[Federal Register Volume 66, Number 83 (Monday, April 30, 2001)]
[Proposed Rules]
[Pages 21551-21593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9415]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Parts 653, 654, and 655

[Docket No. FTA-2000-8513]
RIN 2132-AA71


Prevention of Alcohol Misuse and Prohibited Drug Use in Transit 
Operations

AGENCY: Federal Transit Administration, Department of 
Transportation.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Federal Transit Administration (FTA) proposes to 
combine its drug and alcohol testing regulations. FTA believes this 
action will make the rules more ``user-friendly'' and easier to 
understand. Also, the new rule will take into account the guidance that 
FTA has issued in the past several years, including technical 
assistance, letters of interpretation, audit findings, newsletters, 
training classes, safety seminars, and public speaking engagements. In 
addition, this NPRM conforms FTA's rule to the Department of 
Transportation's (DOT) revised drug and alcohol testing rule published 
on December 19, 2000.

DATES: Comments on this proposed rule must be submitted by June 
14, 2001.

ADDRESSES: Written comments must refer to the docket number 
appearing above and must be submitted to the United States Department 
of Transportation (U.S. DOT), Central Docket Office, PL-401, 400 
Seventh Street SW., Washington, DC 20590. All comments received will be 
available for inspection at the above address from 10 a.m. to 5 p.m., 
Monday through Friday, except Federal holidays. Those desiring

[[Page 21552]]

the agency to acknowledge receipt of their comments should include a 
self-addressed stamped postcard with their comments.
    Commenters may also submit their comments electronically. 
Instructions for electronic submission may be found at the following 
web address: http://dms.dot.gov/submit/. The public may also 
review docketed comments electronically. The following web address 
provides instructions and access to the DOT electronic docket: 
http://dms.dot.gov/search/.

FOR FURTHER INFORMATION CONTACT: For program issues, Mark 
Snider, Office of Safety and Security, (202) 366-2896 (telephone); 
(202) 366-7951 (fax); or [email protected] (e-mail). For legal 
issues, Bruce Walker, Office of the Chief Counsel, (202) 366-4011 
(telephone); (202) 366-3809 (fax); or [email protected] (e-
mail).

SUPPLEMENTARY INFORMATION:

Electronic Access

    Electronic access to this rule and other safety rules may be 
obtained through the FTA Office of Safety and Security home page at 
http://transit-safety.volpe.dot.gov.
    An electronic copy of this document may be downloaded, using a 
modem and suitable communications software, from the Government 
Printing Office's (GPO) Electronic Bulletin Board Service at (202) 512-
1661. Internet users may download this document from the Federal 
Register's homepage at http://www.nara.gov/fedreg and from 
the GPO database at http://www.access.gpo.gov/nara.
    Internet users can access all comments received by the U.S. DOT 
Dockets, Room PL-401, via the Dockets Management System (DMS) on the 
DOT home page at http://dms.dot.gov. The DMS is available 24 
hours each day, 365 days each year. Please follow the online 
instructions for more information and help.

I. Background

    The Omnibus Transportation Employee Testing Act of 1991 (the Act) 
mandated the Secretary of Transportation to issue regulations to combat 
prohibited drug use and alcohol misuse in the transportation industry. 
(Public Law 102-143, October 28, 1991, FTA sections codified at 49 
U.S.C. 5331). In December 1992, FTA issued two NPRMs to prevent 
prohibited drug use and alcohol misuse by ``safety-sensitive'' 
employees in the transit industry. In February 1994, FTA adopted drug 
and alcohol testing rules, which were promulgated at 49 CFR parts 653 
and 654.

Omnibus Transportation Employee Testing Act of 1991

    The Act requires FTA to issue regulations requiring recipients of 
funds under 49 U.S.C. 5307, 5309, and 5311, and 23 U.S.C. 103(e)(4) to 
test safety-sensitive employees for the use of alcohol or drugs in 
violation of law or federal regulation. The Act allows FTA to defer to 
regulations issued by the Federal Railroad Administration (FRA), for 
operations covered by that agency.
    As a condition of FTA funding, the Act requires recipients to 
establish alcohol and drug testing programs. The Act mandates four 
types of testing: Pre-employment, random, reasonable suspicion, and 
post-accident. In addition, the Act permits return-to-duty and follow-
up testing under specific circumstances. The Act requires that 
recipients follow the testing procedures set out by the Department of 
Health and Human Services (DHHS).
    The Act does not require recipients to follow a particular course 
of action when they learn that a safety-sensitive employee has violated 
a law or Federal regulation concerning alcohol or drug use. Rather, the 
Act directs FTA to issue regulations establishing consequences for the 
use of alcohol or drugs in violation of FTA regulations. Possible 
consequences include education, counseling, rehabilitation programs, 
and suspension or termination from employment.
    In authorizing this regulatory scheme, the Act has pre-empted 
inconsistent State or local laws, rules, regulations, ordinances, 
standards, or orders. However, provisions of State criminal law, which 
impose sanctions for reckless conduct leading to actual loss of life, 
injury, or damage to property, are not pre-empted by the Act.

Previous Action by FTA

    On December 15, 1992, FTA issued two NPRMs to prevent prohibited 
drug use and alcohol misuse (49 CFR parts 653 and 654). The rules 
established a scheme whereby safety-sensitive employees would be tested 
on a pre-employment, random, reasonable suspicion, post-accident, 
return-to-duty, and follow-up basis.
    In the December 1992 Federal Register notice, FTA stated 
that it was ``considering combining the final FTA alcohol and drug 
testing regulations into one part in the Code of Federal Regulations.'' 
At that time, FTA noted that while the drug and alcohol testing rules 
shared many similarities, there were still enough differences to 
warrant two distinct CFR Parts. On February 15, 1994, FTA adopted two 
separate rules--the drug testing rule, 49 CFR part 653, and the alcohol 
testing rule, 49 CFR part 654.
    Since the rules were first published, there have been two notable 
amendments as well as several minor (technical) amendments. In December 
1998, FTA amended its post-accident regulation to allow an employer to 
seek post-accident test results from law enforcement agencies in the 
limited circumstance when the employer has been unable to perform such 
a test itself. FTA has stressed the limited applicability of this 
amendment.
    In January 1999, FTA amended its definition of ``[m]aintaining a 
revenue service vehicle or equipment,'' located under safety-sensitive 
function (Sec. 653.7 and Sec. 654.7). The new definition includes 
persons that perform overhaul and rebuilding services of engines, 
parts, and vehicles. This was a shift from FTA's previous position of 
not including employees who performed those services. FTA has stressed 
that this amendment applies both to employees working directly for FTA 
grantees and to FTA grantees' contractors performing such safety-
sensitive work.
    When the drug and alcohol rules became effective, FTA began an 
aggressive outreach effort to assist affected entities in complying 
with the new rules. FTA offered numerous courses throughout the country 
on implementation. In addition, in April 1994, FTA published 
Implementation Guidelines for Drug and Alcohol Regulations in Mass 
Transit and made them available to any party seeking help in 
implementing the rules. The Guidelines, which were published virtually 
concurrently with the rules in the Federal Register and several 
months prior to the effective date of the rule, are a step-by-step 
manual on how to most effectively comply with Parts 653 and 654. FTA 
envisions an update to the Guidelines in the near future, to assist 
employers in implementing Part 655.
    FTA has issued hundreds of letters of interpretation on the rules. 
Public response to these letters, especially since they became 
available on FTA's external Web page, has been highly favorable. 
Employers and employees have found that the letters more fully explain 
the rules, FTA's implementation of the rules, and FTA's reasons for 
that implementation of the rules. FTA will continue to offer such 
guidance and to amend its guidance, if necessary, based on the final 
publication of the rule.
    To determine compliance with the rules, FTA's Office of Safety and 
Security began auditing grantee drug and alcohol testing programs in 
March

[[Page 21553]]

1997. The audits quickly evolved into opportunities for FTA to provide 
extensive technical assistance. Through the audits, FTA has gained a 
better understanding of the difficulties that grantees encounter when 
implementing the rules. In addition, audits have shown FTA where the 
rules can be strengthened and improved. The impetus to combine Parts 
653 and 654 is due, in no small part, to the audit program.

II. Overview of Proposed Rule

    In its broadest sense, proposed Part 655 should be read as a 
combination of Parts 653 and 654. FTA decided to combine the drug and 
alcohol testing rules based on its experience since the rules have been 
implemented. FTA believes that this change will allow the program to be 
implemented more efficiently and will bring FTA into line with the 
three other operating administrations that fall under the Omnibus 
Transportation Employee Testing Act of 1991 (Federal Aviation 
Administration, Federal Railroad Administration, Federal Motor Carrier 
Safety Administration [formerly the Office of Motor Carrier and Highway 
Safety within the Federal Highway Administration]), as well as the two 
other operating administrations that have drug and alcohol testing 
regulations (Research and Special Programs Administration and U.S. 
Coast Guard).
    The rule, as proposed, applies to recipients of funds under 49 
U.S.C. 5307, 5309, and 5311, and 23 U.S.C. 103(e)(4). It requires each 
transit operator (employer) who receives these funds to establish and 
conduct a multi-faceted anti-drug and alcohol misuse testing program. 
The regulation conditions financial assistance on the implementation of 
a program. Failure of an employer to develop a program and implement 
the program in compliance with this regulation will result in the 
suspension of Federal transit funding.
    A basic component of the regulation requires the testing of safety-
sensitive employees for the use of controlled substances and the misuse 
of alcohol; however the regulation also requires education and 
awareness about the problems associated with prohibited drug use and 
alcohol misuse. In addition, the regulation mandates that each employer 
have a policy statement describing its program policies and procedures. 
The statement must include the consequences for prohibited drug use and 
alcohol misuse.
    The regulation specifies that safety-sensitive employees are 
prohibited from using five illegal substances (marijuana, cocaine, 
opiates, amphetamines, and phencyclidine) and are prohibited from 
misusing alcohol. The NPRM proposes the testing of safety-sensitive 
employees in five situations: (1) Pre-employment (including transfer to 
a safety-sensitive position within the organization); (2) Reasonable 
suspicion; (3) Random; (4) Post-accident; and (5) Return to duty/
follow-up (periodic). Drug testing is required in all five situations. 
Alcohol testing is required for all situations except for pre-
employment, in which it is only encouraged.
    This NPRM requires the use of the Department-wide drug and alcohol 
testing procedures contained in 49 CFR part 40 (December 19, 2000, 65 
FR 79462). Part 40 is consistent with the Department of Health and 
Human Services (DHHS) regulation, ``Scientific and Technical Guidelines 
for Drug Testing Programs,'' which was originally issued on April 11, 
1988 and then re-issued on June 9, 1994. The DHHS regulation, which 
includes the chain of custody procedures to be used when collecting 
urine samples, provides procedures for ensuring the integrity of the 
test and maximizing the privacy of the individual being tested.
    If a covered employee tests positive for illegal drug use or 
alcohol misuse or otherwise violates the rule, the employee must be 
removed from his or her safety-sensitive position. Therefore, the 
employee must be told, at a minimum, about education and rehabilitation 
programs. Should the employer decide to retain a covered employee whose 
test result has been verified positive, the employee must be evaluated 
by a substance abuse professional. Prior to returning an employee to a 
safety-sensitive function, the employer must ensure that the employee 
has successfully completed rehabilitation; the rule does not require 
the employer to pay for rehabilitation.
    This NPRM applies to recipients of federal transit funds, i.e., 
transit systems, metropolitan planning organizations (MPOs), and 
States; any enforcement action for noncompliance is against such 
recipients. MPOs and States are affected by this regulation if (1) they 
provide transit service or they provide money to a subrecipient who 
provides transit service and (2) are required to provide certifications 
of compliance on behalf of the subrecipient. MPO's or States that 
provide transit service must develop and implement a program, like any 
other recipient. MPO's or States that fund or manage transit providers, 
but do not provide transit service, must ensure that transit provider 
employers provide certifications of compliance.
    FTA has its primary relationship with grantees. Many grantees both 
receive transit funds and operate mass transit services. Typical among 
these are large transit entities that receive funds under sections 49 
U.S.C. 5307, 5309, and 5311. In addition, some grantees (typically 
States) pass the money they receive to smaller subrecipients within 
their States. In these situations, the FTA recipient is not the transit 
operator.
    This NPRM eliminates the distinction between large and small 
operators. The term ``employer'' is now used to include both small and 
large operators, as well as entities providing service under contract 
or other arrangement with the transit operator.

III. General Discussion about the Rule

Today's Proposed Rule

    This rule combines 49 CFR Parts 653 and 654. Both its rule text and 
its preamble incorporate views expressed in letters of interpretation, 
policy determinations, amendments, newsletters, and audits. In 
addition, this NPRM conforms the new part 655 with the new Department 
of Transportation procedures for drug and alcohol testing, 49 CFR Part 
40 (December 19, 2000, 65 FR 79462).

The Common Preamble

    Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs, promulgated at 49 CFR part 40, have been revised. As a 
result, the modal administrations' have proposed amendments to their 
drug and alcohol regulations that conform accordingly. A common 
preamble that outlines the proposed amendments is published elsewhere 
in the Federal Register.

IV. Section-by-Section Analysis

    In this section, FTA will discuss the differences between the 
existing rules in Parts 653 and 654 and the proposed rules in Part 655. 
There is no discussion for sections that have remained substantially 
the same. In addition to seeking comments on the NPRM overall, FTA also 
requests comments on the specific issues indicated below.

Subpart A--General

A. Definitions (Sec. 655.4).

    Employer: FTA is clarifying the definition of employer. FTA 
believes that, in addition to direct recipients of FTA funding, the 
term ``employer'' includes State recipients that pass the money to 
subrecipients and grantees that have contractors performing transit 
operations. State recipients and grantees (that have contractors 
performing transit operations) are considered employers

[[Page 21554]]

under this expanded definition, they will now have access to 
individual's test records. States need access to an individual's test 
records, because States are required to certify compliance with all of 
their subrecipients' drug and alcohol testing programs. Without a 
comprehensive review of their subrecipients' programs, States cannot, 
in good faith, sign the certification of compliance. This is also true 
for grantees whose operations are performed by contractors. The grantee 
is responsible for ensuring compliance, and without the ability to take 
a comprehensive look at its contractors' drug and alcohol programs, the 
grantee is unable to certify compliance.
    Second chance policy: FTA is adding this definition to the 
rule; however, FTA would like to clarify that it has no position on 
whether grantees must adopt a second chance policy, i.e., a policy 
allowing an employee (who has previously violated the employer's drug 
and/or alcohol policy) to return to a safety-sensitive position after 
completing rehabilitation.
    Taxi cab drivers and other transportation providers: The 
duties performed by taxicab drivers and other transportation providers 
can be considered safety-sensitive functions, pursuant to (1) the 
definition of safety-sensitive function, ``operating a revenue service 
vehicle, including when not in revenue service.''
    FTA has expressed its policy regarding taxicab drivers and other 
transportation providers in a series of interpretation letters (see, 
e.g., Letter to Florida Commission for the Transportation Disadvantaged 
dated 26 April 1999, Letter to King County in Washington dated 4 
February 1999, Letter to AC Transit in Oakland, California dated 30 
September 1998). According to the policy, drug and alcohol testing 
rules do not apply to taxi cab drivers when patrons (using publicly 
subsidized vouchers) or transportation providers can choose from a 
variety of taxi cab companies. Alternatively, the rules do apply when a 
transit patron has to contact one or two specific companies in order to 
take advantage of certain publicly-financed transportation benefits. 
This policy is based on the practical difficulty of administering a 
drug and alcohol testing program to taxi companies that only 
incidentally provide transit service. FTA proposes to incorporate this 
reasoning when implementing Part 655.
    FTA specifically seeks comment on whether there is a difference 
between the transit patron choosing the transportation provider from a 
variety of choices, and the grantee (or its contracted broker) choosing 
from a limited number of choices. In the former, the patron chooses, 
while in the latter, the grantee (or its contracted broker) chooses.
    Dispatchers: The current rules defines ``safety-sensitive 
function'' to include any individual ``controlling dispatch or movement 
of a revenue service vehicle.'' At least one individual has questioned 
whether the duties of certain types of transit dispatchers implicate 
safety. Therefore, FTA welcomes comment on the duties and 
responsibilities of dispatchers in the different transit systems. FTA 
seeks to determine whether the duties and responsibilities vary 
significantly enough to warrant modification of the current blanket 
rule.
    Maintenance contractors: The current rules include 
maintenance work in their definition of safety-sensitive function. In 
January 1999, FTA amended its definition of maintenance duties. FTA is 
now clarifying that amendment. The amendment expanded the definition of 
maintenance work to include all workers (including contractors) who 
overhaul and rebuild engines, vehicles, and parts. There were few 
objections to the amendment during the comment period. However, shortly 
after the rule change became effective, grantees expressed concern 
that, because overhaul and rebuild work is often contracted out, a 
particular category of maintenance workers (i.e. contractors who 
perform overhaul and rebuilding), who were previously not subject to 
the rules, would now be subject to the rules.
    In response, FTA explained that the rules should extend to 
contractors that perform any type of maintenance work (i.e., the rules 
should cover both direct recipient employees and contract employees 
equally). FTA took this position, and maintains that position, for the 
reasons stated in the preamble to the 1999 rule change, i.e., fairness 
and safety (64 FR 425, January 5, 1999).

B. Stand-Down Waivers for Drug Testing (Sec. 655.5)

    In accordance with changes made to 49 CFR part 40, FTA has added a 
subsection on stand-down waivers. Section 655.5 provides the specific 
FTA waiver procedures. The DOT-wide regulation, 49 CFR part 40, 
contains the substantive requirements for obtaining a waiver.

Subpart B--Program Requirements

A. Policy Statement Contents (Sec. 655.15)

    In response to current industry practices and FTA audit procedures, 
FTA is clarifying its Policy Statement requirement. FTA has had 
numerous questions as to what is required in a policy. FTA would like 
to emphasize that the only information required in a Policy Statement 
is the information listed in Sec. 655.15. A grantee may choose, 
however, to include additional requirements not mandated by FTA. If a 
grantee does so, the grantee's policy shall indicate that those 
additional requirements are the employer's, and not FTA's.
    Moreover, in order to comply with Sec. 655.15(e), employers may 
incorporate by reference 49 CFR Part 40 in their Policy Statements, 
provided that 49 CFR Part 40 is available for review by employees when 
requested.
    Finally, FTA is clarifying who must approve the policy. In most 
instances, a grantee will have a governing board that can adopt the 
policy. However, where there is no governing board or the governing 
board does not have approval authority, the highest-ranking official 
with authority to approve the policy can do so, and that will satisfy 
the regulatory intent.

Subpart E--Types of Testing

A. Pre-employment Drug Testing (Sec. 655.41)

    FTA is changing the pre-employment drug testing requirement 
concerning hiring. In the past, employers had to administer a test and 
receive a negative test result before they could hire an employee. FTA 
believes that this provision is too restrictive on employers. FTA will 
no longer use the word ``hire.'' In the new rule, FTA will instead 
require that an employer administer the pre-employment test and receive 
a negative drug test prior to the first time that an employee performs 
a safety-sensitive function. This change has taken place to better 
satisfy the intent of this section, which is to ensure that an employer 
knows that an employee can successfully pass a drug test before 
allowing the employee to perform a safety-sensitive function.
    FTA is also clarifying another pre-employment provision. Numerous 
affected entities have asked how long an employee can be off from work 
before he or she must take another pre-employment test; this issue 
arises most often for seasonal workers. FTA proposes that an employee 
who is off for more than 90 consecutive calendar days and plans to 
return to a safety-sensitive function must first successfully pass 
another pre-employment drug test before returning to work. Likewise, an 
applicant, who has not commenced performing a safety-sensitive function 
within 90 consecutive calendar days of the employer's receipt of a 
negative test

[[Page 21555]]

result for that applicant, must successfully pass another pre-
employment drug test before performing such safety-sensitive functions. 
It is FTA's intention that employers assure themselves that employees 
can successfully pass a drug test before returning them to safety-
sensitive functions.

B. Pre-Employment Alcohol Testing (Sec. 655.42)

    For several years, due to a court decision and subsequent 
legislation, the pre-employment alcohol testing requirements in FTA's 
rule have been suspended. In order to better reflect the legislation 
and to conform with the other DOT agency drug and alcohol testing 
programs, all six DOT agencies with testing programs are adding this 
subsection to their respective rules. This subsection allows, but does 
not require, employers to conduct pre-employment alcohol testing. If an 
employer chooses to conduct pre-employment alcohol testing, the 
employer would have to conduct the testing in accordance with all of 
the requirements of 49 CFR Part 40.

C. Post-Accident Testing (Sec. 655.44)

    In December 1998, FTA amended its post-accident testing regulation 
to allow, in extremely limited circumstances, an employer to use the 
test results from a local law enforcement-administered post-accident 
test. FTA wants to reiterate that such results may be used only when an 
employer has been unable to perform a post-accident test within the 
required time frame. FTA wishes to dispel the idea that employers can 
simply ``count on'' local law enforcement to administer post-accident 
tests and provide test results.

D. Random Testing (Sec. 655.45)

    FTA is clarifying section 655.45(g), which is concerned with 
ensuring that random tests are spread reasonably throughout the 
calendar year. In the course of conducting its audits, FTA has learned 
that current industry practice is to conduct random testing when it is 
convenient, e.g., random tests are only performed every 
Thursday afternoon. The purpose of random testing is deterrence, and 
the most effective way to achieve the highest level of deterrence is to 
conduct random drug and alcohol tests in an unpredictable manner. FTA 
reiterates that the rule requires random testing to be spread out 
throughout the calendar year. At a minimum, random testing shall be 
conducted at least quarterly. Random tests must be spread throughout 
all days and all hours of service. The testing should be completely 
unpredictable and encompass all safety-sensitive employees.

Subpart H--Administrative Requirements

A. Reporting Results In A Management Information System (Sec. 655.72)

    FTA is changing its Management Information System (MIS) reporting 
requirement from census reporting to stratified random sampling. FTA 
has required census reports for six years and believes it now has an 
accurate portrait of the current state of drug and alcohol testing 
(including positive rates) in the transit industry. By using sampling, 
FTA will reduce the paperwork burden on a portion of the industry while 
still maintaining a high confidence level in the results. Although 
transit employers will still be required to prepare an MIS form 
annually, they will only be required to submit an MIS form when 
requested by FTA. FTA will officially notify employers when they must 
submit an MIS form and will provide employers with all necessary forms 
and instructions to prepare an MIS form.

B. Access to Facilities And Records (Sec. 655.73)

    FTA seeks comment on access to facilities and records. This request 
has arisen in the context of grantees that, in attempting to exercise 
oversight responsibility, have been denied access to employee records 
for confidentiality reasons. On one hand, FTA does not want employee 
records made available to a potentially unlimited number of 
individuals. On the other hand, FTA does not want to impede a grantee 
(such as a State) from properly exercising its oversight role.
    FTA seeks comment on a related issue, i.e., whether state 
regulatory agencies should have access to drug and alcohol testing 
results. Another DOT agency, the Federal Motor Carrier Safety 
Administration (FMCSA), has included such a provision in its regulation 
for quite some time. See 49 CFR 382.405(d). Grantees have expressed 
concern about the undesirable consequences that result when state 
regulatory agencies do not have access to drug and alcohol test 
results. For example, a Department of Motor Vehicles, which is 
responsible for issuing Commercial Drivers Licenses (CDLs), is not able 
to obtain the drug and alcohol testing results from transit agencies 
performing such tests for CDL holders. Thus, a transit employee with a 
CDL who tests positive on a test and is discharged from his job, can 
simply find another job requiring a CDL. Therefore, FTA seeks comment 
on whether employers should be permitted to release employee data from 
its drug and alcohol testing programs to State or local officials with 
regulatory authority over the employer or any of its employees.
    Similarly, FTA seeks comment on whether employers should be 
permitted to release employee data from its drug and alcohol testing 
programs to local law enforcement officials.

V. Effect of the Americans With Disabilities Act of 1990 on Alcohol 
Testing Programs

    Title I of the Americans With Disabilities Act of 1990 (ADA) 
focuses on employers' responsibilities toward employees with 
disabilities. According to Title I, an employer must provide reasonable 
accommodations for work for persons with disabilities. Some covered 
workers are considered persons with disabilities for purposes of 
protection under the ADA. This issue was treated more fully in the 1994 
DOT-wide preamble (59 FR 7302, 7311-14, February 15, 1994).

VI. Regulatory Process Matters

A. Executive Order 12866

    FTA has evaluated the industry costs and benefits of this rule, 
which requires that transit industry personnel who perform safety-
sensitive functions be covered by a program to control illegal drug 
abuse and alcohol misuse in mass transportation operations. This rule 
makes no noteworthy substantive changes. Any incremental costs are 
negligible, and the policy and economic impact will have no significant 
effect.

B. Departmental Significance

    This rule is a ``non-significant regulation'' as defined by the 
Department's Regulatory Policies and Procedures, because, while it 
involves an important Departmental policy that is likely to generate a 
great deal of public interest, in the larger scheme, it is simply a 
combination of two existing regulations (49 CFR parts 653 and 654). It 
also conforms FTA's drug and alcohol testing regulations with the 
Department's drug and alcohol testing regulations (49 CFR part 40), to 
which FTA grantees already are subject.

C. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FTA has made a preliminary assessment of the possible effects of 
the rule on small businesses. To the extent possible, FTA has made 
efforts to acknowledge the differences between small and large 
entities, and has endeavored to make

[[Page 21556]]

accommodations when possible. Experience with Parts 653 and 654 has 
shown that the rule has a significant impact on a substantial number of 
small entities. FTA believes that this new rule will provide greater 
clarity and ease of implementation for small entities.

D. Paperwork Reduction Act

    This rule includes information collection requirements subject to 
the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.) The Office of Management and Budget has approved FTA's PRA 
request for Parts 653 and 654. This rule includes the same information 
collection devices; therefore, FTA believes it already has OMB 
approval. The management information system (MIS) forms currently 
required by Parts 653 and 654 may be modified in the future, but will 
continue to be required by FTA, without changes, under Part 655.

E. Executive Order 13132

    This action has been reviewed under Executive Order 13132, on 
Federalism. FTA has determined that this action has significant 
federalism implications to warrant a federalism assessment, however, 
this rulemaking is mandated by Congress in the Omnibus Transportation 
Employee Testing Act of 1991. FTA has limited discretion.
    The 1991 legislation mandates FTA to issue regulations requiring 
grantees of funds under 49 U.S.C. 5307, 5309, and 5311, and 23 U.S.C. 
103(e)(4) to test their safety-sensitive employees for the use of drugs 
and the misuse of alcohol in violation of law or federal regulation.
    Before passage of the Omnibus Transportation Employee Testing Act 
of 1991, safety issues were largely handled as a local matter. This Act 
clarifies the Federal role by including specific Federal pre-emption 
language. This Act also makes it clear that, in the area of substance 
abuse testing, Federal regulations are to take precedence over any 
inconsistent State or local specifications.
    Although Congress has pre-empted state or local law, FTA has 
preserved the role of local entities in mass transit safety. This 
regulation does not disturb testing programs which were created by 
virtue of a grantee's own authority and which are not inconsistent with 
this regulation.

List of Subjects

49 CFR Part 653

    Drug abuse, Drug testing, Grant programs--transportation, Mass 
transportation, Reporting and recordkeeping requirements, Safety, 
Transportation.

49 CFR Part 654

    Alcohol abuse, drug testing, Grant programs--transportation, Mass 
transportation, Reporting and recordkeeping requirements, Safety, 
Transportation.

49 CFR Part 655

    Alcohol abuse, Drug abuse, Drug testing, grant programs--
transportation, Mass transportation, reporting and recordkeeping 
requirements, Safety, Transportation.
    For the reasons set forth in the preamble and under the authority 
of 49 U.S.C. 5331, the agency proposes to amend Chapter VI of Title 49 
of the Code of Federal Regulations as set forth below:

PART 653--[REMOVED]

    1. Remove part 653.

PART 654--[REMOVED]

    2. Remove part 654.
    3. Add part 655 to read as follows:

PART 655--PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN 
TRANSIT OPERATIONS

Subpart A--General
Sec.
655.1   Purpose.
655.2   Overview.
655.3   Applicability.
655.4   Definitions.
655.5   Stand-down waivers for drug testing.
655.6   Preemption of state and local laws.
655.7   Starting date for testing programs.
Subpart B--Program Requirements
655.11   Requirement to establish an anti-drug use and alcohol 
misuse program.
655.12   Required elements of an anti-drug use and alcohol misuse 
program.
655.13   Other requirements imposed by an employer.
655.14   Education and training programs.
655.15   Policy statement contents.
655.16   Requirement to disseminate policy.
655.17   Notice requirement.
Subpart C--Prohibited Drug Use
655.21   Drug testing.
Subpart D--Prohibited Alcohol Use
655.31   Alcohol testing.
655.32   On duty use.
655.33   Pre-duty use.
655.34   Use following an accident.
655.35   Other alcohol-related conduct.
Subpart E--Types of Testing
655.41   Pre-employment drug testing.
655.42   Pre-employment alcohol testing.
655.43   Reasonable suspicion testing.
655.44   Post-accident testing.
655.45   Random testing.
655.46   Return to duty following refusal to submit to a test, 
verified positive drug test result and/or breath alcohol test result 
greater than 0.04.
655.47   Follow-up testing after returning to duty.
655.48   Retesting of covered employees with an alcohol 
concentration of 0.02 or greater but less than 0.04.
655.49   Refusal to submit to an alcohol or drug test.
Subpart F--Drug and Alcohol Testing Procedures
655.51   Compliance with testing procedures requirements.
655.52   Substance abuse professional (SAP).
655.53   Supervisor acting as collection site personnel.
Subpart G--Consequences
655.61   Action when an employee has a verified positive drug test 
result or has a confirmed alcohol test result of 0.04 or greater, or 
refuses to submit to a test.
655.62   Referral, evaluation, and treatment.
Subpart H--Administrative Requirements
655.71   Retention of records.
655.72   Reporting of results in a management information system.
655.73   Access to facilities and records.
Subpart I--Certifying Compliance
655.81   Grantee oversight responsibility.
655.82   Compliance a condition of financial assistance.
655.83   Requirement to certify compliance.
Appendix A to Part 655   Drug Testing Management Information 
System (MIS) Data Collection Form
Appendix B to Part 655   Drug Testing Management Information 
System (MIS) ``EZ'' Data Collection Form
Appendix C to Part 655   Alcohol Testing Management 
Information System (MIS) Data Collection Form
Appendix D to Part 655   Alcohol Testing Management 
Information System (MIS) ``EZ'' Data Collection Form

    Authority: 49 U.S.C. 5331; 49 CFR 1.51.

Subpart A--General


Sec. 655.1  Purpose.

    The purpose of this part is to establish programs, to be 
implemented by employers that receive financial assistance from the 
Federal Transit Administration (FTA) and by contractors of those 
employers, that are designed to help prevent accidents, injuries, and 
fatalities resulting from the misuse of alcohol and use of prohibited 
drugs by employees who perform safety-sensitive functions.


Sec. 655.2  Overview.

    (a) This part includes nine Subparts. Subpart A of this part covers 
the general requirements of FTA's drug and alcohol testing programs. 
Subpart B of this part specifies the basic requirements of each 
employer's alcohol misuse and prohibited drug use program, including 
the elements required to be in each employer's testing program. Subpart 
C of this part describes prohibited drug

[[Page 21557]]

use. Subpart D of this part describes prohibited alcohol use. Subpart E 
of this part describes the types of alcohol and drug tests to be 
conducted. Subpart F of this part addresses the testing procedural 
requirements mandated by the Omnibus Transportation Employee Testing 
Act of 1991, and as required in 49 CFR Part 40. Subpart G of this part 
lists the consequences for covered employees who engage in alcohol 
misuse or prohibited drug use. Subpart H of this part contains 
administrative matters, such as reports and recordkeeping requirements. 
Subpart I of this part specifies how a recipient certifies compliance 
with the rule.
    (b) This part must be read in conjunction with 49 CFR Part 40, 
Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs.


Sec. 655.3  Applicability.

    (a) Except as specifically excluded in paragraph (b) of this 
section, this part applies to:
    (1) Each recipient and subrecipient receiving federal assistance 
under:
    (i) 49 U.S.C. 5307, 5309, or 5311; or
    (ii) 23 U.S.C. 103(e)(4); and
    (2) Any contractor of a recipient or subrecipient of federal 
assistance under:
    (i) 49 U.S.C. 5307, 5309, or 5311; or
    (ii) 23 U.S.C. 103(e)(4).
    (b) A recipient operating a railroad regulated by the Federal 
Railroad Administration (FRA) shall follow 49 CFR Part 219 and 
Sec. 655.83 for its railroad operations, and shall follow this part for 
its non-railroad operations, if any.


Sec. 655.4  Definitions.

    For this part, the terms listed in this section have the following 
definitions. The definitions of additional terms used in this part but 
not listed in this section can be found in 49 CFR Part 40.
    Accident means an occurrence associated with the operation 
of a vehicle, if as a result:
    (1) An individual dies; or
    (2) An individual suffers bodily injury and immediately receives 
medical treatment away from the scene of the accident; or
    (3) With respect to an occurrence in which the mass transit vehicle 
involved is a bus, electric bus, van, or automobile, one or more 
vehicles (including non-FTA funded vehicles) incurs disabling damage as 
the result of the occurrence and such vehicle or vehicles are 
transported away from the scene by a tow truck or other vehicle; or
    (4) With respect to an occurrence in which the mass transit vehicle 
involved is a rail car, trolley car, trolley bus, or vessel, the mass 
transit vehicle is removed from operation.
    Administrator means the Administrator of the Federal 
Transit Administration or the Administrator's designee.
    Anti-drug program means a program to detect and deter the 
use of prohibited drugs as required by this part.
    Certification means a recipient's written statement, 
authorized by the organization's governing board or other authorizing 
official, that the recipient has complied with the provisions of this 
part. (See Sec. 655.82 and Sec. 655.83 for certification requirements.)
    Contractor means a person or organization that provides a 
safety-sensitive service for a recipient, subrecipient, employer, or 
operator consistent with a specific understanding or arrangement. The 
understanding can be a written contract or an informal arrangement that 
reflects an ongoing relationship between the parties.
    Covered employee means a person, including an applicant or 
transferee, who performs a safety-sensitive function for an entity 
subject to this part. A volunteer is a covered employee if:
    (1) The volunteer is required to hold a commercial driver's license 
to operate the vehicle; or
    (2) The volunteer performs a safety-sensitive function for an 
entity subject to this part and works in the expectation of receiving 
some type of in-kind or tangible benefit. Disabling damage 
means damage that precludes departure of a motor vehicle from the 
scene of the accident in its usual manner in daylight after simple 
repairs.
    (1) Inclusion. Damage to a motor vehicle, where the vehicle 
could have been driven, but would have been further damaged if so 
driven.
    (2) Exclusions. (i) Damage that can be remedied temporarily 
at the scene of the accident without special tools or parts.
    (ii) Tire disablement without other damage even if no spare tire is 
available.
    (iii) Headlamp or taillight damage.
    (iv) Damage to turn signals, horn, or windshield wipers, which 
makes the vehicle inoperable.
    DOT or The Department means the United States 
Department of Transportation.
    DOT agency means an agency (or ``operating 
administration'') of the United States Department of Transportation 
administering regulations requiring drug and alcohol testing. See 14 
CFR part 121, appendices I and J; 33 CFR part 95; 46 CFR parts 4, 5, 
and 16; and 49 CFR parts 199, 219, 382, and 655.
    Employer means a recipient or other entity that provides 
mass transportation service or which performs a safety-sensitive 
function for such recipient or other entity. This term includes 
subrecipients, operators, and contractors.
    FTA means the Federal Transit Administration, an agency of 
the U.S. Department of Transportation.
    Large operator means a recipient or subrecipient primarily 
operating in an urbanized area of 200,000 or more in population.
    Performing (a safety-sensitive function) means a covered 
employee is considered to be performing a safety-sensitive function and 
includes any period in which he or she is actually performing, ready to 
perform, or immediately available to perform such functions.
    Positive rate means the annual number of positive results 
for random drug tests conducted under this part divided by the total 
annual number of random drug tests conducted under this part.
    Railroad means:
    (1) All forms of non-highway ground transportation that run on 
rails or electromagnetic guideways, including:
    (i) Commuter or other short-haul rail passenger service in a 
metropolitan or suburban area, as well as any commuter rail service 
that was operated by the Consolidated Rail Corporation as of January 1, 
1979; and
    (ii) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether they use new technologies 
not associated with traditional railroads.
    (2) Such term does not include rapid transit operations within an 
urban area that are not connected to the general railroad system of 
transportation.
    Recipient means an entity receiving Federal financial 
assistance under 49 U.S.C. 5307, 5309, or 5311; or under 23 U.S.C. 
103(e)(4).
    Refuse to submit means any circumstance outlined in 49 CFR 
40.191 and 40.261.
    Safety-sensitive function means any of the following 
duties, when performed by employees of recipients, subrecipients, 
operators, or contractors:
    (1) Operating a revenue service vehicle, including when not in 
revenue service;
    (2) Operating a nonrevenue service vehicle, when required to be 
operated by a holder of a Commercial Driver's License;
    (3) Controlling dispatch or movement of a revenue service vehicle;
    (4) Maintaining (including repairs, overhaul and rebuilding) a 
revenue

[[Page 21558]]

service vehicle or equipment used in revenue service. This provision 
does not apply to the following: an employer who receives funding under 
49 U.S.C. 5309, is in an area under 50,000 in population, and contracts 
out such services; and an employer who receives funding under 49 U.S.C. 
5311 and contracts out such services;
    (5) Carrying a firearm for security purposes.
    Small operator means a recipient or subrecipient primarily 
operating in a nonurbanized area or in an urbanized area of less than 
200,000 in population.
    Second chance policy means that an employer's substance 
abuse policy permits employees who have previously violated that policy 
to return to work (including performance of a safety-sensitive 
function) after complying with the return-to-work testing requirements.
    Vehicle means a bus, electric bus, van, automobile, rail 
car, trolley car, trolley bus, or vessel. A mass transit vehicle is a 
vehicle used for mass transportation or for ancillary services.
    Violation rate means the number of covered employees found 
during random tests given annually under this part to have an alcohol 
concentration of .04 or greater, plus the number of employees who 
refuse a random test required by this part, divided by the total 
reported number of employees in the transit industry annually given 
random alcohol tests under this part plus the total reported number of 
employees in the transit industry who refuse a random test required by 
this part.


Sec. 655.5  Stand-down waivers for drug testing.

    (a) An employer subject to this part may petition the Federal 
Transit Administration for a waiver allowing the employer to stand down 
an employee following a report of a laboratory confirmed positive drug 
test or refusal, pending the outcome of the verification process.
    (b) Each petition for a waiver must be in writing and include facts 
and justification to support the waiver. Each petition must satisfy the 
substantive requirements for obtaining a waiver, as provided in 49 CFR 
40.21.
    (c) Each petition for a waiver must be submitted to the Office of 
Safety and Security, Federal Transit Administration, Department of 
Transportation, 400 Seventh Street, SW. Washington, DC 20590.
    (d) The Administrator may grant a waiver subject to 49 CFR 
40.21(d).


Sec. 655.6  Preemption of state and local laws.

    (a) Except as provided in paragraph (b) of this section, this part 
preempts any State or local law, rule, regulation, or order to the 
extent that:
    (1) Compliance with both the State or local requirement and any 
requirement in this Part is not possible; or
    (2) Compliance with the State or local requirement is an obstacle 
to the accomplishment and execution of any requirement in this part.
    (b) This part shall not be construed to preempt provisions of State 
criminal laws that impose sanctions for reckless conduct, attributed to 
prohibited drug use or alcohol misuse, leading to actual loss of life, 
injury, or damage to property, whether the provisions apply 
specifically to transportation employees or employers or to the general 
public.


Sec. 655.7  Starting date for testing programs.

    An employer must have an anti-drug and alcohol misuse testing 
program in place by the date the employer begins operations.

Subpart B--Program Requirements


Sec. 655.11  Requirement to establish an anti-drug use and alcohol 
misuse program.

    Each employer shall establish an anti-drug use and alcohol misuse 
program consistent with the requirements of this part.


Sec. 655.12  Required elements of an anti-drug use and alcohol misuse 
program.

    An anti-drug use and alcohol misuse program shall include the 
following:
    (a) A statement describing the employer's policy on prohibited drug 
use and alcohol misuse in the workplace, including the consequences 
associated with prohibited drug use and alcohol misuse. This policy 
statement shall include all of the elements specified in Sec. 655.15. 
Each employer shall disseminate the policy consistent with the 
provisions of Sec. 655.16.
    (b) An education and training program which meets the requirements 
of Sec. 655.14.
    (c) A testing program, as described in Subparts C and D of this 
part, which meets the requirements of this part and 49 CFR part 40.
    (d) Procedures for referring a covered employee who has a verified 
positive drug test result or an alcohol concentration of 0.04 or 
greater to a Substance Abuse Professional, consistent with 49 CFR Part 
40.


Sec. 655.13  Other requirements imposed by an employer.

    An employer may not impose requirements that are inconsistent with, 
contrary to, or frustrate the provisions of this part.


Sec. 655.14  Education and training programs.

    Each employer shall establish an employee education and training 
program for all covered employees, including:
    (a) Education. The education component shall include 
display and distribution to every covered employee of: informational 
material and a community service hot-line telephone number for employee 
assistance, if available.
    (b) Training--(1) Covered employees. Covered 
employees must receive at least 60 minutes of training on the effects 
and consequences of prohibited drug use on personal health, safety, and 
the work environment, and on the signs and symptoms that may indicate 
prohibited drug use.
    (2) Supervisors. Supervisors who may make reasonable 
suspicion determinations shall receive at least 60 minutes of training 
on the physical, behavioral, and performance indicators of probable 
drug use and at least 60 minutes of training on the physical, 
behavioral, speech, and performance indicators of probable alcohol 
misuse.


Sec. 655.15  Policy statement contents.

    The local governing board of the employer or operator shall adopt 
an anti-drug and alcohol misuse policy statement. The statement must be 
made available to each covered employee, and shall include the 
following:
    (a) The identity of the person designated by the employer to answer 
employee questions about the employer's anti-drug use and alcohol 
misuse programs.
    (b) The categories of employees who are subject to the provisions 
of this part.
    (c) Specific information concerning the behavior and conduct that 
is prohibited by this part.
    (d) The specific circumstances under which a covered employee will 
be tested for prohibited drugs or alcohol misuse under this part.
    (e) The procedures that will be used to test for the presence of 
illegal drugs or alcohol misuse, protect the employee and the integrity 
of the drug and alcohol testing process, safeguard the validity of the 
test results, and ensure the test results are attributed to the correct 
covered employee.
    (f) The requirement that a covered employee submit to drug and 
alcohol testing administered in accordance with this part.
    (g) A description of the kind of behavior that constitutes a 
refusal to take a drug or alcohol test, and a statement that such a 
refusal constitutes a violation of the employer's policy.

[[Page 21559]]

    (h) The consequences for a covered employee who has a verified 
positive drug or a confirmed alcohol test result with an alcohol 
concentration of 0.04 or greater, or who refuses to submit to a test 
under this part, including the mandatory requirements that the covered 
employee be removed immediately from his or her safety-sensitive 
function and be evaluated by a substance abuse professional, as 
required by 49 CFR part 40.
    (i) The consequences, as set forth in Sec. 655.35, for a covered 
employee who is found to have an alcohol concentration of 0.02 or 
greater but less than 0.04.
    (j) If the employer implements elements of an anti-drug use or 
alcohol misuse program that are in addition to this part, the employer 
shall give each covered employee specific information concerning which 
provisions are mandated by this part and which are not.


Sec. 655.16  Requirement to disseminate policy.

    Each employer shall provide written notice to every covered 
employee and to representatives of employee organizations of the 
employer's anti-drug and alcohol misuse policies and procedures.


Sec. 655.17  Notice requirement.

    Before performing a drug or alcohol test under this part, each 
employer shall notify a covered employee that the test is required by 
this part. No employer shall falsely represent that a test is 
administered under this part.

Subpart C--Prohibited Drug Use


Sec. 655.21  Drug testing.

    (a) An employer shall establish a program that provides testing for 
prohibited drugs and drug metabolites in the following circumstances: 
pre-employment, post-accident, reasonable suspicion, random, and return 
to duty/follow-up.
    (b) When administering a drug test, an employer shall ensure that 
the following drugs are tested for:
    (1) Marijuana;
    (2) Cocaine;
    (3) Opiates;
    (4) Amphetamines; and
    (5) Phencyclidine.
    (c) Consumption of these products is prohibited at all times.

Subpart D--Prohibited Alcohol Use


Sec. 655.31  Alcohol testing.

    (a) An employer shall establish a program that provides for testing 
for alcohol in the following circumstances: post-accident, reasonable 
suspicion, random, and return to duty/follow-up. An employer may also 
conduct pre-employment alcohol testing.
    (b) Each employer shall prohibit a covered employee, while having 
an alcohol concentration of 0.04 or greater, from reporting for duty to 
perform a safety-sensitive function or remaining on duty while 
performing a safety-sensitive function.


Sec. 655.32  On duty use.

    Each employer shall prohibit a covered employee from using alcohol 
while performing safety-sensitive functions. No employer having actual 
knowledge that a covered employee is using alcohol while performing 
safety-sensitive functions shall permit the employee to perform or 
continue to perform safety-sensitive functions.


Sec. 655.33  Pre-duty use.

    (a) General. Each employer shall prohibit a covered 
employee from using alcohol within 4 hours prior to performing safety-
sensitive functions. No employer having actual knowledge that a covered 
employee has used alcohol within four hours of performing a safety-
sensitive function shall permit the employee to perform or continue to 
perform safety-sensitive functions.
    (b) On-call employees. An employer shall prohibit the 
consumption of alcohol for the specified on-call hours of each covered 
employee who is on-call. The procedure shall include:
    (1) The opportunity for the covered employee to acknowledge the use 
of alcohol at the time he or she is called to report to duty and the 
inability to perform his or her safety-sensitive function.
    (2) The requirement that the covered employee take an alcohol test, 
if the covered employee has acknowledged the use of alcohol, but claims 
ability to perform his or her safety-sensitive function.


Sec. 655.34  Use following an accident.

    Each employer shall prohibit alcohol use by any covered employee 
required to take a post-accident alcohol test under Sec. 655.44 for 
eight hours following the accident or until he or she undergoes a post-
accident alcohol test, whichever occurs first.


Sec. 655.35  Other alcohol-related conduct.

    (a) No employer shall permit a covered employee tested under the 
provisions of subpart E of this part who is found to have an alcohol 
concentration of 0.02 or greater but less than 0.04 to perform or 
continue to perform safety-sensitive functions, until:
    (1) The employee's alcohol concentration measures less than 0.02; 
or (2) The start of the employee's next regularly scheduled duty 
period, but not less than eight hours following administration of the 
test.
    (b) Except as provided in paragraph (a) of this section, no 
employer shall take any action under this part against an employee 
based solely on test results showing an alcohol concentration less than 
0.04. This does not prohibit an employer with authority independent of 
this part from taking any action otherwise consistent with law.

Subpart E--Types of Testing


Sec. 655.41  Pre-employment drug testing

    (a)(1) Before allowing a covered employee or applicant to perform a 
safety-sensitive function for the first time, the employer must ensure 
that the employee takes a pre-employment drug test administered under 
this part with a verified negative result. An employer may not allow a 
covered employee, including an applicant, to perform a safety-sensitive 
function unless the employee takes a drug test administered under this 
part with a verified negative result.
    (2) When a covered employee or applicant has previously failed a 
pre-employment drug test administered under this part, the employee 
must present to the employer proof of successfully having completed a 
referral, evaluation and treatment plan as described in Sec. 655.62.
    (b) An employer may not transfer an employee from a nonsafety-
sensitive function to a safety-sensitive function until the employee 
takes a pre-employment drug test administered under this part with a 
verified negative result.
    (c) If a pre-employment drug test is canceled, the employer shall 
require the covered employee or applicant to take another pre-
employment drug test administered under this part with a verified 
negative result.
    (d) When a covered employee or applicant has not performed a 
safety-sensitive function for 90 consecutive calendar days regardless 
of the reason, and the employee has not been in the employer's random 
selection pool during that time frame, the employer shall ensure that 
the employee takes a pre-employment drug test with a verified negative 
result.


Sec. 655.42  Pre-employment alcohol testing.

    As an employer, you may, but are not required to, conduct pre-
employment alcohol testing under this part. If you choose to conduct 
pre-employment alcohol testing, you must comply with the following 
requirements:

[[Page 21560]]

    (a) You must conduct a pre-employment alcohol test before the first 
performance of safety-sensitive functions by every covered employee 
(whether a new employee or someone who has transferred to a position 
involving the performance of safety-sensitive functions).
    (b) You must treat all safety-sensitive employees performing 
safety-sensitive functions the same for the purpose of pre-employment 
alcohol testing (i.e., you must not test some covered employees and not 
others).
    (c) You must conduct the pre-employment tests after making a 
contingent offer of employment or transfer, subject to the employee 
passing the pre-employment alcohol test.
    (d) You must conduct all pre-employment alcohol tests using the 
alcohol testing procedures of 49 CFR part 40.
    (e) You must not allow a covered employee to begin performing 
safety-sensitive functions unless the result of the employee's test 
indicates an alcohol concentration of less than 0.04.


Sec. 655.43  Reasonable suspicion testing.

    (a) An employer shall conduct a drug and/or alcohol test when the 
employer has reasonable suspicion to believe that the covered employee 
has used a prohibited drug and/or engaged in alcohol misuse.
    (b) An employer's determination that reasonable suspicion exists 
shall be based on specific, contemporaneous, articulable observations 
concerning the appearance, behavior, speech, or body odors of the 
covered employee. A supervisor who is trained in detecting the signs 
and symptoms of drug use and alcohol misuse must make the required 
observations.
    (c) The decision to refer an employee for a reasonable suspicion 
test shall be made by one trained supervisor. Employers are prohibited 
from requiring two or more trained supervisors to participate and/or 
agree on such a referral.


Sec. 655.44  Post-accident testing.

    (a) Accidents. (1) Fatal accidents. As soon as practicable 
following an accident involving the loss of human life, an employer 
shall conduct drug and alcohol tests on each surviving covered employee 
operating the mass transit vehicle at the time of the accident. The 
employer shall also drug and alcohol test any other covered employee 
whose performance could have contributed to the accident, as determined 
by the employer using the best information available at the time of the 
decision.
    (2) Nonfatal accidents. (i) As soon as practicable 
following an accident not involving the loss of human life, in which a 
mass transit vehicle is involved, the employer shall drug and alcohol 
test each covered employee operating the mass transit vehicle at the 
time of the accident 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. The decision not to administer a drug and/or 
alcohol test under this paragraph (a)(2)(i) shall be based on the 
employer's determination, using the best available information at the 
time of the determination, that the employee's performance could not 
have contributed to the accident. Such a decision must be documented in 
detail, including the decision-making process used to reach the 
decision not to test. The employer shall also drug and alcohol test any 
other covered employee whose performance could have contributed to the 
accident, as determined by the employer using the best information 
available at the time of the decision.
    (ii) If an alcohol test required by this section is not 
administered within two hours following the accident, the employer 
shall prepare and maintain on file a record stating the reasons the 
alcohol test was not promptly administered. If an alcohol test required 
by this paragraph (a)(2)(ii) is not administered within eight hours 
following the accident, the employer shall cease attempts to administer 
an alcohol test and shall maintain the same record. Records shall be 
submitted to FTA upon request of the Administrator.
    (b) An employer shall ensure that a covered employee required to be 
drug tested under this section is tested as soon as practicable but 
within 32 hours of the accident.
    (c) A covered employee who is subject to post-accident testing who 
fails to remain readily available for such testing, including notifying 
the employer or the employer representative of his or her location if 
he or she leaves the scene of the accident prior to submission to such 
test, may be deemed by the employer to have refused to submit to 
testing.
    (d) Nothing in this section shall be construed to require the delay 
of necessary medical attention for the injured following an accident or 
to prohibit a covered employee from leaving the scene of an accident 
for the period necessary to obtain assistance in responding to the 
accident or to obtain necessary emergency medical care.
    (e) The results of a blood, urine, or breath test for the use of 
prohibited drugs or alcohol misuse, 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 test 
conforms to the applicable Federal, State, or local testing 
requirements, and that the test results are obtained by the employer.


Sec. 655.45  Random testing.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random drug testing 
shall be 50 percent of covered employees; the random alcohol testing 
rate shall be 25 percent. As provided in paragraph (b) of this section, 
this rate is subject to annual review by the Administrator.
    (b) The Administrator's decision to increase or decrease the 
minimum annual percentage rate for random drug and alcohol testing is 
based, respectively, on the reported positive drug and alcohol 
violation rates for the entire industry. All information used for this 
determination is drawn from the drug and alcohol Management Information 
System (MIS) reports required by this part. In order to ensure 
reliability of the data, the Administrator shall consider the quality 
and completeness of the reported data, may obtain additional 
information or reports from employers, and may make appropriate 
modifications in calculating the industry's verified positive results 
and violation rates. Each year, the Administrator will publish in the 
Federal Register the minimum annual percentage rates for random 
drug and alcohol testing of covered employees. The new minimum annual 
percentage rate for random drug and alcohol testing will be applicable 
starting January 1 of the calendar year following publication.
    (c) Rates for drug testing. (1) When the minimum annual percentage 
rate for random drug testing is 50 percent, the Administrator may lower 
this rate to 25 percent of all covered employees if the Administrator 
determines that the data received under the reporting requirements of 
Sec. 655.72 for the two preceding consecutive calendar years indicate 
that the reported positive rate is less than 1.0 percent.
    (2) When the minimum annual percentage rate for random drug testing 
is 25 percent, and the data received under the reporting requirements 
of Sec. 655.72 for the calendar year indicate that the reported 
positive rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for

[[Page 21561]]

random drug or random alcohol testing to 50 percent of all covered 
employees.
    (d) Rates for alcohol testing. (1)(i) When the minimum annual 
percentage rate for random alcohol testing is 25 percent or more, the 
Administrator may lower this rate to 10 percent of all covered 
employees if the Administrator determines that the data received under 
the reporting requirements of Sec. 655.72 for two consecutive calendar 
years indicate that the violation rate is less than 0.5 percent.
    (ii) When the minimum annual percentage rate for random alcohol 
testing is 50 percent, the Administrator may lower this rate to 25 
percent of all covered employees if the Administrator determines that 
the data received under the reporting requirements of Sec. 655.72 for 
two consecutive calendar years indicate that the violation rate is less 
than 1.0 percent but equal to or greater than 0.5 percent.
    (2)(i) When the minimum annual percentage rate for random alcohol 
testing is 10 percent, and the data received under the reporting 
requirements of Sec. 655.72 for that calendar year indicate that the 
violation rate is equal to or greater than 0.5 percent, but less than 
1.0 percent, the Administrator will increase the minimum annual 
percentage rate for random alcohol testing to 25 percent of all covered 
employees.
    (ii) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or less, and the data received under the 
reporting requirements of Sec. 655.72 for that calendar year indicate 
that the violation rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random alcohol testing to 50 percent of all covered employees.
    (e) The selection of employees for random drug and alcohol testing 
shall be made by a scientifically valid method, such as a random number 
table or a computer-based random number generator that is matched with 
employees' Social Security numbers, payroll identification numbers, or 
other comparable identifying numbers. Under the selection process used, 
each covered employee shall have an equal chance of being tested each 
time selections are made.
    (f) The employer shall randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rates for 
random drug and alcohol testing determined by the Administrator. If the 
employer conducts random drug and alcohol testing through a consortium, 
the number of employees to be tested may be calculated for each 
individual employer or may be based on the total number of covered 
employees covered by the consortium who are subject to random drug and 
alcohol testing at the same minimum annual percentage rate under this 
part.
    (g) Each employer shall ensure that random drug and alcohol tests 
conducted under this part are unannounced and unpredictable, and that 
the dates for administering random tests are spread reasonably 
throughout the calendar year. Random testing must be conducted during 
all time periods when safety-sensitive functions are performed.
    (h) Each employer shall require that each covered employee who is 
notified of selection for random drug or random alcohol testing 
proceeds to the test site immediately; provided, however, that if the 
employee is performing a safety-sensitive function at the time of the 
notification, the employer shall instead ensure that the employee 
ceases to perform the safety-sensitive function and proceeds to the 
testing site immediately.
    (i) A covered employee shall only be randomly tested for prohibited 
drug use or alcohol misuse while the employee is performing safety-
sensitive functions; just before the employee is to perform safety-
sensitive functions; or just after the employee has ceased performing 
such functions.
    (j) If a given covered employee is subject to random drug and 
alcohol testing under the testing rules of more than one DOT agency for 
the same employer, the employee shall be subject to random drug and 
alcohol testing at the percentage rate established for the calendar 
year by the DOT agency regulating more than 50 percent of the 
employee's function.
    (k) If an employer is required to conduct random drug and alcohol 
testing under the drug and alcohol testing rules of more than one DOT 
agency, the employer may--
    (1) Establish separate pools for random selection, with each pool 
containing the covered employees who are subject to testing at the same 
required rate; or
    (2) Randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the employer is subject.


Sec. 655.46  Return to duty testing following refusal to submit to a 
test, verified positive drug test result and/or breath alcohol test 
result greater than 0.04.

    Where a covered employee refuses to submit to a test, has a 
verified positive drug test result, and/or has a confirmed alcohol test 
result greater than 0.04, the employer, before returning the employee 
to duty to perform a safety-sensitive function, shall follow the 
procedures outlined in 49 CFR part 40.


Sec. 655.47  Follow-up testing after returning to duty.

    An employer shall conduct follow-up testing of each employee who 
returns to duty, as specified in 49 CFR part 40, subpart O. The 
substance abuse professional may terminate the requirement for follow-
up testing, as provided in 49 CFR 40.307.


Sec. 655.48  Retesting of covered employees with an alcohol 
concentration of 0.02 or greater but less than 0.04.

    Each employer shall retest a covered employee to ensure compliance 
with the provisions of Sec. 655.35, if the employer chooses to permit 
the employee to perform a safety-sensitive function within 8 hours 
following the administration of an alcohol test indicating an alcohol 
concentration of 0.02 or greater but less than 0.04. The employee may 
not perform safety-sensitive functions unless the confirmation alcohol 
test result is less than 0.02.


Sec. 655.49  Refusal to submit to a drug or alcohol test.

    (a) Each employer shall require a covered employee to submit to a 
post-accident drug and alcohol test required under Sec. 655.44, a 
random drug and alcohol test required under Sec. 655.45, a reasonable 
suspicion drug and alcohol test required under Sec. 655.43, or a 
follow-up drug and alcohol test required under Sec. 655.47. No employer 
shall permit an employee who refuses to submit to such a test to 
perform or continue to perform safety-sensitive functions.
    (b) Where an employee refuses to submit to a test, the employer 
shall follow the procedures outlined in 49 CFR part 40.

Subpart F--Drug and Alcohol Testing Procedures


Sec. 655.51  Compliance with testing procedures requirements.

    The drug and alcohol testing procedures in 49 CFR part 40 apply to 
employers covered by this part, and must be read together with this 
part, unless expressly provided otherwise in this part.

[[Page 21562]]

Sec. 655.52  Substance abuse professional (SAP).

    The SAP must perform the functions in 49 CFR part 40, subpart O.


Sec. 655.53  Supervisor acting as collection site personnel.

    An employer shall not permit an employee with direct or immediate 
supervisory responsibility or authority over another employee to serve 
as the urine collection person, breath alcohol technician, or saliva-
testing technician for a drug or alcohol test of the employee.

Subpart G--Consequences


Sec. 655.61  Action when an employee has a verified positive drug test 
result or has a confirmed alcohol test result of 0.04 or greater, or 
refuses to submit to a test.

    (a)(1) Immediately after receiving notice from a medical review 
officer (MRO) or a consortium/third party administrator (C/TPA) that a 
covered employee has a verified positive drug test result, the employer 
shall require that the covered employee cease performing a safety-
sensitive function.
    (2) Immediately after receiving notice from a Breath Alcohol 
Technician (BAT) that a covered employee has a confirmed alcohol test 
result of 0.04 or greater, the employer shall require that the covered 
employee cease performing a safety-sensitive function.
    (3) If an employee refuses to submit to a drug or alcohol test, the 
employer shall require that the covered employee cease performing a 
safety-sensitive function.
    (b) Before allowing the covered employee to resume performing a 
safety-sensitive function, the employer shall ensure that the covered 
employee meets the requirements of 49 CFR part 40 for returning to 
duty, including taking a return to duty drug and/or alcohol test.


Sec. 655.62  Referral, evaluation, and treatment.

    (a) If a covered employee has a verified positive drug test result, 
or has a confirmed alcohol test of 0.04 or greater, or refuses to 
submit to a drug or alcohol test, the employer shall advise the 
employee of the resources available for evaluating and resolving 
problems associated with prohibited drug use and alcohol misuse, 
including the names, addresses, and telephone numbers of substance 
abuse professionals (SAPs) and counseling and treatment programs.
    (b) A covered employee under a second chance agreement, who has had 
a verified positive drug test result, or had a confirmed alcohol test 
of 0.04 or greater, or refused to submit to a drug or alcohol test, 
shall not resume performing safety-sensitive functions until the 
covered employee has met all the requirements of 49 CFR part 40, 
including a substance abuse professional (SAP) evaluation, referral, 
and education treatment process.

Subpart H--Administrative Requirements


Sec. 655.71  Retention of records.

    (a) General requirement. An employer shall maintain records 
of its anti-drug and alcohol misuse program as provided in this 
section. The records shall be maintained in a secure location with 
controlled access.
    (b) Period of retention. In determining compliance with the 
retention period requirement, each record shall be maintained for the 
specified period of time, measured from the date of the document's or 
data's creation. Each employer shall maintain the records in accordance 
with the following schedule:
    (1) Five years. Records of covered employee verified 
positive drug or alcohol test results, documentation of refusals to 
take required drug or alcohol tests, and covered employee referrals to 
the substance abuse professional, and copies of annual MIS reports 
submitted to FTA.
    (2) Two years. Records related to the collection process 
and employee training.
    (3) One year. Records of negative drug or alcohol test 
results.
    (c) Types of records. The following specific records must 
be maintained:
    (1) Records related to the collection process:
    (i) Collection logbooks, if used.
    (ii) Documents relating to the random selection process.
    (iii) Documents generated in connection with decisions to 
administer reasonable suspicion drug or alcohol tests.
    (iv) Documents generated in connection with decisions on post-
accident drug and alcohol testing.
    (v) MRO documents verifying existence of a medical explanation of 
the inability of a covered employee to provide an adequate urine or 
breathe sample.
    (2) Records related to test results:
    (i) The employer's copy of the custody and control form.
    (ii) Documents related to the refusal of any covered employee to 
submit to a test required by this part.
    (iii) Documents presented by a covered employee to dispute the 
result of a test administered under this part.
    (3) Records related to referral and return to duty and follow-up 
testing: Records concerning a covered employee's entry into and 
completion of the treatment program recommended by the substance abuse 
professional.
    (4) Records related to employee training:
    (i) Training materials on drug use awareness and alcohol misuse, 
including a copy of the employer's policy on prohibited drug use and 
alcohol misuse.
    (ii) Names of covered employees attending training on prohibited 
drug use and alcohol misuse and the dates and times of such training.
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination 
concerning the need for drug and alcohol testing based on reasonable 
suspicion.
    (iv) Certification that any training conducted under this part 
complies with the requirements for such training.
    (5) Copies of annual MIS reports submitted to FTA.


Sec. 655.72  Reporting of results in a management information system.

    (a) Each recipient shall annually prepare and maintain a summary of 
the results of its anti-drug and alcohol misuse testing programs 
performed under this part during the previous calendar year.
    (b) When requested by FTA, each recipient shall submit to FTA's 
Office of Safety and Security, or its designated agent, by March 15, a 
report covering the previous calendar year (January 1 through December 
31) summarizing the results of its anti-drug and alcohol misuse 
programs.
    (c) Each recipient shall be responsible for ensuring the accuracy 
and timeliness of each report submitted by an employer, contractor, 
consortium or joint enterprise or by a third party service provider 
acting on the recipient's or employer's behalf.
    (d) Drug use information: Long Form. Each report that 
contains information on verified positive drug test results shall be 
submitted on the FTA Drug Testing Management Information System (MIS) 
Data Collection Form (Appendix A of this part) and shall include the 
following informational elements:
    (1) Number of FTA covered employees by employee category.
    (2) Number of covered employees subject to testing under the anti-
drug regulations of the United States Coast Guard.
    (3) Number of specimens collected by type of test (i.e., pre-
employment, follow-up, random, etc.) and employee category.
    (4) Number of positives verified by a Medical Review Officer (MRO) 
by type

[[Page 21563]]

of test, type of drug, and employee category.
    (5) Number of negatives verified by an MRO by type of test and 
employee category.
    (6) Number of persons denied a position as a covered employee 
following a verified positive drug test.
    (7) Number of covered employees verified positive by an MRO or who 
refused to submit to a drug test, who were returned to duty in covered 
positions during the reporting period (having complied with the 
recommendations of a substance abuse professional as described in 
Sec. 655.61).
    (8) Number of employees with tests verified positive by a MRO for 
multiple drugs.
    (9) Number of covered employees who were administered drug and 
alcohol tests at the same time, with both a verified positive drug test 
result and an alcohol test result indicating an alcohol concentration 
of 0.04 or greater.
    (10) Number of covered employees who refused to submit to a random 
drug test required under this part.
    (11) Number of covered employees who refused to submit to a non-
random drug test required under this part.
    (12) Number of covered employees and supervisors who received 
training during the reporting period.
    (13) Number of fatal and nonfatal accidents which resulted in a 
verified positive post-accident drug test.
    (14) Number of fatalities resulting from accidents which resulted 
in a verified positive post-accident drug test.
    (15) Identification of FTA funding source(s).
    (e) Drug Use Information: Short Form. If all drug test 
results were negative during the reporting period, the employer must 
use the ``EZ form'' (Appendix B of this part). It shall contain:
    (1) Number of FTA covered employees.
    (2) Number of covered employees subject to testing under the anti-
drug regulation of the United States Coast Guard.
    (3) Number of specimens collected and verified negative by type of 
test and employee category.
    (4) Number of covered employees verified positive by an MRO or who 
refused to submit to a drug test prior to the reporting period and who 
were returned to duty in covered positions during the reporting period 
(having complied with the recommendations of a substance abuse 
professional as described in Sec. 655.62).
    (5) Number of covered employees who refused to submit to a non-
random drug test required under this part.
    (6) Number of covered employees and supervisors who received 
training during the reporting period.
    (7) Identification of FTA funding source(s).
    (f) Alcohol misuse information: Long Form. Each report that 
contains information on an alcohol screening test result of 0.02 or 
greater or a violation of the alcohol misuse provisions of this part 
shall be submitted on the FTA Alcohol Testing Management (MIS) Data 
Collection Form (Appendix C of this part) and shall include the 
following informational elements:
    (1) Number of FTA covered employees by employee category.
    (2)(i) Number of screening tests by type of test and employee 
category.
    (ii) Number of confirmed tests, by type of test and employee 
category.
    (3) Number of confirmed alcohol tests indicating an alcohol 
concentration of 0.02 or greater but less than 0.04, by type of test 
and employee category.
    (4) Number of confirmed alcohol tests indicating an alcohol 
concentration of 0.04 or greater, by type of test and employee 
category.
    (5) Number of covered employees with a confirmed alcohol test 
indicating an alcohol concentration of 0.04 or greater who were 
returned to duty in covered positions during the reporting period 
(having complied with the recommendation of a substance abuse 
professional as described in Sec. 655.61).
    (6) Number of fatal and nonfatal accidents which resulted in a 
confirmed post-accident alcohol test indicating an alcohol 
concentration of 0.04 or greater.
    (7) Number of fatalities resulting from accidents which resulted in 
a confirmed post-accident alcohol test indicating an alcohol 
concentration of 0.04 or greater.
    (8) Number of covered employees who were found to have violated 
other provisions of subpart B of this part and the action taken in 
response to the violation.
    (9) Number of covered employees who were administered alcohol and 
drug tests at the same time, with a positive drug test result and an 
alcohol test result indicating an alcohol concentration of 0.04 or 
greater.
    (10) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (11) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (12) Number of supervisors who have received training during the 
reporting period in determining the existence of reasonable suspicion 
of alcohol misuse.
    (13) Identification of FTA funding source(s).
    (g) Alcohol Misuse Information: Short Form. If an employer 
has no screening test results of 0.02 or greater and no violations of 
the alcohol misuse provisions of this part, the employer must use the 
``EZ'' form (Appendix D of this part). It shall contain: (This report 
may only be submitted if the program results meet these criteria.)
    (1) Number of FTA covered employees.
    (2) Number of alcohol tests conducted with results less than 0.02 
by type of test and employee category.
    (3) Number of employees with confirmed alcohol test results 
indicating an alcohol concentration of 0.04 or greater prior to the 
reporting period and who were returned to duty in a covered position 
during the reporting period.
    (4) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (5) Number of supervisors who have received training during the 
reporting period in determining the existence of reasonable suspicion 
of alcohol misuse.
    (6) Identification of FTA funding source(s).


Sec. 655.73  Access to facilities and records

    (a) Except as required by law, or expressly authorized or required 
in this section, no employer may release information pertaining to a 
covered employee that is contained in records required to be maintained 
by Sec. 655.71.
    (b) A covered employee is entitled, upon written request, to obtain 
copies of any records pertaining to the covered employee's use of 
prohibited drugs or misuse of alcohol, including any records pertaining 
to his or her drug or alcohol tests. The employer shall provide 
promptly the records requested by the employee. Access to a covered 
employee's records shall not be contingent upon the employer's receipt 
of payment for the production of those records.
    (c) An employer shall permit access to all facilities utilized and 
records compiled in complying with the requirements of this part to the 
Secretary of Transportation or any DOT agency with regulatory authority 
over the employer or any of its employees or to a State oversight 
agency authorized to oversee rail fixed guideway systems.
    (d) An employer shall disclose data for its drug and alcohol 
testing programs, and any other information pertaining to the 
employer's anti-drug and alcohol misuse programs required to be 
maintained by this part, to the Secretary of Transportation or any DOT 
agency with regulatory authority over the employer or covered employee 
or to a State oversight agency authorized to oversee rail fixed 
guideway systems,

[[Page 21564]]

upon the Secretary's request or the respective agency's request.
    (e) When requested by the National Transportation Safety Board as 
part of an accident investigation, employers shall disclose information 
related to the employer's drug or alcohol testing related to the 
accident under investigation.
    (f) Records shall be made available to a subsequent employer upon 
receipt of a written request from the covered employee. Subsequent 
disclosure by the employer is permitted only as expressly authorized by 
the terms of the covered employee's request.
    (g) An employer may disclose information required to be maintained 
under this part pertaining to a covered employee to the employee or the 
decisionmaker in a lawsuit, grievance, or other proceeding initiated by 
or on behalf of the individual, and arising from the results of a drug 
or alcohol test under this part (including, but not limited to, a 
worker's compensation, unemployment compensation, or other proceeding 
relating to a benefit sought by the covered employee.)
    (h) An employer shall release information regarding a covered 
employee's record as directed by the specific, written consent of the 
employee authorizing release of the information to an identified 
person.

Subpart I--Certifying Compliance


Sec. 655.81  Grantee oversight responsibility

    A grantee shall ensure that the recipients of funds under 49 U.S.C. 
5307, 5309, or 5311 comply with this part.


Sec. 655.82  Compliance as a condition of financial assistance.

    (a) General. A recipient may not be eligible for federal 
financial assistance under 49 U.S.C. 5307, 5309, or 5311 or under 23 
U.S.C. 103(e)(4), if a recipient fails to establish and implement an 
anti-drug and alcohol misuse program as required by this part. Failure 
to certify compliance with these requirements, as specified in 
Sec. 655.83, may result in the suspension of a grantee's eligibility 
for federal funding.
    (b) Criminal violation. A recipient is subject to criminal 
sanctions and fines for false statements or misrepresentations under 18 
U.S.C. 1001.
    (c) State's role. Each State shall certify compliance on 
behalf of its section 5307, 5309, or 5311 subrecipients, as applicable, 
whose grant the State administers. In so certifying, the State shall 
ensure that each subrecipient is complying with the requirements of 
this part. A section 5307, 5309, or 5311 subrecipient, through the 
administering State, is subject to suspension of funding from the State 
if such subrecipient is not in compliance with this part.


Sec. 655.83  Requirement to certify compliance

    (a) A recipient of FTA financial assistance shall annually certify 
compliance, as set forth in Sec. 655.82, to the applicable FTA Regional 
Office.
    (b) A certification must be authorized by the organization's 
governing board or other authorizing official, and must be signed by a 
party specifically authorized to do so.
    (c) A recipient will be ineligible for further FTA financial 
assistance if the recipient fails to establish and implement an anti-
drug and alcohol misuse program in accordance with this part.
BILLING CODE 4910-57-P

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    Issued on: April 2, 2001.
Hiram J. Walker,
Acting Deputy Administrator, Federal Transit Administration.
[FR Doc. 01-9415 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-57-C