**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.

## 

**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, 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
<jim.swart@ost.dot.gov> (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
<jerry.fulnecky@fmsca.dot.gov> (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 <harry.saporta@fta.dot.gov>.

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 <lamar.allen@fra.dot.gov> (e-mail); or Kathy
Schnakenberg, Drug and Alcohol Program Specialist, Office of Safety,
FRA, telephone number (202) 262-4998, or
<kathy.schnakenberg@fra.dot.gov> (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
[sheila.wright@RSPA.dot.gov](mailto:sheila.wright@rspa.dot.gov)
(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.

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 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 § 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 § 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.

4**9 CFR Chapter III**

*Authority and Issuance*

■ 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**

■ 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.

■ 2. Amend § 382.107 by removing the definitions of "positive rate" and
"violation rate" and adding the following definitions in their place to
read as follows:

**§ 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.*,
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.

■ 3. Amend § 382.305 by revising paragraph (j) to read as follows:

**§ 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.

\* \* \* \* \*

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

**§ 382.401 Retention of records.**

\* \* \* \* \*

\(c\) \* \* \*

\(1\) \* \* \*

\(viii\) A copy of each annual calendar year summary as required by §
382.403.

\* \* \* \* \*

■ 5. Amend § 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:

**§ 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 § 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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 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*

■ 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**

■ 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.

■ 2. Amend appendix I to Part 121 as follows:

■ A. In section II., remove the definition of Annualized rate; remove
the definition of Positive rate and add a new definition in its place;

■ B. In section V., revise paragraph C.6;

■ C. In section VI., add paragraph F;

■ 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 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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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.

\* \* \* \* \*

■ 3. Amend appendix J to Part 121 as follows:

■ A. In section I.D, remove the definition of Violation rate and add a
definition in its place;

■ B. Revise section II;

■ C. In section III.C, revise paragraphs C.2 and C.6;

■ 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 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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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*

■ 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**

■ 1. The authority citation for 49 CFR Part 655 continues to read as
follows:

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

■ 2. In § 655.4, remove the definitions of "positive rate" and
"violation rate" and add the following definitions in their place to
read as follows:

**§ 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.

\* \* \* \* \*

■ 3. Revise § 655.72(d) through (g) to read as follows:

**§ 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, § 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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 \[Removed\]**

■ 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."

*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 § 219.803,
which contained agency-specific railroad reporting requirements, with
references to new § 219.800, which incorporates by reference the
standardized and simplified DOT reporting requirements found in § 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 § 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 § 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 § 219.801,
which contained agency-specific railroad reporting requirements, with
references to new § 219.800, which incorporates by reference the
standardized and simplified DOT reporting requirements found in § 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 §§ 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 § 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 § 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*

■ 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**

■ 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).

■ 2. In § 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:

**§ 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.

\* \* \* \* \*

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

**§ 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.

\* \* \* \* \*

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

**§ 219.602 Administrator\'s determination of random drug testing
rate.**

\* \* \* \* \*

\(c\) 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 § 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 §
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.

\* \* \* \* \*

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

**§ 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.

\(ii\) \[Reserved\]

\* \* \* \* \*

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

**§ 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 § 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 § 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 § 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 § 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.

\* \* \* \* \*

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

§ 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 § 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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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.

**§§ 219.801 and 219.803 \[Removed and Reserved\]**

■ 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.

*Section 199.3 Definitions*

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

*Section 199.117 Recordkeeping*

Subparagraph (a)(2) of § 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 §
199.227(b)(1). Subparagraphs (a)(2)(i)(ii)(iii) and (4) of § 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 § 199.117 has been redesignated as
subparagraph (4).

*Section 199.119 Reporting of Anti-Drug Testing Results*

Paragraph (a) of § 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 § 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
§ 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 § 199.119 has been revised to
specify an operator\'s responsibility when using a service agent to
perform random selections. Paragraph (e) of § 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 § 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 § 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 § 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 § 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 § 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 § 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 §
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*

■ 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**

■ 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.

■ 2. Amend § 199.3 by removing the definition for "positive rate" and
adding the following definition in its place to read as follows:

**§ 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.

\* \* \* \* \*

■ 3. Amend § 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:

**§ 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.

\* \* \* \* \*

■ 4. Revise § 199.119 to read as follows:

**§ 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 § 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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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.

\(e\) 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.

■ 5. Revise § 199.229 to read as follows:

**§ 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 § 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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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**

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