12296 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 653

[Docket No 92–H]

RIN 2132–AA37

Prevention of Prohibited Drug Use in

Transit Operations

AGENCY: Federal Transit Administration,

DOT.

ACTION: Final rule; technical

amendments.

SUMMARY: The Federal Transit

Administration (FTA) is making

technical amendments to its anti-drug

rule to correct a citation, add words that

inadvertently had been omitted,

redesignate a provision, and clarify

portions of the preamble discussion of

the rule. This rule is intended to clarify

the existing rule.

DATES: This rule is effective March 6,

1995.

FOR FURTHER INFORMATION CONTACT:

Nancy M. Zaczek, Attorney-Advisor for

Legislation and Rulemakings, Office of

the Chief Counsel, FTA, 400 7th Street

SW, Washington DC 20590. (202) 366–

4011. Information may also be obtained

from Judy Meade or Rhonda Crawley of

the Office of Safety and Security,

Federal Transit Administration, same

address. (202) 366–2896.

SUPPLEMENTARY INFORMATION: FTA

recipients and other interested parties

may access this rule through the FTA’s

Transit Safety and Security Bulletin

Board using a microcomputer and a

modem. The telephone number for the

Bulletin Board is 1–800–231–2061. The

Bulletin Board is a user-friendly, menudriven system with information

accessible seven days a week, twentyfour hours a day. Once registration is

completed, interested parties may

access this and other regulations.

To obtain additional information

regarding access to the Bulletin Board,

please contact the Operator, at (617)

494–2108, or leave a message on the

Message Board of the Bulletin Board.

The FTA is making the following

technical amendments to its anti-drug

rule.

Applicability—Commuter Railroads

and CDL Holders

The applicability provision, section

653.5, clarifies which Department of

Transportation (DOT) drug and alcohol

testing program covers Commercial

Drivers License (CDL) holders who work

for commuter railroads. Three DOT

agencies are involved in this issue: FTA,

which funds commuter railroads; the

Federal Railroad Administration (FRA),

which regulates railroads, including

commuter railroads; and the Federal

Highway Administration (FHWA),

which requires CDL holders to be tested

for prohibited drugs and the misuse of

alcohol. Under the FTA’s final rule, to

avoid jurisdictional problems,

commuter railroads that receive FTA

funds are to comply with FRA’s drug

and alcohol regulation. Because the FRA

regulation only covers hours-of-service

employees, however, there remains a

question as to which agency’s drug and

alcohol program covers CDL holders

who work for a commuter railroad. This

rule clarifies that it is FHWA’s

regulation that covers such CDL holders.

We also note that the FRA hours-ofservice classification system does not

include the same kinds of workers

covered under FTA’s rules; for example,

armed security personnel are covered by

FTA’s rules but not FRA’s. Because FTA

in its rule has delegated its authority to

require commuter railroads to

implement a drug and alcohol testing

program to FRA, commuter railroad

workers who are not safety-sensitive

under FRA’s rule are not subject to

testing, even though they would be if

they were subject to FRA’s rules.

Section 653.5 is changed to correct a

citation error in a reference to the

regulations of the United States Coast

Guard. The citation now reads 33 CFR

part 95 and 46 CFR parts 4, 5, and 16.

Definitions

The definition of the term ‘‘disabling

damage’’ is changed to be consistent

with the definition used by the Federal

Highway Administration, and is now

defined independently of the term

‘‘accident.’’

The definition of ‘‘large operator’’ is

changed to add the word ‘‘urbanized,’’

which inadvertently was omitted. Thus,

a large operator operates primarily in an

urbanized area of 200,000 or more in

population.

A parallel change is made to the

definition of ‘‘small operator,’’ which

operates primarily in a nonurbanized

area or in an urbanized area of less than

200,000 in population. These changes

are consistent with the way the Federal

Transit Administration administers its

grant programs.

The definition of ‘‘safety-sensitive

function’’ is changed, at subsection (4),

to clarify that the rule excludes from

coverage maintenance contractors

working for recipients or small

operators primarily serving an area of

less than 50,000 in population,

regardless of whether they receive

section 18 or section 3 funding.

The definition of ‘‘vehicle’’ is changed

to add, in the category of ‘‘mass transit

vehicle,’’ certain vehicles used for

services ancillary to mass

transportation. The definition of a mass

transit vehicle thus now includes not

only buses and vans, but also

nonrevenue service commercial motor

vehicles and vehicles used by armed

security personnel.

Starting Date for Drug Testing Programs

Section 653.13 makes a conforming

change in the implementation section of

the rule to reflect the addition of the

word ‘‘urbanized’’ to the definition of

large operator.

Referral, Evaluation, and Treatment

Section 653.37(a) is changed to add

the word ‘‘or,’’ which clarifies that an

employee who either refuses to submit

to a drug test or has a verified positive

drug test result must be advised of the

resources available to him or her in

evaluating and resolving problems

associated with prohibited drug use,

including the names, addresses, and

telephone numbers of substance abuse

professionals and counseling and

treatment programs.

Supervisors Acting as a Collection

Person

The reasonable suspicion testing

provision, section 653.43, specifically

prohibited a supervisor from acting as a

collection site person for covered

employees under his or her direct

supervision. This provision, however,

was misplaced; it was our intention to

prohibit a direct supervisor from acting

as a collection site person for any of the

tests required under the rule.

Accordingly, we have redesignated

section 653.43(c) as section 653.65.

Post-Accident Testing

Sections 653.45(a)(1), (a)(2)(i), and

(a)(2)(ii) are amended to change the

phrase ‘‘on duty in,’’ to ‘‘operating.’’

The provision as drafted required the

testing of any safety-sensitive employee

on duty in a revenue service vehicle

when an accident occurred. The rule,

however, was not meant to use the same

standard for both vehicle operators and

other covered employees who happen to

be in the vehicle at the time of the

accident. Thus, the mass transit vehicle

operator must be tested if an accident

has occurred and he or she has received

a citation from a State or local law

enforcement official. (In a Notice of

Proposed Rulemaking published in the

Federal Register on February 6, 1995, at

60 FR 7169, the FTA seeks comment on

whether this citation requirement

should be deleted.) We note that to test
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations 12297

other covered employees, the employer

must determine whether that employee

contributed to the accident, using the

best information available at the time of

the decision.

Random Testing Rate

On December 2, 1994, FTA changed

section 653.47 by, among other things,

adopting a performance-based random

drug testing rate. For more information

on these changes, see 59 FR 62217–

62231.

Certification of Compliance

On October 12, 1994, the FTA

published a Federal Register Notice, at

59 FR 51793, entitled ‘‘Annual List of

Certifications and Assurances for

Federal Transit Administration Grants

and Cooperative Agreements.’’ In the

Notice, FTA compiled a complete listing

and the full text of the certifications and

assurances necessary to receive

financial assistance from the Federal

Transit Administration. Instead of

submitting a variety of certifications and

assurances with each grant application,

the grant applicant and its attorney

certify compliance with all of the

certifications and assurances relevant to

any and all grants for which the grant

applicant wishes to apply in fiscal year

1995 by signing the single Signature

Page, attached to the Notice at 59 FR

51813. The Notice, which will be

updated and republished annually for

use in future fiscal years, includes a

certification of compliance with the

FTA drug and alcohol testing program.

Accordingly, we are deleting as

unnecessary the sample certification in

the rule.

Retention of Records

The preamble discussion of this topic

contained an error; specifically, it stated

in Subpart E, paragraph A, at 59 FR

7587, that ‘‘[t]he rule provides three

separate record retention periods for

different types of records—five years,

three years, and one year.’’ Actually,

records must be retained for either five

years, two years, or one year. The

regulatory text, however, is accurate,

and remains unchanged.

Executive Order 12612

We inadvertently stated in this

paragraph, at 59 FR 7589, that FTA was

not preempting Indian tribal law.

Elsewhere in the preamble, however, we

discussed this issue at length and

concluded that FTA is preempting

Indian tribal law under the standard

developed by the Ninth Circuit in

Donovan v. Coeur d’Alene Tribal Farm,

751 F. 2d 1113, 1116 (9th Cir. 1985).

There is a comprehensive discussion of

this issue in the Federal Register,

published on February 15, 1994, at 59

FR 7541, 7549, and 7581.

List of Subjects in Part 653

Drug testing, Grant programs—

transportation, Mass transportation,

Reporting and recordkeeping

requirements, Safety and

Transportation.

For the reasons set forth in the

preamble, the FTA amends Title 49,

Code of Federal Regulations, part 653 as

follows:

1. The authority for part 653

continues to read as follows:

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

PART 653—PREVENTION OF

PROHIBITED DRUG USE IN TRANSIT

OPERATIONS

§ 653.5 [Amended]

a. Paragraph (b) of § 653.5 is amended

by removing ‘‘part 219’’ and adding

‘‘parts 219 and 382, as appropriate’’.

2. The note to § 653.5 is amended by

changing the phrase ‘‘and 6’’ to the

phrase ‘‘and 16’’.

§ 653.7 [Amended]

3. In § 653.7, the definition of

accident is amended in paragraph (3) by

removing the period at the end of the

first sentence and adding a semicolon;

and by removing the second and third

sentences.

4. The definition of large operator is

amended by adding the word

‘‘urbanized’’ after the word ‘‘an’’ and

before the word ‘‘area’’.

5. The definition of safety-sensitive

function is amended in paragraph (4) by

adding the words ‘‘section 3 funding

and is in an area of less than 50,000 in

population or’’ after the word ‘‘receives’’

and before the word ‘‘section’’.

6. The definition of small operator is

amended by removing the words ‘‘in an

area’’ and adding in their place the

words ‘‘in a nonurbanized area or in an

urbanized area.’’

7. The definition of vehicle is

amended by adding the words ‘‘or for

ancillary services’’ after the word

‘‘transportation’’ and before the period.

8. In § 653.7 a new definition

following the definition of ‘‘covered

employee’’ is added as follows:

§ 653.7 [Definitions]

* * * * *

Disabling damage means damage

which precludes departure of a motor

vehicle from the scene of the accident

in its usual manner in daylight after

simple repairs.

(1) Inclusion. Damage to motor

vehicles that could have been driven,

but would have been further damaged if

so driven.

(2) Exclusions.

(i) Damage which can be remedied

temporarily at the scene of the accident

without special tools or parts.

(ii) Tire disablement without other

damage even if no spare tire is available.

(iii) Headlamp or taillight damage.

(iv) Damage to turn signals, horn, or

windshield wipers which makes them

inoperative.

* * * * *

§ 653.13 [Amended]

9. Section 653.13(a) is amended by

adding the word ‘‘primarily’’ after the

word ‘‘operating’’ and before the word

‘‘in’’ and by adding the word

‘‘urbanized’’ after the word ‘‘an’’ and

before the word ‘‘area’’.

10. Section 653.13(b) is amended by

removing the words ‘‘operating in an

area’’ and adding in their place the

words ‘‘operating primarily in a

nonurbanized area or in an urbanized

area’’.

§ 653.37 [Amended]

11. Section 653.37(a) is amended by

adding the word ‘‘or’’ after the word

‘‘result’’ and before the word ‘‘refuses’’.

§ 653.43 [Amended]

12. Section 653.43(c) is redesignated

as § 653.65, Supervisor acting as

collection site person, in subpart D.

§ 653.45 [Amended]

13. Section 653.45(a)(1) is amended

by removing the phrase ‘‘on duty in’’

and adding in its place the word

‘‘operating’’.

14. Section 653.45(a)(2)(i) is amended

by removing the phrase ‘‘on duty in’’

and adding the word ‘‘operating’’ in its

place.

15. Section 653.45(a)(2)(ii) is

amended by removing the phrase ‘‘on

duty in’’ and adding the word

‘‘operating’’ in its place.

Appendix A to Part 653 [Removed and

Reserved]

16. Appendix A to Part 653, Sample

Certification of Compliance, is removed

and reserved.

Date Issued: February 27, 1995.

Gordon J. Linton,

Administrator.

[FR Doc. 95–5177 Filed 3–3–95; 8:45 am]

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