51076 Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Proposed Rules

restrictions that are included in other

grant agreements.

Section 1643.5 Recipient Policies,

Procedures and Recordkeeping

This section requires the recipient to

establish written policies and

procedures to guide the recipient’s staff

to ensure compliance with this rule.

Recipients are also required to maintain

sufficient documentation to demonstrate

compliance with this part. The type of

recordkeeping necessary to demonstrate

compliance with this rule would be

documentation that only non-LSC funds

were used for any activities prohibited

by this rule.

List of Subjects in 45 CFR Part 1643

Grants, Health Care, Legal Services,

Lobbying.

For reasons set forth in the preamble,

LSC proposes to amend Chapter XVI of

Title 45 by adding part 1643 as follows:

PART 1643—RESTRICTION ON

ASSISTED SUICIDE, EUTHANASIA,

AND MERCY KILLING

Sec.

1643.1 Purpose.

1643.2 Definitions.

1643.3 Prohibition.

1643.4 Applicability.

1643.5 Recipient policies, procedures and

recordkeeping.

Authority: Pub. L. 105–12; 42 U.S.C. 2996f

(b)(11).

§ 1643.1 Purpose.

This part is intended to ensure that

recipients do not use any LSC funds for

any assisted suicide, euthanasia or

mercy killing activities prohibited by

this part.

§ 1643.2 Definitions.

(a) Assisted suicide means the

provision of any means to another

person with the intent of enabling or

assisting that person to commit suicide. (b) Euthanasia (or mercy killing) is the

active means by one person to cause the

death of another person for reasons

assumed to be merciful, regardless of

whether the person killed consents to be

killed.

(c) Suicide means the act or instance

of taking one’s own life voluntarily and

intentionally.

§ 1643.3 Prohibition.

No recipient may use LSC funds to

assist in, support, or fund any activity

or service which has a purpose of

assisting in, or to bring suit or provide

any other form of legal assistance for the

purpose of: (a) Securing or funding any item,

benefit, program, or service furnished

for the purpose of causing, or the

purpose of assisting in causing, the

suicide, euthanasia, or mercy killing of

any individual;

(b) Compelling any person,

institution, or governmental entity to

provide or fund any item, benefit,

program, or service for such purpose; or

(c) Asserting or advocating a legal

right to cause, or to assist in causing, the

suicide, euthanasia, or mercy killing of

any individual.

§ 1643.4 Applicability.

(a) The restriction in § 1643.3 shall

not apply to or affect any limitation

relating to:

(1) The withholding or withdrawing

of medical treatment or medical care;

(2) The withholding or withdrawing

of nutrition or hydration;

(3) Abortion; or

(4) The use of items, goods, benefits,

or services furnished for purposes

relating to the alleviation of pain or

discomfort even if they may increase the

risk of death, unless they are furnished

for the purpose of causing or assisting

in causing death.

(b) This part does not apply to

activities funded with a recipient’s nonLSC funds.

§ 1643.5 Recipient policies, procedures

and recordkeeping.

The recipient shall adopt written

policies and procedures to guide its staff

in complying with this part and shall

maintain records sufficient to document

the recipient’s compliance with this

part.

Dated: September 25, 1997.

Suzanne B. Glasow,

Senior Assistant General Counsel.

[FR Doc. 97–25913 Filed 9–29–97; 8:45 am]

BILLING CODE 7050–01–P

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Parts 653 and 654

[Docket No. FTA–97–2925]

RIN 2132–AA56

Prevention of Prohibited Drug Use in

Transit Operations; Prevention of

Alcohol Misuse in Transit Operations

AGENCY: Federal Transit Administration,

DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: In response to a request from

a transit agency, the Federal Transit

Administration (FTA) proposes to allow

employers to use the results of postaccident drug and alcohol tests

administered by State or local law

enforcement personnel when the State

and local law enforcement officials have

independent authority for the tests and

the employer obtains the results in

conformance with State and local law.

In short, in a very limited number of

cases, the employer would be relieved

of administering post-accident drug and

alcohol tests. If this amendment is

adopted, it could ease the burden of

employers in testing ‘‘safety-sensitive’’

employees after an accident has

occurred; it may also relieve some

‘‘safety-sensitive’’ employees from

taking duplicative post-accident drug

and alcohol tests.

DATES: Comments on this proposed rule

must be submitted by December 1, 1997.

ADDRESSES: Written comments must

refer to the docket number that appears

above and be submitted to the United

States Department of Transportation,

Central Dockets Office, PL–401, 400

Seventh Street, S.W. Washington, D.C.

20590. All comments received will be

available for inspection at the above

address from 10 a.m. to 5 p.m., e.t.

Monday through Friday, except Federal

holidays. Those desiring the agency to

acknowledge receipt of their comments

should include a self-addressed

stamped postcard with their comments.

FOR FURTHER INFORMATION CONTACT: For

program issues: Judy Meade, Director of

the Office of Safety and Security (202)

366–2896 (telephone) or (202) 366–7951

(fax). For legal issues: Nancy Zaczek,

Office of the Chief Counsel (202) 366–

4011 (telephone) or (202) 366–3809

(fax). Electronic access to this and other

rules may be obtained through FTA’s

Transit Safety and Security Bulletin

Board at 1–800–231–2061 or through

the FTA World Wide Web home page at

http://www.fta.bts.gov; both services are

available seven days a week.

SUPPLEMENTARY INFORMATION:

I. Background

On February 14, 1994, FTA issued 49

CFR parts 653 and 654, which require

recipients of certain categories of FTA

funding to test safety-sensitive

employees for the use of five prohibited

drugs and the misuse of alcohol. In

addition to five other types of testing,

not relevant to this discussion, the rules

require employers to conduct postaccident testing of certain safetysensitive employees within eight hours

of the accident for the misuse of alcohol

and within 32 hours for the use of

prohibited drugs. (The standards for

determining which ‘‘safety-sensitive’’

employees must be tested are set out in

the rule and are not relevant to this

discussion.) If an employer cannot test
Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Proposed Rules 51077

such employees within the specified

time period, the rules require the

employer to prepare and maintain a

record stating why such test was not

promptly administered.

On February 6, 1996, Mr. William

Millar, as Executive Director of the Port

Authority of Allegheny County (Port

Authority), asked FTA to accept the

results of a post-accident drug and

alcohol test administered by a State or

local law enforcement official or

emergency medical personnel as

meeting the requirements of FTA’s drug

and alcohol rules, in other words, to

‘‘federalize’’ these locally administered

tests.

Mr. Millar’s request was prompted by

a collision between two buses that had

occurred on January 12, 1996 on the

Martin Luther King Busway in

Pittsburgh, Pennsylvania. Mr. Millar

described the accident as follows:

At approximately 7:10 a.m., in adverse

weather conditions, a bus traveling from

[d]owntown Pittsburgh crossed the center

line and collided with an inbound bus. The

driver of the inbound vehicle was killed. The

operator of the outbound bus was severely

injured and taken to a local hospital for

emergency surgery. He remained on the

hospital’s ‘critical’ list for approximately four

days and underwent additional surgery.

Due to the driver’s medical condition and

unconsciousness, Port Authority’s Drug and

Alcohol Program personnel were unable to

conduct substance tests meeting federal

standards. Nevertheless, it appears that blood

tests were taken on both operators which

could determine their use of alcohol or

prohibited drugs. Reports from local law

enforcement officials have revealed that

neither driver had drugs or alcohol in their

systems. However, if drugs or alcohol had

been found, Federal regulations make clear

that tests administered by either the hospital

or law enforcement officials on the surviving

bus operator would not have met [F]ederal

standards, regardless of the quality of the

hospital, the legality of the police

investigation or the proficiency of the

laboratories used to conduct the tests.

To remedy this situation, Mr. Millar

suggested that FTA amend the

regulations to allow a ‘‘post-accident

medical emergency testing procedure,’’

which would include

(a) The permissible use by a public transit

agency of a blood or urine sample drawn by

hospital personnel and submitted by the

transit agency to a laboratory certified by the

Department of Health and Human Services

when the blood or urine is collected: (i) in

the course of routine medical procedures; or

(ii) upon the request of law enforcement or

regulatory personnel; or (iii) upon the request

of authorized personnel of the transit

agency’s Drug and Alcohol Program[.]

(b) The permissible use of blood or urine

test results when said tests, whether initiated

by hospitals or law enforcement personnel,

meet the requirements of state law with

respect to chain of custody of the samples

and medical certification or expertise of the

laboratories.

Mr. Millar further suggested that a

post-accident medical emergency be

presumed by the employer whenever,

following an accident involving death or

personal injury to any person:

(a) A covered employee has reported to or

been transported to a medical facility for the

receipt of emergency medical care; or (b) a

covered employee is a patient in a medical

facility and is unconscious or substantially

impaired to prevent testing by transit agency

personnel.

II. FTA’s Response

As Mr. Millar’s letter illustrates,

conducting post-accident tests within

the timeframes specified by the rules is

frequently difficult and sometimes

impossible. FTA provided for this

situation by allowing employers to

prepare and maintain a record stating

why a test was not promptly

administered. Mr. Millar’s letter,

however, highlights a ‘‘gap’’ in FTA’s

rules; in some instances, an employer

may not be able to test a ‘‘safetysensitive’’ employee, although the

employee has undergone drug and

alcohol tests administered by local

police or by medical personnel. Should

the employer be able to use those results

to meet the requirements of the rules,

and if so, under what circumstances?

Mr. Millar suggested that an employer

should be able to direct medical

personnel to perform blood, breath, and

urine tests on ‘‘safety-sensitive’’

employees who are receiving medical

treatment after an accident has

occurred. FTA, however, does not have

the authority to require medical

personnel to perform these tests; hence,

we have not adopted this particular

suggestion.

Mr. Millar further suggested that an

employer be permitted to use the results

of any tests performed by medical

personnel as part of the routine postaccident medical examination of the

‘‘safety-sensitive’’ employee. Again,

FTA does not have the authority to

require medical personnel to provide

the results of these tests to the

employer. Hence, we do not propose to

adopt this suggestion.

Mr. Millar also suggested that an

employer use the results of any tests

conducted by State or local law

enforcement personnel as part of their

accident investigation. This proposed

amendment could strike a reasonable

balance: the ‘‘safety-sensitive’’ employee

is protected by the standards and

procedures of State and local law, and

the traveling public is protected by

allowing the employer to use the test

results, if necessary, to remove a

‘‘safety-sensitive’’ employee from his or

her ‘‘safety-sensitive’’ position.

However, it must be emphasized that

the tests must be conducted in

conformance with State and local law

and the results be obtained by the

employer in conformance with State

and local law.

Although FTA proposes this change

to the rules, we do not believe that

employers would be able to use it

frequently, based on the experience of

the Federal Highway Administration

(FHWA). Currently, FHWA allows

employers to use the results of postaccident tests conducted by State or

local law enforcement officials if the

employer can obtain those results;

because of privacy concerns, however,

employers frequently cannot obtain

them. Moreover, this rule, if adopted,

could not provide an employer any

authority to require the police to

perform the tests for the employer or to

give the employer the results of tests

performed at the police’s initiative.

In the few cases when the employer

can obtain the results from the police,

this amendment could be extremely

useful. First, it would allow an

employer to use the results of a blood

test, which is not authorized under

FTA’s rules. Second, an employer could

use the test results, so long as the test

was administered in accordance with

State or local law, which means that the

employer is not obligated, in this very

narrow class of cases, to follow the

procedures specified in 49 CFR part 40.

In other words, for these cases, State or

local law would supersede part 40.

We seek comment on this proposed

amendment.

III. Regulatory Analyses and Notices

This is not a significant rule under

Executive Order 12866 or under the

Department’s Regulatory Policies and

Procedures. There are no significant

Federalism implications to warrant the

preparation of a Federalism Assessment.

The Department certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities; allowing employers to use the

results of a post-accident drug and

alcohol test administered by or under

the direction of State or local law

enforcement personnel is unlikely to

significantly increase the costs for

employers.

List of Subjects in 49 CFR Parts 653 and

654

Alcohol testing, Drug testing, Grant

programs—transportation, Mass

transportation, Reporting and
51078 Federal Register / Vol. 62, No. 189 / Tuesday, September 30, 1997 / Proposed Rules

recordkeeping requirements, Safety and

transportation.

For the reasons set forth in the

preamble, FTA proposes to amend Title

49 Code of Federal Regulations, part 653

and 654 as follows:

PART 653—PREVENTION OF

PROHIBITED DRUG USE IN TRANSIT

OPERATIONS

1. The authority citation for part 653

continues to read as follows:

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

§ 653.45 [Amended]

2. Section 653.45 is amended by

adding paragraph (d) to read as follows:

* * * * *

(d) The results of a blood or urine test

for the use of prohibited drugs,

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 tests conform to the

applicable Federal, State, or local testing

requirements, and that the test results

are obtained by the employer.

PART 654—PREVENTION OF

ALCOHOL MISUSE IN TRANSIT

OPERATIONS

3. The authority citation for part 654

continues to read as follows:

Authority: 49 U.S.C. 5331; 49 CFR 1.52.

§ 654.33 [Amended]

4. Section 654.33 is amended by

adding paragraph (d) to read as follows:

* * * * *

(d) The results of a blood or breath

test for the misuse of alcohol, 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 tests conform to the applicable

Federal, State, or local testing

requirements, and that the results of the

tests are obtained by the employer.

Issued on: September 24, 1997.

Gordon J. Linton,

Administrator.

[FR Doc. 97–25742 Filed 9–29–97; 8:45 am]

BILLING CODE 4910–57–U