[Federal Register Volume 71, Number 230 (Thursday, November 30, 2006)]
[Rules and Regulations]
[Pages 69195-69198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20278]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 655

[Docket No. FTA-2006-24592]
RIN 2132-AA86


Controlled Substances and Alcohol Misuse Testing

AGENCY: Federal Transit Administration (FTA), United States Department 
of Transportation.

ACTION: Final rule.

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SUMMARY: This rule codifies existing FTA administrative guidance for 
safety-sensitive employees of ferryboat operations that are subject to 
the drug and alcohol (D&A) testing regulations of both FTA and the 
United States Coast Guard (USCG). This rule will provide regulatory 
relief to ferryboat operators who were previously subject to 
duplicative D&A testing regulations, and improve ferryboat operator 
compliance with FTA D&A testing regulations.
    This rule does not adopt the proposed rule with respect to certain 
motor carrier operators who are subject to the D&A testing regulations 
of both FTA and the Federal Motor Carrier Safety Administration 
(FMCSA). FTA will retain its current guidance and interpretation with 
respect to these motor carrier operators.

EFFECTIVE DATE: This rule is effective January 2, 2007.

FOR FURTHER INFORMATION CONTACT: For program issues, Gerald Powers, 
Office of Safety and Security, (617) 494-2395 (telephone); (202) 366-
7951 (fax); or [email protected] (e-mail). For legal issues, Shauna 
Coleman, Office of the Chief Counsel, (202) 366-4011 (telephone); (202) 
366-3809 (fax); or [email protected] (e-mail).

SUPPLEMENTARY INFORMATION: 

Availability of the Final Rule

    A copy of this rule and comments and material received from the 
public, as well as any documents indicated in the preamble as being 
available in the docket, are part of docket FTA-2006-24592, and are 
available for inspection or copying at the Docket Management Facility, 
U.S. Department of Transportation, Room PL-401 on the plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    An electronic copy of this rule and comments are available online 
through the Document Management System (DMS) at: http://dms.dot.gov. 
Enter docket number 24592 in the search field. The DMS is available 24 
hours each day, 365 days each year. Electronic submission and retrieval 
help and guidelines are available under the help section of the Web 
site.
    Internet users may also download an electronic copy of this 
document by using a computer, modem and suitable communications 
software from the Government Printing Office's Electronic Bulletin 
Board Service at (202) 512-1661. Additionally, internet users may reach 
the Office of the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's Web page at: http://www.gpoaccess.gov/fr/index.html.

I. Background

    In 2001, FMCSA issued a rule that eliminated duplicative D&A 
testing regulations for holders of Commercial Drivers Licenses (CDLs) 
who provide public transportation services. This rule

[[Page 69196]]

provided that transit agencies with safety-sensitive employees holding 
CDLs are covered by FTA D&A testing regulations, and FMCSA testing 
requirements would not apply. (See 49 CFR 382.103(d)). However, FMCSA 
determined individual CDL holders would remain subject to FMCSA 
sanctions and other ramifications for FMCSA rule violations that were 
not included in the FTA D&A testing regulations.
    Subsequently, FTA agreed with FMCSA's position with regard to 
holders of CDLs who provide public transportation services in its 
``Implementation Guidelines for Drug and Alcohol Regulations in Mass 
Transit'' (Revised November, 2003) (Implementation Guidelines). The 
Implementation Guidelines provided that the FTA D&A testing regulations 
would cover transit agencies with safety-sensitive employees holding 
CDLs. In line with 49 CFR 382.103(d), FTA's Implementation Guidelines 
maintained FMCSA's determination that that these individual CDL holders 
be subject to FMCSA sanctions and other ramifications for FMCSA D&A 
testing regulation violations that were not included in FTA D&A testing 
regulations.
    FTA undertook similar administrative steps to eliminate duplicative 
testing requirements for ferryboat operators by revising our policy for 
these operators in a Notice of Interpretation published in the Federal 
Register on April 22, 2002 (67 FR 19615). Specifically, FTA determined 
that it would deem ferryboat operators that are subject to both FTA D&A 
testing regulations and USCG chemical and alcohol testing regulations, 
as in concurrent compliance with the testing requirements of FTA D&A 
regulations when they comply with the USCG chemical and alcohol testing 
requirements. FTA determined, however, that those ferryboat operators 
would remain subject to FTA's random alcohol testing requirement 
because USCG does not have a similar requirement.
    In response to Section 3030 of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: a Legacy for Users (SAFETEA-LU, 
Pub. L. 109-59, August 10, 2005), FTA published a Federal Register 
notice seeking comments on a proposal to exclude certain motor carrier 
operators who provide public transportation services from FTA testing 
requirements, and to codify the above notice of interpretation for 
ferryboat operators. (71 FR 32298, June 5, 2006.)
    Based on comments received and the safety requirements of FTA D&A 
testing regulations, we are partially adopting our proposal to amend 
the applicability section of 49 CFR 655.3 in this final rule.

II. Response to comments received

    FTA received five comments in response to the NPRM. FTA reviewed 
and considered all comments submitted. The following discussion 
summarizes our responses.

A. Overview of the Proposed Rule

    FTA proposed to eliminate duplicative testing requirements for 
ferryboat operators, and certain classes of motor carrier operators by 
amending the applicability section of FTA's D&A regulation at 49 CFR 
part 655.
    One commenter supported FTA's efforts to eliminate duplicative 
requirements, and suggested that FTA also provide a graph or chart to 
guide the reader through the various D&A regulations for FTA, USCG, and 
FMCSA.
    FTA response: Because the final rule is limited to codifying 
existing FTA interpretation, we conclude that a graph or chart is 
unnecessary to implement this final rule. As resources allow, however, 
we will work with USCG and the Office of the Secretary of 
Transportation (OST) to develop a chart or table to assist the 
regulated community with determining which regulations apply.

B. Motor carrier operators

    FTA proposed that private or nonprofit motor carrier operators 
regulated by both the FTA and FMCSA, who determines that a majority 
(more than 50 percent) its employees are regulated by FMCSA, may opt to 
only comply with FMCSA D&A testing regulations for that class of 
employees.
    However, FTA proposed that its post-accident requirements in 49 CFR 
Sec.  655.44 would continue to apply when an accident, as defined in 49 
CFR Sec.  655.4, occurred in the performance of public transportation 
activities. Further, the administrative requirements of subpart G, H, 
and I of 49 CFR part 655 would continue to apply to motor carrier 
operators receiving Federal transit funds.
    FTA proposed that an employer exercising this option would have 
discretion to determine the timeframe and the manner in which it 
apportions the employees' safety-sensitive functions (i.e., daily, 
monthly, or annually). FTA proposed that the employer would make this 
determination annually, at the beginning of the calendar year, and that 
this determination would remain applicable throughout that calendar 
year.
    One commenter, a State recipient responsible for administering the 
program for subrecipients, suggested that FTA provide further 
clarification regarding the applicability of FTA's proposed motor 
carrier exemption to contractor providers or recipients that receive 
Federal transit funds directly from the State.
    This commenter also expressed concern as to how national 
contractors that provide local public transportation services would 
determine whether FMCSA regulated a majority of these employees. The 
commenter suggested that the employer make this determination on a 
location-by-location basis as opposed to on a national basis. This 
commenter further suggested that the employer determine which D&A 
regulations to follow based on the full-time equivalent number of 
employees as opposed to the total number of employees either at the 
national level or in the specific location.
    Another commenter, representing an association, suggested that our 
proposal to retain oversight of ``post-accident'' testing would cause 
industry confusion and administrative errors. This commenter suggested 
that post accident testing under the same mode would eliminate 
potential risks of confusion and administrative error.
    FTA Response: We agree with the commenter who indicated that the 
proposed regulatory construction had the potential to cause more 
confusion for those responsible for administering the program rather 
than achieving the intended goal of reducing the administrative burden. 
We also note that the implementation issues presented when the State is 
the pass-through recipient has the potential of adding complexity 
rather than providing administrative relief.
    In addition to determining that codifying a similar exception in 
our regulation would cause confusion as to which testing scheme to 
apply, FTA has further determined, after further review of 49 CFR part 
382 and consultation with FMCSA and the Office of Drug and Alcohol 
Control Compliance and Policy, that the existing regulatory framework 
of 49 CFR part 382 provides sufficient administrative relief by 
eliminating duplicative testing requirements for motor carrier 
operators. Specifically, 49 CFR 382.103(d) exempts from FMCSA testing 
those motor carrier operators who are also subject to the FTA D&A 
testing regulations. Therefore, we withdraw the proposals set out in 
the

[[Page 69197]]

Federal Register notice with regard to motor carrier operators, and we 
will not amend the regulation to exclude private or nonprofit motor 
carrier operators from FTA D&A regulations.

C. Ferryboat Operators

    FTA proposed to deem ferryboat operators who are subject to both 
FTA D&A regulations and USCG chemical and alcohol testing requirements, 
as in concurrent compliance with the testing requirements of FTA D&A 
regulations when they comply with the USCG chemical and alcohol testing 
requirements. FTA proposed, however, that those ferryboat operators 
would remain subject to FTA's random alcohol testing requirement 
because USCG does not have a similar requirement. Further, because FTA 
remains statutorily responsible for ensuring that recipients of public 
transportation funds comply with Federal regulations, it proposed that 
ferryboat operators remain subject to the administrative and oversight 
requirements of 49 CFR part 655.
    FTA received four comments from representatives of associations on 
this issue.
    One commenter indicated that there are differences between FTA and 
USCG testing requirements. It recommended that FTA identify and address 
each of the differences between FTA and USCG testing requirements. For 
instance, this commenter indicated that there are differences in the 
Medical Review Officer (MRO) reporting requirements under 49 CFR Part 
40 and USCG guidance documents. This commenter also indicated that 
another difference exists between the USCG guidance and Substance Abuse 
Professional's duties prescribed in 46 CFR part 16, Subpart B.
    Specifically, this commenter suggested that FTA inform all MROs 
currently processing test results for FTA that the MRO procedures for 
USCG do not follow 49 CFR part 40, Subpart G for reporting test 
results. It further suggested that USCG and FTA follow Part 40 
reporting requirements ``to the letter.''
    Another commenter indicated that the proposed rule does not 
sufficiently address how it affects Management Information System (MIS) 
reports for each mode. It recommended that FTA provide clarification 
regarding MIS reports required by each mode.
    The third commenter applauded FTA's efforts to codify the existing 
interpretation regarding ferryboat operators, and felt that this 
codification would streamline the D&A testing regulations. This 
commenter also indicated that this change would provide the same level 
of safety and oversight as the existing regime while saving time and 
money at the operational level.
    The fourth commenter further welcomed FTA's decision to continue 
the administrative oversight of ferryboat operators. This commenter 
indicated that the continuation of administrative oversight of such 
operators standardizes and creates a stronger D&A program.
    FTA Response: We consulted with administrators of the USCG chemical 
and alcohol program, and they verified that USCG continues to follow 49 
CFR Part 40. Furthermore, MROs are already required to be familiar with 
USCG testing and reporting procedures, including Part 40 and Part 16 
irrespective of FTA D&A testing regulations.
    USCG did note that mariners are subject to additional testing 
requirements, such as the requirements for obtaining mariner 
credentials. As mariners, therefore, ferryboat operators are already 
subject to these additional requirements irrespective of FTA D&A 
testing regulations.
    Moreover, we emphasize that this rule permits ferryboat operators 
to primarily follow the testing requirements of USCG, and thereby 
concurrently comply with FTA testing requirements. It does not impose 
additional requirements on MROs. The only testing exception this rule 
imposes is that ferryboat operators will remain subject to FTA random 
alcohol testing because USCG does not have a similar requirement. Since 
USCG follows Part 40 for D&A testing purposes, we have not amended the 
proposed rule language to address this comment.
    With regard to the MIS report, the Department is working with USCG 
to mitigate potential confusion with MIS reporting for ferryboat 
operators. The Department has reconfigured its web-based reporting 
format. Specifically, FTA will identify FTA funded ferryboat employers, 
and provide a separate method for the rest of the transit systems that 
have no ferryboat operators, within the Drug & Alcohol Management 
Information System (DAMIS), the Department's internet-based reporting 
system. The industry already utilizes this system.
    In DAMIS, these identified employers will receive a message upon 
clicking on the ``Covered Employees'' tab. This message will instruct 
them to separate the testing results of USCG/FTA covered employees from 
FTA-only covered employees. To separate the results, an additional 
employee category (Crewmembers) will appear on the screen. The message 
will instruct the employer to report the drug and alcohol testing 
results for USCG/FTA employees only within the Crewmember employee 
category, and not to duplicate the data within FTA defined employee 
categories.
    Once the reporting process is complete and approved, USCG covered 
tests (all but random alcohol) will be provided electronically to the 
administrators of USCG testing program.

III. Regulatory Analyses and Notices

Statutory/Legal Authority for This Proposed Rulemaking

    This rule is authorized under Section 3030 of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: a Legacy 
for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005). This section 
amended Title 49 U.S.C. 5331(a)(3). This amendment provides for 
departmental discretion in determining whether public transportation 
safety-sensitive employees are adequately covered for drug and alcohol 
testing purposes by one agency, when those employees are subject to the 
drug and alcohol regulations of more than one agency within the 
Department of Transportation (DOT) or the Coast Guard.

Executive Order 12866

    Under Executive Order 12866, the Department must examine whether 
this rule is a ``significant regulatory action.'' A significant 
regulatory action is subject to OMB review and the requirements of the 
Executive Order. A ``significant regulatory action'' as one that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $120 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This final rule codifies an existing agency interpretation, and, 
therefore, will not impose costs to the industry of $120 million or 
more annually, will not create an inconsistency, will not materially 
alter the Federal financial assistance from FTA, and does not raise new 
or novel legal or policy issues.

[[Page 69198]]

Accordingly, this final rule is a nonsignificant regulatory action 
under section 3(f) of Executive Order 12866 and has not been reviewed 
by OMB.

Executive Order 13132

    FTA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132 (Federalism). This 
final rule does not include any provisions that have substantial direct 
effect on the States, the relationship between the national government 
and the States, or the distribution of power and responsibilities among 
the various levels of government. Therefore, the consultation and 
funding requirements of Executive Order 13132 do not apply.

Executive Order 13175

    FTA finalized this rule in accordance with the principles and 
criteria of Executive Order 13175 (Consultation and Coordination with 
Indian Tribal Governments). This rule does not have tribal 
implications, and does not impose direct compliance costs. Therefore, 
the funding and consultation requirements of Executive Order 13175 do 
not apply.

Executive Order 13272 and the Regulatory Flexibility Act

    Section 603 of the Regulatory Flexibility Act requires a Federal 
agency to conduct an initial regulatory flexibility analysis describing 
impacts to small entities when developing a Notice of Proposed 
Rulemaking in accordance with 5 U.S.C. 553. Currently, approximately 
3000 employers are subject to FTA D&A testing regulations. Of this 
number, a small percentage is also subject to the D&A testing 
regulations of FMSCA or the USCG. This final rule would have the effect 
of eliminating the administrative burden on those few employers who are 
subject to multiple testing requirements by permitting them to comply 
with the testing requirements of only one Federal agency.
    FTA analyzed this rule to assess its impact on small businesses and 
other small entities to determine whether this rule will have a 
significant economic impact on a substantial number of small entities. 
This rule imposes no new costs because it merely permits jointly 
regulated entities to comport with the drug and alcohol testing 
procedures of only one agency. FTA hereby certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities.

Paperwork Reduction Act

    Under the provisions of the Paperwork Reduction Act, FTA may not 
conduct or sponsor, and a person is not required to respond to or may 
not be penalized for failing to comply with, a collection of 
information unless it displays currently valid OMB control number.
    This rule has information collection requirements that are covered 
by the Office of the Secretary of Transportation (OST) paperwork 
collection number 2105-0529. OST applied to renew that collection 
number on August 4, 2006. (71 FR 44345, August 4, 2006).

Unfunded Mandates Reform Act of 1995

    This rule it will not result in costs of $100 million or more 
(adjusted annually for inflation), in the aggregate, to any of the 
following: State, local, or Native American tribal governments, or the 
private sector.

National Environmental Policy Act

    The National Environmental Policy Act of 1969, (42 U.S.C. 4321-
4347) as amended), requires Federal agencies to consider the 
consequences of major federal actions and prepare a detailed statement 
on actions significantly affecting the quality of the human 
environment. There are no significant environmental impacts associated 
with this rule.

List of Subjects in 49 CFR Part 655

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

0
For the reasons described in the preamble, FTA amends part 655 to read 
as follows:

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

0
1. The authority citation for part 655 continues to read as follows:

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


0
2. Amend Sec.  655.3 by revising the introductory text of paragraph (a) 
and adding new paragraph (c) to read as follows:


Sec.  655.3  Applicability.

    (a) Except as specifically excluded in paragraphs (b), and (c) of 
this section, this part applies to:
* * * * *
    (c) A recipient operating a ferryboat regulated by the United 
States Coast Guard (USCG) that satisfactorily complies with the testing 
requirements of 46 CFR Parts 4 and 16, and 33 CFR Part 95 shall be in 
concurrent compliance with the testing requirements of this part. This 
exception shall not apply to the provisions of section 655.45, or 
subparts G, or H of this part.


0
3. Amend Sec.  655.83 by adding new paragraph (d) to read as follows:


Sec.  655.83  Requirement to Certify Compliance.

* * * * *
    (d) FTA may determine that a recipient, who fails to comply with 
the USCG chemical and alcohol testing requirements, shall be in 
noncompliance with the alcohol misuse and controlled substances testing 
requirements of this part. A finding of noncompliance by FTA may lead 
to the suspension of eligibility for Federal public transportation 
funding.

    Issued in Washington, DC this 27th day of November 2006.
James S. Simpson,
Administrator, Federal Transit Administration.
 [FR Doc. E6-20278 Filed 11-29-06; 8:45 am]
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