[Federal Register Volume 62, Number 230 (Monday, December 1, 1997)]
[Rules and Regulations]
[Pages 63464-63467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31364]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 219 and 240
[Docket No. RSOR-6, Notice No. 45; Docket No. RSOR-9, Notice No. 9]
RIN 2130-AA63
Alcohol/Drug Regulations: Technical Amendments; Qualifications
for Locomotive Engineers: Correction
AGENCY: Federal Railroad Administration (FRA), DOT.
ACTION: Final rule.
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SUMMARY: FRA issues a final rule containing technical amendments to its
regulations on control of alcohol and drug use (49 CFR part 219), and
amends its regulations on locomotive engineer qualifications (49 CFR
part 240) to delete an outdated cross-reference to part 219 in part
240.
EFFECTIVE DATE: This rule is effective December 31, 1997.
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, DC, 20590.
FOR FURTHER INFORMATION CONTACT: Lamar Allen, Alcohol and Drug Program
Manager (RRS-11), Office of Safety, FRA, Washington, DC 20590
(Telephone: (202) 632-3378) or Patricia V. Sun, Trial Attorney (RCC-
11), Office of Chief Counsel, FRA, Washington, DC 20590 (Telephone:
(202) 632-3183).
SUPPLEMENTARY INFORMATION:
In addition to the technical amendments discussed below, this rule
makes several editorial changes to correct typographical errors.
Section by Section Analysis
Section 219.5 Definitions
FRA is deleting the definition of ``Field Manual'' for the reasons
discussed below.
Section 219.19 Field Manual
FRA is removing and reserving this section and deleting all
references to its alcohol and drug testing field manual (including, as
mentioned above, the definition in Sec. 219.5 and a reference in
Sec. 219.205(c)(1)), since this 1985 publication is obsolete. At
present, FRA has no plans to issue an updated manual.
Section 219.101 Alcohol and Drug Use Prohibited
Paragraph (a)(5)
FRA is adding a new paragraph to codify a 1995 interpretation which
made clear that a railroad is prohibited from using an FRA alcohol test
result that indicates an alcohol concentration below 0.02 as a basis
for federal or company discipline.
Section 40.63(e) of the Department of Transportation's (DOT or the
Department) alcohol testing procedures (contained in 49 CFR part 40
(part 40), which is incorporated by reference into part 219) states
that in any case where the employee's breath alcohol concentration is
less than 0.02, no further testing is authorized under Federal
regulations. This is because levels below .02 are considered to be
negative results (i.e., not persuasive evidence of alcohol use).
Testing conducted under federal authority is a search subject to
the protections of the Constitution of the United States. For this
reason, actions taken pursuant to federal rules must be supported by
forensically sound evidence. After considering the limits of current
technology, DOT determined that .02 was the lowest alcohol
concentration measurement at which it could be confident in the
result's accuracy. (This is analogous to the drug testing cutoff levels
established by the Department of Health and Human Services (DHHS)).
FRA recognizes that railroads retain independent authority to test
and discipline on their own. In Sec. 219.1, FRA states that railroads
may adopt more stringent standards under their own authority that are
not inconsistent with Part 219, and in Sec. 219.101(c), FRA
accommodates longstanding industry zero tolerance policies by allowing
railroads to impose an absolute prohibition on the presence of alcohol
or drugs in the body fluids of their employees.
This does not mean, however, that railroads can use a federal test
result below 0.02 as a basis for discipline, even under their own
authority. For FRA purposes, if a federal test result indicates an
alcohol concentration below .02, the test is negative and is not
evidence of alcohol abuse. Therefore, a railroad cannot use the federal
test result either as evidence in a company proceeding or as a basis
for subsequent testing under company authority.
A railroad can take further action only if it has an independent
basis for doing so. For example, if a supervisor reasonably suspects
alcohol use because the employee smells of alcohol, and the federal
test result is below .02, the railroad may use the supervisor's
observations as an independent basis for further company testing.
Before starting a separate company testing process, the railroad must
ensure that the employee understands that the completed federal test
was negative, and that no federal violation occurred. The railroad may
then conduct a company test (for which use of an FRA or DOT form is not
authorized), after making the employee aware that any subsequent
actions, such as future testing or discipline, are taken under railroad
authority only.
Prohibiting use of federal test results below .02 does not
interfere with railroad authority. A railroad remains free to test or
take further action if it has an independent basis for doing so.
Commingling federal authority with an employer testing program is
impermissible, however, since the employee must always know in advance
what his or her procedures, rights and consequences are.
If an employee's test result is between .02 and .039, however, a
railroad may take more stringent disciplinary action than the eight
hour removal from covered service required under Part 219. In the
preamble to its final rule on alcohol testing [February 15, 1994, at 59
FR 7452], FRA stated that ``* * * the bifurcated system [which imposes
different consequences for results of .04 or above BAC than for results
between .02 and .039] does not preempt a railroad's independent
authority to test and discipline under Rule G. As stated in Sec. 219.1,
railroads retain the latitude to adopt more stringent standards under
their own authority. For instance, railroads retain their authority to
discipline an employee under company policy for a .02-.039 test result
conducted under FRA authority or to discipline an employee found to
have violated Rule G based solely on supervisory observations.''
The crucial distinction is that while a .02-.039 test result does
not necessarily indicate impairment, it does indicate the presence of
alcohol in the employee's system. Thus, a railroad may use a federal
test result of .02-.039 as the basis for more stringent discipline
under its own independent authority. A separate company test is
therefore not required to impose discipline in addition to the
federally mandated minimum of eight hours removal from
[[Page 63465]]
covered service. Allowing a railroad to impose company discipline for a
.02-.039 test result reinforces the rail industry's traditional Rule G
prohibition against alcohol use since, as stated above, a .02 standard
is the equivalent of zero tolerance because of the technological
limitations of current alcohol testing technology.
Section 219.104 Responsive Action
Paragraph (a)(3)
FRA is amending Sec. 219.104(a)(3)(ii) to remove references to pre-
employment alcohol testing made obsolete by DOT's suspension of pre-
employment alcohol testing on May 10, 1995 [60 FR 24765]. To implement
DOT's decision, FRA suspended its pre-employment alcohol testing
requirements by adding Sec. 219.501(f) in 1995.
DOT explained the suspension's impact as follows: ``[a]ny employer
may [continue to] conduct pre-employment alcohol testing under its own
authority. Because of this suspension, employers who wish to continue
such testing may not claim a basis in Federal law or regulation for
doing so, however.''
Pre-employment drug testing was not affected by this suspension,
however, and remains in effect.
Section 219.201 Events for Which Testing Is Required
Paragraph (b)
For clarification, FRA specifies that accidents that would
otherwise qualify but are clearly attributable to the actions of a
trespasser or trespassers are exempt from mandatory post-accident
testing. This exemption spells out what had previously been implied in
this subpart, since crewmembers would normally be excluded from testing
upon determination that they played no role in the cause or severity of
the accident, or that the accident was attributable to vandalism.
Consistent with the other exceptions, the trespasser exception holds
railroad supervisors to the reasonable inquiry/good faith judgment
standard of Sec. 219.201(c) when making determinations.
Section 219.203 Responsibilities of Railroads and Employees
Paragraph (d)(2)
To ensure prompt notification 24 hours a day, railroads shall
immediately call the duty officer at the National Response Center (NRC)
at (800) 424-8802. The NRC will in turn notify FRA, and work with FRA
to ensure compliance with part 219 post-accident testing requirements.
Railroads shall also notify FRA by calling FRA's Alcohol and Drug
Program Manager, Mr. Lamar Allen, at (202) 632-3378. If the accident
occurs after business hours (8:00 a.m. to 4:30 p.m., E.S.T. or E.D.T.),
the message will be recorded on voicemail.
This new policy ensures that notification will be made to a staffed
phone number regardless of when an accident occurs.
Section 219.207 Fatality
Paragraph (b)
As discussed in Sec. 219.203, FRA's notification policy has
changed. This section is amended accordingly.
Section 219.209 Reports of Tests and Refusals
Paragraph (a)(2)
As discussed in Sec. 219.203, FRA's notification policy has
changed. This section is amended accordingly.
Section 219.303 Alcohol Test Procedures and Safeguards
Paragraphs (c)-(e)
The blood alcohol testing procedures in this section predate both
the alcohol testing procedures in Part 40 and mandatory reasonable
suspicion testing. In a final rule published on November 22, 1994 [59
FR 60562], FRA allowed Class II and Class III railroads to continue to
use these procedures, but only until their deadlines (July 1, 1995 and
January 1, 1996, respectively) for implementation of mandatory Federal
reasonable suspicion testing under the Department's alcohol testing
procedures. FRA is deleting its blood alcohol testing procedures, which
have not been in effect since July 1, 1996. Currently, DOT does not
authorize blood alcohol testing. FRA post-accident testing procedures
and protocols remain unchanged.
Section 219.601 Railroad Random Drug Testing Programs
Paragraph (b)(2)(ii) and (iii)
When FRA implemented random drug testing in 1989, all railroads
were required to test at a minimum annualized rate of 50 percent. In
1994, FRA instituted a performance-based system which allowed the
Administrator to determine the random drug and alcohol testing rate for
each year based upon the preceding year's reported industry-wide
positive rate. New railroads, however, were still required to begin
random drug testing at a minimum annual percentage rate of 50 percent
of their covered employees, regardless of the minimum rate in effect
for the rest of the industry at that time. FRA will now allow new
railroads to implement random drug testing at the minimum rate set by
the Administrator for the rail industry in the year in which they
commence operations. (Since its inception, the minimum testing rate for
random alcohol testing has been determined by the Administrator).
Accordingly, paragraphs (b)(2)(ii) and (iii) are deleted.
In its random testing plan, a new railroad shall stipulate that its
random alcohol and drug testing rates will be set in accordance with
the annual minimum rates published by the Administrator yearly in the
Federal Register.
Section 219.703 Drug Testing Procedures
Paragraph (d)
In its 1994 final rule mandating alcohol testing [59 FR 7358], DOT
revised Sec. 40.25(f)(10) to incorporate split sample collection
procedures. As part of this revision, DOT deleted a provision in
Sec. 40.25(f)(10)(i)(B) on ``shy bladder'' situations, which had
allowed the employer to discontinue the collection and conduct a
subsequent collection at a later time. Now, in situations where an
employee is unable to provide a complete specimen before his or her
hours of service expire, Part 40 authorizes the employer only to
discontinue the collection.
Previously, in random drug testing, when a covered service employee
failed to provide a sufficient urine specimen within his or her hours
of service, FRA allowed the employer the option of conducting a
subsequent collection either immediately upon the expiration of the
employee's required off-duty period, or on an unannounced basis within
the next 30 days. FRA is deleting both of these options, to conform
with Part 40.
Thus, if an employee's hours of service expire before completion of
a random drug test, the railroad must discontinue the collection, and
it is not counted as a completed random drug test. The employee has
completed his or her obligations. This change does not affect post-
accident and for cause testing, however, which are triggered by
unanticipated events. As before, in these forms of testing a railroad
may exceed hours of service if the railroad uses due diligence to
complete testing and reports the excess hours of service.
Section 219.709 Retest
FRA removes and reserves Sec. 219.709, which allowed an employee to
make a written request for a retest within 60 days after his or her
random drug test had been declared positive by the
[[Page 63466]]
railroad's Medical Review Officer (MRO). With the exception of post-
accident testing, discussed below, all types of FRA testing (pre-
employment, return to duty, follow-up, for cause, and random) now
follow the split sample testing procedures contained in Part 40. Under
Sec. 40.25(f)(10)(ii)(E), the employee may request a test of his or her
split sample in a second DHHS-certified laboratory within 72 hours of
having been notified by the MRO of a verified positive drug test
result.
For post-accident testing alone, FRA will continue to allow an
employee the right to request a retest of his or her original sample(s)
by making a written request within 60 days of the date on which the
medical review officer declared the employee's test positive. FRA
therefore retains Sec. 219.211(i), which lists the procedures for
requesting a retest of an employee's post-accident blood and urine
samples.
Section219.803 Reporting Drug Misuse Prevention Program Results in a
Management Information System
Paragraph (a)
FRA's Management Information System (MIS) requires railroads with
400,000 or more total manhours to submit annual reports summarizing the
results of their alcohol and drug misuse prevention programs. To
conform the reporting cutoffs for the two systems, FRA amends this
section so that the cutoff for the drug program MIS is now identical to
that for the alcohol program MIS, namely 400,000 or more total
manhours. Formerly this section differed slightly, by requiring
railroads with ``more than 400,000 total manhours'' to submit their
drug program data.
Appendix B to Part 219--Designation of Laboratory for Post-Accident
Testing
On December 1, 1995, in a final rule and notice of determination,
FRA announced that it had awarded a contract to Northwest Toxicology,
Inc. to conduct post-accident toxicological analysis [60 FR 61664].
Earlier this year, Northwest Toxicology, Inc. changed its corporate
name to NWT Inc. FRA is amending Appendix B to conform with the new
corporate name of its designated post-accident laboratory and to change
a previously published incorrect daytime telephone number. For
convenience, the address and corrected telephone numbers for NWT Inc.
are reprinted below.
Section 240.119 Criteria for Consideration of Data on Substance Abuse
Disorders and Alcohol Drug Rules Compliance
Paragraph (d)(4)
Section 240.119(d)(4)(ii) in FRA's regulations on the qualification
and certification of locomotive engineers allows railroads to use the
blood alcohol testing procedures found in Sec. 219.303 for return-to-
service and follow-up alcohol testing. As explained above, this rule
removes Sec. 219.303(c)-(e), since FRA ceased to authorize use of these
blood testing procedures as of January 1, 1996. Accordingly, the cross-
reference in this section of Part 240 is deleted.
Regulatory Process Matters
This final rule is considered to be a nonsignificant rulemaking
under DOT Regulatory Policies and Procedures, 44 FR 11034, and
Executive Order 12886.
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.
In accordance with the Paperwork Reduction Act of 1995, FRA has
examined this rule and determined that it does not significantly change
any previously approved information collection requirements. The rule
has also been analyzed in accordance with the principles and criteria
contained in Executive Order 12612. There are insufficient federalism
implications to warrant the preparation of a Federalism Assessment.
The Small Business Regulatory Enforcement and Fairness Act of 1996
requires Federal agencies to consider the impact of regulatory actions
on small entities, and to the extent possible, minimize the economic
burdens of the Federal action on small entities. FRA has determined
that the technical amendments set forth in this final rule will not
impose burdens on small entities subject to the requirements of the
rule.
FRA finds that prior notice and public comment on the rule would be
impracticable, unnecessary, and contrary to the public interest, since
the rule contains only technical and editorial changes.
List of Subjects in 49 CFR Parts 219 and 240
Alcohol and drug abuse, Railroad operating procedures, Railroad
safety.
Accordingly, for the reasons stated above, FRA amends 49 CFR parts
219 and 240 as follows:
PART 219--CONTROL OF ALCOHOL AND DRUG USE
1. The authority for Part 219 continues to read as follows:
Authority: 45 U.S.C. 431, 437, and 438, as amended; Pub. L. 100-
342; and 49 CFR 1.49(m).
Sec. 219.5 [Amended]
2. Section 219.5 is amended by removing the definition for ``Field
Manual.''
Sec. 219.9 [Removed]
3. Section 219.19 is removed and reserved.
4. In section 219.101, in paragraph (c), the phrase ``form
imposing'' is corrected to read ``from imposing,'' and a new paragraph
(a)(5) is added as follows:
Sec. 219.101 Alcohol and drug use prohibited.
(a) * * *
(5) If an employee tested under the provisions of this part has a
test result indicating an alcohol concentration below 0.02, the test
shall be considered negative and is not evidence of alcohol misuse. A
railroad shall not use a federal test result below 0.02 either as
evidence in a company proceeding or as a basis for subsequent testing
under company authority. A railroad may take further action to compel
cooperation in other breath or body fluid testing only if it has an
independent basis for doing so.
* * * * *
Sec. 219.104 [Amended]
5. In section 219.104, paragraph (a)(3)(ii) is amended by inserting
the word ``drug'' each time after the word ``pre-employment'' appears
and by removing the phrase ``either an alcohol concentration equal to
or greater than .04, or''.
6. In section 219.201, paragraph (b) is amended by revising the
second sentence to read as follows:
Sec. 219.201 Events for which testing is required.
* * * * *
(b) * * * No test shall be required in the case of an accident/
incident the cause and severity of which are wholly attributable to a
natural cause (e.g., flood, tornado or other natural disaster) or to
vandalism or trespasser(s), as determined on the basis of objective and
[[Page 63467]]
documented facts by the railroad representative responding to the
scene.
* * * * *
7. In section 219.203, paragraph (d)(2) is amended by revising the
first sentence to read as follows:
Sec. 219.203 Responsibilities of railroads and employees.
* * * * *
(d) * * *
(2) If an injured employee is unconscious or otherwise unable to
evidence consent to the procedure and the treating medical facility
declines to obtain blood samples after having been acquainted with the
requirements of this subpart, the railroad shall immediately notify the
duty officer at the National Response Center (NRC) at (800) 424-8802,
and FRA at (202) 632-3378, stating the employee's name, the medical
facility, its location, the name of the appropriate decisional
authority at the medical facility, and the telephone number at which
that person can be reached. * * *
* * * * *
Sec. 219.205 [Amended]
8. In section 219.205, paragraph (c)(1) is amended by removing the
last sentence.
9. In section 219.207, paragraph (b) is revised as follows:
Sec. 219.207 Fatality.
* * * * *
(b) If the local authority or custodian of the remains declines to
cooperate in obtaining the necessary samples, the railroad shall
immediately notify the duty officer at the National Response Center
(NRC) at (800) 424-8802 and FRA at (202) 632-3378 by providing the
following information:
(1) Date and location of the accident or incident;
(2) Railroad;
(3) Name of the deceased;
(4) Name and telephone number of custodian of the remains; and
(5) Name and telephone number of local authority contacted.
* * * * *
10. Section 219.207(d) is amended by removing the phrase ``and/or''
and adding in its place the word ``and.''
11. In Sec. 219.209, paragraph (a)(1) is amended by revising the
second sentence as follows:
Sec. 219.209 Reports of tests and refusals.
(a)(1) * * * Notification shall immediately be provided to the duty
officer at the National Response Center (NRC) at (800) 424-8802 and to
the Office of Safety, FRA, at (202) 632-3378.
* * * * *
Sec. 219.303 [Amended]
12. Section 219.303 is amended by removing and reserving paragraphs
(c) through (e).
Sec. 219.601 [Amended]
13. In Sec. 219.601, paragraph (b)(2)(i) is amended by replacing
the semi-colon with a period, paragraph (b)(2)(ii) is removed and
reserved; and paragraph (b)(2)(iii) is removed.
Sec. 219.603 [Corrected]
14. In Sec. 219.603, ``Sec. 210.102'' is corrected to read
``Sec. 219.102''.
Sec. 219.703 [Amended]
15. Section 219.703 is amended by removing paragraph (d).
Sec. 219.709 [Removed]
16. Section 219.709 is removed and reserved.
Sec. 219.803 [Amended]
17. Section 219.803(a) is amended by removing the phrase ``with
more than 400,000'' and adding the phrase ``that has 400,000 or more''
in its place.
Appendix--B to Part 219 [Amended]
18. In Appendix B--Designation of Laboratory for Post-Accident
Toxicological Testing, the corporate name, address, and telephone
number of the designated laboratory is revised to read as follows:
Appendix--B to Part 219--Designation of Laboratory for Post-Accident
Toxicological Testing
* * * * *
NWT Inc., 1141 E. 3900 South, Suite A-110, Salt Lake City, UT
84124, Telephone: (801) 268-2431 (Day), (801) 483-3383 (Night/Weekend).
PART 240--QUALIFICATIONS FOR LOCOMOTIVE ENGINEERS
PART 240--[AMENDED]
1. The authority citation for Part 240 continues to read as
follows:
Authority: 49 U.S.C. Chs. 201-213; 49 CFR 1.49.
Sec. 240.119 [Amended]
2. In Section 240.119 amend paragraph (d)(3) by adding the words
``alcohol and'' before the words ``drug tests'' and remove paragraphs
(d)(4) and (d)(5), and redesignate paragraph (d)(6) as paragraph
(d)(4).
Issued in Washington, D.C. on November 20, 1997.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
[FR Doc. 97-31364 Filed 11-28-97; 8:45 am]
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