[Federal Register Volume 62, Number 189 (Tuesday, September 30, 1997)]
[Proposed Rules]
[Pages 51076-51078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25742]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Parts 653 and 654

[Docket No. FTA-97-2925]
RIN 2132-AA56


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: In response to a request from a transit agency, the Federal 
Transit Administration (FTA) proposes to allow employers to use the 
results of post-accident drug and alcohol tests administered by State 
or local law enforcement personnel when the State and local law 
enforcement officials have independent authority for the tests and the 
employer obtains the results in conformance with State and local law. 
In short, in a very limited number of cases, the employer would be 
relieved of administering post-accident drug and alcohol tests. If this 
amendment is adopted, it could ease the burden of employers in testing 
``safety-sensitive'' employees after an accident has occurred; it may 
also relieve some ``safety-sensitive'' employees from taking 
duplicative post-accident drug and alcohol tests.

DATES: Comments on this proposed rule must be submitted by December 1, 
1997.

ADDRESSES: Written comments must refer to the docket number that 
appears above and be submitted to the United States Department of 
Transportation, Central Dockets Office, PL-401, 400 Seventh Street, 
S.W. Washington, D.C. 20590. All comments received will be available 
for inspection at the above address from 10 a.m. to 5 p.m., e.t. Monday 
through Friday, except Federal holidays. Those desiring the agency to 
acknowledge receipt of their comments should include a self-addressed 
stamped postcard with their comments.

FOR FURTHER INFORMATION CONTACT: For program issues: Judy Meade, 
Director of the Office of Safety and Security (202) 366-2896 
(telephone) or (202) 366-7951 (fax). For legal issues: Nancy Zaczek, 
Office of the Chief Counsel (202) 366-4011 (telephone) or (202) 366-
3809 (fax). Electronic access to this and other rules may be obtained 
through FTA's Transit Safety and Security Bulletin Board at 1-800-231-
2061 or through the FTA World Wide Web home page at http://
www.fta.bts.gov; both services are available seven days a week.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 14, 1994, FTA issued 49 CFR parts 653 and 654, which 
require recipients of certain categories of FTA funding to test safety-
sensitive employees for the use of five prohibited drugs and the misuse 
of alcohol. In addition to five other types of testing, not relevant to 
this discussion, the rules require employers to conduct post-accident 
testing of certain safety-sensitive employees within eight hours of the 
accident for the misuse of alcohol and within 32 hours for the use of 
prohibited drugs. (The standards for determining which ``safety-
sensitive'' employees must be tested are set out in the rule and are 
not relevant to this discussion.) If an employer cannot test

[[Page 51077]]

such employees within the specified time period, the rules require the 
employer to prepare and maintain a record stating why such test was not 
promptly administered.
    On February 6, 1996, Mr. William Millar, as Executive Director of 
the Port Authority of Allegheny County (Port Authority), asked FTA to 
accept the results of a post-accident drug and alcohol test 
administered by a State or local law enforcement official or emergency 
medical personnel as meeting the requirements of FTA's drug and alcohol 
rules, in other words, to ``federalize'' these locally administered 
tests.
    Mr. Millar's request was prompted by a collision between two buses 
that had occurred on January 12, 1996 on the Martin Luther King Busway 
in Pittsburgh, Pennsylvania. Mr. Millar described the accident as 
follows:

    At approximately 7:10 a.m., in adverse weather conditions, a bus 
traveling from [d]owntown Pittsburgh crossed the center line and 
collided with an inbound bus. The driver of the inbound vehicle was 
killed. The operator of the outbound bus was severely injured and 
taken to a local hospital for emergency surgery. He remained on the 
hospital's `critical' list for approximately four days and underwent 
additional surgery.
    Due to the driver's medical condition and unconsciousness, Port 
Authority's Drug and Alcohol Program personnel were unable to 
conduct substance tests meeting federal standards. Nevertheless, it 
appears that blood tests were taken on both operators which could 
determine their use of alcohol or prohibited drugs. Reports from 
local law enforcement officials have revealed that neither driver 
had drugs or alcohol in their systems. However, if drugs or alcohol 
had been found, Federal regulations make clear that tests 
administered by either the hospital or law enforcement officials on 
the surviving bus operator would not have met [F]ederal standards, 
regardless of the quality of the hospital, the legality of the 
police investigation or the proficiency of the laboratories used to 
conduct the tests.

    To remedy this situation, Mr. Millar suggested that FTA amend the 
regulations to allow a ``post-accident medical emergency testing 
procedure,'' which would include

    (a) The permissible use by a public transit agency of a blood or 
urine sample drawn by hospital personnel and submitted by the 
transit agency to a laboratory certified by the Department of Health 
and Human Services when the blood or urine is collected: (i) in the 
course of routine medical procedures; or (ii) upon the request of 
law enforcement or regulatory personnel; or (iii) upon the request 
of authorized personnel of the transit agency's Drug and Alcohol 
Program[.]
    (b) The permissible use of blood or urine test results when said 
tests, whether initiated by hospitals or law enforcement personnel, 
meet the requirements of state law with respect to chain of custody 
of the samples and medical certification or expertise of the 
laboratories.

    Mr. Millar further suggested that a post-accident medical emergency 
be presumed by the employer whenever, following an accident involving 
death or personal injury to any person:

    (a) A covered employee has reported to or been transported to a 
medical facility for the receipt of emergency medical care; or (b) a 
covered employee is a patient in a medical facility and is 
unconscious or substantially impaired to prevent testing by transit 
agency personnel.

II. FTA's Response

    As Mr. Millar's letter illustrates, conducting post-accident tests 
within the timeframes specified by the rules is frequently difficult 
and sometimes impossible. FTA provided for this situation by allowing 
employers to prepare and maintain a record stating why a test was not 
promptly administered. Mr. Millar's letter, however, highlights a 
``gap'' in FTA's rules; in some instances, an employer may not be able 
to test a ``safety-sensitive'' employee, although the employee has 
undergone drug and alcohol tests administered by local police or by 
medical personnel. Should the employer be able to use those results to 
meet the requirements of the rules, and if so, under what 
circumstances?
    Mr. Millar suggested that an employer should be able to direct 
medical personnel to perform blood, breath, and urine tests on 
``safety-sensitive'' employees who are receiving medical treatment 
after an accident has occurred. FTA, however, does not have the 
authority to require medical personnel to perform these tests; hence, 
we have not adopted this particular suggestion.
    Mr. Millar further suggested that an employer be permitted to use 
the results of any tests performed by medical personnel as part of the 
routine post-accident medical examination of the ``safety-sensitive'' 
employee. Again, FTA does not have the authority to require medical 
personnel to provide the results of these tests to the employer. Hence, 
we do not propose to adopt this suggestion.
    Mr. Millar also suggested that an employer use the results of any 
tests conducted by State or local law enforcement personnel as part of 
their accident investigation. This proposed amendment could strike a 
reasonable balance: the ``safety-sensitive'' employee is protected by 
the standards and procedures of State and local law, and the traveling 
public is protected by allowing the employer to use the test results, 
if necessary, to remove a ``safety-sensitive'' employee from his or her 
``safety-sensitive'' position. However, it must be emphasized that the 
tests must be conducted in conformance with State and local law and the 
results be obtained by the employer in conformance with State and local 
law.
    Although FTA proposes this change to the rules, we do not believe 
that employers would be able to use it frequently, based on the 
experience of the Federal Highway Administration (FHWA). Currently, 
FHWA allows employers to use the results of post-accident tests 
conducted by State or local law enforcement officials if the employer 
can obtain those results; because of privacy concerns, however, 
employers frequently cannot obtain them. Moreover, this rule, if 
adopted, could not provide an employer any authority to require the 
police to perform the tests for the employer or to give the employer 
the results of tests performed at the police's initiative.
    In the few cases when the employer can obtain the results from the 
police, this amendment could be extremely useful. First, it would allow 
an employer to use the results of a blood test, which is not authorized 
under FTA's rules. Second, an employer could use the test results, so 
long as the test was administered in accordance with State or local 
law, which means that the employer is not obligated, in this very 
narrow class of cases, to follow the procedures specified in 49 CFR 
part 40. In other words, for these cases, State or local law would 
supersede part 40.
    We seek comment on this proposed amendment.

III. Regulatory Analyses and Notices

    This is not a significant rule under Executive Order 12866 or under 
the Department's Regulatory Policies and Procedures. There are no 
significant Federalism implications to warrant the preparation of a 
Federalism Assessment. The Department certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities; allowing employers to use the results of a post-accident drug 
and alcohol test administered by or under the direction of State or 
local law enforcement personnel is unlikely to significantly increase 
the costs for employers.

List of Subjects in 49 CFR Parts 653 and 654

    Alcohol testing, Drug testing, Grant programs--transportation, Mass 
transportation, Reporting and

[[Page 51078]]

recordkeeping requirements, Safety and transportation.

    For the reasons set forth in the preamble, FTA proposes to amend 
Title 49 Code of Federal Regulations, part 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.

Sec. 653.45  [Amended]

    2. Section 653.45 is amended by adding paragraph (d) to read as 
follows:
* * * * *
    (d) The results of a blood or urine test for the use of prohibited 
drugs, conducted by Federal, State, or local officials having 
independent authority for the test, shall be considered to meet the 
requirements of this section, provided such tests conform to the 
applicable Federal, State, or local testing requirements, and that the 
test results are obtained by the employer.

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

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

    Authority: 49 U.S.C. 5331; 49 CFR 1.52.


Sec. 654.33  [Amended]

    4. Section 654.33 is amended by adding paragraph (d) to read as 
follows:
* * * * *
    (d) The results of a blood or breath test for the misuse of 
alcohol, conducted by Federal, State, or local officials having 
independent authority for the test, shall be considered to meet the 
requirements of this section, provided such tests conform to the 
applicable Federal, State, or local testing requirements, and that the 
results of the tests are obtained by the employer.

    Issued on: September 24, 1997.
Gordon J. Linton,
Administrator.
[FR Doc. 97-25742 Filed 9-29-97; 8:45 am]
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