[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-2040]


[[Page Unknown]]

[Federal Register: February 15, 1994]


_______________________________________________________________________

Part IX





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



14 CFR Part 121



Coast Guard



46 CFR Part 16



Research and Special Programs Administration



49 CFR Part 199



Federal Railroad Administration



49 CFR Part 219



Federal Highway Administration



49 CFR Part 382



Federal Transit Administration



49 CFR Part 653




Random Drug Testing Program; Proposed Rule
DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

Coast Guard

46 CFR Part 16

Research and Special Programs Administration

49 CFR Part 199

Federal Railroad Administration

49 CFR Part 219

Federal Highway Administration

49 CFR Part 382

Federal Transit Administration

49 CFR Part 653

[OST Docket No. 48498 , Notice 94-2]
RIN 2105-AB94

 
Random Drug Testing Program

AGENCIES: Office of the Secretary, Federal Aviation Administration, 
Federal Highway Administration, Federal Railroad Administration, 
Federal Transit Administration, Research and Special Programs 
Administration, and the United States Coast Guard, DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: Five operating administrations--the Federal Aviation 
Administration (FAA), the Federal Highway Administration (FHWA), the 
Federal Railroad Administration (FRA), the Research and Special 
Programs Administration (RSPA) and the United States Coast Guard 
(USCG)--currently require random drug testing of safety-sensitive 
employees. In a final rule published elsewhere in today's Federal 
Register, the Federal Transit Administration (FTA) , also a part of 
DOT, is adopting a parallel rule for covered transit employees.
    In response to public comments, petitions submitted by industry, 
and on its own initiative, the FAA, FRA, FHWA, RSPA, USCG and FTA (the 
operating administrations or ``OAs'') are proposing to lower the 
minimum random drug testing rate to 25 percent where the industry-wide 
(e.g., aviation, rail) random positive rate is less than 1.0 percent 
for 2 calendar years while testing at 50 percent. The rate would return 
to 50 percent if the industry random positive rate were 1.0 percent or 
higher in any subsequent calendar year. The industry-wide random 
positive rate for each transportation industry would be calculated from 
data submitted to the Department and announced yearly by the respective 
Administrator or the Commandant of the Coast Guard.

DATES: Comments are due April 18, 1994.

ADDRESSES: Comments should be sent to the docket number and address of 
the relevant OA. General comments may be sent to Docket 48498, Office 
of Documentary Services (C-55), U.S. Department of Transportation, room 
4107, 400 Seventh Street SW., Washington, DC 20590-0001. It is not 
necessary to send copies to both the OST docket and the operating 
administration docket.

FAA--Docket 25148 and 26604, Federal Aviation Administration, 800 
Independence Ave SW., room 915-G, Washington, DC 20591.
USCG--Docket 93-089, United States Coast Guard, 2100 2nd Street SW., 
room 3406, Washington, DC 20593.
RSPA--Docket PS-134, Research and Special Programs Administration, 400 
Seventh Street SW., room 8419, Washington, DC 20590.
FRA--Docket RSOR-6, Federal Railroad Administration, 400 Seventh Street 
SW., room 8209, Washington, DC 20590.
FHWA--Docket No. MC-94-5, Federal Highway Administration, 400 Seventh 
Street SW., room 4232, Washington, DC 20590.
FTA--Docket 93-C, Federal Transit Administration, 400 Seventh Street 
SW., room 9316B, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Dr. Donna Smith, Acting Director, 
Office of Drug Enforcement and Program Compliance, (202) 366-3784.

SUPPLEMENTARY INFORMATION:

Regulatory Background

    DOT agencies have been involved in drug testing since the mid-
1980s. The USCG has tested its uniformed personnel for drug use since 
1982. DOT began random drug testing of certain of its civilian 
employees in September 1987.
    The Department's civilian employee drug testing program is tightly 
controlled, centrally administered by headquarters staff, and monitored 
daily. Employee awareness and the visibility of the program are 
maintained through training programs conducted by regional drug program 
coordinators. Specimens are collected by a single contractor service, 
which operates under a uniform standard of procedures that provides for 
consistent and reliable collections.
    The random testing program was phased in and, by September 1988, 
DOT was testing a population of nearly 33,000 federal civilian 
employees (primarily air traffic controllers, safety inspectors and 
individuals with high security clearances) at a testing rate of at 
least 50 percent each year for illegal drug use. The annual rate of 
positive random tests has declined from about 0.83 percent to as low as 
0.21 percent over the last six years. Over the past four years, the 
rate has consistently stayed well below 0.5 percent. The data indicated 
that, in this homogeneous, skilled, and stable population, there was no 
distinction in the percentage of positive testing results based on 
geography, age, etc. As a result of the apparent deterrent effect of 
the testing program as demonstrated by carefully-maintained 
recordkeeping, long experience, and the decreasing number of positive 
results, the Department lowered its federal employee random testing 
rate. Effective March 1, 1992, the Department has been conducting 
random testing at a rate of at least 25 percent annually. The positive 
rate continues to remain at a similarly low level. The Department will 
continue to evaluate the data and will adjust the random testing rate, 
as necessary. The testing rate adjustment saved the Department 
approximately 40 percent in annual collection and laboratory testing 
costs.
    The Federal Railroad Administration (FRA) has the longest 
experience with drug testing programs applicable to transportation 
industry workers. In 1986, railroads began pre-employment, post 
accident, and reasonable cause/suspicion testing, as required by the 
FRA.
    In 1988, the Department of Transportation issued six final rules 
mandating anti-drug programs for certain transportation workers in the 
aviation, interstate motor carrier, pipeline, maritime and transit 
industries and expanded the requirements of the existing FRA rule. The 
rules included requirements for education, training, testing and 
sanctions. The testing component of each program included pre-
employment, post-accident, reasonable cause, periodic (for those 
subject to periodic medical examinations) and random drug testing for 
approximately four million workers in safety-sensitive positions. Based 
on extensive experience and success in testing military and other 
populations, the Department imposed wide scale random testing 
requirements because unannounced random drug testing is generally 
regarded as the best method of deterring illegal drug use, thereby 
enhancing the safety of the transportation industries.
    The OAs' rules imposed a random testing rate of at least 50 percent 
per year. This means that if an employer has 400 covered employees, the 
employer must conduct at least 200 random tests per year. Selection for 
testing must be random, with every employee in the random pool having 
an equal chance of being chosen each time a selection is made. Because 
of the randomness, some employees could be tested more than once in a 
given year, while others might not be tested for years. However, every 
covered employee would know that he or she had one chance in two of 
being tested each year. Employers were allowed to phase in random 
testing at a rate of 25 percent for the first year, but had to increase 
to at least a 50 percent testing rate after one year.
    After the final rules were issued, lawsuits delayed implementation 
of the rules for three of the six DOT agencies. Currently, only transit 
workers are not covered by the testing regulations. The 1988 final rule 
adopted by the Federal Transit Administration (formerly called the 
Urban Mass Transportation Administration) was vacated by the United 
States Court of Appeals for the District of Columbia Circuit because of 
a lack of statutory authority. Legislation (the FTA provisions of the 
Omnibus Transportation Employee Testing Act of 1991, Pub. L. 102-143, 
Title V, October 28, 1991) was subsequently enacted to remedy this 
problem as well as address other significant concerns with alcohol 
misuse and illegal drug use by individuals in various transportation 
industries who perform safety-sensitive duties. A final rule covering 
transit employees is published elsewhere in today's Federal Register. 
The rule provides, among other things, that transit employees will be 
subject to a random testing rate of at least 50 percent.
    The Federal Railroad Administration phased in random testing in 
three groups: large railroads, medium-size railroads, and short line 
railroads. In January 1990, large railroads began testing at 25 
percent, medium-size railroads began testing at 25 percent in July 1990 
and short line railroads began testing at 25 percent in November 1990. 
Random testing at a 50 percent rate began one year after these dates 
for each of the three categories.
    In the aviation industry, the 25 percent rate was instituted for 
large air carriers in December 1989, for medium-size carriers in April 
1990, and for the smallest carriers in August of 1990. Testing at 50 
percent began one year after the initial phase-in. Testing of 
contractor employees (such as repair station personnel or security 
screeners) began one year after the carriers that they worked for or 
supported initiated testing.
    Testing of pipeline personnel began with phase-in (25 percent ) 
testing in April 1990 for large operators and in August 1990 for small 
operators, with the 50 percent rate implemented one year later by each 
group.
    Random and non-suspicion-based post-accident drug testing in the 
motor carrier industry were enjoined by court order, although the other 
types of testing were implemented on December 21, 1989. After the 
injunction was lifted, random testing by large motor carriers began in 
November 1991 at a 25 percent rate and testing by small motor carriers 
began in January 1992 at a 25 percent rate. One year after these dates, 
the rate increased to 50 percent. (The current rule covers just 
interstate motor carriers, but a final rule in today's Federal Register 
will extend coverage to all employers and persons who use individuals 
who are required to have commercial driver's licenses, including 
employees of intrastate motor carriers and school bus drivers who drive 
vehicles covered by the drug rule.)
    The USCG rule regarding random testing of some commercial vessel 
personnel was enjoined by court order in December 1989. Other types of 
testing were phased in commencing in June 1989. In July 1991, the USCG 
issued a revised rule addressing the court's concerns and justifying 
the categories of employees subject to random testing. In October of 
1991, the maritime industry began testing at a 25 percent random rate 
with a requirement to increase to a 50 percent rate one year after 
implementation. There was no distinction between large and small 
maritime employers for this implementation of random testing.
    Only the Federal Aviation Administration and the Federal Railroad 
Administration require their regulated employers, with minor 
exceptions, to report testing statistics to them. The Federal Highway 
Administration, the U.S. Coast Guard and the Research and Special 
Programs Administration review records maintained by covered employers, 
but do not have composite data on testing statistics for their 
industries. Separate final rules published in the Federal Register on 
December 23, 1993, require that certain employers regulated by all five 
OAs submit uniform data concerning drug testing on an annual basis to 
those administrations. (Data from the motor carrier industry would be 
gathered on a survey basis.) In a final rule published in today's 
Federal Register, FTA is requiring similar reporting requirements for 
the drug testing requirements it is imposing on the transit industry.

The ANPRM

    On December 15, 1992 (57 FR 59778), DOT published an advance notice 
of proposed rulemaking (ANPRM) requesting public comment and submission 
of data concerning whether there are less costly alternatives to the 
current random testing program that can maintain an adequate level of 
deterrence and detection of illegal drug use. Although the anti-drug 
regulations were promulgated by various DOT agencies, we issued a 
Departmental ANPRM because of the commonality of the issues.
    The purpose of the ANPRM was to seek data and ideas on additional 
strategies that would ensure the continued effectiveness of the 
Department's anti-drug program while reducing its cost. The ANPRM asked 
for comment on a number of alternatives to the current 50 percent 
random testing rate that DOT could consider. These alternatives 
included:
    (1) Making an across-the-board modification of the rate for all DOT 
anti-drug programs;
    (2) Modifying how the random testing rate is implemented (e.g., 
frequency of testing, etc.);
    (3) Making a selective modification of the rate by
    (a) Operating administration (e.g., FAA or FRA could modify its 
rate);
    (b) Job category (e.g., pilots, train engineers);
    (c) Any other category that warranted a different rate based on 
drug use prevalence or other factors (e.g., age or geographic region);
    (4) Establishing a performance standard program;
    (5) Permitting employers who take specified additional steps to 
deter drug use to reduce their random testing rate;
    (6) Modifying the random testing rate for all operating 
administration rules for a specific time period, subject to 
reconsideration after the results are analyzed;
    (7) Conducting demonstration programs in each operating 
administration before further action is taken; or
    (8) Combining some of the alternatives.
    In addition, we asked for comment on a number of other issues, most 
notably costs and data on positive test results.

Comments

    Over 115 comments were filed in response to the ANPRM. Commenters 
included governmental agencies, trade associations, regulated entities, 
unions, contractors and consultants, and individuals.
    In terms of the appropriate random testing rate, the comments 
ranged from suggestions to abolish all random testing requirements to 
greatly increasing the current 50 percent testing rate. Those favoring 
abolition of random testing argued that the federal requirements are 
intrusive, punitive, costly, and unnecessary. Several commenters argued 
that post accident and reasonable suspicion testing were adequate. 
Others supported pre-employment and periodic testing, in addition to 
post accident and reasonable suspicion testing.
    Over 20 commenters favored a rate of less than 25 percent. These 
commenters tended to focus on the low prevalence of drug use in the 
workplace, the high cost of testing and time lost from the job. Over 50 
commenters favored a testing rate of 25 percent. A number argued that 
the drug problem is not as widespread as originally believed. In 
general, these commenters argued that a 25 percent rate would provide 
substantial savings while maintaining a serious deterrent effect. Many 
focused on the cost of the current program and argued that the savings 
from reducing the incremental number of tests and associated non-
productive time would be significant. Others took a more holistic 
approach and noted that other types of tests, training and education 
were also deterrents.
    Over a dozen commenters supported the current system. They argued 
that a decrease in the rate will increase recreational use and 
undermine the deterrent purpose of the program. Several stated that the 
data were inadequate to justify a reduction and that costs will not 
drop because the lower volume will result in higher per test costs. 
Others took an ``if it ain't broke, don't fix it'' attitude.
    Four commenters argued that the rate should be increased. These 
commenters stated that a greater perception of getting caught would 
result in less drug use. At least one noted that at a 50 percent 
testing rate, some employees are never tested while others are tested 
two or more times per year.
    The ANPRM asked for comment on whether any change should be made 
across all operating administrations or selectively by industry, 
company, or job classification. Most who favored a differentiated 
approach suggested that the rate be set by industry. Many of these 
commenters believed that their industry was better than others and that 
they were being penalized unfairly by unrelated ``bad actors.'' There 
was some support for setting the rate by job categories tempered by the 
concern that such differentiation not be arbitrary. An equal number of 
commenters stated that it would be confusing to have too many subgroups 
and argued for a more even-handed approach. A number of commenters 
suggested that employers should have flexibility to set the rate at 
whatever level they thought best, based on their own past experience.
    Many commenters focused on the importance of research, employee and 
supervisor education, employee assistance programs and effective 
enforcement to deter drug use. Most of these comments focused on making 
the drug testing requirements and the employers' policies highly 
visible to employees. In particular, a strong ``for cause'' testing 
policy and firm discipline was seen by most of these commenters to be 
essential.
    A number of commenters provided information on costs and positive 
rates. Virtually all the commenters that discussed positive rates 
stated that there had been no, or very few, positive random test 
results in their companies or industries. Comments on the cost per test 
ranged from the teens to well over a hundred dollars. The general 
comments on cost savings that could be attributed to a change in the 
random rate also varied considerably. Some argued that the savings 
would be proportionate to the change in the testing rate because they 
pay a set fee per drug test. Most believed there would be a substantial 
savings, although the amount of savings would not directly correlate to 
the testing rate because the employer still had fixed administrative 
costs in running the program. A few commenters argued that costs would 
not drop at all because labs will simply charge more for tests. The 
comments on costs and benefits are discussed in greater detail in the 
accompanying regulatory evaluations prepared by each OA and available 
for review in the docket.
    Commenters differed on how much data they believed necessary to 
justify a change in the testing rate. Most commenters believed at least 
two years were necessary, although some believed one year was adequate 
and others, up to five years. There was some support for demonstration 
programs, particularly if they would result in the random testing rate 
being lowered without delay. Those viewing demonstration programs as a 
``tactic'' to delay across the board lowering of the testing rate 
opposed them vigorously.

Technical Meeting

    In addition to soliciting written comments, the Department held a 
public meeting on workplace random testing and its impact on drug use 
deterrence in Washington, DC, on February 1 and 2, 1993. The meeting 
included presentations by experts from federal agencies and the 
military, academia and private industry. Over 20 participants presented 
papers and sparked discussions that ranged from mathematical models of 
drug testing rates and their impact on drug use to program data from 
corporations using random drug testing as part of a drug-free workplace 
strategy. The participants presented no definitive data that identified 
optimal random testing rates for achieving maximum deterrence of drug 
use. Many corporate representatives expressed views that favored 
reducing required random testing rates; however, they did not support 
their views with specific data on the causal or correlative 
relationship between random testing rates and drug use deterrence. The 
discussions also covered the corollary issue of detection of drug 
abusers who are not deterred by workplace drug prevention policies or 
programs. The meeting was attended by over 200 people and included 
question and answer periods. Transcripts of the meeting are included in 
the docket.

Available Data

    The Department would appreciate public comment in identifying 
additional data concerning the effectiveness of random testing rates. 
The following summarizes the data currently available to the Department 
concerning the results of random testing in the regulated industries, 
the Department's civilian workforce, and the U.S. Coast Guard military 
personnel. 

------------------------------------------------------------------------
                                           1990       1991        1992  
------------------------------------------------------------------------
Aviation:                                                               
  Total Number of Random Tests.........     84,585    170,439    183,176
  Number of Positives..................        445      1,258      1,307
  Percent Positive.....................       0.53       0.74       0.71
Railroads:                                                              
  Total Number of Random Tests.........     35,228     50,436     42,599
  Number of Positives..................        365        447        336
  Percent Positive                            1.04       0.88      0.79 
------------------------------------------------------------------------

    FRA's random testing regulations were issued in November 1988, with 
the first testing, as noted earlier, starting in January 1990. FRA has 
kept records of post-accident drug testing for the last five years. For 
purposes of analyzing any effect from the issuance of the requirement 
or the implementation of the testing, the positive rates for post-
accident testing are provided; they are as follows:

------------------------------------------------------------------------
   1987         1988         1989        1990        1991        1992   
------------------------------------------------------------------------
5.1%.......      5.6%         3.0%        3.0%        1.1%        1.8%  
------------------------------------------------------------------------

    In the rail industry, reasonable cause testing occurs whenever 
there is a violation of a federal safety rule (Rule G), as opposed to 
when there is individualized suspicion of drug use. The positive rates 
are as follows:

------------------------------------------------------------------------
   1987         1988         1989        1990        1991        1992   
------------------------------------------------------------------------
5.4%.......      4.7%         3.6%        1.8%        1.9%        1.9%  
------------------------------------------------------------------------

    In July 1991, the FRA initiated a comparative study of random 
testing rates and the impact on deterrence, as measured by the positive 
rate. The study compared 4 railroads testing at 50 percent (control 
group) with 4 railroads testing at 25 percent (experimental group). The 
positive rate for the control group when the study was initiated was 
1.1 percent; for the experimental group it was 0.89 percent. In the 
first year (July 1991 through June 1992), the control group positive 
rate was 0.90 percent, the experimental group's was 0.87 percent. For 
the period July 1992 through June 1993, these groups had positive rates 
of 0.80 percent and 0.94 percent, respectively. Statistically, the 
differences in the positive rates between the control and experimental 
groups are not significant.

Motor Carriers

    In general compliance investigations of 4,967 interstate motor 
carrier drug testing programs by FHWA in the first six months of FY 
1993, records indicated that 28,250 random tests were conducted. There 
were 878 verified positive results (3.11 percent). The audits represent 
less than 2 percent of the motor carriers subject to the FHWA rule. The 
FHWA selects interstate motor carriers for general safety rule 
compliance investigations by determining factors such as a safety 
rating or prior compliance problem. These compliance investigations do 
not offer scientific, statistically unbiased sampling methods.
    The Omnibus Transportation Employee Testing Act of 1991 (Pub.L. 
102-143, Title V, Section 5) requires FHWA to conduct a demonstration 
project to study the feasibility of random roadside alcohol and 
controlled substances testing. The project's goal is to consider 
alternative methodologies for implementing random testing systems for 
commercial motor vehicle operators. Congress' intent was for the FHWA 
to report and make recommendations concerning random testing 
administered by means other than carrier-administered testing. 
Preliminary data from the four state random roadside testing project 
indicate that of 34,127 drug tests conducted, 1,241 (3.9 percent) were 
positive for drugs. An additional 1,305 drivers randomly selected for a 
drug test refused to be tested.
    The report is to address the effectiveness of State-administered 
testing in detecting individuals, such as owner-operators, who might 
otherwise avoid detection in carrier-administered testing programs. The 
report, Congress stated, may also include testing or other detection 
methods performed by Federal or local agencies. In addition, the report 
is to address the funding of such testing through existing State grant 
programs or other similar programs. The report is due to Congress by 
April 1994.

U.S. DOT Employees

    In the Department's federal employee testing program, the random 
testing rate of at least 50 percent was phased-in over the first year 
of the program and achieved at the end of FY 1988. A testing rate of at 
least 50 percent was maintained in FY 1989-1991. In FY 1992, the 
figures include testing over the first five months with a rate of at 
least 50 percent, followed by seven months of testing with a rate of at 
least 25 percent. (FY93 figures reflect a full year with the lower 
testing rate) The following table summarizes DOT federal employee 
random testing data. 

----------------------------------------------------------------------------------------------------------------
                                                  FY88       FY89       FY90       FY91       FY92       FY93   
----------------------------------------------------------------------------------------------------------------
Total Number of Random Tests..................      5,047     17,926     19,103     18,671     12,454      9,433
Number of Positives...........................         42         92         43         40         39         24
Percent Positive..............................       0.83       0.51       0.23       0.21       0.31      0.25 
----------------------------------------------------------------------------------------------------------------

    As noted earlier, the USCG has been conducting random drug tests on 
its active duty and reserve uniformed personnel. Rather than setting a 
specific testing rate as a requirement at the beginning of the fiscal 
year, the USCG conducts the maximum number of tests possible from the 
funds that are appropriated. The percentage of positive results for 
random tests in each fiscal year and the approximate testing rate is as 
follows:

----------------------------------------------------------------------------------------------------------------
                                              1987      1988      1989      1990      1991      1992      1993  
----------------------------------------------------------------------------------------------------------------
Percent Positive..........................      1.57      1.31        68        41        41        78        75
Testing Rate Percent......................       120        95        95        95        85        85       80 
----------------------------------------------------------------------------------------------------------------

Testing Rates in Various Federal Agencies

    Executive Order 12564, ``Drug-Free Federal Workplace,'' signed by 
President Reagan in September 1986, required random drug testing of 
safety- and security-related federal employees in 135 federal executive 
branch agencies. According to a 1991 report of the General Accounting 
Office (``Employee Drug Testing: Status of Federal Agencies' Programs: 
Report to the Chairman, Committee on Governmental Affairs,'' U.S. 
Senate, (May 1991), GAO/FFD-91-70, 14-19), the random drug testing 
rates at the 18 agencies that GAO reviewed ranged from 4 to 100 
percent. In November 1992, GAO issued a follow-up report entitled 
``Employee Drug Testing: Opportunities Exist to Lower Drug-Testing 
Program Costs.'' GAO/GGD-93-13. Although the 1992 report did not reach 
any definitive conclusions as to what is the ideal frequency for drug 
testing, it did recommend that the Director of the Office of National 
Drug Control Policy work with drug-testing agencies to consider 
modifications to their selected frequency levels of employee testing.

The Proposal

    This NPRM proposes to lower the random testing rate to 25 percent 
for each industry regulated by an operating administration where the 
industry-wide random positive rate is less than 1.0 percent for 2 
consecutive calendar years while testing at 50 percent. The rate would 
increase back to 50 percent if the industry random positive rate were 
1.0 percent or higher for any entire subsequent calendar year. Under 
the proposal, it is possible that different industries will be subject 
to different rates in a given calendar year.
    We selected the 1.0 percent positive rate as the rate adjustment 
standard based on the experience that the military and other workplace 
programs have had with deterrence-based drug testing. Their results 
reveal that no matter what rate is used for random testing, the testing 
programs will never achieve zero positives. There always is a constant 
group of ``hard-core'' individuals of less than 1.0 percent of the 
population who are detected positive over a period of time; these 
individuals are unaffected by deterrence-based testing because of 
addiction or belief in their invincibility.
    Because the proposal will require review of the data and 
calculations within the operating administrations, the NPRM proposes 
that each year the Administrator (or Commandant of the Coast Guard) 
will publish in the Federal Register the minimum required percentage 
for random testing of covered employees during the calendar year 
following publication. Any random rate change indicated by industry 
performance would occur at the beginning of that calendar year. We 
request comment on whether a different implementation cycle would be 
better.
    The Administrator's decision to authorize a decrease (or require a 
return to the 50 percent rate) would be based on the overall positive 
rate in the industry. The primary source of data will be the Management 
Information System (MIS) reports from covered employers to the 
individual operating administrations. For the aviation and rail 
industries, we are proposing to rely on the data submitted under 
reporting requirements that have been in place since their drug testing 
rules were originally issued. The FAA drug testing rule currently 
requires all employers to report, among other things, the total number 
of tests, the number of positive tests and the number of employees that 
refused to be tested. Similarly, FRA requires large railroads to report 
detailed information concerning their drug testing performance. Based 
on these reports, FAA and FRA could lower their rate to 25 percent as 
early as January 1995 (if a final rule is issued in this rulemaking 
before the end of 1994).
    Under the NPRM, if a given covered employee is subject to random 
drug testing under the drug testing rules of more than one DOT agency, 
the employee would be subject to random drug testing at the percentage 
rate established for the calendar year by the DOT agency regulating 
more than 50 percent of the employee's function. Similarly, the NPRM 
provides that if an employer is required to conduct random drug testing 
under the drug testing rules of more than one DOT agency, the employer 
may either establish separate pools for random selection, with each 
pool containing covered employees subject to testing at the same 
required rate, or randomly select such employees for testing at the 
highest percentage rate established for the calendar year by any DOT 
agency to which the employer is subject.
    The proposal includes several provisions to provide employers 
greater flexibility or to provide greater clarity. For example, the 
NPRM proposes that, if the employer conducts random testing through a 
consortium, the number of employees to be tested may be calculated for 
each individual employer or may be based on the total number of covered 
employees subject to random testing by the consortium. In order to 
ensure deterrence, the dates for administering random tests would be 
required to be spread reasonably throughout the calendar year .
    There are a number of important issues related to calculating the 
positive rate. Consistent with the final rules addressing alcohol 
misuse prevention that are being published in today's Federal Register, 
the term ``positive rate'' would be defined in the definition section 
of each operating administration drug rule as, ``the number of positive 
results for random tests conducted under this part plus the number of 
refusals of random tests required by this part, divided by the total 
number of random tests conducted under this part plus the number of 
refusals of random tests required by this part.''
    This NPRM would add a definition of ``refuse to submit'' in each 
operating administration drug rule. The definition would be ``a covered 
employee [who] fails to provide a urine sample as required by 49 CFR 
part 40, without a valid medical explanation, after he or she has 
received notice of the requirement to be tested in accordance with the 
provisions of this part, or engages in conduct that clearly obstructs 
the testing process.'' As a practical matter this means that refusals 
to take a random drug test would count as a positive result for the 
purpose of calculating the industry random test rate and would count 
toward the number of tests required to be conducted. Since they are 
treated as if they are positive, we believe they should be counted in 
the totals. Moreover, without this approach, the system could be easily 
abused. For example, employers with high positive rates might have an 
incentive to subtly communicate that employees that test positive will 
be fired but employees that refuse to be tested will receive little or 
no punishment.
    Drug urine samples found to be adulterated are considered a refusal 
to test because they are an obstruction of the testing process. In 
addition, they count as positives for the purpose of calculating the 
industry random test rate and count toward the number of tests required 
to be conducted. Administrative or procedural errors during the testing 
process, such as breaking the container holding the sample, are 
considered canceled tests and are not counted in the totals when 
calculating the industry random test rate.
    Before lowering the testing rate in any industry, the Department 
wants to be confident that the data are reliable and fairly represent 
the drug prevalence in the industry. The MIS rules require that 
employers submit data for each calendar year by the following March 
15th. We envision that the OAs and the OST Drug Office would review the 
data and that the Administrator (or Commandant) would issue a 
determination within a few months. If the data indicated that a change 
in the rate were warranted, the change would go into effect the 
following year, beginning January 1. This process is the same as the 
one established in the alcohol final rules published elsewhere in 
today's Federal Register. As in that rule, we believe that covered 
entities generally need approximately one-half year lead time to adjust 
their procedures, make changes in any contracts and take other 
necessary action to adjust to an increase or decrease. We also believe 
it would be best to keep the reporting determination process on a 
consistent, calendar year basis. We are aware that this process has a 
built-in delay, and request comments on whether there is some easier 
method that, at the same time, provides adequate time to gather and 
submit data, issue a Federal Register notice, and implement the change.
    Of equal or greater concern is the built-in lag time between 
industry reports of rising positive rates and the OA's re-imposition of 
the 50 percent testing rate. To address this concern, the rule provides 
that the rate will be raised after 1 year of data indicating a positive 
rate of 1.0 percent or greater. As a practical matter, however, any 
industry that is lowered to a 25 percent rate cannot be returned, under 
the current proposal, to a 50 percent rate until a year after the data 
indicating the problem. For the reasons noted above, we do not think it 
is practical to require a change in the testing rate on shorter notice.
    We recognize that because the reported positive rate is obtained 
from data whose precision is eroded by sampling variance and 
measurement error, and whose accuracy is diminished by non-response 
bias, there is a greater risk that it diverges from the actual positive 
rate in the population. Each OA will be using MIS data collection and 
sampling methods that address these issues to the extent possible and 
make sense in the context of its particular industry. Where not all 
employers are included in the reported data, the OA will decide how 
many covered employers must be required to report or be sampled; this 
decision will be based on the number of employers (not otherwise 
required to report) that must be sampled to ensure that the reported 
data from the sampled employers reliably reflects the data that would 
have been received if all were required to report. However, we retain 
for our discretion the decision on whether the reported data reliably 
support the conclusion (e.g., based on audits of company records that 
show significant falsification of reports). If the reported data are 
not sufficiently reliable, the OA will not permit the random rate 
adjustment to occur.
    We have proposed using industry positive rates (positive tests and 
refusals to test) as the performance benchmark rather than individual 
employer or job category positive rates urged by some commenters. 
Company-by-company rates would be extremely difficult to implement and 
enforce, would be extremely difficult to apply to small companies, 
would require reports from all companies, could encourage cheating 
(especially in areas of heavy competition), and could excessively 
complicate the use of consortia. Although an individual company may 
have reduced incentive to lower its positive rate, industry 
organizations may pressure it to work toward a more favorable industry 
random testing rate. Industry-wide rates should be much more effective, 
and easier to implement and enforce. In addition, setting testing rates 
by job category would raise difficult questions of classification and 
might appear discriminatory to the employees involved.
    The practical implication of this NPRM is that FHWA, RSPA and USCG 
would remain at 50 percent until they have 2 years of data showing that 
random positive rates for their industries are less than 1.0 percent. 
FTA, which is just issuing its drug testing rules in today's Federal 
Register, will begin random drug testing at 50 percent. Like the other 
operating administrations, it may only lower the rate after 2 years of 
data showing that the random positive rate for its industry is less 
than 1 percent. The 2-year period for motor carriers and mass transit 
would only start after their new drug testing requirements are fully 
implemented, i.e., two years after testing for small entities starts. 
If this proposal is adopted, we will announce in the final rule in this 
rulemaking whether one, or both, industries may lower their random drug 
testing rate.
    The Coast Guard is also proposing to remove existing (and no longer 
applicable) regulatory language that allowed existing marine employers 
to begin their random drug testing at a 25 percent annual rate (46 CFR 
16.205(d)). This provision was included to reduce the initial burden 
that the then-new random drug testing program would impose on 
employers. Because the provision no longer serves any purpose, and may 
lead to confusion, the Coast Guard proposes to remove this regulatory 
language.
    RSPA is proposing to revise the random testing cycle to a calendar 
year beginning on January 1 and ending December 31. The December 23, 
1994, Management Information System final rule requires operators to 
begin collecting drug testing data in 1994, and to report that 
information to RSPA on an annual basis beginning in 1995. The current 
regulations required operators to begin their drug testing programs, 
including random testing, in April and August 1990. RSPA believes this 
proposed change will eliminate the confusion and administrative burden 
expressed by many operators who are conducting random testing on an 
April-April or August-August cycle as required by the current 
regulations. The proposed revision will allow operators to conduct 
random testing and collect their drug testing data on a calendar year 
cycle.

Comparison With Alcohol Misuse Prevention Final Rules

    With one major exception, this proposal is intended to mirror, in 
concept, the final rules for alcohol testing being issued in today's 
Federal Register. Those rules initiate random alcohol testing at a 25 
percent rate and make provision for the testing rate to be increased to 
50 percent if the positive rate is 1.0 percent or greater for any 
entire subsequent year, and decreased to a 10 percent testing rate if 
less than 0.5 percent for two consecutive years. The exception is that 
this NPRM does not propose to lower the random testing rate to 10 
percent if the industry positive rate is less than 0.5 percent.
    The Department tentatively finds that a 25 percent random testing 
rate is the minimal effective rate to ensure deterrence for drug use 
and to allow at least a modicum of detection. The drug rules are 
dealing, by and large, with illegal substances or, at least, legal 
substances that are being used contrary to lawful purposes. Unlike 
alcohol, few people can readily detect most drug use from behavior or 
appearance. Because of the legality of alcohol and its everyday use 
throughout society, many people can detect when it has been consumed or 
when a person is under the influence. Another distinction is that drugs 
are often packaged in very small form, such as a tablet or powder, 
while many common forms of alcohol, such as beer or wine, are more 
visible because of the size of their containers. Thus, alcohol misuse 
appears to be more easily deterred or detected than drug use and it is 
not as necessary to establish as strong a deterrence for alcohol 
through the tool of random testing. We solicit comment, however, on 
whether the alcohol approach should be considered for the final drug 
rule.

Regulatory Analyses and Notices

DOT Regulatory Policies and Procedures

    The NPRM is considered to be a significant rulemaking under DOT 
Regulatory Policies and Procedures, 44 FR 11034, because of the 
substantial public and Congressional interest in this subject. 
Regulatory evaluations for each OA have been prepared and are available 
for review in the respective dockets. This NPRM was reviewed by the 
Office of Information and Regulatory Affairs pursuant to Executive 
Order 12866.
    FAA estimates an average potential cost savings of approximately 
$8.9 million per year if the testing rate is dropped to 25 percent. 
USCG estimates an annual cost savings of between $0.8 million to $1.6 
million annually; RSPA estimates $2.05 million per year; FRA estimates 
$1 million per year; FHWA estimates $107 million per year; and FTA 
estimates an average of over $7 million per year. Further detail is 
available in the OA regulatory evaluations, which are available in the 
respective dockets.

Executive Order 12612

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that it does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12630

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12630, and it has been determined 
that any potential modification in the random drug testing program does 
not pose the risk of a taking of constitutionally protected private 
property.

Regulatory Flexibility Act

    Depending on how many, if any, transportation industries qualify 
for a reduction in the random testing rate, the proposal could have a 
significant economic impact on a substantial number of small entities. 
Some transportation industries, particularly motor carriers, pipelines, 
maritime, and transit, are composed of many small companies. If the 
random testing rate were reduced, there would be a significant cost 
savings, as discussed in the accompanying regulatory flexibility 
analyses. In addition, to the extent that the rate is lowered it might 
have a negative economic impact on those contractors who provide 
services to employers covered under the rules, some of whom are small 
entities. The Department specifically seeks public comment on the 
effect, if any, of potential changes in the program on small entities, 
as well as any suggested alternative approaches. Further review will be 
conducted based on comments received on this notice.

Paperwork Reduction Act

    There are a number of reporting or recordkeeping requirements 
associated with DOT-mandated drug testing. Some of the requirements are 
currently part of the OAs' drug testing rules and some have been 
incorporated as a result of the final rules setting up the management 
information systems that were published in the Federal Register on 
December 23, 1993. To the extent that fewer random tests are required 
in a given transportation industry, there will be a proportionate 
reduction in recordkeeping, but no change in the reporting requirement.

National Environmental Policy Act

    The Department has determined that this rulemaking is not a major 
Federal action significantly affecting the quality of the human 
environment and that an environmental impact statement is not required.

    Issued on January 25, 1994, in Washington, DC.
Federico Pena,
Secretary of Transportation.

List of Subjects in 14 CFR Part 121

    Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air 
transportation, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots, 
Safety, Transportation.

    For the reasons set out in the preamble, the Federal Aviation 
Administration proposes to amend 14 CFR part 121, as follows:

PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND 
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE 
AIRCRAFT

    1. The authority citation for part 121 continues to read as 
follows:

    Authority: 49 U.S.C. 1354(a), 1355, 1356, 1357, 1401, 1421-1430, 
1485, and 1502 (revised Pub. L. 102-143, October 28, 1991); 49 
U.S.C. 106(g) (revised, Pub. L. 97-449, January 12, 1983).

    2. In Appendix I, Sec. II, the definition of ``positive rate'' 
would be added in alphabetized order, and the definition of ``refusal 
to submit'' would be revised, to read as follows:

Appendix I to Part 121--Drug Testing Program

* * * * *

II. Definitions

* * * * *
    Positive rate means the number of positive results for random 
drug tests conducted under this part plus the number of refusals to 
take random tests required by this part, divided by the total number 
of random drug tests conducted under this part plus the number of 
refusals to take random tests required by this part.
* * * * *
    Refusal to submit means that a covered employee failed to 
provide a urine sample as required by 49 CFR part 40, without a 
valid medical explanation, after he or she has received notice of 
the requirement to be tested in accordance with this appendix or 
engaged in conduct that clearly obstructs the testing process.

    3. Appendix I, Section V, Paragraph C is revised to read as 
follows:

Apendix I to Part 121--Drug Testing Program

* * * * *

V. Types of Drug Testing

* * * * *
    C. Random testing. 1. Except as provided in paragraphs 2-4 of 
this section, the minimum annual percentage rate for random drug 
testing shall be 50 percent of covered employees.
    2. The Administrator's decision to increase or decrease the 
minimum annual percentage rate for random drug testing is based on 
the reported positive rate for the entire industry. All information 
used for this determination is drawn from the drug MIS reports 
required by this appendix. In order to ensure reliability of the 
data, the Administrator considers the quality and completeness of 
the reported data, may obtain additional information or reports from 
employers, and may make appropriate modifications in calculating the 
industry positive rate. Each year, the Administrator will publish in 
the Federal Register the minimum annual percentage rate for random 
drug testing of covered employees. The new minimum annual percentage 
rate for random drug testing will be applicable starting January 1 
of the calendar year following publication.
    3. When the minimum annual percentage rate for random drug 
testing is 50 percent, the Administrator may lower this rate to 25 
percent of all covered employees if the Administrator determines 
that the data received under the reporting requirements of this 
appendix for two consecutive calendar years indicate that the 
reported positive rate is less than 1.0 percent.
    4. When the minimum annual percentage rate for random drug 
testing is 25 percent, and the data received under the reporting 
requirements of this appendix for any calendar year indicate that 
the reported positive rate is equal to or greater than 1.0 percent, 
the Administrator will increase the minimum annual percentage rate 
for random drug testing to 50 percent of all covered employees.
    5. The selection of employees for random drug testing shall be 
made by a scientifically valid method, such as a random-number table 
or a computer-based random number generator that is matched with 
employees' Social Security numbers, payroll identification numbers, 
or other comparable identifying numbers. Under the selection process 
used, each covered employee shall have an equal chance of being 
tested each time selections are made.
    6. The employer shall randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for 
random drug testing determined by the Administrator. If the employer 
conducts random drug testing through a consortium, the number of 
employees to be tested may be calculated for each individual 
employer or may be based on the total number of covered employees 
covered by the consortium who are subject to random drug testing at 
the same minimum annual percentage rate under this part or any DOT 
drug testing rule.
    7. Each employer shall ensure that random drug tests conducted 
under this appendix are unannounced and that the dates for 
administering random tests are spread reasonably throughout the 
calendar year.
    8. If a given covered employee is subject to random drug testing 
under the drug testing rules of more than one DOT agency, the 
employee shall be subject to random drug testing at the percentage 
rate established for the calendar year by the DOT agency regulating 
more than 50 percent of the employee's function.
    9. If an employer is required to conduct random drug testing 
under the drug testing rules of more than one DOT agency, the 
employer may--
    (a) Establish separate pools for random selection, with each 
pool containing the covered employees who are subject to testing at 
the same required rate; or
    (b) Randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency 
to which the employer is subject.

    Issued in Washington, DC, on January 25, 1994.
David R. Hinson,
Administrator, Federal Aviation Administration.

List of Subjects in 46 CFR Part 16

    Drug testing, Marine safety, Reporting and recordkeeping 
requirements, Safety, Transportation.

    For the reasons set out in the preamble, the Coast Guard proposes 
to amend 46 CFR part 16, as follows:

PART 16--CHEMICAL TESTING

    1. The authority citation for part 16 continues to read as follows:

    Authority: 46 U.S.C. 2103, 3306, 7101, 7301 and 7701; 49 CFR 
1.46.

    2. In Sec. 16.105, the definitions of Positive rate and Refuse to 
take (a drug test) are added in alphabetized order to read as follows:


Sec. 16.105  Definitions of terms used in this part.

* * * * *
    Positive rate means the number of positive results for random drug 
tests conducted under this part plus the number of refusals to take 
random tests required by this part, divided by the total number of 
random drug tests conducted under this part plus the number of refusals 
to take random tests required by this part.
    Refuse to submit means that a crewmember fails to provide a urine 
sample as required by 49 CFR part 40, without a valid medical 
explanation, after he or she has received notice of the requirement to 
be tested in accordance with the provisions of this part, or engages in 
conduct that clearly obstructs the testing process.
* * * * *


Sec. 16.205  [Amended]

    3. In Sec. 16.205, paragraph (d) is removed and reserved.
    4. In Sec. 16.230, paragraphs (c) and (e) are revised, paragraph 
(f) is redesignated as paragraph (k), and new paragraphs (f) through 
(j) are added to read as follows:


Sec. 16.230  Random testing requirements.

* * * * *
    (c) The selection of crewmembers for random drug testing shall be 
made by a scientifically valid method, such as a random number table or 
a computer-based random number generator that is matched with 
crewmembers' Social Security numbers, payroll identification numbers, 
or other comparable identifying numbers. Under the testing frequency 
and selection process used, each covered crewmember shall have an equal 
chance of being tested each time selections are made and an employee's 
chance of selection shall continue to exist throughout his or her 
employment. As an alternative, random selection may be accomplished by 
periodically selecting one or more vessels and testing all crewmembers 
covered by this section, provided that each vessel subject to the 
marine employer's test program remains equally subject to selection.
* * * * *
    (e) Except as provided in paragraph (f) of this section, the 
minimum annual percentage rate for random drug testing shall be 50 
percent of covered crewmembers.
    (f) The annual rate for random drug testing may be adjusted in 
accordance with this paragraph.
    (1) The Commandant's decision to increase or decrease the minimum 
annual percentage rate for random drug testing is based on the reported 
random positive rate for the entire industry. All information used for 
this determination is drawn from the drug MIS reports required by this 
part. In order to ensure reliability of the data, the Commandant 
considers the quality and completeness of the reported data, may obtain 
additional information or reports from marine employers, and may make 
appropriate modifications in calculating the industry positive rate. 
Each year, the Commandant will publish in the Federal Register the 
minimum annual percentage rate for random drug testing of covered 
crewmembers. The new minimum annual percentage rate for random drug 
testing will be applicable starting January 1 of the calendar year 
following publication.
    (2) When the minimum annual percentage rate for random drug testing 
is 50 percent, the Commandant may lower this rate to 25 percent of all 
covered crewmembers if the Commandant determines that the data received 
under the reporting requirements of 46 CFR 16.500 for two consecutive 
calendar years indicate that the reported positive rate is less than 
1.0 percent.
    (3) When the minimum annual percentage rate for random drug testing 
is 25 percent, and the data received under the reporting requirements 
of 46 CFR 16.500 for any calendar year indicate that the reported 
positive rate is equal to or greater than 1.0 percent, the Commandant 
will increase the minimum annual percentage rate for random drug 
testing to 50 percent of all covered crewmembers.
    (g) Marine employers shall randomly select a sufficient number of 
covered crewmembers for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
drug testing determined by the Commandant. If the marine employer 
conducts random drug testing through a consortium, the number of 
crewmembers to be tested may be calculated for each individual marine 
employer or may be based on the total number of covered crewmembers 
covered by the consortium who are subject to random drug testing at the 
same minimum annual percentage rate under this part or any DOT drug 
testing rule.
    (h) Each marine employer shall ensure that random drug tests 
conducted under this part are unannounced and that the dates for 
administering random tests are spread reasonably throughout the 
calendar year.
    (i) If a given covered crewmember is subject to random drug testing 
under the drug testing rules of more than one DOT agency for the same 
marine employer, the crewmember shall be subject to random drug testing 
at the percentage rate established for the calendar year by the DOT 
agency regulating more than 50 percent of the crewmember's function.
    (j) If a marine employer is required to conduct random drug testing 
under the drug testing rules of more than one DOT agency, the marine 
employer may--
    (1) Establish separate pools for random selection, with each pool 
containing the covered crewmembers who are subject to testing at the 
same required rate; or
    (2) Randomly select such crewmembers for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the marine employer is subject.
* * * * *
    Issued in Washington, DC on January 25, 1994.
Adm. J. William Kime,
Commandant, United States Coast Guard.

List of Subjects in 49 CFR Part 199

    Drug testing, Pipeline safety, Recordkeeping and reporting.

    For the reasons set out in the preamble, RSPA proposes to amend 49 
CFR part 199, as follows:

PART 199--DRUG AND ALCOHOL TESTING

    1. The authority citation for part 199 continues to read as 
follows:

    Authority: 49 App. U.S.C. 1672, 1674a, 1681, 1804, 1808, and 
2002; 49 CFR 1.53.

    2. Section 199.3 is amended by adding the following definitions in 
alphabetical order:


Sec. 199.3  Definitions.

* * * * *
    Positive rate means the number of positive results for random drug 
tests conducted under this subpart plus the number of refusals of 
random tests required by this subpart, divided by the total number of 
random drug tests conducted under this subpart plus the number of 
refusals of random tests required by this subpart.
* * * * *
    Refuse to submit means that a covered employee fails to provide a 
urine sample as required by 49 CFR part 40, without a valid medical 
explanation, after he or she has received notice of the requirement to 
be tested in accordance with the provisions of this subpart, or engages 
in conduct that clearly obstructs the testing process.
* * * * *
    3. Section 199.11 is amended by revising paragraph (c) to read as 
follows:


Sec. 199.11  Drug tests required.

* * * * *
    (c) Random testing. (1) Except as provided in paragraphs (b) 
through (d) of this section, the minimum annual percentage rate for 
random drug testing shall be 50 percent of covered employees.
    (2) The Administrator's decision to increase or decrease the 
minimum annual percentage rate for random drug testing is based on the 
reported positive rate for the entire industry. All information used 
for this determination is drawn from the drug MIS reports required by 
this part. In order to ensure reliability of the data, the 
Administrator considers the quality and completeness of the reported 
data, may obtain additional information or reports from operators, and 
may make appropriate modifications in calculating the industry positive 
rate. Each year, the Administrator will publish in the Federal Register 
the minimum annual percentage rate for random drug testing of covered 
employees. The new minimum annual percentage rate for random drug 
testing will be applicable starting January 1 of the calendar year 
following publication.
    (3) When the minimum annual percentage rate for random drug testing 
is 50 percent, the Administrator may lower this rate to 25 percent of 
all covered employees if the Administrator determines that the data 
received under the reporting requirements of Sec. 199.25 for two 
consecutive calendar years indicate that the reported positive rate is 
less than 1.0 percent.
    (4) When the minimum annual percentage rate for random drug testing 
is 25 percent, and the data received under the reporting requirements 
of Sec. 199.25 for any calendar year indicate that the reported 
positive rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random drug testing to 50 percent of all covered employees.
    (5) The selection of employees for random drug testing shall be 
made by a scientifically valid method, such as a random number table or 
a computer-based random number generator that is matched with 
employees' Social Security numbers, payroll identification numbers, or 
other comparable identifying numbers. Under the selection process used, 
each covered employee shall have an equal chance of being tested each 
time selections are made.
    (6) The operator shall randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
drug testing determined by the Administrator. If the operator conducts 
random drug testing through a consortium, the number of employees to be 
tested may be calculated for each individual operator or may be based 
on the total number of covered employees covered by the consortium who 
are subject to random drug testing at the same minimum annual 
percentage rate under this part or any DOT drug testing rule.
    (7) Each operator shall ensure that random drug tests conducted 
under this part are unannounced and that the dates for administering 
random tests are spread reasonably throughout the calendar year.
    (8) If a given covered employee is subject to random drug testing 
under the drug testing rules of more than one DOT agency for the same 
operator, the employee shall be subject to random drug testing at the 
percentage rate established for the calendar year by the DOT agency 
regulating more than 50 percent of the employee's function.
    (9) If an operator is required to conduct random drug testing under 
the drug testing rules of more than one DOT agency, the operator may--
    (i) Establish separate pools for random selection, with each pool 
containing the covered employees who are subject to testing at the same 
required rate; or
    (ii) Randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the operator is subject.
* * * * *
    Issued in Washington, D.C. on January 25, 1994.
Ana Sol Gutierrez,
Acting Administrator, Research and Special Programs Administration.

List of Subjects in 49 CFR Part 219

    Alcohol and drug abuse, Railroad safety, Reporting and 
recordkeeping requirements.

    For the reasons stated in the preamble, FRA proposes to amend 49 
CFR part 219, as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

    1. The authority for part 219 continues to read as follows:

    Authority: 45 U.S.C. 431, 437, and 438, as amended; Pub. L. 100-
342; Pub. L. 102-143; and 49 CFR 1.49(m).

    2. Section 219.5 is amended by adding, in alphabetical order, 
definitions for ``positive rate'' and ``refuse to submit'' as follows:


Sec. 219.5  Definitions

* * * * *
    Positive rate means the number of positive results for random drug 
tests conducted under this part plus the number of refusals of random 
tests required by this part, divided by the total number of random drug 
tests conducted under this part plus the numbers of refusals of random 
tests required by this part .
* * * * *
    Refuse to submit means that a covered employee fails to provide a 
urine sample as required by 49 CFR part 40, without a valid medical 
explanation, after he or she has received notice of the requirement to 
be tested in accordance with the provisions of this part, or engages in 
conduct that clearly obstructs the testing process.
* * * * *
    3. Section 219.602 is added as follows:


Sec. 219.602  Administrator's determination of random drug testing 
rate.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random drug testing 
shall be 50 percent of covered employees.
    (b) The Administrator's decision to increase or decrease the 
minimum annual percentage rate for random drug testing is based on the 
reported positive rate for the entire industry. All information used 
for this determination is drawn from the drug MIS reports required by 
this part. In order to ensure reliability of the data, the 
Administrator considers the quality and completeness of the reported 
data, may obtain additional information or reports from railroads, and 
may make appropriate modifications in calculating the industry positive 
rate. Each year, the Administrator will publish in the Federal Register 
the minimum annual percentage rate for random drug testing of covered 
employees. The new minimum annual percentage rate for random drug 
testing will be applicable starting January 1 of the calendar year 
following publication.
    (c) When the minimum annual percentage rate for random drug testing 
is 50 percent, the Administrator may lower this rate to 25 percent of 
all covered employees if the Administrator determines that the data 
received under the reporting requirements of Sec. 219.803 for two 
consecutive calendar years indicate that the reported positive rate is 
less than 1.0 percent.
    (d) When the minimum annual percentage rate for random drug testing 
is 25 percent, and the data received under the reporting requirements 
of Sec. 219.803 for any calendar year indicate that the reported 
positive rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random drug testing to 50 percent of all covered employees.
    (e) Selection of covered employees for testing shall be made by a 
method employing objective, neutral criteria which ensures that every 
covered employee has a substantially equal statistical chance of being 
selected within a specified time frame. The method may not permit 
subjective factors to play a role in selection, i.e., no employee may 
be selected as a result of the exercise of discretion by the railroad. 
The selection method shall be capable of verification with respect to 
the randomness of the selection process.
    (f) The railroad shall randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
drug testing determined by the Administrator. If the railroad conducts 
random drug testing through a consortium, the number of employees to be 
tested may be calculated for each individual railroad or may be based 
on the total number of covered employees covered by the consortium who 
are subject to random drug testing at the same minimum annual 
percentage rate under this part or any DOT drug testing rule.
    (g) Each railroad shall ensure that random drug tests conducted 
under this part are unannounced and that the dates for administering 
random tests are spread reasonably throughout the calendar year.
    (h) If a given covered employee is subject to random drug testing 
under the drug testing rules of more than one DOT agency for the same 
railroad, the employee shall be subject to random drug testing at the 
percentage rate established for the calendar year by the DOT agency 
regulating more than 50 percent of the employee's function.
    (i) If an railroad is required to conduct random drug testing under 
the drug testing rules of more than one DOT agency, the railroad may--
    (1) Establish separate pools for random selection, with each pool 
containing the covered employees who are subject to testing at the same 
required rate; or
    (2) Randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the railroad is subject.

    Issued in Washington, DC on January 25, 1994.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.

List of Subjects in 49 CFR part 382

    Alcohol and drug abuse, Highway safety, Reporting and recordkeeping 
requirements.

    For the reasons stated in the preamble, FHWA proposes to amend 49 
CFR part 382, as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

    1. The authority for part 382 continues to read as follows:

    Authority: 49 U.S.C. app. 2505; 49 U.S.C. app. 2701 et. seq; 49 
U.S.C. 3102; 49 CFR 1.48.

    2. Section 382.107 is amended by adding, in alphabetical order, a 
definition for ``positive rate'' and revising the definition for 
``refuse to submit'' as follows:


Sec. 382.107  Definitions

* * * * *
    Positive rate means the number of positive results for random drug 
tests conducted under this part plus the number of refusals of random 
tests required by this part, divided by the total number of random drug 
tests conducted under this part plus the number of refusals of random 
tests required by this part .
* * * * *
    Refuse to submit means that a driver fails to provide a urine 
sample as required by 49 CFR part 40, without a valid medical 
explanation, after he or she has received notice of the requirement to 
be tested in accordance with the provisions of this part, or engages in 
conduct that clearly obstructs the testing process.
* * * * *
    3. New paragraphs (l) though (p) are added in Sec. 382.305, as 
follows:


Sec. 382.305  Random testing.

* * * * *
    (l) Except as provided in paragraph (b) of this section, the annual 
percentage rate for random drug testing will be not less than 50 
percent of the drivers.
    (m)(1) The Administrator will authorize employers to lower the 
annual percentage rate required in paragraph (a) of this section for 
random drug testing to not less than 25 percent of all drivers when the 
FHWA determines that the data received by the FHWA for two consecutive 
calendar years under the reporting requirements of Sec. 382.403 of this 
part indicates that the positive rate is less than 1.0 percent. When 
the data for any calendar year in which the annual percentage rate for 
random drug testing is not less than 25 percent indicate that the 
positive rate is equal to or greater than 1.0 percent, the 
Administrator will require employers to increase the annual percentage 
rate for random drug testing to not less than 50 percent of all 
drivers.
    (2) The Administrator's decision to authorize a decrease or require 
return to the 50 percent minimum annual percentage rate for random drug 
testing will be based on the positive rate in the entire industry. Each 
year, the Administrator will publish in the Federal Register any change 
to the minimum required percentage for random selection of drivers 
under this part. The change will be applicable January 1 of the 
calendar year following publication.
    (3) In order to ensure statistical validity, the Administrator will 
consider the quality and completeness of the reported data and will 
make appropriate modifications in calculating the industry positive 
rate.
    (n) The employer shall randomly select a sufficient number of 
drivers for testing during each calendar year to equal an annual rate 
not less than the required percentage determined by the Administrator. 
If the employer conducts random testing through a consortium, the 
number of drivers to be tested may be calculated for each individual 
employer or may be based on the total number of covered employees 
covered by the consortium who are subject to random testing under this 
part or by any DOT drug testing rule. The dates for administering 
random tests shall be spread reasonably throughout the calendar year.
    (o) If a given driver is subject to random drug testing under the 
drug testing rules of more than one DOT agency for the same employer, 
the driver shall be subject to random drug testing at the percentage 
rate established for the calendar year by the DOT agency regulating 
more than 50 percent of the driver's function.
    (p) If an employer is required to conduct random drug testing under 
the drug testing rules of more than one DOT agency, the employer may--
    (1) Establish separate pools for random selection, with each pool 
containing drivers subject to testing at the same required rate; or
    (2) Randomly select such drivers for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the employer is subject.

    Issued in Washington, DC on January 25, 1994.
Rodney E. Slater,
Administrator, Federal Highway Administration.

List of Subjects in 49 CFR Part 653

    Drug testing, Grant programs--transportation, Mass transportation, 
Reporting and recordkeeping requirements, Safety, Transportation.

    For the reasons set out in the preamble, the Federal Transit 
Administration proposes to amend 49 CFR part 653, as follows:

PART 653--PREVENTION OF PROHIBITED DRUG USE IN TRANSIT OPERATIONS

    1. The authority citation for part 653 continues to read:

    Authority: Sec. 6, Pub. L. 102-143, 105 Stat. 917; 49 CFR 1.51.

    2. The definition of ``positive rate'' is added and the definition 
of ``refuse to submit'' is revised in Sec. 653.7 as follows:


Sec. 653.7  Definitions.

* * * * *
    Positive rate means the number of positive results for random drug 
tests conducted under this part plus the number of refusals of random 
tests required by this part, divided by the total number of random drug 
tests conducted under this part plus the number of refusals of random 
tests required by this part.
* * * * *
    Refuse to submit means that a covered employee fails to provide a 
urine sample as required by 49 CFR part 40, without a valid medical 
explanation, after he or she has received notice of the requirement to 
be tested in accordance with the provisions of this part, or engages in 
conduct that clearly obstructs the testing process.
* * * * *
    3. Section 653.47 is revised to read as follows:


Sec. 653.47  Random testing.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random drug testing 
shall be 50 percent of covered employees.
    (b) The Administrator's decision to increase or decrease the 
minimum annual percentage rate for random drug testing is based on the 
reported positive rate for the entire industry. All information used 
for this determination is drawn from the drug MIS reports required by 
this part. In order to ensure reliability of the data, the 
Administrator considers the quality and completeness of the reported 
data, may obtain additional information or reports from employers, and 
may make appropriate modifications in calculating the industry positive 
rate. Each year, the Administrator will publish in the Federal Register 
the minimum annual percentage rate for random drug testing of covered 
employees. The new minimum annual percentage rate for random drug 
testing will be applicable starting January 1 of the calendar year 
following publication.
    (c) When the minimum annual percentage rate for random drug testing 
is 50 percent, the Administrator may lower this rate to 25 percent of 
all covered employees if the Administrator determines that the data 
received under the reporting requirements of Sec. 653.73 for two 
consecutive calendar years indicate that the reported positive rate is 
less than 1.0 percent.
    (d) When the minimum annual percentage rate for random drug testing 
is 25 percent, and the data received under the reporting requirements 
of Sec. 653.73 for any calendar year indicate that the reported 
positive rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random drug testing to 50 percent of all covered employees.
    (e) The selection of employees for random drug testing shall be 
made by a scientifically valid method, such as a random number table or 
a computer-based random number generator that is matched with 
employees' Social Security numbers, payroll identification numbers, or 
other comparable identifying numbers. Under the selection process used, 
each covered employee shall have an equal chance of being tested each 
time selections are made.
    (f) The employer shall randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
drug testing determined by the Administrator. If the employer conducts 
random drug testing through a consortium, the number of employees to be 
tested may be calculated for each individual employer or may be based 
on the total number of covered employees covered by the consortium who 
are subject to random drug testing at the same minimum annual 
percentage rate under this part or any DOT drug testing rule.
    (g) Each employer shall ensure that random drug tests conducted 
under this part are unannounced and that the dates for administering 
random tests are spread reasonably throughout the calendar year.
    (h) If a given covered employee is subject to random drug testing 
under the drug testing rules of more than one DOT agency for the same 
employer, the employee shall be subject to random drug testing at the 
percentage rate established for the calendar year by the DOT agency 
regulating more than 50 percent of the employee's function.
    (i) If an employer is required to conduct random drug testing under 
the drug testing rules of more than one DOT agency, the employer may--
    (1) Establish separate pools for random selection, with each pool 
containing the covered employees who are subject to testing at the same 
required rate; or
    (2) Randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the employer is subject.

    Issued in Washington, DC on January 25, 1994.
Gordon J. Linton,
Administrator, Federal Transit Administration.
[FR Doc. 94-2040 Filed 2-3-94; 1:00 pm]
BILLING CODE 4910-62-P