[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part 240) to delete an outdated cross-reference to part 219 in part 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Sec. 219.205(c)(1)), since this 1985 publication is obsolete.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]
BILLING CODE 4910-06-P