[Federal Register Volume 62, Number 189 (Tuesday, September 30, 1997)]
[Proposed Rules]
[Pages 51076-51078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25742]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Parts 653 and 654
[Docket No. FTA-97-2925]
RIN 2132-AA56
Prevention of Prohibited Drug Use in Transit Operations;
Prevention of Alcohol Misuse in Transit Operations
AGENCY: Federal Transit Administration, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In response to a request from a transit agency, the Federal
Transit Administration (FTA) proposes to allow employers to use the
results of post-accident drug and alcohol tests administered by State
or local law enforcement personnel when the State and local law
enforcement officials have independent authority for the tests and the
employer obtains the results in conformance with State and local law.
In short, in a very limited number of cases, the employer would be
relieved of administering post-accident drug and alcohol tests. If this
amendment is adopted, it could ease the burden of employers in testing
``safety-sensitive'' employees after an accident has occurred; it may
also relieve some ``safety-sensitive'' employees from taking
duplicative post-accident drug and alcohol tests.
DATES: Comments on this proposed rule must be submitted by December 1,
1997.
ADDRESSES: Written comments must refer to the docket number that
appears above and be submitted to the United States Department of
Transportation, Central Dockets Office, PL-401, 400 Seventh Street,
S.W. Washington, D.C. 20590. All comments received will be available
for inspection at the above address from 10 a.m. to 5 p.m., e.t. Monday
through Friday, except Federal holidays. Those desiring the agency to
acknowledge receipt of their comments should include a self-addressed
stamped postcard with their comments.
FOR FURTHER INFORMATION CONTACT: For program issues: Judy Meade,
Director of the Office of Safety and Security (202) 366-2896
(telephone) or (202) 366-7951 (fax). For legal issues: Nancy Zaczek,
Office of the Chief Counsel (202) 366-4011 (telephone) or (202) 366-
3809 (fax). Electronic access to this and other rules may be obtained
through FTA's Transit Safety and Security Bulletin Board at 1-800-231-
2061 or through the FTA World Wide Web home page at http://
www.fta.bts.gov; both services are available seven days a week.
SUPPLEMENTARY INFORMATION:
I. Background
On February 14, 1994, FTA issued 49 CFR parts 653 and 654, which
require recipients of certain categories of FTA funding to test safety-
sensitive employees for the use of five prohibited drugs and the misuse
of alcohol. In addition to five other types of testing, not relevant to
this discussion, the rules require employers to conduct post-accident
testing of certain safety-sensitive employees within eight hours of the
accident for the misuse of alcohol and within 32 hours for the use of
prohibited drugs. (The standards for determining which ``safety-
sensitive'' employees must be tested are set out in the rule and are
not relevant to this discussion.) If an employer cannot test
[[Page 51077]]
such employees within the specified time period, the rules require the
employer to prepare and maintain a record stating why such test was not
promptly administered.
On February 6, 1996, Mr. William Millar, as Executive Director of
the Port Authority of Allegheny County (Port Authority), asked FTA to
accept the results of a post-accident drug and alcohol test
administered by a State or local law enforcement official or emergency
medical personnel as meeting the requirements of FTA's drug and alcohol
rules, in other words, to ``federalize'' these locally administered
tests.
Mr. Millar's request was prompted by a collision between two buses
that had occurred on January 12, 1996 on the Martin Luther King Busway
in Pittsburgh, Pennsylvania. Mr. Millar described the accident as
follows:
At approximately 7:10 a.m., in adverse weather conditions, a bus
traveling from [d]owntown Pittsburgh crossed the center line and
collided with an inbound bus. The driver of the inbound vehicle was
killed. The operator of the outbound bus was severely injured and
taken to a local hospital for emergency surgery. He remained on the
hospital's `critical' list for approximately four days and underwent
additional surgery.
Due to the driver's medical condition and unconsciousness, Port
Authority's Drug and Alcohol Program personnel were unable to
conduct substance tests meeting federal standards. Nevertheless, it
appears that blood tests were taken on both operators which could
determine their use of alcohol or prohibited drugs. Reports from
local law enforcement officials have revealed that neither driver
had drugs or alcohol in their systems. However, if drugs or alcohol
had been found, Federal regulations make clear that tests
administered by either the hospital or law enforcement officials on
the surviving bus operator would not have met [F]ederal standards,
regardless of the quality of the hospital, the legality of the
police investigation or the proficiency of the laboratories used to
conduct the tests.
To remedy this situation, Mr. Millar suggested that FTA amend the
regulations to allow a ``post-accident medical emergency testing
procedure,'' which would include
(a) The permissible use by a public transit agency of a blood or
urine sample drawn by hospital personnel and submitted by the
transit agency to a laboratory certified by the Department of Health
and Human Services when the blood or urine is collected: (i) in the
course of routine medical procedures; or (ii) upon the request of
law enforcement or regulatory personnel; or (iii) upon the request
of authorized personnel of the transit agency's Drug and Alcohol
Program[.]
(b) The permissible use of blood or urine test results when said
tests, whether initiated by hospitals or law enforcement personnel,
meet the requirements of state law with respect to chain of custody
of the samples and medical certification or expertise of the
laboratories.
Mr. Millar further suggested that a post-accident medical emergency
be presumed by the employer whenever, following an accident involving
death or personal injury to any person:
(a) A covered employee has reported to or been transported to a
medical facility for the receipt of emergency medical care; or (b) a
covered employee is a patient in a medical facility and is
unconscious or substantially impaired to prevent testing by transit
agency personnel.
II. FTA's Response
As Mr. Millar's letter illustrates, conducting post-accident tests
within the timeframes specified by the rules is frequently difficult
and sometimes impossible. FTA provided for this situation by allowing
employers to prepare and maintain a record stating why a test was not
promptly administered. Mr. Millar's letter, however, highlights a
``gap'' in FTA's rules; in some instances, an employer may not be able
to test a ``safety-sensitive'' employee, although the employee has
undergone drug and alcohol tests administered by local police or by
medical personnel. Should the employer be able to use those results to
meet the requirements of the rules, and if so, under what
circumstances?
Mr. Millar suggested that an employer should be able to direct
medical personnel to perform blood, breath, and urine tests on
``safety-sensitive'' employees who are receiving medical treatment
after an accident has occurred. FTA, however, does not have the
authority to require medical personnel to perform these tests; hence,
we have not adopted this particular suggestion.
Mr. Millar further suggested that an employer be permitted to use
the results of any tests performed by medical personnel as part of the
routine post-accident medical examination of the ``safety-sensitive''
employee. Again, FTA does not have the authority to require medical
personnel to provide the results of these tests to the employer. Hence,
we do not propose to adopt this suggestion.
Mr. Millar also suggested that an employer use the results of any
tests conducted by State or local law enforcement personnel as part of
their accident investigation. This proposed amendment could strike a
reasonable balance: the ``safety-sensitive'' employee is protected by
the standards and procedures of State and local law, and the traveling
public is protected by allowing the employer to use the test results,
if necessary, to remove a ``safety-sensitive'' employee from his or her
``safety-sensitive'' position. However, it must be emphasized that the
tests must be conducted in conformance with State and local law and the
results be obtained by the employer in conformance with State and local
law.
Although FTA proposes this change to the rules, we do not believe
that employers would be able to use it frequently, based on the
experience of the Federal Highway Administration (FHWA). Currently,
FHWA allows employers to use the results of post-accident tests
conducted by State or local law enforcement officials if the employer
can obtain those results; because of privacy concerns, however,
employers frequently cannot obtain them. Moreover, this rule, if
adopted, could not provide an employer any authority to require the
police to perform the tests for the employer or to give the employer
the results of tests performed at the police's initiative.
In the few cases when the employer can obtain the results from the
police, this amendment could be extremely useful. First, it would allow
an employer to use the results of a blood test, which is not authorized
under FTA's rules. Second, an employer could use the test results, so
long as the test was administered in accordance with State or local
law, which means that the employer is not obligated, in this very
narrow class of cases, to follow the procedures specified in 49 CFR
part 40. In other words, for these cases, State or local law would
supersede part 40.
We seek comment on this proposed amendment.
III. Regulatory Analyses and Notices
This is not a significant rule under Executive Order 12866 or under
the Department's Regulatory Policies and Procedures. There are no
significant Federalism implications to warrant the preparation of a
Federalism Assessment. The Department certifies that this rule will not
have a significant economic impact on a substantial number of small
entities; allowing employers to use the results of a post-accident drug
and alcohol test administered by or under the direction of State or
local law enforcement personnel is unlikely to significantly increase
the costs for employers.
List of Subjects in 49 CFR Parts 653 and 654
Alcohol testing, Drug testing, Grant programs--transportation, Mass
transportation, Reporting and
[[Page 51078]]
recordkeeping requirements, Safety and transportation.
For the reasons set forth in the preamble, FTA proposes to amend
Title 49 Code of Federal Regulations, part 653 and 654 as follows:
PART 653--PREVENTION OF PROHIBITED DRUG USE IN TRANSIT OPERATIONS
1. The authority citation for part 653 continues to read as
follows:
Authority: 49 U.S.C. 5331; 49 CFR 1.51.
Sec. 653.45 [Amended]
2. Section 653.45 is amended by adding paragraph (d) to read as
follows:
* * * * *
(d) The results of a blood or urine test for the use of prohibited
drugs, conducted by Federal, State, or local officials having
independent authority for the test, shall be considered to meet the
requirements of this section, provided such tests conform to the
applicable Federal, State, or local testing requirements, and that the
test results are obtained by the employer.
PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS
3. The authority citation for part 654 continues to read as
follows:
Authority: 49 U.S.C. 5331; 49 CFR 1.52.
Sec. 654.33 [Amended]
4. Section 654.33 is amended by adding paragraph (d) to read as
follows:
* * * * *
(d) The results of a blood or breath test for the misuse of
alcohol, conducted by Federal, State, or local officials having
independent authority for the test, shall be considered to meet the
requirements of this section, provided such tests conform to the
applicable Federal, State, or local testing requirements, and that the
results of the tests are obtained by the employer.
Issued on: September 24, 1997.
Gordon J. Linton,
Administrator.
[FR Doc. 97-25742 Filed 9-29-97; 8:45 am]
BILLING CODE 4910-57-U
