[Federal Register Volume 78, Number 122 (Tuesday, June 25, 2013)]
[Rules and Regulations]
[Pages 37991-37994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15176]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 655

[Docket No. FTA-2013-0012]
RIN 2132-AB09


Alcohol and Controlled Substances Testing

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule is issued to revise sections of the Alcohol 
and Controlled Substances (D&A) Testing regulation to reflect recent 
amendments to the law. The final rule also includes technical 
corrections to the D&A testing regulation to more clearly explain 
existing compliance requirements, update regulatory terms, and remove 
repealed statutory provisions. Because this rule merely implements a 
statutory provision without agency interpretation FTA finds that public 
comment is unnecessary under the circumstances.

DATES: This final rule is effective on June 25, 2013.

FOR FURTHER INFORMATION CONTACT: For program issues, contact Vincent 
Valdes, Office of Transit Safety and Oversight (TSO), Federal Transit 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 
(telephone: 202-366-4052); or email: [email protected]). For legal 
issues, contact Bruce Walker, Office of Chief Counsel (TCC), FTA, 1200 
New Jersey Avenue SE., Washington, DC 20590-0001 (telephone: 202-366-
9109); (email: [email protected]). Office hours are from 8 a.m. to 6 
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

I. Background

    FTA is publishing this rule without a prior proposal because it 
merely incorporates recent statutory changes to FTA's drug and alcohol 
testing program and makes other minor technical amendments. 
Specifically, this rule amends 49 CFR part 655 to implement 49 U.S.C. 
5331(g)(2), as amended by Sec.  20022 of the Moving Ahead for Progress 
in the 21st Century Act, Public Law 112-141 (2012) (MAP-21). The new 
legislation provides the Secretary of the Department of Transportation 
(DOT) with the option of barring a recipient from receiving Federal 
public transportation funds, in an amount the Secretary considers 
appropriate, for non-compliance with FTA's D&A regulations which are 
codified at 49 CFR part 655. This authority is delegated to the FTA 
Administrator pursuant to 49 CFR 1.91.
    With this rule, FTA is amending part 655 to implement this 
discretionary statutory enforcement remedy available to the 
Administrator. Additionally, this rule makes several technical 
corrections to part 655 that include: (1) Removing reference to 23 
U.S.C. 103(e)(4) from 49 CFR part 655 as it relates to recipients of 
the Federal Highway Administration's Interstate Substitute Program 
which has been repealed; (2) replacing the terms ``mass 
transportation'' and ``mass transit'' with the term ``public 
transportation'' as defined in 49 U.S.C. 5331(a)(3); and (3) revising 
Subpart I to more clearly explain the statutory requirement to 
establish a compliant D&A testing program as a condition for receiving 
Federal transit funds and the associated compliance and certification 
requirements for recipients.
    This rule simply adopts the statute without agency interpretation 
and includes ministerial technical corrections; therefore, pursuant to 
5 U.S.C. 553(b)(3)(A), FTA finds good cause to publish this as a final 
rule without public comment because prior notice and comment would be 
unnecessary under the circumstances. Further, for these reasons, FTA 
also finds good cause pursuant to 5 U.S.C. 553(d)(2), to make the rule 
effective upon publication in the Federal Register.

II. Overview and General Discussion of the Rule

A. Purpose

    In order to implement 49 U.S.C. 5331(g)(2), as amended by section 
20222 of MAP-21, this rule amends 49 CFR part 655 to effect the FTA 
Administrator's discretionary authority

[[Page 37992]]

to bar a recipient from receiving Federal transit funds, in an amount 
deemed appropriate, should the recipient fail to comply with the 
requirements of 49 CFR part 655. FTA is also using this rule to make 
technical corrections to Part 655 to reflect updates that have occurred 
since its initial publication.

B. Section-by-Section Discussion

1. 23 U.S.C. 103(e)(4) Applicability
    The Federal Highway Administration's Interstate Substitute Program 
authorized the Secretary to incur obligations for public transit 
projects, in those instances when certain interstate route projects 
were procedurally withdrawn, and properly authorized to be substituted 
with a public transportation project. To ensure that recipients of 
these substituted funds were subject to FTA's D&A requirements, 
Congress enacted section 342 of the National Highway System Designation 
Act, Public Law 104-59 (1995). The legislation amended 49 U.S.C. 
5331(b) to specifically make recipients of 23 U.S.C. 103(e)(4) funding 
subject to FTA's D&A regulations.
    In 2001, FTA issued 49 CFR part 655 to implement the drug and 
alcohol testing requirements of 49 U.S.C. 5331(b). Although at the 
time, the Interstate Substitute Program had been repealed, 49 U.S.C. 
5331(b) continued to statutorily apply to recipients of 23 U.S.C. 
103(e)(4) funds. In 2005, enacted a technical correction with section 
3030(b) of SAFETEA-LU which amended 49 U.S.C. 5331(b) by removing its 
applicability to recipients of 23 U.S.C. 103(e)(4) program funds. FTA 
is now correcting Part 655 by removing reference to 23 U.S.C. 103(e)(4) 
recipients as follows: (1) Sec.  655.3(1)(ii) and Sec.  655.3(2)(ii); 
(2) the definition of recipient in Sec.  655.4, Sec.  655.81; and (3) 
Sec.  655.82 (a) and (c).
2. 49 U.S.C. 5331(a)(3) Definition of Public Transportation
    FTA is revising Sec. Sec.  655.4 and 655.44 by replacing the terms 
``mass transportation'' and ``mass transit.'' with the term ``public 
transportation.'' This technical correction is warranted because 
statutory references to modes of public conveyance have changed since 
the initial publication of FTA's D&A regulation. To that end, FTA is 
updating Part 655 to reflect the statutory meaning of public 
transportation as defined by 49 U.S.C. 5331(a)(3). Specifically, the 
terms will be replaced in the definitions of accident, employer, and 
vehicle in Sec.  655.4 and in the text of Sec.  655.44(a)(1) and (2).
3. Section 655.82 Compliance
    FTA is amending the text of Sec.  655.82 (a) to more accurately 
reflect as mandatory, the statutory requirement of 49 U.S.C. 
5331(g)(1). As with the current text of paragraph (a), the revised text 
explains that recipients receiving Federal funding under 49 U.S.C. 
5307, 5309, or 5311 are required to establish a D&A testing program, in 
accordance with 49 CFR part 655, as a condition for receiving Federal 
financial assistance. However, the revised text provides clarity by 
indicating that a recipient ``shall not'' instead of ``may not'' be 
eligible for Federal transit assistance for failing to establish and 
implement a compliant D&A program. This correction more clearly 
reflects the existing statutory requirement of establishing a compliant 
D&A program as a condition for receiving Federal financial assistance.
    FTA is revising paragraph (b) to implement the additional 
discretionary remedy authorized by 49 U.S.C. 5331(g)(2) as amended by 
MAP-21. The revised text indicates that the Administrator now has 
discretion to bar a recipient's current or future Federal transit 
financial assistance in appropriate amounts for failure to comply with 
the requirements of 49 CFR part 655. Paragraph (c) is also revised to 
reflect the requirements in the current Sec.  655.82(b) because the 
criminal fraud provision of 18 U.S.C. 1001 remains in effect.
    This rule also redesignates the current requirement of Sec.  
655.83(d) as a new Sec.  655.82(d) to better align with the compliance 
requirements of section Sec.  655.82. Specifically, the amended Sec.  
655.82(d) continues to indicate the consequences for non-compliance for 
recipients who are also subject to the U.S. Coast Guard drug and 
alcohol testing requirements. Pursuant to Sec.  655.3(c), ferryboat 
operators will continue to have administrative relief by only having to 
observe applicable Coast Guard D&A testing requirements. However, as 
recipients of Federal transit funds, they remain subject to FTA 
noncompliance remedies if they fail to comply with the Coast Guard's 
D&A regulations.
4. Section 655.83 Certification
    This rule revises paragraphs (a) and (c) of this section and 
redesignates Sec.  655.83(d) as a new Sec.  655.82(d) as noted above. 
The revised paragraph (a) more fully explains the consequence for 
failing to appropriately certify compliance. In addition, the revised 
paragraph (c) clarifies the certifying requirements for recipients that 
administer pass-through funding to subrecipients and contractors. 
Similar to the current Sec.  655.82(c), the revised paragraph (c) notes 
the certification requirements for States that administer pass-through 
Federal transit funding; however, the revision clarifies the existing 
certification requirements for other recipients who also administer 
pass-through Federal financial assistance under 49 U.S.C. 5307, 5309, 
or 5311. Specifically, any recipient who administers pass-through 
Federal funding is required to certify that its subrecipients and 
contractors are in compliance with the requirements of part 655. The 
revised Sec.  655.83(c) also continues to reflect the authority noted 
in the current Sec.  655.82(c), which permits a recipient who 
administers pass-through Federal funding to suspend the funding of a 
subrecipient or contractor for failure to comply with part 655.
Executive Order 12866 and 13563
    Executive Order 12866 and 13563 direct agencies to assess all costs 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule implement changes made by MAP-21 to FTA's D&A regulation and 
are administrative in nature. FTA has determined that this action is 
not a significant regulatory action under section 3(f) of Executive 
Order 12866, nor is it significant within the meaning of Department of 
Transportation regulatory policies and procedures.
    This rule provides technical corrections to FTA's alcohol misuse 
and controlled substance testing regulatory requirements and implements 
an additional administrative remedy for potential violations of those 
regulatory requirements. The only entities affected by this proposed 
rule are those public transportation providers currently subject to 
FTA's alcohol misuse and controlled substance testing regimen. This 
rule does not require any additional costs associated with compliance. 
It is anticipated that the economic impact of this rulemaking would be 
minimal. Accordingly, it has not been reviewed by the Office of 
Management and Budget.
    This rule is not expected to impose any new compliance costs, and 
would

[[Page 37993]]

not adversely affect, in any material way, any sector of the economy. 
There are no significant changes to the existing program with the 
publication of this rulemaking. Additionally, this rule does not 
interfere with any action planned by another agency and does not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs. Consequently, a full regulatory evaluation is 
not required.
Regulatory Flexibility Act
    The requirements of the Regulatory Flexibility Act (RFA) do not 
apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt 
a rule without prior notice and comment. Because this rule promulgates 
discretionary authority enacted by Congress under MAP-21, FTA has 
determined that it has good cause to adopt the rule without notice and 
comment; therefore, RFA analysis is not required. Additionally, this 
administrative action will result in no significant economic impact nor 
impose any additional cost to small entities that are subject to 
alcohol misuse and controlled substance testing requirements of 49 CFR 
part 655.
Paperwork Reduction Act
    This rule does not contain a collection of information that is 
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). 
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 a currently valid OMB control number.
Executive Order 13132, Federalism
    Executive Order 13132 sets forth principles and criteria that 
agencies must adhere to in formulating and implementing policies that 
have Federalism implications. That is, regulations that have 
substantial direct effects on the States, or on the distribution of 
power and responsibilities among the various levels of government. 
Federal agencies must closely examine the statutory authority 
supporting any action that would limit the policymaking discretion of 
the States, and to the extent practicable, must consult with State and 
local officials before implementing any such action.
    FTA has reviewed this rule under the threshold criteria of 
Executive Order 13132 on Federalism and certifies that the rule would 
not have Federalism implications as defined by the Executive Order. The 
rule would not significantly affect the rights, roles, and 
responsibilities of States, and would not involve preemption of State 
law, nor would it limit State policymaking discretion.
Unfunded Mandates Reform Act
    This rule is not an unfunded Federal mandate within the meaning of 
the Unfunded Mandates Reform Act of 1995, 2 USC 1501 et seq., and any 
enforceable duties that FTA would impose are a condition of Federal 
assistance or a duty arising from participation in a voluntary Federal 
program. This rule will not result in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$148.1 million or more in any one year (2 U.S.C. 1532).
Executive Order 13175 (Tribal Consultation)
    FTA has analyzed this action under Executive Order 13175, and 
believes that it would not have substantial direct effects on one or 
more Indian tribes; would not impose substantial direct compliance 
costs on Indian tribal governments; and would not preempt tribal law. 
Therefore, a tribal summary impact statement is not required.
Executive Order 12988 (Civil Justice Reform)
    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce regulatory burden.

    Accordingly, for reasons discussed in the preamble, FTA amends 49 
CFR part 655 as follows:

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

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

     Authority: 49 U.S.C. 5331 (as amended); 49 CFR 1.91


0
2. Amend Sec.  655.3 by revising paragraphs (a)(1) and (2) to read as 
follows:


Sec.  655.3  Applicability.

    (a) * * *
    (1) Each recipient and subrecipient receiving Federal assistance 
under 49 U.S.C. 5307, 5309, or 5311; and
    (2) Any contractor of a recipient or subrecipient of Federal 
assistance under 49 U.S.C. 5307, 5309, 5311.
* * * * *

0
3. In Sec.  655.4:
0
a. In paragraph (4) of the definition of ``accident,'' remove the words 
``mass transit'' and add in their place the words ``public 
transportation'';
0
b. In the definition of ``employer,'' remove the words ``mass 
transportation'' and add in their place the words ``public 
transportation'';
0
c. Revise the definition of ``recipient''; and
0
d. In the definition of ``vehicle,'' remove the words ``mass transit'' 
and ``mass transportation'' and add in their place the words ``public 
transportation''.
    The revision reads as follows:


Sec.  655.4  Definitions.

* * * * *
    Recipient means a person that receives Federal financial assistance 
under 49 U.S.C. 5307, 5309, or 5311 directly from the Federal 
Government.
* * * * *


Sec.  655.44  [Amended]

0
4. In Sec.  655.44, remove the words ``mass transit'' from paragraphs 
(a)(1)(i) and (a)(2)(i) and add the words ``public transportation'' in 
their place.

0
5. Revise Sec.  655.81 to read as follows:


Sec.  655.81  Grantee oversight responsibility.

    A recipient shall ensure that a subrecipient or contractor who 
receives 49 U.S.C. 5307, 5309, or 5311 funds directly from the 
recipient complies with this part.

0
6. Revise Sec.  655.82 to read as follows:


Sec.  655.82  Compliance as a condition of financial assistance.

    (a) A recipient shall not be eligible for Federal financial 
assistance under 49 U.S.C. 5307, 5309, or 5311, if a recipient fails to 
establish an anti-drug and alcohol misuse program in compliance with 
this part.
    (b) If the Administrator determines that a recipient that receives 
Federal financial assistance under 49 U.S.C. 5307, 5309, or 5311 is not 
in compliance with this part, the Administrator may bar the recipient 
from receiving Federal financial assistance in an amount the 
Administrator considers appropriate.
    (c) A recipient is subject to criminal sanctions and fines for 
false statements or misrepresentations under 18 U.S.C. 1001.
    (d) Notwithstanding Sec.  655.3, a recipient operating a ferryboat 
regulated by the USCG who fails to comply with the USCG chemical and 
alcohol testing requirements, shall be in noncompliance with this part 
and may be barred from receiving Federal financial assistance in an 
amount the Administrator considers appropriate.

0
7. Amend Sec.  655.83 by revising paragraphs (a) and (c) and removing 
paragraph (d).

[[Page 37994]]

    The revisions read as follows:


Sec.  655.83  Requirement to certify compliance.

    (a) A recipient of Federal financial assistance under section 5307, 
5309, or 5311 shall annually certify compliance with this part to the 
applicable FTA Regional Office.
* * * * *
    (c) Recipients, including a State, that administers 49 U.S.C. 5307, 
5309, or 5311 Federal financial assistance to subrecipients and 
contractors, shall annually certify compliance with the requirements of 
this part, on behalf of its applicable subrecipient or contractor to 
the applicable FTA Regional Office. A recipient administering section 
5307, 5309, or 5311 Federal funding may suspend a subrecipient or 
contractor from receiving Federal transit funds for noncompliance with 
this part.

    Issued on: June 20, 2013.
Peter Rogoff,
Administrator.
[FR Doc. 2013-15176 Filed 6-24-13; 8:45 am]
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