[Federal Register Volume 68, Number 250 (Wednesday, December 31, 2003)]
[Rules and Regulations]
[Pages 75455-75466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31887]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 382

Federal Aviation Administration

14 CFR Part 121

Federal Transit Administration

49 CFR Part 655

Federal Railroad Administration

49 CFR Part 219

Research and Special Programs Administration

49 CFR Part 199

[Docket OST-2002-13435]
RIN 2105-AD35


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

AGENCIES: Federal Motor Carrier Safety Administration, Federal Aviation 
Administration, Federal Transit Administration, Federal Railroad 
Administration, and Research and Special Programs Administration, 
Department of Transportation.

ACTION: Final rule.

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SUMMARY: Each of the Department of Transportation's drug and alcohol 
testing rules include requirements for select employers to submit drug 
and alcohol testing data to five Department of Transportation (DOT) 
agencies. In the past, these employers have been required to use 
agency-specific Management Information System (MIS) forms for this 
purpose, twenty-one different forms in all. The Department recently 
published a final rule revising these DOT agency MIS forms and 
transforming them into a single one-page form for use throughout all 
the DOT agencies. The requirement for use of the form is now in 49 CFR 
part 40. By this action, the DOT agencies endorse the use of this 
single form within their regulated industries,

[[Page 75456]]

provide their regulated employers with guidance for submission of the 
form, and amend their rules accordingly. 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).

DATES: Effective December 31, 2003.

FOR FURTHER INFORMATION CONTACT:
    Jim L. Swart, Drug and Alcohol Policy Advisor (S-1), Office of Drug 
and Alcohol Policy and Compliance, 400 Seventh Street, SW., Washington, 
DC 20590; telephone number (202) 366-3784 (voice), (202) 366-3897 
(fax), or [email protected] (e-mail).
    Jerry Fulnecky, Office of Enforcement and Compliance (MC-EC), 
Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., 
Washington, DC 20590; telephone number (202) 366-2096, or 
[email protected] (e-mail).
    Diane J. Wood, Drug Abatement Division, AAM-800, Office of 
Aerospace Medicine, Federal Aviation Administration, Washington, DC 
20591, telephone number (202) 267-8442.
    Harry Saporta, Office of Safety and Security (TPM-30), Federal 
Transit Administration, 400 Seventh Street, SW., Washington, DC 20590; 
telephone number (202) 366-2233, or [email protected].
    Lamar Allen, Alcohol and Drug Program Manager (RRS-11), Office of 
Safety, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590; telephone 
number (202) 493-6313, or [email protected] (e-mail); or Kathy 
Schnakenberg, Drug and Alcohol Program Specialist, Office of Safety, 
FRA, telephone number (202) 262-4998, or [email protected] 
(e-mail).
    Sheila Wright, Office of Pipeline Safety (DPS-2), Research and 
Special Programs Administration, 400 Seventh Street, S.W., Washington, 
DC 20590, telephone number (202) 366-4554, or 
[email protected] (e-mail).

SUPPLEMENTARY INFORMATION

Background and Purpose

    The Department published a final rule on July 25, 2003 (68 FR 
43946) regarding a single one-page MIS form for use throughout all DOT. 
The Department had 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 numerous comments from individuals, groups, and associations. 
The final rule responded to all those comments. The final rule also 
made significant modifications to the previous DOT agency MIS forms.
    In the final rule, the Department stated that use of the new MIS 
form will be required for employer MIS submissions in 2004, which will 
document 2003 data. Therefore, employers must adopt provisions of 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.
    The Department also indicated that the new MIS form represents a 
reduction in the data elements for which an employer must account. The 
following is a listing for each DOT agency of most of the data elements 
that have been eliminated as reporting elements on the new 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.
    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.
    15. Periodic testing 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.

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.

[[Page 75457]]

    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.
    Finally, the Department stated that the DOT agencies would 
continue, in their regulations, to provide direction to their regulated 
employers regarding when, where, and how to report MIS data. The DOT 
agency final rules published today are designed to amend their rules so 
that regulated industries will report MIS data in accordance with 49 
CFR part 40. In addition, the DOT agency final rules are designed so 
that no conflicts exist between them and part 40 regarding how the MIS 
form is to be completed and how the instructions are to be followed.

General Discussion of Rule Changes

    The DOT agencies are amending several sections of their drug and 
alcohol testing regulations to incorporate references to the new one-
page MIS form and its instructions found in 49 CFR part 40. In 
addition, other revisions are being made in an effort to conform MIS-
related regulatory text used by the DOT agencies. Specifically, the 
items reflecting use of conforming language are as follows:
    1. Definitions of ``positive rate for random drug testing'' and 
``violation rate for random alcohol testing'' will conform throughout 
the regulations and will replace ``annualized rate,'' ``positive 
rate,'' and ``violation rate,'' as appropriate. Both definitions will 
reflect how the DOT agencies will determine whether the random rates of 
testing within their regulated industries will rise, lower, or stay the 
same from year to year. It is important to note that RSPA has no random 
alcohol testing requirement and will, therefore, not include a 
definition for the ``violation rate for random alcohol testing.''
    2. 49 CFR part 40 also clarified and made uniform among DOT 
agencies how employers determine the total number of employees to which 
the annual random rate applies. The averaging method highlighted in 
part 40 has been adopted in DOT agency rule text. The rules direct 
employers to add the 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. The rules also 
reference employers' use of service agents (e.g., Consortium/Third-
Party Administrators) in their random testing programs.
    3. Each DOT agency rule incorporates common language requiring use 
of the MIS form and the instructions found in 49 CFR part 40. The rules 
also permit employers to use the electronic version of the MIS form as 
designated by DOT agency administrators and furnished by DOT. Specific 
internet addresses are provided in DOT agency rules. As referenced in 
the preamble to 49 CFR part 40, the Department's ultimate goal of 
having full automation for MIS submissions has been accomplished. 
Through Volpe Center development and field-testing, the automated 
system will be fully operational across all DOT agencies at the end of 
2003.
    4. DOT agency rules also include conforming language regarding how 
employers, with covered employees performing duties under more than one 
DOT agency rule, are to enter testing data for those employees. In 
short, the employee needs to be counted only on the MIS report for the 
DOT agency under which he or she is random tested. It is important to 
note, that the FAA requires all employees performing FAA safety-
sensitive duties to be tested (including random) under FAA regulations. 
Otherwise, this will be the DOT agency under which the employee 
performs more than 50% of his or her duties.
    5. Finally, the conforming language addresses the preparation of 
the MIS form and who must attest to its accuracy. The regulations give 
employers the ability to have service agents (e.g., Consortium/Third-
Party Administrators) prepare the report on their behalf. However, no 
matter who prepares the report, a company official (e.g., Designated 
Employer Representative as defined in 49 CFR part 40) must certify the 
accuracy and completeness of the form.

Other Significant Issues

    Regarding 49 CFR part 40 and the MIS form, the OMB number assigned 
to the form is 2105-0529. This number was issued by OMB on October 28, 
2003.
    The Docket number assigned to the part 40 MIS final rule was OST-
2003-15676. It should have been, OST-2002-13433. This will serve to 
correct that error.
    DOT has been asked how specimen results are to be counted if the 
verified result is a refusal because the specimen was found to be both 
adulterated and substituted. While these types of results rarely occur, 
they do nonetheless exist. Such a specimen result is to be counted as 
one test result. If this type of result is present in an employer's 
testing program, the data should be entered as ``1'' for the test 
result and as ``.5'' for the adulterated result and as`` .5'' for the 
substituted result.
    In addition, it is possible for a positive test to also be 
identified as being a refusal because the specimen was either 
adulterated or substituted. If such a result is present in an 
employer's testing program, the data should be entered as ``1'' for the 
test result and as ``.5'' for the positive result and as ``.5'' for the 
adulterated result or the substituted result, as appropriate. The 
electronic MIS data entry system has been designed to accommodate these 
``.5'' results, no matter how infrequently they occur.
    Section 1, of the MIS form in 49 CFR part 40, references the 
``FMSCA.'' That should read, ``FMCSA.'' MIS forms that appear on the 
DOT website reflect the appropriate change. Electronic formats designed 
for use by the FMCSA and their regulated industry also reflect the 
change.
    Finally, the United States Coast Guard (USCG) will incorporate use 
of the new MIS form into their rules. Therefore, USCG-regulated 
employers will continue to report drug testing data on the new MIS 
form. The DOT supports the USCG in their desire to use and to 
incorporate use of DOT's MIS form into their regulation. Because the 
USCG is part of the Department of Homeland Security (DHS), their 
regulations must be published under the authority of DHS. Therefore, 
the USCG will publish a conforming amendment to 46 CFR part 16 
incorporating use of the form.

Regulatory Analyses and Notices

    These rules are not significant rules for purposes of Executive 
Order 12866 or the DOT's regulatory policies and procedures. Nor are 
the rules economically significant regulations. They represent a 
reworking of existing requirements, the economic burden of which are 
now incorporated into 49 CFR part 40; they impose no new mandates; and 
they will not create any new costs. In fact, use of the new MIS form 
has been shown to reduce requirements and costs. The DOT agencies will 
no longer account for the PRA cost associated with use of the form. 
These costs are now accounted for by the Office of the Secretary.
    In addition, there is no need for the DOT agencies to publish an 
NPRM each regarding use of the new MIS form and

[[Page 75458]]

to make the conforming regulation changes necessitated by use of the 
new form. The Department issued an NPRM in the Federal Register on 
September 30, 2002 (Vol. 67, No. 189) proposing use of a new MIS form 
and asking for comments and suggestions for changes to the old DOT 
agency MIS forms and the process for completing and submitting them. 
The final rule designating use and appearance of and instructions for 
the new MIS form was published in the Federal Register on July 25, 2003 
(Vol. 68, No. 143). These DOT agency final rules are essentially 
administrative fix-ups to align DOT agency rules with part 40 on 
important MIS issues. Therefore, these DOT agency amendments are being 
issued as final rules.
    Under the Administrative Procedure Act (APA), an agency may, for 
good cause, immediately promulgate a final rule if it finds that prior 
notice and opportunity for comment ``are impracticable, unnecessary, or 
contrary to the public interest'' [5 U.S.C. 553(b)(3)(B)]. There exists 
good cause for the final rules to be effective immediately rather than 
30 days from today's publication date. It is imperative that companies 
are prepared to implement the new MIS system and know the DOT agency 
requirements for form submission. That preparation should not be 
delayed for an additional 30 days. For these and the reasons 
highlighted in the previous paragraph, the rules are effective today.
    These final rules do not have sufficient Federalism impact to 
warrant a Federalism assessment under Executive Order 13132. With 
respect to the Regulatory Flexibility Act, the DOT agencies certify 
that these rules 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 these rules might affect a 
large number of small entities, we do not expect the use of a single 
MIS form throughout all DOT-regulated industries to have a significant 
economic impact on anyone.
    The Department's final MIS rule contained information collection 
requirements that were submitted, as required by the Paperwork 
Reduction Act of 1995 (the PRA, 44 U.S.C. 3507(d)), to the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget (OMB) for review. Therefore, the DOT agencies will remove PRA 
requirements for the MIS form from their next PRA submission packages. 
In addition, the Department will place its entire PRA package for the 
MIS form on the Internet when that submission is approved by OMB.
    As stated in the Department's final MIS rule, 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 
number. As stated earlier, the OMB number issued to the form is 2105-
0529.
    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 these rules, and we 
believe that these rules do not directly affect matters that the 
Executive Orders cover.
    We have prepared these rulemakings in accordance with the 
Presidential Directive on Plain Language.

Federal Motor Carrier Safety Administration

Summary of Changes in Part 382

    FMCSA has made the following changes to the regulatory text in part 
382:

Section 382.107 Definitions

    We have revised the definitions for ``positive rate'' for random 
drug testing and ``violation rate'' for random alcohol testing, 
consistent with the definitions for those terms in part 40.

Section 382.305 Random Testing

    We have revised Sec.  382.305(j), concerning how employers 
determine the number of covered employees eligible for random testing, 
to conform with the methodology prescribed in part 40.

Section 382.401 Retention of Records

    We have revised Sec.  382.401(c)(1)(viii) to replace ``Consolidated 
annual calendar year summaries'' with ``Each annual calendar year 
summary.''

Section 382.403 Reporting of results in a management information system

    Section 382.403 was amended to require use of the new Management 
Information System (MIS) form in part 40, in place of the old FMCSA 
forms. In subparagraph (b), the requirement that the form should be in 
``the form and manner prescribed by the FMCSA'' was deleted. We now 
require employers to use either the paper form in part 40 or an 
electronic version of the form through the FMCSA web site. We deleted 
former subparagraphs (c) and (d) specifying the data elements that were 
required to be reported because the instructions for the MIS form in 
part 40 specify new data elements to be reported. The former 
subparagraph (e), which addresses employers subject to more than one 
DOT agency, has been redesignated as paragraph (c), and was amended to 
conform with part 40 agencies. The former subparagraph (f), which 
addresses employers who use service agents (e.g., a Consortia/third 
party administrator (C/TPA)), has been redesignated as paragraph (d) 
and was also amended.

List of Subjects in 49 CFR Part 382

    Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor 
carriers, Penalties, Safety, Transportation.

49 CFR Chapter III

Authority and Issuance

0
For reasons discussed in the preamble, the Federal Motor Carrier Safety 
Administration amends part 382 of title 49, Code of Federal 
Regulations, as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

0
1. The authority citation for 49 CFR part 382 continues to read as 
follows:

    Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49 
CFR 1.73.


0
2. Amend Sec.  382.107 by removing the definitions of ``positive rate'' 
and ``violation rate'' and adding the following definitions in their 
place to read as follows:


Sec.  382.107  Definitions.

* * * * *
    Positive rate for random drug testing means the number of verified 
positive results for random drug tests conducted under this part plus 
the number of refusals of random drug tests required by this part, 
divided by the total number of random drug tests results (i.e.,

[[Page 75459]]

positives, negatives, and refusals) under this part.
* * * * *
    Violation rate for random alcohol testing means the number of 0.04 
and above random alcohol confirmation test results conducted under this 
part plus the number of refusals of random alcohol tests required by 
this part, divided by the total number of random alcohol screening 
tests (including refusals) conducted under this part.

0
3. Amend Sec.  382.305 by revising paragraph (j) to read as follows:


Sec.  382.305  Random testing.

* * * * *
    (j)(1)To calculate the total number of covered drivers eligible for 
random testing throughout the year, as an employer, you must add the 
total number of covered drivers eligible for testing during each random 
testing period for the year and divide that total by the number of 
random testing periods. Covered employees, and only covered employees, 
are to be in an employer's random testing pool, and all covered drivers 
must be in the random pool. If you are an employer conducting random 
testing more often than once per month (e.g., daily, weekly, bi-weekly) 
you do not need to compute this total number of covered drivers rate 
more than on a once per month basis.
    (2) As an employer, you may use a service agent (e.g., a C/TPA) to 
perform random selections for you, and your covered drivers may be part 
of a larger random testing pool of covered employees. However, you must 
ensure that the service agent you use is testing at the appropriate 
percentage established for your industry and that only covered 
employees are in the random testing pool.
* * * * *

0
4. Amend Sec.  382.401 by revising paragraph (c)(1)(viii) to read as 
follows:


Sec.  382.401  Retention of records.

* * * * *
    (c) * * *
    (1) * * *
    (viii) A copy of each annual calendar year summary as required by 
Sec.  382.403.
* * * * *

0
5. Amend Sec.  382.403 by revising paragraph (b), removing paragraphs 
(c) and (d), redesignating paragraphs (e) and (f) as (c) and (d), 
respectively, and revising them, and adding a new paragraph (e) to read 
as follows:


Sec.  382.403  Reporting of results in a management information system.

* * * * *
    (b) If an employer is notified, during the month of January, of a 
request by the Federal Motor Carrier Safety Administration to report 
the employer's annual calendar year summary information, the employer 
shall prepare and submit the report to the FMCSA by March 15 of that 
year. The employer shall ensure that the annual summary report is 
accurate and received by March 15 at the location that the FMCSA 
specifies in its request. The employer must use the Management 
Information System (MIS) form and instructions as required by 49 CFR 
part 40 (at Sec.  40.26 and appendix H to part 40). The employer may 
also use the electronic version of the MIS form provided by the DOT. 
The Administrator may designate means (e.g., electronic program 
transmitted via the Internet), other than hard-copy, for MIS form 
submission. For information on the electronic version of the form, see: 
http://www.fmcsa.dot.gov/safetyprogs/drugs/engtesting.htm.
    (c) When the report is submitted to the FMCSA by mail or electronic 
transmission, the information requested shall be typed, except for the 
signature of the certifying official. Each employer shall ensure the 
accuracy and timeliness of each report submitted by the employer or a 
consortium.
    (d) If you have a covered employee who performs multi-DOT agency 
functions (e.g., an employee drives a commercial motor vehicle and 
performs pipeline maintenance duties for the same employer), count the 
employee only on the MIS report for the DOT agency under which he or 
she is randomly tested. Normally, this will be the DOT agency under 
which the employee performs more than 50% of his or her duties. 
Employers may have to explain the testing data for these employees in 
the event of a DOT agency inspection or audit.
    (e) A service agent (e.g., Consortia/Third party administrator as 
defined in 49 CFR 382.107) may prepare the MIS report on behalf of an 
employer. However, a company official (e.g., Designated employer 
representative) must certify the accuracy and completeness of the MIS 
report, no matter who prepares it.

    Dated: November 25, 2003.
Annette M. Sandberg,
Administrator, Federal Motor Carrier Safety Administration.

Federal Aviation Administration

FAA's Section-by-Section Discussion

14 CFR Part 121, Appendix I

II. Definitions
    The FAA has eliminated the definition for ``annualized rate'' 
because the definition is no longer necessary in light of the DOT's 
final rule. However, the definition for annualized rate had contained 
instructions to estimate the number of employees that must be tested 
during the calendar year based on the number of safety-sensitive 
employees as of the beginning of the calendar year. The DOT's final 
rule changed this method of calculation. Now, to determine how many 
employees to randomly test during the calendar year, the employer must 
use the average number of safety-sensitive employees instead of the 
number of employees as of the beginning of the calendar year. Because 
this change occurred during the 2003 calendar year, we recognize that 
employers may have difficulty estimating the number of safety-sensitive 
employees to be tested in 2003. Therefore, for the calendar year 2003 
only, employers may use the number of employees as of the beginning of 
the calendar year to determine the total number of safety-sensitive 
employees to be tested or the employers may use the averaging method 
described in this regulation and 49 CFR part 40. Beginning in 2004, the 
new methodology must be used by all employers.
    In addition, we have revised the definition of ``positive rate'' 
and changed the defined term to ``positive rate for random drug 
testing,'' for the reasons discussed in the DOT's General Discussion of 
Rule Changes.
V. Types of Drug Testing Required
    C. Random Testing. We revised paragraph 6 under the random testing 
section to make it clear to employers how to calculate whether they 
have met the minimum annual percentage rate under 49 CFR part 40. For 
the reasons explained in the DOT's General Discussion of Rule Changes, 
we inserted paragraph 6(b) to address the use of service agents to 
conduct random testing for employers. We added paragraphs 6(b)(1)-(2) 
to explain what annual percentage rate applies to pools created by 
service agents.
VI. Administrative and Other Matters
    F. DOT Management Information System Annual Reports. For 
consistency with 14 CFR part 121, appendix J, we have added this 
paragraph to make it clear that employers must keep copies of annual 
reports submitted to the FAA for a minimum of 5 years. This is not an 
additional record keeping requirement because the MIS reports were 
already required to be kept for 5 years under 14 CFR part 121, appendix 
J, section IV, A.2.(a)(1). Since the MIS reports for both drug and 
alcohol testing

[[Page 75460]]

have been combined, this addition is merely a reminder to employers of 
an existing obligation to retain the record.
X. Reporting of Antidrug Program Results
    We changed the title of this section to ``Annual Reports'' because 
the DOT's revisions to the MIS forms no longer require separate 
reporting of antidrug program results. The combined MIS form is now 
submitted for both drug and alcohol testing results.
    The basic requirements of when to submit annual reports and who 
must submit them remain unchanged in this section. However, most of 
section X has been eliminated because it prescribed the specifics of 
the contents of annual reports, all of which are now prescribed by 49 
CFR 40.26 and appendix H to 49 CFR part 40. For the reasons explained 
in the DOT's General Discussion of Rule Changes, we have adopted the 
DOT's language for submitting MIS reports and the role of service 
agents in those submissions.

14 CFR Part 121, Appendix J

I. General
    D. Definitions. We have revised the definition of ``violation 
rate'' and changed the defined term to ``violation rate for random 
alcohol testing,'' for the reasons discussed in the DOT's General 
Discussion of Rule Changes. Although there was no definition for 
``annualized percentage rate'' under this appendix, the reasoning 
provided in the preamble to appendix I applies to calculating the 
number of employees to be tested in calendar year 2003 for appendix J 
also.
II. Covered Employees
    In revising the annual reporting requirements of section IV.B., we 
decided to move former paragraph IV.B.2 to become a new paragraph under 
section II, which describes covered employees. Former paragraph IV.B.2 
reminded employers to identify employees who are performing safety-
sensitive functions under the regulations of more than one DOT agency. 
This is important because alcohol testing must be tied to the 
performance of safety-sensitive work. When the employer requires the 
employee to submit to an alcohol test, the employer must know what kind 
of safety-sensitive work the employee is performing and which DOT 
agency's testing regulations apply. In moving this paragraph to section 
II, we made minor editorial changes to the language and renumbered 
paragraphs accordingly.
III. Tests Required
    C. Random Testing. We revised paragraph 2 under the random testing 
section to change the phrase ``alcohol MIS reports'' to ``MIS 
reports.'' We made this change because the DOT's revisions to 49 CFR 
part 40 eliminated separate forms for alcohol testing results. There is 
now a combined form for reporting both drug and alcohol testing 
results.
    As we have done in appendix I, we revised paragraph 6 under this 
section to make it clear to employers how to calculate whether they 
have met the minimum annual percentage rate under the DOT's final rule. 
For the reasons explained in the DOT's General Discussion of Rule 
Changes, we inserted paragraph 6(b) to address the use of service 
agents to conduct random testing for employers. We added paragraphs 
6(b)(1)-(2), as we have done in appendix I, to explain what annual 
percentage rate applies to pools created by service agents.
IV. Handling of Test Results, Record Retention and Confidentiality
    B. Reporting of Results in a Management Information System. We 
changed the title of this section to ``Annual Reports'' for consistency 
with appendix I.
    The basic requirements of when to submit annual reports and who 
must submit them remain unchanged in this section. However, most of 
section IV has been eliminated because it prescribed the specifics of 
the contents of annual reports, all of which are now prescribed by 49 
CFR 40.26 and appendix H to 49 CFR part 40. For the reasons explained 
in the DOT's General Discussion of Rule Changes, we have adopted the 
DOT's language for submitting MIS reports and the role of service 
agents in those submissions.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
reviewed the corresponding ICAO Standards and Recommended Practices and 
has identified no differences with these regulations.

List of Subjects in 14 CFR Part 121

    Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety, 
Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping 
requirements, Safety, Transportation.

14 CFR Chapter I

Authority and Issuance

0
For reasons set forth in the preamble, the Federal Aviation 
Administration amends part 121 of title 14, Code of Federal 
Regulations, as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL 
OPERATIONS

0
1. The authority citation for 14 CFR part 121 is revised to read as 
follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105, 46301.


0
2. Amend appendix I to part 121 as follows:
0
A. In section II., remove the definition of Annualized rate; remove the 
definition of Positive rate and add a new definition in its place;
0
B. In section V., revise paragraph C.6;
0
C. In section VI., add paragraph F;
0
D. In section X., revise section heading, revise paragraphs A 
introductory text and A.2, revise paragraph B, remove paragraphs C, D, 
E, F, add new paragraph C.
    The revisions and additions read as follows:

Appendix I to Part 121--Drug Testing Program

* * * * *

II. Definitions * * *

* * * * *
    Positive rate for random drug testing means the number of 
verified positive results for random drug tests conducted under this 
appendix plus the number of refusals of random drug tests required 
by this appendix, divided by the total number of random drug test 
results (i.e., positives, negatives, and refusals) under this 
appendix.
* * * * *

V. Types of Drug Testing Required * * *

* * * * *

C. Random Testing.

* * * * *
    6. As an employer, you must select and test a percentage of 
employees at least equal to the minimum annual percentage rate each 
year.
    (a) As an employer, to determine whether you have met the 
minimum annual percentage rate, you must divide the number of random 
testing results for safety-sensitive employees by the average number 
of safety-sensitive employees eligible for random testing.
    (1) To calculate whether you have met the annual minimum 
percentage rate, count all random positives, random negatives, and 
random refusals as your ``random testing results.''
    (2) To calculate the average number of safety-sensitive 
employees eligible for

[[Page 75461]]

random testing throughout the year, add the total number of safety-
sensitive employees eligible for testing during each random testing 
period for the year and divide that total by the number of random 
testing periods. Only safety-sensitive employees are to be in an 
employer's random testing pool, and all safety-sensitive employees 
must be in the random pool. If you are an employer conducting random 
testing more often than once per month (e.g., you select daily, 
weekly, bi-weekly) you do not need to compute this total number of 
safety-sensitive employees more than on a once per month basis.
    (b) As an employer, you may use a service agent to perform 
random selections for you, and your safety-sensitive employees may 
be part of a larger random testing pool of safety-sensitive 
employees. However, you must ensure that the service agent you use 
is testing at the appropriate percentage established for your 
industry and that only safety-sensitive employees are in the random 
testing pool. For example:
    (1) If the service agent has your employees in a random testing 
pool for your company alone, you must ensure that the testing is 
conducted at least at the minimum annual percentage rate under this 
part.
    (2) If the service agent has your employees in a random testing 
pool combined with other FAA-regulated companies, you must ensure 
that the testing is conducted at least at the minimum annual 
percentage rate under this part.
    (3) If the service agent has your employees in a random testing 
pool combined with other DOT-regulated companies, you must ensure 
that the testing is conducted at least at the highest rate required 
for any DOT-regulated company in the pool.
* * * * *

VI. Administrative and Other Matters * * *

* * * * *
    F. DOT Management Information System Annual Reports. Copies of 
any annual reports submitted to the FAA under this appendix must be 
maintained by the employer for a minimum of 5 years.
* * * * *

X. Annual Reports.

    A. Annual reports of testing results must be submitted to the 
FAA by March 15 of the succeeding calendar year for the prior 
calendar year (January 1 through December 31) in accordance with the 
provisions below.
* * * * *
    2. Each entity conducting an antidrug program under this part, 
other than a part 121 certificate holder, that has 50 or more 
employees performing a safety-sensitive function on January 1 of any 
calendar year shall submit an annual report to the FAA for that 
calendar year.
* * * * *
    B. As an employer, you must use the Management Information 
System (MIS) form and instructions as required by 49 CFR part 40 (at 
49 CFR 40.26 and appendix H to 49 CFR part 40). You may also use the 
electronic version of the MIS form provided by DOT. The 
Administrator may designate means (e.g., electronic program 
transmitted via the Internet) other than hard-copy, for MIS form 
submission. For information on where to submit MIS forms and for the 
electronic version of the form, see: http://www.faa.gov/avr/aam/adap.
    C. A service agent may prepare the MIS report on behalf of an 
employer. However, a company official (e.g., Designated Employer 
Representative as defined in 49 CFR part 40) must certify the 
accuracy and completeness of the MIS report, no matter who prepares 
it.
* * * * *


0
3. Amend appendix J to part 121 as follows:
0
A. In section I.D, remove the definition of Violation rate and add a 
definition in its place;
0
B. Revise section II;
0
C. In section III.C, revise paragraphs C.2 and C.6;
0
D. Revise section IV.B.
    The revisions and additions read as follows:

Appendix J to Part 121--Alcohol Misuse Prevention Program

* * * * *

I. General * * *

* * * * *

D. Definitions

* * * * *
    Violation rate for random alcohol testing means the number of 
0.04 and above random alcohol confirmation test results conducted 
under this appendix plus the number of refusals of random alcohol 
tests required by this appendix, divided by the total number of 
random alcohol screening tests (including refusals) conducted under 
this appendix.
* * * * *

II. Covered Employees

    A. Each employee who performs a function listed in this section 
directly or by contract for an employer as defined in this appendix 
must be subject to alcohol testing under an FAA-approved alcohol 
misuse prevention program implemented in accordance with this 
appendix. The covered safety-sensitive functions are:
    1. Flight crewmember duties.
    2. Flight attendant duties.
    3. Flight instruction duties.
    4. Aircraft dispatcher duties.
    5. Aircraft maintenance or preventive maintenance duties.
    6. Ground security coordinator duties.
    7. Aviation screening duties.
    8. Air traffic control duties.
    B. Each employer must identify any employee who is subject to 
the alcohol testing regulations of more than one DOT agency. Prior 
to conducting any alcohol test on a covered employee subject to the 
alcohol testing regulations of more than one DOT agency, the 
employer must determine which DOT agency authorizes or requires the 
test.

III. Tests Required * * *

* * * * *

C. Random Testing

* * * * *
    2. The Administrator's decision to increase or decrease the 
minimum annual percentage rate for random alcohol testing is based 
on the violation rate for the entire industry. All information used 
for this determination is drawn from MIS reports required by this 
appendix. In order to ensure reliability of the data, the 
Administrator considers the quality and completeness of the reported 
data, may obtain additional information or reports from employers, 
and may make appropriate modifications in calculating the industry 
violation rate. Each year, the Administrator will publish in the 
Federal Register the minimum annual percentage rate for random 
alcohol testing of covered employees. The new minimum annual 
percentage rate for random alcohol testing will be applicable 
starting January 1 of the calendar year following publication.
* * * * *
    6. As an employer, you must select and test a percentage of 
employees at least equal to the minimum annual percentage rate each 
year.
    (a) As an employer, to determine whether you have met the 
minimum annual percentage rate, you must divide the number of random 
alcohol screening test results for safety-sensitive employees by the 
average number of safety-sensitive employees eligible for random 
testing.
    (1) To calculate whether you have met the annual minimum 
percentage rate, count all random screening test results below 0.02 
breath alcohol concentration, random screening test results of 0.02 
or greater breath alcohol concentration, and random refusals as your 
``random alcohol screening test results.''
    (2) To calculate the average number of safety-sensitive 
employees eligible for random testing throughout the year, add the 
total number of safety-sensitive employees eligible for testing 
during each random testing period for the year and divide that total 
by the number of random testing periods. Only safety-sensitive 
employees are to be in an employer's random testing pool, and all 
safety-sensitive employees must be in the random pool. If you are an 
employer conducting random testing more often than once per month 
(e.g., you select daily, weekly, bi-weekly) you do not need to 
compute this total number of safety-sensitive employees more than on 
a once per month basis.
    (b) As an employer, you may use a service agent to perform 
random selections for you, and your safety-sensitive employees may 
be part of a larger random testing pool of safety-sensitive 
employees. However, you must ensure that the service agent you use 
is testing at the appropriate percentage established for your 
industry and that only safety-sensitive employees are in the random 
testing pool. For example:
    (1) If the service agent has your employees in a random testing 
pool for your company alone, you must ensure that the testing is 
conducted at least at the minimum annual percentage rate under this 
part.
    (2) If the service agent has your employees in a random testing 
pool combined with other FAA-regulated companies, you must ensure 
that the testing is conducted at least

[[Page 75462]]

at the minimum annual percentage rate under this part.
    (3) If the service agent has your employees in a random testing 
pool combined with other DOT-regulated companies, you must ensure 
that the testing is conducted at least at the highest rate required 
for any DOT-regulated company in the pool.
* * * * *

IV. Handling of Test Results, Record Retention, and Confidentiality 
* * *

* * * * *

B. Reporting of Results in a Management Information System

    1. Annual reports of alcohol misuse prevention program results 
must be submitted to the FAA by March 15 of the succeeding calendar 
year for the prior calendar year (January 1 through December 31) in 
accordance with the provisions below.
    (a) Each part 121 certificate holder shall submit an annual 
report each year.
    (b) Each entity conducting an alcohol misuse prevention program 
under this part, other than a part 121 certificate holder, that has 
50 or more employees performing a safety-sensitive function on 
January 1 of any calendar year shall submit an annual report to the 
FAA for that calendar year.
    (c) The Administrator reserves the right to require that 
aviation employers not otherwise required to submit annual reports 
prepare and submit such reports to the FAA. Employers that will be 
required to submit annual reports under this provision will be 
notified in writing by the FAA.
    2. As an employer, you must use the Management Information 
System (MIS) form and instructions as required by 49 CFR part 40 (at 
49 CFR 40.26 and appendix H to 49 CFR part 40). You may also use the 
electronic version of the MIS form provided by the DOT. The 
Administrator may designate means (e.g., electronic program 
transmitted via the Internet) other than hard-copy, for MIS form 
submission. For information on where to submit MIS forms and for the 
electronic version of the form, see: http://www.faa.gov/avr/aam/adap.
    3. A service agent may prepare the MIS report on behalf of an 
employer. However, a company official (e.g., Designated Employer 
Representative as defined in 49 CFR part 40) must certify the 
accuracy and completeness of the MIS report, no matter who prepares 
it.
* * * * *


    Dated: November 25, 2003.
Marion C. Blakey,
Administrator, Federal Aviation Administration.

Federal Transit Administration

List of Subjects in 49 CFR Part 655

    Alcohol abuse, Drug testing, Grant programs--transportation, Mass 
transportation, Reporting and recordkeeping requirements, Safety, 
Transportation.

49 CFR Chapter VI

Authority and Issuance

0
For reasons set forth in the preamble, the Federal Transit 
Administration amends part 655 of title 49, Code of Federal 
Regulations, as follows:

PART 655--PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN 
TRANSIT OPERATIONS

0
1. The authority citation for 49 CFR part 655 continues to read as 
follows:


    Authority: 49 U.S.C. 5331; 49 CFR 1.51.

0
2. In Sec.  655.4, remove the definitions of ``positive rate'' and 
``violation rate'' and add the following definitions in their place to 
read as follows:


Sec.  655.4  Definitions.

* * * * *
    Positive rate for random drug testing means the number of verified 
positive results for random drug tests conducted under this part plus 
the number of refusals of random drug tests required by this part, 
divided by the total number of random drug tests results (i.e., 
positive, negative, and refusals) under this part.
* * * * *
    Violation rate for random alcohol testing means the number of 0.04 
and above random alcohol confirmation test results conducted under this 
part plus the number of refusals of random alcohol tests required by 
this part, divided by the total number of alcohol random screening 
tests (including refusals) conducted under this part.
* * * * *

0
3. Revise Sec.  655.72(d) through (g) to read as follows:


Sec.  655.72  Reporting of results in a Management Information System.

* * * * *
    (d) As an employer, you must use the Management Information System 
(MIS) form and instructions as required by 49 CFR part 40, Sec.  40.25 
and appendix H. You may also use the electronic version of the MIS form 
provided by the DOT. The Administrator may designate means (e.g., 
electronic program transmitted via the Internet), other than hard-copy, 
for MIS form submission. For information on where to submit MIS forms 
and for the electronic version of the form, see: http://transit-safety.volpe.dot.gov\DAMIS.
    (e) To calculate the total number of covered employees eligible for 
random testing throughout the year, as an employer, you must add the 
total number of covered employees eligible for testing during each 
random testing period for the year and divide that total by the number 
of random testing periods. Covered employees, and only covered 
employees, are to be in an employer's random testing pool, and all 
covered employees must be in the random pool. If you are an employer 
conducting random testing more often than once per month (e.g., you 
select daily, weekly, bi-weekly), you do not need to compute this total 
number of covered employees rate more than on a once per month basis. 
As an employer, you may use a service agent (e.g., C/TPA) to perform 
random selections for you; and your covered employees may be part of a 
larger random testing pool of covered employees. However, you must 
ensure that the service agent you use is testing at the appropriate 
percentage established for your industry and that only covered 
employees are in the random testing pool.
    (f) If you have a covered employee who performs multi-DOT agency 
functions (e.g., an employee drives a paratransit vehicle and performs 
pipeline maintenance duties for you), count the employee only on the 
MIS report for the DOT agency under which he or she is random tested. 
Normally, this will be the DOT agency under which the employee performs 
more than 50% of his or her duties. Employers may have to explain the 
testing data for these employees in the event of a DOT agency 
inspection or audit.
    (g) A service agent (e.g., Consortia/Third Party Administrator as 
defined in 49 CFR part 40) may prepare the MIS report on behalf of an 
employer. However, a company official (e.g., Designated Employer 
Representative as defined in 49 CFR part 40) must certify the accuracy 
and completeness of the MIS report, no matter who prepares it.

Appendices A Through D [Removed]

0
4. Remove Appendices A through D to part 655.

    Dated: November 21, 2003.
Jennifer L. Dorn,
Administrator, Federal Transit Administration.

Federal Railroad Administration

Section-by-Section Analysis

Section 219.5 Definitions

    Positive rate for random drug testing. A standardized DOT 
definition replaces the previous FRA definition of ``positive rate.''
    Violation rate for random testing. A standardized DOT definition 
replaces the previous FRA definition of ``violation rate.''

[[Page 75463]]

Section 219.601 Railroad Random Drug Testing Programs

Paragraph (b)(2)(ii) Form of Programs
    FRA amends this paragraph to conform with the Department's new 
directions on how to calculate the number of covered employees eligible 
for random testing. An employer or service agent acting on the 
employer's behalf (e.g., a consortium or third party administrator) 
must recalculate this number for each random testing period to take 
into account seasonal or other fluctuations in the number of employees 
it has throughout the year. An employer had previously been allowed to 
calculate this number only once per year based on the number of 
employees it had at the beginning of the year.

Section 219.602 Administrator's Determination of Railroad Drug Testing 
Rate

Paragraphs (c) and (d)
    FRA is revising these paragraphs to replace the references to Sec.  
219.803, which contained agency-specific railroad reporting 
requirements, with references to new Sec.  219.800, which incorporates 
by reference the standardized and simplified DOT reporting requirements 
found in Sec.  40.25 and in appendix H to part 40. Section 219.803 is 
removed and reserved.

Section 219.607 Railroad Random Alcohol Testing Programs

Subparagraph (b)(1) Form of Programs
    As with Sec.  219.601 discussed above, FRA revises this 
subparagraph to conform with the Department's new directions on how to 
calculate the number of covered employees eligible for random testing.
Subparagraph (b)(1)(i)
    As with Sec.  219.601 discussed above, FRA adds this new 
subparagraph to address the increasing use of service agents to perform 
random drug testing selections.

Section 219.608 Administrator's Determination of Railroad Alcohol 
Testing Rate

Paragraphs (c) and (d)
    FRA is revising these paragraphs to replace the references to Sec.  
219.801, which contained agency-specific railroad reporting 
requirements, with references to new Sec.  219.800, which incorporates 
by reference the standardized and simplified DOT reporting requirements 
found in Sec.  40.25 and in appendix H to part 40. Section 219.801 is 
removed and reserved.

Section 219.800 Annual Reports

Paragraph (a)
    As explained above, FRA is streamlining its MIS system by combining 
the annual reporting requirements formerly contained in Sec. Sec.  
219.801 and 219.803 into one section. This paragraph, which defines who 
must file an annual report, adopts the language formerly found in 
paragraph (a) of each of those sections.
Paragraphs (b)-(e)
    Paragraph (b) incorporates part 40's forms and instructions by 
reference. Paragraphs (c)-(e) add standardized instructions on 
electronic reporting, reporting of multi-modal employee results, and 
reporting by service agents.

Section 219.801 Reporting Alcohol Misuse Program Results in a 
Management Information System

    As explained above, this section is removed and reserved. The FRA-
specific reporting requirements formerly contained in this section are 
removed and replaced by those contained in new Sec.  219.800.

Section 219.803 Reporting Alcohol Misuse Program Results in a 
Management Information System

    As explained above, this section is removed and reserved. The FRA-
specific reporting requirements formerly contained in this section are 
removed and replaced by those contained in new Sec.  219.800.

Federal Railroad Administration

List of Subjects in 49 CFR Part 219

    Alcohol abuse, Drug abuse, Drug testing, Penalties, Railroad 
safety, Reporting and recordkeeping requirements, Safety, 
Transportation.

49 CFR Chapter II

Authority and Issuance

0
For reasons set forth in the preamble, the Federal Railroad 
Administration amends part 219 of title 49, Code of Federal 
Regulations, as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

0
1. The authority citation for 49 CFR part 219 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311, 
28 U.S.C. 2461, note; and 49 CFR 1.49(m).


0
2. In Sec.  219.5, the definitions of ``positive rate'' and ``violation 
rate'' are removed and the following definitions are added in their 
place to read as follows:


Sec.  219.5  Definitions.

* * * * *
    Positive rate for random drug testing means the number of verified 
positive results for random drug tests conducted under this part plus 
the number of refusals of random drug tests required by this part, 
divided by the total number of random drug tests results (i.e., 
positives, negatives, and refusals) under this part.
* * * * *
    Violation rate for random alcohol testing means the number of 0.04 
and above random alcohol confirmation test results conducted under this 
part plus the number of refusals of random alcohol tests required by 
this part, divided by the total number of random alcohol screening 
tests (including refusals) conducted under this part.
* * * * *

0
3. Section 219.601 is amended by revising paragraph (b)(2)(ii) and 
adding paragraph (b)(2)(iii) to read as follows:


Sec.  219.601  Railroad random drug testing programs.

* * * * *
    (b) * * *
    (2) * * *
    (ii) To calculate the total number of covered employees eligible 
for random testing throughout the year, as a railroad, you must add the 
total number of covered employees eligible for testing during each 
random testing period for the year and divide that total by the number 
of random testing periods. Covered employees, and only covered 
employees, are to be in a railroad's random testing pool, and all 
covered employees must be in the random pool. If you are a railroad 
conducting random testing more often than once per month (e.g., you 
select daily, weekly, bi-weekly), you do not need to compute this total 
number of covered employees rate more than on a once per month basis.
    (iii) As a railroad, you may use a service agent (e.g., C/TPA) to 
perform random selections for you, and your covered employees may be 
part of a larger random testing pool of covered employees. However, you 
must ensure that the service agent you use is testing at the 
appropriate percentage established for your industry and that only 
covered employees are in the random testing pool.
* * * * *

0
4. Section 219.602 is amended by revising paragraphs (c) and (d) to 
read as follows:


Sec.  219.602  Administrator's determination of random drug testing 
rate.

* * * * *

[[Page 75464]]

    (c) When the minimum annual percentage rate for random drug testing 
is 50 percent, the Administrator may lower this rate to 25 percent of 
all covered employees if the Administrator determines that the data 
received under the reporting requirements of Sec.  219.800 for two 
consecutive calendar years indicate that the reported positive rate is 
less than 1.0 percent.
    (d) When the minimum annual percentage rate for random drug testing 
is 25 percent, and the data received under the reporting requirements 
of Sec.  219.800 for any calendar year indicate that the reported 
positive rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random drug testing to 50 percent of all covered employees.
* * * * *

0
5. Section 219.607 is amended by revising paragraph (b)(1) to read as 
follows:


Sec.  219.607  Railroad random alcohol testing programs.

* * * * *
    (b) * * *
    (1) As a railroad, to calculate the total number of covered 
employees eligible for random testing throughout the year, you must add 
the total number of covered employees eligible for testing during each 
random testing period for the year and divide that total by the number 
of random testing periods. Covered employees, and only covered 
employees, are to be in a railroad's random testing pool, and all 
covered employees must be in the random pool. If you are a railroad 
conducting random testing more often than once per month (e.g., you 
select daily, weekly, bi-weekly), you do not need to compute this total 
number of covered employees rate more than on a once per month basis.
    (i) As a railroad, you may use a service agent (e.g., C/TPA) to 
perform random selections for you, and your covered employees may be 
part of a larger random testing pool of covered employees. However, you 
must ensure that the service agent you use is testing at the 
appropriate percentage established for your industry and that only 
covered employees are in the random testing pool.
    (ii) [Reserved]
* * * * *

0
6. Section 219.608 is amended by revising paragraphs (c) and (d) to 
read as follows:


Sec.  219.608  FRA Administrator's determination of random alcohol 
testing rate.

* * * * *
    (c)(1) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or more, the Administrator may lower this rate to 
10 percent of all covered employees if the Administrator determines 
that the data received under the reporting requirements of Sec.  
219.800 for two consecutive calendar years indicate that the violation 
rate is less than 0.5 percent.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 50 percent, the Administrator may lower this rate to 25 
percent of all covered employees if the Administrator determines that 
the data received under the reporting requirements of Sec.  219.800 for 
two consecutive calendar years indicate that the violation rate is less 
than 1.0 percent but equal to or greater than 0.5 percent.
    (d)(1) When the minimum annual percentage rate for random alcohol 
testing is 10 percent, and the data received under the reporting 
requirements of Sec.  219.800 for that calendar year indicate that the 
violation rate is equal to or greater than 0.5 percent, but less than 
1.0 percent, the Administrator will increase the minimum annual 
percentage rate for random alcohol testing to 25 percent of all covered 
employees.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or less, and the data received under the 
reporting requirements of Sec.  219.800 for any calendar year indicate 
that the violation rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random alcohol testing to 50 percent of all covered employees.
* * * * *

0
7. Section 219.800 is added to subpart I to read as follows:


Sec.  219.800  Annual reports.

    (a) Each railroad that has 400,000 or more total manhours shall 
submit to FRA by March 15 of each year a report covering the previous 
calendar year (January 1-December 31), summarizing the results of its 
alcohol and drug misuse prevention program. As used in this paragraph, 
the term ``employees of the railroad'' includes individuals who perform 
service for the railroad, including not only individuals who receive 
direct monetary compensation from the railroad for performing a service 
for the railroad, but also such individuals as employees of a 
contractor to the railroad who perform a service for the railroad.
    (b) As a railroad, you must use the Management Information System 
(MIS) form and instructions as required by 49 CFR part 40 (at Sec.  
40.25 and appendix H to part 40). You may also use the electronic 
version of the MIS form provided by the DOT. The Administrator may 
designate means (e.g., electronic program transmitted via the 
Internet), other than hard-copy, for MIS form submission to FRA. For 
information on where to submit MIS forms and for the electronic version 
of the form, see: http://www.fra.dot.gov/Content3.asp?P=504.
    (c) Each railroad shall ensure the accuracy and timeliness of each 
report submitted.
    (d) As a railroad, if you have a covered employee who performs 
multi-DOT agency functions (e.g., an employee drives a commercial motor 
vehicle and performs switchman duties for you), count the employee only 
on the MIS report for the DOT agency under which he or she is random 
tested. Normally, this will be the DOT agency under which the employee 
performs more than 50% of his or her duties. Railroads may have to 
explain the testing data for these employees in the event of a DOT 
agency inspection or audit.
    (e) A service agent (e.g., a consortium/third party administrator) 
may prepare the MIS report on behalf of a railroad. However, a railroad 
official (e.g., a designated employee representative) must certify the 
accuracy and completeness of the MIS report, no matter who prepares it.


Sec. Sec.  219.801 and 219.803  [Removed and Reserved]

0
8. Sections 219.801 and 219.803 are removed and reserved.

    Dated: November 20, 2003.
Allan Rutter,
Federal Railroad Administration.

Research and Special Programs Administration

Section-by-Section Discussion of Rule Changes for RSPA

    RSPA has amended several sections of 49 CFR part 199 to conform to 
49 CFR part 40 Procedures for Transportation Workplace Drug and Alcohol 
Testing Programs: Drug and Alcohol Management Information System 
Reporting final rule. The specific changes to the regulatory text in 
part 199 are described below.

[[Page 75465]]

Section 199.3 Definitions

    The definition for ``positive rate'' for random drug testing is 
being modified in Sec.  199.3 in order to be consistent with the 
standardized DOT definition.

Section 199.117 Recordkeeping

    Subparagraph (a)(2) of Sec.  199.117 has been revised to include a 
requirement to maintain MIS drug testing data for 5 years to parallel 
the requirement for maintaining MIS alcohol testing data at Sec.  
199.227(b)(1). Subparagraphs (a)(2)(i)(ii)(iii) and (4) of Sec.  
199.117 have been removed because the retention of the data previously 
required by these paragraphs will be captured in the MIS data retention 
requirement. Subparagraph (5) of Sec.  199.117 has been redesignated as 
subparagraph (4).

Section 199.119 Reporting of Anti-Drug Testing Results

    Paragraph (a) of Sec.  199.119 has been revised to require use of 
the new Management Information System (MIS) form and instructions 
required by part 40. Paragraph (b) of Sec.  199.119 has been revised to 
include electronic submission of drug testing MIS reports and correct 
the room number for submitting paper versions of these reports. 
Paragraph (c) of Sec.  199.119 has been revised to be consistent with 
part 40 on how operators are to determine the number of covered 
employees eligible for random drug testing. Paragraph (d) of Sec.  
199.119 has been revised to specify an operator's responsibility when 
using a service agent to perform random selections. Paragraph (e) of 
Sec.  199.119 has been revised to provide instructions on how to report 
random drug testing MIS data for employees covered by more than one DOT 
agency, consistent with part 40. Paragraph (f) of Sec.  199.119 has 
been revised to specify who may prepare drug testing MIS reports.

Section 199.229--Reporting of Alcohol Testing Results

    Paragraph (a) of Sec.  199.229 has been revised to require use of 
the new Management Information System (MIS) form and instructions 
required by part 40. Paragraph (b) of Sec.  199.229 has been revised to 
provide instructions on how to report alcohol testing MIS data for 
employees covered by more than one DOT agency, consistent with part 40. 
Paragraph (c) of Sec.  199.229 has been revised to include electronic 
submission of alcohol testing MIS reports and correct the room number 
for submitting paper versions of these reports. Former paragraph (d) 
and subparagraphs (d)(1)(2)(3)(i)(ii)(4)(5)(6)(7)(8)(9)(10) of Sec.  
199.229 have been removed because RSPA now requires use of the part 40 
MIS form and the instructions for this form specify the data elements 
to be reported. Former paragraph (e) and subparagraphs 
(e)(1)(2)(3)(4)(5) of Sec.  199.229 have been removed because the 
instructions for the MIS form in part 40 specify the data elements to 
be reported. Former paragraph (f) of Sec.  199.229 permitting 
consortium to prepare MIS reports has been re-designated as paragraph 
(d) and revised to include service agents and third party 
administrators as defined in part 40.

List of Subjects in 49 CFR Part 199

    Alcohol testing, Drug testing, Operators, Pipeline safety, 
Recordkeeping and reporting.

49 CFR Chapter I

Authority and Issuance

0
For reasons discussed in the preamble, the Research and Special 
Programs Administration amends part 199 of title 49, Code of Federal 
Regulations, as follows:

PART 199--DRUG AND ALCOHOL TESTING

0
1. The citation of authority for 49 CFR part 199 continues to read as 
follows:

    Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60117, and 
60118; 49 CFR 1.53.


0
2. Amend Sec.  199.3 by removing the definition for ``positive rate'' 
and adding the following definition in its place to read as follows:


Sec.  199.3  Definitions.

* * * * *
    Positive rate for random drug testing means the number of verified 
positive results for random drug tests conducted under this part plus 
the number of refusals of random drug tests required by this part, 
divided by the total number of random drug tests results (i.e., 
positives, negatives, and refusals) under this part.
* * * * *

0
3. Amend Sec.  199.117 by revising paragraph (a)(2), removing paragraph 
(a)(4) and redesignating paragraph (a)(5) as paragraph (a)(4) and 
revising it to read as follows:


Sec.  199.117  Recordkeeping.

* * * * *
    (a) * * *
    (2) Records of employee drug test that indicate a verified positive 
result, records that demonstrate compliance with the recommendations of 
a substance abuse professional, and MIS annual report data shall be 
maintained for a minimum of five years.
* * * * *
    (4) Records confirming that supervisors and employees have been 
trained as required by this part must be kept for at least 3 years.
* * * * *

0
4. Revise Sec.  199.119 to read as follows:


Sec.  199.119  Reporting of anti-drug testing results.

    (a) Each large operator (having more than 50 covered employees) 
shall submit an annual MIS report to RSPA of its anti-drug testing 
using the Management Information System (MIS) form and instructions as 
required by 49 CFR part 40 (at Sec.  40.25 and appendix H to Part 40), 
not later than March 15 of each year for the prior calendar year 
(January 1 through December 31). The Administrator shall require by 
written notice that small operators (50 or fewer covered employees) not 
otherwise required to submit annual MIS reports to prepare and submit 
such reports to RSPA.
    (b) Each report, required under this section, shall be submitted to 
the Office of Pipeline Safety Compliance (OPS), Research and Special 
Programs Administration, Department of Transportation, room 2103, 400 
Seventh Street, SW., Washington, DC 20590. The operator may submit a 
paper report or data electronically using the version of the MIS form 
provided by DOT. This electronic version of the form can be accessed 
via the Internet at the following Office of Pipeline Safety web 
address: http://ops.dot.gov/drug.htm.
    (c) To calculate the total number of covered employees eligible for 
random testing throughout the year, as an operator, you must add the 
total number of covered employees eligible for testing during each 
random testing period for the year and divide that total by the number 
of random testing periods. Covered employees, and only covered 
employees, are to be in an employer's random testing pool, and all 
covered employees must be in the random pool. If you are an employer 
conducting random testing more often than once per month (e.g., you 
select daily, weekly, bi-weekly), you do not need to compute this total 
number of covered employees rate more than on a once per month basis.
    (d) As an employer, you may use a service agent (e.g., C/TPA) to 
perform random selections for you; and your covered employees may be 
part of a larger random testing pool of covered employees. However, you 
must ensure that the service agent you use is testing at the 
appropriate percentage established for your industry and that only 
covered employees are in the random testing pool.

[[Page 75466]]

    (e) Each operator that has a covered employee who performs multi-
DOT agency functions (e.g., an employee performs pipeline maintenance 
duties and drives a commercial motor vehicle), count the employee only 
on the MIS report for the DOT agency under which he or she is randomly 
tested. Normally, this will be the DOT agency under which the employee 
performs more than 50% of his or her duties. Operators may have to 
explain the testing data for these employees in the event of a DOT 
agency inspection or audit.
    (f) A service agent (e.g., Consortia/Third Party Administrator as 
defined in 49 CFR part 40) may prepare the MIS report on behalf of an 
operator. However, each report shall be certified by the operator's 
anti-drug manager or designated representative for accuracy and 
completeness.

0
5. Revise Sec.  199.229 to read as follows:


Sec.  199.229  Reporting of alcohol testing results.

    (a) Each large operator (having more than 50 covered employees) 
shall submit an annual MIS report to RSPA of its alcohol testing 
results using the Management Information System (MIS) form and 
instructions as required by 49 CFR part 40 (at Sec.  40.25 and appendix 
H to part 40), not later than March 15 of each year for the previous 
calendar year (January 1 through December 31). The Administrator may 
require by written notice that small operators (50 or fewer covered 
employees) not otherwise required to submit annual MIS reports to 
prepare and submit such reports to RSPA.
    (b) Each operator that has a covered employee who performs multi-
DOT agency functions (e.g., an employee performs pipeline maintenance 
duties and drives a commercial motor vehicle), count the employee only 
on the MIS report for the DOT agency under which he or she is tested. 
Normally, this will be the DOT agency under which the employee performs 
more than 50% of his or her duties. Operators may have to explain the 
testing data for these employees in the event of a DOT agency 
inspection or audit.
    (c) Each report, required under this section, shall be submitted to 
the Office of Pipeline Safety Compliance (OPS), Research and Special 
Programs Administration, Department of Transportation, room 2103, 400 
Seventh Street, SW., Washington, DC 20590. The operator may report data 
electronically using the version of the MIS form provided by DOT. This 
form can be accessed via the Internet at the following Office of 
Pipeline Safety web address: http://ops.dot.gov/drug.htm.
    (d) A service agent (e.g., Consortia/Third Party Administrator as 
defined in part 40) may prepare the MIS report on behalf of an 
operator. However, each report shall be certified by the operator's 
anti-drug manager or designated representative for accuracy and 
completeness.

    Dated: December 11, 2003.
Samuel G. Bonasso,
Acting Administrator, Research and Special Programs Administration.
[FR Doc. 03-31887 Filed 12-30-03; 8:45 am]
BILLING CODE 4910-62-P