[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]]
_______________________________________________________________________
Part VIII
Department of Transportation
_______________________________________________________________________
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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