Prevention of Alcohol Misuse in Transit Operations

[[Page 12298]]

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 654

[Docket No. 92-I]

RIN 2132-AA38

Prevention of Alcohol Misuse in Transit Operations

AGENCY: Federal Transit Administration, DOT.

ACTION: Final rule; technical amendments.

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SUMMARY: The Federal Transit Administration (FTA) is making some minor

and technical amendments to its alcohol rule to correct a citation, add

words that inadvertently had been omitted, and clarify portions of the

preamble discussion of the rule. This rule is intended to clarify the

existing rule.

DATES: This rule is effective March 6, 1995.

FOR FURTHER INFORMATION CONTACT: Nancy M. Zaczek, Attorney for

Legislation/Rulemakings, Office of the Chief Counsel, Federal Transit

Administration, 400 7th Street SW., Washington, DC 20590; 202-366-4011.

Information may also be obtained from Judy Meade or Rhonda Crawley of

the Office of Safety and Security, Federal Transit Administration, same

address; 202-366-2896.

SUPPLEMENTARY INFORMATION: FTA recipients and other interested parties

may access this rule through the FTA's Transit Safety and Security

Bulletin Board using a microcomputer and a modem. The telephone number

for the Bulletin Board is 1-800-231-2061. The Bulletin Board is a user-

friendly, menu-driven system with information accessible seven days a

week, twenty-four hours a day. Once registration is completed,

interested parties may access this and other regulations.

To obtain additional information regarding access to the Bulletin

Board, please contact the Operator, at (617) 494-2108, or leave a

message on the Message Board of the Bulletin Board.

The FTA is making the following technical amendments to its alcohol

rule.

Applicability--Commuter Railroads and CDL Holders

The applicability provision, section 654.3, clarifies which

Department of Transportation (DOT) drug and alcohol testing program

covers Commercial Drivers License (CDL) holders who work for commuter

railroads. Three DOT agencies are involved in this issue: FTA, which

funds commuter railroads; the Federal Railroad Administration (FRA),

which regulates railroads, including commuter railroads; and the

Federal Highway Administration (FHWA), which requires CDL holders to be

tested for prohibited drugs and the misuse of alcohol. Under the FTA's

final rule, to avoid jurisdictional problems, commuter railroads that

receive FTA funds are to comply with FRA's drug and alcohol regulation.

Because the FRA regulation only covers hours-of-service employees,

however, there remains a question as to which agency's drug and alcohol

program covers CDL holders who work for a commuter railroad. This rule

clarifies that FHWA's regulation covers such CDL holders.

We also note that the FRA hours-of-service classification system

does not include the same kinds of workers covered under FTA's rules;

for example, armed security personnel are covered by FTA's rules but

not FRA's. Because FTA in its existing rule has delegated its authority

to require commuter railroads to implement a drug and alcohol testing

program to FRA, commuter railroad workers who are not safety-sensitive

under FRA's rule are not subject to testing, even though they would be

if they were subject to FTA's rules.

Also, section 654.3 is changed to correct a citation error in a

reference to the regulations of the United States Coast Guard. The

citation should read 33 CFR part 95 and 46 CFR parts 4, 5, and 16.

Definitions

The definition of the term ``disabling damage'' is changed to be

consistent with the definition used by the Federal Highway

Administration, and is now defined independently of the term

``accident.''

The definition of ``large operator'' is changed to add the word

``urbanized,'' which inadvertently was omitted. Thus, a large operator

operates primarily in an urbanized area of 200,000 or more in

population.

A parallel change is made to the definition of ``small operator,''

which operates primarily in a nonurbanized area or in an urbanized area

of less than 200,000 in population. These changes are consistent with

the way the Federal Transit Administration administers its grant

programs.

The definition of ``safety-sensitive function'' is changed, at

subsection (4), to clarify that the rule excludes from coverage

maintenance contractors working for recipients or small operators

primarily serving an area of less than 50,000 in population, regardless

of whether they receive section 18 or section 3 funding.

The definition of ``vehicle'' is changed to add, in the category of

``mass transit vehicle,'' certain vehicles used not only for mass

transportation, but also for services ancillary to mass transportation.

The definition of a mass transit vehicle thus now includes not only

buses and vans, but also non-revenue service commercial motor vehicles

and vehicles used by armed security personnel.

Starting Date for Alcohol Testing Programs

Section 654.15 makes a conforming change in the implementation

section of the rule to reflect the addition of the word ``urbanized''

to the definition of large operator.

Post-Accident Testing

Sections 654.33(a)(1), (a)(2)(i), and (a)(2)(ii) are amended to

change the phrase ``on duty in,'' to ``operating.'' The provision, as

drafted, required the testing of any safety-sensitive employee on duty

in a revenue vehicle when an accident occurred. The rule, however, was

not meant to use the same standard for both vehicle operators and other

covered employees who happen to be in the vehicle at the time of the

accident. Thus, the mass transit vehicle operator must be tested if an

accident has occurred and he or she has received a citation from a

State or local law enforcement official. (In a Notice of Proposed

Rulemaking published in the Federal Register on February 6, 1995, at 60

FR 7169, the FTA seeks comment on whether this citation requirement

should be deleted.) We note that to test other covered employees the

employer must determine whether that employee contributed to the

accident, using the best information available at the time of the

decision.

Supervisor Acting as a Breath Alcohol Technician

Section 654.45 is added to include a prohibition against the

supervisor acting as the Breath Alcohol Technician for covered

employees under his or her direct supervision. In the final drug rule,

published on the same day as the final alcohol rule, we prohibited a

supervisor from acting as the collection site person. It was always our

intent for the two rules, which cover the same employers and employees,

to be as similar as possible, and this omission was unintentional. We

now correct that omission. [[Page 12299]]

Random Testing

The preamble discussion of random testing at 59 FR 7546 contained

an error; we stated that ``an employer must include a refusal to submit

to a test as a result of 0.02 or greater.'' The phrase ``0.02 or

greater,'' however, should read ``0.04 or greater.'' The regulatory

text, however, is accurate, and is not changed by this technical

amendment.

Random Testing Rate

Section 654.35(c)(1) is changed to conform the alcohol rule to the

amendment to the drug rule published in the Federal Register on

December 2, 1994, at 59 FR 62218, 62231. Specifically, the

Administrator may decrease the random testing rate from 25 percent to

10 percent if the two initial years of data indicate that the violation

rate for the entire transit industry is less than 0.5 percent. This

means that the Administrator will use two years of data from large

operators, which start testing a year before small operators, and one

year of data for small operators to determine the initial violation

rate for the entire transit industry. This change affects only the

initial two years of the alcohol testing program.

Also, FTA is adding three new paragraphs inadvertently omitted from

its rule, but included in the rules published by the Federal Aviation

Administration, the Federal Railroad Administration, and the Federal

Highway Administration on February 15, 1994, at 59 FR 7391-92, 7464,

and 7509. (To be codified at Appendix J to part 121 (III)(C)(10),

(III)(C)(11)(a), (III)(C)(11)(b); 49 CFR 219.608 (e), (f)(1), and

(f)(2); and 49 CFR 382.305 (j), (k)(1), and (k)(2).) Moreover, FTA made

the same change to its drug rule on December 2, 1994, in a rule

published in the Federal Register at 59 FR 62217, 62231.

These new paragraphs, (j), (k)(1), and (k)(2) address situations in

which a covered employee is subject to the alcohol testing regulations

of more than one Department of Transportation (DOT) agency. Paragraph

(j) directs the employer to apply the random testing rate of the DOT

agency that regulates more than 50 percent of a covered employee's

function.

When an employer has employees regulated by different DOT agencies,

paragraphs (k)(1) and (k)(2) allow an employer to establish separate

pools for employees based on the rate set by the DOT agency regulating

them, or to establish one pool for all its employees, but randomly test

them at the highest minimum rate set by another DOT agency.

Certification of Compliance

On October 12, 1994, the FTA published a Federal Register Notice,

at 59 FR 51793, entitled ``Annual List of Certifications and Assurances

for Federal Transit Administration Grants and Cooperative Agreements.''

In the Notice, FTA compiled a complete listing and the full text of the

certifications and assurances necessary to receive financial assistance

from the Federal Transit Administration. Instead of submitting a

variety of certifications and assurances with each grant application,

the grant applicant and its attorney certify compliance with all of the

certifications and assurances relevant to any and all grants for which

the grant applicant wishes to apply in fiscal year 1995 by signing the

single Signature Page, attached to the Notice, at 59 FR 51813. The

Notice, which will be updated and republished annually for use in

future fiscal years, includes a certification of compliance with the

FTA drug and alcohol testing program. Accordingly, we are deleting as

unnecessary the sample certifications in the rule.

Retention of Records

The preamble discussion of this topic contained an error;

specifically, it stated in the Section-by-Section Analysis, Subpart D,

paragraph A, at 59 FR 7546 that ``[t]he rule provides three separate

record retention periods for different types of records--five years,

three years, and one year.'' Actually, records must be retained for

either five years, two years, or one year. The regulatory text,

however, is accurate, and remains unchanged.

List of Subjects in Part 654

Alcohol testing, Grant programs--transportation, Mass

transportation, Reporting and recordkeeping requirements, Safety,

Transportation.

For the reasons set forth in the preamble, the Federal Transit

Administration amends Title 49, Code of Federal Regulations, part 654

as follows:

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

1. The authority for part 654 continues to read as follows:

Authority: 49 U.S.C. 5331; 49 CFR 1.51.

Sec. 654.3 [Amended]

1a. Paragraph (b) of Sec. 654.3 is amended by removing ``part 219''

and adding in its place ``parts 219 and 382, as appropriate''.

2. The note to Sec. 654.3 is amended by removing the phrase ``and

6'' and adding in its place the phrase ``and 16''.

Sec. 654.7 [Amended]

3. In Sec. 654.7, the definition of accident is amended in

paragraph (3) by removing the period at the end of the first sentence

and adding a semicolon; and by removing the remaining text in paragraph

(3).

4. The definition of large operator is amended by adding the word

``urbanized'' after the word ``an'' and before the word ``area''.

5. The definition of safety-sensitive function is amended in

paragraph (4) by adding the words ``section 3 funding and is in an area

of less than 50,000 in population or'' after the word ``receives'' and

before the word ``section''.

6. The definition of small operator is amended by removing the

words ``in an area'' and adding in their place the words ``in a

nonurbanized area or in an urbanized area.''

7. The definition of vehicle is amended by adding the words ``or

for ancillary services'' after the word ``transportation'' and before

the period.

8. In Sec. 654.7 a new definition following the definition of

``covered employee'' is added as follows:

Sec. 654.7 Definitions.

* * * * *

Disabling damage means damage which precludes departure of a motor

vehicle from the scene of the accident in its usual manner in daylight

after simple repairs.

(1) Inclusion. Damage to motor vehicles that could have been

driven, but would have been further damaged if so driven.

(2) Exclusions.

(i) Damage which can be remedied temporarily at the scene of the

accident without special tools or parts.

(ii) Tire disablement without other damage even if no spare tire is

available.

(iii) Headlamp or taillight damage.

(iv) Damage to turn signals, horn, or windshield wipers which makes

them inoperative.

Sec. 654.15 [Amended]

9. Section 654.15(a) is amended by adding the word ``primarily''

after the word ``operating'' and before the word ``in'' and by adding

the word ``urbanized'' after the word ``an'' and before the word

``area''.

10. Section 654.15(b) is amended by removing the words ``operating

in an area'' and adding in their place the words ``operating primarily

in a nonurbanized area or in an urbanized area''. [[Page 12300]]

Sec. 654.33 [Amended]

11. Section 654.33(a)(1) is amended by removing the phrase ``on

duty in'' and adding the word ``operating'' in its place.

12. Section 654.33(a)(2)(i) is amended by removing the phrase ``on

duty in'' and adding the word ``operating'' in its place.

13. Section 654.33(a)(2)(ii) is amended by removing the phrase ``on

duty in'' and adding the word ``operating'' in its place.

14. In Sec. 654.35, paragraph (c)(1) is revised and paragraphs (j)

and (k) are added to read as follows:

Sec. 654.35 Random testing.

* * * * *

(c)(1) When the minimum annual percentage rate for random alcohol

testing is 25 percent or more, the Administrator may lower this rate to

10 percent of all covered employees if the Administrator determines

that the data received under the reporting requirements of Sec. 654.53

for two consecutive calendar years indicate that the violation rate is

less than 0.5 percent. However, after the initial two years of testing

by large transit operators and the initial first year of testing by

small transit operators, the Administrator may lower the rate the

following calendar year, if the combined violation rate is less than

0.5 percent and is in the interests of safety.

* * * * *

(j) If a given covered employee is subject to random alcohol

testing under the alcohol testing rules of more than one DOT agency for

the same employer, the covered employee shall be subject to random

alcohol testing at the minimum annual percentage rate established for

the calendar year by the DOT agency regulating more than 50 percent of

the covered employee's function.

(k) If an employer is required to conduct random alcohol testing

under the alcohol testing rules of more than one DOT agency, the

employer may--

(1) Establish separate pools for random selection, with each pool

containing the DOT-covered employees who are subject to testing at the

same required minimum annual percentage rate; or

(2) Randomly select such employees for testing at the highest

minimum annual percentage rate established for the calendar year by any

DOT agency to which the employer is subject.

15. Section 654.45 is added to subpart C to read as follows:

Sec. 654.45 Supervisor acting as Breath Alcohol Technician.

An employer shall not permit a direct supervisor of an employee to

serve as the breath alcohol technician for an alcohol test of the

employee.

Appendix A to Part 654--[Removed and Reserved]

16. Appendix A to Part 654--Sample Certifications of Compliance is

removed and reserved.

Issued: February 27, 1995.

Gordon J. Linton,

Administrator.

[FR Doc. 95-5178 Filed 3-3-95; 8:45 am]

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