Drug & Alcohol Newsletter Issue 18

 

U.S. Department of Transportation Federal Transit Administration Office of Safety and Security

 

FTA Drug And Alcohol Regulation Updates

Spring 2001 Issue 18

Introduction.... The Federal Transit Administration (FTA) published its final rules on prohibited drug use (49 CFR Part 653) and the prevention of alcohol misuse (49 CFR Part 654) on February 15, 1994. Shortly thereafter, the FTA published the Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit to provide a comprehensive overview of the regulations.

Since the Guidelines were published there have been numerous amendments, interpretations, and clarifications to the Drug and Alcohol testing procedures and program requirements.

This publication is being provided to update the Guidelines and inform your transit system of all of these changes. This Update is the eigthteenth in a series.

 

Inside....

 

Part 655 NPRM 2 - 5

Part 40 Clarifications 6 - 7

Resource Materials 8

 

 

Part 655 Proposed Rule Published On April 30, 2001, the Federal Transit Administration (FTA) published the 49 CFR Part 655 Notice of Proposed Rulemaking (NPRM) in Volume 66, Number 83, pages 21551-21593 of the Federal Register. Electronic access to this rule may be obtained through the FTA Office of Safety and Security home page at http://transit-safety.volpe.dot.gov or the Federal Register home page at http://www.nara.gov/fedreg.

 

The long awaited NPRM proposes to combine the FTA’s drug and alcohol testing regulations (49CFR Part 653 and Part 654, respectively) and to incorporate guidance that FTA has issued over the past several years including technical assistance, letters of interpretation, audit findings, newsletters, training classes and public speaking engagements. In addition, this NPRM proposes changes that are necessary to conform to the Department of Transportation’s (DOT) revised drug and alcohol testing rules promulgated at 49 CFR Part 40.

FTA encourages all interested parties to submit comments. Comments can be submitted in written or electronic form. Send written submissions to:

United States Department of Transportation Central Docket Office PL-401 400 Seventh Street, S. W. Washington, D.C. 20590

Send electronic submissions to: http://dms.dot.gov/submit/ All comments must be received by June 14, 2001 and refer to Docket # FTA-2000-8513. The public may review docket comments electronically at http://dms.dot.gov/submit/

A summary of the NPRM is provided on pages 2-5 of this newsletter. Readers should note that the NPRM is a proposed rule only and that the final rule expected to be published on or about August 1, 2001 may differ in content.

The basic provisions of the Part 655 NPRM remain substantially the same as those provided in Parts 653 and 654. However, the FTA has identified major issues for which it is requesting input. Commenters, however, need not limit their comments to these issues, but may comment on any portion of the NPRM’s content. Commenters are encouraged to provide documentation and support for their comments and to provide alternative suggestions for issues to which they take exception.

For further information on program issues contact Mark Snider of the Office of Safety and Security at (202) 366-2896 or e-mail at mark.snider@fta.dot.gov. For legal issues contact Bruce Walker of the Office of the Chief Counsel at (202) 366-4011 or e-mail at bruce.walker@fta.dot.gov.

 

2001 Random Rates Unchanged On March 8, 2001 the Federal Transit Administration (FTA) announced the 2001 random testing rates for employers subject to the FTA drug and alcohol rules. The notice was published in the Federal Register (Volume 66, Number 46, pages 13997-13998). The random test rate for drugs remains at fifty percent (50%) and the random test rate for alcohol remains at ten (10%). Several transit systems were confused about the rate following an error in a widespread news alert that mistakenly reported the alcohol random test rate at twenty-five percent (25 %). This report is incorrect and should be disregarded. The Federal Register is the only official publication of the Federal government that communicates official notices and regulations and should be accessed directly to obtain official information. Federal Register publications can be accessed at http://www.nara.gov/fedreg.

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Page 2

FTA Drug and Alcohol Regulation Updates Issue 18, page 2 FOR YOUR INFORMATION

Where To Find?.....

49 CFR Part 653 , Prevention of Prohibited Drug Use in Transit Operations February 15, 1994 Federal Register Vol. 59 Pages 7572-7611

Amended: August 2, 1995 Federal Register Vol. 60 Pages 39618-39620

Primary Topic: Exemption of Volunteers and Post-Accident Testing Provision December 8, 1998 Federal Register Vol. 63 Pages 61612 - 67613 Primary Topic: Use of Law Enforcement Post-Accident Test Results

March 8, 2001 Federal Register Vol. 66 Pages 13997 - 13998 Primary Topic: Random Drug Testing Rate at 50%

January 5, 1999 Federal Register Vol. 64 Pages 425-427

Primary Topic: Safety-sensitive Maintenance Functions

Technical Corrections: March 6, 1995 Federal Register Vol. 60 Pages 12296-12300 Primary Topic: Corrections and Clarifications

The information presented on this page should be used to update Chapter 2 of the Implementation Guidelines

 

Part 655 - NPRM Proposed Modifications The proposed rule does not differ substantially from the existing rules (49 CFR Parts 653 and 654). The proposed rule would still apply to recipients of FTA funds under 49 U.S.C. 5307, 5309, and 5311 as well as 23 U.S.C. 103(e)(4). This includes Metropolitan Planning Organizations (MPOs) or States that fund or manage transit providers. Similarly, the NPRM would require each employer covered under the FTA regulations to conduct a multi-faceted anti-drug and alcohol misuse testing program and condition financial assistance on the implementation of a compliant program.

Basic Components The basic components of the regulation including the testing of safety-sensitive employees for the use of controlled substances and the misuse of alcohol, and the requirement for a policy statement, education, and consequences remain virtually the same. The five illegal drugs that are prohibited (i.e., marijuana, cocaine, amphetamine, opiates, and phencyclidine) are the same as are the five testing categories (i.e., pre-employment, random, reasonable suspicion, return-to-duty, and follow-up). Pre-employment alcohol testing is not required, but is encouraged. The NPRM, however, proposes to modify some requirements and seeks input on others. Among the most important changes is the inclusion by reference of the revised procedures for Transportation Workplace Drug and Alcohol Testing Programs, promulgated at 49 CFR Part 40. These regulations were published on December 18, 2000 and will go into effect on August 1, 2001.

Definintions Additionally, the NPRM introduces the term “employer” to refer to both small and large operators, as well as entities providing service under contract or other arrangement with the transit operator. The term employer also includes State recipients that pass FTA funds to subrecipients and grantees that have contractors performing transit operations. As employers, States and grantees will now have access to their subrecipient’s or contractor’s individual employee test records thereby facilitating their ability to effectively oversee those for which they must certify compliance. The NPRM also clarifies that the FTA regulations apply to taxi-cab companies that perform safety-sensitive functions for FTA recipients/subrecipients when the transit patron has only one or two specified companies to choose from. FTA regulations do not apply to taxi-cab drivers when passengers in a user-side subsidy program can choose from a variety of taxi-cab companies (more than two). Thus, the regulations do not apply to taxi companies that only incidentally provide transit service. The NPRM also reconfirms FTA’s position on the definition of safety-sensitive maintenance functions. In January 1999, FTA expanded its definition of maintenance du ties to include all workers who overhaul and rebuild engines, vehicles, and parts. The NPRM maintains this definition and further clarifies that this definition also extends to maintenance contractors under the FTA urban funding programs. The exemption of Section 5311 (rural) maintenance contractors was maintained. The definition of performing a safety-sensitive function was added and specifies that a covered employer is considered to be performing a safety-sensitive function and includes any period in which he or she is actually performing, ready to perform, or immediately available to perform such functions. The last portion of this definition, “immediately available to perform safety-sensitive functions” is new to the FTA rule.

Stand-down Consistent with the stand-down waiver procedures defined in the revised 49 CFR Part 40 regulations, (see Article on Page 46 FTA has added a subsection (Section 655.5) to the NPRM on the FTA waiver procedures.

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Page 3

Part 655 NPRM FTA Drug and Alcohol Regulation Updates Issue 18, page 3

Part 655 - NPRM Proposed Modifications The proposed rule does not differ substantially from the existing rules (49 CFR Parts 653 and 654). The proposed rule would still apply to recipients of FTA funds under 49 U.S.C. 5307, 5309, and 5311 as well as 23 U.S.C. 103(e)(4). This includes Metropolitan Planning Organizations (MPOs) or States that fund or manage transit providers. Similarly, the NPRM would require each employer covered under the FTA regulations to conduct a multi-faceted anti-drug and alcohol misuse testing program and condition financial assistance on the implementation of a compliant program.

Basic Components

The basic components of the regulation including the testing of safety-sensitive employees for the use of controlled substances and the misuse of alcohol, and the requirement for a policy statement, education, and consequences remain virtually the same. The five illegal drugs that are prohibited (i.e., marijuana, cocaine, amphetamine, opiates, and phencyclidine) are the same as are the five testing categories (i.e., pre-employment, random, reasonable suspicion, return-to-duty, and follow-up). Pre-employment alcohol testing is not required, but is encouraged.

The NPRM, however, proposes to modify some requirements and seeks input on others. Among the most important changes is the inclusion by reference of the revised procedures for Transportation Workplace Drug and Alcohol Testing Programs, promulgated at 49 CFR Part 40. These regulations were published on December 18, 2000 and will go into effect on August 1, 2001.

Definintions

Additionally, the NPRM introduces the term “employer” to refer to both small and large operators, as well as entities providing service under contract or other arrangement with the transit operator. The term employer also includes State recipients that pass FTA funds to subrecipients and grantees that have contractors performing transit operations. As employers, States and grantees will now have access to their subrecipient’s or contractor’s individual employee test records thereby facilitating their ability to effectively oversee those for which they must certify compliance.

The NPRM also clarifies that the FTA regulations apply to taxi-cab companies that perform safety-sensitive functions for FTA recipients/subrecipients when the transit patron has only one or two specified companies to choose from. FTA regulations do not apply to taxi-cab drivers when passengers in a user-side subsidy program can choose from a variety of taxi-cab companies (more than two). Thus, the regulations do not apply to taxi companies that only incidentally provide transit service.

The NPRM also reconfirms FTA’s position on the definition of safety-sensitive maintenance functions. In January 1999, FTA expanded its definition of maintenance du ties to include all workers who overhaul and rebuild engines, vehicles, and parts. The NPRM maintains this definition and further clarifies that this definition also extends to maintenance contractors under the FTA urban funding programs. The exemption of Section 5311 (rural) maintenance contractors was maintained.

The definition of performing a safety-sensitive function was added and specifies that a covered employer is considered to be performing a safety-sensitive function and includes any period in which he or she is actually performing, ready to perform, or immediately available to perform such functions. The last portion of this definition, “immediately available to perform safety-sensitive functions” is new to the FTA rule.

Stand-down

Consistent with the stand-down waiver procedures defined in the revised 49 CFR Part 40 regulations, (see Article on Page 46 FTA has added a subsection (Section 655.5) to the NPRM on the FTA waiver procedures.

Testing Rate Remains The Same The drug and alcohol random testing rates for employers subject to FTA drug and alcohol testing rules will remain the same for calendar year 2001. Thus, random drug tests must be conducted at a fifty percent rate and random alcohol tests must be conducted at a ten percent rate. The random rates are established each year based on the previous two-year industry-wide test results. The industry test results are determined from the MIS reports submitted each year by individual FTA covered employers. The official FTA notice of the drug and alcohol random test rates for 2001 will soon be published in the Federal Register and on FTA’s homepage at http://transit-safety.volpe.dot.gov.

MIS Reports The 2000 FTA Drug and Alcohol MIS reporting material packages were mailed on December 15, 2000. The packages included the MIS forms, reporting software and instructions. Grantees and State DOTs are responsible for the distribution of copies to their contractors and subrecipients, respectively. Additional reporting materials can be downloaded from the Drug and Alcohol MIS (DAMIS) web site http://transit- safety.volpe.dot.gov/DAMIS or can be obtained by calling the Drug and Alcohol MIS Project Office at (617) 494-6336. Completed MIS data forms or their diskette equivalent must be submitted to the Drug and Alcohol MIS Project Office by March 15, 2001. FTA encourages employers to submit electronically if possible to facilitate report submission, validation, and analysis. Electronic submissions can also be processed more quickly and can minimize data entry and manipulation errors. Employers are instructed to follow the reporting directions precisely and review the data request terminology to avoid possible reporting mistakes and subsequent follow-up calls by data analysts. If your submittal includes any entries that require additional explanation, please attach a letter of explanation. Where To Find?..... 49 CFR Part 654, Prevention of Alcohol Misuse in Transit Operation February 15, 1994 Federal Register Vol. 59 Pages 7532-7571

Amended: May 10, 1995 Federal Register Vol. 60 Pages 7572-7611 Primary Topic: Suspension of Pre-employment Alcohol Testing

August 2, 1995 Federal Register Vol. 60 Pages 39618-39620 Primary Topic: Exemption of Volunteers and Post-Accident Testing Provision

December 8, 1998 Federal Register Vol. 63 Pages 61612-67613 Primary Topic: Use of Law Enforcement Post-Accident Test Results

December 14, 1998 Federal Register Vol. 63 Pages 68818-68819 Primary Topic: Random Alcohol Testing Rate at 10%

January 5, 1999 Federal Register Vol. 64 Pages 425-427 Primary Topic: Safety-Sensitive Maintenance Functions

Technical Corrections: March 6, 1995 Federal Register Vol. 60 Pages 12296-12300 Primary Topic: Corrections and Clarifications

 

The information presented on this page should be used to update Chapters 9 of the Implementation Guidelines.

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Page 4

FTA Drug and Alcohol Regulation Updates Issue 18, page 4 Part 655 NPRM

Where To Find?..... CFR Part 40, Procedures for Transportation Workplace Drug Testing Programs

 

Revised: December 19, 2000 Federal Register Vol. 65, Pages 79462 - 79579. Primary Topic: Procedures for Transportation Workplace Drug and Alcohol Testing Program Revised Final Rule (49 CFR Part 40)

The information presented on this page should be used to update Chapter 2 of the Implementation Guidelines

 

 

Topic 49 CFR Parts 653 and 654 Proposed Part 655 Applicability Recipients of 49 U.S.C. 5307, 5311, and 23 U.S.C. 103(e)(4) Same (655.3) Stand Down Waivers None Procedure defined (655.5), refers to 49 CRF Part 40.21 Pre-emption Pre-empts contradictory or incompatible State and local laws Same (655.6) Program Requirements - Policy statement - Education and training - Testing program - SAP referral - Minimum requirements (655.16) - Same (655.14) - Refers to 49 CFR Part 40 - Refers to 49 CFR Part 40 Drug Testing Marijuana, cocaine, opiates, amphetamine, PCP, prohibited at all times Same (655.21) Alcohol Testing Prohibit alcohol concentrations of .04 or greater; on-duty use performing safety-sensitive duty, 4 hour prior; on call; 8 hours following an accident Same (655.31, 655.34) Removal from duty if BAC is greater than 0.02 but less than 0.04 Same (655.35) Types of Testing Pre-employment Drug Test - Prior to hire - Prior to performance of safety-sensitive function - Non-performance of safety-sensitive function in 90 days and in random pod (655.41) Pre-employment Alcohol Test - Not required - Not required, but allowed, specified procedure (655.42) Reasonable Suspicion - Decision made by a trained supervisor - Employees are prohibited from requiring two or more trained supervisors to participate in referral (655.43) Post-Accident Testing - Fatal Accident - Non-fatal Accidents - Disabling damage or immediate transport to medical treatment and employee cannot be completely discounted - Same (655.44) - Same - Decision making process must be documented (655.43) Random Testing - Rates determined each year based on industry experience - Spread reasonably through year - Same (655.45) - Same, plus spread through all time worked Random Testing - Rates determined each year based on industry experience - Spread reasonably through year - Same (655.45) - Same, plus spread through all time worked Return to Duty - Recommended by SAP following treatment - Same, refer to 49 CFR Part 40 (655.46) Follow-up testing - Minimum 6 test during the first year - Up to 60 months - Same, refer to 49 CFR Part 40 (655.47) Test Refusal Refusal to provide a specimen wihtout a valid medical explanation Expanded, refer to 49 CFR Part 40 (655.49) Substance Abuse Professional Referral required following positive test or test refusal Refer to 49 CFR Part 40 (655.52) Consequence Removal from safety-sensitive duties, referral to SAP Same (655.61 - 655.62) Retention of Records MIS Reports One, two, and five year requirements - Annual report preparation - Submit to FTA annually Same (655.71) - Same (655.72) - Submit upon FTA approval Information Disclosure Limited - requires employee written report unless specified in regulation Same (655.73 Certifying Compliance Condition of financial assistance annual certification Same (655.82)

 

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Page 5

Part 655 NPRM FTA Drug and Alcohol Regulation Updates Issue 18, page 5

Part 655 NPRM – Input Request In addition to consolidating the FTA drug and alcohol testing regulations (49 CFR Parts 653 and 654), incorporating 49 CFR Part 40, and proposing minor modifications to the regulation, the Part 655 NPRM also solicits information and input from covered employers on several major issues.

Dispatchers First, FTA is requesting input from interested parties on the duties and responsibilities of dispatchers as they are performed at different transit systems. FTA is aware that the job title “dispatcher” is very widespread, but that job duties can vary significantly between employers. Therefore, FTA is seeking this information to determine whether the duties and responsibilities vary significantly enough to warrant modification of the current blanket rule.

Multi-Provider Systems FTA is also seeking input on whether in multi-provider systems there is a difference between the patron choosing the provider (i.e., user-side subsidy systems) and the grantee or broker choosing the provider. FTA has historically acknowledged the practical difficulty of administering a drug and alcohol testing program to service providers in a user-side subsidy program where there are multiple service providers. FTA seeks input on whether this same practical difficulty exists when a broker chooses between a limited number of service providers.

Access To Records The NPRM also requests comments on access to facilities and records in relation to grantees and States that are attempting to exercise oversight responsibility on their subrecipients and safety-sensitive contractors. FTA is also seeking input on whether State or local regulatory agencies should have access to drug and alcohol testing results. Of special concern are State agencies that are responsible for issuing Commercial Driver’s Licenses. Similarly FTA seeks comments on whether employees should be permitted to release employer data from its drug and alcohol testing programs to local law enforcement officials.

Cease Use of Old Custody & Control Forms by August 1

The Substance Abuse and Mental Health Services Administration (SAMHSA) revised the Federal Drug Testing Custody and Control Form (CCF) in the summer of 2000 to make it easier to use and to standardize the test result reporting methodology. Subsequently, the Department of Transportation announced that covered employers were permitted to use the new CCF as of August 1, 2000 and would be required to use them by August 1, 2001.

Drug and Alcohol Testing EquipmentMany employers and collections sites still have a large supply of the old forms and have not received any supplies of the new forms. In addition, many are unaware of the August 1, 2001 deadline and have made no provisions for obtaining or using the new forms.

Given the approaching deadline, it is recommended that transit employers proactively address this issue with their respective collection sites and laboratories to ensure that the requisite forms are available in sufficient quantity and that all collectors have been trained in their use by the deadline to ensure compliance.

Where To Find?..... DHHS Labs

The current list of DHHS certified labs is published the first week of each month and is printed in the Federal Register under the Substance Abuse and Mental Health Services Administration heading (SAMHSA). Only those labs certified can be used for FTA drug testing. The list should be checked monthly as new labs are being added and others are being removed.

Website location: http:/www.health.org/workplace

To verify the certification status of laboratory, DHHS has established a telephone HELPLINE (800) 843-4971.

Conforming Products List Evidential Breath Testing (EBT) Devices July 21, 2000 Federal Register Vol.65 Pages 45419 - 45423 Primary Topic: Conforming Products List (CPL) Website location: www.nhtsa.gov/people/injury/alcohol Note: This list will be updated periodically.

 

Non-evidential Testing Devices May 4, 2001 Federal Register Vol.66 Pages 22639 - 22640 Primary Topic: Initial Alcohol Screening Devices

Note: This list will be updated periodically.

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Page 6

FTA Drug and Alcohol Regulation Updates Issue 18, page 6 Part 40 Clarifications

Q & A Q: With Part 40 requiring that employers obtain 2 years of previous DOT testing for potential employees, is a pre-employment test required when the records show that the applicant has been in a testing program without any violations?

 

A: Yes. The FTA requires that a pre-employment test is conducted anytime an employee is moved into an FTA safety-sensitive position. There are no waivers of FTA pre-employment drug tests.

 

 

The information presented on this page should be used to update Chapter 7 & 8 of the Implementation Guidelines.

 

Stand-down Prohibition Clarification Several new provisions were introduced in the U.S. Department of Transportation (DOT) revised drug and alcohol testing rule (49 CFR Part 40) that was published on December 19, 2000 (See Issue 17 of the Updates). One provision that has resulted in confusion and misunderstanding within the transit industry is the introduction of stand-down waivers. The term “stand-down” refers to an employer practice of temporarily removing an employee from the performance of safety-sensitive duties upon learning that the individual had a confirmed laboratory positive drug test, but before the MRO has completed the verification process.

Stand-downs have always been prohibited under the DOT regulations and continue to be so under the new rules. MROs are not permitted to inform employers of a laboratory positive test until the MRO has determined personnel meeting roomif there is a legitimate medical explanation for the test result and verified the test as either positive or negative. The preamble to the rule explains that standing-down the employee before the MRO verification process is complete is premature, could be considered to undercut the rationale for the MRO review, has the potential to compromise confidentiality and may result in unfair stigmatization of the employee as a drug user.

Recognizing, however, that some employers advocate stand-downs as a means to enhance safety and reduce liability, the new rule (Section 40.21) includes a mechanism for employers, on a case-by-case basis, to seek waivers if certain conditions are met. Specifically, the employer must have a well-founded stand-down plan that effectively protects the interests of the employees including confidentiality and must be based on a sound factual basis that represents a genuine and plausible safety concern. The FTA anticipates that few transit employers will be able to meet the stringent requirements delineated in the waiver request process, and therefore, will not result in a policy or procedural change by most transit employers. Some of the confusion about this issue has resulted from employers who have policies that require employees to be removed from service pending drug and alcohol test results following accidents and reasonable suspicion determinations. This practice is not considered a stand-down under the DOT rule, as the “incident” was the reason for the person being removed from duty not the laboratory test result. In this case the employer has no knowledge of the drug test result, only that a drug test was required.

Similarly, employers have been confused by how the stand-down prohibition relates to the practice of removing employees from duty following a non-negative test result (i.e., positive, adulterated, substituted) while awaiting the split specimen test result. Once, the MRO has completed the review process and verified a test as positive/non-negative, the employer is required to immediately remove the employee from safety-sensitive duties.

The employee’s removal cannot be delayed while awaiting the split specimen result. This is not a stand-down as defined in the DOT rule as the laboratory test result has already been verified by the MRO before the employer is notified of the test result.

Under the DOT rule, the prohibition of stand-downs is narrowly defined and associated with the notification of the employer of a positive laboratory test result without MRO verification. This provision does not impede on employer’s polices that require the removal of employees from safety-sensitive duties for any other reason not specifically addressed in the regulation.

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Page 7

Part 40 Clarifications FTA Drug and Alcohol Regulation Updates Issue 18, page 7

Previous DOT Employer Record Check In Section 40.25 of the revised Part 40, the rule states that all DOT covered employers must make good faith efforts to obtain drug and alcohol testing records for the previous two years for all applicants seeking safety-sensitive positions. This provision goes into effect on August 1, 2001 and requires that employers do the following.

Require each applicant or employee transfers for safety–sensitive positions to complete a written consent that allows their previous employers to release drug and alcohol testing information to you. If the applicant/transferee refuses to provide this written consent, you must not permit him/her to perform safety-sensitive functions. Submit the applicants/transferee’s written consent along with a request for information to each of the DOT-regulated employers who have employed the applicant/transferee during any period during the two years before the date of the employee’s application or transfer. The information that must be sought includes 1) alcohol test results of 0.04 alcohol concentration or greater; 2) verified positive drug tests; 3) refusals to test; 4) other violations of FTA/DOT rules; and, 5) as appropriate, documentation of the successful completion of DOT return-to-duty requirements including follow-up tests. If the previous employer does not have this information, this documentation must be sought from the employee. If feasible, you must obtain and review this information before the employee first performs safety-sensitive functions. If this is not possible, you must make and document a good faith effort to obtain the information. If you have not made a good faith effort, you must not allow the employee to perform safety-sensitive functions after 30 days from the date on which the employee first performed safety-sensitive job duties. You must also ask all applicants/transferees whether he/she has tested positive, or refused to test, on any DOT pre-employment drug or alcohol test administered by a DOT covered employer for which they didn’t get the job within the past two years. If the information obtained from a previous employer includes any drug or alcohol test information that indicates a non-negative test result or violation of the DOT /FTA regulations, you must not use the employee to perform safety-sensitive duties unless you have obtained documentation that the employee has complied with the return-to-duty requirements including SAP assessment, successful treatment, negative return-to-duty test and follow-up tests. All information received and documentation of good faith efforts must be kept as a confidential record and maintained for a minimum of three years. Likewise, if you are requested to provide information regarding a previous employee and the employee has provided written consent, you are required to provide the requested information. The information must be released in a confidential manner and you must maintain a written record of the information released.

Alcohol Testing Procedures Clarified Previously, FTA had asserted that the Breath Alcohol Technician (BAT)/Screen Test Technician (STT) was only to allow the employee two attempts to provide an adequate specimen of breath under the DOT alcohol testing rules. The revised rule (49 CFR Part 40.265) clarifies the requirement by specifying that following an initial unsuccessful attempt to provide an adequate volume of breath, the BAT/STT must attempt again to provide a breath specimen. If the employee again attempts and fails to provide a sufficient amount of breath, the BAT/STT “may provide another opportunity to the employee to do so” if the BAT/STT believes that there is a strong likelihood that it could result in providing a sufficient amount of breath. Thus, the BAT is provided discretion on how many attempts can be allowed. Further clarification by authors of the revised rule indicate that there is no set limit on the maximum number of attempts, but rather the BAT/STT may provide other opportunities as they deem are necessary to obtain the breath specimen. Please note that this article clarifies an earlier article reported on page 7 of Issue 16 of the Updates that incorrectly stated that the number of attempts to conduct an alcohol test were limited to three. This revision will become effective on August 1, 2001. Q & A

Q: Who do I contact to receive back issues of the Newsletters, training videos and other resource information?

A: You can access the FTA website at transit-safety. fta.dot.gov or fax your requests to the FTA Office of Safety & Security at (202) 366-7951.

The information presented on this page should be used to update Chapter 7 & 8 of the Implementation Guidelines.

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Page 8

FTA Drug and Alcohol Regulation Updates Issue 18, page 8 Resource Materials

Who Should Be Receiving This Update? In an attempt to keep each transit system well informed, we need to reach the correct person within each organization. If you are not responsible for your system’s Drug and Alcohol program, please forward this update to the person(s) who is and notify us of the correct listing. If you know of others who would benefit from this publication, please contact us at the following address to include them on the mailing list. This publication is free.

RLS & Associates, Inc. 3131 South Dixie Hwy., Ste. 545 Dayton, Ohio 45439 Phone: (937) 299-5007 FAX: (937) 299-1055 rlsasc@mindspring.com Designated Employer Representative Defined FTA home page: www.fta.dot.govwww.fta.dot.gov FTA Office of Chief Counsel: www.fta.dot.gov/office/counsel FTA Office of Safety & Security: http://transit-safety.volpe.dot.gov FTA Letters of Interpretation: www.fta.dot.gov/library/legal DHHS-Certified Laboratories: Center for Substance Abuse Prevention: www.health.org/labs/index.htm

FTA, Office of Safety and Security: (202) 366-2896 Drug and Alcohol Consortia Manual Drug and Alcohol Testing Results: 1995, 1996, 1997, 1998, and 1999 Annual Reports Random Drug Testing Manual Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit Identification of Drug Abuse and/or Alcohol Misuse in the Workplace: An Interactive Training Program

USDOT Drug and Alcohol Documents FAX on Demand: 1 (800) 225-3784 USDOT, Office of Drug and Alcohol Policy and Compliance: (202) 366-3784 Urine Specimen Collection Procedures Guideline Substance Abuse Professional Guidelines Produced by: FTA - Office of Safety and Security 400 7th Street SW Washington, DC 20590 Published by: USDOT-John A. Volpe National Transportation Systems Center Kendall Square Cambridge, MA 02142 Edited by: RLS & Associates, Inc. 3131 South Dixie Highway Suite 545 Dayton, OH 45439 Illustrated by: Dan Muko

RLS & Associates, Inc. 3131 S. Dixie Hwy, Ste 545 Dayton, OH 45439 Return Service Requested Presorted Standard U.S. Postage PAID Dayton, OH Permit 1012

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