Prevention of Prohibited Drug Use in Transit Operations
Federal RegisterFeb 15, 1994
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 653
[Docket No. 92-H]
RIN 2132-AA37
Prevention of Prohibited Drug Use in Transit Operations
AGENCY: Federal Transit Administration, DOT.
ACTION: Final rule.
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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 anti-drug
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. Discussion
A. Background
B. The 1988 Drug Rule
C. The Omnibus Transportation Employee Testing Act of 1991
D. Summary of the Final Rule
E. Overview of the Comments
II.-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. The split sample procedure
K. Treatment
L. Training
M. Management Information System (MIS) reporting requirement
N. Implementation date
O. Combined drug and alcohol rules
P. Indian Tribal Governments
Q. Waivers
III. Section-by-Section Analysis
IV.-Americans With Disabilities Act of 1991
V. Economic Analysis
VI. Regulatory Process Matters
I. 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 59660, entitled ``Prevention of Prohibited Drug Use
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 anti-drug program. FTA provided
a 120-day comment period and received over 80 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 1988 Drug Rule
On November 22, 1988, the FTA issued a final rule requiring certain
recipients of Federal financial assistance under the Urban Mass
Transportation Act of 1964, as amended, to develop and implement drug
testing programs. That regulation, codified at 49 CFR part 653, was the
first time the FTA had required such a program. By December 21, 1989,
approximately 200 large transit systems certified compliance with the
regulation and began testing the urine of safety-sensitive employees
for five types of illegal drugs.
Shortly after its final rule was published in 1988, the FTA was
sued by three unions representing most American transit workers. In
these three suits, consolidated in the United States District Court for
the District of Columbia, the plaintiffs contended, among other
arguments, that FTA lacked statutory authority to issue a drug testing
rule. The district court upheld the regulation and the plaintiffs
appealed.
On January 19, 1990, the United States Court of Appeals for the
District of Columbia Circuit overturned that decision in Amalgamated
Transit Union v. Skinner, 894 F.2d 1362 (D.C. Cir. 1990) and on January
25, 1990, FTA published a notice in the Federal Register suspending its
anti-drug regulation. (Today's final rule replaces suspended part 653
with a new part 653.)
Subsequently, the Omnibus Transportation Employee Testing Act of
1991 (the Act) was enacted, authorizing FTA to require drug testing of
safety-sensitive employees. (Pub. L. 102-143, Title V.) This final
rulemaking is issued under the authority of that Act.
C. The Omnibus Transportation Employee Testing Act of 1991
The Act requires the FTA to issue a rule requiring recipients of
certain FTA funding to test safety-sensitive employees for the
prohibited use of controlled substances. The Act directs FTA to require
recipients of Federal 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 U.S. Code, to test safety-sensitive employees for any substance
listed in section 102(6) of the Controlled Substances Act (21 U.S.C.
802(6)) which the Secretary has determined poses a risk to
transportation safety. 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 anti-drug regulations of those agencies.
Compliance with FTA's rule is a condition of the receipt of certain
kinds 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 anti-drug 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 drug testing: pre-
employment, reasonable suspicion, random, and post accident, and
permits FTA to require periodic drug 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 prohibited use of controlled substances,
and in so doing to safeguard the privacy of safety-sensitive employees
to the maximum extent practicable. Moreover, the Act requires that the
specimen be subdivided, secured, and labeled in the presence of the
tested employee, with one part tested and the other part retained in a
secure manner to prevent tampering. If the tested portion is verified
positive for the presence of illegal drugs, the Act specifies that the
tested employee may request that the other portion be tested at another
certified laboratory. To ensure the accuracy of the testing procedures,
the Act permits only those laboratories certified by the Department of
Health and Human Services (DHHS) to test specimen samples.
If a safety-sensitive employee has a verified positive drug test
result for prohibited drugs, the Act directs FTA to ensure that the
employee receives 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 a verified positive
drug test result.
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.
D. Summary of the Final Rule
The final rule applies to recipients of Federal funds under
sections 3, 9, or 18 of the FT Act, or section 103(e)(4) of title 23 of
the United States Code. It requires each such recipient to establish
and implement an anti-drug program, consisting primarily of a testing
program but with elements requiring training, educating, and evaluating
safety-sensitive employees as well.
The regulation specifies that safety-sensitive employees may not
use any of the five prohibited substances identified in the regulation:
marijuana, cocaine, opiates, amphetamines, or phencyclidine.
The rule mandates the following kinds of testing:
1. Pre-employment (including transfer from a nonsafety-sensitive
position to a safety-sensitive position within the organization);
2. Reasonable suspicion;
3. Random;
4. Post-accident; and
5. Return to duty/follow-up (periodic).
The rule requires the use of testing procedures found in part 40 of
title 49 of the Code of Federal Regulations, the procedures used in the
drug testing rules of all agencies of the Department of Transportation
(DOT), which requires the testing of urine samples. Part 40 conforms to
the DHHS ``Scientific and Technical Guidelines for Drug Testing
Programs'' issued on April 11, 1988 and amended today to incorporate
changes required by the Act. For a discussion of those changes, please
see part 40, ``Procedures for Transportation Workplace Drug and Alcohol
Testing Programs'', and its accompanying preamble published elsewhere
in today's Federal Register. This part 653 includes procedures that
require a substance abuse professional to evaluate a covered employee
who has a verified positive drug test result as defined under this
part. Consequently, both parts must be followed.
If a covered employee has a verified positive drug test result (as
defined in this part 653), the employee must be removed from the
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 a drug problem. The rule does not
address who should pay for the employee's treatment, which is a local
issue.
To return to her safety-sensitive position, the employee must
properly complete any course of treatment prescribed by the substance
abuse professional and take a drug test with a verified negative
result.
The rule requires each recipient to adopt a policy statement
describing its anti-drug program policies and procedures, including the
consequences of drug use and a verified positive drug test result.
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
remains legally responsible to the FTA for assuring that any entity
operating on its behalf is in compliance with the drug 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 all 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 drug 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.
E. Overview of the Comments
The FTA received 84 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)............................. 35
Cities and counties................................................ 4
State DOTs......................................................... 11
Labor unions....................................................... 2
Trade associations................................................. 9
Individual citizen................................................. 1
Nonprofit organizations/special transit providers.................. 12
State governments.................................................. 2
Public Utility..................................................... 1
Member of Congress................................................. 1
Private businesses................................................. 3
Others............................................................. 4
Most of the comments addressed issues raised in the NPRM, but some
commenters addressed additional issues, such as whether volunteer
drivers should be subject to the rule, or the applicability of the
regulation to providers of transportation paid with publicly subsidized
vouchers or scrip (user-side subsidies). All of the major issues
addressed by the commenters are discussed in Section II.
II. 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). For the most part, these agencies have regulated drug
use among safety-sensitive employees since 1989, including employees of
certain FTA recipients. 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 anti-drug
regulations with which such recipients would have to comply, the NPRM
discussed a proposal under which (1) FRA's drug testing regulation
would apply to FTA recipients that operate railroads, including the
recipient's safety-sensitive employees; (2) FTA's drug testing 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 drug testing program would apply to recipients operating
vessels, and Coast Guard would continue to regulate the individual
safety-sensitive employee (vessel crew member) by pursuing licensing
actions or other punitive measures.
FTA received ten 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. Lastly, one commenter particularly focused on the chain-of-
custody form, mandated by part 40, and recommended that all DOT
agencies use the same form.
FTA Response. FTA is sympathetic to the concerns of recipients
regulated by more than one DOT agency anti-drug rule, some of whom
proposed a single regulation. As a practical matter, however, an
agency-wide DOT drug rule would be difficult to implement because of
the different characteristics of the various communities each agency
regulates. Nevertheless, FTA addresses the multi-jurisdictional 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.
In response to one commenter, DOT will amend part 40 in the near
future to address the issue concerning one DOT-wide chain-of-custody
form.
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 a drug 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 a jurisdictional
conflict between 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 drug
testing 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 recipients 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 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 CDL 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 prohibited
drugs.
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 drug testing 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 supervisors of safety-sensitive
employees, the final rule limits that category by covering only first-
line 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 a sophisticated drug 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. Under the NPRM,
an applicant could not be hired unless he passes a pre-employment drug
test, nor could a transferee, already employed by the employer, perform
a safety-sensitive function until she passes a drug test. Under the
specific notice provision, the NPRM required applicants and transferees
to be notified that they must submit to a drug test. Moreover, a pre-
employment drug test could not be waived by the employer, which
distinguished the anti-drug NPRM from the alcohol NPRM. (The alcohol
NPRM proposed to allow the employer in certain limited circumstances to
accept another alcohol test result in lieu of a pre-employment test.) -
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 a drug 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 take a drug test with a
verified negative result. We have made no changes to this requirement
in the final rule. As noted above, some commenters thought that we
allowed an employer to use certain existing test results in lieu of a
pre-employment test. We do not. That provision was not in the drug
NPRM, nor is it in this final rule. -
We have made another change in response to comments on our related
alcohol rule. Some commenters 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 drug 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 basically authorizes an employer to conduct a test when it
believes the employee is exhibiting certain characteristics of
prohibited drug use. The NPRM never identifies or defines those
characteristics, but authorizes an employer to require a reasonable
suspicion drug test on the basis of specific, contemporaneous,
articulable observations concerning the appearance and behavior of the
covered employee, which characterize prohibited drug use. -
Moreover, those observations must be made by a supervisor trained
in detecting the symptoms of drug use. The NPRM specifically required
that a supervisor receive two hours of training, which must include
information about the manifestations and behavioral characteristics
indicating prohibited drug use. -
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 has a verified positive
drug test result and subsequently was disciplined. -
FTA Response. In the final rule we essentially have retained the
reasonable suspicion provision from the NPRM, with only one change,
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 prohibited drug use 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 drug use adequately protects the
employee, and we were concerned about the cost of requiring two
supervisors to make the determination.
However, although many commenters supported the requirement that
supervisors receive two hours of training, we have changed this
requirement in the final rule, being sensitive to the costliness of
such training. Supervisors who make reasonable suspicion referrals will
be required to undergo only one hour of 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 drug use. We stress that long-term
indications of drug use such as absenteeism or tardiness or moving
traffic violations cannot be used as the basis for conducting a
reasonable suspicion drug 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 verified positive test results 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 verified positive test results 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 verified, but if the number of verified
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
below 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 drug testing rate, FTA has
considered not only the comments on this issue but other factors as
well. Most importantly, because FTA, unlike other DOT agencies, has not
previously required drug testing, we do not know the extent of drug use
in the mass transit industry. We therefore have established a random
drug testing rate of 50 percent, the rate at which other DOT agencies
have been requiring random testing since 1989.
We recognize, however, that random drug testing does subject a
large number of employees to urine testing and is costly. We have thus
today issued an NPRM requesting comment on whether we should adopt a
performance based random drug testing rate. For a complete discussion
of this issue, please see the NPRM entitled ``Random Drug Testing
Program'' published elsewhere in today's issue of 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, however, require the test to be conducted by an outside
agency. Although requiring a third party to conduct the random drug
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, some commenters are confused about an issue raised in the
alcohol NPRM that does not relate to this rule. In our companion
alcohol NPRM, we restricted random testing to the time frames just
before, during, or just after the employee performs a safety-sensitive
function. Several commenters to the drug rule asked us to explain the
reasoning for this restriction.
We emphasize that this limitation does not apply to the drug rule.
Because drugs are prohibited substances, a safety-sensitive employee
may be randomly tested for drugs at any time while on duty. In
contrast, 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 the employee is subject to
random testing.
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 a drug 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, a drug test must be given
within 32 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
32 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
mechanic 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 use of prohibited
drugs. 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 a drug test administered by
police or hospital personnel. -
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 32
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 a verified positive
drug test result, 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 a
verified positive drug test result, 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 and
pass 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 a 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 drug 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. The Split Sample Procedure
The NPRM proposed that the urine sample be split, and poured-off
into two specimen bottles. This provides an employee with the option of
having an analysis of the split sample performed at a separate
laboratory should the primary specimen test result be verified
positive. The NPRM would have provided an employee 72 hours to decide
whether to have the analysis of the split sample performed. -
Only a few commenters responded to this provision, with most
recommending that the employer be allowed to test the urine sample for
more than the five prohibited drugs. Others focused on the amount of
time the NPRM gave the employee to request that the secondary sample be
tested. Some contend that 72 hours is too short a period of time, and
others asked whether the 72 hours included weekends and holidays. Yet
another commenter asked that the rule require the employee to pay for
the test of the split sample. -
FTA Response. On the time period issue, an employee, after being
notified by the Medical Review Officer (MRO) that the primary specimen
has been verified positive, must request within 72 hours that the split
be tested. Although several commenters objected to the 72-hour time
period, the Act specifies that an employee must be given three days to
request that the split sample be analyzed. In the final rule we
interpret three days to mean 72 hours, and because most transit systems
operate seven days a week and during holidays, we have decided that the
72-hour time period includes both holidays and weekends. -
Concerning who pays for the test of the split sample, the rule is
silent, and this issue properly must be decided at the local level. -
Finally, for a complete discussion of FTA's and DOT's response to
this issue, please see part 40 and its preamble published elsewhere in
today's issue of the Federal Register. -
K. Treatment
The NPRM proposed that any covered employee who has a verified
positive drug test result must be advised by his employer of the
resources available to help him resolve problems associated with drug
use and be evaluated by a SAP. The NPRM neither authorized nor
prohibited an employer from disciplining or discharging an employee
because he has a verified positive drug test result for prohibited drug
use; it simply stated that such an employee 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 has a
verified positive drug test result. -
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 a verified positive drug test result, 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 used prohibited drugs. In this regard, we require
that an employee who has a verified positive drug test result 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 takes a
return to duty drug test with a verified negative result.
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 repeated verified positive drug test
results 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 an employee from a safety-sensitive position if
the employee has a verified positive drug test result, but does not
address employment or disciplinary issues in connection with such
action. -
L. Training
The NPRM proposed that supervisors who make reasonable suspicion
determinations receive 120 minutes of training on the physical,
behavioral, and performance indicators of probable drug use, which
would enable the supervisor to make an informed reasonable suspicion
determination. In addition, the NPRM proposed that all safety-sensitive
employees be trained about the effects of drug use 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 anti-drug program, and we agree with the commenters who
favor a training requirement for both safety-sensitive employees and
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. -
We have decided to adopt the recommendation of one commenter and
require all safety-sensitive employees to receive at least 60 minutes
of training. We believe that training for covered employees is
important because of the profound ramifications of prohibited drug
usage on personnel health, public safety, and the work environment. We
also believe that one hour of training is sufficient to train
supervisors who may make reasonable suspicion determinations to
recognize the signs and symptoms of drug use; 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. -
M. 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. States must
collect the reports prepared by their subrecipients and their
contractors, as appropriate, and forward the reports to the FTA.
The final rule includes two different reporting forms, FTA Drug
Testing Management Information System (MIS) Data Collection Form
(Appendix B) and FTA Drug Testing Management Information System (MIS)
``EZ'' Data Collection Form (Appendix C). Appendix B must be used in
reporting both verified positive and negative drug test results;
Appendix C must be used by employers who have no verified positive drug
test results 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 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.
N. Implementation Date
The NPRM proposed to require compliance with this rule within six
months of publication in the Federal Register for large employers and
within one year for States and small employers. This provision
contrasted with implementation periods proposed in the alcohol NPRM,
which were one year for large employers and two years 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. Other commenters recommended specific implementation periods. For
instance, one commenter suggested that all employers be given four
months while another suggested three to six months. Another commenter
recommended that large employers comply with the rule within six to
nine months of the publication date.
-FTA Response. In the final rule, we have decided that large
employers must implement their drug testing programs on January 1,
1995, while small employers will have until January 1, 1996 to
implement their programs. This is consistent with the implementation
date of our related alcohol rule and will ensure that the annual MIS
report data 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 most instances already have experience in testing their employees
for drug use.
We further note, in response to several inquiries, the rule
provides no authority for an employer to begin its program before the
implementation dates included in this rule.
O. 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.
P. 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-
governance 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. -
Q. 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 include
section 18 rural providers and small recipients of section 9 funds--are
provided additional time to comply with the rule. We have also exempted
from the rule's coverage 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.-
III. Section-by-Section Analysis
Subpart A--General
A. Overview. (Sec. 653.1)
This section provides an overview of the anti-drug rule. Basically,
the rule requires certain recipients of FTA funding to establish and
implement an anti-drug program consisting primarily of a program in
which a safety-sensitive employee's urine is tested for five prohibited
substances under certain circumstances. The rule further specifies that
both safety-sensitive employees and their supervisors must be given
educational materials and be trained about the effects of drugs on the
human body and on an individual's ability to perform duties while under
the influence of drugs. Employers must establish, publicize, and
promote an anti-drug policy describing requirements of this program and
the consequences of any violation of it. The rule specifies the
consequences for any recipient that fails to implement the requirements
of this rule.
B. Purpose. (Sec. 653.3)
This section explains that the rule is designed to promote public
safety by requiring a recipient to establish and implement an anti-drug
program to detect the use of prohibited drugs, by urine testing, and to
deter the use of those drugs by educating and training safety-sensitive
employees about the safety and health ramifications of drug use and
abuse.
C. Applicability. (Sec. 653.5)
This 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 drug 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 anti-drug 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), or the United States Coast Guard, which regulates
certain vessels and mariners.
a. Federal Railroad Administration. The FRA regulates railroads. A
railroad is defined in 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. Sec. 431(e) (1988).
If an FTA recipient solely operates a commuter railroad, those
railroad operations are subject to FRA's drug rule. Such a recipient
must certify to the FTA that it complies with FRA's rule as provided
for under section 653.83 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. Before the Act, FHWA was
authorized to regulate only interstate motor carriers. Hence, when FHWA
issued its anti-drug rule in 1988, most of FTA's recipients, which
generally operate intrastate, were not affected by it. The Act,
however, authorizes FHWA to regulate intrastate motor carriers and
specifically requires it to issue an anti-drug 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 anti-drug rule.
c. United States Coast Guard. If a recipient operates a ferry boat
service, it is subject both to FTA and Coast Guard anti-drug
regulations with regard to that service. Applicable Coast Guard
regulations may be found at 33 CFR part 95 and 46 CFR parts 4 and 16.
Generally, the FTA's drug testing regulation is consistent with the
Coast Guard's. Moreover, both FTA and the Coast Guard require employers
to follow 49 CFR part 40 when conducting a drug test. Unlike the Coast
Guard, however, FTA requires an additional procedure set forth in this
rule--which is not in Part 40. That is, we require that in the case of
a verified positive drug test result, the covered employee be referred
to a substance abuse professional (SAP) for evaluation.
As noted earlier, if a recipient complies with this part 653, the
recipient generally will also be in compliance with the Coast Guard
regulation. To assist in the compliance with both regulations, we note
in various provisions of the Section-by-Section Analysis portion of
this preamble the differences between the FTA and Coast Guard rules.
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 the actions 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,
including their anti-drug 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 anti-drug 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 of registry, or merchant
mariner's document of a crewmember under certain circumstances. Coast
Guard's relevant provisions specifying the rights and responsibilities
of crewmember 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
anti-drug 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 drug 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. Definitions. (Sec. 653.7)
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 placed into or
returned to revenue service.
2. Administrator. Administrator means the Administrator of the
Federal Transit Administration or the Administrator's designee.
3. Anti-drug program. This definition describes the scope of the
program created by this rule, which encompasses testing and training
intended to promote safety by deterring the use of prohibited
substances.
4. Canceled test. This definition describes a test that has not
taken place, a specimen that cannot be analyzed by a laboratory, or a
test that is declared invalid by a Medical Review Officer (MRO). For
instance, a urine specimen that is rejected by the laboratory is a
canceled test. A canceled test is different from a verified positive or
negative test. It is also different from the behavior that constitutes
a refusal to submit; for a test to be canceled the employee must be
ready to submit to a test.
5. Certification. This definition describes the statement that must
be executed by the recipient.
6. Chain-of-custody. This definition refers to the procedures
specified in part 40 for the handling of a urine sample. These
procedures are designed to protect the integrity of the test and the
rights of the employee by ensuring that a particular employee's
specimen is sent to a particular laboratory without any intervening
steps or opportunity for tampering with the sample. -
7. 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 anti-drug 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.
8. 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.
9. 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.
10. DOT. The abbreviation DOT stands for the United States
Department of Transportation.
11. DOT agency. DOT contains several operating agencies, five of
which issued anti-drug rules in 1988. Those agencies are: FHWA (49 CFR
part 382), FRA (49 CFR part 219), FAA (14 CFR part 121, appendix J),
Coast Guard (46 CFR parts 4 and 16), and RSPA (49 CFR part 199).
12. Employer. This definition applies to entities that must
implement an anti-drug 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.
13. FTA. FTA is the abbreviation for the Federal Transit
Administration.
14. Large operator. A large operator is a transit provider
primarily operating in an area of 200,000 or more in population.
15. Medical Review Officer. A medical review officer is a medical
doctor who not only has knowledge of substance abuse disorders, but who
also has been trained to interpret and evaluate laboratory test results
in conjunction with an employee's medical history. A medical review
officer verifies a positive test result by reviewing a laboratory
report and an employee's unique medical history to determine whether
the result was caused by the use of prohibited drugs or by an
employee's medical condition.
16. Prohibited drug. This definition lists the drugs listed in
section 102(6) of the Controlled Substances Act that have been
determined by the Secretary as being a risk to public safety:
marijuana, opiates, amphetamines, cocaine, or phencyclidine.
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 run 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 (to a drug test). This definition describes
the behavior that constitutes a refusal to submit to a drug test, that
is, the refusal to produce a specimen.
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 function listed in categories 1 through 5. -
21. Small operator. A small operator is a recipient operating
primarily in an area of less than 200,000 in population. -
22. Substance abuse professional. This definition establishes the
requirements for anyone who evaluates employees subject to drug testing
under this part. The SAP must be knowledgeable about and have clinical
experience in the diagnosis and treatment of both drug and alcohol-
related disorders. The SAP must also be a licensed physician, either a
Medical Doctor or Doctor of Osteopathy, or a licensed or certified
psychologist, social worker, employee assistance professional, or
addiction counselor who is certified by the National Association of
Alcoholism and Drug Abuse Counselors Certification Commission.- -
23. 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. -
24. Verified negative drug test result. This definition explains
that, if a medical review officer determines there is no evidence of
prohibited drugs in an employee's urine sample, the drug test result
shall be declared negative. -
25. Verified positive drug test result. This definition explains
that, if a medical review officer determines there is evidence of
prohibited drugs in an employee's urine sample, the drug test result
shall be declared positive. -
E. Preemption of State and Local Laws. (Sec. 653.9)-
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. -
F. Other Requirements Imposed by an Employer. (Sec. 653.11) -
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 four hours instead
of one, or an employer may provide annual training for both supervisors
and employees. An employer may also require an employee to provide
another urine sample in a separate void and may then test that sample
for drugs other than the five prohibited drugs. Under the rule, when an
employer imposes additional requirements the employer must advise the
employee that the requirements are not pursuant to this regulation. -
G. Starting Date for Drug Testing Programs. (Sec. 653.13)-
This section states the implementation date for large operators,
States, and small operators.
Subpart B--Program Requirements -
This subpart describes the four elements of the anti-drug program
each employer must implement to be in compliance with this part. An
employer must: develop and disseminate a policy statement; train and
educate employees about the consequences of prohibited drug use;
require testing under five different circumstances; and provide an
opportunity for the identification and treatment of employees needing
assistance. -
A. Requirement To Establish an Anti-drug Program. (Sec. 653.21)
This section requires an employer to establish an anti-drug program
to deter and detect the use of prohibited drugs, consisting of
educating and training about drug usage and urine testing for
prohibited drugs. The anti-drug program must comply with the
requirements imposed by the rule. -
B. Required Elements of an Anti-drug Program. (Sec. 653.23)-
This section includes a checklist of the main requirements of the
anti-drug program and cross references those provisions which address
specific requirements. -
C. Policy Statement Contents. (Sec. 653.25)-
The rule requires an employer to make available to every safety-
sensitive employee a policy statement describing the employer's anti-
drug 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 a verified positive drug test result. -
5. Program elements in addition to those required by the FTA
regulation. -
The FTA expects each employer to describe the consequences to a
covered employee of his verified positive drug test result, 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 a
verified positive drug test result, 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 prohibited drug use. 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). -
D. Requirement to Disseminate Policy. (Sec. 653.27)-
This section requires an employer to disseminate its policy
statement required by the rule. An employer must notify each covered
employee in writing, as well as employee organizations. -
E. Education and Training Programs. (Sec. 653.29)--
This section requires an employer to establish an education and
training program. In the educational program, which must be provided to
covered employees as well as supervisors, an employer must distribute
educational materials, including the employer's anti-drug policy
statement. The rule also requires the employer to provide a hotline
telephone number of a community service organization that deals with
drug abuse problems, if such a number is available. -
The training component consists of two programs. For all covered
employees the training program must be at least 60 minutes in duration,
and address certain problems associated with using prohibited drugs.
The training program must cover the ramifications of drug use on
personal health, safety, and the work environment, and include
information on the signs and symptoms that may indicate prohibited drug
use. -
In addition, for supervisors who may make reasonable suspicion
determinations, employers must provide a training program of at least
60 minutes. This training must focus on the physical, behavioral, and
performance indicators of drug use. -
An employer may add the FTA drug program training to the FTA
alcohol training required under the alcohol final rule, published
elsewhere in today's Federal Register. An employer may provide any
additional training it deems necessary. -
F. Types of Drug Tests. (Sec. 653.31)-
This section specifies the different tests the employer must
conduct: pre-employment (including transfer to a safety-sensitive
position); post-accident (fatal and nonfatal); reasonable suspicion,
random, return to duty, and follow-up. -
It also specifies the five prohibited drugs: marijuana, cocaine,
opiates, amphetamines, and phencyclidine. -
G. Notice Requirement. (Sec. 653.33')
This section requires an employer to notify an employee that the
employee is being tested under Federal law and that the employee must
provide a urine sample that will be tested for the five prohibited
drugs. In this regard, the custody form that each employer signs when a
test is administered can satisfy this notice requirement.
This section specifically bars an employer from misrepresenting a
test conducted under its own authority as a test mandated by Federal
law.
H. Action When Employee Has a Verified Positive Drug Test Result.
(Sec. 653.35)
This section addresses two situations, when an employee has a
verified positive drug test result, or has refused to submit to a test.
In either case, the employer must remove the safety-sensitive employee
from his/her position as soon as practicable after being notified of
the result. In both instances, the employer must ensure that the
employee is assessed under the provisions of section 653.37, which
require that the employee be evaluated by an SAP.
Marine transit operators have additional responsibilities.
Consistent with 46 CFR 16.201(c), an employer or prospective employer
of an individual holding a license, certificate of registry, or
merchant mariner's document who has a verified positive drug test
result must report the test result to the nearest Coast Guard Officer
in Charge, Marine Inspection (OCMI).
I. Referral, Evaluation and Treatment. (Sec. 653.37)
This section requires an employer to advise an employee who has a
verified positive drug test result of the resources available in
resolving problems associated with drug misuse. The information
provided by the employer shall 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 drug misuse. The SAP then determines what kind
of help the employee needs. Any such employee must take a return to
duty drug test with a verified negative result before he or she may be
allowed to perform a safety sensitive function again.
The employee must follow the course of treatment prescribed by the
SAP. To return to duty, the employee must be evaluated by a SAP to
determine that the employee has properly followed the course of
prescribed treatment and is able to return to work.
The employee then must take a return-to-duty test with a verified
negative result and is then subject to follow-up testing, which occurs
unpredictably for up to 60 months following return to duty. In any
event, the employee must take at least six follow up tests with
verified negative results during the first twelve months after
returning to duty. The SAP then determines how many follow up tests
should be administered over the remaining 48 months.
In addition, the SAP may recommend that the employee also be
subject to return to duty and follow-up testing for alcohol misuse.
Such an employee remains separately subject to random drug testing.
An employer is not required to provide applicants with an
opportunity for referral, evaluation, and treatment.
Subpart C--Types of Drug Tests
A. Pre-employment Testing. (Sec. 653.41)
This section prohibits an employer from hiring an applicant for a
safety-sensitive function unless the applicant takes a drug test with a
verified negative result administered in accordance with this
regulation. This section also requires that an employee who transfers
from a nonsafety-sensitive position to a safety-sensitive position to
be tested before he or she actually begins performing a safety-
sensitive function for the first time.
For marine employers, 46 CFR 16.210(a) prohibits hiring or giving a
commitment of employment to an individual unless the individual takes a
drug test with a verified negative result or meets a stated pre-
employment exemption under 46 CFR 16.210(b). Marine employers that also
are FTA recipients, however, must in every instance require an
applicant to take a drug test with a verified negative result before
they may be hired.
B. Resasonable Suspicion Testing. (Sec. 653.43)
This section requires an employer to test a covered employee for
prohibited drug use if the employer has reasonable suspicion to believe
that the covered employee has used prohibited drugs. The reasonable
suspicion must be based on specific, contemporaneous, articulable
observations concerning the appearance, behavior, or speech of the
covered employee, which are characteristic of prohibited drug use.
The rule requires the decision to be made by a supervisor trained
in detecting the signs and symptoms of prohibited drug use.
C. Post-accident Testing. (Sec. 653.45)
This section requires a test after an accident has occurred, and
establishes two categories of accidents, fatal and nonfatal. Non-fatal
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 32 hours, consistent with
other DOT agency existing drug testing rules.
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 a drug 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 32 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 prohibited drugs.
D. Random Testing. (Sec. 653.47)
The rule requires an employer to randomly test covered employees
for the use of prohibited drugs. 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.
The random drug testing rate is set at 50 percent. For compliance
purposes, it is important to note that in calculating its random
testing results an employer must include adulterated urine samples and
refusals to submit to a test as verified positive test results.
E. Return to Duty Testing. (Sec. 653.49)
Return to duty testing refers to the test that employees who have
verified positive drug test results or refuse to submit to a drug test.
In addition, because of the prevalence of combined drug and alcohol
misuse, an employer may, based on the recommendations of the substance
abuse professional, also subject an employee who previously had a
verified positive drug test result under the FTA anti-drug rule to a
return to duty alcohol test.
F. Follow-up Testing. (Sec. 653.51)
Upon taking a return to duty test with a verified negative result,
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
drug 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 had a verified positive
drug test result for prohibited drugs under this rule to follow-up
testing for the misuse of alcohol. An employer may also subject an
employee who previously tested at 0.04 or greater on an alcohol test
under part 654 to follow-up drug testing for the use of prohibited
drugs.
It is important to note that an employee subject to follow-up
testing remains separately subject to random drug testing under this
rule.
Subpart D--Drug Testing Procedures
This subpart contains a drug testing procedure required by the Act
in addition to those required in 49 CFR part 40.
A. Compliance With Testing Procedures Requirements. (Sec. 653.61)
This section requires an employee to use the testing procedures in
49 CFR Part 40 unless expressly provided otherwise in this part. This
Part 653 contains the additional testing requirement mandated by the
Act, namely, the evaluation by an SAP.
B. Substance Abuse Professional. (Sec. 653.63)
This section explains the role of the substance abuse professional.
In relation to a covered employee, a substance abuse professional is
neither a counselor nor a treating professional. Rather, an SAP
evaluates an employee who either has a verified positive drug test
result or refused to be tested to determine whether the covered
employee needs help resolving a problem with prohibited drug use. The
SAP then makes certain recommendations to the employee, which the
employee must follow. Before returning to duty, the employee is
reevaluated by an SAP to determine whether the employee has followed
the SAP's recommendations. The SAP then determines whether the employee
is ready to return to her safety-sensitive function. The SAP also
determines the number of follow-up tests the employee should be subject
to in addition to the six mandatory follow-up tests in the first 12
months after the employee's return to duty.
The rule 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.
This section 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 the SAP is an
employee of or under contract to an employer, the SAP is the only
source of appropriate therapeutic treatment provided under the
employee's health plan or reasonably accessible to the employee, or the
SAP works for a public agency such as a State, county, or municipality.
Subpart E--Administrative Requirements
A. Retention of Records. (Sec. 653.71)
Section 653.71 explains which records relating to the drug 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' verified positive drug test
results, documentation of refusals to take a drug test, and covered
employee referrals to the SAP. Collection process and employee training
documents must be retained for two years, while records of negative
test results must be retained for one year.
B. Reporting of Results in a Management Information System.
(Sec. 653.73)
The reporting requirements required in section 653.73 are part of a
Department-wide effort to standardize reporting for drug testing by
means of a Management Information System (MIS). The data collected will
be used by FTA and DOT to identify trends and to assess the success or
failure of the agency's anti-drug rule.
The data elements were selected to provide information on the scope
of the program, the prevalence of drug use in mass transportation, the
implementation of the program and its related costs, and the deterrent
effect of the rule over time. Appendix B must be used in reporting both
verified positive and negative drug test results; Appendix C must be
used by employers who have no verified positive drug results to report.
FTA does intend to combine the drug and alcohol annual reporting forms
within two to three years after the implementation date.
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. 653.75)
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 refusal to take a drug test or a
reasonable suspicion determination. 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 prohibited use of drugs. 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 copies of 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 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 anti-drug 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 drug 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 a drug test
administered under this part. This provision does not cover any
proceeding initiated by a third party and is limited to employment
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 F--Certifying Compliance
This subpart establishes the certification requirements for
recipients of FTA funding under sections 3, 9, or 18 of the FT Act or
section 103(e)(4) of title 23 of the U.S. Code.
A. Compliance a Condition of FTA Financial Assistance. (Sec. 653.81)
This section mandates the withholding of Federal funds from a
recipient of FTA funding under sections 3, 9, or 18 of the FT Act, or
section 103(e)(4) of title 23 of the U.S. Code, if it is not in
compliance with the rule. To be in compliance with the rule, the
recipient either must implement the requirements of the rule or require
their implementation by subrecipients, operators, contractors,
employers, or any other entity performing a mass transit function on
behalf of the recipient.
It is important to note that any misrepresentation or false
statement to FTA is a criminal violation under section 1001 of title 18
of the United States Code.
B. Requirement to Certify Compliance. (Sec. 653.83)
This section requires a recipient to certify that the requirements
of the rule have been met. We emphasize that the direct recipient of
FTA funds makes this certification to FTA.
The certifications are required annually, with large operators
submitting their certification before January 1, 1995 and small
operators and States submitting their certifications before January 1,
1996. States will certify on behalf of subrecipients and their
contractors.
The certification itself must comply with the sample certification
provided in Appendix A to this part, be authorized by the recipient's
governing board or other authorizing official, and be signed by a party
specifically authorized to do so.
IV. Americans With Disabilities Act
Title I of the American With Disabilities Act of 1990 (ADA)
prohibits discrimination on the basis of disability in employment. A
basic premise of Title I is that a person with a disability must be
provided a reasonable accommodation to work. It is possible that some
covered workers will be considered persons with disabilities for
purposes of protections under the ADA. For a more complete discussion
of this issue please see the DOT-wide Preamble preceding this FTA
document in today's Federal Register.
V. Economic Analysis
The Federal Transit Administration (FTA) has evaluated the
industry-wide costs and benefits of the rule, Prevention of Prohibited
Drug Use in Transit Operations. This rule will require personnel who
perform safety-sensitive functions to be covered by a formal program to
control drug use in mass transit operations. This rule will cover FTA
recipients and combine education and testing in a comprehensive anti-
drug program. Five types of drug tests will be administered:
Pre-Employment
Reasonable Suspicion
Post-Accident
Random
Return to Duty/Follow-up
Transit agencies will be required to report the number of tests
given, the number of failures-to-pass and other attributes of their
program to the FTA and to certify compliance with this regulation
annually.
Annual costs of the drug testing program range from $25 to $32
million per year. Total costs over 10 years are $299 million. Random
tests are the most costly.
Annual benefits range from $11 to $103 million per year. Total
benefits over 10 years are $867 million.
A major premise in calculating both costs and benefits is the
assumption that all transit systems will start from scratch or ``ground
zero'' when implementing drug testing programs as a result of this
regulation. Estimates in this analysis are based on (1) the 1989 and
1991 National Urban Mass Transportation Statistics Section 15 Annual
Reports, (2) the 1991 report, Substance Abuse in the Transit Industry,
prepared for the FTA by Booz, Allen & Hamilton, Inc., (3) data provided
by the Substance Abuse and Mental Health Service Administration, and
(4) information from other agencies, individuals, and organizations
knowledgeable about drug abuse and chemical testing in the United
States.
VI. Regulatory Process Matters
A. Executive Order 12688
The FTA has evaluated the industry costs and benefits of the drug
testing rule, and has determined that this rulemaking is a significant
rule under Executive Order 12688 because the required anti-drug program
raises novel policy issues and will materially affect public safety as
well as State and local governments. This rule will not, however, have
an annual impact on the economy of $100 million or more.
B. Departmental Significance
This rule is a ``significant regulation'' as defined by the
Department's Regulatory Policies and Procedures, because it involves an
important departmental policy and will probably generate a great deal
of public interest. The purpose of this rule is to make mass transit
systems safer by ensuring that safety-sensitive employees do not use
prohibited substances.
C. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., the FTA has evaluated the effects of this rule on small entities.
Based on the evaluation, the FTA hereby certifies that this action will
have a significant economic impact on a substantial number of small
entities. This rule has some provisions designed to mitigate burdens on
small entities which are discussed in the regulatory evaluation.
This rule applies to public recipients of Federal Transit funds,
274 of which are large and 1314 of which are small. It is estimated
that it will cost the small transit systems $86 million to implement
this drug rule, with total benefits to them of $267 million over the 10
year analysis.
D. Paperwork Reduction Act
This rule includes information collection requirements subject to
the Paperwork Reduction Act. A request for Paperwork Reduction Act
approval has been submitted to the Office of Management and Budget in
conjunction with this rule. Information collection requirements are not
effective until Paperwork Reduction Act clearance has been received.
E. Executive Order 12612
We have reviewed this rule under the requirements of Executive
Order 12612 on Federalism. Although the Federal Transit Administration
has determined that this rule has significant Federalism implications
to warrant a Federalism assessment, this rulemaking is mandated by the
Omnibus Transportation Employee Testing Act of 1991 (the Act). In
considering the Federalism implications of the rule, FTA has focused on
several key provisions of Executive order 12612.
Necessity for action. This rule is mandated by law, which requires
comprehensive drug and alcohol testing programs of recipients of
Federal transit funding. Congress responded to specific accidents in
mass transportation by mandating these rules to ensure the safety of
the transit-riding public.
Consultation with State and local governments. FTA provides
financial assistance to mass transportation systems throughout the
country by means of grants to States and public bodies. Because this
rule will affect those States and local entities, we published a Notice
of Proposed Rulemaking (NPRM) in the Federal Register to solicit the
views of the affected entities, including States and local governments,
and held three public hearings in conjunction with the NPRM. In short,
we actively sought the views and comments of the affected States and
localities.
Need for Federal action. This rule responds to a Congressional
mandate that the safety of the transit riding public requires
comprehensive anti-drug and alcohol testing programs.
Authority. The statutory authority for this final rule is the Act,
mentioned above and discussed elsewhere in the preamble.
Preemption. This rule preempts any State or local law, order, or
regulation to the contrary, as discussed elsewhere in the preamble.
Because compliance with the rule is a condition of Federal financial
assistance, State and local governments have the option of not
receiving the Federal funds if they do not choose to comply with this
rule. We have not preempted Indian tribal law.
F. National Environmental Policy Act.
The agency has determined that this regulation has no environmental
implications. Its purpose is to regulate the behavior of those safety-
sensitive employees who work in the transit industry and will have no
appreciable effect on the quality of the environment.
G. Energy Impact Implications.
This regulation does not affect the use of energy because it
regulates the behavior of those safety-sensitive employees who work in
the transit industry.
List of Subjects in 49 CFR Part 653
Drug testing, Grant programs--transportation, Mass transportation,
Reporting and recordkeeping requirements, Safety, Transportation.
Accordingly, for the reasons cited above, the agency amends title
49 by revising part 653, as set forth below:
Part 653--Prevention of Prohibited Drug Use in Transit Operations
Subpart A--General
653.1 Overview.
653.3 Purpose.
653.5 Applicability.
653.7 Definitions.
653.9 Preemption of State and local laws.
653.11 Other requirements imposed by an employer.
653.13 Starting date for drug testing programs.
Subpart B--Program Requirements
653.21 Requirement to establish an anti-drug program.
653.23 Required elements of an anti-drug testing program.
653.25 Policy statement contents.
653.27 Requirement to disseminate policy.
653.29 Education and training programs.
653.31 Drug testing.
653.33 Notice requirement.
653.35 Action when employee has a verified positive drug test
result.
653.37 Referral, evaluation, and treatment.
Subpart C--Types of Drug Testing
653.41 Pre-employment testing.
653.43 Reasonable suspicion testing.
653.45 Post-accident testing.
653.47 Random testing.
653.49 Return to duty testing.
653.51 Follow-up testing.
Subpart D--Drug Testing Procedures
653.61 Compliance with testing procedures requirements.
653.63 Substance abuse professional.
Subpart E--Administrative Requirements
653.71 Retention of records.
653.73 Reporting of results in a management information system.
653.75 Access to facilities and records.
Subpart F--Certifying Compliance
653.81 Compliance a condition of FTA financial assistance.
653.83 Requirement to certify compliance.
Appendix A to Part 653--Certification of Compliance
Appendix B to Part 653--FTA Drug Testing Management Information System
(MIS) Data Collection Form
Appendix C to Part 653--FTA Drug Testing Management Information System
(MIS) ``EZ'' Data Collection Form
Authority: Sec. 6, Pub. L. 102-143, 105 Stat. 917; 49 CFR 1.51
Subpart A--General
Sec. 653.1 Overview. -
(a) This part describes the anti-drug program to be implemented by
a recipient of certain funding from the Federal Transit Administration.
(b) The part includes six subparts. Subpart A covers the general
requirements of the FTA anti-drug program. Subpart B specifies the
basic requirements of each employer's anti-drug program, including the
types of tests to be conducted, and the elements required to be in each
employer's drug testing program. Subpart C describes the different
types of drug tests to be conducted. Subpart D describes a new drug
testing procedural requirement mandated by the Act. Subpart E contains
administrative matters such as reports and recordkeeping requirements.
Subpart F specifies how a recipient certifies compliance with the rule.
Sec. 653.3 Purpose.
The purpose of this part is to require a recipient to implement an
anti-drug program to deter and detect the use of prohibited drugs by
covered employees.
Sec. 653.5 Applicability.
(a) Except as specifically excluded in paragraph (b) of this
section, this part applies to a recipient under--
(1) Section 3, 9, or 18 of the Federal Transit Act, as amended (FT
Act); or
(2) Section 103(e)(4) of title 23 of the United States Code.
(b) A recipient operating a railroad regulated by the Federal
Railroad Administration (FRA) shall follow 49 CFR part 219 and
Sec. 653.83 of this part for its railroad operations, and this part for
its non-railroad operations, if any.
(Note: For recipients who operate marine vessels, see also Coast
Guard regulations at 33 CFR part 95 and 46 CFR parts 4,5, and 6.)
Sec. 653.7 Definitions.
As used in this part--
Accident means an occurrence associated with the operation of a
vehicle, if as a result--
(1) An individual dies;
(2) An individual suffers a bodily injury and immediately receives
medical treatment away from the scene of the accident;
(3) With respect to an occurrence in which the mass transit vehicle
involved is a bus, electric bus, van, or automobile, one or more
vehicles incurs disabling damage as the result of the occurrence and is
transported away from the scene by a tow truck or other vehicle. For
purposes of this definition, disabling damage means damage which
precludes departure of any vehicle from the scene of the occurrence in
its usual manner in daylight after simple repairs. Disabling damage
includes damage to vehicles that could have been operated but would
have been further damaged if so operated, but does not include damage
which can be remedied temporarily at the scene of the occurrence
without special tools or parts, tire disablement without other damage
even if no spare tire is available, or damage to headlights,
taillights, turn signals, horn, or windshield wipers that makes them
inoperative.
(4) With respect to an occurrence in which the mass transit vehicle
involved is a rail car, trolley car, trolley bus, or vessel, the mass
transit vehicle is removed from revenue service.
Administrator means the Administrator of the Federal Transit
Administration or the Administrator's designee.
Anti-drug program means a program to detect and deter the use of
prohibited drugs as required by this part.
Canceled test means a test that has been declared invalid by a
Medical Review Officer. It is neither a verified positive nor a
verified negative test, and includes a specimen rejected for testing by
a laboratory.
Certification means a recipient's written statement, authorized by
the organization's governing board or other authorizing official, that
the recipient has complied with the provisions of this part. (See
Sec. 653.77 for certification requirements.)
Chain-of-custody means the procedures in part 40 of this title
concerning the handling of a urine specimen.
Consortium means an entity, including a group or association of
employers, operators, recipients, subrecipients, or contractors, which
provides drug testing as required by this part, or other DOT drug
testing rule, and which acts on behalf of the employer.
Contractor means a person or organization that provides a service
for a recipient, subrecipient, employer, or operator consistent with a
specific understanding or arrangement. The understanding can be a
written contract or an informal arrangement that reflects an ongoing
relationship between the parties.
Covered employee means a person, including a volunteer, applicant,
or transferee, who performs a safety-sensitive function for an entity
subject to this part.
DOT means the United States Department of Transportation.
DOT agency means an agency (or ``operating administration'') of the
United States Department of Transportation administering regulations
requiring drug testing (see parts 199, 219, 382, and 653 of this title;
14 CFR part 121, Appendix J; 33 CFR part 95; and 46 CFR parts 4 and
16).
Employer means a recipient or other entity that provides mass
transportation service or which performs a safety-sensitive function
for such recipient or other entity. This term includes subrecipients,
operators, and contractors.
FTA means the Federal Transit Administration, an agency of the U.S.
Department of Transportation.
Large operator means a recipient or subrecipient primarily
operating in an area of 200,000 or more in population.
Medical Review Officer (MRO) means a licensed physician (medical
doctor or doctor of osteopathy) responsible for receiving laboratory
results generated by an employer's drug testing program who has
knowledge of substance abuse disorders and has appropriate medical
training to interpret and evaluate an individual's confirmed positive
test result together with his or her medical history and any other
relevant biomedical information.
Prohibited drug means marijuana, cocaine, opiates, amphetamines, or
phencyclidine.
Railroad means all forms of non-highway ground transportation that
run on rails or electromagnetic guideways, including (1) commuter or
other short-haul rail passenger service in a metropolitan or suburban
area, as well as any commuter rail service which was operated by the
Consolidated Rail Corporation as of January 1, 1979, and (2) high speed
ground transportation systems that connect metropolitan areas, without
regard to whether they use new technologies not associated with
traditional railroads. Such term does not include rapid transit
operations within an urban area that are not connected to the general
railroad system of transportation.
Recipient means an entity receiving Federal financial assistance
under section 3, 9, or 18, of the FT Act, or under section 103(e)(4) of
title 23 of the United States Code.
Refuse to submit (to a drug test) means that a covered employee
fails to provide a urine sample as required by 49 CFR part 40, without
a valid medical explanation, after he or she has received notice of the
requirement to be tested in accordance with the provisions of this
subpart, or engages in conduct that clearly obstructs the testing
process.
Safety-sensitive function means any of the following duties:
(1) Operating a revenue service vehicle, including when not in
revenue service;
(2) Operating a nonrevenue service vehicle, when required to be
operated by a holder of a Commercial Driver's License;
(3) Controlling dispatch or movement of a revenue service vehicle;
(4) Maintaining a revenue service vehicle or equipment used in
revenue service, unless the recipient receives section 18 funding and
contracts out such services; or
(5) Carrying a firearm for security purposes.
Small operator means a recipient or subrecipient primarily
operating in an area of less than 200,000 in population.
Substance abuse professional (SAP) means a licensed physician
(Medical Doctor or Doctor of Osteopathy), or a licensed or certified
psychologist, social worker, employee assistance professional, or
addiction counselor (certified by the National Association of
Alcoholism and Drug Abuse Counselors Certification Commission), with
knowledge of and clinical experience in the diagnosis and treatment of
drug and alcohol-related disorders.
Vehicle means a bus, electric bus, van, automobile, rail car,
trolley car, trolley bus, or vessel. A mass transit vehicle is a
vehicle used for mass transportation.
Verified negative (drug test result) means a drug test result
reviewed by a medical review officer and determined to have no evidence
of prohibited drug use.
Verified positive (drug test result) means a drug test result
reviewed by a medical review officer and determined to have evidence of
prohibited drug use.
Sec. 653.9 Preemption of State and local laws.
(a) Except as provided in paragraph (b) of this section, this part
preempts any State or local law, rule, regulation, or order to the
extent that:
(1) Compliance with both the State or local requirement and any
requirement in this part is not possible; or
(2) Compliance with the State or local requirement is an obstacle
to the accomplishment and execution of any requirement in this part.
(b) This part shall not be construed to preempt provisions of State
criminal law that impose sanctions for reckless conduct leading to
actual loss of life, injury, or damage to property, whether the
provisions apply specifically to transportation employees or employers
or to the general public.
Sec. 653.11 Other requirements imposed by an employer.
An employer may not impose requirements that are inconsistent with,
contrary to, or frustrate the provisions of this part.
Sec. 653.13 Starting date for drug testing programs.
(a) Large employers. Each recipient operating in an area of 200,000
or more in population on March 17, 1994 shall implement the
requirements of this part beginning on January 1, 1995.-
(b) Small employers. Each recipient operating in an area of 200,000
or less in population on March 17, 1994 shall implement the
requirements of this part beginning on January 1, 1996.
(c) An employer shall have an anti-drug program that conforms to
this part by January 1, 1996, or by the date the employer begins
operations, whichever is later.
Subpart B--Program Requirements
Sec. 653.21 Requirement to establish an anti-drug program.
Each employer shall establish an anti-drug program consistent with
the requirements of this part.
Sec. 653.23 Required elements of an anti-drug testing program.
An anti-drug program shall include the following:
(a) A statement describing the employer's policy on prohibited drug
use in the workplace, including the consequences associated with
prohibited drug use. This policy statement shall include all of the
elements specified in Sec. 653.25. Each employer shall disseminate the
policy consistent with the provisions of Sec. 653.27.
(b) An education and training program which meets the requirements
of Sec. 653.29.
(c) A testing program, as described in Sec. 653.31 that meets the
requirements of this part and part 40 of this title.
(d) Procedures for assessing the covered employee who has a
verified positive drug test result as described in Sec. 653.37.
Sec. 653.25 Policy statement contents.
The policy statement shall be adopted by the local governing board
of the employer or operator, be made available to each covered
employee, and shall include, at a minimum, detailed discussion of:-
(a) The identity of the person designated by the employer to answer
employee questions about the anti-drug program.
(b) The categories of employees who are subject to the provisions
of this part.
(c) Specific information concerning the behavior that is prohibited
by this part.
(d) The specific circumstances under which a covered employee will
be tested for prohibited drugs under the provisions of this part.
(e) The procedures that will be used to test for the presence of
drugs, protect the employee and the integrity of the drug testing
process, safeguard the validity of the test results, and ensure the
test results are attributed to the correct covered employee.
(f) The requirement that a covered employee submit to drug testing
administered in accordance with this part.
(g) A description of the kind of behavior that constitutes a
refusal to take a drug test and a statement that such a refusal
constitutes a verified positive drug test result.
(h) The consequences for a covered employee who has a verified
positive drug test result or refuses to submit to a drug test under
this part, including the mandatory requirements that the covered
employee be removed immediately from his or her safety-sensitive
function and be evaluated by a substance abuse professional.
(i) If the employer implements elements of an anti-drug program
that are in addition to this part (See Sec. 653.31), the employer shall
give each covered employee specific information concerning which
provisions are mandated by this part and which are not.
Sec. 653.27 Requirement to disseminate policy.
Each employer shall provide written notice to every covered
employee and to representatives of employee organizations of the
employer's anti-drug policies and procedures.
Sec. 653.29 Education and training programs.
Each employer shall establish an employee education and training
program for all covered employees, including:
(a) Education. The education component shall include display and
distribution to every covered employee of: informational material and a
community service hot-line telephone number for employee assistance, if
available.
(b) Training--(1) Covered employees. Covered employees must receive
at least 60 minutes of training on the effects and consequences of
prohibited drug use on personal health, safety, and the work
environment, and on the signs and symptoms which may indicate
prohibited drug use.
(2) Supervisors. Supervisors who may make reasonable suspicion
determinations shall receive at least 60 minutes of training on the
physical, behavioral, and performance indicators of probable drug use.
Sec. 653.31 Drug testing.
(a) An employer shall establish a program which provides for
testing for prohibited drugs and drug metabolites in the following
circumstances: pre-employment, post-accident, reasonable suspicion,
random, and return to duty/follow-up, as described in detail in each
case in subpart C of this part.
(b) When administering a drug test, an employer shall ensure that
the following drugs are tested for:
(1) Marijuana;
(2) Cocaine;
(3) Opiates;
(4) Amphetamines; and
(5) Phencyclidine.
Sec. 653.33 Notice requirement.
Before performing a drug test under this part, each employer shall
notify a covered employee that the drug test is required by this part.
No employer shall falsely represent that a test is administered under
this part.
Sec. 653.35 Action when employee has a verified positive drug test
result.
(a) As soon as practicable after receiving notice from the medical
review officer (MRO) that an employee has a verified positive drug test
result, or if an employee refuses to submit to a drug test, the
employer shall require that a covered employee cease performing a
safety-sensitive function.
(b) Before allowing the covered employee to resume performing a
safety-sensitive function, the employer shall ensure that the covered
employee meets the requirements of this part for returning to duty,
including taking a return to duty drug test with a verified negative
result, as required by Sec. 653.49.
Sec. 653.37 Referral, evaluation, and treatment.
(a) A covered employee who has a verified positive drug test result
refuses to submit to a drug test under this part shall be advised by
the employer of the resources available to the covered employee in
evaluating and resolving problems associated with prohibited drug use,
including the names, addresses, and telephone numbers of substance
abuse professionals and counseling and treatment programs.
(b)(1) The employer shall ensure that each covered employee who has
a verified positive drug test result or refuses to take a drug test
shall be evaluated by a substance abuse professional who shall
determine whether the covered employee is in need of assistance in
resolving problems associated with prohibited drug use.
(2) Evaluation and rehabilitation may be provided by the employer,
by a substance abuse professional under contract with the employer, or
by a substance abuse professional not affiliated with the employer. The
choice of substance abuse professional and assignment of costs shall be
made in accordance with employer/employee agreements and employer
policies.
(3) The employer shall ensure that a substance abuse professional
who determines that a covered employee requires assistance in resolving
problems with prohibited drug use does not refer the employee to the
substance abuse professional's private practice from which the
substance abuse professional receives remuneration or to a person or
organization from which the substance abuse professional has a
financial interest. This paragraph does not prohibit a substance abuse
professional from referring an employee for assistance provided
through--
(i) A public agency, such as a State, county, or municipality;
(ii) The employer or a person under contract to provide treatment
for prohibited drug use problems on behalf of the employer;
(iii) The sole source of therapeutically appropriate treatment
under the employee's health insurance program; or
(iv) The sole source of therapeutically appropriate treatment
reasonably accessible to the employee.
(c) An employer shall ensure that, before returning to duty to
perform a safety-sensitive function, a covered employee has complied
with the referral and evaluation provisions of this part and takes a
return to duty drug test with a verified negative result under
Sec. 653.49.
(d) The requirements of this section do not apply to applicants.
Subpart C--Types of Drug Testing
Sec. 653.41 Pre-employment testing.
(a) An employer may not hire an applicant to perform a safety-
sensitive function unless the applicant takes a drug test with a
verified negative result administered under this part.
(b) An employer may not transfer an employee from a nonsafety-
sensitive function to a safety-sensitive function until the employee
takes a drug test with a verified negative result administered under
this part.
(c) If an applicant or employee drug test is canceled, the employer
shall require the employee or applicant to take another pre-employment
drug test.
Sec. 653.43 Reasonable suspicion testing.
(a) An employer shall conduct a drug test when the employer has
reasonable suspicion to believe that the covered employee has used a
prohibited drug.
(b) An employer's determination that reasonable suspicion exists
shall be based on specific, contemporaneous, articulable observations
concerning the appearance, behavior, speech, or body odors of the
covered employee. The required observations must be made by a
supervisor who is trained in detecting the signs and symptoms of drug
use.
(c) An employer shall not permit a direct supervisor of an employee
to serve as the collection site person for a drug test of the employee.
Sec. 653.45 Post-accident testing.
(a)(1) Fatal accidents. As soon as practicable following an
accident involving the loss of human life, an employer shall test each
surviving covered employee on duty in the mass transit vehicle at the
time of the accident. The employer shall also test any other covered
employee whose performance could have contributed to the accident, as
determined by the employer using the best information available at the
time of the decision.-
(2) Nonfatal accidents. (i) As soon as practicable following an
accident not involving the loss of human life, in which the mass
transit vehicle involved is a bus, electric bus, van, or automobile,
the employer shall test each covered employee on duty in the mass
transit vehicle at the time of the accident if that employee has
received a citation under State or local law for a moving traffic
violation arising from the accident. The employer shall also test any
other covered employee whose performance could have contributed to the
accident, as determined by the employer using the best information
available at the time of the decision.
(ii) As soon as practicable following an accident not involving the
loss of human life, in which the mass transit vehicle involved is a
rail car, trolley car, trolley bus, or vessel, the employer shall test
each covered employee on duty in the mass transit vehicle at the time
of the accident unless the employer determines, using the best
information available at the time of the decision, that the covered
employee's performance can be completely discounted as a contributing
factor to the accident. The decision not to administer a test under
this paragraph shall be based on the employer's determination, using
the best available information at the time of the determination, that
the employee's performance could not have contributed to the accident.
The employer shall also test any other covered employee whose
performance could have contributed to the accident, as determined by
the employer using the best information available at the time of the
decision.
(b) An employer shall ensure that a covered employee required to be
tested under this section is tested as soon as practicable and within
32 hours of the accident. A covered employee who is subject to post-
accident testing who fails to remain readily available for such
testing, including notifying the employer or the employer
representative of his or her location if he or she leaves the scene of
the accident prior to submission to such test, may be deemed by the
employer to have refused to submit to testing. -
(c) Nothing in this section shall be construed to require the delay
of necessary medical attention for the injured following an accident or
to prohibit a covered employee from leaving the scene of an accident
for the period necessary to obtain assistance in responding to the
accident or to obtain necessary emergency medical care.
Sec. 653.47 Random testing. --
(a) Each employer shall, at various times, randomly select covered
employees for unannounced drug testing. The selection of covered
employees shall be made by a scientifically valid method, such as a
random-number table or a computer-based random number generator that is
matched with covered employees' Social Security numbers, payroll
identification numbers, or other comparable identifying numbers. -
(b) During each calendar year following the start of the anti-drug
program required by this part, the employer shall meet the following
conditions:
(1) The dates for administering unannounced testing of randomly-
selected covered employees shall be spread reasonably throughout the
calendar year; and
(2) The number of covered employees randomly selected for testing
during the calendar year shall be equal to a minimum annual percentage
rate of 50 percent of the total number of covered employees subject to
drug testing under this part.
(c) Each covered employee shall be in a pool from which random
selection is made. Each covered employee in the pool shall have an
equal chance of selection and shall remain in the pool, whether or not
the covered employee is ever tested.
(d) If an employer conducts random testing through a consortium,
the number of employees to be tested may be calculated for each
individual employer or may be based on the total number of covered
employees covered by the consortium who are subject to random drug
testing at the same minimum annual percentage rate under this part or
any DOT drug testing rule.
Sec. 653.49 Return to duty testing. -
(a) Return to duty. An employer shall ensure that, before returning
to duty to perform a safety-sensitive function, each covered employee
who has refused to submit to a drug test or has a verified positive
drug test result--
(1) Has been evaluated by a substance abuse professional to
determine whether the covered employee has properly followed the
recommendations for action by the substance abuse professional,
including participation in any rehabilitation program;
(2) Has taken a return to duty drug test with a verified negative
result. If a test is canceled, the employer shall require the employee
to take another return to duty drug test.
(3) A substance abuse professional may recommend that the employee
be subject to a return to duty alcohol test with a result indicating an
alcohol concentration of less than 0.02, to be conducted in accordance
with 49 CFR part 40.
(b) Marine employers. Marine employers subject to U.S. Coast Guard
chemical testing regulations shall ensure that each covered employee
who has a verified positive drug test result administered under this
part is evaluated by a Medical Review Officer.
Sec. 653.51 Follow-up testing.
Each employer shall ensure that each covered employee who returns
to duty after a required evaluation made under Sec. 653.37 is subject
to unannounced follow-up drug testing as provided for in
Sec. 653.63(d). The employer may require the employee to take one or
more follow-up alcohol tests, with a result indicating an alcohol
concentration of less than 0.04, as directed by the SAP, to be
performed in accordance with 49 CFR part 40.
Subpart D--Drug Testing Procedures
Sec. 653.61 Compliance with testing procedures requirements.
The drug testing procedures of part 40 of this title apply to
employers covered by this part, unless expressly provided otherwise in
this part.
Sec. 653.63 Substance abuse professional.
(a) An employer's anti-drug program shall have available the
services of a designated substance abuse professional.
(b) The substance abuse professional shall determine whether a
covered employee who has refused to submit to a drug test or has a
verified positive drug test result is in need of assistance in
resolving problems associated with prohibited drug use. The substance
abuse professional then recommends a course of action to the employee.
(c) The substance abuse professional shall determine whether a
covered employee who has refused to submit to a drug test or has a
verified positive drug test result has properly followed the SAP's
recommendations.
(d) The substance abuse professional shall determine the frequency
and duration of follow-up testing for a covered employee. Such employee
shall be required to take a minimum of six follow-up drug tests with
verified negative results during the first 12 months after returning to
duty. After that period of time, the substance abuse professional may
recommend to the employer the frequency and duration of follow-up drug
testing, provided that the follow-up testing period ends 60 months
after the employee returns to duty. In addition, follow-up testing may
include testing for alcohol, as directed by the substance abuse
professional, to be performed in accordance with 49 CFR part 40.
Subpart E--Administrative Requirements
Sec. 653.71 Retention of records. -
(a) General requirement. An employer shall maintain records of its
anti-drug program as provided in this section. The records shall be
maintained in a secure location with controlled access.
(b) Period of retention. In determining compliance with the
retention period requirement, each record shall be maintained for the
specified period of time, measured from the date of the document's or
data's creation. Each employer shall maintain the records in accordance
with the following schedule:
(1) Five years: Records of covered employee verified positive drug
test results, documentation of refusals to take required drug tests,
and covered employee referrals to the SAP, and copies of annual MIS
reports submitted to FTA.
(2) Two years: Records related to the collection process and
employee training.
(3) One year: Records of negative drug test results.
(c) Types of records. The following specific records must be
maintained.
(1) Records related to the collection process:
(i) Collection logbooks, if used.
(ii) Documents relating to the random selection process.
(iii) Documents generated in connection with decisions to
administer reasonable suspicion drug tests.
(iv) Documents generated in connection with decisions on post-
accident drug testing.
(v) MRO documents verifying existence of a medical explanation of
the inability of a covered employee to provide an adequate urine
sample.
(2) Records related to test results:
(i) The employer's copy of the custody and control form.
(ii) Documents related to the refusal of any covered employee to
submit to a drug test required by this part.
(iii) Documents presented by a covered employee to dispute the
result of a drug test administered under this part.
(3) Records related to referral and return to duty and follow-up
testing:
(i) Records pertaining to a determination by a substance abuse
professional concerning a covered employee's need for referral for
assistance in resolving problems associated with drug use.
(ii) Records concerning a covered employee's entry into and
completion of the program of treatment recommended by the substance
abuse professional.
(4) Records related to employee training:
(i) Training materials on drug use awareness, including a copy of
the employer's policy on prohibited drug use.
(ii) Names of covered employees attending training on prohibited
drug use and the dates and times of such training.
(iii) Documentation of training provided to supervisors for the
purpose of qualifying the supervisors to make a determination
concerning the need for drug testing based on reasonable suspicion.
(iv) Certification that any training conducted under this part
complies with the requirements for such training.
(5) Copies of annual MIS reports submitted to FTA.
Sec. 653.73 Reporting of results in a management information system.
(a) Each recipient shall submit to FTA's Office of Safety and
Security by March 15 of each year a report covering the previous
calendar year (January 1 through December 31), which summarizes the
results of its anti-drug program.
(b) Each recipient shall be responsible for ensuring the accuracy
and timeliness of each report submitted by an employer, consortium or
joint enterprise or by a third party service provider acting on the
employer's behalf.
(c) Each report that contains information on verified positive drug
test results shall be submitted on the FTA Drug Testing Management
Information System (MIS) Data Collection Form and shall include the
following informational elements:
(1) Number of FTA covered employees by employee category.
(2) Number of covered employees subject to testing under the anti-
drug regulations of the United States Coast Guard.
(3) Number of specimens collected by type of test (i.e., pre-
employment, periodic, random, etc.) and employee category.
(4) Number of positives verified by a Medical Review Officer (MRO)
by type of test, type of drug, and employee category.
(5) Number of negatives verified by a MRO by type of test and
employee category.
(6) Number of persons denied a position as a covered employee
following a verified positive drug test.
(7) Number of covered employees verified positive by an MRO or who
refused to submit to a drug test, who were returned to duty in covered
positions during the reporting period (having complied with the
recommendations of a substance abuse professional as described in
Sec. 653.37).
(8) Number of employees with tests verified positive by a MRO for
multiple drugs.
(9) Number of covered employees who were administered alcohol and
drug tests at the same time, with both a verified positive drug test
result and an alcohol test result indicating an alcohol concentration
of 0.04 or greater.
(10) Number of covered employees who refused to submit to a random
drug test required under this part.
(11) Number of covered employees who refused to submit to a non-
random drug test required under this part.
(12) Number of covered employees and supervisors who received
training during the reporting period.
(13) Number of fatal and nonfatal accidents which resulted in a
verified positive post-accident drug test.
(14) Number of fatalities resulting from accidents which resulted
in a verified positive post-accident drug test.
(15) Identification of FTA funding source(s).
(d) If all drug test results were negative during the reporting
period, the employer must use the ``EZ form'' (Appendix C). It shall
contain:
(1) Number of FTA covered employees.
(2) Number of covered employees subject to testing under the anti-
drug regulation of the United States Coast Guard.
(3) Number of specimens collected and verified negative by type of
test and employee category.
(4) Number of covered employees verified positive by an MRO or who
refused
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