International Broth. of Elec. Workers, Local 1245 v. Skinner
| Decision Date | 20 November 1990 |
| Docket Number | 89-70308,Nos. 89-70061,s. 89-70061 |
| Citation | 913 F.2d 1454 |
| Parties | , 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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.
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 1 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, 2 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. 3 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). 4 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.
RSPA has statutory authority to issue rules pursuant to 49 U.S.C.App. Secs. 1672, 1674a & 2002 (1988). 5 Our court has jurisdiction under 49 U.S.C.App. Secs. 1675(a) & 2005(a) (1988).
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. 6 We address each issue in turn.
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.
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. 7 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 ().
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