[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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