[Federal Register Volume 71, Number 230 (Thursday, November 30, 2006)]
[Rules and Regulations]
[Pages 69195-69198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20278]
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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), United States Department
of Transportation.
ACTION: Final rule.
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SUMMARY: This rule codifies existing FTA administrative guidance for
safety-sensitive employees of ferryboat operations that are subject to
the drug and alcohol (D&A) testing regulations of both FTA and the
United States Coast Guard (USCG). This rule will provide regulatory
relief to ferryboat operators who were previously subject to
duplicative D&A testing regulations, and improve ferryboat operator
compliance with FTA D&A testing regulations.
This rule does not adopt the proposed rule with respect to certain
motor carrier operators who are subject to the D&A testing regulations
of both FTA and the Federal Motor Carrier Safety Administration
(FMCSA). FTA will retain its current guidance and interpretation with
respect to these motor carrier operators.
EFFECTIVE DATE: This rule is effective January 2, 2007.
FOR FURTHER INFORMATION CONTACT: For program issues, Gerald Powers,
Office of Safety and Security, (617) 494-2395 (telephone); (202) 366-
7951 (fax); or [email protected] (e-mail). For legal issues, Shauna
Coleman, Office of the Chief Counsel, (202) 366-4011 (telephone); (202)
366-3809 (fax); or [email protected] (e-mail).
SUPPLEMENTARY INFORMATION:
Availability of the Final Rule
A copy of this rule and comments and material received from the
public, as well as any documents indicated in the preamble as being
available in the docket, are part of docket FTA-2006-24592, and are
available for inspection or copying at the Docket Management Facility,
U.S. Department of Transportation, 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.
An electronic copy of this rule and comments are available online
through the Document Management System (DMS) at: http://dms.dot.gov.
Enter docket number 24592 in the search field. The DMS is available 24
hours each day, 365 days each year. Electronic submission and retrieval
help and guidelines are available under the help section of the Web
site.
Internet users may also download an electronic copy of this
document by using a computer, modem and suitable communications
software from the Government Printing Office's Electronic Bulletin
Board Service at (202) 512-1661. Additionally, internet users may reach
the Office of the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's Web page at: http://www.gpoaccess.gov/fr/index.html.
I. Background
In 2001, FMCSA issued a rule that eliminated duplicative D&A
testing regulations for holders of Commercial Drivers Licenses (CDLs)
who provide public transportation services. This rule
[[Page 69196]]
provided that transit agencies with safety-sensitive employees holding
CDLs are covered by FTA D&A testing regulations, and FMCSA testing
requirements would not apply. (See 49 CFR 382.103(d)). However, FMCSA
determined individual CDL holders would remain subject to FMCSA
sanctions and other ramifications for FMCSA rule violations that were
not included in the FTA D&A testing regulations.
Subsequently, FTA agreed with FMCSA's position with regard to
holders of CDLs who provide public transportation services in its
``Implementation Guidelines for Drug and Alcohol Regulations in Mass
Transit'' (Revised November, 2003) (Implementation Guidelines). The
Implementation Guidelines provided that the FTA D&A testing regulations
would cover transit agencies with safety-sensitive employees holding
CDLs. In line with 49 CFR 382.103(d), FTA's Implementation Guidelines
maintained FMCSA's determination that that these individual CDL holders
be subject to FMCSA sanctions and other ramifications for FMCSA D&A
testing regulation violations that were not included in FTA D&A testing
regulations.
FTA undertook similar administrative steps to eliminate duplicative
testing requirements for ferryboat operators by revising our policy for
these operators in a Notice of Interpretation published in the Federal
Register on April 22, 2002 (67 FR 19615). Specifically, FTA determined
that it would deem ferryboat operators that are subject to both FTA D&A
testing regulations and USCG chemical and alcohol testing regulations,
as in concurrent compliance with the testing requirements of FTA D&A
regulations when they comply with the USCG chemical and alcohol testing
requirements. FTA determined, however, that those ferryboat operators
would remain subject to FTA's random alcohol testing requirement
because USCG does not have a similar requirement.
In response to Section 3030 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: a Legacy for Users (SAFETEA-LU,
Pub. L. 109-59, August 10, 2005), FTA published a Federal Register
notice seeking comments on a proposal to exclude certain motor carrier
operators who provide public transportation services from FTA testing
requirements, and to codify the above notice of interpretation for
ferryboat operators. (71 FR 32298, June 5, 2006.)
Based on comments received and the safety requirements of FTA D&A
testing regulations, we are partially adopting our proposal to amend
the applicability section of 49 CFR 655.3 in this final rule.
II. Response to comments received
FTA received five comments in response to the NPRM. FTA reviewed
and considered all comments submitted. The following discussion
summarizes our responses.
A. Overview of the Proposed Rule
FTA proposed to eliminate duplicative testing requirements for
ferryboat operators, and certain classes of motor carrier operators by
amending the applicability section of FTA's D&A regulation at 49 CFR
part 655.
One commenter supported FTA's efforts to eliminate duplicative
requirements, and suggested that FTA also provide a graph or chart to
guide the reader through the various D&A regulations for FTA, USCG, and
FMCSA.
FTA response: Because the final rule is limited to codifying
existing FTA interpretation, we conclude that a graph or chart is
unnecessary to implement this final rule. As resources allow, however,
we will work with USCG and the Office of the Secretary of
Transportation (OST) to develop a chart or table to assist the
regulated community with determining which regulations apply.
B. Motor carrier operators
FTA proposed that private or nonprofit motor carrier operators
regulated by both the FTA and FMCSA, who determines that a majority
(more than 50 percent) its employees are regulated by FMCSA, may opt to
only comply with FMCSA D&A testing regulations for that class of
employees.
However, FTA proposed that its post-accident requirements in 49 CFR
Sec. 655.44 would continue to apply when an accident, as defined in 49
CFR Sec. 655.4, occurred in the performance of public transportation
activities. Further, the administrative requirements of subpart G, H,
and I of 49 CFR part 655 would continue to apply to motor carrier
operators receiving Federal transit funds.
FTA proposed that an employer exercising this option would have
discretion to determine the timeframe and the manner in which it
apportions the employees' safety-sensitive functions (i.e., daily,
monthly, or annually). FTA proposed that the employer would make this
determination annually, at the beginning of the calendar year, and that
this determination would remain applicable throughout that calendar
year.
One commenter, a State recipient responsible for administering the
program for subrecipients, suggested that FTA provide further
clarification regarding the applicability of FTA's proposed motor
carrier exemption to contractor providers or recipients that receive
Federal transit funds directly from the State.
This commenter also expressed concern as to how national
contractors that provide local public transportation services would
determine whether FMCSA regulated a majority of these employees. The
commenter suggested that the employer make this determination on a
location-by-location basis as opposed to on a national basis. This
commenter further suggested that the employer determine which D&A
regulations to follow based on the full-time equivalent number of
employees as opposed to the total number of employees either at the
national level or in the specific location.
Another commenter, representing an association, suggested that our
proposal to retain oversight of ``post-accident'' testing would cause
industry confusion and administrative errors. This commenter suggested
that post accident testing under the same mode would eliminate
potential risks of confusion and administrative error.
FTA Response: We agree with the commenter who indicated that the
proposed regulatory construction had the potential to cause more
confusion for those responsible for administering the program rather
than achieving the intended goal of reducing the administrative burden.
We also note that the implementation issues presented when the State is
the pass-through recipient has the potential of adding complexity
rather than providing administrative relief.
In addition to determining that codifying a similar exception in
our regulation would cause confusion as to which testing scheme to
apply, FTA has further determined, after further review of 49 CFR part
382 and consultation with FMCSA and the Office of Drug and Alcohol
Control Compliance and Policy, that the existing regulatory framework
of 49 CFR part 382 provides sufficient administrative relief by
eliminating duplicative testing requirements for motor carrier
operators. Specifically, 49 CFR 382.103(d) exempts from FMCSA testing
those motor carrier operators who are also subject to the FTA D&A
testing regulations. Therefore, we withdraw the proposals set out in
the
[[Page 69197]]
Federal Register notice with regard to motor carrier operators, and we
will not amend the regulation to exclude private or nonprofit motor
carrier operators from FTA D&A regulations.
C. Ferryboat Operators
FTA proposed to deem ferryboat operators who are subject to both
FTA D&A regulations and USCG chemical and alcohol testing requirements,
as in concurrent compliance with the testing requirements of FTA D&A
regulations when they comply with the USCG chemical and alcohol testing
requirements. FTA proposed, however, that those ferryboat operators
would remain subject to FTA's random alcohol testing requirement
because USCG does not have a similar requirement. Further, because FTA
remains statutorily responsible for ensuring that recipients of public
transportation funds comply with Federal regulations, it proposed that
ferryboat operators remain subject to the administrative and oversight
requirements of 49 CFR part 655.
FTA received four comments from representatives of associations on
this issue.
One commenter indicated that there are differences between FTA and
USCG testing requirements. It recommended that FTA identify and address
each of the differences between FTA and USCG testing requirements. For
instance, this commenter indicated that there are differences in the
Medical Review Officer (MRO) reporting requirements under 49 CFR Part
40 and USCG guidance documents. This commenter also indicated that
another difference exists between the USCG guidance and Substance Abuse
Professional's duties prescribed in 46 CFR part 16, Subpart B.
Specifically, this commenter suggested that FTA inform all MROs
currently processing test results for FTA that the MRO procedures for
USCG do not follow 49 CFR part 40, Subpart G for reporting test
results. It further suggested that USCG and FTA follow Part 40
reporting requirements ``to the letter.''
Another commenter indicated that the proposed rule does not
sufficiently address how it affects Management Information System (MIS)
reports for each mode. It recommended that FTA provide clarification
regarding MIS reports required by each mode.
The third commenter applauded FTA's efforts to codify the existing
interpretation regarding ferryboat operators, and felt that this
codification would streamline the D&A testing regulations. This
commenter also indicated that this change would provide the same level
of safety and oversight as the existing regime while saving time and
money at the operational level.
The fourth commenter further welcomed FTA's decision to continue
the administrative oversight of ferryboat operators. This commenter
indicated that the continuation of administrative oversight of such
operators standardizes and creates a stronger D&A program.
FTA Response: We consulted with administrators of the USCG chemical
and alcohol program, and they verified that USCG continues to follow 49
CFR Part 40. Furthermore, MROs are already required to be familiar with
USCG testing and reporting procedures, including Part 40 and Part 16
irrespective of FTA D&A testing regulations.
USCG did note that mariners are subject to additional testing
requirements, such as the requirements for obtaining mariner
credentials. As mariners, therefore, ferryboat operators are already
subject to these additional requirements irrespective of FTA D&A
testing regulations.
Moreover, we emphasize that this rule permits ferryboat operators
to primarily follow the testing requirements of USCG, and thereby
concurrently comply with FTA testing requirements. It does not impose
additional requirements on MROs. The only testing exception this rule
imposes is that ferryboat operators will remain subject to FTA random
alcohol testing because USCG does not have a similar requirement. Since
USCG follows Part 40 for D&A testing purposes, we have not amended the
proposed rule language to address this comment.
With regard to the MIS report, the Department is working with USCG
to mitigate potential confusion with MIS reporting for ferryboat
operators. The Department has reconfigured its web-based reporting
format. Specifically, FTA will identify FTA funded ferryboat employers,
and provide a separate method for the rest of the transit systems that
have no ferryboat operators, within the Drug & Alcohol Management
Information System (DAMIS), the Department's internet-based reporting
system. The industry already utilizes this system.
In DAMIS, these identified employers will receive a message upon
clicking on the ``Covered Employees'' tab. This message will instruct
them to separate the testing results of USCG/FTA covered employees from
FTA-only covered employees. To separate the results, an additional
employee category (Crewmembers) will appear on the screen. The message
will instruct the employer to report the drug and alcohol testing
results for USCG/FTA employees only within the Crewmember employee
category, and not to duplicate the data within FTA defined employee
categories.
Once the reporting process is complete and approved, USCG covered
tests (all but random alcohol) will be provided electronically to the
administrators of USCG testing program.
III. Regulatory Analyses and Notices
Statutory/Legal Authority for This Proposed Rulemaking
This rule is authorized under Section 3030 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: a Legacy
for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005). This section
amended Title 49 U.S.C. 5331(a)(3). This amendment provides for
departmental discretion in determining whether public transportation
safety-sensitive employees are adequately covered for drug and alcohol
testing purposes by one agency, when those employees are subject to the
drug and alcohol regulations of more than one agency within the
Department of Transportation (DOT) or the Coast Guard.
Executive Order 12866
Under Executive Order 12866, the Department must examine whether
this rule is a ``significant regulatory action.'' A significant
regulatory action is subject to OMB review and the requirements of the
Executive Order. A ``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) create 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 final rule codifies an existing agency interpretation, and,
therefore, will not impose costs to the industry of $120 million or
more annually, will not create an inconsistency, will not materially
alter the Federal financial assistance from FTA, and does not raise new
or novel legal or policy issues.
[[Page 69198]]
Accordingly, this final rule is a nonsignificant regulatory action
under section 3(f) of Executive Order 12866 and has not been reviewed
by OMB.
Executive Order 13132
FTA has analyzed this final rule in accordance with the principles
and criteria contained in Executive Order 13132 (Federalism). This
final rule does not include any provisions that have substantial direct
effect on the States, the relationship between the national government
and the States, or the distribution of power and responsibilities among
the various levels of government. Therefore, the consultation and
funding requirements of Executive Order 13132 do not apply.
Executive Order 13175
FTA finalized this rule in accordance with the principles and
criteria of Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments). This rule does not have tribal
implications, and does not impose direct compliance costs. Therefore,
the funding and consultation requirements of Executive Order 13175 do
not apply.
Executive Order 13272 and the 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 regulations. Of this
number, a small percentage is also subject to the D&A testing
regulations of FMSCA or the USCG. This final 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.
FTA analyzed this rule to assess its impact on small businesses and
other small entities to determine whether this rule will have a
significant economic impact on a substantial number of small entities.
This rule imposes no new costs because it merely permits jointly
regulated entities to comport with the drug and alcohol testing
procedures of only one agency. FTA hereby certifies that this final
rule will not have a significant economic impact on a substantial
number of small entities.
Paperwork Reduction Act
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 currently valid OMB control number.
This rule has information collection requirements that are covered
by the Office of the Secretary of Transportation (OST) paperwork
collection number 2105-0529. OST applied to renew that collection
number on August 4, 2006. (71 FR 44345, August 4, 2006).
Unfunded Mandates Reform Act of 1995
This rule it will not result in costs of $100 million or more
(adjusted annually for inflation), in the aggregate, to any of the
following: State, local, or Native American tribal governments, or the
private sector.
National Environmental Policy Act
The National Environmental Policy Act of 1969, (42 U.S.C. 4321-
4347) as amended), requires Federal agencies to consider the
consequences of major federal actions and prepare a detailed statement
on actions significantly affecting the quality of the human
environment. There are no significant environmental impacts associated
with this rule.
List of Subjects in 49 CFR Part 655
Alcohol abuse, Drug abuse, Drug testing, Grant programs--
transportation, Mass transportation, Reporting and recordkeeping
requirements, Safety, Transportation.
0
For the reasons described in the preamble, FTA amends part 655 to read
as follows:
PART 655--PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN
TRANSIT OPERATIONS
0
1. The authority citation for part 655 continues to read as follows:
Authority: 49 U.S.C. 5331; 49 CFR 1.51.
0
2. Amend Sec. 655.3 by revising the introductory text of paragraph (a)
and adding new paragraph (c) to read as follows:
Sec. 655.3 Applicability.
(a) Except as specifically excluded in paragraphs (b), and (c) of
this section, this part applies to:
* * * * *
(c) A recipient operating a ferryboat regulated by the United
States Coast Guard (USCG) that satisfactorily complies with the testing
requirements of 46 CFR Parts 4 and 16, and 33 CFR Part 95 shall be in
concurrent compliance with the testing requirements of this part. This
exception shall not apply to the provisions of section 655.45, or
subparts G, or H of this part.
0
3. Amend Sec. 655.83 by adding new paragraph (d) to read as follows:
Sec. 655.83 Requirement to Certify Compliance.
* * * * *
(d) FTA may determine that a recipient, who fails to comply with
the USCG chemical and alcohol testing requirements, shall be in
noncompliance with the alcohol misuse and controlled substances testing
requirements of this part. A finding of noncompliance by FTA may lead
to the suspension of eligibility for Federal public transportation
funding.
Issued in Washington, DC this 27th day of November 2006.
James S. Simpson,
Administrator, Federal Transit Administration.
[FR Doc. E6-20278 Filed 11-29-06; 8:45 am]
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