benefits of the drug

testing rule, and has determined that this rulemaking is a significant

rule under Executive Order 12688 because the required alcohol misuse

prevention program raises novel policy issues and will materially

affect public safety as well as State and local governments. This rule

will not, however, have an annual impact on the economy of $100 million

or more.

B. Departmental Significance

This rule is a ``significant regulation'' as defined by the

Department's Regulatory Policies and Procedures, because it involves an

important departmental policy and will probably generate a great deal

of public interest. The purpose of this rule is to make mass transit

systems safer by ensuring that safety-sensitive employees do not misuse

alcohol.

C. Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et

seq., the FTA has evaluated the effects of this rule on small entities.

Based on the evaluation, the FTA hereby certifies that this action will

have a significant economic impact on a substantial number of small

entities. The rule has some provisions designed to mitigate burdens on

small entities which are discussed in the regulatory evaluation.

This rule applies to public recipients of Federal Transit funds,

274 of which are large and 1,341 of which are small. It is estimated

that it will cost the small transit systems $40 million to implement

this alcohol rule, with total benefits to them of $147 million over the

10-year analysis.

D. Paperwork Reduction Act

This rule includes information collection requirements subject to

the Paperwork Reduction Act. A request for Paperwork Reduction Act

approval has been submitted to the Office of Management and Budget in

conjunction with this rule. Information collection requirements are not

effective until Paperwork Reduction Act clearance has been received.

E. Executive Order 12612

We have reviewed this rule under the requirements of Executive

Order 12612 on Federalism. Although the Federal Transit Administration

has determined that this rule has significant Federalism implications

to warrant a Federalism assessment, this rulemaking is mandated by the

Omnibus Transportation Employee Testing Act of 1991 (the Act). In

considering the Federalism implications of the rule, FTA has focused on

several key provisions of Executive Order 12612.

Necessity for action. This rule is mandated by law, which requires

comprehensive drug and alcohol testing programs of recipients of

Federal transit funding. Congress responded to specific accidents by

mandating these rules to ensure the safety of the transit-riding

public.

Consultation with State and local governments. FTA provides

financial assistance to mass transportation systems throughout the

country by means of grants to States and public bodies. Because this

rule will affect those States and local entities, we published a Notice

of Proposed Rulemaking (NPRM) in the Federal Register to solicit the

views of the affected entities, including States and local governments,

and held three public hearings in conjunction with the NPRM. In short,

we actively sought the views and comments of the affected States and

localities.

Need for Federal action. This rule responds to a Congressional

mandate that the safety of the transit riding public requires

comprehensive anti-drug and alcohol testing programs.

Authority. The statutory authority for this final rule is the Act

mentioned above and discussed elsewhere in the preamble.

Preemption. This rule preempts any State or local law, order, or

regulation to the contrary, and also is discussed elsewhere in the

preamble. Because compliance with the rule is a condition of Federal

financial assistance, State and local governments have the option of

not seeking the Federal funds if they do not choose to comply with this

rule.

F. National Environmental Policy Act

The agency has determined that this regulation has no environmental

implications. Its purpose is to regulate the behavior of those safety-

sensitive employees who work in the transit industry and will have no

appreciable effect on the quality of the environment.

G. Energy Impact Implications

This regulation does not affect the use of energy because it

regulates the behavior of those safety-sensitive employees who work in

the transit industry.

List of Subjects in 49 CFR Part 654

Alcohol testing, Grant programs--transportation, Mass transit,

Reporting and recordkeeping requirements, Safety, Transportation.

Accordingly, for the reasons cited above, the agency amends title

49 by adding a new part 654, to read as set forth below:

PART 654--Prevention of Alcohol Misuse in Transit Operations

Sec.

Subpart A--General

654.1 Purpose.

654.3 Applicability.

654.5 Alcohol testing procedures.

654.7 Definitions.

654.9 Preemption of State and local laws.

654.11 Other requirements imposed by employers.

654.13 Requirement for notice.

654.15 Starting date for alcohol testing programs.

Subpart B--Prohibitions

654.21 Alcohol concentration.

654.23 On-duty use.

654.25 Pre-duty use.

654.27 Use following an accident.

654.29 Refusal to submit to a required alcohol test.

Subpart C--Tests Required

654.31 Pre-employment testing.

654.33 Post-accident testing.

654.35 Random testing.

654.37 Reasonable suspicion testing.

654.39 Return to duty testing.

654.41 Follow-up testing.

654.43 Retesting of covered employees with an alcohol concentration

of 0.02 or greater but less than 0.04.

Subpart D--Administrative Requirements

654.51 Retention of records.

654.53 Reporting of results in a management information system.

654.55 Access to facilities and records.

Subpart E--Consequences For Employees Engaging In Alcohol-related

Conduct

654.61 Removal from safety-sensitive function.

654.63 Required evaluation and testing.

654.65 Other alcohol-related conduct.

Subpart F--Alcohol Misuse Information, Training, and Referral

654.71 Employer obligation to promulgate a policy on the misuse of

alcohol.

65473 Training for supervisors.

654.75 Referral, evaluation, and treatment.

Subpart G--Compliance

654.81 Compliance a condition of FTA financial assistance.

654.83 Requirement to certify compliance.

Appendix A to Part 654--Sample Certifications of Compliance

Appendix B to Part 654--FTA Alcohol Testing Management Information

System (MIS) Data Collection Form.

Appendix C to Part 654--FTA Alcohol Testing Management Information

System (MIS) ``EZ'' Data Collection Form.

Authority: Sec. 6, Pub. L. 102-143; 49 CFR 1.51.

Subpart A--General

654.1 Purpose.

The purpose of this part is to establish programs designed to help

prevent accidents and injuries resulting from the misuse of alcohol by

employees who perform safety-sensitive functions for employers

receiving assistance from the Federal Transit Administration (FTA).

654.3 Applicability.

(a) Except as specifically excluded in paragraph (b) of this

section, this part applies to a recipient under--

(1) Section 3, 9, or 18 of the Federal Transit Act, as amended (FT

Act); or

(2) Section 103(e)(4) of title 23 of the United States Code.

(b) A recipient operating a railroad regulated by the Federal

Railroad Administration (FRA) shall follow 49 CFR part 219 and

Sec. 654.83 of this part for its railroad operations, and this part for

its non-railroad operations, if any.

(Note: For recipients who operate marine vessels, see also United

States Coast Guard regulations at 33 CFR part 95 and 46 CFR parts 4, 5,

and 6.)

Sec. 654.5 Alcohol testing procedures.

Each employer shall ensure that all alcohol testing conducted under

this part complies with the procedures set forth in part 40 of this

title. The provisions of part 40 that address alcohol testing are made

applicable to employers by this part.

Sec. 654.7 Definitions.

As used in this part--

Accident means an occurrence associated with the operation of a

vehicle, if as a result--

(1) An individual dies;

(2) An individual suffers a bodily injury and immediately receives

medical treatment away from the scene of the accident;

(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 incurs disabling damage as the result of the occurrence and is

transported away from the scene by a tow truck or other vehicle. For

purposes of this definition, ``disabling damage'' means damage which

precludes departure of any vehicle from the scene of the occurrence in

its usual manner in daylight after simple repairs. Disabling damage

includes damage to vehicles that could have been operated but would

have been further damaged if so operated, but does not include damage

which can be remedied temporarily at the scene of the occurrence

without special tools or parts, tire disablement without other damage

even if no spare tire is available, or damage to headlights,

taillights, turn signals, horn, or windshield wipers that makes them

inoperative; 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 revenue service.

Administrator means the Administrator of the Federal Transit

Administration or the Administrator's designee.

Alcohol means the intoxicating agent in beverage alcohol, ethyl

alcohol or other low molecular weight alcohols including methyl or

isopropyl alcohol.

Alcohol concentration means the alcohol in a volume of breath

expressed in terms of grams of alcohol per 210 liters of breath as

indicated by an evidential breath test under this part.

Alcohol use means the consumption of any beverage, mixture, or

preparation, including any medication, containing alcohol.

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. 654.87 for requirements on certification.)

Confirmation test means a second test, following a screening test

with a result of 0.02 or greater, that provides quantitative data of

alcohol concentration.

Consortium means an entity, including a group or association of

employers, operators, recipients, subrecipients, or contractors, which

provides alcohol testing as required by this part, or other DOT alcohol

testing rule, and which acts on behalf of the employer.

Contractor means a person or organization that provides a 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 a volunteer, applicant,

or transferee, who performs a safety-sensitive function for an entity

subject to this part.

DOT 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 alcohol testing (14 CFR part 61, 63, 65, 121, and 135; 49 CFR

parts 199, 219, 382, and 654) in accordance with part 40 of this title.

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 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.

Railroad means all forms of non-highway ground transportation that

run on rails or electromagnetic guideways, including (1) commuter or

other short-haul rail passenger service in a metropolitan or suburban

area, as well as any commuter rail service which was operated by the

Consolidated Rail Corporation as of January 1, 1979, and (2) high speed

ground transportation systems that connect metropolitan areas, without

regard to whether they use new technologies not associated with

traditional railroads. 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 section 3, 9, or 18, of the FT Act, or under section 103(e)(4) of

title 23 of the United States Code.

Refuse to submit (to an alcohol test) means that a covered employee

fails to provide adequate breath for testing without a valid medical

explanation after he or she has received notice of the requirement to

be tested in accordance with the provisions of this part, or engages in

conduct that clearly obstructs the testing process.

Safety-sensitive function means any of the following duties:

(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 a revenue service vehicle or equipment used in

revenue service, unless the recipient receives section 18 funding and

contracts out such services; or

(5) Carrying a firearm for security purposes.

Screening test means an analytical procedure to determine whether a

covered employee may have a prohibited concentration of alcohol in his

or her system.

Small operator means a recipient or subrecipient primarily

operating in an area of less than 200,000 in population.

Substance abuse professional (SAP) means a licensed physician

(Medical Doctor or Doctor of Osteopathy), or a licensed or certified

psychologist, social worker, employee assistance professional, or

addiction counselor (certified by the National Association of

Alcoholism and Drug Abuse Counselors Certification Commission), with

knowledge of and clinical experience in the diagnosis and treatment of

drug and alcohol-related disorders.

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.

Violation rate means the number of covered employees (as reported

under Sec. 654.53 of this part) found during random tests given 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 industry given

random alcohol tests under this part plus the total reported number of

employees in the industry who refuse a random test required by this

part.

Sec. 654.9 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 law that impose sanctions for reckless conduct 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. 654.11 Other requirements imposed by employers.

Except as expressly provided in this part, nothing in this part

shall be construed to affect the authority of employers, or the rights

of employees, with respect to the use or possession of alcohol,

including authority and rights with respect to alcohol testing and

rehabilitation.

Sec. 654.13 Requirement for notice.

Before performing an alcohol test under this part, each employer

shall notify a covered employee that the alcohol test is required by

this part. No employer shall falsely represent that a test is

administered under this part.

Sec. 654.15 Starting date for alcohol testing programs.

(a) Large employers. Each recipient operating in an area of 200,000

or more in population on March 17, 1994 shall implement the

requirements of this part beginning on January 1, 1995.

(b) Small employers. Each recipient operating in an area of 200,000

or less in population on March 17, 1994 shall implement the

requirements of this part beginning on January 1, 1996.

(c) An employer shall have an alcohol misuse program that conforms

to this part by January 1, 1996, or by the date the employer begins

operations, whichever is later.

Subpart B--Prohibitions

Sec. 654. 21 Alcohol concentration.

Each employer shall prohibit a covered employee from reporting for

duty or remaining on duty requiring the performance of safety-sensitive

functions while having an alcohol concentration of 0.04 or greater. No

employer having actual knowledge that a covered employee has an alcohol

concentration of 0.04 or greater shall permit the employee to perform

or continue to perform safety-sensitive functions.

Sec. 654.23 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. 654.25 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. 654.27 Use following an accident.

Each employer shall prohibit any covered employee required to take

a post-accident alcohol test under Sec. 654.33 from alcohol use for

eight hours following the accident or until he or she undergoes a post-

accident alcohol test, whichever occurs first.

Sec. 654.29 Refusal to submit to a required alcohol test.

Each employer shall require a covered employee to submit to a post-

accident alcohol test required under Sec. 654.33, a random alcohol test

required under Sec. 654.35, a reasonable suspicion alcohol test

required under Sec. 654.37, or a follow-up alcohol test required under

Sec. 654.41. No employer shall permit an employee who refuses to submit

to such a test to perform or continue to perform safety-sensitive

functions.

Subpart C--Tests Required

Sec. 654.31 Pre-employment testing.

(a) Prior to the first time a covered employee performs safety-

sensitive functions for an employer, the employer shall ensure that the

employee undergoes testing for alcohol. No employer shall allow a

covered employee to perform safety-sensitive functions, unless the

employee has been administered an alcohol test with a result indicating

an alcohol concentration less than 0.04. If a pre-employment test

result under this section indicates an alcohol concentration of 0.02 or

greater but less than 0.04, the provisions of Sec. 654.65 shall apply.

(b) An employer may elect not to administer an alcohol test

required by paragraph (a) of this section, if:

(1) The employee has undergone an alcohol test required by this

Part or the alcohol misuse rule of another DOT agency under part 40 of

this title within the previous six months, with a result indicating an

alcohol concentration less than 0.04; and

(2) The employer ensures that no prior employer of the covered

employee of whom the employer has knowledge has records of a violation

of this subpart or the alcohol misuse rule of another DOT agency within

the previous six months.

Sec. 654.33 Post-accident testing.

(a)(1) Fatal accidents. As soon as practicable following an

accident involving the loss of human life, an employer shall test each

surviving covered employee on duty in the mass transit vehicle at the

time of the accident. The employer shall also 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 the mass

transit vehicle involved is a bus, electric bus, van, or automobile,

the employer shall test each covered employee on duty in the mass

transit vehicle at the time of the accident if that employee has

received a citation under State or local law for a moving traffic

violation arising from the accident. The employer shall also 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) As soon as practicable following an accident not involving the

loss of human life, in which the mass transit vehicle involved is a

rail car, trolley car, trolley bus, or vessel, the employer shall test

each covered employee on duty in 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 test under

this paragraph 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.

The employer shall also 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.

(b) If a 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 test was not promptly

administered. If a test required by this paragraph 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 the FTA upon request of the

Administrator.

(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 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.

Nothing in this section shall be construed to require the delay of

necessary medical attention for injured people 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.

Sec. 654.35 Random testing.

(a) Except as provided in paragraphs (b) through (d) of this

section, the minimum annual percentage rate for random alcohol testing

shall be 25 percent of covered employees.

(b) The Administrator's decision to increase or decrease the

minimum annual percentage rate for random alcohol testing is based on

the reported violation rate for the entire industry. All information

used for this determination is drawn from the alcohol MIS reports

required by Sec. 654.53. In order to ensure reliability of the data,

the Administrator considers 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 violation rate. Each year, the Administrator will publish in

the Federal Register the minimum annual percentage rate for random

alcohol testing of covered employees. The new minimum annual percentage

rate for random alcohol testing will be applicable starting January 1

of the calendar year following publication.

(c)(1) 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. 654.53

for two consecutive calendar years indicate that the violation rate is

less than 0.5 percent.

(2) 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. 654.53 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.

(d)(1) When the minimum annual percentage rate for random alcohol

testing is 10 percent, and the data received under the reporting

requirements of Sec. 654.53 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.

(2) 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. 654.53 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 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 rate for random

alcohol testing determined by the Administrator. If the employer

conducts random 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 alcohol testing at the same

minimum annual percentage rate under this part or any DOT alcohol

testing rule.

(g) Each employer shall ensure that random alcohol tests conducted

under this part are unannounced and that the dates for administering

random tests are spread reasonably throughout the calendar year.

(h) Each employer shall require that each covered employee who is

notified of selection for 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 as soon as

possible.

(i) A covered employee shall only be randomly tested 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.

Sec. 654.37 Reasonable suspicion testing.

(a) An employer shall require a covered employee to submit to an

alcohol test when the employer has reasonable suspicion to believe that

the employee has violated the prohibitions in this part.

(b) The employer's determination that reasonable suspicion exists

to require the covered employee to undergo an alcohol test shall be

based on specific, contemporaneous, articulable observations concerning

the appearance, behavior, speech or body odors of the employee. The

required observations shall be made by a supervisor who is trained in

detecting the symptoms of alcohol misuse. The supervisor who makes the

determination that reasonable suspicion exists shall not conduct the

breath alcohol test on that employee.

(c) Alcohol testing is authorized by this section only if the

observations required by paragraph (b) of this section are made during,

just preceding, or just after the period of the work day that the

covered employee is required to be in compliance with this part. An

employer may direct a covered employee to undergo reasonable suspicion

testing for alcohol only 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.

(d)(1) If a test required by this section is not administered

within two hours following the determination under paragraph (b) of

this section, the employer shall prepare and maintain on file a record

stating the reasons the test was not promptly administered. If a test

required by this section is not administered within eight hours

following the determination under paragraph (b) of this section, the

employer shall cease attempts to administer an alcohol test and shall

state in the record the reasons for not administering the test.

(2) Notwithstanding the absence of a reasonable suspicion alcohol

test under this section, an employer shall not permit a covered

employee to report for duty or remain on duty requiring the performance

of safety-sensitive functions while the employee is under the influence

of or impaired by alcohol, as shown by the behavioral, speech, or

performance indicators of alcohol misuse, nor shall an employer permit

the covered employee to perform or continue to perform safety-sensitive

functions, until:

(i) An alcohol test is administered and the employee's alcohol

concentration measures less than 0.02 percent; or

(ii) The start of the employee's next regularly scheduled duty

period, but not less than 8 hours following the determination under

paragraph (b) of this section that there is reasonable suspicion to

believe that the employee has violated the prohibitions in this part.

(3) Except as provided in paragraph (d)(2), no employer shall take

any action under this part against a covered employee based solely on

the employee's behavior and appearance in the absence of an alcohol

test. This does not prohibit an employer with the authority independent

of this part from taking any action otherwise consistent with law.

Sec. 654.39 Return to duty testing.

Each employer shall ensure that before a covered employee returns

to duty requiring the performance of a safety-sensitive function after

engaging in conduct prohibited by subpart B of this part, the employee

shall undergo a return to duty alcohol test with a result indicating an

alcohol concentration of less than 0.02. (See Sec. 654.75)

Sec. 654.41 Follow-up testing.

(a) Follow-up testing shall be conducted when 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.

(b) Following a determination under Sec. 654.75(b) that a covered

employee is in need of assistance in resolving problems associated with

alcohol misuse, each employer shall ensure that the employee is subject

to unannounced follow-up testing as directed by a substance abuse

professional in accordance with the provisions of

Sec. 654.75(c)(2)(ii).

Sec. 654.43 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. 654.65, 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.

Subpart D--Administrative Requirements

Sec. 654.51 Retention of records.

(a) General requirement. Each employer shall maintain records of

its alcohol misuse prevention program as provided in this section. The

records shall be maintained in a secure location with controlled

access.

(b) Period of retention. Each employer shall maintain the records

in accordance with the following schedule:

(1) Five years. Records of employee alcohol test results with

results indicating an alcohol concentration of 0.02 or greater,

documentation of refusals to take required alcohol tests, calibration

documentation, and employee evaluation and referrals shall be

maintained for a minimum of five years. Each employer shall maintain a

copy of its annual MIS report(s) for a minimum of five years.

(2) Two years. Records related to the collection process (except

calibration of EBT's) and training shall be maintained for a minimum of

two years.

(3) One year. Records of all test results less than 0.02 shall be

maintained for a minimum of one year.

(c) Types of records. The following specific records shall

This text is long and has been trimmed here. Open the source document for the complete record.