# Presentation: 496668

## Drug & Alcohol Program Interpretations & Regulatory Updates

**The Federal Transit Administration**

- FTA National Drug & Alcohol Program Conference10-12 April 2007Jerry Powers – FTA Office of Program Management - Safety and Security

## What’s New – D&A Regulations and Overall Program

- FTA Administrator had the option of dropping 2006 Minimum random drug testing to 25% of safety sensitive workforce annually – kept rate at 50% due to concerns that testing was affected by adulterants
- This year the rate was dropped to 25%
- GAO Report (5/17/05) on products to defraud drug tests
- OST and FTA concerned with the effect of these products on above positive testing rates

## What’s New – D&A Regulations and Overall Program (cont.)

- Drafting an NPRM to authorize release of violations to CDL licensing agencies if State requirement exists
- Currently, there are 5 states (i.e. CA, WA, OR, TX, NC) which require employers and service agents to report to their respective state CDL licensing authority certain DOT drug and/or alcohol violations.
- USDOT regulations view these requirement as a blanket release which our rules do not permit.
- FRA considering adding maintenance of way employees to their safety-sensitive categories
- No testing/deterrence has lead to fatal accidents

## Random Positive Rates and Annual Minimum

- 2005
- 0.79
- 0.11

**Random Drug Positive Rate**
**has been below 1%  for three **
**straight years**

- As a result of the rate being below 1% for three consecutive years, the Administrator opted to lower the annual testing minimum for 2007 to random tests equaling 25% of the safety-sensitive workforce

## Continued Technical Assistance

- FTA will perform policy reviews on new policies for agencies outside of audit process
- Pre-employment testing Exemption Requests - for reorganizations, buyouts, contractor consolidations, etc.
- D&A MIS one-DOT, one-page, web-based reporting has been successfully implemented
- FTA-direct one-day Seminars has been re-worked.  TSI 3-day course still available
- National Conference and targeted Seminars (3-4 annually)
- Implementation Guidelines, Newsletters, Rx/OTC Toolkit, Reasonable Suspicion Video, etc. available on website:
- http://www.transit-safety.volpe.dot.gov/Safety/DATesting.asp

## NTSB lauds FTAs efforts in the Prescription and Over-the-counter Drug area 

- Rx/OTC Toolkit document distributed to transit agencies
- Encouraged implementation at audits and added Rx/OTC to TSI and FTA D&A Seminars.
- The issue has not gone away
- FTA still encouraging notification and medical review of Rx/OTC use
- There will be no Rx/OTC regulation and/or testing program in the near-term
- Recent FMCSA crash causation study shows tremendous levels of overall usage amongst operators:
- 26.3% had Prescription use as a factor
- 17.3% had OTC use as a factor

## FTA/USCG/FMCSA Concurrent Compliance NPRM – SAFETEA-LU

- New Highway and Transit Appropriations bill
- Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
- NPRM comes out of language in SAFETEA-LU.  The language is as follows:
- ...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.

## FTA/USCG/FMCSA Concurrent Compliance NPRM - Goals

- NPRM sought to simply codify existing interpretations that had come from FTA regarding concurrent compliance with other USDOT modes.
- In regards to USCG it was Fed Register Notice (FR Doc. 02–9776) from April 22, 2002.
- In regards to FMCSA, interpretation comes from the Implementation Guidelines from 11/2003:
- _[http://transit-safety.volpe.dot.gov/Publications/substance/ImplementationGuidelines/ImplementationGuidelines_rev_11_2003.pdf](http://transit-safety.volpe.dot.gov/Publications/substance/ImplementationGuidelines/ImplementationGuidelines_rev_11_2003.pdf)__ _(page 2-4)

## FTA/USCG/FMCSA Concurrent Compliance Final Rule – Coast Guard

- FTA has codified the existing interpretation as stated in the NPRM as a rule.
- FTA grantee operating ferryboat with safety-sensitive employees (crew member) shall be regulated by USCG.  The exception is that random alcohol testing as per 49 CFR Part 655.45 will be regulated by FTA since USCG D&A rules lack this provision.
- FTA and USCG Testing Program managers with OST ODAPC have agreed on how transit agencies that operate ferryboat should report their annual results to the Drug & Alcohol Management Information System (DAMIS - damis.dot.gov)

## Current FTA/Motor Carrier Guidance

- Current 50% guidance from FTA D&A Implementation Guidelines
- Transit Contractors with Motor Carrier/non-transit CDL-holders can choose to split into separate random pools
- OR
- Comply with FTA or FMCSA based on the majority of total employee’s functions
- Post-accident and reasonable suspicion tests are to be regulated by the function that the employee was performing at the time

## FTA/Motor Carrier Concurrent Compliance Framework

- The overall concept of simplifying regulatory responsibility and eliminating cross-cutting rules for FTA/FMCSA is accepted by the industries involved.  Achieving that goal and satisfying modal oversight responsibility was a problem.
- Most responders brought up problems with the regulatory proposal related to the many types of split motor carrier/highway/transit contractors and State pass-throughs.
- Problematic is the complexity of post-accident thresholds designed for each industry.
- FTA agrees 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

## FTA/USCG/FMCSA Concurrent Compliance Final Rule – Motor Carrier

- Reviewed comments, FMCSA D&A Testing rule 49 CFR Part 382, and consulted with FMCSA and OST.  FTA has determined that the existing regulatory framework of 49 CFR Part 382 provides sufficient administrative relief by eliminating duplicative testing requirements for motor-carrier operators.
- Specifically, section 382.103(d) exempts from FMCSA testing, those motor-carrier operators who are also subject to the FTA D&A testing.
- FTA has determined that codifying a similar exception in Part 655 would cause confusion as to which testing scheme to apply.  Therefore, Part 655 was not amended to exclude private or nonprofit motor-carrier employers.

## What's coming and what's new in the D&A Audit Program 

- Variety of approaches - gone is the five day, 8-auditor approach
- Smaller and faster audit teams - more pre-audit analysis, one day on-site
- Focus will likely be greater than in the past on smaller 5307s and 5311 State Program sub-recipients
- Many 5311 transitioning to 5307 as result of 2000 Census
- FTA audits 5307s directly without State Program coordination
- Audit program has covered the top ~175 5307 agencies
- Screening audits - quick on-site screen to determine if full audit is warranted

## What's coming and what's new in the D&A Audit Program (continued)

- Focus on Service agents - collection sites, TPAs
- Partnering with other DOT agencies
- Smarter audit selection using mature D&A MIS data, NTD, etc. - Risk vs. return focus
- Working with State on selection of sub-recipients under State Program Audits
- Re-audits of Top-100 Urban grantees will continue to ensure compliance by agencies w/ previously identified serious deficiencies

## Audits - What are common deficiencies?

- Poor random spread
- Mobile Van comes once per quarter – do it smart
- Bad post-accident decisions and Testing
- Poor oversight by State Program staff of sub-recipients
- Application of State requirements over Federal
- States all seem to have gotten the idea that they to require information from all of their entities, and they have been requesting copies of testing dates, times, etc.
- States very often stop at the next step.  The states who did nothing are now requesting data, but are often doing nothing with it, beyond filing it causing the reporting to be just an added layer of bureaucracy for the local properties.
- The states who do something with the data (analyze it, etc.) are often not requiring any corrective action.

## Random Tests – Common Random Spread

- “Van comes on Tuesday at the beginning  of every quarter”
- Saves Money but...
- Doesn’t deter nor detect drug usage or alcohol misuse

## Random Tests – Optimal

- Costlier to have the Mobile Collector come out for each test
-  but effective to deter & detect drug usage or alcohol misuse

## Random Tests – Acceptable

- Establishes pattern (for user) then springs the trap
- Saves some on travel and is effective in detection and deterrence

## Some Examples of Varying Compliance

- State Programs seem to be taking that last step of analyzing their 5311 D&A MIS reports, etc. and requiring corrective actions  or independently auditing
- Some states have various levels of requirements that are pretty confusing: FTA, State, and local D&A requirements in the same policy.  Federal and state requirements (that conflict) for Drug Free workplace.
- A new problem is that there are so many entities who are auditing, that the transit systems are now being crippled by response requirements from FTA (D&A Audits, Triennial) and state entities and their private contractor to a degree that is counter productive.

## Program is Effective in Detecting and Deterring Drug Use and Alcohol Misuse!