Random Drug Testing Program; Proposed Rule DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]

[Unknown Section]

[Page 0]

From the Federal Register Online via the Government Publishing 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).

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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

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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

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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

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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