[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2039]


[[Page Unknown]]

[Federal Register: February 15, 1994]


_______________________________________________________________________

Part VIII





Department of Transportation





_______________________________________________________________________



Federal Transit Administration



_______________________________________________________________________



49 CFR Parts 653 and 654



Prevention of Alcohol and Prohibited Drug Misuse in Transit Operations; 
Rules
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.

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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 alcohol 
misuse prevention program, which is intended to increase the safety of 
mass transit operations.

EFFECTIVE DATE: March 17, 1994.

FOR FURTHER INFORMATION CONTACT: For program issues, Judy Meade, Office 
of Safety and Security, Federal Transit Administration, DOT, 400 
Seventh St., SW., room 6432, Washington DC 20590. Telephone: 202-366-
2896. For legal questions, Nancy Zaczek or Daniel Duff, Office of the 
Chief Counsel, Federal Transit Administration, DOT, 400 Seventh St., 
SW., room 9316, Washington DC 20590. Telephone: 202-366-4011 (voice); 
202-366-2979 (TDD). Copies of the regulation are available in 
alternative formats upon request.

SUPPLEMENTARY INFORMATION: Because of the length of this preamble, the 
following outline of the rule's introductory material is provided.

I. How to read this rule.
II. Discussion
    A. Background
    B. The Omnibus Transportation Employee Testing Act of 1991
    C. The Anti-Drug Rule
    D. Study of alcohol use in the transit industry
    E. Summary of the Final Rule
    F. Overview of the Comments
III. Discussion of the Comments
    A. Multi-modal jurisdiction
    B. Accident
    C. Safety-sensitive function
    D. Covered employee/contractor
    E. Pre-employment/pre-duty testing
    F. Reasonable suspicion testing
    G. Random testing/random testing rate
    H. Post-accident testing
    I. Return to duty/follow-up testing
    J. Treatment
    K. Training
    L. Management Information System (MIS) reporting requirement
    M. Implementation date
    N. Combined drug and alcohol rules
    P. Indian Tribal Governments
    Q. Waivers
III. Section-by-Section Analysis
IV. Americans with Disabilities Act of 1990
V. Economic Analysis
VI. Regulatory Process Matters

I. How To Read This Rule

    This rule has three components: Part 654, ``Prevention of Alcohol 
Misuse in Transit Operations''; the common preamble by the Office of 
the Secretary (OST), ``Limitation on Alcohol Use By Transportation 
Workers'' published elsewhere in today's Federal Register; and Part 40, 
``Procedures for Transportation Workplace Drug and Alcohol Testing 
programs.'' This document is part 654, the Federal Transit 
Administration's (FTA) alcohol testing regulations for recipients of 
certain kinds of Federal funding. This preamble to part 654 briefly 
explains those issues unique to the transit industry and is followed by 
the text of the substantive regulation. The common preamble, on the 
other hand, discusses the issues and comments common to all five DOT 
agencies issuing final alcohol rules today. Finally, the testing 
procedures for administering alcohol and drug tests are set forth in 
part 40 and the issues concerning it are discussed in its preamble.

II. Discussion

A. Background

    On December 15, 1992, the Federal Transit Administration (FTA) 
published a Notice of Proposed Rulemaking (NPRM) in the Federal 
Register at 57 FR 59646, entitled ``Prevention of Alcohol Misuse in 
Transit Operations.'' The NPRM invited comment from the public on the 
proposed rule, which would require certain recipients of Federal 
transit funding to have a comprehensive alcohol misuse prevention 
program. FTA provided a 120-day comment period and received over 125 
comments on the regulation proposed in the NPRM.
    In addition to receiving written comments on the NPRM, in 1993 FTA 
held three public hearings on the rule: on February 25-26, in 
Washington DC; on March 1-2, in Chicago, Illinois; and on March 4-5, in 
San Francisco, California. Each hearing was recorded by a court 
reporter; the transcript of each hearing and any statements or other 
material submitted to the hearing officer during the hearings are 
contained in the public docket to this rule and were considered in 
developing this final rule.

B. The Omnibus Transportation Employee Testing Act of 1991

    The Omnibus Transportation Employee Testing Act of 1991 (the Act) 
(Title V, Pub. L. 102-143, October 28, 1991) mandates some operating 
administrations within the Department of Transportation, including the 
FTA, to issue regulations on the misuse of alcohol by safety-sensitive 
employees. While there is a complete discussion of the various 
provisions of the Act in the Department-wide preamble found elsewhere 
in today's issue of the Federal Register, the following discussion 
highlights provisions of the Act concerning the FTA.
    The Federal Transit Administration must issue regulations requiring 
recipients of funds under section 3, 9, or 18 of the Federal Transit 
Act, as amended (FT Act), or section 103(e)(4) of title 23 of the 
United States Code to test safety-sensitive employees for the use of 
alcohol in violation of law or Federal regulation. Because certain 
recipients of FTA funds are regulated by the Federal Railroad 
Administration (FRA) or the Federal Highway Administration (FHWA), the 
Act permits such recipients to be subject to the alcohol misuse 
regulations of those agencies.
    Compliance with FTA's rule is a condition of the receipt of Federal 
transit funding. The Act authorizes FTA to withhold that funding if a 
recipient is not in compliance with FTA's rule or, as appropriate, the 
alcohol misuse rules of FRA or FHWA . Specifically, the Act authorizes 
FTA to withhold Federal funding under section 3, 9, or 18 of the FT 
Act, or section 103(e)(4) of title 23 of the U.S. Code.
    The Act directs the FTA to require four kinds of alcohol testing: 
pre-employment, reasonable suspicion, random, and post accident, and 
permits FTA to require periodic alcohol testing. The Act further 
directs FTA to require a post-accident test when there has been a loss 
of human life.
    The Act authorizes the testing only of employees who perform 
safety-sensitive functions, but does not define what activities 
constitute a safety-sensitive function, specifically authorizing the 
agency to make that determination.
    The Act directs FTA to require its recipients to test safety-
sensitive employees for the use of alcohol in violation of Federal law 
or regulation (alcohol misuse) and in so doing to safeguard the privacy 
of safety-sensitive employees to the maximum extent practicable. It 
also directs that all tests which indicate the misuse of alcohol be 
confirmed by a scientifically recognized method of testing capable of 
providing quantitative data regarding alcohol.
    If a safety-sensitive employee is found to have used alcohol in 
violation of Federal law or regulation, the Act directs FTA to provide 
that person with an opportunity for evaluation and treatment. Also, the 
Act permits FTA, as appropriate, to permit the disqualification or 
dismissal of any safety-sensitive employee who has used alcohol in 
violation of Federal law or regulation.
    In providing this regulatory authority, the Act authorizes the FTA 
to preempt State or local laws, rules, regulations, ordinances, 
standards, or orders inconsistent with this rule, except for certain 
provisions of State criminal law which impose sanctions for reckless 
conduct leading to actual loss of life, injury, or property damage.

C. The Anti-drug Rule

    The Federal Transit Administration also is publishing its final 
anti-drug program rule elsewhere in today's issue of the Federal 
Register; the two rules will be implemented on the same dates.

D. Study of Alcohol Use in the Transit Industry. In 1991, FTA's Office 
of Safety and Security conducted a study to determine the extent of 
drug and alcohol use in the transit industry. The study's findings 
analyze the results of two surveys designed to gather information on 
substance abuse policies and programs as well as drug and alcohol use 
patterns in the transit industry. Of the two surveys, one was completed 
by transit system managers and the other by safety-sensitive transit 
employees. (See ``Substance Abuse in the Transit Industry'', Rept. No. 
DC-90-7021; November, 1991.)

    The agency survey sought information on substance abuse program 
policies and procedures, test results indicating drug or alcohol use 
during calendar year 1990, disciplinary procedures, employee training, 
and substance related accident data. The survey was mailed to four 
hundred transit systems. Three hundred and six systems comprise the 
agency data base.
    The employee survey was given to 1,975 safety-sensitive employees 
at nine randomly selected transit systems separated into three groups 
based on annual ridership. The employee questionnaire focused solely on 
personal use of drugs and alcohol; to a large extent the questions were 
standardized to facilitate comparison with a National Institute on Drug 
Abuse (NIDA) Household Survey.
    The study was designed to guarantee respondent confidentiality for 
both the agency and employee surveys. Since both surveys were 
voluntary, no data were collected from any system or employee who did 
not consent to participate.
    The following are some key findings from the surveys about alcohol 
use:
     Of the 306 systems in the data base, 78 percent conduct 
some type of drug testing and 58 percent conduct alcohol testing. When 
asked which substance was most prevalently abused by the workforce, 75 
percent of the agencies identified alcohol.
     The personal use data provided in the 1988 and 1990 NIDA 
household surveys provide a benchmark for comparisons of the transit 
industry results with those of the general population. Those results 
indicate that self-reported alcohol use by transit employees was only 
slightly lower than reported use by the general population.
     About six percent of the safety-sensitive employees 
reported using alcohol within five hours before reporting to duty or 
during duty hours.
     Most of these duty-related drinkers were also high-volume 
drinkers of six to ten or more drinks each occasion.
     The positive alcohol rate for vehicle and equipment 
maintenance personnel is 3.7 percent, twice that for vehicle operators. 
Dispatchers also have a positive alcohol rate twice that of vehicle 
operators.
    Based on the study's findings, the statutorily mandated testing for 
substance abuse is timely and well-founded. This rulemaking should aid 
in the control of alcohol misuse in the transit industry.

E. Summary of the Final Rule

    This rule applies to recipients of funds under section 3, 9, or 18 
of the FT Act, or section 103(e)(4) of title 23 of the United States 
Code. It requires each employer to establish and conduct an alcohol 
misuse prevention program in which safety-sensitive employees are 
tested for the misuse of alcohol and supervisors are trained to 
recognize the signs and symptoms of alcohol misuse.
    The rule requires the use of testing procedures found in Part 40 of 
title 49 of the Code of Federal Regulations.
    The rule establishes a prohibited alcohol concentration level of 
0.04 but also establishes another alcohol concentration range, 0.02 or 
greater but less than 0.04, with special ramifications attached to it.
    The regulation specifies that employers may not allow safety-
sensitive employees to consume alcohol under certain circumstances: (1) 
Four hours before performing a safety-sensitive function; (2) while 
performing a safety-sensitive function; (3) after a fatal accident 
unless the employee has been tested, or eight hours have elapsed, 
whichever occurs first; or (4) after a nonfatal accident unless the 
employee's involvement can be completely discounted as a contributing 
factor to the accident, the employee has been tested, or eight hours 
has elapsed. The rule requires testing in the following situations:
    1. Pre-employment (including transfer to a safety-sensitive 
position within the organization);
    2. Reasonable suspicion;
    3. Random;
    4. Post-accident; and
    5. Return to duty/follow-up.
    The rule requires breath testing for all tests with an evidential 
breath testing device (EBT), which is a device listed on the National 
Highway Traffic Safety Administration's (NHTSA) Conforming Product List 
(CPL).
    The rule requires both a screening and a confirmation test. An 
employer may take action based only on the results of the confirmation 
test.
    As noted above, the rule establishes a prohibited alcohol 
concentration level of 0.04. If a sample from an employee on a 
confirmation alcohol test measures 0.04 or greater, the covered 
employee must be removed from his or her safety-sensitive position, be 
told about educational and treatment programs available, and be 
evaluated by a substance abuse professional to determine whether the 
employee has an alcohol problem. The rule does not address the issue of 
who should pay for the employee's treatment, which is a local issue.
    If, however, the sample tests at 0.02 or greater but less than 
0.04, the covered employee must be removed from his safety-sensitive 
position. The employer may, after some period of time, retest the 
employee to ensure that his alcohol concentration level is less than 
0.02 and then permit him to resume his safety-sensitive position. If 
the employer does not retest the employee, the employer must remove him 
from his safety-sensitive position for at least eight hours. If an 
employer elects to remove the employee for eight hours, the employer is 
not required subsequently to administer an alcohol test before the 
employee resumes performing a safety-sensitive function unless the 
employee exhibits signs of alcohol misuse when he returns to work.
    The rule applies to any entity that receives certain Federal 
funding from the FTA. Such an entity, called a recipient, must certify 
to the FTA that it will carry out the requirements of this part. Not 
all such recipients provide mass transit services directly, relying 
instead upon other public or private entities to provide such services 
in whole or in part. In these cases, the direct recipient of FTA funds 
is legally responsible to the FTA for assuring that any entity 
operating on its behalf is in compliance with the alcohol testing rule.
    Compliance with the rule is a condition of Federal assistance. 
Failure of a recipient to comply with the rule--either in its own 
operations or in those of an entity operating on its behalf--will 
result in the suspension of Federal transit funding to the recipient.
    Because, as noted above, a recipient may not always directly carry 
out mass transit services, the rule uses ``operator'' or ``employer'' 
to describe those who actually may be providing transit service and 
therefore must comply with the alcohol testing program, but under the 
rule it is always the direct recipient of FTA funds that legally is 
responsible to FTA for complying with the rule.

F. Overview of the Comments

    The FTA received 126 comments in response to the NPRM. FTA 
considered all comments filed in a timely manner as well as all 
statements and material presented at the public hearings on the rule. 
The breakdown among commenter categories is as follows: 

Transit operators (public and private)..............................  45
Cities and counties.................................................   8
State DOTs..........................................................  22
Labor unions........................................................   6
Trade associations..................................................   7
Individual citizens.................................................   2
Nonprofit organizations/special transit providers...................  16
State governments...................................................   4
Public Utility......................................................   1
Member of Congress..................................................   1
Private business....................................................   1
Others..............................................................   6
                                                                        

    Many commenters addressed issues common to all of the DOT final 
alcohol rules published today, including what alcohol concentration 
level should be prohibited; how alcohol should be defined; or what 
conduct should constitute a refusal to submit to a test. All such 
general issues are addressed in the common preamble published elsewhere 
in today's Federal Register. Other commenters addressed issues unique 
to the transit industry, such as whether volunteer drivers should be 
subject to the rule, the applicability of the regulation to providers 
of transportation paid with publicly subsidized vouchers or scrip 
(user-side subsidies), or whether the rule applies to Indian tribal 
governments or to section 16(b)(2) recipients. All of the major FTA 
issues addressed by the commenters are discussed in Section III below.

III. Discussion of the Comments

A. Multi-modal Jurisdiction

    Because many FTA recipients operate a variety of different mass 
transit services--such as bus, rapid rail, commuter rail, or ferry boat 
services--they may be regulated by the FTA and by another DOT agency or 
agencies, such as the Federal Railroad Administration (FRA), the 
Federal Highway Administration (FHWA), or the United States Coast Guard 
(Coast Guard). In addition, the Act authorized FHWA, for the first 
time, to regulate intrastate Commercial Driver's License (CDL) holders, 
which include many transit employees. To limit the alcohol rules with 
which such recipients would have to comply, the NPRM discussed a 
proposal under which (1) FRA's alcohol misuse regulation would apply to 
FTA recipients that operate railroads, including the recipient's 
safety-sensitive employees; (2) FTA 's alcohol misuse program, not 
FHWA's, would apply to recipients who employ or use the services of 
safety-sensitive employees who hold a CDL, but the individual CDL 
holder otherwise would remain subject to FHWA's implementation of the 
Commercial Motor Vehicle Safety Act of 1986; and (3) both FTA's and 
Coast Guard's alcohol misuse programs would apply to recipients 
operating vessels, and the Coast Guard would continue to regulate the 
individual safety-sensitive employee (vessel crew member) by pursuing 
licensing actions or other punitive measures.
    FTA received several comments concerning the multi-modal 
jurisdictional issue suggesting a rather significant change to the 
FTA's approach to this rulemaking. Several commenters suggested that 
DOT should issue one regulation covering all entities regulated by any 
DOT agency. In contrast, other commenters suggested that FTA and FHWA 
should issue a joint regulation or issue two separate regulations using 
identical language.
    FTA Response. FTA is sympathetic to the concerns of recipients 
regulated by more than one DOT agency alcohol testing rule, some of 
whom proposed a single regulation. As a practical matter, however, an 
agency-wide DOT alcohol rule would be difficult to implement because of 
the different characteristics of the various communities each agency 
regulates. Nevertheless, FTA addresses the multi-jurisdicitional issue 
by clarifying the jurisdiction of FTA, FRA, FHWA, and Coast Guard over 
transit entities. In this regard, we have adopted the proposal in the 
NPRM discussed above.

B. Accident

    The vast majority of comments concerning this definition focused on 
incidents involving only property damage; specifically, how the 
seriousness of these incidents should be measured, thus justifying the 
administration of an alcohol test. In the NPRM we had proposed a dollar 
measurement, whereby an accident was any incident resulting in at least 
$1,000 in total property damage.
    Most commenters addressed the dollar amount proposed in the NPRM 
and stated that $1,000 was too low a threshold. Some of these 
commenters proposed their own method of calculating a dollar threshold 
such as a measurement based on a vehicle's gross vehicle weight--the 
greater the weight the higher the property damage threshold.
    Other commenters objected to the use of a dollar threshold to 
measure the seriousness of incidents involving only damage to property. 
These commenters urged us to adopt an objective measure of property 
damage such as FHWA's definition of accident. FHWA defines an accident 
involving only property damage as an incident that so disables the 
vehicle that it must be towed away from the scene.
    Another commenter objected to the use of dollar amounts and 
requested that we adopt a reasonable cause standard.
    Other commenters addressed the overall definition of accident. In 
the NPRM we had limited the definition to an incident involving a 
revenue service vehicle, and several commenters objected to this 
limitation, proposing instead that we include any incident involving a 
nonrevenue service vehicle as well.
    FTA Response. FTA has changed the definition of ``accident'' in 
such a way that it is broadened in some respects, and narrowed in 
others. In particular, FTA has broadened the definition in the final 
rule to include occurrences involving nonrevenue service vehicles 
operated by a holder of a CDL. We recognize that this decision falls 
short of the recommendation proposed by some commenters favoring the 
inclusion of all occurrences involving nonrevenue service vehicles, but 
it is based on another consideration, avoiding overlapping 
jurisdictions of FTA and FHWA. Ordinarily, FHWA would regulate CDL 
holders as well as their employers. This new coverage in our final rule 
is consistent with the agreement between FTA and FHWA that FTA's 
alcohol misuse program applies to the transit employers of CDL holders.
    FTA has further modified the proposed definition of ``accident'' to 
distinguish the situations of different kinds of mass transit vehicles. 
Many mass transit vehicles, such as buses and vans, are passenger-
carrying motor vehicles. FTA believes that it is sensible to use a 
definition of ``accident'' that is consistent with FHWA's for such 
vehicles. Therefore, we are adopting a provision paralleling FHWA's 
definition of ``accident'' (in 49 CFR 390.5). The definition states 
that an ``accident'' occurs when a vehicle (whether a mass transit 
vehicle or another vehicle, such as a private automobile) suffers 
disabling damage and is towed away from the scene of the ``accident.'' 
This provision eliminates the subjectivity inherent in basing a 
definition on estimates of property damage.
    For other vehicles--light or rapid rail cars, ferry boats, trolley 
cars and buses, etc.--we also believe it is best to eliminate a 
property damage-based standard. Instead, the final rule provides that 
if the mass transit vehicle is removed from revenue service as the 
result of the occurrence, an ``accident'' is deemed to take place. FTA 
believes that the operating practices of employers typically result in 
at least the temporary removal from revenue service of vehicles that 
have been involved in all but the most minor of mishaps.
    Of course, any occurrence in which someone is killed, or injured 
sufficiently to require medical treatment away from the accident scene, 
is an ``accident'' for purposes of this rule, regardless of the type of 
transit vehicle involved.
    We have further narrowed the definition of accident by deleting the 
reference to reportable accidents. In the NPRM we proposed that any 
occurrence required to be reported to FRA, FHWA, or the Coast Guard 
would constitute an accident, but the final rule uses only the criteria 
discussed above.

C. Safety-sensitive Function

    Most commenters addressed the definition of ``safety-sensitive'' 
function, one of the most important definitions in the rule. Because 
the proposed definition had a list of functional categories, most 
commenters objected either to the inclusion or exclusion of a 
particular category. Some commenters, however, merely sought 
clarification of the categories in the NPRM.
    Including those employees who ``maintain a revenue service 
vehicle'' in the definition particularly concerned several commenters. 
While most commenters understood that this category included mechanics, 
some thought that it covered workers who clean rather than repair 
buses, rail cars, and other mass transit facilities. The remaining 
commenters made specific recommendations concerning mechanics, some 
arguing that we should exclude all mechanics, with others stating that 
we should exclude only those working under contract for section 18 
rural operators. Yet others suggested that we should include only those 
mechanics working for large transit operators.
    Commenters objected to only one other safety-sensitive category, 
``controlling the movement of revenue service vehicles,'' the category 
which includes dispatchers. These commenters contend that dispatchers 
do not perform a safety-sensitive function.
    Although we did not include any categories involving the 
construction, design, or manufacture of revenue service vehicles or 
other mass transit equipment or facilities, several commenters 
suggested that we specifically exclude them from the definition. 
Without this specific exclusion they believe there may be some 
instances in which such workers might be considered to be performing a 
safety-sensitive function.
    Other commenters recommended that we add other employee categories 
to the definition, including police and other security personnel, and 
mechanics who repair nonrevenue service vehicles.
    Finally, some commenters sought clarification of the definition: 
whether it included volunteers and CDLs holders, and on the meaning of 
``directly supervising an employee who is performing a safety-sensitive 
function.''
    FTA Response. We have made several changes to the definition of 
``safety-sensitive employee.'' Before describing those changes, 
however, we first explain why we proposed a definition based on 
function rather than titles. Because each transit system uses its own 
job classification categories, we wanted to avoid specifying particular 
job titles. Instead, we concluded that four job functions were critical 
to safety, and in the NPRM identified operating, maintaining, and 
controlling the movement of vehicles as those functions critical to the 
safety of the traveling public, and added a fourth category, first-line 
supervisors of anyone operating, maintaining, or controlling the 
movement of the vehicle. The final rule adopts these categories, with 
some changes.
    Now a discussion of the changes made. Most notably, we have created 
two new categories of ``safety-sensitive functions'': The carrying of a 
firearm for security purposes, and the operation of a nonrevenue 
service vehicle by a CDL holder. We include firearm-bearing police and 
security personnel because of the sensitivity of their position and the 
danger to the public should they be under the influence of alcohol.
    As discussed above, FHWA regulates CDL holders, both interstate and 
intrastate, and their employers. FTA's relationship is with its 
recipients, many of whom employ CDL holders. To avoid a jurisdictional 
conflict, FTA and FHWA have agreed that FTA's alcohol misuse rule will 
apply to transit entities that employ or use the services of CDL 
holders, regardless of the kind of vehicle they operate.
    We have also reduced the scope of the definition somewhat. While we 
proposed in the NPRM to include first-line supervisors of safety-
sensitive employees, the final rule limits that category by covering 
only supervisors whose responsibilities include the performance of a 
safety-sensitive function. For instance, if a supervisor's job 
description requires her to drive a vehicle, she would be covered, but 
if it did not, she would not.
    Further, in response to comments, we have excluded from the scope 
of the rule contract mechanics for any entity receiving section 18 
funds.
    Regarding the recommendation specifically to exclude construction, 
design, and manufacturing personnel, we believe it is unnecessary to do 
so because the list of categories in the definition is exclusive. Any 
functional category--such as construction or design or manufacturing--
not in the definition is not subject to the rule.
    Finally, some clarification on the issue of safety-sensitive 
employees. Volunteers are covered by the rule if they perform any 
safety-sensitive function. Coverage under the rule should not be based 
on whether an individual holds a paying position, but on whether that 
individual is in a position to affect the safety of the transit-riding 
public. The final rule definition of covered employee thus specifically 
includes volunteers.
    Another ambiguity mentioned by several commenters concerns the 
maintenance category, which several commenters believed would include 
workers who clean rather than repair transit equipment. We do not mean 
to cover such workers and emphasize that only mechanics who repair 
vehicles or who perform routine maintenance are the types of 
maintenance workers covered by the rule.

D. Covered Employee/Contractor

    In the NPRM the definition of covered employee included three 
general categories of safety-sensitive employees--those directly 
employed by an employer, those employed by a contractor, and applicants 
for a safety-sensitive position. Most comments about this definition 
pertained to the coverage of contractors in the NPRM which included any 
person or organization providing services or performing work consistent 
with a specific understanding or arrangement, which could be a written 
contract or an informal arrangement reflecting an ongoing relationship 
between the parties.
    Many commenters objected to the inclusion of contractors within the 
scope of the rule, believing that employers should not be accountable 
for a contractor's compliance with the rule because employers have 
little or no control over contractors or their employees.
    While other commenters did not specifically object to the inclusion 
of contractors, they did object to the scope of the definition of 
contractor and recommended that it be defined to include only those who 
perform work or provide service under a formal written agreement.
    Other commenters sought to exclude contractors in rural areas 
contending that many simply would refuse to do business with the 
recipient rather than submit to an alcohol testing program. The 
remaining commenters requested that we exclude only contract mechanics 
from the definition.
    FTA Response. In response to comments, we have made a number of 
changes to the wording of this safety-sensitive function, although the 
basic concepts in the NPRM remain unchanged.
    The final rule includes direct employees, contractors and their 
employees, and applicants under the definition, but reflects the 
following changes. First, we specifically include volunteers in the 
definition because, as noted above, we define ``safety-sensitive'' 
functionally and look only to the function that a person performs, not 
whether they receive pay for their work.
    Second, while many commenters objected to including contractors who 
perform safety-sensitive functions, we have for the most part continued 
to include them in light of legislative history on this issue. The 
following was said during the debate on the bill:


    Drug and alcohol-testing requirements must not be circumvented 
through contracting out of work.
    Safety-sensitive employees of recipients of the Federal transit 
grant money identified in the bill, and those safety-sensitive 
employees working for contractors of such recipients must be covered 
exactly to the same extent and in the same fashion. I know that I 
speak for all conferees when I say that we will not tolerate a 
situation where employees performing substantially the same safety-
sensitive function are covered or not covered depending on whether 
they work directly for a public authority or an outside contractor. 
137 Cong Rec. S14766 (daily ed. Oct. 16, 1991.)(Statement of Sen. 
D'Amato).


    On the other hand, we are sympathetic to the persuasive arguments 
of rural operators on this issue, and specifically exclude from 
coverage under the rule contract mechanics who perform work or provide 
services for section 18 rural recipients. We believe that the potential 
cost and hardship of including such contractors outweighs any benefits 
including them might bring, since so many rural operators believe that 
they simply would be unable to get any outside servicing if providers 
of that service were subject to this rule.

E. Pre-employment/Pre-duty Testing

    Although the NPRM included the pre-employment/pre-duty tests within 
one provision, in fact they apply to different types of workers-
applicants in one instance, and transferees from a nonsafety-sensitive 
position to a safety-sensitive position in the other. Nevertheless, 
both applicants and transferees must take an alcohol test indicating an 
alcohol concentration level less than 0.04 before they can perform a 
safety-sensitive function for the first time. Hence, the NPRM would 
allow an employer to hire someone who has taken an alcohol test with a 
result of 0.04 or greater so long as that individual is retested and 
has a result less than 0.04 before he or she performs a safety-
sensitive function. Under the notice provision, the NPRM required 
applicants and transferees to be notified that they must submit to an 
alcohol test. Moreover, a pre-employment alcohol test could be waived 
by the employer, which distinguishes the alcohol NPRM from the anti-
drug NPRM.
    Commenters focused on these issues. Specifically, commenters 
requested that we add a notification requirement to the pre-employment/
pre-duty testing provision of the final rule. On the other issue, 
commenters stated that employers should not be able to accept the 
results of an alcohol test administered under the requirements of 
another DOT agency.
    FTA Response. In the NPRM we did require an employer to notify an 
applicant that he or she would be required to submit to an alcohol 
test. We have made no changes to this requirement in the final rule.
    We have, however, changed the language in the rule which ensures 
that the employer is aware that it has the discretion to waive a pre-
employment alcohol test in one limited circumstance when the employee 
has been tested within the previous six months under the rules of 
another DOT agency. This is not a change from the NPRM, rather it is a 
clarification.
    We have made another change in response to commenters who were 
confused by the term pre-duty testing and assumed that it meant that an 
employee must be tested every time they were about to perform a safety-
sensitive function. This is not the case. We meant to apply that 
provision to transferees from a nonsafety-sensitive position to a 
safety-sensitive position. To clarify our intent we have deleted the 
phrase ``pre-duty'' (in the context of pre-employment alcohol testing) 
from the final rule.

F. Reasonable Suspicion Testing

    Commenters responding to this general area raised numerous issues. 
Before discussing those issues, however, we first briefly summarize the 
reasonable suspicion testing provision as it appeared in the NPRM.
    Reasonable suspicion testing is specifically required by the Act, 
and the NPRM proposed authorizing an employer to conduct a test when it 
believes the employee is exhibiting certain characteristics of alcohol 
misuse. The NPRM never identifies or defines those characteristics, but 
authorizes an employer to require a reasonable suspicion alcohol test 
on the basis of specific, contemporaneous, articulable observations 
concerning the appearance and behavior of the covered employee, which 
characterize alcohol misuse.
    Moreover, those observations must be made by a supervisor trained 
in detecting the symptoms of alcohol misuse. The NPRM specifically 
required that a supervisor receive one hour of training, which must 
include information about the manifestations and behavioral 
characteristics indicating alcohol misuse.
    Commenters took a number of positions on this issue. Some wanted 
only one supervisor to make the reasonable suspicion determination, 
others wanted two. Some believed that the test could be based on the 
observations of a third party, such as a transit passenger.
    Commenters also took different positions on the amount of time a 
supervisor should be trained, although most thought that one hour was 
not enough time to adequately train a supervisor. Some commenters 
suggested four hours of training, others suggested four hours of 
combined alcohol and drug training, and yet another suggested five to 
ten hours of training with the additional requirement of a proficiency 
certification.
    Many commenters suggested that the language of the reasonable 
suspicion provision be broadened to include other factors in the 
determination. For instance, some suggested that employers be allowed 
to review an employee's attendance records for absenteeism and 
tardiness. Others suggested that an employer be allowed to examine 
other records indicating whether the employee had any moving traffic 
violations, occupational injuries, or operating rule violations. And 
others suggested that an employer be able to look at the pattern of the 
employee's conduct both on and off the job.
    Lastly, the commenters discussed the matter of whether there should 
be written documentation of a reasonable suspicion determination. The 
NPRM did not require written documentation, but stated that any 
document generated as a result of a reasonable suspicion determination 
must be maintained for a year. Several commenters recommended that a 
written determination be required, with one suggesting that a checklist 
also be required. One commenter recommended that a second supervisor 
concur in the written determination before a reasonable suspicion test 
could be conducted. Another commenter suggested that written 
documentation be required only if the employee tested at 0.02 or 
greater and subsequently was disciplined.
    FTA Response. In the final rule we essentially have retained the 
reasonable suspicion provision from the NPRM, with only minor changes, 
because we believe it adequately balances the rights of employees 
against the rights of the traveling public. For instance, we believe 
that the observations must be made by a supervisor trained in detecting 
the symptoms of alcohol misuse rather than by some third party. (Of 
course a third party could alert a transit operator about a particular 
situation, which might trigger a supervisor to pay particular attention 
to the affected employee.)
    We also believe that a determination made by a single supervisor 
trained in detecting the signs of alcohol misuse adequately protects 
the employee, and we were concerned about the cost of requiring two 
supervisors to make the determination.
    Although many commenters recommended that supervisors receive more 
than one hour of training, we have not changed this requirement in the 
final rule, being sensitive to the costliness of such training. 
Individual employers of course are free to provide as much additional 
training beyond the required one hour as they like. Employers also are 
allowed to combine drug and alcohol training, provided the required 
time frames are satisfied.
    The standard used to authorize a reasonable suspicion test remains 
unchanged in the final rule, which means that a supervisor may consider 
only short-term indicators of alcohol misuse. We stress that long-term 
indications of alcohol misuse such as absenteeism or tardiness or 
moving traffic violations cannot be used as the basis for conducting a 
reasonable suspicion alcohol test, which must only be based on 
contemporaneous and articulable observations. Of course, a supervisor 
may particularly be alert to the conduct and job performance of an 
employee based on the supervisor's long-term knowledge of the employee.
    We do not require a supervisor to document an employee's behavior 
in writing. We do, however, provide that any documents generated by the 
determination must be maintained for one year. Again, the final rule 
does not require an employer to document each and every reasonable 
suspicion determination, although an employer would be prudent to do 
so.

G. Random Testing/Random Testing Rate

    The random testing provision generated many comments, with most 
commenters proposing the adoption of a particular random testing rate 
or a particular method of determining a random testing rate. Other 
commenters were concerned about the frequency of random testing and how 
the test should be administered. Several commenters sought 
clarification of certain aspects of the provision.
    Several different alternatives for determining the random testing 
rate were offered. Many commenters suggested a flat rate, ranging from 
10 percent to 50 percent.
    Others suggested a performance-based rate, that is, a rate 
determined by the results of random testing. Under such a scheme, if 
the number of results of 0.04 or greater exceeds a specified rate (for 
example, 1 percent), then the employer would be required to test at a 
higher specified random rate (for example, 50 percent). If the number 
of positives is less than the specified rate, the employer would be 
required to test at a reduced random rate (for example, 25 percent). 
One commenter recommended that an employer could randomly test 20 
percent of its employees if less than 3 percent, of its random tests 
were positive, but if the number of positives exceeded 3 percent, the 
employer would have to raise its testing rate.
    Other variations were proposed. Several commenters suggested that 
we set a minimum random testing rate of 10 percent, but give an 
employer the discretion to test at a higher rate based on its own 
experience. Another commenter suggested that we require a random rate 
less than 50 percent and allow an employer to set its own rate for 
different classes of employees. Yet another commenter recommended that 
we set a rate anywhere from 10 percent to 50 percent but allow an 
employer to reduce its rate if it has programs, such as training and 
rehabilitation programs, in addition to those required by the final 
rule.
    Another commenter recommended that random testing be phased in, 15 
percent the first year, 20 percent the second year, and 25 percent 
thereafter, presumably to ease cost and administrative burdens. Another 
commenter, however, recommended that those who had never randomly 
tested employees should be required to test at a higher random rate 
than those who have had a program in effect. Lastly, one commenter 
believed that FTA should not set the rate at all, but the rate should 
be determined by an agreement between labor and management. Aside from 
the random testing rate issue, commenters also addressed how the test 
itself should be conducted. In this regard, several commenters were 
concerned about how truly random testing would be, and suggested that 
the testing itself should be conducted by an outside agency.
    FTA Response. In determining the random alcohol testing rate, FTA 
has considered not only the comments on this issue but other factors as 
well. We therefore have established a random alcohol testing rate of 25 
percent, the rate at which all DOT agencies issuing rules today are 
requiring. We recognize, however, that random alcohol testing does 
subject a large number of employees to testing and is costly. We have 
thus added a provision to the final rule allowing the random alcohol 
testing rate to drop to 10 percent annually if, based on the MIS 
reports, the violation rate for random alcohol testing in the transit 
industry is less than 0.5 percent for two consecutive years. If 
subsequently the violation random alcohol testing rate increases to 
greater than 0.5 percent for any one calendar year, the random alcohol 
testing rate would go to 25 percent, and if it increases to greater 
than one percent, the random alcohol rate would be increased to 50 
percent. Each year, FTA will announce the random alcohol testing rate 
in the Federal Register.
    Moreover, the NPRM required random testing to be completely random, 
which means that it must be unannounced. It must also be unpredictable, 
which is the reason we proposed that the tests be spread reasonably 
throughout a 12-month period. We have retained both of these 
requirements in the final rule.
    We do not require the test to be conducted by an outside agency. 
Although requiring a third party to conduct the random alcohol testing 
may afford an employee additional protection, we believe the final rule 
provides an employee with sufficient protection. Among other things, 
the rule requires an employer to use a scientifically valid method to 
randomly select employees from a pool in which each employee has an 
equal chance of being selected.
    Lastly, although some commenters were confused about when we would 
require an employer to conduct random alcohol testing, we have retained 
the NPRM restrictions in the final rule. In the NPRM we proposed to 
restrict random testing to just before, during, or just after the 
employee performs a safety-sensitive function because alcohol is a 
legal substance, and an employee who is not performing or who will not 
be performing a safety-sensitive function within four hours may engage 
in a legal activity. Thus the alcohol rule strictly limits the period 
of time when an employee is subject to random testing. This is 
particularly important for supervisors who may rarely perform a safety-
sensitive function.

H. Post-accident Testing

    The comments on this provision concerned three basic questions: 
when should a test be performed following an accident, which employees 
should be tested, and who should conduct the testing.
    In determining when a post-accident test should be required, the 
NPRM distinguished between fatal and nonfatal accidents. After an 
accident involving a fatality, the NPRM required the employer to test 
employees who were on duty and present in the vehicle at the time of 
the accident as well as mechanics involved in the vehicle's most recent 
maintenance. After an accident not involving a fatality had occurred, 
the employer was required to test certain employees unless their 
performance could be completely discounted as a contributing factor to 
the accident.
    Instead of this dual standard in the NPRM, one commenter suggested 
that we adopt a reasonable cause standard for determining when a post-
accident test should be performed, regardless of the seriousness of the 
accident.
    Although other commenters did not specifically propose a reasonable 
cause standard, they did object to the scope of the fatal accident 
provision, in which all safety-sensitive employees on-duty and present 
in the vehicle at the time of the accident, as well as mechanics, must 
be tested.
    Most of the comments on who should be tested stressed the 
difficulty of testing mechanics, especially when vehicle maintenance is 
contracted out. Some flatly stated that testing mechanics in rural 
areas was not practical, while others stated that requiring the testing 
of mechanics after an accident is unreasonable. While some commenters 
opposed the testing of any mechanics, others suggested that we include 
only certain mechanics. In this connection, one commenter suggested 
that we require the testing only of those mechanics who have maintained 
the affected vehicle within the two weeks before the accident occurred. 
Another commenter made the same recommendation but suggested that only 
those mechanics who maintained the vehicle two days before the accident 
be tested.
    Although most comments concerned the testing of mechanics, one 
commenter also suggested that we require the testing of drivers only if 
they are contributorily negligent.
    Commenters also stressed the difficulty of testing employees after 
an accident. They cited examples of employees leaving the scene of the 
accident, or police or hospital personnel refusing to allow the 
employee to be tested by the employer. These commenters contended that 
the rule should address these problems.
    FTA Response. FTA in its final rule has developed a dual post-
accident testing provision: after accidents involving a fatality, and 
after accidents involving bodily injury or property damage. The Act 
requires us to mandate an alcohol test whenever someone dies as a 
result of a mass transit accident, and we thus have expressly rejected 
the adoption of a probable cause standard in such cases. Simply put, if 
an accident involving a fatality has occurred, an alcohol test must be 
given within 8 hours to those safety-sensitive employees on-duty in the 
vehicle at the time of the accident.
    Other employees' conduct may contribute to an accident, however. 
For example, if two trains are placed on the same track and collide, 
the performance of safety-sensitive duties by a vehicle controller 
could have contributed to the accident. If there are indications that 
brake failure was involved in a bus accident, and the vehicle's brake 
system was maintained a brief time before in the garage by an 
identifiable mechanic, the performance of that mechanic could have 
contributed to the accident. In situations of this kind, the rule 
directs the employer to test the other employee, but only if the 
employer determines, based on the best information available at the 
time, that the other employee's performance could have contributed to 
the accident. Implementing this provision rests substantially on the 
good judgment of the employer. For example, if the performance of the 
relevant work by a mechanic occurred long enough ago (e.g., more than 
eight hours before a test could be administered) that a meaningful test 
could not be administered, the employer would not be expected to 
administer the test. If the bus was recently in the shop only for an 
air conditioning repair, there would be no point in testing a mechanic 
after an accident in which brake failure may have been involved.
    With respect to non-fatal accidents involving road surface vehicles 
(e.g., buses and vans), a covered employee on duty in the vehicle at 
the time of the accident would have to be tested if the employee had 
received a citation from a law enforcement officer. As in the case of 
fatal accidents, the employer would test other employees if the 
employer determined, based on the best information available at the 
time, that such an employee's performance could have contributed to the 
accident. Examples of such a test could include the situation of the 
mechanics mentioned above and a situation in which a bus driver was not 
cited by local law enforcement personnel but the employer, in its good 
judgment, determined that the driver's performance could have 
contributed to the accident.
    With respect to other vehicles (e.g., rail vehicles), the employer 
would have to test covered employees on duty in the vehicle at the time 
of the accident, unless the employer determined, based on the best 
information available at the time, that an employee's performance could 
be completely discounted as a contributing factor in the accident. This 
is a different standard than in the case of road surface vehicles, 
because there is little likelihood of an on-the-spot law enforcement 
citation to the operator of vehicles like rail cars. As in the other 
post-accident testing situations, the employer could make a judgment to 
test other covered employees, if the employer concluded that their 
performance could have contributed to the accident.
    After an accident has occurred, an employer--not police or hospital 
personnel--must test affected employees for the misuse of alcohol. The 
rule does not permit a waiver of the employer's obligation to test an 
employee after an accident, nor does it allow an employer to use the 
results of laboratory findings of an alcohol test administered by 
police, for law enforcement purposes, or hospital personnel for 
treatment of injury.
    Under the final rule, however, an employee may be taken to a 
medical treatment facility immediately after an accident without being 
tested by the employer. An employee also may leave the scene of an 
accident, without being tested, so long as he remains readily available 
for testing, which means that the employer knows the whereabouts of the 
employee until he is tested and that the employee is available to be 
tested immediately after being notified by the employer and within 8 
hours of the accident. Thus an employee may receive medical attention 
or respond to police questions or seek assistance for injured 
individuals.

I. Return to Duty/Follow-up Testing.

    The comments concerning these two kinds of testing focused 
primarily on the roles of the employer and the Substance Abuse 
Professional (SAP). The NPRM proposed authorizing the SAP to determine 
not only when an employee may return to duty after testing at 0.04 or 
greater, but also how many follow-up tests an employee should take and 
for what period of time.
    Many commenters objected to the extent of authority given to the 
SAP under the NPRM. An employer, not the SAP, should determine if and 
when an employee may resume a safety-sensitive function after testing 
at 0.04 or greater these commenters stated. They also contended that an 
employer should control the follow-up testing requirements, such as the 
length of time an employee must submit to follow-up testing and the 
number of tests the employee must take annually.
    Other commenters recommended that the final rule prescribe in 
detail the follow-up testing requirements, with several offering 
suggestions. One commenter recommended that the rule require 60 months 
of follow-up testing, with 12 tests required in the first year and 6 
annually thereafter. Another commenter recommended 60 months of testing 
with a prescribed number of tests over the entire 60 month period; 
another a 36 month follow-up period with 6 tests required annually; and 
another a 24 month follow-up testing period with 3 tests required the 
first year. And, lastly, one commenter stated that the rule should not 
recommend a specific number of follow-up tests at all.
    FTA Response. The final rule retains the authority of the SAP. In 
making this decision, we strove to balance the rights and privacy of 
the employee against the safety of the traveling public. Because of the 
extensive credentials required to be an SAP, we believe that they are 
most qualified to make the necessary decisions concerning the ability 
of an employee to return to his or her safety-sensitive position. In 
addition, because studies have shown that the relapse rate is highest 
in the first year of recovery, we mandate a minimum of 6 alcohol tests 
during that time. After that period, however, we believe that the SAP 
should determine when follow-up testing should end; in any event, it 
must end if 60 months have elapsed from the time of the employee's 
return to duty. We note that an employer may require additional follow-
up testing under its own authority. It is important to emphasize, 
moreover, that during the 60-month period the employee remains 
separately subject to random testing as well.

J. Treatment

    The NPRM proposed that any covered employee who tested at 0.04 or 
greater must be advised by his employer of the resources available to 
help him resolve problems associated with alcohol misuse and be 
evaluated by an SAP. The NPRM neither authorized nor prohibited an 
employer from disciplining or discharging an employee because he tested 
at 0.04 or greater; it simply stated that the employee who tests in 
that range must be removed from his safety-sensitive position.
    Several commenters objected to our silence on this issue, and asked 
us to clarify the rule by specifically authorizing the employer to take 
whatever disciplinary action the employer deems necessary.
    The remaining commenters addressed the issue of rehabilitation. One 
commenter suggested that we mandate rehabilitation and treatment. 
Another commenter recommended that the final rule require reinstatement 
in addition to rehabilitation. Yet another commenter stated that the 
final rule should not address the issue of rehabilitation, which should 
be decided by the employer and the union. Lastly, a commenter stated 
that an employer should not be required to refer an employee to an SAP 
when the employer's policy is to discharge any employee who tests at 
0.04 or greater.
    FTA Response. FTA has retained the language in the NPRM on this 
issue. We thus remain silent on whether an employer may dismiss or 
disqualify an employee who has tested at 0.04 or greater, an issue best 
decided at the local level.
    Concerning rehabilitation, we believe that we have met the 
requirements of the Act, which state that the rule must provide for 
identification and opportunity for treatment of employees who are 
determined to have misused alcohol. In this regard, we require that an 
employee who tests at 0.04 or greater be evaluated to determine whether 
he needs assistance. Such an employee may return to his safety-
sensitive position after he has properly completed a course of 
treatment as determined by an SAP, and has passed a return to duty 
alcohol test.
    If an employee undergoes treatment, the rule does not address the 
issue of who should pay for it. We believe that this issue should be 
decided at the local level. Nor does the rule deal with the issue of 
recidivism, when an employee has repeatedly tested at 0.04 or greater 
and has repeatedly been referred to treatment. Again, we believe that 
issue should be decided at the local level. This rule requires the 
removal of a safety-sensitive employee from a safety position if the 
employee tests at 0.04 or greater, but does not address employment or 
disciplinary issues in connection with such action.

K. Training

    The NPRM proposed that supervisors who make reasonable suspicion 
determinations receive 60 minutes of training on the physical, 
behavioral, and performance indicators of probable alcohol misuse, 
which would enable the supervisor to make an informed reasonable 
suspicion determination. In addition, the NPRM proposed that all 
safety-sensitive employees be provided educational materials about the 
effects of alcohol misuse on health, safety, and the work environment.
    We received numerous comments on this issue, virtually all of them 
in favor of requiring training, at least for supervisors. For 
employees, most commenters were silent, although one favored requiring 
60 minutes of training and another asked that we help develop a 
curriculum for a general educational program.
    Because almost all of the commenters were in favor of training for 
supervisors, many commenters proposed certain training specifications. 
Some commenters proposed a combined drug and alcohol training program; 
one commenter specifically recommended four hours of combined drug and 
alcohol training, while another made the same recommendation but added 
a one-hour yearly refresher course.
    The remaining commenters did not specifically recommend that the 
drug and alcohol training be combined. Instead, one commenter suggested 
that supervisors be required to receive four hours of training and that 
the class size be limited to four individuals. Other commenters 
recommended a full day of training, one suggesting that supervisors 
should be certified after satisfactorily being trained. Lastly, several 
commenters stated that we should require interactive training.
    FTA Response. FTA believes that training will greatly improve the 
efficacy of the alcohol misuse prevention program, and we agree with 
the commenters who favor a training requirement for supervisors. We 
note, however, that most of the comments addressed one of two areas, 
the amount of training required and the actual content of the program 
itself.
    Although most commenters recommended that we increase the amount of 
training for supervisors who make reasonable suspicion determinations, 
we have not done so in the final rule. We believe that one hour of 
training is sufficient to train supervisors who may make reasonable 
suspicion determinations to recognize the signs and symptoms of alcohol 
misuse; moreover, an employer may, at its own discretion, choose to 
provide additional training. These requirements are one-time only; the 
final rule does not require annual or recurring training, although an 
employer certainly is not prohibited from providing any additional 
training. Moreover, we do allow employers to combine drug and alcohol 
training providing that the minimum time requirements are observed.
    Nor does the final rule specify the content of the training 
programs, since an employer should develop a program to meet its own 
needs. We believe that it would be inappropriate for the rule to 
specify the content of this kind of training program. The employer best 
knows its workforce and the needs of its employees.

L. Management Information System (MIS) Reporting Requirement

    The vast majority of comments on this issue concerned the State's 
role in record collection. Under the NPRM, we proposed to require 
States to collect and forward to FTA the annual reports prepared by 
their subrecipients. Because the State merely ``passes through'' the 
Federal grant funds to a subrecipient, most commenters believed that 
the State should not be responsible for ensuring the accuracy of the 
information collected, nor for submitting the reports to the FTA on 
time. In fact, one commenter suggested that only large employers should 
be required to keep and submit detailed information on test results.
    Some States focused on the overlap between this NPRM and a 
rulemaking required under section 28 of the FT Act, which requires 
certain States to oversee the safety of certain kinds of fixed 
guideways. Some commenters explained that they would not be able 
effectively to oversee certain fixed guideway systems unless they were 
given access to the records generated under this rule.
    Finally, some commenters asked that we provide States an extra 60 
days from the annual February 15th reporting date.
    FTA Response. In the final rule we have retained the requirement 
that a State collect and submit to FTA on behalf of its subrecipients 
the data required under this rule. This requirement is consistent with 
the fundamental legal relationship between FTA and the direct recipient 
of Federal funding, which in some instances is a State, in which case 
the State must collect and submit the annual report required under this 
rule and meet the same reporting deadline as other recipients. The due 
date of the annual report has been changed to March 15. A State must 
collect the reports prepared by its subrecipients and their 
contractors, as appropriate, and forward them to the FTA.
    The final rule includes two different reporting forms, FTA Alcohol 
Testing Management Information System (MIS) Data Collection Form 
(Appendix B) and FTA Alcohol Testing Management Information System 
(MIS) ``EZ'' Data Collection Form (Appendix C). Appendix B must be used 
in reporting all alcohol test results of 0.02 or greater; Appendix C 
must be used by employers who have no test results of 0.02 or greater 
to report.
    FTA intends to combine the drug and alcohol regulations' reporting 
forms within two to three years after implementation.
    We appreciate those comments directing our attention to the 
potential overlap between this rule and the State Safety Oversight NPRM 
published in the Federal Register on December 9, 1993 at FR 64856. We 
have amended those provisions requiring access to certain facilities to 
also permit access by State oversight agency officials to facilitate 
their oversight role as proposed in the State Safety Oversight NPRM.

M. Implementation Date

    The NPRM proposed to require compliance with this rule within one 
year of publication in the Federal Register for large employers and 
within two years for States and small employers. This provision 
contrasted with implementation periods proposed in the drug NPRM, which 
were six months for large employers and one year for States and small 
employers.
    Several commenters strongly favored implementing both the drug and 
the alcohol rules simultaneously. Another commenter recommended that, 
for budgeting reasons, FTA key the implementation period to the fiscal 
year.
    FTA Response. In the final rule, we have decided that large 
employers must implement their alcohol testing programs on January 1, 
1995, while small employers will have until January 1, 1996. This is 
consistent with the implementation date of our related drug rule and 
will ensure that the MIS annual report data collection effort will 
coincide with the calendar year.
    We provide small employers additional time to implement their rule 
because they may find it necessary to form consortia. Large employers 
in many instances already have experience in testing their employees 
for alcohol misuse.
    We further note, in response to several inquiries, that the rule 
provides no authority for employers to begin its program before the 
implementation dates included in this rule.

N. Combined Drug and Alcohol Rules

    Many commenters urged us to combine the drug and alcohol NPRMs into 
one final rule, or, in the alternative, to combine common aspects of 
both rules, such as the training and reporting requirements.
    FTA Response. We have decided not to combine the drug and alcohol 
testing rules at this time because there are significant differences 
between them. For instance, the random rate for the two rules differ, 
25 percent for alcohol and 50 percent for drugs. Also, the time period 
during which an employee may be subject to random testing differs in 
the two rules. The alcohol rule contains an entire subpart, 
Prohibitions, which specifies when an employee cannot use alcohol. In 
contrast, the drug rule contains no comparable subpart because 
prohibited drugs are controlled substances. On the other hand, we do 
allow an employer to combine certain aspects of the rules, most notably 
the training requirements. In addition, we encourage the employer to 
formulate and promulgate one policy statement concerning both drugs and 
alcohol.

O. Indian Tribal Governments

    Several commenters have asked us to clarify the applicability of 
the rule to Indian tribal governments and have suggested that we 
preempt Indian tribal law. Because Indian tribal governments are not 
subject to State law or regulation, these commenters are concerned 
about the ability of a State section 18 recipient to require an Indian 
tribal government subrecipient to comply with this regulation.
    FTA Response. As a general matter, statutes apply to Indian Nations 
or tribes unless (1) the law touches exclusive rights of self-goverance 
in purely intramural matters; (2) the application of the law would 
abrogate rights guaranteed by Indian treaties; or (3) there is proof by 
legislative history or some other means that Congress intended the law 
not to apply to Indians on their reservations, Donovan v. Coeur d'Alene 
Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985).
    In this regard, there is no legislative history indicating 
congressional intent not to apply the Act to Indian tribes. We have no 
information, moreover, on the issues addressed in points one and two. 
In the absence of any such information, we conclude that the Act would 
preempt Indian tribal law but of course would consider any arguments to 
the contrary based on points one and two.
    We stress that compliance with the rule is a condition of Federal 
funding, which means that an Indian tribal recipient or operator would 
have to comply with this rule if it wanted to receive the benefits of 
Federal transit assistance. On the other hand, should a particular 
Indian tribe object to drug or alcohol testing, it could simply choose 
not to receive Federal funding.

P. Waivers

    Several commenters have asked us to waive the application of the 
rule to certain categories of employers. For instance, one commenter 
recommended that employers with less than 16 employees be excluded from 
complying with the rule. Another recommended that any section 18 
recipient certifying that it has not had an alcohol or drug related 
accident in three years should be exempted from the rule.
    FTA Response. Language in a report of the Senate Committee on 
Commerce, Science, and Transportation accompanying the Act addressed 
the issue of FTA granting waivers of the rule in whole or in part:

    The Committee is aware of concerns raised with regard to the 
difficulties some believe may be faced by small transit operations 
located in rural areas in complying with [FTA] drug and alcohol 
testing requirements. If, after notice and opportunity for comment, 
the Secretary determines that a waiver for certain operations from 
such requirements would not be contrary to the public interest and 
would not diminish the safe operation of rural transit conveyances, 
the committee would not object to a waiver, in whole or in part, of 
the application of regulations issued pursuant to this bill with 
regard to recipients of funds under section 18 of the [Federal 
Transit Act, as amended.]. S. Rep. No. 80, 102d Cong., 1st Sess. 36 
(1991).

    Notwithstanding this legislative history, the Act itself does not 
specifically authorize the FTA to ``waive'' particular requirements of 
the rule. Nonetheless, we believe we can implement the rule in such a 
way that it minimizes burdens on small operators.
    In this regard, we have adopted several provisions to ease the 
rule's impact on small operators. Small operators, which includes 
section 18 rural providers and smaller recipients of section 9 formula 
funds--are provided additional time to comply with the rule. We have 
also exempted from the rule mechanics under contract to or with 
informal agreements with a section 18 employer. To reduce costs and 
administrative burdens we allow and encourage section 18 providers to 
join a consortium of operators to comply with the rule.

IV. Section-by-Section Analysis

Subpart A--General

A. Purpose. (Sec. 654.1)
    This section explains that the purpose of the rule is to promote 
safety by requiring a recipient to establish and implement an alcohol 
testing program to detect the misuse of alcohol, by breath testing, and 
to deter the misuse of alcohol by educating and training safety-
sensitive employees about the safety and health ramifications of 
alcohol misuse.
B. Applicability. (Sec. 654.3) zI11This section describes FTA's 
jurisdiction over recipients and covered employees and how it may 
overlap with that of other modal agencies; whether section 16(b)(2) 
recipients must comply with this rule; the effect of the rule on user-
side subsidies; and the effect of the rule on those who may no longer 
receive FTA funding.
    1. FTA grant programs under sections 3, 9, and 18 and the 
Interstate Transfer Program. Under the section 3 discretionary grant 
program, FTA funds three categories of capital projects: the 
construction of new rail projects; the improvement and maintenance of 
existing rail and other fixed guideway systems; and the rehabilitation 
of bus systems. Under sections 9 and 18, the formula grant programs, 
FTA funds both capital and operating assistance to specific categories 
of recipients that receive Federal funds under a statutory formula 
based on population, population density, and other factors. Generally, 
urbanized areas receive section 9 funding directly, while nonurbanized 
areas receive section 18 funding through the State.
    FTA also provides funds under 23 U.S.C. section 103(e)(4), the 
interstate transfer program. Under this program, FTA provides funding 
to States and localities for capital transit projects in lieu of 
nonessential interstate highway projects. Hence, recipients of these 
types of FTA funding may be States, transit agencies, or other kinds of 
localities, but all such recipients are public entities.
    2. FTA jurisdiction. FTA is a Federal agency that makes grants of 
Federal financial assistance under various statutory provisions. Under 
all of these provisions, the agency's relationship is with the direct 
receiver of Federal financial assistance, the recipient. Such a 
recipient of Federal funds must comply with a variety of Federal 
requirements, including this rule, and enters into a grant agreement 
with the FTA to that end. After accepting a grant from the FTA, a 
recipient is responsible for ensuring that it, or any entity that it 
uses to provide mass transportation services, will comply with all 
relevant Federal requirements.
    While the Act requires us to issue this alcohol testing rule, it 
does not change the fundamental relationship between FTA and a direct 
recipient of Federal financial assistance.
    That is, FTA does not directly regulate covered employees, which 
means that FTA has no authority directly to deal with a covered 
employee under any circumstances. Rather, the Act authorizes FTA to 
require a recipient to implement an alcohol misuse prevention program, 
and it is the recipient that is responsible for assuring that covered 
employees comply with the rule. If a recipient fails to do so, FTA will 
withhold Federal funding.
    3. Multi-modal jurisdiction. As discussed below, recipients may be 
regulated by another DOT modal agency such as the Federal Railroad 
Administration (FRA), which regulates railroads, the Federal Highway 
Administration (FHWA), which regulates holders of Commercial Driver's 
Licenses (CDL) and their employers, or the United States Coast Guard, 
which regulates certain vessels and mariners.
    Both FRA and FHWA are authorized under the Act to establish an 
alcohol testing program for their respective regulated communities, 
which include some FTA recipients. Coast Guard has jurisdiction over 
mariners and vessels, including the authority to take action against a 
seaman based on alcohol intoxication.
    Coast Guard's regulated community also includes some FTA 
recipients. Therefore, to clarify the jurisdiction between FTA and 
other DOT agencies, we have reached the following agreements with the 
relevant agencies.
    a. Federal Railroad Administration. The FRA regulates railroads. A 
railroad is defined under the Federal Railroad Safety Act of 1970 as 
[a]ll forms of non-highway ground transportation that run on rails or 
electromagnetic guideways, including (1) commuter or other short-haul 
rail passenger service in a metropolitan or suburban area, as well as 
any commuter rail service which was operated by the Consolidated Rail 
Corporation as of January 1, 1979, and (2) high speed ground 
transportation systems that connect metropolitan areas, without regard 
to whether they use new technologies not associated with traditional 
railroads. Such term does not include rapid transit operations within 
an urban area that are not connected to the general railroad system of 
transportation.

45 U.S.C. 431(e)(1988).
    If an FTA recipient solely operates a commuter railroad, those 
railroad operations are subject to FRA's alcohol rule. Such a recipient 
must certify to the FTA that it complies with FRA's rule as provided 
for under Sec. 654.83 of this part. See Appendix A for the 
certification such a recipient must execute.
    If a recipient operates a railroad as well as other mass transit 
services, its railroad operations are subject to FRA's rule while its 
non-railroad mass transit operations are subject to the FTA rule.
    b. Federal Highway Administration. The Act authorizes FHWA to 
regulate intrastate motor carriers and specifically requires it to 
issue an alcohol rule which applies to intrastate as well as interstate 
motor carriers. Thus, to avoid subjecting recipients who are also motor 
carriers to two different rules, FTA and FHWA have agreed that these 
recipients are subject only to FTA's alcohol rule.
    c. United States Coast Guard. If a recipient operates a ferry boat 
service, it is subject to both FTA's and Coast Guard's alcohol misuse 
regulations with regard to the ferry boat service. Applicable Coast 
Guard regulations are located in 33 CFR part 95 and 46 CFR parts 4 and 
16. FTA and Coast Guard agree, however, that a recipient in compliance 
with FTA's alcohol misuse prevention rule will also probably be in 
compliance with the relevant Coast Guard provisions.
    It is important to note that Coast Guard's regulations require 
alcohol testing in only one situation, when there has been a serious 
marine incident. Serious marine incidents include large oil or 
hazardous substance spills and reportable marine casualties which 
result in (1) One or more deaths; (2) serious injuries; (3) damage to 
property in excess of $100,000; (4) loss of an inspected vessel; or (5) 
loss of a self-propelled uninspected vessel over 100 gross tons.
    Under Coast Guard's regulations, a test must be conducted by using 
blood or breath specimens. Use of an FTA--required EBT would satisfy 
the Coast Guard requirement. Because FTA has defined accident more 
broadly than Coast Guard, an FTA recipient who performs a post-accident 
breath test under FTA's rule should be in compliance with Coast Guard's 
rule as well.
    Coast Guard also allows employer or law enforcement officer to 
direct reasonable cause testing under situations specified in 33 CFR 
part 95. We believe that this provision represents only a minor 
difference from FTA's rule.
    We note here that the Coast Guard is authorized to take certain 
actions against a marine employer or a mariner. FTA's rule does not 
affect Coast Guard's authority or requirements in any respect. 
Consequently, a recipient that operates a ferry boat service is subject 
to withholding of Federal funding if it is in non-compliance with FTA's 
rule, and any appropriate action if it is in non-compliance with the 
Coast Guard rule.
    4. Covered employees of recipients. As noted above, FTA does not 
directly regulate employees or workers who are subject to the 
provisions of this rule through action of their employers. This general 
proposition is not true of FHWA and the Coast Guard, which use 
licensing actions or other measures to enforce their safety rules, 
which would include their alcohol rules. A recipient's safety-sensitive 
employees thus may be subject to licensing actions of these agencies, 
even though the recipient is regulated by FTA and its employees are 
covered only by FTA's alcohol regulations. For example, a CDL holder 
employed by an FTA recipient remains subject to the Commercial Motor 
Vehicle Safety Act of 1986, and the consequences that attach to a 
violation of it. For example, a CDL holder convicted of driving under 
the influence of drugs or alcohol may have his or her Commercial 
Driver's License suspended or revoked. Similarly, the Coast Guard is 
authorized to revoke a license, certificate, or document of a marine 
employee under certain circumstances. Coast Guard's relevant provisions 
specifying the rights and responsibilities of marine employees are 
located in 46 CFR parts 4, 5, and 16 and 33 CFR part 95.
    5. Section 16(b)(2) recipients. Some entities receive funding under 
section 16(b)(2) of the FT Act, which provides capital assistance, 
through a State, to organizations that provide specialized 
transportation services to elderly persons and persons with 
disabilities.
    While some commenters suggested that we cover section 16(b)(2) 
recipients under the rule, we do not do so, noting that the Act 
references recipients of funds under sections 3, 9, or 18 of the FT Act 
or section 103(e)(4) of title 23 of the U.S. Code, but not section 16. 
Note, however, that a section 16(b)(2) recipient may be covered by the 
alcohol regulation published by the FHWA elsewhere in today's Federal 
Register.
    6. User-side subsidies. A user-side subsidy refers to the practice 
of providing passengers publicly subsidized script or vouchers, which 
the passenger then uses to pay for transportation from a private 
carrier such as a taxicab company. In essence, a recipient provides 
transportation services indirectly through such subsidies.
    The regulation applies to certain recipients of FTA funding, and to 
transit operators providing service under contract or other 
arrangements with those recipients. To the extent that a taxi operator 
does not provide service under an arrangement with an FTA recipient, 
but is chosen at random by the passenger, it would not be subject to 
the rule. If, however, the taxicab company or private operator does 
provide service under an arrangement with an FTA recipient, it is 
covered by the rule as a contractor, as defined by the rule. In such 
cases, the taxi company may wish to designate only certain drivers to 
provide such service, in which case only those designated drivers would 
be subject to the rule's alcohol testing program.
    7. Continuing Federal interest. Not all recipients receive a 
Federal grant or grants for capital or operating assistance each year 
under the formula or discretionary programs. Some may receive capital 
assistance only when they need to purchase equipment or construct or 
repair a facility, which could occur once every few years. Indeed, 
there may be a recipient that receives a capital grant just once over a 
five or ten year period. It is important to emphasize in these cases 
that once a recipient has received an FTA capital grant after the 
effective date of this rule and has therefore agreed to comply with the 
rule, it must continue to comply with the rule (and other Federal 
requirements) during the useful life of the equipment or facility 
funded under the grant. In short, this rule remains in effect so long 
as the grant-acquired assets and related grant obligations remain in 
effect, and is not contingent upon a recipient receiving Federal funds 
each year.
    This is not the case with operating assistance, however, which 
essentially is ``used up'' each year and is not considered to have a 
useful life beyond any given year. Thus in the event a recipient 
receives an operating assistance grant just once (and has not 
separately received a capital grant), it would only have to comply with 
this rule for that one year. This is probably a hypothetical example, 
however, since most recipients receive operating assistance on an 
annual basis, while others receive capital funding at some point, in 
which case they would have to comply with the rule over the life of the 
grant-acquired asset.
D. Alcohol Testing Procedures. (Sec. 654.5)
    This section mandates compliance with the alcohol testing 
procedures in 49 CFR part 40, a separate rulemaking document published 
elsewhere in today's issue of the Federal Register.
E. Definitions. (Sec. 654.7)
    1. Accident. An accident may trigger a post-accident alcohol test, 
and is defined as an incident in which a person has died or is treated 
at a medical facility or when there has been property damage resulting 
in the towing of a vehicle or the removal of a transit vehicle from 
revenue service.
    For accidents not involving a fatality, we have created two 
categories of vehicles. The first is for ``road surface'' vehicles, 
including buses, vans, automobiles, and electric buses. For this 
category, an accident is an occurrence resulting in a vehicle--either a 
mass transit vehicle or another vehicle--suffering disabling damage and 
having to be towed away. This definition parallels that used by FHWA 
for commercial motor vehicle accidents, and includes language drawn 
from FHWA's regulations specifying what kind of damage is viewed as 
disabling.
    The second category includes rail cars, trolley buses and trolley 
cars, and vessels. This category would also include other kinds of 
transit conveyances operated by FTA recipients, such as people movers, 
inclines, and monorails. An accident is deemed to occur to such a 
vehicle when the occurrence results in the vehicle being removed from 
revenue service. FTA views an accident happening when the vehicle is 
not operating in revenue service (e.g., an accident that occurs in a 
rail yard) as falling within this definition if it results in damage 
that would result in a comparable vehicle being withdrawn from revenue 
service or results in a delay in the vehicle being returned to revenue 
service.
    2. Administrator. Administrator means the Administrator of the 
Federal Transit Administration or the Administrator's designee.
    3. Alcohol. For a general discussion of this definition, see the 
common preamble and the preamble to part 40 issued by the Office of the 
Secretary, published elsewhere in today's Federal Register.
    4. Alcohol concentration. For a general discussion of this 
definition, see the common preamble and the preamble to part 40 issued 
by the Office of the Secretary, published elsewhere in today's Federal 
Register.
    5. Alcohol use. For a general discussion of this definition, see 
the common preamble and the preamble to part 40 issued by the Office of 
the Secretary, published elsewhere in today's Federal Register.
    6. Certification. This definition describes the statement that must 
be executed by the recipient.
    7. Confirmation test. For a general discussion of this definition, 
see the preamble accompanying part 40 of this title, Procedures for 
Transportation Workplace Drug and Alcohol Testing Programs, published 
elsewhere in today's Federal Register.
    8. Consortium. This definition describes an arrangement in which 
employers place their safety-sensitive employees in a pool with the 
safety-sensitive employees of other employers. Any employer subject to 
any DOT agency alcohol misuse regulation may join a consortium for the 
purpose of complying with the rule. It may be particularly advantageous 
for smaller entities to join a consortium and thereby limit costs and 
administrative burdens.
    9. Contractor. This definition covers a broad range of arrangements 
between an FTA recipient and those carrying out services for it and 
includes not only written and oral commitments in which both parties 
agree to specific terms and conditions but informal arrangements as 
well. An informal arrangement essentially is any ongoing relationship 
between two parties. Hence, repeatedly doing business with another 
entity would come within the meaning of a contractual arrangement under 
the rule.
    10. Covered employee. This definition describes who is subject to 
the rule. Only safety-sensitive employees that work for a recipient or 
any entity performing a mass transit function on behalf of a recipient 
are covered by the rule, except for contract mechanics for small 
operators, which are not covered.
    11. DOT. The abbreviation DOT stands for the United States 
Department of Transportation.
    12. DOT agency. DOT contains several operating agencies, five of 
which are issuing alcohol misuse prevention rules in today's issue of 
the Federal Register. Those agencies are: FHWA (49 CFR part 350), FRA 
(49 CFR part 219), FAA (14 CFR part 61), and RSPA (49 CFR part 654).
    13. Employer. This definition applies to entities that must 
implement an alcohol misuse rule. It includes recipients and other 
entities that provide mass transit service or perform a safety-
sensitive function for a recipient. It includes subrecipients, 
operators, contractors, and consortia.
    14. FTA. FTA is the abbreviation for the Federal Transit 
Administration.
    15. Large operator. A large operator is a transit provider 
primarily operating in an area of 200,000 or more in population.
    16. Performing (a safety-sensitive function). For a general 
discussion of this definition, see the common preamble issued by the 
Office of the Secretary, published elsewhere in today's Federal 
Register.
    17. Railroad. This definition is from the Railroad Safety Act of 
1970 and is used in the rule to distinguish FTA's jurisdiction from 
FRA's. Basically, FRA has jurisdiction over any form of transportation 
that runs on rails and is connected to the general railroad system. FTA 
thus has jurisdiction over all self-contained forms of mass 
transportation that run on rails, so long as those systems receive 
Federal funding from the FTA under sections 3, 9, or 18 of the FT Act 
or section 103(e)(4) of title 23 of the U.S. Code.
    18. Recipient. This definition, based on the Act, defines a 
recipient as an entity receiving Federal financial assistance directly 
from the FTA under section 3, 9, or 18 of the FT Act or section 
103(e)(4) of title 23 of the U.S. Code.
    19. Refuse to submit. For a general discussion of this definition, 
see the common preamble as well as part 40 of this title, Procedures 
for Transportation Workplace Drug and Alcohol Testing Programs,'' 
published elsewhere in today's Federal Register.
    20. Safety-sensitive function. This definition determines which 
categories of employees are subject to the rule. Because each recipient 
uses its own terminology, we have decided to define safety-sensitive 
based on the function performed instead of listing specific job 
categories. Each employer must decide for itself whether a particular 
employee performs any of the functions listed in this definition.
    The definition lists five categories of safety-sensitive functions. 
The list itself is exclusive, which means that either an employee 
performs a safety-sensitive function listed in a category or she does 
not. An employer may not add any category to the list unless it wishes 
to test those additional employees separately under its own authority.
    The first category is operating a revenue service vehicle, whether 
or not the vehicle is in service. In short, an employee who operates a 
revenue service vehicle for any purpose whatsoever is a safety-
sensitive employee and is subject to the rule.
    The second category is operating a nonrevenue service vehicle when 
required to be operated by a holder of a CDL. The third category is 
controlling dispatch or movement of a revenue service vehicle or 
equipment used in revenue service.
    The fourth category is maintaining a revenue service vehicle unless 
the recipient receives section 18 funding and contracts out such 
services. Maintaining a revenue service vehicle includes any act which 
repairs, provides upkeep to a vehicle, or any other process which keeps 
the vehicle operational. It does not include cleaning either the 
interior or the exterior of the vehicle or transit facility. This 
category specifically excludes only the employees of a contractor or 
other entity who maintains revenue service vehicles for section 18 
recipients. Hence, all other employees who maintain revenue service 
vehicles whether by contract or otherwise are safety-sensitive 
employees.
    The fifth category is carrying a firearm for security purposes. A 
security guard who does not carry a firearm is excluded from this 
category, and is not a safety-sensitive employee.
    We note that supervisors are included in this definition so long as 
the supervisor performs or the supervisor's job description includes 
the performance of any of the functions listed in categories 1 through 
5.
    21. Screening test. For a general discussion of this definition, 
see the preamble accompanying Part 40 of this title, Procedures for 
Transportation Workplace Drug and Alcohol Testing Programs, published 
elsewhere in today's Federal Register.
    22. Small operator. A small operator is a recipient operating 
primarily in an area of less than 200,000 in population.
    23. Substance abuse professional. For a general discussion of this 
definition see the common preamble published by the Office of the 
Secretary, published elsewhere in today's Federal Register.
    24. Vehicle. This definition lists types of vehicles used in mass 
transportation, or which may be involved in accidents with such 
vehicles. Because mass transit encompasses travel by bus, van, ferry 
boat, and rail, the list is meant to be very broad, covering every type 
of conveyance used to provide mass transit (including such things as 
people movers and inclines). The term ``mass transit vehicle'' is used 
to distinguish vehicles actually used for transit purposes from those 
used by the general public.
    25. Violation rate. For a general discussion of this definition, 
please see the common preamble issued by the Office of the Secretary, 
published elsewhere in today's Federal Register.
F. Preemption of State and Local Laws. (Sec. 654.9).
    The Act provides that this rule preempts any inconsistent State or 
local law, ordinance, rule, regulation, standard, or order.
    Consistent with long-standing Department-wide interpretation of 
this type of preemption language, the regulation specifies that 
``inconsistent with'' means that the regulation:
    (1) Preempts a State or local requirement if compliance with the 
local requirement and the FTA regulation is not possible; or
    (2) Preempts a State or local requirement if compliance with the 
local requirement is an obstacle to accomplishing the provisions of the 
FTA regulation.
    On the other hand, neither the statute nor the regulation preempts 
State criminal laws that impose sanctions for reckless conduct.
G. Other Requirements Imposed by an Employer. (Sec. 654.11)
    An employer may impose other requirements in addition to those 
imposed by this rule if those additional requirements do not conflict 
or interfere with the requirements of this rule. For example, an 
employer may require a supervisor to be trained for two hours instead 
of one, or an employer may provide training for employees.
H. Requirement for Notice. (Sec. 654.13)
    This section requires an employer to notify an employee that the 
employee is being tested under Federal law. This section specifically 
bars an employer from misrepresenting a test conducted under its own 
authority as a test mandated by Federal law.
I. Starting Date for Alcohol Testing Programs. (Sec. 654.15)
    This section states the implementation date for large operators, 
States, and small operators.

Subpart B--Prohibitions

    This subpart identifies the acts prohibited by the rule. Although 
the rule text addresses the employer, we believe these sections are 
best understood if they are directed to the employee.
A. Alcohol Concentration. (Sec. 654.21)
    This section sets the alcohol concentration level prohibited by the 
rule at 0.04. A covered employee may not perform a safety-sensitive 
function when his or her alcohol concentration level is at 0.04 or 
greater.
B. On-duty Use. (Sec. 654.23)
    This section prohibits a covered employee from consuming alcohol 
while performing a safety-sensitive function.
C. Pre-duty Use. (Sec. 654.25)
    Paragraph (a) prohibits employees from consuming alcohol four hours 
before performing a safety-sensitive function.
    For on-call employees, the employer must prohibit a covered 
employee from using alcohol within four hours of performing a safety-
sensitive function, and must establish a procedure that allows an 
employee to: (1) Say he has used alcohol and (2) indicate whether he is 
able to perform his safety-sensitive function. If the employee believes 
he is not capable of performing his safety-sensitive function, the 
employer shall excuse the employee from doing so. If, however, the 
employee believes he is capable of performing a safety-sensitive 
function, the employer shall test the employee and shall permit the 
employee to perform a safety-sensitive function if his alcohol 
concentration level measures less than 0.02. If an employee's alcohol 
concentration level measures at 0.02 or greater but less than 0.04, the 
employer may allow the employee to perform his safety-sensitive 
function only if he is retested and his alcohol concentration level 
measures less than 0.02. If an employee is not retested, he must wait 
until eight hours has elapsed before resuming the performance of a 
safety-sensitive function.
    To encourage employees to admit that they have consumed alcohol, 
they shall not be subject to the consequences specified in subpart E. 
If, however, an on-call employee does not indicate that she has 
consumed alcohol and exhibits signs of alcohol misuse, she may be 
subject to reasonable suspicion testing. If the test indicates an 
alcohol concentration level at 0.04 or greater she would be subject to 
the consequences of violating this rule.
D. Use Following an Accident. (Sec. 654.27)
    This section prohibits an employee from consuming alcohol after an 
accident until she has been tested, eight hours have elapsed, or if an 
employee's conduct is completely discounted as a contributing factor to 
the accident. In the case of fatal accidents, the covered employee on 
duty in the vehicle at the time of the accident must refrain from 
drinking for eight hours or until she has been tested, whichever occurs 
first.
    E. Refusal to Submit to a Required Alcohol Test. (Sec. 654.29)
    If an employee refuses to submit to a random, post-accident, 
reasonable suspicion, or follow-up test, he is treated as if he tested 
at 0.04 or greater and subjected to the consequences established in 
subpart E.

Subpart C--Tests Required

A. Pre-employment Testing. (Sec. 654.31)
    This section requires an employer to administer a pre-employment 
alcohol test to applicants and employees transferring from a nonsafety-
sensitive position to a safety-sensitive position.
    This section, however, does not preclude an employer from hiring an 
applicant before the administration of an alcohol test. Nor does this 
section preclude an employer from hiring an applicant who has taken an 
alcohol test indicating an alcohol concentration level of 0.04 or 
greater. It states that before an employee performs a safety-sensitive 
function, an employee must take an alcohol test with a result 
indicating an alcohol concentration level less than 0.04.
    This section also applies to current employees transferring from a 
nonsafety-sensitive position to a safety-sensitive position. Similarly 
to an applicant, the transferee must take an alcohol test prior to the 
first time she performs a safety-sensitive function with a result 
indicating an alcohol concentration level less than 0.04.
    If an applicant's or a transferee's alcohol concentration level 
measures at 0.02 or greater but less than 0.04, they cannot perform a 
safety-sensitive function until their alcohol concentration level 
measures less than 0.02. The employer, therefore, may opt to retest 
them until their alcohol concentration level measures less than 0.02 or 
not to allow them to perform a safety-sensitive function for eight 
hours.
    Paragraph (b) of this section allows the employer to waive, under 
very limited circumstances, the administration of a pre-employment 
test. A test may be waived when (1) the applicant or transferee has 
been tested within the previous six months under the requirements of 
another DOT agency's alcohol misuse prevention rule; and (2) the 
employer ensures that no prior employer has knowledge or records of an 
employee's violation of an alcohol misuse rule within the previous six 
months. This section requires an employer to contact prior employers 
seeking this information.
    If an employer does not wish to seek this information, it may 
choose to administer a pre-employment test.
B. Post-accident Testing. (Sec. 654.33)
    This section requires a test after an accident has occurred, and 
establishes two categories of accidents, fatal and nonfatal. Nonfatal 
accidents are treated differently depending on the type of transit 
vehicle involved. For a more complete description of the ways in which 
different kinds of accidents are treated, please refer to the 
discussion of post-accident testing in the portion of the preamble that 
responds to comments.
    The rule requires an employer to test the appropriate covered 
employees as soon as possible, but within 8 hours of the accident.
    The rule also requires an employer to require an employee to remain 
readily available for testing; if the employee does not do so, the 
employer can treat such behavior as refusing to submit to an alcohol 
test. Remaining readily available means that the employer knows the 
whereabouts of the employee and must conduct the test as soon as 
practicable but within 8 hours of the accident.
    This section allows an employee to seek medical attention, assist 
injured individuals, or obtain assistance in dealing with the accident 
if necessary before being tested for misusing alcohol.
C. Random Testing. (Sec. 654.35)
    The rule requires an employer to randomly test covered employees 
for the misuse of alcohol. The testing must truly be random, which 
means that it is random with respect to the person tested and the 
predictability of the actual administration of the test.
    An employer cannot use an employee's name in a random selection 
pool. Rather, an employer must identify each covered employee by a 
unique number, such as a social security or a payroll identification 
number, which is entered into a pool from which the selection is made. 
Each covered employee must have an equal chance of being tested. Once a 
covered employee is selected and tested, their identification number is 
reentered into the pool so that they will have an equal chance of being 
tested the next time the employer conducts random testing.
    An employer must test randomly throughout the calendar year. 
Testing must be unannounced and occur on a reasonable basis throughout 
the entire calendar year. Random tests must be conducted in an 
unpredictable fashion. For example, an employer may not conduct random 
tests only on a Monday or only at the beginning of a shift. Further, 
once an employee is notified of his selection for a random test, he 
must report (or be escorted) immediately to the collection site.
    This section also describes the random alcohol testing rate which 
is based on the number of test results indicating an alcohol 
concentration of 0.04 or greater in the transit industry and thus may 
be decreased or increased on the basis of data made available to FTA. 
The rule requires employers to randomly test at a minimum annual rate 
of 25 percent, which means that the number of tests to be administered 
during a year must be equal to 25 percent of the number of employees in 
the selection pool. Based on the data FTA receives, however, the rate 
may be lowered to 10 percent if the positive random alcohol rate of the 
transit industry is less than 0.5 percent per year for two consecutive 
years. If the rate is lowered, it may subsequently be increased to 50 
percent if the transit industry positive random alcohol rate is equal 
to or greater than one percent for one year. FTA will publish a Notice 
in the Federal Register annually announcing the random alcohol testing 
rate. We emphasize that the rate is calculated and implemented 
industry-wide, and not on the basis of any individual employer's rate.
    For compliance purposes, it is important to note that in 
calculating its positive random alcohol testing results an employer 
must include a refusal to submit to a test as an alcohol test result of 
0.02 or greater.
    This section establishes definite periods of time an employee may 
be randomly tested for alcohol, just before, during, and just after 
performing a safety-sensitive function.
D. Reasonable Suspicion Testing. (Sec. 654.37)
    This section establishes testing based on reasonable suspicion that 
an employee has misused alcohol and establishes the standard the 
employer must use in determining whether to conduct such a test. First, 
a supervisor, trained in detecting the signs and symptoms of alcohol 
misuse must observe the employee's appearance, behavior, speech, and 
body odors for signs of alcohol misuse. Then the trained supervisor 
determines, based on specific, contemporaneous, and articulable 
observations, whether the employee must take a reasonable suspicion 
alcohol test.
    This standard precludes the use of long term indicators of alcohol 
misuse such as absenteeism, tardiness, occupational injuries, or moving 
traffic or operating rule violations as a basis for a reasonable 
suspicion determination.
    Although the observation and determination must be made by a 
supervisor trained in the signs and symptoms of alcohol misuse, this 
standard does not preclude the use of observations made by third 
parties such as passengers. Should a passenger believe, however, that 
an employee has misused alcohol, a trained supervisor should observe 
the employee first hand and decide whether a reasonable suspicion test 
is warranted.
    This section limits the period of time the trained supervisor may 
observe the employee for signs and symptoms of alcohol misuse to just 
before, during, or just after the employee performs a safety-sensitive 
function and limits the time frame for the employer to decide that a 
reasonable suspicion alcohol test is necessary to these time periods as 
well.
    Once a reasonable suspicion determination is made, paragraph (d) 
requires the employer to conduct a reasonable suspicion alcohol test. 
If, for some reason a test cannot be administered after a reasonable 
suspicion determination, paragraph (d) gives the employer two options. 
The employer can wait for eight hours to elapse before allowing an 
employee to perform a safety-sensitive function, or the employer can 
administer an alcohol test sometime during the eight hours. In any 
event, if a test is not conducted within two hours the employer must 
record why it was not conducted. If it was not conducted within eight 
hours, the employer must also record the reasons for that failure. The 
employer must maintain these records and submit them to the FTA upon 
request.
    When an employee is not given a reasonable suspicion test, this 
paragraph precludes an employer from applying the consequences 
established in subpart E for a violation of the rule.
E. Return to Duty Testing. (Sec. 654.39)
    This section requires an employee who has violated a prohibition of 
Subpart B to take a return to duty test. The employee may not perform a 
safety-sensitive function until she has taken a return to duty test 
indicating that her alcohol concentration level is less than 0.02.
    In addition, because of the prevalence of combined drug and alcohol 
misuse, an employer may also subject an employee who previously tested 
at 0.04 or greater under the FTA alcohol rule to a return to duty drug 
test.
F. Follow-up Testing. (Sec. 654.41)
    Upon taking a return to duty test with a result less than 0.02, an 
employee is subject to follow-up testing for up to 60 months. During 
the first 12 months the employee is subject to a minimum of 6 follow-up 
alcohol tests, which must be unannounced and conducted reasonably 
throughout the 12 months.
    After those 12 months, the substance abuse professional determines 
whether the employee should be subject to follow-up testing for the 
remaining 48 months. Because many individuals abuse more than one 
substance at a time, an employer may, based on the recommendations of 
the SAP, subject an employee who previously tested at 0.04 or greater 
under the FTA alcohol rule to follow-up testing for the use of 
prohibited drugs. An employer may also subject an employee who 
previously failed to pass a drug test under part 653 to follow-up 
testing for the misuse of alcohol.
    Like reasonable suspicion and random testing, follow-up testing 
must be conducted just before, during, or just after the employee 
performs a safety-sensitive function.
    It is important to note that an employee subject to follow-up 
testing remains separately subject to random testing under this rule.
G. Retesting of Covered Employees With an Alcohol Concentration of 0.02 
or Greater but Less Than 0.04. (Sec. 654.43)
    This section applies when an employee has taken an alcohol test 
showing an alcohol concentration level of 0.02 or greater but less than 
0.04. When this happens the consequences of subpart E do not apply. The 
employee, however, may not perform a safety-sensitive function with 
this amount of alcohol in his system. The rule provides, therefore, 
that the employer may opt to retest the employee or prohibit him from 
performing a safety-sensitive function for eight hours. If an employer 
selects the first option and retests the employee, the employee may 
perform a safety-sensitive function only if on retest his alcohol 
concentration level measurers less than 0.02. If the employer elects to 
do so, it may conduct several tests until the employee's alcohol 
concentration level measures less than 0.02.

Subpart D--Administrative Requirements

A. Retention of Records. (Sec. 654.51)
    Section 654.51 explains which records relating to the alcohol 
testing program must be retained and for how long.
    The rule provides for three separate record retention periods for 
different types of records, five years, three years, and one year. Each 
employer must maintain for five years records of covered employees' 
alcohol test results of 0.02 or greater, documentation of refusals to 
take an alcohol test, and covered employee referrals to the SAP. 
Collection process and employee training documents must be retained for 
two years, while records of test results less than 0.02 must be 
retained for one year.
B. Reporting of Results in a Management Information System. 
(Sec. 654.53)
    The reporting requirements required in section 654.53 are part of a 
Department-wide effort to standardize reporting for alcohol testing, by 
establishing a Management Information System (MIS). The data collected 
will be used by FTA and DOT to identify trends, to determine the random 
alcohol testing rate, and to assess the success or failure of the 
agency's regulatory program.
    The data elements were selected to provide information on the scope 
of the program, the prevalence of alcohol misuse in mass 
transportation, the implementation of the program, and the deterrent 
effect of the rules over time.
    Recipients and subrecipients must submit to FTA their own annual 
reports as well as an annual report from each of their contractors with 
covered employees. Each report submitted must cover a calendar year. 
The closing date for data is December 31 and the report is due at FTA 
by March 15 of the following year.
C. Access to Facilities and Records. (Sec. 654.55)
    Paragraph (a) of this section precludes an employer, in most 
circumstances, from releasing information contained in records required 
to be maintained under this rule. Examples of such records include any 
document generated as a result of a reasonable suspicion determination 
or a refusal to take an alcohol test. An employer, however, may release 
information when required to do so by law or this rule, or if expressly 
authorized.
    Paragraph (b) provides that the employer must provide the employee 
copies of records relating to the employee's alcohol tests or 
pertaining to the employee's use of alcohol. Once the employee has 
submitted his request in writing, the employer must promptly provide 
the records to him. The employer may charge for reproducing the records 
but only for those records specifically requested.
    Paragraph (c) requires the employer to allow certain governmental 
entities to have access to any facility used to comply with this rule. 
The rule provides that the Secretary of Transportation or 
representatives from any other DOT agency shall have access. In 
addition, the rule requires an employer to allow the State agency 
designated by the governor to oversee rail fixed guideway systems to 
also have access to its facilities so as to properly oversee the safety 
of a rail fixed guideway system as required by section 28 of the FT 
Act. We note here that the State oversight of rail fixed guideway 
system Notice of Proposed Rulemaking published in the Federal Register 
on December 9, 1993 at 58 FR 64856 contains FTA's proposal for the 
State oversight agency.
    Paragraph (d) requires an employer to give certain governmental 
entities copies of test results and any other information pertaining to 
the employer's alcohol misuse prevention program. Those governmental 
entities are the same as those specified in subsection (c).
    Paragraph (e) requires an employer to disclose information about 
the employer's administration of a post-accident alcohol test to the 
National Transportation Safety Board (NTSB) when it investigates an 
accident.
    Paragraph (f) provides that the employer must give copies of 
certain records to a subsequent employer if the employee makes such a 
request in writing. The employer may disclose only that information 
specifically authorized by the employee in her written request.
    Paragraph (g) requires the employer to disclose certain information 
when requested to do so by the employee or a decisionmaker in a 
lawsuit, grievance, or other proceeding when such a proceeding has been 
initiated by the employee and arises from the results of an alcohol 
test administered under this part or from the employer's determination 
that the employee has violated a provision in subpart B. This provision 
does not cover any proceeding initiated by a third party. This 
provision is limited to employment-type actions such as worker's 
compensation or unemployment compensation which are initiated by the 
employee.
    Subsection (h) provides that the employer must release information 
to any individual when requested to do so by the employee in writing. 
The employer may release only that information specifically authorized 
by the employee.

Subpart E--Consequences for Employees Engaging in Alcohol-Related 
Conduct

    In general, this subpart addresses the consequences to employees 
for violating any provision contained in subpart B. This subpart 
contains three sections, the first two of which apply to every employee 
who has violated a provision in subpart B. The third section concerns 
only those employees whose alcohol concentration level was tested at 
0.02 or greater but less than 0.04.
A. Removal From Safety-sensitive Function. (Sec. 654.61)
    This section requires employers to remove an employee from his 
safety-sensitive function if the employee has violated any of the 
prohibitions listed in subpart B. The regulation is silent concerning 
any subsequent disciplinary actions, including termination's, to be 
taken against the employee.
B. Required Evaluation and Testing. (Sec. 654.63)
    Once an employee has committed a violation of subpart B, she must 
not only be removed from her safety-sensitive position, she must also 
be told of the resources available to her to evaluate and resolve 
problems associated with alcohol misuse. She must then be evaluated by 
a substance abuse professional.
C. Other Alcohol-related Conduct. (Sec. 654.65)
    This section explains the consequences for those employees whose 
alcohol concentration level measures at 0.02 or greater but less than 
0.04. In this situation, the employer has two options: it can retest 
the employee and return her to her safety-sensitive function when the 
test indicates that her alcohol concentration level is less than 0.02. 
Or, the employer may remove the employee from her safety-sensitive 
position for at least eight hours.
    An employer may not apply the consequences of Subpart E to an 
employee whose alcohol level measures at 0.02 or greater but less than 
0.04.

Subpart F--Alcohol Misuse Information, Training, and Referral

A. Employer Obligation to Promulgate a Policy on the Misuse of Alcohol. 
(Sec. 654.71)
    The rule requires an employer to make available to every safety-
sensitive employee a policy statement describing the employer's alcohol 
testing program. The policy must include the following information:
    1. Specific categories of employees subject to testing.
    2. Where to go for more information about the program.
    3. When and why an employee will be tested.
    4. The consequences of failing an alcohol test.
    5. Program elements in addition to those required by the FTA 
regulation.
    The FTA expects each employer to describe the consequences of a 
covered employee's taking an alcohol test indicating an alcohol 
concentration at 0.04 or greater, which must include removal of the 
employee from his safety-sensitive position and evaluation and possible 
referral for treatment. In addition, at the employer's discretion the 
policy statement could describe funding arrangements for treatment. The 
policy must indicate whether an employer would suspend or terminate a 
covered employee who has taken a test with a result at 0.04 or greater, 
and the circumstances under which such actions will be taken.
    The rule does not mandate rehabilitation for a covered employee, 
but only requires that an employee be evaluated by an SAP to determine 
whether the employee has a problem with alcohol misuse. If treatment 
for a covered employee is deemed necessary, the rule does not require 
the employer to pay for it. Any decision to provide treatment, and who 
should pay for it, is made at the local level.
    This position on treatment is consistent with congressional debate 
on the topic. Both Senators Danforth and Hollings clarified this point 
by stating:

    DOT must issue regulations . . . providing for the opportunity 
for treatment of employees in need of assistance in resolving 
problems with alcohol or drug use. My understanding is that this 
does not mandate that rehabilitation be provided but does encourage 
companies to make such programs available. The legislation does not 
discuss who pays for treatment, wages during this period, or rights 
of reinstatement. 137 Cong. Rec. S14770 (daily ed. Oct. 16, 1991) 
(Statement of Sen. Danforth)
    The Senator's understanding is correct. Such arrangement could 
be left to negotiation between the employer and employee, either 
through individual arrangement or collective bargaining, as 
appropriate. . . 137 Cong. Rec. S14770 (daily ed. Oct. 16, 1991) 
(Statement of Sen. Hollings).
B. Training for Supervisors. (Sec. 654.73)
    This section provides that supervisors who may make reasonable 
suspicion determinations must be trained about the physical, 
behavioral, speech, and performance indicators of probable alcohol use. 
Such a supervisor must receive at least 60 minutes of training, which 
may be added to the 60 minutes of training required under the FTA drug 
rule, published elsewhere in today's issue of the Federal Register.
C. Referral, Evaluation, and Treatment. (Sec. 654.75)
    This section concerns only those employees who have violated a 
provision in Subpart B. This section requires the employer to advise 
such an employee of the resources available to her in resolving 
problems associated with alcohol misuse. The information provided by 
the employer should include the names, addresses, and telephone numbers 
of substance abuse professionals and counseling and treatment programs.
    Such an employee must be evaluated by a substance abuse 
professional to determine whether the employee needs help in resolving 
problems associated with alcohol misuse. The substance abuse 
professional then determines what kind of help the employee needs. Any 
employee who has violated subpart B must take a return to duty test 
before she may be allowed to perform a safety-sensitive function with a 
result showing that her alcohol concentration level measures less than 
0.02.
    If, however, the SAP determines that the employee needs help in 
resolving problems with alcohol misuse, the employee must follow the 
course of treatment prescribed by the SAP. To return to duty, the 
employee must be evaluated by a substance abuse professional again to 
determine whether the employee has properly followed the treatment 
course originally prescribed and is able to return to work.
    Then, such an employee must not only take a return to duty test but 
she must also submit to follow-up testing, which occurs unpredictably 
and unannounced for up to sixty months following her return to duty. 
Based on the recommendations of the SAP, the employee may be subject to 
both drug and alcohol follow-up testing. The employee must take at 
least six follow-up alcohol tests (all indicating an alcohol level less 
than 0.02) during the first 12 months following her return to duty. 
After that period of time, the SAP determines whether the employee 
should continue to be subject to follow-up testing for the additional 
48 months and if so shall determine how many tests the employee should 
take and how often they should be administered.
    Such an employee remains separately subject to random alcohol 
testing.
    Paragraph (d) discusses several employment options concerning the 
substance abuse professional. Who pays for the services of the 
substance abuse professional, however, is determined at the local 
level.
    Paragraph (e) prohibits, in some circumstances, a substance abuse 
professional from treating an employee after evaluation and 
determination that the employee needs help. This section, however, 
allows an evaluating SAP also to treat an employee when: (1) the SAP is 
an employee of or under contract to an employer; (2) the SAP is the 
only source of appropriate therapeutic treatment provided under the 
employee's health plan or reasonably accessible to the employee; (3) or 
the SAP works for a public agency such as a State, county, or 
municipality.
    Paragraph (f) provides that an employer is not required to provide 
applicants with an opportunity for referral, evaluation, and treatment.

Subpart G--Compliance

    This subpart establishes the certification requirements for 
recipients of FTA funding under sections 3, 9, or 18 of the FT Act or 
section 103(e)(4) of title 23 of the U.S. Code.
A. Compliance a Condition of FTA Financial Assistance. (Sec. 654.81)
    This section mandates the withholding of Federal funds from a 
recipient of FTA funding under sections 3, 9, or 18 of the FT Act, or 
section 103(e)(4) of title 23 of the U.S. Code, if it is not in 
compliance with the rule. To be in compliance with the rule, the 
recipient either must implement the requirements of the rule or require 
their implementation by subrecipients, operators, contractors, 
employers, or any other entity performing a mass transit function on 
behalf of the recipient.
    It is important to note that any misrepresentation or false 
statement to FTA is a criminal violation under section 1001 of title 18 
of the United States Code.
B. Requirement to Certify Compliance. (Sec. 654.83)
    This section requires a recipient to certify that the requirements 
of the rule have been met. We emphasize that the direct recipient of 
FTA funds makes this certification to FTA.
    The certifications are required annually, with large operators 
submitting their certifications before January 1, 1995, and small 
operators and States submitting their certifications before January 1, 
1996. States will certify on behalf of subrecipients and their 
contractors.
    The certification itself must comply with the sample certification 
provided in Appendix A to this part, be authorized by the recipient's 
governing board or other authorizing official, and be signed by a party 
specifically authorized to do so.

V. Americans With Disabilities Act of 1990

    Title I of the Americans With Disabilities Act of 1990 (ADA) 
focuses on responsibilities of employers for employees. A basic premise 
of title I is that a person with a disability must be provided a 
reasonable accommodation to work. It is possible that some covered 
workers will be considered persons with disabilities for purposes of 
protections under the ADA. For a more complete discussion of this issue 
please see the DOT-wide preamble preceding this FTA document in today's 
Federal Register.

VI. Economic Analysis

    The FTA has evaluated the industry-wide costs and benefits of the 
rule, Prevention of Alcohol Misuse in Transit Operations. This rule 
will require personnel who perform safety-sensitive functions to be 
covered by a formal program to control alcohol misuse in mass transit 
operations. This rule will cover FTA recipients and combine education 
and testing in a comprehensive alcohol misuse prevention program. Five 
types of alcohol tests will be administered:
     Pre-Employment
     Reasonable Suspicion
     Post-Accident
     Random
     Return to Duty/Follow-up
    Transit agencies will be required to report the number of tests 
given, the number of test results at 0.02 or greater and other 
attributes of their program to the FTA and to certify compliance with 
this regulation annually.
    Annual costs of the alcohol testing program range from $10 to $13 
million per year. Total costs over 10 years are $115 million.
    Annual benefits range from $6 to $55 million per year. Total 
benefits over 10 years are $482 million.
    A major premise in calculating both costs and benefits is the 
assumption that all transit systems will start from scratch or ``ground 
zero'' when implementing alcohol testing programs as a result of this 
regulation.
    Estimates in this analysis are based on (1) the 1989 and 1991 
National Urban Mass Transportation Statistics Section 15 Annual 
Reports, (2) the 1991 report, Substance Abuse in the Transit Industry, 
prepared for the FTA by Booz, Allen & Hamilton, Inc., (3) data provided 
by the Substance Abuse and Mental Health Service Administration, and 
(4) information from other agencies, individuals, and organizations 
knowledgeable about alcohol misuse in the United States.

VII. Regulatory Process Matters

A. Executive Order 12688

    The FTA has evaluated the industry costs and benefits of the drug 
testing rule, and has determined that this rulemaking is a significant 
rule under Executive Order 12688 because the required alcohol misuse 
prevention program raises novel policy issues and will materially 
affect public safety as well as State and local governments. This rule 
will not, however, have an annual impact on the economy of $100 million 
or more.

B. Departmental Significance

    This rule is a ``significant regulation'' as defined by the 
Department's Regulatory Policies and Procedures, because it involves an 
important departmental policy and will probably generate a great deal 
of public interest. The purpose of this rule is to make mass transit 
systems safer by ensuring that safety-sensitive employees do not misuse 
alcohol.

C. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., the FTA has evaluated the effects of this rule on small entities. 
Based on the evaluation, the FTA hereby certifies that this action will 
have a significant economic impact on a substantial number of small 
entities. The rule has some provisions designed to mitigate burdens on 
small entities which are discussed in the regulatory evaluation.
    This rule applies to public recipients of Federal Transit funds, 
274 of which are large and 1,341 of which are small. It is estimated 
that it will cost the small transit systems $40 million to implement 
this alcohol rule, with total benefits to them of $147 million over the 
10-year analysis.

D. Paperwork Reduction Act

    This rule includes information collection requirements subject to 
the Paperwork Reduction Act. A request for Paperwork Reduction Act 
approval has been submitted to the Office of Management and Budget in 
conjunction with this rule. Information collection requirements are not 
effective until Paperwork Reduction Act clearance has been received.

E. Executive Order 12612

    We have reviewed this rule under the requirements of Executive 
Order 12612 on Federalism. Although the Federal Transit Administration 
has determined that this rule has significant Federalism implications 
to warrant a Federalism assessment, this rulemaking is mandated by the 
Omnibus Transportation Employee Testing Act of 1991 (the Act). In 
considering the Federalism implications of the rule, FTA has focused on 
several key provisions of Executive Order 12612.
    Necessity for action. This rule is mandated by law, which requires 
comprehensive drug and alcohol testing programs of recipients of 
Federal transit funding. Congress responded to specific accidents by 
mandating these rules to ensure the safety of the transit-riding 
public.
    Consultation with State and local governments. FTA provides 
financial assistance to mass transportation systems throughout the 
country by means of grants to States and public bodies. Because this 
rule will affect those States and local entities, we published a Notice 
of Proposed Rulemaking (NPRM) in the Federal Register to solicit the 
views of the affected entities, including States and local governments, 
and held three public hearings in conjunction with the NPRM. In short, 
we actively sought the views and comments of the affected States and 
localities.
    Need for Federal action. This rule responds to a Congressional 
mandate that the safety of the transit riding public requires 
comprehensive anti-drug and alcohol testing programs.
    Authority. The statutory authority for this final rule is the Act 
mentioned above and discussed elsewhere in the preamble.
    Preemption. This rule preempts any State or local law, order, or 
regulation to the contrary, and also is discussed elsewhere in the 
preamble. Because compliance with the rule is a condition of Federal 
financial assistance, State and local governments have the option of 
not seeking the Federal funds if they do not choose to comply with this 
rule.
F. National Environmental Policy Act
    The agency has determined that this regulation has no environmental 
implications. Its purpose is to regulate the behavior of those safety-
sensitive employees who work in the transit industry and will have no 
appreciable effect on the quality of the environment.
G. Energy Impact Implications
    This regulation does not affect the use of energy because it 
regulates the behavior of those safety-sensitive employees who work in 
the transit industry.

List of Subjects in 49 CFR Part 654

    Alcohol testing, Grant programs--transportation, Mass transit, 
Reporting and recordkeeping requirements, Safety, Transportation.
    Accordingly, for the reasons cited above, the agency amends title 
49 by adding a new part 654, to read as set forth below:

PART 654--Prevention of Alcohol Misuse in Transit Operations

Sec.

Subpart A--General

654.1  Purpose.
654.3  Applicability.
654.5  Alcohol testing procedures.
654.7  Definitions.
654.9  Preemption of State and local laws.
654.11  Other requirements imposed by employers.
654.13  Requirement for notice.
654.15  Starting date for alcohol testing programs.

Subpart B--Prohibitions

654.21  Alcohol concentration.
654.23  On-duty use.
654.25  Pre-duty use.
654.27  Use following an accident.
654.29  Refusal to submit to a required alcohol test.

Subpart C--Tests Required

654.31  Pre-employment testing.
654.33  Post-accident testing.
654.35  Random testing.
654.37  Reasonable suspicion testing.
654.39  Return to duty testing.
654.41  Follow-up testing.
654.43  Retesting of covered employees with an alcohol concentration 
of 0.02 or greater but less than 0.04.

Subpart D--Administrative Requirements

654.51  Retention of records.
654.53  Reporting of results in a management information system.
654.55  Access to facilities and records.

Subpart E--Consequences For Employees Engaging In Alcohol-related 
Conduct

654.61  Removal from safety-sensitive function.
654.63  Required evaluation and testing.
654.65  Other alcohol-related conduct.

Subpart F--Alcohol Misuse Information, Training, and Referral

654.71  Employer obligation to promulgate a policy on the misuse of 
alcohol.
65473  Training for supervisors.
654.75  Referral, evaluation, and treatment.

Subpart G--Compliance

654.81  Compliance a condition of FTA financial assistance.
654.83  Requirement to certify compliance.

Appendix A to Part 654--Sample Certifications of Compliance

Appendix B to Part 654--FTA Alcohol Testing Management Information 
System (MIS) Data Collection Form.

Appendix C to Part 654--FTA Alcohol Testing Management Information 
System (MIS) ``EZ'' Data Collection Form.

    Authority: Sec. 6, Pub. L. 102-143; 49 CFR 1.51.

Subpart A--General


654.1  Purpose.

    The purpose of this part is to establish programs designed to help 
prevent accidents and injuries resulting from the misuse of alcohol by 
employees who perform safety-sensitive functions for employers 
receiving assistance from the Federal Transit Administration (FTA).


654.3  Applicability.

    (a) Except as specifically excluded in paragraph (b) of this 
section, this part applies to a recipient under--
    (1) Section 3, 9, or 18 of the Federal Transit Act, as amended (FT 
Act); or
    (2) Section 103(e)(4) of title 23 of the United States Code.
    (b) A recipient operating a railroad regulated by the Federal 
Railroad Administration (FRA) shall follow 49 CFR part 219 and 
Sec. 654.83 of this part for its railroad operations, and this part for 
its non-railroad operations, if any.

    (Note: For recipients who operate marine vessels, see also United 
States Coast Guard regulations at 33 CFR part 95 and 46 CFR parts 4, 5, 
and 6.)

Sec. 654.5  Alcohol testing procedures.

    Each employer shall ensure that all alcohol testing conducted under 
this part complies with the procedures set forth in part 40 of this 
title. The provisions of part 40 that address alcohol testing are made 
applicable to employers by this part.


Sec. 654.7  Definitions.

    As used in this part--
    Accident means an occurrence associated with the operation of a 
vehicle, if as a result--
    (1) An individual dies;
    (2) An individual suffers a bodily injury and immediately receives 
medical treatment away from the scene of the accident;
    (3) With respect to an occurrence in which the mass transit vehicle 
involved is a bus, electric bus, van, or automobile, one or more 
vehicles incurs disabling damage as the result of the occurrence and is 
transported away from the scene by a tow truck or other vehicle. For 
purposes of this definition, ``disabling damage'' means damage which 
precludes departure of any vehicle from the scene of the occurrence in 
its usual manner in daylight after simple repairs. Disabling damage 
includes damage to vehicles that could have been operated but would 
have been further damaged if so operated, but does not include damage 
which can be remedied temporarily at the scene of the occurrence 
without special tools or parts, tire disablement without other damage 
even if no spare tire is available, or damage to headlights, 
taillights, turn signals, horn, or windshield wipers that makes them 
inoperative; or
    (4) With respect to an occurrence in which the mass transit vehicle 
involved is a rail car, trolley car, trolley bus, or vessel, the mass 
transit vehicle is removed from revenue service.
    Administrator means the Administrator of the Federal Transit 
Administration or the Administrator's designee.
    Alcohol means the intoxicating agent in beverage alcohol, ethyl 
alcohol or other low molecular weight alcohols including methyl or 
isopropyl alcohol.
    Alcohol concentration means the alcohol in a volume of breath 
expressed in terms of grams of alcohol per 210 liters of breath as 
indicated by an evidential breath test under this part.
    Alcohol use means the consumption of any beverage, mixture, or 
preparation, including any medication, containing alcohol.
    Certification means a recipient's written statement, authorized by 
the organization's governing board or other authorizing official, that 
the recipient has complied with the provisions of this part. (See 
Sec. 654.87 for requirements on certification.)
    Confirmation test means a second test, following a screening test 
with a result of 0.02 or greater, that provides quantitative data of 
alcohol concentration.
    Consortium means an entity, including a group or association of 
employers, operators, recipients, subrecipients, or contractors, which 
provides alcohol testing as required by this part, or other DOT alcohol 
testing rule, and which acts on behalf of the employer.
    Contractor means a person or organization that provides a service 
for a recipient, subrecipient, employer, or operator consistent with a 
specific understanding or arrangement. The understanding can be a 
written contract or an informal arrangement that reflects an ongoing 
relationship between the parties.
    Covered employee means a person, including a volunteer, applicant, 
or transferee, who performs a safety-sensitive function for an entity 
subject to this part.
    DOT means the United States Department of Transportation.
    DOT agency means an agency (or ``operating administration'') of the 
United States Department of Transportation administering regulations 
requiring alcohol testing (14 CFR part 61, 63, 65, 121, and 135; 49 CFR 
parts 199, 219, 382, and 654) in accordance with part 40 of this title.
    Employer means a recipient or other entity that provides mass 
transportation service or which performs a safety-sensitive function 
for such recipient or other entity. This term includes subrecipients, 
operators, and contractors.
    FTA means the Federal Transit Administration, an agency of the U.S. 
Department of Transportation.
    Large operator means a recipient or subrecipient primarily 
operating in an area of 200,000 or more in population.
    Performing (a safety-sensitive function) means a covered employee 
is considered to be performing a safety-sensitive function and includes 
any period in which he or she is actually performing, ready to perform, 
or immediately available to perform such functions.
    Railroad means all forms of non-highway ground transportation that 
run on rails or electromagnetic guideways, including (1) commuter or 
other short-haul rail passenger service in a metropolitan or suburban 
area, as well as any commuter rail service which was operated by the 
Consolidated Rail Corporation as of January 1, 1979, and (2) high speed 
ground transportation systems that connect metropolitan areas, without 
regard to whether they use new technologies not associated with 
traditional railroads. Such term does not include rapid transit 
operations within an urban area that are not connected to the general 
railroad system of transportation.
    Recipient means an entity receiving Federal financial assistance 
under section 3, 9, or 18, of the FT Act, or under section 103(e)(4) of 
title 23 of the United States Code.
    Refuse to submit (to an alcohol test) means that a covered employee 
fails to provide adequate breath for testing without a valid medical 
explanation after he or she has received notice of the requirement to 
be tested in accordance with the provisions of this part, or engages in 
conduct that clearly obstructs the testing process.
    Safety-sensitive function means any of the following duties:
    (1) Operating a revenue service vehicle, including when not in 
revenue service;
    (2) Operating a nonrevenue service vehicle, when required to be 
operated by a holder of a Commercial Driver's License;
    (3) Controlling dispatch or movement of a revenue service vehicle;
    (4) Maintaining a revenue service vehicle or equipment used in 
revenue service, unless the recipient receives section 18 funding and 
contracts out such services; or
    (5) Carrying a firearm for security purposes.
    Screening test means an analytical procedure to determine whether a 
covered employee may have a prohibited concentration of alcohol in his 
or her system.
    Small operator means a recipient or subrecipient primarily 
operating in an area of less than 200,000 in population.
    Substance abuse professional (SAP) means a licensed physician 
(Medical Doctor or Doctor of Osteopathy), or a licensed or certified 
psychologist, social worker, employee assistance professional, or 
addiction counselor (certified by the National Association of 
Alcoholism and Drug Abuse Counselors Certification Commission), with 
knowledge of and clinical experience in the diagnosis and treatment of 
drug and alcohol-related disorders.
    Vehicle means a bus, electric bus, van, automobile, rail car, 
trolley car, trolley bus, or vessel. A ``mass transit vehicle'' is a 
vehicle used for mass transportation.
    Violation rate means the number of covered employees (as reported 
under Sec. 654.53 of this part) found during random tests given under 
this part to have an alcohol concentration of .04 or greater, plus the 
number of employees who refuse a random test required by this part, 
divided by the total reported number of employees in the industry given 
random alcohol tests under this part plus the total reported number of 
employees in the industry who refuse a random test required by this 
part.


Sec. 654.9  Preemption of State and local laws.

    (a) Except as provided in paragraph (b) of this section, this part 
preempts any State or local law, rule, regulation, or order, to the 
extent that:
    (1) Compliance with both the State or local requirement and any 
requirement in this part is not possible; or
    (2) Compliance with the State or local requirement is an obstacle 
to the accomplishment and execution of any requirement in this part.
    (b) This part shall not be construed to preempt provisions of State 
criminal law that impose sanctions for reckless conduct leading to 
actual loss of life, injury, or damage to property, whether the 
provisions apply specifically to transportation employees or employers 
or to the general public.


Sec. 654.11  Other requirements imposed by employers.

    Except as expressly provided in this part, nothing in this part 
shall be construed to affect the authority of employers, or the rights 
of employees, with respect to the use or possession of alcohol, 
including authority and rights with respect to alcohol testing and 
rehabilitation.


Sec. 654.13  Requirement for notice.

    Before performing an alcohol test under this part, each employer 
shall notify a covered employee that the alcohol test is required by 
this part. No employer shall falsely represent that a test is 
administered under this part.


Sec. 654.15  Starting date for alcohol testing programs.

    (a) Large employers. Each recipient operating in an area of 200,000 
or more in population on March 17, 1994 shall implement the 
requirements of this part beginning on January 1, 1995.
    (b) Small employers. Each recipient operating in an area of 200,000 
or less in population on March 17, 1994 shall implement the 
requirements of this part beginning on January 1, 1996.
    (c) An employer shall have an alcohol misuse program that conforms 
to this part by January 1, 1996, or by the date the employer begins 
operations, whichever is later.

Subpart B--Prohibitions


Sec. 654. 21  Alcohol concentration.

    Each employer shall prohibit a covered employee from reporting for 
duty or remaining on duty requiring the performance of safety-sensitive 
functions while having an alcohol concentration of 0.04 or greater. No 
employer having actual knowledge that a covered employee has an alcohol 
concentration of 0.04 or greater shall permit the employee to perform 
or continue to perform safety-sensitive functions.


Sec. 654.23  On-duty use.

    Each employer shall prohibit a covered employee from using alcohol 
while performing safety-sensitive functions. No employer having actual 
knowledge that a covered employee is using alcohol while performing 
safety-sensitive functions shall permit the employee to perform or 
continue to perform safety-sensitive functions.


Sec. 654.25  Pre-duty use.

    (a) General. Each employer shall prohibit a covered employee from 
using alcohol within 4 hours prior to performing safety-sensitive 
functions. No employer having actual knowledge that a covered employee 
has used alcohol within four hours of performing a safety-sensitive 
function shall permit the employee to perform or continue to perform 
safety-sensitive functions.
    (b) On-call employees. An employer shall prohibit the consumption 
of alcohol for the specified on-call hours of each covered employee who 
is on-call. The procedure shall include:
    (1) The opportunity for the covered employee to acknowledge the use 
of alcohol at the time he or she is called to report to duty and the 
inability to perform his or her safety-sensitive function.
    (2) The requirement that the covered employee take an alcohol test, 
if the covered employee has acknowledged the use of alcohol, but claims 
ability to perform his or her safety-sensitive function.


Sec. 654.27  Use following an accident.

    Each employer shall prohibit any covered employee required to take 
a post-accident alcohol test under Sec. 654.33 from alcohol use for 
eight hours following the accident or until he or she undergoes a post-
accident alcohol test, whichever occurs first.


Sec. 654.29  Refusal to submit to a required alcohol test.

    Each employer shall require a covered employee to submit to a post-
accident alcohol test required under Sec. 654.33, a random alcohol test 
required under Sec. 654.35, a reasonable suspicion alcohol test 
required under Sec. 654.37, or a follow-up alcohol test required under 
Sec. 654.41. No employer shall permit an employee who refuses to submit 
to such a test to perform or continue to perform safety-sensitive 
functions.

Subpart C--Tests Required


Sec. 654.31  Pre-employment testing.

    (a) Prior to the first time a covered employee performs safety-
sensitive functions for an employer, the employer shall ensure that the 
employee undergoes testing for alcohol. No employer shall allow a 
covered employee to perform safety-sensitive functions, unless the 
employee has been administered an alcohol test with a result indicating 
an alcohol concentration less than 0.04. If a pre-employment test 
result under this section indicates an alcohol concentration of 0.02 or 
greater but less than 0.04, the provisions of Sec. 654.65 shall apply.
    (b) An employer may elect not to administer an alcohol test 
required by paragraph (a) of this section, if:
    (1) The employee has undergone an alcohol test required by this 
Part or the alcohol misuse rule of another DOT agency under part 40 of 
this title within the previous six months, with a result indicating an 
alcohol concentration less than 0.04; and
    (2) The employer ensures that no prior employer of the covered 
employee of whom the employer has knowledge has records of a violation 
of this subpart or the alcohol misuse rule of another DOT agency within 
the previous six months.


Sec. 654.33  Post-accident testing.

    (a)(1) Fatal accidents. As soon as practicable following an 
accident involving the loss of human life, an employer shall test each 
surviving covered employee on duty in the mass transit vehicle at the 
time of the accident. The employer shall also test any other covered 
employee whose performance could have contributed to the accident, as 
determined by the employer using the best information available at the 
time of the decision.
    (2) Nonfatal accidents. (i) As soon as practicable following an 
accident not involving the loss of human life, in which the mass 
transit vehicle involved is a bus, electric bus, van, or automobile, 
the employer shall test each covered employee on duty in the mass 
transit vehicle at the time of the accident if that employee has 
received a citation under State or local law for a moving traffic 
violation arising from the accident. The employer shall also test any 
other covered employee whose performance could have contributed to the 
accident, as determined by the employer using the best information 
available at the time of the decision.
    (ii) As soon as practicable following an accident not involving the 
loss of human life, in which the mass transit vehicle involved is a 
rail car, trolley car, trolley bus, or vessel, the employer shall test 
each covered employee on duty in the mass transit vehicle at the time 
of the accident unless the employer determines, using the best 
information available at the time of the decision, that the covered 
employee's performance can be completely discounted as a contributing 
factor to the accident. The decision not to administer a test under 
this paragraph shall be based on the employer's determination, using 
the best available information at the time of the determination, that 
the employee's performance could not have contributed to the accident. 
The employer shall also test any other covered employee whose 
performance could have contributed to the accident, as determined by 
the employer using the best information available at the time of the 
decision.
    (b) If a test required by this section is not administered within 
two hours following the accident, the employer shall prepare and 
maintain on file a record stating the reasons the test was not promptly 
administered. If a test required by this paragraph is not administered 
within eight hours following the accident, the employer shall cease 
attempts to administer an alcohol test and shall maintain the same 
record. Records shall be submitted to the FTA upon request of the 
Administrator.
    (c) A covered employee who is subject to post-accident testing who 
fails to remain readily available for such testing, including notifying 
the employer or employer representative of his or her location if he or 
she leaves the scene of the accident prior to submission to such test, 
may be deemed by the employer to have refused to submit to testing. 
Nothing in this section shall be construed to require the delay of 
necessary medical attention for injured people following an accident or 
to prohibit a covered employee from leaving the scene of an accident 
for the period necessary to obtain assistance in responding to the 
accident or to obtain necessary emergency medical care.


Sec. 654.35  Random testing.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random alcohol testing 
shall be 25 percent of covered employees.
    (b) The Administrator's decision to increase or decrease the 
minimum annual percentage rate for random alcohol testing is based on 
the reported violation rate for the entire industry. All information 
used for this determination is drawn from the alcohol MIS reports 
required by Sec. 654.53. In order to ensure reliability of the data, 
the Administrator considers the quality and completeness of the 
reported data, may obtain additional information or reports from 
employers, and may make appropriate modifications in calculating the 
industry violation rate. Each year, the Administrator will publish in 
the Federal Register the minimum annual percentage rate for random 
alcohol testing of covered employees. The new minimum annual percentage 
rate for random alcohol testing will be applicable starting January 1 
of the calendar year following publication.
    (c)(1) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or more, the Administrator may lower this rate to 
10 percent of all covered employees if the Administrator determines 
that the data received under the reporting requirements of Sec. 654.53 
for two consecutive calendar years indicate that the violation rate is 
less than 0.5 percent.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 50 percent, the Administrator may lower this rate to 25 
percent of all covered employees if the Administrator determines that 
the data received under the reporting requirements of Sec. 654.53 for 
two consecutive calendar years indicate that the violation rate is less 
than 1.0 percent but equal to or greater than 0.5 percent.
    (d)(1) When the minimum annual percentage rate for random alcohol 
testing is 10 percent, and the data received under the reporting 
requirements of Sec. 654.53 for that calendar year indicate that the 
violation rate is equal to or greater than 0.5 percent, but less than 
1.0 percent, the Administrator will increase the minimum annual 
percentage rate for random alcohol testing to 25 percent of all covered 
employees.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or less, and the data received under the 
reporting requirements of Sec. 654.53 for that calendar year indicate 
that the violation rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random alcohol testing to 50 percent of all covered employees.
    (e) The selection of employees for random alcohol testing shall be 
made by a scientifically valid method, such as a random number table or 
a computer-based random number generator that is matched with 
employees' Social Security numbers, payroll identification numbers, or 
other comparable identifying numbers. Under the selection process used, 
each covered employee shall have an equal chance of being tested each 
time selections are made.
    (f) The employer shall randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
alcohol testing determined by the Administrator. If the employer 
conducts random alcohol testing through a consortium, the number of 
employees to be tested may be calculated for each individual employer 
or may be based on the total number of covered employees covered by the 
consortium who are subject to random alcohol testing at the same 
minimum annual percentage rate under this part or any DOT alcohol 
testing rule.
    (g) Each employer shall ensure that random alcohol tests conducted 
under this part are unannounced and that the dates for administering 
random tests are spread reasonably throughout the calendar year.
    (h) Each employer shall require that each covered employee who is 
notified of selection for random alcohol testing proceeds to the test 
site immediately; provided, however, that if the employee is performing 
a safety-sensitive function at the time of the notification, the 
employer shall instead ensure that the employee ceases to perform the 
safety-sensitive function and proceeds to the testing site as soon as 
possible.
    (i) A covered employee shall only be randomly tested while the 
employee is performing safety-sensitive functions; just before the 
employee is to perform safety-sensitive functions; or just after the 
employee has ceased performing such functions.


Sec. 654.37  Reasonable suspicion testing.

    (a) An employer shall require a covered employee to submit to an 
alcohol test when the employer has reasonable suspicion to believe that 
the employee has violated the prohibitions in this part.
    (b) The employer's determination that reasonable suspicion exists 
to require the covered employee to undergo an alcohol test shall be 
based on specific, contemporaneous, articulable observations concerning 
the appearance, behavior, speech or body odors of the employee. The 
required observations shall be made by a supervisor who is trained in 
detecting the symptoms of alcohol misuse. The supervisor who makes the 
determination that reasonable suspicion exists shall not conduct the 
breath alcohol test on that employee.
    (c) Alcohol testing is authorized by this section only if the 
observations required by paragraph (b) of this section are made during, 
just preceding, or just after the period of the work day that the 
covered employee is required to be in compliance with this part. An 
employer may direct a covered employee to undergo reasonable suspicion 
testing for alcohol only while the employee is performing safety-
sensitive functions; just before the employee is to perform safety-
sensitive functions; or just after the employee has ceased performing 
such functions.
    (d)(1) If a test required by this section is not administered 
within two hours following the determination under paragraph (b) of 
this section, the employer shall prepare and maintain on file a record 
stating the reasons the test was not promptly administered. If a test 
required by this section is not administered within eight hours 
following the determination under paragraph (b) of this section, the 
employer shall cease attempts to administer an alcohol test and shall 
state in the record the reasons for not administering the test.
    (2) Notwithstanding the absence of a reasonable suspicion alcohol 
test under this section, an employer shall not permit a covered 
employee to report for duty or remain on duty requiring the performance 
of safety-sensitive functions while the employee is under the influence 
of or impaired by alcohol, as shown by the behavioral, speech, or 
performance indicators of alcohol misuse, nor shall an employer permit 
the covered employee to perform or continue to perform safety-sensitive 
functions, until:
    (i) An alcohol test is administered and the employee's alcohol 
concentration measures less than 0.02 percent; or
    (ii) The start of the employee's next regularly scheduled duty 
period, but not less than 8 hours following the determination under 
paragraph (b) of this section that there is reasonable suspicion to 
believe that the employee has violated the prohibitions in this part.
    (3) Except as provided in paragraph (d)(2), no employer shall take 
any action under this part against a covered employee based solely on 
the employee's behavior and appearance in the absence of an alcohol 
test. This does not prohibit an employer with the authority independent 
of this part from taking any action otherwise consistent with law.


Sec. 654.39  Return to duty testing.

    Each employer shall ensure that before a covered employee returns 
to duty requiring the performance of a safety-sensitive function after 
engaging in conduct prohibited by subpart B of this part, the employee 
shall undergo a return to duty alcohol test with a result indicating an 
alcohol concentration of less than 0.02. (See Sec. 654.75)


Sec. 654.41  Follow-up testing.

    (a) Follow-up testing shall be conducted when the employee is 
performing safety-sensitive functions; just before the employee is to 
perform safety-sensitive functions; or just after the employee has 
ceased performing such functions.
    (b) Following a determination under Sec. 654.75(b) that a covered 
employee is in need of assistance in resolving problems associated with 
alcohol misuse, each employer shall ensure that the employee is subject 
to unannounced follow-up testing as directed by a substance abuse 
professional in accordance with the provisions of 
Sec. 654.75(c)(2)(ii).


Sec. 654.43  Retesting of covered employees with an alcohol 
concentration of 0.02 or greater but less than 0.04.

    Each employer shall retest a covered employee to ensure compliance 
with the provisions of Sec. 654.65, if the employer chooses to permit 
the employee to perform a safety-sensitive function within 8 hours 
following the administration of an alcohol test indicating an alcohol 
concentration of 0.02 or greater but less than 0.04.

Subpart D--Administrative Requirements


Sec. 654.51  Retention of records.

    (a) General requirement. Each employer shall maintain records of 
its alcohol misuse prevention program as provided in this section. The 
records shall be maintained in a secure location with controlled 
access.
    (b) Period of retention. Each employer shall maintain the records 
in accordance with the following schedule:
    (1) Five years. Records of employee alcohol test results with 
results indicating an alcohol concentration of 0.02 or greater, 
documentation of refusals to take required alcohol tests, calibration 
documentation, and employee evaluation and referrals shall be 
maintained for a minimum of five years. Each employer shall maintain a 
copy of its annual MIS report(s) for a minimum of five years.
    (2) Two years. Records related to the collection process (except 
calibration of EBT's) and training shall be maintained for a minimum of 
two years.
    (3) One year. Records of all test results less than 0.02 shall be 
maintained for a minimum of one year.
    (c) Types of records. The following specific records shall be 
maintained.
    (1) Records related to the collection process:
    (i) Collection logbooks, if used.
    (ii) Documents relating to the random selection process.
    (iii) Calibration documentation for evidential breath testing 
devices.
    (iv) Documentation of breath alcohol technician training.
    (v) Documents generated in connection with decisions to administer 
reasonable suspicion alcohol tests.
    (vi) Documents generated in connection with decisions on post-
accident tests.
    (vii) Documents verifying existence of a medical explanation of the 
inability of a covered employee to provide adequate breath for testing.
    (2) Records related to test results:
    (i) The employer's copy of the alcohol test form, including the 
results of the test.
    (ii) Documents related to the refusal of any covered employee to 
submit to an alcohol test required by this part.
    (iii) Documents presented by a covered employee to dispute the 
result of an alcohol test administered under this part.
    (3) Records related to other violations of this part.
    (4) Records related to evaluations:
    (i) Records pertaining to a determination by a substance abuse 
professional concerning a covered employee's need for assistance.
    (ii) Records concerning a covered employee's compliance with the 
recommendations of the substance abuse professional.
    (5) Copies of annual MIS reports submitted to FTA.
    (6) Records related to education and training:
    (i) Materials on alcohol misuse awareness, including a copy of the 
employer's policy on alcohol misuse.
    (ii) Documentation of compliance with the requirements of 
Sec. 654.71 of this part.
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination 
concerning the need for alcohol testing based on reasonable suspicion.
    (iv) Certification that any training conducted under this part 
complies with the requirements for such training.


Sec. 654.53 Reporting of results in a management information system.

    (a) Each recipient shall submit to the FTA Office of Safety and 
Security by March 15 of each year a report covering the previous 
calendar year (January through December 31), summarizing the results of 
its alcohol misuse prevention program.
    (b) Each recipient shall ensure the accuracy and timeliness of each 
report submitted by an employer, consortium, joint enterprise, or by a 
third party service provider acting on the employer's behalf.
    (c) Each report that contains information on an alcohol screening 
test result of 0.02 or greater or a violation of the alcohol misuse 
provisions of this part shall include the following informational 
elements:
    (1) Number of FTA covered employees by employee category.
    (2)(i) Number of screening tests by type of test and employee 
category.
    (ii) Number of confirmation tests, by type of test and employee 
category.
    (3) Number of confirmation alcohol tests indicating an alcohol 
concentration of 0.02 or greater but less than 0.04, by type of test 
and employee category.
    (4) Number of confirmation alcohol tests indicating an alcohol 
concentration of 0.04 or greater, by type of test and employee 
category.
    (5) Number of persons denied a position as a covered employee 
following a pre-employment alcohol test indicating an alcohol 
concentration of 0.04 or greater.
    (6) Number of covered employees with a confirmation alcohol test 
indicating an alcohol concentration of 0.04 or greater who were 
returned to duty in covered positions during the reporting period 
(having complied with the recommendation of a substance abuse 
professional as described in Sec. 654.75).
    (7) Number of fatal and nonfatal accidents which resulted in a 
post-accident alcohol test indicating an alcohol concentration of 0.04 
or greater.
    (8) Number of fatalities resulting from accidents which resulted in 
a post-accident alcohol test indicating an alcohol concentration of 
0.04 or greater.
    (9) Number of covered employees who were found to have violated 
other provisions of subpart B of this part and the action taken in 
response to the violation.
    (10) Number of covered employees who were administered alcohol and 
drug tests at the same time, with a positive drug test result and an 
alcohol test result indicating an alcohol concentration of 0.04 or 
greater.
    (11) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (12) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (13) Number of supervisors who have received training during the 
reporting period in determining the existence of reasonable suspicion 
of alcohol misuse.
    (14) Identification of FTA funding source(s).
    (d) Each report with no screening test results of 0.02 or greater 
or violations of the alcohol misuse provisions of this part shall 
include the following informational elements. (This report may only be 
submitted if the program results meet these criteria.)
    (1) Number of FTA covered employees.
    (2) Number of alcohol tests conducted with results less than 0.02 
by type of test and employee category.
    (3) Number of employees with a confirmation alcohol test indicating 
an alcohol concentration of 0.04 or greater who were returned to duty 
in a covered position during the reporting period.
    (4) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (5) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (6) Number of supervisors who have received training during the 
reporting period in determining the existence of reasonable suspicion 
of alcohol misuse.
    (7) Identification of FTA funding source(s).


Sec. 654.55  Access to facilities and records.

    (a) Except as required by law or expressly authorized or required 
in this section, no employer shall release covered employee information 
that is contained in records required to be maintained under 
Sec. 654.51.
    (b) A covered employee is entitled, upon written request, to obtain 
copies of any records pertaining to the employee's use of alcohol, 
including any records pertaining to his or her alcohol tests. The 
employer shall promptly provide the records requested by the employee. 
Access to an employee's records shall not be contingent upon payment 
for records other than those specifically requested.
    (c) Each employer shall permit access to all facilities utilized in 
complying with the requirements of this part to the Secretary of 
Transportation, any DOT agency with regulatory authority over the 
employer or any of its covered employees or to a State oversight agency 
authorized to oversee rail fixed guideway systems.
    (d) Each employer shall make available copies of all results for 
employer alcohol testing conducted under this part and any other 
information pertaining to the employer's alcohol misuse prevention 
program, when requested by the Secretary of Transportation, or any DOT 
agency with regulatory authority over the employer or covered employee, 
or to a State oversight agency authorized to oversee rail fixed 
guideway systems.
    (e) When requested by the National Transportation Safety Board as 
part of an accident investigation, employers shall disclose information 
related to the employer's administration of a post-accident alcohol 
test administered following the accident under investigation.
    (f) Records shall be made available to a subsequent employer upon 
receipt of written request from the covered employee. Disclosure by the 
subsequent employer is permitted only as expressly authorized by the 
terms of the employee's request.
    (g) An employer may disclose information required to be maintained 
under this part pertaining to a covered employee to the employee or the 
decisionmaker in a lawsuit, grievance, or other proceeding initiated by 
or on behalf of the individual, and arising from the results of an 
alcohol test administered under this part, or from the employer's 
determination that the employee engaged in conduct prohibited by 
subpart B of this part (including, but not limited to, a worker's 
compensation, unemployment compensation, or other proceeding relating 
to a benefit sought by the employee).
    (h) An employer shall release information regarding a covered 
employee's records as directed by the specific, written consent of the 
employee authorizing release of the information to an identified 
person. Release of such information by the person receiving the 
information is permitted only in accordance with the terms of the 
employee's consent.

Subpart E--Consequences for Employees Engaging in Alcohol-related 
Conduct


Sec. 654.61  Removal from safety-sensitive function.

    Except as provided in subpart F of this part, no employer shall 
permit any covered employee to perform safety-sensitive functions if 
the employee has engaged in conduct prohibited by subpart B of this 
part or an alcohol misuse rule of another DOT agency.


Sec. 654.63  Required evaluation and testing.

    No employer shall permit any covered employee who has engaged in 
conduct prohibited by subpart B of this part to perform safety-
sensitive functions unless the employee has met the requirements of 
Sec. 654.75.


Sec. 654.65  Other alcohol-related conduct.

    (a) No employer shall permit a covered employee tested under the 
provisions of subpart C of this part who is found to have an alcohol 
concentration of 0.02 or greater but less than 0.04 to perform or 
continue to perform safety-sensitive functions, until:
    (1) The employee's alcohol concentration measures less than 0.02; 
or
    (2) The start of the employee's next regularly scheduled duty 
period, but not less than eight hours following administration of the 
test.
    (b) Except as provided in paragraph (a) of this section, no 
employer shall take any action under this part against an employee 
based solely on test results showing an alcohol concentration less than 
0.04. This does not prohibit an employer with authority independent of 
this part from taking any action otherwise consistent with law.

Subpart F--Alcohol Misuse Information, Training, and Referral


Sec. 654.71  Employer obligation to promulgate a policy on the misuse 
of alcohol.

    (a) General requirements. Each employer shall provide educational 
materials that explain the requirements of this part and the employer's 
policies and procedures with respect to meeting those requirements. The 
policy shall be adopted by the employer's governing board.
    (1) The employer shall ensure that a copy of these materials is 
distributed to each covered employee prior to the start of alcohol 
testing under this section of the employer's alcohol misuse prevention 
program and to each person subsequently hired or transferred to a 
covered position.
    (2) Each employer shall provide written notice to every covered 
employee and to representatives of employee organizations of the 
availability of this information.
    (b) Required content. The materials to be made available to covered 
employees shall include detailed discussion of at least the following:
    (1) The identity of the person designated by the employer to answer 
employee questions about the materials.
    (2) The categories of employees who are subject to the provisions 
of this part.
    (3) Sufficient information about the safety-sensitive functions 
performed by those employees to make clear what period of the work day 
the covered employee is required to be in compliance with this part.
    (4) Specific information concerning employee conduct that is 
prohibited by this part.
    (5) The circumstances under which a covered employee will be tested 
for alcohol under this part.
    (6) The procedures that will be used to test for the presence of 
alcohol, protect the employee and the integrity of the breath testing 
process, safeguard the validity of the test results, and ensure that 
those results are attributed to the correct employee.
    (7) The requirement that a covered employee submit to alcohol tests 
administered in accordance with this part.
    (8) An explanation of what constitutes a refusal to submit to an 
alcohol test and the attendant consequences.
    (9) The consequences for covered employees found to have violated 
the prohibitions imposed under subpart B, including the requirement 
that the employee be removed immediately from safety-sensitive 
functions, and the procedures under Sec. 654.75 of this part.
    (10) The consequences for covered employees found to have an 
alcohol concentration of 0.02 or greater but less than 0.04.
    (11) Information concerning the effects of alcohol misuse on an 
individual's health, work, and personal life; signs and symptoms of an 
alcohol problem (the employee's or a coworker's); and available methods 
of intervening when an alcohol problem is suspected, including 
confrontation, referral to any available EAP, and/or referral to 
management.
    (c) Optional provisions. The materials supplied to covered 
employees may also include information on additional employer policies 
with respect to the use or possession of alcohol, including any 
consequences for an employee found to have a specified alcohol 
concentration, that are based on the employer's authority independent 
of this part. Any such additional policies or consequences shall be 
clearly and obviously described as being based on independent 
authority.


Sec. 654.73  Training for supervisors.

    Every employer shall ensure that supervisors designated to 
determine whether reasonable suspicion exists to require a covered 
employee to undergo alcohol testing under Sec. 654.37 receive at least 
60 minutes of training on the physical, behavioral, speech, and 
performance indicators of probable alcohol misuse.


Sec. 654.75  Referral, evaluation, and treatment.

    (a) Each covered employee who has engaged in conduct prohibited by 
subpart B of this part shall be advised by the employer of the 
resources available to the employee in evaluating and resolving 
problems associated with the misuse of alcohol, including the names, 
addresses, and telephone numbers of substance abuse professionals and 
counseling and treatment programs.
    (b) Each covered employee who engages in conduct prohibited under 
subpart B shall be evaluated by a substance abuse professional who 
shall determine what assistance, if any, the employee needs in 
resolving problems associated with alcohol misuse.
    (c)(1) Before a covered employee returns to duty requiring the 
performance of a safety-sensitive function after engaging in conduct 
prohibited by subpart B of this part, the employee shall undergo a 
return to duty alcohol test with a result indicating an alcohol 
concentration of less than 0.02. In addition, the substance abuse 
professional may recommend that the employee be subject to a return to 
duty drug test, performed in accordance with 49 CFR part 40.
    (2) In addition, each covered employee identified as needing 
assistance in resolving problems associated with alcohol misuse:
    (i) Shall be evaluated by a substance abuse professional to 
determine that the employee has properly followed any rehabilitation 
program prescribed under paragraph (b) of this section, and
    (ii) Shall be subject to unannounced follow-up alcohol testing 
administered by the employer following the employee's return to duty. 
The number and frequency of such follow-up testing shall be as directed 
by the substance abuse professional, and consist of at least six tests 
in the first 12 months following the employee's return to duty. In 
addition, follow up testing may include testing for drugs , as directed 
by the substance abuse professional, to be performed in accordance with 
of 49 CFR part 40. Follow-up testing shall not exceed 60 months from 
the date of the employee's return to duty. The substance abuse 
professional may terminate the requirement for follow-up testing at any 
time after the first six tests have been administered, if the substance 
abuse professional determines that such testing is no longer necessary.
    (d) 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.
    (e) The employer shall ensure that a substance abuse professional 
who determines that a covered employee requires assistance in resolving 
problems with alcohol misuse 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 in 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--
    (1) A public agency, such as a State, county, or municipality;
    (2) The employer or a person under contract to provide treatment 
for alcohol problems on behalf of the employer;
    (3) The sole source of therapeutically appropriate treatment under 
the employee's health insurance program; or
    (4) The sole source of therapeutically appropriate treatment 
reasonably accessible to the employee.
    (f) The requirements of this section with respect to referral, 
evaluation, and rehabilitation, do not apply to applicants who refuse 
to submit to a pre-employment alcohol test or who have a pre-employment 
alcohol test with a result indicating an alcohol concentration of 0.04 
or greater.

Subpart G--Compliance


Sec. 654.81  Compliance a condition of FTA financial assistance.

    (a) General. A recipient may not be eligible for Federal financial 
assistance under section 3, 9, or 18 of the Federal Transit Act, as 
amended, or under section 103(e)(4) of title 23 of the United States 
Code if a recipient fails to establish and implement an alcohol misuse 
prevention program as required by this part. Failure to certify 
compliance with these requirements, as specified in Sec. 654.83, will 
result in the suspension of a grantee's eligibility for Federal 
funding.
    (b) Criminal violation. A recipient is subject to criminal 
sanctions and fines for false statements or misrepresentations under 
Sec. 1001 of title 18 of the United States Code.
    (c) State's role. Each State shall certify compliance on behalf of 
its section 3, 9 or 18 subrecipients, as applicable, whose grant the 
State administers. In so certifying, the State shall ensure that each 
subrecipient is complying with the requirements of this part. A section 
3, 9 or 18 subrecipient, through the administering State, is subject to 
suspension of funding from the State if such subrecipient is not in 
compliance with this part.


Sec. 654.83  Requirement to certify compliance.

    (a) A recipient of FTA financial assistance shall certify annually 
to the applicable FTA Regional Office compliance with the requirements 
of this part, including the training requirements. Large operators 
shall certify compliance initially by January 1, 1995. Small operators 
and States shall certify compliance initially by January 1, 1996.
    (b) A certification must be authorized by the organization's 
governing board or other authorizing official, and must be signed by a 
party specifically authorized to do so. A certification must comply 
with the applicable sample certification provided in Appendix A to this 
part.

Appendix A to Part 654--Sample Certifications of Compliance

    This Appendix contains two separate examples of certification 
language. The first example consists of the generally applicable 
certification language. Example II should be used by employers who 
are covered by Federal Railroad Administration's alcohol misuse 
prevention program regulations.

I

    (a) For recipients who are large or small operators
    I, (name), (title), certify that (name of recipient) and its 
contractors, as required, for (name of recipient), has established 
and implemented an alcohol misuse prevention program in accordance 
with the terms of 49 CFR part 654.
    (b) For States certifying on behalf of its subrecipients and 
their contractors
    I, (name, title) on behalf of (STATE) certify that the entities 
on the attached list of Federal Transit Act subrecipients operating 
in this State, have established and implemented alcohol misuse 
prevention programs in accordance with the terms of 49 CFR part 654.

II

    The text of the certification of an employer that provides 
commuter rail transportation service regulated by the Federal 
Railroad Administration shall be as follows:
    I, (name), (title), certify that (name of recipient) and its 
contractors, as required, for (name of recipient), has an alcohol 
misuse prevention program that meets the requirements of the Federal 
Railroad Administration's regulations for employees regulated by the 
Federal Railroad Administration, and has established and implemented 
an alcohol misuse prevention program in accordance with the terms of 
49 CFR part 654 for all other covered employees who perform safety-
sensitive functions.

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    Issued: January 25, 1994.
Federico Pena,
Secretary of Transportation.
Gordon J. Linton,
Administrator.
[FR Doc. 94-2039 Filed 2-3-94; 1:00 pm]
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