[Federal Register Volume 68, Number 143 (Friday, July 25, 2003)]
[Rules and Regulations]
[Pages 43946-43964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18378]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST-2003-15676]
RIN 2105-AD14


Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs: Drug and Alcohol Management Information System Reporting

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: The Department of Transportation's Office of Drug and Alcohol 
Policy and Compliance (ODAPC) is revising the Management Information 
System (MIS) forms currently used within five U.S. Department of 
Transportation (DOT) agencies and the United States Coast Guard (USCG) 
for submission of annual drug and alcohol program data. The DOT 
agencies are: Federal Motor Carrier Safety Administration (FMCSA); 
Federal Aviation Administration (FAA); Federal Transit Administration 
(FTA); Federal Railroad Administration (FRA); and Research and Special 
Programs Administration (RSPA). The Department is streamlining the 
annual reporting of drug and alcohol program data to DOT agencies 
through use of a one-page MIS data collection form. The Department is 
standardizing across the DOT agencies the information collected and 
reducing the amount of data reported by transportation employers. If a 
DOT agency requires supplemental data, the DOT agency will address 
those issues separately.

DATES: Effective July 25, 2003.

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

    Five DOT agencies and the USCG collect drug and alcohol program 
data from their regulated employers on an

[[Page 43947]]

annual basis. Employers compile this data on MIS forms and each form is 
DOT-agency specific. In fact, twenty-one MIS data collection forms will 
be replaced within the DOT agencies by the new single-format form. 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 DOT 
agencies.
    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 serves to limit 
MIS reporting to a finite number of data elements. Therefore, a core 
set of data elements will make up the new MIS form which all 
transportation employers will complete, as appropriate, for their 
companies and the DOT agencies 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 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 is a single 
set of MIS instructions for all transportation employers, regardless of 
DOT agency.
    However, not every DOT agency 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 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 or may enter zeros. For instance, because USCG wants no 
alcohol testing data on the MIS form, USCG-regulated employers will 
leave blank (or enter zeros in) Section IV of the form. In addition, 
when no testing was done or no results were received for particular 
data elements, employers may leave those items blank or insert zeros.
    The Department issued a notice of proposed rulemaking (NPRM) on 
September 30, 2002 (67 FR 61306), asking for comments and suggestions 
for changes to the MIS form and process. In response to the NPRM, we 
received a modest amount of comments from a dozen or so individuals, 
groups, and associations. The final rule responds to all those 
comments. The final rule also makes significant modifications to the 
previous DOT agency MIS forms.

Additional Background Issue

    In the NPRM we said, ``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.''
    The Department of Homeland Security (DHS) has been established and 
the USCG's being part of that cabinet agency is reality. However, the 
USCG intends to keep 49 CFR part 40 as an incorporated part of its 
regulated industry testing rules--46 CFR part 16. Consequently, the 
USCG intends to follow part 40 regulations applicable (e.g., part 40 
alcohol rules do not apply) to the marine industry until such time as 
resources permit them to create their own rules, should that become 
necessary in the future. The USCG intends to rely upon 49 CFR part 40 
for testing procedures, guidance, and interpretations. They also intend 
to remain a part of the MIS form, its process, and its related 
regulation section in part 40. Therefore, USCG-regulated employers will 
continue to report on this MIS form until further notice.
    ODAPC desires to support the USCG efforts to facilitate a seamless 
transition from DOT to DHS. In this light, we will support the USCG's 
use of 49 CFR part 40 in their regulated industry testing program. [We 
view USCG's use of part 40 as being similar to DOT's required 
incorporation of Department of Health and Human Services (HHS) 
laboratory regulations and guidance into part 40.] In this light, the 
MIS regulation, form, and instructions will continue to reference the 
USCG as a DOT agency even though it became part of DHS on March 1, 
2003.

Effective Dates

    The Department has decided that use of the new MIS form will be 
required for employer MIS submissions in CY 2004 documenting CY 2003 
data. Therefore, employers must immediately adopt provisions in the 
rule which will permit them to start, as appropriate, collection of the 
required data and which establish how companies are to determine the 
number of employees upon which 2003 random testing is based.

Discussion of Significant Comments to the Docket

    Comment: The vast majority of commenters supported the Department's 
decision to streamline and simplify the various MIS forms currently in 
use into one form that will be used across all DOT agencies. Most 
expressed the belief that doing so will enhance accuracy of data being 
reported and the efficiency of those employers and service agents who 
will be tasked with providing the reports. A few commenters suggested 
that the new form will also be more easily processed through electronic 
means (when those are up and running) than would the variety of past 
MIS iterations.
    Two commenters believed the new form did not effectively address 
the needs of data collection. One of these commenters expressed the 
belief that much more information needed to be collected and needed to 
be collected on a more frequent than once per year basis. The other 
commenter indicated that use of one specific DOT agency's MIS forms 
should not be changed because those forms best fit, the commenter 
asserts, the needs of a particular industry which the commenter 
represents (and because companies do not wish to change established 
reporting programs which are geared to provide the information required 
on current forms).
    DOT Response: We agree with the preponderance of commenters who 
supported use of a single form across all modes of transportation. We 
agree with the majority of commenters who supported use of a trimmed-
down version of the form. We agree with commenters who believed the new 
form readily lends itself to electronic transfer of items and data. In 
this light, it is important to note that the new form represents an all 
important first step in the Department's desire to have this form on-
line and to permit electronic transmission of data. The fact that one 
form will be used throughout the transportation industry makes the 
difficult task of designing the system much simpler (to say nothing of 
our being able to obtain accurate data in consistent fields across all 
DOT agencies).
    The Department, after reaching a self-imposed deadline date for the 
publication of the NPRM, did not intend for the new form to be used to 
collect 2002 MIS information. To do so would have meant a change in the 
way

[[Page 43948]]

companies that had already collected 2002 data would have had to 
download that information. In addition, many companies had not been 
collecting vital data regarding refusals to test. Therefore, use of the 
new form will be required in CY 2004 for collecting data representing 
CY 2003 testing.
    During 2003, the Federal Transit Administration (FTA) has agreed to 
field-test an electronic data collection system using data elements of 
the new form. The FTA will select transit systems for reporting MIS 
data as part of this field-test. FTA's Volpe Center resources will 
coordinate the data collection. Through field-testing we can expose the 
Volpe-developed system software to a wide range of equipment and real-
world usage. This field test will be accomplished with an eye toward 
full implementation across all DOT agencies as soon as possible. We 
believe the revised MIS form and its data format represent the best way 
to accomplish the Department's ultimate goal of having full automation 
for MIS submissions. Early demonstrations of FTA's system have shown 
the design to be very user-friendly and uncomplicated for the input 
required data.
    Comment: Several commenters expressed the concern that employers 
could believe the data requirements no longer reflected on MIS forms 
are being de-emphasized by the DOT agencies. Most of these commenters 
wished us to reiterate the importance of training information that will 
no longer be asked for on the MIS form.
    DOT Response: As we stated in the NPRM, the items for which we are 
no longer asking are items that DOT agencies can obtain in a variety of 
other ways and in other venues and formats. It is worth reiterating 
that the vast majority of items removed from the MIS form remain 
important. Employers would be remiss, to say nothing about being in 
violation of part 40 and DOT agency regulations, if they chose not to 
obtain, maintain, and furnish information required by regulations. 
Employers and service agents will be in clear violation of regulations 
and subject to sanctions if the DOT agency requirements (e.g., for 
supervisory training, for recordkeeping) are now ignored simply because 
the data generated by those requirements are no longer being recorded 
on the MIS form.
    Comment: The bulk of commenters supported how the Department 
proposed to count the number of covered employees (i.e., employees 
subject to testing because they perform DOT safety-sensitive duties) 
using the averaging formula. Some commenters, while supporting the 
averaging formula method, expressed concern for companies that make 
random selections on a daily or weekly basis (as opposed to those 
selecting monthly or quarterly). Only one commenter expressed the 
desire to use a number determined at the start of the year believing it 
simpler than factoring-in employee census fluctuations. This commenter 
believed that doing so would be better than having an employer 
determine the average number of employees at year's end--which was not 
an idea proposed by the Department in the NPRM. In addition, this 
commenter indicated that employers represented by the commenter did not 
know how many safety-sensitive employees they actually employ 
throughout the year.
    DOT Response: The Department believes the calculation of the 
employee average will be the best way for employers to determine the 
number of covered employees eligible for DOT testing throughout the 
year. This process will more readily enable employers to take into 
account employment of seasonal workers; periods of downsizing; and 
business start-ups and other increases in employee numbers. To fix the 
number of covered employees at the start of a year does not take those 
important factors into consideration. For some employers, establishing 
the number at the start of the year may lead to their conducting much 
more random testing than required, and for others, far too little 
random testing.
    Companies that do not know how many employees they employ and 
release from employment; do not know how many eligible employees are in 
each random selection pool; and do not know if eligible employees are 
placed into and taken out of random selection pools have problems 
irrespective of how the MIS form is completed.
    In any case, the Department believes the best way for the random 
testing pools to be kept current and for the random testing rate to 
reflect the number of employees actually performing safety sensitive 
duties is the proposed averaging formula, and we have adopted it in 
this regulation. It is imperative that companies not wait until the end 
of the year to make this calculation. Companies must place all covered 
employees into the pool, know how many are in the pool, and select and 
test the appropriate percentages.
    While we believe that companies conducting their random testing 
draws on a daily or weekly basis have computer systems sophisticated 
enough to factor the average on a daily or weekly basis, the Department 
will not require those companies to do so. However, those companies 
conducting random draws more frequently than monthly (e.g., daily, 
weekly, bi-weekly) will not be required to do the averaging more than 
once each month. And, for example, companies selecting monthly, must 
calculate monthly; and companies selecting quarterly, must calculate 
quarterly.
    Comment: One commenter believed the requirement to capture 
``refusal to test'' data would be too complex for employers. This 
commenter also stated that counting the number of cancelled tests would 
also add a burden to employers, although the commenter wished to have 
cancelled tests counted toward satisfaction of the random testing rate. 
In short, this commenter did not favor changes to the old single-
industry-specific forms.
    DOT Response: The Department believes that the testing panorama has 
changed considerably since the inception of the DOT testing program. 
Other program forms, such as the Breath Alcohol Testing Form and the 
Federal Drug Testing Custody and Control Form, have changed to reflect 
program changes. We believe it is important that the MIS form transform 
accordingly. At one time the Department did not envision that specific 
reasons for refusals would become important enough to track. However, a 
troubling industry has risen whose primary goal is to ``beat the drug 
test.'' Adulterated and substituted test results have increased 
considerably: when we speak of refusals, no longer are we simply 
talking about employees failing to appear for tests. Times change and 
this refusal delineation is now important for the Department, the DOT 
agencies, and employers to have.
    As proposed in the NPRM, we have determined that refusals to test 
should count as a test result--one that goes toward satisfaction of a 
company's random testing rate. However, we do not believe that 
cancelled tests should count toward satisfaction of the rate. We 
continue to support part 40's contention that a cancelled test does not 
count toward compliance with DOT's testing requirements.
    Again, we believe a single MIS format is the most appropriate 
approach. We believe that the many items we no longer desire to capture 
on the form more than offset the few new collection requirements for 
refusals and cancellations.
    Comment: Two commenters believed the collection of data on separate 
sheets for each employee category would present too much work for those 
charged with completing the form. One commenter supported the one-page

[[Page 43949]]

concept while recognizing that some companies may have to enter data on 
additional sheets.
    DOT Response: The Department gave a lot of thought to this issue, 
but did not see a valid way around separate pages for different 
employee categories, at least in the short term. Again, it is important 
to note that the Department views the use of this standard format, one-
page MIS form to be a logical first step in providing an automated 
system for future MIS data entry. A ``must'' for the automated system 
will be the ability of the employer to view entry options only for 
eligible categories of employees. For instance, an employer entering 
MIS data online for the FTA will see only employee categories 
corresponding to the FTA rules. For an employer entering MIS data for 
the FAA, only those FAA employee categories will appear.
    Interestingly, even if an employer has multiple employee 
categories, the amount of information collected equates to far less 
than if the employer used the old forms. There is no more actual work 
involved in entering the employee testing data even if using separate 
sheets. In fact, our test runs of the form (e.g., to obtain industry 
estimates on the amount of time to fully complete the form) with 
companies having multiple employee categories were met with positive 
feedback. From those estimates, we concluded that completion of the 
form--even with multiple sheets--will take between 45 minutes and 1.5 
hours. For the old MIS forms, estimates showed that the ``EZ'' forms 
took between 30 minutes and 1 hour to complete; and the long forms took 
2.5 hours each (alcohol and drug) to complete. Again, we hold that the 
time savings is substantial using the new form rather than the 
multitude of old forms.
    Comment: Two commenters asked us to clarify MIS requirements for 
companies reporting MIS data to more than one DOT agency--companies 
that, for instance, may have full-time drivers and full-time pipeline 
workers. In addition, they asked us to resolve confusion over how to 
record testing data for employees who perform duties that are regulated 
by more than one DOT agency--for example, a company's employees drive 
trucks sometimes and perform safety-sensitive railroad duties at other 
times.
    DOT response: In its first paragraph, the NPRM's MIS instruction 
form provided guidance for companies regulated by more than one DOT 
agency. It said, ``If you are preparing reports for more than one DOT 
Operating Administration (OA), then you must submit OA-specific 
forms.'' We have maintained that text requirement intact. Therefore, if 
a company has drivers and pipeline workers covered under FMCSA and RSPA 
regulations respectively, and the company is asked by FMCSA and by RSPA 
to submit MIS data, the company should send an MIS report on its 
drivers to the FMCSA and an MIS report on its pipeline workers to RSPA.
    The second scenario the commenters brought up, how to record MIS 
data for employees who perform cross-modal safety sensitive duties 
where an employee performs duties regulated by two or more DOT agencies 
(e.g., the employee is a truck driver and a pipeline maintenance 
worker), is more complex. For a number of years, DOT agency rules have 
stipulated that a covered employee, subject to testing under more than 
one DOT agency rule for the same employer, would be subject to random 
testing at the percentage rate established for the calendar year by the 
DOT agency regulating more than 50 percent of the employee's safety-
sensitive duties.
    Further complicating the issue becomes the fact that some DOT 
agencies (i.e., RSPA and USCG) do not authorize random alcohol testing 
for employees. So while an employee who drives a truck and performs 
pipeline maintenance for a company may carry out more than 50% of his 
or her duties under RSPA rules and be in a RSPA random pool for drug 
testing, that employee must still be in an FMCSA pool for random 
alcohol testing. Or, the company can choose to place all these 
employees in the same random drug testing pool if they test at or above 
the highest random rates established by the DOT agency under whose 
jurisdiction they fall.
    The Department is settling the issue by stating that for purposes 
of the MIS form, employees covered under more than one DOT agency rule 
need only be reported on the MIS form for the DOT agency under which 
they are randomly tested.
    For example, an employee conducting 51% of her safety-sensitive 
work under FMCSA rules will be randomly tested under those rules rather 
than under the rules of another DOT agency under which she performs the 
other 49% of her DOT safety sensitive duties. For MIS purposes, 
therefore, she will be counted and her tests reported only under the 
MIS submission to the FMCSA. If 49% of her duties are under FTA, for 
instance, she will not appear on the FTA MIS submission even though she 
would continue to be eligible for testing under the FTA rule for post 
accident and reasonable suspicion, and perhaps for return-to-duty and 
follow-up testing. Employers may have to explain her testing data to 
FMCSA and FTA agency representatives during an inspection or audit.

Additional Discussion of Rule

    The ODAPC and the DOT agencies have revised the MIS reporting 
requirements to standardize the collection of data for the agencies. 
The proposed rulemaking will impose a few new requirements for data 
collection; specifically, data related to information associated with 
the revised (65 FR 122, June 23, 2000) Federal Drug Testing Custody and 
Control Form. However, the overall amount of required data is less than 
that required currently. The Department has also placed the MIS form 
and instructions for completing it into part 40. The forms and 
instructions will be removed from all DOT agency regulations.
    As stated earlier, many data elements are no longer part of the MIS 
form. DOT agencies have decided that some information items required on 
previous MIS forms are available in other formats or are items 
obtainable during inspections, reviews and audits. The following 
represents a listing for each DOT agency of most of the data elements 
we are eliminating from reporting on the MIS form:

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.

[[Page 43950]]

    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 will also 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 DOT agencies 
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 testing rate 
requirement. Furthermore, in calculating the annual random rates for 
testing, all DOT agency rules said the following will be factored for 
the positive rate: number of random positives plus number of random 
refusals divided by the number of random tests plus the 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 had been added to the total.
    To clear up these discrepancies, the Department will count the 
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 have added all refusals to the number of tests 
because DOT agencies factor refusals into determining whether or not 
employers have met annual random testing rate requirements. We will not 
add cancelled test results to the mix because part 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).''
    Invalid test results are always cancelled and will not be included. 
However, those invalid results requiring a subsequent directly observed 
collection will simply be considered another collection that will have 
a final result. In addition, blind testing will not be counted as a 
testing event. Counting in this manner will enable many of the columns 
and rows of the MIS form to total up.
    In addition, annual random testing rates will be determined using 
more accurate counts because no cancelled test will be mistakenly 
included and no refusals will be factored twice in the total. DOT 
agency inspectors, reviewers, and auditors will 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 its random testing rate.
    For cancellations requiring the employee to take 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 situations 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 testing).
    In addition, if more than one set of specimens is sent to the lab 
during one testing event, they will count together 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

[[Page 43951]]

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 clarifying and making uniform among DOT 
agencies how employers determine the total number of employees against 
which the annual random rate applies. Some DOT agencies have told 
employers to count the number of covered employees working at the start 
of the calendar year; some DOT agencies have directed employers to 
count the total number of covered employees that worked for the company 
within the year; and still others have advised employers to count the 
average number of employees on a monthly or quarterly basis.
    This rule directs employers to add the total number of covered 
employees eligible for random testing in 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 will add the total of safety-sensitive 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 employees subject to testing for the year 
would be reported as ``2000''. (Note: This number, ``2000'', would also 
be the number on which an employer would base the random testing 
rate.)]
    As stated earlier, no company will be required to factor the 
average number of employees more often than once per month: No more 
than 12 times per year.
    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 DOT agency regulation. Likewise, DOT agency 
regulations will continue to address the manner (e.g., mail; CD; 
electronic transmission) and locations for submitting the forms. 
Responding to a commenter, we have added a reference to this in rule 
text.
    It is important to note that MIS alcohol testing data reflects all 
these proposals made for MIS 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 DOT agency 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 listed would only be those 
for the specific DOT agency.
    The Department recognizes that Consortia/Third Party Administrators 
(C/TPAs) are responsible for administering a large number of 
transportation industry drug and alcohol testing programs. For this 
reason, the MIS form will contain a space for the employer to note the 
name of the C/TPA the company uses, if any. Finally, we have made some 
of the minor, but useful changes recommended by several commenters and 
DOT agency representatives. These include typographical, counting, and 
example errors; and the option to use zeros instead of leaving testing 
data items blank.
    Finally, the Department wants reasonable suspicion and reasonable 
cause testing to be counted together on the MIS form with no 
differentiation between the two. The issue of how to count these two 
types of tests has been complicated by the fact that neither the CCF 
nor the BATF distinguish between the two even though the DOT agencies 
do. For instance, FMCSA and FTA authorize reasonable suspicion drug 
testing; FAA, RSPA, and USCG authorize reasonable cause drug testing; 
and FRA authorizes both. FMCSA, FAA, FTA, and RSPA authorize reasonable 
suspicion alcohol testing; and FRA authorizes both reasonable suspicion 
and reasonable cause alcohol testing. Sufficient documentation should 
exist with employers for DOT agency representatives to tell the 
difference between the two during inspections and audits.

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 rule will serve to reduce requirements and 
costs. The Department realizes that some companies maintain their 
current MIS data items on basic computer spreadsheets. However, we are 
requiring only a minimal number of additions to the format while 
removing a larger number of items.
    This final rule 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.
    The 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 is submitting these requirements to the Office 
of Information and Regulatory Affairs of the Office of Management and 
Budget (OMB) for review, as required under the PRA. For informational 
purposes, the Department will place its entire PRA package for the MIS 
form on the Internet when that submission is approved.
    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 DOT agencies rather than 
the multiple forms with multiple instructions currently in 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 rely 
on manual methods.

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    Because MIS reporting has been part of the DOT testing equation for 
several years, 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 C/
TPA's contracted services.
    Whatever the case, the Department does not require any particular 
management approach to compiling 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 DOT 
agencies. 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 ``EZ'' 
drug form, the ``EZ'' alcohol form, the long drug form, and the long 
alcohol form, the formats of which were different for each DOT agency. 
Therefore, employers subject to more than one DOT agency 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 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.
    DOT agency MIS PRA submissions for the old MIS forms reveal that 
nearly 6,800 companies submit 13,541 MIS forms annually to DOT; and the 
time it takes to fill out the forms is 18,406 hours. Estimates for the 
new MIS form indicate that these companies will send 7,186 MIS reports 
to DOT and the time to complete them will be 10,779 hours. Therefore, 
we foresee over 7,500 hours saved per year in filling out the new MIS 
form as opposed to completing the old multiple MIS forms. [Based upon 
industry and DOT agency 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 and for our OMB PRA submission, to use the 
highest industry and DOT agency estimate --1.5 hours. We estimate that 
slightly over 300 companies report to more than one DOT agency.]
    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 12889 
(Implementation of North American Free Trade Agreement). We have 
considered these Executive Orders in the context of this rule, and we 
believe that the 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 9th day of July, 2003, at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.

PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL 
TESTING PROGRAMS

0
For reasons set forth in the preamble, the Department of Transportation 
amends Part 40 of Title 49, Code of Federal Regulations, as follows:
0
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.

0
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. You must submit the MIS report in accordance with rule requirements 
(e.g., dates for submission; selection of companies required to submit, 
and method of reporting) established by the DOT agency regulating your 
operation.

0
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.
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[FR Doc. 03-18378 Filed 7-24-03; 8:45 am]
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