[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     
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
(*These numbers are slightly different from the NPRM due to further examination and correction of some reported 
  data.)                                                                                                        


                                        Post-Accident Drug Positive Rates                                       
----------------------------------------------------------------------------------------------------------------
                                                       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
----------------------------------------------------------------------------------------------------------------


                                      Reasonable Cause Drug Positive Rates                                      
----------------------------------------------------------------------------------------------------------------
                                                       1990            1991            1992            1993     
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------

Railroads

                                                 Random Testing                                                 
----------------------------------------------------------------------------------------------------------------
                                                       1990            1991            1992            1993     
----------------------------------------------------------------------------------------------------------------
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                                       
----------------------------------------------------------------------------------------------------------------
      1987             1988            1989            1990            1991            1992            1993     
----------------------------------------------------------------------------------------------------------------
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     
----------------------------------------------------------------------------------------------------------------
5.4%...........           4.7%             3.6%            1.8%            1.9%            1.9%            1.9% 
----------------------------------------------------------------------------------------------------------------

    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