913 F.2d 1454
59 USLW 2212, 119 Lab.Cas. P 10,783,
5 Indiv.Empl.Rts.Cas. 1193,
5 Indiv.Empl.Rts.Cas. 1621,
14 O.S.H. Cas.(BNA) 1777, 14 O.S.H. Cas.(BNA) 1946,
1990 O.S.H.D. (CCH) P 29,079,
1991 O.S.H.D. (CCH) P 29,391
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1245;
International Brotherhood of Electrical Workers,
Local 465, et al., Petitioners,
v.
Samuel SKINNER, Secretary, U.S. Department of
Transportation; Research & Special Programs
Administration of the U.S. Department of
Transportation, Respondents.
The OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION
("OCAWIU"), and Locals 1-219, 1-128 and 1-5, et
al., Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, National Transportation Safety
Board, et al., Respondents.
Nos. 89-70061, 89-70308.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted June 6, 1990.
Decided Sept. 12, 1990.
As Amended Nov. 20, 1990.
Carol R. Golubock, Service Employees Intern. Union, Victoria L. Bor, Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, D.C., Mary-Win O'Brien, United Steelworkers of America, Pittsburgh, Pa., John W. McKendree, Oil, Chemical and Atomic Workers Intern. Union, Lakewood, Colo., for petitioners.
Stuart M. Gerson, Asst. Atty. Gen., Ira C. Lupu, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., for respondents.
On Petition for Review of an Order of the United States Department of Transportation.
Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.
SNEED, Circuit Judge:
This Nation's struggle to combat the use of narcotic drugs has taken a number of forms, including education, increased expenditures for treatment and law enforcement, and the establishment of methods aimed at detecting drug abuse among workers. In this case we confront challenges to a rule promulgated by the Research and Special Programs Administration (RSPA) of the United States Department of Transportation (DOT). The rule requires extensive drug testing of employees engaged in natural gas, liquefied natural gas, and hazardous liquid pipeline operations. The International Brotherhood of Electrical Workers, Local No. 1245 (IBEW) and Oil, Chemical and Atomic Workers International Union (OCAWIU) bring this petition for review of the rule, contending that it is arbitrary and capricious and unconstitutional. We affirm.
I.
FACTS AND RULEMAKING PROCEEDINGS
On July 8, 1988, RSPA issued a notice of proposed rulemaking entitled "Control of Drug Use in Natural Gas, Liquefied Natural Gas and Hazardous Liquid Pipeline Operations." 53 Fed.Reg. 25,892 (1988). The rule called for pipeline operators to institute five different types of drug testing: (1) pre-employment; (2) post-accident; (3) randomly; (4) on the basis of reasonable cause; and (5) post-rehabilitation. Id. at 25,898-900. RSPA supported the proposed rule by citing studies regarding substance abuse and its relation to motor vehicle accidents. Id. at 25,896. RSPA also noted, however, that the number of pipeline accidents was small and that it had no evidence of a drug problem in the pipeline industry that was any greater than in the general population. Id. at 25,893.
Interested parties who commented on the rule addressed a wide range of issues, including the incidence of drug use among pipeline employees and the determination of functions for which testing should be required. Id. at 47,084-96. The random testing requirement drew special criticism. Commenters noted that there was insufficient evidence to warrant such testing. See id. at 47,086. In addition, safety standards committees disapproved the rule as drafted. Id. at 47,095. The Technical Hazardous Liquid Pipeline Safety Standards Committee unanimously rejected the rule as unsupported by demonstrated need. The Technical Pipeline Safety Standards Committee conditioned its approval on certain changes to the rule, including the elimination of random drug testing. 53 Fed.Reg. 47,095 (1988).
In conjunction with similar rulemaking by five other agencies of DOT, RSPA issued its final rule on November 21, 1988, accompanied by a report that discussed comments made by interested parties. Id. at 47,084. In this November 1988 final rule action, RSPA responded to the following issues raised during the notice and comment period: (1) the constitutionality of the rule; (2) the need for a pipeline anti-drug program; (3) the accuracy of drug test results; (4) the employees required to be tested; (5) pre-employment testing; (6) random testing; (7) post-accident testing; (8) reasonable cause testing; and (9) retesting. RSPA concluded generally that "[t]he majority of the commenters were opposed to one or more aspects of the proposed rule, while some commenters generally supported [it]." Id. Despite this generally adverse reaction, the agency issued the rule.
On April 13, 1989, RSPA announced that it would reevaluate the rule and delayed the dates on which the rule would take effect. 54 Fed.Reg. 14,922 (1989). RSPA announced on December 18, 1989, that it had completed its reevaluation; it did not alter the coverage or scope of the rule in a material way. See 54 Fed.Reg. 51,842 (1989). RSPA also reaffirmed that the rule would become effective on April 20, 1990, and August 21, 1990, depending on the size of the affected enterprise. Id.
Petitioners raise constitutional and statutory challenges to certain aspects of this regulation. They contend first that the rule generally is arbitrary and capricious because RSPA has not demonstrated a safety need in the pipeline industry that justifies imposition of drug testing. They next argue that the random drug testing component of the rule is arbitrary because it is not narrowly tailored to address the alleged problem. Finally, they allege that random testing is unconstitutional because it unreasonably intrudes on those privacy interests of the employees that are protected by the Fourth Amendment.
II.
JURISDICTION
RSPA has statutory authority to issue rules pursuant to 49 U.S.C.App. Secs. 1672, 1674a & 2002 (1988). Our court has jurisdiction under 49 U.S.C.App. Secs. 1675(a) & 2005(a) (1988).
III.
DISCUSSION
In this appeal we consider three issues: (1) whether the rule requiring drug testing in the pipeline industry constitutes decision making that is arbitrary, capricious, and an abuse of discretion in violation of the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A) (1988); (2) whether the rule is arbitrary and capricious to the extent that it requires random drug testing without individualized suspicion; and (3) whether the provision for random drug testing violates the Fourth Amendment. We address each issue in turn.
A. The Arbitrariness of the Drug Testing Rules Generally.
The Administrative Procedure Act requires us to "hold unlawful and set aside agency action ... found to be--(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1988). We employ two criteria to determine whether an administrative rule is "arbitrary and capricious." First, the agency must "explain[ ] specifically" the reason for the rule. Bluestein v. Department of Transp., 908 F.2d 451, 457 (9th Cir.1990). See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Second, the decision to establish the rule must be reasonable. "[A] reasonable, if controversial, decision ... cannot be overturned as arbitrary and capricious." Bluestein, 908 F.2d at 456.
We assess these criteria in light of Congress' directive that minimum federal safety standards "be practicable and designed to meet the need" for pipeline safety and the safe transportation of hazardous liquids. 49 U.S.C.App. Secs. 1672(a) & 2002(a) (1988). Under these statutory provisions, the agency must consider the following factors:
(1) relevant available pipeline safety data;
(2) whether such standards are appropriate for the particular type of pipeline transportation or facility;
(3) the reasonableness of any proposed standards; and
(4) the extent to which such standards will contribute to public safety.
Id. Sec. 2002(b)(1)-(4); see id. Sec. 1672(a)(1)(A)-(D). The legislative history of these provisions indicates that Congress intended to guide the agency's exercise of its rulemaking authority and to avoid the promulgation of unreasonable rules not supported by a demonstrated need in the industry. See H.R.Rep. No. 1390, 90th Cong., 2d Sess. 19-20 (1968), reprinted in 1968 U.S.Code Cong. & Admin.News 3223, 3235-36; S.Rep. No. 733, 90th Cong., 1st Sess. 7-8 (1967). We shall discuss each of these factors.
1. The Safety Need.
Here we confront the major thrust of the petitioners' administrative law challenge. They contend that RSPA can document no specific drug problem in the pipeline industry sufficient to justify testing. RSPA's own data, they argue, show that in 1988, less than four percent of the 454 pipeline accidents and none of the twenty fatalities were attributable to operator error; and that in the three-year period from 1985 to 1988, only two fatalities were caused by human error. In petitioners' view, not only is there no evidence of a drug problem, but there is no support for a safety problem generally.
RSPA accepts, as it must, the accuracy of its own data. It responded in the rulemaking phase by asserting that "no commenter presented any statistically reliable data to prove there was not a drug problem [in the pipeline industry]." 53 Fed.Reg. 47,087 (1988) (emphasis added). Given the widespread societal problem of drug abuse, RSPA concluded that some drug abuse very likely exists in the pipeline industry. It is not fatal to RSPA's argument that it cannot demonstrate that the pipeline industry has a specific drug problem. That failure alone does not establish the arbitrariness of its regulations. See, e.g., Bluestein, 908 F.2d at 457 (rejecting APA challenge of random tests in airline industry).
Even were we to assume that the drug problem in the pipeline industry is less significant than it is among the general population, the danger inherent in pipeline operations leads us to be wary of substituting our judgment for RSPA's. The industry's safety record is imperfect and terrible accidents have occurred. We may analogize to the nuclear power industry, for which the courts have upheld drug testing programs similar to the one at issue here. See, e.g., Rushton v. Nebraska Pub. Power Dist., 844 F.2d 562, 566 (8th Cir.1988) (upholding plan mandating pre-employmnet, pretransfer, annual, for-cause, and random drug tests); Alverado Washington Pub. Power Supply Sys., 111 Wash.2d 424, 441, 759 P.2d 427, 436 (1988) (en banc) (upholding testing in pre-employment and for-cause situations), cert. denied, --- U.S. ----, 109 S.Ct. 1637, 104 L.Ed.2d 153 (1989). Given the potentially catastrophic consequences of a pipeline accident, we cannot say that the rule does not relate to a perceived need for safety regulation in the industry.
2. Appropriateness of the Standards.
In assessing the "appropriateness" of the rule, we must consider the twin concerns of practicality and the need for pipeline safety. See H.R.Rep. No. 1390, 90th Cong., 2d Sess. 20, reprinted in 1968 U.S.Code Cong. & Admin.News 3223, 3236. Petitioners argue that the rule is inappropriate because RSPA requires testing of all employees engaged in operations, maintenance, or emergency response functions, a total of fifty percent of pipeline employees (116,000). This charge of over-inclusiveness falls short because petitioners are unable to specify which employees are in safety-sensitive positions for which testing would be appropriate. When neither the petitioners nor the industry can draw dividing lines of any sort, we cannot conclude that the government's lines are arbitrary and capricious.
Instead of delineating job titles or positions, the regulations specify job functions. An "employee" is defined as "a person who performs on a pipeline or LNG facility an operating, maintenance, or emergency-response function regulated by Part 192, 193, or 195 of this chapter." 49 C.F.R. Sec. 199.3 (1989). These "functions" appropriately specify the personnel whose impairment would pose the greatest risk to public safety.
3. The Reasonableness of the Standards.
The parties rest their arguments concerning the factor of "reasonableness" on a cost-benefit analysis of the program. Not surprisingly, they disagree about how much money will be spent and saved if the program goes forward. Although we agree with petitioners that the cost-benefit figures are uncertain, we nonetheless regard the drug testing program as a reasonable measure properly geared to safety needs. The legislative history of this provision supports our view that public safety, and not cost, shall be the predominant concern. "In determining reasonableness, safety, which is the purpose of this act, shall be the overriding consideration." S.Rep. No. 733, 90th Cong., 1st Sess. 8 (1967). This is not to say that some costs, properly demonstrated, might not be too great considering their marginal contribution to safety. We can only say that petitioners have made no such demonstration here.
4. Contribution of the Rule to Public Safety.
Petitioners make no real effort to deny that the drug testing rule would make some contribution to public safety as required by 49 U.S.C.App. Secs. 1672(a)(1)(D) & 2002(b)(4) (1988). We conclude that RSPA's drug testing program contributes to public safety by enhancing pipeline safety. The program provides a means for the detection and deterrence of drug usage.
5. Conclusion.
Based on our analysis of the statutory guidelines for issuance of rules respecting pipeline safety and the transportation of hazardous liquids, we conclude that the drug testing rules formulated by RSPA are not generally arbitrary and capricious.
B. The Arbitrariness of the Random Testing Provision.
Petitioners also mount an administrative challenge to the feature of the rules requiring random drug testing. As a general matter,
an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. at 2867.
Petitioners argue that RSPA acted capriciously by requiring suspicionless searches without fully exploring less intrusive alternatives. In their view, RSPA could have tailored the program more narrowly by relying on drug tests administered to determine suspicion, and by limiting the class of workers to be randomly tested to those in the most safety-sensitive positions.
The RSPA did consider the alternatives to testing without individualized suspicion that were propounded by the advisory committees. It rejected these proposals, however, as inadequate to meet the agency's goal. RSPA deemed one alternative to testing without individualized suspicion--pre-employment screenings--as unsuitable by itself because such tests could be circumvented by temporary abstinence, whereas random tests would either yield discovery of drug use or serve to deter it. See 53 Fed.Reg. 25,898 (1988). Another alternative, post-accident testing, is essentially non-preventive, whereas a key aim of random testing is deterrence. See 53 Fed.Reg. 47,087 (1988) (stating RSPA's conclusion that it had to "anticipate potential problems and act in a rational, reasonable, and practicable way to prevent 'accidents' from occurring").
The importance of deterrence is great. RSPA determined that random testing met certain needs and offered advantages unmatched by other forms of testing. In addition to providing a key "preventive" measure, random testing eliminated the opportunity for harassment, real or alleged, that can result from reasonable cause testing. 53 Fed.Reg. 25,898 (1988). Moreover, the agency's conclusion has been borne out by the successful experience of other random testing programs. In our view, therefore, RSPA's decision to adopt random testing was not an arbitrary and capricious exercise of its rulemaking authority.
C. The Constitutionality of Random Testing in the Pipeline Industry.
The true heart of the petitioners' case rests in their constitutional challenge. Petitioners assert that random drug testing, as well as any testing without individualized suspicion, abridges the Fourth Amendment proscription against unreasonable searches and seizures. Many of the difficult threshold questions on this issue have been resolved, and we must therefore "balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989). The random drug testing rule raises the most difficult questions regarding the constitutionality of suspicionless testing. Thus, we focus our analysis on the propriety of the random testing.
Petitioners make two arguments to guide our traditional balancing of government and individual interests: (1) random testing does not sufficiently serve the government's overriding interest in safety; and (2) the coverage of testing is not sufficiently tailored to meet that end. RSPA responds generally that the first argument is grounded on an erroneous view of the law and the second is based on an incorrect view of the facts.
1. Demonstration of a Compelling Interest to Justify the Rule.
RSPA identified a safety interest as a justification for the rule: "[T]he clear public interest in assuring that certain sensitive safety-related pipeline personnel perform their duties free of prohibited substances provides justification for testing...." 53 Fed.Reg. 47,085 (1988). RSPA, as already pointed out, also justified the rule by claiming it deterred drug use. Id. at 47,087.
In applying the leading case in our circuit, Bluestein, we observe that RSPA need not show a particularized drug problem in the pipeline industry to merit testing. In the Bluestein court's characterization of Von Raab, "the Court rejected the petitioners' contention that there was insufficient evidence of a drug problem in the Customs Service to justify suspicionless testing. The Court noted that drug abuse is a pervasive social problem, and stressed that the testing program was aimed as much at deterrence as at detection." Bluestein, 908 F.2d at 456.
It is true that RSPA can show neither the existence of a widespread drug problem in the pipeline industry nor a direct linkage between drug impairment and the possibility of accidents. However, an estimated 65 percent of pipeline accidents "are due to such causes as operational error, the improper monitoring of corrosion, and equipment failure, all matters which can be adversely affected by the impairment of specific pipeline personnel." 53 Fed.Reg. 25,893 (1988). Moreover, RSPA deemed random testing necessary to insure adequate "routine construction operations, and maintenance functions, as well as emergency response activities, [which] demand skilled, competent, alert and unimpaired workers to perform the functions safely." Id.; see also RSPA, Final Regulatory Evaluation, at 2.
Bluestein and Von Raab recognize a compelling governmental interest in deterring drug use and the incident harms that may occur from such abuse in the airline industry and the Customs Service. In our view, the consequent harm that would occur from a pipeline accident is sufficient to merit the finding of a strong governmental interest in the detection and deterrence of substance abuse among pipeline workers. Indeed, the concern for public safety animates the general acceptance of drug testing by courts.
Petitioners also contend that RSPA has not demonstrated a compelling interest in the testing of personnel whose functions are not safety-related. The difficulty with this argument is that petitioners did not cite a single job function identified in the regulations as non-safety-related. We recognize that in certain circumstances, an agency may cast too wide a net in defining the category of persons who must be subjected to random drug testing. Nevertheless, we cannot assume that the agency overreached solely on the basis of petitioners' assertion.
When the government dictates safety regulations to private sector businesses, it typically focuses on general categories of duties, rather than on precise job titles. By contrast, when it imposes regulations for government jobs it has specific information that it does not possess for private sector jobs. Courts have tended, therefore, to permit regulations with more expansive job or function definitions when the rule affects the private sector, on the theory that the government has less access to information as to which positions invoke the relevant safety concerns. Compare Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 1408, 103 L.Ed.2d 639 (1989) (upholding testing for "employees assigned to perform service subject to the Hours of Service Act") with Harmon v. Thornburgh, 878 F.2d 484, 486, 490-91 (D.C.Cir.1989) (holding that Justice Department testing program was too broadly drawn by its inclusion of persons who had no relation to prosecution of federal drug offenders), cert. denied sub nom., Bell v. Thornburgh, --- U.S. ----, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). As we have stated, the RSPA rule is defined in functional terms to cover relevant persons irrespective of their official job title. Were RSPA to have been more specific regarding job titles, the possibility of arbitrariness would have increased.
We conclude by noting that seven circuit courts of appeal, including our own, have upheld random drug tests for employees with safety-sensitive, security-sensitive, or public-integrity-sensitive jobs. The government's interest in the safety of the pipeline industry is great. Random drug testing, as compared with other forms of testing, offers the best potential deterrent to drug use. This factor, coupled with the possibility of a catastrophic accident, is sufficient to show a strong governmental interest in random testing. Against this interest we must weigh the Fourth Amendment privacy concerns of the individuals to be tested.
2. The Intrusion on a Reasonable Expectation of Privacy.
Privacy interests are implicated in the collection of urine samples and the analysis of their contents. See Skinner, 109 S.Ct. at 1413; Von Raab, 109 S.Ct. at 1390. In weighing the importance of this privacy interest, we must determine whether circumstances in the pipeline industry should compel us to subordinate this interest. Two considerations guide our analysis: (1) whether as a result of other circumstances employees in this industry already have a diminished expectation of privacy; and (2) whether the particular testing program minimizes the intrusion of privacy. See, e.g., Skinner, 109 S.Ct. at 1418.
Petitioners contend that, unlike the railroad workers in Skinner and the Customs Services officials in Von Raab, the pipeline workers in this case do not have a diminished expectation of privacy. They maintain that the Supreme Court upheld testing in those cases either because the workers were in an industry that "ha[s] long been a principal focus of regulatory concern," Skinner, 109 S.Ct. at 1419, or because they were in positions with extensive background investigations and other intrusions on their privacy. Von Raab, 109 S.Ct. at 1397.
There is force in petitioners' contention. It is true that pipeline workers have never been a focus of "regulatory concern." Rather, the regulations affecting these workers concern performance, medical fitness for duty, or training and ability to perform their particular trades. See, e.g., 49 C.F.R. Secs. 193.2705, 193.2707, 193.2711, 193.2713 (1989). Nevertheless, the regulations do suggest the potential safety hazards of the industry. These alone lead to a diminished expectation of privacy. See, e.g., Skinner, 109 S.Ct. at 1418 ("[T]he expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees."). Obviously the subjective expectations of certain affected employees do not alone determine the constitutional issue. We also must consider whether pipeline workers hold objective and socially "justifiable expectations" such that they could reasonably expect to be free of additional safety regulations. See Skinner, 109 S.Ct. at 1419.
A second issue with respect to the privacy interests of the affected workers is whether the rule minimizes the nature of the intrusion. No matter how carefully tailored, "[a]ll urinalysis programs implicate serious privacy concerns." Taylor v. O'Grady, 888 F.2d 1189, 1197 (7th Cir.1989). Of the types of testing imposed under RSPA's regulations, only the random testing occurs without some prior basis of individual suspicion.
The absence of individualized suspicion increases the intrusiveness of testing on an employee's privacy. We conclude, however, that the level of intrusiveness does not justify striking down the random drug testing rule. Moreover, pre-employment and post-accident tests are less intrusive than random testing because they are triggered by the employee's own act or conduct, or by a definable event. Consequently, we find that such testing rules also withstand constitutional scrutiny. Given the different safety needs of other industries, our holding is limited to a finding that the privacy interest implicated by testing without individualized suspicion in the pipeline industry is outweighed by the government's interest in detecting and deterring drug use.
For the foregoing reasons, we affirm the decision of the Research and Special Programs Administration.
AFFIRMED.