[Federal Register Volume 66, Number 154 (Thursday, August 9, 2001)]
[Rules and Regulations]
[Pages 41996-42036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19234]


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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: Final rule.

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SUMMARY: The Federal Transit Administration (FTA) has combined its drug 
and alcohol testing regulations. This final rule incorporates guidance 
that FTA has issued in the past several years in letters of 
interpretation, audit findings, newsletters, training classes, safety 
seminars, and public speaking engagements. In addition, this final rule 
conforms FTA's rule to the Department of Transportation's (DOT) revised 
drug and alcohol testing rule published on December 19, 2000.

DATES: The effective date of this final rule is August 1, 2001.

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

Regulatory Information

    On April 30, 2001, FTA published a notice of proposed rulemaking 
(NPRM) proposing changes to conform its drug and alcohol testing 
regulation (49 CFR Part 655) to the December 19, 2000 revision of DOT's 
transportation workplace testing procedures at 49 CFR Part 40. (66 FR 
21551). While several of the amendments to Part 40 became effective on 
January 18, 2001, the entire revised Part 40 will become effective on 
August 1, 2001.
    Generally, final rules must be published at least 30 days before 
their effective dates. However, the Administrative Procedure Act (5 
U.S.C. sec. 553(d)(3)) creates an exception to this general rule on the 
basis of good cause found by the agency. FTA is making this conforming 
rule effective immediately, rather than 30 days from the date of 
publication in the Federal Register to ensure that FTA's drug and 
alcohol testing regulation is consistent with the Department's Part 40 
testing procedures, which are effective on August 1, 2001. This 
consistency is necessary in order to avoid overlap, conflict, 
duplication, or confusion among DOT drug and alcohol testing 
regulations. Unless this rule goes into effect immediately, there would 
be a 30-day period in which Part 40 would be in effect without FTA's 
conforming amended final rule. Since the new Part 40 was published over 
seven months ago, affected parties have had ample time to prepare to 
implement the changes in Part 40 to which this rule conforms.

I. Background

    The Omnibus Transportation Employee Testing Act of 1991 (the Act)

[[Page 41997]]

mandated the Secretary of Transportation to issue regulations to combat 
prohibited drug use and alcohol misuse in the transportation industry. 
(Pub. L. 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 
Federal transit 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. With 
respect to railroad operations, the Act allows FTA to defer to 
regulations issued by the Federal Railroad Administration (FRA).
    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 prohibited drugs by individuals performing safety-
sensitive functions in the transit industry. 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 notices of proposed rule 
making to prevent prohibited drug use and alcohol misuse (49 CFR Parts 
653 and 654). (57 FR 59646 and 57 FR 59660). The rules established a 
process 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. (59 FR 7549 and 59 FR 7572).
    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 where the 
employer has been unable to timely perform such a test. (63 FR 67612). 
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). (64 FR 425). The amended 
definition included covered employees of both recipients and 
contractors performing overhaul and rebuilding services of engines, 
parts, and vehicles. Previously, employees of contractors who were 
performing safety-sensitive functions did not have to comply with FTA 
drug and alcohol testing.
    In issuing the amended definition, FTA noted that it would be 
unduly burdensome to subject the covered employees of contractors to 
the drug and alcohol regulations if the overhaul/rebuilding work was 
done on an ad hoc or one-time basis where no long-term contract between 
the grantee and its contractor existed. (64 FR 426). FTA will continue 
to exclude the covered employees of contactors who perform safety-
sensitive functions on an ad hoc or one-time basis.
    When the drug and alcohol rules initially 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. Additionally, in April 1994, FTA 
published Implementation Guidelines for Drug and Alcohol Regulations in 
Mass Transit and made them available to anyone seeking help 
implementing the rules. The guidelines were published in the Federal 
Register several months prior to the effective date of the rules. They 
provided step-by-step instructions on how to most effectively comply 
with Parts 653 and 654. FTA will issue updated guidelines to assist 
with the implementation of Part 655.
    Additionally, FTA has issued numerous 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 found that the letters were very helpful in 
explaining the rules. FTA will continue to offer interpretive guidance 
with respect to Part 655.
    To determine compliance with the rules, FTA's Office of Safety and 
Security began auditing grantee drug and alcohol testing programs in 
March 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 Rule

    This rule combines the drug and alcohol testing rules, found at 49 
CFR Parts 653 and 654, and conforms these rules to the Department's 
drug and alcohol testing procedures at 49 CFR Part 40. FTA believes 
this change will allow the program to be implemented more efficiently 
and will bring FTA into line with the other operating administrations 
that fall under the Omnibus Transportation Employee Testing Act of 
1991, (Federal Aviation Administration, Federal Railroad 
Administration, and Federal Motor Carrier Safety 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 applies to direct and indirect recipients of funds under 
49 U.S.C. 5307, 5309, 5311, and 23 U.S.C. 103(e)(4). It requires 
transit operators (employers) who receive these funds to establish and 
conduct a multifaceted anti-drug and alcohol misuse testing program. 
The regulation conditions financial assistance on the implementation of 
a program. Failure of an employer to develop and implement a program in 
compliance with this

[[Page 41998]]

regulation may result in the suspension of Federal transit funding.
    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). Safety-sensitive employees 
are also prohibited from misusing alcohol. The rule requires 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.
    The rule requires the use of the Department-wide drug and alcohol 
testing procedures contained in 49 CFR Part 40. 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. The employee must then be informed 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.
    Any action on the part of FTA for noncompliance is against 
recipients of Federal transit funds, i.e., transit systems, 
metropolitan planning organizations (MPOs), states, and third party 
contractors that perform safety-sensitive functions. MPOs and states 
are affected by this regulation if they receive Federal transit funds 
and (1) they provide transit service or they provide funding to a 
subrecipient. MPOs or states that fund or manage transit providers, but 
do not provide transit service, must ensure that transit provider 
employers provide a certification of compliance.
    FTA's relationship is with its grantees. Many grantees that receive 
transit funds 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 Federal transit funds to smaller subrecipients within the state.
    This rule 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. Section-by-Section Discussion of the Comments

    In this section, FTA will discuss the differences between the rules 
in Parts 653 and 654 and the final rule in Part 655. The responses to 
comments on each section are also included herein. There is no 
discussion for sections that have remained substantially the same. FTA 
also did not discuss comments that addressed Department-wide issues, 
which are more properly addressed in Part 40, or issues that were 
beyond the scope of the NPRM.
    FTA received 84 comments in response to the NPRM. The breakdown 
among commenter categories follows:

Nonprofits, and special transit providers: 10
City and County transit providers: 19
State agencies: 20
Labor unions: 3
Trade associations: 9
Individual citizens: 12
Private businesses: 11.

    FTA considered all comments filed in a timely manner, as well as 
all statements and material presented at the public meetings on the 
NPRM.

Subpart A--General

A. Definitions (Sec. 655.4)
    Employer: In the NPRM, FTA proposed that, in addition to direct 
recipients of FTA funding, the term ``employer'' include state 
recipients that pass the money to subrecipients and grantees that have 
contractors performing transit operations. The definition change was 
proposed to provide states and grantees access to covered employees' 
drug and alcohol test records in order to certify compliance with FTA 
drug and alcohol testing rules by subrecipients and contractors.
    FTA received a significant number of comments regarding the 
designation of states as employers. Several states were concerned that 
being named an employer in order to access drug and alcohol records 
would have legal and technical implications that may expose the state 
to potential litigation. States were also concerned that they may 
become the warehouse of records and be responsible for responding to 
potential employers requesting information that is required under 49 
CFR 40.25. Grantees that utilize contractors to provide transit 
services offered similar concerns. Regardless, a significant number of 
commenters acknowledged the necessity of having access to test results 
of covered employees since Subpart I requires recipients to certify 
that their contractors and/or subrecipients are complying with the drug 
and alcohol testing program. Numerous commenters stated that this 
objective could be accomplished by amending 49 CFR 655.73--Access to 
Facilities and Records.
    FTA Response. FTA agrees with the commenters and has remedied this 
situation with the addition of paragraph 49 CFR 655.73 (i). An employer 
may disclose drug and alcohol testing information required to be 
maintained under this part only to the state oversight agency or 
grantee required to certify to FTA compliance with the drug and alcohol 
testing procedures at 49 CFR Parts 40 and 655.
    Although several commenters indicated that law enforcement agencies 
should have access to records maintained under this part upon request, 
FTA recognizes that individual privacy rights require limited 
dissemination of this information. This section does not authorize 
release of information maintained under this part to a law enforcement 
agency based solely on the request of the law enforcement agency.
    Second chance policy: FTA proposed adding this definition to the 
rule with the understanding that grantees have the discretion to adopt 
a second chance policy, i.e., a policy allowing an employee (who has 
previously violated the Federal drug and/or alcohol regulations) to 
return to a safety-sensitive position after completing rehabilitation.
    FTA received a limited number of comments on this subject. A few 
commenters expressed appreciation for the definition while most 
questioned the necessity for its inclusion since it is the employer's 
discretion to implement a ``second chance policy''.
    FTA Response. FTA opts not to include ``second chance policy'' 
under definitions at this time. Since the decision to retain a covered 
employee is within the discretion of the employer, the phrase will not 
be defined in the final rule.

[[Page 41999]]

    Taxi cab drivers and other transportation providers: FTA requested 
comments regarding its guidance and policy relating to this category of 
contractors. According to FTA 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 
taxicab operators.
    A number of commenters on this subject expressed concern that many 
rural and small urban communities have limited availability of taxi 
service. One commenter questioned FTA's regulatory authority to include 
taxi operators under the drug and alcohol testing rule. Other 
commenters indicated that a taxi operator is performing a safety-
sensitive function whether the patron or the provider selects the taxi 
service and should be subject to the rule.
    FTA Response. The intent of FTA's regulatory scheme is not to 
impose Federal regulations on the taxi industry; however, taxi 
companies that contract with transportation service providers receiving 
Federal transit funds are subject to compliance with the drug and 
alcohol rules. FTA policy continues to recognize the practical 
difficulty of administering a drug and alcohol testing program to taxi 
companies that only incidentally provide transit service. Therefore, 
the drug and alcohol testing rules apply when the transit provider 
enters into a contract with one or more entities to provide taxi 
service. The rules do not apply when the patron (using subsidized 
vouchers) selects the taxi company that provides the transit service. 
This guidance reflects the FTA Master Agreement, which requires 
recipients to include appropriate clauses in third party contracts 
requiring contractors to comply with applicable Federal requirements. 
It also recognizes the practical difficulty of administering a drug and 
alcohol testing program to entities that only incidentally provide taxi 
service on behalf of a transportation service provider.
    Dispatchers. FTA requested comments on the duties and 
responsibilities of dispatchers in the different transit systems. The 
objective was to determine whether the duties and responsibilities vary 
significantly enough to warrant modification of the current rule.
    A significant number of commenters indicated that bus dispatchers 
whose duties are of an administrative nature and primarily communicate 
directions to a bus operator do not perform a safety-sensitive 
function. Other commenters indicated that their dispatchers did indeed 
perform safety-sensitive functions, including but not limited to 
responding to emergency situations and should remain subject to the 
rules. The majority of the commenters in rural and small urban areas 
indicated that their dispatchers did not perform safety-sensitive 
functions.
    FTA Response. The comments confirm that bus dispatchers perform a 
myriad of duties depending on the employer. FTA's rules apply to anyone 
who performs a safety-sensitive function, which includes the control of 
the ``dispatch or movement of a revenue service vehicle.''
    Since each employer uses its own terminology to describe job 
categories that involve safety-sensitive functions, each employer must 
continue to decide whether a particular employee performs any of the 
functions listed in the definition of ``safety-sensitive function,'' 
including bus dispatchers. As noted in previous guidance, the key 
consideration remains the type of work performed rather than any 
particular job title. Based on the comments received, FTA will not 
attempt a universal definition of ``dispatchers'' at this time. 
Instead, FTA will allow each employer to determine whether a particular 
dispatcher performs or may perform a safety-sensitive function.
    Maintenance contractors. In the NPRM, FTA reiterated that 
maintenance contractors that perform safety-sensitive functions are 
subject to the drug and alcohol testing rules, for the reasons noted in 
the preamble to the 1999 rule change, i.e., fairness and safety (64 FR 
425, January 5, 1999). Most comments on this subject concerned the 
difficulty employers have in requiring maintenance contractors to 
implement a drug and alcohol program. Much of the discussion related to 
the difficulty in finding maintenance contractors willing to comply 
with the drug and alcohol testing requirements, particularly where the 
maintenance contractor provides service on an occasional basis. A 
number of commenters offered that maintenance shops cannot afford to 
implement an ongoing program for the amount of transit-related business 
generated. As a result, this would severely restrict the grantee/
subrecipient's ability to properly maintain FTA-funded vehicles. The 
majority of comments urged the FTA to completely exempt maintenance 
contractors from the drug and alcohol testing regulations.
    Several urban grantees commented on the fact that the type of work 
they are contracting out is often performed by small shops focusing on 
a very narrow repair area. These maintenance contractors have limited 
administrative staff, which causes them difficulty in administering a 
drug and alcohol program.
    FTA Response. FTA recognizes these concerns, but also recognizes 
the public safety interest inherent in testing safety-sensitive 
employees. FTA has developed a middle ground to alleviate some of the 
problems associated with this issue. FTA still recognizes that 
recipients funded with 49 U.S.C. 5311 funds and which contract out 
maintenance service are excluded from the drug and alcohol testing 
rules. In addition, recipients of Federal transit funds under 49 U.S.C. 
5307 and 5309 in an area less than 200,000 in population and which 
contract out such services are no longer required to comply with Part 
655. Also, maintenance providers of safety-sensitive functions for a 
grantee on an ad hoc or one-time basis are not required to comply.
    Volunteers. FTA proposed to clarify when volunteers are covered 
employees subject to the drug and alcohol testing rules. Most 
commenters indicated that the proposed language needed further 
clarification.
    FTA Response. FTA has reviewed the proposed language and amends the 
definition of covered employee by deleting reference to the volunteers' 
``expectation of in-kind or tangible benefits.'' Instead, a volunteer 
is deemed a covered employee when he or she receives remuneration in 
excess of their actual personal expenses incurred while performing the 
volunteer service.
B. Stand-Down Waivers for Drug Testing (655.5)
    FTA proposed procedures on stand-down waivers to conform with 49 
CFR Part 40.
    Most of the commenters to this section expressed support. However, 
one commenter expressed opposition to the provision claiming that it 
undercuts the confidentiality principles inherent in the FTA's drug and 
alcohol testing program. Another commenter indicated that FTA should 
provide additional criteria not identified in 49 CFR Part 40.
    FTA Response. FTA is aware of the confidentiality concerns and will 
carefully review each petition to determine if the facts and 
justification warrant a waiver. The requirements for obtaining a waiver 
are provided in 49 CFR 40.21. The proposed rule will be incorporated in 
the final rule to conform with 49 CFR Part 40.

Subpart B--Program Requirements

A. Policy Statement Contents (Sec. 655.15)
    FTA proposed limiting information required in a Policy Statement to 
that

[[Page 42000]]

listed in section 655.15. FTA also clarified 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 may do so. FTA also noted 
that employers may incorporate by reference 49 CFR Part 40 in their 
Policy Statements, provided it is available for review by employees 
when requested.
    Most commenters expressed support for the effort to simplify this 
requirement. However, one commenter noted that eliminating the 
requirement to address specific sections of 49 CFR Part 40 and making 
Part 40 available to the employee creates the potential for 
misunderstanding by the employee. Another commenter indicated that 
specific employee rights should be required in this section. A few 
commenters also recommended that FTA impose schedules for when the 
employee and supervisor training requirement should occur and the 
frequency with which it should be scheduled.
    FTA Response. FTA believes that simplifying the contents required 
in the Policy Statement reduces the administrative burden while 
maintaining an employer's discretion to craft a Policy Statement that 
includes additional requirements not mandated by FTA. FTA also believes 
that it would be an undue burden to mandate an industry-wide training 
schedule. The final rule recognizes the diversity of employee-
management relationships within the transit industry and also strikes a 
reasonable balance with the requirement for employee and supervisor 
training. However, a grantee may choose to include additional 
requirements not mandated by FTA, i.e., recurring training and employee 
rights. If a grantee does so, the grantee's policy shall indicate that 
those additional requirements are the employer's, and not FTA's. FTA 
also believes that it is reasonable for employers to incorporate by 
reference 49 CFR Part 40 in their Policy Statements and make it 
available for review by employees when requested.

Subpart E--Types of Testing

A. Pre-employment Drug Testing (Sec. 655.41)
    FTA notified the public of the intent to eliminate the phrase 
``hire'' in this provision of the rule. Previously, employers were 
required to administer a drug test and receive a negative result before 
hiring an employee.
    FTA also notified the public of its proposal to require a pre-
employment test for covered employees who are away from work for more 
than 90 consecutive calendar days and plan to return to a safety-
sensitive function. It is FTA's intent that employers assure themselves 
that employees can successfully pass a drug test before returning them 
to safety-sensitive functions.
    The majority of commenters support the change in the provision that 
allows a covered employee to be hired prior to receiving a negative 
drug test result. These comments indicated that the rule balances the 
employer's personnel concerns with the public safety interest by 
ensuring that the new covered employee is not permitted to perform a 
safety-sensitive function for the first time until a negative drug test 
result is received. However, one commenter stated that the public 
safety interest is better served by prohibiting the hiring of a covered 
employee prior to receiving a drug test result. Another comment 
indicated that FTA should adopt pre-employment provisions similar to 
the Federal Motor Carrier Safety Administration (FMCSA).
    Many commenters supported clarification of the rule regarding the 
time required to elapse before an absent covered employee should take 
another pre-employment drug test. A majority of rural and small urban 
employers are in favor of this rule because they employ seasonal and 
temporary workers. A few comments indicated that there is no basis to 
retest a covered employee after a 90-day absence. However, one employer 
indicated that a pre-employment test should be administered after 90 
days regardless of whether the employee was in the employer's random 
pool or not. Another commenter indicated that pre-employment testing 
should be administered following consecutive absences as short as 30 
days.
    FTA Response. FTA has reviewed the comments and will incorporate 
the NPRM language into the final rule. FTA believes that deleting the 
phrase ``hire'' in this section provides an employer with the 
discretion to administer a pre-employment drug test anytime before the 
employee first performs a safety-sensitive function. FTA also believes 
the 90-day period is reasonable. It gives the employer the discretion 
to decide whether or not the covered employee is retained in the random 
pool during his or her absence. If the employee is retained in the 
random pool, then pre-employment testing is not required. In 
determining whether to retain the employee in the random pool, one 
consideration is the likelihood of the employee's return to perform 
safety-sensitive functions.
B. Pre-Employment Alcohol Testing (Sec. 655.42)
    FTA noted in the NPRM that its pre-employment alcohol testing 
requirements were suspended due to a court decision and subsequent 
legislation. Most commenters indicated that FTA's new rule should also 
omit the pre-employment alcohol testing provisions, primarily because 
alcohol consumption is a legal activity. Others indicated that since 
pre-employment testing would not be conducted under FTA authority, this 
section should not be included in the final rule.
    FTA Response. The NPRM language is included in the final rule to 
conform with the other DOT agency drug and alcohol testing programs. 
All six DOT agencies with testing programs are adding this section to 
their respective rules. This section allows, but does not require, 
employers to conduct pre-employment alcohol testing. If an employer 
chooses to conduct pre-employment alcohol testing, the employer must 
conduct the testing in accordance with all of the requirements of 49 
CFR Part 40.
C. Reasonable Suspicion Testing (Sec. 655.43)
    Several commenters responding to this section indicated that FTA 
should not interfere with an employer's ability to require two or more 
trained supervisors to participate and/or agree on referring an 
employee for reasonable suspicion testing. One commenter indicated that 
employers should be allowed to authorize other personnel to make 
reasonable suspicion testing observations similar to the FMCSA. Two 
commenters indicated that this testing requirement should not be 
required at all because the consumption of alcohol is legal. Other 
commenters indicated that provisions found in 49 CFR 654.37(c) and (d) 
should be incorporated in the final rule.
    FTA Response. FTA believes that the public safety interest is 
furthered with the inclusion of this requirement and the final rule is 
amended to include the language of 49 CFR 654.37(c) and (d). FTA also 
notes that the proposed bar to an employer requiring two or more 
trained supervisors to make such referrals is not included in the final 
rule. FTA also agrees that an employer should be permitted to authorize 
and train other company officers to make reasonable suspicion 
observations;

[[Page 42001]]

therefore this section and section 655.14 of subpart B are amended 
accordingly.
D. Post-Accident Testing (Sec. 655.44)
    FTA noted in the NPRM that its post-accident testing regulation was 
previously amended to allow an employer, in extremely limited 
circumstances, to use the post-accident test results administered by 
local law enforcement only when the employer is unable to perform a 
post-accident test within the required time frame.
    Of the few comments received on this section, most indicated 
support for the limited exception to use post-accident test results 
from local law enforcement. However, a commenter indicated that the 
rule does not state that this provision is to be used in limited 
circumstances. Another commenter stated that the employer should not be 
permitted to use post-accident test results administered by local law 
enforcement because the standards for these tests may be less than 
those imposed by DOT. One commenter stated that FTA should not require 
post-accident testing when it is also required by FMCSA.
    FTA Response. FTA noted that the proposed rule did not state the 
limited exception under which an employer may use the test results of a 
law enforcement agency. The final rule is amended to indicate that an 
employer may use the post-accident test results of a law enforcement 
agency when the employer is unable to test within the required time 
frame established by FTA and the test is performed to the applicable 
standards of the entity authorized to administer the drug or alcohol 
test. FTA and FMCSA are amending their respective post-accident testing 
rule to eliminate the requirement for duplicative post-accident testing 
of operators.
E. Random Testing (Sec. 655.45)
    FTA reiterated in the NPRM that a primary purpose of random testing 
is deterrence. Deterrence is most effectively achieved with random, 
unpredictable drug and alcohol testing that is conducted throughout all 
workdays and hours of service.
    Although the majority of commenters supported the concept of random 
drug testing, a significant number indicated that employers in rural 
areas have an increased burden complying with this provision. They have 
difficulty in obtaining testing services after normal business hours 
within their areas and/or because of distances between testing service 
providers and the employer. Four commenters also noted that the NPRM 
incorrectly stated the current random alcohol testing rate.
    FTA Response. The proposed language is incorporated in the final 
rule with some modification. The concern reflected by employers in 
rural areas is noted; however, FTA believes that the public safety 
interest is promoted with random testing that is truly random and 
unpredictable. However, FTA believes that requiring random testing to 
be conducted at least quarterly strikes a reasonable balance while 
considering the rule's impact on employers in rural areas. 
Additionally, FTA is reviewing the recommendation to allow individual 
rural transit systems to apply to have its random testing rate based on 
its individual performance and program instead of industry-wide data.
    Paragraph (a) of this section is amended to read 10% instead of 
25%. Paragraph (i) of this section is also amended to reflect that 
random testing for alcohol misuse is subject to safety-sensitive 
performance limitations while testing for drug use is permitted anytime 
during the workday.

Subpart H--Administrative Requirements

A. Retention of Records (Sec. 655.71) and Reporting Results in a 
Management Information System (Sec. 655.72)
    The NPRM proposed changing FTA's Management Information System 
(MIS) reporting requirement from census reporting to stratified random 
sampling because it now has an accurate portrait of the current state 
of drug and alcohol testing (including positive rates) in the transit 
industry. Most commenters indicated that FTA's intent to reduce the 
paperwork requirement is better achieved by using technology (e.g., web 
based/electronic submission). A few commenters stated that the proposed 
rule does not reduce their administrative burden. Most commenters 
indicated that sampling reduces some of the burden on rural transit 
systems; however, a commenter noted that states are still required to 
collect subrecipient's data. Other commenters indicated that FTA should 
have one uniform period for record retention.
    FTA Response. FTA believes sampling will reduce the paperwork 
burden on a portion of the industry while still maintaining a high 
confidence level in the results. Transit employers are still required 
to prepare an MIS form annually; however, they will only be required to 
submit an MIS form when requested by FTA. However, FTA's record 
retention time periods reflect those of the other DOT modes for 
administrative uniformity. FTA will review the feasibility of web-based 
submission of data and will issue further guidance on this issue.
B. Access to Facilities and Records (Sec. 655.73)
    As previously discussed in section 655.4 of subpart A, FTA received 
a number of comments indicating that states should not be included 
under the definition of ``employer'' in order to gain access to 
records. Many commenters also objected to state regulatory agencies and 
law enforcement agencies having independent access to employee records. 
The majority of comments indicated that only those state agencies and 
grantees with oversight responsibilities and which are required to 
certify compliance should have access to the employee's drug and 
alcohol testing information.
    FTA Response. The final rule is amended by adding paragraph (i) to 
this section. An employer may release information to the state agency 
or grantee with oversight responsibility of FTA transit funds which is 
required to certify compliance under this part.

IV. 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, 7311-7314, February 15, 1994).

V. Regulatory Process Matters

A. Executive Order 12866

    FTA has evaluated the industry costs and benefits of this rule, 
which require 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

[[Page 42002]]

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 accommodations when possible. 
Experience with Parts 653 and 654 has shown that the rule has had 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 (PWRA) (44 U.S.C. 3501, et. seq.) 
The Office of Management and Budget has approved FTA's PWRA 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, 
FTA has limited discretion because this rulemaking is mandated by 
Congress in the Omnibus Transportation Employee Testing Act of 1991.
    The 1991 legislation mandated 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.

F. Other Executive Orders

    There are a number of other Executive Orders that can affect 
rulemakings. These include Executive Orders 13084 (Consultation and 
Coordination with Indian Tribal Governments), 12988 (Civil Justice 
Reform), 12875 (Enhancing the Intergovernmental Partnership), 12630 
(Governmental Actions and Interference with Constitutionally Protected 
Property Rights), 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations), 13045 
(Protection of Children from Environmental Health Risks and Safety 
Risks), and 12889 (Implementation of North American Free Trade 
Agreement). We have considered these Executive Orders in the content of 
this rule, and we believe that the rule does not directly affect the 
matters covered by the Executive Orders.

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 amends 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  [Reserved]
655.14  Education and training programs.
655.15  Policy statement contents.
655.16  Requirement to disseminate policy.
655.17  Notice requirement.
655.18-655.20  [Reserved]
Subpart C--Prohibited Drug Use
655.21  Drug testing.
655.22-655.30  [Reserved]
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.
655.36-655.40  [Reserved]
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 
of 0.04 or greater.
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 a drug or alcohol test.
655.50  [Reserved]
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.
655.54-655.60  [Reserved]
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.

[[Page 42003]]

655.62  Referral, evaluation, and treatment.
655.63-655.70  [Reserved]
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.
655.74-655.80  [Reserved]
Subpart I--Certifying Compliance
655.81  Grantee oversight responsibility.
655.82  Compliance as 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 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 or will perform 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 receives remuneration in excess of his 
or her actual expenses incurred while engaged in the volunteer 
activity.
    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 tail light 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.
    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

[[Page 42004]]

performing, ready to perform, or immediately available to perform such 
functions.
    Positive rate means the sum of the annual number of positive 
results for random drug tests conducted under this part plus the annual 
number of refusals to submit to a random drug test authorized under 
this part divided by the sum of the annual number of random drug tests 
conducted under this part plus the annual number of refusals to submit 
to a random drug test authorized 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 service vehicle or equipment used in revenue service. This 
section does not apply to the following: an employer who receives 
funding under 49 U.S.C. 5307 or 5309, is in an area less than 200,000 
in population, and contracts out such services; or an employer who 
receives funding under 49 U.S.C. 5311 and contracts out such services;
    (5) Carrying a firearm for security purposes.
    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 sum of the annual number of results from 
random alcohol tests conducted under this part that have alcohol 
concentrations of .04 or greater plus the annual number of refusals to 
submit to alcohol tests authorized under this part, divided by the sum 
of the annual number of random alcohol tests conducted under this part 
plus the annual number of refusals to submit to a drug test authorized 
under this part.


Sec. 655.5  Stand-down waivers for drug testing.

    (a) An employer subject to this part may petition the FTA for a 
waiver allowing the employer to stand down, per 49 CFR Part 40, 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 
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, U.S. 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  [Reserved]


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 and/or other company officers 
authorized by the employer to 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.

[[Page 42005]]

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, office, branch and/or position 
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 
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.
    (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 of subpart D, for 
a covered employee who is found to have an alcohol concentration of 
0.02 or greater but less than 0.04.
    (j) The employer shall inform each covered employee if it 
implements elements of an anti-drug use or alcohol misuse program that 
are not required by this part. An employer may not impose requirements 
that are inconsistent with, contrary to, or frustrate the provisions of 
this part.


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.


Secs. 655.18-655.20  [Reserved]

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.


Secs. 655.22-655.30  [Reserved]

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 performing or 
continuing to perform 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

[[Page 42006]]

employee takes a drug test administered under this part with a verified 
negative result.
    (2) When a covered employee or applicant has previously failed or 
refused a pre-employment drug test administered under this part, the 
employee must provide the employer proof of having successfully 
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, 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.

    An employer may, but is not required to, conduct pre-employment 
alcohol testing under this part. If an employer chooses to conduct pre-
employment alcohol testing, the employer must comply with the following 
requirements:
    (a) The employer 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) The employer must treat all covered 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) The employer 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) The employer must conduct all pre-employment alcohol tests 
using the alcohol testing procedures set forth in 49 CFR Part 40.
    (e) The employer 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 0.02.


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(s), or other company official(s) who is 
trained in detecting the signs and symptoms of drug use and alcohol 
misuse must make the required observations.
    (c) Alcohol testing is authorized under this section only if the 
observations required by paragraph (b) of this section are made during, 
just preceding, or just after the period of the workday that the 
covered employee is required to be in compliance with this part. An 
employer may direct a covered employee to undergo reasonable suspicion 
testing for alcohol only 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.
    (d) If an alcohol test required by this section is not administered 
within two hours following the determination under paragraph (b) of 
this section, 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 section is not administered within 
eight hours following the determination under paragraph (b) of this 
section, the employer shall cease attempts to administer an alcohol 
test and shall state in the record the reasons for not administering 
the test.


Sec. 655.44  Post-accident testing.

    (a) Accidents. (1) Fatal accidents. (i) 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. Post-
accident drug and alcohol testing of the operator is not required under 
this section if the covered employee is tested under the fatal accident 
testing requirements of the Federal Motor Carrier Safety Administration 
rule 49 CFR 389.303(a)(1) or (b)(1).
    (ii) 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 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 section is not administered within eight hours following the 
accident, the employer shall cease attempts to administer an alcohol 
test and maintain the 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) The decision not to administer a drug and/or alcohol test under 
this section 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.
    (e) 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

[[Page 42007]]

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.
    (f) 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. 
Such test results may be used only when the employer is unable to 
perform a post-accident test within the required period noted in 
paragraphs (a) and (b) of this section.


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 10 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 
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 at all 
times of day 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 proceed 
to the test site immediately. 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 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. A covered 
employee may be randomly tested for prohibited drug use anytime while 
on duty.
    (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

[[Page 42008]]

    (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 following refusal to submit to a test, 
verified positive drug test result and/or breath alcohol test result of 
0.04 or greater.

    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 of 0.04 or greater, 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.


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

    If an employer chooses to permit a covered employee to perform a 
safety-sensitive function within 8 hours of an alcohol test indicating 
an alcohol concentration of 0.02 or greater but less than 0.04, the 
employer shall retest the covered employee to ensure compliance with 
the provisions of Sec. 655.35. The covered 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) When an employee refuses to submit to a drug or alcohol test, 
the employer shall follow the procedures outlined in 49 CFR Part 40.


Sec. 655.50  [Reserved]

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.


Sec. 655.52  Substance abuse professional (SAP).

    The SAP must perform the functions in 49 CFR Part 40.


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.


Secs. 655.54-655.60  [Reserved]

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 
required by this part, 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 the 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.

    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 required by this part, 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.


Secs. 655.63-655.70  [Reserved]

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 minimum period of time as measured from the date of the 
creation of the record. 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:

[[Page 42009]]

    (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 other DOT operating administrations subject to 
49 CFR Part 40.
    (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 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 an 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 other DOT operating administrations subject to 
49 CFR Part 40.
    (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

[[Page 42010]]

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 in determining 
the existence of reasonable suspicion of alcohol misuse during the 
reporting period.
    (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, 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.
    (i) An employer may disclose drug and alcohol testing information 
required to be maintained under this part, pertaining to a covered 
employee, to the State oversight agency or grantee required to certify 
to FTA compliance with the drug and alcohol testing procedures of 49 
CFR parts 40 and 655.


Secs. 655.74-655.80  [Reserved]

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, 5311 or 23 U.S.C. 103(e)(4) 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 49 U.S.C. 5307, 5309, 5311 or 23 U.S.C. 103(e)(4) subrecipients, as 
applicable. In so certifying, the State shall ensure that each 
subrecipient is complying with the requirements of this part. A section 
5307, 5309, 5311 or 103(e)(4) 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.

Appendixes to Part 655

BILLING CODE 4910-57-P

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[GRAPHIC] [TIFF OMITTED] TR09AU01.000


[[Page 42012]]


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    Issued on: July 27, 2001.
Jennifer L. Dorn,
Administrator, Federal Transit Administration.

[FR Doc. 01-19234 Filed 8-2-01; 4:41 pm]
BILLING CODE 4910-57-C