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75458 Federal Register / Vol. 68, No. 250 / Wednesday, December 31, 2003 / Rules and Regulations to make the conforming regulation changes necessitated by use of the new form. The Department issued an NPRM in the Federal Register on September 30, 2002 (Vol. 67, No. 189) proposing use of a new MIS form and asking for comments and suggestions for changes to the old DOT agency MIS forms and the process for completing and submitting them. The final rule designating use and appearance of and instructions for the new MIS form was published in the Federal Register on July 25, 2003 (Vol. 68, No. 143). These DOT agency final rules are essentially administrative fix-ups to align DOT agency rules with part 40 on important MIS issues. Therefore, these DOT agency amendments are being issued as final rules. Under the Administrative Procedure Act (APA), an agency may, for good cause, immediately promulgate a final rule if it finds that prior notice and opportunity for comment ‘‘are impracticable, unnecessary, or contrary to the public interest’’ [5 U.S.C. 553(b)(3)(B)]. There exists good cause for the final rules to be effective immediately rather than 30 days from today’s publication date. It is imperative that companies are prepared to implement the new MIS system and know the DOT agency requirements for form submission. That preparation should not be delayed for an additional 30 days. For these and the reasons highlighted in the previous paragraph, the rules are effective today. These final rules do not have sufficient Federalism impact to warrant a Federalism assessment under Executive Order 13132. With respect to the Regulatory Flexibility Act, the DOT agencies certify that these rules would not have a significant economic impact on a substantial number of small entities, so a Regulatory Flexibility analysis has not been prepared. Even though these rules might affect a large number of small entities, we do not expect the use of a single MIS form throughout all DOT-regulated industries to have a significant economic impact on anyone. The Department’s final MIS rule contained information collection requirements that were submitted, as required by the Paperwork Reduction Act of 1995 (the PRA, 44 U.S.C. 3507(d)), to the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) for review. Therefore, the DOT agencies will remove PRA requirements for the MIS form from their next PRA submission packages. In addition, the Department will place its entire PRA package for the MIS form on the Internet when that submission is approved by OMB. As stated in the Department’s final MIS rule, according to OMB’s regulations implementing the PRA (5 CFR 1320.8(b)(2)(vi)), an agency may not conduct or sponsor, and a person need not respond to a collection of information unless it displays a currently valid OMB number. As stated earlier, the OMB number issued to the form is 2105–0529. A number of other Executive Orders can affect rulemakings. These include Executive Orders 13084 (Consultation and Coordination with Indian Tribal Governments), 12988 (Civil Justice Reform), 12875 (Enhancing the Intergovernmental Partnership), 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights), 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), 13045 (Protection of Children from Environmental Health Risks and Safety Risks), and 12889 (Implementation of North American Free Trade Agreement). We have considered these Executive Orders in the context of these rules, and we believe that these rules do not directly affect matters that the Executive Orders cover. We have prepared these rulemakings in accordance with the Presidential Directive on Plain Language. Federal Motor Carrier Safety Administration Summary of Changes in Part 382 FMCSA has made the following changes to the regulatory text in part 382: Section 382.107 Definitions We have revised the definitions for ‘‘positive rate’’ for random drug testing and ‘‘violation rate’’ for random alcohol testing, consistent with the definitions for those terms in part 40. Section 382.305 Random Testing We have revised § 382.305(j), concerning how employers determine the number of covered employees eligible for random testing, to conform with the methodology prescribed in part 40. Section 382.401 Retention of Records We have revised § 382.401(c)(1)(viii) to replace ‘‘Consolidated annual calendar year summaries’’ with ‘‘Each annual calendar year summary.’’ VerDate jul2003 15:44 Dec 30, 2003 Jkt 203001 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 E:\FR\FM\31DER1.SGM 31DER1 Section 382.403 Reporting of results in a management information system Section 382.403 was amended to require use of the new Management Information System (MIS) form in part 40, in place of the old FMCSA forms. In subparagraph (b), the requirement that the form should be in ‘‘the form and manner prescribed by the FMCSA’’ was deleted. We now require employers to use either the paper form in part 40 or an electronic version of the form through the FMCSA web site. We deleted former subparagraphs (c) and (d) specifying the data elements that were required to be reported because the instructions for the MIS form in part 40 specify new data elements to be reported. The former subparagraph (e), which addresses employers subject to more than one DOT agency, has been redesignated as paragraph (c), and was amended to conform with part 40 agencies. The former subparagraph (f), which addresses employers who use service agents (e.g., a Consortia/third party administrator (C/TPA)), has been redesignated as paragraph (d) and was also amended. List of Subjects in 49 CFR Part 382 Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Penalties, Safety, Transportation. 49 CFR Chapter III Authority and Issuance ■ For reasons discussed in the preamble, the Federal Motor Carrier Safety Administration amends part 382 of title 49, Code of Federal Regulations, as follows: PART 382—CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING ■ 1. The authority citation for 49 CFR part 382 continues to read as follows: Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49 CFR 1.73. ■ 2. Amend § 382.107 by removing the definitions of ‘‘positive rate’’ and ‘‘violation rate’’ and adding the following definitions in their place to read as follows: § 382.107 Definitions. * * * * * Positive rate for random drug testing means the number of verified positive results for random drug tests conducted under this part plus the number of refusals of random drug tests required by this part, divided by the total number of random drug tests results (i.e.,
Federal Register / Vol. 68, No. 250 / Wednesday, December 31, 2003 / Rules and Regulations 75459 positives, negatives, and refusals) under this part. * * * * * Violation rate for random alcohol testing means the number of 0.04 and above random alcohol confirmation test results conducted under this part plus the number of refusals of random alcohol tests required by this part, divided by the total number of random alcohol screening tests (including refusals) conducted under this part. ■ 3. Amend § 382.305 by revising paragraph (j) to read as follows: § 382.305 Random testing. * * * * * (j)(1)To calculate the total number of covered drivers eligible for random testing throughout the year, as an employer, you must add the total number of covered drivers eligible for testing during each random testing period for the year and divide that total by the number of random testing periods. Covered employees, and only covered employees, are to be in an employer’s random testing pool, and all covered drivers must be in the random pool. If you are an employer conducting random testing more often than once per month (e.g., daily, weekly, bi-weekly) you do not need to compute this total number of covered drivers rate more than on a once per month basis. (2) As an employer, you may use a service agent (e.g., a C/TPA) to perform random selections for you, and your covered drivers may be part of a larger random testing pool of covered employees. However, you must ensure that the service agent you use is testing at the appropriate percentage established for your industry and that only covered employees are in the random testing pool. * * * * * ■ 4. Amend § 382.401 by revising paragraph (c)(1)(viii) to read as follows: § 382.401 Retention of records. * * * * * (c) * * * (1) * * * (viii) A copy of each annual calendar year summary as required by § 382.403. * * * * * ■ 5. Amend § 382.403 by revising paragraph (b), removing paragraphs (c) and (d), redesignating paragraphs (e) and (f) as (c) and (d), respectively, and revising them, and adding a new paragraph (e) to read as follows: § 382.403 Reporting of results in a management information system. * * * * * (b) If an employer is notified, during the month of January, of a request by the Federal Motor Carrier Safety Administration to report the employer’s annual calendar year summary information, the employer shall prepare and submit the report to the FMCSA by March 15 of that year. The employer shall ensure that the annual summary report is accurate and received by March 15 at the location that the FMCSA specifies in its request. The employer must use the Management Information System (MIS) form and instructions as required by 49 CFR part 40 (at § 40.26 and appendix H to part 40). The employer may also use the electronic version of the MIS form provided by the DOT. The Administrator may designate means (e.g., electronic program transmitted via the Internet), other than hard-copy, for MIS form submission. For information on the electronic version of the form, see: http://www.fmcsa.dot.gov/ safetyprogs/drugs/engtesting.htm. (c) When the report is submitted to the FMCSA by mail or electronic transmission, the information requested shall be typed, except for the signature of the certifying official. Each employer shall ensure the accuracy and timeliness of each report submitted by the employer or a consortium. (d) If you have a covered employee who performs multi-DOT agency functions (e.g., an employee drives a commercial motor vehicle and performs pipeline maintenance duties for the same employer), count the employee only on the MIS report for the DOT agency under which he or she is randomly tested. Normally, this will be the DOT agency under which the employee performs more than 50% of his or her duties. Employers may have to explain the testing data for these employees in the event of a DOT agency inspection or audit. (e) A service agent (e.g., Consortia/ Third party administrator as defined in 49 CFR 382.107) may prepare the MIS report on behalf of an employer. However, a company official (e.g., Designated employer representative) must certify the accuracy and completeness of the MIS report, no matter who prepares it. Dated: November 25, 2003. Annette M. Sandberg, Administrator, Federal Motor Carrier Safety Administration. Federal Aviation Administration FAA’s Section-by-Section Discussion 14 CFR Part 121, Appendix I II. Definitions The FAA has eliminated the definition for ‘‘annualized rate’’ because VerDate jul2003 15:44 Dec 30, 2003 Jkt 203001 PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 E:\FR\FM\31DER1.SGM 31DER1 the definition is no longer necessary in light of the DOT’s final rule. However, the definition for annualized rate had contained instructions to estimate the number of employees that must be tested during the calendar year based on the number of safety-sensitive employees as of the beginning of the calendar year. The DOT’s final rule changed this method of calculation. Now, to determine how many employees to randomly test during the calendar year, the employer must use the average number of safety-sensitive employees instead of the number of employees as of the beginning of the calendar year. Because this change occurred during the 2003 calendar year, we recognize that employers may have difficulty estimating the number of safety-sensitive employees to be tested in 2003. Therefore, for the calendar year 2003 only, employers may use the number of employees as of the beginning of the calendar year to determine the total number of safetysensitive employees to be tested or the employers may use the averaging method described in this regulation and 49 CFR part 40. Beginning in 2004, the new methodology must be used by all employers. In addition, we have revised the definition of ‘‘positive rate’’ and changed the defined term to ‘‘positive rate for random drug testing,’’ for the reasons discussed in the DOT’s General Discussion of Rule Changes. V. Types of Drug Testing Required C. Random Testing. We revised paragraph 6 under the random testing section to make it clear to employers how to calculate whether they have met the minimum annual percentage rate under 49 CFR part 40. For the reasons explained in the DOT’s General Discussion of Rule Changes, we inserted paragraph 6(b) to address the use of service agents to conduct random testing for employers. We added paragraphs 6(b)(1)–(2) to explain what annual percentage rate applies to pools created by service agents. VI. Administrative and Other Matters F. DOT Management Information System Annual Reports. For consistency with 14 CFR part 121, appendix J, we have added this paragraph to make it clear that employers must keep copies of annual reports submitted to the FAA for a minimum of 5 years. This is not an additional record keeping requirement because the MIS reports were already required to be kept for 5 years under 14 CFR part 121, appendix J, section IV, A.2.(a)(1). Since the MIS reports for both drug and alcohol testing
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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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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 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 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 70 of 100 § 40.343 What tasks
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Page 72 of 100 and follow-up testin
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Page 507 and 508: 49 CFR Part 655
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Page 521 and 522: Since each employer uses its own te
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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
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CONSEQUENCES OF A FAILED OR REFUSED
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How much notice is given to the emp
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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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