[Federal Register Volume 63, Number 235 (Tuesday, December 8, 1998)]
[Rules and Regulations]
[Pages 67612-67613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32478]


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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: Final rule.

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SUMMARY: The Federal Transit Administration (FTA) is amending its drug 
and alcohol testing regulations 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 when the 
employer is able to obtain the results in conformance with State and 
local law. Under the amendment, the employer will be relieved of 
administering post-accident drug and alcohol tests in certain limited 
circumstances. This amendment may 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.

EFFECTIVE DATE: January 7, 1999.

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: Michael 
Connelly, 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.dot.gov; both services are available seven days a week.

SUPPLEMENTARY INFORMATION: On September 30, 1997, FTA published a 
Notice of Proposed Rulemaking (NPRM) proposing to amend its drug and 
alcohol testing rules 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. FTA 
received seven comments over a two-month period

I. Post-Accident Testing

Comments

    Of the seven comments received, five commenters generally favored 
adoption of the proposal; two opposed allowing employers to use the 
results from post-accident drug and alcohol tests administered by an 
entity other than collection site personnel observing the collection 
procedures mandated by 49 CFR Part 40. Those in favor of adopting the 
amendment lauded its emphasis on obtaining an actual test result (as 
opposed to requiring an agency to state why it did not conduct a 
Federally-mandated post-accident test), and its ability to assist 
transit agencies in promoting safety among its safety-sensitive 
workers. Several commenters, including those in favor of adopting the 
amendment, raised the following issues:
    Nothing that the proposed amendments allowed for use of post-
accident test results when those results are ``obtained by the 
employer,'' two commenters (the National Association of Collection 
Sites (NACS) and the American Public Transit Association (APTA)) noted 
the problem of employers receiving test results administered by State 
or local officials. NACS asserted that obtaining such post-accident 
results may require a subpoena, while APTA suggested an overall 
``difficulty'' in an employer receiving these results. A third 
commenter (Atlantic Health Group), while in favor of the amendment, 
noted the ``problem'' of getting the results to the correct employer 
official, and ensuring that such post-accident test results are legally 
acceptable.
    Two commenters (NACS and APTA) interpreted the proposal to mean 
either that law enforcement officials would be required to conduct 
Federal post-accident testing, or that transit systems would ``rely'' 
on State and local law enforcement authorities to perform Federal post-
accident testing.
    Two commenters (NACS and Intoximeters) expressed concern that the 
State and local law enforcement authorities may use faulty testing 
equipment, and that local testing practices (e.g., no confirmatory 
test, no DOT chain-of-custody form, no fifteen minute observation 
period) may result in tests being declared invalid.

Discussion

    FTA agrees with those commenters that favor allowing employers to 
use the results of post-accident drug and alcohol tests administered by 
State and local law enforcement personnel when those officials have 
independent authority to administer the test and when the employer 
obtains the test results in conformance with State and local law. The 
benefits of having properly administered post-accident test, even if 
that test is not conducted per 49 CFR Part 40, outweigh the concerns of 
those opposing this amendment.
    As a preliminary matter, FTA notes that this amendment would apply 
in only a small number of instances where the employer is unable to 
perform a post-accident test according to the FTA drug and alcohol 
testing regulations but where State or local law enforcement personnel, 
on their own authority, have conducted post-accident tests. Results

[[Page 67613]]

from tests administered by State or local law enforcement personnel may 
not be used when the employer could have, but did not, conduct its own 
test. Rather, this amendment applies exclusively to those few instances 
where the employer is unable to perform a post-accident test. Employers 
may not rely on State or local law enforcement personnel to conduct 
post-accident testing. While this provision does not prohibit 
duplicative post-accident testing (i.e., the employer testing under FTA 
regulations and State or local officials testing under their own 
authority), it does not permit employers to ignore their obligation to 
test.
    As was explicitly noted in the September 30, 1997, NPRM, this 
amendment imposes no requirement on State or local law enforcement 
personnel to perform post-accident testing. In fact, employers should 
not assume State or local law enforcement personnel routinely perform 
post-accident drug and alcohol testing; nor should employers assume 
such test results will be readily available to them. The FTA knows of 
no situation in which State or local law enforcement agencies routinely 
give employers the results from post-accident testing. If an employer 
knows that a State or local law enforcement agency has, of its own 
authority, administered a post-accident test, and the employer would 
like to obtain the test result because it (the employer) was unable to 
perform a post-accident test in accordance with Federal regulations, 
the employer must either obtain those results (through, for example, a 
subpoena) or prepare and maintain a record stating why a post-accident 
test was not promptly administered, as required by FTA rules. This 
amendment does not impose an affirmative obligation on an employer to 
obtain results of a post-accident drug and/or alcohol test administered 
by State or local law enforcement officials.
    Refusal by a safety-sensitive worker to submit to a law 
enforcement-administered post-accident test shall not constitute 
``refusal to submit'' as that term is defined at 49 CFR 653.7 and 
654.7. In the event both a law enforcement agency and the employer 
(proceeding under 49 CFR Parts 40, 653 and 654) conduct post-accident 
tests, the test results obtained by the employer shall take precedence 
for purposes of compliance with Parts 653 and 654.
    The remaining objections to this amendment involve Federal 
deference to State and local law enforcement, and their post-accident 
testing methodology. FTA will accept the results from post-accident 
drug and alcohol tests performed by State or local law enforcement 
agencies, under their own authority, in conformity with applicable 
Federal, State, or local testing requirements, when the employer was 
unable to conduct a test, even when the test may have been administered 
in a manner different than that prescribed by 49 CFR Part 40.

II. 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 of 
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 recordkeeping requirements, Safety, 
Transportation.
    For the reasons set forth in the preamble, FTA amends 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 to 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: December 2, 1998.
Gordon J. Linton,
Administrator.
[FR Doc. 98-32478 Filed 12-7-98; 8:45 am]
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