| FTA Drug and Alcohol
Regulation Updates Issue 32, page 2 |
PROPOSED REGULATORY CHANGES |
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Where To Find?.....
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NPRM Proposes Elimination of Duplicative Testing Requirement On June 5, 2006, the Federal Transit Administration (FTA) published a Notice of Proposed Rulemaking (NPRM) that would provide regulatory relief to public transportation providers by eliminating duplicative testing requirements. The NPRM published in the Federal Register (Volume 71, Number 107, Pages 32298-32300) proposes that a private or nonprofit motor-carrier employer, with employees who perform safety-sensitive functions regulated by both FTA and the Federal Motor Carrier Safety Administration (FMCSA), may determine whether or not a majority (more that 50 percent) of these employees are regulated by FMCSA. If it is determined that the majority of the employees spend their time performing FMCSA safety-sensitive functions, the employer may opt to comply with FMCSA regulations for the employee or class of employee covered. However, FTA’s post-accident and reasonable suspicion requirements would apply when the accident, incident or observation occurs in the performance of public transit activities. For example, if a private, for-profit over-the-road charter company contracts with the local transit agency to provide supplemental public transit services and determines that only five percent of its CDL-licensed drivers (measured as full-time equivalents) will be used to operate the public transit service, the employer can choose to comply with the FMCSA regulations for all of its CDL-licensed drivers. FTA regulations would only come into play for the employer if/when one of the employer’s CDL drivers was involved in an FTA-defined accident or a reasonable suspicion determination is made while the employee is performing public transit functions.  As proposed, the employer would have the discretion to determine the timeframe for the designation. For audit purposes, however, the designation would be made at the beginning of each calendar year and remain applicable throughout the calendar year. In the instance of contractors with multiple locations, the determination should be made for each distinct location. Maintenance employees of private and nonprofit motor-carriers who are not covered under the FMCSA regulations, but perform maintenance on transit vehicles remain subject to the FTA regulations. In the example above, the private charter company would still have to meet FTA regulatory requirements in its entirety for any maintenance personnel that service vehicles. This provision only applies to private and nonprofit motor-carriers that provide contract services to FTA grantees and sub-grantees. This provision does not apply to municipalities, counties and designated grantees that directly operate transit systems. Direct recipients with both FTA and FMCSA employees must continue to have FTA and FMCSA programs for each respective group of employees. This NPRM does not change the applicability of the regulations to direct recipients that have employees that perform both FTA and FMCSA safety-sensitive functions. In this case, the employer must determine which functions make up the majority of the time spent on safety-sensitive duties and classify the employee accordingly. The assignment of regulatory authority for reasonable suspicion and post-accident testing will depend on the function an employee is performing at the time of the incident/accident. Return-to-duty and follow-up tests will be assigned to the modal administration that generated the initial positive test result. Comments regarding this NPRM must be received on or before August 4, 2006 following the procedures described on page 3 of this newsletter. Late filed comments will be considered to the extent practicable. The Docket Number is FTA-2006-24592 and Regulatory Identification Number is 2132-AA86. |