[Federal Register Volume 60, Number 148 (Wednesday, August 2, 1995)]
[Rules and Regulations]
[Pages 39618-39620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19025]




[[Page 39617]]

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Part VIII





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 in Transit Operations; Prevention of 
Alcohol Misuse in Transit Operations; Final Rule

  Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / 
Rules and Regulations   

[[Page 39618]]


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: Final rule.

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Summary: The Federal Transit Administration (FTA) is amending 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. This rule is intended to ease 
administrative burdens and clarify certain provisions in the existing 
rules.

Effective Date: September 1, 1995.

For Further Information Contact: For program issues, Judy Meade, Office 
of Safety and Security, Federal Transit Administration, telephone: 202-
366-2896. For legal questions, Nancy Zaczek or Kristin O'Grady, Office 
of Chief Counsel, Federal Transit Administration, telephone: 202-366-
4011 (voice); 202-366-2979 (TDD). Copies of the regulation are 
available in alternative formats upon request.

Supplementary Information: On February 6, 1995, FTA published a Notice 
of Proposed Rulemaking (NPRM) proposing to amend its drug and alcohol 
testing rules to (1) exempt volunteers and (2) eliminate the citation 
requirement in the non-fatal, post-accident testing provision 
applicable to non-rail vehicles. FTA also sought comment on whether an 
``accident'' should be defined to include the discharge of a firearm by 
a transit security officer. FTA received 83 comments over a two-month 
period.

I. Volunteers

    Under FTA's current drug and alcohol rules, 49 CFR Parts 653 and 
654, 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 in 1994, however, a number of 
entities have urged the agency to exempt volunteers from application of 
the rules.

Comments

    On the volunteer issue, FTA received 54 comments from large and 
small transit operators, one insurance carrier, two U.S. senators, one 
U.S. representative, and two associations. An overwhelming majority of 
these commenters (50 of 54) favored exempting volunteers. Only four 
commenters (two large transit operators, one small transit operator, 
and one trade organization) opposed exempting volunteers from FTA's 
drug and alcohol testing rules. The commenters raised a number of key 
issues:
    Volunteers are not likely to be involved in drug or alcohol-caused 
collisions. Several commenters pointed out that no statistical evidence 
suggests that volunteer transit drivers have been involved in drug or 
alcohol-caused collisions. Many small operators stated that they have 
operated for years without one incident relating to the use of drugs or 
alcohol. Several operators noted that they already provide a 
comprehensive screening program that evaluates a volunteer's driving 
record along with their criminal history. For example, one program 
requires a medical statement signed by a physician, a vehicle 
inspection statement signed by a mechanic, proof of insurance, a 
driver's license print-out, and a code of conduct which includes a 
statement that the driver will not use mood-altering drugs or alcohol 
while serving as a volunteer. In addition, this same program requires 
annual medical and vehicle statements from its existing drivers. 
Further, commenters claimed that volunteers are generally retired 
professionals with a heightened level of safety. According to 
commenters, the majority of volunteers are over 60 years old, 
community-minded, and not likely to be drug or alcohol users.
    People will not volunteer if they must submit to drug and alcohol 
testing rules. Commenters stated that volunteers consider a drug and 
alcohol test an invasion of privacy. Since volunteers are not 
compensated for their services and are not entitled to the benefits 
that employees receive, volunteers are not likely to submit to drug and 
alcohol testing requirements. In fact, several commenters stated that 
some volunteers have indicated that they would not continue to 
volunteer if they had to submit to a drug or alcohol test. Some 
commenters claimed that volunteerism is down from last year and argued 
that required drug and alcohol testing will surely exacerbate this 
downward trend.
    It is costly and impractical for organizations to administer drug 
and alcohol tests to volunteers. Many volunteers are part-time and 
serve a variety of functions, e.g. clerical support, in addition to 
safety-sensitive work. Commenters stated that segregating these 
functions would cause administrative havoc. According to a number of 
commenters, volunteers do not perform safety-sensitive work on a 
regular and consistent basis. As a result, testing would be difficult 
to administer. Several commenters argued that the cost of administering 
these tests would be prohibitive. Some claimed that the cost of 
providing testing would drain operating budgets and drastically reduce 
the services that are provided. For example, one commenter estimated 
that the cost of providing drug testing for its volunteers would exceed 
$43,000 per year. This additional cost would translate into 597 fewer 
rides per month or 7,164 rides per year. Another dimension of the 
problem would be the cost of losing the use of volunteers' vehicles. A 
number of commenters indicated that volunteers often provide 
transportation with their own vehicles. The potential loss of those 
drivers would place a tremendous hardship on transit providers in rural 
areas.
    Exempting volunteers compromises rider safety. As mentioned above, 
four commenters believe that exempting volunteer drivers from drug and 
alcohol testing is contrary to the spirit of the testing mandates of 
Congress and in direct conflict with safe practice and common sense. 
One commenter suggested that the exemption compromises safety and 
erodes the intent of a drug and alcohol-free workplace.

Discussion

    FTA agrees with those commenters that favor exempting volunteers 
from the drug and alcohol testing requirements. Based on the comments 
submitted to FTA, the significant cost of subjecting volunteers to drug 
and alcohol testing far outweighs the safety benefits. Commenters 
indicated that volunteers often are screened by the operator and are 
mature citizens with good driving records. Furthermore, the costs 
related to conducting drug and alcohol testing of volunteers are 
considerable. First, the operator must divert funds from its 
transportation functions to pay for drug and alcohol testing. Second, 
the operator may lose volunteers and their vehicles if drug and alcohol 
testing is required. Third, the time volunteers are able to donate is 
always limited and would be further restricted by the time consumed by 
the testing process. Finally, many of the operators that depend heavily 
on volunteers are small and cannot easily absorb the extra cost that 
testing volunteers would involve.
    As noted above, a few commenters argued that exempting volunteer 
drivers 

[[Page 39619]]
from drug and alcohol testing is contrary to the spirit of the testing 
mandates of Congress in the Omnibus Employee Testing Act of 1991. 
However, the legislative history of the drug and alcohol testing 
requirement does not reflect a specific concern about drug and alcohol 
testing of volunteers. In fact, the tragic accidents that moved 
Congress to action involved professional transportation employees, not 
volunteers. See, for example, Conference Report to Accompany H.R. 2942, 
Department of Transportation and Related Agencies Appropriation Bill, 
Fiscal Year 1992, in Congressional Record, H7672, October 3, 1991.
    FTA recognizes that the term ``volunteer,'' as used in the revised 
definition of ``covered employee,'' could be construed broadly to 
include any non-employee. FTA's intention in this final rule, however, 
is to exempt only non-employee volunteers who perform a service as a 
charitable act without the expectation of receiving a benefit, whether 
financial or as part of a program established to relieve an obligation. 
Other non-employees remain covered by the rule, i.e., those who provide 
charitable service in return for some benefit, for example, in the 
context of ``workfare''-type programs that make public assistance or 
other benefits contingent on the donation of transportation services or 
community service programs that confer academic credit or provide an 
alternative to a criminal sentence. This issue was not raised in the 
NPRM or in the comments to the docket, but we would consider it in the 
future if appropriate.

II. Post-Accident Testing

    FTA received 20 comments from large and small transit operators on 
FTA's proposal to eliminate the citation requirement in the non-fatal, 
post-accident testing provision applicable to non-rail transit 
vehicles. Currently, 49 CFR sections 653.45(a)(2)(i) and 
654.33(a)(2)(i) require a post-accident drug and alcohol test after a 
non-fatal accident 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. Five large and two small 
transit operators favored retaining the citation requirement. Eight 
large and five small transit operators commented that the citation 
requirement should be eliminated.

Comments

    Commenters made the following arguments in favor of eliminating the 
citation requirement:
    Police officers rarely issue citations in time for drug and alcohol 
testing to be useful. The majority of commenters indicated that law 
enforcement officials rarely issue citations in non-fatal accidents. 
When a citation is warranted, often too much time has passed for the 
testing to be useful. One commenter pointed out that unless an officer 
witnesses the accident, the officer will want to conduct an 
investigation before issuing a citation, which means that virtually no 
post-accident tests are conducted for non-fatal accidents.
    Local guidelines sometimes already require testing without a 
citation. Two large commenters indicated that local guidelines provide 
for a stricter standard that already requires post-accident testing, 
even without a citation being issued.
    Requiring a citation is inconsistent with the Omnibus Employee 
Testing Act of 1991. One commenter opined that the Omnibus 
Transportation Employee Testing Act of 1991 requires that FTA mandate 
testing, without the citation requirement, to insure that the transit 
industry is free from employees using illegal drugs and misusing 
alcohol while performing safety-sensitive functions.
    FTA's definition of ``accident'' should change. Commenters 
suggested several changes to FTA's definition of ``accident'' for the 
purpose of determining when post-accident testing is necessary. It was 
not FTA's intention to solicit comments on this part of the rule, but 
rather the part of the rule that currently requires a citation to be 
issued before post-accident testing occurs.
    Commenters made the following arguments in favor of retaining the 
citation requirement:
    The citation requirement is easy to follow. One commenter noted 
that the citation requirement provides an easily understood benchmark 
and gives decision-making confidence to supervisors and managers. 
Another commenter pointed out that the current regulation operates well 
in that it requires the judgment of law enforcement officials, people 
who are trained in accident investigation, to assess whether the 
transit operator's actions contributed to the accident.
    The proposed rule would require more testing, which will increase 
overall costs. One commenter estimated that the proposed rule would 
require the testing of approximately twenty more individuals a year, 
adding an additional $3,000 to their estimated $70,000 annual cost of 
conducting drug and alcohol testing. Another commenter pointed out that 
elimination of the citation requirement will result in additional 
unfunded costs that are not in proportion to any expected benefit.

Discussion

    FTA agrees with those commenters who favor removing the citation 
requirement. Because of the delay in issuing a citation in many 
accidents, the citation requirement renders post-accident alcohol and 
drug testing virtually ineffective.
    Arguments that removing the citation requirement would increase the 
number of drug and alcohol tests given and increase the cost are not 
persuasive. The legislative history reveals that Congress intended that 
post-accident testing of safety-sensitive employees should be required

    In the case of any accident in which occurs a loss of human 
life, or, as determined by the Secretary, other serious accident 
involving bodily injury or significant property damage. It is not 
the Committee's intent that drug and alcohol testing should be 
required every time there is an accident involving a mass 
transportation operation. Rather, post-accident testing should be 
limited to those instances in which there is a loss of human life or 
other accident of sufficient magnitude in terms of bodily injury or 
significant property damage for which testing for drugs and alcohol 
would be warranted. Report of the Senate Committee on Commerce, 
Science, and Transportation, on S. 676, Omnibus Transportation 
Employee Testing Act of 1991. 102d Congress, 1st Session, Report 
102-54 (1991). (Emphasis added.)

Based upon the comments FTA received, the Agency does not believe that 
the issuance of a citation is the best measure for whether the accident 
is of sufficient magnitude to warrant drug and alcohol testing. The 
issuance of a citation depends on several factors, such as whether the 
law enforcement officer was physically present at the accident scene. 
These factors are often completely unrelated to the magnitude of the 
accident. Moreover, the timing of the issuance of a citation is not 
driven by the requirements of drug and alcohol testing. As a result, by 
the time a citation is issued, it is often too late to conduct drug and 
alcohol testing.
    The result of requiring a citation as the trigger for a post-
accident drug and alcohol test is that too many accidents have not been 
properly investigated for drug and alcohol-related causes. This 
amendment is better tailored to accomplish the Congressional intent 
that all significant, non-fatal accidents should trigger drug and 
alcohol testing of appropriate personnel.

III. Definition of Accident--Armed Security Personnel

    FTA received only seven responses to our request for comment on 
whether the 

[[Page 39620]]
definition of ``accident'' should include the discharge of a firearm by 
armed security personnel (who are considered safety-sensitive workers 
subject to the drug and alcohol testing program). Most commenters 
opposed an amendment to the definition of ``accident'' to include the 
discharge of a firearm by a covered employee while on duty. Most of 
these commenters were transit operators who noted that they already 
have internal policies and procedures for dealing with accidental 
discharges of firearms. A few commenters favored including the 
discharge of a firearm in the definition of ``accident,'' mostly for 
safety reasons. Since there seems to be little interest in amending the 
definition of accident to include the discharge of firearms, FTA will 
not take any action at this time.

IV. Regulatory Process Matters

A. Executive Order 12688

    The FTA evaluated the 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 change to the 
post-accident testing provision should significantly alter the costs 
and benefits of either part 653 or 654. On the other hand, the 
exclusion of volunteers from coverage under the rules should 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 involves 
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 changes will not 
significantly change that analysis, but should reduce the cost of drug 
and alcohol testing for small entities.

D. Paperwork Reduction Act

    This rules 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 these amendments.

G. Energy Impact Implications

    These amendments 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 is amending 
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; however, a volunteer is covered only if operating 
a vehicle designed to transport sixteen or more passengers, including 
the driver.
* * * * *


Sec. 653.45  [Amended]

    3. The first sentence of Sec. 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; however, a volunteer is covered only if operating 
a vehicle designed to transport sixteen or more passengers, including 
the driver.
* * * * *


Sec. 654.33  [Amended]

    6. The first sentence of Sec. 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: July 28, 1995.
Gordon J. Linton,
Administrator.
[FR Doc. 95-19025 Filed 8-1-95; 8:45 am]
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