[Federal Register Volume 63, Number 9 (Wednesday, January 14, 1998)]
[Rules and Regulations]
[Pages 2172-2177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-566]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 382


Controlled Substances and Alcohol Testing Management Information 
System (MIS) Statistical Data

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Controlled substances and alcohol testing rates.

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SUMMARY: The FHWA is announcing the motor carrier industry's 1994, 
1995, and 1996 controlled substances and alcohol testing positive 
rates. The controlled substances testing positive rate was 2.6 percent 
in calendar year 1994, 2.8 percent in 1995, and 2.2 percent in 1996. 
The alcohol testing ``violation'' rate was 0.14 percent in 1995, and 
0.18 percent in 1996. Because the violation rate was below 0.5 percent 
for two consecutive years, the FHWA is announcing it is lowering the 
random alcohol testing rate for calendar year 1998 to 10 percent, in 
accordance with the provisions of the testing regulations.

DATES: January 1, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Rombro, Office of Motor 
Carrier Information Analysis (HIA-20), (202) 366-5615; Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: On December 23, 1993 (58 FR 68220), the FHWA 
announced it would require motor carriers subject to 49 CFR part 391, 
later replaced by part 382, to implement and maintain specific 
controlled substance testing data, and submit an appropriate annual 
report when requested. All motor carriers must maintain this 
information. The FHWA randomly selects a sample of motor carriers 
annually and asks those selected to submit their data.
    On February 15, 1994 (59 FR 7484), the FHWA promulgated new 
controlled substances and alcohol testing rules in 49 CFR part 382. 
These rules combined the controlled substances annual report with a 
similar alcohol rule ``violation'' annual report. An alcohol rule 
violation for purposes of the annual report are alcohol concentrations 
of 0.04 or greater and refusals to submit to alcohol testing.
    On March 13, 1995, the FHWA amended the rule to reduce the 
information collection burden on all respondents, including small 
entities (60 FR 13369).
    The current rule at Sec. 382.403, formerly at 49 CFR 391.87(h), is 
essential for the FHWA to accomplish the following four goals.
    1. Collect controlled substance and alcohol testing statistical 
data.
    2. Use the data to analyze its current approach to deterring and 
detecting illegal controlled substance abuse and alcohol misuse in the 
motor carrier industry.
    3. Determine each calendar year's random selection rates for 
alcohol and controlled substance testing under the rule.
    4. Provide for a more efficient and effective regulatory program.
    In 1995, the FHWA requested a sample of motor carriers report to 
the FHWA data collected in 1994. The FHWA determined the random 
positive controlled substance testing rate for commercial motor vehicle 
(CMV) drivers subject to 49 CFR part 391, subpart H, for the period of 
January 1, 1994, through December 31, 1994, was 2.6 percent.
    In 1996, the FHWA requested a sample of motor carriers report to 
the FHWA data collected in 1995. The FHWA calculated a random positive 
controlled substance testing rate--``the positive rate''--for 1995 of 
2.8 percent. The 1995 random alcohol violation testing rate--``the 
violation rate''--for CDL drivers of motor carriers with 50 or more CDL 
drivers was 0.14 percent.
    The FHWA performed similar calculations on the 1996 data, based on 
forms received from a random sample of carriers in early 1997. The 
``positive rate'' for controlled substances was 2.2 percent. For 
alcohol, the ``violation rate'' was 0.18 percent. The estimated rates, 
with their associated 95 percent confidence intervals, are presented in 
Table 1.
    The estimation procedures for the 1995 and 1996 rates incorporate 
carrier data on drivers refusing to test. Specific definitions for 
violation rate and positive rate were added to the regulations during 
calendar year 1994 for testing in 1995. Based on these rule changes, 
refusals to take a random test are counted as ``positive.'' Adding 
refusals slightly increases the rates for alcohol concentrations of 
0.04 or greater and verified positive controlled substances tests, 
because the number of refusals each year were very small. See the 
definitions for ``violation rate'' added on February 15, 1994 (59 FR 
7484) and ``positive rate'' added on December 2, 1994 (59 FR 62218). 
This results in a higher rate than would be the case if the FHWA 
excluded refusals.

                                            Table 1.--Random Testing                                            
----------------------------------------------------------------------------------------------------------------
                                                                       Calendar   Survey rate    95% confidence 
                                                                         year         (%)       (i nterval (%)) 
----------------------------------------------------------------------------------------------------------------
Controlled substances..............................................         1994          2.6   1.9 
                                                                           *1995          2.8   0.9 
                                                                           *1996          2.2   0.8 
Alcohol............................................................        *1995         0.14   0.04

[[Page 2173]]

                                                                                                                
                                                                           *1996         0.18   0.06 
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* Includes drivers refusing to submit to testing.                                                               

    The FHWA based the calendar year 1994 rates upon U.S. domiciled 
motor carriers subject to 49 CFR part 391, subpart H operating in 
interstate commerce. The FHWA based the calendar year 1995 rates upon a 
sample from the following population:
    1. Small U.S. domiciled interstate motor carriers subject to 49 CFR 
part 391, subpart H; and
    2. Large U.S. domiciled intrastate or interstate motor carriers 
(also known as employers) subject to 49 CFR part 382.
    All U.S. domiciled motor carriers became subject to 49 CFR part 382 
on January 1, 1996. As a result, the 1996 rates are based on a sample 
of all domestic carriers. All foreign domiciled motor carriers (e.g., 
Canadian and Mexican motor carriers) became subject to 49 CFR part 382 
on July 1, 1997.
    Based upon 49 CFR 382.305 and the results of the survey, the 
controlled substances selection and testing rate must remain at 50 
percent of the average number of CDL driver positions for calendar year 
1998. The controlled substances positive rate must be below 1.0 percent 
each year for two consecutive years before the regulations would allow 
the FHWA to reduce the selection and testing rate to 25 percent.
    The alcohol selection and testing rate will be lowered to 10 
percent of the average number of CDL driver positions for calendar year 
1998, in accordance with the provisions of 49 CFR 382.305(d)(1). The 
FHWA may increase the alcohol selection and testing rate for calendar 
year 1999 if the MIS reports received for calendar year 1997 indicate 
the alcohol testing violation rate for 1997 is over 0.5 percent.
    The provisions of 49 CFR 382.305(d)(1) are as follows:


Sec. 382.305  Random testing.

    (d)(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 driver positions if the FHWA Administrator 
determines the data received under the reporting requirements of 
Sec. 382.403 for two consecutive calendar years indicate the violation 
rate is less than 0.5 percent.

Petition

    The Truckload Carriers Association (TCA, formerly named the 
Interstate Truckload Carriers Conference) petitioned the FHWA 
Administrator on October 23, 1996, to reduce the random testing rate 
applicable for alcohol and controlled substances testing on behalf of 
itself and four of its member motor carriers: C.R. England & Sons, 
Inc., Salt Lake City, Utah; Fortune Transportation, Windom, Minnesota; 
Roberson Transportation Services, Farmer City, Illinois; and Weinrich 
Truckline, Inc., Hinton, Iowa.
    The FHWA, as stated above, is reducing the random alcohol testing 
rate for calendar year 1998 for all motor carriers subject to 49 CFR 
part 382. Thus, this notice partially responds to the TCA petition. The 
other part requests a reduction in the random controlled substances 
testing rate for only the TCA's named and unnamed members.
    As the DOT and the FHWA explained on December 2, 1994 (59 FR 62218, 
at 62222), the FHWA will determine changes to the random testing rate 
based upon the motor carrier industry as a whole as the triggering 
group, not individual motor carriers or industry segments. The DOT and 
the FHWA believed then, and continue to believe, this is the fairest 
and most effective approach. Basing the testing rate upon the industry-
wide positive rate provides an incentive for motor carriers and groups 
of motor carriers with successful programs to pressure problem carriers 
and subgroups to improve their performance.
    The FHWA, therefore, denies the TCA's petition with respect to 
reducing the controlled substances testing for TCA members only.

How Did FHWA Determine These Rates?

    The appendices to this notice contain the methods used to analyze 
the data and calculate the positive testing rates. The FHWA has 
attempted to make the discussion as straightforward as possible while 
not slighting any substantive issues or formulas. The FHWA believes a 
discussion of the process must be available to the widest available 
audience; therefore the statistical methodology and the rates are 
provided below.

Will the Reduction of the Random Alcohol Testing Rate Reduce 
Highway Safety?

    The FHWA does not believe reducing the random alcohol testing rate 
to 10 percent will diminish the safe operation of commercial motor 
vehicles. First, the rates show the motor carrier industry already has 
a very low alcohol violation rate. The FHWA's MIS data indicates the 
motor carrier industry is achieving about 99.8 percent alcohol free 
drivers.
    Second, recent analysis of fatal crash results show CMV drivers 
involved in fatal crashes do not have a significant problem with 
alcohol while driving CMVs. According to the National Highway Traffic 
Safety Administration's (NHTSA) publication, Traffic Safety Facts 1996: 
Large Trucks, 1.4 percent of truck drivers driving large trucks 
involved in fatal crashes in 1996 were intoxicated. Intoxication rates 
for drivers of passenger cars, light trucks, and motorcycles were 18.8 
percent, 21.9 percent, and 30.3 percent, respectively. Rates for these 
other drivers are 13 to 21 times higher than the intoxication rate for 
drivers of large trucks.
    Third, the percentage of intoxicated truck drivers involved in 
fatal crashes has fallen over the last ten years. The NHTSA's data for 
1987 showed 2.7 percent of truck drivers involved in fatal crashes were 
intoxicated, compared to 1.4 percent in 1996, a 52 percent decline. 
This suggests to the FHWA that truck drivers use of alcohol may be 
falling. See Appendix F for a graph showing the data.
    Finally, the industry is promoting alcohol free driving through 
educational material distributed by its associations. For example, 
please refer to material such as the article ``Road Rage,'' in the 
Owner Operator Independent Driver Association's ``Land Line'' Magazine, 
November/December 1997 issue. The article suggests ten ``simple rules 
of safe driving'' including the following rule.
    ``Don't drive when fatigued or under the influence of alcohol or 
drugs. Many over the counter medicines can contain alcohol or other 
ingredients that can affect your driving skills.''
    This article is also available from OOIDA's internet universal 
resource locator at http:\\www.ooida.com and http:\\www.landlinemag.com

[[Page 2174]]

    Also refer to material available from the American Trucking 
Associations, Inc. (ATA). ATA states one of its safety initatives is 
alcohol and drug testing regulations. Some of ATA's material is 
available on the internet, at http:\\www.truckline.com.

Will the Reduction of the Random Alcohol Testing Rate Reduce Any 
Burdens in Collecting Information?

    Yes, the FHWA will be sending a revised burden estimate to the 
Office of Management and Budget (OMB) reflecting the savings.
    On September 22, 1997, the OMB reapproved the collections of 
information contained in the FHWA's controlled substances and alcohol 
testing regulations. See FHWA Docket FHWA-97-2313. The OMB extended the 
expiration date of its new approval until September 30, 2000. The OMB 
approved an annual time burden to collect information of 57,479,400 
hours and an annual financial burden to collect information of 
$3,004,913,000. The costs to actually conduct the testing are much 
higher than these information collection burdens.
    Based upon the FHWA's reduction of the random alcohol testing rate 
to ten percent of the average driver positions, the FHWA will submit to 
OMB a request to lower the burden estimates to 57,169,400 hours and 
$2,974,170,000. This is a savings of 310,000 burden hours and 
$14,743,000 of financial burden each year to collect this information.

Appendix A--FHWA Calculations for the 1994 Positive Testing Rate

    In 1995, the FHWA selected a stratified random sample of 1,048 
motor carriers. Each selected motor carrier was mailed a request to 
prepare and submit to the FHWA its calendar year 1994 controlled 
substance testing data (the FHWA's alcohol testing regulations had not 
yet taken effect). Five hundred forty-seven motor carriers responded to 
the request. The strata were defined by the number of power units owned 
by each motor carrier reported on the MCMIS. The sample size and 
response rates, by strata, are shown in Table 2.

                Table 2.--1994 Initial Responses Received               
------------------------------------------------------------------------
                                                       No.              
            Strata (No. of power units)             randomly      No.   
                                                     sampled  responding
------------------------------------------------------------------------
1-19..............................................       204         105
20-99.............................................       153         127
100-999...........................................       102          86
1000 or more......................................       126         106
Unspecified *.....................................       459         123
                                                   ---------------------
  Total:..........................................      1048     * * 547
------------------------------------------------------------------------
* The unspecified stratum includes motor carriers that have not provided
  the FHWA's MCMIS with information about the number of CMV drivers who 
  work for them.                                                        
* * 551 responses were recevied, but 4 motor carrier responses failed to
  report sufficient information to classify the motor carriers in any   
  stratum upon receipt of the report.                                   

Nonrespondents

    Four hundred ninety-seven of the 1,048 motor carriers contacted did 
not respond. The FHWA made a number of efforts to contact these 
nonrespondents. A second mailing and telephone contacts revealed the 
vast majority of nonrespondents had legitimate reasons for not 
returning the MIS forms. Many carriers were no longer in business, many 
did not employ CDL drivers, some were exempt farmers, and others only 
operated intrastate. Those nonresponding carriers that were determined 
to be in business and within the scope of the survey were recontacted. 
Drug and alcohol testing data from these carriers were then used to 
adjust the rates in each sampling stratum. The adjustments are 
described in Appendix D.

Estimation of the Random Positive Rate

    The estimate of the rate of controlled substance use within the 
motor carrier industry was carried out using two steps.
    First, the initial estimates of the rate of controlled substance 
use were made for each sampling stratum.
    Second, the estimates were adjusted for nonresponse. All 
information in the sample of nonrespondents showed zero positive rates 
in that group. This means the estimates in the respondent groups were 
adjusted downward by the rate of response. (See Appendix D.)

Results

    Estimates of the rate of controlled substance use were made for the 
industry as a whole and for the individual strata. The estimated rate 
of controlled substance use in the motor carrier industry is (with a 95 
percent confidence interval (CI)):

 r=.026 (2.6%)
95% CI: (0.7%, 4.5%)

Appendix B--FHWA Calculations for the 1995 and 1996 Controlled 
Substances Positive and Alcohol Violation Rates

I. Disposition of the 1995 Sample

    For the 1995 survey, MIS forms were mailed to 1,747 motor carriers, 
selected from a stratified random sample. Two hundred sixty-five 
carriers required to conduct alcohol tests provided usable alcohol data 
and 648 carriers provided usable controlled substance data. Information 
on the disposition of the sample, by sampling stratum, is provided in 
Table 3.

                           Table 3.-- Sample Sizes and Level of Response by Size Class                          
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                                                                                                     Respondents
                                                  Number of                   Viable    Respondents   providing 
               Size (CDL drivers)                carriers on  Total mail-     sample     providing    controlled
                                                   sampling       outs        units       alcohol     substance 
                                                    frame                                   data         data   
----------------------------------------------------------------------------------------------------------------
Extra Large (1000 +)...........................           87           87           83           77           78
Large (100-999)................................          953          150          145          126          137
Medium (50-99).................................        1,029          100           95           62           82
Small (20-49)..................................        2,982          100           90         (NA)           80
Very Small (1-19)..............................       49,859          410          325         (NA)          152
Size Unknown...................................       99,069          900          592         (NA)          119
                                                ----------------------------------------------------------------
    Total......................................      153,979        1,747        1,330          265          648
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[[Page 2175]]

    Also listed in this table is response rate information by size 
class stratum. The term Viable Sample Units refers to the number of 
solicited sample units found to be in-business and in-scope (e.g., a 
motor carrier with trucks over 11,794 kilograms gross vehicle weight 
rating and at least one CDL driver). As can be seen from the table, the 
FHWA found a large number of carriers selected for sample solicitation 
from the MCMIS sampling frame to be non-viable. This was particularly 
problematic for carriers selected from the ``size unknown'' size class 
stratum, where only 66 percent of the original sample units selected 
were found to be viable.
    For the 1995 survey, intrastate carriers in the small size classes 
(fewer than 50 CDL drivers) were not required to submit alcohol testing 
information. Hence, the sample estimate for the alcohol usage rate is 
based upon data from the three largest size classes only (50 or more 
CDL drivers). In addition, data were excluded from the ``size unknown'' 
size class stratum for this estimate, since the FHWA believes most 
carriers in this stratum are small companies.
    Dividing the total number of sample units providing useable data by 
the total number of viable units in the sample gives the response rate 
for the survey. Using this approach for the sampling strata where data 
were required, the response rate for the 1995 survey is 82 percent for 
alcohol testing (based upon the three largest size classes where 
reporting was required) and 49 percent for controlled substance testing 
(based upon all size classes).

II. 1995 Survey Results

    The survey estimate for the percentage of CDL drivers testing 
positive for controlled substances is 2.8 percent, with an estimated 
standard error of 0.46 percent. Based upon these results, a 95 percent 
confidence interval for this estimate ranges from 1.9 percent to 3.7 
percent (0.028, plus or minus the quantity 0.0046 times 2). Based on 
statistical theory, if the survey were to be replicated, it would be 
expected that the estimate for the percentage of CDL drivers testing 
positive would fall within this range in 95 out of 100 surveys.
    For the alcohol use, the survey estimate for the percentage of CDL 
drivers testing 0.04 or greater alcohol concentration is 0.14 percent. 
The estimated standard error for this estimate is 0.00018, thus giving 
a 95 percent confidence interval for the estimate of 0.10 percent to 
0.18 percent.

III. Disposition of the 1996 Sample

    For the 1996 survey, MIS forms were mailed to almost 3,400 motor 
carriers, selected from a stratified random sample. Two thousand seven 
hundred carriers responded, of which 1,140 provided usable data. The 
alcohol use rate from the 1996 survey includes data from both small and 
large carriers, as all carriers were required to conduct random tests 
in 1996. Information on the disposition of the sample, by sampling 
stratum, is provided in Table 4.

                           Table 4.--Sample Sizes and Level of Response by Size Class                           
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                                                               Number of                                        
                                                              carriers on   Total mail     Viable    Respondents
                     Size (CDL drivers)                         sampling       outs        sample     providing 
                                                                 frame                     units         data   
----------------------------------------------------------------------------------------------------------------
Extra Large (1000 +)........................................           96           96           93           81
Large (100-999).............................................        1,324          300          293          258
Medium (50-99)..............................................        1,402          200          194          162
Small (20-49)...............................................        3,857          200          189          155
Very Small (1-19)...........................................       71,074          800          636          240
Size Unknown................................................      103,036        1,800        1,296          246
                                                             ---------------------------------------------------
    Total...................................................      180,789        3,396        2,701        1,142
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IV. 1996 Survey Results

    The survey estimate for the percentage of CDL drivers testing 
positive for controlled substances is 2.2 percent, with an estimated 
standard error of 0.4 percent. Based upon these results, a 95 percent 
confidence interval for this estimate ranges from 1.5 percent to 3.1 
percent (0.022, plus or minus the quantity 0.004 times 2). Thus, if the 
survey were to be replicated, statistical theory would suggest that the 
estimate for the percentage of CDL drivers testing positive would fall 
within this range in 95 out of 100 surveys.
    For alcohol use, the survey estimate for the percentage of CDL 
drivers testing 0.04 or greater alcohol concentration is 0.18 percent. 
The estimated standard error for this estimate is 0.0003, thus giving a 
95 percent confidence interval for the estimate of 0.12 percent to 0.24 
percent.

Appendix C--Methodology for Estimating the Controlled Substances 
Positive and Alcohol Violation Rates

    The annual positive rate and its sampling error must be estimated 
for the motor carrier industry. The estimation of the positive rate and 
the sampling error must be based upon the samples of annual test 
results. These estimates are based on a two-stage sampling design in 
which the primary sampling units (motor carriers) are stratified on the 
number of secondaries (i.e., CDL drivers) in each primary unit. This 
stratification procedure helps to increase the precision of the survey 
estimates.
    When stratification is combined with simple subsampling and each 
stratum is subsampled independently, an unbiased estimate of the 
overall mean per secondary is given by a weighted mean (for L strata) 
of the individual rates obtained for each stratum:
[GRAPHIC] [TIFF OMITTED] TR14JA98.000

where the summation is taken over the L strata and

p = overall mean per secondary (positive rate)
Mi = number of secondaries (i.e., CDL drivers) in the ith 
stratum
M = total number of CDL drivers in the motor carrier industry
pi = the positive rate in the ith stratum

Estimation of the Sampling Variance
[GRAPHIC] [TIFF OMITTED] TR14JA98.001

where

Var(Pi) = is the sampling variance of the positive rates in 
each stratum
Mi = number of secondaries (i.e., CDL drivers) in the ith 
stratum

[[Page 2176]]

M = total number of CDL drivers in the motor carrier industry

    The estimation of the sampling variance term, var (Pi), 
is given as:
[GRAPHIC] [TIFF OMITTED] TR14JA98.002

where

N=the total number of motor carriers in a stratum
n=the number of motor carriers in the sample in the stratum
f1=n/N
fi=the fraction of CDL drivers sampled in motor carrier i
M=average number of CDL drivers for all motor carriers in a stratum
Mi=the number of CDL drivers in the ith motor carrier 
selected
pi=the positive rate in the ith motor carrier

Appendix D--Estimating Stratum Rates With a Sample of 
Nonrespondents

    When a sample of nonrespondents is taken, an unbiased estimate of 
the positive rate is given as:

p=tpr+(1-t)pnr

where
pr=the positive rate among the respondents
pnr=the positive rate among the nonrespondents
t=the estimated rate of response in the population (1-t=the estimated 
rate of nonresponse)

    The variance of this estimator is:

Var=(1-)[S\2\+(g-1)(1-t)So2]/n

where
f=the sampling fraction of the original sample
S\2\=the variance of p in the population
So2=the variance of p among the nonrespondents
g=the inverse of the fraction on nonrespondent sampled
t=response rate
n=size of the original sample

Appendix E--References for the Testing MIS Calculations

    Cochran, William G. (1977). ``Sampling Theory,'' Third edition, 
John Wiley & Sons, Inc., New York.
    Jessen, R.J. (1978). ``Statistical Survey Techniques,'' John Wiley 
& Sons, Inc., New York.
    Johnson, N.L. and S. Kotz (1969). ``Discrete Distributions,'' John 
Wiley & Sons, Inc., New York.
    Lessler, J.T. and W.D. Kalsbeek (1992). ``Nonsampling Error in 
Surveys,'' Wiley-Interscience, New York.
    Szameitat, K. and K. Schaeffer (1963). ``Imperfect Frames in 
Statistics and the Consequences for Their Use in Sampling,'' Bulletin 
of the International Statistical Institute (40) 517-544.

Appendix F

    This appendix appears at the end of this document.

    (Authority: 49 U.S.C. 322, 31136, 31301 et seq.; 49 CFR 1.48)

    Issued on: December 29, 1997.
Kenneth R. Wykle,
Federal Highway Administrator.
    The following Appendix F contains a chart illustrating: Blood 
Alcohol Concentration (grams per decileter) of Drivers of Large Trucks 
Involved in Fatal Crashes, 1982-1996.
BILLING CODE 4910-22-P

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[GRAPHIC] [TIFF OMITTED] TR14JA98.003



[FR Doc. 98-566 Filed 1-13-98; 8:45 am]
BILLING CODE 4910-22-C