[Federal Register Volume 60, Number 24 (Monday, February 6, 1995)]
[Proposed Rules]
[Pages 7100-7101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2732]



      

[[Page 7099]]

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Part II





Department of Transportation





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Federal Transit Administration



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49 CFR Parts 653 and 654



Prevention of Prohibited Drug Use and Alcohol Misuse in Transit 
Operations; Proposed Rule

  Federal Register / Vol. 60, No. 24 / Monday, February 6, 1995 / 
Proposed Rules   
[[Page 7100]] 

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Parts 653 and 654

[Docket No. 92-H or I]
RIN 2132-AA37; 2132-AA38


Prevention of Prohibited Drug Use in Transit Operations; 
Prevention of Alcohol Misuse in Transit Operations

AGENCY: Federal Transit Administration, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Transit Administration (FTA) is proposing to amend 
its drug and alcohol testing rules to exempt volunteers and eliminate 
the citation requirement in the non-fatal, post-accident testing 
provision applicable to non-rail vehicles. We also seek comment on 
whether an ``accident'' should be defined to include the discharge of a 
firearm by a transit security officer. This rule, if adopted, is 
intended to increase the safety of mass transit and clarify certain 
provisions in the existing rules.

DATES: Comments on these proposed amendments must be submitted by April 
7, 1995.

ADDRESSES: Comments should be sent to: Docket Clerk, Docket No. 92-H or 
I, Federal Transit Administration, Department of Transportation, 400 
Seventh Street SW., Room 9316, Washington DC 20590. Comments will be 
available for inspection at this address Monday through Friday from 9 
a.m. to 5 p.m. If you would like acknowledgment of receipt of your 
comment, please include a stamped, self-addressed postcard with your 
comment.

FOR FURTHER INFORMATION CONTACT: For program issues, Judy Meade or 
Rhonda Crawley of the Office of Safety and Security, Federal Transit 
Administration, (202) 366-2896. For legal questions, Nancy M. Zaczek or 
Daniel Duff, Office of the Chief Counsel, Federal Transit 
Administration, (202) 366-4011.

SUPPLEMENTARY INFORMATION: The FTA proposes to make the following 
changes to its drug and alcohol testing rules.

I. Volunteers

    Under the final drug and alcohol rules, published in the Federal 
Register on February 15, 1994, at 59 FR 7531-7611, a volunteer who 
performs a safety-sensitive function generally is subject to testing 
for prohibited drugs and the misuse of alcohol. Since issuance of the 
final rules, however, a number of entities have urged the agency to 
exempt volunteers from application of the rules, contending that many 
volunteer drivers and dispatchers would be unwilling to continue to 
provide free services if they are subject to drug and alcohol testing. 
Indeed, volunteers may have a heightened concern about privacy and 
related issues that arise in connection with drug and alcohol testing 
since they are not paid for their services and often are not entitled 
to the benefits paid employees receive. Moreover, organizations that 
use volunteer drivers are concerned about the practicality and cost of 
covering volunteers under the rules.
    To help frame this issue, we provide the following general 
information about the role of volunteers in mass transportation 
activities. Volunteers are used by a number of entities, particularly 
recipients of FTA formula funding for nonurbanized areas (formerly the 
section 18 program), which means that most such entities are not 
required to implement the drug and alcohol testing program until 
January 1, 1996, the implementation date for small operators. According 
to letters we have received, a typical volunteer is a community-minded 
senior citizen. Many volunteers act as drivers, but at least one agency 
uses volunteers to dispatch vehicles from their homes. The volunteers 
generally donate their time and often their own vehicles. In return, 
they often are reimbursed for mileage costs; some also are reimbursed 
for maintenance costs.
    Entities that use volunteers often principally serve the elderly 
and persons with disabilities; one agency notes that it does not serve 
anyone under the age of 60. Several FTA recipients or subrecipients 
lease vehicles to the American Red Cross, which often uses volunteer 
drivers. Most serve sparsely populated areas; one agency indicates that 
it serves five rural communities with a combined population of 6,000 
persons.
    The number of volunteers used by the agencies varies greatly; for 
example, one agency uses 30 volunteers, another 450. One agency 
reported that it provided 16,000 trips using volunteer drivers, another 
11,700 trips. One organization indicated that 70 percent of the trips 
it provided were for medical purposes.
    Accordingly, FTA seeks comment on whether volunteers should be 
excluded from coverage under the rules. Does the potential loss of 
volunteer services from application of the rules outweigh any safety 
issues? Are those who volunteer their services unlikely or less likely 
to take prohibited drugs or operate a vehicle while alcohol impaired? 
Do the affected organizations evaluate their volunteers' performance? 
We note, moreover, that FTA is the only DOT drug and alcohol program 
specifically to require testing of volunteers, although the Federal 
Highway Administration's testing of those required to hold a Commercial 
Driver's License (CDL) would apply to any volunteers in that category.

II. Post-Accident Testing

    The FTA proposes to change sections 653.45(a)(2)(i) and 
654.33(a)(2)(i), which require a post-accident drug and alcohol test 
after a non-fatal accident when the mass transit vehicle involved is a 
bus, van, electric bus, or automobile. Those sections currently require 
a post-accident test if, among other things, the operator of the mass 
transit vehicle involved in the accident receives a citation from a 
State or local law enforcement official.
    We have been advised that an operator of a mass transit vehicle 
rarely receives a citation from the police, or, if one is issued, often 
it is several days or weeks after the accident. Because a post-accident 
test must be conducted as soon as practicable following an accident, 
but no later than 32 hours after the accident for drug testing and 8 
hours for alcohol testing, the citation requirement under the existing 
regulations effectively precludes a transit operator from conducting a 
post-accident drug and alcohol test in connection with accidents of 
this type. We therefore propose to change this portion of the post-
accident testing provision by deleting the citation requirement and 
inserting in its place the phrase ``unless the employer determines, 
using the best information at the time of the decision, that the 
covered employee's performance can be completely discounted as a 
contributing factor to the accident.''
    Under the proposed revision, a post-accident test would be required 
of an operator of a mass transit vehicle after a non-fatal accident 
involving a bus, van, electric bus, or automobile when an individual 
has been injured as a result of an occurrence associated with the 
operation of the vehicle and immediately receives medical attention 
away from the scene, or any vehicle suffers ``disabling damage.'' Once 
these conditions are met the operator of the vehicle must be given a 
post-accident test unless the employer has determined that the 
employee's actions could not have contributed to the accident.
    We seek comment on this proposed amendment and note that it affects 
only the operator of the mass transit vehicle. [[Page 7101]] 

III. Definition of Accident--Armed Security Personnel

    In the rules, an accident is limited to events involving the 
operation of a mass transit vehicle. Some commenters, however, note 
that the definition of accident does not include the discharge of a 
firearm by armed security personnel, who are considered safety-
sensitive workers subject to the drug and alcohol testing program.
    While we are aware of the danger that drug or alcohol impaired 
security personnel could pose to the traveling public, in developing 
the rules we assumed that, in the event of a discharge of a weapon, 
affected security personnel would be subject to an appropriate internal 
review of the circumstances that triggered the discharge. In this 
connection, FTA has stated that its drug and alcohol testing rules do 
not cover police officers who provide some services to a transit 
property, but are not supervised by the transit system, recognizing 
that in most municipalities police officers who discharge firearms are 
subject to their own internal comprehensive review procedures regarding 
any such incident.
    We now seek comment on this issue in general but do not propose a 
revision of the rule in this Notice of Proposed Rulemaking. Should we 
amend the definition of ``accident'' to include the discharge of a 
firearm by a covered employee while on duty? Should all discharges be 
covered or just those deemed ``accidental,'' or only those incidents 
resulting in injury or death? Or is this matter one that should be left 
to the transit system to address under its own procedures? In this 
regard, we seek comment on the existing safety procedures applicable to 
armed security transit personnel in the event of a discharge of a 
weapon.

IV. Regulatory Process Matters

A. Executive Order 12688

    The FTA evaluated the industry costs and benefits of the drug and 
alcohol testing rules when it issued 49 CFR parts 653 and 654 on 
February 15, 1994, at 59 FR 7531-7611. It is not anticipated that the 
proposed change to the post-accident testing provision would alter the 
costs and benefits of either part 653 or 654. On the other hand, the 
exclusion of volunteers from coverage under the rules would slightly 
lower the overall cost of the program.

B. Departmental Significance

    Neither rule is a ``significant regulation'' as defined by the 
Department's Regulatory Policies and Procedures, because it proposes 
only minor changes to parts 653 and 654.

C. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., the FTA evaluated the effects of parts 653 and 654 on small 
entities when they were issued in February 1994. These proposed changes 
will not change that analysis.

D. Paperwork Reduction Act

    This rule does not include information collection requirements 
subject to the Paperwork Reduction Act.

E. Executive Order 12612

    We reviewed parts 653 and 654 under the requirements of Executive 
Order 12612 on Federalism. These proposed rules, if adopted, will not 
change those assessments.

F. National Environmental Policy Act

    The agency determined that these regulations had no environmental 
implications when it issued parts 653 and 654, and there will be none 
under the proposed rules, if adopted.

G. Energy Impact Implications

    These proposed regulations do not affect the use of energy.

List of Subjects in 49 CFR Parts 653 and 654

    Alcohol testing, Drug testing, Grant programs--transportation, Mass 
transportation, Reporting and recordkeeping requirements, Safety and 
Transportation.

    For the reasons set forth in the preamble, the FTA proposes to 
amend Title 49, Code of Federal Regulations, parts 653 and 654 as 
follows:

PART 653--PREVENTION OF PROHIBITED DRUG USE IN TRANSIT OPERATIONS

    1. The authority citation for part 653 continues to read as 
follows:

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

    2. The definition of ``covered employee'' in section 653.7 is 
revised to read as follows:


Sec. 653.7  Definitions.

* * * * *
    Covered employee means a person, including an applicant, or 
transferee, who performs a safety-sensitive function for an entity 
subject to this part, or a volunteer who is required by Federal law or 
regulation to hold a Commercial Driver's License when performing a 
safety-sensitive function for the employer.
* * * * *


Sec. 653.45  [Amended]

    3. The first sentence of section 653.45(a)(2)(i) is amended by 
removing ``if that employee has received a citation under State or 
local law for a moving traffic violation arising from the accident'' 
and adding ``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''.

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

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

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

    5. The definition of ``covered employee'' in section 654.7 is 
revised to read as follows:


Sec. 654.7  Definitions.

* * * * *
    Covered employee means a person, including an applicant, or 
transferee, who performs a safety-sensitive function for an entity 
subject to this part, or a volunteer who is required to hold a 
Commercial Driver's License under Federal law or regulation when 
performing a safety-sensitive function for the employer.
* * * * *


Sec. 654.33  [Amended]

    6. The first sentence of section 654.33(a)(2)(i) is amended by 
removing ``if that employee has received a citation under State or 
local law for a moving traffic violation arising from the accident'' 
and adding ``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''.

    Issued on: January 31, 1995.
Gordon J. Linton,
Administrator.
[FR Doc. 95-2732 Filed 2-3-95; 8:45 am]
BILLING CODE 4910-57-U