DOT Program Update Federal Transit Administration Annual Conference March 17-18, 2010

1. U.S. Department of Transportation 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

3. Presentation Preview • What is ODAPC’s Mission? • Who do we regulate and why? • What does our regulation cover? • Recent events… • What’s next…

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

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

6. FMCSA 49 CFR Part 382 FRA 49 CFR Part 219 PHMSA 49 CFR Part 199 FTA 49 CFR Part 655 49 CFR Part 40 FAA 14 CFR Part 120 46 CFR Part 4, 16 USCG

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

8. 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 What does our regulation (49 CFR Part 40) cover?

9. Recent Events… 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 . . .

10. 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

11. US Court of Appeals for the District of Columbia Circuit Ruling • 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.

12. 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.

13. 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.

14. Recent Events… Public Interest Exclusion

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

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

17. Current Issues – NPRM Published February 4, 2010 • 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.

18. 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.

19. Current Issues – NPRM Published February 4, 2010 Primary laboratory proposals include: Testing for MDMA (aka. Ecstasy); 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.

20. 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.

21. Emphasis For DOT Inspections of Collection Sites • “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

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

23. DOT Clandestine Inspections Prevalent Egregious Failures • Unauthorized Personnel • Wash Hands • Time Limits

24. DOT Laboratory Testing Data January thru December 2009

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

26. www.dot.gov/ost/dapc

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