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

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]

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