[Federal Register Volume 60, Number 43 (Monday, March 6, 1995)]
[Rules and Regulations]
[Pages 12297-12300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5178]



=======================================================================
-----------------------------------------------------------------------
[[Page 12298]]

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, menu-driven system with information accessible seven days a 
week, twenty-four 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-of-service 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 non-revenue 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. [[Page 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.


Sec. 654.3  [Amended]

    1a. Paragraph (b) of Sec. 654.3 is amended by removing ``part 219'' 
and adding in its place ``parts 219 and 382, as appropriate''.
    2. The note to Sec. 654.3 is amended by removing the phrase ``and 
6'' and adding in its place the phrase ``and 16''.


Sec. 654.7  [Amended]

    3. In Sec. 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 Sec. 654.7 a new definition following the definition of 
``covered employee'' is added as follows:


Sec. 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.


Sec. 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''. [[Page 12300]] 


Sec. 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 Sec. 654.35, paragraph (c)(1) is revised and paragraphs (j) 
and (k) are added to read as follows:


Sec. 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 Sec. 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:


Sec. 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