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75456 Federal Register / Vol. 68, No. 250 / Wednesday, December 31, 2003 / Rules and Regulations provide their regulated employers with guidance for submission of the form, and amend their rules accordingly. The DOT agencies are: Federal Motor Carrier Safety Administration (FMCSA); Federal Aviation Administration (FAA); Federal Transit Administration (FTA); Federal Railroad Administration (FRA); and Research and Special Programs Administration (RSPA). DATES: Effective December 31, 2003. FOR FURTHER INFORMATION CONTACT: Jim L. Swart, Drug and Alcohol Policy Advisor (S–1), Office of Drug and Alcohol Policy and Compliance, 400 Seventh Street, SW., Washington, DC 20590; telephone number (202) 366– 3784 (voice), (202) 366–3897 (fax), or jim.swart@ost.dot.gov (e-mail). Jerry Fulnecky, Office of Enforcement and Compliance (MC–EC), Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590; telephone number (202) 366– 2096, or jerry.fulnecky@fmsca.dot.gov (e-mail). Diane J. Wood, Drug Abatement Division, AAM–800, Office of Aerospace Medicine, Federal Aviation Administration, Washington, DC 20591, telephone number (202) 267–8442. Harry Saporta, Office of Safety and Security (TPM–30), Federal Transit Administration, 400 Seventh Street, SW., Washington, DC 20590; telephone number (202) 366–2233, or harry.saporta@fta.dot.gov. Lamar Allen, Alcohol and Drug Program Manager (RRS–11), Office of Safety, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590; telephone number (202) 493–6313, or lamar.allen@fra.dot.gov (e-mail); or Kathy Schnakenberg, Drug and Alcohol Program Specialist, Office of Safety, FRA, telephone number (202) 262–4998, or kathy.schnakenberg@fra.dot.gov (email). Sheila Wright, Office of Pipeline Safety (DPS–2), Research and Special Programs Administration, 400 Seventh Street, S.W., Washington, DC 20590, telephone number (202) 366–4554, or sheila.wright@rspa.dot.gov (e-mail). SUPPLEMENTARY INFORMATION Background and Purpose The Department published a final rule on July 25, 2003 (68 FR 43946) regarding a single one-page MIS form for use throughout all DOT. The Department had issued a notice of proposed rulemaking (NPRM) on September 30, 2002 (67 FR 61306), asking for comments and suggestions for changes to the MIS form and process. In response to the NPRM, we received numerous comments from individuals, groups, and associations. The final rule responded to all those comments. The final rule also made significant modifications to the previous DOT agency MIS forms. In the final rule, the Department stated that use of the new MIS form will be required for employer MIS submissions in 2004, which will document 2003 data. Therefore, employers must adopt provisions of the rule which will permit them to start, as appropriate, collection of the required data and which establish how companies are to determine the number of employees upon which 2003 random testing is based. The Department also indicated that the new MIS form represents a reduction in the data elements for which an employer must account. The following is a listing for each DOT agency of most of the data elements that have been eliminated as reporting elements on the new MIS form: FMCSA 1. Number of persons denied a position following a positive drug test. 2. Number of employees returned to duty following a refusal or positive drug test. 3. Supervisor initial drug training data. 4. Number of employees denied a position following an alcohol test of 0.04 or greater. 5. Number of employees returned to duty after engaging in alcohol misuse. 6. Number of employees having both a positive drug test and an alcohol test of 0.04 or greater when both tests were administered at the same time. 7. Actions taken for alcohol violations other than alcohol testing. 8. Supervisor initial alcohol training data. FAA 1. Number of employees returned to duty after having failed or refused a drug test. 2. Actions taken for drug test refusals. 3. Number of persons denied employment for a positive drug test. 4. Actions taken for positive drug results. 5. Employee initial drug training data. 6. Supervisor initial drug training data. 7. Supervisor recurrent drug training data. 8. Number of persons denied a position for an alcohol test 0.04 or greater. 9. Number of employees returned to duty after engaging in alcohol misuse. 10. Actions taken for alcohol regulation violations. VerDate jul2003 15:44 Dec 30, 2003 Jkt 203001 PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 E:\FR\FM\31DER1.SGM 31DER1 11. Number of employees having both a positive drug test and an alcohol test of 0.04 or greater when both tests were administered at the same time. 12. Number of other violations of the alcohol regulation. 13. Actions taken for refusals to take an alcohol test. 14. Supervisor alcohol training data. 15. Periodic testing data. FTA 1. Number of persons denied a position for alcohol results 0.04 or greater. 2. Number of accidents (noted as fatal and non-fatal) with alcohol results 0.04 or greater. 3. Number of fatalities from accidents resulting in alcohol results 0.04 or greater. 4. Number of employees returned to duty following an alcohol violation. 5. Number of employees having both a positive drug test and an alcohol test of 0.04 or greater when both tests were administered at the same time. 6. Actions taken for other alcohol rule violations. 7. Supervisor alcohol training data. 8. Number of persons denied a position for positive drug test results. 9. Number of accidents (noted as fatal and non-fatal) with positive drug test results. 10. Number of fatalities from accidents resulting in positive drug tests results. 11. Number of persons returned to duty following a positive drug test or refusal result. 12. Employee drug education data. 13. Supervisor drug training data. 14. Funding source information. FRA 1. Number of applicants/transfers denied employment/transfer for a positive drug test. 2. Number of employees returned to duty after having failed or refused a drug test. 3. Detailed breakouts of for-cause drug and alcohol testing. 4. Non-qualifying accident drug testing data. 5. Supervisor drug training data. 6. Number of applicants/transfers denied employment/transfer for alcohol results 0.04 or greater. 7. Number of employees returned to duty after engaging in alcohol misuse. 8. Supervisor alcohol training data. RSPA 1. Number of employees returned to duty after engaging in alcohol misuse. 2. Actions taken for alcohol test results equal to or greater than 0.04.
Federal Register / Vol. 68, No. 250 / Wednesday, December 31, 2003 / Rules and Regulations 75457 3. Number of other alcohol rule violations and actions taken for them. 4. Actions taken for alcohol test refusals. 5. Supervisor initial alcohol training data. 6. Number of persons denied a position following a positive drug test. 7. Number of employees returned to duty following a positive or refusal drug test. 8. Actions taken for positive drug tests. 9. Actions taken for drug test refusals. 10. Supervisor initial drug training data. Finally, the Department stated that the DOT agencies would continue, in their regulations, to provide direction to their regulated employers regarding when, where, and how to report MIS data. The DOT agency final rules published today are designed to amend their rules so that regulated industries will report MIS data in accordance with 49 CFR part 40. In addition, the DOT agency final rules are designed so that no conflicts exist between them and part 40 regarding how the MIS form is to be completed and how the instructions are to be followed. General Discussion of Rule Changes The DOT agencies are amending several sections of their drug and alcohol testing regulations to incorporate references to the new onepage MIS form and its instructions found in 49 CFR part 40. In addition, other revisions are being made in an effort to conform MIS-related regulatory text used by the DOT agencies. Specifically, the items reflecting use of conforming language are as follows: 1. Definitions of ‘‘positive rate for random drug testing’’ and ‘‘violation rate for random alcohol testing’’ will conform throughout the regulations and will replace ‘‘annualized rate,’’ ‘‘positive rate,’’ and ‘‘violation rate,’’ as appropriate. Both definitions will reflect how the DOT agencies will determine whether the random rates of testing within their regulated industries will rise, lower, or stay the same from year to year. It is important to note that RSPA has no random alcohol testing requirement and will, therefore, not include a definition for the ‘‘violation rate for random alcohol testing.’’ 2. 49 CFR part 40 also clarified and made uniform among DOT agencies how employers determine the total number of employees to which the annual random rate applies. The averaging method highlighted in part 40 has been adopted in DOT agency rule text. The rules direct employers to add the number of covered employees eligible for random testing in each random testing selection period for the year and divide that total by the number of random testing periods. The rules also reference employers’ use of service agents (e.g., Consortium/Third-Party Administrators) in their random testing programs. 3. Each DOT agency rule incorporates common language requiring use of the MIS form and the instructions found in 49 CFR part 40. The rules also permit employers to use the electronic version of the MIS form as designated by DOT agency administrators and furnished by DOT. Specific internet addresses are provided in DOT agency rules. As referenced in the preamble to 49 CFR part 40, the Department’s ultimate goal of having full automation for MIS submissions has been accomplished. Through Volpe Center development and field-testing, the automated system will be fully operational across all DOT agencies at the end of 2003. 4. DOT agency rules also include conforming language regarding how employers, with covered employees performing duties under more than one DOT agency rule, are to enter testing data for those employees. In short, the employee needs to be counted only on the MIS report for the DOT agency under which he or she is random tested. It is important to note, that the FAA requires all employees performing FAA safety-sensitive duties to be tested (including random) under FAA regulations. Otherwise, this will be the DOT agency under which the employee performs more than 50% of his or her duties. 5. Finally, the conforming language addresses the preparation of the MIS form and who must attest to its accuracy. The regulations give employers the ability to have service agents (e.g., Consortium/Third-Party Administrators) prepare the report on their behalf. However, no matter who prepares the report, a company official (e.g., Designated Employer Representative as defined in 49 CFR part 40) must certify the accuracy and completeness of the form. Other Significant Issues Regarding 49 CFR part 40 and the MIS form, the OMB number assigned to the form is 2105–0529. This number was issued by OMB on October 28, 2003. The Docket number assigned to the part 40 MIS final rule was OST–2003– 15676. It should have been, OST–2002– 13433. This will serve to correct that error. DOT has been asked how specimen results are to be counted if the verified result is a refusal because the specimen VerDate jul2003 15:44 Dec 30, 2003 Jkt 203001 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 E:\FR\FM\31DER1.SGM 31DER1 was found to be both adulterated and substituted. While these types of results rarely occur, they do nonetheless exist. Such a specimen result is to be counted as one test result. If this type of result is present in an employer’s testing program, the data should be entered as ‘‘1’’ for the test result and as ‘‘.5’’ for the adulterated result and as‘‘.5’’ for the substituted result. In addition, it is possible for a positive test to also be identified as being a refusal because the specimen was either adulterated or substituted. If such a result is present in an employer’s testing program, the data should be entered as ‘‘1’’ for the test result and as ‘‘.5’’ for the positive result and as ‘‘.5’’ for the adulterated result or the substituted result, as appropriate. The electronic MIS data entry system has been designed to accommodate these ‘‘.5’’ results, no matter how infrequently they occur. Section 1, of the MIS form in 49 CFR part 40, references the ‘‘FMSCA.’’ That should read, ‘‘FMCSA.’’ MIS forms that appear on the DOT website reflect the appropriate change. Electronic formats designed for use by the FMCSA and their regulated industry also reflect the change. Finally, the United States Coast Guard (USCG) will incorporate use of the new MIS form into their rules. Therefore, USCG-regulated employers will continue to report drug testing data on the new MIS form. The DOT supports the USCG in their desire to use and to incorporate use of DOT’s MIS form into their regulation. Because the USCG is part of the Department of Homeland Security (DHS), their regulations must be published under the authority of DHS. Therefore, the USCG will publish a conforming amendment to 46 CFR part 16 incorporating use of the form. Regulatory Analyses and Notices These rules are not significant rules for purposes of Executive Order 12866 or the DOT’s regulatory policies and procedures. Nor are the rules economically significant regulations. They represent a reworking of existing requirements, the economic burden of which are now incorporated into 49 CFR part 40; they impose no new mandates; and they will not create any new costs. In fact, use of the new MIS form has been shown to reduce requirements and costs. The DOT agencies will no longer account for the PRA cost associated with use of the form. These costs are now accounted for by the Office of the Secretary. In addition, there is no need for the DOT agencies to publish an NPRM each regarding use of the new MIS form and
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October 2009 Implementation Guideli
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Notice This document is disseminate
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METRIC/ENGLISH CONVERSION FACTORS E
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Table of Contents Chapter 1. INTROD
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Table of Contents (continued) Secti
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Chapter 1. INTRODUCTION Section 1.
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Transit employers may go beyond the
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Recommendation: Know the Regulation
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Sample Documentation Chapter 1. Int
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DHHS-Certified Laboratories, Center
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FTA Drug and Alcohol Management Inf
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Research And Special Programs Admin
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employment in safety-sensitive posi
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What happens in these cases? The pu
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Section 3. SAFETY-SENSITIVE • Ope
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performing the volunteer service ar
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Safety-sensitive Examples of Nation
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• A description of the consequenc
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projects, the employer should notif
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Sample Documentation Chapter 2. Reg
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Certification of Compliance for FTA
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4. Atlanta Federal Center Suite 17T
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1. Liability of Service Agents Yasu
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plaintiffs agreed that their positi
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FTA and FMCSA Regulatory Comparison
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FTA and FMCSA Regulatory Comparison
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process ensures that all critical c
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Chapter 3. Program Formulation 3-4
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Chapter 4. POLICY DEVELOPMENT AND C
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concentration of 0.04 or greater th
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has a confirmed alcohol concentrati
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MRO before the employer is notified
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policy with the requirement to form
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Do not assume that your contractors
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PRE-EMPLOYMENT DRUG TESTING NOTIFIC
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Sample Program Notification Letter
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authorized by the employer to make
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The 60 minutes of awareness trainin
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medications which could result in p
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employees who have problems with pr
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particular alcohol testing device t
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emain current with the regulations
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− Changes in Rules, Guidance and
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Exhibit 5-1 Summary of Education an
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Exhibit 5-3 Typical Agenda for Supe
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Exhibit 5-4 REASONABLE SUSPICION TR
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Chapter 6. TYPES OF TESTING Six typ
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Previous DOT Employer Record Check
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the “insufficient volume” proce
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for employees what is meant by on-d
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Nonfatal accidents involving a bus,
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Testing for drugs and alcohol follo
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iases in the process. To be conside
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1. Determine how frequently random
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In many small transit systems, ever
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Before making the return-to-duty re
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up testing program. The SAP must do
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Employee Discharged BAC >= 0.04 Con
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Employee Discharged Split Specimen
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Sample Documentation Chapter 6. Typ
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1) Accident Report Number: 2) Locat
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Chapter 7. DRUG TESTING PROCEDURES
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Recommendation Multiple Collection
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spouse, relative) or a close person
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The DOT requires the new version of
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9. The collector must direct the em
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evening contact telephone numbers i
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temperature range (90.0 to 100.0 F)
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publishes its final rule establishi
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for the preceding 6 months ending o
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Chapter 7. Drug Testing Procedures
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• The MRO will verify the test re
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The MRO may change a verified test
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direct the DER to have the employee
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employee for a retest under direct
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Sample Documentation Chapter 7. Dru
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Collection Site Checklist (cont.) (
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12. You may now wash your hands and
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Privacy Act Statement: (For Federal
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than an EBT, that is approved by th
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Breath Alcohol Technician (§40.213
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availability and the need for backu
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At the conclusion of the screen tes
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sufficient amount of breath. A medi
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In addition to stipulating the cons
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Sample Documentation Chapter 8. Alc
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[Federal Register: May 4, 2001 (Vol
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The Conforming Products List is the
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Highway Safety Programs; Model Spec
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45420 Federal Register / Vol. 65, N
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45422 Federal Register / Vol. 65, N
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U.S. Department of Transportation (
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Section 1. SAP QUALIFICATIONS A sub
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Education/Treatment Program Referra
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Employers are not required to follo
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SAP, many employers have looked to
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10 weeks, with most sessions schedu
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_____________________________ _____
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FOLLOW-UP TESTING PROCESS SAP Input
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Alcohol Test Results
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when the applicant was assigned saf
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may arrange to have the consortium
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• Employers and service agents sh
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The list of randomly selected trans
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A. At a Nonprofit Agency or Indepen
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Reporting Period: Laboratory Name a
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Record Retention Checklists (page 2
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Retains CCF1 Split Lab - CCF1 Labor
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CCF1 Split Lab Retains - CCF1 Labor
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U.S. DEPARTMENT OF TRANSPORTATION D
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Chapter 11. CONSORTIA AND THIRD PAR
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Greater Expertise. The FTA and DOT
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Section 2. CONSIDERATIONS IN ESTABL
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esults (≥0.02) between the BAT an
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consideration. Thus, the more diver
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Section 5. IS A CONSORTIUM RIGHT FO
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• Procurement of testing services
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• Consider which consortium model
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Exhibit 11-1 Role of State DOTs in
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Exhibit 11-3 CONSORTIA RESPONSIBILI
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Chapter 12. PROGRAM MONITORING As a
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• Conduct periodic review of serv
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compliance. You are encouraged to c
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Chapter 13. THE DRUG-FREE WORKPLACE
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Violations of the act may result in
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Exhibit 13-1 DRUG-FREE WORKPLACE AC
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Chapter 14. SUBSTANCE ABUSE MANAGEM
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Notification of audit Requested mat
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them to move throughout the facilit
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above materials. ⎯⎯Procedures t
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DAY 3 Time Activity Team Address of
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Date of Collection Jan-01 Nov-00 Se
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Time of the Test Time of the Test 8
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Each auditor will discuss the porti
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Sample Re-audit Agenda DAY 1 Time A
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Index of Appendices Appendix A. Acr
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AA Alcoholics Anonymous Appendix A.
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RFP Request for Proposal RIA Radio
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Newsletters Appendix B. Additional
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U.S. Department of Labor. What Work
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Other Government Web sites Drug and
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Appendix C Americans with Disabilit
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sensitive duties for the illegal us
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If the individual is qualified and
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allegation of discrimination under
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Appendix D. Certified Laboratories
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DrugProof, Divison of Dynacare 543
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One Source Toxicology Laboratory, I
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The following laboratories are volu
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Federal Register / Vol. 65, No. 141
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Appendix F. Fact Sheets Drug Detect
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Social Issues • Two-thirds of all
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• The euphoric stimulation increa
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• Paranoia • Profuse sweating a
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connection between marijuana smokin
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Opiates (Narcotics) Fact Sheet Opia
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Phencyclidine (PCP) Fact Sheet Phen
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Appendix G Questions and Answers
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ecipient, and someone other than th
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Q. Can transit operators receive wa
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Q. If an employee changed jobs prio
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Q. How much training are employers
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acceptable for the company-required
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Q. In a post-accident situation req
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employees and 50 non-DOT employees,
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Q: What actual address is required
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Q: Can a split specimen be sent to
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actual employee of the employer may
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Q: Must collectors, BATs, STTs, MRO
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an observer, or a monitor for co-wo
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Q: If a collector makes an error on
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Appendix H Terms and Definitions
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indirectly, one controls or has the
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Confirmation validity test Confirme
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These terms include any designee of
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Medical Review Officer (MRO) A pers
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Random test Reason to believe Reaso
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Safety-sensitive function Any of th
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trolley bus, or vessel. A “mass t
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49 CFR Part 40 Updated August 31, 2
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§ 40.89 What is validity testing,
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Page 4 of 100 § 40.287 What inform
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Page 6 of 100 Subpart A - Administr
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Page 8 of 100 Medical Review Office
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Page 10 of 100 § 40.17 Is an emplo
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Page 12 of 100 (b) You must request
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Page 14 of 100 (4) The collector's
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Page 16 of 100 (1) To avoid distrac
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Page 18 of 100 (f) Direct the emplo
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Page 20 of 100 (g) As the collector
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Page 22 of 100 participate in the D
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Page 24 of 100 (b) You must determi
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Page 26 of 100 (d) If you have not
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Page 28 of 100 December 31 of the p
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Page 30 of 100 (a) Review Copy 2 of
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Page 32 of 100 (1) As the DER, you
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Page 34 of 100 (i) Recent needle tr
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Page 36 of 100 (2) If you receive i
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Page 38 of 100 (iii) If a negative
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Page 40 of 100 (6) Result of the te
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Page 42 of 100 (d) When you receive
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Page 44 of 100 (1) Report that the
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Page 46 of 100 (2) There is not an
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Page 48 of 100 (c) The laboratory r
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Page 50 of 100 (6) The failure to d
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Page 52 of 100 partially meets thes
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Page 54 of 100 (c) As the user of t
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Page 56 of 100 (vi) You must then d
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Page 58 of 100 (i) You may transmit
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Page 60 of 100 (b) In the case of a
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Page 62 of 100 (iii) Key DOT drug t
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Page 64 of 100 § 40.295 May employ
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Page 66 of 100 (e) The requirements
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Page 68 of 100 accident drug test r
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Page 70 of 100 § 40.343 What tasks
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Page 459 and 460: Appendix G to Part 40—Alcohol Tes
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Page 465 and 466: I. Employer: Company Name: Page 92
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Page 507 and 508: 49 CFR Part 655
Page 509 and 510: 2 Electronic access to this rule an
Page 511 and 512: duty and follow-up testing under sp
Page 513 and 514: When the drug and alcohol rules ini
Page 515 and 516: the consequences for prohibited dru
Page 517 and 518: Labor unions: 3 Trade associations:
Page 519 and 520: FTA Response. FTA opts not to inclu
Page 521 and 522: Since each employer uses its own te
Page 523 and 524: Most of the commenters to this sect
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Page 527 and 528: Several commenters responding to th
Page 529 and 530: service providers and the employer.
Page 531 and 532: esponsibility of FTA transit funds
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Page 537 and 538: 655.52 Substance abuse professional
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part. (c) Specific information conc
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(5) Phencyclidine. (c) Consumption
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concentration less than 0.04. This
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§655.43 Reasonable suspicion testi
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48 the reasons the alcohol test was
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(c) Rates for drug testing. (1) Whe
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annual percentage rate under this p
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(a) Each employer shall require a c
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56 for evaluating and resolving pro
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qualifying the supervisors to make
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60 (12) Number of covered employees
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post-accident alcohol test indicati
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equired to be maintained by this pa
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(b) A certification must be authori
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Drug-Free Workplace Act
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TABLE OF CONTENTS INTRODUCTION ....
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egulations that have been made sinc
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The behaviors that are prohibited b
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⎯ An individual who refuses to su
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Have employees been notified that p
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⎯ Add a bluing agent to the toile
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Are employees who are subject to te
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LABORATORY TESTING Are all drug tes
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⎯ Direct the analysis of the spli
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Is only one test conducted at a tim
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Does the BAT notify the employer’
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Does the SAP evaluate whether a saf
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ADMINISTRATIVE REQUIREMENTS If a pr
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Are procedures in place to have emp
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hours following the accident, the e
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Are random numbers substituted only
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Are employees that are subject to f
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OTHER TRAINING Consistent with the
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♦ Documents presented by a covere
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CERTIFICATION ♦ Each year transit
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A R DMINISTRATIVE EQUIREMENTS Do th
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DRUG AND ALCOHOL POLICY REVIEW QUES
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Meeting FTA thresholds; Meeting dru
Page 637 and 638:
CONSEQUENCES OF A FAILED OR REFUSED
Page 639 and 640:
How much notice is given to the emp
Page 641 and 642:
RECORDS MANAGEMENT QUESTIONNAIRE AP
Page 643 and 644:
If the information requested is not
Page 645 and 646:
Has the employer met the minimum an
Page 647 and 648:
Do the records indicate that any dr
Page 649 and 650:
Does the employer utilize the stand
Page 651 and 652:
If tests are cancelled because of a
Page 653 and 654:
If you conducted the initial test,
Page 655 and 656:
SALIVA TEST TECHNICIAN QUESTIONNAIR
Page 657 and 658:
MEDICAL REVIEW OFFICER (MRO) QUESTI
Page 659 and 660:
What action would you take if the s
Page 661 and 662:
• • • As the SAP, can you sub
Page 663:
Do you assist your members in any w
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