X94-11202. Random Drug Testing Program; Final Rule  

  • [Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
    [Unknown Section]
    [Page 0]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: X94-11202]
    
    
    [[Page Unknown]]
    
    [Federal Register: December 2, 1994]
    
    
    _______________________________________________________________________
    
    Part V
    
    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; Final Rule
    =======================================================================
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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.
    
    -----------------------------------------------------------------------
    
    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                                                 
    ----------------------------------------------------------------------------------------------------------------
                                                           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     
    ----------------------------------------------------------------------------------------------------------------
    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
    ----------------------------------------------------------------------------------------------------------------
    
    
                                            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% 
    ----------------------------------------------------------------------------------------------------------------
    
    
                                          Reasonable Cause Drug Positive Rates                                      
                       [Includes tests after violations of operating rules and personal injuries]                   
    ----------------------------------------------------------------------------------------------------------------
          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                            
    ----------------------------------------------------------------------------------------------------------------
                      Drug Testing                        NE           UT           MN           NJ         Total   
    ----------------------------------------------------------------------------------------------------------------
    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%
    ----------------------------------------------------------------------------------------------------------------
    
        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.
    
    ----------------------------------------------------------------------------------------------------------------
                                            FY88         FY89         FY90         FY91         FY92         FY93   
    ----------------------------------------------------------------------------------------------------------------
    Total Number of Random Tests......        5,047       17,926       19,103       18,671       12,454        9,433
    Number of Positives...............           42           92           43           40           39           24
    Percent Positive..................         0.83         0.51         0.23         0.21         0.31         0.25
    ----------------------------------------------------------------------------------------------------------------
    
        As noted earlier, the USCG has been conducting random drug tests on 
    its active duty and reserve uniformed personnel. Rather than setting a 
    specific testing rate as a requirement at the beginning of the fiscal 
    year, the USCG conducts the maximum number of tests possible from the 
    funds that are appropriated. The percentage of positive results for 
    random tests in each fiscal year and the approximate testing rate is as 
    follows:
    
    ----------------------------------------------------------------------------------------------------------------
                               1987         1988         1989         1990         1991         1992         1993   
    ----------------------------------------------------------------------------------------------------------------
    Percent Positive.....        1.57%        1.31%        0.68%        0.41%        0.41%        0.78%        0.75%
    Testing Rate.........         120%          95%          95%          95%          85%          85%          80%
    ----------------------------------------------------------------------------------------------------------------
    
    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
    
    
    

Document Information

Effective Date:
1/1/1995
Published:
12/02/1994
Entry Type:
Uncategorized Document
Action:
Final rule.
Document Number:
X94-11202
Dates:
This rule is effective January 1, 1995.
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: December 2, 1994
CFR: (11)
46 CFR 16.105
46 CFR 16.230
49 CFR 199.3
49 CFR 199.11
49 CFR 219.5
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