2015-16531. Alcohol and Drug Testing: Reporting Positive Results for Tramadol as a Controlled Substance

AGENCY:

Federal Railroad Administration (FRA), DOT.

ACTION:

Final rule.

SUMMARY:

This document announces that FRA will begin reporting post-accident toxicological test results for tramadol to the employee and the railroad Medical Review Officers. FRA will also begin including post-accident toxicological test results for tramadol in its post-accident toxicology reports. Because tramadol was not a controlled substance when FRA began testing for it, FRA has kept post-accident toxicological test results for tramadol confidential.

DATES:

This document is effective July 7, 2015.

FOR FURTHER INFORMATION CONTACT:

Jerry Powers, FRA Drug and Alcohol Program Manager, W33-310, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, telephone [phone] or [e-mail]; or Sam Noe, FRA Drug and Alcohol Program Specialist, telephone [phone], or [e-mail].

SUPPLEMENTARY INFORMATION:

FRA's Post-Accident Toxicological Testing Program

Since 1985, as part of its accident investigation program, FRA has routinely conducted alcohol and drug tests on railroad employees involved in serious train accidents that meet certain criteria specified in FRA's regulations. See 49 CFR 219.201.^[1] This post-accident testing is used to determine if alcohol misuse or drug abuse played a role in the occurrence or severity of an accident. Since the program's inception, FRA has routinely conducted post-accident tests for alcohol and certain drugs the United States Drug Enforcement Administration (DEA) classifies as controlled substances.

Controlled substances are drugs or chemicals that are prohibited or strictly regulated because of their potential for abuse or addiction. See 77 FR 29307, 29307, May 17, 2002. The DEA oversees the classification of controlled substances into five schedules. Section I contains illicit drugs such as marijuana and heroin, which have no legitimate medical use under Federal law. Schedules II-V contain legal drugs that are available only by prescription. See generally The Controlled Substances Act (CSA), Title II of the Comprehensive Drug Abuse Prevention Substances Act of 1970 (21 U.S.C. 801 et seq.).

FRA has historically conducted post-accident tests for the following controlled substances: Marijuana, cocaine, phencyclidine (PCP), and selected opioids, amphetamines, barbiturates, and benzodiazepines. Under 49 CFR 219.211(b), FRA reports post-accident test results for these substances to the employee tested and the employing railroad's Medical Review Officer (MRO). See 49 CFR 219.211(b).

In 2013, FRA amended its alcohol and drug testing regulations to establish post-accident testing for non-controlled substances.^[2] See 78 FR 14217, Mar. 5, 2013. In the final rule adopting this revision, FRA provided notice of the addition of two non-controlled substances to its standard post-accident testing panel: Tramadol and sedating antihistamines. FRA also made clear that the agency did not intend to report the results of post-accident tests for these non-controlled substances to the employee involved or relevant MRO and instead intended to use the results for research and data purposes only. See id. at 14217 and 14219.

DEA's Determination To Schedule Tramadol as a Controlled Substance

In 2014, after FRA issued its final rule establishing post-accident testing for non-controlled substances, the DEA placed tramadol ^[3] on the CSA's Schedule IV. See 79 FR 37623-37630, Jul. 2, 2014. The DEA's determination stated that it took into account a scientific and medical evaluation the Department of Health and Human Services (HHS) prepared which recommended including tramadol in Schedule IV of the CSA. See id. at 37623. The HHS evaluation analyzed tramadol taking into consideration eight factors listed in 21 U.S.C. 811(c), as well as tramadol's abuse potential, legitimate medical use, and dependence liability. See id. at 37623-37624. In response to public comment, DEA explained that tramadol is considered an opioid because it produces pharmacological effects similar to those produced by other opioids. Id. at 37626. The DEA also noted “tramadol is a widely prescribed drug, with nearly 40 million prescriptions written in 2012.” Id. at 37627 (citations omitted).

Reporting of Tramadol Positives

Because the DEA now designates tramadol a controlled substance, FRA's alcohol and drug regulations apply to tramadol use and possession the same as they apply to use and possession of any other controlled substance, such as synthetic opioids and valium. For example, FRA's regulations place certain limitations on a railroad employee's use and possession of controlled substances—those limitations now apply to the use and possession of tramadol by railroad employees. The regulations prohibit a railroad employee from using or possessing a controlled substance while assigned by a railroad to perform covered service,^[4] except as provided by § 219.103. See 49 CFR 219.101(a)(1). (Section 219.103 provides that subject to certain conditions and limitations, a covered employee may use and possess Schedule II through IV controlled substances if a medical practitioner prescribes or authorizes the use.) The regulations also prohibit a railroad employee who performs covered service from using a controlled substance at any time, whether on or off duty, except as § 219.103 permits. See 49 CFR 219.102. A railroad employee who uses or possesses a controlled substance, including tramadol, in violation of one of these prohibitions is subject to the removal, return-to-service, and follow-up testing requirements of § 219.104.

FRA is issuing this document to (1) make railroads and railroad employees aware of the DEA's classification of tramadol as a controlled substance and (2) remind railroads and individuals subject to FRA's regulations of the effect of the DEA's designation of tramadol as a controlled substance on FRA's post-accident testing program. Issuance of this document does not provide precedent that FRA will notify the industry whenever DEA designates additional drugs as controlled substances or whenever FRA decides to conduct post-accident testing for additional controlled substances. This document is also not an exhaustive discussion of all FRA requirements governing controlled substances.

Because DEA has designated tramadol as a Schedule IV controlled substance, on July 7, 2015 FRA will begin reporting post-accident test results for tramadol pursuant to § 219.211(b), which provides that post-accident test results for controlled substances will be reported to a railroad's MRO and the employee. FRA also intends to include post-accident test results for tramadol in toxicology reports as § 219.211(f)(2) requires.

Railroads and MROs must also treat post-accident test results for tramadol consistent with all applicable FRA requirements for controlled substances. For example, like post-accident test results for any controlled substance, an MRO must review tramadol results with respect to any claim of use or administration of tramadol consistent with § 219.103 that could account for the laboratory findings, and must report the results of this review to the employing railroad and FRA. See § 219.211(c). Railroads and MROs must also treat post-accident test results for tramadol as confidential under § 219.211(b). FRA encourages any railroad, railroad employee, or MRO that has questions about post-accident test results for tramadol to contact FRA's Drug and Alcohol Program Manager for guidance.

Finally, the requirements of §§ 219.101, 219.102, 219.103, and 219.104 now apply to covered employees' use and possession of tramadol.

Robert C. Lauby,

Associate Administrator for Railroad Safety Chief Safety Officer.

Footnotes

1.  All references to sections of the Code of Federal Regulations (CFR) in this document refer to sections within title 49 of the CFR.

2.  A non-controlled substance is any substance that is not currently regulated under 21 U.S.C. 801-971 or 21 CFR part 1308. See § 219.5. Non-controlled substances can include prescription medications, over-the-counter products, dietary supplements, and herbal preparations. See id.

3.  The DEA's decision to designate tramadol as a Schedule IV controlled substance applied to the substance 2-[(dimethylamino)methyl]-1-(3-methoxyphenyl)cyclohexanol (tramadol), including its salts, isomers, and salts of isomers. See id. at 37623.

4.  Covered service is service in the United States that is subject to the hours of service laws at 49 U.S.C. 21103, 21104, or 21105. See 49 CFR 219.5. Covered service does not include any period the employee is relieved of all responsibilities and is free to come and go. See id.