DOT Program Update Federal Transit Administration Annual Conference March 17-18, 2010 Los Angeles,...
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DOT Program Update Federal Transit Administration Annual Conference March 17-18, 2010 March 17-18, 2010 Los Angeles, CA Los Angeles, CA Office of Drug and Alcohol Office of Drug and Alcohol Policy and Compliance Policy and Compliance Office of the Secretary of Transportation Office of the Secretary of Transportation U.S. Department of U.S. Department of Transportation Transportation
Transcript of DOT Program Update Federal Transit Administration Annual Conference March 17-18, 2010 Los Angeles,...
DOT Program Update
Federal Transit Administration Annual Conference
March 17-18, 2010March 17-18, 2010Los Angeles, CALos Angeles, CA
Office of Drug and Alcohol Office of Drug and Alcohol Policy and CompliancePolicy and Compliance
Office of the Secretary of TransportationOffice of the Secretary of Transportation
U.S. Department of TransportationU.S. Department of Transportation
What is ODAPC’s Mission?
Who do we regulate and why?
What does our regulation cover?
Recent events…
What’s next…
Presentation PreviewPresentation Preview
ODAPC’s MissionODAPC’s Mission
1.1. Ensure the Ensure the safety & securitysafety & security of the traveling of the traveling public. public.
2.2. Reduce the demand for illicit drugs by Reduce the demand for illicit drugs by transportation workers.transportation workers.
3.3. Reduce alcohol misuse in the transportation Reduce alcohol misuse in the transportation industry.industry.
ODAPC’s MissionODAPC’s Mission
4.4. Create treatment & prevention opportunities.Create treatment & prevention opportunities.
5.5. Develop regulations, policies, and guidance Develop regulations, policies, and guidance that augment these efforts: that augment these efforts: 49 CFR Part 4049 CFR Part 40..
46 CFR Part 4, 16
49 CFR Part 655
49 CFR Part 38249 CFR Part 219
49 CFR Part 199
14 CFR Part 120
49 CFR 49 CFR Part 40Part 40
FMCSA
FRA
PHMSA
FTA
FAA
USCG
PHMSA PHMSA
employer
s2,450
employees
190,000
USCGUSCG
employers15,000
employees 150,000
FRAFRA
employers750
employees 111,300
FTAFTA
employers
3,224
employees
273,300
FMCSAFMCSA
employers700,000
employees7,000,000
FAAFAA
employers6,900
employees 450,000
What does our regulationWhat does our regulation (49 CFR Part 40) cover?(49 CFR Part 40) cover?
SAP & RTD ProcessSAP & RTD Process Service Agent Service Agent
ResponsibilitiesResponsibilities Confidentiality of Confidentiality of
InformationInformation Service AgentsService Agents Public Interest Public Interest
ExclusionsExclusions
DefinitionsDefinitions Employer Employer
ResponsibilitiesResponsibilities Collection ProcessCollection Process Lab ProcessLab Process MRO Roles & MRO Roles &
ResponsibilitiesResponsibilities Alcohol TestingAlcohol Testing
Direct Observation Final RuleDirect Observation Final Rule
We enhanced the direct observation procedures to We enhanced the direct observation procedures to ensure that employees who had triggered suspicion at ensure that employees who had triggered suspicion at the collection site or through the laboratory evaluation, the collection site or through the laboratory evaluation, as well as all employees returning-to-duty and in follow-as well as all employees returning-to-duty and in follow-up programs were being checked for cheating devices.up programs were being checked for cheating devices.
And . . .And . . .
Recent Events…Recent Events…
Direct Observation Final RuleDirect Observation Final Rule……we got sued!we got sued!
BNSF Railway Company v. Department of BNSF Railway Company v. Department of TransportationTransportation, , 566 F.3d 200 (DC Cir. 2009)566 F.3d 200 (DC Cir. 2009)
Unanimous decision issued by the U.S. Court of Unanimous decision issued by the U.S. Court of Appeals for the D.C. Circuit found in favor of Appeals for the D.C. Circuit found in favor of DOT on all pointsDOT on all points
Recent Events…Recent Events…
The appeals court upheld DOT’s direct The appeals court upheld DOT’s direct observation drug testing rules applicable to observation drug testing rules applicable to return-to-duty, safety-sensitive transportation return-to-duty, safety-sensitive transportation industry employees who already failed or industry employees who already failed or refused to take a prior drug test.refused to take a prior drug test.
The court found that the rules were not arbitrary The court found that the rules were not arbitrary and capricious and did not violate the Fourth and capricious and did not violate the Fourth Amendment constitutional prohibition on Amendment constitutional prohibition on unreasonable search and seizures.unreasonable search and seizures.
US Court of Appeals for the District US Court of Appeals for the District of Columbia Circuit Rulingof Columbia Circuit Ruling
The direct observation drug testing for such The direct observation drug testing for such return-to-duty employees was reasonable, the return-to-duty employees was reasonable, the court ruled, because of the compelling court ruled, because of the compelling government interest in transportation safetygovernment interest in transportation safety
The court said that employees, who have failed The court said that employees, who have failed a prior drug test, have a diminished expectation a prior drug test, have a diminished expectation of privacy.of privacy.
US Court of Appeals for the District US Court of Appeals for the District of Columbia Circuit Rulingof Columbia Circuit Ruling
And because of the recent development of a And because of the recent development of a wide array of available cheating devices and the wide array of available cheating devices and the substantial incentive for these return-to-duty substantial incentive for these return-to-duty employees to use such devices to cheat on employees to use such devices to cheat on required return-to-duty and follow-up tests, the required return-to-duty and follow-up tests, the Department’s steps were necessary, well Department’s steps were necessary, well founded, and justified.founded, and justified.
US Court of Appeals for the District US Court of Appeals for the District of Columbia Circuit Rulingof Columbia Circuit Ruling
Public Interest ExclusionPublic Interest Exclusion
Recent Events…Recent Events…
Name and Address Name and Address
of Service Agent:of Service Agent: Michel R. Bennett and Workplace Compliance, Inc. in Michel R. Bennett and Workplace Compliance, Inc. in North Carolina and Texas and all other places it is North Carolina and Texas and all other places it is incorporated, franchised, or otherwise doing business incorporated, franchised, or otherwise doing business
Other Persons or Other Persons or Organizations:Organizations:
Officers, employees, directors, shareholders, partners or Officers, employees, directors, shareholders, partners or individuals associated with Workplace Compliance, Inc. individuals associated with Workplace Compliance, Inc.
Duration [beginning Duration [beginning
& end dates]:& end dates]: July 31, 2009 - July 31, 2014 July 31, 2009 - July 31, 2014
Recent NewsRecent News
OIG Investigation of Michael BennettOIG Investigation of Michael Bennett
• Found Guilty of Wire Fraud and Found Guilty of Wire Fraud and Falsification in a U.S. Federal CourtFalsification in a U.S. Federal Court
• Sentencing will be August 5, 2010Sentencing will be August 5, 2010
DOT Program UpdateDOT Program Update
Notice of Proposed Rulemaking – February 4, 2010Notice of Proposed Rulemaking – February 4, 2010 Comment Closing Date – April 5, 2010Comment Closing Date – April 5, 2010
Three Final Rules – February 25, 2010Three Final Rules – February 25, 20101.1. ATF / MIS Form ModificationsATF / MIS Form Modifications2.2. State Reporting of Testing Violations of CDL DriversState Reporting of Testing Violations of CDL Drivers3.3. Alcohol Screening Device ProceduresAlcohol Screening Device Procedures
Collector GuidelinesCollector Guidelines
MRO GuidelinesMRO Guidelines
Prescription Medication IssuesPrescription Medication Issues
Purpose:Purpose:
Our NPRM is designed to align our Our NPRM is designed to align our regulated-industry drug testing with the regulated-industry drug testing with the Department of Health and Human Department of Health and Human Services (HHS) laboratory drug testing Services (HHS) laboratory drug testing requirements. requirements.
Current Issues – NPRM Published Current Issues – NPRM Published February 4, 2010February 4, 2010
Current Issues – NPRM Current Issues – NPRM Published February 4, 2010Published February 4, 2010
• DOT is required by the Omnibus DOT is required by the Omnibus Transportation Employees Testing Act to Transportation Employees Testing Act to follow the HHS requirements for the follow the HHS requirements for the testing procedures/protocols and drugs for testing procedures/protocols and drugs for which we test. which we test.
Current Issues – NPRM Current Issues – NPRM Published February 4, 2010Published February 4, 2010
Primary laboratory proposals include: Primary laboratory proposals include:
Testing for MDMA (aka. Ecstasy); Testing for MDMA (aka. Ecstasy);
Lowering cutoff levels for cocaine and amphetamines; Lowering cutoff levels for cocaine and amphetamines;
Conducting mandatory initial testing for heroin; and Conducting mandatory initial testing for heroin; and
Authorizing employers to use HHS-Certified Authorizing employers to use HHS-Certified Instrumented Initial Test Facilities to conduct initial drug Instrumented Initial Test Facilities to conduct initial drug testing. testing.
Current Issues – NPRM Current Issues – NPRM Published February 4, 2010Published February 4, 2010
Other proposals include: Other proposals include:
We propose bringing a number of our testing definitions We propose bringing a number of our testing definitions in-line with those of HHS.in-line with those of HHS.
We also seek comments regarding MRO training / We also seek comments regarding MRO training / certification requirements.certification requirements.
““DOT’s 10 Steps to Collection Site Security and Integrity” – sent to DOT’s 10 Steps to Collection Site Security and Integrity” – sent to over 23,000 collection sitesover 23,000 collection sites
Flash Video - Collection site Security and IntegrityFlash Video - Collection site Security and Integrity
Increase DOT Agency & USCG Inspector training/ Inspections Increase DOT Agency & USCG Inspector training/ Inspections
Inspection Data BaseInspection Data Base
Clandestine InspectionsClandestine Inspections
Civil Penalty Authority & PIECivil Penalty Authority & PIE
Emphasis For DOT Inspections of Emphasis For DOT Inspections of Collection SitesCollection Sites
Access to Adulterant & Dilution Materials Access to Adulterant & Dilution Materials
Secure Water Sources Secure Water Sources
Supervise Employees Supervise Employees
Empty PocketsEmpty Pockets
DOT Clandestine InspectionsDOT Clandestine InspectionsPrevalent Egregious FailuresPrevalent Egregious Failures
Unauthorized Personnel Unauthorized Personnel
Wash HandsWash Hands
Time LimitsTime Limits
DOT Clandestine InspectionsDOT Clandestine InspectionsPrevalent Egregious FailuresPrevalent Egregious Failures
DOT Laboratory Testing Data DOT Laboratory Testing Data January thru December 2009January thru December 2009
Total Results 5,163,165
Positives 77,865 (1.5%)
PREVALENCEPREVALENCE
AmphetaminesAmphetamines 18.2%18.2%
Cocaine 16.6%
Opiates 12.8%
PCP 1.7%
THC 50.7%
Total Results 5,163,165
Rejected 7,106 (0.14%)
Tampered 8,421 (0.16%)
PREVALENCEPREVALENCE
Adulterated 10.5%
Substituted 27.8%
Invalid 61.7%
C/TPA Compliance ReviewsC/TPA Compliance Reviews
Clandestine Collection Site ReviewsClandestine Collection Site Reviews
Revised Updated Collection GuidelinesRevised Updated Collection Guidelines
What’s Next…What’s Next…
www.dot.gov/ost/dapc
ODAPC StaffODAPC Staff
Mark SniderSenior Policy Advisor
Bohdan BaczaraPolicy Advisor
Vicki BelletMaria Lofton
Administrative
Bob AshbyOffice of General
Counsel
Patrice KellyDeputy Director
Jim L. SwartDirector
Cindy IngraoSenior Policy Advisor
www.dot.gov/ost/dapc/
