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###### Department of Transportation

###### Federal Transit Administration

# AGENCY:

Federal Transit Administration (FTA), DOT.

# ACTION:

Notice of random drug and alcohol testing rates.

# SUMMARY:

This notice announces the random testing rates for employers subject to the Federal Transit Administration's (FTA) drug and alcohol rules.

# DATES:

*Effective Date:* January 31, 2006.

# FOR FURTHER INFORMATION CONTACT:

Jerry Powers, Drug and Alcohol Program Manager for the Office of Safety and Security, (202) 366-2896 (telephone) and (202) 366-7951 (fax). Electronic access to this and other documents concerning FTA's drug and alcohol testing rules may be obtained through the FTA World Wide Web home page at *http://www.fta.dot.gov*, click on “Safety and Security.”

# SUPPLEMENTARY INFORMATION:

On January 1, 1995, FTA required large transit employers to begin drug and alcohol testing employees performing safety-sensitive functions and to begin submitting annual reports by March 15 of each year beginning in 1996. The annual report includes the number of employees who had a verified positive for the use of prohibited drugs, and the number of employees who tested positive for the misuse of alcohol. Small employers commenced their FTA-required testing on January 1, 1996, and began reporting the same information as the large employers beginning March 15, 1997. The testing rules were updated on August 1, 2001, and established a random testing rate for prohibited drugs and the misuse of alcohol.

The rules require that employers conduct random drug tests at a rate equivalent to at least 50 percent of their total number of safety-sensitive employees for prohibited drug use and at least 25 percent for the misuse of alcohol. The rules provide that the drug random testing rate may be lowered to 25 percent if the “positive rate” for the entire transit industry is less than one percent for two preceding consecutive years. Once lowered, it may be raised to 50 percent if the positive rate equals or exceeds one percent for any one year (“positive rate” means the number of positive results for random drug tests conducted under 49 CFR 655.45 plus the number of refusals of random tests required by 49 CFR 655.49, divided by the total number of random drug tests, plus the number of refusals of random tests required by 49 CFR part 655).

The alcohol provisions provide that the random rate may be lowered to 10 percent if the “violation rate” for the entire transit industry is less than 0.5 percent for two consecutive years. It will remain at 25 percent if the “violation rate” is equal to or greater than 0.5 percent but less than one percent, and it will be raised to 50 percent if the “violation rate” is one percent or greater for any one year (“violation rate” means the number of covered employees found during random tests given under 49 CFR 655.45 to have an alcohol concentration of .04 or greater, plus the number of employees who refuse a random test required by 49 CFR 655.49, divided by the total reported number of random alcohol tests plus the total number of refusals of random tests required by 49 CFR part 655).

49 CFR 655.45(b) states that, “the Administrator's decision to increase or decrease the minimum annual percentage rate for random drug and alcohol testing is based, in part, on the reported positive drug and alcohol violation rates for the entire industry. The information used for this determination is drawn from the drug and alcohol Management Information System (MIS) reports required by 49 CFR part 655. In determining the reliability of the data, the Administrator shall consider the quality and completeness of the reported data, may obtain additional information or reports from employers, and make appropriate modifications in calculating the industry's verified positive results and violation rates.”  

In 2005, the FTA required a random drug testing rate of 50 percent of the total number of their “safety-sensitive” employees for prohibited drugs based on the “positive rate” for random drug test data from 2002 and 2003. FTA has received and analyzed the latest available data (CY2004) from a representative sample of transit employers. Based on the data, the random drug rate was lower than 1.0 percent for the two preceding consecutive years (0.96 percent for 2003 and 0.89 percent for 2004). However,       ( print page 5110)    based on additional information noted herein, the Administrator has determined that the random drug testing rate shall remain at 50 percent for 2006.

The Department has noted the proliferation of products to defraud the USDOT urine screens. Congressional hearings on these products and the GAO Report of 17 May 2005 are indicative of the potential adverse impact these products marketed as adulterate specimens may have on reported random rates and the reliability of those results.

The Secretary of Transportation's Office of Drug &Alcohol Policy & Compliance (ODAPC) has proposed to amend 49 CFR part 40 to require specimen validity tests for all urine specimens collected pursuant to part 40. The Department proposes that each DOT specimen be tested for products that can be used to adulterate and substitute a urine specimen (70 FR 209 October 31, 2005). The Department would require each HHS-certified laboratory to conduct specimen validity testing. This will have the effect of identifying more adulterated and substituted urine specimens and  enhance the reliability of test results. The Department believes the safety concerns associated with random testing warrant a one year delay in order to analyze reported random rates after SVT testing has been implemented.

In 2005, the FTA retained the random alcohol testing rate of 10 percent (reduced previously from 25 percent) based on the “positive rate” for random alcohol test data from 2003 and 2004. Because the random alcohol violation rate was again lower than 0.5 percent for the two preceding consecutive years (0.20 percent for 2003 and 0.11 percent for 2004), the random alcohol testing rate will remain at 10 percent for 2006.

FTA detailed reports on the drug and alcohol testing data collected from transit employers may be obtained from the Office of Safety and Security, Federal Transit Administration, 400 Seventh Street, SW., Room 9301, Washington, DC 20590, (202) 366-2896 or at *http://transit-safety.volpe.dog.gov/​Publications*.

Issued on: January 24, 2006.

Sandra K. Bushue,

Deputy Administrator.

[FR Doc. 06-859  Filed 1-30-06; 8:45 am]

BILLING CODE 4910-57-M