FTA Drug And Alcohol Regulation Updates
Summer 2002 Issue 22
The Federal Transit Administration (FTA) published its revised rule on prohibited drug use and the prevention of alcohol misuse (49 CFR Part 655) on August 1, 2001. The FTA published the revised 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 these changes. This Update is the twenty-second in a series.
Following the publication of the original FTA drug and alcohol regulations (49 CFR Parts 654 and 655), FTA published the Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit to provide a comprehensive overview of the regulations. The Guidelines were well received and proved to be an essential tool for transit agencies formulating their new drug and alcohol testing programs.
Since the Guidelines were first published, the FTA regulations were revised and consolidated into one regulation (49 CFR Part 655) and the DOT drug and alcohol testing procedures regulation (49 CFR Part 40) was expanded and significantly revised. In addition, numerous letters of interpretation, and clarifications to the testing procedures and program requirements have been issued. Consequently, the Guidelines were updated to reflect these changes and to clarify points of confusion that have often troubled transit agencies.
The Guidelines were written to assist new FTA-covered employers institute compliant programs and to assist existing employers with well-established programs assess their level of compliance, validate policies and procedures, and identify areas that require modification based on the revised rules. They provide a comprehensive, up-to-date summary of the regulatory requirements, incorporating into one publication all the guidance FTA has issued over the past several years through technical assistance, letters of interpretation, audit findings, newsletters, training classes, and public speaking engagements. The Guidelines explain the various elements of a compliant program and contain decision trees, timelines, flowcharts, forms and other graphic tools to clarify the requirements.
All Section 5307, 5309 and state grantees will be mailed one hard copy of the Guidelines. The manuals will be three-hole punched and shrink wrapped for ease of placement in a three-ring binder. Grantees including state DOTs are encouraged to make hard copies of the manual available to their sub-recipients. Grantees and sub-recipients will be provided copies of the manual in PDF format on CD-ROMs.
The text and appendices are already available on the FTA Office of Safety and Security website ( http://transit-safety.volpe.dot.gov) in both PDF and html format. In the future, the website will provide links from the text to the appendices, regulatory text and Best Practices manual for easy reference. The Best Practices manual published earlier this year, provides “real world” examples of policies, procedures, sample forms, and approaches that transit employers have used successfully to manage their programs. Together, these two companion manuals provide a comprehensive guide to the FTA drug and alcohol testing program.
The FTA has begun an initiative to increase awareness of the possible dangers associated with prescription (Rx) and over-the-counter (OTC) medication use in the transit industry. As part of this initiative, each issue of this newsletter will feature a section on Rx/OTC medications and the potential hazards associated with their use. The section will include best practices, policy and procedure guidance, alerts regarding potentially dangerous substances, and resources where additional information can be found. The Rx/OTC feature section can be found on Page 5 of this newsletter.
FTA Drug and Alcohol Regulation Updates Issue 22, page 2
49 CFR Part 655, Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations
August 9, 2001 Federal Register Vol. 66 Pages 41996 - 42036
Notice of Interpretation: April 22, 2002 Federal Register Vol. 67, Pages 19615-19616 Primary Topic: FTAA/USCG regulation applicability to ferry boats.
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)
Technical Amendments: August 1, 2001 Federal Register Vol. 66 Pages 41943-41955 Primary Topic: Clarifications and Collections to Part 40; Common Preamble to Modal Rules
The information presented on this page should be used to update Chapter 2 of the Implementation Guidelines. DOT Provides Sample Release of Information Form All employers covered under the DOT drug and alcohol testing regulations are required to obtain consent from each applicant for a safety-sensitive position to obtain test results from his/her previous DOT-covered employers for the previous two years (49 CFR Part 40.25). To facilitate this process the DOT has developed and published a standardized form to be used for this purpose. A copy of this form in its entirety is provided on page 3 of this newsletter. In addition, the sample release form is posted on the DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) website and can be downloaded at http://www.dot.gov/ost/dapc/. Click on Program Guidance material, then on Sample Release of information form under General Information.
On April 22, 2002, FTA published a notice of interpretation in the Federal Register (Volume 67, Number 77, Pages 19615-19616) that changed the applicability of the FTA drug and alcohol testing regulations to FTA funded ferry boat operators. Previously, ferry boat operators were required to comply with both the FTA and the U. S. Coast Guard (USCG) regulations. Even though the rules are similar, there is enough difference that made compliance difficult and confusing. Consequently, an interpretation was made that considers FTA funded ferry operations that comply with the relevant USCG drug and alcohol testing regulations (46 CR Part 4 and 16, and 33 CFR Part 95) to be in concurrent compliance with the FTA drug testing requirements set forth in 49 CFR Part 655. Since the USCG does not have a random alcohol testing provision that is similar to FTAs, the ferry boat operators, however, are still required to comply with FTA’s random alcohol testing requirements defined in §655.45.
If a ferry boat operator fails to be in compliance with the USCG testing regulations or the FTA random alcohol testing regulations, the operator will be deemed to be in noncompliance of 49 CFR Part 655 and may have its FTA funding suspended. The employee will also be subject to FTA consequences including removal from duty and SAP referral for rule violations (e.g. a test refusal, verified positive drug test result, or a confirmed alcohol test result of 0.04 or greater).
This interpretation applies only to the FTA drug and alcohol testing regulations and does not waive any other regulatory authority that FTA has over ferry boat operators that receive FTA funding.
FTA has consistently stated that an employee must remain subject to random testing any time during his or her work shift, including just prior to the shift end, as long as the employer has provided prior notification. However, in a Letter of Interpretation dated March 26, 2002 and addressed to the Amalgamated Transit Union, FTA Chief Counsel, William P. Sears, stated that even though the statutory requirement to conduct random drug and alcohol testing is not subject to collective bargaining, the employer has limited discretion regarding the scheduling of random tests. Therefore, “union and management are not precluded from negotiating a process for employees who provide advance, verifiable notice of scheduled medical or childcare commitments, to be tested no later than three hours before the shift ends.” Mr. Sears went on to clarify, however, that any negotiated process cannot excuse a covered employee from random testing once selected, nor should it extend to an employee who has not provided advance, verifiable notice of a previously scheduled commitment to the employer. For this and other letters of interpretation go to www.fta.dot.gov/library/legal.
Section I. To be completed by the new employer, signed by the employee, and transmitted to the previous employer:
Employee Printed or Typed Name: ______________________________________________
Employee SS or ID Number: ___________________________________________________
I hereby authorize release of information from my Department of Transportation regulated drug and alcohol testing records by my previous employer, listed in Section I-B, to the employer listed in Section I-A. This release is in accordance with DOT Regulation 49 CFR Part 40, Section 40.25. I understand that information to be released in Section II-A by my previous employer, is limited to the following DOT-regulated testing items: 1. Alcohol tests with a result of 0.04 or higher; 2. Verified positive drug tests; 3. Refusals to be tested; 4. Other violations of DOT agency drug and alcohol testing regulations; 5. Information obtained from previous employers of a drug and alcohol rule violation; 6. Documentation, if any, of completion of the return-to-duty process following a rule violation.
Employee Signature: ____________________________________________________
I-A. New Employer Name: _________________________________________________________________________
Address: __________________________________________________________________________________ __________________________________________________________________________________
Phone #: ____________________________________ Fax #: _________________________________________ Designated Employer Representative: ____________________________________________________________
I-B. Previous Employer Name: _____________________________________________________________________
Address: __________________________________________________________________________________ ___________________________________________________________________________________
Phone #: ____________________________________ Fax #: _________________________________________ Designated Employer Representative (if known): ____________________________________________________
Section II. To be completed by the previous employer and transmitted by mail or fax to the new employer: II-A. In the two years prior to the date of the employee’s signature (in Section I), for DOT-regulated testing ~
1. Did the employee have alcohol tests with a result of 0.04 or higher? YES ____ NO ____ 2. Did the employee have verified positive drug tests? YES ____ NO ____ 3. Did the employee refuse to be tested? YES ____ NO ____ 4. Did the employee have other violations of DOT agency drug and alcohol testing regulations? YES ____ NO ____ 5. Did a previous employer report a drug and alcohol rule violation to you? YES ____ NO ____ 6. If you answered “yes” to any of the above items, did the employee complete the return-to-duty process? N/A____ YES ____ NO____
NOTE: If you answered “yes” to item 5, you must provide the previous employer’s report. If you answered “yes” to item 6, you must also transmit the appropriate return-to-duty documentation (e.g., SAP report(s), follow-up testing record).
II-B. Name of person providing information in Section II-A: ______________________________
Phone #: ________________________________________
FTA Drug and Alcohol Regulation Updates Issue 22, page 4
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.
The information presented on this page should be used to update Chapter 1 of the Implementation Guidelines. FTA Announces Seminar Schedule
FTA will provide a series of briefing sessions on Part 655 throughout the coming year. The sessions will update participants on regulatory changes and provide them with the technical knowledge necessary to modify their drug and alcohol testing programs to ensure compliance with the new rule. The sessions will update participants on the status of validity testing, MIS reporting requirements, and current regulatory interpretations. The sessions will also include a discussion of the hazards associated with the use of prescription and over-the-counter medications by safety-sensitive employees and provide suggestions for employer/employee response. The briefings will be free with attendees responsible for their own travel and accommodations. Representatives from the FTA Office of Safety and Security will serve as the presenters. The schedule of dates and locations of the briefings is presented below.
City and State Date City and State Date St. Paul, MN October 8, 2002 Orlando, FL February 13, 2003 Denver, CO November 13, 2002 Hickory, NC March 11, 2003 Oakland, CA December 10, 2002 Philadelphia, PA April 24, 2003 Los Angeles, CA December 12, 2002 Beloit, WI May 6, 2003 Worcester, MA January 14, 2003 Fort Worth, TX May 13, 2003 Jacksonville, FL February 11, 2003
To register for a session contact Ms. Jennifer Whalley of the Volpe National Transportation Systems Center at (617)494-2686, or e-mail her at Whalley@volpe.dot.gov. The Transportation Safety Institute (TSI) has also published its list of course offerings for the next fiscal year. Dates for the two-day substance abuse management course are still available. The course assists participants conduct an evaluation and self-assessment of their respective agency’s substance abuse program and compliance with FTA regulations. The course involves lecture and group discussion. Classes are available for a materials fee of $15 per participant. For dates and location of classes, contact TSI at (405)954-3682.
The FTA and National Transportation Safety Board (NTSB) have a growing concern about the use of prescription (Rx) and over-the-counter (OTC) medications that can affect the performance of safety-sensitive duties. Investigations of several recent accidents have identified legally obtained and used medications as contributing factors to the cause or severity of the accidents. On May 22, 2000, FTA emphasizing its commitment to safety issued a “Dear Colleague” letter to all its grantees encouraging each to review current policies with regard to operators’ use of Rx/OTC medications which could result in public safety being jeopardized and immediately institute educational programs that address the potential dangers of taking certain types of medications. To assist grantees in their effort, FTA is creating a toolkit of sample policies, procedures and training materials that will be available in early fall and distributed to each grantee. Over two hundred transit agencies were surveyed to identify current practices in the industry. The best examples were drawn from those submittals and will be included in the toolkit with narrative discussion regarding their merits and applicability to others. In addition, examples of materials used by other modes including the Federal Aviation Administration and Federal Railroad Administration will be incorporated as appropriate.
FTA Drug and Alcohol Regulation Updates Issue 22, page 5
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.
The information presented on this page should be used to update Chapters 5 of the Implementation Guidelines .
FTA Drug and Alcohol Regulation Updates Issue 22, page 6
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 firstname.lastname@example.org FTA home page: www.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