Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Transportation

###### Federal Railroad Administration 

          - 49 CFR Part 219 
          - [Docket No. 2001-11213, Notice No. 13] 
          - RIN 2130-AA81 

# AGENCY:

Federal Railroad Administration (FRA), Department of Transportation (DOT). 

# ACTION:

Notice of Determination.

# SUMMARY:

Using data from Management Information System annual reports, FRA has determined that the 2008 rail industry random testing positive rates were 0.46 percent for drugs and 0.15 percent for alcohol. Because the industry-wide random drug testing positive rate has remained below 1.0 percent for the last two years of data, the Federal Railroad Administrator (Administrator) has determined that the minimum annual random drug testing rate for the period January 1, 2010, through December 31, 2010, will remain at 25 percent of covered railroad employees. In addition, because the industry-wide random alcohol testing violation rate has remained below 0.5 percent for the last two years, the Administrator has determined that the minimum random alcohol testing rate will remain at 10 percent of covered railroad employees for the period January 1, 2010, through December 31, 2010. 

# DATES:

This notice is effective upon publication. 

# FOR FURTHER INFORMATION CONTACT:

Lamar Allen, Alcohol and Drug Program Manager, Office of Safety Enforcement, Mail Stop 25, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590, (telephone 202-493-6313); or Kathy Schnakenberg, FRA Alcohol/Drug Program Specialist, (telephone 816-561-2714). 

# SUPPLEMENTARY INFORMATION: 

## Administrator's Determination of 2010 Minimum Random Drug and Alcohol Testing Rates 

                    In a final rule published on December 2, 1994 (59 FR 62218), FRA announced that it will set future minimum random drug and alcohol testing rates according to the rail industry's overall positive rate, which is determined using annual railroad drug and alcohol program data taken from FRA's Management Information System. Based on this data, the Administrator publishes a                     **Federal Register**                     notice each year, announcing the minimum random drug and alcohol testing rates for the following year.                     *See*49 CFR 219.602 and 219.608.                 

Under this performance-based system, FRA may lower the minimum random drug testing rate to 25 percent of covered railroad employees whenever the industry-wide random drug positive rate is less than 1.0 percent for two calendar years while testing at a 50 percent minimum rate. For both drugs and alcohol, FRA reserves the right to consider other factors, such as the number of positives in its post-accident testing program, before deciding whether to lower annual minimum random testing rates. If the industry-wide random drug positive rate is 1.0 percent or higher in any subsequent calendar year, FRA will return the minimum random drug testing rate to 50 percent of covered railroad employees. 

If the industry-wide random alcohol violation rate is less than 1.0 percent but greater than 0.5 percent, the minimum random alcohol testing rate will be 25 percent of covered railroad employees. FRA will raise the minimum random rate to 50 percent of covered railroad employees if the industry-wide random alcohol violation rate is 1.0 percent or higher in any subsequent calendar year. FRA may lower the minimum random alcohol testing rate to 10 percent of covered railroad employees whenever the industry-wide violation rate is less than 0.5 percent for two calendar years while testing at a higher rate. 

                    In this notice, FRA announces that the minimum random drug testing rate will remain at 25 percent of covered railroad employees for the period January 1, 2010 through December 31, 2010, because the industry random drug testing positive rate was below 1.0 percent for the last two years (the drug testing positive rate was .046 percent in 2008 and .056 percent in 2007). The minimum random alcohol testing rate will remain at 10 percent of covered railroad employees for the period January 1, 2010 through December 31, 2010, because the industry-wide violation rate for alcohol has remained                           ( print page 1548)                        below 0.5 percent for the last two years (the industry-wide violation rate for alcohol was .015 percent in 2008 and .018 percent in 2007). Railroads remain free, as always, to conduct random testing at higher rates.                 

Issued in Washington, DC, on January 6, 2010. 

Joseph C. Szabo, 

Administrator.

[FR Doc. 2010-374 Filed 1-11-10; 8:45 am] 

BILLING CODE 4910-06-P