Proposed Rule2022-13985
Department of Transportation Drug and Alcohol Testing Data
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 30, 2022
Issuing agencies
Transportation Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 125 (Thursday, June 30, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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:
<bullet> Federal eRulemaking Portal: Go to https://
www.regulations.gov/docket/
[[Page 39040]]
DOT-OST-2022-0037/document. Follow the online instructions for
submitting comments.
<bullet> 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.
<bullet> 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.
<bullet> 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; <a href="/cdn-cgi/l/email-protection#6728232637241002050a060e0b2703081349000811"><span class="__cf_email__" data-cfemail="c28d86839281b5a7a0afa3abae82a6adb6eca5adb4">[email protected]</span></a>. 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 <a href="https://www.transportation.gov/odapc/random-testing-rates">https://www.transportation.gov/odapc/random-testing-rates</a>.
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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 <a href="https://www.transportation.gov/odapc/random-testing-rates">https://www.transportation.gov/odapc/random-testing-rates</a>.
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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 <a href="https://www.transportation.gov/odapc/DOT_Agency_MIS_Data">https://www.transportation.gov/odapc/DOT_Agency_MIS_Data</a>. 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
<a href="http://USAspending.gov">USAspending.gov</a> 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]
BILLING CODE P
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