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International Brotherhood of Electrical Workers Local 1245; International Brotherhood of Electrical Workers Local 465 et al. Petitioners
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") v. Department of Transportation National Transportation Safety Board et al. Respondents
Nos. 89-70061 89-70308
June 6, 1990 Argued and Submitted
Carol R. Golubock Service Employees International Union Victoria L. Bor Sherman Dunn Cohen Leifer & Yellig P.C. Washington District of Columbia Mary-Win O'Brien United Steelworkers of America Pittsburgh Pennsylvania John W. McKendree Oil Chemical and Atomic Workers International Union Lakewood Colorado for the Petitioners.
Stuart M. Gerson Assistant Counsel General Ira C. Lupu Appellate Staff Civil Division Department of Justice Washington District of Columbia for the Respondents.
Joseph T. Sneed Jerome Farris and Ferdinand F. Fernandez Circuit Court.
The Hon. Justice Sneed

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 rule making 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 *fn1 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 rule making by five other agencies of DOT *fn2 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) re testing. *fn3 RSPA concluded generally that "the 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). *fn4 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. SEC.(s) 1672 1674a & 2002 (1982). *fn5 Our court has jurisdiction under 49 U.S.C. App. SEC.(s) 1675(a) & 2005(a) (1982).



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. *fn6 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 slip op. 6933 6948 (9th Cir.1990). See Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co. 463 U.S. 29 43 77 L. Ed. 2d 443 103 S. Ct.2856 (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 457.

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. SEC.(s) 1672(a) & 2002(a). 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 rule making 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. *fn7 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 rule making 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 slip op. at 6949 (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 Court 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-employment pre transfer 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 490 U.S. 1004 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. *fn8

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). *fn9 These "functions" appropriately specify the personnel whose impairment would pose the greatest risk to public safety. *fn10

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). *fn11 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. SEC.(s) 1672(a)(1)(D) & 2002(b)(4). 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. *fn12

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. *fn13 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"). *fn14

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. *fn15 In our view therefore RSPA's decision to adopt random testing was not an arbitrary and capricious exercise of its rule making authority. *fn16

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 *fn17 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). *fn18 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: "The 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. *fn19

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 Court rejected the petitioners' contention that there was insufficient evidence of a drug problem in the Customs Service to justify suspicionless testing. 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. *fn20

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. *fn21

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. *fn22 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") *fn23 with Harmon v. Thornburgh 278 U.S. App. D.C.382 878 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 493 U.S. 1056 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. *fn24 Were RSPA to have been more specific regarding job titles the possibility of arbitrariness would have increased. *fn25

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. *fn26 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. SEC.(s) 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 ("The 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."). *fn27 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. *fn28 No matter how carefully tailored all 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. *fn29 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.



*fn1 The Natural Gas Pipeline Safety Act (NGPSA) and the Hazardous Liquid Pipeline Safety Act (HLPSA) require that proposed rules be submitted to established safety standards committees. 49 U.S.C. App. SEC.(s) 1673(b) and 2003(b) (1982).

*fn2 See 53 Fed. Reg. 47 023-61 (1988) (Federal Aviation Administration); id. at 47 063-82 (Coast Guard); id. at 47 101-32 (Federal Railroad Administration); id. at 47 133-54 (Federal Highway Administration); id. at 47 155-77 (Urban Mass Transportation Administration).

*fn3 See 53 Fed. Reg. 47 085-92 (1988).

*fn4 For employers with more than 50 employees the dates for implementation were changed from December 21, 1989 to April 20, 1990 and for employers with fewer than 50 employees the dates were changed from April 23, 1990 to August 21, 1990. 54 Fed. Reg. 14 922 (1989).

*fn5 RSPA first issued its final rule on November 21 1988 53 Fed. Reg. 47 084 announced a reevaluation of the scope of the rule on April 13 1989 54 Fed. Reg. 14 922 and published certain minor modifications to the rule on December 18 1989 id. at 51 842. A notice of petition for review must be filed within 90 days of the issuance of the final rule. 49 U.S.C. App. SEC.(s) 1675(a) & 2005(a) (1982). In Case No. 89-70061 the petition for review of the November 21 1988 order was timely filed on February 10 1989. In Case No. 89-70308 the petition for review was filed in the U.S. District Court for the Northern District of California on January 20 1989 and was removed to this court on May 9 1989. The two cases were consolidated by unopposed motion on January 19 1990.

*fn6 Petitioners also challenge the post-accident and pre-employment provisions of the rule each of which could involve testing without individualized suspicion.

*fn7 See U.S. Department of Transportation Research and Special Programs Administration Annual Report on Pipeline Safety Calendar Years 1985 1986 1987 and 1988 (cited in Petitioners' Brief at notes 7 and 17).

*fn8 We are also un-persuaded by petitioners' contention that the mechanized nature of the industry obviates the need for additional safety regulations. At oral argument Counsel for petitioners conceded that humans perform necessary safety functions related to pipeline maintenance. Failure to render proper maintenance and to monitor pipeline conditions can lead to safety hazards. See 53 Fed. Reg. 25 893 (1988).

*fn9 These functions include: responsibility for controlling gas pressure or hazardous liquid flow (49 C.F.R. SEC.(s) 192.619 192.621 192.623 195.402 (1989)); inspection of testing devices that control pressure (id. SEC.(s) 192.739 195.428 (1989)); inspection for pipeline leaks and odorization of gas (id. SEC.(s) 192.706 192.723 192.625 (1989)); monitoring of cathodic (anti-corrosive) protection (id. SEC.(s) 192.465 195.416 (1989)); repair of pipelines (id. SEC.(s) 192.713 192.715 192.717 (1989)); emergency response functions (id. SEC.(s) 192.615 195.402 (1989)).

*fn10 In this context petitioners also suggest that the agency has not demonstrated that impairment from drugs will result in accidents. Such evidence is admittedly difficult to obtain. In its Final Regulatory Evaluation RSPA concluded that substance abuse impaired critical faculties such as vision perception judgment and motor performance. Many routine operation and maintenance functions, as well as emergency response activities involved in pipeline operation, demand skilled, competent, alert, and unimpaired workers. RSPA Final Regulatory Evaluation Drug Testing (Urinalysis), Natural Gas & Hazardous Liquid Pipeline Industry, at 2. In our view RSPA's reasoning was appropriate that the impairment of workers could lead to catastrophic consequences.

*fn11 The parties' disagreement over cost estimates thus need not detain us for long. The uncertainty of estimating costs in this field also leads us to conclude that rejecting a rule solely on the basis of such uncertain data would be inappropriate.

*fn12 Petitioners contend that Motor Vehicle Mfrs. Ass'n. requires an agency to consider alternatives propounded by commenters and to explain its rejection of those options. Indeed Motor Vehicle Mfrs. Ass'n. contains some language appearing to support that proposition. See e.g. Motor Vehicle Mfrs. Ass'n. 463 U.S. at 48 (noting that "at the very least this alternative way [requiring installation of air bags] of achieving the objectives of the Act should have been addressed and adequate reasons given for its abandonment").

We do not read Motor Vehicle Mfrs. Ass'n. so broadly. In that case the Supreme Court took the agency to task for initially adopting an alternative - the requirement of air bags - and then abandoning that alternative without explaining its decision. See 463 U.S. at 46. Court viewed this action as arbitrary because at the very least the agency should have explained why it abandoned the air bags option. In the instant case the alternatives urged upon the agency by petitioners and other interested parties involved less intrusive or restrictive alternatives. In this sense RSPA's decision was no different from the ordinary administrative review of alternatives - some of which will be more onerous to affected persons and some less so. An agency need not explain its reason for rejecting every alternative. See id. at 51 ("Nor do we broadly require an agency to reconsider all policy alternatives in reaching decision."). Certainly Motor Vehicle Mfrs. Ass'n. allows us to require more explanation from an agency in certain contexts but not perhaps as much as petitioners in this case may wish.

*fn13 The agency rejected suggestions proposed by the two advisory committees. It reasoned that both committees are advisory only; the agency need only respond to suggestions it need not heed them see 49 U.S.C. App. SEC. 1673(b); id. SEC.2003(b). Moreover RSPA did respond 53 Fed. Reg. 47 094-95 (1988) and it adopted certain of the committees' suggestions see id.

*fn14 The heavy supervision of workers in the pipeline industry does not as petitioners suggest negate the need for other mechanisms to prevent accidents. As RSPA observed extensive supervision in other transportation industries has not prevented accidents. 53 Fed. Reg. 47 087 (1988).

*fn15 See e.g. 54 Fed. Reg. 51 846 (1989) (discussing success of the military Coast Guard and private industry with unannounced random drug tests); American Fed'n of Gov't Employees v. Skinner 280 U.S. App. D.C.262 885 F.2d 884 891 (D.C. Cir.1989) (random testing may be a more effective deterrent than other forms of testing) cert. denied 495 U.S. 923 110 S. Ct.1960 109 L. Ed. 2d 321 (1990).

*fn16 See Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. 467 U.S. 837 865 81 L. Ed. 2d 694 104 S. Ct.2778 (1984) (stating that courts must not "reconcile competing political interests . . . on the basis of the Court' personal policy preferences"); National Cable Television Ass'n. v. Copyright Royalty Tribunal 233 U.S. App. D.C.44 724 F.2d 176 181 (D.C. Cir.1983) (noting that the stringency of judicial review should be calibrated to the specificity of Congress' statutory directives to the agency); see generally Pierce The Role of Constitutional and Political Theory in Administrative Law 64 Texas L. Rev. 469 486-88 (1985) (discussing judicial review of agency actions).

*fn17 See Bluestein 908 F.2d at 455 which succinctly summarized these threshold issues:

First drug testing performed by private employers under compulsion of government regulations constitutes governmental action subject to constitutional restrictions. See Skinner 109 S. Ct. at 1411-12. Second because "it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable urinalysis must be deemed [a] search[] under the Fourth Amendment." Skinner 109 S. Ct. at 1413; accord Von Raab 109 S. Ct. at 1390. Third the usual Fourth Amendment requirements of a warrant and probable cause do not necessarily apply in the drug testing context.

*fn18 See also Bluestein 908 F.2d at 455; National Fed'n of Fed. Employees v. Cheney 280 U.S. App. D.C.164 884 F.2d 603 608 (D.C. Cir.1989) cert. denied 493 U.S. 1056 110 S. Ct.864 107 L. Ed. 2d 948 (1990); Harmon v. Thornburgh 278 U.S. App. D.C.382 878 F.2d 484 488 (D.C. Cir.1989) cert. denied sub nom. Bell v. Thornburgh 493 U.S. 1056 110 S. Ct.865 107 L. Ed. 2d 949 (1990).

*fn19 RSPA may also have an unspecified interest in data collection see 53 Fed. Reg. 25 897 (1988) although it is unclear whether the government's need for data collection is sufficient to outweigh an individual's privacy interests see American Postal Workers Union v. Frank 725 F. Supp.87 90 (D. Mass. 1989) (holding that drug testing for research purposes is an unconstitutional search in violation of the Fourth Amendment).

*fn20 The D.C. Circuit has also squarely rejected petitioners' argument that the government must show the existence of a drug problem in the regulated industry. See e.g. Harmon 878 F.2d at 487 ("Nor is it necessary that a documented drug problem exist within the particular workplace at issue.") (citation omitted).

*fn21 See e.g. Skinner v. Railway Labor Executives' Ass'n. 489 U.S. 602 109 S. Ct.1402 1419 103 L. Ed. 2d 639 (1989); Von Raab 109 S. Ct. at 1393; American Fed'n of Gov't Employees v. Skinner 280 U.S. App. D.C.262 885 F.2d 884 890-91 (D.C. Cir.1989) cert. denied 495 U.S. 923 110 S. Ct.1960 109 L. Ed. 2d 321 (1990); National Fed'n of Fed. Employees 884 F.2d at 610; Thomson v. Marsh 884 F.2d 113 115 (4th Cir.1989) (per curiam); Rushton v. Nebraska Public Power Dist. 844 F.2d 562 565 (8th Cir.1988); Transport Workers' Union v. Southeastern Pa. Transp. Auth. 884 F.2d 709 712 (3d Cir.1988).

*fn22 See e.g. Von Raab 109 S. Ct. at 1397 (remanding to determine whether Customs Service defined category of employees with access to sensitive information too broadly to meet its reasonable goal); Taylor v. O'Grady 888 F.2d 1189 1197 (7th Cir.1989) (holding invalid a policy that required all corrections officers rather than just those with contact with inmates to submit to drug testing); Harmon 878 F.2d at 490-91 (holding invalid certain Justice Department regulations that required testing for persons not engaged in the prosecution of federal drug offenders).

*fn23 The Hours of Service Act defines "employee" to be "an individual actually engaged in or connected with the movement of any train 45 U.S.C. SEC. 61(b)(2); see also id. SEC.(s) 63a(a)(1), 63a(d) (regulating hours of service for persons engaged in installing repairing or maintaining signal systems").

*fn24 See supra note 9 and accompanying text.

*fn25 Regulations issued on the basis of job titles within the pipeline industry would have presented at least two potential difficulties. First the possibility exists that two different companies use different titles for persons who perform similar functions. The regulations might affect one and not the other. Second a pipeline company could purposefully or inadvertently subvert the regulations if it were to change the title of the positions affected by the testing provisions. Petitioners have not identified job functions among those specified in the rules that are irrelevant to the ultimate safety of the transportation of hazardous liquids and natural gas by pipelines. We therefore decline their invitation to second-guess the agency. See e.g. Skinner 109 S. Ct. at 1419 n. 9.

*fn26 See e.g. Bluestein v. Department of Transp. 908 F.2d 451 (9th Cir.1990) (airline industry personnel); Taylor v. O'Grady 888 F.2d 1189 1199 (7th Cir. 1989) (correctional officers in regular contact with inmates); American Fed'n of Gov't Employees v. Skinner 280 U.S. App. D.C.262 885 F.2d 884 893 (D.C. Cir.1989) (various transportation workers) cert. denied 495 U.S. 923 110 S. Ct.1960 109 L. Ed. 2d 321 (1990); National Fed'n of Fed. Employees v. Cheney 280 U.S. App. D.C.164 884 F.2d 603 615 (D.C. Cir.1989) (Army civilian guards) cert. denied 493 U.S. 1056 110 S. Ct.864 107 L. Ed. 2d 948 (1990); Thomson v. Marsh 884 F.2d 113 115 (4th Cir.1989) (per curiam) (civilian workers in Army chemical weapons plant); Harmon v. Thornburgh 278 U.S. App. D.C.382 878 F.2d 484 496 (D.C. Cir.1989) (Justice Department employees with clearance for top-secret information) cert. denied sub nom. Bell v. Thornburgh 493 U.S. 1056 110 S. Ct.865 107 L. Ed. 2d 949 (1990); Guiney v. Roache 873 F.2d 1557 1558 (1st Cir.) (per curiam) (police officers carrying firearms or engaged in drug interdiction efforts) cert. denied 493 U.S. 963 107 L. Ed. 2d 370 110 S. Ct.404 (1989); Rushton v. Nebraska Pub. Power Dist. 844 F.2d 562 567 (8th Cir.1988) (nuclear power plant engineers); Transport Workers' Union v. Southeastern Pa. Transp. Auth. 884 F.2d 709 713 (3d Cir.1988) (mass transit workers).

*fn27 In one of the industries affected by RSPA's regulations for example a requirement is already in place that "personnel assigned operating maintenance security or fire protection duties [at a liquefied natural gas facility] not have any physical condition that would impair performance of their assigned duties." 49 C.F.R. SEC. 193.2711 (1989). The drug testing provision for such workers complements that pre-existing regulation.

*fn28 Petitioners do not contend that the testing procedures themselves are intrusive. These procedures call for use of stalls or partitioned areas for privacy. See 49 C.F.R. SEC. 40.25(a)(2) (1989).

*fn29 In addition to challenging the constitutionality of testing without individualized suspicion petitioners also challenge a post-accident testing provision which directs that "all reasonable steps" be taken for collection of a urine sample if the employee is "injured unconscious or otherwise unable to evidence consent to the drug test." 54 Fed. Reg. 51 850 (1989). These regulations appear to be unprecedented. Other transportation agencies that require post-accident testing do not mandate such procedures. See e.g. 46 C.F.R. SEC. (s) 4.06-10 4.06-20 (1989) (Coast Guard); 49 C.F.R. SEC. 391.113 (1989) (Federal Highway Administration); 49 C.F.R. SEC. 653.15 (1989) (Urban Mass Transit Administration). Although we have some doubts about these procedures we do not interpret the regulation to be unconstitutional. We have no reason to assume that the regulations anticipate procedures that will result in actual intrusion into employees' bodies and the RSPA's response to comments supports that no intrusion is intended. 54 Fed. Reg. 51 843 (1989).