Federal Register Vol. 54, No. 211 Thursday, November 2 ......DEPARTMENT OF TRANSPORTATION Office of...

Federal Register / Vol. 54, No. 211 / Thursday, November 2, 1989 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Chs. I and Ill

23 CFR Chs. I, II, Ill, and IV

33 CFR Ch. I

46 CFR Chs. I and Ill

49 CFR Subtitle A, Chs. II, Il, IV, V andVI

[OST Docket No. 46574, Notice No. 89-22]

RIN 2105-AB52

Alcohol Abuse Prevention Program forthe Transportation Industry

AGENCY: Office of the Secretary, DOT.ACTION: Advance Notice of ProposedRulemaking.

SUMMARY: The Department ofTransportation is exploring the need toadopt additional regulations for thetransportation modes it regulates toprevent employees from performingsensitive safety- and security-relatedfunctions while under the influence ofalcohol. This ANPRM solicits publiccomment on the scope of the problem,the need for additional action and thefeasibility and scope of several possibleoptions, if further action is deemednecessary. -DATE: Comments on the ANPRM mustbe received on or before January 31,1990.ADDRESS: Comments on the ANPRMshould be mailed to DocumentaryServices Division, C-55, Department ofTransportation, Room 4107, Docket46574, 400 Seventh Street, SW.,Washington, DC 20590. In order toprovide a copy for each modal .administration's docket and to facilitatethe Department's review, we requestthat an original and seven additionalcopies of the comments be submitted.Because of the size and complexity ofthe document, we also ask commentersto designate the section letters andnumbers to which their comments refer.Comments will be available for reviewby the public at this address from 9:00a.m. through 5:00 p.m., Monday throughFriday, Persons wishing the agency toacknowledge receipt of their commentsshould include a stamped, self-addressed postcard with theircomments. The Documentary ServicesDivision will time and date-stamp thecard and return it to the commenter. The

comments will be reviewed and, in theevent that further action is taken, theywill be furnished to those'modaladministrations that are responsible fortaking the action.

FOR FURTHER INFORMATION CONTACT:Neil Eisner, Assistant General Counselfor Regulations and Enforcement, orGwyneth Radloff, Attorney, Departmentof Transportation, (202) 366-9305, 4007th Street SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of ContentsI. Introduction

A. BackgroundB. Majpr Issues

1. Are additional measures necessary tocontrol alcohol abuse among transpor-tation workers?

2. What should be prohibited?3. If further action is necessary, what

general forms should it take?a. Educationb. Enforcementc. Alcohol Testingd. State Programs

4. What should be the consequences foran employee identified as using- alco-hol on the job, being under the influ-ence while on the job, or improperlyusing alcohol prior to work?

C. General Information and Definitions

11. The Problem of Alcohol Use and AbuseA. Effects of AlcoholB. The Alcohol Problem--GenerallyC. Costs of Alcohol Abuse to SocietyD. Alcohol Abuse in the Transportation

Industry1. General2. Aviation3. Motor Carriers4. Rail5. Maritime6. Pipeline7. Mass Transportation

II. Legal Authority/IssuesIV. International IssuesV. Questions of Approach

A. IntroductionB. Covered EmployeesC. The Options

1. Educationa. Generalb. Employee Assistance Programsc. Drug Free Workplace Programs

2. Rehabilitationa. Generalb. Employer-mandated Programsc. Expansion of Rehabilitation Pro-

grams Like "Operation Redblock" toOther Modes

d. Implementation Issuese. Medical Review Officers

D. Enforcement1. General2. Effectiveness of Deterrent Actions3. The National Driver Register

E. Alcohol Testing Program1. What to Prohibit?2. What is a Positive?3. Treatment of Positives4. Occasions/Grounds for Testing

a. Generalb. Preemployment Testingc, Periodic Testingd.. Reasonable Cause Testinge. Post-Accident Testingf. Random Testingg, Pre-Performance Tests

(1) General(2) Pre-Performance Testing: Under

Supervision(3) Pre-Performance Testing: Unsu-

pervised(a) Performance Tests(b) Breath Tests Using Ignition

Interlock Devicesh, Post-Rehabilitation Testing

VI. Means of Alcohol TestingA. IntroductionB. Breath TestingC. Blood TestingD. Urine TestingE. Other Techniques

VII. Other Practical ProblemsVIII. Regulatory Process MattersIX. Appendix A-BibliographyX. Appendix B-Existing DOT Regulations

A. Alcohol1. Introduction2. Current Modal Administration Regula-

tionsa. U.S. Coast Guardb. Federal Aviation Administrationc. Federal Highway Administrationd. Federal Railroad Administratione. Maritime Administrationf. National Highway Traffic Safety

Administrationg. Research and Special Programs Ad-

ministrationh. St. Lawrence Seaway Development

CorporationI. Urban Mass Transportation Admin-

istrationB. Drugs

XI. Appendix C-NHTSA Conclusion onIID's

I. Introduction

A. Background

The Department of Transportation(DOT or Department) is comprised ofthe Office of the Secretary (OST) andnine separate modal administrations:The Federal Aviation Administration(FAA), the Federal HighwayAdministration (FHWA), the FederalRailroad Administration (FRA), theMaritime Administration (MARAD), theNational Highway Traffic SafetyAdministration (NHTSA), the Researchand Special Programs Administration(RSPA), the St. Lawrence SeawayDevelopment Corporation (SLSDC), theUrban Mass TransportationAdministration (UMTA), and the UnitedStates Coast Guard (USCG).

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Each of the modal administrationsoperates under different statutoryauthority; for example, some extensivelyregulate actions by persons within theirmode of transportation, while others donot. As discussed below in greaterdetail, the Department, through itsmodal administrations, already hasimplemented several programs designedto address the use and abuse of alcoholby transportation workers. The states.also are active in combating the use andabuse of alcohol; some of these effortsare funded through the Department.

Six of the Department's modes(USCG, FAA, FHWA, FRA, RSPA, andUMTA) recently issued drug testingrules for members of their regulatedindustries (53 FR 47002 et. seq., Nov. 21,1988). The rules apply to personsperforming sensitive safety- andsecurity-related functions in commercialoperations.

During the drug testing rulemakings,the Department noted on numerousoccasions that alcohol is a drug. TheDepartment recognized its wide use, itsaddictive nature, and the number oftransportation-related deaths andinjuries that result every year from itsabuse. However, the Department alsorealized that, for numerous reasons, thesolution to the alcohol abuse problemmay be very different from thatconcerning other, drugs, such as cocaineor marijuana. For that reason, with oneexception, the modal administrationsdid not include alcohol among the list ofsubstances to be tested for under thedrug testing regulations. (Pursuant to astatutory mandate, the Coast Guardrequired post-accident alcohol testing, inan amendment to an existing rulepermitting that testing. FRA hadpreviously included alcohol in its post-accident testing mandate and hadauthorized alcohol testing forreasonable cause and pre-employment.)In announcing the drug testing rules,then Secretary of Transportation, JimBurnley, stated that he had directed hisGeneral Counsel's Office to review theDepartment's existing alcoholregulations to determine if they weresufficient. The extensive press coverageof and public interest in the possibleinvolvement of alcohol in the ExxonValdez oil spill heightened thegovernmental interest in this area.

In his June 15, 1989, testimony beforethe Senate Committee on Commerce,Science and Technology, SecretarySkinner committed the Department toexploring further the need for additionalregulations on alcohol use. This ANPRMis intended to elicit public comment onwhether the Department's current

regulatory requirements and programsare sufficient to respond to the hazardsof alcohol use and abuse in DOT-regulated transportation industries andwhat additional action, if any, should betaken.

If further rulemaking action isnecessary, the Department couldconsider a number of options that couldimprove safety by reducing alcoholabuse in DOT-regulated transportationindustries. The list that follows is notall-inclusive and options may becombined. The options include:

1. Requiring employers to establishEmployee Assistance Programs (EAP)that provide education on the dangers ofalcohol abuse and training to detectalcohol use or impairment on the job;

2. Requiring employers to set up self-and peer-referral programs designed toidentify alcohol abusers and get theminto rehabilitation programs, with theunderstanding that the identifiedabusers, if rehabilitation is successfullycompleted, could retain their jobs;

3. Requiring alcohol testing oftransportation employees similar inwhole or in part to our drug testing rules,summarized in Appendix B (e.g.,preemployment, periodic, reasonablecause, post-accident and randomtesting);

4. Requiring pre-performance testingprior to permitting an employee tooperate a vehicle or perform safety- orsecurity-related duties (e.g., a pilot couldbe tested before entering the cockpit tofly an airplane); and/or

5. (A nonrulemaking option)encouraging the states to implementsafety programs directed at alcoholabuse and to increase their enforcementefforts.

If further regulatory action is deemednecessary after a review of thecomments on this ANPRM, separatedockets will be set up and notices ofproposed rulemakings will be developedby each of the affected modaladministrations.

B. Major Issues

The Department particularly desirespublic comment on the following issues.This list is intended only to serve as afocal point and is not exhaustive.Following the list, there is an extensivediscussion of these and other issues, andreaders will note many questionsthroughout the document.

1. Are Additional Measures NecessaryTo Control Alcohol Abuse AmongTransportation Workers?

How well are existing regulations andprograms working? We have anecdotalreports that alcohol use is more

widespread among transportationworkers than other drug abuse, but arethere supportive data? Are furtherregulations needed or would otheractions such as increased enforcementof existing rules be more effective?

2. What Should Be Prohibited?

If we decide that new prohibitions ornew testing for alcohol is appropriate,an important issue is what use ofalcohol to prohibit. Unlike some otherdrugs, alcohol is a legal substance withlegally and socially acceptable uses, atleast for persons over 21 years of age.The Department already has made some-decisions on what to prohibit. Most ofthe modes regulating commercialtransportation (FAA, FHWA, FRA andCoast Guard) have selected a .04percent blood alcohol concentration(BAC) level as the standard fordetermining whether a commercialoperator is under the influence ofalcohol, and prohibit any use of alcoholon the job. Some modes (USCG, FAAand FHWA) subject commercialoperators to pre-duty abstinenceperiods. FHWA rules require thatcommercial vehicle operators with anyrheasurable BAC level be placed out-of-service for a 24-hour period.Recreational boaters are prohibited onlyfrom being intoxicated, which correlatesgenerally to a BAC of .10 percent. TheBAC level is a ratio of the number ofgrams of alcohol per 100 milliliters ofblood; for the purpose of determiningBAC through an analysis of the breath,the amount of alcohol in one part ofblood is presumed to equal the amountof alcohol in 2100 parts of expiredbreath sample (by volume).

Should the department undertake tomake the transportation industriesalcohol-free? Is this practicable, giventhe fact that alcohol is a legalsubstance? Or should the Departmenttarget impairment on the job, whichposes the greatest danger? If so, whereshould the line be drawn? Should therebe differences in this respect fordifferent industries or occupations?

3. If Further Action Is Necessary, WhatGeneral Forms Should It Take?

a. Education. Should the Departmentmandate employer-provided alcoholabuse training? Should educationalefforts focus on convincing abusers toseek treatment or on trainingsupervisors to identify problemdrinkers? Are there data to validate thesuccess of alcohol education programs?What elements are necessary for asuccessful program? Should educational

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efforts be coupled with self- and peer-referral rehabilitation programs? Areeducational programs more successful ifcoupled with increased enforcementefforts?

b. Enforcement. Are the federal andstate penalties for alcohol use sufficient?Are effective actions being taken toensure compliance with alcoholrestrictions? What enforcementstrategies are likely to be most effective?What should be the roles of employersand the Federal, state and localgovernments?

c. Alcohol Testing. Mandatory testingprograms are costly and inevitablycontroversial. The Department's recentexperience with imposing mandatorydrug tests may provide some guidance,but we recognize that alcohol testingmay involve different problems.

To what extent do our current drugrules serve as a viable model for alcoholtesting? What changes would benecessary to account for the differencesbetween alcohol and other drugs? Doeswidespread mandatory alcohol testingmake sense if we choose to prohibitintoxication or impairment as a distinctfrom all use of alcohol? The signs ofalcohol intoxication are much morewidely recognized among the generalpopulation than the indicators of druguse. On the other hand, "functional"alcoholics can often mask signs ofintoxication. Further, moderate levels ofalcohol can impair certain facultieswithout constituting "intoxication."Would it be cost-effective to randomlytest for alcohol intoxication? If not,should the Department require, at aminimum, post accident and reasonablecause testing for alcohol intoxication,where not already required?

d. State Programs. State and localgovernmdnts have extensive experiencein dealing with alcohol impairment.Testing for the presence of alcohol hastraditionally been done by Stateenforcement personnel (usually as partof a stop of an individual on thehighways]. Some States have lawsagainst boating while intoxicated andsome states have laws against flyingwhile intoxicated. Under FAA rules,crewmembers must submit to state testsupon request by a state law enforcementofficer. The ability to test generally ispredicated upon establishing reasonablesuspicion to stop, probable cause to test,followed by an arrest if warranted, andfinally, conducting a second and moresophisticated test (which would be usedas evidence). In what areas can theDepartment make use of the states'resources and expertise?

4. What Should Be the Consequences foran Employee Identified as Using Alcoholon the Job, Being Under the InfluenceWhile on the Job, or Improperly UsingAlcohol Prior to Work?

Should all who are found to be underthe influence be removed from safety-and security-related jobs until they arerehabilitated? Should the function theywere performing when under theinfluence be relevant? (e.g., filling outpaperwork at a desk?] Should anopportunity for rehabilitation berequired? Are there distinctions thatwarrant a federal role in mandating atleast one opportunityJor rehabilitationfor alcohol abuse in light of DOT'sposition that such a role wasinappropriate in the drug area?Rehabilitation may be more successfulfor alcohol users than for at least somekinds of drug use. Use of alcohol is alsolegal for persons aged 21 and older.Should either or both of these factorsinfluence how we treat personsidentified as alcohol abusers? What isthe success rate of existing programs?Should the circumstances of use (on thejob, for example] be a factor indetermining whether an employeeshould have a right to rehabilitation?What about the circumstances ofidentification? Should self-identifiedproblem users be treated differently?Should the level of consumption be aconsideration? Should it matter whetherthe abuse was a cause of an accident?Should a job be held open in the eventan employee takes advantage of anopportunity for rehabilitation?

C. General Information and Definitions

Throughout this notice, we havegenerally relied on or referred to theresults of many studies concerningalcohol. Parenthetical references tothese studies are included in the text;their full names are listed alphabeticallyin a bibliography in Appendix A. Copiesof all of these studies have been placedin the rulemaking docket. It is importantto note that the data we have are notcomplete; often the database includesonly those tests that were performed.Tests are performed after someaccidents, but not others dependingupon current regulatory requirements,the availability of state enforcementpersonnel and location and timing ofaccidents. Also, data are notcomparable among the transportationmodes, because of differences inreporting requirements, databases andtime periods. In addition, the referencedstudies generally used differentparameters and are not comparable toeach other. We welcome the submissionof additional data from commenters.

Many of the words relating to alcoholare used interchangeably in our society,which may cause some confusion. Inthis document, we use the terms"intoxication", "driving whileintoxicated" (DWI) and "driving underthe influence" (DUI) to refer to the samething: violation of State and/or FederalBAC standards defining intoxication."Zero tolerance" refers to a 0.00 BACstandard. "Impairment" and "under theinfluence" mean affected by alcoholingestion, without regard to a specificBAC level. An "active alcoholic" is ancurrent problem drinker. Some activealcoholics can successfully mask theeffects of drinking and function in theirjobs without detection for long periodsof time; these people are often referredto as "functional alcoholics", but maystill be safety risks in transportation.

II. The Problem of Alcohol Use andAbuse

A. Effect of Alcohol

The potential effects of alcohol abuseare substantial in terms of lives lost andenvironmental damage. It claims at least100,000 lives annually, 25 times as manyas all illegal drugs combined. In 1988,slightly over 47,000 deaths occurred onour nation's highways, of which 39percent involved an intoxicated driveror non-occupant (with BAC over 0.10%),and another 11 percent where at leastsome alcohol was involved. (NationalHighway Traffic Safety Administration,"Drunk Driving Facts," July 1989).

Ethanol (the psychoactive componentbeverages) is a central nervous systemdepressant. It has been widelyrecognized for years that consumptionof alcohol can degrade humanperformance of demanding or delicatetasks. However, there is somewhat lessagreement about how much alcoholmust be ingested before there is asignificant deterioration in performance.Studies have indicated that the effectsof alcohol vary among individuals, and,even for a given individual, alcohol willhave varying effects depending on suchfactors as motivation, fatigue, andprevious experience with alcohol (ZeroAlcohol, 1987; Ryder, 1981; Landauer,1983; Lister, 1983). One reason for the -

substantial variation among individualsis that ingestion of a specified quantityof alcohol will not necessarily producethe same BAC in two different people,even if they have the same body weight(Zero Alcohol, 1987).

In one study, for example, it wasfound that a particular body-weight-adjusted dose of ethanol could producea range of BAC levels of .036 to .095percent (O'Neill, 1983). In addition,

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alcohol appears to enter the bloodstream at different rates in differentpeople (Zero Alcohol, 1987). In anotherstudy, subjects were given controlleddoses and had equal amounts of food intheir system. Nevertheless, the timerequired to reach the peak BAC level.varied from 15 to 90 minutes afteringestion (Wilson, 1984).

ALCOHOL LEVELS BY WEIGHT

(Here are blood alcohol levels based on one'sweight and the amount of alcohol consumed with-In an hour.]

Weight

100 140 180 220

Beer.1 glass .............................. .05 .04 .03 .022 glasses ............ 08 .06 .05 .053 glasses .......................... .11 .09 .08 .07

Wine:1 glass ............................ .03 .03 .02 .022 glasses ......................... .06 .05 .04 .033 glasses ...................... 08 .06 .04 .04

Distilled spirits:I ounce ............................ .04 .03 .02 .022 ounces ........................... .07 .05 .04 -. 033 ounces ........................... .09 .07 .06 .05

Source National Safety Council.

There are also performancedifferences between individuals that areunrelated to the blood alcoholconcentration. It appears, for example,that highly skilled professionals may bebetter able to compensate for thephysiological effects of alcohol thanpersons who are less skilled,particularly at lower BAC levels. In twostudies comparing the effect of alcoholon the performance of racing drivers andordinary drivers on a closed track, theskill of the ordinary drivers showedsome deterioration at a BAC of .05percent, while the racing drivers showedno impairment until they hadsubstantially higher BAC levels (Forney,1961; Lovibond, 1970). Similarly, in acomparison of nonprofessional andprofessional pilots at BAC's of .04, .08,and .12 percent, the nonprofessionalsmade numerous errors in tracking, whilethe professionals' tracking ability didnot decrease even at the highest BAClevels. (Billings, 1972) (However, thestudy noted that the professional pilotscommitted more procedural errors thannormal after alcohol consumption. Theremay also be compounding factors, suchas fatigue, that could affect results in areal-world situation.)

Under the circumstances, it must berecognized that a uniform standard willnecessarily have nonuniform effectswhen measured against the behavior ofspecific individuals. However, this hasnot limited the states' ability to defineand enforce driving-under-the-influence(DUI) standards and does not mean that

we cannot take action. Rather, it meansmerely that a wide variety of factorsmust be weighed as we reevaluate ourcurrent requirements and consider newones.

Most States have adopted a BAC of.10 percent as the definition ofintoxication in connection with laws ondriving under the influence. Some use itas a rebuttable presumption of aviolation; others as a per se violation.(Several states are considering loweringtheir BAC standards to .08; and anumber of states are in the process ofconsidering adoption of the FHWA BACstandard for commercial drivers of .04.)States with BAC standards for operatingvessels of aircraft typically use .10percent.

However, as indicated above, anumber of laboratory studies haveshown that performance on some taskscan begin to deteriorate at BAC levelswell under .10 percent (Moskowitz, 1973;Drew, 1959; Landauer, 1983). Somestudies have suggested that performancedeteriorates in a linear fashion,beginning with the lowest levels tested(Moskowitz, 1985; Drew, 1959). BAC'slower than .05 percent have beenassociated with increases in errors intasks requiring divided attention, and itappears that cognitive performance isdecreased for most individuals at BAC'sof .04 percent or less (Zero Alcohol,1987; Evans, 1974). Low BAC levels havealso been shown to.affect a driver'sstopping distance and to increase errorsin steering (Laurell, 1977). There is nodefinitive answer to how much the riskof accident occurrence increases as aresult of the performance deficit, butsome relationship can be assumed.Those administrations in theDepartment that have set allowableBAC levels for transportation workers(FAA, FHWA, FRA and Coast Guardgenerally have used .04 percent as themaximum.

In addition, there is some evidencethat serious impairment may continueafter alcohol has been eliminated from aperson's blood. National"Institute onAlcohol Abuse and Alcoholism-supported researchers found that"handover effects" seriously impairedthe performance of ten pilots on a flightsimulator for as long as fourteen hoursafter they consumed enough alcohol torender them legally intoxicated in moststates. They showed an inability toprevent the plane from veering awayfrom a straight course and to hold theplane straight on landings. Theresearchers found no correlationbetween the pilots' degree of flightexperience or their subjectiveinterpretation of their performance" and

the investigators' objectivemeasurements. (American Journal ofPsychiatry, December 1986). BAC testsin the above situation would benegative.

A common problem is multiplesubstance abuse, impairment by acombination of alcohol and other drugs.The tendency of drug or alcohol abusersto abuse other substances poses aserious danger to the travelling publicand complicates the treatment of theabuser. Combinations of substances canhave unforeseeable synergistic effects,resulting in greater impairment. We alsoare concerned about the propensity ofusers to switch from abusing onesubstance to abusing another dependingupon what is being tested for.

B. The Alcohol Problem-GenerallyThe National Institute on Alcohol

Abuse and Alcoholism (NIAAA)reported in 1987 that, in the UnitedStates, two in every three adults drink;but 10 percent of those drinkersconsume half of the nation's beer, wine,and liquor. An estimated 17 million U.S.adults are alcoholics, which is about sixtimes higher than the number of cocaineusers. (NIDA study, 1989)'.

C. Costs of Alcohol Abuse to Society

While it is difficult to estimate theprecise cost to society from alcoholabuse, there is no doubt that the cost isenormous. The potential effects ofalcohol abuse are substantial in terms oflives lost, personal injuries, propertydamage, business losses (lostproductivity, absenteeism, etc.) and

.environmental damage.According to a Research Triangle

Institute study performed for theDepartment of Health and HumanServices, the overall economic cost toAmerican society from alcohol abusewas $89.5 billion in 1980. This amountrepresents direct costs, such as medicaltreatment, and indirect costs, such aslost wages and reduced productivity. In1987, the NIAAA estimated theeconomic costs to society of alcoholabuse to be nearly $117 billion a year,including $18 billion from prematuredeaths, $66 billion in lost productivity,and $13 billion for rehabilitation.Assuming the base numbers are still thesame, inflation presumably hasincreased the cost in current doLars.

D. AlcoholAbuse in the TransportationIndustry

1. General

Generally, the Department's anti-alcohol'abuse efforts have focused onalcohol as it affects an individual'smedical qualifications; prohibitions on

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on-duty use and operating while underthe influence, and, in certain cases, useduring defined pre-duty periods; andsanctions for violations of the Federalregulatory scheme, as well as sanctionsfor violations of State alcohol laws.Thus, alcohol testing, with limitedexceptions, is left to State enforcementpersonnel. (Coast Guard and FRA rulesprovide for post-accident andreasonable cause testing. As notedabove, the FAA requires crewmembersto submit to state tests upon request.)Each of the following sections brieflydescribes the existing federal rules bymode of transportation; Appendix Bdescribes them in additional detail. Thefollowing sections also contain data thatthe Department has onthe alcoholproblem in each mode.

We specifically invite commenters toprovide any additional relevant data orstatistics about the alcohol problem inthe different modes of transportation.

2. AviationThe FAA regulations prohibit a person

from acting or attempting to act as anaircraft crewmember if he or shqisunder the influence of alcohol, or hasconsumed any alcoholic beverage within8 hours of reporting for duty. They alsoprohibit crewmembers from flying witha BAC of .04 or higher. If a history ofdrug dependence, alcoholism, or mentalproblems is discovered, the FAA maydisqualify the pilot. In 1987, theDepartment's Inspector General's officechecked the National Driver Register(NDR) and records in the FloridaDepartment of Motor Vehicles; theyfound that nearly 8,000 FAA-certifiedpilots in Florida had been convicted ofdrunk-driving offenses. The FAA wasunaware of these DUI'convictionsbecause the pilots had not reportedthem to the FAA as required. The FAArecently issued a DUI enforcementpolicy and an NPRM that includes,among other matters, a process forexamining driving records.

There has never been an accidentinvolving a transport-category U.S. aircarrier in which the probable cause wasattributed to alcohol use. However,starting in the early seventies, the AirLine Pilots Association and the majorairlines, in cooperation with the FAA,developed a program to identifyalcoholic pilots, so that they could betreated and, if appropriate, returned toduty. More than 1,200 pilots have beenthrough this program, with a relapse rateof less than 15 percent. Since theprogram provides for stringentsurveillance of treated pilots, there hasbeen no compromise of safety.Nevertheless, the .existence of thisextensive a program demonstrates that.

the air carrier industry is not immune tothe problem of alcohol abuse. We do nothave any data, however, on the costs ofalcohol abuse in terms of such things aslost productivity and increased medicalexpenses.

The number of general aviationaccidents that can actually be attributedto the use of alcohol is uncertain. In thepast, general aviation accidents haveusually not been investigated by theNational Transportation Safety Board(NTSB) to determine cause. FAAaccident investigations are intendedmerely to be fact-finding and do notmake a finding of probable cause. Wedo know, however, that in 3,949 generalaviation accidents occurring between1978 and 1987, 239 or 6 percent of thepilots involved had BAC levels above.04 percent. However, the generalpattern over those ten years improved;-the incidence of alcohol among privatepilots involved in accidents actuallydeclined by 36 percent over the courseof the period, from 8.3 percent of allgeneral aviation accidents in 1978 to 5.5percent of such accidents in 1987.

3. Motor Carriers

It is a criminal offense to operate acommercial motor vehicle (CMV), or anyvehicle subject to the Federal MotorCarrier Safety Regulations (FMCSRs)under the influence of alcohol or drugs.FHWA regulations prohibit the use ofalcoholic beverages within 4 hours ofreporting to work and also prohibit adriver from working while having anymeasured BAC or any detected presenceof alcohol in his or her system. Thiseffectively amounts to a zero-alcoholthreshold for CMV operators. A driverwill not be considered physicallyqualified to drive a motor vehicle if,among other things, the driver iscurrently an active alcoholic. OnOctober 4, 1988, FHWA issuedrequirements that states must adoptregulations, whereby a commercialmotor vehicle'(CMV) operator convictedof having a BAC level of .04 or abovewill be deemed to be DUI and subject toa disqualification of at least one year, orthey will lose a percentage of federal-aid highway funds. These BACregulations are integral to thecommercial driver's license (CDL)program, a nationwide restructuring(under FHWA and state auspices) oftesting, licensing, and disqualificationprocedures for CMV operators.Mandated by the Commercial MotorVehicle Safety Act of 1986, the CDL

- program includes a nationalclearinghouse through which states willexchange commercial drivers' recordinformation, including BAC violationhistories.

Accident statistics indicate thatnearly half of the fatally injurednoncommercial motor vehicle drivershad a measurable amount of alcohol intheir blood (usually .01 percent or more)compared to about 15 percent of fatallyinjured drivers of medium and heavytrucks. Moreover, as the chart belowindicates, for those truck drivers whohad been drinking prior to an accident,the highest accident rate was amongthose consuming the most alcohol.Drivers of heavy and medium truckswith positive BAC's are involved inabout 750 fatal crashes annually, alongwith another 7,700 crashes resulting inpersonal injuries and 4,750 crashesInvolving only property damage (ZeroAlcohol, 1987).

Percent-age of the

Percent- 15 percentage of all of truckfatal truck driversaccidents who had

alcohol intheir blood

No truck driver use ofalcohol .............................. 85.0

BAC = .10 or more ............ 9.1 60BAC = .04-10 ................... 2.7 18BAC = .03 or less .............. 3.2 21

Total .......................... 100

(Zero Alcohol, 1987)(FARS data tapes, 1982-1985)

The NTSB is in the process ofstudying alcohol (and other drug) use bymotor carrier operators in fatalaccidents. We hope to have the resultsfor consideration at the next stage ofthis rulemaking. We do know, however,that the cost of accidents to employersis substantial, over and above the liveslost, whether these accidents are causedby alcohol or something else. TheNational Safety Council estimates thatan on-the-job accident is four timesmore costly than one that occurs in apersonal vehicle, with an average costto employers of $168,000 for a fatalaccident and $6,900 for a nonfatalaccident. To the extent alcohol useincreases on-the-job accidents, its coslimpact could be quite significant.

4. Rail

The FRA regulations prohibit on-the-job use of, possession of, or impairmentby alcohol or any controlled substance.,They also prohibit railroad employeessubject to the Hours of Service Act from.having a BAC level of .04 or more whileon the job. This is a per se violation;however, it is used for civil, and notcriminal purposes. Followinginnovations such as an industry programcalled "Operation Redblock" and the

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FRA's testing and rehabilitationprogram, alcohol use among railroadworkers, which has always been aserious problem for the industry, may bein decine.

However, we recognize that problemscontinue in this area. From February1986, when mandatory post-accidentblood testing for alcohol began, throughthe end of 1988, 13 employees testedpositive for alcohol (0.6 percent ofemployees tested). In five accidents/incidents, involving two deaths, twoinjuries, and $3.18 million in propertydamage, alcohol appears to have playeda causal role. In one, the engineer testedpositive at a BAC level of .16, andalcohol was found by the NTSB to be acontributing factor in the accident,which caused $1.58 million damage andthe death of the engineer. In anotheraccideni, which is still underinvestigation, eight injuries and $194thousand in damage were caused, and adispatcher tested positive at .15 percentBAC. Three additional accidents so farin 1989 also involved four employees'who tested positive for alcohol.

Reasonable cause breath testingunder the FRA program (triggered byrule violations, less serious accidentsand injuries, or reasonable suspicion)has produced the following results: 11 of348 persons tested positive in 1986 (3.2percent); 24 of 593 tested positive in 1987(4.2 percent) and 46 of 1005 testedpositive in 1988 (4.6 percent). FRAregulations define a "positive" breathtest as one indicating a BAC level of .02percent or above. The significance ofthese results with respect to prevalencein the population is difficult todetermine, since a number of the testswere performed because of reasonablecause, and it should be expected that ahigh percentage of reasonable causetests would be positive since prohibiteduse or impairment has already beenidentified or is suspected.

5. Maritime

Coast Guard regulations prohibitpersons from operating a vessel whileintoxicated, and merchant marinersfrom drinking on duty or assumingduties within 4 hours of consumingalcohol. In accordance with a statutoryrequirement, the regulations establishedFederal behavioral and BACintoxication standards for bothcommercial and recreational vesseloperators. Either the behavorial or BACstandard can be used independently todetermine intoxication. The rule appliesa .04 percent BAC standard to operatorsof all commercial vessels, includingfishing vessels. For recreational boaters,the Federal BAC standard is .10 percent.For recreational boaters, this BAC

standard and the Federal behavioralstandard apply only in the absence ofexisting State BAC and behavioralstandards or outside of State territorialwaters. The Coast Guard regulationsalso require post-accident testing foralcohol and other drugs.

In its 1986 NPRM on operating avessel while intoxicated, the CoastGuard stated that alcohol use has hadan adverse effect on marine safety. Itexamined commercial vessel casualtyrecords, which indicated that 44 deaths,3 persons missing, and 33 injuries wereattributable to alcohol during the periodof January 1981 through May 1986.During the period 1982 through 1984, theCoast Guard took suspension andrevocation action against 72 seamen foralcohol-related incidents.

Recreational boating casualties aremuch higher than commercial vesselcasualties, second only to U.S. highwaydeaths as a cause of transportationdeaths. They have been dropping inrecent years, due to increased efforts inthe cooperative safety programs of theCoast Guard, the states, and volunteersafety organizations. In 1988, 946boating fatalities occurred, down fromthe previous record low of 1,037 in 1987.(Coast Guard report, "Boating Statistics1988"). Studies conducted by the CoastGuard and the NTSB indicated that upto 50 percent of all recreational boatingfatalities may have been alcohol-related.

6. Pipeline

RSPA has no specific regulations onalcohol. It does have a generalregulation on health of pipeline workersat liquified natural gas plants. Pipelineoperators must look for any physicalcondition that would impairperformance, including any observabledisorder or condition that isdiscoverable by a professionalexamination. We have no specific dataon alcohol-related accidents or lostproductivity data in this area; however,a number of the commenters in the anti-drug rulemaking seemed to believe thatalcohol was a more pervasive problemthan drugs. We are also aware that.many companies in the industry areknown to have alcohol preventionprograms, but we do not have statisticsor data on the prevalence of the problemin the industry. Although we recognizethat most accidents are caused byexcavation workers (people notregulated by RSPA) digging intopipelines, we would like to gather dataon whether alcohol abuse does or cancause safety problems in the pipelineindustry.

7. Mass Transportation

UMTA does not have any regulationsconcerning alcohol. However, many ofUMTA's grantees are subject to otherFederal requirements on alcohol use. Allcommuter rail lines funded by UMTA,for example, are subject to FRAregulations. All drivers of UMTA-fundedmotor vehicles that are capable ofcarrying more than 15 passengers,including the driver, are subject to theFHWA DUI standards which areenforced by the states.

Data available to UMTA indicate thatapproximately 50 commuter trainaccidents in the last 13 years have beenattributed to drug-or alcohol-impairedworkers,-and, in the last three years, 15percent of employees tested followingcommuter train accidents tested positivefor drugs or alcohol. (The data do notprovide separate figures for alcoholalone.) In informal implementationdiscussions following adoption of theUMTA anti-drug rulemaking, someindustry members have indicated thatthey believe alcohol is a more seriousproblem than drugs. One of the few 'surveys taken indicated that, between1982 and 1985, only five out of 1,210 busdrivers tested positive for alcoholfollowing a fatal accident. However,information originating from industrysources indicates that transit bus driversare heavier drinkers than the generalpopulation (U.S. Census Bureau, 1984b).One survey is reported to have foundthat 57 percent drink at least weekly,with an average consumption of ninedrinks per week; the national median issix drinks per week (U.S. CensusBureau, 1984b). No information isavailable about drinking on the job(Zero Alcohol, 1987).

At this time, we do not have anyuseful data on the other costs of alcoholabuse, such as lost productivity andabsenteeism, and we again invitecommenters to supply information onthese matters. We specifically requestadditional data relating to the problemof alcohol abuse and use in each modeof transportation. We particularly wantcommenters to address whether thecurrent rules and programs are sufficientand, if not, why. We welcomesuggestions on areas where furtheraction is necessary.

III. Legal Authority/Issues

An analysis of the Department'sauthority to adopt any of the optionsdiscussed in this ANPRM would varywith the specific option.

The option that may be considered themost intrusive would be a requirementto conduct alcohol testing. For that

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reason, we discuss that option here. Iffurther rulemaking is deemedwarranted, in subsequent documents,our analysis will address the option oroptions selected

As a general matter, the legalauthority, both statutory andconstitutiona to mandate any alcoholtesting would be the same as that reliedupon to issue the drug testing rules,except the Coast Guard also has astatutory mandate to conduct post-accident alcohol testing. Although theexisting case law addressing theconstitutionality of employee alcoholtesting programs is more sparse thanthat with regard to drug testing, theDepartment believes that the availableprecedent supports rulemaking effortsthat may require alcohol testing in theregulated transportation industries.

As courts have held with regard togovernment drug testing of employees,alcohol testing mandatedby thegovernment is considered a searchwithin the meaning of the FourthAmendment of the U.S. Constitution.See, Schmerber v. California, 384 U.S.757, 767-768 (1966] ("compelledintrusions into the body for blood to beanalyzed for alcohol content", must beconsidered a Fourth Amendmentsearch); Skinner v. Railway LaborExecutives'Association, 489 U.S.

,109 S.Ct. 1402, 1412 (1989)("Subjecting a person to a breathalyzertest, which generally requires theproduction of alveolar or 'deep lung',breath for chemical analysis * * *implicates similar concerns about bodilyintegrity and, like the blood-alcohol test* * * considered in Schmerber, shouldalso be deemed a search.")

In determining whether a particularsearch comports with FourthAmendment requirements, courts mustestablish that under all the particularcircumstances the search itself is"reasonable." As the leading case onbodily fluid testing, Skinner v. RailwayLabor Executives'Association, makesclear, issuance of a warrant or theexistence of probable cause orindividualized suspicion is not aminimum essential requirement inestablishing the reasonableness of asearch under an administrative testingprogram.

In Skinner, the Supreme Court upheldregulations issued by the FederalRailroad Administration governing drugand alcohol post-accident andreasonable cause testing of railroademployees (49 CFR part 219). The Courtconcluded that the testing proceduresand methods of procuring blood, breath,or urine samples for testing as set forthin Subparts C and D of the FRAregulations "pose only limited threats to

the justifiable expectations of privacy ofcovered employees." 489 U.S. at

,109 S.Ct. at 1417, 1419. By contrast.the Court found that the government'sinterests in seeking to determine thecause of an accident or incident,deterring alcohol and illegal'drug use by

* rail employees, and safeguarding thegeneral public are compelling. Under

".these circumstances, the Court held thatalcohol and drug testing pursuant to theFRA regulations are reasonable wiihinthe meaning of the Fourth Amendment.

Also, the lack of a demonstratedsubstance abuse problem among theworkforce in a particular industryshould not, of itself, poseinsurmountable constitutionalimpediments to a testing program forthat workforce. This point was madeclear by the Supreme Court in NationalTreasury Employees Union v. VonRaab, 489 U.S. , , 109 S.Ct. 1384(1989), which was decided the same dayas Skinner. In Von Raab, the Courtupheld urinalysis testing for illegal drugsof U.S. Customs Service employeesslated for promotions into positions thatinvolved either interdicting illegal drugsor carrying a firearm. Despite theCommissioner of Customs' stated beliefthat "Customs is largely drug-free," theCourt concluded that there was littlereason to suspect that the CustomsService was "immune" from society'spervasive drug abuse problem and heldthat the testing program wasconstitutionally defensible as a meansto ensure that employees promoted tothese sensitive positions are drug-free.Id., 489 U.S. at , ,109 S.Ct. at1387, 1395.

Pre-Skinner court decisionsaddressing the constitutionality ofvarious employee alcohol testingprograms have also concluded that suchtesting comports with the FourthAmendment. Thus, a state regulationrequiring jockeys to submit tomandatory Warrantless breath alcoholtests on each racing day was found to beconstitutionally permissible. Shoemakerv. Handel, 795 F.2d 1136 (3d Cir.), cert.denied, 479 U.S. 986 (1986]. Similarly,alcohol and drug testing during a pre-employment physical examination,work-related examination, return towork after unscheduled absence, or onthe basis of reasonable suspicion orinvolvement in an accident or incidentwas upheld in the case of mass transit.employees directly involved in theoperation, maintenance anddecisionmaking of a public transitsystem. Amalgamated Transit Union,Local 933 v. City of Oklahoma City, 710F. Supp. 1321 (W.D. Okla; 1988). Accord,Amalgamated Transit Union, Division1279 v. Cambria County Transit

Authority, 691 F. Supp. 898 (W.D. Pa.1988) (mandatory drug and alcoholtesting during annual physicalexamination does not violate FourthAmendment).

Also, DOT is aware of at least onerecent Federal appellate court caseupholding employee alcohol testing inthe wake of Skinner. In that case, theU.S. Court of Appeals for the ThirdCircuit upheld, inter alia, randombreathalyzer testing of mass transitoperating employees. TransportWorkers Union, Local 234 v.Southeastern PennsjlvaniaTransportation Authority, 863 F.2d 1110(3d Cir. 1988), vacated and remanded,109 S.Ct. 3209 (1989), affl'don remandsub nom. United Transportation Unionv. Southeastern PennsylvaniaTransportation Authority, 884 F.2d 709(3d Cir. 1989).

Consistent with the Supreme Court'sanalysis in Skinner and Von Raab andlower court decisions, if the Departmentdetermines that there is a need forproperly-administered alcohol testing toensure that employees in transportationindustries are not impaired whileperforming sensitive safety- or security-related functions, that need wouldoutweigh the privacy interests of theseemployees and, thus, would beconstitutionally permissible.

IV. International Issues

We are aware that any decision toissue regulations requiring alcoholtesting or some of the other optionsdiscussed in this ANPRM is certain toraise questions about compatibility withthe laws of foreign countries. Our drugtesting requirements have alreadyresulted in government-to-governmentconsultations, which we believe willultimately result in mutually satisfactoryarrangements. Nevertheless, it would beuseful, even at this early stage of ouranalysis, to understand more about howother countries whose transportationindustries operate in the U.S. or performsensitive safety or security-related workfor U.S. operators outside the U.S. viewthe problem of alcohol use and abuseamong transportation employees, howthey respond to the problem, whetherthey conduct any alcohol testing andhow those programs operate. Wespecifically invite comments on thosesituations where our regulations mighthave an international effect. Amongother things, it should be noted thatAnnex 2 to the Convention onInternational Civil Aviation (theChicago Convention), section 2.5, statesthat no person shall pilot or act as aflight crewmember while under theinfluence of an intoxicating liquor or any

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narcotic drug "by reason of which hiscapacity to so act is impa.i.red." It is theU.S. government's intention to workwith foreign governments to resolvepotential conflicts in a manner thataccommodates their concerns whileensuring the necessary level of safety bythose we regulate.

V. Questions of Approach

A. Introduction

If we determine that further actionagainst alcohol abuse is necessary, thereare several alternative approaches thatwe are considering. They could beadopted singly or in combination. As apreliminary matter, we first discuss whoshould be covered by any program weset up, which is relevant to all but theenforcement options. A discussion ofeach alternative and questions that eachposes then follows. We welcome publiccomments on these alternatives. Wealso welcome public comment on any

other approaches that the Departmentcould take to address the alcoholproblem in the transportation industry.

B. Covered Employees

Our modal drug rules generally coverpersons who perform sensitive safety- orsecurity-related functions in commercialtransportation. They affectapproximately 4 million persons andinclude, for example, commercial truckdrivers, pilots, pipeline operators,licensed and documented mariners andothers serving on board a vessel with alicensed operator, mass transitoperators, and railroad workers subjectto the Hours of Service Act. (See the endof Appendix B for a short summary ofthe drug regulations.) The Department'sexisting alcohol regulations cover asomewhat different population. Chart 1provides a general description of thetypes of people covered by the drugregulations.

The basis for imposing anyrequirements concerning alcohol abusewould be sensitive safety- or security-related functions. It would appear thatthe same employees who could causesafety problems if they are on drugscould cause problems through misuse ofalcohol.

What, if any, rationale is there forcovering a different population foralcohol testing than drug testing? Inaddition, we would like public commenton whether the line we drew betweencommercial operations and privateoperations for the drug rules should bechanged with respect to alcohol? If so,why? Would the answers to thesequestions be different if the Departmentrequired action other than testing? Why?

C. The Options

The specific options include:

1. Education

a. General.

CHART 1 -PERSONS COVERED BY DRUG RULES--

FRA UMTA USCG RSPA FAA FHWA

Engineers, Brakemen, Vehicle Licensed/documented persons and Operations, Pilots, Flight Navigators, Aircraft Drivers (Interstate) ofDispatchers, Block - Controllers, persons serving under such lic/ Maintenance, Dispatchers, Mechanics, Repair- vehicles of: 26,001Operators, Signal Vehicle doc persons in a sensitive safety Emergency men, Flight and Ground Instruc- or more pounds, 15Maintainers, Operators, position, including for example: Response. tors, Flight Attendants, Air Traffic + passengers,Conductors. Mechanics. licensed officers, mates, (chief, Controllers, Aviation Security, hazardous material

first-third), and chief/assistant Screening Personnel, Ground (placarded).engineers; documented oilers, Security, Coordinators, Flight En-wipers, quarter masters, able gineers.and ordinary seamen. Includespersons on inspected vessels(deep draft, passenger & smallpassenger, off shore supply, &mobile offshore drilling units) anduninspected vessels (Inland,Great Lakes, Ocean & Harbortow boats, passenger & fishingboats).

One approach would be to emphasizeeducation to increase employeeperception of the risks of performingduties or operating a vehicle under theinfluence of alcohol. There is somedisagreement about the respectiveeffectiveness of education vis-a-visenforcement. Some researchers claimthat education is more effective inpreventing alcohol abuse thanapprehension of the abuser. TheAmerican Automobile AssociationFoundation for Traffic Safety comparedeight states that adopted tougher drunkdriving laws with six that did not. Thenew laws had no effect at all on trafficfatalities. The Foundation attributes theoverall decline in U.S. traffic-relateddeaths between 1980 and 1985 to publicawareness campaigns by such groups asMothers Against Drunk Driving(MADD). A Boston University

researcher similarly concluded thatsocial pressure and publicity "may be asimportant as government regulations inreducing drunk driving and fatalcrashes." (Both quoted in USA Today,Wednesday, August 3, 1988.) However,would social pressure have less effecton commercial operators who faceeconomic pressures to complete theirjobs?

These studies have been criticized aspoorly designed and misleading, sinceeducation programs were never isolatedas an independent variable forcomparison. NHTSA believes that themost effective programs are those thatcombine education and enforcement.Public information and educationprograms, in the absence of enforcementor sanctions activities, have never beenshown to impact alcohol-related fatalcrashes. Conversely, scores of studies

have found that programs involvingenhanced enforcement, roadsidesobriety checkpoints and the use ofsanctions such as license suspensionsfrequently have resulted in significantreductions of alcohol-related fatalities.Although there is disagreement on theeffectiveness of education alone, itappears that using education as anadjunct to deterrent measures wouldmake them more effective.

Education may be less effective forillegal drugs, because the users havealready decided to do something illegal.Having crossed over that line, they maybe less susceptible to educationalefforts. For that reason, alcohol abusemay warrant a different response fromthe approach the Department took toillegal drug use.

b. Employee Assistance Programs.One method of preventing, as well as

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encouraging the voluntary cessation of,alcohol abuse is to establish anEmployee Assistance Program (EAP).An EAP can have education, trainingand rehabilitation components thatbenefit both management andemployees and can be positive factors indetermining the employee acceptance ofand success of an anti-alcohol abuseprogram. The Department's own EAPoffers education and training for itsemployees and supervisors. The drugtesting rules all require companiesregulated by the Department to provideinformation to employees on the dangersof drug use and the consequences of thatuse. In addition, supervisors arerequired to be trained in the detection ofdrug use among employees. Similarrequirements could be imposed withrespect to alcohol use and abuse.

We would expect to find that theadditional cost of adding informationabout alcohol to the existing drugprevention programs would be relativelysmall. We ask for public comment onwhether this would be a usefulapproach. Also, how often shouldtraining be required and for whom? Itwould be helpful if any data on thesuccess or failure of educational effortscould be provided. Finally, we wouldlike any data on costs, especially forprograms that are added to existing drugprograms.

c. Drug Free Workplace Programs.The Federal government recentlyenacted rules (54 FR 4946, January 31,1989) that apply to its contractors andgrantees as a result of the Drug-FreeWorkplace Act of 1988 (Pub. L. 100-690,title V, subtitle D]. These rules requirethat grantees and contractors (1) certifythat they will provide a drug-free workenvironment; (2) establish a writtendrug-free workplace policy; (3) informemployees about the consequences ofdrug use and about any resources toassist those employees With drug abuseproblems; [4) notify the government if anemployee is convicted of a criminal drugoffense occuring in the workplace; (5)take action (disciplinary action orrehabilitation) with respect to aconvicted employee.

Given the fact that the Departmentalready requires a drug free workplacefor its grontees and contractors, could asimilar program for alcohol be initiatedfor companies regulated by theDepartment? (Many of our regulatedcompanies would also be covered by thedrug free workplace requirements if theyalso are contractors or grantees offederal agencies.) What should theelements of such a program be? Couldalcohol easily be added to existingindustry drug-free workplace programs?

Should alcohol be treated as an entirelyseparate issue requiring separateprograms? What, if any, are .theproblems associated withimplementation? For grantees that alsoare regulated by the Department (e.g.,UMTA grantees), could this serve as acost effective program? Would it be costeffective for persons and companies notnow subject to the drug free workplacerules? Who should be subject to such arequirement? Would the rule beenforceable? Effective? In someregulated industries, such a certificationwould be viable; in others it may not.Commenters should address how itcould work or would not work inparticular industries. Is a convictionreporting requirement practical?

2. Rehabilitationa. General. We believe that both

employers and employees benefit fromthe availability of rehabilitation

.programs. The opportunity forrehabilitation can encourage employeesto seek help and increase their overallacceptance of an anti-alcohol program.Employers benefit from greaterproductivity, fewer accidents, and lowerturnover costs if employees arerehabilitated.

b. Employer-mandated Programs. Oneapproach would be to encourage orrequire employers to offer rehabilitationopportunities to their employees. TheDepartment decided that it would beinappropriate for the federal governmentto mandate employer-provided drugrehabilitation in its modal drug testingrules and that this issue should beworked out between employers andemployees. However, as an employer,the Department provides such services.It offers a one-time opportunity forrehabilitation (usually paid for by theemployee's health insurance) foremployees who test positive under itsinternal drug testing program. Theemployees eventually can be reinstatedif they successfully completerehabilitation and undergo subsequentmonitoring. Counseling andrehabilitation opportunities are alsoprovided to any DOT employees whoseek help for alcohol problems.

Is there any justification for requiringemployers to provide rehabilitation foralcohol abusers, but not for drug users?If so, please explain why. Shouldrehabilitation be offered to those whovolunteer or those who get caught orboth? Would required rehabilitation, byremoving the incentive for self-referral,only ensure that the alcohol abusecontinues until the violator is caught orcauses an accident? Would educationwork effectively without rehabilitation?Would education work if the

Department encouraged, but did notmandate, rehabilitation?

c. Expansion of RehabilitationPrograms Like "Operation Redblock"'toOther Modes. To be effective, it appearsthat "providing an opportunity forrehabilitation" means holding the sameor'similar job open for the employee.The railroad industry's voluntaryprogram called "Operation Redblock" isdesigned to identify substance abusersand get them into rehabilitationprograms, with the understanding thatpersons who complete the programsuccessfully will retain their jobs. Theprogram relies on voluntary self-referral(where the employee agrees to seek helpbefore an on-duty alcohol violation.based on his or her own initiative or anEAP contact by a family member orother concerned person), and peer-referral (where the co-worker notes on-the-job alcohol use and identifies theuser as unsafe to work with). Employeeshave a natural reluctance to report on afriend when it means that the friendcould lose his or her job. BecauseOperation Redblock allows employeesto bypass disciplinary rules, oneimportant aspect Of the program is thatit helps overcome this. reluctance.Operation Redblock also includes anopportunity for treatment even wherethe employee's alcohol or drug use isdetected through management action;but this is a special "incentiveprovision" offered in exchange foremployees' active participation, throughprevention committees, in ruleenforcement. As such, it may be moreappropriate for negotiation betweenemployer and employee than as aregulatory requirement.

A somewhat similar alcoholprevention program for airline pilots isrun by the Air Line Pilots Associationand many of the major airlines. Also,Coast Guard regulations allow licensedpersonnel to voluntarily deposit theirlicense, certificate or document and seekdrug or alcohol rehabilitation prior tobeing subjected to a suspension orrevocation proceeding for intoxicant-related incompetence. (This option isunavailable if the person caused anaccident.) The document will not bereturned until the individualsuccessfully completes a rehabilitationprogram and participates in a post-rehabilitation monitoring program.

Through some combination ofregulation and promotion of voluntaryefforts, these types of programs could beused in all transportation industries inorder to encourage more people to stepforward and receive help. It is morelikely to result in the employee seekingearly treatment. A critical issue is when

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the opportunity for treatment will beoffered. If an individual knows that heor she automatically will be providedrehabilitation after testing positive, heor she may have no incentive tovolunteer before being detected orcausing an accident. Of course, peerreferral may not be possible ini sometransportation operations (e.g., segmentsof the trucking industry). We ask forpublic comment on how successful thisapproach is in the industries where it isused. Is it appropriate for all modes oftransportation? For small companies aswell as large? What could be done forowner-operators? Would this approachbe successful with respect to personswho abuse both alcohol and otherdrugs? Would it be appropriate for theDepartment to require such a program inlight of the fact that it did not think itappropriate to do so in the drug testingrules? We are especially interested indata on current rehabilitation efforts bytransportation employers: the cost of theprogram, the success rate, specificimplementation problems, and so forth.

d. Implementation Issues. If wepursued the rehabilitation option, shouldwe mandate the particulars of arehabilitation program? Who should payfor inpatient rehabilitation and thesubsequent monitoring program? Shouldan employee continue to be paid whileundergoing rehabilitation? What wouldbe the economic costs of holding the jobopen? Would this be an impossibleoption for small companies? Should theybe exempt or would that have adverseeffects? How much time should anemployee be allowed to complete arehabilitation program, taking intoaccount how long it may take anemployee to be'admitted into one? Weare interested in comments on how toimplement opportunities forrehabilitation among small companiesand owner-operators.

e. Medical Review Oficers. The kindof rehabilitation program needed(inpatient, outpatient or counseling/abatement) will necessarily vary fromcase to case. Who should make thatdetermination? Under the drug rules,employers are required to appoint ordesignite a Medical Review Officer(MRO) to review the results of theemployer's drug testing program,interpret each confirmed positive testresult, and evaluate an individual whohas undergone rehabilitation before heor she can return to the job. Should asimilar requirement be included in anyalcohol rule requiring or permittingrehabilitation? How would an MRO"verify" a positive in an alcohol case?Should an MRO have to be a licensedmedical doctor or other substance abuse

professional? Are there distinctionsbetween the necessary qualifications foran MRO in the drug area and one in thealcohol area? The MRO could be acurrently employed company physicianor could be a private physician whoperforms MRO service for the employeron a contractual basis.

D. Enforcement

1. General.

The Department relies mainly on thestates to enforce its highway andmaritime regulations against personsoperating while intoxicated. In recentyears, it has encouraged greaterenforcement efforts by the states againstalcohol and other drug abuse. NHTSAhas several programs to providefinancial and technical assistance tostates for improving laws and programsto combat alcohol- and drug-impaireddriving. As discussed in Appendix B,FHWA and NHTSA have regulationsthat require states to adopt minimumBAC standards for commercial motorvehicle operators and to implement theminimum age 21 drinking age law,respectively, or face the loss of somefederal funding.

2. Effectiveness of Deterrent Actions

Enforcement is the most importantdeterrent activity, when accompaniedby sufficient public visibility. Forexample, if motor vehicle DWI offendersare not arrested, nosanctions can beimposed and no deterrence can occur.However, even if there is an increase inenforcement, this does not ensure thatdeterrence will result, since the publicmay not be sufficiently aware of suchefforts.

The effectiveness of enforcementefforts has been recently summarized byVoas and Lacey (1988) and theeffectiveness of roadside checkpointoperations has been summarized byDickman (1987). Highly visibleenforcement, particularly the frequentuse of roadside sobriety checkpoints,has frequently, but not always, resultedin reductions in alcohol-related fatalcrashes or in surrogate measures. Manyof the examples of such reductions havebeen in foreign countries (Ross 1973;Ross 1984; Homel 1986; Ross 1988). Inthe United States, positive results havebeen documented for programs inLargo/Clearwater, Florida (Lacey et al.1986); Charlottesville, Virginia (Voas,Rhodenizer and Lynn 1985); Arizona(Epperlein 1986); Stockton, California(Voas and Hause 1987) and BergenCounty, New Jersey (Levy, Shea andAsch 1987). Additional evidence for thedeterrent effects of roadside checkpointshas been provided by Williams andLund (1984), who found that drivers

perceived higher enforcement levels inareas where checkpoints were used thanin areas where they were not used, eventhough actual arrest rates weresometimes higher in the latter. As a rule,15-30 percent reductions in alcohol-related fatal crashes have beendocumented in the above studies. Mostof the observed reductions weretemporary in nature, primarily becausethe enforcement efforts, themselves,were short-term. However, it would beimproper to criticize enforcementprograms for providing only temporaryreductions when these programs havemore frequently resulted in "bottom-line" reductions in crashes than anyother approach. Further, the ongoingroadside checkpoint program in NewSouth Wales, Australia IHomel,Carseldine and Kearns 1988) hasdemonstrated that long-term reductionsin alcohol-related fatal crashes can beeffected with long-term enforcementemphasis.

The deterrent effects of sanctionshave been reviewed by Voas (1986),Peck, Sadler and Perrine (1985) and byNichols and Ross (1988). Nichols andRoss reviewed studies of the specificand general deterrent effects ofconfinement, license suspensions, finesand, to some extent, treatmentprograms. They concluded that allsanctions provided some evidence of.impact but that license actions providedconsistent evidence of both specific andgeneral deterrence effects. With regardto the effectiveness of licensesuspensions on offenders who receivethem, several controlled studies foundthat license suspensions have asignificant impact on a variety of trafficsafety measures, including subsequenttotal convictions, total crashes, alcohol-related crashes, non-alcohol-relatedcrashes and serious injury and fatalcrashes (e.g. Hagen 1977; Popkin et al.1983; Blomberg, Preusser and Ulmer1,987; and Preusser, Blomberg and Ulmer1988). In addition, several controlledstudies provided evidence of a generaldeterrent impact, as reflected bypopulation-wide reductions in alcohol-related fatal crashes (e.g. Blomberg,Preusser and Ulmer 1987; Ross 1987;Zador et al. 1988; Klein 1989). Theresults of these studies providereasonably sound evidence that thedeterrent effects of license suspensionsextend beyond those offenders who arecaught and sanctioned. Nichols andRoss speculated that this was at leastpartially because license actions arefeared more by DWI offenders than anyother sanctions. Nearly all of the studiesthat found reductions in crashesfollowing an increase in the use of

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license sanctions were studies ofadministrative license suspension laws.This suggests that the certainty ofimposing license actions is also likely tobe an important factor.

In summary, it is likely that the effectof the arrest itself results in reduceddrunk driving among those offenderswho are caught. Further, enhancedenforcement efforts can extend suchdeterrent effects beyond offenders whoare caught. In addition, it appears thatthe imposition of license sanctions (andto a lesser extent jail sentences) onoffenders who are caught results inreductions in their recidivism ratesbeyond those caused by arrest. Much ofthe reduction in recidivism amongoffenders receiving license actionsappears to be due to reduced exposure,rather than deterrence itself. However,since frequently-imposed licensesanctions, like high visibilityenforcement, have been shown toreduce alcohol-related fatal crashes on apopulation-wide basis, a significantelement of deterrence must also beoperative.

3. The National Driver Register

The National Driver Register (NDR) isa central, computerized index of statereports on drivers whose drivingprivileges have been denied, suspendedor revoked. Applications for driverlicenses in many states are routinelychecked against the NDR to screen forpotential problem drivers. In 1986,Congress enacted legislation to require auniform national commercial driver'slicense to end a driver's ability to obtaina license in one state after losing one inanother. The Commercial Driver'sLicense Information System, which istied in with the NDR, enables the statesto check commercial driver's licenses bycomputer.

Recent legislation has expanded therole of the NDR to allow FAA and therail industry to use it to locate andreview individual driving records toscreen qualifications of airline pilotsand locomotive engineers. Theinformation would be used as anindication of a possible alcohol abuseproblem, as well as evidence of anymisrepresentation on their FAA medicalapplications. The FAA and FRA arecurrently considering regulations thatwill implement this legislation. TheDepartment also has proposedlegislation that would authorize theCoast Guard to use the NDR to obtaininformation on driving-recordsviolations of merchant mariners.

Should the Department seek access tothe NDR for the other modes oftransportation? Would information onconvictions be useful for identifying

possible alcohol abusers in sensitivesafety jobs not requiring a Federallicense? Are there additional steps thatthe Department could and should take toincrease enforcement of the existingregulations? Should additionallegislation be sought as incentives foradditional state or local action in lieu ofor as a supplement to the otheralternatives discussed in this ANPRM?What would be the advantages of suchan approach and what would its impactbe on federalism? How can theDepartment best make use of the states'expertise and position in the field toincrease enforcement?

E. Alcohol Testing Program

Under this option, employers wouldbe required to institute alcohol testingprograms, perhaps similar to our drugtesting programs. However, the drugprograms focus on illicit use andcontrolled substances, and thus presentdifferent issues than would an alcoholtesting program: In some ways, theissues raised by an alcohol programcould prove t6 be more difficult thanthose of drug testing. They are morecomplicated simply because alcohol is alegal substance.

Below, we discuss a series of issuesand raise questions for commenters toaddress. These are relevant to pursuingthis option.

1. What to Prohibit?

An important issue is what use ofalcohol to prohibit. In addition tocurrent restrictions, the Departmentcould prohibit: (1) Any use affectingwork, reflected by the presence of any,alcohol in a covered employee's bloodduring working hours; or (2) impairmentand/or intoxication on the job, asexpressed by given BAC levels orbehavior; or (3) a combination of bothfor different employees or differentsituations.

Drug testing rules target drug usage byemployees, regardless of whether theuse occurred on- or off-duty. This makessense because the drugs we test for areillegal and no one yet has developed thecapability to determine, basedexclusively on a chemical test, at whatlevel a particular drug impairs the user'sperformance of a particular function andcan have devastating safetyconsequences; Our current alcohol rulestarget both use and impairment byprohibiting the employee from drinkingon the job or just prior to reporting towork, or from performing a safety-related function under the influence ofalcohol identified by a certain BAGlevel. Data relating body fluidconcentrations of alcohol to

performance decrements is moreextensive than that available for drugs.

Should we expand testing for alcoholbeyond the current FRA, Coast Guard,and FAA (consent to testing) rules? Ifwe decide to test, would the approachwe took with our modal drug rules beappropriate? That is, should theDepartment undertake to maketransportation workers alcohol-free? Isthis practicable, given the fact thatalcohol is a legal substance? Is itnecessary, or does the accident recordindicate that an absolute prohibitionwould be a case of over-regulation? If.,zero" is an unrealistic or unnecessarygoal, where should the line be drawn?We would like to hear from companiesthat prohibit alcohol consumption bytheir employees on how they enforcethis prohibition and whether theirprograms are successful.

The issue of being under the influenceof, or impaired by, alcohol is morecomplicated than simply, having drugs inone's system. Tobe legally relevant, theuse or impairment must occur in thecontext of job performance. Drinkingduring most off-duty periods may or maynot impinge upon a person's ability tofunction well in the job, but generally byitself is not illegal. Focusing our effortson detection of alcoholics would not besufficient to address the problem.Drinking that causes on-the-jobimpairment poses a serious dangerwhether or not the drinker is analcoholic.

What function the person isperforming is important. Finding a BAClevel of .04 in an aircraft pilot who is onduty but simply filling outadministrative paperwork in an officemay be irrelevant to safety; i.e., theeffects on his ability to performpaperwork are not related to safety.Therefore, we might only want to testpilots when they are about to enter orleave the cockpit as opposed to whenthey are performing administrativeduties. Such a requirement couldcomplicate the logistics of testing,especially for those people that move inand out of safety-sensitive functionsduring the workday.

Should testing be limited to thosetimes when the employee is about toperform or is performing a safetyfunction? What are the likely,implementation problems? Would it betoo difficult to: set up a program torandomly test pilots, for example, whenthey were, about to perform or wereperforming sensitive safety functions?

Do different functions demanddifferent standards? For example,should we continue to have differentrules for commercial'versus private

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operators? What about different jobcategories-should a pilot be held to ahigher standard (i.e., a lower BAC) thana flight attendant or a' dispatcher?2. What is a Positive?

If the Department were to requireindustry testing programs for alcohol,one of the most difficult issues to decidewould be what blood level of alcoholwould constitute a "positive" test. Theconsensus of DOT rules and practicewould appear to support, as a measureof intoxication, a per se prohibited levelof .04 percent. (It should be noted thatFRA leaves a conservative margin oferror of about .01 percent for fieldtesting. Thus, the effective per se level is.05 percent.) However, some currentrules imply a tighter standard. Forexample, FAA prohibits crewmembersfrom drinking less than eight hoursbefore flight. To enforce this rule, theFAA might want to set a lower BAC ona "positive" level, on the theory thatsomeone at a given BAC level hadImbibed within the eight-hour period.

Others might argue that .04 is toostrict a standard, that it would have theeffect of outlawing alcohol since it isdifficult to establish with certainty howlong alcohol will stay in a particularindividual's system. Still others wouldargue that the permissible level needs to-vary depending on, for example,whether an individual is about to fly anaircraft.or fill out paperwork.

In its comments on the FHWArulemaking that established the .04 BACstandard for driver disqualification, theNTSB recommended that a zero BAClevel be used as the standard, becauselower BAC levels have some impairmenteffects. FHWA accommodated thisposition by requiring that commercialmotor vehicle operators with anymeasured BAC standard be placed out-of-service for the next 24 hours. We donot intend to reopen the issue ofwhether specific modal standardsestablished for use within the existingregulatory framework should bereVisited. However, in the context ofconsidering additional regulatory action,including the possibility of additionaltesting requirements, we do believe thatit is necessary to consider theappropriate BAC level to be used underthe different alternatives..

What constitutes impairment? Whatimpairment effects do hangovers have?How can we detect this type ofimpairment? Should we try? Moreover,how can we avoid establishing apiogram that encourages "binge"'drinking a sufficient number of hoursbefore work to avoid positive BAC tests,but then results in the adverse effects ofhangovers? Commenters should address

how a program should be structured andwhat BAC cutoff should be applied.Commenters should also discusswhether sanctions should differ fordifferent BAC levels.

3. Treatment of PositivesFinding alcohol abuse by an"

individual performing a safety-sensitivefunction raises questions about how totreat that individual. Because alcohol isa legal substance, the questions maywarrant different answers from the onesthat would be given concerning a similarindividual who had used drugs. Theanswers also would depend upon whatuse of alcohol we prohibit. The majorissues that would have to be confrontedinclude: Should any action taken againstan individual who tests positive dependon-or vary with-whether theindividual is performing sensitive safetyfunctions when tested? Should theconsequences of testing positive bedifferent for persons known to bechronic abusers versus persons caughtunder the influence one time? Howcould dependency on alcohol beaccurately determined? Should theemployee merely be kept out of thesensitive safety job until sober? Orshould rehabilitation be required forevery person testing "positive" beforethat person could be returned to the job?Should action vary depending on howhigh the BAC level is? How should wetreat persons who suffer from multipleaddiction to both alcohol and drugs?

4. Occasions/Grounds for Testinga. General. In the Department's drug

testing rules, we requiredpreemployment, periodic, reasonablecause, post-accident and random tests(special testing also is required forrehabilitated employees). Dependingupon what use we prohibit, alcoholtesting, unlike drug testing, may not bethe most effective means of detectingabuse in all circumstances. Thepresence of alcohol is relatively easierto detectfrom physical symptoms (e.g.,breath) or behavior (e.g., inability towalk a straight line) than drug use(although alcohol symptoms often canbe successfully masked), and people aremore familiar with the symptoms ofalcohol intoxication. Also, the time-frame for testing is limited, because thebody processes alcohol within hours ofingestion. If we decide to prohibitimpairment, rather than use, the timeframe for testing would be furtherlimited to the time the job performance.For that reason, certain types of testingmay not be as useful for alcohol as theyare in testing for drugs. Along withcomments on the utility and need for.alcohol testing in general, we .

specifically invite comment on thesuitability for alcohol testing of thedifferent types of drug tests(preemployment, periodic, reasonablecause, post-accident and random).Commenters also should address theutility of each type of test. In this regard,we invite comments as to whetherdifferent types of tests are called for indifferent circumstances, such as bloodtesting only following an accident.

b. Preemployment Testing.Preemployment tests (for job applicantsor current employees transferring into'covered positions) may or may not berelevant, because• testing normallywould occur when the applicant is notperforming any sensitive safety function.However, they may provide helpfulinformation for use by a medical officerin determining whether an individualhas a problem.

Drinking prior to interviewing with apotential employer is not illegal eventhough it might be imprudent. Therefore,there are legitimate questions about thesignificance of a positive test. On theother hand, it is possible that it could beused, along with other indicators, as awarning signal about alcoholdependency. It might also be useful asone tool among many for an employer todetermine whether an applicant can beexpected to perform reliably in a safety-related function. For example, thepresence of alcohol may indicate theneed to ask follow-up questions of theapplicants to determine whether therewould be a potential safety problem.Would such a test provide sufficientbenefits to warrant requiring it? Wouldit be necessary to limit the use of anypositive results; i.e., should we prohibitrejecting an applicant solely on thebasis of a positive test?

c. Periodic Testing. As withpreemployment testing, a primarypurpose of periodic testing (at required,scheduled physicals) would be toidentify persons who may have analcohol problem. Periodic testing oftenoccurs during off-duty hours when thefact that the employee may be under theinfluence is not necessarily relevant tohis or her job performance. Unless wedetermine to prohibit employees fromhaving any alcohol content during aphysical examination, the primarypurpose Of such a test would be as ameans of alerting employers to someonewho may be a candidate for referral toan EAP or otherwise evaluated forsubstance dependency. Adding analcohol test to the regimen for a requiredphysical might be beneficial because theexamination might not otherwiseidentify the employee's problem. If ablood sample is already taken and could

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be used, it could lessen any legal or costobstacles. Would this type of test'provide sufficient benefits to warrantrequiring it? As with preemploymenttesting, should we limit the use of anypositive results?

d. Reasonable Cause Testing.Reasonable cause testing would beuseful to determine impairment duringjob performance. It would be based, asin drug testing. on a-rule violation (e.g.,FRA rule now provides for this) and/oron a reasonable suspicion by one ormore supervisors that an employeeappeared to be under the influence. (Thestandard for triggering a test woulddiffer depending on whether thesubstantive prohibition ofalcohol abusewent only to Intoxication on the job orto any measurable BAC while theemployee was working.)

Because alcohol use often (at least athigher levels) results in more observablesymptoms (and because more researchhas been done on how to train people tomake these observations]. this test maybe more valuable for alcohol than fordrugs. Although a supervisor may notknow if the behavior is' alcohol-related,whatever its cause it could support adecision to refuse to let the personoperate in a sensitive safety position.Supervisor observation would not be acomplete solution, however, "practiced"drinkers can appear normal (e.g., theycan walk a straight line) and avoiddetection. Also, supervisors may havereasons to overlook employee alcoholuse (e.g., sympathy for employee anddealing with problem is too muchtrouble). The Army has found thatsupervisors have a tendency tounderreport alcohol involvement inaccidents (The Alcohol and AccidentsGuide, February 1987). Commenters alsoshould address how to reduce thepossibility of harassment. Wouldprocedures similar to those for our drugtesting rules (generally requiring twosupervisors, etc.) be appropriate? Also,would this test be especially valuable inconjunction with reasonable causetesting for drugs? If an individual'sbehavior raises suspicion and theperson tests negative on an alcoholbreathalyzer, some enforcementpersonnel might suggest performing a'.drug test.

e. Post-Accident Testing. Post-accident testing is already required byfederal regulation in some modes, andserves as a valuable accidentinvestigation and enforcement tool.States also conduct post-accident tests,depending upon the circumstances. Post-accident testing at remote locationsmight be more difficult to accomplishthan drug testing, because alcohol

passes from the blood and breath more,quickly than most drugs. Delays fortransportation of trained personnel to atest site cpuldriesult in negative orinconclusive tests. Requiring a bloodtest, for example, to be conducted 'within a very limited time co'uld raisethe costs tremendously by requiringexpensive forms of transportation insome instances. Therefore, it may benecessary to use preliminary breathtesting. This also may require the use oftrained people and special equipment.Commenters are invited to address thisquestion, including the additional costthat may be involved and any specialproblems that field breath testing wouldpresent in'terms of the integrity of thetest process.

The drug rules require employers totest employees involved in an accidentas soon as possible, but not later thanspecified maximum time limits(generally 32 hours). For the FRA, theaverage period of time' is about 5 hoursto get blood, but railroads run on trackand accidents occur within limitedareas, unlike aviation or maritimeaccidents, Within what period of timeafter the accident should an employeebe tested for alcohol? Should we arrangewith state enforcement and/orinvestigative personnel to carry out suchtesting if the accident occurs in a remotearea? They may be the first governmentofficials able to get to the scene and aresometimes equipped to conduct fieldalcohol breath tests.

f. Random Testing. Under theDepartment's drug rules, companiesmust conduct random drug tests at a 50percent annualized rate; that is, thenumber of annual random testsconducted should equal half the numberof the testable population. Becausealcohol is rapidly eliminated from thebody, random testing might be lesseffective for employees who, forexample, do not work close to a place'where a test can be conducted. Thedeterrent effect of random testing mightbe reduced for the same reason.Commenters are requested to focus onhow the objectives of random alcoholtesting (e.g., deterrence) could beaccomplished. Should we use a higherthan 50 percent annualized randomtesting rate? Because alcohol isgenerally eliminated from the bodywithin hours, can these tests be,effectively administered? Is it tooexpensive and inefficient a means ofidentifying abusers? Does it make senseif we only prohibit impairment on thejob, rather than any alcohol use? Asdiscussed earlier, must any randomtesting be limited to the specific timesan employee is performing a sensitive

safety- or security-related function? Ifso, how would this complicateimplementation of a testing prograr? Ifalcohol misuse is more easily uncbveredthrough observatioi and reasonable'cause testing, wvill random testing addenough more deterrent effect to anoverall program to meet constitutionalmuster?

g. Pre-Performance Tests-1)-General. Pre-performance testing couldpotentially be used in lieu of other formsof alcohol testing. Depending upon theindustry, supervised testing could beconducted before a covered personassumed his or her duties on'board aplane or ship, or unsupervised self-testing-type systems could be used toprevent a vehicle from operating if aperson failed a test.

The advantage of pre-performancetesting is that it detects an employee'simpairment at the time he or she beginsto perform sensitive safety- or security-.related functions in a job where it isillegal to be under the influence ofalcohol. Of all the kinds of testing, pre-performance tests may offer the mostdirect nexus to improving safety. Theyalso could provide a strong deterrent.However, pre-performance testing maynot be feasible for certain industries.Furthermore, technological and costissues have not been resolved for sometypes of tests.

(2) Pre-Performance Testing: UnderSupervision. An individual could begiven a BAG test prior to performing asensitive safety- or security-relatedfunction. This type of test is now beingdone in Alaska by Alyeska PipelineService Company. All crewmembers aretested prior to being allowed to work.Crewmembers that fail the test are notpermitted to work until a test is passed.

This same system, or a variation,could be employed in other industrieswhere an individual reports to a specificstation before operating a commercialvehicle. For example, in some segmentsof the trucking industry, drivers report toa central dispatch facility every day andreturn at the end of the day. Mostcommercial pilots also report to acentral location prior to flying. In suchinstances, supervised BAG testing maybe feasible. In other segments of the twoindustries noted above, supervised BACtesting could be impractical andunmanageable. However, the systemeventually decided upon by theDepartment to check for alcohol wouldnot need to be uniform in every respectand in every segment of each of theregulated industries, if circumstanceswarrant different approaches. This may.make the rules more complex, but couldprovide necessary flexibility to

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companies. In addition, it might beappropriate to give companies theoption of conducting either a pre-performance test or a random test.

Commenters should address how sucha system could be developed for eachindustry, and the costs of such a system.We, are also interested In the experiencegained by the use of such tests in theU.S., as well as in other countries. Whatare the benefits of a pre-performancetest? How would such benefits comparewith a random test? How should a pre-performance positive test be treated?Any rule implemented would prohibit anindividual from operating a commercialvehicle (aircraft, vessel, etc.) if a testwere failed. However, commentersshould address the need for regulationsthat mandate what additional actionshould be taken upon a positive test?Are sanctions needed, or should suchsteps be addressedby individualcompanies? Would alternative alcoholtesting requirements (e.g., pre-performance vs. random) provideflexibility to companies? is flexibilityneeded? To be effective,. must pre-performance' tests be conducted beforeall operations,'or could they be done ona random basis? How often? Shouldtests be performed at a central meetingplace prior to an employee's assumptionof duties or should the test be attachedto the vehicle's ignition system(discussed below)? Could-an employeesimply start drinking after passing thepre-performance test?

(3) Pre-Performance Testing:Unsupervised. The Department, throughNHTSA, began to investigate the use ofin-vehicle alcohol test devices (ignitioninterlock devices, referred to as "IID's")in 1968. The types of devices developedover the years have focused on breathand performance type tests; generally, ifa driver does not pass the test, thevehicle will not operate or, under somesystems, if operated, the emergencyflashers or horn will automatically gooff.

A recent report submitted to Congressdescribes the effectiveness and potentialfor application of ignition interlockdevices to prohibit operation of motorvehicles by intoxicated drivers.("Potential for Application of IgnitionInterlock Device to Prohibit Operation ofMotor Vehicles by IntoxicatedIndividuals: A Report to Congress".)NHTSA also performed laboratorytesting for commercially available in-vehicle test devices. ("FurtherLaboratory Testing of In-VehicleAlcohol Test Devices.")

Initially, attempts to develop liD'sbased on breath alcohol tests werehampered by technological limitationsand concerns that they were too-

susceptible to circumvention orcheating. At this point, however, theNHTSA report notes that theseproblems have been partially orcompletely solved. The new devices aremore reliable and accurate, and aredesigned to prevent or detect manyforms of tampering and circumvention.NHTSA tests have indicated that thedevices are more difficult to circumvent,but relatively uncomplicated strategiescan still be used to "fool" these devices(e.g., use of bogus air samples or filters).In spite of these evasive practices,.improvements are possible that wouldfurther address potential circumvention.NHTSA also noted that liD's are nowbeing used by a specific populationgroup (those subject to court supervisionbecause they are convicted of drivingunder the influence) In passengervehicles. Their placement in general usewould likely meet public resistance dueto costs. It should also be noted that theexperience gained thus far has been inpassenger motor vehicles only. Whatwould the costs be to install comparabledevices in commercial vehicles? Whatabout vehicles used in other modes oftransportation?

(a) Performance Tests. Early researchon IID's had focused on performancetests as well as breath tests. However,research and development work haveindicated that while performance testsmay be operationally feasible, a usefuldevice does not yet exist.

The Canadian transportation ministryfunded research that compared oneperformance test, the Critical TrackingTester (CTT), with another, theTracometer. The CTT requires a driverto keep a pointer centered on a dial byappropriate movements of the steeringwheel. The device generates randommovements of the pointer at anincreasing rate, requiring the driver tomake corrective movements at anincreasing speed. The Tracometerrequires a driver to align a pointer withone of five targets that are randomlyilluminated, requiring the driver to turnthe wheel in the opposite direction ofthe desired pointer direction. Theresearch concluded that the Tracometerprovided better discrimination than didthe CTT in detecting BAC limits (0.08 inCanada). However, the researchersconcluded that while the Tracometerappeared to be promising, further workwas necessary before a practical devicewould be available.

The NHTSA report concludes that auseful device does not yet exist and thusmore work is needed. For example, theCTr's are least accurate at moderateBAC levels (0.05-0.10). The report alsonotes that there is apparently little

development work currently being doneon performance-based systems.

(b) Breath Tests Using IgnitionInterlock Devices. With respect tobreath alcohol testing, there arecurrently:three lID's available on themarket. Basically the devices are asimple form of a portable breath -tester,but are-not as sophisticated asevidential quality breath tests used bythe police. The three IID's are fairlysimilar. Each has three components: analcohol breath test unit, an electroniccontrol device, and a connector to thevehicle's ignition and electrical system.The alcohol sensor is a breath test unitthat is a hand-held unit and requires thedriver to blow into the device. Only ifthe driver passes the test can the car bestarted. The devices use differentsensors (pressure and/or temperature)to reduce the likelihood ofcircumvention.

The lID's currently are marketedprimarily to traffic courts for use withdrivers convicted of DWI/DUI. Suchdrivers may be required by the court toinstall a device on their car.(Manufacturers envision further use ofthe devices, such as by fleet owners orcommercial vehicles.) Nine states havepassed legislation authorizing the use ofliD's with convicted DUI offenders. InCalifornia, for example, a two-yearprogram was initiated and terminates atthe end of 1989, when an evaluation willbe made. (California's interlocks preventpersons' with a BAC of 0.03 or abovefrom starting the vehicle.) Other statesare also considering legislation.

Based on the information available todate, the NHTSA report reached a seriesof general conclusions about the newbreath test ignition interlock devices.These conclusions are listed inAppendix C.

Commenters should address thefeasibility of implementing such aprogram of IID's for a particularcompany or industries, and specify thepotential problems if such an approachwere adopted. Would these deviceshave any application to types ofvehicles other than motor vehicles? Willemployees accept such devices? Whatare the practical problems of suchdevices? Will such a system be effectivein cutting down the use of alcohol in thetransportation industry? If used in thecontext of preperformance testing, whatstaffing problems would this cause?How will it affect accident rates? Whatare the costs? What are the ways ofgetting around the system? Even if thesystems are not 100 percent tamper-proof, will the fact that such machinesare in place make employees moreaware of the need to stay sober? Are the

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devices cost-effective if this is the case?Finally, IID's are accurate in detectinglow BAC levels. Would the usefulness ofthe tests be affected if we prohibitedany positive BAC level?

NHTSA estimated that the one-yearlease costs for one IID could be as highas $400-$500. Would lID's be costeffective? How would lID costs compareto random testing costs, for example?

We welcome public comment on anyadditional new technological devicesthat are accurate and reliable.

h. Post-Rehabilitation Testing.Another approach would be to improvethe follow-up of alcohol abusers whoreceive treatment and re-enter the workforce. Alcohol testing could be useful aspart of post-rehabilitation monitoring.Once an employee has undergonerehabilitation, there is a need to ensurecontinued disassociation from alcohol.However, many substance abusers donot restrict themselves to one type ofdug; they often combine drugs,including alcohol. Alcohol testing couldbecome a useful part of the follow-uptesting of rehabilitated substanceabusers.

Is there any data that shows alcoholuse rises when drug use declines, orvice-versa? Should we require post-rehabilitation monitoring and arecommendation for reinstatement fromthe MRO or EAP counselor before anemployee can be returned to the job? Ifnot, who should make the decision onwhat kind of rehabilitation the employeeneeds? Who should make thedetermination that the employee hasestablished control over the substanceabuse problem and has a good prognosis,for recovery? Should there beprocedures by which the employee cancontest a determination that he or she isnot ready to return to work?

Should there be a uniform testingperiod after rehabilitation, or should thisbe determined on a case-by-case basis?If we adopt a uniform post-rehabilitationperiod, how long should it be? Shouldthe length of the follow-up perioddepend on the BAC level that wasdetected? Should it depend on theseverity of the individual's alcohol,problem, as indicated by the kind oftreatment that was found to benecessary? (For example, shouldsomeone undergoing inpatientrehabilitation be subject to post-rehabilitation testing for a longer timethan someone who needs onlyabatement counseling?) Who shoulddecide? Recognizing that alcoholismmay be a lifetime disease, is there aperiod of time after the initial phase ofrehabilitation when a relapse is mostlikely and during which testing would bevaluable? If so, how long is that period?

What should happen to a person whotests positive after completingrehabilitation? During the post-rehabilitation period, should weprescribe the minimum and/ormaximum number of tests to beadministered? We would want to ensurethat any necessary tests would be givenfrequently enough to ensure that theemployee is not abusing alcohol. At thesame time, however, we do not wantalcohol testing to become an instrumentof harassment.

One alternative, on which we alsoinvite comments, is a specified post-rehabilitation testing period that wouldapply only if the employee, the MRO,the EAP counselor, and perhaps theemployer failed to agree on anindividualized program. Such a fall-backsystem could provide, for example, forup to four additional tests during the 12months following rehabilitation.

VI. Means of Alcohol Testing

A. IntroductionThis sectiofi contains a discussion of

the principal methods for conductingtests for the consumption of alcohol,including a list of some of theadvantages and disadvantages of eachmethodology. Comments are requestedconcerning the cost and practicality ofthe various methodologies. Commentersshould give references to specificstudies in support of their comments.

B. Breath TestingThere are two types of breath testing

devices: (1) The preliminary breathtesting {PBT) device, discussed above Inthe preperformance section, a hand-helddevice that is useful as a screening tool;and (2) the evidentiary breath testingdevice (EBT), generally a larger machinefound in police stations, that canprovide results allowed as evidence inlegal proceedings. The FRA allows theuse of PBTs exclusively as a screeningtechnique and requires evidentiarytesting to follow.

In the breath alcohol test, often usedby police agencies to test suspecteddrunk drivers, the subject blows into amachine that makes a chemical analysisof the expelled breath. The machineprovides a reading expressed in terms ofblood alcohol concentration. Breathtests, although they may be consideredsomewhat invasive, may neverthelessbe less invasive and thus moreacceptable to some people than otherforms of tests. They provide areasonably accurate measure of BAC, atleast if they-meet NHTSA specificationsfor accuracy and are properlycalibrated. Many states accept theresults of evidentiary breath testing

devices as per se determinants ofintoxication.

Perhaps most significant In thecontext of workplace testing, breathtesting, unlike blood and urine tests,provides an immediate response, so thatfollow-up action can be institutedpromptly. In addition, it does not requireelaborate chain of custody proceduresfor collection or laboratory analysis,since no specimens have to be sent to alaboratory for analysis.

On the other hand, breath testingrequires specific training and a qualitycontrol program to ensure properadministration of the test andcalibration of the device. Calibrationrequires proper use of a breath alcoholsimulator, which in turn may requirethat the unit be set up by a chemistfollowing a specified procedure. Theinitial costs of EBT's (between about$400 and $5,000), as well as the costs ofcalibration, are substantial.

Comments are requested onprocedural standards for conducting abreath test. We note that no nationallyaccepted standards exist, although theFRA, for example, has developedguidance materials for its programs.Each state, however, has its ownstandards for police administration ofbreath tests, and these standards varyconsiderably.

One potential problem with breathtesting is that no sample remains afterthe test for retesting in the event of achallenge. This is of particular concern ifthe test is administered by the employer,because some employees may questionthe neutrality of the test; in such casesblood tests might be necessary- in orderto confirm a "positive" breath test -result. What qualifications shouldpeople have to administer a breathalcohol test? Is there any need toconfirm a breath alcohol test? Werequest comment on whether any haveused this approach and had problems.

C. Blood Testing

In this approach, a blood sample istaken from the individual, by normalImedical procedures for taking bloodsamples. The sample is sent to alaboratory where it is analyzed forblood alcohol concentration.Measurement is thus made of the actualblood alcohol concentration and the testdoes not rely on breath/blood partitionor on interpolation from the urineconcentration. Blood testing is acceptedin all jurisdictions as evidenceconcerning whether the testedindividual is or is not intoxicated. Whilethe test must be conducted in alaboratory, the medical technologyrequired is not especially great; there

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are many laboratories that can performthese tests competently, although thereis no certification program comparableto that offered by the Department ofHealth and Human Services for drugtesting. (DOT's Transportation SystemsCenter doesconduct a voluntaryprogram of laboratory proficiencytesting. Laboratories that sign up for theprogram are given blood -samples withknown quantities of alcohol; if the labprovides an inaccurate test result, it isnotified so that itcan correct itsprocedures or equipment.)

Nevertheless, blood testing is the mostphysically invasive of all forms ofalcohol testing, and some people may beafraid of having blood drawn..Inaddition, taking a blood sample, whilerelatively simple, isstill a -medicalprocedure, .and s'hotld be performedonly by a qualified professional ortechnician and only at a suitablephysical location. It 'may not be feasibleto conduct field sampling of employees'blood. We 'seek comment on how thosewho have used this procedure havehandled employee fear and otherimplementation problems.

Blood 'tests have thesame problemsas any other test that must be sentto alaboratory :(including the drug -testsrequired by the-Department). That is, theresults of'the test are not immediatelyavailable, 'so'there would inevitably be adelay tefore employers would be abletoidentify the need for further action. Andit would be necessary ,to.establishcollection, chain of custody andlaboratory procedures analogous tothose for urine testing. We .ask forcomment on whether any acceptableprocedures exists.D. Urine Testing

Jn this approach, .employees 'wouldgive a urine sample, just as in the caseof drug testing. The simplest method ofadministering a urine test would involvecollecting a single sample. This wouldprovide evidence with respect'to prioralcohol use, but would.not give areliable indication o'f the current BAClevel. A more elaborate two-stepprocess can indicate current alcohollevels. In the first step, the test subjectvoids. The collector then waits until thesubject can give a second sample,typically at least one-half hour. Thesecond sample, since it includes onlynewly excreted fluids, can beinterpolated to calculate theapproximate -blood alcoholconcentration. The success of thismethod requires that the initial void becomplete. The double void will takemore employee time than the 'single voidneeded for .urine drug testing, thusincreasing costs.

Compared to blood testing, urinalysisis less invasive physically, although itmay be considered more of a privacyinvasion. Of all the types of tests, it hasthe advantage of requiring the least skillto perform the on-site steps. In addition,since urine samples are already beingtaken for drugs, a requirement toinstitute 'alcoholtests might require noadditional personnel orzon-siteequipment. This could bea significantcost advantage.

The disadvantages of urinalysisparallel those df drug testing. The delaynecessary between the time of collectionand the time results :are available meansa corresponding delay before correctiveaction or rehabilitation can be begun,where mecessary.

In 'addition, there-is 'no uniform :cut-offparallel to BAC and, ,except for theTransportation Systems Center's limitedand voluntary laboratory proficiencyprogram, there is no nationally-recognized system of regulation forlaboratories performing .alcohol 'tests.There 'is no question thata urine test,particularly a two-step test, candetermine whether an 'individual hasrecently consumed measurable :amountsof alcohol. Thus, if the Department wereto establish a permissible alcohol levelof "zero," -there is little doubt thaturinalysis could be a useful tool. Somemight argue, however, that -thecorrelation betweenalcoholconcentration in .urine and itsconcentration in blood -is insufficientlyprecise to be usedas a measurement forhigher ,cutoffs, such as 404 or 10.However, we note thatFRA authorizesthe use of urinalysis for alcohol.(with aconservative :assumption that the urineconcentration is',1.5 times the bloodalcohol level), -and some recentliterature has also ,endorsed it. The useof conservativeconversion factors mayresult in underestimation of the BA'C.E. Other Techniques

There are less-expensive'means ofdetermining approximate blood alcoholconcentration. We specifically requestpublic romment on the:feasibility 'dfusing the following devices or othersimilar ones separately or in conjunctionwith other methods of testing.

There are strips that turn variouscolors when wet with saliva mixed withan enzyme. The colors indicate saliva-alcohol concentration, whichstatistically is -a close approximation-ofblood alcohol concentration. Accordingto a NHTSA study, this method appearsto give highly variable results with ahigh incidence of false positives.However, it could be used byindividuals to determine if they cansafely drive.

A different device ccnsists of a tubefilled with chemical crystals. Afterbreaking an internal ,ampul containingthe crystals, the personbeing testedexpels breath into the tube. The crystalschange color to 'indicate the amount -ofalcohol in the subject'sbreath. Thedevice-does not accurately measureblood alcohol concentration, but it isuseful 'to indicate .the presence ofalcohol in the individual's system, andhas been marketed -for use by privateindividuals who want to determinewhether it is 'safe for them to drive.

One device now in use by some policeagencies is the Passive Alcohol Sensor(PAS), an electronic device which'testsambient'airin front of a driver's mouthfor the presence -of alcohol. It must beplaced'within sixiinches of the subject'smouth. The device gives'false positivesabout 10 percent of the time, andtemperature and wind conditions affectits accuracy. The more sophisticatedPBT's are more accurate, but are alsosubject to environmental variations fromcold, wind, subject's cooperativeness,etc.

These and similar devices could notbe -used as tests upon which legallyeffective determinations of intoxicationcould be made. However, it could bepossible, if a blood or urine test werethe method'of choice, to use suchdevices as-a means of screeningemployees. That 'is, if an employeeshowed no 'evidence -of alcohol on one ofthese screening tests, a mare 'costly andinvasive blood or urine testmight not benecessary. To use these ,devices for thisscreening purpose, it would benecessary to determine, as well,whether they tend to-give false negativereadings. We would appreciate publiccomment.on ,this. We note that 'theconcerns that the Department had withrespect to the use of screen test resultsto make permanent employmentdecisions also apply to alcohol testing.

One otherpromising method foridentifying-people who may be underthe influence of alcohol may bebehavioral sobriety tests. 'Ni-ITSA hasdeveloped a Standardized Field SobrietyTest (SPST), which comprises threepsychophysical tests. The three testsare: Walk and Turn (walking a straightline and back.again); One-Leg-Stand(one stage of which requires the subjectto stand on one leg and count from "onethousand and one" :to "one thousandand thirty"); -and .Horizontal GazeNystagmus. The first two tests measurea person's balance, muscularcoordination and ability to concentrateon two activities. The horizontalnystagmus technique, which is used bysome police departments as part of a

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4 Federal Register / Vol. 54, No. 211 / Thursday, November 2, 1989 / Proposed Rules

roadside screening, relies on identifyingthe tendency of the eyes to jerkinvoluntarily as they move back andforth. This tendency becomes morepronounced with increased consumptionof alcohol; depending upon theindividual, usually the first clues ofimpairment occur at BAC levels of .05-.08. It is difficult to fake normalnystagmus and the horizontal gazenystagmus test is reported to be themost accurate method of detectingalcohol use without breath analysis orother specialized equipment. However,significant training and practice isrequired to master and retain this"testing" skill. We specifically invitecommenters to address the utility ofincreased training in this and/or othermethods of identifying persons whohave consumed alcohol.

VII. Other Practical Problems

If alcohol testing is proposed, thereare a myriad of implementationquestions that will need to beaddressed. In many cases, they are thesame as, or analogous-to, questions thatwere addressed and resolved in the drugtesting rules or the "Procedures forTransportation Workplace Drug TestingPrograms" (49 CFR part 40). However,there may also be differences, and weinvite commenters to address anypractical problems they foresee,including recommended solutions.

One problem has been alluded toalready: while we have limited theperformance of drug tests to laboratoriescertified by the Department of Healthand Human Services, there is no fully-comparable program to certifylaboratories performing alcohol tests. Ofcourse, some tests (i.e., breath) do notrequire laboratory analysis, so this maynot be a problem. In addition, it may bethat alcohol testing is sufficiently simplethat no special certification isnecesssary. On the other hand, if wewere to require testing, we would wantto take whatever measures arenecessary to ensure the accuracy of testresults. A related question involvinglaboratories is capacity. A mandatoryalcohol testing program wouldundoubtedly increase demand forlaboratory services greatly. Is theresufficient capacity in the industry toaccommodate such a demand?

The role of a Medical Review Officer(MRO) would be another area ofcontroversy. Should an MRO have tocertify results before they are reported,as is done for drug testing? Oneimportant function of the MRO inconnection with drug testing is toascertain whether there is a legitimateexplanation for the presence of drugs inthe employee's system (e.g., ingestion of

cough syrup). Does this considerationhave relevance for alcohol? A legalexplanation for the presence of drugsresults in a negative finding. However, ifan individual exceeds an establishedBAC level should it matter that itresulted from legal medication; i.e., if theperson is under the influence of alcoholwhile performing a safety function, is itnecessary to know more? Does thequestion turn on the level of alcoholprohibited? Even if an MRO would notbe necessary to consider thecircumstances of alcohol ingestion,would it not still be necessary to havean independent review of the chain ofcustody?

What are the costs associated withdifferent types of testing? What kinds ofcalibration or other standards do weneed for different types of tests?

VIII. Regulatory Process Matters

It is not clear at this preliminary pointwhat the annual effect of any rule orprogram will be on the economy. To theextent the Department is aware of costsor benefits, it has provided that data inthis document. However, there are toomany variables and possiblepermutations of alternatives for theDepartment to provide an overall costbenefit analysis. Upon review of thecomments, the Department will assessthe costs and benefits if furtherregulatory action is deemed appropriate.We do not anticipate at this point thatthe annual effect on the economy will be$100 million or more for any particularmode. If it becomes apparent at a laterstage in this rulemaking that the impacton the economy will be major, then wewill prepare a regulatory impactanalysis. Otherwise we will prepare aneconomic evaluation in accordance withthe Department's Regulatory Policiesand Procedures. Commenters shouldsubmit any relevant cost data.

This ANPRM is significant under theDepartment's Regulatory Policies andProcedures, because it involves mattersof significant public and Congressionalinterest.

For the reasons noted above, at thistime, we do not know whether therewould be a significant economic impacton a substantial number of smallentities. A Regulatory FlexibilityAnalysis will be prepared if wedetermine that this rulemaking wouldhave such an impact. At this stage, we:cannot determine whether this rule willimpose any reporting or paperworkrequirements under the PaperworkReduction Act.

Federalism

Depending -upon what action wedetermine to take, this rulemaking may

have substantial effects on the states oron the relationship between the nationalgovernment and the states. One optionunder consideration is to rely onincreased state enforcement to combatthe alcohol problem. Because of themany possibilities and permutations, atthis time, we do not have enoughinformation to. determine whether aFederalism Assessment will benecessary in accordance with ExecutiveOrder 12612. We specifically requestthat commenters consider the impact onfederalism of any of their comments orproposals.

List of Subjects

Alcohol abuse, Safety, Transportation.Authority: 49 U.S.C. 322.Issued in Washington, DC, October 27,

1989.Samuel K. Skinner,Secretary of Transportation.

IX. Appendix A-Bibliography

Billings, C. E., R. L. Wick, R. J. Gerke, andR. C. Chase. 1972. "The Effects of Alcohol onPilot Performance During Instrument Flight."Report FAA-AM-72-4. Federal Aviation-Administration, U.S. Department ofTransportation. Cited by H. Moskowitz(1973).

Connors, G. J., and S. A. Maisto. 1980.Effects of Alcohol, Instructions andConsumption Rate on Motor Performance."Journal of Studies on Alcohol", Vol. 41, pp.509-517.

Crancer, A. (1986). The Myth of the SocialDrinker-DUI Driver. Unpublished paperpresented at the Joint Meeting of theAmerican Medical Society on Alcoholismand Other Drug Dependencies, April 18-22,1986, San Francisco, CA.

Drew, G. C., W. P. Colquhown, and H. A.Long. 1959. Effect of Small Doses of Alcoholon a Skill Resembling Driving. Her Majesty'sStationery Office, London.

Drunk Driving Facts, U.S. Department ofTransportation, National Highway TrafficSafety Administration, July 1989.

Eichler, S., C. M. Goldberg, L. E. Kier, and J.P. Allen, "Operation: Redblock Case Study,"U.S. Department of Transportation, FederalRailroad Administration, October 1988.

Evans, M. A., et al. 1974. QuantitativeRelationship Between Blood AlcoholConcentration and PsychomotorPerformance. "Clinical Pharmacology andTherapeutics," Vol. 15, No. 3, pp. 253-260.

Falkowski, C. (1984). "The Impact of Two-Day Jail Sentences for Drunk Drivers inHennepin County, Minnesota." Final Report,National HighwayTraffic SafetyAdministration, Washington, DC.

Field Manual For Control of Alcohol andDrug Use in Railroad Operations, U.S.Department of Transportation, FederalRailroad Administration, March 1986.

Forney, R. B., F. W. Hughes, H. R. Hulpieu,and C. A. Fsbod/1961. Performance in aGymkhana Sports Car Event with low Levels

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of Blood Alcohol. "Traffic Safety ResearchReview," Vol. 5, No. 3, pp. 5-12.

Klein, T. (1989). "Change in Alcohol-Involved Fatal Crashes Associated WithTougher State Alcohol Legislation." ContractDTNH22-88-C-07045 National HighwayTraffic Safety Administration, Washington,DC.

Landauer, A. A., and P. Howat.'1983. Lowand Moderate Alcohol Doses, PsychomotorPerformance and Perceived Drowsiness."Ergonomics," Vol. 26, No. 7, pp. 647-657.

Laurell, H. 1977. Effects of Small Doses ofAlcohol on Driver Performance in EmergencyTraffic Situations. "Accident Analysis andPrevention," Vol. 9, pp. 191-201.

Lister, R. G., and S. E. File. 1983.Performance Impairement and IncreasedAnxiety Resulting from the Combination ofAlcohol and Lorazepam. "Journal of ClinicalPsychopharmacology," Vol. 3, pp. 60-71.

Lovibond, S. H., and K. Bird. 1970. Effectsof Blood Alcohol Level on the DrivingBehavior of Competition and Non-Competition Drivers. Presented at 29thInternational Conference on Alcoholism andDrug Dependence, Sydney, Australia.

Moskowitz, H. 1973. Laboratory Studies ofthe Effects of Alcohol on Some VariablesRelated to Driving. "Journal of SafetyResearch," Vol. 5, No. 3, pp. 185-197.

Moskowitz, H., M. Burns, and A. Williams.1985. Skills Performance at Low BloodAlcohol Concentrations. "Journal of Studieson Alcohol," Vol. 48.

National Highway Traffic SafetyAdministration (1988). "Fatal AccidentReporting System: A Review of Informationon Fatal Traffic Accidents in the UnitedStates in 1987." National Center for Statisticsand Analysis, Washington, DC.

National Highway Traffic SafetyAdministration, "Further Laboratory Testingof In-Vehicle Alcohol Test Devices," NHTSATechnical Report No. DOT HS-807-333.

Nichols, J., Ellingstad, V. and Struckman-Johnson. D. (1978). An experimentalevaluation of the effectiveness of short termeducation and rehabilitation programs forconvicted drinking drivers. In Galanter M.(Ed.) "Currents in Alcoholism: Treatment andRehabilitation and Epidemiology, VolumeVI." Grune and Stratton, New York, NY.

Nichols, J., Weinstein, E., Ellingstad, V. andReis, R. (1980). The effectiveness of educationand treatment programs for drinking drivers:A decade of evaluation. In "Proceedings ofthe 8th International Conference on Alcohol,Drugs, and Traffic Safety, Stockholm,Sweden," National Highway Traffic SafetyAdministration, Washington, DC.

Nichols, J. and Ross, L (1988). Theeffectiveness of legal sanctions in dealingwith drinking drivers. In "Surgeon General'sWorkshop On Drunk Driving: BackgroundPapers." U.S. Department of Health andHuman Services, Washington, DC.

O'Neill, B., A. Williams, and K. Dubowski.1983. Variability in Blood AlcoholConcentrations. "Journal of Studies onAlcohol," Vol. 44, No. 2, pp. 222-230.

Peck, R., Sadler, D. and Perrine, M. (1985).The comparative effectiveness of alcohol "rehabilitation and licensing control actionsfor drunk driving offenders: A review of theliterature, "Alcohol, Drugs, and Driving:Abstracts and Reviews." 1(14), 15-39.

"Potential for Application of IgnitionInterlock Device to Prohibit Operation ofMotor Vehicles by Intoxicated Individuals: AReport to Congress, May 1988," Rpt. No. DOTHS-807-281. This report is available byrequest from the National TechnicalInformation Service (NTIS), 5285 Port RoyalRoad, Springfield, VA.

Preusser, D., Blomberg, R., and Ulmer, R.(1988) "Follow-Up Evaluation of Wisconsin's1982 Drinking and Driving Law." Final Reporton Contract.DOT HS 807 377, NationalHighway Traffic Safety Administration,Washington, DC.

Ryder, J.M., S.A. Malin, and C.H. Kinsley.1981. The Effects of Fatigue and Alcohol onHighway Safety." Report DOT HS-805 854.National Highway Traffic SafetyAdministration, U.S. Department ofTransportation.

Siegal, H. (1985) "Impact of DriverIntervention Program on DWI Recidivism andProblem Drinking." Final Report on ContractNo. DTNH 22-83--05150, National HighwayTraffic Safety Administration, Washington,DC.

Tashima, H. and Peck, R. (1980) "Anevaluation of the California Drunk DrivingCountermeasure System: Volume 3, Anevaluation of the Specific Deterrent Effects ofAlternative Sanctions for First and RepeatDUI Offenders," Dept. of Motor Vehicles,Sacramento, CA.

U.S. Census Bureau. 1984b. StatisticalAbstract of the United States. U.S.Department of Commerce. p. 106.

Voas, R. (1986) Evaluation of jail as apenalty for drunk driving. "Alcohol, Drugsand Driving: Abstracts and Reviews,"Alcohol Information Service,Neuropsychiatric Institute, University ofCalifornia, 2(2), 47-70.

Wilson, J.R., et al. 1984. Effects of EthanolII. Behavioral Sensitivity and AcuteBehavioral Tolerance. "Alcoholism: Clinicaland Experimental Research," Vol. 8, No. 4,pp. 366-374.

Wyckoff, D.C. 1979. "Truck Drivers inAmerica." D.C. Heath and Co., Lexington,Mass.

Yesavage, J.A., and V.0. Leirer, HangoverEffects on Aircraft Pilots 14 Hours AfterAlcohol Ingestion: A Preliminary Report,"American Journal of Psychiatry," December1986, p. 1546.

Zador, P., Lund, A., Fields, M. andWeinberg, K. (1988) "Fatal Crash Involvementand Laws Against Alcohol-Impaired Driving."Insurance Institute For Highway Safety,Washington, DC.

"Zero Alcohol and Other Options, SpecialReport 216," Transportation Research Board,National ResearchCouncil, 1987, p. 40.

X. Appendix B-Existing DOT Regulations

A. Alcohol1. Introduction

As a general matter, theDepartment'salcohol efforts have focused on alcohol as itaffects an individual's medical qualifications;prohibitions on on-duty use and, in certaincases, use -just prior to reporting to work; andsanctions for violations of the Federalregulatory scheme. With limited exceptions,alcohol testing is left to State enforcement

personnel. (Coast Guard and FRA rulesprovide for post-accident and reasonablecause testing. FAA requires crewnembers tosubmit to tests upon request.) TheDepartment has nine operatingadministrations. A brief description of their.general functions and their specific responsesto the problem of alcohol use or abuse follow.

2. Current Modal Administration Regulations

a. US. Coast Guard. The Coast Guardcarries out a number of functions includingcommercial vessel and recreational boatingsafety, search and rescue missions,enforcement of maritime law, bridgeadministration, port and environmentalsafety, regulation of deepwater ports, marineenvironmental responses, icebreakingoperations, and aids to navigation. Inaddition, in conjunction with other agencies,the Coast Guard carries out drug interdictionactions aimed at stopping the importation ofdrugs into the U.S. through its coastal waters.

The Coast Guard has broad authority forcommercial vessel safety. The Coast Guardissues licenses and merchant marinerdocuments to merchant seamen..It alsoinvestigates marine casualties and can anddoes proceed against licenses or documentsfor violation of dangerous drug laws or fornegligent acts while under the influence ofalcohol. The'Coast Guard also has beentaking action against licenses and merchantmariner's documents of seamen who havebeen found to be either in the possession ofintoxicating liquor or intoxicated by alcohol.

The Coast Guard Authorization Act of 1984established civil and criminal penalties foroperating a vessel while intoxicated, asdetermined under standards developed bythe Coast Guard. In addition to establishingpenalties for operating a vessel whileintoxicated, the Act requires future reports ofmarine casualties to include informationconcerning whether the use of alcoholcontributed to the casualty. The Coast Guardissued a final rule, effective January 13, 1988,implementing the directive in the 1984Authorization Act. It established Federalbehavioral and blood alcohol concentration(BAC) intoxication standards for bothcommercial and recreational vesseloperators. Either the behavioral or BACstandard can independently be used todetermine intoxication. The behavioralstandard is useful, because blood tests maybe refused or not taken in a timely manner.

The rule applies a .04 percent BACstandard to operators of all commercialvessels, including fishing vessels. Forrecreational boaters, the Federal BACstandard is'.10 peicent. This and the Federalbehavioral standard apply only in theabsence of existing State BAC andbehavioral standards or outside of Stateterritorial waters. For example, if a State hasonly a behavioral standard, the Federal .10percent BAC level would also apply torecreational boaters. The rule does notpreempt enforcement by a State of itsapplicable laws and regulations concerningoperating i recreational vessel whileiitoxicated or limit more stringent employer-sponsored programs.IThe rule-requires employers to ensure thatintoxicated'individuals are not permitted on.,

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duty. Crewmembers are prohibited fromoperating a vessel while intoxicated, drinkingon duty or assuming duties within four hoursof consuming alcohol The rule covers U.S.vessels operating anywhere, foreign vesselsoperated in U.S. waters and individuals withan essential role in operating a vessel butnotwhen they are on shore. It provides forlicensed personnel to seek voluntaryrehabilitation prior to being subject to asuspension or revocation proceeding forintoxicant-related incompetence; allowsCoast Guard officers to terminate the use ofcertain vessels when the operator appears tobe under the influence of an intoxicant sothat further operation creates an unsafecondition; and requires employers' reports onmarine casualties to include specificinformation on the role of Intoxicants in theaccident.

The rule allows post-accident andreasonable cause testing for intoxicants byemployers and State law enforcementofficials. Where practicable, the marineemployer's determination of reasonablecause should be based on observation of theindividual's behavior and demeanor by twopersons. Refusal by commercial mariners tosubmit to a test is presumptive of intoxication(if State law permits such a presumption; thisis true for recreational boaters as well).Individuals determined to be intoxicated willhave the opportunity during judicial oradministrative hearings to dispute the charge.

In addition, the Coast Guard has instructedits casualty investigators to be closelyattuned to the possibility of drug or alcoholinvolvement in marine casualties and istraining investigators to look for andrecognize alcohol or drug ties to accidents.The Coast Guard, in cooperation with theNational Association of State Boating LawAdministrators, and the NationalTransportation Safety Board (NTSB), hasdeveloped and distributed to the states a setof guidelines for states to use in developingstate legislation addressing the drug andalcohol problem. Among other concerns, theguidelines address restrictions andprohibitions that should be considered,testing, evidentiary requirements, penalties,and education,

Independent of present regulations, themaster of a vessel traditionally has hadplenary disciplinary authority aboard hisvessel. Even today, a master may, and oftendoes, deal with alcohol-related problems bylogging individuals who are intoxicated anddocking their pay.

Upon completion of the voyage; a CoastGuard marine investigator reviews the ship'slog. In addition to the shipboard punishmentimposed by the master, the investigatornormally will chargea mariner withmisconduct, for failure to perform due to.intoxication, subjecting the mariner to asuspension and revocation proceeding .beforean Administrative Law Judge. Depending onthe circumstances of the incident, the marinermay be given a letter of admonishment, asuspension under probation, or ouirightsuspension or revocation of his license and/or document. The Administrative Law Judgealso may direct the mariner to enter arehabilitation program.

The Coast Guard also has internalprocedures that address alcohol problemsand drug use by its military employees.

b. Federal Aviotion Administration. TheFederal Aviation Administration- (FAA) is-charged With regulating air commerce. Thisincludes programs governing safety, airspaceand air traffic management. air navigationfacilities, research, engineering. development.testing and evaluation of systems needed fora safe and efficient system, airportdevelopment and aircraft registration.

FAA alcohol regulations cover pilots, flightengineers, and other crewmembers. Forexample, they prohibit any pilot from actingor attempting to act as a crewmember if he orshe is under the influence of alcohol, or hasconsumed any alcoholic beverage within 8hours of reporting for duty. FAA regulationsalso prohibit a pilot from flying with a bloodalcohol concentration (BAG) of .04 or higher.The FAA can suspend or revoke a certificateor assess penalties for failure to comply withits regulations.

The FAA requires pilots to have medicalexaminations (private and recreationalpilots-once every 2 years; commercialpilots---once every year, airline transportpilots--once every 6 months). If a history ofdrug dependence, alcoholism, or mentalproblems is discovered, the FAA maydisqualify the pilot. The FAA also uses a"driving while intoxicated" (DWI) or a"driving under the influence" (DUI)conviction as an indication of a possiblealcohol or drug problem. The FAA recentlyissued a notice of proposed rulemakingdesigned to identify those pilots that areconvicted of driving while intoxicated ordriving under the influence and review theirmedical qualifications in light of suchconvictions.

Finally, the FAA requires crewmembers tosubmit to an alcohol test on request of a lawenforcement officer who has a reasonablebasis to believe that the crewmember mayhave violated state alcohol rules. The lawenforcement officer must be authorized underState or local law to obtain such tests. Statelaw and practices vary; only six states giveexplicit authority to obtain such tests.

It is also important to note the role ofInternational conventions in this area. Annex2 to the Convention on International CivilAviation (the Chicago Convention), section2.5, of which the United States is acontracting state, provides that no personshall pilot or act as a flight crewmemberwhile impaired by an intoxicating liquor ornarcotic drug.

c. Federal Highway Administration. TheFederal Highway Administration (FI-IWA) isinvolved in a variety of areas such asfinancial assistance, highway constructionand motor carrier safety. It has the authorityto establish medical/physical qualificationrequirements for truck and bus drivers andhas had regulations on this subject for over30 years. Within the context of acomprehensive, nationwide revamping oftesting, licensing and disqualificationprocedures for commercial motor vehicle(CMV) operators, the FHWA recentlyestablished stringent regulations definingdriving under the influence of alcohol (DUI)for commercial drivers. However,

enforcement of the DUI standard continues tobe primarily the responsibility of the States inthe motorcarrier field.

FHWA regulations require that commercialdrivers submit to a medical examination onceevery' two years. A driver will not beconsidered physically qualified to drive amotor vehicle if, among other things, thedriver is currently'a practicing alcoholic.

FHWA regulations prohibit the use ofalcoholic beverages within four hours ofreporting to work, and prohibit a driver from*working while having any measured BAC orany detected presence of alcohol in his or hersystem. These and related infractions carry a24-hour out-of-service penalty.

The CDL regulations and the FMCSRs alsorequire that a driver be disqualified for oneyear if the driver is convicted of a DUIoffense at the .04 percent SAC level orgreater, or for a drug offense. The offensesmust have occurred while the driver wasdriving a CMV or a vehicle subject to theFMCSRs. Second offenses, or offensesinvolving the movement of hazardousmaterials, carry longer disqualificationpenalties, ranging from three years to life.

The Commercial Driver's LicenseInformation System [CDLIS), implementedunder the Commercial Motor Vehicle SafetyAct of 1986, will constitute a useful tool foridentifying and removing from the roadproblem drinkers who drive CMVs. AfterMarch 31, 1992, every driver of a CMVnationwide will be required to hold a CDLfrom his or her state of domicile, issuedaccording to FI-WA standards. Since theCDLIS will be the nationwide clearinghousefor driving record information for all CDLholders, and since states must check with theCDLIS to yield important highway safetybenefits in the alcohol area.

On October 4, 1988, FHWA issuedregulations whereby a commercial motorvehicle (CMV) driver found to have a bloodalcohol concentration level of .04 or abovewill be deemed to be DUI. States are requiredto adopt this standard for CMV operators, orface the loss of highway funding. They alsorequire commercial motor vehicle operatorswith any measured BAC to be placed out-of-service for a 24 hour period.

The new DUI standard has not as yet beenapplied by the States. Under the statutorymandate that authorized the Department toset the DU standard, Congress recognizedthat it would take some time for the States toimplement the program. Therefore, Stateshave until September 30, 1993 to adopt thesestandards. The States are rapidly enactinglegislation to implement the entire CDLprogram, including its BAC provisions; overhalf the States had enacted the .04 percentBAC level for CMV drivers by late summer1989. The FHWA program thus establishes aDUI standard for a CMV driver, and setspenalties, which are to be enforced by theStates. Currently, alcohol testing is done bythe States, but the new provisions mandate alower and uniform BAC, as well as penalties.

d. Federal Railroad Administration. TheFederal Railroad Administration (FRA) isinvolved in areas such as railroad safety,financial assistance, and national railtransportation policy. Since 1970. FRA has

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had statutory authority to regulate all fieldsof railroad safety, including employeequalifications as they relate to safety.Historically. FRA encouraged railmanagement and labor to work together onalcohol and drug prevention programs,especially employee assistance programs.However, such programs were not required.

In 1985, FRA issued a final rule governingthe conduct of railroads and employeessubject to the Hours of Service Act (engine,Arain and yard crews, dispatchers and trainorder operators, and signal employees). Thefinal rule prohibits on-the-job use, possessionof or impairment by alcohol or any controlledsubstance as well as having a BAC level of.04 or more.

The rule mandates full toxicological testing(blood and urine) after certain accidents thatInvolve significant public interest or a highlikelihood of human failure (approximately200 events per year). Railroads also areauthorized to conduct breath and urine tests:(1) On reasonable suspicion of impairment;(2) after a human factor accident/incident;and (3) after other specified operating/safetyrule violations. Effective March 1, 1986,railroads were required to institute pre-employment drug screening for potentialemployees, which may include alcoholanalysis. The rule further requires railroadsto have "voluntary referral" policies, therebyallowing workers to enroll in assistanceprograms.

e. Maritime Administration. The MaritimeAdministration (MARAD) administersprograms to aid the development, promotion,and operation of the U.S. merchant marine.MARAD also administers of U.S. Merchant.Marine Academy, which has an enrollment ofapproximately 1,100 people. The Academyregulations strictly forbid the use andpossession of controlled substances and theuse and possession of alcohol on Academygrounds. (Consumption of alcohol for specialevents can be authorized.) Entering freshmanat the Academy must submit to urinalysis aspart of the admissions process. For goodcause, a midshipman can be sent to theinfirmary for urine or blood tests for drug oralcohol use. Confirmation of a drug or alcoholrule violation leads to automatic explusion. Afull administrative hearing procedure isavailable. There is also an active counselingprogram on campus.

f. National Highway Traffic SafetyAdministration. The National HighwayTraffic Safety Administration (NHTSA)carries out programs relating to the safetyperformance of motor vehicles and relatedequipment, motor vehicle drivers andpedestrains, a national maximum speed limit,and a national minimum drinking age, amongother things.

NI-ITSA is actively involved in developingprograms to reduce alcohol and other druguse by all motorists, including operators ofcommercial vehicles. NHTSA's programsinclude providing technical and financialassistance to the states.

Under the section 402 program, NHTSAprovides for a variety of State highway safetyprograms. In a joint final rule, published inApril 1988, NHTSA and FHWA identifiednational priority program areas; includedamong them are alcohol and other drug

counter-measures such as enforcement,education and public information andimprovement of records and court systems.NHTSA provides technical assistance tostates for DUI enforcement, such as thedevelopment and promotion of the use of itsStandardized Field Sobriety Test (SFST),SFST training and SFST instructor training.The SFST consists of three psycophysicaltests that are used to detect drug and alcoholimpairment. The three tests are: Walk andTurn (walking a straight line and back again);OneLeg Stand (one stage of which requiresthe subject to stand on one leg and countfrom "one thosand and one" to "onethousand and thirty"); and Horizontal GazeNystagmus. The first two tests measure aperson's balance, muscular coordination andability to concentrate on two activities. Thehorizontal nystagmus technique, which isused by some police departments as part of aroadside screening, relies on identifying thetendency of the eyes to jerk involuntarily asthey move back and forth.

The section 408 alcohol incentive grantprogram provides funds to States that haveimproved laws and programs to reduce trafficsafety problems involving drivers under theinfluence of alcohol or a controlledsubstance. The program is available to allqualifying States--21 have currentlyqualified. Through the 408 program, NITSAalso awards grants to States that have.programs that satisfy certain supplementalcriteria established by regulation, or thatenact tough sentencing laws for individualsconvicted of driving under the influence ofalcohol.

Finally, a joint NHTSA/FHWA regulationimplements the Federal statute that requiresthat certain Federal highway funds bewithheld from States that permit the purchaseor public possession of alcohol by thoseunder the age of 21. The law provides for afive percent total withholding in FY87 and aten percent withholding in all succeedingfiscal years.

g. Research and Special ProgramsAdministration. The Research and SpecialPrograms Administration (RSPA) regulatesthe safety of transportation. of hazardousmaterials and the transportation of naturalgas and hazardous liquids by pipeline,collects air carrier economic data, andconducts multimodal transportation research-and development.

RSPA has no specific regulations onalcohol. It does have a general regulation onhealth of pipeline workers at liquified naturalgas plants. Pipeline operators must look forany physical condition that would impairperformance, including any observabledisorder or condition that is discoverable bya professional examination.

h. St. Lawrence Seaway DevelopmentCorporation. The St. Lawrence SeawayDevelopment Corporation (SLSDC) isresponsible for the development, operationand maintenance of that portion of the St.Lawrence Seaway that falls within theterritorial limits of the U.S.

No specific legislation or SLSDC regulationcovers alcohol and other drug use, but ageneral regulation allows the Corporation toprohibit the transit of a vessel if the crew isincompetent or inadequate and to board the

vessel to determine this. The U.S. CoastGuard regulations apply to U.S. pilots,crewmen and vessels.

i. Urban Moss TransportationAdministration. The Urban MassTransportation Administration (UMTA)assists in developing improved mass ,transportation facilities, planning andfiiancing of such systems,- and eicouragingprivate sector involvement in local masstransit systems.

The UMTA grant statutes prohibit theagency-from making grants unless recipientshave the legal, technical, and financialcapability to carry out UMTA-assistedprojects, including the ability to provide safetransit services. Grantees must exercisesatisfactory continuing control over UMTA-assisted facilities and equipment. UMTA hasno current regulations concerning alcohol.Even so, many of UMTA's'grantees aresubject to other Federal requirements onalcohol use. All commuter rail lines fundedby UMTA, for example, are subject to FRAregulations. All drivers of UMTA-fundedvehicles that are capable of carrying morethan 15 passengers, including the driver; aresubject to the FHWA DUI standards.However, other grantees, small transitsystems, for example, and all UMTA-fundedrail systems other than commuter rail, are notsubject to Federal requirements on alcoholuse.

B. DrugsOn November 21,1988, six modal

administrations of the Department ofTransportation published final rules thatrequire the commercial transportationoperators they regulate to test employees insensitive safety- and security-relatedoccupations for drugs and to developemployee assistance programs (EAP) toprovide information and training. The rulescover approximately 4 million persons In theaviation, highway, railroad, pipeline, masstransit and maritime industries. Theemployers are required to conductpreemployment, periodic (physicals), post-accident, reasonable cause, random, andreturn to duty drug tests and to test for fiveclasses of drugs: marijuana, cocaine,amphetamines, phencyclidine (PCP) andopiates.,The testing must be conducted inaccordance with DOT-wise regulations basedon the Department of Health and HumanServices Guidelines [HI-IS), which aredesigned to protect the privacy and dignity ofthe individuals tested. A positive initialscreening test is followed by a more specificgas chromatography/mass spectrometryconfirmation test. Persons who confirmpositive must be removed from their sensitivesafety- or security-related position. They canbe reinstated only upon successfulcompletion of a rehabilitation program and areturn to duty test. The rules encourage, butdo not require employers to establishrehabilitation programs. Most testing willbegin in December 1989. Small companieshave an extra year to imlement drug testing.

XI. Appendix C-NHTSA Conclusion onIID's

* Ignition interlock technology based onbreath alcohol test devices for detecting and

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preventing alcohol-impaired driving doesappear feasible at this time. Devices thatmeasure a driver's BAC level are currentlybeing marketed and used.

9 Laboratory tests have shown the currentbreath test ignition interlock devices, whenset to interlock at 0.03 percent BAC, to berelatively accurate in detecting low [i.e, 0.04percent BAC) as well as high driver BAClevels. The accuracy and reliability of thesedevices under real-world conditions isunknown. There is no apparent reason whyany operational problems cannot easily beovercome.

* The devices contain anti-tampering andcircumvention measures that appear toreduce the likelihood of many forms oftampering and circumvention. Such activityby users is not impossible, but operationalexperience and testing will indicate theextent to which tampering and circumventionwill be a problem.

e Current interest has focused on applyingthis technology to convicted DWI offendersas a condition of probation or to obtain arestricted driving privilege. Criticalinformation necessary to estimate thepotential effectiveness of these devices inthis applicatien is lacking. This includeswhether the devices function properly underreal-world conditions and evidence thatpersons required to use the devices do nottamper or circumvent their use and do notelect to operate other vehicles when drinking.

9 There is not yet enough evidenceavailable to judge how effective thesedevices will be in deterring alcohol-impaireddriving and related crashes.

e It is not appropriate for these devices tobe used in lieu of other sanctions that haveevidence of beneficial effects (e.g., licensesuspension). Use of this technology as anadditional condition of probation or forreinstatement of a restricted driving privilegedoes appear appropriate.

* The use of these devices with otherpopulations may be feasible (e.g., fleetowners could install them, commercial andpublic transportation vehicles could beequipped, and individuals interested in thisprotection could pay for their installation).Widespread use of this type would have toovercome resistance due to the costs, liabilityissues, and public acceptability' issues. Also,considerable research is needed to ascertainthe practicality of these uses of the devices.

* Ignition interlock technology fordetecting and preventing drug-impaireddriving does not appear feasible at this time.There is no easy or feasible in-vehicle testmethod currently known to detect the use ofdrugs. In addition, the cost and complexity oftesting for different drugs thought to impairdriving skill (including legal as well as illegaldrugs), makes such an approach even moreimpractical.

The most immediate issues outstandingregarding the use of breath test ignition

interlock technology with convicted DWIoffenders are

* Their operational performance in the realworld (i.e., their accuracy, reliability,maintenance and calibration requirements);

* The extent to which the devices are* tampered with, circumvented, or non-equipped vehicles are used by personsordered to only drive cars with ignitioninterlock devices installed;

- The effectiveness of these devices inreducing alcohol-impaired driving;, and

* The certification standards adopted bythe states authorizing use of the devices.

NHTSA research will help address theseneeds:

o NITSA is currently initiating a project todevelop model performance guidelines andtest procedures that states can use indeveloping their own certification standards.

o NHTSA is providing grant funds toCalifornia to support their ongonng evaluationof their ignition interlock program.

9 NHTSA will provide technical assistanceto states or local communities interested inevaluating the effectiveness of their ignitioninterlock program.[FR Doc. 89-25802 Filed 10-31--89; 8:45 am]

BILUNG CODE 4910-62-M

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Federal Register Vol. 54, No. 211 Thursday, November 2 ......DEPARTMENT OF TRANSPORTATION Office of...

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Transcript of Federal Register Vol. 54, No. 211 Thursday, November 2 ......DEPARTMENT OF TRANSPORTATION Office of...