INTRODUCTION

This inspection assessed the program implementation, operation, and cost of Drug-Free Workplace (DFW) programs within the Department of Justice (DOJ/Department).

Federal DFW Program - The President signed Executive Order 12564 (Order) on September 15, 1986, requiring each executive agency to establish drug-testing programs in support of a drug-free Federal workplace. The Order provided standards and procedures to protect the privacy of Federal employees, to ensure fairness in achieving a drug-free Federal workplace, and to provide assistance to drug users.

The Order required agency heads to perform the following:

· develop a DFW plan,

· establish an employee drug-testing program to test for the use of illegal drugs by employees in sensitive positions, and

· establish voluntary employee drug testing.

The Order required agencies' DFW plans to include the following elements: a policy statement regarding drug use and action to be anticipated in response to identified drug use; a provision for relating the Employee Assistance Program (EAP) to the DFW program; supervisory training; a provision for self-referrals and supervisory referrals for assistance; and provisions for identifying illegal drug users through testing on a controlled and carefully monitored basis.

The Order required agency heads to establish the frequency of testing and to identify testing designated positions (TDP). [ Testing designated positions are employee positions designated for random testing and identified in the agency's DFW plan.] TDPs include sensitive positions. The Order defined sensitive positions as follows:

· an employee who has or may be granted access to classified information by an agency head;

· an individual serving under a Presidential appointment;

· a law enforcement officer;

· employee positions designated as either special sensitive, critical sensitive, or noncritical sensitive by the agency head; or

· any other employee position with functions determined by the agency head requiring a high degree of trust and confidence.

The Order also gives agency heads the authority to conduct applicant testing. Under specified circumstances, agency heads can conduct reasonable suspicion testing, accident or unsafe practice testing, and follow-up testing for employees who received counseling or rehabilitation through an EAP for illegal drug use.

The Order assigns to the Director of the Office of Personnel Management (OPM) responsibility for developing government-wide guidance and for implementing the Order. The Attorney General is responsible for rendering legal advice on all guidelines, regulations, and policies proposed for the DFW program.

In 1989 a Federal Interagency Coordinating Group Executive Committee, composed of the Department of Health and Human Services (HHS), OPM, and DOJ officials, provided Federal agencies with a prototype DFW plan, Model Plan for a Comprehensive Drug-Free Workplace Program (model plan). The model plan included the mandatory guidelines, comprehensive standards for laboratory drug testing and laboratory procedures. [ HHS issued revisions to the mandatory guidelines on June 9, 1994, with an effective date of September 1, 1994.]

In 1991 the President designated the Office of National Drug Control Policy (ONDCP) as the lead agency for policy development and program coordination. The Interagency Coordinating Group Executive Committee was placed under the authority of ONDCP where it continues to provide policy oversight and guidance for Federal drug-testing programs.

On January 15, 1992, the ONDCP issued "Guidance for Selection of Testing Designated Positions," based on DFW litigation and applicable case law. It established criteria for including and excluding TDPs from an agency's random drug testing pool. The Interagency Coordinating Group Executive Committee required agencies to provide a copy of their revised schedule of TDPs or a statement that the agency had not made revisions within 90 days of the issuance of the guidance. If an agency seeks to deviate from the ONDCP guidance, it must submit its justifications to the Interagency Coordinating Group Executive Committee for review.

DOJ DFW Testing Program - The Department issued its DFW plan on September 25, 1987, and amended it on December 17, 1987. The DOJ plan establishes policy and procedures for conducting the program. The DOJ has six DFW programs administered by the Bureau of Prisons (BOP), Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Immigration and Naturalization Service (INS), United States Marshals Service (USMS), and the Justice Management Division (JMD). JMD administers the DFW program for all the Department's Offices, Boards, and Divisions (OBD). The DOJ plan delegates the responsibility to the heads of the six components for implementing the DOJ DFW plan. Appendix I describes the work performed as we examined the six DFW programs.

The plan requires each component head to ensure that his or her component:

· implements the DOJ DFW plan and adheres to requirements of the Order and all other applicable regulations;

· develops procedures to enable field offices to implement efficiently and swiftly all aspects of the plan;

· designates a DFW Coordinator who is responsible for implementing, directing, administering, and managing the DFW program;

· verifies that DFW contractors are performing according to mandatory guidelines and technical specifications;

· verifies that the DFW Coordinator and Medical Review Officer (MRO) have the responsibilities as required by mandatory guidelines;

·defines EAP's responsibilities in relation to the DFW program;

· ensures that supervisors are appropriately trained to participate in the DFW program;

· ensures that disciplinary action is in accordance with the Order and DOJ regulations for verified positive test results; and

· identifies sensitive positions to be randomly tested as TDPs.

DFW Programs in DOJ Components - All six DOJ components had their DFW plans approved by the Interagency Coordinating Group Executive Committee and complied with the ONDCP's January 15, 1992, request by submitting an updated schedule of TDPs or a statement that no changes were made.

The DOJ components conduct applicant testing and testing in six employee categories, including random testing of employees in sensitive TDPs, reasonable suspicion testing, accident or unsafe practice testing, voluntary testing, and testing as part of, or as a follow-up to, counseling or rehabilitation for illegal drug use. While the Order does not include probationary testing as a testing category, the DOJ DFW plan includes it as a separate drug test under random testing.

Since 1988, Department employees have challenged the legality of employee testing programs. The results of these challenges have affected several components' random drug testing programs. Specifically, BOP's DFW program operated under a permanent injunction, limiting random testing to a very small percentage of BOP's total employee population. JMD's DFW program operated under a modified permanent injunction, which significantly limited random testing of JMD/OBD employees. The BOP and JMD/OBD court cases are discussed in the random testing section of this report.

RESULTS OF THE INSPECTION

I. TESTING PRACTICES

The Department established testing policies and procedures to identify the illegal drug use by employees and by applicants who had been offered employment. The components did not always follow Departmental or other policy guidance and, in some instances, deviated from required procedures because of unclear policy.

The following table provides information on the numbers and types of DOJ DFW tests as well as the number of positive results for the review period, October 1, 1992 through March 31, 1994. DOJ components conducted 20,974 drug tests with 67 positive results. Of these tests, 15,643 were applicant tests and 5,331 were employee tests [ Employee tests include accident, follow-up, probationary, random, reasonable suspicion, and voluntary testing.] with 42 and 25 positive test results, respectively. Within the table, the following data is particularly noteworthy:

· DEA did not conduct applicant testing, contrary to DOJ requirements and its DFW plan;

· BOP and USMS had the highest rate (0.7 percent) of positive results for employee testing;

· FBI and INS had the highest rate (0.4 percent) of positive results for total tests;

· JMD conducted the lowest number of employee tests, and JMD/OBD employee testing did not result in a positive test;

· Reasonable suspicion testing resulted in 11 positive test results, or 17 percent of the total tested; and

· BOP and FBI are the only components that conducted probationary testing.

 
        	DOJ'S DRUG TESTING RESULTS FOR
	     OCTOBER 1, 1992 THROUGH MARCH 31, 1994

                                                       
                               EMPLOYEE TESTING            TOTAL
COMPONENTS       AP    A   F    P      R  RS   V  TOTAL   TESTING
BOP
 Tests        9,250    1   8  501    468  34   0  1,012    10,262
 Positives       26    0   0    0      0   7   0      7        33
DEA
 Tests            0    0   0    0    972   1   1    974       974
 Positives        0    0   0    0      1   1   0      2         2
FBI
 Tests          922    0  11  202  1,392  25  16  1,646     2,568
 Positives        1    0   0    0      5   2   1      8         9
INS
 Tests        2,345    0   8    0  1,220   6   0  1,234     3,579
 Positives       10    0   0    0      5   1   0      6        16
USMS
 Tests          678    0   0    0    272   0   1    273       951
 Positives        0    0   0    0      2   0   0      2         2
JMD/OBD
 Tests        2,448    0   8    0    184   0   0    192     2,640
 Positives        5    0   0    0      0   0   0      0         5
DOJ TOTAL
 Tests       15,643    1  35  703  4,508  66  18  5,331    20,974
 Positives       42    0   0    0     13  11   1     25        67  
 
AP = Applicant   A = Accident    F = Follow-up  P = Probationary
R =  Random      RS = Reasonable Suspicion      V = Voluntary 
  

A. Applicant Testing

The DOJ DFW plan requires drug testing for all individuals tentatively selected for employment. Each vacancy announcement informs applicants of the Department's drug-testing policy. The plan does not provide guidance for deviating or for seeking an exemption from this requirement.

The DOJ tested 15,643 applicants, which accounted for nearly 75 percent of all drug tests within our review period. Applicants tested positive for illegal drugs in 42 instances, or 0.3 percent. Applicants tested positive for using marijuana in 25 instances, cocaine in 15 instances, opiates in 3 instances, and amphetamines in 1 instance. Two applicants tested positive for more than one drug.

The DEA plan required applicant testing; however, DEA never tested individuals prior to their entering on duty. At one time, DEA tested new employees after they were hired and entered Basic Agent classes and Diversion Investigator classes. According to semiannual reports from October 1, 1990 through September 30, 1992, DEA tested 827 employees and reported this as applicant testing. DEA has never implemented applicant testing of support personnel. During our review period, DEA hired 51 employees, 4 of whom were investigative personnel. However, DEA was not conducting any applicant testing, citing a lack of funding as the reason. We estimated that applicant testing costs would have been approximately $7,000 [ The estimated cost is based on FY 1993 cost of $129.18 per drug test.] for the 51 individuals. It is inconsistent with the Federal Government's quest to promote a drug-free workplace for the nation's principal drug enforcement agency not to test its applicants prior to their entering on duty.

The BOP, FBI, and INS' Border Patrol were drug testing some applicants after a selective screening process but before making an offer of employment. Representatives from the three components said this practice enabled them to respond quickly to field office requests for qualified applicants based on a ready pool of potential applicants. While we were not able to determine the number of individuals who were drug tested and not hired by any of the three components, the FBI's Acting Health Systems Administrator told us the FBI averaged about 2.2 drug tests per applicant hired.

Neither the DOJ DFW plan nor Federal DFW guidance provides for components to drug test applicants who have not been tentatively selected for DOJ employment. Therefore, if BOP, FBI, or INS has a need to test applicants prior to a tentative job offer, they should seek an exemption from the DOJ plan requirement and Federal DFW guidance on applicant testing. Furthermore, the BOP, FBI, and INS incur additional applicant drug testing costs for each applicant tested and not offered a DOJ position.

The INS DFW plan exempts the testing of applicants receiving appointments of 90 days or less. Thus, INS excluded summer hires from applicant testing based on their expected short-term employment; volunteers, unless duties included the operation of vehicles and heavy equipment or the handling of dangerous materials; and minors below the age of 18. The INS Chief of the Staffing Section said that no problems had arisen from the decision not to drug test summer hires. If any employee drug problem arose, INS could terminate the employee's employment quickly. Although INS' exemptions to applicant testing are not in keeping with the DOJ DFW plan, we believe this practice represents an appropriate balancing of costs and benefits. However, INS needs to seek an exemption from the DOJ DFW plan requirement to test all individuals tentatively selected for employment.

B. Presidential Appointee Testing

According to the Order and the DOJ plan, Presidential appointees are subject to drug testing and components should include them in their random pools. Our work confirmed that the components were including Presidential appointees in their random pools.

The DOJ policy does not specify whether components should test Presidential appointees as applicants. Civil Division officials stated that, for the purposes of the DFW program, components should consider Presidential and political [ For this report, political appointee refers to Senior Executive Service, Noncareer Appointments, and Schedule C Excepted Appointments. ] appointees as applicants and test them when their appointment begins. We found that components had not tested all Presidential appointees as applicants. Furthermore, DOJ policy is unclear on when and who should test Presidential and political appointees.

The Congressional report, Policy and Supporting Positions, [ United States Government, Policy and Supporting Positions , Committee on Governmental Affairs, United States Senate, 102d Congress, 2d Session, November 10, 1992.] lists 227 DOJ Presidential Appointment with Senate Confirmation (PAS) positions. Of the 227 PAS positions, we were able to verify that 84 individuals had been drug tested as shown on the following table.

The JMD DFW staff had tested the Attorney General and 10 other Presidential appointees. As requested by the components, the JMD DFW staff had tested the DEA Administrator, the INS Commissioner, and the USMS Director; and the FBI had tested 60 United States Attorneys as requested by the JMD DFW staff. The DEA had tested its Deputy Administrator as part of the random selection process.

At the time of our field work, the USMS had not tested any of the 80 newly appointed United States Marshals on board, and the FBI had not tested its Director. JMD had not tested 49 Presidential appointees, including 33 United States Attorneys. Of the 33 United States Attorneys not tested, JMD provided the following information for not testing the employees: 7 were DOJ employees at the time of the appointment, 13 were in an acting capacity, and 5 were in the process of being scheduled for tests. The remaining 8 were unscheduled for tests.

The DOJ should clarify its DFW plan to ensure that components test all Presidential and political appointees at the time the appointment begins. In addition, the Department's plan should clarify whether individuals occupying Presidential and political positions should be included or excluded in other employee drug testing categories.

C. Random Testing

The Order required agencies to establish a program to test employees in sensitive positions for the use of illegal drugs. The DOJ DFW plan authorizes random testing of employees in TDPs. TDPs and the frequency of random testing are determined by the component heads.

Court decisions have defined the JMD/OBD and BOP TDPs, and consequently the size of their random pools. JMD has not implemented changes in TDP criteria allowed by the court in a 1989 ruling. As a result, JMD was not testing employees who possibly could have been included in the random pool. BOP revised its TDP criteria and increased its random pool after a 1994 court decision.

JMD/OBD Court Ruling

On June 30, 1989, the United States Court of Appeals decided Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056 (1990). This decision modified a previous permanent injunction related to the JMD DFW plan. The Court of Appeals allowed JMD to conduct random testing of all employees holding top secret national security clearances. However, it upheld the district court's injunction prohibiting the Department from including, unconditionally, all Federal prosecutors and all employees having access to grand jury proceedings in its random pool. The Court of Appeals reasoned that JMD could test additional employees, such as drug prosecutors, if it established such categories and petitioned the court.

The JMD, in conjunction with the Civil Division, has not requested the district court to vacate the injunction. Accordingly, the injunction against random testing of all Federal prosecutors and employees having access to grand jury proceedings remains in effect notwithstanding the Court of Appeals' ruling.

BOP Court Ruling

The court in American Federation of Government Employees, Council 33, v. Reno, No. C88-1419-SAW, 1994 WL 224570 (N.D. Cal. May 16, 1994) allowed implementation of BOP's drug-testing program subject to limitations. The district court granted a motion to modify a previous permanent injunction, thereby allowing BOP to randomly test correctional officers or primary law enforcement employees and employees with access to the Witness Security Program and Victim and Witness Notification Program. The court decision removed the restrictions on random testing, increasing the size of BOP's random testing pool from approximately 1,200 to 25,000 TDPs.

Results of Testing

According to the components' semiannual reports for the period ending March 31, 1994, DOJ's employee population was 96,512. Of this total, 53,055 employees (or 55 percent) were in random testing pools. For the review period, pending court action limited BOP's random drug testing to approximately 1,200 of its 27,000 employees. In June 1994, BOP's TDPs increased to 25,000, or 93 percent of its total employee population. This decision had the effect of increasing the DOJ random pool to 78,055 employees (or 81 percent).

The JMD/OBD's 2,805 TDPs represent 17 percent of its employee population. However, JMD/OBD's 2,805 TDPs includes 1,668 drug prosecutors who are not randomly tested because of the previously discussed injunction. Therefore, approximately

7 percent of JMD/OBD's employees are subjected to random drug testing. These exclusions have skewed the random testing pool. As one example, the employees of the Office of the Inspector General comprise approximately 3 percent of the JMD/OBD employee population but 36 percent of the JMD/OBD random testing pool. The table below provides employee testing statistics.

For the review period, October 1, 1992 through March 31, 1994, components conducted 4,508 random tests. Of these tests, 13 employees, or 0.3 percent, tested positive for illegal drug use. Components' percentage of TDPs tested ranged from 6 to 39 percent with components' positive test results ranging from 0.0 to 0.7 percent.

Of the 13 employees with positive test results, 2 employees' results were positive for more than 1 illegal drug. Employees tested positive for the following illegal drugs:

	Illegal Drug       Number of Positive Results

          Marijuana                      8
          Cocaine                        5
          Amphetamines                   1
          Opiates                        1

The components referred all 13 employees to EAP as a result of their positive test results. At the time of our review, 10 of the 13 employees had either resigned or had been terminated, and 3 remained on duty with INS.

We reviewed the components' sampling methodology for selecting employees from the random pool and the random pool TDP composition. All components used sampling with replacement [If TDP employees are selected for random testing, their names are placed back in the pool and are subject to any future random selections.] making it possible for the DFW staff to select an employee more than once for testing. Five of the six components used computer generated random TDP selection processes; JMD manually selected employees by using a random numbers table. All Coordinators stated that they had access to either a statistician or a programmer who was able to advise and assist them with random sampling.

JMD Testing Program

With the exception of JMD, the components' random pools contained TDPs as reported to the Interagency Coordinating Group Executive Committee after its January 1992 request, and as reported in their plans. The JMD Coordinator stated that the random testing criteria contained in OBD Order 1792.1A was used. JMD drafted a revised OBD Order 1792.1A to comply with the Court of Appeals decision but never issued the revision.

The OBD DFW Order, OBD 1792.1A, dated November 1, 1989, provided three TDP categories of employees for random testing:

· employees having access to top secret classified information;

· employees serving under Presidential appointments; and

· employees whose duties include maintaining, storing, or safeguarding a controlled substance.

In a letter dated April 17, 1992, to the Interagency Coordinating Group Executive Committee, JMD added employees having access to secret classified information to the top secret classified information category. Also, JMD added the following four additional categories:

· employees authorized to carry firearms;

· motor vehicle operators carrying passengers;

· Federal drug prosecutors, their supervisors, and support staff; and

· direct service staff of the EAP.

In August 1992, based on advice from JMD's Office of General Counsel, JMD discontinued random testing of the seven TDP categories and returned to testing Presidential appointees, employees with top secret clearances, and drug evidence custodians. JMD did not submit a revised DFW schedule of TDPs to the Interagency Coordinating Group Executive Committee as required by ONDCP.

According to OBD Order 1792.1A, the JMD/OBD pool should have included Presidential appointees, employees with top secret clearances, and drug evidence custodians. We reviewed JMD/OBD's random pool composition and a sample of employees selected from the random pool for testing and found that JMD did not follow testing criteria in OBD Order 1792.1A.

Between October 1, 1992 and March 31, 1994, JMD randomly selected 361 employee names for drug testing. Of the 361, JMD tested 175 employees; [ JMD reported on its semiannual reports a total of 184 employees randomly tested.] JMD did not test 186. JMD did not test the other 186 employees because 104 were drug prosecutors, 43 were not in a TDP, 23 had a second or third random selection within a year, 12 no longer had a top secret clearance, 3 had resigned, and 1 had a secret clearance only.

Based on our examination of JMD's random testing procedures, we discovered the following:

· JMD/OBD's random pool did not include employees it had identified in the TDP schedule of its DFW plan. One of JMD's criteria for selecting employees for the random pool was a top secret security clearance. During our review period, JMD reported a random pool size of 2,805 TDPs. However, JMD excluded 1,668 drug prosecutors and 10 other employees from the pool, reducing the actual pool size to 1,127 employees. The Security and Emergency Planning Staff (SEPS) reported 2,704 employees with top secret security clearances for the same period.

· JMD exempted 10 employees with top secret security clearances because it believed they did not perform duties that warrant testing. This included at least one employee who was cleared at the top secret level to enable him or her to park in the Hoover Building. This employee's name was removed from the random testing pool.

· Of the 104 drug prosecutors excluded from testing, we selected a sample of 25 prosecutors to verify their level of clearance with SEPS. Of the 25 prosecutors, 3 had top secret security clearances and should have been tested.

· JMD had not implemented drug testing in approximately 80 percent of the United States Attorneys' offices and the litigating divisions' field offices. The random pool included OBD employees within the Washington Metropolitan area and employees in the United States Attorneys' offices for the District of Columbia, Baltimore, New York City, Brooklyn, Alexandria, Boston, Philadelphia, Atlanta, Miami, Chicago, Detroit, St. Louis, Denver, Dallas/Fort Worth, Houston, San Antonio, San Francisco, Los Angeles, and San Diego. The Office of the Inspector General field office employees were also included in the random pool for applicable cities. JMD officials indicated they had planned to issue individual drug testing notices to other field office employees but had not done so since promulgating the OBD Order in 1989. Therefore, the remaining field office TDP employees have not been subjected to random testing for the last 5 years.

· The DFW Coordinator said that if JMD selected an OBD attorney for a drug test, the DFW staff would check with the attorney's administrative officer to determine whether the attorney still had a top secret security clearance before the attorney was called for a drug test. If the Administrative Officer said the attorney no longer required a clearance or no longer had a clearance, the attorney would not be tested. JMD did not rely on the employee's official security clearance records that are available through SEPS.

· JMD used sampling with replacement, but exempted employees from testing if selected for a second or third random test within a 1-year period. The Coordinator told us this practice was an administrative decision. We believe this is a good practice and suggest that JMD take appropriate action to formalize this practice into OBD DFW policy.

We believe JMD should review its policies and procedures for random pool composition and selection to ensure consistency with the Order and DOJ requirements. Specifically, JMD should implement random drug testing in all field offices; and it should revise and include all TDPs meeting its random testing criteria in its selection pool. JMD should submit to the Interagency Coordinating Group Executive Committee an updated DFW plan that accurately reflects its random drug testing policy.

The JMD's practice of verifying an OBD employee's clearance with administrative officers is an inappropriate practice for random pool selection and testing. This practice does not ensure that employees will not have possible premature notification or disclosure of random selection for drug testing. JMD should rely solely on employees' official security clearance records to protect program integrity. JMD could take advantage of its computerization capabilities by downloading SEPS data along with other personnel information to verify an employee's clearance status.

D. Probationary Testing

According to the DOJ DFW plan, components can direct probationary employees in sensitive positions to take a drug test during their probationary period before offering permanent employment. BOP used probationary testing as a way of ensuring the continued high professional standards and requirements for achieving its law enforcement related missions. The FBI limited its probationary testing to only special agents. Special agents comprised 42 percent of the FBI's 23,778 employees.

The JMD included probationary testing in its DFW plan but, according to the DFW Coordinator, never implemented the testing because of a higher-level management decision. The DEA, INS, and USMS did not include probationary testing in their plans because it was not required, and the DFW Coordinators told us officials did not see its necessity because the random testing pool includes these employees.

E. Voluntary Testing

As outlined in the DOJ DFW plan, components should provide voluntary testing for employees who are not in a TDP and who volunteer for a drug test. Volunteers' names remain in the random pool for as long as the employee remains in the position or until the employee withdraws from participation.

For the review period, the components reported that they conducted 18 voluntary tests: 16 at the FBI, 1 at DEA, and 1 at the USMS. The FBI tested 6 of its 16 employees under this category in coordination with its Office of Professional Responsibility (OPR). One of the six employees tested positive for cocaine use and resigned. Because all of the FBI and DEA employees are in TDPs, the FBI's and DEA's testing of employees under this category is inconsistent with the voluntary testing criteria.

The FBI conducted the remaining 10 voluntary tests, and DEA and USMS conducted their tests because the employees wanted to see how the program operated or to show support for the DFW drug testing program. The USMS' DFW Coordinator said on one occasion a United States Marshal volunteered for a drug test to show support for the program. The DEA Coordinator told us supervisory personnel occasionally volunteer to take a drug test to show their support for the program.

The Federal DFW guidance requires agencies to establish a voluntary testing category for employees not in a TDP. Therefore, the components are incorrectly using and reporting voluntary testing. However, our review determined that components need a voluntary testing category for employees in TDPs.

We suggest that JMD examine the way components are using and reporting voluntary testing and consider establishing a voluntary testing category to accommodate testing of TDPs. JMD should either clarify voluntary testing in the DOJ DFW plan or provide a new voluntary testing category for TDPs.

F. Follow-up Testing

All employees referred through administrative channels to the EAP who undergo counseling or rehabilitation programs for illegal drug use will be subject to unannounced testing for one year following completion of a program. The DOJ plan describes follow-up testing as distinct from testing performed as part of an employee's EAP counseling or rehabilitation program. For the review period, components conducted 35 follow-up tests on 9 employees. All test results were negative. The frequency of component follow-up testing ranged from 6 to 12 tests per year.

All the components conduct follow-up tests except for the USMS. The USMS included follow-up testing in its 1988 DFW plan, but deleted it from the 1992 plan. As explained by the DFW Coordinator, the EAP conducted follow-up testing. This practice is inconsistent with the requirements of the DOJ DFW plan, and the USMS should follow required procedures.

G. Reasonable Suspicion Testing

The DOJ DFW plan requires components to conduct reasonable suspicion testing based on specific criteria. Federal DFW guidance allows reasonable suspicion testing of any employee in a TDP when there is reasonable suspicion that the employee uses illegal drugs on- or off-duty. Reasonable suspicion testing may also be required of any employee (non-TDP) when there is a reasonable suspicion of on-duty use or on-duty impairment.

We found that the components conducted this testing in a responsible manner, seeking approval as appropriate. In DEA and the FBI, their OPRs are the approving authority. In BOP, Wardens approved reasonable suspicion testing. In INS, the DFW Coordinator is the approving authority but consults with INS' General Counsel when necessary. The USMS notifies Employee and Labor Relations personnel, and JMD seeks the Civil Division's approval to conduct this testing.

For the review period, 4 components conducted a total of 66 reasonable suspicion tests of which 11 employees, or 17 percent, tested positive. Of the 11, components terminated 8 employees and 3 employees resigned.

H. Accident or Unsafe Practice Testing

According to the DOJ DFW plan, an employee involved in an accident or unsafe practice while on duty may be directed to take a drug test as part of an authorized examination into the accident or unsafe practice. During the review period, only one accident or unsafe practice drug test was given by BOP. The test was negative. The FBI did not include accident or unsafe practice testing in its plan, according to its DFW Coordinator, because it was not necessary with the availability of reasonable suspicion testing. The FBI had not used reasonable suspicion testing in place of accident or unsafe practice testing during our review period.

RECOMMENDATIONS:

The Inspections Division recommends that the:

1. Administrator, DEA, conduct applicant drug testing.

2. Directors, BOP and FBI, and Commissioner, INS, discontinue the policy of testing applicants who are not offered employment or seek approval from the Assistant Attorney General for Administration (AAG/A) to continue this practice.

3. Commissioner, INS, request an exemption from the DOJ plan to exclude applicant testing of employees in positions of 90 days or less, and for minors.

4. Directors, FBI and USMS, and the AAG/A direct appropriate DFW Coordinators to complete drug testing of Presidential appointees who have not been drug tested.

5. AAG/A take action to vacate the injunction and revise JMD's DFW policies and procedures. If it is not feasible to vacate the injunction, the AAG/A should determine the appropriate procedures to conduct random testing within the OBDs.

6. AAG/A develop random testing procedures for JMD to ensure all employees in TDPs are included in the pool and employees selected are properly notified of the drug test as required.

7. Director, USMS, direct the DFW Coordinator to conduct follow-up testing according to the DOJ DFW plan.

#####