DOT Program Update Federal Transit Administration Annual Conference March 17-18, 2010 Los Angeles, CA Office of Drug and Alcohol Policy and Compliance Office of the Secretary of Transportation U.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 Preview

ODAPC’s Mission 1.Ensure the safety & security of the traveling public. 2.Reduce the demand for illicit drugs by transportation workers. 3.Reduce alcohol misuse in the transportation industry.

ODAPC’s Mission 4.Create treatment & prevention opportunities. 5.Develop regulations, policies, and guidance that augment these efforts: 49 CFR Part 40.

46 CFR Part 4, CFR Part CFR Part CFR Part CFR Part CFR Part CFR Part 40 FMCSA FRA PHMSA FTA FAA USCG

PHMSA employers 2,450 employees 190,000USCG employers 15,000 employees 150,000FRA employers 750 employees 111,300FTA employers 3,224 employees 273,300FMCSA employers 700,000 employees 7,000,000 FAA FAA employers 6,900 employees 450,000

What does our regulation (49 CFR Part 40) cover? (49 CFR Part 40) cover?  SAP & RTD Process  Service Agent Responsibilities  Confidentiality of Information  Service Agents  Public Interest Exclusions  Definitions  Employer Responsibilities  Collection Process  Lab Process  MRO Roles & Responsibilities  Alcohol Testing

Direct Observation Final Rule We enhanced the direct observation procedures to ensure that employees who had triggered suspicion at the collection site or through the laboratory evaluation, as well as all employees returning-to-duty and in follow- up programs were being checked for cheating devices. And... And... Recent Events…

Direct Observation Final Rule …we got sued!  BNSF Railway Company v. Department of Transportation, 566 F.3d 200 (DC Cir. 2009)  Unanimous decision issued by the U.S. Court of Appeals for the D.C. Circuit found in favor of DOT on all points Recent Events…

 The appeals court upheld DOT’s direct observation drug testing rules applicable to return-to-duty, safety-sensitive transportation industry employees who already failed or refused to take a prior drug test.  The court found that the rules were not arbitrary and capricious and did not violate the Fourth Amendment constitutional prohibition on unreasonable search and seizures. US Court of Appeals for the District of Columbia Circuit Ruling

 The direct observation drug testing for such return-to-duty employees was reasonable, the court ruled, because of the compelling government interest in transportation safety  The court said that employees, who have failed a prior drug test, have a diminished expectation of privacy. US Court of Appeals for the District of Columbia Circuit Ruling

 And because of the recent development of a wide array of available cheating devices and the substantial incentive for these return-to-duty employees to use such devices to cheat on required return-to-duty and follow-up tests, the Department’s steps were necessary, well founded, and justified. US Court of Appeals for the District of Columbia Circuit Ruling

Public Interest Exclusion Recent Events… Name and Address of Service Agent: Michel R. Bennett and Workplace Compliance, Inc. in North Carolina and Texas and all other places it is incorporated, franchised, or otherwise doing business Other Persons or Organizations: Officers, employees, directors, shareholders, partners or individuals associated with Workplace Compliance, Inc. Duration [beginning & end dates]: July 31, July 31, 2014

Recent News OIG Investigation of Michael Bennett Found Guilty of Wire Fraud and Falsification in a U.S. Federal Court Found Guilty of Wire Fraud and Falsification in a U.S. Federal Court Sentencing will be August 5, 2010Sentencing will be August 5, 2010

DOT Program Update  Notice of Proposed Rulemaking – February 4, 2010 Comment Closing Date – April 5, 2010 Comment Closing Date – April 5, 2010  Three Final Rules – February 25, ATF / MIS Form Modifications 2. State Reporting of Testing Violations of CDL Drivers 3. Alcohol Screening Device Procedures  Collector Guidelines  MRO Guidelines  Prescription Medication Issues

 Purpose: Our NPRM is designed to align our regulated-industry drug testing with the Department of Health and Human Services (HHS) laboratory drug testing requirements. Our NPRM is designed to align our regulated-industry drug testing with the Department of Health and Human Services (HHS) laboratory drug testing requirements. Current Issues – NPRM Published February 4, 2010

DOT is required by the Omnibus Transportation Employees Testing Act to follow the HHS requirements for the testing procedures/protocols and drugs for which we test.DOT is required by the Omnibus Transportation Employees Testing Act to follow the HHS requirements for the testing procedures/protocols and drugs for which we test.

Current Issues – NPRM Published February 4, 2010 Primary laboratory proposals include: 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 Authorizing employers to use HHS-Certified Instrumented Initial Test Facilities to conduct initial drug testing.

Current Issues – NPRM Published February 4, 2010 Other proposals include: We propose bringing a number of our testing definitions in-line with those of HHS. We also seek comments regarding MRO training / certification requirements.

 “DOT’s 10 Steps to Collection Site Security and Integrity” – sent to over 23,000 collection sites  Flash Video - Collection site Security and Integrity  Increase DOT Agency & USCG Inspector training/ Inspections  Inspection Data Base  Clandestine Inspections  Civil Penalty Authority & PIE Emphasis For DOT Inspections of Collection Sites

 Access to Adulterant & Dilution Materials  Secure Water Sources  Supervise Employees  Empty Pockets DOT Clandestine Inspections Prevalent Egregious Failures

 Unauthorized Personnel  Wash Hands  Time Limits DOT Clandestine Inspections Prevalent Egregious Failures

DOT Laboratory Testing Data January thru December 2009 Total Results5,163,165 Positives77,865 (1.5%) PREVALENCE Amphetamines Amphetamines18.2% Cocaine16.6% Opiates12.8% PCP1.7% THC50.7% Total Results5,163,165 Rejected7,106 (0.14%) Tampered8,421 (0.16%) PREVALENCE Adulterated10.5% Substituted27.8% Invalid61.7%

 C/TPA Compliance Reviews  Clandestine Collection Site Reviews  Revised Updated Collection Guidelines What’s Next…

ODAPC Staff Mark Snider Senior Policy Advisor Bohdan Baczara Policy Advisor Vicki Bellet Maria Lofton Administrative Bob Ashby Office of General Counsel Patrice Kelly Deputy Director Jim L. Swart Director Cindy Ingrao Senior Policy Advisor