[Federal Register Volume 87, Number 125 (Thursday, June 30, 2022)]
[Proposed Rules]
[Pages 39039-39043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13985]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket DOT-OST-2022-0037]


Department of Transportation Drug and Alcohol Testing Data

AGENCY: Office of the Secretary, Transportation (DOT).

ACTION: Request for information.

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SUMMARY: In March 2021, the Government Accountability Office (GAO) 
published a report titled ``DOT Has Taken Steps to Verify and Publicize 
Drug and Alcohol Testing Data but Should Do More.'' The report examines 
how the Department of Transportation (DOT) uses drug and alcohol 
testing data, how DOT verifies that data are reliable, and whether DOT 
follows key actions for transparently reporting drug and alcohol 
testing data. The drug and alcohol testing data are primarily used by 
the DOT modal administrations and the United States Coast Guard (USCG) 
to determine the random testing rate(s) for safety-sensitive employees 
in each industry each year. In response to a recommendation from the 
GAO Report, DOT requests information from potential users in the public 
to determine if there is a broader audience for the public data, 
consistent with key actions for open government data.

DATES: Comments on this notice must be received on or before August 1, 
2022.

ADDRESSES: You may submit comments identified by Docket Number DOT-OST-
2022-0037 using any of the following methods:
     Federal eRulemaking Portal: Go to https://
www.regulations.gov/docket/

[[Page 39040]]

DOT-OST-2022-0037/document. Follow the online instructions for 
submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. 
and 5 p.m. ET, Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    To avoid duplication, please use only one of these methods. See the 
``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments, including collection of information comments for the Office 
of Information and Regulatory Affairs, OMB.

FOR FURTHER INFORMATION CONTACT: Mike Huntley, Office of Drug and 
Alcohol Policy and Compliance, 1200 New Jersey Avenue SE, Washington, 
DC 20590; telephone number 202-366-3784; [email protected]. If you 
have questions on viewing or submitting material to the docket, contact 
Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Background

DOT Drug and Alcohol Testing Program Overview

    Safety is the top priority of DOT. A cornerstone of our safety 
policy is ensuring that transportation providers across all modes--on 
roads, rails, water, or in the air, over land and underground--employ 
operators who do not use illicit drugs or misuse alcohol. The 
Department works towards deterring the use of illicit drugs and the 
misuse of alcohol in the transportation industries, and creating 
prevention and treatment opportunities for transportation employers and 
employees.
    Since 1988, DOT has regulated the process by which employers in the 
different transportation industries (aviation, trucking, rail, transit, 
pipeline, and maritime) must test their employees for drug and alcohol 
use. Nearly 6 million people performing safety sensitive transportation 
jobs are covered by the DOT drug and alcohol regulations, including 
pilots and flight attendants, truck drivers, subway operators, ship 
captains, pipeline controllers, aircraft mechanics, locomotive 
engineers, bus drivers, and others. The DOT regulations govern the drug 
and alcohol testing process for pre-employment, random, post-accident, 
reasonable suspicion/cause, and required testing after an employee 
returns to work after failing or refusing a test. More than 6 million 
drug and alcohol tests are conducted each year under the DOT program.

History of DOT Drug and Alcohol Testing Program

    DOT first published its drug testing procedures regulation, 49 CFR 
part 40 (``part 40''), on November 21, 1988 (53 FR 47002) as an interim 
final rule. The rule was based on the Department of Health and Human 
Services (HHS) guidelines for Federal agency employee drug testing (53 
FR 11790; April 11, 1988), with some changes to fit the transportation 
workplace. DOT published a final rule responding to comments on the 
interim rule a year later (54 FR 49854; December 1, 1989), that 
included, among other things, a provision for a 5-panel drug test for 
cocaine, marijuana, phencyclidine, amphetamines, and opiates.
    Under the Omnibus Transportation Employee Testing Act (OTETA) of 
1991, codified at 49 U.S.C. 45102 and 45104 (aviation industry 
testing), 49 U.S.C. 20140 (rail), 49 U.S.C. 31306 (motor carrier), and 
49 U.S.C. 5331 (transit), DOT was required to implement alcohol testing 
programs in various transportation industries.\1\ In response to OTETA, 
DOT added alcohol testing procedures to part 40 in a final rule 
published on February 15, 1994 (59 FR 7340).
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    \1\ OTETA also directed other changes to DOT's substance abuse-
related programs for most transportation industries that the 
Department regulates. With respect to drug testing procedures, the 
Act added a requirement for using the ``split sample'' approach to 
testing which Congress believed would provide an additional 
safeguard for employees.
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    While there have been periodic updates to part 40 over the years, 
the DOT drug and alcohol testing requirements have remained 
fundamentally the same since the time that they were first established 
as noted above.
    Part 40 is a DOT-wide regulation that prescribes how drug and 
alcohol testing is conducted, who is authorized to participate in the 
drug and alcohol testing program, and what employees must do before 
they may return to duty following a drug and/or alcohol violation. In 
addition, the Federal Aviation Administration (FAA), the Federal Motor 
Carrier Safety Administration (FMCSA), the Federal Railroad 
Administration (FRA), the Federal Transit Administration (FTA), the 
Pipeline and Hazardous Materials Administration (PHMSA), and the USCG 
have each established specific regulations that spell out their 
prohibitions on drug use and alcohol misuse, who is subject to the 
regulations, what testing is authorized, when testing is authorized, 
and the consequences for violating the drug and alcohol testing 
regulations. The DOT modal administrations and the USCG incorporate 
part 40 into their regulations and enforce compliance of their 
respective regulations.
    At the present time, only urine specimens are authorized for use in 
DOT drug testing.\2\ These urine specimens are collected by a qualified 
collector and sent to a laboratory certified by the HHS National 
Laboratory Certification Program for screening and confirmation. DOT 
requires testing for (1) marijuana, (2) cocaine, (3) opioids (codeine, 
morphine, heroin, hydrocodone, hydromorphone, oxycodone, oxymorphone), 
(4) phencyclidine (PCP), and (5) amphetamines, methamphetamines, and 
methylenedioxymethamphetamine (MDMA). Alcohol testing involves 
analyzing breath or saliva specimens for initial (screening) tests, and 
breath specimens for confirmation tests. The breath/saliva specimen is 
collected by a qualified Breath Alcohol Technician or Screening Test 
Technician (as appropriate) and analyzed by an alcohol testing device 
approved by the National Highway Traffic Safety Administration.
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    \2\ DOT published a notice of proposed rulemaking on February 
28, 2022 [87 FR 11156] that proposes to add oral fluid specimens to 
part 40 for use in the DOT drug testing program.
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Drug and Alcohol Testing Management Information System (MIS) Data

    Employers subject to DOT or USCG drug and alcohol testing 
regulations must submit annual drug and alcohol testing data as 
required by their respective DOT modal administration or the USCG (see 
49 CFR 40.26). When submitting drug and alcohol testing data, employers 
are required to use the standardized, one-page ``Drug and Alcohol 
Testing MIS Data Collection Form'' (MIS Form) provided in Appendix H to 
part 40.\3\ FAA, FMCSA, FRA, FTA, and USCG now permit (and prefer) 
employers to submit the required drug and alcohol testing data 
electronically, while PHMSA requires the required data be submitted 
electronically.
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    \3\ A copy of the MIS Form has been placed in the docket for 
this notice.
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    An employer collects and compiles drug and alcohol testing data 
generated throughout the year by their company's drug and alcohol 
testing program, and

[[Page 39041]]

submits that data in its annual filing of the MIS Form. Specifically, 
for each employee category, an employer is required to provide (1) drug 
testing data (number of verified negative tests, verified positive 
tests (for each drug), refusal to test results (adulterated, 
substituted, shy bladder, others), and cancelled results), and (2) 
alcohol testing data (number of screening tests above and below 0.02, 
number of confirmation tests above and below 0.04, refusal to test 
results (shy lung, others) and cancelled results) for each type of test 
conducted (e.g., pre-employment, random, post-accident, reasonable 
suspicion/cause, return-to-duty, or follow-up).
    The employer must complete the MIS Form and certify that the 
information is accurate. The annual drug and alcohol testing data 
submitted for a specific calendar year is to be submitted by March 15th 
of the following calendar year. The completed MIS Form contains only 
aggregate data, and does not contain any employee-specific information.

How the MIS Data Is Used

    The DOT modal administrations and the USCG use the drug and alcohol 
MIS testing data primarily to determine the random testing rate(s) for 
safety-sensitive employees in each industry for subsequent years.\4\ 
Specifically, each DOT modal administration and the USCG uses the 
random drug testing positive/refusal rate and the random alcohol 
testing violation rate, as applicable and respectively, from the prior 
year to determine the random testing rate in the following calendar 
year.
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    \4\ In addition to using drug and alcohol testing data to 
calculate the annual random testing rate, DOT has periodically used 
that data to target educational outreach to the industry.
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    All five of the modal administrations and USCG require their 
regulated employers to conduct random drug tests. Their respective 
regulations provide that the minimum annual percentage rate for random 
drug testing for the industry will be either 25 or 50 percent, 
depending on the industry-wide random drug testing positive/refusal 
rate reported for the previous calendar year or years. For example, if 
the random drug testing positive/refusal rate is at or above 1 percent, 
then the modal administration or USCG will increase the minimum annual 
percentage rate for random drug testing for the following year to 50 
percent or make no adjustment if it is already at 50 percent. If the 
minimum annual percentage rate for random drug testing is at 50 percent 
and the positive/refusal rate is less than 1 percent for 2 consecutive 
years, then the DOT modal administration or USCG has the discretion to 
lower the minimum annual percentage rate for random drug testing to 25 
percent for the following year. For 2022, the minimum annual percentage 
rate for random drug testing is set at 50 percent for three DOT modal 
administrations (FMCSA, FTA, and PHMSA) and the USCG, and at 25 percent 
for FAA and FRA (both for FRA maintenance-of-way (MOW) employees and 
FRA covered service employees).\5\
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    \5\ See https://www.transportation.gov/odapc/random-testing-rates.
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    Four of the five DOT modal administrations require random alcohol 
testing (FRA, FAA, FMCSA, and FTA).\6\ Their respective regulations 
provide that the minimum annual percentage rate for random alcohol 
testing for the industry will be 10, 25, or 50 percent. These DOT modal 
administrations adjust this alcohol testing rate for safety-sensitive 
employees based on their respective industry-wide random alcohol 
testing violation rate reported for the previous calendar year or 
years. For example, regardless of whether the random testing rate is 
50, 25, or 10 percent, if the violation rate is 1 percent or more for a 
year, then the modal administration will increase the alcohol testing 
rate for the next year to 50 percent, or make no adjustment if it is 
already at 50 percent. The 2022 random alcohol testing rate is 10 
percent for all four modal administrations.\7\
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    \6\ PHMSA and the USCG do not require random alcohol testing.
    \7\ See https://www.transportation.gov/odapc/random-testing-rates.
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    The DOT modal administrations and the USCG publish annual notices 
in the Federal Register that outline the prior years' positive/refusal 
rates or alcohol violation rates, as relevant, and state the minimum 
annual percentage rate(s) for random testing for the next calendar 
year.\8\ The minimum annual percentage rate for random testing is the 
specified minimum percentage of safety-sensitive employees that 
employers must randomly select and test throughout the calendar year. 
Employers may select and test at a higher rate but must select and test 
at the minimum mandatory rate to comply with the respective modal 
regulations.
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    \8\ FMCSA only publishes a Federal Register notice if its 
testing rate changes.
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Support for Patients and Communities Act

    Federal Bill H.R. 6., the ``Substance Use-Disorder Prevention that 
Promotes Opioid Recovery and Treatment for Patients and Communities 
Act'' (the ``SUPPORT Act'') was signed into law on October 24, 2018.

Drug and Alcohol Testing MIS Database

    Section 8103 of the SUPPORT Act, titled ``Department of 
Transportation Public Drug and Alcohol Testing Database'' required DOT 
to, not later than March 31, 2019, establish and make publicly 
available on its website a database of the drug and alcohol testing 
data reported by employers for each mode of transportation, and update 
the database annually. Specifically, for each mode of transportation, 
the database must include (1) the total number of drug and alcohol 
tests by type of substance tested; (2) the drug and alcohol test 
results by type of substance tested; (3) the reason for the drug or 
alcohol test, such as preemployment, random, post-accident, reasonable 
suspicion or cause, return-to-duty, or follow-up, by type of substance 
tested; and (4) the number of individuals who refused testing.
    In response to the above, DOT published aggregated data from its 
internal database on its website in March 2019 for each mode (i.e., 
FRA, FAA, FMCSA, FTA, and PHMSA) and the USCG by substances tested 
(drugs or alcohol), by reason for testing, and by year (2003 through 
2018). The database has since been updated annually to include the most 
recent available data for 2019 and 2020. The database may be accessed 
at https://www.transportation.gov/odapc/DOT_Agency_MIS_Data. The 
database does not contain any personally identifiable information.

GAO Report on DOT's Collection and Use of Drug and Alcohol Testing Data

    Section 8104 of the SUPPORT Act, titled ``GAO Report on Department 
of Transportation's Collection and Use of Drug and Alcohol Testing 
Data,'' required GAO, not later than 2 years after the date the DOT 
public drug and alcohol testing database was established under Section 
8103 of the Act, to (1) review the DOT drug and alcohol testing MIS, 
and (2) submit to the Committee on Commerce, Science, and 
Transportation of the Senate and the Committee on Transportation and 
Infrastructure of the House of Representatives a report on the review. 
The GAO Report was required to include (1) a description of the process 
DOT uses to collect and record drug and alcohol testing data submitted 
by employers for each mode of transportation, (2) an assessment of 
whether and if so, how DOT uses the data in carrying out its 
responsibilities,

[[Page 39042]]

and (3) an assessment of the DOT public drug and alcohol testing 
database required under the Act. The Report was to include 
recommendations regarding how DOT can best use the drug and alcohol 
testing data, any improvements that could be made to the process by 
which the data is collected from employers, and whether and, if so, how 
the DOT drug and alcohol testing database could be made more effective.
    Pursuant to the above, GAO conducted a performance audit on the DOT 
drug and alcohol testing data from October 2019 to March 2021. In 
conducting the audit, GAO reviewed relevant laws and regulations, among 
other things. To determine how DOT verifies that data are reliable, GAO 
reviewed documents, analyzed data in the DOT internal database from 
calendar years 2003 through 2018, and interviewed DOT officials. GAO 
also reviewed the DOT public website and compared it to key actions for 
open government data.
    In March 2021, GAO published a report titled ``DOT Has Taken Steps 
to Verify and Publicize Drug and Alcohol Testing Data but Should Do 
More.'' \9\ The report examines (1) how DOT uses drug and alcohol 
testing data, (2) how DOT verifies that data are reliable, and (3) 
whether DOT follows key actions for transparently reporting drug and 
alcohol testing data.
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    \9\ A copy of the GAO Report (Report GAO-21-296) has been placed 
in the Docket for this notice.
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    GAO made three recommendations to DOT \10\ as follows:
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    \10\ GAO's Recommendation 2 applies to the USCG only, and not to 
DOT.
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    (1) ``The Secretary of Transportation should direct the 
Administrators of FAA, FMCSA, FRA, FTA, and PHMSA to: (1) evaluate the 
different processes used by each modal administration to verify drug 
and alcohol testing data--including comparing data to records during 
inspections, checking data for errors manually or with software, and 
contacting employers that do not submit a report or submit an 
incomplete report--and (2) determine what, if any, additional steps 
should be taken to improve the reliability of the information. 
(Recommendation 1)''
    (2) ``The Director of ODAPC should disclose known limitations of 
drug and alcohol testing data on DOT's website, consistent with key 
actions for open government data. (Recommendation 3)''
    (3) ``The Director of ODAPC should reach out to potential users in 
the public to determine if there is a broader audience for the public 
data, consistent with key actions for open government data, and if a 
broader audience is identified, engage with users to evaluate the 
benefits and costs of adopting additional key actions for open 
government data and any other possible improvements to the website. 
(Recommendation 4)''
    Regarding Recommendation 3 and Recommendation 4, GAO found that 
DOT's drug and alcohol testing website, which DOT published in March 
2019 as required by the SUPPORT for Patients and Communities Act, 
follows eight of 16 key actions that GAO has previously identified for 
transparently reporting government data. However, GAO found that DOT 
does not fully follow eight other key actions for transparently 
reporting data on the drug and alcohol testing website, including: (1) 
disclosing known data limitations (Recommendation 3) and (2) reaching 
out to potential users in the public to encourage data use 
(Recommendation 4). In addition, GAO stated that ``DOT currently does 
not follow or partially follows six other key actions that may improve 
the website. However, the immediate benefits and costs of following 
these six actions are unclear because DOT has not reached out to users 
to determine if the value of making changes to the website outweigh the 
time and resources necessary to implement them.''
    Specifically with respect to Recommendation 4, GAO found that while 
DOT's Office of Drug and Alcohol Policy and Compliance (ODAPC) ``does 
discuss the modal administrations' drug and alcohol testing programs at 
industry conferences, it does not discuss the public drug and alcohol 
testing data.'' In addition to being a key action identified by GAO, 
the OPEN Government Data Act \11\ requires agencies to develop a plan 
to allow for collaboration with non-government entities, including 
businesses, researchers, and the public, for the purpose of 
understanding how data users value and use government data.
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    \11\ The Open, Public, Electronic and Necessary Government Data 
Act of 2018 (OPEN Government Data Act) is Title II of the 
Foundations for Evidence-Based Policymaking Act of 2018 (Evidence 
Act).
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    GAO stated that `` potential users in the public may not be aware 
of the website or potential uses of the data. For example, if aware 
that the information is now publicly available, a motor carrier 
employer could use the public drug and alcohol testing data to 
understand how that individual employer's drug and alcohol testing 
results compare to industry-wide results. However, because ODAPC has 
not identified or reached out to potential users in the public, 
officials cannot be certain the public is not interested in the data. 
As a result, DOT does not know whether the website meets the 
requirements for transparently providing data, or if additional 
improvements could make this a more valuable resource for users.''

DOT Actions in Response to the GAO Report

    DOT concurred with each of the recommendations above.

Recommendations 1 and 3

    In response to Recommendation 1, DOT has committed to take action 
to implement the steps recommended by GAO. Each operating 
administration plans to conduct a review of its drug and alcohol data 
collection process to identify additional process improvements, if any, 
that should be taken to improve the reliability of the information it 
collects. DOT expects to complete this action by June 30, 2022.
    In response to Recommendation 3, ODAPC posted the known data 
limitations for FRA and FMCSA on the drug and alcohol testing website 
in February 2022, beginning with the 2020 data.

Recommendation 4

    In response to Recommendation 4, ODAPC has discussed the 
availability of the public drug and alcohol testing data on the DOT 
website at numerous industry and government conferences and training 
sessions, including at meetings of (1) the American Association of 
Medical Review Officers, (2) the Drug and Alcohol Testing Industry 
Association, (3) the Substance Abuse Program Administrators 
Association, (4) HHS's Substance Abuse and Mental Health Services 
Administration's Drug Testing Advisory Board, and (5) the FTA's annual 
drug and alcohol conference.\12\
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    \12\ In addition to the actions taken by ODAPC, as required by 
GAO Recommendation 4, individual DOT modes have also discussed the 
availability of the public drug and alcohol testing data during 
presentations to industry groups.
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    In addition, and consistent with the requirements of the OPEN 
Government Data Act, DOT is publishing this Request for Information to 
(1) increase awareness regarding the availability of the drug and 
alcohol testing data on the DOT website, and (2) collaborate with, and 
solicit input from, non-governmental entities such as stakeholders, 
researchers, and the public to better understand how those users may 
value and use the drug and alcohol testing data that is publicly 
available on the website.

[[Page 39043]]

    Importantly, open government data only create value to the extent 
that they are used. GAO--in a separate report \13\--has identified 
three key actions for engaging with users:
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    \13\ GAO Report GAO-19-72, titled ``Treasury Could Better Align 
USAspending.gov with Key Practices and Search Requirements.''
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    (1) Identify data users and their needs. By identifying who is 
using the data and what content or features are important to them, data 
providers can better prioritize their efforts to present information to 
data consumers. From this:
    a. DOT requests information regarding what entities use the drug 
and alcohol testing data on the DOT website.
    b. DOT requests information regarding how those entities use the 
drug and alcohol testing data on the DOT website.
    (2) Solicit and be responsive to user feedback. Soliciting and 
being responsive to user feedback--both when a website is being 
developed and on an ongoing basis--can help ensure that the website 
meets users' needs. Feedback can also surface issues with the 
functionality of the website, thus enabling the data provider to make 
corrections when needed. From this:
    a. DOT requests information regarding the functionality of the DOT 
drug and alcohol testing data website, and whether users have specific 
recommendations regarding possible improvements to the website that 
would enhance the user's ability to use the available data.
    (3) Reach out to potential users to encourage data use. Actively 
engaging potential users can provide an opportunity to educate them on 
how the data can be appropriately used and encourage innovation. From 
this:
    a. DOT primarily uses the drug and alcohol testing data to 
determine the random testing rate for safety-sensitive employees in 
each industry for the following year, and also sometimes to target 
educational outreach to the industry. DOT requests information 
regarding whether users envision other appropriate uses for the drug 
and alcohol testing data on the DOT website.

Conclusion

    GAO noted that DOT's drug and alcohol testing website follows eight 
of 16 key actions that GAO has previously identified for transparently 
reporting government data. Two others--disclosing known data 
limitations and reaching out to the public--are addressed through the 
specific GAO recommendations discussed above. While GAO noted that DOT 
does not fully follow six other key actions that could improve its drug 
and alcohol testing website, GAO noted that the potential benefits and 
costs of following those six actions are unclear because DOT has not 
reached out to potential users. GAO stated that ``With a better 
understanding of potential needs and uses of the data, DOT would be 
able to determine whether implementing these actions would provide 
benefits consistent with any implementation costs.''
    DOT will review and evaluate the comments received from potential 
users that are submitted in response to this notice. If a broader 
audience for the drug and alcohol testing data is identified, DOT will 
engage with users to evaluate the benefits and costs of adopting 
additional key actions for open government data and any other possible 
improvements to the website.
    DOT seeks input on the questions set forth above and welcomes 
comments from all interested parties.

Bohdan S. Baczara,
Deputy Director, Office of Drug and Alcohol Policy and Compliance.
[FR Doc. 2022-13985 Filed 6-29-22; 8:45 am]
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