Random Drug Testing; Reduction of 1995 Minimum Testing Rate and Post-Accident Toxicological Testing; Testing Kit Replacement

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

[Docket No. RSOR-6; Notice No. 41]

RIN 2130-AA81

Random Drug Testing; Reduction of 1995 Minimum Testing Rate and

Post-Accident Toxicological Testing; Testing Kit Replacement

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Notices.

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SUMMARY: The Federal Railroad Administrator (Administrator) has

determined that the minimum annual random drug testing rate for the

period January 1, 1995 through December 31, 1995 will be 25 percent of

covered railroad employees. This is a reduction from 50 percent to 25

percent and is based on data from 1992 and 1993 railroad annual reports

which shows that good cause exists to decrease the minimum annual

percentage rate for random drug testing of covered employees beginning

January 1, 1995.

This notice also provides interim procedures to be followed until

FRA amends Appendix C to part 219 to modify its post-accident testing

procedures, toxicology kits, instructions, and forms to accommodate

mandatory urine split sample testing and optional breath alcohol

testing. FRA intends to amend Appendix C and have new post-accident

testing kits available by February 28, 1995.

DATES:

1. Beginning January 1, 1995, the minimum annual random drug

testing rate is 25 percent of covered railroad employees. This rate is

the minimum rate for the period January 1, 1995 through December 31,

1995.

2. FRA will publish a notice amending Appendix C to part 219 to

accommodate mandatory urine split sample testing and optional breath

alcohol testing. For now, however, railroads should continue to follow

the procedures contained in the current Appendix C.

3. As previously published, beginning January 1, 1995, the

threshold amount of railroad property damage rises to $1,000,000 for

major train accidents and $150,000 for impact accidents.

4. No later than January 10, 1995, railroads are asked to provide

FRA with information as to the number of kits to be replaced, the

mailing address where the new post-accident toxicology kits are to be

sent, and the name and telephone number of a responsible officer at

each location.

ADDRESSES: Any questions or comments regarding this notice should be

submitted to D. Lamar Allen, FRA Alcohol and Drug Program Manager,

Office of Safety Enforcement, Operating Practices Division, Federal

Railroad Administration, 400 7th Street, S.W., Room 8314, Washington,

D.C. 20590.

FOR FURTHER INFORMATION CONTACT:

D. Lamar Allen, Alcohol and Drug Program Manager, Office of Safety

Enforcement, Operating Practices Division, Federal Railroad

Administration, 400 7th Street, S.W., Room 8314, Washington, D.C.

20590, (Telephone: (202) 366-0127) or James T. Schultz, Chief,

Operating Practices Division, Office of Safety Enforcement, Federal

Railroad Administration, 400 7th Street, S.W., Room 8314, Washington,

D.C. 20590, (Telephone: (202) 366-9178).

SUPPLEMENTARY INFORMATION:

Administrator's Determination of 1995 Random Drug Testing Rate

On December 2, 1994, FRA, together with the Office of the

Secretary, the Federal Aviation Administration, the United States Coast

Guard, the Research and Special Programs Administration, the Federal

Highway Administration, and the Federal Transit Administration,

published a final rule authorizing each operating administration to

lower its minimum random drug testing rate to 25 percent if its

industry-wide random positive rate is less than 1.0 percent for two

calendar years while testing at 50 percent (59 FR 62218). The operating

administration would return the rate to 50 percent if the random

positive rate for its industry is 1.0 percent or higher in any

subsequent calendar year. The industry-wide random positive rate for

each transportation industry would be calculated from data submitted to

each operating administration and announced yearly by each

administration's respective Administrator.

Unlike some of the other operating administrations, FRA already has

several years of industry drug testing data compiled from railroad

annual reports previously filed under Sec. 217.13(d). (On December 23,

1993, FRA repealed this section of its annual reporting requirements

and replaced it with a Management Information System to collect drug

misuse program data (58 FR 68233). These reports indicate that the rail

positive rate has been below 1.0 percent for the previous two

consecutive calendar years. In 1992, the rail industry positive rate,

while testing at 50 percent, was .79 percent; in 1993 it was .72

percent.

Therefore, based on this data, FRA reduces the minimum annual

random drug testing rate from 50 percent to 25 percent effective

January 1, 1995 through December 31, 1995. FRA will announce the 1996

minimum annual random drug testing rate in a future Federal Register

notice.

Replacement of Post-Accident Testing Kits

On February 15, 1994, FRA published a final rule amending its

regulations on alcohol and drug misuse (49 CFR 219) in response to the

testing requirements mandated by the Omnibus Transportation Testing Act

of 1991. Prompted by recent low positive rates, FRA also raised the

amount of railroad property damage required for major train accidents

and for impact accidents, by redefining Sec. 219.201(a)(1)(iii) (major

train accidents) to require testing for accidents that cause $1,000,000

or more in damage, and redefining Sec. 219.201(a)(2)(ii) (impact

accidents) to require testing for non-injury accidents that cause

$150,000 or more in damage. Together, these changes should result in

about 30 percent fewer post-accident tests being conducted.

Additionally, FRA excluded from post-accident testing accidents that

otherwise qualify but are clearly attributable to vandalism.

To accommodate these changes, FRA announced that it will be

amending Appendix C to part 219 to modify its post-accident testing

procedures, toxicology kits, instructions, and forms to accommodate

mandatory urine split sample testing and optional breath alcohol

testing. FRA also will change its post-accident custody and control

forms, instructions, and testing kits. Since FRA already splits post-

accident blood samples into two sealed 10 milliliter tubes, the only

addition for split sample testing will be inclusion of a second urine

specimen bottle in the kit. FRA will also revise Forms F6180.73 and

F6180.74 to allow for railroad reporting of evidential breath test

results by adding a check off box for the railroad representative to

indicate whether one or more employees have been breath tested.

Unfortunately, FRA will be unable to provide enough post-accident

kits and forms to supply the entire industry before the January 1,

1995, effective date for alcohol testing. Therefore, for now, railroads

should continue to follow the Post-Accident Testing Sample Collection

Procedures listed in the current Appendix C to Part 219. To allow for a

smooth transition, FRA will not implement post-accident split sample

urine testing until new kits and forms become available. When this

occurs, FRA will publish a notice and a revised Appendix C to Part 219

containing split sample urine procedures. The anticipated target date

is February 28, 1995. FRA will publish additional notices if further

implementation delays become necessary.

The revised post-accident testing criteria will still take effect

as scheduled on January 1, 1995, however. As an interim measure, until

new kits and forms are available, when testing is required under one of

the redefined categories (i.e., ``major train accident,'' or ``impact

accident''), railroad representatives should line through the existing

monetary thresholds printed on the current form FRA F6180.73 and write

in ``$1,000,000 or more'' (``major train accident'') or ``$150,000 or

more'' (``impact accident''), whichever is applicable. (The criteria

for fatal train incidents and passenger train accidents listed on form

F6180.73 remain the same.)

If a railroad conducts breath alcohol tests, the railroad

representative may either attach a copy of the standard DOT (49 CFR

Part 40) breath alcohol testing form (the railroad will have to make an

additional copy for FRA purposes, since the Part 40 form allows only

for breath alcohol technician, employee, and employer copies) to the

FRA forms to be shipped with the toxicology kit, or send a copy of each

Part 40 form directly to FRA within 10 days of the tests. The revised

Appendix C will also contain these instructions.

As stated above, FRA intends to have new kits and forms available

by February 28, 1995. In anticipation, FRA will provide replacement

kits on a one-for-one basis at no charge. In order to accomplish an

orderly kit changeover, railroads are asked to provide FRA with

information as to the number of kits to be replaced, the mailing

address where the new kits are to be sent, and the name and telephone

number of a responsible officer at each location, no later than January

10, 1995. This will ensure kits are distributed to the locations most

advantageous to railroads. In compiling this list, railroads should

consider the composition of the new replacement kits. Each replacement

kit will contain only three individual specimen boxes instead of the

current five. (FRA's existing list is obsolete due to operational

changes and consolidations that have occurred since the last kit

replacement in 1990).

Railroads should send the required information in writing to Mr.

Lamar Allen, FRA Alcohol and Drug Program Manager, 400 7th Street S.W.,

Room 8314, Washington, D.C. 20590 (202) 366-0127. In order to

facilitate kit replacement, FRA would appreciate if railroads could

provide the listing on a diskette in WordPerfect as well.

Donald M. Itzkoff,

Deputy Administrator, Federal Railroad Administrator.

[FR Doc. 94-32092 Filed 12-29-94; 8:45 am]

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