# Prevention of Alcohol Misuse in Transit Operations

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-2039

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** February 15, 1994

## Text

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 ref

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-2039. Public record. Not legal advice.