Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations 63463

informing, educating, and advising them

on compliance with the regulatory

requirements. The UMRA generally

defines a Federal mandate for regulatory

purposes as one that imposes an

enforceable duty upon State, local or

Tribal governments or the private sector.

The EPA has determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more for State, local, and

Tribal governments, in the aggregate, or

the private sector in any one year.

Because today’s proposed rule directly

affects only the Reynolds Gum Springs,

Arkansas, facility, EPA finds that the

rule does not impose any enforceable

duty upon State, local, and Tribal

governments. Thus, today’s rule is not

subject to the requirements of sections

203 and 205 of the UMRA.

List of Subjects in 40 CFR Part 261

Environmental protections,

Hazardous waste, Recycling, Reporting

and recordkeeping requirements.

Authority: Section 2002(a), 3001(f) RCRA,

42 U.S.C. 6921(f).

Dated: November 18, 1997.

Robert E. Hannesschlager,

Acting Director, Multimedia Planning and

Permitting Division.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is amended as

follows:

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

6922 and 6938.

Appendix IX to Part 261 Table 2—

[Amended]

2. Appendix IX to part 261, Table 2—

Wastes is amended by removing the

entry ‘‘Reynolds Metals Company, Gum

Springs, Arkansas’’ and its related text.

* * * * *

[FR Doc. 97–31404 Filed 11–28–97; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL MARITIME COMMISSION

46 CFR Part 514

[Docket No. 97–23]

Simplification of Service Contract

Filing Requirements

AGENCY: Federal Maritime Commission.

ACTION: Final rule.

SUMMARY: The Federal Maritime

Commission is amending its rules to

discontinue the requirement that service

contracts be filed in double envelopes.

This should reduce duplication and

Commission and carrier costs, as well as

facilitate the submission of service

contract filings at the Commission.

EFFECTIVE DATE: December 1, 1997.

FOR FURTHER INFORMATION CONTACT:

Bryant L. VanBrakle, Director, Bureau of

Tariffs, Certification and Licensing,

Federal Maritime Commission, 800

North Capitol Street, N.W., Washington,

D.C. 20573, (202) 523–5796.

SUPPLEMENTARY INFORMATION:

I. Background

The rules of the Federal Maritime

Commission (‘‘Commission’’), at 46 CFR

514.7(g)(1)(i) and (ii), require service

contracts to be filed in double

envelopes. This requirement originated

with the Commission’s initial service

contract rules, when all filings were in

paper form and was intended to

facilitate the separation of service

contracts from their associated essential

terms filings. Service contract essential

terms are now filed electronically in the

Commission’s Automated Tariff Filing

and Information system (‘‘ATFI’’). As a

consequence, the double-envelope

procedure has become superfluous.

The Commission received 38,747

service contract filings during fiscal year

1997. Each filing is now required to be

‘‘filed in single copy contained in a

double envelope.’’ This proposal will

thus reduce by half the number of

envelopes that must be filed with and

handled by the Commission’s staff. This

will result in cost savings and

processing efficiencies for the industry

and Commission.

Because the removal of this obsolete

requirement eliminates, rather than

creates, a regulatory requirement, this

revision is being promulgated as a final

rule effective upon publication in the

Federal Register.

This final rule does not impose any

additional reporting or recordkeeping

requirements from those which were

previously approved by the Office of

Management and Budget under the

Paperwork Reduction Act of 1995, as

amended. (OMB Control No. 3072–0055,

expires May 31, 1998.)

The Chairman of the Commission

certifies, pursuant to section 605(b) of

the Regulatory Flexibility Act, 5 U.S.C.

601, et seq., that this final rule will not

have a significant economic impact on

a substantial number of small entities,

including small businesses, small

organizational units, and small

governmental jurisdictions.

The subject final rule is not a major

rule under the Small Business

Regulatory Flexibility Act (5 U.S.C.

804(2)) because it will not result in an

annual effect on the economy of $100

million or more; a major increase in cost

or prices for consumers, individual

industries, Federal, State or local

government agencies, or geographic

regions; or significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of U.S.-based enterprises to

compete with foreign-based enterprises.

List of Subjects in 46 CFR Part 514

Administrative practice and

procedure, Antitrust, Automatic data

processing, Cargo vessels, Confidential

business information, Contracts,

Exports, Freight, Freight forwarders,

Imports, Maritime carriers, Penalties,

Rates and fares, Reporting and

recordkeeping requirements.

Therefore, pursuant to 5 U.S.C. 553

and sections 3, 8, and 17 of the

Shipping Act of 1984 (46 U.S.C. app.

1702, 1707 and 1716), the Federal

Maritime Commission amends Part 514

of Title 46 of the Code of Federal

Regulations as follows:

PART 514—[AMENDED]

1. The authority citation for Part 514

continues to read:

Authority: 5 U.S.C. 552 and 553; 31 U.S.C.

9701; 46 U.S.C. app. 804, 812, 814–817(a),

820, 833a, 841a, 843, 844, 845, 845a, 845b,

847, 1702–1712, 1714–1716, 1718, 1721, and

1722; and sec. 2(b) of Pub. L. 101–92, 103

Stat. 601.

2. Section 514.7 is amended by

revising paragraph (g)(1) to read as

follows:

§ 514.7 Service contracts in foreign

commerce.

* * * * *

(g) * * *

(1) Service contracts. Within ten (10)

days of the electronic filing of essential

terms under § 514.17, a true and

complete copy of the related contract(s)

shall be submitted in form and content

as provided by this section and § 514.17,

in single copy contained in an envelope,

which contains no other material,

addressed to: ‘‘Director, Bureau of

Tariffs, Certification and Licensing,

Federal Maritime Commission,

Washington, DC 20573.’’ The envelope

shall state ‘‘This Envelope Contains a

Confidential Service Contract.’’ If

multiple service contracts are filed in an

envelope, the pages of each individual

contract should be fastened together.

The top of each page of a filed service

contract shall be stamped

‘‘Confidential.’’

* * * * *
63464 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations

By the Commission.

Ronald D. Murphy,

Assistant Secretary.

[FR Doc. 97–31320 Filed 11–28–97; 8:45 am]

BILLING CODE 6730–01–M

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.

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 § 219.5 and a reference in

§ 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 § 219.1, FRA

states that railroads may adopt more

stringent standards under their own

authority that are not inconsistent with

Part 219, and in § 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 § 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