[Federal Register Volume 67, Number 189 (Monday, September 30, 2002)]
[Proposed Rules]
[Pages 61306-61313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24718]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST-2002-13435]
RIN 2015-AD14


Drug and Alcohol Management Information System Reporting

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Transportation's Office of Drug and Alcohol 
Policy and Compliance (ODAPC) proposes to revise the Management 
Information System (MIS) forms currently used within six U.S. 
Department of Transportation (DOT) operating administrations (OA) for 
submission of annual drug and alcohol program data. These OAs are: 
Federal Motor Carrier Safety Administration (FMCSA); Federal Aviation 
Administration (FAA); Federal Transit Administration (FTA); Federal 
Railroad Administration (FRA); Research and Special Programs 
Administration (RSPA); and the United States Coast Guard (USCG). The 
Department proposes to streamline the annual reporting of drug and 
alcohol program data to OAs through use of a one-page MIS data 
collection form. The Department desires to standardize across the OAs 
the information collected and to reduce the amount of data reported by 
transportation employers. If an OA intends to require supplemental 
data, the OA will address those issues separately.

DATES: The Docket Office must receive comments by November 14, 2002. We 
will consider late-filed documents to the extent practicable.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
    (1) By mail to the Docket Management Facility (SVC-124), U.S. 
Department of Transportation, Room PL-401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. [It is important to note that because of 
current security procedures affecting the U.S. Mail, other means (e.g., 
FedEx, UPS) may be faster];
    (2) By delivery to room PL-401 on the Plaza Level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329;
    (3) By fax to the Docket Management Facility at 202-493-2251; or,
    (4) By electronic means through the Web site for the Docket 
Management System at: http://dms.dot.gov.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments to the docket will be available for inspection or 
copying at room PL-401 on the Plaza level of the Nassif Building, 400 
Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. The public may also review 
docketed comments electronically at: http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Jim L. Swart, Drug and Alcohol Policy 
Advisor at 202-366-3784 (voice) 202-366-3897 (fax) or at: 
[email protected] (e-mail).

SUPPLEMENTARY INFORMATION:

Background and Purpose

    Six OAs collect drug and alcohol program data from their regulated 
employers on an annual basis. Employers compile this data on MIS forms 
and each form is OA specific. In fact, more than twelve MIS data 
collection forms currently exist within the OAs. The Department 
believes that data collection and entry will be greatly simplified for 
transportation employers and the Department if a single form is 
utilized throughout the transportation industries and the OAs.
    All drug and alcohol testing conducted under DOT authority uses a 
standard form for drug testing--Federal Drug Testing Custody and 
Control Form--and a standard form for alcohol testing--DOT Alcohol 
Testing Form. In essence, use of standard testing forms should limit 
MIS reporting to a finite number of data elements. Therefore, a core 
set of data elements will make up the new MIS form--a ONE-DOT MIS 
form--which all transportation employers will complete, as appropriate, 
for their company and the OA regulating them.
    This MIS form will simplify and streamline data recording for 
transportation employers and will require employers to enter less data. 
In addition, because the proposed form contains fewer data elements and 
is on a one-page format, it can be more easily entered and processed 
via electronically based systems. As an added benefit, there will be a 
single set of MIS instructions for all transportation employers, 
regardless of OA.
    However, not every OA expects information for all potential data 
elements (e.g., RSPA does not conduct random alcohol testing), and some 
data elements may be collected through some means other than MIS (e.g., 
USCG receives alcohol data immediately following each post-accident 
testing event). The form's instructions will highlight some of those 
peculiar testing differences, and companies not required to conduct or 
report certain types of tests will simply leave those sections blank. 
For instance, because USCG wants no alcohol testing data on the MIS 
form, USCG-regulated employers will leave blank Section IV of the form. 
In addition, when no testing was done or no results were received for 
particular data elements, employers will leave those items blank rather 
than inserting zeros (as is now required).
    On June 6, 2002, President Bush announced his proposal to create a 
Cabinet-level homeland security department. Inside this new department, 
the President proposes to put several agencies, including the USCG. The 
President urged Congress to pass legislation to create the new 
Department of Homeland Security. This process may take some time. As a 
result, if you have USCG ties and MIS interests, please submit your 
comments to this NPRM. We will consider congressional and presidential 
action regarding the USCG and homeland security in the final rule.

Discussion of Proposed Rule

    The ODAPC and the OAs propose to revise the MIS reporting 
requirements to standardize the collection of data for the OAs. The 
proposed rulemaking would impose a few new requirements for data 
collection; specifically, data related to information associated with 
the revised

[[Page 61307]]

Federal Drug Testing Custody and Control Form developed by the 
Department of Health and Human Services (65 FR 39155, June 23, 2000). 
However, the overall amount of required data will be less than that 
required currently. The Department also intends to place the MIS form 
and instructions for completing it into Part 40. We propose to have the 
forms and instructions removed from all OA regulations.
    As stated earlier, many data elements will no longer be part of the 
MIS form. OAs have decided that some information items required on 
previous MIS forms were available in other formats, had become 
superfluous, or were items obtainable during inspections, reviews and 
audits. The following represents a listing for each OA of most of the 
data elements we are proposing to eliminate:
FMCSA
    1. Number of persons denied a position following a positive drug 
test.
    2. Number of employees returned to duty following a refusal or 
positive drug test.
    3. Supervisor initial drug training data.
    4. Number of employees denied a position following an alcohol test 
of 0.04 or greater.
    5. Number of employees returned to duty after engaging in alcohol 
misuse.
    6. Number of employees having both a positive drug test and an 
alcohol test of 0.04 or greater when both tests were administered at 
the same time.
    7. Actions taken for alcohol violations other than alcohol testing.
    8. Supervisor initial alcohol training data.
FAA
    1. Number of employees returned to duty after having failed or 
refused a drug test.
    2. Actions taken for drug test refusals.
    3. Number of persons denied employment for a positive drug test.
    4. Actions taken for positive drug results.
    5. Employee initial drug training data.
    6. Supervisor initial drug training data.
    7. Supervisor recurrent drug training data.
    8. Number of persons denied a position for an alcohol test 0.04 or 
greater.
    9. Number of employees returned to duty after engaging in alcohol 
misuse.
    10. Actions taken for alcohol regulation violations.
    11. Number of employees having both a positive drug test and an 
alcohol test of 0.04 or greater when both tests were administered at 
the same time.
    12. Number of other violations of the alcohol regulation.
    13. Actions taken for refusals to take an alcohol test.
    14. Supervisor alcohol training data.
FTA
    1. Number of persons denied a position for alcohol results 0.04 or 
greater.
    2. Number of accidents (noted as fatal and non-fatal) with alcohol 
results 0.04 or greater.
    3. Number of fatalities from accidents resulting in alcohol results 
0.04 or greater.
    4. Number of employees returned to duty following an alcohol 
violation.
    5. Number of employees having both a positive drug test and an 
alcohol test of 0.04 or greater when both tests were administered at 
the same time.
    6. Actions taken for other alcohol rule violations.
    7. Supervisor alcohol training data.
    8. Number of persons denied a position for positive drug test 
results.
    9. Number of accidents (noted as fatal and non-fatal) with positive 
drug test results.
    10. Number of fatalities from accidents resulting in positive drug 
tests results.
    11. Number of persons returned to duty following a positive drug 
test or refusal result.
    12. Employee drug education data.
    13. Supervisor drug training data.
    14. Funding source information.
FRA
    1. Number of applicants/transfers denied employment/transfer for a 
positive drug test.
    2. Number of employees returned to duty after having failed or 
refused a drug test.
    3. Detailed breakouts of for-cause drug and alcohol testing.
    4. Non-qualifying accident drug testing data.
    5. Supervisor drug training data.
    6. Number of applicants/transfers denied employment/transfer for 
alcohol results 0.04 or greater.
    7. Number of employees returned to duty after engaging in alcohol 
misuse.
    8. Supervisor alcohol training data.
USCG
    1. Number of persons denied a position for a positive drug test.
    2. Number of employees returned to duty following a drug violation.
    3. Employee drug and alcohol training data.
    4. Supervisor drug and alcohol training data.
    5. Post-accident alcohol testing data.
    6. Reasonable cause alcohol testing data.
RSPA
    1. Number of employees returned to duty after engaging in alcohol 
misuse.
    2. Actions taken for alcohol test results equal to or greater than 
0.04.
    3. Number of other alcohol rule violations and actions taken for 
them.
    4. Actions taken for alcohol test refusals.
    5. Supervisor initial alcohol training data.
    6. Number of persons denied a position following a positive drug 
test.
    7. Number of employees returned to duty following a positive or 
refusal drug test.
    8. Actions taken for positive drug tests.
    9. Actions taken for drug test refusals.
    10. Supervisor initial drug training data.
    The Department proposes also to count collections differently than 
under the old MIS regimen. Under the old MIS counting method a drug 
collection was considered to be a testing event that resulted in a 
negative, positive, or cancellation. Refusals to test--no matter the 
reason for the refusal--were not considered appropriate for inclusion. 
Despite the instruction to include no refusals, we know that many 
companies included those that were the result of adulterated or 
substituted results that were verified by the MRO as refusals. Still 
other companies counted these types of refusals as well as refusal 
events for which no urine was sent to laboratories for testing (e.g., 
employee failed to show-up at the collection site; employee left the 
collection site before urine had been collected).
    Similarly, in determining if companies were conducting random 
testing at the appropriate established annual rates, some OAs did not 
count refusals; some counted all refusals; and still others counted 
only refusals reported by the MRO (as a result of adulteration or 
substitution) toward satisfaction of the random rate requirement. 
Furthermore, in calculating the annual random rates for testing, all OA 
rules say the following will be factored for the positive rate: number 
of random positives plus number of random refusals divided by number of 
random tests plus number of random refusals. This means that some 
cancelled random tests and random refusals were already in the random 
test numbers before the number of random refusals was added to the 
total.
    To clear up these discrepancies, the Department proposes to count 
the

[[Page 61308]]

number of specimens collected as the number of testing events resulting 
in negative, positive, and refusal to test results no matter the reason 
for the refusal. We will add all refusals because the OAs factor 
refusals into the annual random testing rates. We will not add 
cancelled test results to the mix because Sec.  40.207(b) says, ``* * * 
a cancelled test does not count toward compliance with DOT requirements 
(e.g., being applied toward the number of tests needed to meet the 
employer's minimum random testing rate).'' Counting in this manner will 
enable many of the columns and rows of the MIS form to add-up.
    In short, we would have employers continue to exclude cancelled 
tests and blind tests as testing events. We propose to instruct 
employers to include all refusals as testing events. After all, no 
matter how the refusal occurred, a refusal is a valid and final result. 
A quiet benefit would be that MIS blocks could add up: The number of 
testing events will equal the number of negatives plus positives for 
one or more drugs plus refusals (with types of refusals broken out). 
Invalid test results are always cancelled and would not be included. 
However, those invalid results requiring a subsequent directly observed 
collection would simply be considered another collection that will have 
a final result.
    In addition, annual random testing rates would be determined using 
more accurate counts because no cancelled test would be mistakenly 
included and no refusals would be factored twice in the total. OA 
inspectors and auditors would count all refusals (e.g., be they from an 
adulterated specimen result or from shy bladder evaluation with no 
medical condition) as satisfying a company's meeting their random 
testing rate. After all, the testing event had a valid result (e.g., it 
was not from a blind specimen; it was not a cancelled result). In 
short, the employee was selected for testing and the test result was 
negative, positive, or refusal to test.
    For cancellations requiring the employee to go in for a second 
test, the test that is cancelled will not count. However, the result of 
the subsequent recollection will count, provided that it too is not 
cancelled. These include: Invalid test cancellations requiring the 
employee to go in for an observed collection; split specimen 
cancellations requiring the employee to go in for an observed 
collection; and cancellations requiring the employee to go in for 
another collection because a negative result is needed (for pre-
employment; return to duty; and follow-up).
    In addition, if more than one collection is sent to the lab during 
one testing event, both will count as one collection: These include: 
Negative dilute specimens when the employee goes in for a second 
collection per employee policy [the result of the second test is the 
result of record]; and observed collections requiring both the original 
collection and the observed collection be sent to the laboratory (e.g., 
specimen out of temperature range) (the result requiring the most 
stringent consequence will ultimately be the result of record).
    The Department is also seeking to clear up the discrepancies 
between OAs regarding how their regulated companies are to determine 
the total number of employees against which the annual random rate 
applies. Some OAs tell employers to count the number of covered 
employees working at the start of the calendar year; some OAs direct 
employers to count the total number of covered employees that worked 
for the company within the year; and still others advise employers to 
count the average number of employees on a monthly or quarterly basis.
    We propose to have employers add the total number of covered 
employees eligible for random testing in each random testing selection 
period for the year and dividing that total by the number of random 
testing periods. For instance, a company conducting random testing 
quarterly would need to add the total of covered employees they had in 
the random pool when each selection was made; then divide this number 
by 4 to obtain the yearly average number of covered employees. (As an 
example, if Company A had 1500 employees in the first quarter random 
pool, 2250 in the second quarter, 2750 in the third quarter; and 1500 
in the fourth quarter; 1500 + 2250 + 2750 + 1500 = 8000; 8000/4 = 2000; 
the total number of covered employees for the year would be reported 
as, ``2000''.)
    Companies (and their contractors, as applicable) will continue to 
submit the MIS reports in accordance with requirements (e.g., dates for 
submission; selection of companies required to submit, etc.) that will 
continue to be in each OA rule. Likewise, OA rules will continue to 
address the manner (e.g., mail; CD; electronic transmission) and 
locations they wish the completed forms sent.
    It is important to note that MIS alcohol testing data would reflect 
all these proposals made for drug testing data. Refusals will count as 
testing events; cancelled tests will not; and random pool averages will 
determine the number of employees against which the annual testing rate 
applies.
    The Department is currently working toward an electronic MIS form 
capable of Internet submission. Each form would be OA specific and 
would not have extraneous items showing (for example, the USCG-specific 
form would not include an alcohol testing section; the RSPA-specific 
form would not show an alcohol random testing category). Additionally, 
the system would bring to the attention of the person completing the 
form any items that did not accurately compute mathematically. Finally, 
employee categories would only be those for the specific employer. We 
seek comment about this type of system, suggestions for how it might 
work, and concerns for problems in implementing such a system.

Regulatory Analyses and Notices

    This rule is not a significant rule for purposes of Executive Order 
12866 or the DOT's regulatory policies and procedures. Nor is the rule 
an economically significant regulation. It is a reworking of existing 
requirements; it imposes no new mandates; and it will not create any 
new costs. In fact, the proposed rule will serve to reduce requirements 
and costs.
    This NPRM does not have sufficient Federalism impact to warrant a 
Federalism assessment under Executive Order 13132. With respect to the 
Regulatory Flexibility Act, the certifies that, if adopted, this rule 
would not have a significant economic impact on a substantial number of 
small entities, so a Regulatory Flexibility analysis has not been 
prepared. Even though this rule might affect a large number of small 
entities, we do not expect the new MIS requirements to have a 
significant economic impact on anyone.
    This rulemaking involves a ``610 Review'' under the Small Business 
Regulatory Enforcement Fairness Act. We believe the changes recommended 
by the rulemaking should be particularly helpful to small, regulated 
employers.
    The proposed rule also contains information collection 
requirements. As required by the Paperwork Reduction Act of 1995, (the 
PRA, 44 U.S.C. 3507(d)), the Department will submit these requirements 
to the Office of Information and Regulatory Affairs of the Office of 
Management and Budget (OMB) for review, as required under the Paperwork 
Reduction Act.
    As noted elsewhere in this preamble, the proposal would amend Part 
40 to include a new format and a new set of instructions for the MIS 
form. This single form would be used across six DOT OAs rather than the 
multiple forms with multiple instructions currently in

[[Page 61309]]

use. The form's data elements would be reduced significantly as well.
    Completing an MIS report requires a company to collect and compile 
drug and alcohol testing data generated throughout the year by that 
company's drug and alcohol testing program and placing some of that 
data onto the form. Certainly, the more complex a company's testing 
program set-up, the more complex assembling needed data becomes. 
Companies having decentralized program locations may have to draw 
information from a variety of localized programs. Companies with a 
number of subsidiaries may have large amounts of data to compile and 
authenticate. In addition, companies failing to regularly update and 
bring together their testing data may find themselves in positions of 
having to do so in a hurried manner at the end of the year. Also, 
companies lacking computerization of data capabilities may have to use 
the ``stubby pencil-method'' of data entry.
    Because MIS reporting has been part of the DOT testing equation for 
more than half a decade, many companies have become experienced in and 
have applied sound business sense to putting the report together. Many 
companies update their drug and alcohol program data on a regular, 
throughout-the-year basis rather than doing so at the last minute. Most 
companies require their localized programs, subsidiaries, and 
contractors to regularly provide program updates rather than 
authenticate data at the end of the year. Many companies utilize 
computer databases rather than ``pen-and-ink'' data entries. Still 
other companies prefer to have data entry provided as part of their 
TPA's contracted services.
    Whatever the case, the Department does not require any particular 
management style of program data: We simply require that the data be 
accurate; that it be in a system that has controlled access; that it be 
readily auditable; and that specific data be included in MIS reports 
when they are required or requested by the OAs. The Department would 
prefer that companies update their drug and alcohol program data 
throughout the year; require their divisions, subsidiaries, and 
contractors to report their data regularly to them; and computerize 
their data-entry methodologies. However, we do not mandate these 
actions even though we think they are all preferable to end-of-the-year 
company scrambles to complete MIS forms.
    The Department believes that requiring less data entry on MIS forms 
and having only one form throughout the transportation industries will 
make data gathering and compilation simpler. For instance, no longer 
will employers need to provide employee and supervisor training data, 
violation consequence data, and non-Part 40 violation data (among other 
entries). Furthermore, the single-format MIS form replaces the E-Z Drug 
form, the E-Z Alcohol form, the Long-Drug form, and the Long-Alcohol 
form, the format of which were different for each OA. Therefore, 
employers subject to more than one OA rule will not have to navigate 
their ways through multiple MIS formats.
    These represent important steps in reducing the amount of time 
needed to compile data for MIS purposes--no matter of how a company 
chooses to manage their drug and alcohol testing data. The Department 
believes the simplicity of the form will result in another significant 
time saving action for employers.
    OA estimates show that 5,948 companies submitted to DOT 13,542 MIS 
forms during one recent data-reporting year; and the time it took to 
fill out the forms was 18,411 hours. For that same data year, companies 
submitted an estimated 7,921 E-Z forms and 5,621 Long forms. (Based 
upon OA estimates, the old E-Z forms took 30 minutes (FMCSA, FTA, FRA, 
and RSPA) to 1 hour (FAA) to complete; the long forms, 2.5 hours each 
to complete. USCG did not authorize use of an E-Z form.)
    Estimates for the new MIS form indicate that, if the new form had 
been operational, these 5,948 companies would have sent 6,300 MIS 
reports to DOT and the time to complete them would have been 9,450 
hours. Therefore, we foresee nearly 9,000 hours saved per year in 
filling out the new MIS form as opposed to completing the old multiple 
MIS forms. (Based upon industry and OA estimates, we have concluded 
that the new MIS report will take between 45 minutes and 1.5 hours to 
complete. We have chosen, for this paragraph, to use the highest 
industry and OA estimate--1.5 hours. We estimate that slightly over 300 
companies report to more than one OA.)
    Individuals and organizations may submit comments on the 
information collection elements of the NPRM by November 14, 2002 and 
should submit them to the DOT docket specified at the beginning of the 
NPRM. According to OMB's regulations implementing the PRA (5 CFR 
1320.8(b)(2)(vi)), an agency may not conduct or sponsor, and a person 
need not respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control number for this 
information will be published in the Federal Register after OMB 
approves it.
    A number of other Executive Orders can affect rulemakings. These 
include Executive Orders 13084 (Consultation and Coordination with 
Indian Tribal Governments), 12988 (Civil Justice Reform), 12875 
(Enhancing the Intergovernmental Partnership), 12630 (Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights), 12898 (Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations), 13045 (Protection of 
Children from Environmental Health Risks and Safety Risks), and 12880 
(Implementation of North American Free Trade Agreement). We have 
considered these Executive Orders in the context of this NPRM, and we 
believe that the proposed rule does not directly affect matters that 
the Executive Orders cover.
    We have prepared this rulemaking in accordance with the 
Presidential Directive on Plain Language.

List of Subjects in 49 CFR Part 40

    Administrative practice and procedure, Alcohol abuse, Alcohol 
testing, Drug testing, Laboratories, Reporting and recordkeeping 
requirements, Safety, Transportation.

    Issued this 20th day of September, 2002, at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.

    For reasons set forth in the preamble, the Department of 
Transportation proposes to amend part 40 of Title 49, Code of Federal 
Regulations, as follows:
    1. The authority citation for 49 CFR part 40 continues to read as 
follows:

    Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 
45101 et seq.

    2. Add a new Sec.  40.26 to read as follows:


Sec.  40.26  What form must an employer use to report Management 
Information System (MIS) data to a DOT agency?

    As an employer, when you are required to report MIS data to a DOT 
agency, you must use the form and instructions at Appendix H to Part 
40.
    3. Add a new Appendix H to read as follows:

Appendix H to Part 40--DOT Drug and Alcohol Testing Management 
Information System (MIS) Data Collection Form

    The following form and instructions must be used when an 
employer is required to report MIS data to a DOT agency.

BILLING CODE 4910-62-P

[[Page 61310]]

[GRAPHIC] [TIFF OMITTED] TP30SE02.056

BILLING CODE 4910-62-C

[[Page 61311]]

?

Department of Transportation Drug and Alcohol Testing MIS Data 
Collection Form Instruction Sheet

    This MIS form is made-up of four sections: employer information; 
covered employee information; drug testing data; and alcohol testing 
data. The employer information needs only to be provided once per 
submission. However, you must submit a separate page of data for 
each employee category for which you report testing data. If you are 
preparing reports for more than one DOT Operating Administration 
(OA), then you must submit OA-specific forms.
    Please type or print entries legibly in black ink.
    TIP--Read the entire instructions before starting. Please note 
that USCG-regulated employers do not report alcohol test results on 
the MIS form.
    Calendar Year Covered by this Report: Enter the appropriate 
year.

Section I. Employer

    1. Enter your company's name, to include when applicable, your 
``doing business as'' name; current address, city, state, and zip 
code; and an e-mail address, if available.
    2. Enter the printed name, signature, and complete telephone 
number of the company official certifying the accuracy of the report 
and the date that person certified the report as complete.
    3. If someone other than the certifying official completed the 
MIS form, enter that person's name on the appropriate line provided.
    4. Operating Administration Information:
    a. Check the box next to the OA for which you are completing 
this MIS form. Again, if you are submitting to multiple OAs, you 
must use separate forms for each OA.
    b. If you are submitting the form for RSPA, check the additional 
box(s) indicating your type of operation.
    c. If you are completing the form for FRA, enter the number of 
observed/documented Part 219 ``Rule G'' Observations for covered 
employees.
    d. If you are completing the form for FAA, enter your FAA 
Certificate Number and FAA Antidrug Plan/Registration Number, when 
applicable.
    e. If you are submitting the form for FMCSA, enter your FMCSA 
DOT Number, as appropriate. In addition, you must indicate whether 
you are an owner-operator.
    f. If you are submitting the form for USCG, enter the vessel ID 
number. If there is more than one number, enter the numbers 
separately.

Section II. Covered Employees

    1. In Box II-A, enter the total number of covered employees who 
work for your company. Then enter, in Box II-B, the total number of 
employee categories that number represents.

[For instance, if you are submitting the information for the FRA and 
you have 20,000 covered employees performing duties in each of the 
FRA-covered service areas--you would enter ``20,000'' in the first 
box (II-A) and ``5'' in the second box (II-B), because FRA has five 
safety-sensitive employee categories.]

    TIP--To calculate the total number of covered employees, add the 
total number of covered employees eligible for testing during each 
random testing selection period for the year and divide that total 
by the number of random testing periods. For instance, a company 
conducting random testing quarterly needs to add the total of 
covered employees they had in the random pool when each selection 
was made; then divide this number by 4 to obtain the yearly average 
number of covered employees. It is extremely important that you 
place all eligible employees into these random pools. [As an 
example, if Company A had 1500 employees in the first quarter random 
pool, 2250 in the second quarter, 2750 in the third quarter; and 
1500 in the fourth quarter; 1500 + 2250 + 2750 + 1500 = 8000; 8000 / 
4 = 2000; the total number of covered employees for the year would 
be reported as,'2000'.]
    2. If you are reporting multiple employee categories, enter the 
specific employee category in box II-C; and provide the number of 
employees in that specific category.

[For example, you are submitting data to the FTA and you have 2000 
covered employees. You have 1750 personnel performing revenue 
vehicle operation and the remaining 250 are performing revenue 
vehicle and equipment maintenance. When you provide vehicle 
operation information, you would enter ``Revenue Vehicle Operation'' 
in the first II-C box and ``1750'' in the second II-C box. When you 
provide data on the maintenance personnel, you would enter ``Revenue 
Vehicle and Equipment Maintenance'' in the first II-C box and 
``250'' in the second II-C box.]

    TIP--A separate form for each employee category must be 
submitted. You may do this by filling out a single MIS form through 
Section II-B and then make one copy for each additional employee 
category you are reporting. [For instance, if you are submitting the 
MIS form for the FMCSA, you need only submit one form for all FMCSA 
covered employees working for you--your only category of employees 
is ``driver.'' If you are reporting testing data to the FAA and you 
employ only flight crewmembers, flight attendants, and aircraft 
maintenance workers, you need to complete one form each for 
category--three forms in all. If you are reporting to FAA and have 
all FAA categories of covered employees, you must submit eight 
forms.]
    Here is a full listing of OA employee categories:

FMCSA (one category): Driver
FAA (eight categories): Flight Crewmember; Flight Attendant; Flight 
Instructor; Aircraft Dispatcher; Aircraft Maintenance; Ground 
Security Coordinator; Aviation Screener; Air Traffic Controller
FTA (six categories): Revenue Vehicle Operation; Revenue Vehicle and 
Equipment Maintenance; Revenue Vehicle Control/Dispatch; CDL/Non-
Revenue Vehicle; Armed Security Personnel
FRA (five categories): Engine Service; Train Service; Dispatcher/
Operation; Signal Service; Other [Includes yardmasters, hostlers 
(non-engineer craft), bridge tenders; switch tenders, and other 
miscellaneous employees performing 49 CFR 228.5(c) defined covered 
service.]
RSPA (one category): Operation/Maintenance/Emergency Response
USCG (one category): Crewmember

Section III. Drug Testing Data

    This section summarizes the drug testing results for all covered 
employees (to include applicants). The table in this section 
requires drug test data by test type and by result. The categories 
of test types are: Pre-Employment; Random; Post-Accident; Reasonable 
Suspicion; Reasonable Cause; Return-to-Duty, and Follow-up.
    The categories of type of results are: Total Number of Test 
Results [excluding cancelled tests and blind specimens]; Verified 
Negative; Verified Positive; Positive for Marijuana; Positive for 
Cocaine; Positive for PCP; Positive for Opiates; Positive for 
Amphetamines; Refusals due to Adulterated, Substituted, Shy Bladder 
with No Medical Explanation, and Other Refusals to Submit to 
Testing; and Cancelled Results.

    TIP--Do not enter data on blind specimens submitted to 
laboratories. Be sure to enter all ``pre-employment'' testing data 
regardless of whether an applicant was hired or not. Make note of 
the fact that FMCSA and FTA do not authorize ``reasonable cause'' 
drug testing; that FAA, RSPA, and USCG do not authorize ``reasonable 
suspicion'' drug testing; but that FRA authorizes both. For USCG, 
enter any ``Serious Marine Incident'' testing in the ``Post-
Accident'' row. For FRA, do not enter ``post accident'' data (the 
FRA does not collect this data on the MIS form). Finally, rather 
than enter ``0'' (zero) for any row or column in which there were no 
results, just leave that area blank.

    Section III, Column 1. Total Number of Test Results--This column 
requires a count of the total number of test results in each testing 
category during the entire reporting year. Count the number of test 
results as the number of testing events resulting in negative, 
positive, and refusal results. Do not count cancelled tests and 
blind specimens in this total.

[For example, a company that conducted fifty pre-employment tests 
would enter ``50'' on the Pre-employment Row. If it conducted one 
hundred random tests, ``100'' would be entered on the Random Row. If 
that company did no post-accident, reasonable suspicion, reasonable 
cause, return-to-duty, or follow-up tests, those categories will be 
left blank.]

    Section III, Column 2. Verified Negative Results--This column 
requires a count of the number of tests in each testing category 
that the Medical Review Officer (MRO) reported as negative. Do not 
count a negative-dilute result if, consequently, the employee 
underwent a second collection; the second test is the test of 
record.

[For example, if forty-seven of the company's fifty pre-employment 
tests were reported negative, ``47'' would be entered in Column 2 on 
the Pre-employment Row. If ninety of the company's one hundred 
random test results were reported negative, ``90'' would be entered 
in Column 2 on the Random Row. Because the company did no other 
testing, those other categories would be left blank.]


[[Page 61312]]


    Section III, Column 3. Verified Positive Results--For One Or 
More Drugs--This column requires a count of the number of tests in 
each testing category that the MRO reported as positive for one or 
more drugs. When the MRO reports a test positive for two drugs, it 
would count as one positive test.

[For example, if one of the fifty pre-employment tests was positive 
for two drugs, ``1'' would be entered in Column 3 on the Pre-
employment Row. If four of the company's one hundred random test 
results were reported positive (three for one drug and one for two 
drugs), ``4'' would be entered in Column 3 on the Random Row.]

    Section III, Columns 4 through 8. Positive (for specific 
drugs)--These columns require entry of the by-drug data for which 
specimens were reported positive by the MRO.

[For example, if the pre-employment positive test reported by the 
MRO was positive for marijuana, ``1'' would be entered in Column 4 
on the Pre-employment Row. If three of the four positive results for 
random testing were reported by the MRO to be positive for 
marijuana, ``3'' would be entered in Column 4 on the Random Row. If 
one of the four positive results for random testing was reported 
positive for both PCP and opiates, ``1'' would be entered in Column 
6 on the Random Row and ``1'' would be entered in Column 7 of the 
Random Row.]

    TIP--Column 1 should equal the sum of Columns 2, 3, 9, 10, 11, 
and 12. Remember you have not counted specimen results that were 
ultimately cancelled or were from blind specimens. So, Column 1 = 
Column 2 + Column 3 + Column 9 + Column 10 + Column 11 + Column 12. 
Certainly, double check your records to determine if your actual 
results count is reflective of all negative, positives, and refusal 
counts.

    An MRO may report that a specimen is positive for more than one 
drug. When that happens, to use the company example above (i.e., one 
random test was positive for both PCP and opiates), the positive 
results should be recorded in the appropriate columns--PCP and 
opiates in this case. There is no expectation for Columns 4 through 
8 numbers to add up to the numbers in Column 3 when you report 
multiple positives.
    Section III, Columns 9 through 12. Refusal Results The refusal 
section is divided into four refusal groups--they are: Adulterated; 
Substituted; Shy Bladder With No Medical Explanation; and Other 
Refusals To Submit to Testing. The MRO reports two of these refusal 
types--adulterated and substituted specimen results `` because of 
laboratory test findings.
    When an individual does not provide enough urine at the 
collection site, the MRO conducts or causes to have conducted a 
medical evaluation to determine if there exists a medical reason for 
the person's inability to provide the appropriate amount of urine. 
If there is no medical reason to support the inability, the MRO 
reports the result to the employer as a refusal to test: Refusals of 
this type are reported in the ``Shy Bladder--With No Medical 
Explanation'' category.
    Finally, additional reasons exist for a test to be considered a 
refusal. Some examples are: the employee fails to report to the 
collection site as directed by the employer; the employee leaves the 
collection site without permission; the employee fails to empty his 
or her pockets at the collection site; the employee refuses to have 
a required shy bladder evaluation. Again, these are only four 
examples; there are more.
    Section III, Column 9. Adulterated--This column requires the 
count of the number of tests reported by the MRO as refusals because 
the specimens were adulterated.

[For example, if one of the fifty pre-employment tests was 
adulterated, ``1'' would be entered in Column 9 of the Pre-
employment Row.]

    Section III, Column 10. Substituted--This column requires the 
count of the number of tests reported by the MRO as refusals because 
the specimens were substituted.

[For example, if one of the 100 random tests was substituted, ``1'' 
would be entered in Column 10 of the Random Row.]

    Section III, Column 11. Shy Bladder--With No Medical 
Explanation--This column requires the count of the number of tests 
reported by the MRO as being a refusal because there was no 
legitimate medical reason for an insufficient amount of urine.

[For example, if one of the 100 random tests was a refusal because 
of shy bladder, ``1'' would be entered in Column 11 of the Random 
Row.]

    Section III, Column 12. Other Refusals To Submit To Testing--
This column requires the count of refusals other than those already 
entered in Columns 9 through 11.

[For example, the company entered ``100'' as the number of random 
specimens collected, however it had five employees who refused to be 
tested without submitting specimens: two did not show up at the 
collection site as directed; one refused to empty his pockets at the 
collection site; and two left the collection site rather than submit 
to a required directly observed collection. Because of these five 
refusal events, ``5'' would be entered in Column 11 of the Random 
Row.]

    TIP--Even though some testing events result in a refusal in 
which no urine was collected and sent to the laboratory, a 
``refusal'' is still a final test result. Therefore, your overall 
numbers for test results (in Column 1) will equal the total number 
of negative tests (Column 2); positives (Column 3); and refusals 
(Columns 9, 10, 11, and 12). Do not worry that no urine was 
processed at the laboratory for some refusals; all refusals are 
counted as a testing event for MIS purposes and for establishing 
random rates.
    Section III, Column 13. Cancelled Tests--This column requires a 
count of the number of tests in each testing category that the MRO 
reported as cancelled. You must not count any cancelled tests in 
Column 1 or in any other column. For instance, you must not count a 
positive result (in Column 3) if it had ultimately been cancelled 
for any reason (e.g., specimen was initially reported positive, but 
the split failed to reconfirm).

[For example, if a pre-employment test was reported cancelled, ``1'' 
would be entered in Column 13 on the Pre-employment Row. If three of 
the company's random test results were reported cancelled, ``3'' 
would be entered in Column 13 on the Random Row.]

Section IV. Alcohol Testing Data

    This section summarizes the alcohol testing conducted for all 
covered employees (to include applicants). The table in this section 
requires alcohol test data by test type and by result. The 
categories of test types are: Pre-Employment; Random; Post-Accident; 
Reasonable Suspicion; Reasonable Cause; Return-to-Duty, and Follow-
up.
    The categories of results are: Number of Screening Test Results; 
Screening Tests with Results Below 0.02; Screening Tests with 
Results 0.02 Or Greater; Number of Confirmation Test Results; 
Confirmation Tests with Results 0.02 through 0.039; Confirmation 
Tests with Results 0.04 Or Greater; Refusals due to Shy Lung with No 
Medical Explanation, and Other Refusals to Submit to Testing; and 
Cancelled Results.
    TIP--Be sure to enter all ``pre-employment'' testing data 
regardless of whether an applicant was hired or not. Of course, for 
most employers pre-employment alcohol testing is optional, so you 
may not have conducted this type of testing. Make note of the fact 
that FMCSA, FAA, FTA, and RSPA authorize ``reasonable suspicion'' 
but not ``reasonable cause'' alcohol testing; but FRA authorizes 
both ``reasonable cause'' and ``reasonable suspicion'' alcohol 
testing. RSPA does not authorize ``random'' testing for alcohol. 
Finally, rather than enter ``0'' (zero) for any row or column in 
which there were no results, just leave that area blank. Please note 
that USCG-regulated employers do not report alcohol test results on 
the MIS form: Do not fill-out Section IV if you are a USCG-regulated 
employer.
    Section IV, Column 1. Total Number of Screening Test Results--
This column requires a count of the total number of screening test 
results in each testing category during the entire reporting year. 
Count the number of screening tests as the number of screening test 
events with final screening results of below 0.02, of 0.02 through 
0.039, of 0.04 or greater, and all refusals. Do not count cancelled 
tests in this total.

[For example, a company that conducted twenty pre-employment tests 
would enter ``20'' on the Pre-employment Row. If it conducted fifty 
random tests, ``50'' would be entered. If that company did no post-
accident, reasonable suspicion, reasonable cause, return-to-duty, or 
follow-up tests, those categories will be left blank.]

    Section IV, Column 2. Screening Tests With Results Below 0.02--
This column requires a count of the number of tests in each testing 
category that the BAT or STT reported as being below 0.02 on the 
screening test.

[For example, if seventeen of the company's twenty pre-employment 
screening tests were reported as being below 0.02, ``17'' would be 
entered in Column 2 on the Pre-employment Row. If forty-four of the 
company's fifty random screening test results were reported as being 
below 0.02, ``44'' would be entered in Column 2 on the Random Row. 
Because the company did no other testing, those other categories 
would be left blank.]


[[Page 61313]]


    Section IV, Column 3. Screening Tests With Results 0.02 Or 
Greater--This column requires a count of the number of screening 
tests in each testing category that BAT or STT reported as being 
0.02 or greater on the screening test.

[For example, if one of the twenty pre-employment tests was reported 
as being 0.02 or greater, ``1'' would be entered in Column 3 on the 
Pre-employment Row. If four of the company's fifty random test 
results were reported as being 0.02 or greater, ``4'' would be 
entered in Column 3 on the Random Row.]

    Section IV, Column 4. Number of Confirmation Test Results--This 
column requires entry of the number of confirmation tests that were 
conducted by a BAT as a result of the screening tests that were 
found to be 0.02 or greater. In effect, all screening tests of 0.02 
or greater should have resulted in confirmation tests. Ideally the 
number of tests in Column 3 and Column 4 should be the same. 
However, we know that this required confirmation test sometimes does 
not occur. In any case, the number of confirmation tests that were 
actually performed should be entered in Column 4.

[For example, if the one pre-employment screening test reported as 
0.02 or greater had a subsequent confirmation test performed by a 
BAT, ``1'' would be entered in Column 4 on the Pre-employment Row. 
If three of the four random screening tests that were found to be 
0.02 or greater had a subsequent confirmation test performed by a 
BAT, ``3'' would be entered in Column 4 on the Random Row.]

    Section IV, Column 5. Confirmation Tests With Results 0.02 
Through 0.039 [sim] This column requires entry of the number of 
confirmation tests that were conducted by a BAT that led to results 
that were 0.02 through 0.039.

[For example, if the one pre-employment confirmation test yielded a 
result of 0.042, Column 5 of the Pre-employment Row would be left 
blank. If two of the random confirmation tests yielded results of 
0.03 and 0.032, ``2'' would be entered in Column 5 of the Random 
Row.]

    Section IV, Column 6. Confirmation Tests With Results 0.04 Or 
Greater [sim] This column requires entry of the number of 
confirmation tests that were conducted by a BAT that led to results 
that were 0.04 or greater.

[For example, because the one pre-employment confirmation test 
yielded a result of 0.042, ``1'' would be entered in Column 6 of the 
Pre-employment Row. If one of the random confirmation tests yielded 
a result of 0.04, ``1'' would be entered in Column 6 of the Random 
Row.]

    TIP--Column 1 should equal the sum of Columns 2, 3, 7, and 8. 
The number of screening tests results should reflect the number of 
screening tests you have no matter the result (below 0.02 or at or 
above 0.02, plus refusals to test), unless of course, the tests were 
ultimately cancelled. So, Column 1 = Column 2 + Column 3 + Column 7 
+ Column 8. Certainly, double check your records to determine if 
your actual screening results count is reflective of all these 
counts.
    There is no need to record MIS confirmation tests results below 
0.02: That is why we have no column for it on the form. [If the one 
of the random test that screened 0.02 went to a confirmation test; 
and that confirmation test yielded a result below 0.02, there is no 
place for that confirmed result to be entered.] We assume that if a 
confirmation test was completed but not listed in either Column 5 or 
Column 6, the result was below 0.02. In addition, if the 
confirmation test ended up being cancelled, it should not have been 
included in Columns 1, 3, or 4 in the first place.
    Section IV, Columns 7 and 8. Refusal Results--The refusal 
section is divided into two refusal groups--they are: Shy Lung--With 
No Medical Explanation; and Other Refusals To Submit to Testing. 
When an individual does not provide enough breath at the test site, 
the company requires the employee to have a medical evaluation to 
determine if there exists a medical reason for the person's 
inability to provide the appropriate amount of breath. If there is 
no medical reason to support the inability as reported by the 
examining physician, the employer calls the result a refusal to 
test: Refusals of this type are reported in the ``Shy Lung--With No 
Medical Explanation'' category.
    Finally, additional reasons exist for a test to be considered a 
refusal. Some examples are: the employee fails to report to the test 
site as directed by the employer; the employee leaves the test site 
without permission; the employee fails to sign the certification at 
Step 2 of the ATF; the employee refuses to have a required shy lung 
evaluation. Again, these are only four examples; there are more.
    Section IV, Column 7. Shy Lung--With No Medical Explanation--
This column requires the count of the number of tests in which there 
is no medical reason to support the employee's inability to provide 
an adequate breath as reported by the examining physician; 
subsequently, the employer called the result a refusal to test.

[For example, if one of the 50 random tests was a refusal because of 
shy lung, ``1'' would be entered in Column 7 of the Random Row.]

    Section IV, Column 8. Other Refusals To Submit To Testing--This 
column requires the count of refusals other than those already 
entered in Columns 7.

[For example, the company entered ``50'' as the number of random 
specimens collected, however it had one employee who did not show up 
at the testing site as directed. Because of this one refusal event, 
``1'' would be entered in Column 8 of the Random Row.]

    TIP--Even though some testing events result in a refusal in 
which no breath (or saliva) was tested, there is an expectation that 
your overall numbers for screening tests (in Column 1) will equal 
the total number of screening tests with results below 0.02 (Column 
2); screening tests with results 0.02 or greater (Column 3); and 
refusals (Columns 7 and 8). Do not worry that no breath (or saliva) 
was tested for some refusals; all refusals are counted as a 
screening test event for MIS purposes and for establishing random 
rates.
    Section IV, Column 9. Cancelled Tests--This column requires a 
count of the number of tests in each testing category that the BAT 
or STT reported as cancelled. Do not count any cancelled tests in 
Column 1 or in any other column other than Column 9. For instance, 
you must not count a 0.04 screening result or confirmation result in 
any column, other than Column 9, if the test was ultimately 
cancelled for some reason (e.g., a required air blank was not 
performed).

[For example, if a pre-employment test was reported cancelled, ``1'' 
would be entered in Column 9 on the Pre-Employment Row. If three of 
the company's random test results were reported cancelled, ``3'' 
would be entered in Column 13 on the Random Row.]

[FR Doc. 02-24718 Filed 9-27-02; 8:45 am]
BILLING CODE 4910-62-P