[Federal Register Volume 59, Number 226 (Friday, November 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28915]


[[Page Unknown]]

[Federal Register: November 25, 1994]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

[Docket No. RSOR-6; Notice No. 40]
RIN 2130-AA81

 

Alcohol Testing; Amended Implementation Dates for Pre-Employment 
Alcohol Testing and Mandatory Reasonable Suspicion Testing

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

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SUMMARY: FRA amends the implementation dates for pre-employment alcohol 
testing and mandatory reasonable suspicion testing to allow Class II 
and Class III railroads to implement these types of testing 
simultaneously with random alcohol testing (on July 1, 1995, and 
January 1, 1996, respectively). This new implementation schedule 
provides more time for smaller railroads to phase-in alcohol testing.

EFFECTIVE DATE: This final rule is effective on January 1, 1995.

ADDRESSES: Any petition for reconsideration should be submitted in 
triplicate to the Docket Clerk, Docket No. RSOR-6, Office of the Chief 
Counsel, Federal Railroad Administration, 400 7th Street, S.W., Room 
8201, Washington, D.C., 20590.

FOR FURTHER INFORMATION CONTACT: D. Lamar Allen, Alcohol and Drug 
Program Manager (RRS-11), Office of Safety, FRA, Washington, D.C. 20590 
(Telephone: (202) 366-0127) or Patricia V. Sun, Trial Attorney (RCC-
30), Office of Chief Counsel, FRA, Washington, D.C. 20590 (Telephone: 
(202) 366-4002).

SUPPLEMENTARY INFORMATION:

Background

    On February 15, 1994, FRA issued a final rule [59 FR 7448] 
establishing a railroad industry alcohol misuse prevention program. For 
random alcohol testing only, FRA adopted a three-tier implementation 
schedule, similar to the one used to phase-in random drug testing. All 
other types of alcohol testing (pre-employment, return to service, 
follow-up, and mandatory reasonable suspicion testing for both alcohol 
and drugs) were to begin on January 1, 1995, for all classes of 
railroads.
    In response to a Petition for Reconsideration filed by the American 
Short Line Railroad Association (ASLRA) on April 15, 1994, FRA has 
decided to allow Class II and Class III railroads to phase-in pre-
employment alcohol testing and mandatory reasonable suspicion testing 
according to the implementation schedule previously established for 
random alcohol testing. Thus, Class II railroads must now implement 
pre-employment alcohol testing and mandatory reasonable suspicion 
testing together with random alcohol testing beginning on July 1, 1995, 
and Class III railroads must now implement pre-employment alcohol 
testing, mandatory reasonable suspicion testing, and random alcohol 
testing beginning on January 1, 1996. FRA anticipates that there will 
be few, if any, return to service or follow-up alcohol tests until 
implementation of mandatory reasonable suspicion and random alcohol 
testing is completed, and that any tests that occur before 
implementation will presumably be under railroad authority. The 
implementation date for return to service or follow-up alcohol testing 
therefore remains January 1, 1995. The amended implementation dates in 
this rule allow smaller railroads more time to purchase evidential 
breath testing devices, make contractual arrangements and train 
supervisors on the new testing requirements. This amendment also 
conforms FRA's implementation dates to those adopted by other operating 
administrations.
    This rule does not change the implementation schedule for Class I 
railroads. As before, Class I railroads must implement all types of 
alcohol testing, including mandatory reasonable suspicion testing 
according to the new procedures now contained in Sec. 219.303(b) (see 
discussion below), beginning on January 1, 1995. A railroad may not 
implement pre-employment alcohol testing or mandatory reasonable 
suspicion testing before its specified implementation date, and may 
not, of course, implement random alcohol testing until its plan has 
been approved by FRA. The schedule for submission of random alcohol 
testing plans remains the same: Class I railroads must submit their 
plans by August 15, 1994; Class II railroads must submit by February 
15, 1995; and Class III railroads must submit by August 15, 1994.
    Although Class II and Class III railroads may not conduct mandatory 
reasonable suspicion testing before their respective implementation 
dates, they continue to be responsible for enforcing FRA's existing 
prohibitions against alcohol misuse and must enforce the new 
prohibitions contained in FRA's alcohol rule beginning on January 1, 
1995. To enable smaller railroads to fulfill this responsibility, FRA 
will allow Class IIs and IIIs to continue to use existing for cause 
alcohol test procedures and safeguards currently in Sec. 219.303 until 
their respective deadlines for implementation of mandatory reasonable 
suspicion testing. These procedures were to be deleted effective 
January 1, 1995; FRA will instead continue them in force as paragraphs 
(c) through (e) of Sec. 219.303 until January 1, 1996, the deadline for 
Class IIIs to implement mandatory reasonable suspicion testing and 
switch to the new procedures, now in paragraph (b). Class IIs and IIIs 
also, of course, remain free to conduct reasonable suspicion tests 
under their own authority until they are required to implement 
mandatory reasonable suspicion testing.

Executive Order 12866 and DOT Regulatory Policy and Procedures

    FRA has determined that this rule is nonsignificant under Executive 
Order 12866 and under the Department of Transportation's Regulatory 
Policy and Procedures.

The Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 was enacted by Congress to 
ensure that small entities are not unnecessarily and disproportionately 
burdened by Government regulations. FRA certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

Federalism Implications

    This rule does not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
12612, FRA has determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
assessment.

Paperwork Reduction Act

    This rule does not change any previously approved information 
collection requirements.

List of Subjects in 49 CFR Part 219

    Alcohol and drug abuse, Railroad safety, Reporting and 
recordkeeping requirements.

    Accordingly, for the reasons stated in the preamble, FRA amends 49 
CFR part 219 as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

    1. The authority citation for Part 219 is revised to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20111-20113, 20140, 21301 and 
21304; Pub. L. 103-272 (July 5, 1994); and 49 CFR 1.49(m).

    2. Part 219 is amended by revising Sec. 219.303 to read as follows:


Sec. 219.303  Alcohol test procedures and safeguards.

    (a)(1) Each Class I railroad (including the National Railroad 
Passenger Corporation) and each railroad providing commuter passenger 
service shall implement mandatory reasonable suspicion testing 
according to the procedures listed in paragraph (b) of this section 
beginning on January 1, 1995.
    (2) Each Class II railroad shall implement mandatory reasonable 
suspicion testing according to the procedures listed in paragraph (b) 
of this section beginning on July 1, 1995. Prior to that date, a Class 
II railroad may use the procedures described in paragraphs (c) through 
(e) of this section.
    (3) Each Class III railroad (including a switching and terminal or 
other railroad not otherwise classified) shall implement mandatory 
reasonable suspicion testing according to the procedures listed in 
paragraph (b) of this section beginning on January 1, 1996. Prior to 
that date, a Class III railroad may use the procedures described in 
paragraphs (c) through (e) of this section.
    (4) In the case of a railroad commencing operations after January 
1, 1996, the railroad shall implement mandatory reasonable suspicion 
testing not later than the expiration of 60 days from approval by the 
Administrator of the railroad's random testing programs.
    (b) As provided for in subparagraph (a)(1) of this section, the 
conduct of alcohol testing under this subpart is governed by Subpart H 
of this part and Part 40 of Subtitle A of this title.
    (c) As provided for in subparagraphs (a)(2) and (a)(3) of this 
section, and except as provided in paragraph (f), the following 
conditions apply to breath testing authorized by this subpart.
    (1) Testing devices shall be selected from among those listed on 
the Conforming Products List of Evidential Breath Measurement Devices 
amended and published in the Federal Register from time to time by the 
National Highway Traffic Safety Administration (NHTSA), Department of 
Transportation.
    (2) Each device shall be properly maintained and shall be 
calibrated or verified as to correct calibration by use of a breath 
alcohol simulator (calibrating unit) listed on the NHTSA Conforming 
Products List of Calibrating Units for Breath Alcohol Testers (as 
amended and published) with sufficient frequency to ensure the accuracy 
of the device (within plus or minus .01 percent), but not less 
frequently than provided in the manufacturer's instructions.
    (3) Tests shall be conducted by a trained and qualified operator. 
The operator shall have received training on the operational principles 
of the particular instrument employed and practical experience in the 
operation of the device and use of the breath alcohol calibrating unit. 
A copy of the training program shall be filed with FRA in conjunction 
with the filing required by Sec. 217.11 of this title.
    (4) Tests shall be conducted in accordance with procedures 
specified by the manufacturer of the testing device, consistent with 
sound technical judgment, and shall include appropriate restrictions on 
ambient air temperature.
    (5) If an initial test is positive, the employee shall be tested 
again after the expiration of a period of not less than 15 minutes, in 
order to confirm that the test has properly measured the alcohol 
content of deep lung air.
    (d) Because of the inherent limitations of the instrumentation, any 
indicated breath test result of less than .02 percent shall be deemed a 
negative test.
    (e)(1) In any case where a breath test is intended for use in the 
railroad disciplinary process and the result is positive, the employee 
shall be given the prompt opportunity to provide a blood sample at an 
independent medical facility for analysis by a competent independent 
laboratory. The railroad shall provide the required transportation to 
facilitate the blood test.
    (2) A blood test under this section shall conform to the following 
standards:
    (i) The specimen shall be collected in a medically acceptable 
manner by a qualified medical professional or technician using a non-
ethanol swab and shall be deposited into a single-use sterile vacuum 
tube containing at least one percent sodium fluoride (and an 
anticoagulant).
    (ii) While the specimen remains in full view of the employee, the 
specimen shall be clearly labeled with the employee's name and/or a 
unique identifying number and shall be sealed with a tamperproof seal.
    (iii) The sample shall be handled in accordance with chain of 
custody procedures from the point of collection through analysis and 
secure storage at the laboratory.
    (iv) The sample shall be screened for alcohol only by a method 
reliable at a detection limit of not higher than .02 percent. Any 
presumptive positive shall be confirmed by gas chromatography with a 
suitable internal standard. The screening run shall include at least 
10% quality control samples. The confirmation run shall include ethanol 
standards (including an ethanol standard certified against or traceable 
to a primary standard), at least one blank specimen, other appropriate 
volatiles (e.g., isopropanol), and at least one control purchased 
commercially or provided through an external quality control program. 
Results declared positive on confirmation shall be consistent with pre-
established criteria for retention time of internal and external 
standards. Blood alcohol concentration shall be reported only at values 
of .02 percent or greater within the linear portion of the standard 
curve. Unconfirmed presumptive positive results and values below .02 
percent shall be reported as negative. Any quantitations to the third 
digit shall be rounded downward to two digits (i.e., .238% to .23%).
    (v) The remaining portion of any specimen testing positive shall be 
retained in secure frozen storage for at least one year, and the 
employee shall have the right to request a retest of the specimen at a 
competent independent laboratory within 60 days of the date of the 
laboratory report.
    (vi) Test results shall be reported to the Medical Review Officer 
who shall review and act upon the results in the same manner provided 
for drug urine testing in Subpart H of this part, except that fully 
quantitated results shall be made available to the employer 
representative.
    (3) If the blood test under this section is reported as negative, 
the breath test shall be deemed negative for all purposes.
    (f)(1) Under the circumstances set forth in Sec. 219.301, a 
railroad may require an employee to participate in a breath alcohol 
screening test solely for the purpose of determining whether the 
conduct of a test meeting the criteria of paragraph (a) is indicated. 
If the screening test is negative within the meaning of paragraph (b), 
the employee shall not be required to submit to further breath testing 
under this subpart. If the screening test is positive, no consequence 
shall attach except that the employee may be removed from covered 
service for the period necessary to conduct a breath test meeting the 
criteria of paragraph (a).
    (2) Except as provided in paragraph (d)(2)(iii) of this section, 
the conduct of a screening test under paragraph (d)(1) of this section 
does not excuse full compliance with paragraph (a) of this section with 
respect to any breath test procedure which is then undertaken. If a 
screening test is positive, the following procedures govern:
    (i) An initial breath test shall be conducted meeting the criteria 
of paragraph (a) of this section.
    (ii) If that test is positive, a second breath test shall be 
conducted meeting the criteria of paragraph (a) of this section.
    (iii) The second test meeting the criteria of section (a) of this 
section must be conducted at least 15 minutes after the positive 
screening test conducted under paragraph (d)(1) of this section. 
However, since a waiting period of 15 minutes is sufficient to permit 
the dissipation of any alcohol in the mouth, the requirement of 
paragraph (a)(5) of this section that there be a period of at least 15 
minutes between the two tests meeting the criteria of paragraph (a) of 
this section does not apply.
    3. Section 219.501, as published at 59 FR 7462, February 15, 1994, 
is amended by adding a new paragraph (a), deleting paragraph (e), 
redesignating existing paragraphs (a) through (d) as paragraphs (b) 
through (e), and revising newly designated paragraphs (b) through (e) 
as follows:


Sec. 219.501  Pre-employment tests.

    (a)(1) Each Class I railroad (including the National Railroad 
Passenger Corporation) and each railroad providing commuter passenger 
service shall implement pre-employment alcohol testing beginning on 
January 1, 1995.
    (2) Each Class II railroad shall implement pre-employment alcohol 
testing beginning on July 1, 1995.
    (3) Each Class III railroad (including a switching and terminal or 
other railroad not otherwise classified) shall implement pre-employment 
alcohol testing beginning on January 1, 1996.
    (4) In the case of a railroad commencing operations after January 
1, 1996, the railroad shall implement pre-employment alcohol testing 
not later than the expiration of 60 days from approval by the 
Administrator of the railroad's random testing programs.
    (b) Prior to the first time a covered employee performs covered 
service for a railroad, the employee shall undergo testing for alcohol 
and drugs. No railroad shall allow a covered employee to perform 
covered service, unless the employee has been administered an alcohol 
test with a result indicating an alcohol concentration of less than .04 
and has been administered a test for drugs with a result that did not 
indicate the misuse of controlled substances. This requirement shall 
apply to final applicants for employment and to employees seeking to 
transfer for the first time from non-covered service to duties 
involving covered service. If the test result of a final applicant for 
pre-employment indicates an alcohol content of .02 or greater, the 
provisions of paragraph (b) of this section shall apply.
    (c) No final applicant for employment tested under the provisions 
of this part who is found to have an alcohol concentration of .02 or 
greater but less than .04 shall perform safety-sensitive functions for 
a railroad, nor shall a railroad permit the applicant to perform 
safety-sensitive functions, until the applicant's alcohol concentration 
measures less than .02.
    (d) Tests shall be accomplished through breath analysis and 
analysis of urine samples. The conduct of breath alcohol testing and 
urine drug testing under this subpart is governed by Subpart H of this 
part and Part 40 of Subtitle A of this title.
    (e) As used in Subpart H with respect to a test required under this 
subpart, the term covered employee includes an applicant for pre-
employment testing only. In the case of an applicant who declines to be 
tested and withdraws the application for employment, no record shall be 
maintained of the declination.

    Issued in Washington, D.C. on November 17, 1994.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
[FR Doc. 94-28915 Filed 11-23-94; 8:45 am]
BILLING CODE 4910-06-P