Random Drug Testing Program; Final Rule
Federal RegisterDec 2, 1994
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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]
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: Final rule.
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SUMMARY: In response to public comments, petitions submitted by
industry, and on their own initiative, the Federal Aviation
Administration (FAA), the Federal Highway Administration (FHWA), the
Federal Railroad Administration (FRA), the Federal Transit
Administration (FTA), the Research and Special Programs Administration
(RSPA), and the United States Coast Guard (USCG) (the operating
administrations or ``OAs'') have revised their random drug testing
rules. As revised, the rules provide that the OA may lower the minimum
random drug testing rate to 25 percent if 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 will return to 50
percent if the industry random positive rate is 1.0 percent or higher
in any subsequent calendar year. The industry-wide random positive rate
for each transportation industry will be calculated from data submitted
to the OAs and announced yearly by the respective Administrator or the
Commandant of the Coast Guard. Based on this revision, the random drug
testing rate for the railroad and aviation industries is reduced by the
FRA and FAA Administrators, respectively, to 25 percent, effective
January 1, 1995.
DATES: This rule is effective January 1, 1995.
FOR FURTHER INFORMATION CONTACT: For general questions, the Office of
Drug Enforcement and Program Compliance, (202) 366-3784; For questions
regarding a specific operating administration, please call the
following people: FTA--Judy Meade (202) 366-2896, FRA--Lamar Allen
(202) 366-0127, FHWA--David Miller (202) 366-2981, RSPA--Catrina Pavlik
(202) 366-6223, FAA--Bill McAndrew (202) 366-6710, USCG--LCDR Mark
Grossetti (202) 267-1421.
SUPPLEMENTARY INFORMATION:
Current Drug Testing Requirements
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 suspicion (reasonable cause),
periodic (for those subject to periodic medical examinations), random,
and return to duty drug testing for approximately four million workers
in safety-sensitive positions. After a phase-in of one year, the random
testing provisions of the rule required a minimum testing rate of at
least 50 percent per year. Implementation of the testing requirements
was delayed in FTA and FHWA due to litigation. Employers regulated by
FHWA began random testing of interstate drivers in 1991 and 1992, and
will begin random testing of intrastate drivers in 1995 and 1996. FTA
will begin random testing of large transit operators in 1995 and small
transit operators in 1996.
Current Alcohol Testing Requirements
On February 15, 1994 (59 FR 7302), the FAA, FHWA, FRA, FTA and RSPA
published final rules limiting alcohol use by transportation workers.
Four of the OA rules (FAA, FHWA, FRA and FTA) were required by the
Omnibus Transportation Employee Testing Act of 1991. RSPA adopted
similar, but more limited requirements, based on its own statutory
authority.
The FAA, FHWA, FRA and FTA rules require random testing of safety-
sensitive employees in those industries. The rules provide for an
initial minimum random alcohol testing rate of 25 percent. The
industry's (e.g., aviation, motor carrier, rail or transit) random
alcohol rate may be adjusted based on a performance standard related to
its random alcohol violation rate. Because of safety concerns, two
years of data are necessary to justify lowering the random alcohol
testing rate; one year of data is sufficient to raise it. The OA (in
conjunction with the OST Office of Drug Enforcement and Program
Compliance) will review the data and announce in the Federal Register
the minimum annual random alcohol testing rate applicable in the
calendar year following publication. If the industry violation rate is
1 percent or greater during a given year, the random alcohol testing
rate will be 50 percent for the calendar year following the OA
Administrator's announcement that the rate must change. If the industry
violation rate is less than 1 percent but greater than 0.5 percent
during a given year (for two years if currently at 50 percent), the
random alcohol testing rate will be 25 percent for the calendar year
following the OA Administrator's announcement that the rate must
change. If the industry violation rate is less than 0.5 percent during
a given year (for two years if testing at a higher rate), the random
alcohol testing rate will be 10 percent the next calendar year.
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. 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.
Comments to the ANPRM
Over 115 comments were filed in response to the ANPRM. Commenters
included governmental agencies, trade associations, regulated entities,
unions, contractors and consultants, and individuals. Suggestions
ranged from abolition of all random testing requirements to greatly
increasing the current 50 percent testing rate.
About two-thirds of the commenters favored a random testing rate of
25 percent or less. These commenters argued that the drug problem is
not as widespread as originally believed, and 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
broader view and noted that other types of tests, training and
education were also deterrents.
Over a dozen commenters supported the current minimum 50 percent
random testing rate. They argued that a decrease in the testing rate
would increase recreational drug use and undermine the deterrent
purpose of the program. Several stated that the data were inadequate to
justify a reduction and that costs would not drop because the lower
volume would result in higher per test costs. Others took an ``if it
ain't broke, don't fix it'' attitude.
A few commenters argued that the rate should be increased. These
commenters stated that a greater perception of getting caught would
result in less drug use. One noted that at a 50 percent testing rate,
some employees are never tested while others are tested two or more
times per year.
In terms of a triggering group, most favored an industry-wide
approach. There was some support for setting the rate by job categories
tempered by the concern that such differentiation not be arbitrary. A
few commenters suggested that employers should have flexibility to set
the rate at whatever level they thought best, based on their own past
experience.
Technical Meeting
The Department held a public meeting on technical issues related to
workplace random testing in Washington, DC, on February 1 and 2, 1993.
The meeting, which included presentations by experts from federal
agencies, the military, academia, and private industry, was attended by
over 200 people. Transcripts of the meeting are included in the docket.
The NPRM
The Department published a notice of proposed rulemaking (NPRM) on
February 15, 1994, (59 FR 7614). The NPRM proposed that the random
testing rate could be lowered to 25 percent by an operating
administration if the industry-wide random positive rate were 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 was possible that
different industries would be subject to different rates in a given
calendar year. The NPRM asked for comment on a variety of ways to fine
tune this basic approach.
The NPRM also proposed that each year each Administrator (or
Commandant of the Coast Guard) would publish in the Federal Register
the minimum required percentage for random testing of covered employees
during the calendar year following publication. Any random testing rate
change indicated by industry performance would then occur at the
beginning of that calendar year.
In the NPRM, the Administrator's decision to authorize a decrease
(or to require a return to the 50 percent rate) would be based on the
overall positive rate in the industry. The primary source of data would
be the Management Information System (MIS) reports from covered
employers submitted to the individual operating administrations. For
the aviation and rail industries, for years prior to the MIS reports,
we proposed initially to rely on the data submitted under reporting
requirements that have been in place since FAA's and FRA's random drug
testing rules were originally issued.
The NPRM proposed that, if a given covered employee were 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 safety-sensitive
functions. Similarly, the NPRM provided that if an employer were
required to conduct random drug testing under the drug testing rules of
more than one DOT agency, the employer could either establish separate
pools for random selection, with each pool containing covered employees
subject to testing at the same required rate, or establish one pool for
testing all covered employees at the highest percentage rate
established for the calendar year by any DOT agency to which the
employer is subject.
The proposal included several provisions to provide employers
greater flexibility or to provide greater clarity. In addition, RSPA
and USCG proposed minor amendments to conform their rule to the
Departmental system and eliminate unnecessary provisions.
Comments to the NPRM
There were approximately 70 comments filed. (Some commenters filed
identical, or very similar, comments in different dockets or several
times during the rulemaking.)
Approximately forty comments were filed by aviation commenters,
nine by the motor carrier industry, eight by maritime interests, seven
by transit, three by pipelines, and two by rail. Forty-four of the
commenters were regulated entities, eighteen represented trade
associations, four represented unions, two were from consultants, and
one was from a governmental entity.
Almost all the commenters supported reduction of the testing rate
and the increased flexibility in tying the testing rate to the positive
rate in a specified population. The commenters differed, however, on
how low the rate should be and what positive rate was low enough to
justify reduction. Forty-two of the commenters, including all of the
aviation interests, supported a 10 percent testing rate, in some form.
The Air Transport Association/Airline Industrial Relations Conference,
for example, wanted a permanent rate of 10 percent for the larger
commercial air carriers (Part 121 and 135 certificate holders.)
Alternatively, they suggested that the Department set a testing rate
ranging between 25 and 10 percent for the entire industry or airline
segment, or adopt the three-tiered system in the alcohol testing rules.
The Regional Airline Association, on the other hand, suggested that 10
percent of covered employees be tested annually for either drugs or
alcohol. The Metropolitan Transit Authority of New York, the American
Movers Conference, the Transportation Trade Department of the AFL-CIO,
and the American Trucking Associations also argued for a 10 percent
testing rate.
Twenty-three commenters supported the NPRM proposal of a reduction
to 25 percent. These included all of the marine commenters (American
Maritime Officers, American Waterways Operators, Inland Steel, the
International Association of Drilling Contractors, the Lake Carriers'
Association, Sailboats, Inc., Sealand, and the Transportation
Institute), all of the pipeline commenters (Columbia Gas, Enron and
Questar), the Association of American Railroads, six motor carrier
commenters (including the American Bus Association, the Owner-Operator
Independent Drivers Association and the Regular Common Carrier
Conference), several transit commenters (the American Public Transit
Association, the South Bend Public Transportation, and the Washington
Metropolitan Area Transit Authority), the State of Michigan Department
of Transportation, and the Institute for a Drug-Free Workplace. In
general, these comments reiterated and supported the arguments made in
the NPRM.
Several commenters, including the Substance Abuse Program
Administrators Association, Substance Abuse Management, the Bay Area
Rapid Transit, and Connecticut Transit supported maintaining the
current 50 percent testing rate. They stated that the current rules are
effective, that a reduction in the rate alone would not produce
significant savings, and that DOT should explore other cost-saving
alternatives. One transit system believed that a reduction in the
testing rate by DOT would undermine local discretion to continue
testing at a higher rate.
Commenters suggested a number of variations to the reduction
mechanism proposal in the NPRM. The Regulated Common Carriers wanted
the Department to use a 2.0 percent positive rate benchmark for 25
percent random testing. The American Trucking Associations (ATA) had a
lengthy and complex submission. It wanted DOT to lower the testing rate
to 25 percent by January 1, 1995; drop to 10 percent if a motor
carrier's positive rate were less than 1.5 percent; change the 2 year
rule to 1 year; and randomly collect past data from carriers. ATA
claimed that reduction to 25 percent would save the motor carrier
industry $300 million per year with no adverse effect on safety. ATA
surveyed 300 ATA motor carrier members concerning their drug testing
experience in calendar year 1992. Of the 120 members who responded,
approximately 75 percent of the responders began testing at a 50
percent rate. They conducted 22,577 tests with 271 positives, which
equals a 1.20 percent positive rate. Twenty-five percent of the
responders tested at a 25 percent rate. Of the 2,745 tests conducted,
there were 36 positives, which equals a 1.31 percent positive rate.
According to ATA, this shows that there is no significant difference in
the positive rate based on 50 percent or 25 percent testing. It was not
clear, however, why the respondents were testing at different rates.
Eighteen commenters addressed the issue of what is the appropriate
grouping for triggering a potential reduction in the testing rate.
Thirteen commenters (including the American Trucking Associations, the
American Movers Conference, the American Public Transit Association,
the National Air Transportation Association, the Regulated Common
Carrier Conference, all the pipeline submissions, and a number of
smaller aviation and motor carrier interests) suggested the rates be
determined for each company or operator. The Air Line Pilots
Association and the Allied Pilots Association suggested that the rates
be determined by job category. Several comments favored a breakdown by
industry segment (e.g., intercity buses, aviation contractors, offshore
mobile drilling units) or by state.
Most of the commenters were anxious to institute a reduction in the
testing rate as soon as possible and to ensure that the testing rate
would not be raised without good cause. A number of commenters were
concerned by the relatively long time before there was any possibility
of reducing the random testing rates in most of the industries. These
commenters, therefore, wanted the Department to expedite or ``fast
track'' the potential reduction in testing rates. Many marine and motor
carrier commenters, for example, asked that DOT either randomly collect
or specifically require reports of past years' data that employers are
required to maintain. These commenters suggested that DOT should
consider this retroactively-collected data to determine whether a
reduction is warranted.
There were a number of comments on the appropriate number of years
for lowering or raising the random testing rate. For example, several
commenters strongly argued that DOT should allow the testing rate to be
reduced based on one year of data. The Air Transport Association stated
that an increase in the testing rate should be based on either 3 years
of data that demonstrate a clear upward trend or a significant increase
in any 1 year.
Several commenters were concerned that recent changes in the U.S.
Department of Health and Human Services Mandatory Guidelines for
Federal Workplace Drug-Testing Programs, as incorporated in 40 CFR Part
40, will result in more frequent identification of the presence of THC
(the active ingredient in marijuana) on screening tests, thus leading
to an increase in the number of positive tests. These commenters argued
that the Department should make a special accommodation in the rules to
account for this expected increase.
Available Data
In addition to the public comments to the rulemaking, the
Department considered the following drug testing data in the regulated
industries, the Department's civilian workforce, and the U.S. Coast
Guard military personnel. The data do not include refusals to be
tested. The operating administration data reflect phase-in of random
testing from 25 percent to 50 percent unless otherwise noted.
Aviation
Random Testing
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1990* 1991* 1992* 1993
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Total Number of Random Tests.................... 84,585 170,186 183,176 182,482
Number of Positives............................. 445 1,258 1,307 960
Percent Positive................................ 0.53 0.74 0.71 0.53
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(*These numbers are slightly different from the NPRM due to further examination and correction of some reported
data.)
Post-Accident Drug Positive Rates
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1990 1991 1992 1993
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Total Post Accident Tests....................... 248 481 459 343
Number of Positives............................. 2 2 0 0
Percent Positive................................ 0.8 0.4 0 0
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Reasonable Cause Drug Positive Rates
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1990 1991 1992 1993
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Total Reasonable Cause Tests.................... 1,127 1,178 861 377
Number of Positives............................. 48 46 37 29
Percent Positive................................ 4.2 3.9 4.2 7.6
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Railroads
Random Testing
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1990 1991 1992 1993
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Total Number of Random Tests.................... 35,228 50,436 42,599 42,199
Number of Positives............................. 365 447 336 303
Percent Positive................................ 1.04 0.88 0.79 0.7
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Post-Accident Drug Positive Rates
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1987 1988 1989 1990 1991 1992 1993
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5.1%........... 5.6% 3.0% 3.0% 1.1% 1.8% 2.0%
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Reasonable Cause Drug Positive Rates
[Includes tests after violations of operating rules and personal injuries]
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1987 1988 1989 1990 1991 1992 1993
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5.4%........... 4.7% 3.6% 1.8% 1.9% 1.9% 1.9%
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In July 1991, the FRA initiated a comparative study of different
random testing rates and the impact on deterrence, as measured by the
positive rate. The study compared four railroads testing at 50 percent
(control group) with four 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. During
the third year, the experimental rate was 0.86 percent and the control
rate was 0.77 percent. The three-year totals were 0.89 percent for the
experimentals and 0.82 percent for the controls.
Motor Carriers
The Omnibus Transportation Employee Testing Act of 1991 (P.L. 102-
143, Title V, Section 5) required FHWA to conduct a demonstration
project to study the feasibility of random roadside alcohol and
controlled substances testing. It was partly designed to ``serve as a
test of, and establish a record on, the effectiveness of state-
administered testing in detecting individuals, such as independent
owner-operators and independent drivers, who might otherwise avoid
detection though the carrier-administered testing directed by the
[Omnibus Act].'' S. Rep. 102-54, p. 34. The pilot program was
administered under the Motor Carrier Safety Assistance Program (MCSAP),
which is a federal grant program that assists states in enforcing motor
vehicle safety laws and regulations. The pilot program sampled drivers
holding commercial drivers licenses operating only on interstate
highways and major state roads.
The states of New Jersey, Minnesota, Nebraska, and Utah were
selected to participate in the program because they are representative
of various geographic and population characteristics. During the course
of the year-long study in each state, over 30,000 random drug tests
were conducted. Minnesota and New Jersey combined probable cause
testing with requests for voluntary urine samples. In some states,
drivers could refuse to submit to the drug tests without sanction. The
percent positive may also be understated because drivers could have
avoided the testing site if they were aware of the testing through
communications on CB radios or other informal information networks. The
results were as follows:
Random Drug Testing Results In Four Pilot Program States
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Drug Testing NE UT MN NJ Total
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Specimens Evaluated............................ 7,496 10,131 5,729 7,556 30,912
Refusals....................................... 32 55 359 859 1,305
Percent Refused................................ 0.43% 0.54% 5.9% 10.2% 4.1%
Positive Specimens............................. 271 410 269 460 1,410
Percent Positive............................... 3.6% 4.0% 4.7% 6.1% 4.6%
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The study notes that positive rates for employer-based random drug
testing programs that were inspected as a part of normal safety reviews
were 2.5 percent for fiscal year 1992, and 3.11 percent for the first
six months of fiscal year 1993.
FHWA conducted a one-time special field study of compliance
reports. In general compliance investigations of 4,967 interstate motor
carrier drug testing programs in the first six months of FY 1993,
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
factors such as a safety rating or prior compliance problem. These
compliance investigations do not offer scientific, statistically
unbiased sampling methods.
U.S. DOT Employees
In the Department's federal employee testing program, the random
testing rate of at least 50 percent was phased-in from 25 percent to 50
percent 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. FY 1993 figures reflect a
full year of testing at 25 percent. The following table summarizes DOT
federal employee random testing data.
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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:
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1987 1988 1989 1990 1991 1992 1993
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Percent Positive..... 1.57% 1.31% 0.68% 0.41% 0.41% 0.78% 0.75%
Testing Rate......... 120% 95% 95% 95% 85% 85% 80%
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The Final Rule
The final rule adopts the NPRM with one change. It provides that
the Administrator or the Commandant may lower the minimum random drug
testing rate to 25 percent if the industry-wide (e.g., aviation, rail)
random positive rate is less than 1.0 percent (including refusals to be
tested) for 2 consecutive calendar years while testing at 50 percent.
The rate will return to 50 percent if the industry random positive rate
is 1.0 percent or higher in any subsequent calendar year. The only
change is a one-time adjustment for the two industries that have not
yet fully implemented random drug testing. Under this provision, the
FTA and/or FHWA Administrators may allow the testing rate for their
regulated industry to be lowered based on 1995 and 1996 data from those
entities required to report. The FTA Administrator will not have to
wait until he has the first 2 years of data from small transit
operators and the FHWA Administrator will not have to wait until he has
the first two years of data from small intrastate motor carriers and
motor coach operations before they can possibly lower the rate as
proposed in the NPRM. Many of these decisions mirror the reasoning we
used in the final rules concerning alcohol testing that were published
on February 15, 1994 (59 FR 7302).
Readers may wish to review the preamble to the alcohol testing
rules to supplement their understanding of our actions in this final
rule.
The Triggering Group
The final rule provides that the positive and random testing rates
will be determined for each industry, and not by employers or industry
segment. After careful consideration, we believe that this is the
fairest and most effective approach. It addresses broad safety issues
in each industry rather than by company or segment of the workforce. It
provides a strong incentive for employers with successful programs to
pressure problem subgroups to improve their performance. As an
administrative matter, it is much easier for the industry to implement
and DOT to oversee and enforce an industry-wide program.
Some commenters, such as airline pilots, said that such an approach
is unfair. Similarly, there are certain employers that are so large
that their sheer numbers may skew an entire industry's positive rate.
We acknowledge that breaking up industries into subgroups may be
desirable from the point of view of subgroups with lower positive
rates. Nevertheless, after careful consideration, we have chosen not to
take this approach for several reasons. It allows us to focus on broad
safety issues and keep the focus away from potentially endless
splitting and balkanization within the industries. If the Department,
for example, divided an industry into large and small operators, a
particular large operator with very low positives may ask to be
separated or certain categories of employees within one of the groups
may ask then to be distinguished.
Breaking industries into different subgroups would have many
undesirable consequences. As a practical matter, it would be extremely
difficult and costly for DOT to administer and enforce. There would be
less pressure on very poorly performing subgroups to improve,
especially when the existing industry-wide rate was close to 1.0
percent. There might be greater incentive to cheat, especially if the
rates were determined by company or small subgroups. Significantly more
employees would fall into more than one category, which would cause
unnecessary confusion in ensuring random selection and recordkeeping.
It would be much harder for consortia to keep track of and ensure the
integrity of the data. Finally, it might lead to grouping by
demographics.
The Testing Rates
The final rule maintains the initial 50 percent random drug testing
rate. We believe that this is the appropriate testing rate for
industries that are beginning their testing programs. In order to
provide incentive for lowering drug usage in a given industry, the
Department will allow the random testing rate to be lowered to 25
percent based on demonstrably low annual positive testing rates. The
decision will primarily be based on data submitted to the Department.
Under existing MIS rules, certain employers must submit data for a
given calendar year by the following March 15th. The Office of Drug
Enforcement and Program Compliance in the Office of the Secretary (OST)
and each operating administration will review each industry's data for
accuracy and completeness and issue a determination regarding the
random test rate within a few months. Because covered entities need
some lead time to adjust their procedures, make changes in any
contracts, and take other necessary action to adjust to an increase or
decrease, the notice will be published in advance of the next calendar
year.
We recognize that because the reported positive rate is obtained
from data the precision of which is eroded by sampling variance and
measurement error, and whose accuracy is diminished by non-response
bias, there is a risk that it diverges from the actual positive rate in
the population. Each operating administration 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
operating administration 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 reflect the data that would have been received if all were
required to report. However, the decision on whether the reported data
reliably support the conclusion (e.g., an audit of company records
shows significant falsification of reports) remains subject to DOT's
discretion. If the reported data are not sufficiently reliable, the
operating administration will not permit the random rate adjustment to
occur.
Each operating administration will publish a notice in the Federal
Register stating what the random testing rate will be in the following
year. Any random rate adjustment will occur at the beginning of the
calendar year in order to maintain the integrity of the MIS data. The
Department may also use a variety of other tools such as press
releases, special mailings, or briefings for key industry and press
representatives to disseminate information regarding any rate
adjustments.
As proposed in the NPRM, the random testing rate may be reduced to
25 percent if the industry-wide random positive rate is less than 1.0
percent for 2 consecutive calendar years while testing at 50 percent.
Such a performance-based approach rewards ``good'' results while
maintaining an acceptable level of deterrence, as well as detection.
Based on the comments filed and the experiences of the DOT internal
program, we believe that reducing the random testing rate to 25 percent
could save up to 40 percent of the annual random testing costs incurred
at the full 50 percent rate. A two-tier system makes the drug testing
rule more consistent with the alcohol testing rule while acknowledging
the difficulty of identifying drug use.
We believe that 1.0 percent is the appropriate level at which to
permit a reduction or require an increase for the reasons stated in the
NPRM. This level is 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 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 that they can escape detection. Several commenters
asked us to raise the level, primarily to make it easier for their
industry to qualify for a reduction in the testing rate. We were
unpersuaded, however, by these commenters because we believe it is not
appropriate to raise the level to ease compliance, would unduly
undermine the important safety objectives of the program, and is an
appropriate cut-off in light of what we believe are achievable goals.
As mentioned above, many commenters, particularly in the aviation
industry, strongly supported a 10 percent testing rate. They noted that
the alcohol testing rules provide a three-tier system (50 percent /25
percent /10 percent), and believe that if performance were adequate, an
industry, or industry subgroup, should be permitted to test at a 10
percent rate. To the extent that costs are reduced with the number of
tests conducted, a 10 percent testing rate would provide important cost
savings to the best employers with the smallest drug use problem. On a
more intangible level, it would provide a goal for employers. It also
would be the most flexible approach.
In the NPRM, we noted our tentative conclusion that a 25 percent
random testing rate is the minimum effective rate to ensure deterrence
for drug use and to allow at least a modicum of detection. There were a
number of comments that stated that merely being subject to random
testing provided adequate deterrence and detection. Some employer
commenters stated that covered employees were unaware of the specific
testing rates and that the employees believed that they could be caught
at any time. Others denied that their company or industry had any
significant problem and considered any but the most minimal testing a
waste of time, money and energy. Others focused on the best way to
spend the finite resources that could be devoted to drug use
prevention.
As discussed in the NPRM, illegal drug use is different from
alcohol misuse and these differences argue for a higher random drug
testing rate. Drug usage is often harder to detect based on behavior
and physical clues such as breath and body odor, or drug packaging.
Alcohol passes through the body relatively quickly, while many drugs
stay in the system for days, weeks or even months. Unlike alcohol use,
most drug use is illegal and drug testing helps ensure deterrence and
detection of even off-duty use.
Considering the vital public interest in protecting the safety of
our transportation system and the data that show the deterrent and
detection benefits of high random rates for drugs, the Department
cannot justify permitting a reduction to 10 percent. Statistically,
lowering the rate to 10 percent would result in less representative
data since so few employees would be tested. Fewer tests result in less
detection. So few tests would be conducted at a 10 percent rate that it
might take a long time to notice any adverse effects or trends.
Data Required To Raise or Lower Testing Rate
The Department is requiring two years of data before a potential
reduction in the testing rate because we want to make sure that the use
of drugs is, in fact, demonstrably low and the data reflect more than a
statistical aberration or an unusual year.
On the other hand, if an industry's data indicate a positive rate
at or above 1.0 percent in any calendar year, we will raise the testing
rate based on only one year's data. Our primary interest is ensuring
safety and it is important to take a conservative approach. Under our
approach, however, there is up to one years' time lag between a rise in
positive test results and an increase in the random testing rate. In
extraordinary circumstances that endanger public safety, we may need to
take emergency action before the beginning of the calendar year.
One-Time Exception
There is one relatively minor change from the NPRM. Large transit
companies and intrastate motor carriers will begin random testing on
January 1, 1995, and small transit companies and intrastate motor
carriers on January 1, 1996. If we required a positive rate of less
than 1.0 percent for two years of testing at a 50 percent rate for the
transit and motor carrier industries, the rate could not be lowered
until January 1, 1999, at the earliest. Because interstate motor
carriers have been testing for several years and transit and intrastate
motor carriers can learn much from other transportation employers that
have been testing for a number of years, and because FTA and FHWA will
have received a significant amount of data over the first two years, we
will provide a one-time exception from this general rule and allow the
random testing rate to be reduced based on only one year of data from
the entire industry and two years from its large entities. The
Secretary, in consultation with the FTA and/or FHWA Administrators
does, however, explicitly reserve the discretion to require another
year of data from the small entities if he or she deems it necessary
for safety. If the Department's review of the data indicates that it is
insufficient to make a determination to lower the random testing rate
to 25 percent, we will issue a notice stating that the rate will not be
changed until one more year of data has been obtained.
Other Provisions
We are not making any change in the rule to account for the change
in the marijuana initial test cutoff levels. The change merely allows
for more urine specimens that contain marijuana metabolites to be
identified. To the extent that there is minimal drug use in a given
industry, this technical change should make little difference. That we
will now be more successful in correctly identifying positive samples
is no reason to make the DOT drug testing rules more lenient.
Improvements in technology that permit us to identify users who
previously escaped detection are not a reason for lowering our
standards.
The remainder of the proposals in the NPRM drew no public comment
and are adopted without change. The final rule provides that if a given
covered employee is subject to random drug testing under the drug
testing rules of more than one DOT agency, the employee is 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 final rule 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 establish one pool for testing all covered employees at the
highest percentage rate established for the calendar year by any DOT
agency to which the employer is subject.
If the employer conducts random testing through a consortium, the
number of tests to be conducted 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 must be spread
reasonably throughout the calendar year .
The final rule contains a number of definitions that mirror the
alcohol testing rules. The term ``positive rate'' is 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.''
``Refuse to submit'' means ``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 count as a
positive result and would be added to the total number of random tests
conducted for the purpose of calculating the industry positive rate.
Since they are treated as if they are positive in terms of most of the
rules' consequences, 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 who test positive will be fired but
employees who refuse to be tested will receive little or no punishment
other than facing removal from duty and evaluation. The FAA, FRA and
USCG also have other sanctions for refusals.
Adulteration of a urine sample is considered a refusal to test
because it constitutes an obstruction of the testing process. As such,
adulterated specimens are included in the calculation of the industry
positive rate. Administrative or procedural errors during the testing
process, such as breaking the container holding the sample, that result
in canceled tests are not counted in the totals when calculating the
industry random test rate.
Modal-Specific Actions
The Coast Guard is also removing 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 has removed this regulatory
language.
RSPA is revising 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 collect
specified drug testing data in 1994, and to report that information to
RSPA on an annual basis beginning in 1995. Previously, operators had
conducted random testing and maintained records on an April-April or
August-August cycle. The revision will allow operators to conduct
random testing and collect their drug testing data on a calendar year
cycle.
The FAA is adding three definitions and amending a third definition
to make the drug testing rule clearer and to parallel the alcohol
testing rule. ``Contractor company'' is defined to mean ``a company
that has employees who perform safety-sensitive functions by contract
for an employer.'' ``DOT agency'' is defined to mean ``an agency (or
`operating administration') of the United States Department of
Transportation administering regulations requiring drug testing (14 CFR
part 61 et al.; 46 CFR part 16; 49 CFR parts 199, 219, and 382) in
accordance with 49 CFR part 40.'' The FAA is also adding a provision to
clarify current requirements concerning access to records. The
provision provides that an employer required to conduct random drug
testing under the anti drug rules of more than one DOT agency shall
provide each such agency access to the employer's records of random
drug testing, as determined to be necessary by the agency to ensure the
employer's compliance with the rule. This provision is designed to
resolve some confusion regarding compliance monitoring of multi-modal
pools.
Implementation Dates
Based on the 1992-1993 data submitted to FRA and FAA, the railroad
and aviation industries may begin testing at a minimum 25 percent
random rate beginning January 1, 1995, because their positive rates
were less than 1.0 percent in 1992 and 1993. Pipeline and marine
employers will continue testing at 50 percent until they have 2 years
of data showing that random positive rates for their industries are
less than 1.0 percent. If the positive rates are below 1.0 percent for
1994 and 1995, then testing rates may be lowered to 25 percent
beginning January 1, 1997.
Interstate motor carriers are currently testing at a minimum 50
percent testing rate and will continue to do so until the positive rate
for the entire motor carrier industry (both interstate and intrastate
and motor coach operations) is less than 1.0 percent. Large intrastate
motor carriers will begin random drug testing at a minimum 50 percent
testing rate on January 1, 1995, and small intrastate motor carriers
will begin random testing at a 50 percent rate on January 1, 1996. We
will allow the motor carrier industry to reduce its testing rate to 25
percent beginning on January 1, 1998, if the 1995 and 1996 data for
those required to conduct random testing under the FHWA rule
demonstrate a positive rate of less than 1.0 percent.
Large transit operators will begin random drug testing at a minimum
50 percent testing rate on January 1, 1995, and small transit operators
will begin random testing at a 50 percent rate on January 1, 1996. If
the 1995 and 1996 data for large transit operators combined with the
1996 data for small transit operators demonstrate a positive rate of
less than 1.0 percent, we will allow the transit industry to reduce its
testing rates to 25 percent beginning on January 1, 1998. Industries
that do not meet the criterion will continue to test at a minimum 50
percent random testing rate.
Regulatory Analyses and Notices
DOT Regulatory Policies and Procedures
The final rule 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. A
regulatory evaluation has been prepared and is available for review in
the OST docket. This final rule was reviewed by the Office of
Information and Regulatory Affairs pursuant to Executive Order 12866.
FAA estimates an average potential cost savings of approximately $9
million per year for the aviation industry 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 for maritime; RSPA estimates $1.4
million or more per year for pipelines; FRA estimates $1 million per
year for the railroad industry; FHWA estimates $107 million per year or
more for motor carriers; and FTA estimates an average of $7 million per
year or more for transit. Further detail is available in the OST final
regulatory evaluation and the OA preliminary regulatory evaluations,
which are available in the respective dockets.
Executive Order 12612
This final rule 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.
Regulatory Flexibility Act
Based on the current positive testing rate data, the aviation and
rail industries will qualify for a reduction to a 25% testing rate in
1995. Although this change will result in substantial cost savings,
there will be little economic impact on a substantial number of small
entities in those industries. It is difficult to project which other
transportation industries are likely to qualify for a reduction in the
testing rate. The remaining transportation industries (motor carriers,
pipelines, maritime, and transit) include many small companies. If the
random testing rate were reduced in any of those industries, there
might be a significant cost savings, as discussed in the accompanying
regulatory evaluation. In addition, to the extent that the rate is
lowered it might have a negative economic impact on those who provide
services to employers covered under the rules, some of whom are small
entities. Under the best circumstances, however, motor carriers,
transit and pipeline industries could not reduce their testing rates
until 1998. We therefore certify that this rule will not have a
significant economic impact on a substantial number of small entities
for at least the next several years.
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.
Issued in Washington, D.C. on November 22, 1994.
Mortimer L. Downey,
Deputy Secretary.
FAA
14 CFR Chapter I
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 amends 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 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 1354(a), 1355, 1356, 1357, 1401,
1421-1430, 1485, and 1502.
2. In Appendix I, Section II, the definitions of ``contractor
company,'' ``DOT agency,'' and ``positive rate,'' are added in
alphabetized order and the definition of ``refusal to submit.'' is
amended, to read as follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
II. Definitions.
* * * * *
Contractor company means a company that has employees who
perform safety-sensitive functions by contract for an employer.
DOT agency means an agency (or ``operating administration'') of
the United States Department of Transportation administering
regulations requiring drug testing (14 CFR part 61 et al.; 46 CFR
part 16; 49 CFR parts 199, 219, and 382) in accordance with 49 CFR
part 40.
Positive rate means the number of positive results for random
drug tests conducted under this appendix plus the number of refusals
to take random tests required by this appendix, divided by the total
number of random drug tests conducted under this appendix plus the
number of refusals to take random tests required by this appendix.
Refusal to submit means that an individual failed to provide a
urine sample as required by 49 CFR part 40, without a genuine
inability to provide a specimen (as determined by a medical
evaluation), after he or she has received notice of the requirement
to be tested in accordance with this appendix, or engaged in conduct
that clearly obstructed the testing process.
* * * * *
3. Appendix I, Section V, Paragraph C is revised to read as
follows:
Appendix 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 statistical reports
required by section X of 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 covered employees for testing at the highest
percentage rate established for the calendar year by any DOT agency
to which the employer is subject.
10. An employer required to conduct random drug testing under
the anti drug rules of more than one DOT agency shall provide each
such agency access to the employer's records of random drug testing,
as determined to be necessary by the agency to ensure the employer's
compliance with the rule.
Issued in Washington, DC on November 22, 1994.
David R. Hinson,
Administrator, Federal Aviation Administration.
USCG
46 CFR Chapter I
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 amends 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
submit 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 genuine inability to
provide a specimen (as determined by a medical evaluation), 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. 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 random 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 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 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, November 22, 1994.
VADM A. E. Henn,
Acting Commandant, United States Coast Guard.
RSPA
49 CFR Chapter I
List of Subjects in 49 CFR Part 199
Pipeline safety, Drug testing, Recordkeeping and reporting.
For the reasons set out in the preamble, RSPA amends 49 CFR Part
199, as follows:
PART 199--DRUG AND ALCOHOL TESTING
1. The authority citation for Part 199 is revised to read as
follows:
Authority: 49 U.S.C. 60101 et seq.; 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 genuine inability
to provide a specimen (as determined by a medical evaluation), 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 (c)(2)
through (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 subpart. 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 subpart or any DOT drug testing rule.
(7) Each operator shall ensure that random drug tests conducted
under this subpart 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 November 22, 1994.
D.K. Sharma,
Administrator, Research and Special Programs Administration.
FRA
49 CFR Chapter II
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 amends 49 CFR Part 219,
as follows:
PART 219--CONTROL OF ALCOHOL AND DRUG USE
1. The authority for part 219 is revised to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20113, 20140,
21301, 21304; 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 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 genuine inability
to provide a specimen (as determined by a medical evaluation), 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 a 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, November 22, 1994.
Donald M. Itzkoff,
Deputy Administrator, Federal Railroad Administration.
FHWA
49 CFR Chapter III
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, the FHWA amends 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. 31136, 31301 et seq., 31502; and 49 CFR
1.48.
2. Section 382.107 is amended by adding, in alphabetical order, a
definition for ``positive rate'' and revising the definition of
``refuse to submit'' as follows:
Sec. 382.107 Definitions.
* * * * *
Positive rate means the number of positive results for random
controlled substances tests conducted under this part plus the number
of refusals of random controlled substances tests required by this
part, divided by the total of random controlled substances tests
conducted under this part plus the number of refusals of random tests
required by this part.
* * * * *
Refuse to submit (to an alcohol or controlled substances test)
means that a driver:
(1) Fails to provide adequate breath for alcohol testing as
required by Part 40 of this title, without a valid medical explanation,
after he or she has received notice of the requirement for breath
testing in accordance with the provisions of this part,
(2) Fails to provide an adequate urine sample for controlled
substances testing as required by Part 40 of this title, without a
genuine inability to provide a specimen (as determined by a medical
evaluation), after he or she has received notice of the requirement for
urine testing in accordance with the provisions of this part, or
(3) Engages in conduct that clearly obstructs the testing process.
3. Section 382.305 is revised to read as follows:
Sec. 382.305 Random testing.
(a) (1) Except as provided in paragraphs (b) through (d) of this
section, the minimum annual percentage rate for random alcohol testing
shall be 25 percent of the number of drivers each selection period.
(2) Except as provided in paragraphs (e) through (g) of this
section, the minimum annual percentage rate for random controlled
substances testing shall be 50 percent of the number of drivers each
selection period.
(b) The FHWA Administrator's decision to increase or decrease the
minimum annual percentage rate for alcohol testing is based on the
reported violation rate for the entire industry. All information used
for this determination is drawn from the alcohol management information
system reports required by Sec. 382.403 of this part. In order to
ensure reliability of the data, the FHWA 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 violation rate. Each year,
the FHWA Administrator will publish in the Federal Register the minimum
annual percentage rate for random alcohol testing of drivers. The new
minimum annual percentage rate for random alcohol testing will be
applicable starting January 1 of the calendar year following
publication.
(c) (1) When the minimum annual percentage rate for random alcohol
testing is 25 percent or more, the FHWA Administrator may lower this
rate to 10 percent of all drivers if the FHWA Administrator determines
that the data received under the reporting requirements of Sec. 382.403
for two consecutive calendar years indicate that the violation rate is
less than 0.5 percent.
(2) When the minimum annual percentage rate for random alcohol
testing is 50 percent, the FHWA Administrator may lower this rate to 25
percent of all drivers if the FHWA Administrator determines that the
data received under the reporting requirements of Sec. 382.403 for two
consecutive calendar years indicate that the violation rate is less
than 1.0 percent but equal to or greater than 0.5 percent.
(d) (1) When the minimum annual percentage rate for random alcohol
testing is 10 percent, and the data received under the reporting
requirements of Sec. 382.403 for that calendar year indicate that the
violation rate is equal to or greater than 0.5 percent, but less than
1.0 percent, the FHWA Administrator will increase the minimum annual
percentage rate for random alcohol testing to 25 percent for all
drivers.
(2) When the minimum annual percentage rate for random alcohol
testing is 25 percent or less, and the data received under the
reporting requirements of Sec. 382.403 for that calendar year indicate
that the violation rate is equal to or greater than 1.0 percent, the
FHWA Administrator will increase the minimum annual percentage rate for
random alcohol testing to 50 percent for all drivers.
(e) The FHWA Administrator's decision to increase or decrease the
minimum annual percentage rate for controlled substances testing is
based on the reported positive rate for the entire industry. All
information used for this determination is drawn from the controlled
substances management information system reports required by
Sec. 382.403 of this part. In order to ensure reliability of the data,
the FHWA 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 FHWA Administrator will publish
in the Federal Register the minimum annual percentage rate for random
controlled substances testing of drivers. The new minimum annual
percentage rate for random controlled substances testing will be
applicable starting January 1 of the calendar year following
publication.
(f) When the minimum annual percentage rate for random controlled
substances testing is 50 percent, the FHWA Administrator may lower this
rate to 25 percent of all drivers if the FHWA Administrator determines
that the data received under the reporting requirements of Sec. 382.403
for two consecutive calendar years indicate that the positive rate is
less than 1.0 percent. However, after the calendar year 1994 of random
testing for interstate motor carriers under part 391, subpart H and the
initial calendar year of testing by large employers under this section,
the FHWA Administrator may lower the rate for calendar year 1997, if
the combined positive testing rate is less than 1.0 percent, and if it
would be in the interest of safety.
(g) When the minimum annual percentage rate for random controlled
substances testing is 25 percent, and the data received under the
reporting requirements of Sec. 382.403 for any calendar year indicate
that the reported positive rate is equal to or greater than 1.0
percent, the FHWA Administrator will increase the minimum annual
percentage rate for random controlled substances testing to 50 percent
of all drivers.
(h) The selection of drivers for random alcohol and controlled
substances 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 drivers' Social Security numbers, payroll
identification numbers, or other comparable identifying numbers. Under
the selection process used, each driver shall have an equal chance of
being tested each time selections are made.
(i) 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 minimum annual percentage rate for random alcohol and
controlled substances testing determined by the FHWA Administrator. If
the employer conducts random testing for alcohol and/or controlled
substances 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 drivers covered by the consortium who are subject to random
alcohol and/or controlled substances testing at the same minimum annual
percentage rate under this part or any DOT alcohol or controlled
substances random testing rule.
(j) Each employer shall ensure that random alcohol and controlled
substances tests conducted under this part are unannounced and that the
dates for administering random alcohol and controlled substances tests
are spread reasonably throughout the calendar year.
(k) Each employer shall require that each driver who is notified of
selection for random alcohol and/or controlled substances testing
proceeds to the test site immediately; provided, however, that if the
driver is performing a safety-sensitive function at the time of
notification, the employer shall instead ensure that the driver ceases
to perform the safety-sensitive function and proceeds to the testing
site as soon as possible.
(l) A driver shall only be tested for alcohol while the driver is
performing safety-sensitive functions, just before the driver is to
perform safety-sensitive functions, or just after the driver has ceased
performing such functions.
(m) If a given driver is subject to random alcohol or controlled
substances testing under the random alcohol or controlled substances
testing rules of more than one DOT agency for the same employer, the
driver shall be subject to random alcohol and/or controlled substances
testing at the annual percentage rate established for the calendar year
by the DOT agency regulating more than 50 percent of the driver's
function.
(n) If an employer is required to conduct random alcohol or
controlled substances testing under the alcohol or controlled
substances testing rules of more than one DOT agency, the employer
may--
(1) Establish separate pools for random selection, with each pool
containing the DOT-covered employees who are subject to testing at the
same required minimum annual percentage rate; or
(2) Randomly select such employees for testing at the highest
minimum annual percentage rate established for the calendar year by any
DOT agency to which the employer is subject.
Issued in Washington, DC on November 22, 1994.
Rodney Slater,
Administrator, Federal Highway Administration
FTA
49 CFR Chapter VI
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 amends 49 CFR Part 653, as follows:
PART 653--PREVENTION OF PROHIBITED DRUG USE IN TRANSIT OPERATIONS
1. The authority citation for Part 653 is revised to read as
follows:
Authority: 49 U.S.C. 5331; 49 CFR 1.51.
2. In Sec. 653.7, the definition of ``positive rate'' is added and
the definition of ``refuse to submit'' is revised 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 genuine inability
to provide a specimen (as determined by a medical evaluation), 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. However, after the initial two years of random
testing by large transit operators and the initial first year of
testing by small transit operators, the Administrator may lower the
rate the following calendar year, if the combined positive testing rate
is less than 1.0 percent, and if it would be in the interest of safety.
(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 November 22, 1994.
Gordon J. Linton,
Administrator, Federal Transit Administration.
[FR Doc. 94- 29389 Filed 11-29-94; 12:02 pm]
BILLING CODE 4910-62-P
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.