[Federal Register Volume 60, Number 43 (Monday, March 6, 1995)]
[Rules and Regulations]
[Pages 12296-12297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5177]



      

[[Page 12295]]

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Part III





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; Final Rules

  Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules 
and Regulations   
[[Page 12296]] 

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 653

[Docket No 92-H]
RIN 2132-AA37


Prevention of Prohibited Drug Use in Transit Operations

AGENCY: Federal Transit Administration, DOT.

ACTION: Final rule; technical amendments.

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SUMMARY: The Federal Transit Administration (FTA) is making technical 
amendments to its anti-drug rule to correct a citation, add words that 
inadvertently had been omitted, redesignate a provision, and clarify 
portions of the preamble discussion of the rule. This rule is intended 
to clarify the existing rule.

DATES: This rule is effective March 6, 1995.

FOR FURTHER INFORMATION CONTACT: Nancy M. Zaczek, Attorney-Advisor for 
Legislation and Rulemakings, Office of the Chief Counsel, FTA, 400 7th 
Street SW, Washington DC 20590. (202) 366-4011. Information may also be 
obtained from Judy Meade or Rhonda Crawley of the Office of Safety and 
Security, Federal Transit Administration, same address. (202) 366-2896.

SUPPLEMENTARY INFORMATION: FTA recipients and other interested parties 
may access this rule through the FTA's Transit Safety and Security 
Bulletin Board using a microcomputer and a modem. The telephone number 
for the Bulletin Board is 1-800-231-2061. The Bulletin Board is a user-
friendly, menu-driven system with information accessible seven days a 
week, twenty-four hours a day. Once registration is completed, 
interested parties may access this and other regulations.
    To obtain additional information regarding access to the Bulletin 
Board, please contact the Operator, at (617) 494-2108, or leave a 
message on the Message Board of the Bulletin Board.
    The FTA is making the following technical amendments to its anti-
drug rule.

Applicability--Commuter Railroads and CDL Holders

    The applicability provision, section 653.5, clarifies which 
Department of Transportation (DOT) drug and alcohol testing program 
covers Commercial Drivers License (CDL) holders who work for commuter 
railroads. Three DOT agencies are involved in this issue: FTA, which 
funds commuter railroads; the Federal Railroad Administration (FRA), 
which regulates railroads, including commuter railroads; and the 
Federal Highway Administration (FHWA), which requires CDL holders to be 
tested for prohibited drugs and the misuse of alcohol. Under the FTA's 
final rule, to avoid jurisdictional problems, commuter railroads that 
receive FTA funds are to comply with FRA's drug and alcohol regulation. 
Because the FRA regulation only covers hours-of-service employees, 
however, there remains a question as to which agency's drug and alcohol 
program covers CDL holders who work for a commuter railroad. This rule 
clarifies that it is FHWA's regulation that covers such CDL holders.
    We also note that the FRA hours-of-service classification system 
does not include the same kinds of workers covered under FTA's rules; 
for example, armed security personnel are covered by FTA's rules but 
not FRA's. Because FTA in its rule has delegated its authority to 
require commuter railroads to implement a drug and alcohol testing 
program to FRA, commuter railroad workers who are not safety-sensitive 
under FRA's rule are not subject to testing, even though they would be 
if they were subject to FRA's rules.
    Section 653.5 is changed to correct a citation error in a reference 
to the regulations of the United States Coast Guard. The citation now 
reads 33 CFR part 95 and 46 CFR parts 4, 5, and 16.

Definitions

    The definition of the term ``disabling damage'' is changed to be 
consistent with the definition used by the Federal Highway 
Administration, and is now defined independently of the term 
``accident.''
    The definition of ``large operator'' is changed to add the word 
``urbanized,'' which inadvertently was omitted. Thus, a large operator 
operates primarily in an urbanized area of 200,000 or more in 
population.
    A parallel change is made to the definition of ``small operator,'' 
which operates primarily in a nonurbanized area or in an urbanized area 
of less than 200,000 in population. These changes are consistent with 
the way the Federal Transit Administration administers its grant 
programs.
    The definition of ``safety-sensitive function'' is changed, at 
subsection (4), to clarify that the rule excludes from coverage 
maintenance contractors working for recipients or small operators 
primarily serving an area of less than 50,000 in population, regardless 
of whether they receive section 18 or section 3 funding.
    The definition of ``vehicle'' is changed to add, in the category of 
``mass transit vehicle,'' certain vehicles used for services ancillary 
to mass transportation. The definition of a mass transit vehicle thus 
now includes not only buses and vans, but also nonrevenue service 
commercial motor vehicles and vehicles used by armed security 
personnel.

Starting Date for Drug Testing Programs

    Section 653.13 makes a conforming change in the implementation 
section of the rule to reflect the addition of the word ``urbanized'' 
to the definition of large operator.

Referral, Evaluation, and Treatment

    Section 653.37(a) is changed to add the word ``or,'' which 
clarifies that an employee who either refuses to submit to a drug test 
or has a verified positive drug test result must be advised of the 
resources available to him or her in evaluating and resolving problems 
associated with prohibited drug use, including the names, addresses, 
and telephone numbers of substance abuse professionals and counseling 
and treatment programs.

Supervisors Acting as a Collection Person

    The reasonable suspicion testing provision, section 653.43, 
specifically prohibited a supervisor from acting as a collection site 
person for covered employees under his or her direct supervision. This 
provision, however, was misplaced; it was our intention to prohibit a 
direct supervisor from acting as a collection site person for any of 
the tests required under the rule. Accordingly, we have redesignated 
section 653.43(c) as section 653.65.

Post-Accident Testing

    Sections 653.45(a)(1), (a)(2)(i), and (a)(2)(ii) are amended to 
change the phrase ``on duty in,'' to ``operating.'' The provision as 
drafted required the testing of any safety-sensitive employee on duty 
in a revenue service vehicle when an accident occurred. The rule, 
however, was not meant to use the same standard for both vehicle 
operators and other covered employees who happen to be in the vehicle 
at the time of the accident. Thus, the mass transit vehicle operator 
must be tested if an accident has occurred and he or she has received a 
citation from a State or local law enforcement official. (In a Notice 
of Proposed Rulemaking published in the Federal Register on February 6, 
1995, at 60 FR 7169, the FTA seeks comment on whether this citation 
requirement should be deleted.) We note that to test 
[[Page 12297]] other covered employees, the employer must determine 
whether that employee contributed to the accident, using the best 
information available at the time of the decision.

Random Testing Rate

    On December 2, 1994, FTA changed section 653.47 by, among other 
things, adopting a performance-based random drug testing rate. For more 
information on these changes, see 59 FR 62217-62231.

Certification of Compliance

    On October 12, 1994, the FTA published a Federal Register Notice, 
at 59 FR 51793, entitled ``Annual List of Certifications and Assurances 
for Federal Transit Administration Grants and Cooperative Agreements.'' 
In the Notice, FTA compiled a complete listing and the full text of the 
certifications and assurances necessary to receive financial assistance 
from the Federal Transit Administration. Instead of submitting a 
variety of certifications and assurances with each grant application, 
the grant applicant and its attorney certify compliance with all of the 
certifications and assurances relevant to any and all grants for which 
the grant applicant wishes to apply in fiscal year 1995 by signing the 
single Signature Page, attached to the Notice at 59 FR 51813. The 
Notice, which will be updated and republished annually for use in 
future fiscal years, includes a certification of compliance with the 
FTA drug and alcohol testing program. Accordingly, we are deleting as 
unnecessary the sample certification in the rule.

Retention of Records

    The preamble discussion of this topic contained an error; 
specifically, it stated in Subpart E, paragraph A, at 59 FR 7587, that 
``[t]he rule provides three separate record retention periods for 
different types of records--five years, three years, and one year.'' 
Actually, records must be retained for either five years, two years, or 
one year. The regulatory text, however, is accurate, and remains 
unchanged.

Executive Order 12612

    We inadvertently stated in this paragraph, at 59 FR 7589, that FTA 
was not preempting Indian tribal law. Elsewhere in the preamble, 
however, we discussed this issue at length and concluded that FTA is 
preempting Indian tribal law under the standard developed by the Ninth 
Circuit in Donovan v. Coeur d'Alene Tribal Farm, 751 F. 2d 1113, 1116 
(9th Cir. 1985). There is a comprehensive discussion of this issue in 
the Federal Register, published on February 15, 1994, at 59 FR 7541, 
7549, and 7581.

List of Subjects in Part 653

    Drug testing, Grant programs--transportation, Mass transportation, 
Reporting and recordkeeping requirements, Safety and Transportation.
    For the reasons set forth in the preamble, the FTA amends Title 49, 
Code of Federal Regulations, part 653 as follows:
    1. The authority for part 653 continues to read as follows:

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

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


Sec. 653.5   [Amended]

    a. Paragraph (b) of Sec. 653.5 is amended by removing ``part 219'' 
and adding ``parts 219 and 382, as appropriate''.
    2. The note to Sec. 653.5 is amended by changing the phrase ``and 
6'' to the phrase ``and 16''.


Sec. 653.7   [Amended]

    3. In Sec. 653.7, the definition of accident is amended in 
paragraph (3) by removing the period at the end of the first sentence 
and adding a semicolon; and by removing the second and third sentences.
    4. The definition of large operator is amended by adding the word 
``urbanized'' after the word ``an'' and before the word ``area''.
    5. The definition of safety-sensitive function is amended in 
paragraph (4) by adding the words ``section 3 funding and is in an area 
of less than 50,000 in population or'' after the word ``receives'' and 
before the word ``section''.
    6. The definition of small operator is amended by removing the 
words ``in an area'' and adding in their place the words ``in a 
nonurbanized area or in an urbanized area.''
    7. The definition of vehicle is amended by adding the words ``or 
for ancillary services'' after the word ``transportation'' and before 
the period.
    8. In Sec. 653.7 a new definition following the definition of 
``covered employee'' is added as follows:


Sec. 653.7   [Definitions]

* * * * *
    Disabling damage means damage which precludes departure of a motor 
vehicle from the scene of the accident in its usual manner in daylight 
after simple repairs.
    (1) Inclusion. Damage to motor vehicles that could have been 
driven, but would have been further damaged if so driven.
    (2) Exclusions.
    (i) Damage which can be remedied temporarily at the scene of the 
accident without special tools or parts.
    (ii) Tire disablement without other damage even if no spare tire is 
available.
    (iii) Headlamp or taillight damage.
    (iv) Damage to turn signals, horn, or windshield wipers which makes 
them inoperative.
* * * * *


Sec. 653.13   [Amended]

    9. Section 653.13(a) is amended by adding the word ``primarily'' 
after the word ``operating'' and before the word ``in'' and by adding 
the word ``urbanized'' after the word ``an'' and before the word 
``area''.
    10. Section 653.13(b) is amended by removing the words ``operating 
in an area'' and adding in their place the words ``operating primarily 
in a nonurbanized area or in an urbanized area''.


Sec. 653.37   [Amended]

    11. Section 653.37(a) is amended by adding the word ``or'' after 
the word ``result'' and before the word ``refuses''.


Sec. 653.43   [Amended]

    12. Section 653.43(c) is redesignated as Sec. 653.65, Supervisor 
acting as collection site person, in subpart D.


Sec. 653.45   [Amended]

    13. Section 653.45(a)(1) is amended by removing the phrase ``on 
duty in'' and adding in its place the word ``operating''.
    14. Section 653.45(a)(2)(i) is amended by removing the phrase ``on 
duty in'' and adding the word ``operating'' in its place.
    15. Section 653.45(a)(2)(ii) is amended by removing the phrase ``on 
duty in'' and adding the word ``operating'' in its place.

Appendix A to Part 653 [Removed and Reserved]

    16. Appendix A to Part 653, Sample Certification of Compliance, is 
removed and reserved.

    Date Issued: February 27, 1995.
Gordon J. Linton,
Administrator.
[FR Doc. 95-5177 Filed 3-3-95; 8:45 am]
BILLING CODE 4910-57-U