The opinion of the court was delivered by: BRUCE M. VAN SICKLE
A. The Omnibus Act and the Pilot Program
On October 28, 1991, Congress Enacted the Omnibus Transportation Employee Testing Act of 1991 (Omnibus Act), Pub. L. No. 102-143, tit. V, 105 Stat. 952. The Omnibus Act was intended to enhance transportation safety and to guard against the demonstrated dangers of drug and alcohol abuse through increased drug and alcohol testing, including random testing, of "individuals who are involved in the operation of aircraft, trains, trucks, and buses." Id., 49 U.S.C. app. § 1434 (historical and statutory notes).
To this end, Section 5 of the Omnibus Act directed the Secretary of Transportation to select four states for participation in a one-year pilot test program (pilot program) for the purpose of "testing the operators of commercial motor vehicles on a random basis to determine whether an operator has used, in violation of law or Federal regulation, alcohol or a controlled substance." Pub. L. No. 102-143, § 5(b)(1), 105 Stat. 961, 49 U.S.C. app. § 2717 (historical and statutory notes). Congress intended to use the pilot program as a means of assessing "the effectiveness of State-administered testing in detecting individuals, such as owner-operators and independent drivers, who might otherwise avoid detection through . . . carrier-administered testing . . . ." S. Rep. No. 102-54, 102d Cong. 1st Sess. 34 (1991).
The pilot program is to last for one year, after which the Secretary of Transportation (Secretary) must report to Congress on the results of the program. Pub. L. 102-143, § 5(b)(5), 105 Stat. 961, 49 U.S.C. app. § 2717 (historical and statutory notes). The States selected to participate in the pilot program were Minnesota, Utah, Nebraska and New Jersey. Before passage of the Omnibus Act, the Federal Highway Administration (FWHA) had issued regulations requiring carrier-administered random drug testing; i.e., random drug tests by employers of commercial vehicle operators. 49 C.F.R. §§ 391.81-391.123 (1989). The Omnibus Act ratified these regulations, see 49 U.S.C. app. § 2717(e), which were later found constitutionally permissible by the Ninth Circuit. See International Brotherhood of Teamsters v. Department of Transportation, 932 F.2d 1292 (9th Cir. 1991).
The pilot program states differ in their selection of testing sites. Although no state conducts roving stops, the state enforcement plans differ as to whether testing is done at fixed sites where other regulatory activity is also conducted (such as truck weighing, vehicle inspection and document inspection), or at fixed sites established solely for drug and alcohol testing. Under the Utah plan, testing is confined to eight "Ports of Entry" which are facilities used for truck-weighing and vehicle and document inspections. Cullen Aff., Exh. 4 at 234. The Ports of Entry to be used for testing, as well as the time periods in which testing will occur, are selected by computer according to a formula that measures the volume of traffic at each Port of Entry and time period. Id. at 239-40. The other three states also use existing sites at which truck weighing or inspection of vehicles or driver documents is already conducted but, unlike Utah, they retain the discretion to establish new sites solely for drug or alcohol testing. Id. at 257, 290, 336-37. In these three states, drug and alcohol tests are conducted in conjunction with standardized commercial vehicle and driver inspections. Id. at 255-56, 294, 334, 336.
The states also differ in how drivers are randomly selected for testing. In Utah, as each drug test nears completion, the official who conducts the test notifies the Port of Entry Agent, who then directs a computer to select the next driver randomly from the vehicles passing through the port, according to a preset formula. Id. at 239. The other three states enforcement plans provide for a random-number table to make random selections. Id. at 267, 271, 293-94, 303-04, 337-38. In Minnesota, a supervisor may adjust the random vehicle selection procedure, if necessary in light of traffic back-ups, highway-safety considerations, or operational conditions. Id. at 267
The states also differ as to the consequences of refusal to take a test. New Jersey provides drivers with a notice advising them that a refusal to take the test causes the employer to be notified that "one of its drivers" declined to participate. Id. at 354-55. The driver is then asked to indicate whether he wants his identity disclosed in the notice to the employer. Id. at 355. After receiving the notice, the employer may request additional information but, if the driver has asked that his identity not be disclosed, that request will be honored. Id. at 352-53.
In the other three states, the employer is notified of the identity of the driver who refused to take the test. Id. at 243, 278, 300. Under the Minnesota plan, the letter sent to the employer identifies the employee who refused the test and describes the program as "an experimental test program" that is "strictly voluntary," noting further that, if the tests were mandatory, sanctions would have been imposed for the refusal to submit. Id. at 278. In Utah, a refusing driver can be ordered out of service for twenty-four hours. Id. at 243. The Nebraska plan does not provide any penalties for refusal. The Minnesota and New Jersey plans similarly impose no consequences for refusal to submit to the test, other than the employer notification described above.
Each state follows drug testing procedures similar to those found in 49 C.F.R. Part 40, which govern random drug testing administered by trucking companies to their employees, and which have been upheld by the Ninth Circuit. Id at 241-42, 259-60, 293, 304, 346-48; International Brotherhood of Teamsters v. Department of Transp., 932 F.2d 1292, 1295-96 (9th Cir. 1991). These include a guarantee of privacy during specimen collection, see Cullen Aff., Exh 4 at 241, 259, 295, 346; chain-of-custody procedures to protect the integrity of the specimen, id. at 241, 259-60, 296-97, 346; use of laboratories certified by the National Institute for Drug Abuse, id. at 241, 293, 346-47; and an opportunity for an individual to explain positive test results to a Medical Review Officer, id. at 241-42, 260, 261, 300-302, 348.
The state plans deviate somewhat from the federal drug testing regulations because, unlike the scheme contemplated by the regulations, testing under the state plans is not administered by employers. Instead, the person conducting or overseeing the testing is an employee of the state or a contractor.
Under all four states' plans, the results are reported to FHWA's contractor, which uses the results "for statistical summary and analysis." Id. at 348. Neither the FHWA nor its contractor is privy to the ...