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]

BILLING CODE 4910–57–U
12298 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 654

[Docket No. 92–I]

RIN 2132–AA38

Prevention of Alcohol Misuse in

Transit Operations

AGENCY: Federal Transit Administration,

DOT.

ACTION: Final rule; technical

amendments.

SUMMARY: The Federal Transit

Administration (FTA) is making some

minor and technical amendments to its

alcohol rule to correct a citation, add

words that inadvertently had been

omitted, 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 for

Legislation/Rulemakings, Office of the

Chief Counsel, Federal Transit

Administration, 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 alcohol

rule.

Applicability—Commuter Railroads

and CDL Holders

The applicability provision, section

654.3, 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 FHWA’s regulation

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 existing 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 FTA’s rules.

Also, section 654.3 is changed to

correct a citation error in a reference to

the regulations of the United States

Coast Guard. The citation should read

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 not only

for mass transportation, but also 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 Alcohol Testing

Programs

Section 654.15 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.

Post-Accident Testing

Sections 654.33(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 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

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.

Supervisor Acting as a Breath Alcohol

Technician

Section 654.45 is added to include a

prohibition against the supervisor acting

as the Breath Alcohol Technician for

covered employees under his or her

direct supervision. In the final drug

rule, published on the same day as the

final alcohol rule, we prohibited a

supervisor from acting as the collection

site person. It was always our intent for

the two rules, which cover the same

employers and employees, to be as

similar as possible, and this omission

was unintentional. We now correct that

omission.
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations 12299

Random Testing

The preamble discussion of random

testing at 59 FR 7546 contained an error;

we stated that ‘‘an employer must

include a refusal to submit to a test as

a result of 0.02 or greater.’’ The phrase

‘‘0.02 or greater,’’ however, should read

‘‘0.04 or greater.’’ The regulatory text,

however, is accurate, and is not changed

by this technical amendment.

Random Testing Rate

Section 654.35(c)(1) is changed to

conform the alcohol rule to the

amendment to the drug rule published

in the Federal Register on December 2,

1994, at 59 FR 62218, 62231.

Specifically, the Administrator may

decrease the random testing rate from 25

percent to 10 percent if the two initial

years of data indicate that the violation

rate for the entire transit industry is less

than 0.5 percent. This means that the

Administrator will use two years of data

from large operators, which start testing

a year before small operators, and one

year of data for small operators to

determine the initial violation rate for

the entire transit industry. This change

affects only the initial two years of the

alcohol testing program.

Also, FTA is adding three new

paragraphs inadvertently omitted from

its rule, but included in the rules

published by the Federal Aviation

Administration, the Federal Railroad

Administration, and the Federal

Highway Administration on February

15, 1994, at 59 FR 7391–92, 7464, and

7509. (To be codified at Appendix J to

part 121 (III)(C)(10), (III)(C)(11)(a),

(III)(C)(11)(b); 49 CFR 219.608 (e), (f)(1),

and (f)(2); and 49 CFR 382.305 (j), (k)(1),

and (k)(2).) Moreover, FTA made the

same change to its drug rule on

December 2, 1994, in a rule published

in the Federal Register at 59 FR 62217,

62231.

These new paragraphs, (j), (k)(1), and

(k)(2) address situations in which a

covered employee is subject to the

alcohol testing regulations of more than

one Department of Transportation

(DOT) agency. Paragraph (j) directs the

employer to apply the random testing

rate of the DOT agency that regulates

more than 50 percent of a covered

employee’s function.

When an employer has employees

regulated by different DOT agencies,

paragraphs (k)(1) and (k)(2) allow an

employer to establish separate pools for

employees based on the rate set by the

DOT agency regulating them, or to

establish one pool for all its employees,

but randomly test them at the highest

minimum rate set by another DOT

agency.

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 certifications in

the rule.

Retention of Records

The preamble discussion of this topic

contained an error; specifically, it stated

in the Section-by-Section Analysis,

Subpart D, paragraph A, at 59 FR 7546

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.

List of Subjects in Part 654

Alcohol testing, Grant programs—

transportation, Mass transportation,

Reporting and recordkeeping

requirements, Safety, Transportation.

For the reasons set forth in the

preamble, the Federal Transit

Administration amends Title 49, Code

of Federal Regulations, part 654 as

follows:

PART 654—PREVENTION OF

ALCOHOL MISUSE IN TRANSIT

OPERATIONS

1. The authority for part 654

continues to read as follows:

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

§ 654.3 [Amended]

1a. Paragraph (b) of § 654.3 is

amended by removing ‘‘part 219’’ and

adding in its place ‘‘parts 219 and 382,

as appropriate’’.

2. The note to § 654.3 is amended by

removing the phrase ‘‘and 6’’ and

adding in its place the phrase ‘‘and 16’’.

§ 654.7 [Amended]

3. In § 654.7, 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 remaining text in

paragraph (3).

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 § 654.7 a new definition

following the definition of ‘‘covered

employee’’ is added as follows:

§ 654.7 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.

§ 654.15 [Amended]

9. Section 654.15(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 654.15(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’’.
12300 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations

§ 654.33 [Amended]

11. Section 654.33(a)(1) is amended

by removing the phrase ‘‘on duty in’’

and adding the word ‘‘operating’’ in its

place.

12. Section 654.33(a)(2)(i) is amended

by removing the phrase ‘‘on duty in’’

and adding the word ‘‘operating’’ in its

place.

13. Section 654.33(a)(2)(ii) is

amended by removing the phrase ‘‘on

duty in’’ and adding the word

‘‘operating’’ in its place.

14. In § 654.35, paragraph (c)(1) is

revised and paragraphs (j) and (k) are

added to read as follows:

§ 654.35 Random testing.

* * * * *

(c)(1) When the minimum annual

percentage rate for random alcohol

testing is 25 percent or more, the

Administrator may lower this rate to 10

percent of all covered employees if the

Administrator determines that the data

received under the reporting

requirements of § 654.53 for two

consecutive calendar years indicate that

the violation rate is less than 0.5

percent. However, after the initial two

years of testing by large transit operators

and the initial first year of testing by

small transit operators, the

Administrator may lower the rate the

following calendar year, if the combined

violation rate is less than 0.5 percent

and is in the interests of safety.

* * * * *

(j) If a given covered employee is

subject to random alcohol testing under

the alcohol testing rules of more than

one DOT agency for the same employer,

the covered employee shall be subject to

random alcohol testing at the minimum

annual percentage rate established for

the calendar year by the DOT agency

regulating more than 50 percent of the

covered employee’s function.

(k) If an employer is required to

conduct random alcohol testing under

the alcohol testing rules of more than

one DOT agency, the employer may—

(1) Establish separate pools for

random selection, with each pool

containing the DOT-covered employees

who are subject to testing at the same

required minimum annual percentage

rate; or

(2) Randomly select such employees

for testing at the highest minimum

annual percentage rate established for

the calendar year by any DOT agency to

which the employer is subject.

15. Section 654.45 is added to subpart

C to read as follows:

§ 654.45 Supervisor acting as Breath

Alcohol Technician.

An employer shall not permit a direct

supervisor of an employee to serve as

the breath alcohol technician for an

alcohol test of the employee.

Appendix A to Part 654—[Removed and

Reserved]

16. Appendix A to Part 654—Sample

Certifications of Compliance is removed

and reserved.

Issued: February 27, 1995.

Gordon J. Linton,

Administrator.

[FR Doc. 95–5178 Filed 3–3–95; 8:45 am]

BILLING CODE 4910–57–U