[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