[Federal Register Volume 71, Number 107 (Monday, June 5, 2006)]
[Proposed Rules]
[Pages 32298-32300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5073]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 655
[Docket No. FTA-2006-24592]
RIN 2132-AA86
Controlled Substances and Alcohol Misuse Testing
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Transit Administration (FTA) proposes to eliminate
duplicative requirements for safety-sensitive employees of some public
(mass) transportation systems, who are subject to the alcohol and
controlled substances (D&A) testing requirements of both FTA and the
United States Coast Guard (USCG), or FTA and the Federal Motor Carriers
Safety Administration (FMCSA). Recipients could concurrently comply
with FTA's D&A testing program as they comply with the testing
requirements of the USCG or FMCSA. However, FTA's post-accident and
reasonable suspicion testing requirements would continue to apply when
accidents occur while performing public (mass) transportation
activities.
DATES: Comments must be received on or before August 4, 2006. Late
filed comments will be considered to the extent practicable.
ADDRESSES: Written Comments: Submit written comments to the Docket
Management System, U.S. Department of Transportation, Room PL-401, 400
Seventh Street, SW., Washington, DC 20590-0001. You may submit comments
identified by the docket number (FTA-2006-24592) by any of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Web Site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Fax: 1-202-493-2478.
Hand Delivery: To the Docket Management System, Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
notice. Note that all comments received will be posted without change
to http://dms.dot.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: For program issues, Gerald Powers,
Office of Safety and Security, (202) 366-1080 (telephone); (202) 366-
7951 (fax); or [email protected] (e-mail). For legal issues, Bruce
Walker, Office of the Chief Counsel, (202) 366-4011 (telephone); (202)
366-3809 (fax); or [email protected] (e-mail).
SUPPLEMENTARY INFORMATION:
I. Background
Authority for This Proposal
Section 3030 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: a Legacy for Users (SAFETEA-LU) (Pub. L.
109-59, August 10, 2005), 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.
Previous Action by FMSCA and FTA
FMCSA published a Federal Register notice on August 17, 2001 which
eliminated duplicative D&A testing requirements for holders of
Commercial Drivers Licenses (CDLs) who provide public transportation
services. These motor carrier operators are subject to FMCSA
regulations; however, because they receive Federal funding for public
transportation activities, they are also subject to FTA's D&A
regulation. FMSCA stated that its testing requirements do not apply to
transit employers who are required to comply with FTA testing
requirements (see 49 CFR 382.103(d)). However, FMCSA made a policy
determination that CDL holders would remain subject to its rule for
specific violations; hence, the potential for duplicative oversight may
continue to exist.
Subsequently, FTA undertook administrative steps to eliminate
duplicative testing requirements for ferry operators by revising its
policy for these operators with its Federal Register notice dated April
22, 2002. Before the notice, ferry operators receiving Federal transit
funds were required to comply with the testing requirements of both FTA
and USCG.
FTA consulted with the USCG and both agencies agreed that ferries
were primarily regulated by the USCG. FTA determined that for safety
purposes, it was sufficient for these operators to comply with USCG's
D&A testing requirements. However, because the USCG does not require
random alcohol testing, it was determined the operators would remain
subject to FTA's random alcohol testing requirements.
FTA now proposes to adopt a regulatory provision that parallels
FMCSA's rule for motor carrier operators who receive Federal transmit
funding and to codify its previously published policy guidance for
ferry operators. FTA seeks comments on this proposed rule which would
allow safety-sensitive employers to concurrently comply with FTA
testing requirements when they comply with FMCSA or USCG D&A
requirements.
II. Overview and General Discussion of the Proposed Rule
A. This notice of proposed rulemaking (NPRM) would provide
regulatory relief to public transportation providers by eliminating
duplicative testing requirements. The NPRM proposes to amend the
applicability section of the FTA's D&A regulation at 49 CFR 655.3 by
revising the introductory text of paragraph (a) and adding new
paragraphs (c), (d), and (e).
Specifically, FTA proposes that a private or nonprofit motor-
carrier employer, with employees who perform safety-sensitive functions
regulated by both FTA and FMCSA, may determine
[[Page 32299]]
whether or not a majority (more than 50 percent) of these employees are
regulated by FMSCA. If so, the employer may opt to comply with the
FMSCA testing requirements only for that class of employees. However,
for safety purposes, FTA's post-accident requirements, section 655.44,
would apply when an accident, as defined in section 655.4 occurs in the
performance of public (mass) transportation activities.
In exercising this option, an employer would also have discretion
in determining the timeframe and the manner in which the employees'
safety-sensitive functions are apportioned (i.e., daily, monthly, or
annually). For audit purposes this determination would be made
annually, at the beginning of the calendar year, and remain applicable
throughout that calendar year.
We note that FMSCA testing regulations do not apply to transit
maintenance employees. Therefore, maintenance workers servicing transit
vehicles would remain subject to 49 CFR part 655.
B. The USCG has primary oversight over maritime operations,
including ferryboats, whereas FTA's regulatory oversight stems from the
fact that it provides Federal transit funding to a limited number of
ferry operations. Therefore, FTA proposes as ferry operators comply
with the D&A testing requirements of the USCG, they be deemed in
concurrent compliance with FTA's D&A regulation.
USCG and FTA testing requirements are substantially similar. FTA
believes that the USCG regulatory scheme sufficiently addresses transit
safety concerns; therefore, it would be prudent for ferry operators to
comply with only one set of Federal testing requirements. However,
since USCG regulations do not require random alcohol testing, for
safety purposes, ferry operators would remain subject to FTA's random
alcohol testing requirements at 49 CFR 655.45.
FTA remains responsible for ensuring compliance for recipients of
public (mass) transportation. Therefore, to facilitate oversight, the
administrative requirements of subpart G, H, and I of 49 CFR part 655
would continue to apply to ferry operators and motor carrier operators
receiving Federal public (mass) transportation funds.
E.O. 12866, Regulatory Planning and Review
Under Executive Order 12866, 58 FR 51735, October 4, 1993, the
Department of Transportation (DOT) must examine whether this proposed
rule is a ``significant regulatory action.'' A significant regulatory
action is subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Executive Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $120 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) creates a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
This proposed rule provides administrative relief from current
regulatory alcohol misuse and controlled substance testing requirements
for public transportation providers; therefore, FTA believes this
proposed rule is a nonsignificant regulatory action under section 3(f)
of Executive Order 12866. Accordingly, it has not been reviewed by the
Office of Management and Budget.
This proposed rule is not expected to impose any new compliance
costs. The only entities affected by this proposed rule are those
public transportation providers that are currently subject to the
alcohol misuse and controlled substance testing regimen. These
requirements, if adopted will relieve these entities of duplicative
Federal testing requirements. There would be no significant changes to
the existing program with the publication of this rulemaking. Further,
this discretionary rulemaking is provided for under the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: a Legacy
for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005).
Regulatory Flexibility Act
Section 603 of the Regulatory Flexibility Act requires a Federal
agency to conduct an initial regulatory flexibility analysis describing
impacts to small entities when developing a Notice of Proposed
Rulemaking in accordance with 5 U.S.C. 553. Currently, approximately
3000 employers are subject to FTA D&A testing requirements. Of this
number, a small percentage is also subject to the D&A testing
requirements of FMSCA or the USCG. This proposed rule would have the
effect of eliminating the administrative burden on those few employers
who are subject to multiple testing requirements by permitting them to
comply with the testing requirements of only one Federal agency. The
lessening of this administrative burden on these affected entities will
result in no significant economic impact to these employers.
This proposed rule will not impose any additional costs on small
entities that are subject to alcohol misuse and controlled substance
testing requirements. As noted above, certain public transportation
providers who may be subject to the testing requirements of more than
one DOT agency or the USCG will be provided statutory relief by
complying with the testing requirements of only one Federal agency. FTA
certifies that no further analysis is necessary because the proposed
rule will not have a significant economic impact on a substantial
number of small entities. FTA invites public comment on this analysis.
Paperwork Reduction Act
This proposed rule does not contain a collection of information
that is subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). Under the provisions of the Paperwork Reduction Act, FTA may not
conduct or sponsor, and a person is not required to respond to or may
not be penalized for failing to comply with, a collection of
information unless it displays a currently valid OMB control number.
Executive Order 13132, Federalism
Executive Order 13132 sets forth principles and criteria that
agencies must adhere to in formulating and implementing policies that
have Federalism implications, that is, regulations that have
substantial direct effects on the States, or on the distribution of
power and responsibilities among the various levels of government.
Federal agencies must closely examine the statutory authority
supporting any action that would limit the policymaking discretion of
the States, and to the extent practicable, must consult with State and
local officials before implementing any such action.
FTA has reviewed this proposed rule under the threshold criteria of
Executive Order 13132 on Federalism and certifies that the rule would
not have Federalism implications as defined by the Executive Order. The
rule provides for relief from duplicative Federal alcohol misuse and
controlled substance testing requirements for certain public
transportation providers. The rule would not significantly affect the
rights,
[[Page 32300]]
roles, and responsibilities of States, and would involve no preemption
of State law, nor would it limit State policymaking discretion.
Unfunded Mandates Reform Act
The proposed rule would not be an unfunded Federal mandate within
the meaning of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501
et seq., and any enforceable duties that FTA would impose are a
condition of Federal assistance or a duty arising from participation in
a voluntary Federal program.
List of Subjects in 49 CFR Part 655
Alcohol testing, Drug testing, Grant programs--Transportation, Mass
transportation, Reporting and recordkeeping requirements, Safety,
transit, and transportation.
For the reasons set forth in the preamble, the Federal Transit
Administration proposes to amend part 655 of title 49 of the Code of
Federal Regulations as follows:
PART 655--PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN
TRANSIT OPERATIONS
1. The authority citation for part 655 continues to read as
follows:
Authority: 49 U.S.C. 5331 (as amended); 49 CFR 1.51.
2. Amend Sec. 655.3 to revise the introductory text of paragraph
(a) and to add paragraphs (c), (d) and (e) to read as follows:
Sec. 655.3 Applicability.
(a) Except as specifically excluded in paragraphs (b), (c), and (d)
of this section, this part applies to:
* * * * *
(b) * * *
(c) A recipient operating a ferry regulated by the United States
Coast Guard (USCG) and receiving Federal funding for public (mass)
transportation activities shall follow 46 CFR parts 4 and 16, 33 CFR
part 95. However, section 655.45 of this part is applicable for random
alcohol testing.
(d) A private or nonprofit employer with safety-sensitive
employees, per both this part and 49 CFR part 382, may annually
determine whether or not a majority (more than 50 percent) of these
employees are regulated by part 382. If so, the employer may comply
with the drug and alcohol testing requirements of part 382 for that
calendar year. However, reasonable suspicion and post-accident testing
per this part (Sec. Sec. 655.43 and 655.44) remain applicable for
operators when performing public (mass) transportation activities. In
addition, the provisions of this part remain applicable for those
safety-sensitive employees who perform maintenance on vehicles or
equipment used for public (mass) transportation service.
(e) A recipient's failure to comply with the alcohol misuse and
controlled substances testing requirements of the USCG or the Federal
Motor Carrier Safety Administration, as described in paragraphs (c) and
(d) above, may result in a finding of noncompliance by FTA.
(1) A finding of noncompliance may cause a recipient to become
ineligible for Federal public transportation funding.
(2) Subpart G of this part is applicable to a covered employee: (i)
With a verified positive drug test result, (ii) who has a confirmed
alcohol test result of 0.04 or greater, or (iii) who refuses to submit
to a test.
(3) Recipients remain subject to subparts H and I of this part.
Issued on: May 30, 2006.
Sandra K. Bushue,
Deputy Administrator.
[FR Doc. 06-5073 Filed 6-2-06; 8:45 am]
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