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delete an outdated cross-reference to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publication is obsolete.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
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations 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 § 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

§ 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 § 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 § 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 § 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 § 40.25(f)(10) to incorporate split

sample collection procedures. As part of

this revision, DOT deleted a provision

in § 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 § 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
63466 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations

railroad’s Medical Review Officer

(MRO). With the exception of postaccident 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 § 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 § 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 § 219.303

for return-to-service and follow-up

alcohol testing. As explained above, this

rule removes § 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).

§ 219.5 [Amended]

2. Section 219.5 is amended by

removing the definition for ‘‘Field

Manual.’’

§ 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:

§ 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.

* * * * *

§ 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:

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

§ 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. * * *

* * * * *

§ 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:

§ 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 § 219.209, paragraph (a)(1) is

amended by revising the second

sentence as follows:

§ 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.

* * * * *

§ 219.303 [Amended]

12. Section 219.303 is amended by

removing and reserving paragraphs (c)

through (e).

§ 219.601 [Amended]

13. In § 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.

§ 219.603 [Corrected]

14. In § 219.603, ‘‘§ 210.102’’ is

corrected to read ‘‘§ 219.102’’.

§ 219.703 [Amended]

15. Section 219.703 is amended by

removing paragraph (d).

§ 219.709 [Removed]

16. Section 219.709 is removed and

reserved.

§ 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.

§ 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 222

Docket No. 97102 1250–7275–02; I.D.

092297E

RIN 0648–AK46

Endangered Fish or Wildlife; Special

Prohibitions; North Atlantic Right

Whale Protection

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule; temporary closure of

fishery.

SUMMARY: NMFS issues this final rule to

close the Mid-Atlantic and Northeast

Coastal segments of the Atlantic pelagic

drift gillnet fishery for swordfish, tuna,

and shark through July 31, 1998. The

swordfish portion of the Atlantic pelagic

drift gillnet fishery has been closed

since December 5, 1996, under an

emergency Magnuson-Stevens Fishery

Conservation and Management Act

closure that expires on November 26,

1997. This action is necessary to avoid

the likelihood that this fishery will

jeopardize the continued existence of

the northern right whale (Eubalaena

glacialis), a species listed as endangered

under the Endangered Species Act

(ESA), until more long-term regulatory

measures are issued.

DATES: This closure is effective from

0000 hours, local time, November 27,

1997 through 2400 hours, local time,

July 31, 1998. The amendment to 50

CFR 222.34 is effective November 27,

1997 through July 31, 1998.

ADDRESSES: Copies of the May 29, 1997,

Biological Opinion (BO), the August 29,

1997, amended BO, and an

environmental assessment of this action

may be obtained from Gregory Silber,

Ph.D., Marine Mammal Division, Office

of Protected Resources, NMFS, 1315

East-West Highway, Silver Spring, MD

20910.

FOR FURTHER INFORMATION CONTACT:

Gregory Silber, Ph.D. or Michael Payne,