Alcohol/Drug Regulations: Technical Amendments; Qualifications for Locomotive Engineers: Correction

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part 240) to delete an outdated cross-reference to part 219 in part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Sec. 219.205(c)(1)), since this 1985 publication is obsolete.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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