Controlled Substances and Alcohol Misuse Testing, 32298-32300 [06-5073]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 107 (Monday, June 5, 2006)]
[Proposed Rules]
[Pages 32298-32300]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5073]


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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), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Transit Administration (FTA) proposes to eliminate 
duplicative requirements for safety-sensitive employees of some public 
(mass) transportation systems, who are subject to the alcohol and 
controlled substances (D&A) testing requirements of both FTA and the 
United States Coast Guard (USCG), or FTA and the Federal Motor Carriers 
Safety Administration (FMCSA). Recipients could concurrently comply 
with FTA's D&A testing program as they comply with the testing 
requirements of the USCG or FMCSA. However, FTA's post-accident and 
reasonable suspicion testing requirements would continue to apply when 
accidents occur while performing public (mass) transportation 
activities.

DATES: Comments must be received on or before August 4, 2006. Late 
filed comments will be considered to the extent practicable.

ADDRESSES: Written Comments: Submit written comments to the Docket 
Management System, U.S. Department of Transportation, Room PL-401, 400 
Seventh Street, SW., Washington, DC 20590-0001. You may submit comments 
identified by the docket number (FTA-2006-24592) by any of the 
following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Web Site: https://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2478.
     Hand Delivery: To the Docket Management System, 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.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
notice. Note that all comments received will be posted without change 
to https://dms.dot.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: For program issues, Gerald Powers, 
Office of Safety and Security, (202) 366-1080 (telephone); (202) 366-
7951 (fax); or Gerald.Powers@dot.gov (e-mail). For legal issues, Bruce 
Walker, Office of the Chief Counsel, (202) 366-4011 (telephone); (202) 
366-3809 (fax); or Bruce.Walker@dot.gov (e-mail).

SUPPLEMENTARY INFORMATION:

I. Background

Authority for This Proposal

    Section 3030 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: a Legacy for Users (SAFETEA-LU) (Pub. L. 
109-59, August 10, 2005), provides the Secretary of the Department of 
Transportation (DOT) discretion to determine whether a public 
transportation provider is adequately covered for drug and alcohol 
(D&A) testing purposes, by the D&A alcohol testing requirements of the 
USCG or another DOT agency.

Previous Action by FMSCA and FTA

    FMCSA published a Federal Register notice on August 17, 2001 which 
eliminated duplicative D&A testing requirements for holders of 
Commercial Drivers Licenses (CDLs) who provide public transportation 
services. These motor carrier operators are subject to FMCSA 
regulations; however, because they receive Federal funding for public 
transportation activities, they are also subject to FTA's D&A 
regulation. FMSCA stated that its testing requirements do not apply to 
transit employers who are required to comply with FTA testing 
requirements (see 49 CFR 382.103(d)). However, FMCSA made a policy 
determination that CDL holders would remain subject to its rule for 
specific violations; hence, the potential for duplicative oversight may 
continue to exist.
    Subsequently, FTA undertook administrative steps to eliminate 
duplicative testing requirements for ferry operators by revising its 
policy for these operators with its Federal Register notice dated April 
22, 2002. Before the notice, ferry operators receiving Federal transit 
funds were required to comply with the testing requirements of both FTA 
and USCG.
    FTA consulted with the USCG and both agencies agreed that ferries 
were primarily regulated by the USCG. FTA determined that for safety 
purposes, it was sufficient for these operators to comply with USCG's 
D&A testing requirements. However, because the USCG does not require 
random alcohol testing, it was determined the operators would remain 
subject to FTA's random alcohol testing requirements.
    FTA now proposes to adopt a regulatory provision that parallels 
FMCSA's rule for motor carrier operators who receive Federal transmit 
funding and to codify its previously published policy guidance for 
ferry operators. FTA seeks comments on this proposed rule which would 
allow safety-sensitive employers to concurrently comply with FTA 
testing requirements when they comply with FMCSA or USCG D&A 
requirements.

II. Overview and General Discussion of the Proposed Rule

    A. This notice of proposed rulemaking (NPRM) would provide 
regulatory relief to public transportation providers by eliminating 
duplicative testing requirements. The NPRM proposes to amend the 
applicability section of the FTA's D&A regulation at 49 CFR 655.3 by 
revising the introductory text of paragraph (a) and adding new 
paragraphs (c), (d), and (e).
    Specifically, FTA proposes that a private or nonprofit motor-
carrier employer, with employees who perform safety-sensitive functions 
regulated by both FTA and FMCSA, may determine

[[Page 32299]]

whether or not a majority (more than 50 percent) of these employees are 
regulated by FMSCA. If so, the employer may opt to comply with the 
FMSCA testing requirements only for that class of employees. However, 
for safety purposes, FTA's post-accident requirements, section 655.44, 
would apply when an accident, as defined in section 655.4 occurs in the 
performance of public (mass) transportation activities.
    In exercising this option, an employer would also have discretion 
in determining the timeframe and the manner in which the employees' 
safety-sensitive functions are apportioned (i.e., daily, monthly, or 
annually). For audit purposes this determination would be made 
annually, at the beginning of the calendar year, and remain applicable 
throughout that calendar year.
    We note that FMSCA testing regulations do not apply to transit 
maintenance employees. Therefore, maintenance workers servicing transit 
vehicles would remain subject to 49 CFR part 655.
    B. The USCG has primary oversight over maritime operations, 
including ferryboats, whereas FTA's regulatory oversight stems from the 
fact that it provides Federal transit funding to a limited number of 
ferry operations. Therefore, FTA proposes as ferry operators comply 
with the D&A testing requirements of the USCG, they be deemed in 
concurrent compliance with FTA's D&A regulation.
    USCG and FTA testing requirements are substantially similar. FTA 
believes that the USCG regulatory scheme sufficiently addresses transit 
safety concerns; therefore, it would be prudent for ferry operators to 
comply with only one set of Federal testing requirements. However, 
since USCG regulations do not require random alcohol testing, for 
safety purposes, ferry operators would remain subject to FTA's random 
alcohol testing requirements at 49 CFR 655.45.
    FTA remains responsible for ensuring compliance for recipients of 
public (mass) transportation. Therefore, to facilitate oversight, the 
administrative requirements of subpart G, H, and I of 49 CFR part 655 
would continue to apply to ferry operators and motor carrier operators 
receiving Federal public (mass) transportation funds.

E.O. 12866, Regulatory Planning and Review

    Under Executive Order 12866, 58 FR 51735, October 4, 1993, the 
Department of Transportation (DOT) must examine whether this proposed 
rule is a ``significant regulatory action.'' A significant regulatory 
action is subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Executive Order defines 
``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) creates 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 proposed rule provides administrative relief from current 
regulatory alcohol misuse and controlled substance testing requirements 
for public transportation providers; therefore, FTA believes this 
proposed rule is a nonsignificant regulatory action under section 3(f) 
of Executive Order 12866. Accordingly, it has not been reviewed by the 
Office of Management and Budget.
    This proposed rule is not expected to impose any new compliance 
costs. The only entities affected by this proposed rule are those 
public transportation providers that are currently subject to the 
alcohol misuse and controlled substance testing regimen. These 
requirements, if adopted will relieve these entities of duplicative 
Federal testing requirements. There would be no significant changes to 
the existing program with the publication of this rulemaking. Further, 
this discretionary rulemaking is provided for under the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: a Legacy 
for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005).

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 requirements. Of this 
number, a small percentage is also subject to the D&A testing 
requirements of FMSCA or the USCG. This proposed 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. The 
lessening of this administrative burden on these affected entities will 
result in no significant economic impact to these employers.
    This proposed rule will not impose any additional costs on small 
entities that are subject to alcohol misuse and controlled substance 
testing requirements. As noted above, certain public transportation 
providers who may be subject to the testing requirements of more than 
one DOT agency or the USCG will be provided statutory relief by 
complying with the testing requirements of only one Federal agency. FTA 
certifies that no further analysis is necessary because the proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. FTA invites public comment on this analysis.

Paperwork Reduction Act

    This proposed 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 proposed 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 provides for relief from duplicative Federal alcohol misuse and 
controlled substance testing requirements for certain public 
transportation providers. The rule would not significantly affect the 
rights,

[[Page 32300]]

roles, and responsibilities of States, and would involve no preemption 
of State law, nor would it limit State policymaking discretion.

Unfunded Mandates Reform Act

    The proposed rule would not be an unfunded Federal mandate within 
the meaning of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 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.

List of Subjects in 49 CFR Part 655

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

    For the reasons set forth in the preamble, the Federal Transit 
Administration proposes to amend part 655 of title 49 of the Code of 
Federal Regulations as follows:

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

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

    Authority: 49 U.S.C. 5331 (as amended); 49 CFR 1.51.

    2. Amend Sec.  655.3 to revise the introductory text of paragraph 
(a) and to add paragraphs (c), (d) and (e) to read as follows:


Sec.  655.3  Applicability.

    (a) Except as specifically excluded in paragraphs (b), (c), and (d) 
of this section, this part applies to:
* * * * *
    (b) * * *
    (c) A recipient operating a ferry regulated by the United States 
Coast Guard (USCG) and receiving Federal funding for public (mass) 
transportation activities shall follow 46 CFR parts 4 and 16, 33 CFR 
part 95. However, section 655.45 of this part is applicable for random 
alcohol testing.
    (d) A private or nonprofit employer with safety-sensitive 
employees, per both this part and 49 CFR part 382, may annually 
determine whether or not a majority (more than 50 percent) of these 
employees are regulated by part 382. If so, the employer may comply 
with the drug and alcohol testing requirements of part 382 for that 
calendar year. However, reasonable suspicion and post-accident testing 
per this part (Sec. Sec.  655.43 and 655.44) remain applicable for 
operators when performing public (mass) transportation activities. In 
addition, the provisions of this part remain applicable for those 
safety-sensitive employees who perform maintenance on vehicles or 
equipment used for public (mass) transportation service.
    (e) A recipient's failure to comply with the alcohol misuse and 
controlled substances testing requirements of the USCG or the Federal 
Motor Carrier Safety Administration, as described in paragraphs (c) and 
(d) above, may result in a finding of noncompliance by FTA.
    (1) A finding of noncompliance may cause a recipient to become 
ineligible for Federal public transportation funding.
    (2) Subpart G of this part is applicable to a covered employee: (i) 
With a verified positive drug test result, (ii) who has a confirmed 
alcohol test result of 0.04 or greater, or (iii) who refuses to submit 
to a test.
    (3) Recipients remain subject to subparts H and I of this part.

    Issued on: May 30, 2006.
Sandra K. Bushue,
Deputy Administrator.
[FR Doc. 06-5073 Filed 6-2-06; 8:45 am]
BILLING CODE 4910-57-M