Federal Register, Volume 60 Issue 48 (Monday, March 13, 1995)

[Federal Register Volume 60, Number 48 (Monday, March 13, 1995)]
[Rules and Regulations]
[Pages 13368-13377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6043]

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[[Page 13369]]

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 382 and 391

[FHWA Docket No. MC-93-2]
RIN 2125-AD47

Controlled Substances Testing; Recordkeeping and Reporting
Requirements

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: This document amends the controlled substances and alcohol
testing regulations to require a motor carrier to prepare an annual
summary of alcohol and controlled substances test results only upon the
demand of an FHWA representative, either as part of an inspection,
investigation, or special study; or as part of the anti-drug management
information system (MIS). The FHWA will use the data to conduct
investigations, to analyze its current approach to deterring and
detecting alcohol and controlled substances misuse within the motor
carrier industry, and to modify program goals, as appropriate.

EFFECTIVE DATE: March 13, 1995.

FOR FURTHER INFORMATION CONTACT: For information regarding program
issues: Mr. Ronald Finn, Office of Motor Carrier Standards, (202) 366-
0647, and for information regarding legal issues: Mr. David Sett,
Office of the Chief Counsel, (202) 366-0834, Federal Highway
Administration, Department of Transportation, 400 Seventh Street, SW.,
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

The FHWA published a final rule in the Federal Register on November
21, 1988, requiring motor carriers to test commercial motor vehicle
drivers for the use of controlled substances (53 FR 47134). The rule
also required all carriers to compile a report containing certain
information about their current controlled substances testing program.
The FHWA published a final rule on December 23, 1993, under FHWA Docket
No. MC-93-2, which amended 49 CFR 391.87(h) to modify the controlled
substances testing information required to be maintained. The final
rule also required that the report be submitted to the FHWA, if
requested, as part of the FHWA anti-drug management information system
(MIS) (58 FR 68220). On February 15, 1994, the FHWA published a final
rule under FHWA Docket Nos. MC-116, MC-92-19, and MC-92-23, which
amended 49 CFR Part 382 to apply these same MIS requirements to
employers subject to the new controlled substances and alcohol testing
program mandated by the Omnibus Transportation Employee Testing Act of
1991 (59 FR 7484).
On January 21, 1994, the American Trucking Associations, Inc.
(ATA), filed a petition under 49 CFR 389.35 for reconsideration of the
December 23, 1993, rulemaking. The ATA requested that the requirement
that an annual summary be prepared and maintained by all employers be
limited to those relatively few employers who have been selected to
submit the annual summaries to the FHWA MIS. On February 3, 1994, the
American Movers Conference filed a letter in support of the ATA's
petition. Because the MIS reporting provisions in the December 23,
1993, rule are the same as those appearing in the new rules for drug
and alcohol testing under 49 CFR Part 382, the FHWA's response to the
petition applies in the same manner to both 49 CFR Part 382 and
Sec. 391.87(h).
The ATA's petition has been granted in part and denied in part. The
FHWA's response to the petition is reprinted here as appendix A but
will not appear in the Code of Federal Regulations.
Consistent with the response to the petition, the controlled
substances and alcohol testing regulations at 49 CFR Parts 382 and 391
are amended to require a motor carrier to prepare an annual summary
only upon the demand of an FHWA representative, either as part of an
inspection, investigation or special study; or as part of the MIS. The
new requirements will apply as of March 13, 1995 and begin with the
annual summaries for the year 1994.
Also included in this document as appendix B are MC-154 and MC-155
for use in filing reports with the FHWA MIS. The MIS forms were printed
as an appendix to the February 15, 1994, final rule. The ``EZ'' form
was inadvertently published without part D, Alcohol Testing
Information. The MIS forms are being reprinted here in their entirety
and will not appear in the Code of Federal Regulations. They are meant
merely as examples of the forms that will be sent to employers who have
been selected to submit reports to be used in the MIS. For employers
who have not been selected to submit MIS reports, but who do compile
annual summaries, any form may be used. This includes electronic
storage as long as all the required data elements are available in
paper form.
The Office of the Secretary published a final rule on August 19,
1994 (59 FR 42996), changing 49 CFR 40.29(g)(6) to require laboratories
to submit quarterly instead of monthly statistical summary reports to
employers. The FHWA is changing the reference in 49 CFR 391.81(h)(1)
from monthly laboratory summaries to quarterly laboratory summaries in
order to be consistent with 49 CFR Part 40.

Rulemaking Analyses and Notices

The FHWA finds that further notice and opportunity for comment are
unnecessary under 5 U.S.C. 553(b)(3)(B) inasmuch as the annual summary
issue has already been the subject of notice-and-comment rulemakings
(RIN 2125-AC85, 2125-AC81, and 2125-AD06), including three December 15,
1992, notices of proposed rulemaking (57 FR 59516, 59539, and 59567).
In addition, the FHWA believes that further notice and opportunity for
comment are not required under the regulatory policies and procedures
of the Department of Transportation. In light of the earlier
opportunities to comment on this subject, and the comments actually
received on this issue, the FHWA does not anticipate that providing an
additional comment period would result in the receipt of useful
information.
The FHWA also believes that this final rule is exempt from the 30-
day delayed effective date requirement of the Administrative Procedure
Act under 5 U.S.C. 553(d)(1) because it ``grants or recognizes an
exemption or relieves a restriction.'' This final rule removes the
requirement that all employers prepare an annual summary and instead
requires only those employers directed by the FHWA to submit such
reports, either as part of an investigation or the MIS, to prepare
them. Therefore, the FHWA finds that good cause exists to proceed
directly to a final rule.

Executive Order 12866 (Federal Regulation) and DOT Regulatory Policies
and Procedures

The FHWA has determined that this action is neither a significant
regulatory action under Executive Order 12866 nor significant under the
Department of Transportation's regulatory policies and procedures. In
this final rule, the FHWA removes the requirement that all employers
prepare an annual summary. Instead, only those employers required to
submit annual summaries or make them available in safety inspections
must prepare them. It is anticipated that the economic impact of this
rulemaking will not be substantial although this [[Page 13370]] action
will reduce employers' costs of complying with the FHWA controlled
substances and alcohol use and testing regulations. Therefore, a full
regulatory evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the agency has evaluated the effects of this rulemaking on small
entities. In this final rule only those employers required to submit
annual summaries or make them available in safety inspections must
prepare them by March 15 of the year following the date that a final
test result determination is made. Based on this evaluation, the FHWA
hereby certifies that this action will not have a significant economic
impact on a substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rulemaking does not have sufficient federalism implications
to warrant the preparation of a separate federalism assessment.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.

Paperwork Reduction Act

The information collection requirements in this rule are approved
until March 31, 1997, by the Office of Management and Budget under the
Paperwork Reduction Act of 1980, 44 U.S.C. 3501-3520, and have been
assigned OMB control number 2125-0543.

National Environmental Policy Act

The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined that this action would not have any effect on the
quality of the environment.

Regulatory Identification Number

A regulatory identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.

List of Subjects in 49 CFR Parts 382 and 391

Alcohol concentration, Alcohol testing, Controlled substances
testing, Highway safety, Motor carriers, Motor vehicle safety,
Reporting and recordkeeping requirements.

Issued on: March 7, 1995.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA is amending title 49,
Code of Federal Regulations, subchapter B, chapter III, parts 382 and
391 as set forth below.

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

1. The authority citation for part 382 continues to read as
follows:

Authority: 49 U.S.C. 31136, 31301 et seq. and 31502: 49 CFR
1.48.

2. Section 382.401 is amended by revising paragraph (b)(1)(vi) to
read as follows:

Sec. 382.401 Retention of Records.

* * * * *
(b) * * *
(1) * * *
(vi) A copy of each annual calendar year summary required to be
completed pursuant to Sec. 382.403.
* * * * *
3. Section 382.403 is amended by revising paragraph (a) to read as
follows:

Sec. 382.403 Reporting of Results in a Management Information System.

(a) An employer shall prepare and maintain a summary of the results
of its alcohol and controlled substances testing programs performed
under this part during the previous calendar year, when requested by
the Secretary of Transportation, any DOT agency, or any State or local
officials with regulatory authority over the employer or any of its
drivers.
* * * * *

PART 391--QUALIFICATION OF DRIVERS

4. The authority citation for part 391 continues to read as
follows:

Authority: 49 U.S.C. 504, 31136, and 31502; and 49 CFR 1.48.

Sec. 391.87 [Amended]

5. In 49 CFR 391.87(h)(1) remove the word ``monthly'' and add in
its place the word ``quarterly.''
6. Section 391.87 is amended by revising paragraph (h)(3) and
adding paragraph (h)(4) to read as follows:

Sec. 391.87 Notification of test results and recordkeeping.

* * * * *
(h) * * *
(3) A motor carrier shall prepare and maintain a summary of the
results of its alcohol and controlled substances testing programs
performed under this part during the previous calendar year, when
requested by the Secretary of Transportation, any DOT agency, or any
State or local officials with regulatory authority over the motor
carrier or any of its drivers. The information shall be made available
for inspection at the motor carrier's principal place of business
within two business days of the request.
(4) If, during the month of January, a motor carrier is provided
with forms by the Federal Highway Administration on which to report the
motor carrier's annual calendar year summary information, the motor
carrier shall complete the forms and submit them to the Federal Highway
Administration by March 15 of that year. The motor carrier shall ensure
that the annual summary report is accurate and received by March 15 at
the location that the Federal Highway Administration specifies in its
request. The report shall be in the form and manner prescribed by the
Federal Highway Administration in its request. When the report is
submitted to the Federal Highway Administration by mail or electronic
transmission, the information requested shall be typed, except for the
signature of the certifying official. Each motor carrier shall ensure
the accuracy and timeliness of each report submitted by the motor
carrier or a consortium.

Note: The following appendixes will not appear in the Code of
Federal Regulations.

Appendix A to Preamble--Response to Petition for Reconsideration

Before the Federal Highway Administration

Decision

In the matter of: American Trucking Associations, Inc.,
Petitioner.

Petition for Reconsideration No. 94-11

On January 21, 1994, the American Trucking Associations, Inc.
(ATA) filed a timely petition under 49 CFR Sec. 389.35 for
reconsideration of a Federal Highway Administration (FHWA)
rulemaking: Controlled Substances Testing; Recordkeeping and
Reporting Requirements; [[Page 13371]] Final Rule. 58 Fed. Reg.
68220 (1993). The ATA requests that the rule's requirement that an
annual summary be prepared and maintained by motor carriers be
limited to those carriers which have been selected to submit the
summaries to the FHWA. Attached to the letter is a copy of comments
which the ATA submitted to the rulemaking docket (MC-93-2). On
February 3, 1994, the American Movers Conference filed a letter in
support of the ATA's petition. The motion is considered as a
petition for reconsideration of a rule under 49 CFR 389.35. For the
reasons set forth below, the petition is granted in part and denied
in part.
The rule establishes a management information system (MIS) for
FHWA drug testing regulations. Certain information relating to a
carrier's drug testing program (e.g., number of tests administered
and number of tests with verified positive results) is required to
be compiled and maintained on an annual basis as part of the MIS.
Prior to the December 23, 1993, rulemaking, the FHWA already
required substantially the same information to be compiled and
maintained. 49 CFR 391.87(h). In addition to deleting some items of
information and adding others, the subject rulemaking amended
Sec. 391.87(h) to require that annual summaries, required to be
maintained by all carriers, be submitted, in the form provided in
the rulemaking, to the FHWA by a relatively small number of selected
carriers each year for statistical purposes.
The MIS provisions in the subject rulemaking are similar to
those appearing in the new rules for drug and alcohol testing. 49
CFR Part 382. Therefore, any discussion or amendment of
Sec. 391.87(h) pursuant to the petition applies in the same manner
to Part 382.
The ATA petitions the Administrator to reconsider the
requirement that all carriers be required to complete annual summary
forms. The ATA recommends that only carriers which have been
selected to submit annual summaries to the FHWA be required to
complete them.
The ATA states that it ``supports reasonable recordkeeping
requirements * * * [but] opposes recordkeeping requirements which
are unduly complex and exceed legitimate needs for monitoring
compliance.'' The ATA argues that requiring all carriers to complete
annual summaries is unreasonable and constitutes a ``severe
paperwork burden'' without commensurate safety benefits.
As mentioned above, the rulemaking made no significant
substantive changes to the information already required to be
maintained and prepared in Sec. 391.87. Annual summaries have been
required since the inception of the drug testing program in 1989.
The rule, therefore, does not increase, but only continues, any
data maintenance burden on carriers.
The rule also does not significantly increase the procedural
burden. Contrary to the assumption in the petition, the rule does
not require all motor carriers to complete annual summary forms.
Only those carriers which have been selected to submit data are
required to put that data on a form, and mail it to the FHWA. Thus,
the ATA's cost estimate, based on FHWA's computation of time to
complete one form, of $1.3 to $5.4 million for 270,000 carriers to
complete the forms is not accurate. In actuality, only a fraction of
those 270,000 carriers will be required to complete and submit a
form in any given year.
The rule does continue the requirement of preparing and
maintaining certain testing information. For the vast majority of
carriers, this means that the information, which consists of yearly
totals in various categories, must be culled from the carrier's
files and kept in one place. No forms need to be completed. Indeed,
the form of the summary is not specified at all. The carrier can
choose the form best suited to its operations, including computer
technology. Sec. 390.31. Such electronic data storage and retrieval
systems should facilitate the generation of the summaries.
Though an assessment of the burden of compliance with the annual
summary requirement should not properly include the cost of form
preparation, it must be acknowledged that a cost is incurred simply
in the compiling and maintaining of the summary information. Though
difficult to quantify, the cost, added to an already costly drug
testing program, may be significant, given the large number of
carriers subject to the rules. The addition of alcohol testing to
drug testing, along with the inclusion of intrastate with interstate
carriers subject to testing, will only increase the overall cost of
data maintenance. Given these costs, the question becomes, can the
regulatory benefit to the FHWA in the context of the program as a
whole justify the imposition of the addition costs associated with
the annual summary?
The ATA argues that a summary of a year's activity is of no
value in determining compliance, because drug testing requirements
are driver and trip specific. Even the rate at which the employer is
actually randomly testing its drivers cannot be determined from
review of an annual summary, the ATA asserts, because ``the summary
provides only the number of covered employees, while the random
selection criteria is based on driver positions.''
It is correct that an employer must test its employees at a
given rate based on the number of its driving positions during the
course of the year, and that the annual summary includes a different
number--the total number of drivers subject to testing during the
year. It is incorrect, however, that the annual summary is of no use
in determining a carrier's compliance with the random testing rate.
In most, but not all, instances, the number of random tests
performed will appear on the annual summary, which is part of the
rate equation. No other information on the annual summary can be
used directly to enforce compliance with drug testing requirements,
however.
The annual summary also has value in indirect enforcement of
drug testing requirements. Nowhere else is information on a
carrier's drug testing program compiled in one location. Drug
testing data is usually maintained in individual driver
qualification files. The annual summary gives an overall picture of
the drug testing program, and may alert FHWA representatives to
irregularities which can be further investigated through other
employer records.
A collateral benefit lies in the picture which an annual summary
presents a carrier of its program as a whole. With testing
information scattered about in individual files, and perhaps in
different locations, it may be difficult for a carrier to determine
the overall effectiveness of its program. Inconsistencies and flaws
which might otherwise be missed may be highlighted by the annual
summary, allowing the carrier to make any changes to the program
necessary to ensure compliance. Yet, mandating completion of an
annual summary is a one size fits all management approach. Many
carriers may have alternative, and less costly, methods of
accomplishing the same oversight.
In summary, the annual summary offers limited benefits to the
FHWA in direct enforcement of testing requirements, and perhaps
greater benefits in indirect enforcement. It may be helpful, though
not essential, for an FHWA inspector to have the information
available. On the other hand, these marginal benefits are never
realized in regard to the vast majority of carriers neither asked to
submit the summaries they labored to complete, nor made the subject
of a compliance audit.
It is not reasonable or cost effective in terms of enforcement,
therefore, to require all carriers to complete an annual summary by
March 15 of each year, when only a mere fraction of those summaries
are ever reviewed by FHWA officials. Many prudent carriers may very
well wish to prepare and maintain a summary each year as a
management aid or in anticipation of an inspection or submission
request, but they should not be required to do so.
For carriers that are inspected, however, it may be beneficial
for an FHWA inspector to review an annual summary. Therefore, the
rule will be amended to require a carrier to produce an annual
summary only upon the demand of an FHWA representative, either as
part of an inspection, investigation or special study; or for
statistical purposes. Thus, the ATA's petition to restrict the
summary requirement to statistical purposes is denied, though the
instances in which the summaries must be completed is being greatly
reduced consistent with the petition.
This scheme will operate well with the requirements in the new
alcohol and drug testing regulations to be implemented on January 1,
1995, and 1996. The new regulations, Part 382, contain an MIS for
drug and alcohol testing similar to that in Part 391 for drug
testing. Part 391 will sunset as Part 382 testing is implemented.
Both Parts 382 and 391 now provide for prior notice. Sections
382.401(d) and 391.87(h)(3) allow the employer to make all records
required to be maintained in Part 382 or Sec. 391.87 ``available at
the employer's principal place of business within two business days
after a request has been made by an authorized representative of the
Federal Highway Administration.'' Upon request, the carrier would
gather the records together, along with [[Page 13372]] the most
current annual summary, and present them to the FHWA representative.
Wherefore, the petition of the American Trucking Associations,
Inc. for reconsideration of the FHWA final rule at 58 Fed. Reg.
68220 (January 21, 1994,) is hereby denied in part and granted in
part consistent with the foregoing. The FHWA will publish a final
rule accordingly.

Dated: March 7, 1995.
Rodney E. Slater,
Federal Highway Administrator.

Appendix B to Preamble--Information Systems Data Collection Forms

Drug and Alcohol Testing Management Information System (MIS) Data
Collection Form

Instructions

The following instructions are to be used as a guide for
completing the drug and alcohol testing information sought by the
Federal Highway Administration (FHWA) and the U.S. Department of
Transportation (DOT) in the Drug and Alcohol Testing MIS Data
Collection Form. These instructions explain the information
requested and indicate the probable sources for this information. A
sample testing results table with a narrative explanation is
provided on pages iii-iv (for drug results) and v-vi (for alcohol
results) as an example to facilitate the process of completing the
form correctly.
This reporting form is comprised of four sections. Collectively,
these sections address the data elements required in the FHWA and
the DOT drug and alcohol testing regulations. The four sections, the
page number for the instructions, and the page location on the
reporting form are shown below.

------------------------------------------------------------------------
Instructions Reporting
Section page form page
------------------------------------------------------------------------
A. Motor Carrier Employer Information......... i 1
B. Covered Employees.......................... i 1
C. Drug Testing Information................... ii-iv 2
D. Alcohol Testing Information................ iv-vi 3
------------------------------------------------------------------------

Page 1--MOTOR CARRIER EMPLOYER INFORMATION (Section A) requires
the company name for which the report is completed, a current
address, the U.S. DOT number, and the ICC number (if applicable). A
signature, date, and current telephone (including the area code)
must be entered by the person certifying to the correctness and
completeness of the report.
Page 1--COVERED EMPLOYEES (Section B) requires a count for each
driver that must be tested under DOT regulations. There is only one
category of covered employees for FHWA regulated employers, and that
is ``Drivers''. The most likely source for this information is the
employer's personnel department. These counts should be based on the
company records for the calendar year being reported. An employee
who is hired twice or more in the reported year must be counted as a
single employee.
Additional information must be completed if your company employs
personnel who perform duties covered by the drug and alcohol rules
of more than one DOT operating administration. NUMBER OF EMPLOYEES
COVERED BY MORE THAN ONE DOT OPERATING ADMINISTRATION, requires that
you identify the number of drivers, who are covered employees, under
the appropriate additional operating administration(s). The
employees covered by more than one DOT operating administration must
be counted under all appropriate operating administrations.
Page 2--DRUG TESTING INFORMATION (Section C) requires
information for drug testing by category of testing. These
categories include: (1) pre-employment, (2) random, (3) post-
accident/non-fatal, (4) post-accident/fatal, (5) reasonable
suspicion, (6) return to duty, and (7) follow-up testing. All
numbers entered into this table should be for applicants or company
employees in a covered position only (i.e. ``Drivers''). Each part
of this table must be completed for each category of testing. These
numbers do not include refusals for testing.
Section C is used to summarize the drug testing results for
applicants and covered employees. There are seven categories of
testing to be completed. The first part of the table is where you
enter the data on pre-employment testing. The following six parts
are for entering drug testing data on random, post-accident/non-
fatal, post-accident/fatal, reasonable suspicion, return to duty,
and follow-up testing, respectively. Items necessary to complete
these tables include:
(1) The number of specimens collected in each testing category;
(2) The number of specimens tested which were verified negative
and verified positive for any drug(s); and
(3) Individual counts of those specimens which were verified
positive for each of the five drugs.
Do not include results of quality control (QC) samples submitted
to the testing laboratory in any of the tables.
A sample table with detailed instructions is provided for the
first part, PRE-EMPLOYMENT TESTING
Information on actions taken with those persons testing positive
is required at the end of Section C. Specific instructions for
providing this latter information are given after the instructions
for completing the table in Section C.
Three types of information are necessary to complete the left
side of this table. The first column (``NUMBER OF SPECIMENS
COLLECTED''), requires a count for all collected specimens. It
should not include refusals to test. The second column (``NUMBER OF
SPECIMENS VERIFIED NEGATIVE''), requires a count for all completed
tests that were verified negative by your Medical Review Officer
(MRO).
The third column (``NUMBER OF SPECIMENS VERIFIED POSITIVE FOR
ONE OR MORE OF THE FIVE DRUGS''), refers to the number of specimens
provided by job applicants or employees that were verified positive.
``Verified positive'' means the results were verified by your MRO.
The right hand portion of thee table (``NUMBER OF SPECIMENS
VERIFIED POSITIVE FOR EACH TYPE OF DRUG''), requires counts of
positive tests for each of the five drugs for which tests were
completed (i.e., marijuana (THC), cocaine, phencyclidine (PCP),
opiates, and amphetamines). The number of positive specimens for
each drug should be entered in the appropriate column for that drug
type. Again, ``verified positive'' refers to test results verified
by your MRO.
If an applicant or employee tested positive for more than one
drug; for example, both marijuana and cocaine, that person's
positive results should be included once in each of the appropriate
columns (marijuana and cocaine).
A sample table is provided on page iii with example numbers.
Page 2--Below the table for drug testing information is a box
(``Number of persons denied a position as a covered employee
following a verified positive drug test''). This is a count of those
persons who were not placed in a covered position because they
tested positive for one or more drugs.
Page 2--Also following the table that summarizes DRUG TESTING
INFORMATION, you must provide counts for employees returned to duty
during this reporting period who had a verified positive drug test
or refused a drug test required under the FHWA rule. This
information should be available from the personnel office and/or
drug program manager.

Sample Applicant Test Results Table

The following example is for Section C, DRUG TESTING
INFORMATION, which summarizes pre-employment testing results. The
procedures detailed here also apply to the other categories of
testing in Section C which require you to summarize testing results
for employees. This example uses ``Pre-Employment'' testing to
illustrate the correct procedures for completing the form.
A. Urine specimens were collected for 157 job applicants for
driver positions during the reporting year. This information is
entered in the first column of the table in the row marked ``PRE-
EMPLOYMENT''.
B. The Medical Review Officer (MRO) for your company reported
that 153 of those 157 specimens from applicants for driver positions
were negative (i.e., no drugs were detected). Enter this information
in the second column of the table in the row marked ``PRE-
EMPLOYMENT''.
C. The MRO for your company reported that 4 of those 157
specimens from applicants for driver positions were positive (i.e.,
a drug or drugs were detected). Enter this information in the third
column of the table in the row marked ``PRE-EMPLOYMENT''.
D. With the 4 specimens that tested positive, the following
drugs were detected:

------------------------------------------------------------------------
Specimen Drugs
------------------------------------------------------------------------
#1.............. Marijuana.
#2.............. Amphetamines.
#3.............. Marijuana and Cocaine (Multi-drug specimen).
#4.............. Marijuana.
------------------------------------------------------------------------

[[Page 13373]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of specimens verified positive for each type of drug
specimens -------------------------------------------------------------------
Number of Number of verified
Type of test specimens specimens positive
collected verified for one or Marijuana Cocaine Phencyclidine Opiates Amphetamines
negative more of the (THC) (PCP)
five drugs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pre-employment............................... 157 153 4 3 1 0 0 1
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marijuana was detected in three (3) specimens, cocaine in one
(1), and amphetamines in one (1). This information is entered in the
columns on the right hand side of the table under each of these
drugs. Since two different drugs were detected in specimen #3
(multi-drug), entries are made in both the marijuana and the cocaine
columns for this specimen. Information on multi-drug specimens must
also be entered in the table, SPECIMENS VERIFIED POSITIVE FOR MORE
THAN ONE DRUG.
Note that adding up the numbers for each type of drug in a row
(``NUMBER OF SPECIMENS VERIFIED POSITIVE FOR EACH TYPE OF DRUG'')
will not always match the number entered in the third column,
``NUMBER OF SPECIMENS VERIFIED POSITIVE FOR ONE OR MORE OF THE FIVE
DRUGS''. The total for the numbers on the right hand side of the
table may differ from the number of specimens testing positive since
some specimens may contain more than one drug.
Remember that the same procedures indicated above are to be used
for completing all categories of testing in the table in Section C.
Page 2--SPECIMENS VERIFIED POSITIVE FOR MORE THAN ONE DRUG
requires information on specimens that contained more than one drug.
First, indicate the NUMBER OF VERIFIED POSITIVES. Then, specify the
combination of drugs reported as positive by placing the number in
the appropriate columns. For example, if marijuana and cocaine were
detected in 3 specimens, then you would write ``3'' as the number of
verified positives, and ``3'' in the columns for ``Marijuana'' and
``Cocaine''. If marijuana and opiates were detected in 2 specimens,
then you would write ``2'' as the number of verified positives, and
``2'' in the columns for ``Marijuana'' and ``Opiates''.
Page 2--EMPLOYEES WHO REFUSED TO SUBMIT TO A DRUG TEST requires
a count of the NUMBER OF COVERED EMPLOYEES who refused to submit to
a random or non-random (pre-employment, post-accident, reasonable
suspicion, return to duty, or follow-up) drug test required by FHWA
regulation.
Page 2--DRUG TRAINING/EDUCATION requires information on the
number of supervisory personnel who have received the required drug
training during the current reporting period.
Page 3--ALCOHOL TESTING INFORMATION (Section D) requires
information for alcohol testing by category of testing. These
categories include: (1) pre-employment, (2) random, (3) post-
accident/non-fatal, (4) post-accident/fatal, (5) reasonable
suspicion, (6) return to duty, and (7) follow-up testing. All
numbers entered into this table should be for applicants or company
employees in covered positions only (i.e., ``Drivers''). Each part
of this table must be completed for each category of testing. These
numbers do not include refusals for testing. A sample table is
provided on page vi with example numbers.
Four types of information are necessary to complete this table.
The first column (``NUMBER OF SCREENING TESTS''), requires a count
of all screening alcohol tests performed. It should not include
refusals to test. The second column (``NUMBER OF CONFIRMATION
TESTS'') requires a count of all confirmation alcohol tests
performed.
The third column (``NUMBER OF CONFIRMATION TEST RESULTS EQUAL TO
OR GREATER THAN 0.02, BUT LESS THAN 0.04''), refers to the number of
test results equal to or greater than 0.02, but less than 0.04.
The fourth column (``NUMBER OF CONFIRMATION TEST RESULTS EQUAL
TO OR GREATER THAN 0.04''), refers to the number of specimens with a
result equal to or greater than 0.04. Note: For return to duty
testing, a confirmation test result equal to or greater than 0.02 is
a violation of the alcohol rule. Therefore, if the number of results
equal to or greater than 0.04 is unknown, you may report all results
in the third column of the table.
Page 3--Below the table for alcohol testing information is a box
(``Number of persons denied a position as a covered employee
following an alcohol test indicating an alcohol concentration of
0.04 or greater''). This is a count of those persons who were not
placed in a covered position because their alcohol test indicated an
alcohol concentration of 0.04 or greater.
Page 3--Also following the table that summarizes ALCOHOL TESTING
INFORMATION, you must provide a count of the ``Number of employees
who engaged in alcohol misuse who were returned to duty in a covered
position (having complied with the recommendations of a substance
abuse professional as described in FHWA regulations)''. This
information should be available from the personnel office and/or
drug and alcohol program manager.

Sample Applicant Test Results Table

The following example is for ALCOHOL TESTING INFORMATION, which
summarizes pre-employment testing results. The procedures detailed
here also apply to the other reasons for testing in the table which
require you to summarize testing results for employees. This example
will use ``Pre-Employment'' testing to illustrate the procedures for
completing the form.
A. Screening tests were performed on 157 job applicants for
driver positions during the reporting year. This information is
entered in the first blank column of the table in the row marked
``PRE-EMPLOYMENT''.
B. Confirmation tests were necessary for 6 of the 157 applicants
for driver positions. Enter this information in the second blank
column of the table in the row marked ``PRE-EMPLOYMENT''. The
confirmation test results for these 6 applicants were the following:

------------------------------------------------------------------------
Confirmation
Applicant result
------------------------------------------------------------------------
#1........................................................ 0.06
#2........................................................ 0.01
#3........................................................ 0.11
#4........................................................ 0.04
#5........................................................ 0.03
#6........................................................ 0.02
------------------------------------------------------------------------

C. The confirmation test results for 2 of the applicants for
driver positions were equal to or greater than 0.02, but less than
0.04. Enter this information in the third blank column of the table
in the row marked ``PRE-EMPLOYMENT''.
D. The confirmation test results for 3 of the applicants for
driver positions were equal to or greater than 0.04. Enter this
information in the fourth blank column of the table in the row
marked ``PRE-EMPLOYMENT''.

----------------------------------------------------------------------------------------------------------------
Number of
confirmation Number of
test results confirmation
Number of Number of equal to or test results
Type of test screening confirmation greater than equal to or
tests tests 0.02, but greater than
less than 0.04
0.04
----------------------------------------------------------------------------------------------------------------
Pre-employment........................................... 157 6 2 3
----------------------------------------------------------------------------------------------------------------

[[Page 13374]] Note that adding up the numbers for confirmation
results in columns three and four will not always match the number
entered in the second column, ``NUMBER OF CONFIRMATION TESTS''.
These numbers may differ since some confirmation test results may be
less than 0.02.
Remember that the same procedures indicated above are to be used
for completing all categories of testing in the table in Section D.
Page 3--Number of employees administered drug and alcohol tests
at the same time resulting in a verified positive drug test and an
alcohol test indicating an alcohol concentration of 0.04 or greater,
requires that a count of all such employees be entered in the
indicated box.
Page 3--VIOLATIONS OF OTHER ALCOHOL PROVISIONS/PROHIBITIONS OF
THIS REGULATION, requires information on the NUMBER OF COVERED
EMPLOYEES committing such a violation, a description of the
VIOLATION committed (e.g., pre-duty alcohol use, on duty alcohol
use, on duty alcohol possession), and a description of the ACTION
TAKEN in response to the violation.
Page 3--EMPLOYEES WHO REFUSED TO SUBMIT TO AN ALCOHOL TEST
requires a count of the NUMBER OF COVERED EMPLOYEES who refused to
submit to a random or non-random (pre-employment, post-accident,
reasonable suspicion, return to duty, or follow-up) alcohol test
required under the FHWA regulation.
Page 3--ALCOHOL TRAINING/EDUCATION requires information on the
number of supervisors who have received initial training on the
specific contemporaneous physical, behavioral, and performance
indicators of probable alcohol use as required by FHWA alcohol
testing regulations during the current reporting period.

FHWA Drug and Alcohol Testing MIS Data Collection Form OMB No. 2125-
0543

A. Motor Carrier Employer Information

Company ---------------------------------------------------------------
Year Covered by This Report:-------------------------------------------

Principal Place of Business for Safety:
Physical Address-------------------------------------------------------

Mailing Address--------------------------------------------------------

----------------------------------------------------------------------

U.S. DOT Number--------------------------------------------------------

ICC Number-------------------------------------------------------------
----------------------------------------------------------------------

I, the undersigned, certify that the information provided on
this Federal Highway Administration Drug Testing Management
Information System Data Collection Form is, to the best of my
knowledge and belief, true, correct, and complete for the period
stated.

----------------------------------------------------------------------
Signature

----------------------------------------------------------------------
Date of Signature

----------------------------------------------------------------------
Title
----------------------------------------------------------------------
Phone Number

Title 18, U.S.C. Section 1001, makes it a criminal offense
subject to a maximum fine of $10,000, or imprisonment for not more
than 5 years, or both, to knowingly and willfully make or cause to
be made any false or fraudulent statements or representations in any
matter within the jurisdiction of any agency of the United States.
The Federal Highway Administration estimates that the average
burden for this report form is 2 hours. You may submit any comments
concerning the accuracy of this burden estimate or any suggestions
for reducing the burden to: Director, Office of Motor Carrier
Standards (HCS-1); Federal Highway Administration; 400 7th St., SW.,
Washington, DC 20590; OR Office of management and Budget, Paperwork
Reduction Projects (2125-0543); Washington, DC 20503.

B. Covered Employees
----------------------------------------------------------------------------------------------------------------
Covered Employees
-----------------------------------------------------------------------------
Number of Number of employee covered by more than one DOT operating
Employee category FHWA administration
covered ----------------------------------------------------------------
employees FAA FRA FTA RSPA USCG
----------------------------------------------------------------------------------------------------------------
Drivers...........................
----------------------------------------------------------------------------------------------------------------

Read Before Completing the Remainder of this Form:

1. All items refer to the current reporting period only (for
example, January 1, 1994-December 31, 1994).
2. This report is only for testing REQUIRED BY THE FEDERAL
HIGHWAY ADMINISTRATION (FHWA) AND THE U.S. DEPARTMENT OF
TRANSPORTATION (DOT):
Results should be reported only for employees in
COVERED POSITIONS as defined by FHWA/DOT drug and alcohol testing
regulations.
The information requested should only include testing
for marijuana (THC), cocaine, phencyclidine (PCP), opiates,
amphetamines, and alcohol using the standard procedures required by
DOT regulation 49 CFR Part 40.
3. Information on refusals for testing should only be reported
in the tables entitled ``EMPLOYEES WHO REFUSED TO SUBMIT TO A DRUG
(or AN ALCOHOL) TEST''. Do not include refusals for testing in other
sections of this report.
4. Do not include the results of any quality control (QC)
samples submitted to the testing laboratory in any of the tables.
5. Complete all items; DO NOT LEAVE ANY ITEM BLANK. If the value
for an item is zero (0), place a zero (0) on the form.

C. Drug Testing Information
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of specimens verified positive for each type of drug
specimens -------------------------------------------------------------------
Number of Number of verified
Type of test specimens specimens positive
collected verified for one or Marijuana Cocaine Phencyclidine Opiates Amphetamines
negative more of the (THC) (PCP)
five drugs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pre-employment...............................
Random.......................................
Post-Accident/non-fatal......................
Post-Accident/fatal..........................
Reasonable suspicion.........................
Return to duty...............................
Follow-up....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

Number of persons denied a position as a covered employee
following a verified positive drug test:

Number of employees returned to duty during this reporting
period who had a verified positive drug test or refused a
drug test required under the FHWA rule:

Specimens Verified Positive for More Than One Drug

Marijuana Phencyclidine
Number of verified positives (THC) Cocaine (PCP) Opiates Amphetamines

Employees who refused to submit to a drug test Number
Covered employees who refused to submit to a random drug
test required under the FHWA regulation...................
Covered employees who refused to submit to a non-random
drug test required under the FHWA regulation..............

----------------------------------------------------------------------------------------------------------------
Drug training/education Number
----------------------------------------------------------------------------------------------------------------
Number of supervisors who have received initial training on the
specific contemporaneous physical, behavioral, and performance
indicators of probable drug use as required by FHWA drug testing
regulations:
----------------------------------------------------------------------------------------------------------------

D. Alcohol Testing Information
----------------------------------------------------------------------------------------------------------------
Number of
confirmation Number of
test results confirmation
Number of Number of equal to or test results
Type of Test screening confirmation greater than equal to or
tests tests 0.02, but greater than
less than 0.04
0.04
----------------------------------------------------------------------------------------------------------------
Pre-employment...........................................
Random...................................................
Post-accident/non-fatal..................................
Post-accident/fatal......................................
Reasonable suspicion.....................................
Return to duty...........................................
Follow-up................................................
----------------------------------------------------------------------------------------------------------------

Number of persons denied a position as a covered employee
following an alcohol test indicating an alcohol
concentration of 0.04 or greater:
Number of employees who engaged in alcohol misuse who were
returned to duty in a covered position (having complied
with the recommendations of a substance abuse professional
as described in FHWA regulations):
Number of employees administered drug and alcohol tests at
the same time resulting in a verified positive drug test
and an alcohol test indicating an alcohol concentration of
0.04 or greater:

Violations of Other Alcohol Provisions/Prohibitions of this Regulation

Number of
covered Violation Action taken
employees
......... Driver used alcohol while performing safety- ..................................................
sensitive function.
......... Driver used alcohol within 4 hours of ..................................................
performing safety-sensitive function.
......... Driver used alcohol before taking a required ..................................................
post-accident alcohol test.

------------------------------------------------------------------------
Employees who refused to submit to an alcohol test Number
------------------------------------------------------------------------
Covered employees who refused to submit to a random alcohol
test required under the FHWA regulation...................
Covered employees who refused to submit to a non-random
alcohol test required under the FHWA regulation...........
------------------------------------------------------------------------

------------------------------------------------------------------------
Alcohol Training/Education Number
------------------------------------------------------------------------
Number of supervisors who have received initial training on
the specific contemporaneous physical, behavioral, and
performance indicators of probable alcohol use as required
by FHWA alcohol testing regulations.......................
------------------------------------------------------------------------

[[Page 13376]]

Drug and Alcohol Testing Management Information System (MIS) ``EZ''
Data Collection Form

Instructions

The following instructions are to be used as a guide for
completing the Federal Highway Administration (FHWA) and the U.S.
Department of Transportation (DOT) Drug and Alcohol Testing MIS
``EZ'' Data Collection Form. This form should only be used if there
are no positive drug tests and no alcohol misuse to be reported by
your company. These instructions explain the information requested
and indicate the probable sources for this information. This
reporting form includes four sections. These sections address the
data elements required in the FHWA and DOT drug and alcohol testing
regulations.
SECTION A--MOTOR CARRIER EMPLOYER INFORMATION requires the
company name for which the report is completed, a current address,
the U.S. DOT number, and the ICC number (if applicable). A signature
and title, date, and current telephone (including the area code)
must be entered by the person certifying the correctness and
completeness of the report.
SECTION B--COVERED EMPLOYEES requires a count for each employee
category that must be tested under FHWA regulations. There is only
one category of covered employees for FHWA, and that is ``Drivers''.
The most likely source for this information is the employer's
personnel department. These counts should be based on the company
records for the calendar year being reported. An employee who is
hired twice or more in the reported year must be counted as a single
employee.
Additional information must be completed if your company employs
personnel who perform duties covered by the drug and alcohol rules
of more than one DOT operating administration. NUMBER OF EMPLOYEES
COVERED BY MORE THAN ONE DOT OPERATING ADMINISTRATION, requires that
you identify the number of employees in each employee category under
the appropriate additional operating administration(s). The
employees covered by more than one DOT operating administration must
be counted under all appropriate operating administrations.
SECTION C--DRUG TESTING INFORMATION requires information for
drug testing, refusals for testing, and training/education. The
first table requests information on the NUMBER OF SPECIMENS
COLLECTED AND VERIFIED NEGATIVE in each category for testing. These
categories include: (1) pre-employment, (2) random, (3) post-
accident/ non-fatal, (4) post-accident/fatal, (5) reasonable
suspicion, (6) return to duty, and (7) follow-up testing. All
numbers entered into this table should be for applicants or company
employees in a covered position only (i.e. ``Drivers''). Each part
of this table must be completed for each category of testing. These
numbers do not include refusals for testing. ``COLL'' requires the
number of specimens collected for each category of testing. ``NEG''
requires a count for all completed tests that were verified negative
by your Medical Review Officer (MRO). Do not include results of
quality control (QC) samples submitted to the testing laboratory in
any of the categories.
Following the table for drug testing data you must provide
counts for drivers returned to duty during this reporting period who
had a verified positive drug test or refused a drug test required
under the FHWA rule. This information should be available from the
personnel office and/or drug program manager.
EMPLOYEES WHO REFUSED TO SUBMIT TO A DRUG TEST requires a count
of the NUMBER OF COVERED EMPLOYEES who refused to submit to a random
or non-random (pre-employment, post-accident, reasonable suspicion,
return to duty, or follow-up) drug test required under the FHWA
regulation.
DRUG TRAINING/EDUCATION requires information on the number of
supervisory personnel who have received the required drug training
during the current reporting period.
SECTION D--ALCOHOL TESTING INFORMATION requires information for
alcohol testing, refusals for testing, and training/education. The
first table requests information on the NUMBER OF SCREENING TESTS
CONDUCTED in each category of testing. These categories include: (1)
pre-employment, (2) random, (3) post-accident/non-fatal, (4) post-
accident/fatal, (5) reasonable suspicion, (6) return to duty, and
(7) follow-up testing. All numbers entered into this table should be
for applicants or company employees in covered positions only (i.e.,
``Drivers''). Enter the number of alcohol screening tests conducted
for each category of testing. These numbers do not include refusals
for testing.
Following the table that summarizes ALCOHOL TESTING INFORMATION,
you must provide a count of the ``Number of drivers who engaged in
alcohol misuse who were returned to duty in a covered position
(having complied with the recommendations of a substance abuse
professional as described in FHWA regulations)''. This information
should be available from the personnel office and/or drug and
alcohol program manager.
EMPLOYEES WHO REFUSED TO SUBMIT TO AN ALCOHOL TEST requires a
count of the NUMBER OF COVERED EMPLOYEES who refused to submit to a
random or non-random (pre-employment, post-accident, reasonable
suspicion, return to duty, or follow-up) alcohol test required under
the FHWA regulation.
ALCOHOL TRAINING/EDUCATION requires information on the number of
supervisors who have received initial training on the specific
contemporaneous physical, behavioral, and performance indicators of
probable alcohol use as required by FHWA alcohol testing regulations
during the current reporting period.

FHWA Drug and Alcohol Testing MIS ``EZ'' Data Collection Form OMB No.
2125-0543

A. Motor Carrier Employer Information

Company----------------------------------------------------------------

Year Covered by This Report:-------------------------------------------
Principal Place of Business for Safety:

Physical Address-------------------------------------------------------

Mailing Address--------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------
U.S. DOT Number--------------------------------------------------------

ICC Number-------------------------------------------------------------
I, the undersigned, certify that the information provided on the
attached Federal Highway Administration Drug and Alcohol Testing
Management Information System Data Collection Form is, to the best
of my knowledge and belief, true, correct, and complete for the
period stated.

----------------------------------------------------------------------
Signature

----------------------------------------------------------------------
Date of Signature
----------------------------------------------------------------------
Title
----------------------------------------------------------------------
Phone Number
Title 18, U.S.C. Section 1001, makes it a criminal offense
subject to a maximum fine of $10,000, or imprisonment for not more
than 5 years, or both, to knowingly and willfully make or cause to
be made any false or fraudulent statement or representations in any
matter within the jurisdiction of any agency of the United States.
The Federal Highway Administration estimates that the average
burden for this report form is 30 minutes. You may submit any
comments concerning the accuracy of this burden estimate or any
suggestions for reducing the burden to: Director, Office of Motor
Carrier Standards (HCS-1); Federal Highway Administration; 400 7th
St., SW., Washington, DC 20590; OR Office of Management and Budget,
Paperwork Reduction Project (2125-0543); Washington, DC 20503.

[[Page 13377]]
B. Covered Employees
----------------------------------------------------------------------------------------------------------------
Covered Employees
-----------------------------------------------------------------------------------------------------------------
Number of Number of Employees Covered by More Than One DOT Operating
FHWA Administration
Employee Category Covered ----------------------------------------------------------------
Employees FAA FRA FTA RSPA USCG
----------------------------------------------------------------------------------------------------------------
Drivers
----------------------------------------------------------------------------------------------------------------

C. Drug Testing Information
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Specimens Collected and Verified Negative
---------------------------------------------------------------------------------------------------------------------------------------------------------
Pre-Employment Random Post-Accident/ Post-Accident/ Reasonable Return to Duty Follow-up
-------------------------------- Non-Fatal Fatal Suspicion -------------------------------
Employee Category ------------------------------------------------
Coll Neg Coll Neg Coll Neg Coll Neg Coll Neg Coll Neg Coll Neg
--------------------------------------------------------------------------------------------------------------------------------------------------------
Drivers
--------------------------------------------------------------------------------------------------------------------------------------------------------

Number of drivers returned to duty during this reporting
period who had a verified positive drug test or refused a
drug test required under the FHWA rule:

Employees who refused to submit to a drug test Number
Covered employees who refused to submit to a random drug
test required under the FHWA regulation:
Covered employees who refused to submit to a non-random
drug test required under the FHWA regulation:

------------------------------------------------------------------------
Drug training/education Number
------------------------------------------------------------------------
Supervisors who have received initial training on the
specific contemporaneous physical, behavioral, and
performance indicators of probable drug use as required by
FHWA drug testing regulations:
------------------------------------------------------------------------

D. Alcohol Testing Information
----------------------------------------------------------------------------------------------------------------
Number of alcohol screening tests conducted
-----------------------------------------------------------------------------------------------------------------
Post- Post-
Employee category Pre- Random Accident/ Accident/ Reasonable Return to Follow-up
employment non-fatal fatal suspicion duty
----------------------------------------------------------------------------------------------------------------
Drivers
----------------------------------------------------------------------------------------------------------------

Number of drivers who engaged in alcohol misuse who were
returned to duty in a covered position (having complied
with the recommendations of a substance abuse professional
as described in FHWA regulations):

Employees who refused to submit to an alcohol test Number
Covered employees who refused to submit to a random alcohol
test required under the FHWA regulation:
Covered employees who refused to submit to a non-random
alcohol test required under the FHWA regulation:

------------------------------------------------------------------------
Alcohol training/education Number
------------------------------------------------------------------------
Number of supervisors who have received initial training on
the specific contemporaneous physical, behavioral, and
performance indicators of probable alcohol use as required
by FHWA alcohol testing regulations:
------------------------------------------------------------------------

[FR Doc. 95-6043 Filed 3-10-95; 8:45 am]
BILLING CODE 4910-22-P