Control of Alcohol and Drug Use: Coverage of Maintenance of Way Employees, Retrospective Regulatory Review-Based Amendments (RRR), 43829-43915 [2014-17195]
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Vol. 79
Monday,
No. 144
July 28, 2014
Part II
Department of Transportation
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Federal Railroad Administration
49 CFR Part 219
Control of Alcohol and Drug Use: Coverage of Maintenance of Way
Employees, Retrospective Regulatory Review-Based Amendments (RRR);
Proposed Rule
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Federal Register / Vol. 79, No. 144 / Monday, July 28, 2014 / Proposed Rules
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 219
[Docket No. FRA–2009–0039]
RIN 2130–AC10
Control of Alcohol and Drug Use:
Coverage of Maintenance of Way
Employees, Retrospective Regulatory
Review-Based Amendments (RRR)
Federal Railroad
Administration (FRA), Department of
Transportation. (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
In response to Congress’
mandate in the Rail Safety Improvement
Act of 2008 (RSIA), FRA is proposing to
expand the scope of its alcohol and drug
regulations to cover employees who
perform maintenance-of-way (MOW)
activities. In addition, FRA is proposing
certain substantive amendments that
either respond to National
Transportation Safety Board (NTSB)
recommendations or update and clarify
the alcohol and drug regulations based
on a retrospective regulatory review
(RRR) analysis.
DATES: Comments: Submit comments on
or before September 26, 2014.
Public Hearing: FRA anticipates being
able to resolve this rulemaking without
a public, oral hearing. However, if FRA
receives a specific request for a public,
oral hearing prior to August 27, 2014,
one will be scheduled and FRA will
publish a supplemental notice in the
Federal Register to inform interested
parties of the date, time, and location of
any such hearing.
ADDRESSES: Comments: Comments
related to Docket No. FRA–2009–0039
may be submitted by any of the
following methods:
• Online: Comments should be filed
at the Federal eRulemaking Portal,
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Fax: 202–493–2251.
• Mail: Docket Management Facility,
U.S. DOT, 1200 New Jersey Avenue SE.,
W12–140, Washington, DC 20590.
• Hand Delivery: Room W12–140 on
the Ground level of the West Building,
1200 New Jersey Avenue SE.,
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SUMMARY:
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Washington, DC between 9 a.m. and 5
p.m. Monday through Friday, except
federal holidays.
Instructions: All submissions must
include the agency name and docket
number or Regulatory Identification
Number (RIN) for this rulemaking. Note
that all comments received will be
posted without change to https://
www.regulations.gov including any
personal information provided. Please
see the Privacy Act heading in the
‘‘Supplementary Information’’ section of
this document for Privacy Act
information related to any submitted
comments or materials.
Proposed Revised Part 219 Available in
Docket No. FRA–2009–0039
A revised version of part 219
incorporating all amendments proposed
by this NPRM is available for review in
the public docket of this rulemaking
(docket no. FRA–2009–0039). Interested
persons can review this document to
learn how the proposed amendments
would affect part 219 as a whole.
FOR FURTHER INFORMATION CONTACT: For
program and technical issues, contact
Gerald Powers, Drug and Alcohol
Program Manager, Office of Safety
Enforcement, Mail Stop 25, Federal
Railroad Administration, 1200 New
Jersey Avenue SE., Washington, DC
20590 (telephone 202–493–6313),
gerald.powers@dot.gov. For legal issues,
contact Elizabeth A. Gross, Trial
Attorney, Office of Chief Counsel,
Federal Railroad Administration, 1200
New Jersey Avenue SE., Mail Stop 10,
Washington, DC 20590 (telephone 202–
493–1342), elizabeth.gross@dot.gov; or
Patricia V. Sun, Trial Attorney, Office of
Chief Counsel, Federal Railroad
Administration, 1200 New Jersey
Avenue SE., Mail Stop 10, Washington,
DC 20590 (telephone 202–493–6060),
patricia.sun@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary
Information
I. Executive Summary
II. Statutory Authority and Proceedings to
Date
III. Expansion of Part 219 to Employees Who
Perform MOW Activities
A. Background
B. FRA’s Proposed Definition of MOW
Activities
C. ‘‘Regulated Employees’’ and ‘‘Regulated
Service’’
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D. Alternatives Considered for Part 219
Expansion
1. Alternative No. 1: Adopt the ‘‘roadway
worker’’ definition in § 214.7
2. Alternative No. 2: Include all employees
who perform FRA safety-sensitive
functions under §§ 219.301 and 209.303
E. MOW Employees and the Small Railroad
Exception
F. Railroad and Contractor Responsibility
for Compliance
G. MOW Employee Random Testing Rate
H. MOW Employee Pre-employment Drug
Testing
IV. Signal Contractors
V. Other Proposed Substantive Amendments
A. Small railroads would no longer be
excepted from the requirements for
reasonable suspicion testing and preemployment drug testing
B. For purposes of the small railroad
exception, a new definition of ‘‘joint
operations’’ would be incorporated
C. The post-accident toxicological (PAT)
testing damage threshold for major train
accidents would be increased
D. Derailment and raking collisions would
no longer be excluded from the § 219.5
definition of impact accident
E. PAT testing would be required for
railroad highway-rail grade crossing
accidents/incidents involving humanfactor errors
F. The provisions governing when
regulated employees could be recalled
for PAT testing would be amended
G. Reasonable cause testing would be
authorized only for reportable ‘‘train
accidents and ‘‘train incidents’’
H. Federal reasonable cause testing would
be authorized for additional operating
rule violations or other errors
I. Part 219 would be amended to conform
certain provisions to the final conductor
certification rule
VI. Primary Clarifying Amendments
A. Reasonable suspicion and reasonable
cause testing would be separated into
different subparts, resulting in the redesignation of other subparts
B. Random alcohol and drug testing would
be reorganized and clarified
C. Substituting ‘‘Drug and Alcohol’’ for
‘‘Alcohol and Drug’’
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and
DOT Regulatory Policies and Procedures
B. Regulatory Flexibility Act and Executive
Order 13272; Initial Regulatory
Flexibility Assessment
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Impact
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Privacy Act
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Federal Register / Vol. 79, No. 144 / Monday, July 28, 2014 / Proposed Rules
I. Executive Summary
FRA has regulated the use of alcohol
and drugs by certain railroad employees
since 1985, when it issued a final rule
establishing alcohol and drug use
control regulations under 49 CFR part
219 (part 219). See 50 FR 31508, Aug.
2, 1985. The rule contained certain
prohibitions on the use and possession
of alcohol and drugs by covered
employees, who were defined as
employees who had been assigned to
perform covered service subject to the
Hours of Service Act (45 U.S.C. 61–
64b).1 See id. at 31569. The rule also
contained requirements for postaccident toxicological (PAT) testing,
discretionary reasonable cause and
reasonable suspicion testing, co-worker
and voluntary referral policies, preemployment drug testing, and reporting.
See id. at 31508. In 1988, FRA amended
part 219 to require random drug testing
of covered employees. See 53 FR 47102,
Nov. 21, 1988. In 1994, FRA again
amended part 219 to require random
alcohol testing and reasonable suspicion
testing, in conformance with the
requirements of the Omnibus
Transportation Employee Testing Act of
1991 (Omnibus Act) (reasonable cause
testing remained discretionary). See 59
FR 7448, Feb. 15, 1994. FRA has not
fundamentally revised part 219 since
1994.2
The Omnibus Act required the
Department of Transportation (DOT or
Department) to establish Federal
workplace testing procedures for
transportation employees. The
Department’s Procedures for
Transportation Workplace Drug and
Alcohol Testing Program are contained
in 49 CFR part 40 (part 40), which is
published by the DOT Office of the
Secretary (OST). Only the DOT Office of
Drug and Alcohol Policy and
Compliance (ODAPC) and the DOT
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1 The hours of service (HOS) laws are currently
found at 49 U.S.C. ch. 211.
2 In 2004, FRA expanded the scope of part 219 to
cover foreign railroad foreign-based employees who
perform train or dispatching service in the United
States. See 69 FR 19270, Apr. 12, 2004. In 2013,
FRA added routine tests for certain non-controlled
substances to its PAT testing program. See 78 FR
14217, Mar. 5, 2013.
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Office of General Counsel (OGC) are
authorized to interpret part 40
requirements. See 49 CFR 40.5.3 Part 40
testing requirements and procedures
apply to any drug or alcohol test
required by DOT agency regulations,
except for FRA’s PAT testing and
certain testing conducted pursuant to
DOT-mandated peer prevention
programs (including FRA’s peer
prevention program currently required
by subpart E of part 219). See § 219.701.
FRA’s PAT testing program pre-dates
the enactment of the Omnibus Act,
which specifically exempts the program
from part 40. See § 40.1(c).
In response to Congress’ mandate in
the RSIA, FRA is proposing to expand
the scope of part 219 to cover employees
who perform MOW activities. As used
in this NPRM, the term ‘‘employee’’
includes employees, volunteers, and
probationary employees of railroads and
contractors (defined to include
subcontractors) to railroads. In addition,
because MOW employees are not
subject to the HOS laws, FRA is
proposing a new term-of-art—‘‘regulated
service’’—that would encompass both
covered service and MOW activities.
Performance of regulated service would
make an individual a ‘‘regulated
employee’’ subject to part 219,
regardless of whether the individual is
employed by a railroad or a contractor
to a railroad. This proposed expansion
of part 219 would both comply with the
RSIA mandate and respond in part to
NTSB Recommendation R–08–07 (Apr.
10, 2008), available at https://
www.ntsb.gov/doclib/recletters/2008/
R08_05_07.pdf. In Recommendation R–
08–07, the NTSB advised FRA to
expand its alcohol and drug regulations
to all railroad employees and
contractors who perform FRA safetysensitive functions as defined by
§§ 209.301 and 209.303 (the regulations
setting forth the purpose, scope and
coverage of FRA’s procedures for
disqualifying individuals from
performing certain safety-sensitive
functions).
3 Unless otherwise specified, all references to CFR
sections and parts in this document refer to Title
49 of the CFR.
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FRA is also proposing to amend part
219 in response to NTSB
Recommendation R–01–17, available at
https://www.ntsb.gov/doclib/recletters/
2001/R01_17.pdf. Recommendation R–
01–17 advised FRA to limit the current
blanket exception for PAT testing after
highway-rail grade crossing accidents to
allow PAT testing when an accident was
likely due to human factors or involved
a regulated employee fatality.
This NPRM also proposes
amendments based on a retrospective
review of part 219, which FRA has been
implementing for more than 25 years.
These amendments, which reflect
practical lessons FRA has learned, are
necessary to update and simplify the
regulation’s requirements.
Costs and Benefits of Proposed Rule
The proposed rule would impose
costs that are outweighed by the
quantified safety benefits. For the 20year period analyzed, the estimated
costs that will be imposed on industry
total approximately $24 million
(undiscounted), with discounted costs
totaling $14.2 million (Present Value
(PV), 7 percent) and $18.9 million (PV,
3 percent). The estimated quantified
benefits for this 20-year period total
approximately $115.8 million
(undiscounted), with discounted
benefits totaling $57.4 million (PV, 7
percent) and $83.6 million (PV, 3
percent).
The costs would primarily be derived
from implementation of the statutory
mandate to expand the scope of part 219
to cover MOW employees. The benefits
will primarily accrue from the expected
injury, fatality, and property damage
avoidance resulting from the expansion
of part 219 to cover MOW employees, as
well as the PAT testing threshold
increase. The table below summarizes
the quantified costs and benefits
expected to accrue over a 20-year period
from adoption of the proposed rule and
identifies the statutory costs and
benefits (those required by the RSIA
mandate to expand part 219 to MOW
employees) and the discretionary costs
and benefits (those that are due to the
non-RSIA requirements that FRA is
proposing).
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20 Year costs
Statutory
Discretionary
PAT Testing Costs—Adding MOW .........................................................................................
PAT Testing Costs—Impact Def + Xing ..................................................................................
Reasonable Suspicion Testing Costs ......................................................................................
Pre-Emp. Testing Costs—Adding MOW .................................................................................
Pre-Emp. Testing Costs—Sm. RR ..........................................................................................
Random Testing Costs ............................................................................................................
Annual Report Costs ...............................................................................................................
Recordkeeping Requirements Costs .......................................................................................
$52,000
20,863,074
160,911
1,397,840
........................................
$241,974
........................................
........................................
29,904
........................................
........................................
........................................
Total Costs .......................................................................................................................
23,990,121
271,878
842,398
673,897
24,261,999
20 Year Benefits
Statutory
Accident Reduction Benefits ....................................................................................................
PAT Testing Threshold Reduction Benefits ............................................................................
115,369,281
Total Benefits ....................................................................................................................
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II. Statutory Authority and Proceedings
to Date
submitted suggestions on how FRA
should define MOW activities.
Currently, part 219 applies only to
covered employees, defined in § 219.5
as individuals who perform covered
service subject to the HOS laws at 49
U.S.C. 21103, 21104, or 21105. In
Section 412 of the RSIA (Section 412),
Congress directed the Secretary to
‘‘revise the regulations prescribed under
section 20140 of title 49, United States
Code, to cover all employees of railroad
carriers and contractors or
subcontractors to railroad carriers who
perform maintenance-of-way activities.’’
The Secretary has delegated this
responsibility to the FRA Administrator.
See 49 CFR 1.89(b); see also 49 U.S.C.
103(g). The RSIA does not define MOW
activities.
When the RSIA was enacted in 2008,
FRA was already conducting a
retrospective analysis of part 219,
looking for ways to clarify the
regulations and make the requirements
less burdensome. This NPRM therefore
proposes both amendments that would
incorporate MOW employees and
amendments suggested by FRA’s
retrospective analysis of part 219.
As explained above, part 219
incorporates the alcohol and drug
testing procedures found in part 40,
which is published and administered by
ODAPC. For this reason, FRA did not
consult with the Railroad Safety
Advisory Committee (RSAC) on this
proposed rule. Instead, FRA gathered
information and suggestions from
railroads, labor organizations, and other
stakeholders at railroad industry
meetings. For example, railroad
industry stakeholders provided statistics
about the number of employees of
railroads and contractors to railroads
who perform MOW activities and
III. Expansion of Part 219 to Employees
Who Perform MOW Activities
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In this NPRM, FRA is proposing to
expand the scope of part 219 to include
employees who perform MOW activities
(MOW employees). As discussed above,
the term ‘‘employee,’’ as used in this
NPRM, includes employees, contractors,
subcontractors, volunteers, and
probationary employees. Accordingly,
the term ‘‘MOW employee’’ includes
any individual performing MOW
activities for a railroad, whether
employed directly by the railroad,
employed by a contractor or
subcontractor to the railroad, or a
volunteer for the railroad. MOW
employees are at a high safety risk
because they work along railroad track
and roadbed and may suffer injury or
death as a result of being struck by
trains or other on-track or fouling
equipment. Additionally, MOW
employees directly affect the safety of
railroad operations because they work
on or near railroad tracks, operate ontrack or fouling equipment, and assist in
directing trains through work areas. The
purpose of expanding part 219 to
include MOW employees is to improve
safety by reducing the rate of alcohol
and drug use among the MOW
employee population.
A. Background
On January 9, 2007, a southbound
Massachusetts Bay Transit
Administration (MBTA) passenger train,
operated by the Massachusetts Bay
Commuter Railroad (MBCR), struck a
track maintenance vehicle that was on
the track near Woburn, Massachusetts.
See NTSB, Railroad Accident Report:
Collision of Massachusetts Bay
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Discretionary
........................................
388,295
115,757,576
Transportation Authority Train 322 and
Track Maintenance Equipment Near
Woburn, Massachusetts, NTSB/RAR–
08/01, PB2008–916301, Mar. 18, 2008,
at 1, available at https://www.ntsb.gov/
doclib/reports/2008/RAR0801.pdf
(‘‘Woburn Report’’). At the time of the
collision, six MBCR MOW employees
were replacing crossties and were
working on or near the track
maintenance vehicle. The train rounded
a curve at 62 mph and struck the track
maintenance vehicle. The MOW
workers had only about 15 seconds
warning before the collision. Id. at 17.
Two of the MBCR employees, a track
foreman and a track worker/welder,
were killed, and two were seriously
injured. The NTSB investigated the
collision and determined that one of its
probable causes was the failure of the
MOW crew to apply a shunting device
that would have provided redundant
signal protection for their track
segment.4 An MBCR rule required the
crew to have a shunting device at the
end of the work area every time a track
was taken out of service for
maintenance. The track foreman in
charge of the MOW crew, however, had
not complied with this rule. Id. at vi and
17.
While the MOW employees involved
in the MBTA accident were not covered
employees, § 219.203(a)(4)(ii) requires
PAT testing on the remains of any
railroad employee fatally injured in a
train accident or incident. The PAT
testing results for the fatally injured
foreman involved in the MBTA accident
showed that that he had likely used
marijuana within three hours of his
4 The NTSB also found that a probable cause of
the accident was the failure of the train dispatcher
to maintain blocking that provided signal protection
for the track segment occupied by the MOW crew.
See id. at vi.
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death. The NTSB concluded that the
foreman’s performance would likely
have been measurably impaired at the
time of the accident by his recent use of
marijuana. The NTSB also concluded
that the foreman’s positive drug test
result was ‘‘not an isolated incident
among MBCR maintenance-of-way
employees.’’ Id. at 19. Between
December 2003 and January 2007, the
MBCR had four fatalities, one critical
injury, and one potentially serious
incident involving MOW employees. Id.
Seven MOW employees were tested for
drugs and/or alcohol as a result of these
incidents. Id. (Four fatally injured
employees were tested under FRA
authority, and three surviving
employees were tested under MBCR’s
company authority. Id.) Of the seven
MOW employees tested, four had
positive results, and one employee
submitted a specimen that was a
negative dilute which may have masked
a positive. Id. The NTSB found that this
high rate of positive test results was
symptomatic of a substance abuse
problem among MBCR MOW
employees. Id.
As part of its investigation of this
accident, the NTSB reviewed industrywide PAT testing data for accidents
involving MOW employee fatalities.
Over the 10-year period ending January
9, 2007, FRA PAT testing of 26 MOW
fatalities resulted in 5 positive test
results, a positive rate of 19.23%. Id. at
19. In contrast, the overall PAT testing
positive rate for covered employees was
only 6.56%. Id. The NTSB concluded
that these results showed greater alcohol
and drug use among MOW employees
than among covered employees subject
to part 219. Id. Thus, the NTSB
determined that alcohol and drug use by
MOW employees in the railroad
industry was a safety concern. Id. at vi
and 19.
The NTSB noted that FRA data
indicate that MOW employees are about
three times more likely to have positive
test results than covered employees
(19.23% positive for MOW employees
vs. 6.56% positive for covered
employees). See Woburn Report at 20.
Attributing this difference ‘‘to the
deterrent value of the FRA’s random
testing program to which covered
employees are subject but maintenanceof-way employees are not,’’ the NTSB
recommended that FRA revise its
definition of covered employee to
include all railroad employees and
contractors who perform FRA safetysensitive functions, as defined by
§§ 209.301 and 209.303. See NTSB
Recommendation R–08–07.
Section 209.303 lists the safetysensitive functions that an individual
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may be disqualified from performing if
he or she has been found unfit to do so
after committing a FRA safety violation.
See § 209.301. If FRA expanded the
scope of part 219 to cover the safetysensitive functions listed in § 209.303, it
would include not only covered
employees, as currently defined, but all
railroad employees and contractor
employees (including managers and
supervisors) who: (1) Inspect, install,
repair, or maintain track and roadbed;
(2) inspect, repair, or maintain
locomotives, passenger cars, and freight
cars; (3) conduct training and testing of
employees when required to do so by
the FRA’s safety regulations; (4) perform
service subject to the Transportation of
Hazardous Materials Law (Hazmat
Law); 5 (5) supervise and otherwise
direct the performance of the safetysensitive functions; or (6) are in a
position to direct the commission of
violations of any FRA safety regulation.
As discussed below, FRA does not
currently believe that it is necessary to
expand part 219 beyond railroad
employees (including contractors,
subcontractors, volunteers and
probationary employees) who perform
covered service and/or MOW activities
for a railroad.
B. FRA’s Proposed Definition of ‘‘MOW
Activities’’
In response to the mandate contained
in Section 412 and NTSB
Recommendation R–08–07, FRA is
proposing to expand part 219 to include
employees who perform MOW
activities, as defined in proposed
§ 219.5. FRA’s proposed definition of
MOW activities includes the following:
(1) The inspection, repair, or
maintenance of track, roadbed, or
electric traction systems; (2) the
operation of on-track or fouling
equipment utilized for the inspection,
repair, or maintenance of track, roadbed,
or electric traction systems; (3) the
5 The Transportation of Hazardous Materials
Laws are located at 49 U.S.C. ch. 51. Under 49
U.S.C. 5103, the Secretary is directed to prescribe
regulations for the ‘‘safe transportation, including
security, of hazardous materials in intrastate,
interstate, and foreign commerce.’’ These
regulations apply to a person who performs a broad
range of activities, including testing a ‘‘packaging
component that is represented, marked, certified, or
sold as qualified for use in transporting hazardous
material in commerce’’ and ‘‘certif[ying]
compliance with any requirements under this
chapter.’’ Such activities generally are not related
to what would be considered railroad MOW
activities.
The Secretary delegated the authority to issue
these regulations to the Pipeline and Hazardous
Materials Safety Administration (PHMSA), and the
resulting regulations are found at 49 CFR subtitle
B, ch. 1. The broad extent of these regulations go
far beyond what would be an appropriate scope for
FRA’s alcohol and drug regulation.
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performance of flagman or watchman/
lookout duties; (4) the obtaining of ontrack authority and/or permission for
the performance of activities described
by the proposed definition; or (5) the
granting of on-track authority and/or
permission for operation over a segment
of track while workers are performing
activities described by the proposed
definition.
In drafting its proposed definition of
‘‘MOW activities,’’ FRA drew from
§ 209.303’s definition of FRA safetysensitive functions and identified those
activities that most closely fit the
common understanding of MOW
activities in the railroad industry. Based
in part on feedback from stakeholders,
FRA determined that these activities
include the inspection, installation,
repair, or maintenance of track and
roadbed. See § 209.303(b)(1).
Individuals performing such activities
work along railroad track and roadbed
and may suffer serious injury or death
from being struck by trains or other ontrack or fouling equipment. These
individuals also directly affect the safety
of railroad operations because they work
on or near railroad tracks, operate ontrack or fouling equipment, and
authorize or direct trains through
working limits.
In contrast, individuals performing
the other FRA safety-sensitive functions
listed in § 209.303 do not typically
experience the same type of safety risks
because they generally do not work on
or around a railroad’s track or roadbed.
Individuals who inspect, repair, or
maintain locomotives, passenger cars,
and freight cars, as described by
§ 209.303(b)(2), generally perform these
functions in locomotive or car repair
facilities subject to blue flag protection.
See 49 CFR part 218, subpart B.
Individuals who conduct training and
testing of employees required by FRA
safety regulations, as described in
§ 209.303(b)(3), may conduct such
training without ever approaching a
railroad track or roadbed. Individuals
who perform service subject to the
Hazmat Law may sometimes do so on or
near a track or roadbed, but this is not
necessarily the case. Nevertheless, any
individuals performing the above
activities would fall within the
proposed expanded scope of part 219 if
they otherwise perform covered service
or MOW activities as defined in this
NPRM.
Once FRA decided to begin its MOW
activities definition with the language
from § 209.303(b)(1), it decided to
remove ‘‘install’’ from the definition
because part 219 applies only to
railroads that operate on track that is
part of the general railroad system of
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transportation. See § 219.3(a). By not
including the word ‘‘install’’ in its
proposed MOW activities definition,
FRA would exclude the installation of
track that has not yet been incorporated
into the general railroad system of
transportation. Rebuilding a track that is
already part of the general system of
transportation, however, would be
covered by the definition because it
would be considered repair or
maintenance. Essentially, work on a
track would be covered under the
proposed MOW activities definition
once the track became part of the
general system of transportation and
subject to FRA’s track safety standards
in 49 CFR part 213. FRA is specifically
requesting public comment, however,
on whether the installation of new track
should be considered a MOW activity,
and whether its proposed definition
would improperly exclude other
installation work that should be
considered a MOW activity.
FRA also decided, however, that its
proposed definition of MOW activities
should specifically include employees
who work on electric traction systems.
Electric traction is a wayside electric
distribution system (such as an
overhead catenary or third rail) that a
railroad can utilize for locomotion in
lieu of locomotive diesel engines.
Electric traction systems also include
various pieces of equipment that can be
found along the railroad’s right-of-way,
such as power stations, power substations, breaker sites, power feed lines,
catenary towers, and power dispatching
offices. Currently, Amtrak and other
commuter railroads use electric traction
systems.
FRA also concluded that the
definition of MOW activities should
specifically include employees who
perform duties as flagmen or watchmen/
lookouts. While flagmen or watchmen/
lookouts may not be directly engaged in
the inspection, repair, or maintenance of
track, roadbed, or electric traction
systems, they are generally working in
the foul of track and are providing ontrack safety for employees who are
engaged in such activities. For example,
a flagman may be responsible for
keeping all trains and on-track
equipment clear of the working limits
within which MOW activities are being
performed. See § 214.7. Watchmen/
lookouts are also responsible under
§ 214.329 for providing train approach
warnings to MOW employees who foul
any track outside of working limits.6
6 While § 214.329 is phrased in terms of
watchmen/lookouts providing train approach
warning to roadway workers, FRA notes that the
definition of ‘‘roadway worker’’ in § 214.7
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Since flagmen and watchmen/lookouts
must stay alert at all times to properly
perform these safety-critical job duties,
it would run counter to safety purposes
to exclude their duties from FRA’s
proposed definition of MOW activities.
FRA is proposing to define ‘‘flagman’’
and ‘‘watchman/lookout’’ in § 219.5 as
those terms are currently defined in
FRA’s roadway worker regulations. See
§ 214.7. Because these definitions have
already been established by part 214,
the railroad industry is already familiar
with their meaning and application.7
For illustration purposes, part 219’s
proposed MOW activities definition
would include (but not be limited to)
the following activities: (1) The clearing
of snow and ice from track and switches
(but not from passenger station
platforms, as discussed below); (2) the
operation of on-track or fouling
equipment used for repair/maintenance
purposes such as tampers, tie-throwers,
ballast machines, weed sprayers, etc. or
working with such equipment; (3) the
operation of on-track rail inspection
vehicles; (4) the requesting or granting
of authority to occupy a segment of
track for the purpose of performing
MOW activities; and (5) the requesting
or granting of permission for a train to
proceed through MOW working limits.
The above list is not exhaustive, and
FRA is specifically requesting public
comment on whether there are other
functions that should be considered
MOW activities that may not be
included in its proposed definition.
FRA is specifically interested in
whether it should consider duties
already covered by the alcohol and drug
testing requirements of the Federal
Motor Carrier Safety Administration
(FMSCA) as MOW activities, when
those duties also impact the safe
performance of MOW activities (e.g., the
operation of tractor-trailers or other
equipment for the purpose of loading or
unloading MOW equipment or supplies
onto or within the foul of the track).
FRA proposes, however, to exclude
the following types of activities from the
(discussed further below) is not craft-specific and
would likely include any MOW employee (as
defined in this NPRM) fouling a track outside of
working limits. Any MOW employee fouling a track
outside of working limits would therefore require
a train approach warning by one or more
watchmen/lookouts under § 214.329.
7 FRA notes that the term flagman is also used by
the railroad industry to describe an employee (e.g.,
a ‘‘conductor flagman’’) who obtains on-track
authority for contractors that are not contractors to
a railroad and therefore not roadway workers. The
general public also understands flagman to mean a
person who flags highway traffic during highway
construction or grade crossing projects. In this
NPRM, FRA is proposing to define ‘‘flagman’’ solely
as defined in § 214.7, rather than in the sense of
‘‘conductor-flagman’’ or ‘‘highway-traffic-flagman.’’
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definition of MOW activities: (1) The
clearing of snow and ice from passenger
station platforms; (2) other passenger
station maintenance, such as painting,
cleaning, sweeping platforms, etc.; (3)
activities performed by individuals who
are not engaged by or under contract to
a railroad, such as workers who are
installing cable for a public utility
company or constructing a bridge for a
government highway agency; (4)
railroad bridge 8 work that is not on the
track or within four feet of the nearest
rail (on a horizontal plane), such as
painting the base of a bridge or diving
to inspect a bridge structure; (5)
engagement as a tractor-trailer operator
solely for the purpose of hauling MOW
equipment to and from a work site
(although such persons would be
included in the definition if they were
engaged in loading or unloading MOW
equipment or supplies onto or within
the foul of the track); and (6) emergency
work that is wholly the result of a
natural disaster, such as a flood,
tornado, or mudslide. As with the list of
included activities above, this list of
excluded activities is not exhaustive,
and FRA is requesting public comment
on what, if any, other activities should
be specifically excluded from the
definition of MOW activities.
FRA is also specifically requesting
public comment on whether the
proposed MOW activities definition
should include any of the following
activities: (1) Boring a pipe under a
track; (2) paving a highway-rail grade
crossing; (3) placing detour or other
signs in conjunction with grade crossing
work; (4) operating cranes for the
loading and unloading of MOW
equipment, regardless of whether or not
that equipment is being loaded onto or
within the foul of a track; (5) clearing
and repairing a railroad track following
an accident or incident; and (6)
operating a bridge if the employee is not
covered under the HOS laws.
FRA notes that the proposed
definition of MOW activities in part 219
is narrower than the definition of
roadway worker duties in § 214.7 of
8 Under § 214.7, a ‘‘railroad bridge’’ is a structure
supporting one or more railroad tracks above land
or water with a span length of 12 feet or more
measured along the track centerline. This includes
the entire structure between the faces of the
backwalls of abutments or equivalent components,
regardless of number of spans, and includes all
such structures, whether constructed of timber,
stone, concrete, metal, or any combination of these
materials. Under § 237.5, a ‘‘railroad bridge’’ is any
structure with a deck, regardless of length, which
supports one or more railroad tracks, or any other
undergrade structure with an individual span
length of 10 feet or more located at such a depth
that it is affected by live loads. See 49 CFR part 237,
appendix A—Supplemental Statement of Agency
Policy on the Safety of Railroad Bridges.
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FRA’s railroad workplace safety rule
(part 214). Consequently, a roadway
worker as defined in part 214 may
perform duties that would not be
considered MOW activities as defined
in part 219. For example, an employee
who performs passenger station
maintenance is performing roadway
worker duties under part 214 (since a
passenger station is considered a
‘‘roadway facility’’ under § 214.7) but
would not be performing MOW
activities under part 219, so that
performance of these duties would make
the employee subject to part 214 but not
to part 219. If FRA incorporates its
proposed definition of MOW activities
into part 219, railroads would be
required to distinguish between
roadway workers as defined in part 214
and MOW employees as defined in part
219, and to realize that individuals may
require roadway worker protection even
if they are not performing MOW
activities. The proposed MOW activities
definition differs from the definition of
roadway worker duties because it
focuses exclusively on the nature of the
activities being performed, and does not
consider an employee’s proximity to the
track. Unlike under the roadway worker
duties definition, MOW activities do not
need to be performed either ‘‘on or near
track or with the potential of fouling a
track.’’ FRA is requesting public
comment on how to make clear the
differences between its proposed MOW
employee and MOW activity definitions
in part 219 and the roadway worker
definition in § 214.7. FRA is also asking
for input on the scope of its proposed
definitions, and the safety concerns that
involve individuals performing MOW
activities.
C. ‘‘Regulated Employees’’ and
‘‘Regulated Service’’
To implement the expansion of part
219 to cover MOW employees, FRA is
proposing to add two new definitions to
§ 219.5: ‘‘Regulated employee,’’ which
would refer to an any employee who is
subject to part 219 (whether a covered
or MOW employee) and a corresponding
term, ‘‘regulated service,’’ which would
refer to all activities subject to part 219
(again, both covered service and MOW
activities). Together, these two proposed
terms-of-art would encompass all
individuals and duties subject to part
219, and would substitute for the
awkward terms ‘‘covered employees and
maintenance-of-way employees’’ or
‘‘covered service and MOW activities.’’
FRA believes these proposed definitions
would make its RSIA-mandated
addition of MOW employees easier to
understand and implement, but is
requesting public comment on whether
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its proposed definitions would be
clearly understood to refer to both
covered service and MOW employees
and duties.
D. Alternatives Considered for Part 219
Expansion
Before proposing to expand the scope
of this rule to cover MOW activities as
defined above, FRA considered two
alternative approaches for meeting the
statutory mandate of Section 412.
Although FRA is not proposing to adopt
either alternative, FRA is requesting
input on each approach’s feasibility in
comparison to the approach proposed in
this NPRM. FRA is also requesting
public comment on whether there are
other approaches it should consider.
1. Alternative No. 1: Adopt the
‘‘roadway worker’’ definition in § 214.7.
FRA initially considered adopting
§ 214.7’s definition of ‘‘roadway
worker,’’ since it is an established
definition with which the railroad
industry is familiar. As defined by
§ 214.7, ‘‘roadway worker’’ includes any
employee of a railroad (or a contactor to
a railroad) who inspects, constructs,
maintains, or repairs railroad track,
bridges, roadway, signal and
communication systems, electric
traction systems, roadway facilities or
roadway maintenance machinery ‘‘on or
near track or with the potential of
fouling a track.’’ This definition of
roadway worker also includes flagmen
and watchmen/lookouts.
Although FRA initially assumed that
the roadway worker population is
generally the same as that of employees
who perform MOW activities, FRA
ultimately concluded that this is not so
since § 214.7 defines railroad employees
(including employees of contractors to a
railroad) as roadway workers if they
perform any of the section’s listed
duties ‘‘on or near the track or with the
potential to foul the track.’’ This
particular language applies to
individuals performing duties that
would not be considered MOW
activities, such as maintenance of
roadway facilities that could involve
fouling the track. Individuals
performing such duties may qualify as
roadway workers, but they are not
generally considered to be MOW
employees if their activities do not
involve work on track or roadbed.
Furthermore, as used in part 214, a
roadway worker is defined as any
employee who performs one or more of
the duties listed that has the potential
of fouling a track, and this definition
determines which employees must be
provided roadway worker training and
on-track protection in certain situations.
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In part 214, this broad language is not
problematic because it is relatively easy
for a railroad to provide employees with
roadway worker training and on-track
protection on short notice. However,
FRA believes that adopting part 214’s
roadway worker definition would make
it difficult for railroads and contractors
to comply with the expanded scope of
part 219, since part 219 elements often
require advance planning before
implementation For example, to
establish an effective random testing
program that meets FRA’s minimum
random testing rates, a railroad would
first have to identify all employees and
contractors who may ever perform
duties qualifying them as roadway
workers.
Therefore, while FRA considered
adopting the § 214.7 roadway worker
definition, FRA concluded that this
definition was too broad for part 219
purposes. Nonetheless, FRA is
requesting public comment on this
alternative.
2. Alternative No. 2: Include all
employees who perform FRA safetysensitive functions under §§ 219.301
and 209.303.
As a second alternative approach,
FRA considered implementing NTSB
recommendation R–08–07 in its entirety
by expanding part 219 to cover all
employees who perform FRA safetysensitive functions under §§ 209.301
and 209.303. For the reasons discussed
below, FRA has determined that it is
currently unnecessary to expand the
scope of part 219 to such an extent.
As discussed above, FRA believes that
in addition to the covered employees
already subject to part 219, MOW
employees occupy the most at-risk
safety-sensitive positions in the railroad
industry. Their duties regularly require
them to work on or alongside track and
roadbed, putting them at risk for being
struck by a train or other on-track or
fouling equipment. MOW employees
also greatly impact safety because their
activities can directly interfere with the
movement of trains or other on-track
equipment. Furthermore, as discussed
above, the NTSB based recommendation
R–08–07 upon its findings that illegal
drug use by MOW employees may have
played a role in a 2007 fatal MBTA
accident, and that test data from FRA’s
PAT testing program showed an alcohol
and drug use problem in the MOW
employee population. See Woburn
Report at 19–20.
In contrast, as discussed earlier,
individuals who perform the other FRA
safety-sensitive functions listed in
§ 209.303 (e.g., individuals who inspect,
repair, or maintain locomotives,
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passenger cars, and freight cars) do not
pose or have similar safety risks because
these functions, unlike MOW activities,
are typically performed in designated
shop areas or on track designated as
repair track and, as such, individuals
performing these functions are not
subject to the same risks as individuals
working on or around railroad track
over which normal railroad operations
are taking place. Furthermore,
employees who perform § 209.303
safety-sensitive functions but are neither
covered employees nor MOW
employees have a lower PAT testing
positive rate than those who perform
MOW activities. From January 1997 to
August 2010, FRA conducted PAT tests
on 14 fatally injured employees who
were neither covered employees nor
MOW workers. Only one of these
fatalities tested positive, resulting in a
PAT testing positive rate of 7.14% for
fatalities who were neither covered
employees nor MOW workers, which is
comparable to the 6.56% PAT testing
positive rate for covered employees
cited by the NTSB in its report on the
MBTA accident. See Woburn Report at
20. In comparison, the NTSB’s
examination of the PAT testing results
from MOW fatalities found a positive
rate of 19.23%, about three times as
high as that for covered employees. Id.
FRA is therefore not proposing at this
time to apply part 219 to those § 209.303
safety-sensitive employees who are
neither covered employees nor MOW
employees. Accordingly, as proposed,
the expanded scope of part 219 would
not cover all § 209.303 safety-sensitive
employees, as recommended by the
NTSB. FRA believes this more limited
scope is not only data-driven but
appropriate given the need to minimize
the burden and costs of implementing
the mandate of Section 412. However, as
with the first alternative approach
discussed above, FRA is requesting
public comment on this alternative.
E. MOW Employees and the Small
Railroad Exception
Since the inception of its alcohol and
drug program in 1985, FRA has used the
number of covered employees a railroad
has (including covered service
contractors and volunteers) as one factor
in determining the railroad’s risk of
alcohol and drug-related accidents. See
50 FR 31529, Aug. 2, 1985. For example,
FRA believes that generally small
railroads, defined as those railroads that
have 15 or fewer covered employees and
no joint operations with other railroads,
pose a lower risk of alcohol and drugrelated accidents than larger railroads.
Existing part 219 therefore requires
larger railroads (defined as those
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railroads that either have 16 or more
covered employees or are engaged in
joint operations) to implement all of
part 219, while small railroads have to
implement only certain subparts of part
219. Currently under § 219.3, small
railroads do not have to comply with
subpart D (reasonable suspicion and
reasonable cause testing), subpart E
(identification of troubled employees),
subpart F (pre-employment testing) and
subpart G (random alcohol and drug
testing).9 The purpose of this small
railroad exception is to limit part 219’s
regulatory burden on small railroads
without adversely affecting safety.
FRA’s use of a railroad’s number of
covered employees and participation in
joint operations as measures of the
railroad’s risk of alcohol and drugrelated accidents is a well-established
approach with which the railroad
industry is familiar. FRA is therefore
proposing to continue counting only a
railroad’s covered employees for
purposes of determining whether the
railroad qualifies for the small railroad
exception, particularly since FRA has
found no safety rationale for doing
otherwise. This would minimize
implementation burdens by continuing
to except a small railroad from full part
219 coverage provided that the railroad
continues to meet § 219.3 criteria.
With respect to a contractor who
performs MOW activities for a railroad,
FRA proposes to amend § 219.3 to apply
part 219 to a MOW contractor to the
same extent as it applies to the railroad
for which the MOW contractor performs
regulated service. As proposed, a
contractor’s level of part 219
compliance would be determined by the
size of the railroad for which it is
performing regulated service, regardless
of the size of the contractor itself. To
achieve this, FRA is proposing to add
new language to the small railroad
exception. Pursuant to this new
language, if a contractor performs MOW
activities exclusively for small railroads
that are excepted from full compliance
with part 219, the contractor would also
be excepted from full compliance. For
example, a MOW contractor with five
employees who perform regulated
service for a large railroad would have
to implement a full part 219 program if
the railroad for which it performs
regulated service is required to do so,
while a MOW contractor with 20
employees would not have to
implement a full part 219 program if it
performs regulated service for a small
9 As discussed later in this preamble, FRA is
proposing to modify the small railroad exception of
§ 219.3 so that small railroads would no longer be
exempt from the reasonable suspicion and preemployment testing requirements of part 219.
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railroad that is excepted from full
compliance with part 219.
FRA recognizes that a MOW
contractor may perform regulated
service for multiple railroads, not all of
which may be required to comply fully
with part 219. To simplify application,
FRA is proposing to add new language
to the small railroad exception requiring
a MOW contractor who performs
regulated service for multiple railroads
to implement a full part 219 program if
the contractor performs regulated
service for at least one large railroad
fully subject to part 219. Under this
proposal, if a MOW contractor performs
regulated service for at least one large
railroad, it would have to incorporate all
of its regulated employees into a full
part 219 program, even if only some of
these employees perform regulated
service for a large railroad, and
regardless of whether or not a particular
employee was currently performing
regulated service for a large or a small
railroad. This approach would allow a
MOW contractor the flexibility to
allocate its employees effectively and
efficiently by allowing it to use any of
its employees to perform regulated
service for a large railroad on any given
day.
Although FRA considered amending
the small railroad exception to allow a
railroad to qualify for the small railroad
exception if it did not have joint
operations and the combined number of
its covered employees and MOW
workers was 15 or fewer, FRA
ultimately decided that this approach
would create several difficulties. For
example, a railroad with 15 covered
employees and five MOW employees
that currently qualifies as a small
railroad would become fully subject to
part 219 if FRA counted the five MOW
employees towards the 15 or fewer
cutoff. FRA believes it would be unfair
for a railroad’s status to change simply
because MOW employees were added to
the count, without any actual change to
the railroad’s operations or the risks
they would pose.
Counting MOW contractors for
purposes of the small railroad exception
would present even more difficult
issues. While § 219.3 currently counts
contractor employees who perform
covered service for a railroad for
purposes of the small railroad
exception, this approach has not been
problematic because railroads generally
hire covered service contractors, such as
locomotive engineers, conductors, or
train dispatchers, on a long-term basis.
Similarly, the demand for signal service
contractors is also stable, so it is fairly
easy for a railroad to count its number
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of covered service employees and
contractors at any given time.
In contrast, MOW work is variable,
and MOW contractors frequently move
from railroad to railroad. It is not
unusual for a MOW contractor to
perform work for a railroad only on a
one-time basis. Including MOW
contractors for purposes of the small
railroad exception count could therefore
create a situation where a railroad’s
status would vary from week to week.
For instance, a railroad that loses its
small railroad status after hiring MOW
contractors to perform non-routine track
maintenance could revert to small
railroad status once its short-term
contract with the MOW contractors
expired. If a railroad no longer qualifies
for small railroad status, it is no longer
excepted from the requirement to
implement a random testing program.
Adoption of criteria that could result in
short-term fluctuations in a railroad’s
status and requirements would be
impracticable because implementation
of a random testing program is generally
a long-term commitment that involves
contracting with collectors and other
service providers.
FRA also does not want to encourage
the hiring of MOW contractors in lieu of
MOW employees. Accordingly, for
purposes of determining whether a
railroad qualifies for the small railroad
exception, since FRA is proposing to
exclude contractor employees who
perform MOW activities, FRA similarly
proposes to exclude railroad employees
who perform MOW activities.
Furthermore, counting a railroad’s
MOW employees but not its MOW
contractors would inaccurately reflect
the safety risk presented by the
railroad’s total MOW worker
population.
FRA is proposing to maintain its
current criteria for the small railroad
exception, but is specifically requesting
comment on the following questions:
• Should FRA amend the small
railroad exception to consider MOW
employees? If so, should FRA amend its
current threshold of 15 employees to
account for the increased population of
individuals performing MOW activities
and covered service?
• Do railroads that currently meet the
small railroad exception of § 219.3
currently perform reasonable cause or
random drug and alcohol testing under
their own authority? If so, how does this
small railroad company testing
authority differ from the reasonable
cause or random drug and alcohol
testing conducted by larger railroads
that fully complies with part 219?
Should railroads that meet the existing
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small railroad exception also be
required to fully comply with part 219?
• In light of the changes in the
railroad operating environment since
the inception of the small railroad
exception, are there other approaches to
the small railroad exception that FRA
should consider? For example, given the
criticality of ensuring the safety of all
rail passenger operations (whether the
operations are large or small), should
the small railroad exception be
modified, more narrowly tailored, or
removed altogether for passenger
operations? Similarly, given the increase
in the volume and frequency of the rail
transportation of DOT-regulated
hazardous materials in recent years (e.g.,
flammable liquids), should the small
railroad exception be modified, more
narrowly tailored, or removed altogether
if a railroad transports hazardous
materials? For example, should the
small railroad exception be limited to
railroads that do not transport
hazardous materials or that transport
only certain low hazard hazardous
materials? Should the exception be
limited to railroads that do not transport
hazardous materials above a certain
threshold quantity? FRA is requesting
information on the operations of small
railroads as defined under § 219.3: How
many of these small railroads transport
passengers and how many currently
transport hazardous materials? For those
small railroads that transport hazardous
materials, what types of hazardous
materials do they transport?
Although in this NPRM, FRA is not
proposing to modify its criteria for
determining when a railroad meets the
small railroad exception, FRA may do
so in the final rule after consideration of
any comments received in response to
the above questions.
F. Railroad and Contractor
Responsibility for Compliance
FRA is proposing to hold both the
railroad and the contractor responsible
for ensuring that contractor employees
performing regulated service for a
railroad (contractor regulated
employees) are in compliance with part
219. Since § 219.9 currently provides
that every person—including railroad
agents and contractors—who violates or
causes a violation of a part 219
requirement may be subject to a civil
penalty, both railroads and contractors
performing covered service for railroads
are already responsible for part 219
compliance. FRA is stressing this
provision because the expansion of part
219 to cover MOW employees would
also subject a large population of MOW
contractors to its requirements.
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While the RSIA-mandated expansion
of part 219 to cover MOW employees
may create complications for a railroad
with a large number of MOW
contractors, particularly if those
contractors perform MOW activities for
the railroad only on a periodic or
temporary basis, there are several
methods that a railroad and a regulated
service contractor could use to ensure
compliance with part 219. If a regulated
service contractor is required to
establish a random testing program
because it provides regulated service for
a railroad that is fully subject to part
219, the contractor could do any of the
following:
• Establish its own part 219 program
and provide the railroad with
documentation of its compliance with
part 219. The railroad should maintain
this documentation for FRA audit
purposes. If the contractor’s
documentation or program contains a
deficiency or violation that the railroad
could not have reasonably detected,
FRA could use its enforcement
discretion to take action solely against
the contractor. As discussed earlier in
the preamble, the extent of a regulated
service contractor’s responsibilities
would be determined by the size of the
railroad(s) with which it contracts.
• Contract with a consortium to
administer its part 219 program. The
consortium could either place the
contractor’s regulated employees in a
stand-alone random testing pool or in a
random testing pool with the regulated
employees of other regulated service
contractors. The contractor could then
submit documentation of its
membership in the consortium and its
compliance with part 219 to the
contracting railroad. As with the
method described above, if the
contractor’s documentation or program
contains a deficiency or violation that
the railroad could not have reasonably
detected, FRA could use its enforcement
discretion to take action only against the
contractor. Upon request, FRA would
assist a railroad in reviewing the part
219 documentation of its regulated
service contractors.
• Have a railroad incorporate
contractor employees who perform
regulated service for it into the
railroad’s own part 219 program.
To minimize the burden of these
proposed requirements and to promote
compliance with part 219, FRA has
developed model ‘‘fill-in-the-blank’’
alcohol and drug policies (including
testing plans) that can serve as
templates for both railroads and
contractors. These plans are currently
available at FRA’s Web site: https://
www.fra.dot.gov/Page/P0345. FRA
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developed one set of plans for entities
that are subject to all of part 219 and
another for entities that qualify for the
small railroad exception.
FRA expects it to be common practice
for a railroad to incorporate into its own
part 219 program all of the contractor
employees who perform regulated
service for it, even if one or more of the
contractors has its own part 219
program. A railroad that does so would
ensure that all of its contractor regulated
employees are in compliance with part
219 requirements, particularly the
random testing requirements of subpart
G. A railroad that chooses this approach
would incorporate all contractor
regulated employees into the railroad’s
own random testing program.
One additional option would be for a
railroad to accept a contractor’s plan for
random testing, regardless of whether
that plan was managed by the contractor
or by a consortium/third party
administrator (C/TPA). Although not
specifically proposed in the rule text,
FRA is soliciting feedback on the
following approach that could create a
framework for a railroad wishing to
accept a contractor’s random testing
plan. Under this approach, if a railroad
accepted a contractor’s random testing
plan, the contractor could be required to
comply with the following
requirements:
• To certify in writing to the railroad
that all of the contractor’s regulated
employees are subject to alcohol and
drug testing as required by part 219
(including, as applicable, the
requirements that all regulated
employees be subject to selection for
random testing as required by subpart G,
have a DOT pre-employment drug test
resulting in a negative result under
subpart F, and be subject to a previous
employer background check as required
by § 40.25); and
• To report, in an FRA model format,
summary part 219 testing data to the
railroad at least every six months.
FRA is soliciting public comment on
whether the last alternative described
above would make it easier for a
railroad to ensure that its regulated
contractor employees were complying
with the requirements of part 219,
without having to incorporate the
contractor’s regulated employees into its
own part 219 program. If not, how could
this approach be improved? What costs,
if any, would it impose? Would
contractors performing regulated service
for railroads be willing to comply with
the proposed requirements for written
certification and reporting of summary
testing data? Are there other approaches
that both railroads and contractors
could use to ensure that all contractor
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employees performing regulated service
for a railroad are in compliance with
part 219?
G. MOW Employee Random Testing
Rate and Minimum Random Testing
Pool Size
As mentioned above, FRA is
proposing to require random alcohol
and drug testing for MOW employees
(unless they perform regulated service
solely for a railroad qualifying for the
small railroad exception of § 219.3). As
with covered employees, FRA would set
the minimum random rates for MOW
employees according to the overall
reported random testing violation rate
for MOW employees in the railroad
industry. See §§ 219.602 and 219.608.
Because MOW employees have never
been subject to FRA random testing
before, FRA only has data from its PAT
testing of MOW fatalities (described
above) on the prevalence of prohibited
alcohol and drug use in the MOW
employee population. FRA is therefore
proposing to set the initial minimum
annual percentage rates for MOW
employees at 50% for drug testing and
25% for alcohol testing Although the
initial minimum random rates for MOW
employees would be higher than those
currently set for covered employees,10
FRA set the same initial minimum
random rates for covered employees.
(FRA required random drug and alcohol
testing for covered employees in 1988
and 1995, respectively. See 53 FR
47123, Nov. 21, 1988 and 59 FR 7448,
Feb. 15, 1994).
Railroads would initially be required
to establish and maintain separate
random testing selection pools for MOW
employees. Maintaining distinct random
testing pools for covered and MOW
employees would make it easier for
railroads to comply with the different
minimum testing rates set for each
employee population. Requiring
separate random testing pools would
also make it easier for railroads that are
required to file an annual Management
Information System (MIS) report under
§ 219.800 to report separate random
testing results for covered and MOW
employees. FRA would in turn use the
data from these separate pools to set the
future minimum random rates for
covered and MOW employees.
Under existing § 219.3, a railroad with
15 or fewer covered employees must
conduct random testing if it has joint
operations with another railroad, even
though the railroad’s small size may
diminish the deterrence effect of the
10 In 2014 the random testing rates for covered
employees are 25% for drug testing and 10% for
alcohol testing. (See 78 FR 78275, Dec. 26, 2013).
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testing. The purpose of random testing
is to make every regulated employee
expect that he or she could be subject
to a random alcohol or drug test any
time he or she is on-duty and subject to
performing covered service. FRA is
concerned that the random testing
conducted by very small railroads and
contractors may have an insufficient
deterrence effect. For example, a
railroad with two covered employees
and joint operations need only conduct
one random alcohol test to meet the
10% minimum alcohol testing rate;
afterwards, the railroad’s random
alcohol testing program would cease to
have any deterrent effect because its
covered employees would know that the
alcohol testing required for the year had
already been completed. A contractor
who is required to conduct random
testing because it performs regulated
service for large railroads would have a
similar problem if it has only a very
small number of regulated employees.
As will be further discussed below in
the section-by-section analysis for
§§ 219.611(c) and 219.613(d), FRA is
proposing the following regulatory
change in response to this concern. Any
individual random testing pool required
under subpart G (whether maintained
by a railroad, contractor to a railroad, or
a consortium) must contain at least four
entries and at least one entry per quarter
must be selected and tested, even if
doing so would require testing above
FRA’s minimum annual random testing
rates. This new requirement would not
excuse a railroad from complying with
the minimum random testing percentage
rates. (For example, a pool comprised of
16 MOW employees—who would be
subject to random drug testing at a rate
of 50%—would still be required to
conduct at least eight random tests per
year.) This requirement would apply
both to railroads and contractors
required to perform random testing.
H. MOW Employee Pre-employment
Drug Testing
FRA is proposing to grandfather all
current MOW employees from the preemployment drug testing requirements
of subpart F.11 Under FRA’s proposal,
only MOW employees hired by a
railroad or contractor after the effective
date of the final rule would be required
to have a negative DOT pre-employment
drug test result before performing
11 While railroads are currently authorized to
conduct pre-employment alcohol testing for
covered employees (so long as they treat all covered
employees the same), such testing is not required
under subpart F. See § 219.502. FRA is not
proposing to change this approach and require preemployment alcohol testing for regulated
employees.
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regulated service for the first time. As
with the minimum random testing rates
discussed above, FRA’s approach to
implementing pre-employment drug
testing for MOW employees would be
similar to its implementation of preemployment drug testing for covered
employees in 1986, when FRA
grandfathered employees who had
performed covered service for a railroad
prior to the effective date of the final
rule. See 50 FR 31508, Aug. 2, 1985.
Although current MOW employees
would not be subject to a preemployment drug test, FRA believes its
proposal to initiate random drug testing
of MOW employees at a base rate of
50% would provide sufficient
deterrence for this group.
FRA understands that railroads may
have already given some MOW
employees a Federal pre-employment
drug test (resulting in a negative) under
the alcohol and drug testing regulations
of another DOT agency. The most
common area of interagency overlap is
among MOW employees who are
required by their employers to hold
Commercial Driver’s Licenses (CDL),
since these employees are subject to the
regulations of both FRA and the
FMCSA. To hold a CDL, an individual
must have a negative FMCSA preemployment drug test. See § 382.301. To
ease the compliance burden for these
employees and their employers, FRA
would allow a negative pre-employment
test conducted by an employing railroad
under the rules and regulations of
another DOT agency to satisfy the
requirements of subpart F for employees
transferring into regulated service for
the first time. FRA has historically
interpreted its pre-employment drug
testing requirements this way, and this
proposed amendment would
incorporate this interpretation into the
regulatory text. See Federal Railroad
Administration, Alcohol and Drug
Testing Regulations (Parts 219 and 40)
Interpretive Guidance Manual
(‘‘Interpretive Guidance Manual’’) 32
(September 2006), available at https://
www.fra.dot.gov/eLib/Details/L02799.
IV. Signal Contractors
Railroads and contractors should note
that the RSIA made signal contractors
subject to part 219. Effective July 16,
2009, section 108(a) of the RSIA
amended the HOS laws by eliminating
the words ‘‘employed by a railroad
carrier’’ from the definition of ‘‘signal
employee’’. See 49 U.S.C. 21101(4). As
a result, contractor employees who
install, repair, or maintain signal
systems for a railroad are now
considered covered employees under
part 219, and signal contractors are
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responsible for compliance with part
219 to the same extent as any other
covered service contractors. This
statutory change does not necessitate
any amendments to part 219.
Nevertheless, FRA is mentioning this
change to ensure that it is understood by
the railroad industry.
V. Other Proposed Substantive
Amendments
This section contains a brief overview
of the proposed amendments in this
NPRM other than those discussed
above. These proposed amendments
will be discussed in greater detail in the
section-by-section analysis below.
A. Small Railroads Would No Longer Be
Excepted From the Requirements for
Reasonable Suspicion Testing and PreEmployment Drug Testing
Currently, the small railroad
exception in § 219.3(b)(2) provides, in
part, that a railroad with 15 or fewer
covered employees that does not engage
in joint operations with another railroad
is not subject to the requirements for
reasonable suspicion or reasonable
cause testing (subpart D), identification
of troubled employees (subpart E), preemployment drug testing (subpart F), or
random testing (subpart G).
FRA is proposing to modify the small
railroad exception so that small
railroads are no longer excepted from
the reasonable suspicion testing
requirements of subpart D. Subpart D
requires railroads to conduct Federal
reasonable suspicion testing on a
covered employee when one or more
supervisors reasonably suspects that the
employee has violated an FRA
prohibition against the use of alcohol or
drugs. See § 219.300(a). Small railroads
would continue to be excepted,
however, from the requirements for
reasonable cause testing.12
FRA is also proposing to amend the
small railroad exception so that small
railroads are no longer excepted from
subpart F, which requires a railroad to
conduct a pre-employment drug test
(resulting in a negative) on an
individual before permitting him or her
to perform regulated service for the first
time. See § 219.501(a). This proposed
amendment would apply only to
regulated employees hired by a small
railroad after the effective date of a final
rule (i.e., a negative pre-employment
drug test would not be required for
12 As discussed in Section VI below, FRA is
proposing to separate the requirements for
reasonable suspicion and reasonable cause testing
by leaving the reasonable suspicion requirements in
their current location in subpart D and moving the
reasonable cause testing requirements to a new
subpart E.
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regulated employees hired by a small
railroad before the effective date of any
final rule issued in this proceeding).
B. For Purposes of the Small Railroad
Exception, a new Definition of ‘‘Joint
Operations’’ Would Be Incorporated
The small railroad exception is
currently available to railroads that have
15 or fewer covered employees and do
not operate on another railroad’s tracks
in the United States or otherwise engage
in joint operations with another railroad
in the United States, except as necessary
for purposes of interchange. See
§ 219.3(b)(2)(ii). While the small
railroad exception uses the phrase ‘‘joint
operations,’’ this term has never been
defined in part 219. As a result, the
meaning of ‘‘joint operations’’ has been
open to different interpretations. In
order to support uniform application of
the small railroad exception, FRA is
proposing to add a definition of ‘‘joint
operations’’ to part 219.
C. The Post-Accident Toxicological
(PAT) Testing Damage Threshold for
Major Train Accidents Would Be
Increased
Part 219 currently requires railroads
to conduct PAT testing for major train
accidents,13 defined in part as train
accidents that involve damage to
railroad property of $1,000,000 or more.
See § 219.201(a)(1)(iii). (A train accident
also qualifies as a major train accident
if it meets the current reporting
threshold and involves either a fatality
or a hazardous materials release
accompanied by an evacuation or a
reportable injury resulting from the
hazardous material release. See
§ 219.201(a)(1)(i)–(ii).) FRA is proposing
to increase the railroad property damage
threshold for major train accidents to
$1,500,000 to account for inflation.
Since major train accidents require all
involved crew members to be PAT
tested, this proposed change would
reduce the burden on railroads (e.g.,
employee opportunity and wage costs)
by reducing the number of employees
subject to PAT testing.
D. Derailment and Raking Collisions
Would No Longer Be Excluded From the
Definition of Impact Accidents
Part 219 also requires railroads to
conduct PAT testing for impact
accidents. Section 219.5 currently
excludes from the definition of ‘‘impact
accident’’ derailment accidents, where a
derailment of equipment causes an
impact with other rail equipment, and
13 PAT testing is also required for events that
meet FRA’s criteria for impact accidents, fatal train
incidents, or passenger train accidents. See
§ 219.201(a)(2)–(4).
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raking collisions (i.e., collisions caused
by derailment of rolling stock or
operation of equipment in violation of
clearance limitations). FRA is proposing
to remove these existing exclusions, and
require PAT testing after both
derailment and raking collisions.
E. PAT Testing Would Be Required for
Railroad Highway-Rail Grade Crossing
Accidents/Incidents Involving HumanFactor Errors
Currently, § 219.201(b) excepts from
PAT testing any event involving a
‘‘collision between railroad rolling stock
and a motor vehicle or other highway
conveyance at a rail/highway grade
crossing.’’ FRA is proposing to narrow
this exception to require PAT testing
after any highway-rail grade crossing
accident/incident in which humanfactor errors may have played a role.
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F. The Provisions Governing When
Regulated Employees Could Be Recalled
for PAT Testing Would Be Amended
Currently, a railroad may recall a
covered employee for PAT testing only
if three conditions are met: (1) the
employee was released from duty under
the normal procedures of the railroad;
(2) the railroad’s preliminary
investigation indicates a clear
probability that the employee played a
major role in the cause or severity of the
accident/incident; and (3) the accident/
incident occurred while the employee
was on duty. See § 219.203(b)(4). To
improve its investigation of humanfactor related accidents, FRA is
proposing, not only to lower its
threshold for employee recall by
removing the requirement for the
accident/incident to have occurred
while a regulated employee was on
duty, but also to require employee recall
in certain circumstances.
G. Federal Reasonable Cause Testing
Would Be Authorized Only for
Reportable ‘‘Train Accidents’’ and
‘‘Train Incidents’’
FRA believes the use of ‘‘accident/
incident’’ in the introductory text of
existing § 219.301(b)(2) has led to
confusion regarding whether reasonable
cause testing is permitted following all
part 225 reportable accidents/incidents,
which would include reportable events
such as occupational illnesses and
railroad casualties unconnected to the
operation of on-track equipment.
Because FRA never intended to
authorize reasonable cause testing
following occupational illness cases
(e.g., carpal tunnel syndrome) and
casualties unconnected to the
movement of on-track equipment (e.g.,
slips-trips-and-falls resulting from safety
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concerns under the jurisdiction of the
Occupational Safety and Health
Administration (OSHA)), FRA is
proposing to revise this existing
language to specify that FRA reasonable
cause testing is only authorized after
‘‘train accidents’’ (defined to include
rail equipment accidents meeting the
part 225 reporting threshold) and ‘‘train
incidents’’ (defined to include events
involving the operation of railroad ontrack or fouling equipment resulting in
a casualty, but in which the part 225
reporting threshold is not met). For the
reasons discussed in VI.A below, FRA is
proposing to include this revised
language at § 219.403(b).
H. Federal Reasonable Cause Testing
Would Be Authorized for Additional
Operating Rule Violations or Other
Errors
As mentioned above, FRA reasonable
cause testing is also authorized after
certain railroad operating rule violations
and other errors specified in
§ 219.301(b)(3). Currently, these rule
violations and errors listed are primarily
directed at covered employees. FRA is
proposing to add rule violations and
errors that would specifically address
employees performing MOW activities,
and to add others directed at signal
workers performing covered service or
reflect recent amendments to 49 CFR
part 218, Railroad Operating Practices.
I. Part 219 Would Be Amended To
Conform Certain Provisions to the Final
Conductor Certification Rule
On November 9, 2011, FRA published
a final rule requiring the certification of
conductors (49 CFR part 242), which
was also mandated by the RSIA. (76 FR
69802, Nov. 9, 2011). This final rule
became effective January 1, 2012. Id.
FRA is therefore proposing to amend
part 219 so that those sections that
apply to the certification of locomotive
engineers would also clearly apply to
the certification of conductors. The
proposed definition for a Drug and
Alcohol Counselor (DAC) is one of these
conforming amendments.
VI. Primary Clarifying Amendments
FRA is proposing several amendments
that would both improve the
organization of part 219 and make it
easier to find pertinent requirements
and information. Although these
proposed amendments are discussed in
the section-by-section analysis below,
for the reader’s convenience, a brief
description of the major organizational
amendments is included here.
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A. Reasonable Suspicion and
Reasonable Cause Testing Would Be
Separated Into Different Subparts,
Resulting in the Re-Designation of Other
Subparts
Currently, the requirements for
reasonable suspicion testing and
reasonable cause testing are both found
in subpart D. Because of their similar
names and the placement of both types
of tests in subpart D, railroads often
confuse one type of testing with the
other, even though reasonable suspicion
and reasonable cause testing have very
different requirements. To clarify the
substantive differences between the two,
FRA is proposing to retain the
requirements for reasonable suspicion
testing in subpart D but move the
requirements for reasonable cause
testing to subpart E, which currently
covers voluntary referral and co-worker
report policies. The proposed separation
of reasonable suspicion and reasonable
cause testing into different subparts is
intended to help railroads distinguish
between these two types of testing. This
differentiation should be particularly
helpful for small railroads, since FRA is
proposing to require that those railroads
implement reasonable suspicion, but
not reasonable cause testing. To
accommodate the movement of
reasonable cause testing into subpart E,
FRA is proposing to move (and amend
as discussed below) the sections
addressing the ‘‘Identification of
Troubled Employees’’ currently found
in that subpart to new subpart K, ‘‘Peer
Prevention Programs.’’
B. Random Alcohol and Drug Testing
Requirements Would Be Reorganized
and Clarified
FRA is proposing to revise and
expand subpart G, which contains
FRA’s requirements for random alcohol
and drug testing, to clarify these
requirements and to incorporate
published FRA guidance. See generally
FRA, Part 219 Alcohol/Drug Program
Compliance Manual, 2nd edition (2002)
available at https://www.fra.dot.gov/
eLib/details/L01186 (Compliance
Manual). In addition, FRA is proposing
several substantive amendments which
will be discussed below in the sectionby-section analysis.
C. Substituting ‘‘Drug and Alcohol’’ for
‘‘Alcohol and Drug’’
FRA has previously used both ‘‘Drug
and Alcohol’’ and ‘‘Alcohol and Drug’’
as terms to describe its part 219 program
and many of its components. For
consistency, FRA is proposing to use
only the term ‘‘Drug and Alcohol’’
throughout part 219 and to substitute
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‘‘Drug and Alcohol’’ wherever the term
‘‘Alcohol and Drug’’ is currently used.
VII. Section-by-Section Analysis
As discussed earlier, FRA is
proposing to add definitions for
‘‘regulated employee’’ and ‘‘regulated
service’’ which would serve as terms-ofart encompassing all individuals and
duties subject to part 219, including
both covered service and MOW
activities. Throughout most of part 219,
FRA would replace the terms ‘‘covered
employee’’ and ‘‘covered service’’ with
‘‘regulated employee’’ and ‘‘regulated
service.’’ The terms ‘‘covered employee’’
and ‘‘covered service,’’ however, would
still be used where necessary, such as in
proposed § 219.12, which addresses
issues of overlap between part 219 and
the HOS laws that apply only to covered
employees.
Throughout this NPRM, FRA is also
proposing small changes to conform the
regulatory language, where necessary, to
the proposed substantive and
reorganization amendments. To
streamline this NPRM, FRA is not
discussing most of these minimal
clarifying amendments, none of which
are intended to affect the regulation’s
substantive requirements.
Authority Citation
The authority citation for part 219
would be amended to add a reference to
Section 412, which mandated the
expansion of part 219 to cover all
employees of railroads and contractors
or subcontractors to railroads who
perform MOW activities.
Subpart A—General
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Section 219.1—Purpose and Scope
Currently, this section states that the
purpose of part 219 is to ‘‘prevent
accidents and casualties in railroad
operations that result from impairment
of employees by alcohol or drugs.’’ FRA
is proposing to amend this section to
include a reference to the proposed
definition of ‘‘employee’’ in § 219.5,
which, as used in part 219, would
include any individual (including a
volunteer or a probationary employee)
who performs regulated activities for a
railroad or a contractor to a railroad.
FRA is not proposing to include a
similar reference every time ‘‘employee’’
is used, but believes it is appropriate to
do so the first time it appears in part
219.
Section 219.3—Application
FRA is proposing the following
structural and substantive amendments
to this section.
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Paragraph (a)
FRA proposes to amend paragraph (a)
to apply part 219 to all railroads, except
as provided in proposed paragraphs
(a)(1)–(3) and paragraphs (b), (c), and (d)
of the section.
The first exception, contained in
proposed paragraph (a)(1), addresses
operations that occur within the
confines of industrial installations
commonly referred to as ‘‘plant
railroads.’’ Plant railroads are typified
by operations such as those in steel
mills that do not go beyond the plant’s
boundaries and that do not involve the
switching of rail cars for entities other
than themselves. This exception for
plant railroads is currently found in
paragraph (b)(1) of this section, but FRA
believes it belongs more appropriately
with the general applicability provisions
of paragraph (a) (this will also permit
proposed paragraph (b) to be dedicated
solely to reporting requirements, as
discussed below). FRA is also amending
this language to specify that there is a
definition of ‘‘plant railroads’’ in
§ 219.5.
Proposed paragraph (a)(2) addresses
operations commonly described as
tourist, scenic, or excursion service to
the extent that they occur on tracks that
are not part of the general railroad
system. FRA has decided to except
tourist, scenic, historic, or excursion rail
operations that are not part of the
general system, regardless of whether
they are insular or non-insular rail
operations. FRA has elected to exclude
these typically small operations from
the requirements of part 219 because of
the limited safety risk that these
operations pose to members of the
public due to the fact that their
operations do not take place on the
general system. This is new language for
this section, but reflects FRA’s tradition
of exercising its jurisdiction in a way
that excludes tourist, scenic, historic, or
excursion operations that are not part of
the general railroad system of
transportation from certain portions of
its regulations. See Statement of Agency
Policy Concerning Enforcement of the
Federal Railroad Safety Laws, The
Extent and Exercise of FRA’s Safety
Jurisdiction, 49 CFR part 209, Appendix
A (FRA’s Policy Statement or the Policy
Statement).
Proposed paragraph (a)(3) would
except from part 219 rapid transit
operations in an urban area that are not
connected to the general system
(although rapid transit type operations
with links to the general system would
continue to be covered by part 219).
This exception is currently found in
paragraph (a)(2), which excepts
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43841
railroads that ‘‘provide commuter or
other short-haul rail passenger service
in a metropolitan or suburban area (as
described by 49 U.S.C. 20102) in the
United States.’’ The new language in
proposed paragraph (a)(3) would
conform part 219’s language to that used
in the applicability sections of other
FRA regulations without changing the
scope of the exception.
Paragraph (b)
Paragraph (b) currently contains three
different exceptions that are unique to
part 219 and are available to both
foreign and domestic railroads. To
clarify these exceptions, and make them
easier to find FRA is proposing to
separate them into individual
paragraphs as follows:
• As discussed above, the ‘‘plant
railroad’’ exception would remain the
same but would be moved from its
current location in paragraph (b)(1) to
proposed paragraph (a)(1). This
exception is a general statement about
FRA’s jurisdiction and more properly
belongs with the general applicability
provisions.
• The exception in current paragraph
(b)(2) for railroads with 15 or fewer
covered employees that do not engage in
joint operations with other railroads (the
‘‘small railroad exception’’) would be
moved to paragraph (c) and amended to
remove the exceptions related to
reasonable suspicion testing and preemployment testing.
• The exception in current paragraph
(b)(3) would remain in paragraph (b),
but the paragraph would be renamed
‘‘Annual report requirements.’’
Paragraph (c)
As noted above, FRA is proposing to
move the small railroad exception in
existing paragraph (b)(2) to proposed
paragraph (c) and to move the language
currently in paragraph (c) relating to
exceptions that apply only to foreign
railroads to a new paragraph (d). In
addition, because FRA is proposing to
require that small railroads perform
both reasonable suspicion and preemployment drug testing (discussed
below), paragraph (c)(1) would be
amended to state that small railroads are
excepted only from subparts E
(reasonable cause testing), G (random
testing), and K (peer support programs).
• Small Railroads Would No Longer Be
Excepted From Reasonable Suspicion
Testing
Section 219.11(g) currently requires
all railroads to ensure that supervisors
who are responsible for covered
employees are trained in the signs and
symptoms of alcohol and drug abuse.
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(This provision also requires railroads to
train covered employee supervisors on
FRA PAT testing criteria.) This
requirement applies to small railroads
as well, even though they are currently
excepted from having to conduct
reasonable suspicion testing in
accordance with current § 219.3(b)(2).
Because small railroads must already
meet the mandatory supervisory
training requirements in § 219.11(g),
FRA believes that removing the current
exception and requiring small railroads
to conduct reasonable suspicion testing
would promote safety with fairly low
additional costs.
The proposed expansion of part 219
to include MOW activities would
require supervisors of employees who
perform MOW activities to also comply
with the training requirements in
§ 219.11(g). As with supervisors of
covered employees, all railroads,
regardless of size, must ensure that
supervisors of employees who perform
MOW activities have been trained on
reasonable suspicion and post-accident
testing criteria.
• Small Railroads Would No Longer Be
Excepted From Pre-employment Drug
Testing
Current paragraph (b)(2) excepts small
railroads from the requirement to
conduct pre-employment drug testing.
FRA is proposing to remove this
exception, because many small railroads
already pre-employment drug test all
applicants (not just those applying for
covered service) under their own
company authority. This has resulted in
many small railroads mistakenly using
DOT forms to conduct company
authority pre-employment drug tests.
Requiring small railroads to use only
FRA authority for pre-employment drug
tests of regulated employees would
address this problem, and would also
eliminate the ability of individuals to
dodge FRA pre-employment drug tests
by applying to small railroads instead of
larger ones. The removal of the current
small railroad exception to preemployment drug testing would also
make FRA’s pre-employment testing
policy consistent with that of other DOT
modes, since no other DOT agency
excepts small employers from
conducting pre-employment drug tests.
This proposed amendment would only
apply to regulated employees who are
hired by small railroads after the
effective date of any final rule.
Furthermore, FRA believes the
reasons behind its initial decision to
except small railroads from preemployment drug testing no longer
apply. In 1986, when FRA’s preemployment drug testing requirements
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went into effect, small railroads could
not benefit from economies of scale
because drug testing was new and
collection and other test costs were
high. See 49 FR 24293, June 12, 1984.
This is no longer true today, as the
workplace drug testing industry is wellestablished, and collectors, laboratories,
and other service agents are widely
available. Furthermore, drug use is now
a significant issue in many small
communities where small railroads
operate.
• Other Proposed Amendments to the
Small Railroad Exception
FRA is proposing to amend the
introductory text of paragraph (c)(1) to
clarify that small railroads are not
authorized to perform Federal alcohol
and drug testing under the subparts
from which they are excepted. In other
words, in addition to not requiring
small railroads to conduct Federal
reasonable cause or random testing,
FRA is also not authorizing small
railroads to conduct such testing. The
proposed amendment would therefore
clarify that small railroads are
prohibited from conducting reasonable
cause or random testing under Federal
authority, and may only do so under
their own authority. (FRA is also
proposing to amend this paragraph to
incorporate the small railroad criteria
currently found in § 219.3(b)(2), no
substantive change is intended.)
FRA proposes to amend the small
railroad exception for proposed subpart
K (Peer Support Programs) differently.
Because FRA wants to limit the
regulatory burden on small entities,
FRA is not proposing to require small
railroads to implement peer support
programs. However, FRA does not want
to prohibit small railroads from
voluntarily implementing peer support
programs such as those contemplated by
new proposed subpart K. Accordingly,
FRA proposes to authorize small
railroads to implement peer referral and
support programs because these
programs encourage and facilitate the
referral and rehabilitative support of
regulated employees who abuse alcohol
or drugs. This proposed exception from
proposed subpart K would be the only
exception which would neither require,
nor prohibit, small railroads from
implementing the requirements of part
219 under FRA authority.
As discussed in section III.F of this
preamble, paragraph (c)(2) would state
that a regulated employee who performs
only MOW activities would not be
counted when determining whether the
railroad had 15 or fewer covered
employees as required to meet the small
railroad exception.
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Also as discussed in section III.F of
this preamble, paragraph (c)(3) would
state that a contractor must perform
MOW activities exclusively for small
railroads in order to qualify for the
small railroad exception.
As previously discussed in section
III.G of this preamble, under proposed
paragraph (c)(4), if a contractor is
subject to all of part 219 (including
subparts E, G, and K) because it
performs regulated service for at least
one railroad that is not a small railroad,
only those railroads which must also
comply with all of part 219 (in other
words, railroads that do not qualify for
the small railroad exception) would
share responsibility for ensuring the
contractor’s full compliance with part
219. If the contractor also performs
regulated service for small railroads,
these small railroads would not share
responsibility for the contractor’s full
compliance.
Public Comment Invited
Currently, a railroad’s HOS
contractors are counted when
determining whether a railroad qualifies
for the small railroad exception. Part
219 makes no distinctions, however, for
those HOS contractors who work for a
railroad only on a temporary basis. FRA
is asking for comment on whether such
a distinction should be made. For
example, should a small railroad still
qualify for the exception if it
temporarily engages enough HOS
contractors (e.g., signal contractors) to
bring its number of covered employees
above the 16 employee threshold? If so,
how long can an HOS contractor work
for the railroad and still be considered
a ‘‘temporary’’ employee?
Paragraph (d)
FRA is proposing to move the
applicability exceptions that apply only
to foreign railroads to a new paragraph
(d), which would be entitled ‘‘Foreign
railroads.’’ The following structural and
clarification amendments are also being
proposed:
• New language in paragraph (d)(1)
would clarify that part 219 does not
apply to the operations of a foreign
railroad that occur outside the United
States. For example, a major train
accident on a foreign railroad that
occurred outside the United States
would not be subject to FRA’s PAT
testing requirements under subpart C.
This would not be a new exception, but
rather a clarification of current
requirements.
• FRA would combine the exceptions
currently in paragraphs (c)(1) and (c)(2)
into new paragraph (d)(2), since both
exceptions exclude certain foreign
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railroad operations from subparts E
through G. The intent of this proposed
consolidation is to improve clarity and
reduce redundancy, and no substantive
changes are intended. FRA would also
amend these exceptions to incorporate
the proposed move of peer programs
from subpart E to new subpart K (see
discussion above).
MOW activities, he or she would be
placed in the category which comprises
the majority of his or her regulated
service. For example, an individual who
performs covered service 45 percent of
the time and MOW activities 55 percent
of the time should be placed in the
random testing pool for MOW
employees.
Section 219.4—Recognition of a Foreign
Railroad’s Workplace Testing Program
This section contains provisions
regarding the recognition of a foreign
railroad’s workplace testing program as
a ‘‘compatible alternative’’ to certain
requirements of part 219. FRA is
proposing minimal clarifying
amendments to this section, none of
which are intended to affect its
substantive requirements. Paragraphs
(a)(1) and (b)(1) would be amended to
reflect that FRA is proposing to move
existing subpart E (Identification of
Troubled Employees) to a new subpart
K (Peer Support Programs). The final
sentence of paragraph (b)(1) would be
further amended to correct a mistaken
reference to subpart E that should be a
reference to the pre-employment testing
requirements of subpart F.
Paragraph (b)(2) would be amended to
clarify what type of requirements are
contained in the various referenced
subparts. For example, FRA is
proposing to clarify that subpart C
contains the requirements for PAT
testing.
Contractor
A new definition of ‘‘contractor’’
would clarify that this term includes
both a contractor and a subcontractor
performing functions for a railroad.
Section 219.5—Definitions
FRA is proposing to amend the
definitions section of part 219 to add
several new definitions, to revise and
clarify certain current definitions, and
to delete unnecessary definitions.
New Definitions
emcdonald on DSK67QTVN1PROD with PROPOSALS2
Administrator
A new definition of ‘‘Administrator’’
would clarify that the term means the
Administrator of the FRA or the
Administrator’s delegate.
Associate Administrator
A new definition of ‘‘Associate
Administrator’’ would clarify that the
term means the FRA’s Associate
Administrator for Railroad Safety/Chief
Safety Officer or the Associate
Administrator’s delegate.
Category of Regulated Employee
A new definition, ‘‘category of
regulated employee,’’ would mean a
broad class of either covered employees
or MOW employees. For the purpose of
determining random testing rates under
proposed § 219.625, if an individual
performs both covered service and
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Counselor
FRA is proposing to add this term to
encompass a Drug and Alcohol
Counselor (as discussed below),
Employee Assistance Program
Counselor, or Substance Abuse
Professional, since most, but not all, of
the education, counseling, and
treatment requirements in new subpart
K could be conducted by a person who
meets the credentialing and
qualification requirements for any of
these professions.
DOT-Regulated Employee
A new definition of ‘‘DOT-regulated
employee’’ would clarify that this term
means any person who is subject to drug
testing and/or alcohol testing under any
DOT agency regulation. This term
would include both individuals
currently performing DOT safetysensitive functions (as designated in
other DOT agency regulations) and
applicants for employment subject to
DOT pre-employment drug testing.
DOT Safety-Sensitive Duty or DOT
Safety-Sensitive Function
A new definition of ‘‘DOT safetysensitive duty’’ or ‘‘DOT safety-sensitive
function’’ would clarify that these terms
mean a function designated by a DOT
agency, the performance of which
makes an individual subject to the drug
testing and/or alcohol testing
requirements of that DOT agency. For
part 219 purposes, the performance of
regulated service would be a DOT
safety-sensitive duty or function.
Drug and Alcohol Counselor or DAC
FRA is proposing to adopt a definition
for ‘‘Drug and Alcohol Counselor’’ or
‘‘DAC’’ from 49 CFR 242.7. As specified
in § 242.111, an individual whose
records show a conviction or other State
action for abuse of drugs or alcohol,
must be evaluated and successfully
treated by a DAC as a condition of
conductor certification. Although a DAC
must meet the same credentialing
requirements as a Substance Abuse
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Professional (SAP), this evaluation and
treatment may not be called a SAP
evaluation because § 40.3 specifies that
a SAP may provide such services only
after a violation of a DOT alcohol and
drug regulation, and a conviction or
other State action (e.g., driving while
impaired) is not a violation of part 219.
Employee
FRA is proposing to adopt a new
definition of ‘‘employee’’ to clarify that
this term includes any individual
(including volunteers and probationary
employees) performing activities for a
railroad or a contractor to a railroad.
The proposed amendment would
incorporate previous FRA guidance that
volunteers who perform covered service
are to be considered covered employees.
See Compliance Manual 2.2.
Employee Assistance Program
Counselor or EAP Counselor
FRA is proposing to restore to part
219 the term ‘‘Employee assistance
program counselor or EAP counselor.’’
A previous definition of ‘‘EAP
counselor’’ was removed when FRA
amended part 219 to conform to subpart
P of part 40, which requires an
evaluation by a SAP when an employee
has violated a DOT drug or alcohol
regulation (i.e., by refusing to take or
having a positive result on a DOT
alcohol or drug test). See 59 FR 7457,
Feb. 15, 1994. A part 219 definition of
‘‘Employee assistance program
counselor or EAP counselor’’ is still
required, however, because a SAP’s role
is to evaluate an employee after he or
she has committed an DOT alcohol or
drug testing violation, but § 219.403,
which governs voluntary referrals,
specifies that an employee may only
self-refer before he or she has committed
a violation of §§ 219.101 or 219.102. The
proposed definition of ‘‘Employee
assistance program counselor or EAP
counselor’’ is adapted from the ‘‘EAP
counselor’’ definition in § 240.7 of
FRA’s locomotive engineer certification
regulations.
Evacuation
For clarification purposes, FRA is
proposing to define the term
‘‘evacuation,’’ which, when
accompanying a release of hazardous
material lading from railroad
equipment, is listed in
§ 219.201(a)(1)(ii)(A) as one of the
criteria which determines whether a
train accident qualifies as a ‘‘major train
accident’’ requiring the PAT testing of
all crew members involved. This has
been one of the criteria for PAT testing
since the inception of the program. See
50 FR 31508, Aug. 2, 1985.
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To qualify as an evacuation for
purposes of PAT testing, an event must
involve the relocation of at least one
person who is not a railroad employee
to a safe area in order to avoid exposure
to a hazardous material release. This
relocation would normally be ordered
by local authorities and could be either
mandatory or voluntary. The definition
would not include the closure of public
roadways for hazardous material spill
containment purposes, unless that
closure was accompanied by an
evacuation order. FRA is specifically
requesting public comment on whether
the proposed definition would help
railroads make PAT testing
determinations and whether it properly
encompasses the various events that
should qualify as an evacuation.
Flagman, Fouling a Track
To clarify FRA’s proposed
requirements for employees who
perform MOW activities, FRA would
add definitions of ‘‘flagman’’ and
‘‘fouling a track,’’ both of which are
modeled on the definitions in § 214.7 of
FRA’s roadway worker regulations.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
Highway-Rail Grade Crossing
FRA also proposes to incorporate the
definition of ‘‘highway-rail grade
crossing’’ found in § 225.5 of its
accident and incident reporting
regulations. The proposed incorporation
of a part 225 definition into part 219
would lessen the burden on entities
who have to comply with both
regulations by maintaining consistency
between the regulations and by making
it unnecessary to refer to part 225 to
determine what a ‘‘highway-rail grade
crossing’’ means in part 219. By
incorporating part 225’s definition of a
‘‘highway-rail grade crossing’’ into part
219, FRA proposes to incorporate part
225’s guidance on this term as well. See
FRA, FRA Guide for Preparing
Accident/Incident Reports (Guide), 23–
24 (2011), available at https://
safetydata.fra.dot.gov/officeofsafety/
ProcessFile.aspx?doc=FRAGuidefor
PreparingAccIncReportspub
May2011.pdf, which states that all
crossing locations within industry and
rail yards, ports, and dock areas are
considered to be highway-rail grade
crossings.
Highway-Rail Grade Crossing Accident/
Incident
A new definition of ‘‘highway-rail
grade crossing accident/incident’’
would clarify the meaning of the phrase
as used in part 219. The proposed
definition is essentially identical to
language describing highway-rail grade
crossing impacts found in the definition
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for ‘‘accident/incident’’ in FRA’s
accident and incident reporting
regulations. See 49 CFR 225.5. As with
the proposed definition for ‘‘highwayrail grade crossing,’’ FRA believes
maintaining consistency between part
219 and part 225 will minimize
confusion for regulated entities.
Joint Operations
As discussed earlier, FRA is
proposing to add a definition of ‘‘joint
operations’’ to clarify the meaning of
that term as used in the small railroad
exception of § 219.3. This proposed
definition, which is not intended to
make any substantive changes or to
create any additional burdens on small
railroads, would define joint operations
as ‘‘rail operations conducted by more
than one railroad on the same track
(except for certain minimal joint
operations necessary for the purpose of
interchange), regardless of whether such
operations are the result of contractual
arrangements between the railroads,
order of a governmental agency or a
court of law, or any other legally
binding directive.’’ FRA interprets the
phrase ‘‘rail operations’’ in this
definition broadly, so that it would
encompass dispatching and other types
of operations. For example, a railroad
that has fewer than sixteen covered
employees but dispatches trains for
another railroad would be considered to
have joint operations with that railroad.
A railroad entering another railroad’s
yard to perform switching operations
would also constitute joint operations.
For purposes of this definition, railroads
that operate on the same track would
not be conducting joint operations if
their respective operations are
absolutely separated by physical means,
such as a split rail derail or the removal
of a section of rail, and there is no
physical possibility that the railroads’
respective operations could overlap on
the same track. However, this exclusion
from joint operations would not apply
when one railroad merely agrees,
whether informally or by contract, not
to engage in operations on the same
track as another railroad, or when
railroad operations are only temporally
separated because they operate over the
same track at different times of the day.
The proposed definition would also
exclude certain minimal joint
operations necessary for the purpose of
interchange, so long as: (1) The
maximum authorized speed for
operations on the shared track does not
exceed 20 mph; (2) operations are
conducted under restricted speed
(operating rules that require every
locomotive and train to proceed at a
speed that permits stopping within one
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half the range of vision of the
locomotive engineer); (3) the maximum
distance for operations on the shared
track does not exceed three miles; and
(4) any operations extending into one of
the railroad’s yards are for the sole
purpose of setting out or picking up cars
on a designated interchange track. By
excluding the above operations from its
proposed ‘‘joint operations’’ definition,
FRA would focus scarce agency
resources on the operations with the
greatest safety risk.
Maintenance-of-Way Activities or MOW
Activities, Maintenance-of-Way
Employee or MOW Employee
As discussed earlier, FRA would add
definitions of ‘‘maintenance-of-way
activities or MOW activities’’ and
‘‘maintenance-of-way employee or
MOW employee’’ as part of its proposed
expansion of part 219 to cover
employees who perform MOW
activities.
FRA’s proposed definition of MOW
employee would cover any employee (as
defined in proposed § 219.5, this would
include volunteers and probationary
employees) who performs MOW
activities for a railroad or a contractor to
a railroad. As discussed above, MOW
activities would be defined to include
(in part) activities such as the
inspection, repair, or maintenance of
track, roadbed, or electric traction
systems and the operation of on-track or
fouling equipment utilized for the
inspection, repair, or maintenance of
track, roadbed, or electric traction
systems.
On-Track or Fouling Equipment
FRA would add a new definition of
‘‘on-track or fouling equipment’’ that
would include any railroad equipment
positioned on or over the rails or fouling
a track. In this proposed definition, FRA
provides examples of what would be
considered on-track or fouling
equipment, including trains,
locomotives, cuts of cars, single cars,
motorcars, yard switching trains, work
trains, inspection trains, track
motorcars, highway-rail vehicles, push
cars, or other roadway maintenance
machines (such as ballast tamping
machines), if this equipment is
positioned on or over rails or is fouling
a track.
Other Impact Accident
FRA would add a definition of ‘‘other
impact accident’’ to clarify the meaning
of the phrase as it is used in FRA’s
proposed amendment to the definition
of ‘‘impact accident.’’ As defined, an
‘‘other impact accident’’ would include
any accident/incident involving contact
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between on-track or fouling equipment
that is not otherwise classified as
another type of collision (e.g., a head-on
collision, rear-end collision, side
collision, raking collision, or derailment
collision). This definition would also
include impacts in which single cars or
cuts of cars are damaged during
operations involving switching, train
makeup, setting out, etc.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
Person
A new definition of ‘‘person’’ would
clarify that this term means an entity of
any type covered under 1 U.S.C. 1,
including, but not limited to, the
following: A railroad; a manager,
supervisor, official, or other employee
or agent of a railroad; any owner,
manufacturer, lessor, or lessee of
railroad equipment, track, or facilities;
any independent contractor providing
goods or services to a railroad, such as
a service agent performing functions
under part 40 of this title; and any
employee of such owner, manufacturer,
lessor, lessee, or independent
contractor. While similar to the
definition currently found in § 219.9,
under this proposed definition a
‘‘person’’ would specifically include an
independent contractor who provides
goods or services to a railroad, such as
a service agent (e.g., a collection site,
laboratory, Substance Abuse
Professional (SAP), or other entity) that
provides alcohol and drug testing
services to a railroad subject to part 219
and part 40. See 49 CFR part 40, subpart
Q—Roles and Responsibilities of
Service Agents. This definition would
be added for clarification purposes only,
since railroad service agents are already
required to comply with both part 219
and part 40.
Plant Railroad
A new definition of plant railroad
would clarify the meaning of that term
as used in § 219.3. This proposed
definition reflects FRA’s longstanding
approach, consistent with its published
policy statement referenced below, of
excluding certain plant operations from
the exercise of its jurisdiction.
In § 219.3, FRA would continue to
except plant railroads, as defined in
proposed § 219.5, from the requirements
of this part. Although FRA’s Statement
of Agency Policy Concerning
Enforcement of the Federal Railroad
Safety Laws, The Extent and Exercise of
FRA’s Safety Jurisdiction, 49 CFR part
209, appendix A (FRA’s Policy
Statement or the Policy Statement)
already explains in detail when an
entity’s operations qualify for plant
railroad status, FRA proposes to
incorporate this language into a new
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definition of ‘‘plant railroad’’ to make
these qualifications easier to find. To
enable better understanding of this term,
the proposed definition would also
incorporate language clarifying when an
entity’s operations do not qualify for
plant railroad status. The proposed
definition of the term ‘‘plant railroad’’ is
consistent with FRA’s Policy Statement
that provides that the agency will
exercise its safety jurisdiction over a rail
operation that moves rail cars for
entities other than itself because those
movements bring the track over which
the entity is operating into the general
system. FRA’s Policy Statement
specifically provides that ‘‘operations by
the plant railroad indicating it [i]s
moving cars on . . . trackage for other
than its own purposes (e.g., moving cars
to neighboring industries for hire)’’
brings plant track into the general
system and thereby subjects it to FRA’s
safety jurisdiction. This interpretation of
the term ‘‘plant railroad’’ has been
upheld in litigation before the U.S.
Court of Appeals for the Fifth Circuit.
See Port of Shreveport-Bossier v.
Federal Railroad Administration, No.
10–60324 (5th Cir. 2011) (unpublished
per curiam opinion).
Raking Collision
A new definition for ‘‘raking
collision’’ would clarify that a raking
collision occurs when there is a
collision between parts, with the lading
of a train on an adjacent track, or with
a structure such as a bridge. Collisions
that occur at a turnout are not
considered raking collisions. The
proposed definition is identical to the
definition of raking collision contained
in FRA’s guidance regarding accident/
incident reporting. See FRA Guide for
Preparing Accident/Incident Reports at
20 (Accident Reporting Guide).
Regulated Employee and Regulated
Service
As discussed in section III.B of this
preamble, FRA is proposing a new term
‘‘regulated employee.’’ As proposed,
‘‘regulated employee’’ would refer to all
employees who are subject to part 219,
including covered employees and MOW
employees, and employees of a railroad
or a contractor to a railroad who
perform covered service or MOW
activities. Another new proposed
definition of ‘‘regulated service’’ would
mean the duties which regulated
employees perform that make them
subject to part 219.
Responsible Railroad Supervisor
FRA would incorporate the
description of ‘‘responsible railroad
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supervisor’’ currently in § 219.302(d)
into a new definition of this term.
Side Collision
As with ‘‘raking collision,’’ FRA
proposes to add a definition of ‘‘side
collision’’ taken from the Accident
Reporting Guide. A side collision occurs
when one consist strikes the side of
another consist at a turnout, and
includes collisions at switches or at
railroad crossings at grade. See Accident
Reporting Guide at 20.
Tourist, Scenic, Historic, or Excursion
Operations That Are Not Part of the
General Railroad System of
Transportation
A new definition of ‘‘tourist, scenic,
historic, or excursion operations that are
not part of the general railroad system
of transportation’’ would clarify the
meaning of that term as used in the
proposed application provisions of
§ 219.3. The proposed definition
clarifies that the phrase means a tourist,
scenic, historic, or excursion rail
operation that is conducted only on
track used exclusively for that purpose
(i.e., there are no freight, intercity
passenger, or commuter passenger
railroad operations on the track). If there
are any freight, intercity passenger, or
commuter passenger railroad operations
on the track, the track is considered part
of the general system, and the rail
operation would not meet the definition
of term as used in § 219.3. This
proposed definition is consistent with
FRA’s longstanding policy that excludes
insular operations entirely from FRA’s
safety jurisdiction and excludes noninsular operations from all but a limited
number of Federal safety laws,
regulations and orders. See 49 CFR part
209, Appendix A (defining the terms
insular and non-insular).
Watchman/Lookout
FRA would add a definition of
‘‘watchman/lookout’’ identical to that in
§ 214.7 of its roadway worker
regulations.
Revised Definitions
Covered Employee
The current definition of ‘‘covered
employee’’ includes, in part, ‘‘a person
who has been assigned to perform
service in the United States subject to
the hours of service laws (49 U.S.C. ch.
211) during a duty tour, whether or not
the person has performed or is currently
performing such service, and any person
who performs such service.’’ FRA
proposes to amend this definition to
clarify that ‘‘person’’ includes
employees, volunteers, and
probationary employees, and by
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Impact Accident
As discussed in section V.D of this
preamble, the definition of ‘‘impact
accident’’ would be amended to remove
the exceptions for derailment
collisions 14 and raking collisions. FRA
originally excepted derailment
collisions and raking collisions from the
definition of ‘‘impact accident’’ because
it believed that these types of collisions
were not normally caused by humanfactors. See 50 FR 31539 and 31542,
Aug. 2, 1985 and 54 FR 39647, Sep. 27,
1989.
FRA has since found that both
derailment collisions and raking
collisions can be caused by humanfactors, such as alcohol and/or drug
impairment. For example, a derailment
collision could occur when a dispatcher
fails to properly notify trains of a
derailment, or when a crew does not
operate its train at the proper speed after
such a notification. Similarly, a raking
collision could occur when a train crew
does not comply with the special
handling instruction for a high-wide
load or when cars are left standing on
a track without sufficient clearance.
Additionally, FRA has found
evidence that railroads sometimes
improperly apply the exception for
derailment collisions and raking
collisions in situations involving true
impact accidents. For example, railroads
have sometimes claimed that PAT
testing was not required because
equipment from a train derailed just
prior to what otherwise would be
considered a head-on, rear-end, or side
collision with other on-track equipment.
FRA did not intend the exception for a
derailment collision to apply when ontrack equipment derailed immediately
prior to striking other on-track
equipment. FRA believes that these
sorts of events should be classified as
impact accidents. FRA has also found
that the difference between side
collisions and raking collisions is not
understood by some railroads, who have
erroneously claimed that accidents
occurring at a turnout (switch) were
raking collisions. For example, some
railroads have claimed that a raking
collision has occurred when a switch
crew strikes cars they had previously
left fouling a track or when a train
operates out of a siding and strikes
another train. These types of accidents,
however, are actually side collisions or
other impacts and should therefore be
considered impact accidents.15 (FRA
notes that currently under
§ 219.201(a)(1), a derailment collision
would qualify as a Major Train Accident
if it resulted in damage to railroad
property of $1 million or more.)
FRA does not anticipate that its
proposal to remove the exceptions for
derailment collisions and raking
collisions would significantly increase
PAT testing costs. FRA believes that the
regulated employees involved in these
collisions will often be excluded from
PAT testing when a ‘‘railroad
representative can immediately
determine, on the basis of specific
information, that the employee(s) had
no role in the cause(s) or severity of the
accident/incident.’’ See § 219.203(a)(3).
In order to improve clarity, FRA also
proposes to restructure this definition
by listing each type of impact accident
separately. FRA would also incorporate
its previous guidance that an impact
14 Derailment collisions fall within the definition
of ‘‘obstruction accidents’’ in FRA’s Accident
Report Guide. See Accident Reporting Guide at 24.
But for the purposes of part 219, this type of
collision is referred to only as a derailment
collision.
15 As discussed below, FRA is also proposing to
clarify the part 219 definition of side collision, to
specifically include accidents/incidents that occur
at a switch or turnout. This is the same definition
for a side collision as used in the Accident
Reporting Guide.
updating its reference to the hours of
service laws so that a ‘‘covered
employee’’ would be defined as one
‘‘who is performing covered service
under the hours of service laws at 49
U.S.C. 21101, 21104, or 21105 or who is
subject to performing such covered
service, regardless of whether the
person has performed or is currently
performing covered service.’’ FRA
believes this proposed language is
clearer than that in the current
definition, and it also makes the
reference to the hours of service laws
consistent with that contained
elsewhere in part 219. No substantive
change to this definition is intended.
Covered Service
FRA would amend the definition of
‘‘covered service’’ to provide examples
of the types of activities generally
considered covered service and to refer
to Appendix A of 49 CFR part 228,
Requirements of the Hours of Service
Act: Statement of Agency Policy and
Interpretation. The proposed
amendments are for clarification
purposes only; no substantive change is
intended.
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FRA Representative
The definition of ‘‘FRA
representative’’ would be amended to
clarify that the term includes the
oversight contractor for FRA’s Drug and
Alcohol Program and the staff of FRA’s
Associate Administrator for Railroad
Safety.
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with a derail does not qualify as an
‘‘impact with a deliberately-placed
obstruction, such as a bumping post,’’
since bumping posts are mostly
permanent objects found at the end of
a line, while derails are mobile and can
easily be moved from place to place. See
FRA, Alcohol and Drug Testing
Regulations (Parts 219 and 40)
Interpretive Guidance Manual
(‘‘Interpretive Guidance Manual’’) 18
(September 2006), available at https://
www.fra.dot.gov/eLib/Details/L02799.
FRA would also clarify that the
definition of ‘‘impact accident’’
excludes the impact of rail equipment
with ‘‘naturally-occurring obstructions
such as fallen trees, rock or snow slides,
livestock, etc.’’
Medical Facility
FRA would add language to the
definition of ‘‘medical facility’’ to reflect
the main purpose for including this
definition in this part; that is, that a
medical facility is a hospital, clinic,
physician’s office, or laboratory which
can collect PAT testing specimens and
address an individual’s post-accident
medical needs. In order to improve
consistency, FRA would also substitute
‘‘medical facility’’ wherever ‘‘treating
facility’’ currently appears throughout
part 219.
Railroad Property Damage or Damage to
Railroad Property
The definition of ‘‘railroad property
damage or damage to railroad property’’
would be clarified to mean damage to
railroad property as calculated
according to the FRA Guide for
Preparing Accident/Incident Reports.
Additional language from the Guide
would clarify what costs must be
included (damage to on-track
equipment, signals, track, track
structure, or roadbed; and labor costs
including hourly wages, transportation
costs, and hotel expenses) and excluded
(damage to lading and the cost of
clearing a wreck, although the cost of
contractor services and of renting and
operating machinery is included, as is
the cost of any additional damage
caused while clearing the wreck) when
calculating railroad property damage to
determine whether PAT testing is
required under FRA’s regulations. These
clarifications would be incorporated to
enable easier compliance with this part,
and no substantive changes are
intended.
Train Accident
The definition of ‘‘train accident’’
would be amended to clarify that it
refers to rail equipment accidents under
§ 225.19(c) and to specify that rail
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equipment accidents include, but are
not limited to, collisions, derailments,
and other events involving the operation
of on-track or fouling equipment.
Train Incident
The definition of ‘‘train incident’’
would be amended to clarify that it
includes events involving the operation
of on-track or fouling equipment that
results in a casualty, but in which
damage to railroad property does not
exceed the applicable reporting
threshold.
Deleted Definitions
DOT Agency
The definition of ‘‘DOT agency’’
would be removed because it is being
replaced by the proposed definition of
‘‘DOT, The Department, or DOT
agency.’’
General Railroad System of
Transportation
The definition of ‘‘general railroad
system of transportation’’ would be
removed because FRA’s proposed
amendments to the application section
of this part (§ 219.3) would make this
definition redundant.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
Train
The definition of ‘‘train’’ would be
removed because part 219 already
contains definitions for ‘‘train accident’’
and ‘‘train incident’’ that specifically
include on-track equipment (which
includes trains).
Section 219.9—Responsibility for
Compliance
Currently, this section contains
provisions relating to compliance with
part 219 and penalties for violations of
part 219. FRA is proposing to amend
this section by removing the language
addressing penalty amounts in
paragraph (a) and placing it in a new
§ 219.10, entitled ‘‘Penalties.’’ This
organization would be similar to the
approach taken in other FRA regulations
(see 49 CFR parts 232, 238, and 239),
and-would make it easier for railroads to
find specific provisions relating to
either compliance or penalties.
Proposed paragraph (a) would clarify
that while part 219 requirements are
stated in terms of a railroad’s duty, the
duty to meet part 219 requirements
applies to any person performing a
function required by part 219. This
language would apply equally to the
requirements of part 40, since § 219.701
requires all testing conducted under
part 219 testing (except for PAT testing
in subpart C) to comply with part 40.
Also, existing paragraph (a) contains
language defining the term ‘‘person’’ as
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used in part 219. As discussed in the
section-by-section analysis for § 219.5,
FRA is proposing to move this
definition of ‘‘person’’ to § 219.5 and
amend it to clarify that it includes any
entity who acts as a service agent for a
railroad under part 40.
FRA is also proposing several
minimal changes to the language
contained in paragraphs (b)(1), (b)(2),
and (c). These amendments are intended
to increase the clarity of this section and
not to make any substantive changes.
For example, paragraph (b)(2) currently
states that when an employee engaged
in joint operations is required to
participate in Federal PAT, reasonable
suspicion, or reasonable cause testing
and is then subject to adverse action
allegedly arising from that testing (or an
alleged refusal to participate in such
testing), the other railroad (i.e., the
railroad by which the employee is not
directly employed) must provide to the
employee any necessary witnesses and
documents on a reasonable basis. FRA
is proposing to amend this requirement
to clarify that the other railroad must
also provide such witnesses and
documents to the regulated employee’s
employing railroad.
Section 219.10—Penalties
As discussed immediately above, FRA
is proposing to transfer the penalty
provisions currently found in § 219.9 to
a new § 219.10, entitled ‘‘Penalties.’’
This amendment is not intended to
make any substantive changes to the
penalty provisions, but is intended to
increase the clarity and organization of
part 219.
Section 219.11—General Conditions for
Chemical Tests
This section contains various general
provisions regarding FRA alcohol and
drug testing requirements. FRA is
proposing amendments to this section
as described below.
Paragraph (a)
FRA would re-designate current
paragraph (a) as paragraph (a)(1), and
add new paragraph (a)(2). Paragraph (a)
currently states that ‘‘[a]ny employee
who performs covered service for a
railroad is deemed to have consented to
testing as required in subparts B, C, D,
and G of this part; and consent is
implied by performance of such
service.’’ Proposed paragraph (a)(1)
would amend this language to clarify
that ‘‘[a]ny regulated employee who is
subject to performing regulated service’’
is deemed to have consented to testing.
This amendment is necessary because
under proposed § 219.615(c)(1), a
regulated employee can be required to
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participate in random testing whenever
the employee is on-duty and subject to
performing regulated service, even if the
employee is not performing regulated
service at the time. FRA would also
remove the language ‘‘and consent is
implied by performance of such
service,’’ as it believes this language is
unnecessary and redundant. FRA would
also amend this paragraph to clarify that
performance of regulated service means
consent to testing mandated by the peer
prevention requirements of proposed
subpart K.
New paragraph (a)(2) would clarify
that regulated employees required to
participate in Federal testing under part
219 must be on-duty and subject to
performing regulated service at the time
of a breath alcohol test or urine
specimen collection. This requirement
would not apply to the pre-employment
drug testing of applicants for regulated
service positions.
Paragraph (b)
Paragraph (b)(1) would be amended to
clarify that regulated employees must
participate in Federal testing as required
by part 219 and as implemented by a
representative of the railroad or an
employing contractor.
Paragraph (b)(2) currently provides
that ‘‘[i]n any case where an employee
has sustained a personal injury and is
subject to alcohol or drug testing under
this part, necessary medical treatment
must be accorded priority over
provision of the breath or body fluid
specimen(s).’’ This provision would be
amended to replace ‘‘has sustained a
personal injury’’ with ‘‘is suffering a
substantiated medical emergency,’’ as
certain medical emergencies that do not
involve a personal injury (e.g. a stroke)
may necessitate prioritizing medical
treatment over testing. New language
would further clarify that a medical
emergency is an acute medical
condition requiring immediate medical
care, and a railroad may require an
employee to substantiate a medical
emergency by providing verifiable
documentation from a credible outside
professional substantiating the
emergency situation within a reasonable
period of time.
Paragraph (c)
FRA is proposing minor amendments
throughout existing paragraph (c) to
reflect the updated terminology
proposed in this NPRM (e.g., regulated
employee, medical facility) and to
account for FRA’s proposal to separate
reasonable cause and reasonable
suspicion testing into two separate
subparts.
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Paragraph (d)
This paragraph, which currently
requires an employee who is tested
under either subpart C (PAT testing) or
subpart H (which applies part 40
procedures to part 219 testing except for
PAT tests) to execute a consent form
upon request, conflicts directly with the
Department’s specific prohibition on the
use of consent forms in § 40.27. To
resolve this conflict, FRA proposes to
remove the reference to subpart H in
this paragraph, thus making execution
of a consent form an available option
only for PAT testing under subpart C.
Paragraph (e)
Paragraph (e) currently provides that
nothing in part 219 may be construed to
‘‘authorize the use of physical coercion
or any other deprivation of liberty in
order to compel breath or body fluid
testing.’’ FRA is proposing to amend
this paragraph by re-designating this
language as paragraph (e)(3), and by
adding new paragraphs (e)(1) and (e)(2).
Proposed paragraph (e)(1) would
clarify that a regulated employee
notified of his or her selection for
Federal testing under part 219 must
cease to perform his or her assigned
duties and proceed to the testing site as
soon as possible without adversely
affecting safety. For example, a train
crew selected for random testing would
not be required to proceed immediately
to the testing site if the crew had
received special instructions to remain
on the train and protect it until a relief
crew arrived. In such a situation, FRA
would not expect the train crew to
violate their specific instructions, and
random testing would occur only after
the crew was relieved. This language is
currently contained in § 219.701(c), but
FRA believes it belongs more
appropriately in § 219.11 as it is a
general condition regarding Federal
tests. Similarly, paragraph (e)(2) would
further specify that a railroad must
ensure that the absence of a regulated
employee from his or her assigned
duties for testing does not adversely
affect safety.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
Paragraph (f)
Under current paragraph (f), any
railroad employee (as discussed earlier,
the term ‘‘employee’’ would include
volunteers and probationary employees
of a railroad or a contractor to a railroad)
who performs service for a railroad who
dies within 12 hours of an accident or
incident is deemed to have consented to
the removal of specimens for the
purpose of PAT testing under part 219.
FRA is proposing to amend this
paragraph by replacing the word
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‘‘service’’ with the word ‘‘duties.’’ This
change is intended to make it clear that
any individual who performs duties for
a railroad, regardless of whether or not
those duties are regulated service
(covered service or MOW activities), is
deemed to have consented to the
removal of specimens for PAT testing.
FRA is also proposing other clarifying
amendments to this paragraph (i.e., that
consent is implied by the performance
of duties for the railroad since no
consent form is required). No
substantive changes are intended.
Paragraph (g)
Paragraph (g) currently requires at
least three hours of supervisor training
regarding the signs and symptoms of
alcohol and drug use and the qualifying
criteria for PAT testing under subpart C.
This training must include (at a
minimum) ‘‘information concerning the
acute behavioral and apparent
physiological effects of alcohol and the
major drug groups on the controlled
substances list.’’ FRA is proposing to
amend this existing training
requirement to incorporate supervisory
training on the signs and symptoms of
‘‘other impairing drugs,’’ since drugs
that are not controlled substances can
also have ‘‘acute behavioral and
apparent physiological’’ effects.
FRA is also proposing to amend this
paragraph by removing the three hour
duration requirement (a design
standard) and replacing it with a
requirement that supervisors
demonstrate their understanding of the
training at its conclusion (a performance
standard). Supervisors could do so
through either a written or oral
examination, which must contain
questions related to both the PAT
testing regulations of subpart C and the
signs and symptoms of alcohol and drug
influence, intoxication, and misuse.
FRA believes the proposed amendment
would improve the required supervisor
training by making it based on a
performance standard rather than a
design standard. See Office of
Management and Budget, Circular A–4,
8 (Sep. 17, 2003) (discussing
performance standards as opposed to
design standards). Currently, the three
hour duration requirement does not
actually ensure that a supervisor has
understood the contents of the training.
Under the proposed amendment,
railroads would have the flexibility to
make the training as long—or short—as
necessary to produce supervisors who
could demonstrate their understanding
of the requirements. Overall, FRA
believes that the effectiveness of the
training is better measured by the
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outcomes it produces, as opposed to the
amount of time it lasts.
Paragraph (h)
FRA is proposing only a minor
editorial revision to paragraph (h) to
delete an unnecessary paragraph
reference.
Section 219.12—Hours of Service Laws
Implications
FRA is proposing a new section
§ 219.12 to clarify the relationship
between the alcohol and drug testing
requirements of part 219 and the HOS
requirements of 49 U.S.C. ch. 211.
Paragraph (a)
Proposed paragraph (a) clarifies that
HOS limitations do not excuse a
railroad from conducting PAT or
reasonable suspicion testing. These
types of tests must be performed
regardless of HOS requirements because
they are triggered by specific
unpredictable events that indicate the
possible existence of a safety issue
related to alcohol or drug use. When an
event occurs that mandates PAT or
reasonable suspicion testing,
determining the cause of the event is of
greater safety concern than compliance
with the HOS requirements. Thus, this
proposed paragraph provides that if a
railroad establishes that excess service
under the HOS laws is caused solely by
the railroad’s need to complete required
PAT or reasonable suspicion testing,
that the railroad used reasonable due
diligence in completing the required
PAT or reasonable suspicion testing,
and that the railroad completed the
collection within the time limits of
§ 219.203(d) (for PAT testing) or
§ 219.305 (for reasonable suspicion
testing), FRA will not take enforcement
action for the excess service. The
railroad would, however, still be
required to file an excess service report
While technically a new part 219
requirement, this language would
incorporate past FRA guidance on the
impact of PAT testing and reasonable
suspicion testing on HOS limitations.
See Compliance Manual 2.3.
Paragraph (b)
As with PAT and reasonable
suspicion testing, reasonable cause
testing is triggered by the occurrence of
a specific unpredictable event (a train
accident, train incident, or rule
violation), the cause or severity of
which may be linked to a safety issue
involving alcohol or drug use by a
regulated employee. FRA would
therefore not pursue an HOS violation if
the excess service was caused solely by
a railroad’s decision to conduct
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reasonable cause testing, so long as the
railroad used reasonable due diligence
to complete the test and did so within
the time limitations of proposed
§ 219.407 (i.e., within eight hours of the
observation, event or supervisory
notification that was the basis for the
test). The crucial difference between
incurring excess service to conduct PAT
or reasonable suspicion testing as
compared to reasonable cause testing, is
that reasonable cause testing, unlike
both PAT and reasonable suspicion
testing, is authorized, but not required
by part 219. For this reason, proposed
paragraph (b) clarifies that a railroad
would be allowed to, but is not required
to, exceed HOS limitations to perform
reasonable cause testing. The railroad
would, however, still be required to file
an excess service report.
Paragraph (c)
Proposed paragraph (c) clarifies that
random tests must be handled
differently from the other types of tests
discussed above, since random tests are
timed and planned in advance. When
conducting random alcohol and drug
tests, compliance with HOS
requirements must take precedence
since the timing of a random test is
predictable and is not triggered by a
potential safety concern. With one
exception, railroads must schedule
random tests with sufficient time for
completion within an employee’s HOS
limitations. The only exception to this
general rule is if an employee’s random
drug test requires additional time to
complete because of the need to conduct
a directly observed collection (see
§ 40.67). In such direct observation
situations, FRA would allow completion
of the test to exceed the employee’s
HOS limitations not because the random
test was unplanned, but because the
occurrence of the direct observation was
unpredictable and indicative of the fact
that the employee may be trying to cheat
the test. As with the other types of tests
described above, to not have an HOS
penalty assessed, a railroad must show
that any excess service was caused
solely by the need to respond to a direct
observation, must complete the random
test as soon as practicable, and must
report any excess service to FRA. FRA
would also amend this paragraph to
prohibit a railroad from placing a
regulated employee on duty solely for
the purpose of conducting a Federal
random test.
Paragraph (d)
Similar to proposed paragraph (c)’s
requirements related to random tests,
proposed paragraph (d) would clarify
that railroads must schedule follow-up
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tests, which are also planned events,
with sufficient time to allow testing to
be completed within a covered
employee’s HOS limitations. A railroad
may place an employee on-duty solely
for the purpose of a follow-up test if the
employee is subject to being called for
duty, with the caveat that an employee
may be placed on duty for a follow-up
alcohol test only if the employee’s
return-to-duty agreement requires total
abstention from alcohol use. This
exception is necessary because absent
such an agreement, an employee may
legitimately use alcohol when not
prohibited by § 219.101 (that is, when
not on-duty, not within four hours of
reporting for duty, and not after
receiving notice to report). In such a
case, a follow-up test for alcohol could
result in an employee being penalized
for legitimate alcohol use. FRA
anticipates few instances where an
employee will be placed on-duty solely
for the purpose of follow-up testing, but
a railroad that chooses to do so must
document why the action was necessary
and provide the documentation to FRA
upon request.
Section 219.23—Railroad Policies
This section establishes the
requirements for a railroad’s Federal
alcohol and drug testing policy. FRA is
proposing to clarify the language in this
section governing the following
requirements: (1) the providing of
written notice to a regulated employee
whenever a Federal alcohol or drug test
is required under part 219; (2) the use
of DOT forms for FRA-mandated alcohol
and drug tests; and (3) the educational
materials employers must provide to
employees. FRA would also conform the
section’s structure to reflect
amendments proposed in this section
and elsewhere in part 219.
Paragraph (a)
Paragraph (a) currently requires a
railroad to provide ‘‘clear and
unequivocal written notice’’ to an
employee when an alcohol or drug test
is being required under FRA
regulations. While the use of DOT
testing forms satisfies this notice
requirement, FRA is proposing several
clarifications. First, FRA is proposing to
amend this paragraph to clarify that the
written notice must be provided by
either a railroad employee or a
designated service agent (e.g., by a
collector providing a DOT form to an
employee for an FRA random test) and
must include the basis for the test (this
requirement is currently contained in
paragraph (b) of this section). Second,
FRA would replace the phrase
‘‘violation of a specified operating/
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43849
safety rule enumerated in subpart D of
this part’’ with the simpler phrase
‘‘reasonable cause.’’ Finally, FRA would
clarify that the notice requirements for
PAT tests must be handled differently
since notice of PAT tests may be
provided only through use of a FRAspecific PAT testing form.
Paragraph (b)
The last sentence of current paragraph
(b) provides that use of a DOT form is
prohibited for a non-Federal test. This
provision, amended to clarify that use of
the DOT form is also prohibited for PAT
testing, remains in revised paragraph
(b). FRA also proposes to amend this
paragraph to specify that the FRA PAT
testing form may not be used for any
other type of test. This is not a new
requirement, but is currently found in
the final sentence of paragraph (c) of
this section.
Paragraph (c)
Proposed paragraph (c) discusses
various requirements related to part 219
educational materials that must be
provided to regulated employees. These
requirements are found in existing
paragraph (d) of this section. FRA is
proposing minor amendments to clarify
the language in this section and to
provide railroads greater flexibility in
making the required educational
materials available to employees. As
proposed, a railroad could post these
materials continuously in an easily
visible location at a designated reporting
place for regulated employees, provided
the railroad also supplies copies to any
labor organizations representing a class
or craft of regulated employees (if
applicable). Alternatively, a railroad
could provide these materials in some
other manner that ensures that regulated
employees can find and access them,
such as posting them on a Web site
accessible to all regulated employees.
Through longstanding informal
guidance, FRA has allowed railroads to
post educational materials in easily
visible locations. Thus, this proposed
amendment would incorporate this
guidance into the rule text. Because
MOW employees are going to be newly
subject to part 219 requirements and
may be unfamiliar with the regulation,
for three years after the effective date of
the final rule, FRA is proposing to
require a hard copy of the educational
materials to be provided to each MOW
employee. FRA is also proposing new
language in this paragraph specifying
that the requirement to provide
educational materials to regulated
employees would not apply to
applicants for a regulated service
position who either refuse to participate
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in pre-employment testing or who have
a pre-employment test result indicating
a part 219 violation. This requirement is
currently in § 219.104(a)(ii), but FRA
believes it belongs more appropriately
in this section, as it discusses the
applicability of § 219.23.
Paragraph (d)
Currently, paragraph (e) of this
section contains requirements governing
the content of the educational materials
that a railroad must provide to its
covered employees. FRA is proposing to
move these requirements to proposed
paragraph (d). New language in the
introductory text of paragraph (d) would
clarify that the educational materials
that must be made available to
employees are the materials that are
specified in proposed paragraph (c) of
this section.
While paragraph (e)(1) currently
requires training materials to include
the ‘‘identity’’ of the person designated
to answer employee questions about the
materials, proposed paragraph (d)(1)
would include this requirement but
replace the word ‘‘identity’’ with
‘‘position title, name, and means of
contacting’’ that individual. Similarly,
language currently in paragraph (e)(2)
would be moved to proposed paragraph
(d)(2) and amended to require
educational materials to identify each
class or craft subject to part 219 (e.g.,
engineers, conductors, MOW
employees, signal maintainers, train
dispatchers) instead of using less
specific terms such as ‘‘regulated
employees’’ or ‘‘covered employees.’’
Language currently found in
paragraph (e)(3) would be amended in
proposed paragraph (d)(3) to replace
‘‘safety-sensitive’’ with ‘‘regulated
service’’ and to require the educational
materials provided to regulated
employees to distinguish between FRA’s
prohibitions on alcohol use and on drug
use. FRA proposes to distinguish
between the two prohibitions by
explicitly stating that a railroad must
provide sufficient information about
regulated service that regulated
employees perform so that a regulated
employee knows when he or she must
be in compliance with part 219’s
prohibition regarding alcohol use. This
amendment is necessary because unlike
part 219’s prohibition on alcohol use,
which applies when an employee is on
duty and required to perform or is
available to perform regulated service,
FRA’s prohibitions on drug use apply at
all times, not just when a regulated
employee is on duty and performing (or
subject to performing) regulated service.
Existing paragraph (e)(5) would be
further amended in proposed paragraph
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(d)(5) to simplify the reference to
reasonable cause testing authority
provided by subpart E.
FRA would also move the language in
paragraph (e)(12) to proposed paragraph
(d)(12) and amend it to require railroads
to provide educational materials on both
alcohol and drug misuse.
Section 219.25—Previous Employer
Drug and Alcohol Checks
This new section would direct
railroads and contractors to § 40.25,
which requires employers to request
and review the drug and alcohol testing
record of any individual they intend to
use to perform DOT safety-sensitive
functions. This requirement applies
only to a railroad or contractor’s direct
employees. For example, a railroad
would not be required to check the
alcohol and drug testing record of the
direct employees of a contractor, since
this responsibility would belong to the
contractor. While § 219.701 requires all
testing under part 219 (except for PAT
testing under subpart C) to be completed
in accordance with the requirements of
part 40, FRA’s experience has been that
railroads sometimes overlook the drug
and alcohol background check required
by § 40.25. The proposed amendment
would address this concern by
specifically reminding railroads and
contractors of the § 40.25 requirement.
This section would also remind
railroads that they must comply with
the prior alcohol and drug conduct
requirements of § 240.119(c) for certified
locomotive engineers and § 242.115(e)
for certified conductors. Under these
sections, a railroad determining whether
a person may be or may remain certified
as a locomotive engineer or conductor
must consider certain part 219
violations and refusals that occurred
within a period of sixty consecutive
months (five years) prior to the review
of the individual’s records. As with the
reference to § 40.25, these references to
parts 240 and 242 are intended only to
remind railroads of their existing
responsibilities, not to make any
substantive changes.
Subpart B—Prohibitions
Section 219.101—Alcohol and Drug Use
Prohibited
Paragraph (a)(1)
Section 219.101 contains FRA’s
general prohibitions on the use and
possession of alcohol and drugs by
railroad employees. Currently,
paragraph (a)(1) prohibits the use and
possession of both alcohol and
controlled substances while a covered
employee is assigned to perform
covered service. Existing § 219.103
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provides an exception to the prohibition
on the use and possession of controlled
substances, so long as certain conditions
are met regarding the controlled
substance’s prescription or
authorization by a medical practitioner.
While not specifically proposed in
this NPRM, FRA is soliciting public
feedback on whether it should consider
removing part 219’s longstanding
prohibitions against the on-duty
possession of alcohol and controlled
substances. These prohibitions were
originally intended to make FRA’s
alcohol and drug requirements similar
to those in Rule G, a longstanding
railroad operating rule which prohibited
the on-duty use and possession of
alcohol, and was later amended to
address the use and possession of
controlled substances. See 49 FR 24266,
June 12, 1984. As currently written,
however, the FRA’s prohibition against
the possession of controlled substances
applies not only to the possession of
illicit drugs (e.g., PCP, cocaine), but also
to many prescription drugs which have
legitimate medical uses (e.g., muscle
relaxants, pain relievers), but have been
classified by the Drug Enforcement
Administration (DEA) as controlled
substances because of their potential for
abuse. Therefore, strictly read, FRA’s
prohibition against the on-duty
possession of all controlled substances
would prohibit the on-duty possession
of many common prescription drugs,
unless that possession was incident to
proper use of the prescribed drug as
provided for by § 219.103.
Similarly, because of its roots in Rule
G, part 219 currently prohibits the onduty possession of alcohol. Strictly read,
this prohibition would ban the on-duty
possession of many commonly sold
over-the-counter cough and cold
remedies that contain alcohol. FRA
solicits comment on whether part 219
should continue to prohibit the on-duty
possession of all controlled substances
and alcohol, noting that no other DOT
agency prohibits the on-duty possession
of both controlled substances and
alcohol.
While FRA does not want to prohibit
the use of legal prescription drugs or
over-the-counter drugs by regulated
employees, provided that such use
complies with the requirements of
§ 219.103 (discussed below), FRA is
specifically seeking public comment on
whether removing the prohibitions on
possession of controlled substances
and/or alcohol would have an adverse
effect on railroad safety. Removing the
prohibition on possessing controlled
substances or alcohol would not affect
a railroad’s ability to take action under
its own authority if a railroad employee
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was found in possession of alcohol or a
controlled substance in violation of a
railroad operating rule, such as Rule G.
See id.
FRA would also amend paragraph
(a)(1) to prohibit the use or possession
of alcohol or any controlled substance
by regulated employees while they are
‘‘on-duty and subject to performing
regulated service for a railroad.’’ This
proposed language is intended to clarify
that this prohibition applies whenever a
regulated employee is subject to
performing regulated service for a
railroad, not only when the employee is
actually performing regulated service.
Paragraph (a)(4)
Paragraph (a)(4) applies to regulated
employees who have a breath or blood
alcohol concentration of 0.02 or greater
but less than 0.04 on a Federal test.
Specifically, current paragraph (a)(4)
prohibits an employee whose Federal
test indicates an alcohol concentration
of 0.02 or greater, but less than 0.04,
from performing covered service until
the start of his or her next regularly
scheduled duty period, but not less than
eight hours from the administration of
the test. Since an alcohol concentration
of 0.02 or greater but less than 0.04 is
not a violation of § 219.101, an alcohol
test result in this range may not be used
for locomotive engineer or conductor
certification purposes under part 240 or
part 242. FRA is proposing to
redesignate the current text of paragraph
(a)(4) as paragraph (a)(4)(i), and add a
new paragraph (a)(4)(ii) to clarify that a
railroad is not prohibited from taking
further action under its own authority
against an employee whose Federal test
result indicates an alcohol
concentration of 0.02 or greater but less
than 0.04, since a result in this range
indicates the presence of alcohol in the
employee’s system. This new language
is taken from FRA guidance and is
intended for clarification purposes only,
not to make any substantive change to
the regulatory requirement. See
Compliance Manual 3.5.2.
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Paragraph (a)(5)
Currently, paragraph (a)(5) states that
a test result with an alcohol
concentration below 0.02 must be
considered negative and is not evidence
of alcohol misuse. It also provides that
a railroad may 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, and that a railroad may
compel cooperation in additional breath
or body fluid testing only if it has an
independent basis for doing so.
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FRA is proposing to add new
language to this paragraph clarifying
that an independent basis for
subsequent company authority alcohol
testing would exist only when, after a
negative FRA reasonable suspicion
alcohol test result, an employee exhibits
additional or continuing signs and
symptoms of alcohol use. (A railroad
may not, however, conduct an
additional FRA test in such situations.)
If an independent basis for testing exists
and a subsequent company authority
alcohol test indicates a violation of a
railroad alcohol operating rule, the
company test result is independent of
the Federal test result and must stand
on its own merits. FRA is proposing this
amendment, which is taken from FRA
guidance, to allow railroads to perform
company authority alcohol tests in the
infrequent and limited circumstances
where an employee continues to exhibit
signs and symptoms of alcohol use even
after the employee’s FRA test result
indicates an alcohol concentration
below 0.02.
Section 219.104—Responsive Action
Section 219.102—Prohibition on Abuse
of Controlled Substances
Paragraph (a)
Currently, this section prohibits
employees performing covered service
from using a controlled substance at any
time, except as permitted by § 219.103.
FRA’s only proposed amendment to this
section would substitute the term
‘‘regulated employee’’ for ‘‘employee’’ to
reflect the expansion of this part to
cover employees who perform MOW
activities.
Section 219.103—Use of Prescription
and Over-the-Counter Drugs
Despite its title, ‘‘Prescribed and overthe-counter drugs,’’ § 219.103 currently
covers only a small portion of
prescription drugs and no over-thecounter (OTC) drugs, since most
prescription and OTC drugs are not
Schedule II–V controlled substances.
FRA is not proposing any changes to
this section, which has not been
changed since its implementation in
1985. Instead, FRA is asking for
information in response to several
questions. How do railroads administer
§ 219.103’s requirements? Does this
section effectively address the safety
concerns raised by the use of
prescription and OTC drugs by
individuals subject to part 219? What, if
any, amendments should FRA make to
address the increase in prescription and
OTC drug use over the last 25 years? Are
any amendments necessary to address
FRA’s proposed addition of employees
who perform MOW activities?
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FRA is proposing both clarifying and
structural changes to this section, which
addresses what responsive action a
railroad must take when it determines
that an employee subject to part 219 has
either violated certain provisions part
219 (or the alcohol or drug misuse rule
of another DOT agency) or refused to
provide breath or body fluid specimens
under a mandatory provision of the
regulation. Specifically, FRA proposes
to clarify that: (1) The responsive action
requirements of this section (except for
the right to a hearing under proposed
paragraph (c) do apply to a regulated
service applicant who has refused to
take a pre-employment test, as
determined by the provisions of part 40;
(2) the notice a railroad must provide to
a regulated employee before removing
him or her from regulated service must
be in writing; and (3) that regulated
employees have the right to request a
hearing under this section following an
alleged violation of § 219.101 or
§ 219.102.
FRA proposes to add a new sentence
to paragraph (a)(2) specifying that the
procedures and rights in this section
apply to reasonable cause tests
conducted under FRA authority, but not
to reasonable cause tests conducted
under a company’s own authority. This
would not be a substantive change, only
a reminder to railroads of one important
distinction between a reasonable cause
test conducted under FRA authority and
one conducted under company
authority. FRA also proposes to remove
the word ‘‘mandatory’’ as used in
paragraph (a)(2) to describe the
provisions under which a railroad may
require an employee to participate in
alcohol or drug testing, since neither
reasonable cause or pre-employment
alcohol testing are mandatory under
part 219. If, however, a regulated
employee (or applicant for regulated
service) refuses a reasonable cause or
pre-employment alcohol test that has
been conducted under FRA authority,
the employee would be subject to the
consequences for unlawful refusals
found in this section.
Currently, paragraph (a)(3) explains
that the procedures and rights in
§ 219.104 and the informational
requirements in § 219.23 do not apply:
(1) When a test is conducted under
other than part 219 authority (e.g., a test
under a company medical policy); and
(2) when an applicant refuses to
participate in a pre-employment test or
otherwise has a positive preemployment test indicating the misuse
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of alcohol or controlled substances. FRA
is proposing to move the language
addressing § 219.23 into § 219.23 itself,
and to move the remainder of this
paragraph to a new paragraph (e), which
would contain provisions specifically
discussing the applicability of this
section.
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Paragraph (b)
Currently, paragraph (b) requires a
railroad, prior to ‘‘withdrawing’’ an
employee from covered service, to
provide notice to the employee of the
reason for his or her withdrawal. FRA
would clarify that this notice must be in
writing. A railroad may initially give an
employee verbal notice, provided the
railroad follows up as soon as
practicable with an official written
notice. For consistency of language
throughout this section, FRA is also
proposing to replace ‘‘withdrawing’’ in
this paragraph with the term
‘‘removing.’’ FRA would also require the
notice to inform the employee that he or
she is prohibited from performing any
DOT safety-sensitive functions until he
or she successfully completes the
evaluation, referral, and treatment
processes required for return-to-duty
under part 40. FRA believes this
information would discourage
employees from job hopping to try to
avoid their return-to-duty requirements.
A railroad may also use this notice to
comply with § 40.287, which requires
an employer to provide to each
employee who violates a DOT drug and
alcohol regulation a listing of SAPs
readily available to the employee and
acceptable to the employer, with names,
addresses, and telephone numbers.
Paragraph (c)
Paragraph (c)(1) currently specifies
that employees can request a hearing if
they ‘‘[deny] that the test result is valid
evidence of alcohol or drug use
prohibited by this subpart.’’ FRA is
proposing to remove this phrase in to
make clear that the removal from duty
and hearing procedures in this section
also apply to violations of §§ 219.101 or
219.102 that have not been detected
through testing (e.g., a refusal or a
violation of the prohibition against
possessing alcohol). This proposed
amendment would clarify that an
employee may demand a hearing for any
violation of §§ 219.101 or 219.102,
regardless of whether the alleged
violation was based on a test result.
Similarly, FRA would amend
paragraph (c)(4) to clarify that the
statement that part 219 does not limit
the procedural rights or remedies
available (e.g., at common law or
through an applicable bargaining
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agreement) to an employee, applies to
all violations of part 219, not just those
based on test results.
Paragraph (d)
Currently, paragraph (d) provides that
a railroad must comply with ‘‘the
return-to-service and follow-up testing
requirements, and the Substance Abuse
Professional [SAP] conflict-of-interest
prohibitions, contained in §§ 40.305,
40.207, and 40.209 of this title.’’ FRA
would simplify this language by
deleting these section citations and
referring generally to the requirements
in part 40 for SAP evaluations, the
return-to-duty process, and follow-up
testing.
Paragraph (e)
FRA is proposing to add a new
paragraph (e), which would clarify
when the requirements of this section
do not apply.
Paragraph (e)(1) would contain the
language currently in paragraph (a)(3)(i)
stating that the requirements of this
section do not apply to actions based on
alcohol or drug testing that is not
conducted under part 219.
Paragraph (e)(2) would clarify that the
requirements in this section do not
apply to Federal alcohol tests with a
result less than 0.04. As discussed above
in the analysis of § 219.101(a)(4),
because a Federal alcohol test with a
result below 0.04 is not a violation of
§ 219.101, a railroad is not required to
take responsive action under this
section. Under § 219.101(a)(4), the only
consequence for a Federal test result
between 0.02–0.039 is removal of the
employee from regulated service for a
minimum of eight hours. (This is
because a test result in this range is
evidence of alcohol use but not of
impairment.) A railroad must therefore
use its own authority for any other
actions (e.g., any return-to-duty or
follow-up tests for an alcohol test result
below .04 must be administered under
company authority).
Paragraph (e)(3) would contain new
language clarifying that this section also
does not apply to a locomotive engineer
or conductor who has had an off-duty
conviction for, or a completed state
action to cancel, revoke, suspend, or
deny a motor vehicle-driver’s license for
operating while under the influence of
or impaired by alcohol or a controlled
substance. While parts 240 and 242
require an individual with such an offduty conviction to undergo a substance
abuse evaluation, an off-duty conviction
is not a violation of § 219.101 or
§ 219.102.
Paragraph (e)(4) would contain new
language clarifying that this section
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does not apply to applicants who
decline to participate in preemployment testing and withdraw the
application for employment prior to the
commencement of the test (the
determination of when a test
commences is made according to the
provisions of part 40).
Paragraph (e)(5) would clarify that the
hearing procedures in paragraph (c) of
this section do not apply to an applicant
who tests positive or refuses a DOT preemployment test.
Paragraph (e)(6) would clarify that an
applicant who tests positive or refuses
any DOT pre-employment test must
complete the return-to-duty
requirements in paragraph (d) before
performing DOT safety-sensitive
functions subject to the alcohol and
drug regulations of any DOT agency.
Under § 40.25(j), an employee who
tested positive or refused to test cannot
perform any DOT safety-sensitive
functions until and unless the employee
documents successful completion of the
part 40 return-to-duty process.
Section 219.105—Railroad’s Duty To
Prevent Violations
Paragraph (a)
Currently, paragraph (a) of this
section provides that a railroad may not
with ‘‘actual knowledge’’ permit an
employee to remain or go on duty in
covered service in violation of either
§ 219.101 or § 219.102. FRA is
proposing to clarify when a railroad is
deemed to have ‘‘actual knowledge’’ of
such a violation. As proposed, actual
knowledge would be limited to the
knowledge of a railroad manager or
supervisor in the employee’s chain of
command. A manager or supervisor
would be considered to have actual
knowledge of a violation when he or
she: (1) Personally observes an
employee violating part 219 by either
using or possessing alcohol, or by using
drugs (observing potential signs and
symptoms of alcohol/drug use would
not by itself constitute actual
knowledge); (2) receives information
regarding a violation from a previous
employer as part of a § 40.25
background check; or (3) receives an
employee’s admission of prohibited
alcohol possession or use or drug use.
Paragraph (b)
Although FRA is not proposing to
amend paragraph (b) of this section,
FRA is taking this opportunity to clarify
what ‘‘due diligence’’ means in this
paragraph’s requirement for a railroad to
‘‘exercise due diligence to assure
compliance with §§ 219.101 and
219.102.’’ When FRA proposed to add
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new paragraph (b), FRA stated its
purpose as follows:
to describe the limitations on railroad
liability with respect to the prevention
of the violations of the Subpart B
prohibitions. . . . In summary, the
provisions require the railroad to exercise a
high degree of care to prevent violations, but
do not impose liability where, despite such
efforts, an individual employee uses alcohol
or drugs in a manner that is prohibited (and
the railroad is not aware of the conduct).
54 FR 39649, Sep. 27, 1989. Paragraph
(b) therefore places an affirmative duty
on a railroad to use due diligence to
prevent violations of § 219.101 or
§ 219.102, and a railroad that can show
it has done so will have only limited
liability under part 219 for the
violations of its individual employees.
Conversely, a railroad could be found to
have violated § 219.105(b) if it did
nothing after becoming aware that a
regulated employee had an active
substance abuse disorder that could
manifest itself in actual violations of
§ 219.101 or § 219.102. The due
diligence a railroad most exercise to
prevent violations will vary on a caseby-case basis and railroads uncertain
how this provision may apply in certain
situations are encouraged to contact
FRA for guidance.
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Paragraph (c)
FRA is proposing to add new a
paragraph (c) to this section, which
would clarify that a railroad’s alcohol
and/or drug use education, prevention,
identification, intervention, or
rehabilitation programs or policies must
be designed and implemented in such a
way that they do not circumvent or
otherwise undermine the requirements
of part 219. It would also clarify that a
railroad must make all documents, data,
or other records related to such
programs or policies available to FRA
upon request. This paragraph would not
establish a new power for FRA, but
would merely clarify and explain FRA’s
authority to conduct inspections and
investigations under 5 U.S.C. 20107.
Rule G Observations and Public
Comment Requested
Currently, FRA guidance directs a
railroad to require its supervisors to
make and record a specified number of
observations of covered employees for
compliance with its operating rule on
alcohol and/or drug prohibitions (e.g.,
Rule G), as part of its part 217
operational tests and inspections
program. See generally § 217.9. These
observations are often referred to as
‘‘Rule G observations.’’ At a minimum,
FRA guidance states that each quarter a
railroad should conduct a number of
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part 217 observations that equals the
number of its covered employees. For
example, if a railroad has 100 covered
employees, it should conduct at least
100 observations per quarter. See
Compliance Manual 11.3.3.2.
FRA requests public comment on
whether § 219.105 should be amended
to incorporate this guidance regarding
Rule G observations. FRA is particularly
interested in comment regarding both
the safety benefits of requiring a specific
number of Rule G observations and the
costs and burdens of such a
requirement. Also, to what extent are
these observations already being
performed throughout the railroad
industry? FRA may ultimately decide to
include a Rule G observation
requirement in a final rule.
Section 219.107—Consequences of
Unlawful Refusal
Currently, this section provides that
an employee who refuses to provide
breath or body fluid specimens when
required by a mandatory provision of
part 219 must be disqualified from
performing covered service for nine
months. FRA is proposing several
clarifying amendments to this section.
Paragraph (a)
In paragraph (a), FRA would replace
the term ‘‘disqualified’’ with
‘‘withdrawn’’ to distinguish between the
withdrawal requirement of this section
and the disqualification requirements
for certified engineers in part 240 and
certified conductors in part 242.
(Similar amendments would also be
made to paragraphs (c)–(e) of this
section.) FRA would also clarify that
provision of an adulterated or
substituted specimen, as defined in part
40, is a refusal under part 219 and
subject to the withdrawal requirements
of this section. FRA would also remove
the word ‘‘mandatory’’ which may be
misleading because neither reasonable
cause nor pre-employment alcohol
testing are mandatory for railroads in
part 219. However, a regulated
employee (or applicant for regulated
service) who refuses a reasonable cause
test or a pre-employment alcohol test
conducted under FRA authority has
always been subject to the consequences
for unlawful refusals found in this
section.
Paragraph (b)
Currently, paragraph (b) requires a
railroad, prior to withdrawing an
employee from covered service, to
provide notice to that employee both of
the reason for his or her withdrawal and
of the procedures available to the
employee under § 219.104(c) to request
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43853
a hearing. FRA proposes to amend this
paragraph to clarify that this notice
must be in writing. A railroad may
provide an employee with an initial
verbal notice, but must follow this up as
soon as practicable with an official
written notice.
Paragraph (c)
Currently, paragraph (c) generally
provides that a railroad with notice of
an employee’s withdrawal from covered
service may not authorize or permit the
employee to perform such service on its
behalf. FRA would revise this paragraph
to clarify that this withdrawal provision
applies ‘‘only’’ to an employee’s
performance of regulated service, and
not to the employee’s performance of
non-regulated service. FRA would also
add an additional sentence clarifying
that during the period of withdrawal, a
railroad with notice of the withdrawal
may not authorize or permit the
employee to perform any regulated
service on its behalf.
Paragraph (e)
Currently, paragraph (e) states that
upon expiration of a mandatory nine
month withdrawal period, an employee
may return to covered service only
under the conditions specified in
§ 219.104(d) and must be subject to
follow-up testing as provided by that
section. Because § 219.104(d) also
requires return-to-duty testing, FRA
proposes to amend paragraph (e) to
clarify that the employee must also be
subject return-to-duty testing. This
proposed amendment is not intended to
substantively change the existing
requirement, only to clarify that
§ 219.104(d) requires both return-toduty and follow-up testing.
Subpart C—Post-Accident Toxicological
Testing
Section 219.201—Events for Which
Testing is Required.
Paragraph (a)
Currently, this section defines the
types of accidents or incidents for
which PAT testing is required and states
that a railroad must make a good faith
determination as to whether an event
meets the criteria for PAT testing.
Specifically, existing paragraph (a)
requires a railroad to conduct PAT
testing after the following qualifying
events: (1) major train accidents; (2)
impact accidents; (3) fatal train
incidents; and (4) passenger train
accidents. FRA is proposing both to
amend the criteria defining some of
these qualifying events and to create a
new qualifying event requiring PAT
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testing, ‘‘Human-Factor Highway-rail
Grade Crossing Accident/Incident.’’
• Major Train Accidents
Paragraph (a)(1) defines a ‘‘major train
accident’’ as any train accident meeting
the part 225 reporting threshold that
involves either: (1) a fatality; (2) a
hazardous material release accompanied
by either an evacuation or a reportable
injury caused by the release; or (3)
damage to railroad property of
$1,000,000 or more. (As discussed in the
section-by-section analysis for § 219.5,
FRA is proposing a new part 219
definition for ‘‘evacuation,’’ to clarify
the meaning of that term as used in the
definition of ‘‘major train accident.’’)
FRA is proposing two substantive
amendments to the criteria for a major
train accident.
First, FRA would clarify that the
fatality in a major train accident can be
‘‘to any person,’’ regardless of whether
the person is an employee of the
railroad. For example, a train accident
meeting the reporting threshold would
qualify as a major train accident
requiring PAT testing if it resulted in a
fatality to an uninvolved bystander near
the track.
Second, and as discussed in Section
V.D of this preamble, FRA would
increase the property damage threshold
for major train accidents from
$1,000,000 to $1,500,000. On November
19, 2008, the Association of American
Railroads (AAR) petitioned FRA to
increase the damage threshold for major
train accidents to $1,500,000 and the
damage threshold for impact accidents
to $250,000.16 FRA last increased the
property damage thresholds for major
train accidents and impact accidents in
January 1, 1995, when FRA increased
the threshold for major train accidents
from $500,000 to $1,000,000, and the
threshold for impact accidents from
$50,000 to $150,000. See 59 FR 7452,
Feb. 15, 1994). In its petition, the AAR
asserted that these thresholds needed to
be raised again to account for inflation
since 1994. In calculating its proposed
thresholds, the AAR measured inflation
both by the rail cost recovery index and
the Gross Domestic Product, assuming
an annual 4 percent increase.
FRA agrees with AAR that the
property damage threshold for major
train accidents should be increased to
$1,500,000 to account for inflation, and
is proposing to increase that threshold
accordingly. FRA utilized publically
available price indices from the Bureau
of Labor Statistics for comparison and
16 A copy of AAR’s petition is available for review
in the public docket of this rulemaking (docket no.
FRA–2009–0039).
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consistency: the Producer Price Index—
All Commodities 17 and the Consumer
Price Index—All Urban Consumers
Inflation Calculator,18 and also
extrapolated an index for comparison
from part 225, Appendix B—Procedure
for Determining Reporting Threshold.
FRA found that all three indices
supported raising the major accident
threshold from $1,000,000 to
$1,500,000.
• Impact accidents
As discussed above, AAR also asked
FRA to increase its railroad property
damage threshold for impact accidents
from $150,000 to $250,000. After
consideration, FRA has decided to
maintain its current impact accident
threshold of $150,000. Doing so will
allow inflation to increase the number
of events that qualify for PAT testing as
impact accidents, which involve human
error more than other types of PAT
testing events. (For instance, impact
accidents such as collisions between
trains are usually due to human error.
In contrast, major train accidents such
as derailments are often due to track
defects.) Conducting PAT testing for
more impact accidents will allow FRA
to identify a greater number of events
involving human factor errors caused or
contributed to by the misuse of alcohol
or drugs.
While FRA is proposing to amend the
§ 219.5 definition of ‘‘impact accident’’
to remove the exceptions for raking
collisions and derailment collisions, as
discussed above, FRA is not proposing
any amendments to the ‘‘impact
accident’’ testing criteria found in this
section.
• Fatal Train Incident
Currently, paragraph (a)(3) defines a
‘‘fatal train incident’’ as any train
incident that results in a fatality to an
on-duty railroad employee and that
involves the operation of on-track
equipment. FRA proposes to clarify that
to qualify as a fatal train incident, the
fatality must have occurred within 12
hours of the train incident, although the
deceased employee need not have been
performing regulated service at the time
of the train incident. For example, the
criteria for a fatal train incident would
be met if the operation of on-track
equipment involved a fatality to a
mechanical employee, regardless of
whether the employee was performing
regulated service at the time of the train
incident, so long as the fatality occurred
17 Bureau of Labor Statistics, Producer Price
Index-Commodities, available at https://
data.bls.gov/cgi-bin/surveymost.
18 Bureau of Labor Statistics, Consumer Price
Index, available at https://www.bls.gov/CPI/.
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within 12 hours of the train incident’s
occurrence.
• Passenger Train Accident
FRA is proposing to amend the
definition of ‘‘passenger train accident’’
in this paragraph to be more consistent
with the rest of this section. No
substantive effects are intended.
• Human-Factor Highway-Rail Grade
Crossing Accident/Incident
Currently, § 219.201(b) prohibits PAT
testing after a ‘‘collision between
railroad rolling stock and a motor
vehicle or other highway conveyance at
a rail/highway grade crossing,’’ even if
the collision would otherwise qualify as
a PAT testing event. As mentioned in
section V.E of this preamble, FRA
would narrow this exception by creating
a new qualifying event, ‘‘Human-factor
highway-rail grade crossing accident/
incident’’ in paragraph (a)(5), which
would specify when PAT testing would
be required after a qualifying humanfactor highway-rail grade crossing
accident/incident. (In § 219.203 below,
FRA discusses who would be subject to
PAT testing after a qualifying humanfactor highway-rail grade crossing
accident/incident.)
This proposal is based in part on
NTSB Recommendation R–01–17, in
which the NTSB recommended that
FRA narrow its exception for highwayrail grade crossing accidents to require
PAT testing of any railroad signal,
maintenance, or other employee whose
actions at or near a grade crossing may
have contributed to the cause or severity
of a highway-rail grade crossing
accident. The NTSB based this
recommendation on its investigation of
a 1999 highway-rail grade crossing
accident at McLean, Illinois, in which
an Amtrak train collided with an
automobile, killing both the automobile
driver and a passenger. The NTSB found
that the automobile driver had no
warning that a train was approaching,
since the flashing lights and gates at the
crossing had failed to activate. The
NTSB concluded that the probable
cause of this activation failure was a
signal maintainer who, after taking the
crossing equipment out of service for
maintenance, had made repairs and
then left without restoring the
equipment back to operating status.
Although the maintainer was directly
responsible for the signal and gate
failure, he was not subject to PAT
testing because of the grade crossing
control exception. See NTSB, Railroad
Accident Report: Collision of Amtrak
Train 304–26 with a Highway Vehicle at
a Highway-Rail Grade Crossing McLean,
Illinois September 26, 1999, NTSB/
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RAR–01/03, PB2001–916303, Sep. 18,
2001, at v, available at https://
www.ntsb.gov/doclib/reports/2001/
RAR0103.pdf. Since the 1999 McLean
collision, FRA has investigated other
highway-rail grade crossing accidents in
which the actions of railroad employees
and contractors may have played a role.
See FRA, Accident Investigation Report,
HQ–2005–106, at 4 (available at https://
www.fra.dot.gov/eLib/Find#p1_z5_lAC_
kHQ-2005-106) and Accident
Investigation Report, HQ–2006–12, at 4
(available at https://www.fra.dot.gov/
eLib/Find#p1_z5_lAC_kHQ-2006-12).
FRA’s proposed new qualifying event
termed ‘‘human-factor highway-rail
grade crossing accident/incident’’
would be in new paragraph (a)(5).
Under proposed paragraph (a)(5)(i), PAT
testing would be required after a
highway-rail grade crossing accident/
incident whenever a regulated employee
interfered with the normal functioning
of a grade crossing signal system, in
testing or otherwise, without first
providing for the safety of highway
traffic that depends on the normal
functioning of such a system. Because
this language is adapted from the
prohibition against such interference
contained in FRA’s grade crossing
regulation (see 49 CFR 234.209), a grade
crossing accident/incident involving a
§ 234.209 violation would qualify as a
human-factor highway-rail grade
crossing accident/incident for PAT
testing.19 See FRA’s Signal & Train
Control Compliance Manual for
additional guidance on the meaning of
interference.20
Under proposed paragraphs (a)(5)(ii)
and (a)(5)(iii), PAT testing after a
highway-rail grade crossing accident/
incident would be required if the event
19 Section 234.209(b) states that ‘‘interference’’
includes (but is not limited to): (1) trains,
locomotives or other railroad equipment standing
within the system’s approach circuit, other than
normal train movements or switching operations,
where the warning system is not designed to
accommodate those activities; and (2) not providing
alternative methods of maintaining safety for the
highway user while testing or performing work on
the warning systems or on track and other railroad
systems or structures which may affect the integrity
of the warning system.
20 According to the Signal & Train Control
Compliance Manual, ‘‘Interference is any condition
that circumvents, hinders, impedes, or diminishes
whatsoever the intended warning of a system, and
may be accomplished by installing, repairing,
replacing, operating, or manipulating a warning
system component used in detecting the presence
of or of displaying warning of a train, or indicating
the operation of the warning system. There is no
difference between accidental or intentional
interference with respect to the enforcement of this
[rule].’’ FRA, Signal & Train Control Compliance
Manual: Part 234—Grade Crossing Signal System
Safety, at 234–24, available at https://
www.fra.dot.gov/eLib/Find#p1_z10_lCM_
kSignal%20and%20Train%20Control.
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involved violations of the flagging
duties found in FRA’s grade crossing
regulations. See 49 CFR 234.105(c)(3)–
(c)(2), 234.106, and 234.107(c)(1)(i). The
sections referenced in these paragraphs
permit trains to operate through
malfunctioning grade crossings if an
appropriately equipped flagger, law
enforcement officer, or crewmember
provides warning for each direction of
highway traffic. For example, when a
false activation occurs, § 234.107(c)(1)(i)
requires flagging by an appropriately
equipped flagger if one is available.
Under proposed paragraphs (a)(5)(ii)
and (a)(5)(iii), an employee who failed
to comply with this flagging
requirement would be subject to PAT
testing if a highway-rail grade crossing
accident/incident then occurred. Under
paragraph (a)(5)(iv), FRA would further
narrow its exclusion for highway-rail
grade crossing accident/incidents by
requiring PAT testing if a fatality of a
regulated employee performing duties
for the railroad was involved. As with
fatal train incidents, a deceased
regulated employee would be subject to
PAT regardless of whether the employee
was at fault. For example, a regulated
employee would be subject to PAT
testing if the employee died while
operating an on-rail truck that collided
with a motor vehicle at a highway-rail
grade crossing, regardless of who was at
fault for the collision.
Similarly, paragraph (a)(5)(v) would
require PAT testing if a highway-rail
grade crossing accident/incident
involved a regulated employee whose
violation of an FRA regulation or
railroad operating rule may have played
a role in the cause or severity of the
accident/incident. While proposed
paragraphs (a)(5)(i)–(iv) of this section
would specify the circumstances under
which PAT testing would be required
for highway-rail grade crossing
accidents/incidents involving humanfactor errors, paragraph (a)(5)(v) would
serve as a catch-all provision to require
PAT testing for highway-rail grade
crossing accidents/incidents that
involve human-factor errors other than
those specified in paragraphs (a)(5)(i)–
(iv).
Paragraph (b)
Currently, paragraph (b) provides that
no PAT testing ‘‘may be required in the
case of a collision between railroad
rolling stock and a motor vehicle or
other highway conveyance at a rail/
highway grade crossing.’’ FRA would
make conforming changes to this
paragraph to allow PAT testing for
human-factor highway-rail grade
crossing accident/incidents.
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43855
Section 219.203—Responsibilities of
Railroads and Employees
Currently, this section sets forth
general requirements for both railroads
and employees regarding PAT testing,
by specifying which employees must be
tested, when employees must be
excluded from PAT testing, and the time
and place of specimen collections. As
discussed further below, FRA is
proposing substantive amendments to
this section to specify which employees
must be tested in human-factor
highway-rail grade crossing accidents/
incidents. Structural revisions are also
being proposed to increase the clarity
and organization of this section.
Paragraph (a)—Employees Tested
Currently, paragraph (a) contains
requirements regarding which
employees must be tested after the
various qualifying events. FRA is
proposing to: (1) Reorganize and clarify
this paragraph; and (2) add new
language specifying which employees
must be tested after a human-factor
highway-rail grade crossing accident/
incident.
Paragraph (a), Introductory Text
FRA would add introductory text in
paragraph (a) stating that regulated
employees must cooperate with the
collection of PAT testing specimens.
This existing requirement is currently
found in the final sentence of paragraph
(a)(1)(i).
Paragraph (a)(1)
Proposed paragraph (a)(1) would state
that a regulated employee whose actions
may have played a role in the cause or
severity of a PAT testing qualifying
event (e.g., an operator, dispatcher, or
signal maintainer) must provide blood
and urine samples for PAT testing,
regardless of whether the employee was
present or on-duty at the time or
location of the qualifying event. This
language is generally consistent with the
existing language of this section except
that as proposed, regulated employees
who may not have been on-duty or
present at the time of a qualifying event
are subject to PAT testing. This
difference reflects the proposed change
to FRA’s PAT testing recall provisions,
discussed in the section-by-section
analysis below for paragraph (e) of this
section.
Paragraph (a)(2)
Proposed paragraph (a)(2) would
specify that testing of the remains of an
on-duty employee fatally injured in a
qualifying event is required if the
employee dies within 12 hours of the
qualifying event as a result of such
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qualifying event, regardless of whether
the employee was performing regulated
service, was at fault, or was a direct
employee of a railroad, or a volunteer or
contractor to a railroad. Part 219 already
requires such fatality testing. See
§§ 219.11(f) and 219.203(a)(4)(ii).
Paragraph (a)(3)
Proposed paragraph (a)(3) would
contain requirements specifying which
regulated employees must be tested for
major train accidents. Paragraph (a)(3)(i)
would clarify that all crew members of
on-track equipment involved in a major
train accident must be PAT tested,
regardless of fault. This requirement
already applies to all crew members of
trains involved in a major train
accident. See § 219.203(a)(3). Paragraph
(a)(3)(ii) would require a regulated
employee who is not an assigned crew
member of an involved train or other
on-track equipment to be PAT tested, if
it can be immediately determined that
the regulated employee may have
played a role in the cause or severity of
the major train accident.
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Paragraph (a)(4)
Proposed paragraph (a)(4), which
applies specifically to fatal train
incidents, would state that the remains
of an on-duty employee performing
duties for a railroad who is fatally
injured during the event must be tested,
regardless of whether he or she was
performing regulated service, was at
fault, or was an employee or volunteer
for a railroad or contractor to a railroad.
Paragraph (a)(5)
Proposed new paragraph (a)(5) would
contain new language specifying which
regulated employees must be PAT tested
following human-factor highway-rail
grade crossing accidents/incidents.
Proposed paragraph (a)(5)(i) would
clarify that under proposed
§ 219.201(a)(5)(i), only regulated
employees who interfered with the
normal functioning of a grade crossing
signal system and whose actions may
have contributed to the cause or severity
of the event must be PAT tested.
Proposed paragraphs (a)(5)(ii) and
(a)(5)(iii) would clarify the testing
requirements for human-factor highwayrail grade crossing accidents/incidents
under proposed § 219.201(a)(5)(ii) and
(iii). These paragraphs specify that in
the event of a grade crossing activation
failure, PAT testing would be required
if a regulated employee responsible for
flagging (either flagging highway traffic
or acting as an appropriately equipped
flagger as defined in § 234.5), or an onsite regulated employee directly
responsible for ensuring flagging, either
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fails to do so, or contributes to the cause
or severity of the accident/incident.
Proposed paragraph (a)(5)(iv) would
clarify that, for human-factor highwayrail grade crossing accidents/incidents
under § 219.201(a)(5)(iv), the remains of
the fatally-injured regulated employee(s)
(as defined in § 219.5) must be tested.
Proposed paragraph (a)(5)(v) would
clarify that, for human-factor highwayrail grade crossing accidents/incidents
under § 219.201(a)(5)(v), only a
regulated employee who violated an
FRA regulation or railroad operating
rule and whose actions may have
contributed to the cause or severity of
the event must be tested.
Paragraph (a)(6)
Proposed paragraph (a)(6) would
reword the requirement currently in
§ 219.203(a)(3), which states that a
railroad must exclude from PAT testing
an employee involved in an impact
accident or passenger train accident
with injury, or a surviving employee
involved in a fatal train incident, if the
railroad immediately determines that
the employee had no role in the cause
or severity of the event. In making this
determination, a railroad must consider
the same immediately available
information it considers in determining
whether an event qualifies for PAT
testing under § 219.201. Proposed
paragraph (a)(6) would similarly
exclude an employee who survives a
human-factor highway-rail grade
crossing accident/incident. In contrast,
proposed paragraphs (a)(6)(i) and
(a)(6)(ii) would clarify that a regulated
employee who has been involved in a
major train accident or any employee
who has been fatally injured in a
qualifying event while on-duty must be
subject to PAT testing.
Paragraph (b)—Railroad Responsibility
Proposed paragraph (b)(1) would
incorporate an amended version of
language currently contained in
paragraph (a)(1)(i), under which a
railroad must take all practicable steps
to ensure that each regulated employee
who is subject to PAT testing provides
specimens as required, including a
regulated employee who may not have
been present or on-duty at the time of
the PAT testing event, but who may
have played a role in its cause or
severity. Including such regulated
employees who may not have been
present or on-duty at the time of the
qualifying event reflects a proposed
change to FRA’s PAT testing recall
provisions, as discussed below in
paragraph (e) of this section.
Paragraph (b)(3) would state that FRA
PAT testing takes precedence over any
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toxicological testing conducted by state
or local law enforcement officials. This
would not be a new requirement, since
it incorporates FRA guidance that
testing performed by local law
enforcement must not interfere with
FRA PAT testing. See Interpretive
Guidance Manual at 20.
Paragraph (c)—Alcohol Testing
Paragraph (c) would contain language
currently found in paragraph (a)(1)(ii),
which allows a railroad to require a
regulated employee who is subject to
PAT testing to also be subject to
additional PAT breath alcohol testing. A
railroad may not, however, conduct
breath alcohol testing on an employee
who has been recalled for PAT testing
unless the employee is still on and has
never left railroad property. If an
employee has been recalled after having
left railroad property, the employee’s
breath test result would have no
probative value, since a ‘‘positive’’
breath alcohol test result could be due
to legitimate alcohol use that occurred
after the employee went off-duty and
left railroad property. Paragraph (e)(4)
below also addresses employee recall.
Paragraph (d)—Timely Specimen
Collection
A new paragraph (d)(1) would
combine two requirements currently
found elsewhere in this subpart: (1) The
requirement in existing paragraph (b)(1)
of this section that railroads make
‘‘every reasonable effort to assure that
specimens are provided as soon as
possible after the accident or incident,’’
and (2) the requirement in current
§ 219.209(c) stating that if specimens are
not collected within 4 hours of the
qualifying event, the railroad must
prepare and maintain a record stating
the reasons the test was not promptly
administered. (Specimens not collected
within 4 hours should still be collected
as soon thereafter as possible, in
accordance with § 219.203(b)(1).)
FRA is also proposing to require a
railroad to notify FRA’s Drug and
Alcohol Program Manager immediately
by phone whenever a specimen
collection takes longer than four hours.
In addition, § 219.209(c) currently
requires a railroad to prepare a written
explanation of any delay in specimen
collection beyond four hours, but does
not require the railroad to submit that
report unless requested to do so by FRA.
FRA is proposing to amend this
provision to require railroads to submit
these written reports within 30 days
after expiration of the month during
which the qualifying event occurred.
FRA is also proposing to move the
language currently in paragraphs (b)(2),
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(b)(3), and (b)(4) (pertaining to written
delay reports) to proposed paragraphs
(d)(2), (d)(3), and (d)(4), respectively.
Proposed paragraph (d)(4), however,
would no longer contain any
requirements concerning the recall of
employees for testing because FRA is
proposing to move these employee
recall requirements to proposed
paragraph (e), as discussed immediately
below.
Paragraph (e)—Employee Recall
Currently, paragraph (b)(4) of this
section addresses employee recall for
the purpose of PAT testing. Generally,
that paragraph provides that a railroad
must retain in duty status any covered
employees who may be subject to PAT
testing until a railroad representative
determines whether an event qualifies
for PAT testing and, if it does qualify,
who must be PAT tested (see § 219.201).
Furthermore, that paragraph also
currently provides that an employee
may not be recalled for PAT testing if
the employee has been released from
duty under normal procedures, except
for in very narrow circumstances (i.e., a
railroad may recall an employee for
testing after he or she has been released
from duty only if: (1) The employee
went off duty under the normal
procedures of the railroad prior to being
instructed by a railroad supervisor to
remain on duty pending completion of
the required determinations; (2) the
railroad’s preliminary investigation
indicates a clear probability that the
employee played a major role in the
cause and/or severity of the qualifying
event; and (3) the qualifying event
actually occurred during the employee’s
tour of duty. Currently, however, a
railroad is not required to recall a
covered employee for PAT testing, even
if these conditions have been met.
Existing paragraph (b)(4) also provides
that an employee who has been
transported to receive medical care is
not off-duty for purposes of PAT testing.
In addition to moving these recall
provisions into new paragraph (e), as
discussed earlier, FRA is proposing to
require employees to be recalled for
PAT testing in certain situations.
Employee recall would be required in
these situations even if the qualifying
event did not occur during the
employee’s duty tour. To further
consolidate these provisions, FRA
would move to paragraph (e)(1)
language currently in paragraph
(b)(4)(iii), which states that an employee
who has been transported to receive
medical care has not been released from
duty for purposes of PAT testing and
that a railroad is not prohibited from
testing an employee who has failed to
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remain available for PAT testing as
required. Proposed paragraph (e)(1)
would also generally prohibit a railroad
from recalling an employee for PAT
testing if the employee has already been
released from duty under the normal
procedures of the railroad, unless the
conditions in proposed paragraph (e)(2)
have been met.
Proposed paragraph (e)(2) would
mandate employee recall for PAT
testing if two of the three requirements
in existing paragraph (b)(4) are met. As
proposed, an employee would have to
be immediately recalled and placed on
duty for PAT testing if: (1) The railroad
could not retain the employee in duty
status because he or she went off duty
under normal carrier procedures before
being instructed to remain on duty
pending the testing determination; and
(2) the railroad’s preliminary
investigation indicated a clear
probability that the employee played a
role in the cause or severity of the
accident/incident. As proposed, the
current requirement for the qualifying
event to have occurred during the
employee’s duty tour would be
removed.
Proposed paragraph (e)(3) would
require an employee to be recalled
regardless of whether the qualifying
event occurred while the employee was
on duty, except that an employee could
not be recalled if more than 24 hours
has passed since the event. This
paragraph would also clarify that an
employee who has been recalled for
PAT testing must be placed on duty
before he or she is PAT tested.
Proposed paragraph (e)(4) would
specify that both urine and blood
specimens must be collected from an
employee who is recalled for PAT
testing. For the reasons discussed earlier
in paragraph (c) of this section, if an
employee left railroad property before
being recalled, the employee’s
specimens could be tested for drugs
only. A recalled employee may be tested
for alcohol, however, if he or she stayed
on railroad property and the railroad’s
company policy completely prohibits
the use of alcohol on railroad property.
Proposed paragraph (e)(5) would
require a railroad to document its
attempts to contact an employee who
must be recalled for PAT testing. As
proposed, the railroad must also notify
FRA and provide documentation in
accordance with the requirements of
paragraph (d)(1) if it is unable to contact
and obtain a specimen from an
employee subject to the mandatory
recall requirement within 24 hours of a
qualifying event. In the narrative report
that the railroad submits to FRA, the
railroad must show that it made a good
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43857
faith effort to contact the employee,
recall the employee, place the employee
on duty, and obtain specimens from the
employee.
For illustrative purposes, under these
proposed recall provisions, a railroad
would be required to recall a dispatcher
whose actions had played a role in the
cause of a qualifying event, even if the
dispatcher went off duty before the
event occurred. While the dispatcher
would have to be recalled as soon as the
determination to test is made (and no
later than within 24 hours of the
qualifying event), the dispatcher could
not be alcohol tested unless he or she
had remained on railroad property and
the railroad’s company policy
completely prohibits the use of alcohol
on railroad property. As another
example, if a switch crew had left a
switch improperly lined or a yard crew
had failed to apply sufficient hand
brakes to a cut of cars that rolled away,
the crew would have to be recalled for
PAT testing even if they had gone offduty, so long as the additional
requirements of proposed paragraph
(e)(2) had been met.
Paragraph (f)—Place of Specimen
Collection
As part of the proposed reorganization
of this section, FRA is proposing to
move the provisions contained in
current paragraph (c) regarding the
place of specimen collection to new
paragraph (f). Currently, paragraph (c)
requires an employee who is subject to
PAT testing to be transported to a predesignated independent medical facility
for collection of PAT testing
specimen(s). In proposed paragraph (f),
FRA would clarify that this requirement
applies only to the collection of urine
and blood specimens, since optional
PAT breath alcohol tests do not have to
be conducted at an independent
medical facility. (Proposed § 219.203(c)
authorizes a railroad to conduct Federal
breath alcohol testing in accordance
with part 40 following a qualifying
event, so long as the testing does not
interfere with the timely collection of
required specimens in compliance with
part 219.)
Although FRA believes that as a best
practice railroads should pre-designate
medical facilities for PAT testing as
much as practicable, FRA is proposing
to remove this requirement because of
several impractical burdens it poses. For
example, an emergency responder may
take an injured employee to a nondesignated medical facility, and the
prompt treatment of injured employees
must take precedence over any railroad
pre-designation. Furthermore, even if a
railroad pre-designates a medical
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facility, the medical facility and its
employees may not be aware of or honor
this designation.
FRA is also proposing to clarify in
paragraph (f)(1) that a phlebotomist (a
certified technician trained and
qualified to draw blood in accordance
with state requirements) is a ‘‘qualified
medical professional’’ who may draw
blood specimens for PAT testing. (For
PAT testing purposes, a qualified
medical professional does not need to
be qualified under the requirements of
part 40, since part 40 does not apply to
FRA PAT testing.) FRA would also
clarify that a qualified railroad or
hospital contracted collector may collect
or assist in the collection of specimens,
so long as the medical facility has no
objections.
Proposed paragraph (f)(2) would
clarify that employees who are subject
to performing regulated service are
deemed to have consented to PAT
testing under § 219.11(a), as employees
who perform covered service already
are. FRA would also allow urine to be
collected from an injured regulated
employee who has already been
catheterized for medical purposes,
regardless of whether the employee is
conscious, although a regulated
employee could not be catheterized
solely for the purpose of collecting a
PAT urine specimen. Although this
language was previously contained in
part 219, it was removed when part 40
addressed the issue (under part 40,
urine may be collected from a person
catheterized for medical purposes only
if that person is conscious). This
proposal would allow urine to be
collected from an unconscious
catheterized employee only for PAT
testing, since FRA PAT testing is not
subject to part 40’s prohibition against
collecting urine from an unconscious
person. This proposed change would
not, however, apply to other FRA tests
that are subject to the requirements of
part 40, such as reasonable cause or
random testing.
Paragraph (g)—Obtaining Cooperation of
Facility
FRA proposes to move the provisions
regarding the obtaining of a medical
facility’s cooperation for PAT testing,
currently contained in paragraph (d), to
a new paragraph (g). Proposed
paragraph (g)(1) would require railroads
to refer to the instructions and
information in FRA’s PAT testing
shipping kit and the requirements of
subpart C when seeking the cooperation
of a medical facility. FRA is also
proposing to amend this paragraph by
removing one of the two phone numbers
given for the National Response Center
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(NRC), 1–800–424–8801, as this phone
number no longer belongs to the NRC.
Paragraph (h)—Discretion of Physician
As part of its reorganization of this
section, FRA would move the statement
that nothing in this subpart limits a
medical professional’s discretion to
determine whether drawing a blood
specimen is consistent with the health
of an employee subject to PAT testing
from its current location in paragraph
(e) to new paragraph (h). FRA is
proposing no substantive amendments
to this language.
Section 219.205—Specimen Collection
and Handling
This section contains requirements
regarding the collection and handling of
specimens collected for PAT testing.
Generally, specimens must be collected
using an FRA PAT testing shipping kit
and Form FRA 6180.73 and must be
shipped to FRA’s designated laboratory
within certain time limitations.
Paragraph (a)
Currently, paragraph (a) provides that
PAT testing specimens must be
‘‘obtained, marked, preserved, handled,
and made available to FRA consistent
with the requirements of this subpart,
and the technical specifications set forth
in Appendix C to this part.’’ FRA is
proposing to amend this language to add
that specimens must also be collected
according to the instructions in the PAT
shipping kit.
Paragraph (b)
FRA would remove language in
paragraph (b) stating that Forms 6180.73
and 6180.74 may be ‘‘ordered from the
laboratory specified in Appendix B [to
part 219].’’ This language is no longer
necessary because FRA now includes
Forms 6180.73 and 6180.74 in its
standard PAT shipping kits, and Form
6180.75 in its fatality kits.
Paragraph (c)
In paragraph (c)(1), FRA proposes to
delete the phrase ‘‘whenever possible’’
to emphasize that railroads are always
required to follow the instructions in
the shipping kit and Appendix C when
placing PAT testing specimens in the
shipping kit and preparing them for
shipment.
Currently, paragraph (c)(2) states that
shipping kits may be ordered directly
from the FRA-designated laboratory.
FRA is proposing to amend this
language to require that a railroad
request an order form from FRA’s Drug
and Alcohol Program Manager before
ordering a PAT shipping kit from its
designated PAT laboratory. In addition,
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FRA would clarify that fatality shipping
kits are being made available only to
Class I, Class II, and commuter railroads
to conserve resources. In the rare
instance where a small railroad has a
PAT testing event involving a fatality to
an on-duty employee, the small railroad
should contact the National Railroad
Response Center. FRA will then provide
a fatality kit to a medical examiner or
assist the small railroad in obtaining one
from a larger railroad.
FRA is also proposing to remove
paragraph (c)(3), which states that a
limited number of shipping kits are
available at FRA’s field offices, since
FRA field offices no longer have these
kits.
Paragraph (d)
Currently, paragraph (d) requires
specimens to be shipped as soon as
possible by pre-paid ‘‘air express or air
freight (or other means adequate to
ensure delivery within twenty-four (24)
hours from time of shipment).’’ FRA
proposes to remove the language
regarding ‘‘air freight’’ shipments so that
specimens must be shipped by air
express or other adequate means. FRA
also proposes to allow railroads greater
flexibility by allowing them to hold
specimens in a secure refrigerator if
delivery cannot be ensured within 24
hours due to a suspension in delivery
services. As proposed, a secure
refrigerator could be used to hold
specimens for a maximum of 72 hours,
since FRA believes this is ample time
for a railroad to ensure shipment of
specimens through alternative means.
Paragraph (e)
To ensure greater specimen security,
FRA proposes to add new paragraph (e)
to this section, which would prohibit a
specimen kit or a transportation box
from being opened after it has been
sealed, even if a railroad or medical
facility discovers that an error had been
made either with the specimens or the
chain of custody form. If such an error
is discovered, the railroad or medical
facility must make a contemporaneous
written record of it and send that record
to the laboratory, preferably with the
transportation box.
Section 219.207—Fatality
FRA is proposing several minor
clarifying amendments to this section,
which contains requirements
specifically addressing fatality PAT
testing. None of these amendments are
intended to have a substantive effect on
the requirements of this section.
For fatalities, existing paragraph (a)
requires railroads to obtain ‘‘body fluid
and/or tissue specimens.’’ FRA is
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proposing to amend this language to
replace ‘‘and/or’’ with ‘‘and,’’ as FRA
has always expected railroads to collect
both body fluid and tissue specimens.
(FRA is proposing a similar clarification
to paragraph (c)). In addition, FRA
would clarify that the shipping kit
referenced in this paragraph is the
‘‘post-mortem shipping kit.’’
In paragraph (b), FRA is proposing to
remove one of the two phone numbers
given for the National Response Center
(NRC), 1–800–424–8801, since this
phone number is no longer correct.
Paragraph (d) currently states that
‘‘Appendix C to this part specifies body
fluid and tissue specimens for
toxicological analysis in the case of a
fatality.’’ FRA is proposing to clarify
that this information can also be found
in the ‘‘instructions included inside the
shipping kits.’’
Section 219.209—Reports of Tests and
Refusals
Currently, paragraph (a)(2)(v) of this
section requires railroads reporting tests
and refusals to include the number,
names, and occupations of tested
employees. To protect privacy interests
and reduce reporting burdens, FRA is
proposing to require railroads to report
only the number of employees tested.
Existing paragraph (b) requires a
railroad to provide FRA a ‘‘concise
narrative report’’ if, as a result of noncooperation of an employee or any other
reason, it is unable to obtain PAT testing
specimens from an employee subject to
PAT testing. As proposed, FRA would
require the railroad to immediately
notify FRA’s Drug and Alcohol Program
Manager by phone of the failure, in
addition to the current requirement for
a written, narrative report. If a railroad
representative is not able to speak
directly to the FRA Drug and Alcohol
Program Manager, the railroad must
leave a detailed voicemail explaining
the circumstances and reasons for the
failure. This telephonic report would
assist both railroads and FRA in
determining whether an employee has
refused to be tested.
Currently, paragraph (c) requires
railroads to maintain records explaining
why PAT testing was not performed
within four hours of a qualifying event.
FRA is proposing to delete this
requirement from § 219.209 because it is
already addressed in proposed
§ 219.203(d)(1), as discussed above in
the section-by-section analysis for that
section.
Section 219.211—Analysis and FollowUp
Since part 40 does not apply to FRA
PAT testing, FRA is proposing to amend
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paragraph (b) of this section to
incorporate part 40’s prohibition on
standing down (temporarily removing
from service) an employee solely based
upon a laboratory report indicating a
non-negative test result, before the MRO
has completed verification of this test
result. See § 40.21(a). As proposed, an
employee could be removed from
regulated service only after an MRO has
verified that the employee has had a
confirmed positive test for a drug or
drug metabolite, an adulterated test, or
a substituted test.
Paragraph (c) would be amended to
provide the address of the FRA
Associate Administrator for Railroad
Safety.
Paragraph (e) would be amended to
replace ‘‘Alcohol/Drug Program
Manager’’ with ‘‘Drug and Alcohol
Program Manager’’ for consistency
throughout part 219. FRA would also
amend this paragraph to permit
employees to respond to test results
more easily through email.
Currently, paragraph (g)(3) provides
that FRA’s PAT testing program does
not authorize railroads to hold an
employee out of service pending the
receipt of the test results, ‘‘nor does it
restrict a railroad from taking such
action in an appropriate case.’’ FRA
would clarify that a railroad must have
additional information regarding an
employee’s actions or inaction,
independent of the mere fact that he or
she was involved in a qualifying event,
to justify holding him or her out of
service under its own authority. As with
the proposed stand-down provision in
paragraph (b) regarding laboratory
reports, FRA seeks to clarify that an
employee’s involvement in a PAT
testing event is not in itself a basis for
holding the employee out of regulated
service.
Section 219.213—Unlawful Refusals;
Consequences
Currently, paragraph (b) requires a
railroad to provide notice to an
employee who is being withdrawn from
service under part 219 for refusing to
provide a specimen for PAT testing.
FRA is proposing to amend this
paragraph to clarify that this notice
must be in writing.
Subpart D—Reasonable Suspicion
Testing
Currently, the requirements for both
reasonable suspicion testing and
reasonable cause testing are contained
in Subpart D—Testing for Cause.
Because these types of tests are similarly
named, reasonable suspicion testing is
frequently confused with reasonable
cause testing even though their criteria
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43859
are completely different, and reasonable
suspicion testing is mandatory while
reasonable cause testing is
discretionary. To highlight the
distinctions between these two types of
tests, FRA is proposing to separate its
reasonable suspicion and reasonable
cause testing requirements into two
subparts. While subpart D would
continue to contain FRA’s requirements
for reasonable suspicion testing, FRA’s
reasonable cause testing requirements
would be moved to proposed subpart E.
(The Identification of Troubled
Employees requirements currently in
subpart E would be moved to new
subpart K, which would address Peer
Prevention Programs.)
Section 219.301—Mandatory
Reasonable Suspicion Testing
This section would contain general
provisions requiring railroads to
conduct reasonable suspicion testing.
The language in paragraph (a), which
addresses reasonable suspicion alcohol
tests, and paragraph (b), which
addresses reasonable suspicion drug
tests, would be generally consistent
with the existing requirements in
§ 219.300, but FRA is proposing new
language in paragraph (a) to clarify that
a reasonable suspicion alcohol test is
not required to confirm an on-duty
employee’s possession of alcohol.
Paragraph (c) would require all
reasonable suspicion tests to comply
with the requirements of proposed
§ 219.303 (which is generally consistent
with existing requirements found in
§ 219.300(b) and is discussed in more
detail below).
Paragraph (d) would reference the
provision in proposed § 219.11(b)(2)
stating that in a case where an employee
is suffering a substantiated medical
emergency and is subject to alcohol or
drug testing under part 219, necessary
medical treatment must be accorded
priority over provision of the breath or
body fluid specimens. This replaces
similar language currently found in
§ 219.300(c), which states that
reasonable suspicion testing is not
required when a regulated employee is
in need of immediate medical attention.
However, FRA proposes to add new
language in proposed § 219.305
clarifying that reasonable suspicion
testing is still required if the employee’s
condition stabilizes within eight hours.
Section 219.303—Reasonable Suspicion
Observations
This section would contain the
requirements for reasonable suspicion
observations currently in § 219.300(b).
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Paragraph (a)
The language in paragraph (a), which
addresses the observations required for
alcohol tests, and paragraph (b), which
addresses the observations required for
drug tests, would be generally
consistent with the existing reasonable
suspicion observation requirements in
§ 219.300(b), although additional
language would be added to both
paragraphs to clarify that these
observations must be made by a
‘‘responsible railroad supervisor.’’
Paragraph (b)
Additional language in paragraph (b)
would clarify that although two
supervisors are required to make the
required observations for reasonable
suspicion drug testing, only one of these
supervisors must to be on-site and
trained in accordance with § 219.11(g).
This incorporates long-standing FRA
guidance, since two on-site trained
supervisors are rarely available. See
Compliance Manual 11.3.3.3. The
supervisor who is trained and on-site is
required to describe the signs and
symptoms that he or she observed to the
off-site supervisor so that the off-site
supervisor can confirm that reasonable
suspicion of drug abuse exists. Because
of privacy concerns, this
communication between supervisors
may be made by telephone, but not by
radio or email.
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Paragraph (c)
FRA is proposing new language in
paragraph (c). Under this new language,
a regulated employee who has had an
FRA reasonable suspicion test may not
be held out of service pending receipt of
the employee’s test result, although a
railroad may hold the employee out of
service under its own authority if the
railroad has an independent basis for
doing so. For example, a railroad may
remove a regulated employee from
service if the employee is exhibiting
signs of drunken behavior, regardless of
whether Federal reasonable suspicion
testing was performed.
Paragraph (d)
Paragraph (d) would contain new
language requiring railroads to
document and maintain the basis for
each determination to conduct a
reasonable suspicion test (e.g., the
determining supervisor(s)’s observations
of the employee’s signs and symptoms).
The trained supervisor who made the
determination should complete this
documentation as soon as practicable.
This proposal would incorporate FRA’s
long-standing guidance and
interpretation regarding this
requirement. See id.
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Section 219.305—Prompt Specimen
Collection; Time Limits
This section would contain provisions
regarding the prompt collection of
specimens for reasonable suspicion
testing. These requirements are
currently found in § 219.300(d)(1) and
§ 219.302(a), (c), and (e).
Paragraph (a)
Paragraph (b)
Paragraph (b) would state that
whenever a railroad cannot collect
reasonable suspicion testing specimens
within two hours of the determination
to test, the railroad must prepare and
maintain a record explaining the
reasons for the delay. If, however, a
railroad has not collected reasonable
suspicion testing specimens within
eight hours of its determination to test,
the railroad must discontinue its
collection attempts and record why the
test could not be conducted. Currently,
this requirement is found only in
§ 219.300(d)(1) and applies only to
reasonable suspicion alcohol tests, but
FRA is proposing to specifically apply
this requirement to reasonable suspicion
drug tests as well. The proposed
requirement for a railroad to cease its
attempts to conduct a reasonable
suspicion drug test if it has not done so
within eight hours of the railroad’s
determination to test would supersede
the current language in § 219.302(b)(1)
(which currently addresses both
reasonable suspicion and reasonable
cause testing). Consistent with existing
language in § 219.302(e), paragraph (b)
would specify that the eight-hour
deadline has been met if the railroad has
delivered the employee to the collection
site (where the collector is present) and
made a request to commence specimen
collection.
Proposed paragraph (b) would also
contain language similar to that
currently in § 219.300(d)(1), under
which reasonable suspicion testing
records required by that section must be
submitted upon request of the FRA
Administrator. The amended
requirement in paragraph (b) would
instead require these records to be
submitted upon request of the FRA Drug
and Alcohol Program Manager.
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Paragraph (c) would incorporate,
without change, language currently
found in § 219.302(c), which addresses
the reasonable suspicion testing of
employees who have been released from
duty, who have been transported to
receive medical care, or who have failed
to remain available for testing.
Subpart E—Reasonable Cause Testing
Proposed paragraph (a) would contain
language currently in § 219.302(a),
which specifies that, consistent with the
need to protect life and property, testing
must be promptly conducted following
the observations upon which the
reasonable suspicion testing
determination is based.
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Paragraph (c)
Sfmt 4702
As discussed above, FRA is proposing
to move its reasonable cause testing
requirements from subpart D to subpart
E to separate reasonable suspicion and
reasonable cause testing into distinct
subparts. As discussed further below,
FRA is proposing the following
substantive amendments to its
reasonable cause testing requirements:
(1) Requiring a railroad to select and
perform all reasonable cause testing
under either FRA or company authority;
(2) specifying that reasonable cause
testing is only authorized after ‘‘train
accidents’’ and ‘‘train incidents,’’ as
defined in § 219.5; and (3) adding new
rule violations or other errors related to
railroad operating practices as a basis
for Federal reasonable cause testing.
Section 219.401—Authorization for
Reasonable Cause Testing
This section would contain an
amended version of the conditions for
FRA reasonable cause testing currently
in § 219.301. Under § 219.301, a railroad
currently has three options if the
conditions for a reasonable cause test
outlined in the section have been met:
(1) Conducting a reasonable cause test
under FRA authority; (2) conducting a
reasonable cause test under its own
authority; or (3) choosing not to conduct
a reasonable cause test. A railroad does
not have to announce in advance or be
consistent as to which option it chooses;
thus, a railroad may decide to conduct
an FRA reasonable cause test for one
event, and a company reasonable cause
test for the next, without any
explanation. This flexibility has,
unfortunately, had the unintended effect
of creating confusion within the railroad
industry. In some instances, FRA
believes it has led to arbitrary decision
making by railroads. For example,
Federal reasonable cause testing is
sometimes performed in situations that
don’t meet one of the conditions
specified in current § 219.301, but
which would nevertheless qualify for
company reasonable cause testing.
In new paragraph (a), FRA is
proposing to address these issues by
requiring each railroad to decide and
announce (in the educational materials
the railroad would be required to
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provide to its regulated employees
under § 219.23(e)(5)) whether it will be
exclusively using FRA or its own
authority for reasonable cause testing
after § 219.403 testing events. For
example, under this proposal, a railroad
that announces it will be using FRA
authority for reasonable cause tests
would then be prohibited from
conducting reasonable cause tests under
its own authority. However, this
restriction would apply only to
reasonable cause tests conducted after
an event listed in § 219.403. A railroad
may always use its own authority to test
for events that are outside of FRA’s
criteria for reasonable cause testing.
Consistent with existing § 219.301(a),
proposed paragraph (b) of this section
would authorize railroads to conduct
reasonable cause testing under certain
conditions. FRA is not proposing any
substantive changes to this general
authorizing language, except to clarify
that it would apply only when a railroad
conducts reasonable cause testing under
FRA authority.
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Section 219.403—Requirements for
Reasonable Cause Testing
This section would describe when
FRA reasonable cause testing is
authorized. As briefly discussed earlier
in Section V.H of this preamble, FRA is
proposing to specify that reasonable
cause testing is authorized only after
‘‘train accidents’’ and ‘‘train incidents,’’
as defined in § 219.5, and not after all
part 225 reportable ‘‘accidents/
incidents.’’ In addition, as briefly
discussed earlier in Section V.I of this
preamble, FRA is proposing to authorize
Federal reasonable cause testing for
additional rule violations or other errors
that reflect the expansion of part 219 to
MOW workers, relate to signal systems
and highway-rail grade crossing
warning systems, and reflect recent
amendments to 49 CFR part 218,
Railroad Operating Practices.
Introductory Text
If a potential reasonable cause testing
event occurs, FRA would require a
railroad to determine whether it has the
authority to conduct an FRA reasonable
cause test before it can begin reasonable
cause testing process. As proposed, a
railroad would have to make a threshold
determination about its authority before
it can conduct a reasonable cause test.
Paragraph (a)
Existing § 219.301(b)(2) is currently
titled ‘‘Accident/incident’’ and
authorizes reasonable cause testing
following ‘‘an accident or incident
reportable under part 225’’ when ‘‘a
supervisory employee of the railroad
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has a reasonable belief, based on
specific, articulable facts, that the
employee’s acts or omissions
contributed to the occurrence or severity
of the accident or incident.’’ FRA is
proposing to make this language
paragraph (a) of this section and amend
it to clarify that reasonable cause testing
is only authorized following train
accidents and train incidents, as defined
in § 219.5.
FRA believes the phrases ‘‘accident/
incident’’ and ‘‘accident or incident
reportable under part 225’’ in existing
§ 219.301(b)(2) could imply that FRA
reasonable cause testing is authorized
after all part 225 reportable accidents/
incidents. This implication is
problematic because the term accident/
incident, as defined in § 225.5, includes
many events that should not justify FRA
reasonable cause testing. Specifically,
the term ‘‘accident/incident’’ includes
many employee injuries and illnesses
that are designed to conform with
OSHA’s recordkeeping/reporting
requirements, but that do not
necessarily fall otherwise within FRA’s
railroad safety jurisdiction.21 See
Accident Reporting Guide at 1–2
(stating that ‘‘FRA’s accident/incident
reporting regulations that concern
railroad occupational casualties should
be maintained, to the extent practicable,
in general conformity with OSHA’s
recordkeeping and reporting
regulations’’).
FRA audits have found some
instances in which this confusing
language has led a railroad to conduct
FRA reasonable cause testing after all
reportable injuries, regardless of
whether or not a reportable injury was
connected with the movement of ontrack equipment. For example, FRA has
encountered situations where railroads
were conducting FRA reasonable cause
testing after slips, trips, and falls
resulting in a reportable injury, even if
the railroad had insufficient reason to
believe that the employee’s act or
omission contributed to the injury
(which is also a violation of existing
§ 219.301(b)(2)).
Furthermore, confusion about
whether FRA reasonable cause testing is
authorized following all part 225
reportable accidents/incidents could
potentially create a situation where a
railroad utilizes FRA reasonable cause
testing in a clearly inappropriate
situation. For example, the § 225.5
21 Because FRA’s employee injury and illness
recordkeeping/reporting requirements employ
equivalent standards to those promulgated by
OSHA, OSHA permits railroads to record and report
employee injuries and illnesses only to FRA. Id.
FRA then shares this employee injury and illness
data with OSHA. Id. at 2.
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43861
definition of ‘‘accident/incident’’
includes occupational illnesses, such as
carpal tunnel syndrome, carbon
monoxide poisoning, noise-induced
hearing loss, and various dust diseases
of the lungs. See Accident Reporting
Guide at Appendix E–2 through E–5.
FRA also requires railroads to record
and report certain suicide data,
including a suicide attempt made by an
employee on duty. See id. at 33. These
are just a few examples of the events
that could qualify as part 225 reportable
accident/incidents that FRA believes
should clearly not serve as a basis for
FRA reasonable cause testing.22
FRA is proposing to correct this
confusion by specifying in proposed
§ 219.403(a) that FRA reasonable cause
testing is authorized following ‘‘train
accidents’’ and ‘‘train incidents,’’ as
defined by § 219.5, when a responsible
railroad supervisor has a reasonable
belief, based on specific, articulable
facts, that the individual employee’s
acts or omissions contributed to the
occurrence or severity of the train
accident or train incident. By using the
terms train accident and train incident,
FRA is attempting to remove any
implication that reasonable cause
testing could be authorized following
any part 225 reportable accident/
incident. (A railroad would still remain
free, however, to perform company
authority reasonable cause testing for an
accident/incident that otherwise did not
qualify as a train accident or train
incident.) FRA specifically requests
public comment on the clarity of the
proposed language.
As an editorial change, FRA is also
proposing to replace the term
‘‘supervisory employee’’ with
‘‘responsible railroad supervisor’’ for
consistency with the remainder of the
subpart.
Paragraph (b)
Paragraph (b) would contain a list of
rule violations and other errors that
would be grounds for FRA reasonable
cause testing when a regulated
employee is directly involved. The rule
violations and other errors currently in
§ 219.301(b)(3) would be moved to
proposed paragraphs (b)(1)–(b)(4),
(b)(6)–(b)(8), and (b)(10) of this section,
without any substantive amendments.
Proposed paragraphs (b)(5), (b)(9),
(b)(11)–(b)(12), and (b)(13)–(b)(18)
would contain additional rule violations
and other errors that would be new
22 Although § 219.5 does currently define
‘‘accident or incident reportable under part 225’’ to
exclude ‘‘covered data’’ cases under part 225,
‘‘covered data’’ cases are only a small subset of part
225 reportable accidents/incidents that should not
authorize FRA reasonable cause testing.
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§ 218.99(b)(3) railroad operating rule
addressing point protection.
• Additional Rule Violations or Other
Errors Related to Railroad Operating
Practices
In proposed paragraphs (b)(5) and
(b)(9), FRA would add two new
categories to the rule violations or other
errors that are grounds for reasonable
cause testing. These additional
categories reflect recent amendments to
49 CFR part 218—Railroad Operating
Practices.
In 2008, FRA amended part 218 to
require railroads to adopt and comply
with operating rules regarding shoving
and pushing movements and the
operation of switches. See 73 FR 8475–
8482, Feb. 13, 2008. Specifically,
§§ 218.103–218.107 require railroads to
adopt and comply with operating rules
regarding switches. FRA believes that
many of these operating rule
requirements for switches are already
reflected by the current reasonable
cause testing provisions, which
authorize testing for ‘‘[a]lignment of a
switch in violation of a railroad rule,
failure to align a switch as required for
movement, operation of a switch under
a train, or unauthorized running
through a switch’’ and ‘‘[e]ntering a
crossover before both switches are lined
for movement or restoring either switch
to normal position before the crossover
movement is completed.’’
§ 219.301(b)(3)(iv) and (vii).
Nevertheless, paragraph (b)(5) would
authorize FRA reasonable cause testing
if a regulated employee fails to restore
and secure a main track switch when
required.
Similarly, § 218.99 establishes certain
requirements for railroad operating rules
regarding shoving and pushing
movements. FRA is proposing to
authorize reasonable cause testing only
for certain § 218.99 operating rule
violations. For instance, FRA would not
authorize such testing when the
violation of an operating rule does not
pose a sufficient safety concern (e.g., a
failure to conduct a required job
briefing). FRA would, however,
authorize reasonable cause testing if a
regulated employee violates a valid
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grounds for FRA reasonable cause
testing, as discussed below.23
• Additional Rule Violations or Other
Errors Related to MOW Employees
To reflect the proposed expansion of
part 219 to cover MOW employees,
paragraphs (b)(13)–(b)(17) would
authorize FRA reasonable cause testing
for certain rules violations and errors
related to the performance of MOW
activities. Under paragraph (b)(13),
testing would be authorized for the
failure of a machine operator that results
in a collision between a roadway
maintenance machine and/or other ontrack equipment or a regulated
employee. Under paragraph (b)(14),
testing would be authorized for the
failure of a roadway worker-in-charge to
notify all affected employees when
releasing working limits. Under
paragraph (b)(15), testing would be
authorized for the failure of a flagman
or watchman/lookout to notify
employees of an approaching train or
other on-track equipment. Under
paragraph (b)(16), testing would be
authorized for the failure to ascertain
on-track safety before fouling a track.
Under paragraph (b)(17), testing would
be authorized for the improper use of
individual train detection (ITD) in a
manual interlocking or control point.
FRA is requesting public comment on
whether these proposed paragraphs
sufficiently address those MOW
operating rule violations and errors that
justify reasonable testing by posing a
safety concern. Are there other
operating rule violations and errors that
should be included?
23 Railroads should note that FRA reasonable
cause drug testing authority does not apply if a rule
violation or error results in an event that qualifies
for mandatory PAT testing under § 219.201. See
§ 219.301(e). Reasonable cause alcohol testing
authority may, however, currently be exercised in
PAT testing situations when ‘‘breath test results can
be obtained in a timely manner at the scene of the
accident and conduct of such tests does not
materially impede the collection of specimens
under subpart C.’’ Id. Similar provisions (amended
as discussed below) are found in § 219.409 of the
proposed rule.
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• Additional Rule Violations or Other
Errors Related to Covered Service
FRA is also proposing new rule
violations and other errors that would
be grounds for FRA reasonable cause
testing primarily for covered employees.
The first two additional rule violations
or other errors related to signal systems
and highway-rail grade crossing
warning systems. Interference with the
normal functioning of a signal system or
a grade-crossing signal device is a
serious safety concern, as is the failure
to properly perform any required stopand-flag duties. Such failures could
result in a collision between trains or a
highway-rail grade crossing accident.
First, under paragraph (b)(11), FRA
would authorize reasonable cause
testing if a regulated employee has
interfered with the normal functioning
of any grade crossing signal system or
any signal or train control device
without first taking measures to provide
for the safety of highway traffic or train
operations which depend on the normal
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functioning of such a device. Such
interference includes, but would not be
limited to, failure to provide alternative
methods of maintaining safety for
highway traffic or train operations while
testing or performing work on the
devices or on track and other railroad
systems or structures which may affect
the integrity of the system. This
proposed provision adopts language
from the unlawful interference
provisions of § 234.209 (grade crossing
systems) and § 236.4 (signals) and is
intended to encompass the same types
of interference that are covered by those
sections. The types of devices referred
to by this provision would include (but
are not limited to) a wayside or cab
signal system, component, or warning
device, as well as the flashing lights or
gates at a highway-rail grade crossing.
For example, FRA reasonable cause
testing would be authorized whenever
the actions of a regulated employee
result in a false proceed signal or a
highway-rail grade crossing activation
failure.
Second, under paragraph (b)(12), FRA
reasonable cause testing would also be
authorized if a regulated employee
failed to perform required stop-and-flag
duties as required after of a malfunction
of a grade crossing signal system. FRA
is proposing this revision because a
regulated employee who fails to perform
stop-and-flag duties as required after a
malfunction of a grade crossing signal
system may not be the same regulated
employee who originally interfered with
the normal functioning of the system.
Finally, in paragraph (b)(18), FRA
reasonable cause testing would be
authorized if a failure to apply three
point protection (by fully applying the
locomotive and train brakes, centering
the reverser, and placing the generator
field switch in the off position) results
in a reportable injury to a regulated
employee.
Public Comment Requested
As with its proposed MOW operating
rule violations and errors, FRA is
requesting public comment on whether
additional rule violations or errors
should be added. FRA is also interested
in feedback recommending changes to
the wording ‘‘proposed rule violations
or other errors’’ as used in this section.
Because FRA reasonable cause testing
would remain optional, a contracting
company that performs regulated
service for a railroad would not be
required to conduct FRA reasonable
cause tests on its regulated employees.
However, a railroad could conduct FRA
reasonable cause testing of contractors
when they are performing regulated
service on the railroad’s behalf.
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Section 219.405—Documentation
Requirements
FRA is proposing to require a railroad
to create and maintain written
documentation describing the basis for
each reasonable cause test it conducts
under FRA authority. The railroad
supervisor who determines that
reasonable cause exists for FRA testing
would have to document the
observations or facts that he or she
relied upon in making the
determination. To ensure that a
supervisor’s recollection of the incident
is as fresh as possible, FRA would
require the supervisor to document the
basis for each reasonable cause test
promptly, although the supervisor
would not be expected to complete this
documentation before the test has been
performed. The minimum supervisory
documentation requirements would
vary according to the basis for the
reasonable cause test. If the basis for a
reasonable cause test is the occurrence
of a train accident or train incident, a
supervisor must document, at a
minimum, the following: (1) The
amount of railroad property damage;
and (2) the basis for the supervisor’s
belief that an employee’s acts or
omissions contributed to the occurrence
or severity of the train accident or train
incident. If the basis for a reasonable
cause test is a rule violation or other
error, a supervisor would have to
document, at a minimum, the following:
(1) The type of violation involved; and
(2) the extent of each tested employee’s
involvement in the violation. FRA
believes that this proposed
documentation requirement would
decrease the number of improperly
performed Federal reasonable cause
tests.
Section 219.407—Prompt Specimen
Collection; Time Limitations
This section would contain language
similar to that in proposed § 219.305
(which addresses specimen collection
and time limitation requirements for
reasonable suspicion testing), but would
also clarify that the eight-hour time
period for conducting reasonable cause
testing runs from the time a railroad
supervisor is notified of the occurrence
of a train accident, train incident, or
rule violation, rather than from the time
of the train accident, train incident, or
rule violation’s occurrence.
would clarify that if an event qualifies
for mandatory PAT testing, a railroad is
prohibited from conducting FRA
reasonable cause tests in lieu of, or in
addition to, the required PAT tests.
Second, FRA would remove the word
‘‘compulsory,’’ which misleadingly
implies that FRA reasonable cause
testing is required, when it is optional
but authorized in certain situations.
Third, FRA would remove the second
sentence of the current § 219.301(e),
which, in part, states that ‘‘breath test
authority is authorized in any case
where breath test results can be
obtained in a timely manner at the scene
of an accident and conduct of such tests
does not materially impede the
collection of specimens under Subpart C
of this part.’’ FRA believes this sentence
is confusing because FRA is proposing,
in § 219.203(c), to allow only PAT
breath alcohol tests to be performed
after a PAT qualifying event, although
such testing should be recorded on the
Part 40 Alcohol Testing Form (ATF).
Paragraph (b)
For reasons similar to those discussed
in proposed § 219.211(b), paragraph (b)
of this section would prohibit a railroad
from holding a regulated employee out
of service pending the results of an FRA
reasonable cause test. A railroad would
not be prohibited from holding an
employee out of service under its own
authority, however, so long as the
railroad is not doing so simply because
it is waiting for the employee’s FRA
reasonable cause test result.
Paragraph (c)
This paragraph would contain new
language requiring a supervisor to make
a reasonable cause determination for
each crew member, instead of for the
crew as a whole. For example, if a train
crew operated their train past an
absolute block signal, a supervisor
would have to consider the engineer’s
actions apart from those of the
conductor, to ensure that only those
crew members who may have
contributed to the rule violation are
tested. In this example, if a supervisor
discovers that the conductor was on the
ground setting out a freight car when the
train passed the signal, the supervisor
should require only the engineer to
undergo FRA reasonable cause testing.
Subpart F—Pre-Employment Tests
Section 219.409—Limitations on
Authority
Section 219.501—Pre-Employment Drug
Testing
Paragraph (a)
This paragraph would contain
language currently in § 219.301(e), with
three proposed clarifications. First, FRA
Paragraph (a)
Currently, paragraph (a) of this
section prohibits a railroad from
allowing an individual to perform
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43863
covered service unless the individual
has had a Federal pre-employment drug
test with a negative test result. FRA is
proposing to amend this paragraph to
require a regulated employee to have a
negative Federal pre-employment drug
test result for each railroad for which
the employee performs regulated
service, although this requirement
would apply only to a railroad’s direct
employees, and not to employees of
contractors who perform regulated
service for the railroad.
Paragraph (b)
Currently, paragraph (b) states that,
for purposes of pre-employment drug
testing only, the term covered employee
includes an applicant. The paragraph
also states that no record may be
maintained if an applicant declines to
be tested and withdraws his or her
application for employment. FRA is
proposing to move this language to new
paragraph (e) and to amend it as
discussed below.
As proposed, new paragraph (b)
would address the pre-employment
drug testing requirements for contractor
employees. In contrast to its proposed
pre-employment drug testing
requirements for regulated employees
(see the discussion of paragraph (a)
above), FRA would not require a
contractor employee who performs
regulated service for multiple railroads
to have a negative Federal preemployment drug test result for each
railroad. Instead, each railroad would
only have to verify and document that
the contractor employee has a negative
Federal pre-employment drug test result
on file with the contractor who is his or
her direct employer. However, a
contractor employee would be required
to have a new Federal pre-employment
drug test if the he or she switches direct
employers by working for another
contractor who provides regulated
service to railroads.
Paragraph (c)
FRA is proposing a new paragraph (c)
to clarify that a railroad would not have
to conduct an FRA pre-employment
drug test if an applicant or first-time
transfer to regulated service already has
a negative drug test result from a preemployment test conducted by the
railroad under the authority of another
DOT agency, such as the Federal Motor
Carrier Safety Administration (FMCSA).
FRA believes this flexibility most
benefits employees in positions
requiring a commercial driver’s license
(CDL) (e.g., certain MOW employees
and signal maintainers), since a negative
FMCSA pre-employment drug test result
is one prerequisite to holding a CDL.
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See 49 CFR 382.301. Under this
proposal, a railroad would not have to
wait for a negative FRA pre-employment
drug test result before transferring a CDL
holder to a regulated service position for
the first time, although the railroad
would remain free to perform a second
pre-employment drug test under its own
authority. Since many MOW employees
already hold CDLs because they operate
railroad commercial motor vehicles,
FRA believes this proposal would
substantially lessen the number of preemployment drug tests railroads would
have to perform after the effective date
of the final rule. (FRA has previously
included this pre-employment drug
testing interpretation in its guidance.
See Interpretive Guidance Manual at
32.)
This provision would apply, however,
only to negative DOT pre-employment
drug tests that had been conducted by
the railroad itself. A CDL holder would
still need a negative FRA preemployment drug test for each railroad
for which he or she performs regulated
service. For example, a CDL holder who
had a negative DOT pre-employment
drug test for Railroad A would still need
a negative FRA pre-employment drug
test result for Railroad B before he or
she could begin to perform regulated
service for Railroad B.
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Paragraph (d)
As mentioned above, FRA would
move an amended version of the
language currently in paragraph (b) to a
new paragraph (d). As proposed, to
decline a pre-employment drug test and
have no record kept of that declination,
an applicant must withdraw his or her
application before the drug testing
process begins. In § 40.63(c), DOT states
that the drug testing process begins
when either the collector or the
employee selects an individually
wrapped or sealed collection container.
Paragraph (e)
In new paragraph (e), FRA would
exempt two groups of employees from
pre-employment drug testing: (1)
Employees who are performing MOW
activities for a railroad prior to the
effective date of the final rule; and (2)
employees who are performing
regulated service for a small railroad (as
defined in § 219.3(c)) prior to the
effective date of the final rule. However,
a MOW or regulated employee would be
exempted only so long as the employee
continues to work for the same railroad
that he or she was working for prior to
the effective date of the final rule. A
previously exempted employee would
be required to have a negative Federal
pre-employment drug test result if he or
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she applies to perform regulated
activities for a new railroad.
Section 219.502—Pre-Employment
Alcohol Testing
FRA is proposing only minor
amendments to this section, which
addresses optional pre-employment
alcohol testing.
Paragraphs (a)(1)–(a)(2)
Currently, paragraphs (a)(1) and (a)(2)
of this section refer to pre-employment
alcohol testing for ‘‘safety-sensitive
employees’’ who perform ‘‘safetysensitive functions.’’ (In this context,
‘‘safety-sensitive’’ is referring to ‘‘DOT
safety-sensitive functions’’ and ‘‘DOT
safety-sensitive employees,’’ as defined
in this proposed rule, and not FRA
‘‘safety-sensitive functions’’ as used in
§ 209.301 and § 219.303.) For
clarification purposes only, FRA would
substitute ‘‘regulated employees’’ and
‘‘regulated service’’ wherever ‘‘safetysensitive employees’’ or ‘‘safetysensitive functions’’ now appear, since
FRA would designate regulated
employees and regulated service as DOT
safety-sensitive employees and DOT
safety-sensitive functions for purposes
of this part.
Paragraph (a)(5)
As in paragraphs (a)(1) and (a)(2) of
this section, FRA would amend
paragraph (a)(5) by substituting
‘‘regulated service’’ for ‘‘safety-sensitive
functions.’’ FRA would also amend this
paragraph to clarify that a railroad may
not permit a regulated employee with an
alcohol concentration of 0.04 or greater
to perform regulated service until the
employee has completed the return-toduty process in § 219.104(d).
Paragraph (b)
Currently, paragraph (b) of this
section (addressing pre-employment
alcohol testing) contains language
identical to current § 219.501(b)
(addressing pre-employment drug
testing), which provides that, as used in
subpart H of this part, the term covered
employee includes an applicant for preemployment testing only. It also
provides that no record may be
maintained if an applicant declines to
be tested and withdraws his or her
application for employment. As
discussed above for § 219.501(b), FRA is
also proposing to amend the language in
§ 219.502(b) to clarify that an individual
must decline to participate in a preemployment alcohol test by
withdrawing his or her application
before the testing process begins. As
defined by DOT in § 40.243(a), the
testing process begins when an
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individually wrapped or sealed
mouthpiece is selected by the collector
or the employee.
Section 219.503—Notification; Records
Currently, the first and second
sentences of this section require
railroads to provide medical review of
pre-employment drug tests and to
‘‘notify’’ an applicant of the ‘‘results of
the drug and alcohol test’’ as provided
for by subpart H. FRA would amend
both sentences to clarify that subpart H
incorporates the requirements found in
part 40. In addition, FRA would amend
the second sentence to clarify that a
railroad must provide written notice not
only when an applicant has a positive
test result but also when an applicant
has another type of non-negative test
result (an adulteration, substitution, or
refusal). FRA would not, however,
require written notification of negative
pre-employment alcohol or drug tests.
FRA would also amend the third
sentence of this section to clarify that a
railroad must maintain a record if an
application was denied because the
applicant had a non-negative Federal
pre-employment test. It is important to
maintain records for individuals who
have a non-negative test result on a preemployment test, even if it resulted in
their application for employment being
denied, because such individuals must
comply with the return-to-service and
follow-up testing requirements of part
40 prior to performing DOT safetysensitive functions for any employer
regulated by a DOT agency. FRA is
therefore proposing to specify that the
only time a record does not have to be
maintained is when an applicant
withdrew an application to perform
regulated service prior to the
commencement of the testing process.
FRA believes that this is the only time
that such records are not necessary.
Section 219.505—Non-Negative Tests
and Refusals
Currently, this section provides that
an individual who ‘‘refuses’’ a preemployment test may not perform
covered service based upon the
application and examination with
respect to which such refusal is made.
FRA believes this language is too
narrow for two reasons. First, it should
also clarify that an individual may not
begin performing regulated service if he
or she has a non-negative test result
(e.g., a positive, adulterated, or
substituted test result) on a DOT preemployment test. Second, the
prohibition on performing covered
service should be extended to the
performance of any DOT safety-sensitive
functions. FRA therefore proposes to
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amend this section to specifically
prohibit individuals who refused or
who had a non-negative preemployment test result from performing
DOT safety-sensitive functions for any
DOT-regulated employer until they have
completed the Federal return-to-duty
process of § 219.104(d). This
amendment would also standardize the
requirements of this section with
§ 40.25(e), which provides that an
employer who obtains information that
an employee has violated a DOT agency
drug or alcohol regulation must not use
that individual to perform DOT safetysensitive functions unless the employer
receives information that the individual
has complied with the return-to-duty
requirements of part 40 or any other
DOT agency.
Subpart G—Random Drug and Alcohol
Testing Programs
A properly constructed and managed
random testing program is a valuable
tool for deterring the misuse of drugs
and abuse of alcohol by regulated
employees. As such, it is an essential
cornerstone to a successful part 219
drug and alcohol safety program. The
goal of random drug and alcohol testing
is for all regulated employees to believe
that they may be called for a random
test without advance warning any time
they are on-duty and subject to
performing regulated service.
Subpart G currently contains few
definite requirements for FRA random
testing. Given this lack of specificity,
finding and understanding FRA’s
random testing requirements can
sometimes be a difficult task. FRA is
proposing to revise and expand subpart
G, although very few of the proposed
amendments would result in
substantive changes to the regulatory
requirements. Rather, the primary
purpose of the proposed amendments is
to clarify the applicable requirements
and provide railroads additional
information on how to properly
implement and manage an FRA random
testing program. Much of this additional
information is currently contained in
the second edition of FRA’s Part 219
Alcohol/Drug Program Compliance
Manual (‘‘Compliance Manual’’).
Available to the public on FRA’s Web
site (https://www.fra.dot.gov/eLib/
details/L01186), the Compliance
Manual promotes part 219 compliance
by clarifying both the regulation’s
requirements and FRA’s expectations.
See Compliance Manual 1.2. The
program standards contained in the
Compliance Manual have formed the
basis of FRA’s part 219 railroad audits
for over nine years and have been
particularly useful in helping railroads
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establish effective FRA random testing
programs. Incorporating this important
guidance into the regulations will help
railroads understand and implement the
complex random testing requirements of
subpart G, thereby improving the
deterrence value of FRA random testing
and promoting railroad safety.24
In order to effectively incorporate this
operational guidance, FRA is proposing
to reorganize subpart G. The principal
proposed changes can be summarized as
follows:
• Individual sections on random drug
testing requirements (§§ 219.601–
219.605) and random alcohol testing
requirements (§§ 219.607–219.611)
would be combined into single sections
addressing both drug and alcohol
random testing. Because the differences
between the requirements for random
drug and alcohol testing are minimal,
this consolidation would eliminate a
significant amount of redundancy.
• Requirements for random testing
plans, pools, selections, and collections
would be separated and placed into
individual sections dedicated to those
subjects. These sections would also
incorporate guidance from the
Compliance Manual.
• Subpart G would be amended to
explain how a regulated service
contractor could either participate in a
railroad’s FRA random testing program
or operate its own FRA-accepted
random testing program (either
independently or through a C/TPA).
• Railroads would be required to
demonstrate that all employees (defined
in § 219.5 to include employees,
volunteers, or probationary employees
of a railroad or a contractor to a
railroad), performing regulated service
are in compliance with the random
testing requirements of subpart G. FRA
is also proposing a mechanism that
would provide a clear path for the
future incorporation of any additional
categories of employees into the random
testing requirements of subpart G. This
mechanism would eliminate the need to
extensively amend subpart G if the
scope of part 219 was expanded again
in the future.
Section 219.601—Purpose and Scope of
Random Testing Programs
This section would contain general
language explaining the purpose of
Federal random testing programs and
would clarify how subpart G applies to
regulated employees, including
contractors and volunteers, who work
for more than one railroad or are subject
24 After publication of the final rule, FRA will
revise and update the Compliance Manual as
necessary to reflect any new requirements.
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to the random testing requirements of
more than one DOT agency.
Paragraph (a) would explain that the
purpose of random testing programs is
to promote safety by deterring regulated
employees from misusing drugs or
abusing alcohol.
Paragraph (b) would require a railroad
to ensure that all of its regulated
employees are subject to the random
testing requirements of subpart G,
including its regulated employees who
are contractors or volunteers performing
regulated service for the railroad.
Specifically, this paragraph is intended
to clarify that a railroad is obligated to
ensure that all individuals performing
regulated service for the railroad either
as a contractor or volunteer are subject
to FRA’s random testing requirements
when performing regulated service for
that railroad. Of course, a railroad
would not be required to ensure that
contractor employees or volunteers are
compliant with subpart G when they are
performing regulated service for another
railroad. FRA believes this clarification
is necessary given the proposed
expansion of part 219 to cover a large
population of MOW contractors. A
contractor who failed or refused to
comply with the random testing
requirements of this subpart when
performing regulated service for any
railroad could be subject to the civil
penalty sanctions of § 219.9.
Paragraph (c) would state that a
regulated service contractor or volunteer
could be incorporated into more than
one FRA random testing program if: (1)
The contractor or volunteer would
otherwise not be part of a non-railroad
testing program (discussed in proposed
§ 219.609) that meets the requirements
of subpart G and is acceptable to the
contracting railroad; or (2) the
contracting railroad cannot verify that
the contractor or volunteer is part of an
FRA random testing program that meets
the requirements of subpart G and is
acceptable to the railroad. This section
would not require a railroad to accept
either a railroad or non-railroad random
testing program. A railroad would
always be free to incorporate regulated
service contractor employees and
volunteers into its own random testing
program, regardless of whether or not
they are already part of a program run
by another railroad or a contracting
company.
Paragraph (d) would explain how
railroads must handle regulated
employees who are subject to the
random testing regulations of more than
one DOT agency. (For example, a
regulated employee may be subject to
the random testing requirements of both
FRA and FMCSA if he or she holds a
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CDL.) The proposed language of
paragraph (d) is generally consistent
with paragraph (h) of existing § 219.602,
but would be revised to clarify that
regulated employees subject to the
random testing regulations of more than
one DOT agency may not be included in
more than one DOT random testing pool
and that this provision applies to both
random drug and alcohol testing, as
discussed below.
Currently, paragraph (h) of § 219.602
states that covered employees subject to
random drug testing under the drug
testing rules of more than one DOT
agency for the same railroad must be
subject to random drug testing selection
at the applicable rate set by the DOT
agency regulating more than 50% of the
employee’s functions. For example, if
FMCSA regulates 60 percent of a
regulated employee’s DOT functions,
the railroad must subject him or her to
random testing selection at or above the
minimum annual random testing rate
set by FMCSA. This has been historic
DOT guidance regarding Federal
random testing. See Office of Drug &
Alcohol Policy and Compliance, U.S.
Dep’t. of Transp., Best Practices for DOT
Random Drug and Alcohol Testing 3,
available at https://www.dot.gov/odapc/
best-practices-dot-random-drug-andalcohol-testing. A similar provision is
inexplicably missing, however, from the
random alcohol testing sections of the
existing regulation. As there is no
logical reason for this provision to apply
only to random drug testing, FRA
believes that this is an accidental
oversight in the current regulation.
Furthermore, FRA guidance has
historically applied this requirement to
random alcohol testing, as well as drug
testing. See generally Compliance
Manual 9.5.3.1(e) (discussing the
requirements for employees from
different DOT agencies without
distinguishing between random drug
and alcohol testing). Accordingly,
proposed paragraph (d) would correct
this oversight and clarify that this
provision applies to both drug and
alcohol random testing.
Section 219.603—General Requirements
for Random Testing Programs
This section would contain
requirements that apply generally to
FRA random testing programs. This
section would also act as a table of
contents for subpart G, directing readers
to the specific sections containing the
detailed requirements for random
testing entries, pools, selections, etc.
FRA believes including such
information near the beginning of
subpart G would help make the
regulation more reader-friendly.
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Paragraph (a) would generally require
a railroad to ensure that its random
testing program is designed and
implemented in a way that its regulated
employees should reasonably believe
that they may be called for FRA random
testing without advance notice any time
they are on duty and subject to
performing regulated service. FRA
understands that ensuring this
perception may be difficult for smaller
railroads and contractor companies with
a limited number of individuals in a
testing pool, but FRA expects all entities
to comply with this provision to the
extent possible. FRA could find a
railroad in violation of this section if it
determines the railroad has not made a
good faith effort to comply.
Paragraph (b) would prohibit a
random testing program from having a
bias, having an appearance of bias, or
providing an opportunity for a regulated
employee to avoid complying with
subpart G. For example, this paragraph
would prohibit a supervisor from
performing the selection for a random
testing pool to which he or she
belonged, as this would create an
appearance of bias.
Paragraph (c) would require a railroad
to submit for FRA approval a random
testing plan meeting the requirements of
§§ 219.603–219.609 and addressing all
employees as defined in § 219.5
(including contractors and volunteers)
who perform regulated service on the
railroad’s behalf. Paragraphs (d)–(j)
would identify where railroads may find
the subpart G requirements for random
pools (§ 219.611), random selections
(§ 219.613), random collections
(§ 219.615), railroad and employee
cooperation (§ 219.617), responsive
action (§ 219.619), service agents
(§ 219.621), and records (§ 219.623),
respectively.
Section 219.605—Submission and
Approval of Random Testing Plans
This section would contain
requirements for the submission,
approval, and amendment of random
testing plans by railroads subject to the
requirements of subpart G.
Paragraph (a)(1) would require a
railroad to submit a random testing plan
directly to the FRA Drug and Alcohol
Program Manager (Program Manager) for
approval. This submission must be
made no later than 30 days prior to the
date a railroad commences operations. If
a railroad previously qualified for the
small railroad exception under § 219.3,
but no longer does, it must submit its
random testing plan no later than 30
days after it ceases to qualify as a small
railroad. No random testing plan or
substantive amendment to such plan
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may be implemented prior to obtaining
FRA approval. While §§ 219.601(a) and
219.607(a) currently direct railroads to
submit random testing plans to the
Associate Administrator for Safety (for
plan approval by the Administrator), the
task of approving random testing plans
has been delegated as a matter of
practice to the Program Manager, who
has played this role since the
implementation of random testing in
1989. Amending this section to specify
that plans must be submitted to the
Program Manager would not
substantively alter the approval process,
but would enhance the efficiency by
reflecting actual FRA practice.
Paragraph (a)(2) would provide a
railroad three options for addressing
different categories of regulated
employees in its random testing plan. A
railroad could either submit a separate
plan for each category, combine all
categories into a single plan, or amend
a plan currently approved by FRA to
incorporate an additional category. This
approach is intended to provide
maximum flexibility for railroads
incorporating additional categories of
regulated employees into their random
testing plans. (Under the proposed rule,
the only categories of regulated
employees subject to the requirements
of part 219 are covered employees and
MOW employees. This proposed
requirement would also apply, however,
to any additional categories of
employees that might be added to the
scope of part 219 in the future.) FRA
would still independently evaluate each
plan or plan amendment submitted by
a railroad to ensure that it met the
requirements of subpart G. FRA would
not approve individual plans or plan
amendments that appear to discriminate
against a particular group of regulated
employees or that fail to meet the
requirements of subpart G. A railroad
could also not submit separate random
testing plans for subcategories of
regulated employees, such as engineers,
conductors, or signalmen.
Paragraph (b) would specify that FRA
will notify a railroad in writing whether
its plan is approved, with specific
explanation as to necessary revisions if
the plan is not approved. Plans that are
not approved must be revised and
resubmitted by a railroad within 30 days
of that notice. Failure to resubmit a
disapproved plan with the necessary
revisions would be considered a failure
to submit a plan. This is slightly
different from language currently found
in § 219.601(c),25 which states that a
25 The requirements of proposed paragraph (b) are
currently found in § 219.601(c) for random drug
testing, but are inexplicably missing from the
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failure to resubmit is a failure to
implement a plan. FRA believes that the
proposed language is a more accurate
description of the underlying violation,
however, because in such a situation
there is no approved random testing
plan to implement. This amendment
would not substantively change existing
requirements.
Paragraph (c) would require a railroad
to implement a random testing plan no
later than 30 days after FRA approval.
Currently, railroads are required to
implement random testing plans no
later than 60 days following FRA
approval. See §§ 219.601(d)(2) and
219.607(c)(2). When FRA’s random
testing requirements first became
effective in 1988, allowing railroads 60
days to implement an approved random
testing plan was appropriate given the
newness of the regulation. Since that
time, however, the railroad industry has
become quite familiar with FRA’s
random testing requirements. Even if a
railroad underwent an operational
change that required it to implement an
FRA random testing program for the
first time (for example, if a railroad with
15 or fewer covered employees began
engaging in joint operations 26), there are
numerous existing resources (such as
established service agents, C/TPAs, FRA
guidance, etc.) that can help the railroad
promptly and efficiently implement a
random testing plan. Given the
availability of these resources and the
knowledge of FRA’s random testing
program requirements throughout the
railroad industry, FRA believes that 30
days is now sufficient for a railroad to
implement a random testing plan
following FRA approval.
Paragraph (d)(1) would require a
railroad to submit a substantive
amendment to an already-approved
random testing plan at least 30 days
prior to its intended effective date. Any
such amendment could not be
implemented prior to FRA approval. See
§§ 219.601(a) and 219.607(a). An
example of a substantive amendment
would be any change to a railroad’s
construction of its random testing pools
or its method of conducting random
selections. If a railroad is uncertain
whether an amendment is substantive or
sections on random alcohol testing. FRA believes
this is an accidental oversight, as there is no logical
reason for these plan submission requirements to
apply only to random drug testing. Proposed
paragraph (b) would correct the oversight and
ensure that the requirements apply to both random
drug and alcohol testing.
26 Railroads should note that because this NPRM
is not proposing any amendments to the small
railroad exception of § 219.3(c), no railroad that was
previously excepted from the Subpart G random
testing requirements would lose that exception as
a result of this proposed rule.
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not, it should contact the Program
Manager for guidance.
Paragraph (d)(2) would incorporate
FRA guidance by clarifying that FRA
pre-approval is not required for nonsubstantive amendments, but that the
railroad must notify FRA of any such
amendment prior to its effective date.
See Compliance Manual 9.4.3.2.
Examples of non-substantive
amendments would include, but not be
limited to, replacing or adding a service
provider, such as a C/TPA, laboratory,
collector, or MRO. FRA recognizes that
current guidance in the Compliance
Manual describes a change in service
provider (except for a collector) as a
substantive change for which preapproval is necessary. Id. FRA’s
experience, however, has indicated that
requiring approval for a change of
service provider is not necessary
because it imposes a burden on
railroads that does not significantly
promote safety. Accordingly, paragraph
(d)(2) would specifically note that a
change in service providers is not a
substantive change requiring preapproval.
Paragraph (e) would address railroad
random testing plans that were
approved prior to the effective date of
the final rule. A railroad would not be
required to resubmit such a plan unless
it required amendment to comply with
the final rule. If a railroad is required to
submit either a new or an amended plan
as a result of the final rule, this
submission must be made at least 30
days before the effective date of the final
rule.
modifying the model plan as necessary
to fit its needs and the requirements of
subpart G, a railroad could then submit
it to FRA for approval.27
New language in paragraph (c) would
specify certain information that a
railroad’s random testing plan must
contain. Each item of information
identified by paragraph (c) would have
to be contained in a separate, clearly
identified section of a random testing
plan. For example, each plan would be
required to have separate sections
dedicated to items of information such
as the total number of covered
employees; the name, address, and
contact information for the railroad’s
Designated Employer Representative;
the method used to make random
selections; etc. While section 9.4.3 of
the Compliance Manual briefly
discusses similar information
requirements, proposed paragraph (c)
provides additional detail and
specificity regarding these mandatory
elements of information, which largely
mirror and somewhat expand the format
of FRA’s model random testing plan. By
specifying the elements that must be
included in every random testing plan,
FRA intends to further the
standardization of random testing plans.
Standardizing random testing plans
would promote compliance with
subpart G by making it easier for FRA
inspectors to evaluate plans, provide
guidance and feedback on the
development and implementation of
such plans to regulated entities, and
compare a railroad’s actual practice
with the required plan elements.
Section 219.607—Requirements for
Random Testing Plans
Generally, this section would direct a
railroad to submit and comply with a
random testing plan containing certain
items of information. This is not a new
requirement, and FRA guidance
provides direction on what information
such plans must contain.
Paragraph (a) would generally require
a railroad to submit a random testing
plan meeting the requirements of
subpart G and to comply with those
requirements when implementing the
plan. Similar language can currently be
found in § 219.601(b).
New language in paragraph (b) would
inform railroads, contractor companies,
and service agents that they may request
a model random testing plan from the
Program Manager. While this proposed
language is new, FRA has historically
made a model random testing plan
available to railroads, and the plan is
available for review and download on
FRA’s Web site at https://
www.fra.dot.gov/Page/P0345. After
Section 219.609—Inclusion of
Contractors and Volunteers in Random
Testing Plans
Currently, subpart G does not discuss
how a railroad’s random testing plan
should incorporate contractor
employees and volunteers. FRA has
nevertheless historically provided
railroads informal guidance on how to
manage random testing for covered
service contractors and volunteers. This
section would incorporate this guidance
into part 219.
The introductory text of paragraph (a)
would clearly state that a railroad’s
random testing plan must demonstrate
that all of its regulated service
contractor employees and volunteers are
part of an FRA-compliant random
testing program. Paragraphs (a)(1) and
(a)(2) would explain two ways that a
railroad could demonstrate compliance
with this requirement:
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27 After publication of the final rule, FRA will
revise and update its model random testing plan as
necessary to reflect any new requirements.
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• Under paragraph (a)(1), a railroad
could incorporate into its own random
testing plan any contractor employee
and/or volunteer performing regulated
service on its behalf. The railroad would
be responsible for ensuring that such
individuals were selected and tested
according to its random testing plan; or
• Under paragraph (a)(2), a railroad
could indicate in its random testing
plan that all contractor employees and/
or volunteers performing regulated
service on its behalf are included in a
non-railroad random testing program
meeting subpart G requirements. As
used in subpart G, a non-railroad
random testing program is one
conducted by either a service agent
(such as a C/TPA) or a contractor
company. A railroad utilizing this
option would be required to append to
its random testing plan one or more
addenda explaining how it would
ensure that its regulated service
contractor employees and volunteers are
in compliance with subpart G. Such
addenda could be either the nonrailroad random testing program itself or
a detailed description of the program
and how it complies with FRA
requirements.28
FRA believes the above options would
facilitate subpart G compliance. For
example, a railroad utilizing the
paragraph (a)(2) option would be able to
directly analyze the random testing
programs of its contracting companies.
This would help ensure that contracting
companies performing regulated service
for more than one railroad are in
compliance with subpart G.
Railroads should note that paragraph
(a) would not require them to accept
and incorporate a non-railroad random
testing program into their own random
testing programs. A railroad would
always be able to comply with subpart
G by incorporating regulated service
contractor employees and volunteers
into its own random testing program,
regardless of whether or not such
individuals were already part of a nonrailroad random testing program that
complied with the requirements of
subpart G.
Paragraph (b) would generally require
a random testing plan and any attached
addenda to contain sufficient details to
fully document that the railroad is
meeting the subpart G requirements for
all personnel performing regulated
service on its behalf.
28 Railroads would be able to obtain information
about the non-railroad random testing program
under proposed § 219.623 (discussed below), which
would require contractor companies and service
agents to provide random testing records upon
request to any railroad for which they are
performing random testing responsibilities.
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Paragraph (c) would specify that a
railroad accepting a non-railroad
random testing program would remain
responsible for ensuring that the nonrailroad program is properly subjecting
the railroad’s regulated service
contractor employees and volunteers to
the random testing requirements of
subpart G. For example, this provision
would require a railroad to evaluate for
subpart G compliance any non-railroad
random testing plan that it accepts.
Paragraph (d) would specify that FRA
would not require submission and
would not approve random testing plans
for contractor companies or service
agents under the provisions of
§ 219.603. FRA believes there may be a
vast number of such contractor
companies and service agents, and does
not believe it would be a beneficial use
of its resources to attempt to approve
and audit all of them. Rather, as
provided in paragraph (c), responsibility
for ensuring that such plans and
programs comply with the requirements
of subpart G would rest with the
railroad employing the contractor
company or service agent. The only time
FRA might address a non-railroad
random testing plan would be when the
plan itself was appended to a railroad’s
random testing plan, as described in
paragraph (a)(2). In such situations, FRA
could look at the non-railroad plan and
note instances of non-compliance,
which FRA would then communicate to
the railroad for it to pursue on its own
behalf with the contracting company or
service agent.
Section 219.611—Random Alcohol and
Drug Testing Pools
Subpart G currently provides
railroads little guidance on the creation
or management of random testing pools.
Random testing pools are only briefly
discussed in § 219.601(b)(2)(ii)–(iii),
which requires all covered employees to
be included in an FRA random testing
pool and each random testing pool to
contain only covered employees. FRA
believes that subpart G can be improved
by including this new section dedicated
to requirements on how to implement
random testing pools. In addition to
some new substantive requirements
(discussed below), this section would
also incorporate FRA guidance on the
proper creation and management of
random testing pools. See generally
Compliance Manual 9.5. FRA has been
auditing railroads according to the
standards of the Compliance Manual
since it was published in 2002.
Paragraph (a)—General
Paragraph (a) would require a railroad
to ensure that its random testing pools
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include all personnel performing
regulated service on its behalf, except
that a railroad would not have to
include regulated employees who are
part of a non-railroad random testing
program that has been accepted by the
railroad and is compliant with subpart
G.
Paragraph (b)—Pool Entries
Paragraph (b) would contain
requirements for pool entries, and the
introductory text would state that a
railroad must clearly indicate who will
be tested when a specific pool entry is
selected. FRA would not approve
vaguely defined pool entries lacking
either clarity or specificity. For
example, if a railroad’s pool entry is a
job function, the railroad must indicate
exactly who would be tested when an
entry is selected. Would the individual
performing that job function on the first
shift of the selected day be tested, or the
individual performing that job function
for the first train into a certain yard after
midnight? Would all individuals
performing that job function be tested or
would a single individual from that
group be tested? As an illustration, if a
pool entry was the job function ‘‘third
shift dispatcher,’’ additional
information (such as the desk that the
dispatcher was working on) would be
required if there was more than one
individual acting as a third shift
dispatcher and only one random test
was to be performed.
Paragraph (b)(1) would identify three
types of pool entries that are generally
permitted: (1) Individual employee
names or identification numbers; (2)
train symbols; and (3) specific job
assignments. These three options have
traditionally been accepted by FRA as
pool entries if they otherwise meet the
requirements of subpart G. See
Compliance Manual 9.5.3.1(f). If a
railroad wishes FRA to consider other
types of pool entries, it should include
them in the random testing plan
submitted to FRA for approval under
proposed § 219.605. Although not
required, FRA encourages smaller
railroads to use individual employees or
identification numbers as pool entries,
rather than trains or job assignments.
Individual pool entries are preferable for
a smaller railroad because this
maximizes its limited number of pool
entries. Larger pool entries (such as
train symbols), contain more than one
employee, and would make a small
railroad reach its required minimal
annual testing rate earlier in the year
than if it used individual pool entries.
This could be problematic if the small
railroad’s random testing is not spread
evenly through the year to achieve
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maximum deterrence effect, as required
by proposed § 219.615(c)(2) (discussed
below). Small railroads also do not face
the same logistical and cost difficulties
that make train symbols or job functions
useful as entries for larger railroads.
Paragraph (b)(1) would also
incorporate FRA guidance by stating
that pool entries must be of a generally
consistent size and type. See
Compliance Manual 9.5.3.1(f). For
example, a pool could not combine
individual employee entries with job
function entries that identify multiple
individuals. FRA would likely not take
exception to a pool consisting of train
symbols where the crew sizes might
slightly vary. However, FRA may take
exception to a pool made up of both
individual employees and job
assignments, or with job assignments
which might vary in size from one
employee to dozens of employees, as
pool entries of vastly different size and
type would adversely affect the chances
that some individuals may be selected
over others. A railroad contemplating
unusual or possibly controversial pool
make-ups should request FRA approval
for that approach in its random testing
plan.
Paragraph (b)(2) would state that pool
entries may not be constructed in a way
that permits a railroad field manager or
field supervisor to have discretion over
which regulated employees would be
selected for random testing. For
example, if the selected entry was ‘‘third
shift dispatcher’’ and more than one
individual met this description, a
railroad could not permit a field
manager/supervisor to decide which
third shift dispatcher would be subject
to random testing. Field managers/
supervisors may personally know the
individuals involved in a random
selection, and permitting a field
manager/supervisor to exercise
discretion in this manner could create a
situation where he or she was using that
discretion to target or protect a specific
individual. This language would
supplement other proposed provisions
prohibiting railroads from utilizing a
selection method or conducting random
testing collections in a way that permits
a railroad field manager or supervisor to
have discretion over which particular
regulated employees would be selected
for random testing.
Paragraph (b)(3) would incorporate
FRA guidance by requiring a railroad to
construct and maintain pool entries so
that all regulated employees have an
equal chance of being selected for
random testing during each selection
draw. See Compliance Manual 9.6.3.
This requirement would apply even to
regulated employees who were selected
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for random testing during a previous
selection draw. For example, a railroad
could not remove a regulated employee
from a testing pool simply because he or
she had already been selected for
random testing that year. In order for a
random testing program to have a
deterrence effect, each regulated
employee must believe that he or she
could be selected for testing during any
selection draw, regardless of whether or
not he or she was selected for testing the
week, month, or year before.
Paragraph (c)—Minimum Number of
Pool Entries
Paragraph (c) would contain new
language requiring a random testing
pool to have at least four entries. A
railroad could not use placeholder
entries (entries that do not represent
legitimate selections of regulated
employees, whether individuals, train
symbols, or job assignments) to comply
with this requirement. This would be a
new requirement not currently found in
the regulation, Compliance Manual, or
other published FRA guidance.
This proposal would address FRA’s
concern that random testing pools with
fewer than four entries (regardless of
whether the entries are individuals,
trains, or job assignments) can diminish
the deterrence effect of random testing.
For example, if a railroad with only
three regulated employees as entries in
a pool was required to test for alcohol
at a minimum annual rate of 10
percent,29 the railroad would meet this
requirement once it had selected and
tested only one regulated employee.
Once this test was completed, the
deterrence effect of random testing
would vanish because the railroad’s
other regulated employees could learn
that the only test required for the year
had already been completed. The
purpose of random testing is to make
every regulated employee expect that he
or she could be subject to an alcohol or
drug test any day. If the railroad has a
limited number of entries in its random
testing pool, this purpose is defeated.
Of course, the problem of small
random testing pools and a diminished
deterrence effect does not vanish once a
pool has four or more entries. The same
concern can exist for random testing
pools with 5, 10, or even more entries,
depending on the minimum annual
testing rate. For this reason, this
proposed amendment is only one
component of FRA’s solution for this
difficulty. The second component is
29 In this scenario, even though the railroad has
15 or fewer covered employees, it is required to
implement a Subpart G random testing program
under § 219.3 because it engages in joint operations
with another railroad.
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found in proposed § 219.613(d), which
would require a railroad to select and
test at least one entry from a random
testing pool per quarter (i.e., every three
months), regardless of the size of the
pool and regardless of whether the
railroad has already met its minimum
annual random testing rate requirement.
(A quarter would not need to be based
on a calendar determination if a railroad
is making selections on a monthly
basis.) While § 219.613(d) will be
independently discussed below, its
relevance to § 219.611(c) lies in the fact
that even a small random testing pool
can provide a deterrence effect, so long
as the pool members anticipate that at
least one individual will be selected and
tested per quarter. FRA intends
§§ 219.611(c) and 219.613(d) to work
together to promote the deterrence effect
of random testing.
FRA does not believe it would be
appropriate under § 219.613(d) to
require railroads to select and test at
least one entry from a pool per quarter
without also requiring pools to have at
least four entries. If the four entry
requirement did not exist, a railroad
could theoretically maintain a random
testing pool with only one entry, which
would then necessarily be subject to
random testing four times a year as a
result of proposed § 219.613(d). FRA
believes that four is appropriate for the
minimum number of pool entries
because it complements the proposed
§ 219.613(d) requirement to select and
test at least one entry per pool per
quarter, which results in a minimum
number of four tests per year. Under this
approach, perfect odds for a four entry
pool would result in each entry being
selected for random testing once per
year. (Of course, the odds are not
perfect, and any entry in a four entry
pool could end up being selected for
random testing four times a year. It is
this imperfection that generates the
deterrence effect of random testing, so
that every regulated employee believes
that he or she can be selected for testing
at any time, regardless of whether he or
she was previously selected for testing.)
Overall, FRA’s experience in helping
railroads implement random testing
programs indicates that there is no
compelling reason for a railroad to
maintain a random testing pool with
fewer than four entries. FRA believes
that this new requirement would not
adversely impact railroads with fewer
than four regulated employees, since
paragraph (c) would specify that a
railroad with fewer than four regulated
employees could comply with this
requirement by having those employees
incorporated into either a railroad
program or a non-railroad program (e.g.,
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by joining a C/TPA), so long as the
random testing pool contained at least
four entries.
Paragraph (d)—Pool Construction
Paragraph (d) would contain
requirements for the construction of
random testing pools.
Paragraph (d)(1) would prohibit a
railroad from placing in an FRA random
testing pool anyone who is not an
individual subject to the random
alcohol and drug testing requirements of
a DOT agency (i.e., an individual who
is not a ‘‘DOT-regulated employee’’).
Including non-DOT-regulated
employees in an FRA random testing
pool would dilute the chances of a DOTregulated employee being selected,
thereby diminishing the deterrence
value of random testing. Furthermore, a
railroad mixing DOT-regulated and nonDOT-regulated employees in random
testing pools would find it difficult to
determine whether it was properly
testing at the mandatory minimum
percentage rate for DOT-regulated
employees.
Paragraph (d)(2) would prohibit a
single railroad from including a
regulated employee in more than one
DOT random testing pool. For example,
a railroad could not include a regulated
employee who holds a CDL in both an
FRA and an FMCSA random testing
pool. Rather, as provided by proposed
§ 219.601(d), a railroad must determine
which agency regulates more than 50
percent of a regulated employee’s DOT
safety-sensitive duties and place that
employee in the random testing pool
that is testing at the required minimum
annual rate of that agency. This
paragraph would not prohibit a
regulated employee from belonging to
more than one FRA random testing pool
if he or she performs regulated service
for more than one railroad, each of
which includes him or her in its own
random testing program. Rather, it
merely would state that an individual
cannot be included in more than one
DOT testing pool by the same railroad.
Paragraph (d)(3) would permit a
railroad to place all DOT-regulated
employees (both FRA and non-FRA
regulated individuals) in a single
random testing pool. Such a mixed pool,
however, would have to be tested at the
highest minimum random testing rate
mandated by a DOT agency for any
individual pool entry. For example, if
the highest rate for an individual pool
entry was 50 percent, the entire pool
must be tested at a rate of 50 percent,
regardless of whether other individual
pool entries were subject to a lower
minimum testing rate. Similarly, this
paragraph would also permit railroads
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to place different categories of FRA
regulated employees into a single testing
pool, even if the minimum annual
testing rates for those categories were
different, so long as the entire pool was
tested at the highest minimum testing
rate for any individual entry.
This proposal is different from the
strict wording of certain provisions in
current part 219, which require
railroads using a service agent to ensure
that only FRA ‘‘covered employees’’ are
in the service agent’s random testing
pool. See §§ 219.601(b)(2)(iii) and
219.607(b)(1)(i). However, FRA has not
been actively enforcing this
requirement, and other current
provisions contradict it. See
§§ 219.602(i) and 219.608(f).
Furthermore, both FRA and ODAPC
have independently published guidance
specifying that employees regulated by
different DOT agencies can be mixed in
the same pool. See Compliance Manual
9.5.3.1(e) and Office of Drug and
Alcohol Policy and Compliance, Best
Practices for DOT Random Drug and
Alcohol Testing, available at https://
www.dot.gov/odapc/best-practices-dotrandom-drug-and-alcohol-testing.
Paragraph (d)(3), therefore, would make
the wording of part 219 consistent with
FRA and DOT’s actual practice.
Paragraph (d)(4) would incorporate
FRA guidance indicating that a railroad
does not need to place regulated
employees in separate pools for random
drug and alcohol testing selection. See
Compliance Manual 9.5.3.1(c). This
paragraph would not, however, permit a
railroad to make selections from a pool
for drug testing, and then sub-select for
alcohol testing from within that selected
group. It would permit a railroad,
however, to select employees for drug
testing only and other employees for
both drug and alcohol testing so long as
every employee in the pool had an equal
chance for selection for each group.
Paragraph (d)(5) would require a
railroad to incorporate an individual
into a random testing pool as soon as
possible after his or her hire or transfer
into regulated service. This requirement
would promote both safety and fairness
by ensuring that an individual newly
hired or transferred into regulated
service would be subject to selection
during the next random testing selection
period. Railroads must have a
mechanism to ensure that these
personnel are entered into a random
pool without delay.
Paragraph (e)—Frequency of Regulated
Service
Paragraph (e) would incorporate FRA
guidance addressing the potential
dilution of random testing pools by
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individuals who perform regulated
service on a de minimis basis. See
Compliance Manual 9.5.3.2. FRA
considers such individuals to present a
lesser safety risk than individuals who
routinely perform regulated service. The
purpose of paragraph (e) is to promote
safety by focusing random testing on the
population of employees who perform
regulated service on a routine basis.
Paragraph (e)(1) would prohibit a
railroad from placing individuals into a
random testing pool for any selection
period in which they are not expected
to perform regulated service. Such
individuals present a lesser safety risk,
and their inclusion in a random testing
pool would dilute the chances that an
individual who routinely performs
regulated service would be selected.
Paragraph (e)(2) would address
railroad employees who perform
regulated service on average less than
once a quarter. FRA considers such
employees to be a de minimis safety
concern and do not require them to be
included in a railroad’s random testing
program. A railroad may randomly test
de minimis employees, but must do so
by placing them in a separate random
testing pool, and not in a random testing
pool that includes employees who
perform regulated service on a routine
basis.
Paragraph (e)(3) would require
railroads to make a good faith effort
when determining the frequency with
which an individual performs regulated
service. Individuals who perform
regulated service on a de minimis basis
would have to be evaluated each
selection period as to the likelihood of
their performing regulated service in the
upcoming quarter.
Paragraph (f)—Pool Maintenance
Paragraph (f) would incorporate FRA
guidance by requiring a railroad to
update pool entries at least monthly,
regardless of how often selections are
made. See Compliance Manual 9.5.3.1
(introductory text) and 9.5.3.3. For
example, if a railroad conducted
selections every three months, it would
still have to update the pool entries on
a monthly basis. At each monthly
update, a railroad would be required to
ensure that each random testing pool
was complete and did not contain
outdated or inappropriate entries. It is
important for outdated and
inappropriate entries to be immediately
removed from random testing pools
because their inclusion dilutes the
population of regulated employees in
the pool.
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Paragraph (g)—Multiple Pools
Paragraph (g) would permit a railroad
to maintain more than one random
testing pool if it can demonstrate that
selecting from multiple pools would
still meet the requirements of subpart G
and that having multiple pools would
not adversely impact the construction of
pool entities. See Compliance Manual
9.5.3.1 (c). Multiple random testing
pools can be problematic if they create
an unnecessary level of complexity in
the management of the railroad’s
random selection and testing process.
Under paragraph (g), FRA would
evaluate the structure of a railroad’s
random testing pools to ensure that it
facilitates a coherent, effective, and
efficient deterrence program. Multiple
random testing pools that adversely
impact the deterrence value of random
testing would not be approved as part of
a railroad’s random testing plan.
Section 219.613—Random Testing
Selections
Properly constructed pools will not
guarantee an effective random testing
program if the method of selection from
those pools is flawed. Random testing
selections must be conducted in a
manner ensuring that each regulated
employee has an equal chance of being
selected during each selection draw.
This applies to selections at the level of
both the random testing pool and the
railroad as a whole. The purpose of this
section, therefore, is to ensure that a
railroad’s random testing selections are
conducted in a way that promotes the
deterrence effect of random testing.
Discussed in greater depth below,
paragraphs (a) through (k) would
incorporate FRA guidance on proper
random testing selections. See generally
Compliance Manual 9.6.
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Paragraph (a)—General
Paragraph (a) would require a railroad
to ensure that each regulated employee
has an equal chance of being selected
for random testing whenever a selection
is performed. A railroad may not
increase or decrease an individual’s
chance of selection by weighting any
particular entry or pool. See Compliance
Manual 9.6.3.3. For example, a railroad
may not remove an already-selected
regulated employee from a pool in order
to increase the chances that another
regulated employee will be selected for
testing. This requirement is intended to
help ensure that each regulated
employee believes that he or she can be
selected for testing during any selection
draw, even if he or she was already
selected for testing the week, month, or
year before.
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Paragraph (b)—Method of Selection
Paragraph (b)(1) would incorporate
FRA guidance by requiring a railroad to
utilize a selection method that meets the
requirements of subpart G and that is
acceptable to FRA. See Compliance
Manual 9.6.4.2. An acceptable method
would be either a computer selection
program or the proper use of a random
number table. Id. A railroad could
include a different selection method in
the random plan that it submits for FRA
approval under § 219.603, but the plan
would likely not be approved unless the
railroad could demonstrate clearly that
the method complied with subpart G.
For railroads wishing to conduct
selections through the use of a random
number table, FRA has drafted a
guidance document explaining how this
approach can be implemented in
compliance with subpart G. A railroad
can obtain this guidance document by
contacting the FRA Drug and Alcohol
Program Manager. It is also included as
Appendix C to the model random
testing plan, available on FRA’s Web
site at https://www.fra.dot.gov/Page/
P0345.
Paragraph (b)(2) would specify that a
selection method must be free of bias
(either real or apparent) and must
employ objective, neutral criteria to
ensure that every employee has a
statistically equal chance of being
selected during a specified time frame.
A selection method could not utilize
subjective factors that would permit a
railroad to manipulate selections to
either target or shield from testing a
certain regulated employee. See
Compliance Manual 9.6.1. These
requirements are found in multiple
sections of the current rule addressing
random drug testing (for example,
§ 219.601(b)(1) and § 219.602(e)), but are
missing from the sections on random
alcohol testing. FRA believes that this is
an accidental oversight, as there is no
logical reason for drug selections to be
made according to objective and neutral
criteria, but not alcohol selections.
Furthermore, FRA has historically
interpreted subpart G in a manner that
applies these requirements to random
alcohol testing. See generally
Compliance Manual 9.6 (discussing
selection procedures without
distinguishing between random drug
and random alcohol testing). This
paragraph would correct this oversight
and ensure that the requirements
specifically apply to both random drug
and random alcohol testing.
Paragraph (b)(3) would require a
railroad to be able to verify the
randomness of its selection method.
Examples of how a railroad could do so
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43871
include, but are not limited to,
analyzing the source code of a computer
selection program or reviewing past
selections to ensure that the results
appear to conform to randomness (e.g.,
the same individual is not always
selected first). Paragraph (b)(3) would
also require a railroad to maintain any
records necessary to document random
selections for a minimum of two years
from the date the designated testing
window for the selection closed. Such
records include, but are not limited to,
documentation indicating the
composition of the random selection
pool and the entries that were selected
from it. See Compliance Manual 9.6.2.
Paragraph (c)—Minimum Random
Testing Rate
Paragraph (c) would incorporate FRA
guidance by requiring a railroad to make
sufficient selections to ensure that each
random testing pool will meet the
minimum annual testing rates. See
Compliance Manual 9.6.5. To support
the deterrence effect of random testing,
railroads would also have to ensure that
random tests are reasonably distributed
throughout the calendar year. See
Compliance Manual 9.6.5.1. FRA
understands that the distribution of
random selections and tests throughout
the year cannot be absolutely perfect.
Nevertheless, a railroad would be in
violation of this section if its
distribution of selections and tests
throughout the year suggested that the
tests were loaded into certain months or
quarters because the railroad had failed
to properly monitor its random test
completion rate and was trying to
comply with the minimum annual
testing rate at the last minute. Similarly,
a railroad would be in violation of this
paragraph if it made all its selections
and conducted all required testing
within the first quarter of a year, thereby
eliminating the deterrence value of
random testing for the remainder of the
year.
Paragraph (c)(2) would incorporate
FRA guidance by requiring a railroad to
continuously monitor changes in its
workforce to ensure that the required
number of selections and tests will be
completed annually. See Compliance
Manual 9.6.5.4.
Paragraph (c)(3) would explain how a
railroad must calculate the total number
of regulated employees eligible for
random testing selection throughout a
year and the total number of selections
that it needs to complete and test to
meet the minimum annual testing rate.
The substantive requirements of this
proposed paragraph are essentially the
same as those contained in current
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§§ 219.601(b)(2)(ii) and 219.607(b)(1),
and no substantive change is intended.
Paragraph (d)—Selection Frequency
Paragraph (d) would require a railroad
to select and test at least one entry from
each random testing pool every three
months (i.e., once per quarter),
regardless of the size of the pool or how
often selections are made. This is a new
requirement not currently found in
subpart G or FRA’s published guidance.
Paragraph (d) would not, however,
excuse the railroad from complying
with the applicable minimum annual
percentage rates (e.g., for a pool of 16
MOW workers subject to a minimum
annual random drug testing rate of 50
percent, a railroad would still have to
select and test a minimum of eight
entries per year).
This paragraph would complement
proposed § 219.611(c) (discussed
above), which would require random
testing pools to include at least four
entries. Both proposals would address
FRA’s concern that small random
testing pools do not create a sufficient
deterrence effect. As discussed above,
FRA believes a sufficient deterrence
effect would be created if at least one
entry from a random testing pool is
selected for testing each quarter. FRA is
soliciting public comment on whether it
should consider requiring at least one
selection to be made at a rate greater or
less than quarterly.
FRA does not believe that the
combined requirements of proposed
§§ 219.611(c) and 219.613(d) would
create an undue burden for railroads. A
railroad would have the following
options to comply with these proposed
provisions:
• If the railroad has four or more
entries in each random testing pool, it
could select and test at least one entry
from each pool per quarter.
• If the railroad has fewer than four
regulated employees, it could join a C/
TPA so that its regulated employees are
placed into a pool with regulated
employees from other DOT-regulated
entities. Any C/TPA pool with FRA
regulated employees would still be
required to have more than four entries,
and at least one entry from each pool
must still be tested per quarter.
• If an employer is a contractor
company performing regulated service
for a railroad, the contractor’s regulated
employees could be incorporated into
the railroad’s subpart G random testing
program.
Paragraph (e)—Discarded Selection
Draws
Paragraph (e) would require a railroad
to utilize a completed selection draw to
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identify which individuals must be
subject to random testing. This
requirement would apply regardless of
the number of entries selected. A
completed selection draw could not be
discarded without an acceptable
explanation, such as the selection was
made from a pool that was incomplete
or inaccurate (e.g., a selected employee
was no longer employed by the
railroad).30 For each instance where
selected individuals were not random
tested, a railroad would have to
maintain records documenting the
specific reason why testing was not
completed. This requirement would
prevent a railroad from discarding a
selection simply because it was not
satisfied with who was or was not
selected for random testing (i.e., because
the railroad wished to either target or
protect certain regulated employees).
For example, a railroad manager would
be prohibited from discarding a
selection draw because he wished to
protect a selected individual whom he
knew was using drugs or alcohol in
violation of FRA prohibitions. See
Compliance Manual 9.6.4.1.
Paragraph (f)—Increasing Random
Selections
Paragraph (f) would specify that if a
railroad was not able to complete a
collection for all selections during the
designated testing window, as provided
by § 219.615(f) (which would require a
railroad to have an acceptable reason for
an incomplete collection) or
§ 219.617(a)(3) (which would excuse an
employee notified of a random test in a
situation involving a substantiated
medical emergency involving the
employee or an immediate family
member), the railroad may over-select
during the draw for the next designated
window to ensure that it is meeting the
minimum random testing rate. Railroads
doing so should remain aware, however,
of the § 219.613(c) requirements that
random tests be distributed reasonably
throughout the calendar year. A railroad
could violate this requirement if it had
numerous incomplete collections
throughout the calendar year and then
drastically increased selection during
the final designated testing window in
that year in order to meet the minimum
random testing rate.
30 Railroads should note that while proposed
§ 219.613(e) would permit a selection draw to be
discarded for an ‘‘acceptable’’ reason, it does not
permit the cancellation of a random test that has
already been completed as a result of that draw. See
§ 40.209(b)(10) (prohibiting a railroad from
cancelling a test because an employee claimed that
he or she was improperly selected for testing).
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Paragraph (g)—Selection Snapshots
Paragraph (g) would incorporate FRA
guidance by requiring a railroad to
capture and maintain an electronic or
hard copy snapshot of the entries in
each random testing pool at the time of
a selection. While FRA guidance
currently directs railroads to maintain a
hard copy of such snapshots, this
proposed provision would specifically
permit electronic copies. See
Compliance Manual 9.5.3.4. The
snapshot must be contemporaneous
with the time of the selection, and pool
entries could not be re-created from
records after the time of the selection.
Documentation of each snapshot would
be required to be maintained for two
years, in accordance with the recordkeeping requirements of subpart J
(referenced by proposed § 219.623). FRA
would review such snapshots during its
audits to ensure that the random testing
pool from which a selection was made
was complete.
Paragraph (h)—Multiple DOT Agencies
Paragraph (h) would remind railroads
that regulated employees who are
subject to the regulations of more than
one DOT agency must be subject to
random drug testing at or above the
minimum annual percentage rate set by
the DOT agency regulating more than 50
percent of the employee’s DOT
functions, as provided by proposed
§ 219.601(d).
Section 219.615—Random Testing
Collections
This section would contain
requirements governing random testing
collections, many of which are
incorporated from traditional FRA
guidance on the proper management of
random testing collections. See
generally Compliance Manual 9.7.3.
These requirements would supplement,
and not replace, the drug and alcohol
testing procedural requirements of part
40, which apply to random testing
under § 219.701.
Overall, the proposed requirements of
this section would continue to
emphasize the deterrence value of
random testing. If specimen collections
are thoughtfully planned and properly
executed, regulated employees should
generally perceive that they may be
selected for random testing anytime
they are subject to performing regulated
service.
Paragraph (a)—Minimum Random
Testing Rates
Paragraph (a) would require a railroad
to complete a sufficient number of
random testing collections from each
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random testing pool to meet the
minimum annual percentage rates.
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Paragraph (b)—Designated Testing
Window
Paragraph (b) would incorporate FRA
guidance by requiring a railroad to
complete the collection for a selected
pool entry within its designated testing
window (which a railroad must describe
in its random testing plan under
proposed § 219.607(c)(13)). See
generally Compliance Manual 9.7.3.2. A
designated testing window is the
specified time frame within which a
railroad must complete a collection
once an entry has been selected for
random testing (for example, from
midnight on Monday through midnight
the following Monday). Such designated
testing windows are necessary because
regulated employees may not be on-duty
and subject to performing regulated
service on the date for which they are
selected. If a railroad does not complete
a collection within the designated
testing window, the selection is no
longer valid. A selected employee
cannot be subjected to random testing
outside a designated testing window.
See generally Compliance Manual
9.7.3.2.
Paragraph (c)—Collection Timing
Paragraph (c)(1) would state that a
regulated employee may be subject to
random testing only when he or she is
on duty and subject to performing
regulated service. Sections 219.601(b)(6)
and 219.607(b)(5) currently require a
covered employee to be on-duty when
subject to testing. The additional
language in this proposed paragraph is
intended for clarification purposes only.
Paragraph (c)(2) would restate the
current requirement that random
collections must be unannounced and
spread reasonably through the calendar
year. See § 219.602(g) and
§ 219.607(b)(3). As provided by FRA
guidance, collections must also be
spread unpredictably throughout a
designated testing window and
reasonably cover all operating days of
the week (including operating weekends
and holidays), shifts, and locations. See
Compliance Manual 9.7.3.3. While the
distribution of collections during a
specific time period does not have to be
perfectly equal to that time period’s
percentage of a railroad’s total
operations (e.g., if 20 percent of a
railroad’s operations occur during a
specific day in a week, a railroad is not
required to conduct exactly 20 percent
of its random tests during that day),
sufficient random testing during a time
period must be conducted to establish a
deterrence effect. Id. For example, a
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railroad would be in violation of this
provision if 30 percent of its operations
occurred on Saturdays and Sundays, but
only 5 percent of collections occurred
on a Saturday and no tests occurred on
Saturday afternoons. Id. If a railroad
predictably did not perform random
testing during a certain time, day,
month, etc., an employee may believe
that he or she could use drugs and/or
alcohol at those times, without risk of
FRA random testing.
Paragraph (c)(3) would incorporate
FRA guidance by requiring random
alcohol test collections to be performed
unpredictably and in sufficient numbers
at either end of an operating shift to
establish an acceptable deterrence effect
throughout the entire shift. See
Compliance Manual 9.7.3.5. The
predictability of alcohol testing is a
special concern for FRA because breath
testing can only detect alcohol use for
a limited amount of time (a few hours)
afterwards. As stated earlier, FRA
realizes that railroads often conduct
alcohol tests at the beginning or end of
a train crew’s shift for operational
reasons, but alcohol testing must be
conducted at other times to prevent
crews from being able to predict when
tests are likely to occur. For example, if
random alcohol testing occurs only at
the end of shifts, an employee may
consume alcohol at the beginning of a
shift under the assumption that his or
her alcohol use would not be detectable
by the end of the shift. FRA is therefore
proposing to require a railroad to
conduct some of its random alcohol
tests at both the beginning and end of
shifts. At least 10 percent of a railroad’s
random alcohol tests should occur at the
opposite end of the shift in which it
usually tests in order to generate an
acceptable level of deterrence
throughout an entire shift. See
Compliance Manual 9.7.3.5.
Paragraph (c)(4) would clarify that if
a regulated employee is selected for
both random drug and alcohol testing,
these tests may be conducted separately,
so long as both tests can be completed
by the end of the employee’s shift and
the railroad does not inform the
employee that an additional random test
will occur later. Conducting the tests in
this manner could have two benefits for
a railroad. First, it could minimize
burdens resulting from either
operational delays or possible hours-ofservice violations due to the sometimes
lengthy times required for drug testing
specimen collections. Second, it could
support the railroad’s compliance with
the FRA requirement that at least 10
percent of random alcohol tests must be
conducted at opposite ends of the shift.
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Paragraph (d)—Collection Scheduling
The introductory text of paragraph (d)
would incorporate FRA guidance by
clarifying that, while pool entries must
be selected randomly, railroads do not
have to select random testing dates or
schedule specimen collections
randomly. See Compliance Manual
9.7.3.2. A railroad may choose the date
and time on which a pool entry is to be
notified and tested, so long as its pool
entries are randomly selected and urine
collections and breath alcohol tests are
completed within the railroad’s
designated testing window. As provided
by paragraph (d)(1), scheduling could be
based upon the availability of the
selected pool entry, the logistics of
performing the collection, and any other
requirements of subpart G. See
Compliance Manual 9.7.3.2. However,
when a selected pool entry contains
different employees at different times
(such as a train crew or a job function),
paragraph (d)(2) would prohibit a
railroad from using its discretion to
schedule the test on a date which would
deliberately target or protect a particular
employee. See Compliance Manual
9.7.3.2.
Similarly, paragraph (d)(2) would
prohibit railroad field supervisors and/
or managers from using their discretion
or personal knowledge to intentionally
choose dates or times that would alter
the identity of who would be tested. See
Compliance Manual 9.7.3.6. FRA
understands that the individual who
schedules testing dates for a railroad
may have some personal knowledge as
to who would be tested as a result of
that scheduling. Generally, FRA
believes that any risk to the integrity
and credibility of a random testing
program is minimized when the person
making scheduling decisions is located
at the level of the railroad’s
headquarters, rather than at the field
level where it is easier for personal
considerations to come into play.
Paragraph (e)—Notification
Requirements
Paragraph (e)(1) would restate existing
§ 219.601(b)(4), which prohibits a
railroad from notifying a regulated
employee of his or her random testing
selection until the duty tour in which
the random testing collection is to be
conducted. Consistent with this existing
regulatory requirement, notification may
occur only so far in advance as is
reasonably necessary to ensure the
regulated employee’s presence at the
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time and place of the scheduled
collection.31 See § 219.601(b)(4).
Paragraph (e)(2) would further
provide that, unless there is an
acceptable reason for the delay,
collections must be conducted as soon
as possible and commence no later than
two hours after notification. This would
be a new requirement not currently
found in FRA regulations or guidance.
(While FRA guidance currently directs
railroads to notify train crews in transit
no more than an hour before their
arrival, this guidance applies only to
train crews selected for random testing
and does not directly address the time
in which a random testing collection
must begin. See Compliance Manual
9.7.3.8.) FRA believes that two hours is
more than enough time to begin a
collection once a regulated employee
has been notified of his or her selection
for random testing.
Consistent with current guidance,
paragraph (e)(2) would require a
regulated employee to be monitored
after notification and, when possible,
immediately escorted by supervisory or
management personnel to the collection
location. Id. These requirements would
ensure that a regulated employee
notified of his or her selection for
random testing does not have the
opportunity to either obtain false
samples/contaminating products or to
otherwise avoid the collection. Id.
Paragraph (e)(3) would restate current
provisions requiring a railroad to inform
a notified regulated employee that his or
her selection was on a random basis.
See §§ 219.601(b)(7) and 219.607(b)(7).
It would also clarify that a railroad may
satisfy this requirement by showing the
regulated employee a completed DOT
Custody and Control Form (CCF) or
DOT Alcohol Testing Form (ATF)
indicating the basis for testing, so long
as the employee has been shown and
directed to sign the CCF or ATF as
required by §§ 40.73 and 40.241.
Paragraph (f)—Incomplete Collections
Paragraph (f) would require a railroad
to use due diligence to ensure that a test
is completed for each selection, unless
there is an acceptable reason for not
conducting the test. This language
would incorporate historic FRA
guidance directing railroads to ensure
that a collection is completed for each
selection, unless there is an acceptable
reason for failing to do so. See
31 As stated earlier, while § 219.601(b)(4)
currently specifies that these notification
requirements apply to random drug testing, similar
language is missing from the sections on random
alcohol testing. The proposed provision would
correct this oversight and clarify that these
requirements also apply to random alcohol testing.
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Compliance Manual 9.7.3.7. New
language would require a railroad to
document its reasons for failing to
complete the test of a selection in
sufficient detail to allow FRA to
determine whether due diligence was
exercised and whether there was an
acceptable reason for the failure.
Under this paragraph, only an
unforeseen and unpredictable problem
would be an acceptable explanation for
not completing a collection. An example
of an acceptable explanation would be
an illness of a regulated employee that
extended throughout the entire
designated testing window. FRA would
likely not accept explanations involving
problems that should be within the
railroad’s control (for example, a
collector that does not show up for a
collection or the lack of an available
supervisor when required). FRA would
also not accept an explanation that was
based upon convenience or the
operational priority of certain trains
within a railroad’s system.
Paragraph (g)—Hours-of-Service
Limitations
For covered employees, paragraph (g)
would govern the relationship between
FRA’s random testing and HOS
requirements. Under this paragraph, a
random testing collection not completed
within a covered employee’s HOS
limitations must be immediately
terminated and may not be rescheduled.
Since the railroad controls the timing of
a random test, a railroad is responsible
for ensuring that sufficient time is
available to complete a random testing
collection, even for situations involving
an employee who has a shy bladder and
utilizes the entire three hours permitted
by § 40.193 to provide a urine sample
for drug testing. See Interpretive
Guidance Manual at 41.
Paragraph (g)(2), however, would
require a railroad to continue a random
testing collection regardless of any HOS
limitations when a direct observation
collection is required under § 40.67(a) or
(c).32 See Interpretive Guidance Manual
at 41. Generally, a mandatory direct
observation is required when: (1) There
is evidence indicating that the employee
32 Direct observation collections are also required
under § 40.67(b) for all return-to-duty and followup testing. Proposed paragraph (g)(2) would not
apply to Federal return-to-duty tests, however,
because an employee must have a negative returnto-duty test before resuming the performance of
regulated service. It also would not apply to Federal
follow-up tests because their scheduling is within
the discretion of the railroad. However, a direct
observation follow-up test would have to proceed
regardless of HOS limitations if something occurred
during the collection that would have
independently triggered a mandatory direct
observation test under §§ 40.67(a) and (c).
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may have attempted to tamper with his
or her specimen at the collection site
(for example, the temperature of the
employee’s urine specimen is out of the
normal range); or (2) an MRO has
ordered an immediate direct observation
collection because the employee had no
legitimate medical reason for an invalid
laboratory result or because the
employee’s positive or refusal
(adulterated/substituted) test result was
cancelled because a split specimen test
could not be performed. See Office of
Drug and Alcohol Policy and
Compliance, DOT’s Direct Observation
Procedures, available at https://
www.dot.gov/odapc/dot-directobservation-procedures. Direct
observation collections would have to
be completed in these situations,
regardless of HOS limitations, because
there is some indication that the
employee, perhaps knowing that he or
she may test positive, may have tried to
beat the test. If a mandatory direct
observation collection does result in an
HOS violation, the railroad would be
required to submit an excess service
report as required by 49 CFR part 228.
In such situations FRA would use its
prosecutorial discretion in deciding
whether to pursue action against the
railroad for the HOS violation. See
Interpretive Guidance Manual at 41.
Section 219.617—Participation in
Random Alcohol and Drug Testing
This section would combine, clarify,
and expand upon the participation
requirements currently found at
§ 219.603 (for drug testing) and
§ 219.609 (for alcohol testing).
Under paragraph (a)(1), a railroad
would have to require a selected
regulated employee to cooperate in
random testing. If an individual was
performing regulated service when
notified of his or her selection,
paragraph (a)(2) would require the
railroad to ensure that he or she ceased
to perform regulated service and
proceeded to the testing site as soon as
possible without affecting safety. The
railroad would also have to ensure that
a regulated employee’s absence from his
or her assigned duties did not adversely
affect safety.
Paragraph (a)(3) would specify that a
regulated employee who has been
notified of his or her selection could be
excused from random testing only by a
substantiated medical emergency
involving either the employee or an
immediate family member. This
requirement is currently found in
§§ 219.603 and 219.609, and railroads
have often questioned FRA to clarify its
meaning when faced with an employee
who failed to appear for or abandoned
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a random test, claiming a medical
emergency.33 New language in
paragraph (a)(3) would clarify that a
medical emergency is an acute medical
condition requiring immediate
emergency care. A regulated employee
claiming that he or she had a medical
emergency would be required to provide
verifiable documentation from a
credible outside professional (such as a
doctor, dentist, hospital, law
enforcement officer, or school authority)
within a reasonable time after the
emergency occurred. A regulated
employee who was excused from
random testing because of a properly
documented medical emergency could
not be later subject to random testing by
the railroad under the same selection. A
regulated employee who avoided a
random test by claiming a medical
emergency that was unverifiable or did
not meet the threshold of an acute
medical condition requiring immediate
emergency care would be deemed to
have refused the test.
While paragraph (a) would address
the random testing responsibilities of a
railroad, paragraph (b) would address
the random testing responsibilities of a
regulated employee. Under paragraph
(b)(1), a regulated employee would be
required to cooperate with the random
selection and testing process and to
proceed to a testing site upon
notification as soon as possible without
adversely affecting safety. Under
paragraph (a)(2), the responsibility for
determining whether there would be an
adverse effect on safety would rest with
the railroad, and a railroad should not
notify a regulated employee of his or her
selection for random testing until it has
determined that the individual’s
absence from his or her duties would
not adversely affect safety. A notified
regulated employee should therefore
assume that the railroad has already
determined that he or she may report
immediately for testing without
adversely affecting safety. Under
paragraph (b)(2), a regulated employee
33 The text of current §§ 219.603 and 219.609
specifically states that an employee may be excused
from testing only for a ‘‘documented medical or
family emergency.’’ Historically, FRA has
interpreted a ‘‘family emergency’’ to mean a
medical emergency involving a family member. In
other words, FRA would not permit a covered
employee to be excused from random testing for a
‘‘family emergency’’ that was not also a medical
emergency. For example, a covered employee
would not be excused from random testing because
he or she needed to pick up his or her child at
daycare, unless that child was experiencing a
medical emergency. Therefore, the purpose of
FRA’s proposed language, which applies to a
‘‘substantiated medical emergency involving the
employee or an immediate family member,’’ is to
clarify how FRA has been interpreting the current
language, and not to make any substantive changes
to the current requirements.
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would be required to fully cooperate
and comply with the testing procedures
of part 40 (such as providing the
required specimens and completing the
required paperwork and certifications),
which are incorporated into FRA’s
random testing requirements by
§ 219.701.
Section 219.619—Positive Alcohol and
Drug Test Results and Refusals;
Procedures
This section would combine the
requirements for responding to positive
random alcohol and drug testing results
currently found in §§ 219.605 and
219.611, and would clarify that these
procedures apply to refusals as well. No
substantive change is intended to the
current requirements.
Section 219.621—Use of Service Agents
This section would contain new
provisions clarifying the role that a
service agent, such as a consortium/
third party administration (C/TPA), may
play in supporting a railroad’s FRA
random testing program. Although the
role of service agents is discussed in
subpart Q and Appendix F of part 40,
part 219 does not discuss the
responsibilities and limitations for
service agents that perform random
testing responsibilities on behalf of
railroads. Currently, service agents are
only incompletely addressed in
§§ 219.601(b)(2)(iii) and 219.607(b)(1)(i),
which briefly mention how a railroad
can use a service agent to maintain
random testing pools and perform
random selections. Proposed § 219.621
would improve the regulation by
providing additional direction on how
service agents may and may not be
utilized.
Paragraph (a) would clarify that
railroads may use service agents to
perform any role specifically permitted
under subpart Q of part 40 (Roles and
Responsibilities of Service Agents).
Examples of these roles include, but are
not limited to, maintaining random
testing pools, conducting random
selections, and performing random drug
collections or alcohol tests.
Paragraph (b) would prohibit railroads
from using a service agent to notify a
regulated employee that he or she has
been selected for Federal random
testing, as this function must be
performed by the individual’s direct
employer. Using a service agent (such as
a collector) to notify a regulated
employee of his or her selection is
problematic because the regulated
employee may not be aware that the
service agent is an authorized agent of
the railroad. This doubt may lead the
regulated employee to refuse to comply
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with the service agent’s random testing
instructions, which could result in the
employee being charged with a refusal.
Rather than addressing the difficulties
of ensuring that regulated employees are
fully aware and confident of a service
agent’s authority, FRA believes it is
simpler to require all notifications to be
issued by an individual’s direct
employer, unless otherwise provided for
by the railroad’s FRA-approved random
testing plan. If a railroad’s random
testing plan does specifically authorize
a service agent to notify regulated
employees, FRA would likely only
approve that plan if it specified that the
railroad would train or otherwise ensure
that its regulated employees knew that
a service agent was authorized to
provide such notification. A direct
employer must notify regulated
employees of their selection for random
testing also because § 219.617(a)(2)
requires a railroad to ensure that a
notified regulated employee proceeds to
the collection site as soon as possible
without affecting safety. This safety
determination should be made by an
individual who is responsible for the
operational safety of the railroad, not a
service agent who would probably not
have the requisite knowledge and
experience to make such a safety
determination.
Paragraph (b) would also remind
railroads that a service agent may not
perform any roles that are reserved for
employers under § 40.355 and would
specify that only a railroad or a
contractor company performing
railroad-accepted testing can be
considered an employer under § 40.355.
Paragraph (c) would remind railroads
and contractor companies of their
responsibilities under § 219.9 (discussed
above) by clarifying that the primary
responsibility for subpart G compliance
rests with the railroad, although FRA
reserves the right to bring an
enforcement action against a railroad, its
service agents, its contractors, or its
employees.
Paragraph (d) would clarify that a
C/TPA conducting random testing may
calculate the number of regulated
employees who must be tested either for
each individual railroad belonging to
the C/TPA, or for the total number of
regulated employees covered by the
C/TPA. If a C/TPA is making selections
from a combined employer random
pool, it must ensure that it is testing at
a rate equal to the highest minimum
annual percentage rate established
under the random testing regulations of
a DOT agency for any individual
member of that pool.
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Section 219.623—Records
This section would contain general
provisions governing the maintenance
of random testing records. This section
would not make any major substantive
changes to the record requirements
currently found in subpart G.
Paragraph (a) would specify that
railroads are required to maintain
random testing records for a minimum
of two years, as provided by proposed
§ 219.901. This requirement is currently
found in § 219.901(c) and § 219.903(c).
Paragraph (b) would contain new
language clarifying that contractor
companies and service agents
performing subpart G random testing
requirements must provide required
records whenever requested either by
FRA or the employing railroad, although
the railroad remains ultimately
responsible for maintaining the records
required by subpart G.
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Section 219.625—FRA Administrator’s
Determination of Random Alcohol and
Drug Testing Rates
FRA is proposing to combine the
provisions currently addressing the
Administrator’s determination of the
minimum annual percentage rate for
random drug testing (current § 219.602)
and random alcohol testing (current
§ 219.608) into a new § 219.625. No
substantive changes have been made to
the rate determination criteria found in
the current rule for either drugs or
alcohol, although some of the language
has been streamlined and clarified. (For
example, FRA is proposing minor
changes to clarify that FRA only
considers MIS data for random testing
positives and/or violations when
determining the minimum annual
random percentage rates.) With the
exception of the proposed provisions
contained in paragraph (c), this section
only contains provisions related to the
determination of random testing rates
that are already in current subpart G.
Paragraph (c) would contain new
language establishing criteria for the
future incorporation of any new
category of regulated employees added
to the scope of part 219. Although
paragraph (c) would immediately affect
the expansion of part 219 to MOW
employees, it is also intended to apply
if FRA decides to expand part 219 to
cover additional categories of
employees.
For any new category of employees,
the introductory text of paragraph (c)
would establish the initial minimum
annual percentage rates for random drug
testing (50 percent) and random alcohol
testing (25 percent). As previously
discussed in Section III.H of this NPRM
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in relation to MOW employees, FRA
believes that these higher initial random
testing rates are appropriate because
FRA set the same rates when it initiated
random testing for covered employees.
FRA believes it is fair to start all new
categories of regulated employees at the
same rates.
Paragraph (c)(1) would provide that
the Administrator would reconsider
these initial minimum annual
percentage rates once FRA had at least
18 months worth of MIS testing data for
the new category of regulated
employees. FRA briefly considered
proposing that the rates could be
changed once it had data for two years,
but concluded that this approach could
be problematic given that railroads are
only required to submit MIS data
annually. See § 219.800(a). If a new
category of regulated employee was
added to part 219 any time after the start
of the MIS reporting year, it would take
three MIS reporting cycles (three years)
to collect two complete years’ worth of
data. By requiring only 18 months of
MIS data, FRA could reconsider its
initial testing rates based on only two
years of MIS reports on the drug and
alcohol testing results of regulated
employees, so long as this new
employee category was incorporated
within the first six months of FRA’s MIS
reporting cycle. FRA believes this
approach would provide greater
flexibility to adjust initial testing rates
in response to MIS data indicating that
such an adjustment may be appropriate.
Paragraph (c)(2) would provide that
the Administrator will determine
separate random testing rates for each
new category of regulated employees for
a minimum of three full calendar years
after that category has been incorporated
into part 219. Paragraph (c)(3) would
further provide that the Administrator
could combine a new category of
regulated employees with the larger
regulated employee population once the
categories’ positive rates have been
identical for two years. This would
permit the Administrator sufficient time
to ensure that the deterrence value of
the random testing rates has been
clearly established before considering
whether to change the testing rates for
a new employee category. The
Administrator would also be able to
carefully monitor positive rate trends for
the new category that might otherwise
be lost if these employees were
automatically made part of the larger
population of regulated employees.
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Subpart H—Drug and Alcohol Testing
Procedures
Section 219.701—Standards for Drug
and Alcohol Testing
Paragraphs (a) and (b) of this section
would be amended to reflect the
proposed separation of the requirements
for reasonable suspicion and reasonable
cause into two separate subparts, as
discussed in Section VI.A of this
preamble. These paragraphs would also
be amended to clarify that any alcohol
or drug testing conducted as the result
of a co-worker or non-peer referral
under a proposed subpart K peer
prevention program must be conducted
under FRA authority and comply with
the requirements of part 40.
Currently, paragraph (c) of this
section requires covered employees
notified of their selection for testing to
proceed to the testing site immediately,
or as soon as they can stop performing
covered service safely. FRA is proposing
to move this requirement to § 219.11(e).
FRA believes this provision is a general
requirement that belongs more
appropriately in § 219.11, titled
‘‘General conditions for chemical tests’’.
Subpart I—Annual Report
Section 219.800—Annual Reports
Paragraph (b) of this section would be
amended to update and correct the
internet link containing the electronic
version of the MIS form and information
on where to submit the form.
FRA is also proposing a new
paragraph (f) specifying that railroads
would be required to report MIS
information separately for covered
employees and MOW employees.
Separate MIS reporting would allow
FRA to gather the data necessary to
establish separate random testing rates
for MOW employees. FRA is specifically
requesting public comment on what
type of burdens this would impose on
railroads and whether separate MIS
reporting should be required only when
there are separate testing rates for
covered employees and MOW
employees.
Subpart J—Recordkeeping
Requirements
Section 219.901—Retention of Alcohol
and Drug Testing Records
FRA’s requirements for the retention
of alcohol testing records are currently
contained in § 219.901, while the
requirements for the retention of drug
testing records are contained in
§ 219.903. The requirements contained
in these two sections, however, are
essentially identical. For the purpose of
streamlining the regulations, therefore,
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FRA is proposing to incorporate the
requirements for both alcohol and drug
testing records into § 219.901, which
would be renamed ‘‘Retention of alcohol
and drug testing records.’’ This
structural change is intended for
clarification purposes only, and no
major substantive amendments are
being proposed.
In addition to this structural change,
FRA is also proposing several minimal
and clarifying amendments to the
provisions of § 219.901, as discussed
below.
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Paragraph (a)(2)
FRA currently requires railroads to
maintain all Federal alcohol and drug
test results, including negative or
cancelled results, for a period of two
years. See § 219.901(c)(2)(i)–(iii) and
§ 219.903(c)(2)(i)–(ii). Under
§ 40.333(a)(4), however, railroads must
maintain documents related to negative
or cancelled alcohol and drug tests only
for a period of one year. Generally,
whenever a railroad is subject to
multiple recordkeeping requirements of
different lengths, it must comply with
the requirement that mandates the
longest retention period. See
Compliance Manual 14.5. Railroads are
not excused from complying with FRA’s
two-year retention requirement for
negative and cancelled test records,
therefore, simply because § 40.333(a)(4)
requires employers to keep such records
only for one year.
However, in an effort to ease this
recordkeeping burden on railroads, new
language in proposed paragraph (a)(2)
would permit railroads to maintain
legible and accessible scanned or
electronic copies of test records for the
second year that they are required to be
maintained by FRA, whenever § 40.333
requires those records to be kept only
for one year. Permitting railroads to
maintain legible and accessible scanned
or electronic copies of test records for
the second year of FRA’s mandatory
retention period would reduce any
difficulties railroads may face in finding
physical space in which to maintain
hardcopies of these records.
Paragraph (b)(1)
Railroads must currently maintain a
summary record of each covered
employee’s alcohol or drug test results
for a period of five years. See
§ 219.901(b)(1) and § 219.903(b)(1)(i).
FRA has not been actively enforcing this
requirement, however, so long as a
railroad has maintained the individual
files of each regulated employee’s
alcohol and drug tests for a period of
five years. Therefore, FRA is proposing
to amend paragraph (b)(1) to permit a
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railroad to comply by maintaining either
a summary record or the individual files
for the five year period. This
amendment would both reflect FRA’s
enforcement policy and support smaller
railroads, which often find it
impractical to maintain the summary
records currently required.
Paragraph (c)(1)(ii)
Railroads must currently maintain
documents related to the random testing
process. Proposed paragraph (c)(1)(ii)
would be amended to clarify that the
scope of this requirement includes the
railroad’s approved random testing plan
and FRA’s approval letter for that plan.
Paragraph (c)(1)(iii)
Currently, the language of
§ 219.901(c)(1)(iii) and
§ 219.903(c)(1)(ii) specifies that
railroads must maintain records related
to decisions to administer Federal
reasonable suspicion tests for a period
of two years. Decisions to administer
Federal reasonable cause tests, however,
are not specifically addressed by this
requirement. In its guidance, FRA states
that this oversight was inadvertent and
that this requirement also applies to
Federal reasonable cause testing
determinations. See Compliance Manual
14.5. Proposed paragraph (c)(1)(iii)
would incorporate this guidance by
clarifying that the two-year retention
requirement also applies to records
related to Federal reasonable cause
testing determinations.
Paragraph (c)(4)(iii)
Railroads are currently required to
maintain documentation on supervisor
training regarding reasonable suspicion
testing determinations. See
§ 219.901(c)(4)(iii) and
§ 219.903(c)(4)(iii). Under § 219.11(g),
however, railroads must train
supervisors regarding both reasonable
suspicion testing determinations and
the criteria for making determinations
concerning PAT testing. New language
in proposed paragraph (c)(4)(iii) would
clarify that the maintained training
documents must include training
attendance records and training
materials, and that railroads must also
maintain supervisor training documents
related to PAT testing determinations.
FRA guidance applies this provision to
documents related to the training
requirements of § 219.11(g), which
addresses both reasonable suspicion and
PAT testing determinations. Id. The
proposed amendment would
incorporate this guidance into the
regulations.
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43877
FRA Would No Longer Require Training
Certification
Under § 219.901(c)(iv) and
§ 219.903(c)(iv), railroads are currently
required to maintain records certifying
that any training conducted under part
219 complies with the requirements for
such training. In its retrospective
review, FRA found that it had never
inspected for this requirement because
it audits railroads’ training documents
directly to ensure that they comply with
part 219. FRA is proposing to reduce its
recordkeeping requirements by
removing the need to maintain
certification records.
Section 219.903—Access to Facilities
and Records
Due to the consolidation of the
provisions in § 219.901 and § 219.903
into proposed § 219.901, which would
apply both to alcohol and drug testing
records, the requirements for facilities
and records access currently contained
in § 219.905 would be moved to
proposed § 219.903, entitled ‘‘Access to
facilities and records.’’ Paragraph (a) of
this section would also be further
amended to reflect the consolidation of
§ 219.901 and § 219.903 into a single
§ 219.901.
Subpart K—Peer Support Programs
Currently, subpart E requires railroads
to design and implement voluntary
referral and co-worker report policies.
Under these policies, a covered
employee who abuses alcohol or drugs
as part of a treatable condition may
maintain an employment relationship
with a railroad so long as he or she
obtains counseling and treatment by
entering the railroad’s subpart E
program. These policies are beneficial
because they provide assistance to
valuable covered employees who have
substance abuse disorders that can be
addressed through appropriate
counseling or treatment.
The success of peer support programs
would be supported if the benefit of
addressing substance abuse disorders
through such rehabilitative programs is
clearly understood by railroad
management, employees, and any
involved collective bargaining
organizations. Over the years, however,
FRA’s experience enforcing the
requirements of the current subpart E
has revealed that the railroad industry is
sometimes confused about the subpart’s
intent and FRA’s expectations for
compliance. This NPRM is therefore
proposing to rewrite various peer
support program provisions to provide
additional detail, clarity, and focus. The
proposed amendments would also give
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railroads greater flexibility to develop
peer support programs that both
promote safety and encourage regulated
employees to utilize the peer support
programs to address any treatable
substance abuse issues.
FRA’s audits of subpart E programs
have also discovered that covered
employee usage of peer support
programs can vary from railroad to
railroad, even though the various
programs all appear to meet the subpart
E requirements. To the extent that low
usage rates of a subpart E program at a
railroad may be the result of policies
that are unclear or misunderstood,
FRA’s proposed amendments are an
effort to bolster participation by
ensuring that the requirements for peer
support programs are clearly understood
by the railroad industry.
Furthermore, in order to
accommodate dedicating an entire
subpart each to reasonable cause testing
and reasonable suspicion testing, as
discussed above in Section VI.A of this
preamble, this NPRM is proposing to
move the requirements for peer support
programs from the current subpart E to
a new subpart K. FRA would also
change the title of subpart K from
‘‘Identification of Trouble Employees’’
to ‘‘Peer Support Programs.’’ FRA
believes the new title is a more accurate
reflection of the purpose and intent of
subpart K, which is to provide support
to regulated employees who abuse
alcohol or drugs as part of a treatable
condition.
Similarly, FRA is proposing to replace
the phrase ‘‘co-worker report’’ with the
phrase ‘‘co-worker referral’’ throughout
subpart K. FRA believes that ‘‘referral’’
is preferable in this situation because
‘‘report’’ may sometimes have a negative
connotation that discourages employees
from referring co-workers who
genuinely need assistance.
FRA is also proposing to streamline
the regulations by requiring railroads to
maintain a single peer support program
policy, as opposed to the current rule,
which requires a separate voluntary
referral policy and co-worker report
policy. The peer support program policy
required by proposed subpart K would
then be required to contain both a selfreferral policy and a co-worker referral
policy. By making self-referrals and coworker referrals part of the same peer
support program policy, FRA is
emphasizing that these programs work
together towards the same purpose. FRA
is also proposing to clarify that peer
support program policies are permitted
to accept non-peer referrals, as will be
discussed further in the section-bysection analysis below.
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Section 219.1001—Requirement for Peer
Support Programs
Paragraph (a)
Paragraph (a) of this section would
specify that the purpose of subpart K is
to help prevent the adverse effects of
alcohol misuse and drug use by
regulated employees through the
implementation of peer referral and
support programs. This purpose is
slightly more specific than that
contained in current § 219.401(a), which
states only that the purpose of subpart
E is to prevent the use of alcohol and
drugs in connection with covered
service.
Paragraph (b)
Paragraph (b) would require a railroad
to adopt, publish, and implement a
subpart K-compliant peer support
program policy that is designed to
encourage and facilitate the referral and
rehabilitative support of regulated
employees who abuse alcohol or drugs.
This language is slightly different from
that contained in current
§ 219.401(b)(1), which states that the
policy must be designed to also
facilitate the ‘‘identification’’ of
employees who abuse drugs or alcohol.
Because FRA believes that the word
‘‘identification’’ does not accurately
reflect the purpose of subpart K, FRA is
proposing to generally remove it from
the regulations’ discussion of peer
support program policies. Paragraph (b)
would also clarify that peer support
programs are established under the
railroad’s authority. For example, any
follow-up testing recommended for a
regulated employee who entered a peer
support program would be conducted
under the railroad’s own authority and
would not have to meet the part 40
requirements, unless the regulated
employee had committed a
substantiated part 219 violation.
Paragraph (c)
Paragraph (c) would specify that a
railroad may comply with subpart K by
either adopting, publishing, and
implementing a policy meeting the
requirements of proposed § 219.1003 or
by complying with proposed § 219.1007
(which discusses alternate peer support
program policies). The substance of this
paragraph is essentially identical to
current § 219.401(c).
Paragraph (d)
Paragraphs (d)(1), (d)(2), and (d)(5)
would place specific limitations on how
the requirements of subpart K may be
construed. These provisions are not
new, being identical to those contained
in current § 219.401(e)(1)–(e)(3).
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Paragraphs (d)(3) and (d)(4) would
contain new proposed limitations on
how the requirements of subpart K may
be construed. Under paragraph (d)(3),
subpart K could not be construed to
interfere with mandatory reasonable
suspicion testing under subpart D when
a supervisor properly determines that a
regulated employee is exhibiting signs
and symptoms of alcohol or drug use.
For example, if a trained (in accordance
with § 219.11(g)) supervisor noticed that
a regulated employee was exhibiting
signs and symptoms, a railroad would
not be excused from performing a
Federal reasonable suspicion test if the
individual choose that moment to
inform the railroad that he or she
wished to self-refer to the subpart K
peer support program. A trained
supervisor observing signs and
symptoms may also not make a coworker referral for the regulated
employee in lieu of performing a
reasonable suspicion test. These
limitations are necessary because
reasonable suspicion testing is
mandatory when a supervisor’s
independent actions alert him or her to
the signs and symptoms of alcohol or
drug use.
Similarly, paragraph (d)(4) would
specify that subpart K may not be
construed to interfere with the § 219.104
responsive action requirements when a
violation of § 219.101 or § 219.102 has
been substantiated. For example, a
regulated employee who tests positive
on a Federal random drug test may not
avoid the § 219.104 responsive action
requirements by self-referring into the
railroad’s subpart K peer support
program.
Section 219.1003—Peer Support
Program Requirements
Paragraph (a)
Paragraph (a) would state that
§ 219.1003 prescribes the minimum
requirements and standards for peer
support programs. It also specifies that
all individuals involved in the
implementation of a peer support
program must comply with the
program’s policies and implementation
procedures.
Paragraph (b)—Policies Required
Paragraph (b)(1) would require a
railroad peer support program policy to
include a self-referral policy that
provides regulated employees the
opportunity to obtain referral,
education, counseling, and/or treatment
before the employee’s alcohol or drug
abuse problem results in an accident,
injury, or detected part 219 violation.
Because a self-referral does not involve
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emcdonald on DSK67QTVN1PROD with PROPOSALS2
a 219 violation, a SAP may not provide
such treatment. Instead, part 240
requires a locomotive engineer to
receive these services from a qualified
EAP counselor, while part 242 requires
a conductor to receive such services
from a DAC. For regulated employees
who self-refer and are neither engineers
or conductors, an EAP counselor
evaluation would be required.
Paragraph (b)(2), in turn, would require
the establishment and support of a coworker referral policy. Such policies are
already required by §§ 219.403 and
219.405 of the current rule.
Paragraph (b)(3) would indicate that a
peer support program policy may
provide for the acceptance of referrals
from non-peers. This language clarifies
and expands upon the current
§ 219.403(b)(1), which states that a
‘‘railroad must specify whether, and
under what circumstances, its policy
provides for the acceptance of referrals
from other sources, including (at the
option of the railroad) supervisory
employees.’’ As used in proposed
subpart K, the term ‘‘non-peer’’ would
refer to an individual who is not
considered an employee’s co-worker,
and could include a trained supervisor,
representative of an employee’s
collective bargaining organization, or
family member. This provision would
not require a railroad to accept non-peer
referrals. If a railroad did develop a nonpeer referral policy, however, this
paragraph would require the railroad to
include that policy in its subpart K peer
support program policy. FRA believes
that permitting non-peer referral
policies would create additional
flexibility for railroads to accept
referrals from various sources other than
a regulated employee’s co-workers. For
example, a non-peer referral policy
could permit a concerned family
member to refer a regulated employee to
the railroad’s peer support program for
assistance. Such a family member may
be in a better position than a co-worker
to realize that a regulated employee
might be abusing alcohol or drugs to the
extent that he or she is a safety concern
that could require counseling and
treatment.
Paragraph (c)—Referral Conditions
Paragraph (c) would generally require
a peer support program policy to specify
the conditions under which a referral
could occur. Under paragraphs (c)(1)–(4)
these conditions must encompass (but
are not limited to) the following:
• For self-referrals, a policy would
have to identify and include the contact
information for a designated EAP or
DAC (the phone number and email, if
available). The policy would also have
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to indicate when a self-referral could be
made. For example, a policy could
provide that a self-referral could not be
made while a regulated employee was
actually on-duty and impaired;
• Whether non-peer referrals are
accepted, and any allowances,
conditions, or procedures of such
referrals;
• A policy must specify that a
railroad may accept a co-worker or nonpeer referral only if it alleges that the
regulated employee was apparently
unsafe to work with or in violation of
either part 219 or the railroad’s alcohol
and drug rules. Similar language for coworker referrals is already found in
current § 219.405(c)(1); and
• In order to remove from service a
regulated employee who is the subject
of a co-worker or non-peer referral, a
railroad would have to confirm that the
individual was indeed unsafe to work
with or in violation of either part 219 or
the railroad’s alcohol and drug rules.
Such confirmation could consist of a
credible positive test result or an
observation made by a supervisor
trained according to the requirements of
§ 219.11(g). Similar language for coworker referrals is already found in
current § 219.405(c)(2).
Paragraphs (d)–(e)—Employment
Maintained
To encourage utilization of peer
prevention programs, the introductory
text of paragraph (d) would state that a
regulated employee affected by an
alcohol or drug use problem may
maintain an employment relationship
with the railroad so long as he or she
entered the railroad’s peer support
program (either through a self-referral,
co-worker referral, or non-peer referral)
and successfully completed the
education, counseling, or treatment
program specified by an EAP or DAC
under the provisions of this subpart.
Similar language specifying that an
individual entering a peer support
program may maintain an employment
relationship with a railroad is currently
found in § 219.403(b)(1) for voluntary
referrals and § 219.405(b) for co-worker
reports. Paragraph (e) would further
clarify that a regulated employee with
an alcohol or drug use problem would
be subject to the railroad’s normal
employment action if he or she either
did not enter the peer support program
or failed to cooperate with the program.
Paragraph (f)–(g)—EAP/DAC or SAP
Evaluations
Under paragraph (f)(1), a regulated
employee entering a peer support
program through a self-referral would
have to be evaluated by an EAP
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43879
counselor or DAC acceptable to the
railroad. A regulated employee entering
the program through a co-worker or
non-peer referral would have to be
evaluated by a SAP counselor
acceptable to the railroad (under the
standards of part 40) if the referral
involved a substantiated violation of
part 219. (As discussed in the sectionby-section analysis for the proposed
definition of ‘‘Counselor,’’ FRA is
proposing to use the term Counselor
whenever a requirement may be met by
an DAC, EAP counselor or SAP, rather
than repeating all three terms.) A SAP
evaluation must be performed in such
cases because a regulated employee who
violates part 219 is subject to the
responsive action requirements of
§ 219.104(d), which requires a SAP
evaluation for all such violations if the
individual wishes to return to regulated
service. If a co-worker or non-peer
referral does not involve a substantiated
part 219 violation, but the individual is
found to be unsafe to work with or in
violation of only the railroad’s alcohol
and drug rules, the regulated employee
must be evaluated by an EAP or DAC.
While this NPRM is proposing to
provide EAP or DAC evaluations for
individuals entering a peer support
program without a part 219 violation,
FRA is also taking this opportunity to
solicit public input on whether a DAC
evaluation should be required for all
peer support program participants,
regardless of whether they have had a
part 219 violation. Part 242 already
requires a DAC to have the same
credentialing and qualifications a SAP
must have under part 40. Would
requiring SAP-level evaluations for all
regulated employees more effectively
support subpart K’s goal of helping to
prevent the adverse effects of alcohol
and drug use by regulated employees? If
so, how?
Paragraph (f)(3) would provide that a
Counselor evaluating a regulated
employee who has entered a peer
support program must determine the
appropriate level of care (education,
counseling, and/or treatment) necessary
to resolve any identified active
substance abuse problem (such as, but
not limited to, substance dependency).
If treatment and/or education is
required, the Counselor must refer the
regulated employee to an appropriately
qualified rehabilitation program in the
community, if one is available. A
regulated employee who fails to
cooperate with the evaluation, referral
process, or aftercare can be dismissed
from the peer support program and
made subject to the railroad’s normal
employment action.
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Under paragraph (g), if a Counselor’s
evaluation determines that a regulated
employee has an active substance abuse
disorder, the peer support program
policy would have to require the
removal of that individual from
regulated service until the Counselor
determines that he or she can safely
return to service. The railroad must do
so in a manner that complies with the
confidentiality provisions found in
proposed paragraph (h) of this section.
For example, a railroad could maintain
confidentiality by coding the regulated
employee’s removal as a medical reason.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
Paragraph (h)—Confidentiality
Paragraph (h) would require a peer
support program policy to treat any
referral and subsequent handling as
confidential. Only personnel who
administer the program may have access
to the identities of individuals in it. The
only required exception to this
confidentiality requirement would be
provided by paragraph (l) of proposed
§ 219.1003, which would state (in part)
that confidentiality may be waived for a
certified locomotive engineer or
conductor (or candidate for engineer or
conductor certification) who refuses to
cooperate in a recommended course of
counseling or treatment. The provisions
of proposed paragraph (l) will be
discussed further below.
Railroads are currently required to
treat voluntary referrals as confidential
under § 219.403(b)(2). The current
§ 219.403(c) also provides that a policy
may contain provisions waiving
confidentiality when an employee
refuses to cooperate with the
recommended treatment/counseling or
is later determined to have been
involved in an alcohol or drug related
disciplinary offense growing out of
subsequent conduct. An identical
optional provision would also be
included in proposed § 219.1005,
discussed below.
Paragraph (i)—Leave of Absence
Paragraph (i) would require a railroad
to grant a regulated employee who has
entered a peer support program a leave
of absence for the period necessary to
complete any primary education,
counseling, or treatment program
recommended by a Counselor. The leave
of absence must be long enough for the
regulated employee to establish control
over his or her alcohol or drug abuse
problem to the extent that the evaluating
Counselor determines that he or she is
a low risk to return to substance abuse.
Similar language is found in
§§ 219.403(b)(3) and § 219.405(d)(1) of
the current rule, except that the current
rule specifically states that the leave of
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absence must be at least 45 days long,
if necessary. FRA is proposing to
remove this specific time requirement
because it believes that a Counselor
should determine the period of time an
employee requires to obtain control over
a substance abuse problem.
Paragraph (j)—Return to Regulated
Service
Paragraph (j)(1) would state that a
regulated employee must be returned to
regulated service based upon a
Counselor’s recommendation when he
or she has established controlled over
any substance abuse problem, when the
Counselor has determined that he or she
is a low risk to return to substance
abuse, and when he or she has
completed any return-to-service
requirements recommended by a
Counselor. The only exceptions to this
requirement would be found in
proposed § 219.1005, which discusses
optional provisions that may be
contained in a peer support program
policy, and in proposed
§ 219.1001(d)(4), which references the
responsive action requirements of
§ 219.104 for part 219 violations. This
proposed language would expand and
clarify the language currently found in
§ 219.403(b)(4), which states that an
employee who has voluntarily referred
must be returned to service on the
recommendation of a SAP.34 The
proposed language is otherwise
essentially identical to that contained in
§ 219.405(d)(3)–(d)(4) for co-worker
reports, except that the proposed
language would not contain the current
requirement that a program for followup treatment may not exceed 60
months. A new limitation on how long
any follow-up treatment may last would
be found in proposed paragraph (o) of
this section.
Paragraph (j)(2) would specify that a
Counselor is required to determine the
appropriate number and frequency of
follow-up tests (if required), while the
railroad would determine the dates of
the testing.
Paragraph (j)(3) would state that an
employee’s return to regulated service
may be conditioned upon successful
completion of a return-to-service
medical evaluation, as directed by the
railroad. This is currently permitted for
co-worker reports under § 219.405(d)(3),
and would be expanded in the proposed
language to self-referrals and non-peer
referrals as well.
Paragraph (j)(4) would state that
approval to return to regulated service
34 Under the proposed rule, this recommendation
would be made by an EAP counselor because
employee who self-refers would not be required to
have a SAP counselor evaluation.
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may not be unreasonably withheld; a
railroad must return an employee to
regulated service within five working
days of a Counselor’s recommendation
that the employee is fit to return. The
requirement that such approval may not
be unreasonably withheld is currently
found in § 219.403(b)(4) and
§ 219.405(d)(3), although the proposed
language goes further in specifying that
the regulated employee must be
returned to service within five days. The
current § 219.405(e)(1) requires a
railroad to return an employee to
covered service within five days only in
situations where the SAP has
determined that treatment is not
required for a co-worker reported
employee.
Paragraph (k)—Rehabilitation Plan
Paragraph (k) would provide that no
person or entity may change a
Counselor’s evaluation or
recommendation for assistance.
However, the Counselor who made the
initial evaluation would be permitted to
modify that evaluation and any followup recommendations based upon new
or additional information.
Paragraph (l)—Locomotive Engineers
and Conductors
Paragraph (l) would state that a peer
support program policy must waive
confidentiality for a locomotive
engineer, conductor, or candidate for
engineer or conductor certification who
refuses to cooperate in recommended
counseling or treatment, to the extent
that the Counselor must provide the
railroad official notice if the locomotive
engineer or conductor has an active
substance abuse disorder. A railroad
receiving such notice must suspend,
revoke, or deny the engineer’s or
conductor’s certification, as appropriate.
For locomotive engineers, this
requirement is currently found for
voluntary referrals in § 219.403(b)(5),
which simply requires railroads to
comply with the requirements of
§ 240.119(e). (Part 219 does not
currently have a similar requirement for
certified conductors because these
individuals only recently became
subject to the certification requirements
of part 242.) FRA believes it is
important in the proposed rule to also
apply this requirement to co-worker and
non-peer referrals.
New language in this paragraph
would also specify that a Counselor who
is managing the employee’s case is not
required to provide this notice if the
locomotive engineer or conductor is
medically restricted from performing
regulated service while undergoing
treatment to correct the active substance
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abuse disorder. If, in the Counselor’s
opinion, the engineer or conductor fails
to make the necessary rehabilitative
progress during this medical restriction
from regulated service, then the
Counselor must provide the railroad
official notice of the active substance
abuse disorder.
Paragraph (m)—Contacting a SAP
Paragraph (m) would state that if a
regulated employee enters a peer
support program as the result of a coworker or non-peer referral for a verified
violation of § 219.101 or § 219.102, he or
she must contact a SAP within a
reasonable period of time, specified by
the railroad’s peer support program
policy. If the regulated employee does
not contact a SAP within this time
period, the railroad could investigate his
or her cooperation and compliance with
the peer support program.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
Paragraph (n)—Time Requirements for
Counselor Evaluations
Paragraph (n) would state that once a
regulated employee entering a peer
support program contacts the designated
Counselor, the Counselor’s evaluation
must be completed within 10 working
days. If more than one evaluation is
required, they must be completed
within 20 working days. This
requirement is currently found in
§ 219.405(b)(4) for co-worker reports,
and FRA’s proposed language would
expand it to non-peer and self-referrals
as well.
Paragraph (o)—Regulated Employee
Agreement
Paragraph (o) would provide that a
peer support program policy must
require a participating regulated
employee to agree to undertake and
successfully complete a course of
prescribed care and any Counselor
recommended follow-up care (including
follow-up testing). This paragraph
would also state that any follow-up
treatment, care, or testing may not
exceed 24 months beyond the regulated
employee’s removal from service, unless
the regulated employee had committed
a substantiated part 219 violation. If the
regulated employee has committed such
a violation, any follow-up treatment
would be subject to the requirements of
part 40, which states that a SAP may
require follow-up testing for 60 months
following the violation. See 49 CFR
40.307(d)(2). Currently, § 219.405(d)(4)
states that the follow-up treatment for a
co-worker report may not exceed 60
months. FRA is proposing this change
because it believes that 24 months is a
more appropriate time frame for
regulated employees who have not
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Jkt 232001
committed a substantiated part 219
violation to be part of a peer support
program.
Section 219.1005—Optional Provisions
This section would describe
provisions that a railroad may, but is not
required to, include in its peer support
program policy. The inclusion of any
such provisions may be subject to the
agreement of an affected labor
organization.
Under paragraph (a), the policy could
include a mark-off provision under
which a regulated employee may refuse
an assignment because of a concern that
he or she may not be safe to work due
to alcohol or prescription medication
use.
Paragraphs (b)–(e) would contain
optional provisions that are essentially
identical to optional provisions
currently provided for voluntary referral
policies by § 219.403(c)(1)–(4). FRA’s
proposed text would make these
optional provisions available to peer
support program policies in general
(including co-worker and non-peer
referral policies).
Paragraph (b) would permit a peer
support program policy to waive the
rule of confidentiality if a regulated
employee refuses to cooperate in a
course of education, counseling, or
treatment recommended by a Counselor
or if the railroad determines later, after
investigation, that a regulated employee
was involved in an alcohol or drugrelated disciplinary offense growing out
of subsequent conduct. This proposed
text is identical to that currently found
in § 219.403(c)(1) for voluntary referrals.
Under paragraph (c), a peer support
program policy could require successful
completion of a return-to-service
medical examination as a condition of
reinstatement in regulated service.
Under paragraph (d), a peer support
program policy could state that it does
not apply to a regulated employee who
has previously been assisted by the
railroad under a policy or program
substantially consistent with the
requirements of subpart K.
Under paragraph (e), a policy could
provide that an employee invoking the
benefits of a peer support program
policy must report to a railroaddesignated contact either during nonduty hours or while unimpaired and
otherwise in compliance with the
railroad’s alcohol and drug rules
consistent with proposed subpart K.
Section 219.1007—Alternate Peer
Support Programs
This paragraph would permit a
railroad to comply with subpart K by
developing, publishing, and
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43881
implementing an alternate program or
policy meeting the various standards of
§ 219.1003. Paragraphs (a)–(d) of this
section are very similar to provisions
contained in current § 219.407(a)–(d),
although there are some minor
differences intended to clarify the
applicable standards.
Paragraph (a) would permit a railroad
to develop, publish, and implement an
alternate program or policy that meets
the standards of § 219.1003. Any
alternate program or policy must have
the written concurrence of the
recognized representatives of the
regulated employees.
Paragraph (a) would also specify that
nothing in subpart K prevents a railroad
or labor organization from adopting,
publishing, and implementing peer
support program policies that afford
more favorable conditions to regulated
employees with substance abuse
problems, consistent with the railroad’s
responsibility to prevent violations of
§§ 219.101 and 219.102. This language
is currently found in §§ 219.403(a) and
219.405(a), but FRA believes it belongs
more appropriately in the section
addressing alternative programs.
Paragraph (b) would provide that the
concurrence of the recognized
representatives of the regulated
employees in an alternate program must
be evidenced by a collective bargaining
agreement or other document describing
the class or craft of employees to which
the alternate program applies. This
agreement would have to expressly
reference subpart K and the intention of
the railroad and the employee
representatives that the alternate
program applies in lieu of the program
required by subpart K. With a few nonsubstantive revisions, this language is
identical to that currently found in
§ 219.407(b).
Paragraph (c) would require a railroad
to file the agreement or other document
described in paragraph (b), along with
the alternate program described in
paragraph (a), with the FRA Drug and
Alcohol Program Manager for approval.
Currently, § 219.407(c) only requires the
railroad to file with FRA the agreement
described in § 219.407(b). FRA believes
that the railroad must also be required
to submit the alternate program for FRA
approval, so that FRA can ensure that
the program does indeed meet the
requirements and objectives of proposed
§ 219.1003. This paragraph would
specify that this approval would be
based on FRA’s ability to ascertain
whether the alternative program meets
the § 219.1003 standards. An alternative
program would not have to meet each
specific § 219.1003 component, but
would be required to meet the general
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standards and intent of § 219.1003. If an
alternate policy is amended or revoked,
a railroad must file a notice with FRA
of such at least 30 days prior to the
effective date, as a railroad is currently
required to do by § 219.407(c).
Paragraph (d) would specify that
§ 219.1007 does not excuse a railroad
from adopting, publishing, and
implementing the § 219.1003-required
programs for any group of regulated
employees not covered by an approved
alternate program. This provision is
essentially identical to that currently
found in § 219.407(d).
New language in paragraph (e) would
reference a proposed provision of
§ 219.105(d), which specifies that FRA
has the authority to audit any railroad
alcohol and/or drug use education,
prevention, identification, and
rehabilitation program or policy
(including, but not limited to, alternate
peer support programs), to ensure that
they are not designed or implemented in
such a way that they circumvent or
otherwise undermine Federal
requirements, including the
requirements in this part regarding peer
support programs. Peer support program
usage data could be requested as one
tool to evaluate whether a railroad
program or policy is having a positive
or negative impact on a required subpart
K peer support program. For example, a
railroad program or policy may not be
implemented in a way that directly or
indirectly discourages regulated
employees from entering a subpart K
peer support program, and FRA may
compare usage data from both the
railroad program and the subpart K
program to determine whether the
railroad program may be having a
negative impact on the subpart K
program.
VIII. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563
and DOT Regulatory Policies and
Procedures
This proposed rule has been
evaluated in accordance with existing
policies and procedures and determined
to be non-significant, under both
Executive Orders 12866, and 13563, and
DOT policies and procedures. See 44 FR
11034, Feb. 26, 1979. FRA has prepared
and placed in the docket (No. FRA–
2009–0039) a regulatory impact analysis
(RIA) addressing the economic impact
of this proposed rule. Document
inspection and copying facilities are
available at the DOT Central Docket
Management Facility located in Room
W12–140 on the Ground level of the
West Building, 1200 New Jersey Avenue
SE., Washington, DC 20590. Docket
material is also available for inspection
electronically through the Federal
eRulemaking Portal at https://
www.regulations.gov. As part of the RIA,
FRA has assessed quantitative
measurements of the cost and benefit
streams expected to result from
implementation of this proposed rule.
Overall, the proposed rule would result
in safety benefits and potential business
benefits for the railroad industry. It
would also, however, generate an
additional burden on railroads and
railroad contractors, mainly due to the
expenses associated with increased drug
and alcohol testing and program
administration, particularly regarding
MOW employees.
The costs would primarily be derived
from implementation of the statutory
mandate to expand the scope of part 219
to cover MOW employees. The benefits
will primarily accrue from the expected
injury, fatality, and property damage
avoidance resulting from the expansion
of part 219 to cover MOW employees, as
well as the PAT testing threshold
increase.
Table 1 summarizes the quantified
costs and benefits expected to accrue
from implementation of the proposed
rule over a 20-year period. It presents
costs associated with the various types
of drug and alcohol testing proposed in
the NPRM and details the statutory costs
(those required by the RSIA mandate to
expand part 219 to MOW employees),
discretionary costs (those that are due to
the non-RSIA requirements that FRA is
proposing) and the total of the two types
of costs. Table 1 also presents the
quantified benefits expected to accrue
over a 20-year period and details the
statutory benefits (those that would
result from implementation of the RSIA
mandate to expand part 219 to MOW
employees) and the discretionary
benefits (those that are due to the nonRSIA requirements that FRA is
proposing). The benefits include not
only injury, fatality, and property
damage avoidance (accident reduction
benefits), but also the savings, or
benefit, that would accrue from fewer
PAT tests being conducted due to FRA’s
proposal to increase the property
damage threshold for major train
accidents.
For the 20-year period analyzed, the
estimated quantified cost that would be
imposed on industry totals $24, 261,999
(undiscounted), with discounted costs
totaling $14.2 million (Present Value
(PV), 7 percent) and $18.9 million (PV,
3 percent). The estimated quantified
benefits for this 20-year period total
approximately $115.8 million
(undiscounted), with discounted
benefits totally $57.4 million (PV, 7
percent) and $83.6 million (PV, 3
percent).
TABLE 1—SUMMARY COSTS AND BENEFITS: DISCRETIONARY AND STATUTORY—UNDISCOUNTED VALUES
20 Year costs
Statutory
Discretionary
emcdonald on DSK67QTVN1PROD with PROPOSALS2
PAT Testing Costs—Adding MOW .........................................................................................
PAT Testing Costs—Impact Def + Xing ..................................................................................
Reasonable Suspicion Testing Costs ......................................................................................
Pre-Emp. Testing Costs—Adding MOW .................................................................................
Pre-Emp. Testing Costs—Sm. RR ..........................................................................................
Random Testing Costs ............................................................................................................
Annual Report Costs ...............................................................................................................
Recordkeeping Requirements Costs .......................................................................................
$52,000
20,863,074
160,911
1,397,840
........................................
$241,974
........................................
........................................
29,904
........................................
........................................
........................................
Total Costs .......................................................................................................................
23,990,121
271,878
842,398
673,897
24,261,999
20 Year benefits
Statutory
Accident Reduction Benefits ....................................................................................................
PAT Testing Threshold Reduction Benefits ............................................................................
Discretionary
115,369,281
........................................
388,295
Total Benefits ....................................................................................................................
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Overall, the RIA demonstrates that the
costs, both statutory and discretionary,
associated with implementing the
proposed rule are expected to be
outweighed by the benefits resulting
from reduced injuries, fatalities, and
property damage attributable to drug
and alcohol misuse by regulated
employees. FRA has also found that the
costs would be outweighed by injury
and fatality mitigation alone, and
benefits will further accrue due to
reduced property damage. Specifically,
the statutory requirements incur a
discounted 20-year cost of $14.1 million
(PV, 7 percent) and $18.6 million (PV,
3 percent). The discretionary proposals
incur a discounted 20-year cost of
$143,665 (PV, 7 percent) and $202,023
(PV, 3 percent), with discounted 20-year
benefits of $205,574 (PV, 7 percent) and
$288,776 (PV, 3 percent).
B. Regulatory Flexibility Act and
Executive Order 13272; Initial
Regulatory Flexibility Assessment
The Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) and Executive
Order 13272 (67 FR 53461; Aug. 16,
2002) require agency review of proposed
and final rules to assess their impacts on
small entities. An agency must prepare
an initial regulatory flexibility analysis
(IRFA) unless it determines and certifies
that a rule, if promulgated, would not
have a significant impact on a
substantial number of small entities.
The Federal Railroad Administration
(FRA) has used the available data and
robust assumptions to evaluate the
impacts of this proposed rule and
believes that it would not have a
significant economic impact on a
substantial number of small entities.
FRA is publishing this IRFA to aid the
public in commenting on the potential
small business impact of the proposed
requirements in this NPRM. FRA invites
all interested parties to submit data and
information regarding the potential
economic impact on small entities that
would result from the adoption of the
proposals in this NPRM. FRA will
consider all comments received in the
public comment process when making a
determination regarding economic
impacts on small entities in the final
rule.
The proposed rule would apply to all
employees of railroad carriers,
contractors, or subcontractors to railroad
carriers who perform maintenance-ofway activities. Based on information
currently available, FRA estimates that
less than 14 percent of the total railroad
costs associated with implementing the
proposed rule would be borne by small
entities. This percentage is based
directly upon the percentage of affected
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employees estimated to be working for
small entities. Small entities are exempt
from certain requirements of the current
and proposed rule, and otherwise bear
proportional burden for the rule based
upon the number of regulated
employees each entity employs. Small
entities will not incur greater costs per
employee than the larger entities.
FRA generally uses conservative
assumptions in its costing of rules;
based on those assumptions, FRA
estimates that the cost for the proposed
rule will be approximately $24 million
for the railroad industry. There are 654
railroads that would be considered
small for purposes of this analysis, and
together they comprise approximately
93 percent of the railroads impacted
directly by this proposed regulation.
The 14 percent of the burden would be
spread amongst the 654 entities, based
proportionally upon the number of
employees each has. Thus, although a
substantial number of small entities in
this sector would likely be impacted,
the economic impact on them would
likely be insignificant. This IRFA is not
intended to be a stand-alone document.
In order to get a better understanding of
the total costs for the railroad industry
(which forms the basis for the estimates
in this IRFA), or more cost detail on any
specific requirement, please see the RIA
that FRA has placed in the docket for
this rulemaking.
In accordance with the Regulatory
Flexibility Act, an IRFA must contain:
1. A description of the reasons why
action by the agency is being
considered.
2. A succinct statement of the
objectives of, and the legal basis for, the
proposed rule.
3. A description and, where feasible,
an estimate of the number of small
entities to which the proposed rule will
apply.
4. A description of the projected
reporting, recordkeeping, and other
compliance requirements of the
proposed rule, including an estimate of
the classes of small entities that will be
subject to the requirement and the type
of professional skills necessary for
preparation of the report or record.
5. An identification to the extent
practicable, of all relevant Federal rules
that may duplicate, overlap, or conflict
with the proposed rule.
1. Reasons for Considering Agency
Action
FRA proposes to amend part 219 to
further reduce the risk of serious injury
or death to railroad employees,
contractors, and anyone else affected by
railroad accidents and incidents. In
accordance with the statutory mandate
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of Section 412 of the RSIA and to
respond to NTSB safety
recommendation R–08–07, FRA
proposes to expand the applicability of
the current part 219 requirements
regarding testing and procedures to
include maintenance-of-way (MOW)
employees and contractors, as defined
in the proposed regulation. FRA also
proposes to amend part 219 for safety
and clarity purposes by multiple
discretionary changes that it believes
will provide clarification and/or
enhance and update the program to
achieve safety benefits. Some of these
discretionary proposals have associated
costs.
2. Succinct Statement of the Objectives
of, and the Legal Basis for, the Proposed
Rule
The purpose of part 219 and this
proposed rule is to prevent accidents
and casualties in railroad operations
resulting from impairment of railroad
employees and contractors due to the
misuse of alcohol or drugs. FRA
considers random drug and alcohol
testing to be an important tool to deter
drug use and alcohol misuse; therefore,
expanding part 219 to include MOW
employees (who would then be subject
to selection for random testing) is
expected to result in the reduction of
the number of accidents and casualties
to MOW employees.
The Federal Railroad Safety Act of
1970, as codified at 49 U.S.C. 20103,
provides that ‘‘[t]he Secretary of
Transportation, as necessary, shall
prescribe regulations and issue orders
for every area of railroad safety
supplementing laws and regulations in
effect on October 16, 1970.’’ The
Secretary’s responsibilities under this
provision, and the balance of the
railroad safety laws, have been
delegated to the FRA Administrator (49
CFR 1.89). Reducing the use of drugs
and alcohol among railroad employees
has long been a concern of FRA. Both
the industry and FRA have approached
this concern by issuing regulations on
the control of alcohol and drug use by
certain railroad employees. While
certain drug use is already illegal, FRA
found a need to create a further
deterrence against the use of drugs and
alcohol before and/or during duty on
the railroad. Furthermore, part 219 has
a peer prevention component requiring
railroads to establish a program
permitting employees to self-refer if
they have a substance abuse issue (and
FRA is proposing clarifying changes to
this program). These peer prevention
programs are required to contain
provisions protecting the employee’s job
so long as the employee complies.
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Therefore, safety is increased while
protecting employees’ jobs.
FRA has proposed the revision to part
219 in order to comply with Section 412
of the RSIA, Alcohol and Controlled
Substance Testing for Maintenance-OfWay Employees, required the Secretary
of Transportation to ‘‘complete a
rulemaking proceeding to revise the
regulations prescribed under section
20140 of title 49, United States Code, to
cover all employees of railroad carriers
and contractors or subcontractors,
volunteers, and random employees to
railroad carriers who perform
maintenance-of-way activities.’’ FRA
has also proposed various substantive
amendments that would reflect lessons
learned from the practical
implementation of part 219 and improve
the clarity and organization of the
regulations, including the following: (1)
Small railroads would no longer be
excepted from the requirements for
reasonable suspicion testing and preemployment drug testing; (2) the PAT
testing damage threshold for major train
accidents would be increased; (3) the
exceptions for derailment collisions and
raking collisions would be removed
from the part 219 definition of impact
accident; (4) the provisions governing
whether regulated employees could be
recalled for PAT testing would be
amended to remove the requirement
that the qualifying event occurred while
a regulated employee was on duty and
to make recall of a regulated employee
mandatory in certain circumstances; (5)
reasonable cause testing would be
authorized only for reportable ‘‘train
accidents’’ and ‘‘train incidents’’; and
(6) federal reasonable cause testing
would be authorized for additional
operating rule violations or other errors.
3. Description of, and Where Feasible,
an Estimate of the Number of Small
Entities to Which the Proposed Rule
Would Apply
The ‘‘universe’’ of the entities
considered in an IRFA generally
includes only those small entities that
can reasonably expect to be directly
regulated by this proposed action. The
types of small entities potentially
affected by this proposed rule are: (1)
Small railroads; (2) small contractors
that engage in MOW operations; and (3)
small contractors that provide HOS
services (such as dispatching, signal,
and train and engine services).
‘‘Small entity’’ is defined in 5 U.S.C.
601(3) as having the same meaning as
‘‘small business concern’’ under Section
3 of the Small Business Act. This
includes any small business concern
that is independently owned and
operated, and is not dominant in its
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field of operation. Section 601(4)
likewise includes within the definition
of ‘‘small entities’’ not-for-profit
enterprises that are independently
owned and operated, and are not
dominant in their field of operation. The
U.S. Small Business Administration
(SBA) stipulates in its size standards
that the largest a railroad business firm
that is ‘‘for profit’’ may be and still be
classified as a ‘‘small entity’’ is 1,500
employees for ‘‘Line Haul Operating
Railroads’’ and 500 employees for
‘‘Switching and Terminal
Establishments.’’ Additionally, 5 U.S.C.
601(5) defines as ‘‘small entities’’
governments of cities, counties, towns,
townships, villages, school districts, or
special districts with populations less
than 50,000.
Federal agencies may adopt their own
size standards for small entities in
consultation with SBA and in
conjunction with public comment.
Pursuant to that authority, FRA has
published a final statement of agency
policy that formally establishes ‘‘small
entities’’ or ‘‘small businesses’’ as being
railroads, contractors, and hazardous
materials shippers that meet the revenue
requirements of a Class III railroad as set
forth in 49 CFR 1201.1–1, which is $20
million or less in inflation-adjusted
annual revenues, and commuter
railroads or small governmental
jurisdictions that serve populations of
50,000 or less. (See 68 FR 24891; May
9, 2003, codified at Appendix C to 49
CFR part 209.) The $20 million limit is
based on the Surface Transportation
Board’s revenue threshold for a Class III
railroad. Railroad revenue is adjusted
for inflation by applying a revenue
deflator formula in accordance with 49
CFR 1201.1–1. FRA is using this
definition for this rulemaking.
An estimated 1,098 entities will be
affected by the rule. FRA estimates that
there are approximately 400 MOW
contractor companies and 698 railroads
on the general system. All but 44
railroads and an estimated 30 MOW
contractor companies, are small
businesses as defined by the FRA
waiver of small business size standard.
FRA estimates that 86 percent of
employees that will be regulated under
this rule work for these 74 railroads and
contractors. Most railroads must comply
with all provisions of part 219.
However, as previously indicated, FRA
has a ‘‘small railroad’’ definition
associated with part 219 that limits
compliance requirements for railroads
with 15 HOS employees or less and no
joint operations to reduce burden on the
smallest of railroads.
There are approximately 654 small
railroads (as defined by revenue size).
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Class II and Class III railroads do not
report to the STB, and although the
number of Class II railroads is known,
the precise number of Class III railroads
is difficult to ascertain due to
conflicting definitions, conglomerates,
and even seasonal operations.
Potentially, all small railroads could be
impacted by this proposed regulation.
Part 219 has a small railroad exception
for all railroads with 15 or fewer
covered employees, except when these
railroads have joint operations with
another railroad, therefore increasing
risk. Thus a railroad with such
characteristics shall be called a
‘‘partially excepted small railroad’’ in
this analysis, and is a subsection of the
‘‘small entities’’ as defined by the STB
and FRA, addressed above. Currently,
there are 288 partially excepted small
railroads and, as FRA is not proposing
amendments to the substantive criteria
of classification, there should be no
change in the number of partially
excepted small railroads associated with
the proposed rule.
FRA is aware of two commuter
railroads that qualify as small entities:
Saratoga & North Creek Railway, and
Hawkeye Express, which is operated by
the Iowa Northern Railway Company.
All other commuter railroad operations
in the United States are part of larger
governmental entities whose
jurisdictions exceed 50,000 in
population.
As mentioned, all railroads must
comply with all or limited subparts of
part 219. For partially excepted small
railroads, per FRA’s definition, the
significant burden involves the costs of
adding MOW employees to the existing
testing programs, and adding reasonable
suspicion and pre-employment drug
testing (which they currently do not
need to comply with).
A significant portion of the MOW
industry consists of contractors. FRA
has determined that risk lies as heavily
with contractors as with railroad
employees, so contractors and
subcontractors will be subject to the
same provisions of part 219 as the
railroads for which they do contract
work. Whether contractors must comply
with all or part of the provisions of part
219 will depend on the size of the
largest railroad (assumed to have the
largest risk) for which the contractor
works.
FRA discussed with industry
representatives how to ascertain the
number of contractors that would be
involved with this rulemaking. FRA is
aware that some railroads hire
contractors to conduct some or all of the
MOW worker functions on their
railroads. Generally, the costs for the
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burdens associated with this rulemaking
would get passed on from the contractor
to the pertinent railroad. FRA has
determined that there are approximately
400 MOW-related contractor companies
who would be covered by the proposed
rule. Of those, 370 are considered to be
a ‘‘small entity.’’ FRA has sought
estimates of the number of contractors
that may be fully compliant and how
many may be partially excepted,
depending on the size of the largest
railroad for which they work. FRA
requests comments on both the number
of small contractors affected and the
number of small railroads affected, as
well as the burdens they may incur as
a result of the proposed rulemaking and
whether those burdens (costs) will be
passed on the railroads.
FRA expects that some HOS small
contractors will be impacted based upon
the proposed compliance requirements
for part 219 small railroads to now
include reasonable suspicion testing
and pre-employment drug testing. This
burden is estimated to be minimal, as
reasonable suspicion tests occur
extremely infrequently on small
railroads (average less than one time per
year for all small railroads), and preemployment drug tests, the least costly
of all tests, will only be required for new
employees.
No other small businesses (nonrailroad related) are expected to be
negatively impacted significantly by this
proposed rulemaking. Conversely, this
proposed regulation will bring business
to consortiums, collectors, testing labs,
and other companies involved in the
drug and alcohol program business.
Expanding the program to cover
MOW employees will only have a small
effect in terms of testing burden for
railroads, based upon the cost of preemployment drug testing for new
employees and the testing of MOW
employees. FRA estimates that 90
percent of small railroads already
conduct pre-employment drug testing
under their own company authority.
Many of these contractors have
employees with commercial drivers’
licenses (CDLs), and therefore fall under
the drug and alcohol program
requirements of the Federal Motor
Carrier Safety Administration (FMCSA).
Therefore, an estimated 40 percent of
MOW contracted employees already
participate in a DOT drug and alcohol
testing program. Furthermore, FRA
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estimates that as many as 50–75 percent
of all MOW contractor companies have
some form of a drug and alcohol testing
program, and that around 25 percent of
these companies currently complete
random testing (the most burdensome
type of testing).
Consortiums are companies that
provide testing, random selection,
collection, policy development, and
training services to help employers stay
compliant. Consortiums alleviate much
of the administrative burden of a testing
program and negotiate volume
discounts on behalf of their clients. It is
likely that all part 219 small railroads
already have a compliant testing
program for employees currently
covered under the existing regulation. It
should also be noted that approximately
125 of the small railroads that would be
impacted are subsidiaries of large short
line holding companies with resources
comparable to larger railroads.
Additionally, many small railroads are
members of ASLRRA, which was
consulted throughout the development
of this regulatory proposal. ASLRRA has
helped create a consortium for its
members in the past, and FRA will work
to ensure that small entities, as well as
large, have the ability to adhere to the
regulation as easily as possible. The
consortium market will be affected in a
positive manner due to new business
from this rulemaking; this is a
secondary benefit not discussed in this
IRFA.
4. Description of the Projected
Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule,
Including an Estimate of the Class of
Small Entities That Will Be Subject to
the Requirements and the Type of
Professional Skill Necessary for
Preparation of the Report or Record
The updating of a drug and alcohol
program to be compliant with proposed
part 219 changes can generate a burden
for all entities, and especially small
entities. However, FRA has taken steps
to minimize the significant economic
impact on small entities. For example,
FRA currently exempts railroads with
15 or fewer hours of service (HOS)
employees and no joint operations (as
defined by § 219.5) from certain part 219
requirements, and is not proposing to
amend this exemption definition in the
proposed rule. See § 219.3(b)(2).
(However there will be certain
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compliance requirements incurred by
this proposed rule for those small
railroads.) FRA has an extensive
compliance manual available on its Web
site at www.fra.dot.gov that can be used
to help railroads of all sizes understand
and comply with the regulations. FRA
also provides a model railroad plan, a
model contract plan, and model
prohibitions for small railroads.
Furthermore, FRA is active with
railroad organizations, large and small,
that provide training on the current part
219, such as the American Short Line
and Regional Railroad Association
(ASLRRA), the Association of American
Railroads (AAR), and labor unions. FRA
will be prepared to assist all small
railroads, or other entities that will need
to comply with the proposed regulation.
FRA’s Web site (https://www.fra.dot.gov/
rrs/pages/fp_504.shtml) has model
plans, programs, and tools needed to
comply with the requirements of the
proposed regulation.
There is a small amount of reporting,
recordkeeping, and compliance costs
associated with the proposed regulation.
However, many of the entities are
already doing some sort of employerbased testing, reporting, recordkeeping,
and compliance in accordance with the
recordkeeping requirements subpart.
FRA believes that the added burden due
to these requirements is minimal. The
total 20-year cost of this proposed
rulemaking is $44.4 million, of which
FRA estimates approximately 14 percent
will be to the 644 small railroads and
370 small contractors. FRA believes this
total burden for small businesses of $6.2
million from this proposed rule does not
impose a substantial burden. This
averages approximately $306 a year per
small entity. For a thorough
presentation of cost estimates, please
refer to the RIA, which has been placed
in the docket for this rulemaking.
Based on the information in this
analysis, FRA has determined that the
proposed rule will not have a significant
economic impact on a substantial
number of small entities. Absent
evidence to the contrary being
submitted in response to this NPRM,
FRA intends to certify at the final rule
stage that no regulatory flexibility
analysis is necessary.
In summary Table 1 breaks out the
types of entities affected by the
proposed rule and the specific impact
area.
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TABLE 1—EXPLANATION OF ENTITIES
Type of entity
SBA definition
Subparts applicable,
current
Part 219 definition
Non-Small Entities—Railroads and contrac- Railroads with 400,000 + employee hours: ALL .................................
tors with revenue of a Class I or II rail38 Railroads.
road as defined by STB: 46 Railroads
and 30 Contractors, 86% of regulated
employees.
Small entities—Railroads and contractors Railroads with less than 400,000 employee All except for Subpart I.
with revenue of a Class III railroad as dehours, but more than 15 covered service
fined by STB: 654 Railroads and 370
employees, railroads with joint operContractors, 14% of regulated employees.
ations, and contractors who work for
them: 372 Railroads, unknown number of
contractors.
Smallest railroads—15 or fewer covered Subparts A, B, C, H, J ...
employees with no joint operations: 288
railroads, unknown number of contractors.
MOW employees are already subject to
subpart C PAT testing if they are fatally
injured during a qualifying event. This
portion of the proposed rule will create
less than 1 percent of the total burden
for small entities.
The following section outlines the
potential additional burden on small
railroads for each subpart of the
proposed rule:
Subpart A—General
The majority of the policies and
procedures outlined in subpart A do not
impose any direct burdens on small
railroads. However, § 219.23 will have
an effect on the MOW contractors who
are not already part of an FRA drug and
alcohol testing program because they
will be responsible for complying with
the policies whenever a breath or body
fluid test is required. These costs are
accounted for in different subparts, and
there is no direct burden on small
entities from subpart A. Additionally,
FRA has a sample drug and alcohol plan
on its Web site that includes all
pertinent compliance information.
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Subpart C—Post-Accident Toxicological
Testing
All MOW employees must be subject
to post-accident toxicological (PAT)
testing when a qualifying event occurs,
as provided in subpart C. Additionally,
several new qualifying events regarding
highway-rail grade crossing accidents/
incidents will trigger PAT testing. As
smaller railroads generally have smaller
risk, FRA expects fewer burdens per
small railroad employee or contracted
employee associated with this subpart.
The only cost that the railroad is
responsible for is the collection and
shipment of the specimens. FRA bears
the costs of testing the specimens.
Historically, there are only one or two
events that qualify for PAT testing
involving any short line each year. All
railroads, regardless of size, must
currently train their covered service
supervisors on PAT testing procedures,
and thus already have existing
compliance procedures. Additionally,
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Subpart D—Reasonable Suspicion
Testing
Small railroads (15 or fewer covered
service employees with no joint
operation) and MOW workers will be
subject to reasonable suspicion testing.
The burden to small railroads is
expected to be minimal as there are
currently few reasonable suspicion tests
performed on HOS employees (currently
covered under part 219) by railroads of
any size. FRA does not expect there to
be proportionally more reasonable
suspicion tests for MOW employees or
other small railroads. FRA never
intended to exclude small railroads
from reasonable suspicion requirements
and has been training short lines and
small railroads to perform reasonable
suspicion testing for years. This portion
of the proposed rule will create
approximately 1 percent of the total
burden for small entities.
Subpart E—Reasonable Cause Testing
For this subpart all railroads can
choose to use Federal or company
authority reasonable cause testing.
Furthermore, FRA has excluded
partially excepted small railroads from
the provisions of this subpart.
Subpart F—Pre-Employment Testing
FRA is proposing to change the preemployment drug testing requirement to
remove the small railroad exception, so
small railroads (15 or fewer covered
service employers) will now have to
conduct Federal pre-employment drug
testing. Many small railroads and
contractors already test employees for
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Subparts applicable,
proposed
ALL.
All except for Subpart I.
Subparts A, B, C, D, F,
H, and J.
drugs under company authority prior to
hiring and are already in compliance
with the regulation. This portion of the
proposed rule will create approximately
1 percent of the total burden for small
entities.
In order to alleviate some of the
burdens for all railroads, FRA proposes
to allow all current MOW employees to
be grandfathered for this requirement of
the regulation.
Subpart G—Random Alcohol and Drug
Testing Program
FRA has excluded small railroads
from the requirements of this subpart.
All MOW employees of railroads that do
not qualify for the small railroad
exception will be subject to random
alcohol and drug tests. Contractors will
be required to conform to the
requirements of the largest railroad for
which they work. All companies that
must comply with this subpart are
required to create and administer
random plans, although the testing
burden is proportional to the number of
employees in each company. As
previously mentioned, FRA has model
plans for railroads and contractors;
these plans include random plans.
Consortiums also exist that will
organize administration and testing, to
include random selection and testing.
Consortiums are a very convenient
option for small businesses because they
lessen the administrative burden. This
portion of the proposed rule will create
approximately 37 percent of the total
burden for small entities.
Subpart H—Drug and Alcohol Testing
Procedures
FRA is not proposing any substantive
changes to this subpart, so there are no
expected impacts on small businesses.
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Subpart I—Annual Report
Annual reporting requirements have
been required for railroads with 400,000
employee hours, and there are no
proposed substantive changes to this
subpart. FRA does not expect any
impact on small businesses.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
Subpart J—Recordkeeping Requirements
FRA is not proposing any substantive
changes to this subpart, so the only
impact on small businesses is for the
recordkeeping requirements for the
MOW employees added to the rule. This
portion of the proposed rule will create
less than 1 percent of the total burden
for small entities.
Subpart K—Peer Support Programs
FRA is proposing amendments that
are designed to provide additional
detail, clarity, and focus to the peer
support programs. Both partially
excepted small railroads and contractors
are excluded from this subpart, so the
smallest railroads do not need to
comply. Other Class III railroads that do
not qualify for the small railroad
exception under part 219 must have
peer support programs. This may
require railroads to redesign or
reconfigure their existing programs. The
proposed rule specifies that a railroad
may comply with subpart K by
adopting, publishing, or implementing a
policy meeting the requirements of
proposed § 219.1003, or by complying
with proposed § 219.1007 (which
discusses alternate peer support
program policies). This provides
flexibility for railroads. FRA will make
its expertise available to all railroads
and will be providing templates for peer
support programs that railroads will be
able to use. This portion of the proposed
rule will create less than 1 percent of
the total burden for small entities.
The economic impact from this
regulation is primarily a result of the
proposed requirements to expand drug
and alcohol testing to MOW employees.
The number of railroads and contractors
expected to be affected (who are not
already covered by part 219 or
participating in some other form of
voluntary or employer-based drug and
alcohol testing) is small, and therefore
the effect will be minimal. As such,
there is not a significant impact on a
substantial number of small entities.
While there are many railroads
considered to be small entities, per the
SBA definition, many of these small
railroads have 15 or fewer regulated
employees or contractors with no joint
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operations and therefore are not
required to comply with all subparts of
the regulation. Those that must
implement full compliance programs
should already be testing covered
employees and have an established drug
and alcohol testing program. For those
contractors who do not fall under the
current regulation but will fall under the
proposed rule, the ability to join a
consortium exists thus providing an
effective way to mitigate the costs of
starting and administering a program.
Market and Competition Considerations
The small railroad segment of the
railroad industry faces little in the way
of intramodal competition. Small
railroads generally serve as ‘‘feeders’’ to
the larger railroads, collecting carloads
in smaller numbers and at lower
densities than would be economical for
larger railroads. They transport those
cars over relatively short distances and
then turn them over to the larger
systems, which transport them to their
final destination or for handoff back to
a smaller railroad for final delivery. The
relationship between the large and small
entity segments of the railroad industry
are more supportive and codependent
than competitive. Furthermore, small
railroads rarely compete with each other
because they serve the smaller, lowerdensity markets and customers, and
these markets generally do not have
enough traffic to attract larger carriers or
even other small carriers. The railroad
industry has several significant barriers
to entry, such as the need to own the
right-of-way and the high capital
expenditure needed to purchase a fleet,
track, and equipment. As such, small
railroads usually have monopolies over
the small and segmented markets in
which they operate. Thus, while this
rule may have an economic impact on
all railroads, it should not have an
impact on the intramodal competitive
position of small railroads.
Contractors in the railroad industry,
such as those who provide MOW
services, are likely to have more
competition in the marketplace than
railroads. Several barriers to entry exist,
such as the capital required to purchase
MOW machinery. Many contractors
already have employees who have
CDLs, and as such must follow the
Federal drug and alcohol testing
regulations promulgated by FMCSA,
which are similar to FRA requirements.
Implementation of the proposed rule is
expected to be more efficient if a
company already has a process in place
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43887
for testing some of its employees for
drugs and alcohol under FMCSA
regulations.
5. Identification, to the Extent
Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or
Conflict With the Proposed Rule
FRA is not aware of any relevant
Federal rules that may duplicate,
overlap, or conflict with the proposed
rule, except for the alcohol and drug
testing requirements of other DOT
agencies (such as FMCSA’s
requirements for CDL holders). The
proposed rule specifies, however, that:
(1) FRA will accept a pre-employment
drug testing conducted by an employer
under any DOT regulation; and (2)
regulated employees subject to random
testing under the rules of more than one
DOT agency for the same railroad are
only subject to random testing selection
at the applicable rate set by the DOT
agency regulating more than 50% of the
employee’s functions. FRA believes this
approach eliminates any potential
duplication, overlap, or conflict with
the alcohol and drug testing
requirements of other DOT agencies.
Furthermore, this approach is the one
already taken for the potential
duplication, overlap, or conflict that
currently may exist for covered
employees who are subject to both part
219 and the alcohol and drug testing
requirements of other DOT agencies
(e.g., train engineers who also have a
CDL). Because this established approach
has been successful with covered
employees, FRA does not anticipate
problems applying it to MOW
employees as well.
Part 219 also incorporates the
procedures established in 49 CFR Part
40, Procedures for Transportation
Workplace Drug and Alcohol Testing
Programs. FRA’s proposed revision to
part 219 will not conflict with Part 40,
nor will it be duplicative or
overlapping. It is supplemental,
specifying procedures directly related to
the railroad industry.
C. Paperwork Reduction Act
The new information collection
requirements in this proposed rule are
being submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501 et seq. The
sections that contain the new and
current information collection
requirements and the estimated time to
fulfill each requirement are as follows:
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Total
annual
burden hours
emcdonald on DSK67QTVN1PROD with PROPOSALS2
CFR Section
Respondent
universe
Total annual
responses
Average time
per response
219.4—Petition for Recognition of a Foreign
Railroad’s Workplace Testing Program (New
Requirement).
219.7—Waivers ..................................................
219.9—Joint Operating Agreement between
Railroads Assigning Responsibility for Compliance this Part Amongst Themselves (Rev.
Requirement).
—Request to railroad for documents by
employee engaged in joint operation and
subject to adverse action after being required to participate in breath/body fluid
testing under subpart C, D, or E of Part
219 (Rev. Requirement).
—Document by railroad/contractor delineating responsibility for Compliance with
this Part (Rev. Requirement).
219.11—Employee consent to participate in
body fluid testing under subparts C.
—Notification to employees for testing
(New Requirement).
—RR Alcohol & Drug Program that provides training to supervisors and information on criteria for post-accident toxicological testing contained in Part 219
subpart C and appendix C (Rev. Requirement).
—Alcohol and Drug Programs —New RRs
—Training of Supervisory Employees in
signs/symptoms of alcohol/drug influence.
219.12—RR Documentation on need to place
employee on duty for follow-up tests.
219.23—Educational materials concerning the
effects of alcohol/drug misuse on individual
employees.
—Copies of educational materials to employees.
219.104—Removal of employee from regulated
service —(Rev. Requirement) Verbal Notice
+ Follow-up Written Letter.
—Request for Hearing by Employee who
Denies Test Result or other Information
is Valid Evidence of Part 219 Violation.
—Applicants Declining Pre-Employment
Testing and Withdrawing Employment
Application—Communications (New Requirement).
219.105—RR Duty to prevent violation—Documents provided to FRA after agency request
regarding RR’s Alcohol and/or Drug Use
Education/Prevention/Etc. Program (New Requirement).
219.201(c)—Report by RR concerning decision
by person other than RR representative
about whether an accident/incident qualifies
for testing.
19.203/207—Major train accidents—Post Accident Toxicological Testing Forms
—Completion of FRA F 6180.73 .................
—Determination by RR representative to
exclude surviving crewmember from testing (New Requirement).
—Verbal notification and subsequent written report of failure to collect urine/blood
specimens within four hours (New Requirement).
—Recall of employees for testing and Narrative Report Completion (New Requirement).
2 Railroads ..............................
2 petitions ......................
40 hours ..........
80 hours.
142,000 employees .................
698 railroads + 400 MOW contractors.
4 waivers .......................
525 agreements .............
2 hours ............
30 minutes ......
8 hours.
263 hours.
698 railroads + 400 MOW contractors.
2 requests/documents ...
1 hour ..............
2 hours.
698 railroads + 400 MOW contractors.
10 documents ................
2 hours ............
20 hours.
698 railroads + 400 MOW contractors.
142,000 employees .................
30 consent forms ...........
2 minutes ........
1 hour.
9,508 notices .................
5 seconds .......
13 hours.
698 railroads + 400 MOW contractors.
698 modified Programs
1 hour ..............
698 hours.
5 railroads ................................
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
5 programs ....................
2,462 trained supervisors.
5 documents ..................
3 hours ............
3 hours ............
15 hours.
7,386 hours.
30 minutes ......
3 hours.
1,098 revised educational documents.
1 hour ..............
1,098 hours.
142,000 employees .................
142,000 copies of documents.
500 notices + 500 letters
2 minutes ........
4,733 hours.
30 seconds + 2
minutes.
21 hours.
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698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
50 requests + 50 hearings.
2 minutes + 4
hours.
202 hours.
698 railroads + 400 MOW contractors.
60 notices/communications.
2 minutes ........
2 hours.
698 railroads + 400 MOW contractors.
2 documents ..................
5 minutes ........
.17 hour.
698 railroads + 400 MOW contractors.
2 reports ........................
30 minutes ......
1 hour.
142,000 employees .................
698 railroads + 400 MOW contractors.
240 forms ....................... 10 minutes ......
50 decisions/d determina- 5 minutes ........
tions.
40 hours.
4 hours.
698 railroads + 400 MOW contractors.
80 notifications + 80 reports.
2 minutes + 30
minutes.
43 hours.
698 railroads + 400 MOW contractors.
4 calls + 4 reports ..........
2 minutes + 30
minutes.
2 hours.
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Total
annual
burden hours
emcdonald on DSK67QTVN1PROD with PROPOSALS2
CFR Section
Respondent
universe
Total annual
responses
Average time
per response
—RR Reference to Part 219 requirements
and FRA’s post-accident toxicological kit
in seeking to obtain facility cooperation
(New Requirement).
—RR Notification to National Response
Center of injured employee unconscious
or otherwise unable to give testing consent (New Requirement).
219.205—Specimen Handling/Collection (New
Requirement)
— Completion of Form FRA F 6180.74 by
train crew members after accident.
—RR representative request to medical facility representative to complete remaining information on FRA F 6180.74.
—RR representative completion of Form
FRA F 6180.73.
—Request to FRA Alcohol and Drug Program Manager for order form for Standard Shipping Kits.
—Request to National Response Center
(NRC) for Post-Mortem Shipping Kit.
—RR Request to Medical Facility to Transfer Sealed Toxicology Kit (Current Requirement).
—RR/Medical Facility Record of Kit Error ..
219.209(a)—Notification to NRC and FRA of
Accident/Incident where Samples were Obtained.
219.211(b)—Results of post-accident toxicological testing to RR MRO and RR Employee.
(c)—MRO Report to FRA of positive test
for alcohol/drugs of surviving employee.
219.303—Reasonable Suspicion Observations
(Drug Test)
—Communication between On-Site and
Off-Site Supervisors regarding Reasonable Suspicion Observation (New Requirement).
—RR Written Documentation of Observed
Signs/Symptoms for Reasonable Suspicion Determination (New Requirement).
219.305—RR Written Record Stating Reasons
Test was Not Promptly Administered (New
Requirement).
219.401—Notification to Employee regarding
Reasonable Cause Testing (New Requirement).
219.405—RR Documentation Describing Basis
of Reasonable Cause Testing (New Requirement).
—RR Documentation of Rule/Part 225 Violation for Each Reasonable Cause Test
(New Requirement).
219.407—Prompt specimen collection time limitation exceeded—Record (New Requirement).
219.501—RR Documentation of Negative PreEmployment Drug Tests (New Requirement).
219.605—Submission of random testing plan
(New Requirement)—Existing RRs.
—New Railroads submission of random
testing plans (New Requirement).
—Amendments to Currently-Approve FRA
Random Testing Plan (New Requirement).
—Resubmitted random testing plans after
notice of FRA disapproval (New Requirement).
—Non-Substantive Amendment to an Approved Plan (New Requirement).
698 railroads + 400 MOW contractors.
80 references .................
15 minutes ......
20 hours.
698 railroads + 400 MOW contractors.
2 phone calls .................
10 minutes ......
.33 hour.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
240 forms .......................
15 minutes ......
60 hours.
80 ph. requests ..............
2 minutes ........
3 hours.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
80 forms .........................
10 minutes ......
13 hours.
5 requests ......................
2 minutes ........
.17 hour.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
1 request ........................
2 minutes ........
.03333 hour.
40 ph. Requests ............
2 minutes ........
1 hour.
698 RRs + 400 Contr ..............
698 railroads + 400 MOW contractors.
20 Wr. Records .............
40 phone reports ...........
2 minutes ........
2 minutes ........
1 hour.
1 hour.
698 railroads + 400 MOW contractors.
10 reports ......................
15 minutes ......
3 hours.
698 railroads + 400 MOW contractors.
10 reports ......................
15 minutes ......
3 hours.
698 railroads + 400 MOW contractors.
50 phone communications.
2 minutes ........
2 hours.
698 railroads + 400 MOW contractors.
30 documents ................
5 minutes ........
3 hours.
698 railroads + 400 MOW contractors.
30 records ......................
2 minutes ........
1 hour.
698 railroads + 400 MOW contractors.
50 notifications ...............
15 minutes ......
13 hours.
698 railroads + 400 MOW contractors.
50 documents ................
15 minutes ......
13 hours.
698 railroads + 400 MOW contractors.
20 documents ................
15 minutes ......
5 hours.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
5 railroads ................................
15 records ......................
15 minutes ......
4 hours.
1,200 tests + 1,200 documents.
200 plans .......................
15 minutes + 5
minutes.
1 hour ..............
400 hours.
200 hours.
5 plans ...........................
1 hour ..............
5 hours.
698 railroads + 400 MOW contractors.
20 amendments .............
1 hour ..............
20 hours.
698 railroads + 400 MOW contractors.
21 resubmitted plans .....
15 minutes ......
5 hours.
698 railroads + 400 MOW contractors.
50 amendments .............
10 minutes ......
8 hours.
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Federal Register / Vol. 79, No. 144 / Monday, July 28, 2014 / Proposed Rules
Total
annual
burden hours
Respondent
universe
Total annual
responses
Average time
per response
—New/Combined/Amended Random Testing Plans Incorporating New Categories
of Regulated Employees (New Requirement).
219.607—RR Requests to Contractor or Service Agent to Submit Part 219 Compliant Random Testing Plan on Its Behalf (New Requirement).
—Contractor Random Testing Plan (New
Requirement).
219.609—Inclusion of Regulated Service Contractor Employees/Volunteers in RR Random
Testing Plan (New Requirement).
—Addenda to RR Random Testing Plan
Describing Method Used to Test Contractor/Volunteer Employees in Non-Random Testing Plan (New Requirement).
219.611—Random Alcohol and Drug Test
Pools: Good Faith Determinations and Evaluations of Employee Likelihood of Performing
Regulated Service (New Requirement).
—Random Testing Pool Updates (New Requirement).
—Documents on RR Multiple Random
Testing Pools (New Requirement).
219.613—RR Identification of Total Number of
Eligible Employees for Random Testing (New
Requirement).
—RR Records/Explanation of Discarded
Selection Draws (New Requirement).
—Electronic or Hard Copy of RR Snapshot
of Each Random Testing Pool (New Requirement).
219.615—Incomplete Random Testing Collections—Documentation (New Requirement).
219.617—Employee Exclusion from Random
alcohol/drug testing after providing verifiable
evidence from credible outside professional
(New Requirement).
219.619—Report by MRO of Verified Positive
Test or by Breath Alcohol Technician of
Breath Alcohol Specimen of 04 or Greater
(New Requirement).
219.623—Random Testing Records (New Requirement).
219.901—RR Alcohol and Drug Misuse Prevention Records for MOW Employees Kept by
FRA (New Requirement).
219.1001—RR Adoption of Peer Support Program (New Requirement).
—New Railroads Adoption of Peer Support
Program (New Requirement).
219.1005—Peer Support Programs with Labor
Organization Approvals that Include Optional
Provisions (New Requirement).
219.1007—Filing of Documents/Records with
FRA of Labor Concurrences for Alternate
Peer Support Programs (New Requirement).
—Notice to FRA of Amendment or Revocation of FRA Approved Alternate Peer
Support Program (New Requirement).
emcdonald on DSK67QTVN1PROD with PROPOSALS2
CFR Section
698 railroads + 400 MOW contractors.
20 random testing plans
15 minutes ......
5 hours.
698 railroads + 400 MOW contractors.
50 requests ....................
15 minutes ......
13 hours.
400 MOW contractors .............
50 plans .........................
1 hour ..............
50 hours.
698 railroads + 400 MOW contractors.
15 plans .........................
10 minutes ......
3 hours.
698 railroads + 400 MOW contractors.
15 addenda ....................
10 minutes ......
3 hours.
698 railroads + 400 MOW contractors.
25,000 determinations +
25,000 evaluations.
30 seconds +
30 seconds.
417 hours.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
13,176 pool updates ......
5 minutes ........
1,098 hours.
96 documents ................
5 minutes ........
8 hours.
2,196 IDs .......................
2 minutes ........
73 hours.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
10 records/explanations
2 minutes ........
.33 hour.
13,176 snapshots ..........
2 minutes ........
1,098 hours.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
2,000 documents ...........
.5 minute .........
17 hours.
5 documents ..................
1 hour ..............
5 hours.
698 railroads + 400 MOW contractors.
88 reports ......................
5 minutes ........
7 hours.
698 railroads + 400 MOW contractors.
698 railroads + 400 MOW contractors.
40,000 records ...............
1 minute ..........
667 hours.
16,960 records ...............
5 minutes ........
1,413 hours.
698 railroads + 400 MOW contractors.
5 railroads ................................
698 programs ................
30 minutes ......
349 hours.
5 programs ....................
30 minutes ......
3 hours.
698 railroads + 400 MOW contractors.
10 Peer Support Programs.
20 hours ..........
200 hours.
698 railroads + 400 MOW contractors.
10 documents ................
1 hour ..............
10 hours.
698 railroads + 400 MOW contractors.
1 notice/amended peer
support program.
1 hour ..............
1 hour.
All estimates include the time for
reviewing instructions; searching
existing data sources; gathering or
maintaining the needed data; and
reviewing the information. Pursuant to
44 U.S.C. 3506(c)(2)(B), FRA solicits
comments concerning: Whether these
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Jkt 232001
information collection requirements are
necessary for the proper performance of
the functions of FRA, including whether
the information has practical utility; the
accuracy of FRA’s estimates of the
burden of the information collection
requirements; the quality, utility, and
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clarity of the information to be
collected; and whether the burden of
collection of information on those who
are to respond, including through the
use of automated collection techniques
or other forms of information
technology, may be minimized. For
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Federal Register / Vol. 79, No. 144 / Monday, July 28, 2014 / Proposed Rules
emcdonald on DSK67QTVN1PROD with PROPOSALS2
information or a copy of the paperwork
package submitted to OMB, contact Mr.
Robert Brogan, Information Clearance
Officer, at 202–493–6292, or Ms.
Kimberly Toone at 202–493–6132.
Organizations and individuals
desiring to submit comments on the
collection of information requirements
should direct them to Mr. Robert Brogan
or Ms. Kimberly Toone, Federal
Railroad Administration, 1200 New
Jersey Avenue SE., 3rd Floor,
Washington, DC 20590. Comments may
also be submitted via email to Mr.
Brogan or Ms. Toone at the following
address: Robert.Brogan@dot.gov;
Kim.Toone@dot.gov. OMB is required to
make a decision concerning the
collection of information requirements
contained in this proposed rule between
30 and 60 days after publication of this
document in the Federal Register.
Therefore, a comment to OMB is best
assured of having its full effect if OMB
receives it within 30 days of
publication. The final rule will respond
to any OMB or public comments on the
information collection requirements
contained in this proposal.
FRA is not authorized to impose a
penalty on persons for violating
information collection requirements
which do not display a current OMB
control number, if required. FRA
intends to obtain current OMB control
numbers for any new information
collection requirements resulting from
this rulemaking action prior to the
effective date of the final rule. The OMB
control number, when assigned, will be
announced by separate notice in the
Federal Register.
D. Federalism Implications
Executive Order 13132, ‘‘Federalism’’
(64 FR 43255, Aug. 4, 1999), requires
FRA to develop an accountable process
to ensure ‘‘meaningful and timely input
by State and local officials in the
development of regulatory policies that
have federalism implications.’’ ‘‘Policies
that have federalism implications’’ are
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Under Executive
Order 13132, the agency may not issue
a regulation with federalism
implications that imposes substantial
direct compliance costs and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, or the agency consults
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18:10 Jul 25, 2014
Jkt 232001
with State and local government
officials early in the process of
developing the regulation. Where a
regulation has federalism implications
and preempts State law, the agency
seeks to consult with State and local
officials in the process of developing the
regulation.
This NPRM has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132. FRA has determined that the
proposed rule will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. In addition, FRA
has determined that this proposed rule
will not impose substantial direct
compliance costs on State and local
governments. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
This NPRM complies with a statutory
mandate and would not have a
substantial effect on the States, on the
relationship between the Federal
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. In addition, this
NPRM would not have any federalism
implications that impose substantial
direct compliance costs on State and
local governments.
However, FRA notes that this part
could have preemptive effect by the
operation of law under a provision of
the former Federal Railroad Safety Act
of 1970, repealed and codified at 49
U.S.C. 20106 (Sec. 20106). Sec. 20106
provides that States may not adopt or
continue in effect any law, regulation, or
order related to railroad safety or
security that covers the subject matter of
a regulation prescribed or order issued
by the Secretary of Transportation (with
respect to railroad safety matters) or the
Secretary of Homeland Security (with
respect to railroad security matters),
except when the State law, regulation,
or order qualifies under the ‘‘essentially
local safety or security hazard’’
exception to Sec. 20106.
In sum, FRA has analyzed this
proposed rule in accordance with the
principles and criteria contained in
Executive Order 13132. As explained
above, FRA has determined that this
proposed rule has no federalism
implications, other than the possible
preemption of State laws under 49
U.S.C. 20106 and 20119. Accordingly,
FRA has determined that preparation of
a federalism summary impact statement
for this proposed rule is not required.
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43891
E. International Trade Impact
Assessment
The Trade Agreement Act of 1979
prohibits Federal agencies from
engaging in any standards or related
activities that create unnecessary
obstacles to foreign commerce of the
United States. Legitimate domestic
objectives, such as safety, are not
considered unnecessary obstacles. The
statute also requires consideration of
international standards and where
appropriate, that they be the basis for
U.S. standards.
This proposed rulemaking is purely
domestic in nature and is not expected
to affect trade opportunities for U.S.
firms doing business overseas or for
foreign firms doing business in the
United States.
F. Environmental Impact
FRA has evaluated this NPRM in
accordance with its ‘‘Procedures for
Considering Environmental Impacts’’
(FRA’s Procedures) (64 FR 28545, May
26, 1999) as required by the National
Environmental Policy Act (42 U.S.C.
4321 et seq.), other environmental
statutes, Executive Orders, and related
regulatory requirements. FRA has
determined that this document is not a
major FRA action (requiring the
preparation of an environmental impact
statement or environmental assessment).
In accordance with section 4(c) and (e)
of FRA’s Procedures, the agency has
further concluded that no extraordinary
circumstances exist with respect to this
NPRM that might trigger the need for a
more detailed environmental review. As
a result, FRA finds that this NPRM is
not a major Federal action significantly
affecting the quality of the human
environment.
G. Unfunded Mandates Reform Act of
1995
Pursuant to Section 201 of the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 2 U.S.C. 1531), each
Federal agency ‘‘shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law).’’ Section 202 of the Act (2 U.S.C.
1532) further requires that ‘‘before
promulgating any general notice of
proposed rulemaking that is likely to
result in the promulgation of any rule
that includes any Federal mandate that
may result in expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$100,000,000 or more (adjusted
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annually for inflation) in any one year,
and before promulgating any final rule
for which a general notice of proposed
rulemaking was published, the agency
shall prepare a written statement’’
detailing the effect on State, local, and
tribal governments and the private
sector. This monetary amount of
$100,000,000 has been adjusted to
$140,800,000 to account for inflation.
This proposed rule would not result in
the expenditure of more than
$140,800,000 by the public sector in any
one year, and thus preparation of such
a statement is not required.
H. Energy Impact
emcdonald on DSK67QTVN1PROD with PROPOSALS2
I. Privacy Act Information
Interested parties should be aware
that anyone is able to search the
electronic form of all written
communications and comments
received into any agency docket by the
name of the individual submitting the
document (or signing the document, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19477), or you may visit https://
www.dot.gov/privacy.html.
List of Subjects in 49 CFR Part 219
Alcohol abuse, Drug abuse, Drug
testing, Penalties, Railroad safety,
18:10 Jul 25, 2014
The Proposed Rule
For the reasons stated above, FRA
proposes to amend 49 CFR part 219 as
follows:
PART 219—[Amended]
1. The authority citation for part 219
is revised to read as follows:
■
Authority: 49 U.S.C. 20103, 20107, 20140,
21301, 21304, 21311; 28 U.S.C. 2461, note;
Sec. 412, Pub. L. 110–432, 122 Stat. 4889;
and 49 CFR 1.89.
Subpart A—General
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ 66 FR 28355 (May 22,
2001). Under the Executive Order, a
‘‘significant energy action’’ is defined as
any action by an agency (normally
published in the Federal Register) that
promulgates or is expected to lead to the
promulgation of a final rule or
regulation, including notices of inquiry,
advance notices of proposed
rulemaking, and notices of proposed
rulemaking, that: (1)(i) Is a significant
regulatory action under Executive Order
12866 or any successor order; and (ii) is
likely to have a significant adverse effect
on the supply, distribution, or use of
energy; or (2) is designated by the
Administrator of the Office of
Information and Regulatory Affairs as a
significant energy action. FRA has
evaluated this NPRM in accordance
with Executive Order 13211. FRA has
determined that this NPRM would not
have a significant adverse effect on the
supply, distribution, or use of energy.
Consequently, FRA has determined that
this regulatory action is not a
‘‘significant energy action’’ within the
meaning of Executive Order 13211.
VerDate Mar<15>2010
Reporting and recordkeeping
requirements, Safety, Transportation.
Jkt 232001
■
2. Revise § 219.1(a) to read as follows:
§ 219.1
Purpose and scope.
(a) The purpose of this part is to
prevent accidents and casualties in
railroad operations that result from
impairment of employees (as defined in
§ 219.5) by alcohol or drugs.
*
*
*
*
*
■ 3. Revise § 219.3 to read as follows:
§ 219.3
Application.
(a) General. This part applies to all
railroads, except as provided in
paragraphs (b), (c), and (d) of this
section, and except for:
(1) Railroads that operate only on
track inside an installation that is not
part of the general railroad system of
transportation (i.e., plant railroads, as
defined in § 219.5);
(2) Tourist, scenic, historic, or
excursion operations that are not part of
the general railroad system of
transportation, as defined in § 219.5; or
(3) Rapid transit operations in an
urban area that are not connected to the
general railroad system of
transportation.
(b) Annual report requirements. (1)
Subpart I of this part does not apply to
any domestic or foreign railroad that has
fewer than 400,000 total annual
employee work hours, including hours
worked by all employees of the railroad,
regardless of occupation, not only while
in the United States, but also while
outside the United States.
(2) Subpart I of this part does not
apply to any contractor that performs
regulated service exclusively for
railroads with fewer than 400,000 total
annual employee work hours, including
hours worked by all employees of the
railroad, regardless of occupation, not
only while in the United States, but also
while outside the United States.
(3) When a contractor performs
regulated service for at least one railroad
with fewer than 400,000 total annual
employee hours, including hours
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worked by all employees of the railroad,
regardless of occupation, not only while
in the United States, but also while
outside the United States, subpart I
applies as follows:
(i) A railroad with more than 400,000
total annual employee work hours must
comply with Subpart I regarding any
contractor employees it integrates into
its own alcohol and drug testing
program under this part; and
(ii) If a contractor establishes its own
independent alcohol and drug testing
program that meets the requirements of
this part and is acceptable to the
railroad, the contractor must comply
with subpart I if it has 200 or more
regulated employees.
(c) Small railroad exception. (1)
Subparts E, G, and K of this part do not
apply to small railroads, and a small
railroad may not perform the Federal
alcohol and drug testing authorized by
these subparts (except that a small
railroad may establish a Federal
authority peer prevention program that
complies with the requirements of
subpart K). For purposes of this part, a
small railroad means a railroad that:
(i) Has a total of 15 or fewer
employees who are covered by the
hours of service laws at 49 U.S.C. 21103,
21104, or 21105, or who would be
subject to the hours of service laws at 49
U.S.C. 21103, 21104, or 21105 if their
services were performed in the United
States; and
(ii) Does not have joint operations, as
defined in § 219.5, with another railroad
that operates in the United States,
except as necessary for purposes of
interchange.
(2) An employee performing only
MOW activities, as defined in § 219.5,
does not count towards a railroad’s total
number of covered employees for the
purpose of determining whether it
qualifies for the small railroad
exception.
(3) A contractor performing MOW
activities exclusively for small railroads
also qualifies for the small railroad
exception (i.e., is excepted from the
requirements of subparts E, G, and K of
this part). However, a contractor who
would otherwise qualify for the small
railroad exception is not excepted if it
performs MOW activities for multiple
railroads, and at least one or more of
those railroads does not qualify for the
small railroad exception under this
section.
(4) If a contractor is subject to all of
part 219 because it performs regulated
service for multiple railroads, not all of
which qualify for the small railroad
exception, the responsibility for
ensuring that the contractor complies
with subparts E, G, and K is shared
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between the contractor and any railroad
using the contractor that does not
qualify for the small railroad exception.
(d) Foreign railroad. (1) This part does
not apply to the operations of a foreign
railroad that take place outside the
United States. A foreign railroad is
required to conduct post-accident
toxicological testing or reasonable
suspicion testing only for operations
that occur within the United States.
(2) Subparts F, G, and K of this part
do not apply to an employee of a foreign
railroad whose primary reporting point
is outside the United States if that
employee is:
(i) Performing train or dispatching
service on that portion of a rail line in
the United States extending up to 10
route miles from the point that the line
crosses into the United States from
Canada or Mexico; or
(ii) Performing signal service in the
United States.
■ 4. In § 219.4, revise paragraphs (a)(1)
introductory text and (b)(1) and (2) to
read as follows:
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§ 219.4 Recognition of a foreign railroad’s
workplace testing program.
(a) * * *
(1) To be so considered, the petition
must document that the foreign
railroad’s workplace testing program
contains equivalents to subparts B, F, G,
and K of this part:
*
*
*
*
*
(b) * * *
(1) Upon FRA’s recognition of a
foreign railroad’s workplace alcohol and
drug use program as compatible with
the return-to-service requirements in
subpart B and the requirements of
subparts F, G, and K of this part, the
foreign railroad must comply with
either the enumerated provisions of part
219 or with the standards of its
recognized program, and any imposed
conditions, with respect to its
employees whose primary reporting
point is outside the United States and
who perform train or dispatching
service in the United States. The foreign
railroad must also, with respect to its
final applicants for, or its employees
seeking to transfer for the first time to,
duties involving such train or
dispatching service in the United States,
comply with either subpart F of this part
or the standards of its recognized
program.
(2) The foreign railroad must comply
with subparts A (general), B
(prohibitions, other than the return-toservice provisions in § 219.104(d)), C
(post-accident toxicological testing), D
(reasonable suspicion testing), I (annual
report requirements), and J
(recordkeeping requirements) of this
VerDate Mar<15>2010
18:10 Jul 25, 2014
Jkt 232001
part. Drug or alcohol testing required by
these subparts (except for post-accident
toxicological testing required by subpart
C) must be conducted in compliance
with all applicable provisions of the
DOT Procedures for Workplace Drug
and Alcohol Testing Programs (part 40
of this title).
*
*
*
*
*
■ 5. Section 219.5 is amended by:
■ a. Revising the introductory text;
■ b. Adding definitions of
‘‘Administrator’’, ‘‘Associate
Administrator’’, ‘‘category of regulated
employee’’, ‘‘contractor’’, and
‘‘Counselor’’;
■ c. Revising the definitions of ‘‘covered
employee’’, ‘‘covered service’’, and
‘‘DOT agency’’;
■ d. Adding definitions of ‘‘DOT, The
Department, or DOT agency’’, ‘‘DOTregulated employee’’, ‘‘DOT safetysensitive duties or DOT safety-sensitive
functions’’, ‘‘Drug and Alcohol
Counselor or DAC,’’ ‘‘employee’’,
‘‘Employee Assistance Program
Counselor or EAP Counselor’’,
‘‘evacuation’’, ‘‘flagman’’, and ‘‘fouling a
track’’;
■ e. Revising the definition of ‘‘FRA
representative’’;
■ f. Removing the definition of ‘‘general
railroad system of transportation’’;
■ g. Adding definitions of ‘‘highway-rail
grade crossing’’ and ‘‘highway-rail grade
crossing accident/incident’’;
■ h. Revising the definition of ‘‘impact
accident’’;
■ i. Adding definitions of ‘‘joint
operations’’, ‘‘maintenance-of-way
activities or MOW activities’’, and
‘‘maintenance-of-way employee or
MOW employee’’;
■ j. Revising the definition of ‘‘medical
facility’’;
■ j. Adding definitions of ‘‘on-track or
fouling equipment’’, ‘‘other impact
accident’’, ‘‘person’’, and ‘‘plant
railroad’’;
■ k. Revising the definition of ‘‘railroad
property damage or damage to railroad
property’’;
■ l. Adding the definitions of ‘‘raking
collision’’, ‘‘regulated employee’’,
‘‘regulated service’’, ‘‘responsible
railroad supervisor’’, ‘‘side collision’’,
and ‘‘tourist, scenic, historic, or
excursion operations that are not part of
the general railroad system of
transportation’’;
■ m. Removing the definition of ‘‘train’’;
■ n. Revising the definitions of ‘‘train
accident’’ and ‘‘train incident’’; and
■ o. Adding the definition of
‘‘watchman/lookout’’.
The revisions and additions read as
follows:
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§ 219.5
43893
Definitions.
As used in this part only—
*
*
*
*
*
Administrator means the
Administrator of the Federal Railroad
Administration or the Administrator’s
delegate.
Associate Administrator means the
Associate Administrator for Railroad
Safety/Chief Safety Officer, Federal
Railroad Administration, or the
Associate Administrator’s delegate.
Category of regulated employee means
a broad class of either covered service
or maintenance-of-way employees (as
defined in this section). For the purpose
of determining random testing rates
under § 219.625, if an individual
performs both covered service and
maintenance-of-way activities, he or she
belongs in the category of regulated
employee that corresponds with the
type of regulated service comprising
more than 50 percent of his or her
regulated service.
*
*
*
*
*
Contractor means a contractor or
subcontractor performing functions for a
railroad.
*
*
*
*
*
Counselor means a person who meets
the qualifications and credentialing
requirements for a Drug and Alcohol
Counselor, Employee Assistance
Program Counselor, or Substance Abuse
Professional.
Covered employee means an
employee (as defined in this section to
include an employee, volunteer, or
probationary employee performing
activities for a railroad or a contractor to
a railroad) who is performing covered
service under the hours of service laws
at 49 U.S.C. ch. 21101, 21104, or 21105
or who is subject to performing such
covered service, regardless of whether
the person has performed or is currently
performing covered service. (An
employee is not a ‘‘covered employee’’
under this definition exclusively
because he or she is an employee for
purposes of 49 U.S.C. 21106.) For the
purposes of pre-employment testing
only, the term ‘‘covered employee’’
includes a person applying to perform
covered service in the United States.
Covered service means service in the
United States that is subject to the hours
of service laws at 49 U.S.C. 21103,
21104, or 21105, but does not include
any period the employee is relieved of
all responsibilities and is free to come
and go without restriction. Generally,
this includes train and engine service
persons who are involved in the
movement of trains (e.g., a locomotive
engineer, fireman, conductor, trainman,
brakeman, switchman, or locomotive
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hostler/helper); persons who handle
orders governing the movement of trains
(e.g., train dispatchers and control
operators); and persons who inspect,
repair, or install railroad signal systems
(e.g., signal maintainers). See Appendix
A to 49 CFR part 228, Requirements of
the Hours of Service Act: Statement of
Agency Policy and Interpretation.
*
*
*
*
*
DOT, The Department, or DOT agency
means all DOT agencies, including, but
not limited to, the United States Coast
Guard (USCG), the Federal Aviation
Administration (FAA), the Federal
Railroad Administration (FRA), the
Federal Motor Carrier Safety
Administration (FMCSA), the Federal
Transit Administration (FTA), the
National Highway Traffic Safety
Administration (NHTSA), the Pipeline
and Hazardous Materials Safety
Administration (PHMSA), and the
Office of the Secretary (OST). These
terms include any designee of a DOT
agency.
DOT-regulated employee means any
person who is designated in a DOT
agency regulation as subject to drug
testing and/or alcohol testing. The term
includes individuals currently
performing DOT safety-sensitive
functions designated in DOT agency
regulations and applicants for
employment subject to pre-employment
testing. For purposes of drug testing
conducted under the provisions of 49
CFR part 40, the term employee has the
same meaning as the term ‘‘donor’’ as
found on the Custody and Control Form
and related guidance materials
produced by the Department of Health
and Human Services.
DOT safety-sensitive duties or DOTsafety sensitive functions means
functions or duties designated by a DOT
agency, the performance of which
makes an individual subject to the drug
testing and/or alcohol testing
requirements of that DOT agency. For
purposes of this part, regulated service
has been designated by FRA as a DOT
safety-sensitive duty or function.
*
*
*
*
*
Drug and Alcohol Counselor or DAC
means a person who meets the
credentialing and qualification
requirements described in § 242.7 of this
chapter.
Employee means any individual
(including a volunteer or a probationary
employee) performing activities for a
railroad or a contractor to a railroad.
Employee assistance program or EAP
Counselor means a person qualified by
experience, education, or training to
counsel people affected by substance
abuse problems and to evaluate their
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Jkt 232001
progress in recovering from or
controlling such problems. An EAP
counselor can be a qualified full-time
salaried employee of a railroad, a
qualified practitioner who contracts
with the railroad on a fee-for-service or
other basis, or a qualified physician
designated by the railroad to perform
functions in connection with alcohol or
substance abuse evaluation or
counseling. As used in this part, the
EAP counselor has a duty to make an
honest and fully informed evaluation of
the condition and progress of an
employee.
Evacuation means the mandatory or
voluntary relocation of at least one
person who is not a railroad employee
for the purpose of avoiding exposure to
a hazardous material release. It does not
include the closure of public
transportation roadways for the purpose
of containing a hazardous material
release, unless the closure is
accompanied by an evacuation order.
Flagman means any person
designated by the railroad to direct or
restrict the movement of trains past a
point on a track to provide on-track
safety for maintenance-of-way
employees, while engaged solely in
performing that function.
*
*
*
*
*
Fouling a track means the placement
of an individual or an item of
equipment in such proximity to a track
that the individual or equipment could
be struck by a moving train or on-track
equipment, or in any case is within four
feet of the field side of the near running
rail.
*
*
*
*
*
FRA representative means the
Associate Administrator for Railroad
Safety of FRA and staff, the Associate
Administrator’s delegate (including a
qualified State inspector acting under
part 212 of this chapter), the Chief
Counsel of FRA, the Chief Counsel’s
delegate, or FRA’s Drug and Alcohol
Program oversight contractor.
*
*
*
*
*
Highway-rail grade crossing means:
(1) A location where a public
highway, road, or street, or a private
roadway, including associated
sidewalks, crosses one or more railroad
tracks at grade; or
(2) A location where a pathway
explicitly authorized by a public
authority or a railroad carrier that is
dedicated for the use of non-vehicular
traffic, including pedestrians, bicyclists,
and others. The term ‘‘sidewalk’’ means
that portion of a street between the curb
line, or the lateral line of a roadway, and
the adjacent property line or, on
easements of private property, that
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portion of a street that is paved or
improved and intended for use by
pedestrians.
Highway-rail grade crossing accident/
incident means any impact between
railroad on-track equipment and a
highway user at a highway-rail grade
crossing. The term ‘‘highway user’’
includes pedestrians, as well as
automobiles, buses, trucks, motorcycles,
bicycles, farm vehicles, pedestrians, and
all other modes of surface transportation
motorized and un-motorized.
Impact accident means a train
accident, as defined in this section,
consisting either of—
(1) A head-on or rear-end collision
between on-track equipment;
(2) A side collision, derailment
collision, raking collision, switching
collision, or ‘‘other impact accident,’’ as
defined by this section;
(3) Impact with a deliberately-placed
obstruction, such as a bumping post (but
not a derail); or
(4) Impact between on-track
equipment and any railroad equipment
fouling the track, such as an impact
between a train and the boom of an offrail vehicle.
The definition of ‘‘impact accident’’
does not include an impact with
naturally-occurring obstructions such as
fallen trees, rock or snow slides,
livestock, etc.
*
*
*
*
*
Joint operations means rail operations
conducted by more than one railroad on
the same track (except for minimal joint
operations necessary for the purpose of
interchange), regardless of whether such
operations are the result of contractual
arrangements between the railroads,
order of a governmental agency or a
court of law, or any other legally
binding directive. For purposes of this
part only, minimal joint operations are
considered necessary for the purpose of
interchange when:
(1) The maximum authorized speed
for operations on the shared track does
not exceed 20 mph;
(2) Operations are conducted under
operating rules that require every
locomotive and train to proceed at a
speed that permits stopping within one
half the range of vision of the
locomotive engineer;
(3) The maximum distance for
operations on the shared track does not
exceed 3 miles; and
(4) Any operations extending into
another railroad’s yard are for the sole
purpose of setting out or picking up cars
on a designated interchange track.
Maintenance-of-way activities or
MOW activities means:
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(1) The inspection, repair, or
maintenance of track, roadbed, or
electric traction systems;
(2) The operation of on-track or
fouling equipment utilized for the
inspection, repair, or maintenance of
track, roadbed, or electric traction
systems;
(3) The performance of flagman or
watchman/lookout duties, as defined in
this section;
(4) The obtaining of on-track authority
and/or permission for the performance
of the activities listed in paragraphs (1)
through (3) of this definition; or
(5) The granting of on-track authority
and/or permission for operation over a
segment of track while workers are
performing the activities listed in
paragraphs (1) through (3) of this
definition.
Maintenance-of-way employee or
MOW employee means any employee
(as defined in this section) who
performs maintenance-of-way activities
for a railroad.
Medical facility means a hospital,
clinic, physician’s office, or laboratory
where post-accident toxicological
testing specimens can be collected
according to recognized professional
standards, and where an individual’s
post-accident medical needs can be
attended to.
*
*
*
*
*
On-track or fouling equipment means
any railroad equipment that is
positioned on the rails or that is fouling
the track, and includes, but is not
limited to, the following: A train,
locomotive, cut of cars, single car,
motorcar, yard switching train, work
train, inspection train, track motorcar,
highway-rail vehicle, push car, crane, or
other roadway maintenance machine,
such as a ballast tamping machine, if the
machine is positioned on or over the
rails or is fouling the track.
Other impact accident means an
accident or incident, not classified as a
head-on, rear-end, side, derailment,
raking, or switching collision, that
involves contact between on-track or
fouling equipment. This includes
impacts in which single cars or cuts of
cars are damaged during operations
involving switching, train makeup,
setting out, etc.
*
*
*
*
*
Person means an entity of any type
covered under 1 U.S.C. 1, including but
not limited to the following: A railroad;
a manager, supervisor, official, or other
employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of
railroad equipment, track, or facilities;
any independent contractor providing
goods or services to a railroad, such as
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a service agent performing functions
under part 40 of this title; and any
employee of such owner, manufacturer,
lessor, lessee, or independent
contractor.
Plant railroad means a plant or
installation that owns or leases a
locomotive, uses that locomotive to
switch cars throughout the plant or
installation, and is moving goods solely
for use in the facility’s own industrial
processes. The plant or installation
could include track immediately
adjacent to the plant or installation if
the plant railroad leases the track from
the general system railroad and the lease
provides for (and actual practice entails)
the exclusive use of that trackage by the
plant railroad and the general system
railroad for purposes of moving only
cars shipped to or from the plant. A
plant or installation that operates a
locomotive to switch or move cars for
other entities, even if solely within the
confines of the plant or installation,
rather than for its own purposes or
industrial processes, will not be
considered a plant railroad because the
performance of such activity makes the
operation part of the general railroad
system of transportation.
*
*
*
*
*
Railroad property damage or damage
to railroad property means damage to
railroad property (specifically, on-track
equipment, signals, track, track
structure, or roadbed) and must be
calculated according to the provisions
for calculating costs and reportable
damage in the FRA Guide for Preparing
Accident/Incident Reports (see § 225.21
of this chapter for instructions on how
to obtain a copy). Generally, railroad
property damage includes labor costs
and all other costs to repair or replace
in-kind damaged on-track equipment,
signals, track, track structures
(including bridges and tunnels), or
roadbed. (Labor costs that must be
accounted for include hourly wages,
transportation costs, and hotel
expenses.) It does not include the cost
of clearing a wreck; however, additional
damage to the above-listed items caused
while clearing the wreck must be
included in the damage estimate. It also
includes the cost of rental and/or
operation of machinery such as cranes
and bulldozers, including the services of
contractors, to replace or repair the track
right-of-way and associated structures.
Railroad property damage does not
include damage to lading. Trailers/
containers on flatcars are considered to
be lading and damage to these is not to
be included in on-track equipment
damage. Damage to a flat car carrying a
trailer/container, however, is included
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43895
in railroad property damage. Railroads
should refer directly to the FRA Guide
for Preparing Accident/Incident Reports
for additional guidance on what
constitutes railroad property damage.
Raking collision means a collision
between parts or lading of a consist on
an adjacent track, or with a structure
such as a bridge.
Regulated employee means a covered
employee or maintenance-of-way
employee who performs regulated
service for a railroad subject to the
requirements of this part.
Regulated service means covered
service or maintenance-of-way
activities, the performance of which
makes an employee subject to the
requirements of this part.
*
*
*
*
*
Responsible railroad supervisor
means any responsible line supervisor
(e.g., a trainmaster or road foreman of
engines) or superior official in authority
over the regulated employees to be
tested.
*
*
*
*
*
Side collision means a collision at a
turnout where one consist strikes the
side of another consist.
*
*
*
*
*
Train accident means a rail
equipment accident described in
§ 225.19(c) of this chapter involving
damage in excess of the current
reporting threshold (see § 225.19(e) of
this chapter), including an accident
involving a switching movement. Rail
equipment accidents include, but are
not limited to, collisions, derailments,
and other events involving the
operations of on-track or fouling
equipment (whether standing or
moving).
Train incident means an event
involving the operation of railroad ontrack or fouling equipment that results
in a casualty but in which railroad
property damage does not exceed the
reporting threshold.
Tourist, scenic, historic, or excursion
operations that are not part of the
general railroad system of
transportation means a tourist, scenic,
historic, or excursion operation
conducted only on track used
exclusively for that purpose (i.e., there
is no freight, intercity passenger, or
commuter passenger railroad operation
on the track).
*
*
*
*
*
Watchman/lookout means an
employee who has been annually
trained and qualified to provide
warning of approaching trains or ontrack equipment. Watchmen/lookouts
must be properly equipped to provide
visual and auditory warning by such
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and the other entity or in another
document. In the absence of a clear
delineation of responsibility, FRA may
hold the railroad and the other entity
jointly and severally liable for
compliance.
■ 7. Add § 219.10 to read as follows:
§ 219.9
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means as a whistle, air horn, white disk,
red flag, lantern, or fusee. A watchman/
lookout’s sole duty is to look out for
approaching trains/on-track equipment
and provide at least fifteen seconds
advanced warning to employees before
arrival of trains/on-track equipment.
■ 6. Revise § 219.9 to read as follows:
Any person, as defined by § 219.5,
who violates any requirement of this
part or causes the violation of any such
requirement is subject to a civil penalty
of at least $650 and not more than
$16,000 per violation, except that:
Penalties may be assessed against
individuals only for willful violations;
where a grossly negligent violation or a
pattern of repeated violations has
created an imminent hazard of death or
injury, or has caused death or injury, a
penalty not to exceed $100,000 per
violation may be assessed; and the
standard of liability for a railroad will
vary depending upon the requirement
involved. See, e.g., § 219.105, which is
construed to qualify the responsibility
of a railroad for the unauthorized
conduct of an employee that violates
§ 219.101 or § 219.102 (while imposing
a duty of due diligence to prevent such
conduct). Each day a violation
continues constitutes a separate offense.
See Appendix A to this part for a
statement of agency civil penalty policy.
■ 8. In § 219.11, revise paragraphs (a),
(b)(1) and (2), and (c) through (h) to read
as follows:
Responsibility for compliance.
(a) General. Although the
requirements of this part are stated in
terms of the duty of a railroad, when
any person, as defined by § 219.5,
performs any function required by this
part, that person (whether or not a
railroad) shall perform that function in
accordance with this part.
(b) Joint operations. (1) In the case of
joint operations, primary responsibility
for compliance with subparts C, D, and
E of this part rests with the host
railroad, and all affected employees
must be responsive to direction from the
host railroad that is consistent with this
part. However, nothing in this
paragraph restricts railroads engaged in
joint operations from appropriately
assigning responsibility for compliance
with this part amongst themselves
through a joint operating agreement or
other binding contract. FRA reserves the
right to bring an enforcement action for
noncompliance with this part against
the host railroad, the employing
railroad, or both.
(2) Where an employee of a railroad
engaged in joint operations is required
to participate in breath or body fluid
testing under subpart C, D, or E of this
part and is subsequently subject to
adverse action alleged to have arisen out
of the required test (or alleged refusal
thereof), necessary witnesses and
documents available to the other
railroad engaged in the joint operations
must be made available to the employee
and his or her employing railroad on a
reasonable basis.
(c) Contractor responsibility for
compliance. As provided by paragraph
(a) of this section, any independent
contractor or other entity that performs
regulated service for a railroad, or any
other services under this part or part 40
of this title, has the same
responsibilities as a railroad under this
part with respect to its employees who
perform regulated service or other
service required by this part or part 40
of this title for the railroad. The entity’s
responsibility for compliance with this
part may be fulfilled either directly by
that entity or by the railroad treating the
entity’s regulated employees as if they
were the railroad’s own employees for
purposes of this part. The responsibility
for compliance must be clearly spelled
out in the contract between the railroad
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§ 219.10
§ 219.11
tests.
Penalties.
General conditions for chemical
(a)(1) Any regulated employee who is
subject to performing regulated service
for a railroad is deemed to have
consented to testing as required in
subparts B, C, D, E, G, and K of this part.
(2) A regulated employee required to
participate in alcohol and/or drug
testing under this part must be on-duty
and subject to performing regulated
service when the specimen collection is
initiated and the alcohol testing/urine
specimen collection is conducted (with
the exception of pre-employment testing
under subpart F of this part).
(b)(1) Each regulated employee must
participate in such testing, as required
under the conditions set forth in this
part and implemented by a
representative of the railroad or
employing contractor.
(2) In any case where an employee is
suffering a substantiated medical
emergency and is subject to alcohol or
drug testing under this part, necessary
medical treatment must be accorded
priority over provision of the breath or
body fluid specimen(s). A medical
emergency is an acute medical
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condition requiring immediate medical
care. A railroad may require an
employee to substantiate a medical
emergency by providing verifiable
documentation from a credible outside
professional (e.g., doctor, dentist,
hospital, or law enforcement officer)
substantiating the medical emergency
within a reasonable period of time.
*
*
*
*
*
(c) A regulated employee who is
required to be tested under subpart C, D,
or E of this part and who is taken to a
medical facility for observation or
treatment after an accident or incident
is deemed to have consented to the
release to FRA of the following:
(1) The remaining portion of any body
fluid specimen taken by the medical
facility within 12 hours of the accident
or incident that is not required for
medical purposes, together with any
normal medical facility record(s)
pertaining to the taking of such
specimen;
(2) The results of any laboratory tests
for alcohol or any drug conducted by or
for the medical facility on such
specimen;
(3) The identity, dosage, and time of
administration of any drugs
administered by the medical facility
prior to the time specimens were taken
by the medical facility or prior to the
time specimens were taken in
compliance with this part; and
(4) The results of any breath tests for
alcohol conducted by or for the medical
facility.
(d) Any person required to participate
in body fluid testing under subpart C of
this part (post-accident toxicological
testing) shall, if requested by a
representative of the railroad or the
medical facility, evidence consent to the
taking of specimens, their release for
toxicological analysis under pertinent
provisions of this part, and release of
the test results to the railroad’s Medical
Review Officer by promptly executing a
consent form, if required by the medical
facility. The employee is not required to
execute any document or clause waiving
rights that the employee would
otherwise have against the railroad, and
any such waiver is void. The employee
may not be required to waive liability
with respect to negligence on the part of
any person participating in the
collection, handling or analysis of the
specimen or to indemnify any person
for the negligence of others. Any
consent provided consistent with this
section may be construed to extend only
to those actions specified in this section.
(e)(1) A regulated employee who is
notified of selection for testing under
this part must cease to perform his or
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her assigned duties and proceed to the
testing site either immediately or as
soon as possible without adversely
affecting safety.
(2) A railroad must ensure that the
absence of a regulated employee from
his or her assigned duties to report for
testing does not adversely affect safety.
(3) Nothing in this part may be
construed to authorize the use of
physical coercion or any other
deprivation of liberty in order to compel
breath or body fluid testing.
(f) Any employee performing duties
for a railroad who is involved in a
qualifying accident or incident
described in subpart C of this part, and
who dies within 12 hours of that
accident or incident as the result
thereof, is deemed to have consented to
the removal of body fluid and/or tissue
specimens necessary for toxicological
analysis from the remains of such
person, and this consent is implied by
the performance of duties for the
railroad (i.e., a consent form is not
required). This consent provision
applies to all employees performing
duties for a railroad, and not just
regulated employees.
(g) Each supervisor responsible for
regulated employees (except a working
supervisor who is a co-worker as
defined in § 219.5) must be trained in
the signs and symptoms of alcohol and
drug influence, intoxication, and misuse
consistent with a program of instruction
to be made available for inspection
upon demand by FRA. Such a program
shall, at a minimum, provide
information concerning the acute
behavioral and apparent physiological
effects of alcohol, the major drug groups
on the controlled substances list, and
other impairing drugs. The program
must also provide training on the
qualifying criteria for post-accident
toxicological testing contained in
subpart C of this part, and the role of the
supervisor in post-accident collections
described in subpart C and Appendix C
of this part.
(h) Nothing in this subpart restricts
any discretion available to the railroad
to request or require that an employee
cooperate in additional breath or body
fluid testing. However, no such testing
may be performed on urine or blood
specimens provided under this part. For
purposes of this paragraph, all urine
from a void constitutes a single
specimen.
*
*
*
*
*
■ 9. Add § 219.12 to read as follows:
§ 219.12 Hours-of-service laws
implications.
(a) Railroads are not excused from
performing alcohol or drug testing
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under subpart C (post-accident
toxicological testing) and subpart D
(reasonable suspicion testing) of this
part because the performance of such
testing would violate the hours-ofservice laws at 49 U.S.C. ch. 211. If a
railroad establishes that a violation of
the hours-of-service laws is caused
solely because it was required to
conduct post-accident toxicological
testing or reasonable suspicion testing,
FRA will not take enforcement action
for the violation if the railroad used
reasonable due diligence in completing
the collection and otherwise completed
it within the time limitations of
§ 219.203(d) (for post-accident
toxicological testing) or § 219.305 (for
reasonable suspicion testing), although
the railroad must still report any excess
service to FRA.
(b) Railroads may perform alcohol or
drug testing authorized under subpart E
(reasonable cause testing) of this part
even if the performance of such testing
would violate the hours-of-service laws
at 49 U.S.C. ch. 211. If a railroad
establishes that a violation of the hoursof-service laws is caused solely by its
decision to conduct authorized
reasonable cause testing, FRA will not
take enforcement action for the violation
if the railroad used reasonable due
diligence in completing the collection
and otherwise completed it within the
time limitations of § 219.407, although
the railroad must still report any excess
service to FRA.
(c) Railroads must schedule random
alcohol and drug tests under subpart G
of this part so that sufficient time is
provided to complete the test within a
covered employee’s hours-of-service
limitations under 49 U.S.C. ch. 211.
However, if a direct observation
collection is required during a random
test per the requirements of part 40 of
this title, then the random test must be
completed regardless of the hours-ofservice law limitations. A railroad may
not place a regulated employee on-duty
for the sole purpose of conducting a
random alcohol or drug test under
subpart G of this part.
(d) Railroads must schedule follow-up
tests under § 219.104 so that sufficient
time is provided to complete a test
within a covered employee’s hours-ofservice limitations under 49 U.S.C. ch.
211. If a railroad is having a difficult
time scheduling the required number of
follow-up tests because a covered
employee’s work schedule is
unpredictable, there is no prohibition
against the railroad placing an employee
(who is subject to being called to
perform regulated service) on duty for
the purpose of conducting the follow-up
tests; except that an employee may be
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placed on duty for a follow-up alcohol
test only if he or she is required to
completely abstain from alcohol by a
return-to-duty agreement, as provided
by § 40.303(b) of this title. A railroad
must maintain documentation
establishing the need to place the
employee on duty for purpose of
conducting the follow-up test and
provide this documentation for review
upon request of an FRA representative.
■ 10. Revise § 219.23 to read as follows:
§ 219.23
Railroad policies.
(a) Whenever a breath or body fluid
test is required of an employee under
this part, the railroad (either through a
railroad employee or a designated agent,
such as a contracted collector) must
provide clear and unequivocal written
notice to the employee that the test is
being required under FRA regulations
and is being conducted under Federal
authority. The railroad must also
provide the employee clear and
unequivocal written notice of the type
of test that is required (e.g., reasonable
suspicion, reasonable cause, random
selection, follow-up, etc.). These notice
requirements are satisfied if:
(1) For all FRA testing except
mandatory post-accident toxicological
testing under subpart C of this part, a
railroad uses the mandated DOT alcohol
or drug testing form, circles or checks
off the box corresponding to the type of
test, and shows this form to the
employee prior to the commencement of
testing; or
(2) For mandatory post-accident
toxicological testing under subpart C of
this part, a railroad uses the approved
FRA form and shows this form to the
employee prior to the commencement of
testing.
(b) Use of the mandated DOT alcohol
or drug testing forms for non-Federal
tests or mandatory post-accident
toxicological testing under subpart C is
prohibited (except for post-accident
breath alcohol testing permitted under
§ 219.203(c)). Use of the approved FRA
post-accident toxicological testing form
for any testing other than that mandated
under subpart C is prohibited.
(c) Each railroad must develop and
publish educational materials,
specifically designed for regulated
employees, that clearly explain the
requirements of this part, as well as the
railroad’s policies and procedures with
respect to meeting those requirements.
The railroad must ensure that a copy of
these materials is distributed to each
regulated employee hired for or
transferred to a position that requires
alcohol and drug testing under this part.
(This requirement does not apply to an
applicant for a regulated service
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position who either refuses to provide a
specimen for pre-employment testing or
who has a pre-employment test with a
result indicating a violation of the
alcohol or drug prohibitions of this
part.) A railroad may satisfy this
requirement by either—
(1) Continually posting the materials
in a location that is easily visible to all
regulated employees going on duty at
their designated reporting place and, if
applicable, providing a copy of the
materials to any employee labor
organization representing a class or craft
of regulated employees of the railroad;
(2) Providing a copy of the materials
in some other manner that will ensure
that regulated employees can find and
access these materials explaining the
critical aspects of the program (e.g., by
posting the materials on a company Web
site that is accessible to all regulated
employees); or
(3) For a minimum of three years after
the effective date of the final rule, a
railroad must also ensure that a hard
copy of these materials is provided to
each maintenance-of-way employee.
(d) Required content. The materials to
be made available to employees under
paragraph (c) of this section must, at a
minimum, include clear and detailed
discussion of the following:
(1) The position title, name, and
means of contacting the person(s)
designated by the railroad to answer
employee questions about the materials;
(2) The specific classes or crafts of
employees who are subject to the
provisions of this part, such as
engineers, conductors, MOW
employees, signal maintainers, or train
dispatchers;
(3) Sufficient information about the
regulated service functions performed
by those employees to make clear that
the period of the work day the regulated
employee is required to be in
compliance with the alcohol
prohibitions of this part is that period
when the employee is on duty and is
required to perform or is available to
perform regulated service;
(4) Specific information concerning
employee conduct that is prohibited
under subpart B of this part (e.g., the
minimum requirements of §§ 219.101,
219.102, and 219.103);
(5) The requirement that a railroad
utilizing the reasonable cause testing
authority provided by subpart E of this
part must give prior notice to regulated
employees of the circumstances under
which they will be subject to reasonable
cause testing;
(6) The circumstances under which a
regulated employee will be tested under
this part;
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(7) The procedures that will be used
to test for the presence of alcohol and
controlled substances, protect the
employee and the integrity of the testing
processes, safeguard the validity of the
test results, and ensure that those results
are attributed to the correct employee;
(8) The requirement that a regulated
employee submit to alcohol and drug
tests administered in accordance with
this part;
(9) An explanation of what constitutes
a refusal to submit to an alcohol or drug
test and the attendant consequences;
(10) The consequences for a regulated
employee found to have violated
subpart B of this part, including the
requirement that the employee be
removed immediately from regulated
service, and the responsive action
requirements of § 219.104;
(11) The consequences for a regulated
employee who has a Federal alcohol test
indicating an alcohol concentration of
0.02 or greater but less than 0.04;
(12) Information concerning the
effects of alcohol and drug misuse on an
individual’s health, work, and personal
life; signs and symptoms of an alcohol
or drug problem (the employee’s or a coworker’s); and available methods of
evaluating and resolving problems
associated with the misuse of alcohol
and drugs, including utilization of the
procedures set forth in subpart K of this
part and the names, addresses, and
telephone numbers of substance abuse
professionals and counseling and
treatment programs.
(e) Optional provisions. The materials
supplied to employees may also include
information on additional railroad
policies with respect to the use or
possession of alcohol and drugs,
including any consequences for an
employee found to have a specific
alcohol concentration that are based on
the railroad’s company authority
independent of this part. Any such
additional policies or consequences
must be clearly and obviously described
as being based on the railroad’s
independent company authority.
■ 11. Add § 219.25 to subpart A to read
as follows:
§ 219.25 Previous employer drug and
alcohol checks.
(a) As required by § 219.701(a) and
(b), which mandates that drug or alcohol
testing conducted under this part be
conducted in compliance with part 40
of this title (except for post-accident
toxicological testing under subpart C of
this part), a railroad must comply with
§ 40.25 and check the alcohol and drug
testing record of any direct employee
(an employee who is not employed by
a contractor to the railroad) it intends to
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use for regulated service before the
employee performs such service for the
first time. A railroad is not required to
check the alcohol and drug testing
record of contractor employees
performing regulated service on its
behalf (the alcohol and drug testing
record of those contractor employees
must be checked by their direct
employers).
(b) When determining whether a
person may become or remain certified
as a locomotive engineer or a conductor,
a railroad must comply with the
requirements in § 240.119(c) (for
engineers) or § 242.115(e) (for
conductors) of this chapter regarding the
consideration of Federal alcohol and
drug violations that occurred within a
period of 60 consecutive months prior
to the review of the person’s records.
Subpart B—Prohibitions
12. Revise § 219.101(a) to read as
follows:
■
§ 219.101
Alcohol and drug use prohibited.
(a) Prohibitions. Except as provided in
§ 219.103—
(1) No regulated employee may use or
possess alcohol or any controlled
substance when the employee is on duty
and subject to performing regulated
service for a railroad.
(2) No regulated employee may report
for regulated service, or go or remain on
duty in regulated service, while—
(i) Under the influence of or impaired
by alcohol;
(ii) Having 0.04 or more alcohol
concentration in the breath or blood; or
(iii) Under the influence of or
impaired by any controlled substance.
(3) No regulated employee may use
alcohol for whichever is the lesser of the
following periods:
(i) Within four hours of reporting for
regulated service; or
(ii) After receiving notice to report for
regulated service.
(4)(i) No regulated employee tested
under the provisions of this part whose
Federal test result indicates an alcohol
concentration of 0.02 or greater but less
than 0.04 may perform or continue to
perform regulated service for a railroad,
nor may a railroad permit the regulated
employee to perform or continue to
perform regulated service, until the start
of the regulated employee’s next
regularly scheduled duty period, but not
less than eight hours following
administration of the test.
(ii) Nothing in this section prohibits a
railroad from taking further action
under its own independent company
authority when a regulated employee
tested under the provisions of this part
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has a Federal test result indicating an
alcohol concentration of 0.02 or greater,
but less than 0.04. However, while a
Federal test result of 0.02 or greater but
less than 0.04 is a positive test and may
be a violation of a railroad’s operating
rules, it is not a violation of § 219.101
and cannot be used to decertify an
engineer under part 240 of this chapter
or a conductor under part 242 of this
chapter.
(5) If an employee tested under the
provisions of this part has a test result
indicating an alcohol concentration
below 0.02, the test is negative and is
not evidence of alcohol misuse. A
railroad may 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. An
independent basis for subsequent
company authority testing will exist
only when, after having a negative
Federal reasonable suspicion alcohol
test result, the employee exhibits
additional or continuing signs and
symptoms of alcohol use. If a company
authority test then indicates a violation
of the railroad’s operating rules, this
result is independent of the Federal test
result and must stand on its own merits.
*
*
*
*
*
■ 13. Revise § 219.102 to read as
follows:
§ 219.102 Prohibition on abuse of
controlled substances.
No regulated employee may use a
controlled substance at any time,
whether on duty or off duty, except as
permitted by § 219.103.
■ 14. Revise § 219.104 to read as
follows:
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§ 219.104
Responsive action.
(a) Removal from regulated service.
(1) If a railroad determines that a
regulated employee has violated
§ 219.101 or § 219.102, or the alcohol or
controlled substances misuse rule of
another DOT agency, the railroad must
immediately remove the employee from
regulated service and the procedures
described in paragraphs (b) through (d)
of this section apply.
(2) If a regulated employee refuses to
provide a breath or body fluid specimen
or specimens when required to by the
railroad under a provision of this part,
a railroad must immediately remove the
regulated employee from regulated
service, and the procedures described in
paragraphs (b) through (d) of this
section apply. This provision also
applies to Federal reasonable cause
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testing under subpart E of this part (if
the railroad has elected to conduct this
testing under Federal authority).
(b) Notice. Prior to or upon removing
a regulated employee from regulated
service under this section, a railroad
must provide written notice to the
employee of the reason for this action.
A railroad may provide a regulated
employee with an initial verbal notice
so long as it provides a follow-up
written notice to the employee as soon
as possible. In addition to the reason for
the employee’s withdrawal from
regulated service, the written notice
must also inform the regulated
employee that he may not perform any
DOT safety-sensitive duties until he
completes the return-to-duty process of
part 40.
(c) Hearing procedures. (1) Except as
provided in paragraph (e)(5) of this
section, if a regulated employee denies
that a test result or other information is
valid evidence of a § 219.101 or
§ 219.102 violation, the regulated
employee may demand and must be
provided an opportunity for a prompt
post-suspension hearing before a
presiding officer other than the charging
official. This hearing may be
consolidated with any disciplinary
hearing arising from the same accident
or incident (or conduct directly related
thereto), but the presiding officer must
make separate findings as to compliance
with §§ 219.101 and 219.102.
(2) The hearing must be convened
within the period specified in the
applicable collective bargaining
agreement. In the absence of an
agreement provision, the regulated
employee may demand that the hearing
be convened within 10 calendar days of
the employee’s suspension or, in the
case of a regulated employee who is
unavailable due to injury, illness, or
other sufficient cause, within 10 days of
the date the regulated employee
becomes available for the hearing.
(3) A post-suspension proceeding
conforming to the requirements of an
applicable collective bargaining
agreement, together with the provisions
for adjustment of disputes under sec. 3
of the Railway Labor Act (49 U.S.C.
153), satisfies the procedural
requirements of this paragraph (c).
(4) With respect to a removal or other
adverse action taken as a consequence
of a positive test result or refusal in a
test authorized or required by this part,
nothing in this part may be deemed to
abridge any procedural rights or
remedies consistent with this part that
are available to a regulated employee
under a collective bargaining agreement,
the Railway Labor Act, or (with respect
to employment at will) at common law.
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(5) Nothing in this part restricts the
discretion of a railroad to treat a
regulated employee’s denial of
prohibited alcohol or drug use as a
waiver of any privilege the regulated
employee would otherwise enjoy to
have such prohibited alcohol or drug
use treated as a non-disciplinary matter
or to have discipline held in abeyance.
(d) Compliance. A railroad must
comply with the requirements for
Substance Abuse Professional
evaluations, the return-to-duty process,
and follow-up testing contained in part
40 of this title.
(e) Applicability. (1) This section does
not apply to actions based on breath or
body fluid tests for alcohol or drugs that
are conducted exclusively under
authority other than that provided in
this part (e.g., testing under a company
medical policy, for-cause testing policy
wholly independent of the subpart E
Federal authority of this part, or testing
under a labor agreement).
(2) This section does not apply to
Federal alcohol tests indicating an
alcohol concentration less than 0.04.
(3) This section does not apply to
locomotive engineers or conductors who
have an off-duty conviction for, or a
completed state action to cancel, revoke,
suspend, or deny a motor vehicle
driver’s license for operating while
under the influence of or impaired by
alcohol or a controlled substance.
(However, this information remains
relevant for the purpose of locomotive
engineer or conductor certification,
according to the requirements of part
240 or 242 of this chapter.)
(4) This section does not apply to an
applicant who declines to be subject to
pre-employment testing and withdraws
an application for employment prior to
the commencement of the test. The
determination of when a drug or alcohol
test commences is made according to
the provisions found in subparts E and
L of part 40 of this title.
(5) Paragraph (c) of this section does
not apply to an applicant who tests
positive or refuses a DOT preemployment test.
(6) As provided by § 40.25(j) of this
title, paragraph (d) of this section
applies to any DOT-regulated employer
seeking to hire for DOT safety-sensitive
functions an applicant who tested
positive or refused a DOT preemployment test.
■ 15. Revise § 219.105 to read as
follows:
§ 219.105 Railroad’s duty to prevent
violations.
(a) A railroad may not, with actual
knowledge, permit a regulated employee
to go or remain on duty in regulated
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service in violation of the prohibitions
of § 219.101 or § 219.102. As used in
this section, the actual knowledge
imputed to the railroad is limited to that
of a railroad management employee
(such as a supervisor deemed an
‘‘officer,’’ whether or not such person is
a corporate officer) or a supervisory
employee in the offending regulated
employee’s chain of command. A
railroad management or supervisory
employee has actual knowledge of a
violation when he or she:
(1) Personally observes a regulated
employee use or possess alcohol or use
drugs in violation of this subpart. It is
not sufficient for actual knowledge if the
supervisory or management employee
merely observes the signs and
symptoms of alcohol or drug use that
would require a reasonable suspicion
test under § 219.301;
(2) Receives information regarding a
violation of this subpart from a previous
employer of a regulated employee, in
response to a background information
request required by § 40.25 of this title;
or
(3) Receives a regulated employee’s
admission of prohibited alcohol
possession or prohibited alcohol or drug
use.
(b) A railroad must exercise due
diligence to assure compliance with
§§ 219.101 and 219.102 by each
regulated employee.
(c) A railroad’s alcohol and/or drug
use education, prevention,
identification, intervention, and
rehabilitation programs and policies
must be designed and implemented in
such a way that they do not circumvent
or otherwise undermine the
requirements, standards, and policies of
this part. Upon FRA’s request, a railroad
must make available for FRA review all
documents, data, or other records
related to such programs and policies.
■ 16. Revise § 219.107 to read as
follows:
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§ 219.107
refusal.
Consequences of unlawful
(a) A regulated employee who refuses
to provide a breath or a body fluid
specimen or specimens when required
to by the railroad under a provision of
this part must be withdrawn from
regulated service for a period of nine (9)
months. Per the requirements of part 40
of this title, a regulated employee who
provides an adulterated or substituted
specimen is deemed to have refused to
provide the required specimen and must
be withdrawn from regulated service in
accordance with this section.
(b) Notice. Prior to or upon
withdrawing a regulated employee from
regulated service under this section, a
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railroad must provide written notice to
the employee of the reason for this
action, and the procedures described in
§ 219.104(c) apply. A railroad may
provide a regulated employee with an
initial verbal notice so long as it
provides a follow-up written notice as
soon as possible.
(c) The withdrawal required by this
section applies only to an employee’s
performance of regulated service for any
railroad with notice of such withdrawal.
During the period of withdrawal, a
railroad with notice of such withdrawal
must not authorize or permit the
employee to perform any regulated
service for the railroad.
(d) The requirement of withdrawal for
nine (9) months does not limit any
discretion on the part of the railroad to
impose additional sanctions for the
same or related conduct.
(e) Upon the expiration of the nine
month period described in this section,
a railroad may permit an employee to
return to regulated service only under
the conditions specified in § 219.104(d),
and the regulated employee must be
subject to return-to-duty and follow-up
tests, as provided by that section.
Subpart C—Post-Accident
Toxicological Testing
17. In § 219.201, revise paragraphs (a)
and (b) to read as follows:
■
§ 219.201
required.
Events for which testing is
(a) List of events. Except as provided
in paragraph (b) of this section, FRA
post-accident toxicological tests must be
conducted after any event that involves
one or more of the circumstances
described in paragraphs (a)(1) through
(5) of this section:
(1) Major train accident. Any train
accident (i.e., a rail equipment accident
involving damage in excess of the
current reporting threshold) that
involves one or more of the following:
(i) A fatality to any person;
(ii) A release of hazardous material
lading from railroad equipment
accompanied by—
(A) An evacuation; or
(B) A reportable injury resulting from
the hazardous material release (e.g.,
from fire, explosion, inhalation, or skin
contact with the material); or
(iii) Damage to railroad property of
$1,500,000 or more.
(2) Impact accident. Any impact
accident (i.e., a rail equipment accident
defined as an ‘‘impact accident’’ in
§ 219.5) that involves damage in excess
of the current reporting threshold,
resulting in—
(i) A reportable injury; or
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(ii) Damage to railroad property of
$150,000 or more.
(3) Fatal train incident. Any train
incident that involves a fatality to an onduty employee (as defined in § 219.5)
who dies within 12 hours of the
incident as a result of the operation of
on-track equipment, regardless of
whether that employee was performing
regulated service.
(4) Passenger train accident. Any train
accident (i.e., a rail equipment accident
involving damage in excess of the
current reporting threshold) involving a
passenger train and a reportable injury
to any person.
(5) Human-factor highway-rail grade
crossing accident/incident. A highwayrail grade crossing accident/incident
when it involves:
(i) A regulated employee who
interfered with the normal functioning
of a grade crossing signal system, in
testing or otherwise, without first taking
measures to provide for the safety of
highway traffic that depends on the
normal functioning of such system, as
prohibited by § 234.209 of this chapter;
(ii) A train crewmember who was, or
who should have been, flagging
highway traffic to a stop as the result of
an activation failure of the grade
crossing system, as provided by
§ 234.105(c)(3) of this chapter;
(iii) A regulated employee who was
performing, or should have been
performing, the duties of an
appropriately equipped flagger (as
defined in § 234.5 of this chapter) as a
result of an activation failure, partial
activation, or false activation of the
grade crossing signal system, as
provided by § 234.105(c)(2), § 234.106,
or § 234.107(c)(1)(i) of this chapter;
(iv) A fatality to any regulated
employee performing duties for the
railroad, regardless of fault; or
(v) A regulated employee who
violated an FRA regulation or railroad
operating rule and whose actions may
have played a role in the cause or
severity of the accident/incident.
(b) Exceptions. Except for a humanfactor highway-rail grade crossing
accident/incident described in
paragraph (a)(5) of this section, no test
may be required in the case of a
collision between railroad rolling stock
and a motor vehicle or other highway
conveyance at a highway/rail grade
crossing. No test may be required for 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 documented facts
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by the railroad representative
responding to the scene.
*
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■ 18. Revise § 219.203 to read as
follows:
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§ 219.203 Responsibilities of railroads and
employees.
(a) Employees tested. Regulated
employees subject to post-accident
toxicological testing under this subpart
must cooperate in the provision of
specimens as described in this part and
Appendix C to this part.
(1) General. Except as otherwise
provided for by this section, following
each qualifying event described in
§ 219.201, all regulated employees
directly involved in a qualifying event
under this subpart must provide blood
and urine specimens for toxicological
testing by FRA. This includes any
regulated employee who may not have
been present or on-duty at the time or
location of the event, but whose actions
may have played a role in its cause or
severity, including, but not limited to,
an operator, dispatcher, or signal
maintainer.
(2) Fatalities. Testing of the remains
of an on-duty employee (as defined in
§ 219.5) who is fatally injured in a
qualifying event described in § 219.201
is required, regardless of fault, if the
employee dies within 12 hours of the
qualifying event as a result of such
qualifying event.
(3) Major train accidents. (i) For an
accident or incident meeting the criteria
of a Major Train Accident in
§ 219.201(a)(1), all assigned crew
members of all trains or other on-track
equipment involved in the qualifying
event must be subjected to post-accident
toxicological testing, regardless of fault.
(ii) Other surviving regulated
employees who are not assigned crew
members of an involved train or other
on-track equipment (e.g., a dispatcher or
a signal maintainer) must be tested if a
railroad representative can immediately
determine, on the basis of specific
information, that the employee may
have had a role in the cause or severity
of the accident/incident. In making this
determination, the railroad
representative must consider any such
information that is immediately
available at the time the qualifying
event determination is made under
§ 219.201.
(4) Fatal train incidents. For a Fatal
Train Incident under § 219.201(a)(3), the
remains of any on-duty employee (as
defined in § 219.5) performing duties for
a railroad who is fatally injured in the
event are always subject to postaccident toxicological testing, regardless
of fault.
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(5) Human-factor highway-rail grade
crossing accident/incidents. (i) For a
Human-Factor Highway-Rail Grade
Crossing Accident/Incident under
§ 219.201(a)(5)(i), only a regulated
employee who interfered with the
normal functioning of a grade crossing
signal system and whose actions may
have contributed to the cause or severity
of the event is subject to testing.
(ii) For a Human-Factor Highway-Rail
Grade Crossing Accident/Incident under
§ 219.201(a)(5)(ii), only a regulated
employee who was a train crew member
responsible for flagging highway traffic
to a stop as the result of an activation
failure of a grade crossing system (or
who was on-site and directly
responsible for ensuring that flagging
was being performed), but who failed to
do so, and whose actions may have
contributed to the cause or severity of
the event, is subject to testing.
(iii) For a Human-Factor HighwayRail Grade Crossing Accident/Incident
under § 219.201(a)(5)(iii), only a
regulated employee who was
responsible for performing the duties of
an appropriately equipped flagger (as
defined in § 234.5 of this chapter), but
who failed to do so, and whose actions
may have contributed to the cause or
severity of the event is subject to testing.
(iv) For a Human-Factor Highway-Rail
Grade Crossing Accident/Incident under
§ 219.201(a)(5)(iv), only the remains of
any fatally-injured employee(s) (as
defined in § 219.5) performing regulated
service for the railroad are subject to
testing.
(v) For a Human-Factor Highway-Rail
Grade Crossing Accident/Incident under
§ 219.201(a)(5)(v), only a regulated
employee who violated an FRA
regulation or railroad operating rule and
whose actions may have contributed to
the cause or severity of the event is
subject to testing.
(6) Exception. For a qualifying Impact
Accident, Passenger Train Accident,
Fatal Train Incident, or Human-Factor
Highway-Rail Grade Crossing Accident/
Incident under § 219.201(a)(2) through
(5), a surviving crewmember or other
regulated employee must be excluded
from testing if the railroad
representative can immediately
determine, on the basis of specific
information, that the employee had no
role in the cause or severity of the
accident/incident. In making this
determination, the railroad
representative must consider any
information that is immediately
available at the time the qualifying
event determination is made under
§ 219.201.
(i) This exception is not available for
assigned crew members of all involved
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trains if the qualifying event also meets
the criteria for a Major Train Accident
under § 219.201(a)(1) (e.g., this
exception is not available for an Impact
Accident that also qualifies as a Major
Train Accident because it results in
damage to railroad property of
$1,500,000 or more).
(ii) This exception is not available for
any on-duty employee who is fatallyinjured in a qualifying event.
(b) Railroad responsibility. (1) A
railroad must take all practicable steps
to ensure that all surviving regulated
employees of the railroad are subject to
FRA post-accident toxicological testing
under this subpart provide blood and
urine specimens for the toxicological
testing required by FRA. This includes
any regulated employee who may not
have been present or on-duty at the time
or location of the event, but whose
actions may have played a role in its
cause or severity, including, but not
limited to, an operator, dispatcher, or
signal maintainer.
(2) A railroad must take all practicable
steps to ensure that tissue and fluid
specimens taken from fatally injured
employees are subject to FRA postaccident toxicological testing under this
subpart.
(3) FRA post-accident toxicological
testing under this subpart takes priority
over toxicological testing conducted by
state or local law enforcement officials.
(c) Alcohol testing. Except as
provided for in paragraph (e)(4) of this
section, if the conditions for mandatory
post-accident toxicological testing exist,
a railroad may also require employees to
provide breath for testing in accordance
with the procedures set forth in part 40
of this title and in this part, if such
testing does not interfere with timely
collection of required urine and blood
specimens.
(d) Timely specimen collection. (1) A
railroad must make every reasonable
effort to assure that specimens are
provided as soon as possible after the
accident or incident, preferably within
four hours. Specimens not collected
within four hours after a qualifying
accident or incident must be collected
as soon thereafter as practicable. If a
specimen is not collected within four
hours of a qualifying event, the railroad
must immediately notify the FRA Drug
and Alcohol Program Manager at 202–
493–6313 and provide detailed
information regarding the failure (either
verbally or via a voicemail). The
railroad must also submit a concise,
written narrative report of the reasons
for such a delay to the FRA Drug and
Alcohol Program Manager, 1200 New
Jersey Ave. SE., Washington, DC 20590.
The report must be submitted within 30
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days after the expiration of the month
during which the accident or incident
occurred. This report may also be
submitted via email to an email address
provided by the FRA Drug and Alcohol
Program Manager.
(2) The requirements of paragraph (d)
of this paragraph must not be construed
to inhibit employees required to be postaccident toxicological tested from
performing, in the immediate aftermath
of an accident or incident, any duties
that may be necessary for the
preservation of life or property. Where
practical, however, a railroad must
utilize other employees to perform such
duties.
(3) If a passenger train is in proper
condition to continue to the next station
or its destination after an accident or
incident, the railroad must consider the
safety and convenience of passengers in
determining whether the crew should be
made immediately available for postaccident toxicological testing. A relief
crew must be called to relieve the train
crew as soon as possible.
(4) Regulated employees who may be
subject to post-accident toxicological
testing under this subpart must be
retained in duty status for the period
necessary to make the determinations
required by § 219.201 and this section
and (as appropriate) to complete
specimen collection.
(e) Recall of employees for testing. (1)
Except as otherwise provided for in
paragraph (e)(2) of this section, a
regulated employee may not be recalled
for testing under this subpart if that
employee has been released from duty
under the normal procedures of the
railroad. An employee who has been
transported to receive medical care is
not released from duty for purposes of
this section. Furthermore, nothing in
this section prohibits the subsequent
testing of an employee who has failed to
remain available for testing as required
(e.g., an employee who is absent
without leave). However, subsequent
testing does not excuse a refusal by the
employee to provide the specimens in a
timely manner.
(2) A railroad must immediately recall
and place on duty a regulated employee
for post-accident drug testing, if—
(i) The employee could not be
retained in duty status because the
employee went off duty under normal
railroad procedures prior to being
contacted by a railroad supervisor and
instructed to remain on duty pending
completion of the required
determinations (e.g., in the case of a
dispatcher or signal maintainer remote
from the scene of an accident who was
unaware of the occurrence at the time
he or she went off duty); and
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(ii) The railroad’s preliminary
investigation (contemporaneous with
the determination required by
§ 219.201) indicates a clear probability
that the employee played a role in the
cause or severity of the accident/
incident.
(3) If the criteria in paragraphs (e)(2)(i)
and (ii) of this section are met, a
regulated employee must be recalled for
post-accident drug testing regardless of
whether the qualifying event happened
or did not happen during the
employee’s tour of duty. However, an
employee may not be recalled for testing
if more than 24 hours have passed since
the qualifying event. An employee who
has been recalled must be placed on
duty for the purpose of accomplishing
the required post-accident drug testing.
(4) Urine and blood specimens must
be collected from an employee who is
recalled for testing in accordance with
this section. If the employee left railroad
property prior to being recalled,
however, the specimens must be tested
for drugs only. A railroad is prohibited
from requiring a recalled employee to
provide breath specimens for alcohol
testing, unless the regulated employee
has remained on railroad property since
the time of the qualifying event and the
railroad has a company policy
completely prohibiting the use of
alcohol on railroad property.
(5) A railroad must document its
attempts to contact an employee subject
to the recall provisions of this section.
If a railroad is unable, as a result of the
non-cooperation of an employee or for
any other reason, to obtain a
specimen(s) from an employee subject
to mandatory recall within the 24 hour
period after a qualifying event and to
submit specimen(s) to FRA as required
by this subpart, the railroad must
contact FRA and prepare a concise
narrative report according to the
requirements of paragraph (d)(1) of this
section. The report must also document
the railroad’s good faith attempts to
contact and recall the employee.
(f) Place of specimen collection. (1)
With the exception of Federal breath
testing for alcohol (when conducted as
authorized under this subpart),
employees must be transported to an
independent medical facility for
specimen collection. In all cases blood
may be drawn only by a qualified
medical professional or by a qualified
technician subject to the supervision of
a qualified medical professional (e.g., a
phlebotomist). A collector contracted by
a railroad or medical facility may collect
and/or assist in the collection of
specimens at the medical facility if the
medical facility does not object and the
collector is qualified to do so.
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(2) If an employee has been injured,
a railroad must request the treating
medical facility to obtain the specimens.
Urine may be collected from an injured
employee (conscious or unconscious)
who has already been catheterized for
medical purposes, but an employee may
not be catheterized solely for the
purpose of providing a specimen under
this subpart. Under § 219.11(a), an
employee is deemed to have consented
to FRA post-accident toxicological
testing by the act of being a regulated
employee subject to performing
regulated service for a railroad.
(g) Obtaining cooperation of facility.
(1) In seeking the cooperation of a
medical facility in obtaining a specimen
under this subpart, a railroad must, as
necessary, make specific reference to the
requirements of this subpart and the
instructions in FRA’s post-accident
toxicological shipping kit.
(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 and/or urine specimens
after having been informed of the
requirements of this subpart, the
railroad must immediately notify the
duty officer at the National Response
Center (NRC) at (800) 424–8802, stating
the employee’s name, the name and
location of the medical facility, the
name of the appropriate decisional
authority at the medical facility, and the
telephone number at which that person
can be reached. FRA will then take
appropriate measures to assist in
obtaining the required specimens.
(h) Discretion of physician. Nothing in
this subpart may be construed to limit
the discretion of a medical professional
to determine whether drawing a blood
specimen is consistent with the health
of an injured employee or an employee
afflicted by any other condition that
may preclude drawing the specified
quantity of blood.
■ 29. Revise § 219.205 to read as
follows:
§ 219.205 Specimen collection and
handling.
(a) General. Urine and blood
specimens must be obtained, marked,
preserved, handled, and made available
to FRA consistent with the requirements
of this subpart, the instructions
provided inside the FRA post-accident
toxicological shipping kit, and the
technical specifications set forth in
Appendix C to this part.
(b) Information requirements. In order
to process specimens, analyze the
significance of laboratory findings, and
notify the railroads and employees of
test results, it is necessary to obtain
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basic information concerning the
accident/incident and any treatment
administered after the accident/
incident. Accordingly, the railroad
representative must complete the
information required by Form FRA
6180.73 (revised) for shipping with the
specimens. Each employee subject to
testing must cooperate in completion of
the required information on Form FRA
F 6180.74 (revised) for inclusion in the
shipping kit and processing of the
specimens. The railroad representative
must request an appropriate
representative of the medical facility to
complete the remaining portion of the
information on each Form 6180.74. One
Form 6180.73 must be forwarded in the
shipping kit with each group of
specimens. One Form 6180.74 must be
forwarded in the shipping kit for each
employee who provides specimens.
Form 6180.73 and either Form 6180.74
or Form 6180.75 (for fatalities) are
included in the shipping kit. (See
paragraph (c) of this section.)
(c) Shipping kits. (1) FRA and the
laboratory designated in Appendix B to
this part make available for purchase a
limited number of standard shipping
kits for the purpose of routine handling
of post-accident toxicological specimens
under this subpart. Specimens must be
placed in the shipping kit and prepared
for shipment according to the
instructions provided in the kit and
Appendix C to this part.
(2) Standard shipping kits may be
ordered directly from the laboratory
designated in Appendix B to this part by
first requesting an order form from
FRA’s Drug and Alcohol Program
Manager at 202–493–6313. In addition
to the standard kit for surviving
employees, FRA also has a post-mortem
shipping kit that has been distributed to
Class I, II, and commuter railroads. The
post-mortem kit may not be ordered by
other railroads. If a smaller railroad has
a qualifying event involving a fatality to
an on-duty employee, the railroad
should advise the NRC at 1–800–424–
8802 of the need for a post-mortem kit,
and FRA will send one overnight to the
medical examiner’s office or assist the
railroad in obtaining one from a nearby
railroad.
(d) Shipment. Specimens must be
shipped as soon as possible by pre-paid
air express (or other means adequate to
ensure delivery within 24 hours from
time of shipment) to the laboratory
designated in Appendix B to this part.
However, if delivery cannot be ensured
within 24 hours due to a suspension in
air express delivery services, the
specimens must be held in a secure
refrigerator until delivery can be
accomplished. In no circumstances may
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specimens be held for more than 72
hours. Where express courier pickup is
available, the railroad must request the
medical facility to transfer the sealed
toxicology kit directly to the express
courier for transportation. If courier
pickup is not available at the medical
facility where the specimens are
collected or if for any other reason a
prompt transfer by the medical facility
cannot be assured, the railroad must
promptly transport the sealed shipping
kit holding the specimens to the most
expeditious point of shipment via air
express. The railroad must maintain and
document secure chain of custody of the
kit(s) from release by the medical
facility to delivery for transportation, as
described in Appendix C to this part.
(e) Specimen security. After a
specimen kit or transportation box has
been sealed, no entity other than the
laboratory designated in Appendix B to
this part may open it. If the railroad or
medical facility discovers an error with
either the specimens or the chain of
custody form after the kit or
transportation box has been sealed, the
railroad or medical facility must make a
contemporaneous written record of that
error and send it to the laboratory,
preferably with the transportation box.
§ 219.207
[Amended]
20. Section 219.207 is amended by—
a. In paragraph (a), removing the word
‘‘and/or’’ and adding, in its place, the
word ‘‘and’’; removing the words
‘‘timely collected’’ and adding, in their
place, ‘‘collected in a timely fashion’’;
removing the word ‘‘shipping’’ and
adding, in its place, ‘‘post-mortem
shipping’’; and removing the words ‘‘if
a person’’ and adding, in their place, ‘‘if
the custodian is someone’’;
■ b. In paragraph (b) introductory text,
removing ‘‘(800) 424–8801 or’’;
■ c. In paragraph (c), removing the word
‘‘and/or’’ and adding, in its place, the
word ‘‘and’’; and
■ d. In paragraph (d), removing the
word ‘‘specifies’’ and adding, in its
place, the words ‘‘and the instructions
included inside the shipping kits
specify’’.
■ 21. In § 219.209, revise paragraphs
(a)(2)(iv) and (v) and (b) and remove
paragraph (c).
The revisions read as follows:
■
■
§ 219.209
Reports of tests and refusals.
(a) * * *
(2) * * *
(iv) Brief summary of the
circumstances of the accident/incident,
including basis for testing (e.g., Impact
Accident with a reportable injury); and
(v) Number of employees tested.
(b) If a railroad is unable, as a result
of non-cooperation of an employee or
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for any other reason, to obtain a
specimen and provide it to FRA as
required by this subpart, the railroad
must immediately notify the FRA Drug
and Alcohol Program Manager at 202–
493–6313 and provide detailed
information regarding the failure (either
verbally or via a voicemail). The
railroad must also provide a concise
narrative written report of the reason for
such failure and, if appropriate, any
action taken in response to the cause of
such failure. This report must be
appended to the report of the accident/
incident required to be submitted under
part 225 of this chapter and must also
be mailed to the FRA Drug and Alcohol
Program Manager at 1200 New Jersey
Avenue SE., Washington, DC 20590.
■ 22. Section 219.211 is amended by—
■ a. Adding a sentence at the end of
paragraph (b);
■ b. Revising the second sentence of
paragraph (c) and the second sentence
of paragraph (e); and
■ c. Revising paragraph (g)(3).
The revisions and addition read as
follows:
§ 219.211
Analysis and follow-up.
*
*
*
*
*
(b) * * * An employer is prohibited
from temporarily removing an employee
from the performance of regulated
service based only on a report from the
laboratory to the MRO of a confirmed
positive test for a drug or drug
metabolite, an adulterated test, or a
substituted test, before the MRO has
completed verification of the test result.
(c) * * * The Medical Review Officer
must promptly report the results of each
review to the Associate Administrator
for Railroad Safety, FRA, 1200 New
Jersey Avenue SE., Washington, DC
20590. * * *
(e) * * * An employee wishing to
respond may do so by email or letter
addressed to the Drug and Alcohol
Program Manager, Office of Railroad
Safety, FRA, 1200 New Jersey Avenue
SE., Washington, DC 20590 within 45
days of receipt of the test results. * * *
*
*
*
*
*
(g) * * *
(3) This provision does not authorize
holding any employee out of service
pending receipt of PAT testing results.
It also does not restrict a railroad from
taking such action based on the
employee’s underlying conduct, so long
as it is consistent with the railroad’s
disciplinary policy and any such action
is done under the railroad’s own
company authority.
*
*
*
*
*
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[Amended]
23. In § 219.213, paragraphs (a) and
(b), revise all references to ‘‘covered
service’’ to read ‘‘regulated service,’’ and
in paragraph (b), adding the word
‘‘written’’ in front of the word ‘‘notice’’.
■ 24. Revise subpart D to read as
follows:
■
Subpart D—Reasonable Suspicion Testing
Sec.
219.301 Mandatory reasonable suspicion
testing.
219.303 Reasonable suspicion observations.
219.305 Prompt specimen collection; time
limitation.
Subpart D—Reasonable Suspicion
Testing
emcdonald on DSK67QTVN1PROD with PROPOSALS2
§ 219.301
testing.
Mandatory reasonable suspicion
(a) A railroad must require a regulated
employee to submit to a breath alcohol
test when the railroad has reasonable
suspicion to believe that the regulated
employee has violated any prohibition
of subpart B of this part concerning use
of alcohol. The railroad’s determination
that reasonable suspicion exists to
require the regulated employee to
undergo an alcohol test must be based
on specific, contemporaneous,
articulable observations concerning the
appearance, behavior, speech, or body
odors of the employee. A Federal
reasonable suspicion alcohol test is not
required to confirm the on-duty
possession of alcohol.
(b) A railroad must require a regulated
employee to submit to a drug test when
the railroad has reasonable suspicion to
believe that the regulated employee has
violated the prohibitions of subpart B of
this part concerning use of controlled
substances. The railroad’s determination
that reasonable suspicion exists to
require the regulated employee to
undergo a drug test must be based on
specific, contemporaneous, articulable
observations concerning the appearance,
behavior, speech, or body odors of the
employee. Such observations may
include indications of the chronic and
withdrawal effects of drugs.
(c) Reasonable suspicion observations
made under this section must comply
with the requirements of § 219.303.
(d) As provided by § 219.11(b)(2), in
any case where an employee is suffering
a substantiated medical emergency and
is subject to alcohol or drug testing
under this subpart, necessary medical
treatment must be accorded priority
over provision of the breath or body
fluid specimens. However, when the
employee’s condition is stabilized,
reasonable suspicion testing must be
completed if within the eight-hour limit
provided for in § 219.305.
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§ 219.303 Reasonable suspicion
observations.
(a) With respect to an alcohol test, the
required observations must be made by
a responsible railroad supervisor
(defined by § 219.5) trained in
accordance with § 219.11(g). The
supervisor who makes the
determination that reasonable suspicion
exists may not conduct the reasonable
suspicion testing on that regulated
employee.
(b) With respect to a drug test, the
required observations must be made by
two responsible railroad supervisors
(defined by § 219.5), at least one of
whom must be is both on site and
trained in accordance with § 219.11(g).
If one of the supervisors is off-site, the
on-site supervisor must communicate
with the off-site supervisor, as
necessary, to provide him or her the
information needed to make the
required observation. This
communication may be performed via
telephone, but not via radio or any other
form of electronic communication.
(c) This subpart does not authorize
holding any employee out of service
pending receipt of toxicological analysis
for reasonable suspicion testing, nor
does it restrict a railroad from taking
such action based on the employee’s
underlying conduct, so long as it is
consistent with the railroad’s policy and
any such action is done under the
railroad’s own company authority.
(d) The railroad must maintain
written documentation that specifically
describes the observed signs and
symptoms upon which determination
that reasonable suspicion exists is
based. This documentation must be
completed promptly by the trained
supervisor.
§ 219.305 Prompt specimen collection;
time limitations.
(a) Consistent with the need to protect
life and property, testing under this
subpart must be conducted promptly
following the observations upon which
the testing decision is based.
(b) If a test required by this subpart is
not administered within two hours
following a determination made under
this section, the railroad must prepare
and maintain on file a record stating the
reasons the test was not administered
within that time period. If an alcohol or
drug test required by this subpart is not
administered within eight hours of the
determination made under this subpart,
the railroad must cease attempts to
administer the test and must record the
reasons for not administering the test.
The eight-hour requirement is satisfied
if the individual has been delivered to
the collection site (where the collector
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is present) and the request has been
made to commence collection of the
specimens within that period. The
records required by this section must be
submitted to FRA upon request of the
FRA Drug and Alcohol Program
Manager.
(c) A regulated employee may not be
tested under this subpart if that
individual has been released from duty
under the normal procedures of a
railroad. An individual who has been
transported to receive medical care is
not released from duty for purposes of
this section. Nothing in this section
prohibits the subsequent testing of an
employee who has failed to remain
available for testing as required (i.e.,
who is absent without leave).
■ 25. Revise subpart E to read as
follows:
Subpart E—Reasonable Cause Testing
Sec.
219.401 Authorization for reasonable cause
testing.
219.403 Requirements for reasonable cause
testing.
219.405 Documentation requirements.
219.407 Prompt specimen collection; time
limitations.
219.409 Limitations on authority.
Subpart E—Reasonable Cause Testing
§ 219.401 Authorization for reasonable
cause testing.
(a) A railroad may, at its own
discretion, elect to conduct Federal
reasonable cause testing authorized by
this subpart. If a railroad chooses to do
so, the railroad must use only Federal
authority for all reasonable cause testing
that meets the criteria of § 219.403. In
addition, the railroad must notify its
regulated employees of its decision to
use Federal reasonable cause testing
authority in the employee educational
policy required by § 219.23(e)(5). The
railroad must also provide written
notification of its decision to FRA’s
Drug and Alcohol Program Manager,
1200 New Jersey Ave. SE., Washington,
DC, 20590.
(b) If a railroad elects to conduct
reasonable cause testing under the
authority of this subpart, the railroad
may, under the conditions specified in
this subpart, require any regulated
employee, as a condition of employment
in regulated service, to cooperate with
breath or body fluid testing, or both, to
determine compliance with §§ 219.101
and 219.102 or a railroad rule
implementing the requirements of
§§ 219.101 and 219.102. This authority
is limited to testing after observations or
events that occur during duty hours
(including any period of overtime or
emergency service). The provisions of
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this subpart apply only when, and to the
extent that, the test in question is
conducted in reliance upon the
authority conferred by this section. A
railroad may not require an employee to
be tested under the authority of this
subpart unless reasonable cause, as
defined in this section, exists with
respect to that employee.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
§ 219.403 Requirements for reasonable
cause testing.
A railroad’s decision process
regarding whether reasonable cause
testing is authorized must be completed
before the reasonable cause testing is
performed and documented according
to the requirements of § 219.405. The
following circumstances constitute
reasonable cause for the administration
of alcohol and/or drug tests under the
authority of this subpart.
(a) Train accident or train incident.
The regulated employee has been
involved in a train accident or train
incident (as defined in § 219.5)
reportable under part 225 of this
chapter, and a responsible railroad
supervisor (as defined in § 219.5) has a
reasonable belief, based on specific,
articulable facts, that the individual
employee’s acts or omissions
contributed to the occurrence or severity
of the accident; or
(b) Rule violation. The regulated
employee has been directly involved in
one or more of the following railroad or
FRA rule violations or other errors:
(1) Noncompliance with a train order,
track warrant, track bulletin, track
permit, stop and flag order, timetable,
signal indication, special instruction or
other directive with respect to
movement of railroad on-track
equipment that involves—
(i) Occupancy of a block or other
segment of track to which entry was not
authorized;
(ii) Failure to clear a track to permit
opposing or following movements to
pass;
(iii) Moving across a railroad crossing
at grade without authorization; or
(iv) Passing an absolute restrictive
signal or passing a restrictive signal
without stopping (if required);
(2) Failure to protect on-track
equipment, including leaving on-track
equipment fouling an adjacent track;
(3) Operation of a train or other
speedometer-equipped on-track
equipment at a speed that exceeds the
maximum authorized speed by at least
10 miles per hour or by 50% of such
maximum authorized speed, whichever
is less;
(4) Alignment of a switch in violation
of a railroad rule, failure to align a
switch as required for movement,
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operation of a switch under on-track
equipment, or unauthorized running
through a switch;
(5) Failure to restore and secure a
main track switch as required;
(6) Failure to apply brakes or stop
short of a derail as required;
(7) Failure to secure a hand brake or
failure to secure sufficient hand brakes,
as required;
(8) Entering a crossover before both
switches are lined for movement or
restoring either switch to normal
position before the crossover movement
is completed;
(9) Failure to provide point protection
by visually determining that the track is
clear and giving the signals or
instructions necessary to control the
movement of on-track equipment when
engaged in a shoving or pushing
movement;
(10) In the case of a person performing
a dispatching function or block operator
function, issuance of a mandatory
directive or establishment of a route that
fails to provide proper protection for ontrack equipment;
(11) Interference with the normal
functioning of any grade crossing signal
system or any signal or train control
device without first taking measures to
provide for the safety of highway traffic
or train operations which depend on the
normal functioning of such a device.
Such interference includes, but is not
limited to, failure to provide alternative
methods of maintaining safety for
highway traffic or train operations while
testing or performing work on the
devices or on track and other railroad
systems or structures which may affect
the integrity of the system;
(12) Failure to perform stop-and-flag
duties necessary as a result of a
malfunction of a grade crossing signal
system;
(13) Failure of a machine operator that
results in a collision between a roadway
maintenance machine and on-track
equipment or a regulated employee;
(14) Failure of a roadway worker-incharge to notify all affected employees
when releasing working limits;
(15) Failure of a flagman or
watchman/lookout to notify employees
of an approaching train or other on-track
equipment;
(16) Failure to ascertain that provision
was made for on-track safety before
fouling a track;
(17) Improper use of individual train
detection (ITD) in a manual interlocking
or control point; or
(18) Failure to apply three point
protection (fully apply the locomotive
and train brakes, center the reverser,
and place the generator field switch in
the off position) that results in a
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43905
reportable injury to a regulated
employee.
§ 219.405
Documentation requirements.
(a) A railroad must maintain written
documentation that specifically
describes the basis for each reasonable
cause test it performs under Federal
authority. This documentation must be
completed promptly by the responsible
railroad supervisor; although it does not
need to be completed before reasonable
cause testing is conducted.
(b) For a rule violation, the
documentation must include the type of
rule violation and the involvement of
each tested regulated employee. For a
train accident or train incident
reportable under part 225 of this
chapter, it must describe either the
amount of railroad property damage or
the reportable casualty and the basis for
the supervisor’s belief that the
employee’s acts or omissions
contributed to the occurrence or severity
of the train accident or train incident.
§ 219.407 Prompt specimen collection;
time limitations.
(a) Consistent with the need to protect
life and property, testing under this
subpart must be conducted promptly
following the observations upon which
the testing decision is based.
(b) If a test conducted pursuant to the
authority of this subpart is not
administered within two hours
following the observations upon which
the testing decision is based, the
railroad must prepare and maintain on
file a record stating the reasons the test
was not conducted within that time
period. If an alcohol or drug test
authorized by this subpart is not
administered within eight hours of the
event under this subpart, the railroad
must cease attempts to administer the
test and must record the reasons for not
administering the test. The eight-hour
time period begins at the time a
responsible railroad supervisor receives
notice of the train accident, train
incident, or rule violation. The eighthour requirement is satisfied if the
individual has been delivered to the
collection site (where the collector is
present) and the request has been made
to commence collection of specimen(s)
within that period. The records required
by this section must be submitted to
FRA upon request of the FRA Drug and
Alcohol Program Manager.
(c) A regulated employee may not be
tested under this subpart if that
individual has been released from duty
under the normal procedures of the
railroad. An individual who has been
transported to receive medical care is
not released from duty for purposes of
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this section. Nothing in this section
prohibits the subsequent testing of a
regulated employee who has failed to
remain available for testing as required
(i.e., who is absent without leave).
§ 219.409
Limitations on authority.
(a) The alcohol and/or drug testing
authority conferred by this subpart does
not apply with respect to any event that
meets the criteria for post-accident
toxicological testing required under
subpart C of this part.
(b) This subpart does not authorize
holding an employee out of service
pending receipt of toxicological analysis
for reasonable cause testing because
meeting the testing criteria is only a
basis to inquire whether alcohol or
drugs may have played a role in the
accident or rule violation.
Notwithstanding this paragraph (b), this
subpart does not restrict a railroad from
holding an employee out of service
based on the employee’s underlying
conduct, so long as it is consistent with
the railroad’s policy and any such
action is done under the railroad’s own
company authority, not Federal
authority.
(c) When determining whether
reasonable cause testing is justified, a
railroad must consider the involvement
of each crewmember in the qualifying
event, not the involvement of the crew
as a whole.
Subpart F—Pre-Employment Tests
26. Revise § 219.501 to read as
follows:
■
emcdonald on DSK67QTVN1PROD with PROPOSALS2
§ 219.501
Pre-employment drug testing.
(a) Prior to the first time an individual
performs regulated service for a railroad,
the railroad must ensure that the
employee undergoes testing for drugs in
accordance with the regulations of a
DOT agency. No railroad may allow a
direct employee (a railroad employee
who is not employed by a contractor to
the railroad) to perform regulated
service, unless that railroad has
conducted a DOT pre-employment test
for drugs on that individual with a
result that did not indicate the misuse
of any controlled substance. This
requirement applies both to a final
applicant for direct employment and to
a direct employee seeking to transfer for
the first time from non-regulated service
to duties involving regulated service. A
regulated employee must have a
negative DOT pre-employment drug test
for each railroad for which he or she
performs regulated service as the result
of a direct employment relationship.
(b) A railroad must ensure that each
employee of a contractor who performs
regulated service on the railroad’s behalf
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has a negative DOT pre-employment
drug test on file with his or her
employer. The railroad must also
maintain documentation indicating that
it had verified that the contractor
employee had a negative DOT preemployment drug test on file with his or
her direct employer. A contractor
employee who performs regulated
service for more than one railroad does
not need to have a DOT preemployment drug test for each railroad
for which he or she provides service.
(c) If a railroad has already conducted
a DOT pre-employment test resulting in
a negative for a regulated service
applicant under the rules and
regulations of another DOT agency
(such as the Federal Motor Carrier
Safety Administration), FRA will accept
the result of that negative DOT preemployment test for purposes of the
requirements of this subpart.
(d) As used in subpart H of this part
with respect to a test required under this
subpart, the term regulated employee
includes an applicant for preemployment testing only. If an applicant
declines to be tested and withdraws an
application for employment before the
pre-employment testing process
commences, no record may be
maintained of the declination. The
determination of when a drug test
commences must be made according to
the provisions found in subpart E of part
40 of this title.
(e) The pre-employment drug testing
requirements of this section do not
apply to covered employees of railroads
qualifying for the small railroad
exception (see § 219.3(c)) or
maintenance-of-way employees who
were performing duties for a railroad
prior to [EFFECTIVE DATE OF FINAL
RULE]. However, a grandfathered
employee must have a negative preemployment drug test before performing
regulated service for a new employing
railroad after [EFFECTIVE DATE OF
FINAL RULE].
■ 27. In § 219.502, revise paragraphs (a)
introductory text, (a)(1), (a)(2), (a)(5),
and (b) to read as follows:
§ 219.502
Pre-employment alcohol testing.
(a) A railroad may, but is not required
to, conduct pre-employment alcohol
testing under this part. If a railroad
chooses to conduct pre-employment
alcohol testing, the railroad must
comply with the following
requirements:
(1) The railroad must conduct a preemployment alcohol test before the first
performance of regulated service by
every regulated employee, regardless of
whether he or she is a new employee or
a first-time transfer to a position
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involving the performance of regulated
service.
(2) The railroad must treat all
regulated employees performing
regulated service the same for the
purpose of pre-employment alcohol
testing (i.e., a railroad must not test
some regulated employees and not
others.)
*
*
*
*
*
(5) If a regulated employee’s Federal
pre-employment test indicates an
alcohol concentration of 0.04 or greater,
a railroad may not allow him or her to
begin performing regulated service until
he or she has completed the Federal
return-to-duty process under
§ 219.104(d).
(b) As used in subpart H of this part
with respect to a test authorized under
this subpart, the term regulated
employee includes an applicant for preemployment testing only. If an applicant
declines to be tested and withdraws his
or her application for employment
before the testing process commences,
no record may be maintained of the
declination. The determination of when
an alcohol test commences must be
made according to the provisions of
§ 40.243(a) of this title.
■ 28. Revise § 219.503 to read as
follows:
§ 219.503
Notification; records.
The railroad must provide for medical
review of drug test results according to
the requirements of part 40 of this title,
as provided in subpart H of this part.
The railroad must also notify the
applicant in writing of the results of any
Federal drug and/or alcohol test that is
a positive, adulteration, substitution, or
refusal in the same manner as provided
for employees in part 40 of this title and
subpart H of this part. Records must be
maintained confidentially and be
retained in the same manner as required
under subpart J of this part for employee
test records, except that such records
need not reflect the identity of an
applicant who withdrew an application
to perform regulated service prior to the
commencement of the testing process.
■ 29. Revise § 219.505 to read as
follows:
§ 219.505
Non-negative tests and refusals.
An applicant who has tested positive
or refused to submit to pre-employment
testing under this section may not
perform regulated service for any
railroad until he or she has completed
the Federal return-to-duty process under
§ 219.104(d). Such applicants may also
not perform DOT safety-sensitive
functions for any other employer
regulated by a DOT agency until they
have completed the Federal return-to-
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duty process under § 219.104(d). This
section does not create any right on the
part of the applicant to have a
subsequent application considered; nor
does it restrict the discretion of the
railroad to entertain a subsequent
application for employment from the
same person.
■ 30. Revise subpart G to read as
follows:
Subpart G—Random Alcohol and Drug
Testing Programs
Sec.
219.601 Purpose and scope of random
testing programs.
219.603 General requirements for random
testing programs.
219.605 Submission and approval of
random testing plans.
219.607 Requirements for random testing
plans.
219.609 Inclusion of contractor employees
and volunteers in random testing plans.
219.611 Random drug and alcohol testing
pools.
219.613 Random testing selections.
219.615 Random testing collections.
219.617 Participation in random drug and
alcohol testing.
219.619 Positive drug and alcohol test
results and refusals; procedures.
219.621 Use of service agents.
219.623 Records.
219.625 FRA Administrator’s
determination of random drug and
alcohol testing rates.
Subpart G—Random Alcohol and Drug
Testing Programs
emcdonald on DSK67QTVN1PROD with PROPOSALS2
§ 219.601 Purpose and scope of random
testing programs.
(a) Purpose. The purpose of random
alcohol and drug testing is to promote
safety by deterring the misuse of drugs
and the abuse of alcohol by regulated
employees.
(b) Regulated employees. A railroad
must ensure that its regulated
employees are subject to being selected
for random testing as required by this
subpart whenever they perform
regulated service on the railroad’s
behalf.
(c) Contractor employees and
volunteers. A regulated service
employee who is a volunteer or an
employee of a contractor to a railroad
may be incorporated into the random
testing program of more than one
railroad if:
(i) The contractor employee or
volunteer is not part of a random testing
program that meets the requirements of
this subpart and that is acceptable to the
railroad for whom he or she performs
regulated service (as described by
§ 219.609); or
(ii) The railroad for which the
contractor employee or volunteer
performs regulated service is unable to
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verify that the individual is part of a
random testing program acceptable to
the railroad that meets the requirements
of this subpart.
(d) Multiple DOT agencies. (1) If a
regulated employee performs functions
subject to the random testing
requirements of more than one DOT
agency, a railroad must ensure that the
employee is subject to selection for
random drug and alcohol testing at or
above the current minimum annual
testing rate set by the DOT agency that
regulates more than 50 percent of the
employee’s DOT-regulated functions.
(2) A railroad may not include a
regulated employee in more than one
DOT random testing pool for regulated
service performed on its behalf, even if
the regulated employee is subject to the
random testing requirements of more
than one DOT agency.
§ 219.603 General requirements for
random testing programs.
(a) General. To the extent possible, a
railroad must ensure that its FRA
random testing program is designed and
implemented so that every regulated
employee performing regulated service
on its behalf should reasonably
anticipate that he or she may be called
for a random test without advance
warning at any time while on-duty and
subject to performing regulated service.
(b) Prohibited selection bias. A
random testing program may not have a
selection bias or an appearance of
selection bias, or appear to provide an
opportunity for a regulated employee to
avoid complying with this section.
(c) Plans. As required by §§ 219.603–
219.609, each railroad must submit for
FRA approval a random testing plan
meeting the requirements of this
subpart. The plan must address all
regulated employees, as defined in
§ 219.5.
(d) Pools. A railroad must construct
and maintain random testing pools in
accordance with § 219.611.
(e) Selections. A railroad must
conduct random testing selections in
accordance with § 219.613.
(f) Collections. A railroad must
perform random testing collections in
accordance with § 219.615.
(g) Cooperation. A railroad and its
regulated employees must cooperate
with and participate in random testing
in accordance with § 219.617.
(h) Responsive action. A railroad must
handle positive random tests and
verified refusals to test in accordance
with § 219.619.
(i) Service agents. A railroad may use
a service agent to perform its random
testing responsibilities in accordance
with § 219.621.
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(j) Records. A railroad must maintain
records required by this subpart in
accordance with § 219.623.
§ 219.605 Submission and approval of
random testing plans.
(a) Plan submission. (1) Each railroad
must submit for review and approval a
random testing plan meeting the
requirements of § 219.607 and § 219.609
to the FRA Drug and Alcohol Program
Manager, 1200 New Jersey Ave. SE.,
Washington, DC 20590. A railroad
commencing start-up operations must
submit its plan no later than 30 days
prior to its date of commencing
operations. A railroad that must comply
with subpart G because it no longer
qualifies for the small railroad exception
under § 219.3 (due to a change in
operations or its number of covered
employees) must submit its plan no
later than 30 days after it becomes
subject to the requirements of this
subpart. A railroad may not implement
a Federal random testing plan or any
substantive amendment to that plan
prior to FRA approval.
(2) A railroad may submit separate
random testing plans for each category
of regulated employees (as defined in
§ 219.5), combine all categories into a
single plan, or amend its current FRAapproved plan to add additional
categories of regulated employees, as
defined by this part.
(b) Plan approval notification. FRA
will notify a railroad in writing whether
its plan is approved. If the plan is not
approved because it does not meet the
requirements of this subpart, FRA will
inform the railroad of its non-approval,
with specific explanation as to
necessary revisions. The railroad must
resubmit its plan with the required
revisions within 30 days of the date of
FRA’s written notice. Failure to
resubmit the plan with the necessary
revisions will be considered a failure to
submit a plan under this part.
(c) Plan implementation. A railroad
must implement its random testing plan
no later than 30 days from the date of
approval by FRA.
(d) Plan amendments. (1) A
substantive amendment to an approved
plan must be submitted to FRA at least
30 days prior to its intended effective
date. A railroad may not implement any
substantive amendment prior to FRA
approval.
(2) Non-substantive amendments to
an approved plan (such as replacing or
adding service providers) must be
provided to the FRA Drug and Alcohol
Program Manager in writing (by letter or
email) before their effective date, but do
not require pre-approval by FRA.
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(e) Existing approved plans. A
railroad random testing plan approved
before [EFFECTIVE DATE OF FINAL
RULE] does not have to be resubmitted
unless it has to be amended to comply
with the requirements of this subpart.
New plans, combined plans, or
amended plans incorporating new
categories of regulated employees (i.e.
maintenance-of-way employees) must
be submitted for FRA approval by a
railroad at least 30 days before
[EFFECTIVE DATE OF FINAL RULE].
emcdonald on DSK67QTVN1PROD with PROPOSALS2
§ 219.607 Requirements for random
testing plans.
(a) General. A random testing plan
submitted by a railroad under this
subpart must address and comply with
the requirements of this subpart. The
railroad must also comply with these
requirements in implementing the plan.
(b) Model random testing plan. A
railroad (or a contractor or service agent
requested to submit a part 219compliant random testing plan to a
railroad for submission as a part of the
railroad’s random testing plan) may
complete, modify if necessary, and
submit a plan based on the FRA model
random testing plan that can be
downloaded from FRA’s Drug and
Alcohol Program Web site.
(c) Specific plan requirements.
Random testing plans must contain the
following items of information, each of
which must be contained in a separate,
clearly identified section:
(1) Total number of covered
employees, including covered service
contractor employees and volunteers;
(2) Total number of maintenance-ofway employees, including maintenanceof-way contractor employees and
volunteers;
(3) Names of any contractors who
perform regulated service for the
railroad, with contact information;
(4) Method used to ensure that any
regulated service contractor employees
and volunteers are subject to the
requirements of this subpart, as required
by § 219.609;
(5) Name, address, and contact
information for the railroad’s Designated
Employer Representative (DER) and any
back-ups (if applicable);
(6) Name, address, and contact
information for any service providers,
including the railroad’s Medical Review
Officer (MRO), Substance Abuse and
Mental Health Services Administration
(SAMHSA) certified drug testing
laboratory(ies), Substance Abuse
Professional(s) (SAPs), and C/TPA or
collection site management companies.
Individual collection sites do not have
to be identified;
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(7) Number of random testing pools
and the proposed general pool entry
assignments for each pool. If using a C/
TPA, a railroad must identify whether
its regulated employees are combined
into one pool, contained in separate
pools, or combined in a larger pool with
other FRA and/or other DOT agency
regulated employees.
(8) Target random testing rates;
(9) Method used to make random
selections, including a detailed
description of the computer program or
random number table selection process
employed;
(10) Selection unit(s) for each random
pool (e.g., employee name or ID number,
job assignment, train symbol) and
whether the individual selection unit(s)
will be selected for drugs, alcohol, or
both;
(11) If a railroad makes alternate
selections, under what limited
circumstances these alternate selections
will be tested (see § 219.613);
(12) Frequency of random selections
(e.g., monthly);
(13) Designated testing window. The
designated testing window extends from
the beginning to the end of the
designated testing period established in
the railroad’s FRA-approved random
plan (see § 219.603), after which time
any individual selections for that
designated testing window that have not
been collected are no longer active
(valid); and
(14) Description of how the railroad
will notify a regulated employee that he
or she has been selected for random
testing.
§ 219.609 Inclusion of contractor
employees and volunteers in random
testing plans.
(a) A railroad’s random testing plan
must demonstrate that all of its
regulated service contractor employees
and volunteers are subject to random
testing that meets the requirements of
this subpart. A railroad can demonstrate
that its regulated service contractor
employees and volunteers are in
compliance with this subpart by either:
(1) Directly including regulated
service contractor employees and
volunteers in its own random testing
plan and ensuring that they are tested
according to that plan; or
(2) Indicating in its random testing
plan that its regulated service contractor
employees and volunteers are part of a
random testing program, compliant with
the requirements of this subpart,
conducted by a contractor or a service
agent, such as a C/TPA (‘‘non-railroad
random testing program’’). If a railroad
chooses this option, the railroad must
append to its own random testing plan
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one or more addenda describing the
method it will use to ensure that the
non-railroad random testing program is
testing its regulated service contractor
employees and volunteers according to
the requirements of this subpart. A
railroad could comply with this
requirement by appending either the
non-railroad random testing program or
a detailed description of the program
and how it complies with this subpart.
(b) A railroad’s random testing plan(s)
and any addenda must contain
sufficient detail to fully document that
the railroad is meeting the requirements
of this subpart for all personnel
performing regulated service on its
behalf.
(c) If a railroad chooses to use
regulated service contractor employees
and volunteers who are part of a nonrailroad random testing program, the
railroad remains responsible for
ensuring that the non-railroad program
is testing the regulated service
contractor employees and volunteers
according to the requirements of this
subpart.
(d) FRA does not pre-approve
contractor or service agent random
testing plans, but may accept them as
part of its approval process of a
railroad’s plan.
§ 219.611 Random alcohol and drug
testing pools.
(a) General. A railroad must ensure
that its random testing pools include all
regulated employees who perform
regulated service on its behalf, except
that a railroad’s random testing pools do
not have to include regulated employees
who are part of a non-railroad random
testing program that is compliant with
the requirements of this subpart and
that has been accepted by the railroad.
(b) Pool entries. A railroad must
clearly indicate who will be tested when
a specific pool entry is selected.
(1) Pool entries may be either
employee names or identification
numbers, train symbols, or specific job
assignments, although all the entries in
a single pool must be of generally
consistent sizes and types.
(2) Pool entries may not be
constructed in a manner that permits a
field manager or field supervisor to have
discretion over which employee would
be tested when an entry is selected.
(3) Pool entries must be constructed
and maintained so that all regulated
employees have an equal chance of
being selected for random testing for
each selection draw.
(c) Minimum number of pool entries.
A railroad (including a service agent
used by a railroad to carry out its
responsibilities under this subpart) may
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not maintain a random testing pool with
fewer than four pool entries. No
placeholder pool entries (entries that do
not represent legitimate selections of
regulated employees) are permitted. A
railroad or contractor with fewer than
four regulated employees can comply
with this requirement by having its
regulated employees incorporated into
either a railroad or a non-railroad
random testing pool containing more
than four entries.
(d) Pool construction.
(1) An individual who is not subject
to the random testing requirements of
FRA or another DOT agency may not be
mixed in the same pool as regulated
employees.
(2) A railroad may not include a
regulated employee in more than one
random testing pool established under
the regulations of a DOT agency.
(3) A regulated employee can be
placed in a random testing pool with
other employees subject to the random
testing requirements of FRA or another
DOT agency. However, all entries in a
pool must be subject to testing at the
highest minimum random testing rate
required by the regulations of a DOT
agency for any single member of that
pool.
(4) A regulated employee does not
need to be placed in separate pools for
random drug and random alcohol
testing selection.
(5) A regulated employee must be
incorporated into a random testing pool
as soon as possible after his or her hire
or first transfer into regulated service.
(e) Frequency of regulated service. (1)
A railroad may not place a person in a
random testing pool for any selection
period in which he or she is not
expected to perform regulated service.
(2) Railroad employees who perform
covered service on average less than
once a quarter are considered a de
minimis safety concern for random
testing purposes, and a railroad is not
required to include them in a random
testing program. A railroad may choose
to randomly test such de minimis
employees, but only if they are placed
in a separate random testing pool and
not in a random testing pool with
employees who perform regulated
service on a regular basis (e.g, engineers,
conductors, dispatchers, and signal
maintainers).
(3) A railroad must make a good faith
effort when determining the frequency
of an employee’s performance of
regulated service and must evaluate an
employee’s likelihood of performing
regulated service in each upcoming
selection period.
(f) Pool maintenance. Pool entries
must be updated at least monthly,
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regardless of how often selections are
made, and a railroad must ensure that
each random testing pool is complete
and does not contain outdated or
inappropriate entries.
(g) Multiple random testing pools. A
railroad may maintain more than one
random testing pool if it can
demonstrate that its random testing
program is not adversely impacted by
the number and types of pools or the
construction of pool entries, and that
selections from each pool will meet the
requirements of this subpart.
§ 219.613
Random testing selections.
(a) General. A railroad must ensure
that each regulated employee has an
equal chance of being selected for
random testing whenever selections are
performed. A railroad may not increase
or decrease an employee’s chance of
being selected by weighting an entry or
pool.
(b) Method of selection. (1) A railroad
must use a selection method that is
acceptable to FRA and that meets the
requirements of this subpart. Acceptable
selection methods are a computer
selection program, a method that makes
proper use of a random number table, or
an alternative method included in a
railroad’s random testing plan and
approved by FRA.
(2) A selection method must be free of
bias or apparent bias and employ
objective, neutral criteria to ensure that
every regulated employee has an equal
statistical chance of being selected
within a specified time frame. The
selection method may not utilize
subjective factors that permit a railroad
to manipulate or control selections in an
effort to either target or protect any
employee, job, or operational unit from
testing.
(3) The randomness of a selection
method must be verifiable, and, as
required by § 219.623, any records
necessary to document the randomness
of a selection must be retained for not
less than two years from the date the
designated testing window for that
selection expired.
(c) Minimum random testing rate. (1)
Sufficient selections must be made to
ensure that each random testing pool
meets the minimum annual random
testing rates established by the
Administrator according to § 219.625
and that random tests are reasonably
distributed throughout the calendar
year.
(2) A railroad must continually
monitor changes in its workforce to
ensure that the required number of
selections and tests are conducted each
year.
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43909
(3) To establish the total number of
regulated employees eligible for random
testing throughout the year and the
number of tests which need to be
conducted, a railroad must separately
identify the total number of regulated
employees (as defined by § 219.5)
eligible for random testing during each
random testing period for the year for
each employee category for which the
Administrator has established a separate
random rate requirement. The railroad
must then divide the subtotal by the
number of random testing periods and
apply the Administrator’s random rate
determination against this result. A
railroad does not need to perform this
calculation more than once per month
even if the railroad conducts random
testing selections more often than once
per month (e.g., selecting every two
weeks).
(d) Selection frequency. At least one
entry must be selected from each
random testing pool every three months
(i.e., once every quarter). FRA considers
a quarter to be a three month period.
(e) Discarded selection draws. Once a
selection draw has been made, it must
be used to identify which individuals
will be subject to random testing. A
selection draw cannot be discarded
without an acceptable explanation (e.g.,
the pool from which the selection draw
was made was incomplete or
inaccurate). Records for all discarded
selection draws, including the specific
reason the selection draw was not used,
must be documented and retained
according to the requirements of
§ 219.623.
(f) Increasing random selections. If a
railroad is not able to complete a
collection for all selections during the
designated testing period, as provided
by §§ 219.615(f) or 219.617(a)(3), the
railroad may increase the number of
selections for a subsequent selection
period to ensure that it is meeting the
annual minimum random testing rate
for the calendar year.
(g) Selection snapshots. A railroad
must capture and maintain an electronic
or hard copy snapshot of each random
testing pool at the time it makes a
testing selection. The pool entries must
not be re-created from records after the
time of the original selection. The
railroad must maintain this snapshot for
a period of two years, as required by
subpart J of this part.
(h) Multiple DOT agencies. In
accordance with § 219.601(a), if a
regulated employee performs functions
subject to the random testing
requirements of more than one DOT
agency, the railroad must ensure that
the employee is subject to selection for
random testing at or above the current
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minimum annual testing rate set by the
DOT agency that regulates more than 50
percent of the employee’s DOTregulated functions.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
§ 219.615
Random testing collections.
(a) Minimum random testing rates. A
railroad must complete a sufficient
number of random alcohol and drug
testing collections from each of its
random testing pools to meet the
minimum annual testing rates
established by the Administrator in
§ 219.625.
(b) Designated testing window. A
railroad must complete the collection
for a selected pool entry within the
designated testing window approved by
FRA for that selection. Once a
designated testing window is closed,
selections for that window which have
not been collected are no longer active
(valid) and may not be subject to
random testing.
(c) Collection timing. (1) A regulated
employee may be subject to random
testing only while on duty and subject
to performing regulated service.
(2) Random alcohol and drug testing
collections must be unannounced and
their dates spread reasonably
throughout the calendar year.
Collections must also be distributed
unpredictably throughout the
designated testing window and must
reasonably cover all operating days of
the week (including operating weekends
and holidays), shifts, and locations.
(3) Random alcohol test collections
must be performed unpredictably and in
sufficient numbers at either end of an
operating shift to attain an acceptable
level of deterrence throughout the entire
shift. At a minimum, a railroad must
perform 10% of its random alcohol tests
at the beginning of shifts and 10% of its
random alcohol tests at the end of a
shift.
(4) If a regulated employee has been
selected for both random drug and
alcohol testing, the railroad may
conduct these tests separately, so long
as both required collections can be
completed by the end of the employee’s
shift and the railroad does not inform
the employee that an additional
collection will occur later.
(d) Collection scheduling. While pool
entries must be selected randomly, the
scheduling of a random test collection
during the designated testing window is
within the discretion of the railroad
according to its approved plan.
(1) A railroad may schedule a
collection based on the availability of
the selected pool entry, the logistics of
performing the collection, and any other
requirements of this subpart.
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(2) When a selected pool entry
involves changing personnel (i.e., train
crews or job functions), a railroad may
not use its scheduling discretion to
deliberately target or protect a particular
employee or work crew. Unless
otherwise approved in a random testing
plan, railroad field supervisors or field
management personnel may not use
discretion to choose or to change
collection dates or times if that choice
could intentionally alter who is to be
tested.
(e) Notification requirements. (1) A
railroad may not notify a regulated
employee that he or she has been
selected for random testing until the
duty tour in which the collection is to
be conducted, and then only so far in
advance as is reasonably necessary to
ensure the employee’s presence at the
scheduled collection time and place.
(2) Collections must be conducted as
soon as possible and commence no later
than two hours after notification (unless
there is an acceptable reason for the
delay). An employee should be
monitored after notification of selection
for random testing and, whenever
possible, immediately escorted by
supervisory or management personnel
to the collection location.
(3) Each time a regulated employee is
notified that he or she has been selected
for random testing, the employee must
be informed that the selection was made
on a random basis. Completion of the
Federal Drug Testing Custody and
Control Form (CCF) or the DOT Alcohol
Testing Form (ATF) indicating the basis
of the test satisfies this requirement, so
long as the employee has been shown
and directed to sign the CCF or ATF as
required by §§ 40.73 and 40.241 of this
title.
(f) Incomplete collections. A railroad
must use due diligence to ensure that a
random testing collection is completed
for each selected pool entry, unless it
has an acceptable explanation for not
conducting the collection. All reasons
for incomplete collections must be fully
documented and are subject to
inspection by FRA upon request.
(g) Hours-of-service limitations. (1)
Except as provided by paragraph (g)(2)
of this section, if a random testing
collection is not completed within a
covered employee’s hours-of-service
limitations, a railroad must immediately
terminate the collection and may not
reschedule it.
(2) When something during a random
collection triggers a mandatory direct
observation collection under § 40.67 of
this title, a directly observed collection
must immediately proceed until
completed. A railroad must submit an
excess service report, as required by part
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228 of this chapter, if completion of the
directly observed collection causes the
covered employee to exceed his or her
hours-of-service limitations.
§ 219.617 Participation in random alcohol
and drug testing.
(a) Railroad responsibility. (1) A
railroad must, under the conditions
specified in this subpart and subpart H
of this part, require a regulated
employee selected for random testing to
cooperate in alcohol and/or drug testing.
(2) A railroad must ensure that an
employee who is performing regulated
service at the time of the notification of
selection for random testing shall, as
soon as possible without adversely
affecting safety, cease to perform
regulated service and proceed to the
testing site. A railroad must also ensure
that the absence of an employee from
his or her assigned duties to report for
testing does not adversely affect safety.
(3) Once an employee has been
notified that he or she has been selected
for random testing, only a substantiated
medical emergency involving the
employee or an immediate family
member (e.g. birth, death, or medical
emergency) may excuse the selected
employee from completing the
collection or test. A medical emergency
is defined in this part as an acute
medical condition requiring immediate
emergency care. To be eligible for
exclusion from random testing, the
selected employee must provide
verifiable documentation from a
credible outside professional (e.g.
doctor, dentist, hospital, law
enforcement officer, or school authority)
substantiating the emergency situation
within a reasonable period of time. A
selected employee who has been
excused from testing may not later be
tested by the railroad under the same
selection.
(b) Employee responsibility. (1) A
regulated employee subject to the
random testing requirements of this
subpart must cooperate with the
selection and testing process, and must
proceed to the testing site upon
notification that he or she has been
selected for random testing.
(2) A notified employee must fully
cooperate and comply with the urine
drug collection and/or breath alcohol
testing procedure required by subpart H
of this part, provide the required
specimen(s), and must, upon request,
complete the required paperwork and
certifications.
§ 219.619 Positive alcohol and drug test
results and refusals; procedures.
Section 219.104 contains the
procedures for administrative handling
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by the railroad or contractor in the event
a urine specimen provided under this
subpart is reported as a verified positive
by the Medical Review Officer, a breath
alcohol specimen is reported at 0.04 or
greater by the Breath Alcohol
Technician, or there has been a refusal
to test. The responsive action required
in § 219.104 is not stayed pending the
result of the testing of a split urine
specimen or a challenge to any part of
the testing process or procedure.
emcdonald on DSK67QTVN1PROD with PROPOSALS2
§ 219.621
Use of service agents.
(a) A railroad may use a service agent
(such as a consortium/third party
administrator (C/TPA)) to act as its
agent to carry out any role in random
testing specifically permitted under
subpart Q of part 40 of this title, such
as maintaining random pools,
conducting random selections, and
performing random urine drug
collections and breath alcohol tests.
(b) A railroad may not use a service
agent to notify regulated employees that
they have been selected for random
testing, unless that service agent is an
authorized representative of the railroad
approved by FRA in the railroad’s
random testing plan. A regulated
employee who has been selected for
random testing must otherwise be
notified of the selection by his or her
employer. Service agents may also not
perform roles that are specifically
reserved for an employer under § 40.355
of this title. For purposes of this
subpart, only a railroad or a contractor
performing railroad-accepted testing can
be considered employers under § 40.355
of this title.
(c) Primary responsibility for
compliance with random alcohol and
drug testing rests with the railroad, but
FRA reserves the right to bring an
enforcement action for noncompliance
against the railroad, its service agents,
its contractors, and/or its employees.
(d) If a railroad conducts random drug
and/or alcohol testing through a C/TPA,
the number of employees required to be
tested may be calculated for each
individual railroad belonging to the C/
TPA or may be based on the total
number of regulated employees covered
by the C/TPA in a larger combined
railroad or DOT agency random pool.
Selections from combined railroad
random pools must meet or exceed the
highest minimum annual percentage
rate established under this subpart or
any DOT agency drug testing rule that
applies to any member of that pool.
§ 219.623
Records.
(a) As provided by § 219.901,
railroads are required to maintain
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records related to random testing for a
minimum of two years.
(b) Contractors and service agents
performing random testing
responsibilities under this subpart must
provide records required by this subpart
whenever requested by the contracting
railroad or by FRA. A railroad remains
responsible for maintaining records
demonstrating that it is in compliance
with the requirements of this subpart.
§ 219.625 FRA Administrator’s
determination of random alcohol and drug
testing rates.
(a) Notice. Each year, the FRA
Administrator publishes a Federal
Register notice announcing the
minimum annual random alcohol and
drug testing rates which take effect on
January 1 of the following calendar year.
These rates are based on the railroad
industry’s random testing violation rates
for the preceding two consecutive
calendar years, which are determined
using annual railroad alcohol and drug
program data required to be submitted
to the FRA’s Management Information
System (MIS) under § 219.800.
(b) Information. Information used for
this determination is drawn from the
MIS reports required by § 219.800. In
order to ensure reliability of the data,
the Administrator may consider the
quality and completeness of the
reported data, obtain additional
information or reports from railroads, or
make appropriate modifications in
calculating the industry positive rate.
(c) Initial minimum annual random
testing rates. The Administrator has
established an initial minimum annual
random testing rate of 50 percent for
drugs and 25 percent for alcohol for any
new category of regulated employees
added to those already being tested
under this part.
(1) These initial testing rates are
subject to amendment by the
Administrator in accordance with
paragraphs (d) and (e) of this section
after at least 18 months of MIS data have
been compiled for the new category of
regulated employees.
(2) The Administrator will determine
separate minimum annual random
testing rates for each added category of
regulated employees for a minimum of
three calendar years after that category
is incorporated into random testing
under this part.
(3) The Administrator may move to
combine categories of regulated
employees requiring separate
determinations into a single
determination once the categories’
testing rates are identical for two
consecutive years.
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(d) Drug testing rate. The
Administrator may set the minimum
annual random drug testing rate for the
railroad industry at either 50 percent or
25 percent.
(1) When the minimum annual
percentage rate for random drug testing
is 50 percent, the Administrator may
lower the rate to 25 percent if the
Administrator determines that the MIS
data for two consecutive calendar years
show that the reported random testing
positive rate is less than 1.0 percent.
(2) When the minimum annual
percentage rate for random drug testing
is 25 percent, and the MIS data for any
calendar year show that the reported
random testing positive rate is equal to
or greater than 1.0 percent, the
Administrator will increase the
minimum annual percentage rate for
random drug testing to 50 percent.
(e) Alcohol testing rate. The
Administrator may set the minimum
annual random alcohol testing rate for
the railroad industry at 50 percent, 25
percent, or 10 percent.
(1) When the minimum annual
percentage rate for random alcohol
testing is 50 percent or 25 percent, the
Administrator may lower this rate to 10
percent if the Administrator determines
that the MIS data for two consecutive
calendar years show that the random
testing violation rate is less than 0.5
percent.
(2) When the minimum annual
percentage rate for random alcohol
testing is 50 percent, the Administrator
may lower the rate to 25 percent if the
Administrator determines that the MIS
data for two consecutive calendar years
show that the random testing violation
rate is less than 1.0 percent but equal to
or greater than 0.5 percent.
(3) When the minimum annual
percentage rate for random alcohol
testing is 10 percent, and the MIS data
for that calendar year show that the
random testing violation rate is equal to
or greater than 0.5 percent but less than
1.0 percent, the Administrator will
increase the minimum annual
percentage rate for random alcohol
testing to 25 percent.
(4) When the minimum annual
percentage rate for random alcohol
testing is 10 percent or 25 percent, and
the MIS data for any calendar year show
that the random testing violation rate is
equal to or greater than 1.0 percent, the
Administrator will increase the
minimum annual percentage rate for
random alcohol testing to 50 percent.
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Subpart H—Drug and Alcohol Testing
Procedures
§ 219.701
[Amended]
31. Amend § 219.701 by:
a. In paragraphs (a) and (b), removing
the phrase ‘‘B, D, F, and G’’ wherever it
appears and adding, in its place, ‘‘B, D,
E, F, G, and K (but only for co-worker
or non-peer referrals that involve a
violation of the prohibitions of this
subpart)’’; and
■ b. Removing paragraph (c).
■
■
Subpart I—Annual Report
32. In § 219.800, revise the last
sentence of paragraph (b) and the first
sentence of paragraph (d) and add
paragraph (f) to read as follows:
■
§ 219.800
Annual reports.
*
*
*
*
*
(b) * * * For information on where to
submit MIS forms and for the electronic
version of the form, see: https://
www.fra.dot.gov/eLib/details/L02639.
*
*
*
*
*
(d) As a railroad, if you have a
regulated employee who performs
multi-DOT agency functions (e.g., an
employee drives a commercial motor
vehicle and performs switchman duties
for you), count the employee only on
the MIS report for the DOT agency
under which he or she is random tested.
* * *
*
*
*
*
*
(f) A railroad required to submit an
MIS report under this section must
submit separate reports for covered
employees and MOW employees.
Subpart J—Recordkeeping
Requirements
33. Revise § 219.901 to read as
follows:
■
emcdonald on DSK67QTVN1PROD with PROPOSALS2
§ 219.901 Retention of alcohol and drug
testing records.
(a) General requirement. (1) In
addition to the records required to be
kept by part 40 of this title, each
railroad must maintain alcohol and drug
misuse prevention program records in a
secure location with controlled access
as set out in this section.
(2) FRA requires certain records to be
maintained for two years, rather than
one year as provided for by
§ 40.333(a)(4) of this title. Railroads may
maintain legible and accessible scanned
or electronic copies of these records for
the second year that they are required to
be maintained by FRA.
(b) Records maintained for a
minimum of five years. Each railroad
must maintain the following records for
a minimum of five years:
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(1) A summary record or the
individual files of each regulated
employee’s test results; and
(2) A copy of the annual report
summarizing the results of its alcohol
and drug misuse prevention program (if
required to submit the report under
§ 219.801(a)).
(c) Records maintained for a
minimum of two years. Each railroad
must maintain the following records for
a minimum of two years:
(1) Records related to the collection
process:
(i) Collection logbooks, if used.
(ii) Documents relating to the random
selection process, including the
railroad’s approved random testing plan
and FRA’s approval letter for that plan.
(iii) Documents generated in
connection with decisions to administer
Federal reasonable suspicion or
reasonable cause alcohol or drug tests.
(iv) Documents generated in
connection with decisions on postaccident testing.
(v) Documents verifying the existence
of a medical explanation for the
inability of a regulated employee to
provide an adequate specimen.
(2) Records related to test results:
(i) The railroad’s copy of the alcohol
test form, including the results of the
test.
(ii) The railroad’s copy of the drug test
custody and control form, including the
results of the test.
(iii) Documents related to the refusal
of any regulated employee to submit to
an alcohol or drug test required by this
part.
(iv) Documents presented by a
regulated employee to dispute the result
of an alcohol or drug test administered
under this part.
(3) Records related to other violations
of this part.
(4) Records related to employee
training:
(i) Materials on alcohol and drug
abuse awareness, including a copy of
the railroad’s policy on alcohol and
drug abuse.
(ii) Documentation of compliance
with the requirements of § 219.23.
(iii) Documentation of training
(including attendance records and
training materials) provided to
supervisors for the purpose of qualifying
the supervisors to make a determination
concerning the need for reasonable
suspicion or post-accident alcohol and
drug testing.
(iv) Documentation of training
(including attendance records and
training materials), required under
§ 219.103(b)(2) and (b)(3), provided to
regulated employees regarding the use
of prescription and over-the-counter
drugs.
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34. Revise § 219.903 to read as
follows:
■
§ 219.903
Access to facilities and records.
(a) Release of regulated employee
information contained in records
required to be maintained under
§ 219.901 must be in accordance with
part 40 of this title and with this
section. (For purposes of this section
only, urine drug testing records are
considered equivalent to breath alcohol
testing records.)
(b) Each railroad must permit access
to all facilities utilized in complying
with the requirements of this part to the
Secretary of Transportation, United
States Department of Transportation, or
any DOT agency with regulatory
authority over the railroad or any of its
regulated employees.
(c) Each railroad must make available
copies of all results for its alcohol and
drug testing programs conducted under
this part and any other information
pertaining to the railroad’s alcohol and
drug misuse prevention program, when
requested by the Secretary of
Transportation or any DOT agency with
regulatory authority over the railroad or
regulated employee.
§ 219.905
■
■
[Removed and Reserved]
35. Remove and reserve § 219.905.
36. Add subpart K to read as follows:
Subpart K—Peer Support Programs
Sec.
219.1001 Requirement for peer support
programs.
219.1003 Peer support program
requirements.
219.1005 Optional provisions.
219.1007 Alternate peer support programs.
Subpart K—Peer Support Programs
§ 219.1001
programs.
Requirement for peer support
(a) The purpose of this subpart is to
help prevent the adverse effects of
alcohol misuse and drug use in
connection with regulated employees
through the implementation of peer
referral and support programs.
(b) Each railroad must adopt, publish,
and implement a peer support program
policy that meets the requirements of
this subpart. The policy must be
designed to encourage and facilitate the
referral and rehabilitative support of
regulated employees who abuse alcohol
or drugs. The policy must also support
and augment this part, as well as parts
40, 240, and 242 of this title.
(c) A railroad may comply with this
subpart by adopting, publishing, and
implementing policies meeting the
specific requirements of § 219.1003 and/
or by complying with § 219.1007.
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(d) Nothing in this subpart may be
construed to:
(1) Require payment of compensation
for any period a regulated employee is
restricted from regulated service under
a railroad’s peer support programs;
(2) Require a railroad to adhere to a
peer support program policy when the
referral is made for the purpose, or with
the effect, of anticipating or avoiding the
imminent and probable detection of a
rule violation by a supervising
employee;
(3) Interfere with the subpart D
requirement for Federal reasonable
suspicion testing when a regulated
employee is on-duty and a supervisor
trained in accordance § 219.11(g)
determines that the employee is
exhibiting signs and symptoms of
alcohol and/or drug use;
(4) Interfere with the requirements in
§ 219.104(d) for responsive action when
a violation of §§ 219.101 or 219.102 is
substantiated; or
(5) Limit the discretion of a railroad
to dismiss or otherwise discipline a
regulated employee for specific rule
violations or criminal offenses, except
as specifically provided by this subpart.
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§ 219.1003 Peer support program
requirements.
(a) Scope. This section prescribes the
minimum requirements and standards
for peer support programs required
under this subpart. Individuals involved
in the implementation of any program
subject to this subpart must comply
with the program’s policies and
implementation procedures.
(b) Referral policies. Except as
provided in § 219.1007, each railroad
must publish and implement a peer
support program that meets the
requirements of this section and which
contains, at a minimum, the following
types of policies:
(1) A self-referral policy that must
provide regulated employees with an
opportunity to obtain referral,
education, counseling, and/or treatment
through a qualified Employee
Assistance Program (EAP) Counselor or
Drug and Alcohol Counselor (DAC)
before an employee’s alcohol or
substance use problem manifests itself
in an accident, injury, or is otherwise
detected as a violation of this part;
(2) A co-worker referral policy that
must be designed to encourage and
facilitate employee participation in
preventing violations of this part; and
(3) As negotiated between a railroad
and its collective bargaining
organizations (if applicable), a non-peer
referral policy that must specify
whether the program permits referrals
from non-peers, such as supervisors,
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representatives of an employee’s
collective bargaining organization, or
family members.
(c) Referral conditions. The referral
policies required by paragraph (b) of
this section must specify the conditions
under which a self-referral, co-worker
referral, or non-peer referral can occur,
including:
(1) For a self-referral that does not
involve a violation of this part,
identification of a designated EAP
Counselor or DAC (including telephone
number and email (if available)) and any
expectations regarding when the referral
is allowed to take place (e.g., only
during non-duty hours and/or while the
employee is unimpaired, as permitted
by § 219.1005);
(2) Whether non-peer referrals (e.g.,
referrals from supervisors, labor
organizations, or family members) are
permitted and what the allowances,
conditions, and procedures of such
referrals are;
(3) For a co-worker referral or a nonpeer referral (as permitted by the
railroad’s policy), a railroad may accept
a referral under this subpart only if the
referral is based on an allegation that the
regulated employee was apparently
unsafe to work with or appeared to be
in violation of this part or the railroad’s
alcohol and drug rules; and
(4) For a co-worker referral or a nonpeer referral (as permitted by the
railroad’s policy), a railroad may remove
a regulated employee from service only
if a railroad representative who has been
trained in accordance with the
requirements of § 219.11(g) confirms
that the employee is unsafe to work
with or in violation of this part or the
railroad’s alcohol and drug rules.
(d) Employment maintained. A
regulated employee who is affected by
an alcohol or drug use problem may
maintain an employment relationship
with the railroad if:
(1) The employee seeks assistance
through a railroad’s peer support
program for the employee’s alcohol or
drug use problem or is referred for such
assistance by either a co-worker or a
non-peer (as permitted by the railroad’s
policy); and
(2) The employee successfully
completes the education, counseling, or
treatment program specified by a
Counselor under this section.
(e) Employment action. If the
employee does not choose to seek
assistance through a peer support
program, or fails to cooperate with the
prescribed program, the disposition of
the employee’s relationship with the
railroad is subject to normal
employment action.
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(f) Evaluation by a qualified EAP
Counselor, DAC, or SAP. (1)(i) A
regulated employee entering a peer
support program through a self-referral
must be evaluated by an EAP Counselor
or DAC acceptable to the railroad.
(ii) A regulated employee entering a
peer support program through a coworker or non-peer referral must be
evaluated by a SAP acceptable to the
railroad (according to the standards of
part 40 of this title) if the co-worker or
non-peer referral involves a
substantiated violation of § 219.101 or
§ 219.102.
(iii) If a co-worker or non-peer referral
involves a situation where the regulated
employee was not in violation of
§ 219.101 or § 219.102, but was
determined to be unsafe to work with or
in violation of only the railroad’s
alcohol and drug rules, the referred
individual must be evaluated by an EAP
or DAC.
(2) Organizations employing
Counselors and personnel supporting
peer programs under this subpart must
meet any applicable state standards and
comply with this subpart.
(3) The Counselor (defined by § 219.5
to include an EAP Counselor, DAC, or
SAP) must determine the appropriate
level of care (including, but not limited
to, education, counseling, and/or
treatment) necessary to resolve any
identified substance abuse problem
involving a regulated employee. If the
evaluation establishes that the employee
has an active substance abuse disorder
(such as, but not limited to, substance
dependency) requiring education,
counseling and/or treatment education,
the Counselor must refer the employee
to an appropriately qualified
rehabilitation program in the
community when possible. An
employee’s failure to fully cooperate
with the evaluation, referral process, or
aftercare is grounds for dismissal from
the railroad’s peer support program, and
will subject the employee to the
railroad’s normal employment action.
(g) Removal from regulated service. A
peer support program policy must
stipulate that a regulated employee who
has been evaluated by a Counselor and
found to have an active substance abuse
disorder must be removed from
regulated service until the Counselor
reports that the employee’s identified
problem is no longer reasonably
expected to adversely affect the safety of
railroad operations.
(h) Confidentiality maintained. Except
as provided under paragraph (l) of this
section, the railroad’s peer support
program policy must treat an
employee’s referral and subsequent
handling (including evaluation,
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education, counseling, and/or
treatment) as confidential. Only
personnel who administer the railroad’s
peer support program may have access
to the identities of the individuals in the
program.
(i) Leave of absence. The railroad
must grant a regulated employee a leave
of absence for the period necessary to
complete at least the primary education/
counseling/treatment program
recommended by the Counselor. The
leave of absence must also cover a
period sufficient for the employee to
establish control over his or her alcohol
or drug problem to the extent that the
evaluating Counselor determines that he
or she is now at a low risk to return to
substance abuse.
(j) Return to regulated service. (1)
Except as may be provided under
§§ 219.1001(d)(4) and 219.1005, a
railroad must return a regulated
employee to regulated service on the
recommendation of the Counselor when
the employee has established control
over his or her substance abuse
problem, is assessed by the Counselor as
being a low risk to return to substance
abuse, and has complied with any
return-to-service requirements
recommended by the Counselor (such as
a negative alcohol and/or drug test
performed under Federal or company
authority, whichever is appropriate).
(2) The Counselor determines the
appropriate number and frequency of
required follow-up tests. The railroad
determines the dates of testing.
(3) An employee’s return to regulated
service may be conditioned upon
successful completion of a return-toservice medical evaluation, as directed
by the railroad.
(4) Approval to return to regulated
service may not be unreasonably
withheld. The railroad must return an
employee to regulated service within
five working days of the Counselor’s
notification to the railroad that the
employee is fit to return to regulated
service (i.e., the employee is at a low
risk to return to substance abuse).
(k) Rehabilitation plan. No person or
entity—whether an employing railroad,
managed care provider, service agent, or
any entity other than the Counselor who
conducted the initial evaluation—may
change in any way the Counselor’s
evaluation or recommendation for
assistance. The Counselor who made the
initial evaluation may modify his or her
initial evaluation and follow-up
recommendations based on new or
additional information.
(l) Locomotive engineers and
conductors. As provided by § 240.119(e)
or § 242.115(g) of this chapter, with
respect to a certified locomotive
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engineer, certified conductor, or a
candidate for engineer or conductor
certification, the peer support program
policy must state that confidentiality is
waived (to the extent that the railroad
receives official notice of the active
substance abuse disorder from a
Counselor, and suspends or revokes the
certification, as appropriate) if an
employee at any time refuses to
cooperate in a recommended course of
counseling or treatment. The treating
Counselor is not required to provide this
notice if the locomotive engineer or
conductor is medically restricted from
regulated service and the Counselor is
working with the locomotive engineer
or conductor to correct a reoccurring
active substance abuse disorder. If a
locomotive engineer or conductor with
an active substance abuse disorder fails
to make the needed rehabilitative
progress during a period of medical
restriction, the Counselor must provide
official notice to the railroad.
(m) Contacting a SAP. If the
identification of the regulated employee
was due to co-worker or non-peer
referral for a substantiated violation of
§ 219.101 or § 219.102, the regulated
employee must contact the SAP in a
reasonable time (as specified by the
railroad’s policy). If the employee does
not contact the SAP within the
railroad’s specified time limit, the
railroad may begin an investigation to
assess the employee’s cooperation and
compliance with its peer support policy.
(n) Time requirements for Counselor
evaluations. Once a regulated employee
has contacted the designated Counselor,
the evaluation must be completed
within 10 working days. If the employee
needs more than one evaluation, the
evaluations must be completed within
20 working days.
(o) Regulated employee agreement. A
railroad’s peer support policy must
require a regulated employee to agree to
undertake and successfully complete a
course of prescribed care and any
follow-up care (including appropriate
railroad-administered follow-up testing)
deemed appropriate by the Counselor.
Any follow-up treatment, care, and/or
testing established for this program
cannot exceed 24 months beyond the
regulated employee’s initial removal
from regulated service, unless the
regulated employee entered the peer
prevention program through a co-worker
or non-peer referral that involved a
substantiated part 219 violation.
§ 219.1005
Optional provisions.
A railroad’s peer support program
policy may include any of the following
provisions at the option of the railroad
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Fmt 4701
Sfmt 4702
and with the approval of the labor
organization(s) affected:
(a) The policy may provide for a
mark-off provision under which a
regulated employee who is concerned
that he or she may not be safe to work
due to alcohol or prescription
medication use may choose to refuse an
assignment.
(b) The policy may provide that the
rule of confidentiality is waived if:
(1) The regulated employee at any
time refuses to cooperate in a course of
education, counseling, or treatment
recommended by an Counselor; or
(2) The regulated employee is later
determined, after investigation, to have
been involved in an alcohol or drugrelated disciplinary offense growing out
of subsequent conduct.
(c) The policy may require successful
completion of a return-to-service
medical examination as a further
condition of reinstatement in regulated
service.
(d) The policy may provide that it
does not apply to a regulated employee
who has previously been assisted by the
railroad under a policy or program
substantially consistent with this
section.
(e) The policy may provide that, in
order to invoke its benefits, the
regulated employee must report to the
contact designated by the railroad
either:
(i) During non-duty hours (i.e., at a
time when the regulated employee is off
duty); or
(ii) While unimpaired and otherwise
in compliance with the railroad’s
alcohol and drug rules consistent with
this subpart.
§ 219.1007
programs.
Alternate peer support
(a) In lieu of peer support programs
under § 219.1003, railroads are
permitted to develop, publish, and
implement an alternate program or
policy which meets the standards
established in § 219.1003. Such
programs or policies must have the
written concurrence of the recognized
representatives of the regulated
employees. Nothing in this subpart
restricts a railroad or labor organization
from adopting, publishing and
implementing peer support policies that
afford more favorable conditions to
regulated employees troubled by alcohol
or drug abuse problems, consistent with
a railroad’s responsibility to prevent
violations of §§ 219.101 and 219.102.
(b) The concurrence of the recognized
representatives of the regulated
employees in an alternate program may
be evidenced by a collective bargaining
agreement or any other document
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emcdonald on DSK67QTVN1PROD with PROPOSALS2
describing the class or craft of
employees to which the alternate
program applies. The agreement or other
document must make express reference
to this subpart and to the intention of
the railroad and employee
representatives that the alternate
program applies in lieu of the program
required by this subpart.
(c) The railroad must file the
agreement or other document described
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in paragraph (b) of this section along
with the requested alternate program
being submitted for approval with the
FRA Drug and Alcohol Program
Manager. Approval will be based on
FRA review to ascertain whether the
alternative program meets the
§ 219.1003 objectives. The alternative
program does not have to include each
§ 219.1003 component, but must meet
the general standards and intent of
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Sfmt 9990
43915
§ 219.1003. If an approved alternate
policy is amended or revoked, the
railroad must file a notice with FRA of
such
Issued in Washington, DC, on July 15,
2014.
Joseph C. Szabo,
Administrator.
[FR Doc. 2014–17195 Filed 7–25–14; 8:45 am]
BILLING CODE 4910–06–P
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Agencies
[Federal Register Volume 79, Number 144 (Monday, July 28, 2014)]
[Proposed Rules]
[Pages 43829-43915]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17195]
[[Page 43829]]
Vol. 79
Monday,
No. 144
July 28, 2014
Part II
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 219
Control of Alcohol and Drug Use: Coverage of Maintenance of Way
Employees, Retrospective Regulatory Review-Based Amendments (RRR);
Proposed Rule
Federal Register / Vol. 79 , No. 144 / Monday, July 28, 2014 /
Proposed Rules
[[Page 43830]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 219
[Docket No. FRA-2009-0039]
RIN 2130-AC10
Control of Alcohol and Drug Use: Coverage of Maintenance of Way
Employees, Retrospective Regulatory Review-Based Amendments (RRR)
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation. (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: In response to Congress' mandate in the Rail Safety
Improvement Act of 2008 (RSIA), FRA is proposing to expand the scope of
its alcohol and drug regulations to cover employees who perform
maintenance-of-way (MOW) activities. In addition, FRA is proposing
certain substantive amendments that either respond to National
Transportation Safety Board (NTSB) recommendations or update and
clarify the alcohol and drug regulations based on a retrospective
regulatory review (RRR) analysis.
DATES: Comments: Submit comments on or before September 26, 2014.
Public Hearing: FRA anticipates being able to resolve this
rulemaking without a public, oral hearing. However, if FRA receives a
specific request for a public, oral hearing prior to August 27, 2014,
one will be scheduled and FRA will publish a supplemental notice in the
Federal Register to inform interested parties of the date, time, and
location of any such hearing.
ADDRESSES: Comments: Comments related to Docket No. FRA-2009-0039 may
be submitted by any of the following methods:
Online: Comments should be filed at the Federal
eRulemaking Portal, https://www.regulations.gov. Follow the online
instructions for submitting comments.
Fax: 202-493-2251.
Mail: Docket Management Facility, U.S. DOT, 1200 New
Jersey Avenue SE., W12-140, Washington, DC 20590.
Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue SE., Washington, DC between 9
a.m. and 5 p.m. Monday through Friday, except federal holidays.
Instructions: All submissions must include the agency name and docket
number or Regulatory Identification Number (RIN) for this rulemaking.
Note that all comments received will be posted without change to https://www.regulations.gov including any personal information provided.
Please see the Privacy Act heading in the ``Supplementary Information''
section of this document for Privacy Act information related to any
submitted comments or materials.
Proposed Revised Part 219 Available in Docket No. FRA-2009-0039
A revised version of part 219 incorporating all amendments proposed
by this NPRM is available for review in the public docket of this
rulemaking (docket no. FRA-2009-0039). Interested persons can review
this document to learn how the proposed amendments would affect part
219 as a whole.
FOR FURTHER INFORMATION CONTACT: For program and technical issues,
contact Gerald Powers, Drug and Alcohol Program Manager, Office of
Safety Enforcement, Mail Stop 25, Federal Railroad Administration, 1200
New Jersey Avenue SE., Washington, DC 20590 (telephone 202-493-6313),
gerald.powers@dot.gov. For legal issues, contact Elizabeth A. Gross,
Trial Attorney, Office of Chief Counsel, Federal Railroad
Administration, 1200 New Jersey Avenue SE., Mail Stop 10, Washington,
DC 20590 (telephone 202-493-1342), elizabeth.gross@dot.gov; or Patricia
V. Sun, Trial Attorney, Office of Chief Counsel, Federal Railroad
Administration, 1200 New Jersey Avenue SE., Mail Stop 10, Washington,
DC 20590 (telephone 202-493-6060), patricia.sun@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Statutory Authority and Proceedings to Date
III. Expansion of Part 219 to Employees Who Perform MOW Activities
A. Background
B. FRA's Proposed Definition of MOW Activities
C. ``Regulated Employees'' and ``Regulated Service''
D. Alternatives Considered for Part 219 Expansion
1. Alternative No. 1: Adopt the ``roadway worker'' definition in
Sec. 214.7
2. Alternative No. 2: Include all employees who perform FRA
safety-sensitive functions under Sec. Sec. 219.301 and 209.303
E. MOW Employees and the Small Railroad Exception
F. Railroad and Contractor Responsibility for Compliance
G. MOW Employee Random Testing Rate
H. MOW Employee Pre-employment Drug Testing
IV. Signal Contractors
V. Other Proposed Substantive Amendments
A. Small railroads would no longer be excepted from the
requirements for reasonable suspicion testing and pre-employment
drug testing
B. For purposes of the small railroad exception, a new
definition of ``joint operations'' would be incorporated
C. The post-accident toxicological (PAT) testing damage
threshold for major train accidents would be increased
D. Derailment and raking collisions would no longer be excluded
from the Sec. 219.5 definition of impact accident
E. PAT testing would be required for railroad highway-rail grade
crossing accidents/incidents involving human-factor errors
F. The provisions governing when regulated employees could be
recalled for PAT testing would be amended
G. Reasonable cause testing would be authorized only for
reportable ``train accidents and ``train incidents''
H. Federal reasonable cause testing would be authorized for
additional operating rule violations or other errors
I. Part 219 would be amended to conform certain provisions to
the final conductor certification rule
VI. Primary Clarifying Amendments
A. Reasonable suspicion and reasonable cause testing would be
separated into different subparts, resulting in the re-designation
of other subparts
B. Random alcohol and drug testing would be reorganized and
clarified
C. Substituting ``Drug and Alcohol'' for ``Alcohol and Drug''
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Impact
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Privacy Act
[[Page 43831]]
I. Executive Summary
FRA has regulated the use of alcohol and drugs by certain railroad
employees since 1985, when it issued a final rule establishing alcohol
and drug use control regulations under 49 CFR part 219 (part 219). See
50 FR 31508, Aug. 2, 1985. The rule contained certain prohibitions on
the use and possession of alcohol and drugs by covered employees, who
were defined as employees who had been assigned to perform covered
service subject to the Hours of Service Act (45 U.S.C. 61-64b).\1\ See
id. at 31569. The rule also contained requirements for post-accident
toxicological (PAT) testing, discretionary reasonable cause and
reasonable suspicion testing, co-worker and voluntary referral
policies, pre-employment drug testing, and reporting. See id. at 31508.
In 1988, FRA amended part 219 to require random drug testing of covered
employees. See 53 FR 47102, Nov. 21, 1988. In 1994, FRA again amended
part 219 to require random alcohol testing and reasonable suspicion
testing, in conformance with the requirements of the Omnibus
Transportation Employee Testing Act of 1991 (Omnibus Act) (reasonable
cause testing remained discretionary). See 59 FR 7448, Feb. 15, 1994.
FRA has not fundamentally revised part 219 since 1994.\2\
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\1\ The hours of service (HOS) laws are currently found at 49
U.S.C. ch. 211.
\2\ In 2004, FRA expanded the scope of part 219 to cover foreign
railroad foreign-based employees who perform train or dispatching
service in the United States. See 69 FR 19270, Apr. 12, 2004. In
2013, FRA added routine tests for certain non-controlled substances
to its PAT testing program. See 78 FR 14217, Mar. 5, 2013.
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The Omnibus Act required the Department of Transportation (DOT or
Department) to establish Federal workplace testing procedures for
transportation employees. The Department's Procedures for
Transportation Workplace Drug and Alcohol Testing Program are contained
in 49 CFR part 40 (part 40), which is published by the DOT Office of
the Secretary (OST). Only the DOT Office of Drug and Alcohol Policy and
Compliance (ODAPC) and the DOT Office of General Counsel (OGC) are
authorized to interpret part 40 requirements. See 49 CFR 40.5.\3\ Part
40 testing requirements and procedures apply to any drug or alcohol
test required by DOT agency regulations, except for FRA's PAT testing
and certain testing conducted pursuant to DOT-mandated peer prevention
programs (including FRA's peer prevention program currently required by
subpart E of part 219). See Sec. 219.701. FRA's PAT testing program
pre-dates the enactment of the Omnibus Act, which specifically exempts
the program from part 40. See Sec. 40.1(c).
---------------------------------------------------------------------------
\3\ Unless otherwise specified, all references to CFR sections
and parts in this document refer to Title 49 of the CFR.
---------------------------------------------------------------------------
In response to Congress' mandate in the RSIA, FRA is proposing to
expand the scope of part 219 to cover employees who perform MOW
activities. As used in this NPRM, the term ``employee'' includes
employees, volunteers, and probationary employees of railroads and
contractors (defined to include subcontractors) to railroads. In
addition, because MOW employees are not subject to the HOS laws, FRA is
proposing a new term-of-art--``regulated service''--that would
encompass both covered service and MOW activities. Performance of
regulated service would make an individual a ``regulated employee''
subject to part 219, regardless of whether the individual is employed
by a railroad or a contractor to a railroad. This proposed expansion of
part 219 would both comply with the RSIA mandate and respond in part to
NTSB Recommendation R-08-07 (Apr. 10, 2008), available at https://www.ntsb.gov/doclib/recletters/2008/R08_05_07.pdf. In Recommendation
R-08-07, the NTSB advised FRA to expand its alcohol and drug
regulations to all railroad employees and contractors who perform FRA
safety-sensitive functions as defined by Sec. Sec. 209.301 and 209.303
(the regulations setting forth the purpose, scope and coverage of FRA's
procedures for disqualifying individuals from performing certain
safety-sensitive functions).
FRA is also proposing to amend part 219 in response to NTSB
Recommendation R-01-17, available at https://www.ntsb.gov/doclib/recletters/2001/R01_17.pdf. Recommendation R-01-17 advised FRA to
limit the current blanket exception for PAT testing after highway-rail
grade crossing accidents to allow PAT testing when an accident was
likely due to human factors or involved a regulated employee fatality.
This NPRM also proposes amendments based on a retrospective review
of part 219, which FRA has been implementing for more than 25 years.
These amendments, which reflect practical lessons FRA has learned, are
necessary to update and simplify the regulation's requirements.
Costs and Benefits of Proposed Rule
The proposed rule would impose costs that are outweighed by the
quantified safety benefits. For the 20-year period analyzed, the
estimated costs that will be imposed on industry total approximately
$24 million (undiscounted), with discounted costs totaling $14.2
million (Present Value (PV), 7 percent) and $18.9 million (PV, 3
percent). The estimated quantified benefits for this 20-year period
total approximately $115.8 million (undiscounted), with discounted
benefits totaling $57.4 million (PV, 7 percent) and $83.6 million (PV,
3 percent).
The costs would primarily be derived from implementation of the
statutory mandate to expand the scope of part 219 to cover MOW
employees. The benefits will primarily accrue from the expected injury,
fatality, and property damage avoidance resulting from the expansion of
part 219 to cover MOW employees, as well as the PAT testing threshold
increase. The table below summarizes the quantified costs and benefits
expected to accrue over a 20-year period from adoption of the proposed
rule and identifies the statutory costs and benefits (those required by
the RSIA mandate to expand part 219 to MOW employees) and the
discretionary costs and benefits (those that are due to the non-RSIA
requirements that FRA is proposing).
[[Page 43832]]
----------------------------------------------------------------------------------------------------------------
20 Year costs Statutory Discretionary
----------------------------------------------------------------------------------------------------------------
PAT Testing Costs--Adding MOW................................. $52,000 .......................
PAT Testing Costs--Impact Def + Xing.......................... $241,974
Reasonable Suspicion Testing Costs............................ 842,398 .......................
Pre-Emp. Testing Costs--Adding MOW............................ 673,897 .......................
Pre-Emp. Testing Costs--Sm. RR................................ 29,904
Random Testing Costs.......................................... 20,863,074 .......................
Annual Report Costs........................................... 160,911 .......................
Recordkeeping Requirements Costs.............................. 1,397,840 .......................
-------------------------------------------------
Total Costs............................................... 23,990,121 271,878
-------------------------------------------------
24,261,999
----------------------------------------------------------------------------------------------------------------
20 Year Benefits Statutory Discretionary
----------------------------------------------------------------------------------------------------------------
Accident Reduction Benefits................................... 115,369,281 .......................
PAT Testing Threshold Reduction Benefits...................... 388,295
-------------------------------------------------
Total Benefits............................................ 115,757,576
----------------------------------------------------------------------------------------------------------------
II. Statutory Authority and Proceedings to Date
Currently, part 219 applies only to covered employees, defined in
Sec. 219.5 as individuals who perform covered service subject to the
HOS laws at 49 U.S.C. 21103, 21104, or 21105. In Section 412 of the
RSIA (Section 412), Congress directed the Secretary to ``revise the
regulations prescribed under section 20140 of title 49, United States
Code, to cover all employees of railroad carriers and contractors or
subcontractors to railroad carriers who perform maintenance-of-way
activities.'' The Secretary has delegated this responsibility to the
FRA Administrator. See 49 CFR 1.89(b); see also 49 U.S.C. 103(g). The
RSIA does not define MOW activities.
When the RSIA was enacted in 2008, FRA was already conducting a
retrospective analysis of part 219, looking for ways to clarify the
regulations and make the requirements less burdensome. This NPRM
therefore proposes both amendments that would incorporate MOW employees
and amendments suggested by FRA's retrospective analysis of part 219.
As explained above, part 219 incorporates the alcohol and drug
testing procedures found in part 40, which is published and
administered by ODAPC. For this reason, FRA did not consult with the
Railroad Safety Advisory Committee (RSAC) on this proposed rule.
Instead, FRA gathered information and suggestions from railroads, labor
organizations, and other stakeholders at railroad industry meetings.
For example, railroad industry stakeholders provided statistics about
the number of employees of railroads and contractors to railroads who
perform MOW activities and submitted suggestions on how FRA should
define MOW activities.
III. Expansion of Part 219 to Employees Who Perform MOW Activities
In this NPRM, FRA is proposing to expand the scope of part 219 to
include employees who perform MOW activities (MOW employees). As
discussed above, the term ``employee,'' as used in this NPRM, includes
employees, contractors, subcontractors, volunteers, and probationary
employees. Accordingly, the term ``MOW employee'' includes any
individual performing MOW activities for a railroad, whether employed
directly by the railroad, employed by a contractor or subcontractor to
the railroad, or a volunteer for the railroad. MOW employees are at a
high safety risk because they work along railroad track and roadbed and
may suffer injury or death as a result of being struck by trains or
other on-track or fouling equipment. Additionally, MOW employees
directly affect the safety of railroad operations because they work on
or near railroad tracks, operate on-track or fouling equipment, and
assist in directing trains through work areas. The purpose of expanding
part 219 to include MOW employees is to improve safety by reducing the
rate of alcohol and drug use among the MOW employee population.
A. Background
On January 9, 2007, a southbound Massachusetts Bay Transit
Administration (MBTA) passenger train, operated by the Massachusetts
Bay Commuter Railroad (MBCR), struck a track maintenance vehicle that
was on the track near Woburn, Massachusetts. See NTSB, Railroad
Accident Report: Collision of Massachusetts Bay Transportation
Authority Train 322 and Track Maintenance Equipment Near Woburn,
Massachusetts, NTSB/RAR-08/01, PB2008-916301, Mar. 18, 2008, at 1,
available at https://www.ntsb.gov/doclib/reports/2008/RAR0801.pdf
(``Woburn Report''). At the time of the collision, six MBCR MOW
employees were replacing crossties and were working on or near the
track maintenance vehicle. The train rounded a curve at 62 mph and
struck the track maintenance vehicle. The MOW workers had only about 15
seconds warning before the collision. Id. at 17. Two of the MBCR
employees, a track foreman and a track worker/welder, were killed, and
two were seriously injured. The NTSB investigated the collision and
determined that one of its probable causes was the failure of the MOW
crew to apply a shunting device that would have provided redundant
signal protection for their track segment.\4\ An MBCR rule required the
crew to have a shunting device at the end of the work area every time a
track was taken out of service for maintenance. The track foreman in
charge of the MOW crew, however, had not complied with this rule. Id.
at vi and 17.
---------------------------------------------------------------------------
\4\ The NTSB also found that a probable cause of the accident
was the failure of the train dispatcher to maintain blocking that
provided signal protection for the track segment occupied by the MOW
crew. See id. at vi.
---------------------------------------------------------------------------
While the MOW employees involved in the MBTA accident were not
covered employees, Sec. 219.203(a)(4)(ii) requires PAT testing on the
remains of any railroad employee fatally injured in a train accident or
incident. The PAT testing results for the fatally injured foreman
involved in the MBTA accident showed that that he had likely used
marijuana within three hours of his
[[Page 43833]]
death. The NTSB concluded that the foreman's performance would likely
have been measurably impaired at the time of the accident by his recent
use of marijuana. The NTSB also concluded that the foreman's positive
drug test result was ``not an isolated incident among MBCR maintenance-
of-way employees.'' Id. at 19. Between December 2003 and January 2007,
the MBCR had four fatalities, one critical injury, and one potentially
serious incident involving MOW employees. Id. Seven MOW employees were
tested for drugs and/or alcohol as a result of these incidents. Id.
(Four fatally injured employees were tested under FRA authority, and
three surviving employees were tested under MBCR's company authority.
Id.) Of the seven MOW employees tested, four had positive results, and
one employee submitted a specimen that was a negative dilute which may
have masked a positive. Id. The NTSB found that this high rate of
positive test results was symptomatic of a substance abuse problem
among MBCR MOW employees. Id.
As part of its investigation of this accident, the NTSB reviewed
industry-wide PAT testing data for accidents involving MOW employee
fatalities. Over the 10-year period ending January 9, 2007, FRA PAT
testing of 26 MOW fatalities resulted in 5 positive test results, a
positive rate of 19.23%. Id. at 19. In contrast, the overall PAT
testing positive rate for covered employees was only 6.56%. Id. The
NTSB concluded that these results showed greater alcohol and drug use
among MOW employees than among covered employees subject to part 219.
Id. Thus, the NTSB determined that alcohol and drug use by MOW
employees in the railroad industry was a safety concern. Id. at vi and
19.
The NTSB noted that FRA data indicate that MOW employees are about
three times more likely to have positive test results than covered
employees (19.23% positive for MOW employees vs. 6.56% positive for
covered employees). See Woburn Report at 20. Attributing this
difference ``to the deterrent value of the FRA's random testing program
to which covered employees are subject but maintenance-of-way employees
are not,'' the NTSB recommended that FRA revise its definition of
covered employee to include all railroad employees and contractors who
perform FRA safety-sensitive functions, as defined by Sec. Sec.
209.301 and 209.303. See NTSB Recommendation R-08-07.
Section 209.303 lists the safety-sensitive functions that an
individual may be disqualified from performing if he or she has been
found unfit to do so after committing a FRA safety violation. See Sec.
209.301. If FRA expanded the scope of part 219 to cover the safety-
sensitive functions listed in Sec. 209.303, it would include not only
covered employees, as currently defined, but all railroad employees and
contractor employees (including managers and supervisors) who: (1)
Inspect, install, repair, or maintain track and roadbed; (2) inspect,
repair, or maintain locomotives, passenger cars, and freight cars; (3)
conduct training and testing of employees when required to do so by the
FRA's safety regulations; (4) perform service subject to the
Transportation of Hazardous Materials Law (Hazmat Law); \5\ (5)
supervise and otherwise direct the performance of the safety-sensitive
functions; or (6) are in a position to direct the commission of
violations of any FRA safety regulation. As discussed below, FRA does
not currently believe that it is necessary to expand part 219 beyond
railroad employees (including contractors, subcontractors, volunteers
and probationary employees) who perform covered service and/or MOW
activities for a railroad.
---------------------------------------------------------------------------
\5\ The Transportation of Hazardous Materials Laws are located
at 49 U.S.C. ch. 51. Under 49 U.S.C. 5103, the Secretary is directed
to prescribe regulations for the ``safe transportation, including
security, of hazardous materials in intrastate, interstate, and
foreign commerce.'' These regulations apply to a person who performs
a broad range of activities, including testing a ``packaging
component that is represented, marked, certified, or sold as
qualified for use in transporting hazardous material in commerce''
and ``certif[ying] compliance with any requirements under this
chapter.'' Such activities generally are not related to what would
be considered railroad MOW activities.
The Secretary delegated the authority to issue these
regulations to the Pipeline and Hazardous Materials Safety
Administration (PHMSA), and the resulting regulations are found at
49 CFR subtitle B, ch. 1. The broad extent of these regulations go
far beyond what would be an appropriate scope for FRA's alcohol and
drug regulation.
---------------------------------------------------------------------------
B. FRA's Proposed Definition of ``MOW Activities''
In response to the mandate contained in Section 412 and NTSB
Recommendation R-08-07, FRA is proposing to expand part 219 to include
employees who perform MOW activities, as defined in proposed Sec.
219.5. FRA's proposed definition of MOW activities includes the
following: (1) The inspection, repair, or maintenance of track,
roadbed, or electric traction systems; (2) the operation of on-track or
fouling equipment utilized for the inspection, repair, or maintenance
of track, roadbed, or electric traction systems; (3) the performance of
flagman or watchman/lookout duties; (4) the obtaining of on-track
authority and/or permission for the performance of activities described
by the proposed definition; or (5) the granting of on-track authority
and/or permission for operation over a segment of track while workers
are performing activities described by the proposed definition.
In drafting its proposed definition of ``MOW activities,'' FRA drew
from Sec. 209.303's definition of FRA safety-sensitive functions and
identified those activities that most closely fit the common
understanding of MOW activities in the railroad industry. Based in part
on feedback from stakeholders, FRA determined that these activities
include the inspection, installation, repair, or maintenance of track
and roadbed. See Sec. 209.303(b)(1). Individuals performing such
activities work along railroad track and roadbed and may suffer serious
injury or death from being struck by trains or other on-track or
fouling equipment. These individuals also directly affect the safety of
railroad operations because they work on or near railroad tracks,
operate on-track or fouling equipment, and authorize or direct trains
through working limits.
In contrast, individuals performing the other FRA safety-sensitive
functions listed in Sec. 209.303 do not typically experience the same
type of safety risks because they generally do not work on or around a
railroad's track or roadbed. Individuals who inspect, repair, or
maintain locomotives, passenger cars, and freight cars, as described by
Sec. 209.303(b)(2), generally perform these functions in locomotive or
car repair facilities subject to blue flag protection. See 49 CFR part
218, subpart B. Individuals who conduct training and testing of
employees required by FRA safety regulations, as described in Sec.
209.303(b)(3), may conduct such training without ever approaching a
railroad track or roadbed. Individuals who perform service subject to
the Hazmat Law may sometimes do so on or near a track or roadbed, but
this is not necessarily the case. Nevertheless, any individuals
performing the above activities would fall within the proposed expanded
scope of part 219 if they otherwise perform covered service or MOW
activities as defined in this NPRM.
Once FRA decided to begin its MOW activities definition with the
language from Sec. 209.303(b)(1), it decided to remove ``install''
from the definition because part 219 applies only to railroads that
operate on track that is part of the general railroad system of
[[Page 43834]]
transportation. See Sec. 219.3(a). By not including the word
``install'' in its proposed MOW activities definition, FRA would
exclude the installation of track that has not yet been incorporated
into the general railroad system of transportation. Rebuilding a track
that is already part of the general system of transportation, however,
would be covered by the definition because it would be considered
repair or maintenance. Essentially, work on a track would be covered
under the proposed MOW activities definition once the track became part
of the general system of transportation and subject to FRA's track
safety standards in 49 CFR part 213. FRA is specifically requesting
public comment, however, on whether the installation of new track
should be considered a MOW activity, and whether its proposed
definition would improperly exclude other installation work that should
be considered a MOW activity.
FRA also decided, however, that its proposed definition of MOW
activities should specifically include employees who work on electric
traction systems. Electric traction is a wayside electric distribution
system (such as an overhead catenary or third rail) that a railroad can
utilize for locomotion in lieu of locomotive diesel engines. Electric
traction systems also include various pieces of equipment that can be
found along the railroad's right-of-way, such as power stations, power
sub-stations, breaker sites, power feed lines, catenary towers, and
power dispatching offices. Currently, Amtrak and other commuter
railroads use electric traction systems.
FRA also concluded that the definition of MOW activities should
specifically include employees who perform duties as flagmen or
watchmen/lookouts. While flagmen or watchmen/lookouts may not be
directly engaged in the inspection, repair, or maintenance of track,
roadbed, or electric traction systems, they are generally working in
the foul of track and are providing on-track safety for employees who
are engaged in such activities. For example, a flagman may be
responsible for keeping all trains and on-track equipment clear of the
working limits within which MOW activities are being performed. See
Sec. 214.7. Watchmen/lookouts are also responsible under Sec. 214.329
for providing train approach warnings to MOW employees who foul any
track outside of working limits.\6\ Since flagmen and watchmen/lookouts
must stay alert at all times to properly perform these safety-critical
job duties, it would run counter to safety purposes to exclude their
duties from FRA's proposed definition of MOW activities. FRA is
proposing to define ``flagman'' and ``watchman/lookout'' in Sec. 219.5
as those terms are currently defined in FRA's roadway worker
regulations. See Sec. 214.7. Because these definitions have already
been established by part 214, the railroad industry is already familiar
with their meaning and application.\7\
---------------------------------------------------------------------------
\6\ While Sec. 214.329 is phrased in terms of watchmen/lookouts
providing train approach warning to roadway workers, FRA notes that
the definition of ``roadway worker'' in Sec. 214.7 (discussed
further below) is not craft-specific and would likely include any
MOW employee (as defined in this NPRM) fouling a track outside of
working limits. Any MOW employee fouling a track outside of working
limits would therefore require a train approach warning by one or
more watchmen/lookouts under Sec. 214.329.
\7\ FRA notes that the term flagman is also used by the railroad
industry to describe an employee (e.g., a ``conductor flagman'') who
obtains on-track authority for contractors that are not contractors
to a railroad and therefore not roadway workers. The general public
also understands flagman to mean a person who flags highway traffic
during highway construction or grade crossing projects. In this
NPRM, FRA is proposing to define ``flagman'' solely as defined in
Sec. 214.7, rather than in the sense of ``conductor-flagman'' or
``highway-traffic-flagman.''
---------------------------------------------------------------------------
For illustration purposes, part 219's proposed MOW activities
definition would include (but not be limited to) the following
activities: (1) The clearing of snow and ice from track and switches
(but not from passenger station platforms, as discussed below); (2) the
operation of on-track or fouling equipment used for repair/maintenance
purposes such as tampers, tie-throwers, ballast machines, weed
sprayers, etc. or working with such equipment; (3) the operation of on-
track rail inspection vehicles; (4) the requesting or granting of
authority to occupy a segment of track for the purpose of performing
MOW activities; and (5) the requesting or granting of permission for a
train to proceed through MOW working limits. The above list is not
exhaustive, and FRA is specifically requesting public comment on
whether there are other functions that should be considered MOW
activities that may not be included in its proposed definition. FRA is
specifically interested in whether it should consider duties already
covered by the alcohol and drug testing requirements of the Federal
Motor Carrier Safety Administration (FMSCA) as MOW activities, when
those duties also impact the safe performance of MOW activities (e.g.,
the operation of tractor-trailers or other equipment for the purpose of
loading or unloading MOW equipment or supplies onto or within the foul
of the track).
FRA proposes, however, to exclude the following types of activities
from the definition of MOW activities: (1) The clearing of snow and ice
from passenger station platforms; (2) other passenger station
maintenance, such as painting, cleaning, sweeping platforms, etc.; (3)
activities performed by individuals who are not engaged by or under
contract to a railroad, such as workers who are installing cable for a
public utility company or constructing a bridge for a government
highway agency; (4) railroad bridge \8\ work that is not on the track
or within four feet of the nearest rail (on a horizontal plane), such
as painting the base of a bridge or diving to inspect a bridge
structure; (5) engagement as a tractor-trailer operator solely for the
purpose of hauling MOW equipment to and from a work site (although such
persons would be included in the definition if they were engaged in
loading or unloading MOW equipment or supplies onto or within the foul
of the track); and (6) emergency work that is wholly the result of a
natural disaster, such as a flood, tornado, or mudslide. As with the
list of included activities above, this list of excluded activities is
not exhaustive, and FRA is requesting public comment on what, if any,
other activities should be specifically excluded from the definition of
MOW activities.
---------------------------------------------------------------------------
\8\ Under Sec. 214.7, a ``railroad bridge'' is a structure
supporting one or more railroad tracks above land or water with a
span length of 12 feet or more measured along the track centerline.
This includes the entire structure between the faces of the
backwalls of abutments or equivalent components, regardless of
number of spans, and includes all such structures, whether
constructed of timber, stone, concrete, metal, or any combination of
these materials. Under Sec. 237.5, a ``railroad bridge'' is any
structure with a deck, regardless of length, which supports one or
more railroad tracks, or any other undergrade structure with an
individual span length of 10 feet or more located at such a depth
that it is affected by live loads. See 49 CFR part 237, appendix A--
Supplemental Statement of Agency Policy on the Safety of Railroad
Bridges.
---------------------------------------------------------------------------
FRA is also specifically requesting public comment on whether the
proposed MOW activities definition should include any of the following
activities: (1) Boring a pipe under a track; (2) paving a highway-rail
grade crossing; (3) placing detour or other signs in conjunction with
grade crossing work; (4) operating cranes for the loading and unloading
of MOW equipment, regardless of whether or not that equipment is being
loaded onto or within the foul of a track; (5) clearing and repairing a
railroad track following an accident or incident; and (6) operating a
bridge if the employee is not covered under the HOS laws.
FRA notes that the proposed definition of MOW activities in part
219 is narrower than the definition of roadway worker duties in Sec.
214.7 of
[[Page 43835]]
FRA's railroad workplace safety rule (part 214). Consequently, a
roadway worker as defined in part 214 may perform duties that would not
be considered MOW activities as defined in part 219. For example, an
employee who performs passenger station maintenance is performing
roadway worker duties under part 214 (since a passenger station is
considered a ``roadway facility'' under Sec. 214.7) but would not be
performing MOW activities under part 219, so that performance of these
duties would make the employee subject to part 214 but not to part 219.
If FRA incorporates its proposed definition of MOW activities into part
219, railroads would be required to distinguish between roadway workers
as defined in part 214 and MOW employees as defined in part 219, and to
realize that individuals may require roadway worker protection even if
they are not performing MOW activities. The proposed MOW activities
definition differs from the definition of roadway worker duties because
it focuses exclusively on the nature of the activities being performed,
and does not consider an employee's proximity to the track. Unlike
under the roadway worker duties definition, MOW activities do not need
to be performed either ``on or near track or with the potential of
fouling a track.'' FRA is requesting public comment on how to make
clear the differences between its proposed MOW employee and MOW
activity definitions in part 219 and the roadway worker definition in
Sec. 214.7. FRA is also asking for input on the scope of its proposed
definitions, and the safety concerns that involve individuals
performing MOW activities.
C. ``Regulated Employees'' and ``Regulated Service''
To implement the expansion of part 219 to cover MOW employees, FRA
is proposing to add two new definitions to Sec. 219.5: ``Regulated
employee,'' which would refer to an any employee who is subject to part
219 (whether a covered or MOW employee) and a corresponding term,
``regulated service,'' which would refer to all activities subject to
part 219 (again, both covered service and MOW activities). Together,
these two proposed terms-of-art would encompass all individuals and
duties subject to part 219, and would substitute for the awkward terms
``covered employees and maintenance-of-way employees'' or ``covered
service and MOW activities.'' FRA believes these proposed definitions
would make its RSIA-mandated addition of MOW employees easier to
understand and implement, but is requesting public comment on whether
its proposed definitions would be clearly understood to refer to both
covered service and MOW employees and duties.
D. Alternatives Considered for Part 219 Expansion
Before proposing to expand the scope of this rule to cover MOW
activities as defined above, FRA considered two alternative approaches
for meeting the statutory mandate of Section 412. Although FRA is not
proposing to adopt either alternative, FRA is requesting input on each
approach's feasibility in comparison to the approach proposed in this
NPRM. FRA is also requesting public comment on whether there are other
approaches it should consider.
1. Alternative No. 1: Adopt the ``roadway worker'' definition in Sec.
214.7.
FRA initially considered adopting Sec. 214.7's definition of
``roadway worker,'' since it is an established definition with which
the railroad industry is familiar. As defined by Sec. 214.7, ``roadway
worker'' includes any employee of a railroad (or a contactor to a
railroad) who inspects, constructs, maintains, or repairs railroad
track, bridges, roadway, signal and communication systems, electric
traction systems, roadway facilities or roadway maintenance machinery
``on or near track or with the potential of fouling a track.'' This
definition of roadway worker also includes flagmen and watchmen/
lookouts.
Although FRA initially assumed that the roadway worker population
is generally the same as that of employees who perform MOW activities,
FRA ultimately concluded that this is not so since Sec. 214.7 defines
railroad employees (including employees of contractors to a railroad)
as roadway workers if they perform any of the section's listed duties
``on or near the track or with the potential to foul the track.'' This
particular language applies to individuals performing duties that would
not be considered MOW activities, such as maintenance of roadway
facilities that could involve fouling the track. Individuals performing
such duties may qualify as roadway workers, but they are not generally
considered to be MOW employees if their activities do not involve work
on track or roadbed.
Furthermore, as used in part 214, a roadway worker is defined as
any employee who performs one or more of the duties listed that has the
potential of fouling a track, and this definition determines which
employees must be provided roadway worker training and on-track
protection in certain situations. In part 214, this broad language is
not problematic because it is relatively easy for a railroad to provide
employees with roadway worker training and on-track protection on short
notice. However, FRA believes that adopting part 214's roadway worker
definition would make it difficult for railroads and contractors to
comply with the expanded scope of part 219, since part 219 elements
often require advance planning before implementation For example, to
establish an effective random testing program that meets FRA's minimum
random testing rates, a railroad would first have to identify all
employees and contractors who may ever perform duties qualifying them
as roadway workers.
Therefore, while FRA considered adopting the Sec. 214.7 roadway
worker definition, FRA concluded that this definition was too broad for
part 219 purposes. Nonetheless, FRA is requesting public comment on
this alternative.
2. Alternative No. 2: Include all employees who perform FRA safety-
sensitive functions under Sec. Sec. 219.301 and 209.303.
As a second alternative approach, FRA considered implementing NTSB
recommendation R-08-07 in its entirety by expanding part 219 to cover
all employees who perform FRA safety-sensitive functions under
Sec. Sec. 209.301 and 209.303. For the reasons discussed below, FRA
has determined that it is currently unnecessary to expand the scope of
part 219 to such an extent.
As discussed above, FRA believes that in addition to the covered
employees already subject to part 219, MOW employees occupy the most
at-risk safety-sensitive positions in the railroad industry. Their
duties regularly require them to work on or alongside track and
roadbed, putting them at risk for being struck by a train or other on-
track or fouling equipment. MOW employees also greatly impact safety
because their activities can directly interfere with the movement of
trains or other on-track equipment. Furthermore, as discussed above,
the NTSB based recommendation R-08-07 upon its findings that illegal
drug use by MOW employees may have played a role in a 2007 fatal MBTA
accident, and that test data from FRA's PAT testing program showed an
alcohol and drug use problem in the MOW employee population. See Woburn
Report at 19-20.
In contrast, as discussed earlier, individuals who perform the
other FRA safety-sensitive functions listed in Sec. 209.303 (e.g.,
individuals who inspect, repair, or maintain locomotives,
[[Page 43836]]
passenger cars, and freight cars) do not pose or have similar safety
risks because these functions, unlike MOW activities, are typically
performed in designated shop areas or on track designated as repair
track and, as such, individuals performing these functions are not
subject to the same risks as individuals working on or around railroad
track over which normal railroad operations are taking place.
Furthermore, employees who perform Sec. 209.303 safety-sensitive
functions but are neither covered employees nor MOW employees have a
lower PAT testing positive rate than those who perform MOW activities.
From January 1997 to August 2010, FRA conducted PAT tests on 14 fatally
injured employees who were neither covered employees nor MOW workers.
Only one of these fatalities tested positive, resulting in a PAT
testing positive rate of 7.14% for fatalities who were neither covered
employees nor MOW workers, which is comparable to the 6.56% PAT testing
positive rate for covered employees cited by the NTSB in its report on
the MBTA accident. See Woburn Report at 20. In comparison, the NTSB's
examination of the PAT testing results from MOW fatalities found a
positive rate of 19.23%, about three times as high as that for covered
employees. Id.
FRA is therefore not proposing at this time to apply part 219 to
those Sec. 209.303 safety-sensitive employees who are neither covered
employees nor MOW employees. Accordingly, as proposed, the expanded
scope of part 219 would not cover all Sec. 209.303 safety-sensitive
employees, as recommended by the NTSB. FRA believes this more limited
scope is not only data-driven but appropriate given the need to
minimize the burden and costs of implementing the mandate of Section
412. However, as with the first alternative approach discussed above,
FRA is requesting public comment on this alternative.
E. MOW Employees and the Small Railroad Exception
Since the inception of its alcohol and drug program in 1985, FRA
has used the number of covered employees a railroad has (including
covered service contractors and volunteers) as one factor in
determining the railroad's risk of alcohol and drug-related accidents.
See 50 FR 31529, Aug. 2, 1985. For example, FRA believes that generally
small railroads, defined as those railroads that have 15 or fewer
covered employees and no joint operations with other railroads, pose a
lower risk of alcohol and drug-related accidents than larger railroads.
Existing part 219 therefore requires larger railroads (defined as those
railroads that either have 16 or more covered employees or are engaged
in joint operations) to implement all of part 219, while small
railroads have to implement only certain subparts of part 219.
Currently under Sec. 219.3, small railroads do not have to comply with
subpart D (reasonable suspicion and reasonable cause testing), subpart
E (identification of troubled employees), subpart F (pre-employment
testing) and subpart G (random alcohol and drug testing).\9\ The
purpose of this small railroad exception is to limit part 219's
regulatory burden on small railroads without adversely affecting
safety.
---------------------------------------------------------------------------
\9\ As discussed later in this preamble, FRA is proposing to
modify the small railroad exception of Sec. 219.3 so that small
railroads would no longer be exempt from the reasonable suspicion
and pre-employment testing requirements of part 219.
---------------------------------------------------------------------------
FRA's use of a railroad's number of covered employees and
participation in joint operations as measures of the railroad's risk of
alcohol and drug-related accidents is a well-established approach with
which the railroad industry is familiar. FRA is therefore proposing to
continue counting only a railroad's covered employees for purposes of
determining whether the railroad qualifies for the small railroad
exception, particularly since FRA has found no safety rationale for
doing otherwise. This would minimize implementation burdens by
continuing to except a small railroad from full part 219 coverage
provided that the railroad continues to meet Sec. 219.3 criteria.
With respect to a contractor who performs MOW activities for a
railroad, FRA proposes to amend Sec. 219.3 to apply part 219 to a MOW
contractor to the same extent as it applies to the railroad for which
the MOW contractor performs regulated service. As proposed, a
contractor's level of part 219 compliance would be determined by the
size of the railroad for which it is performing regulated service,
regardless of the size of the contractor itself. To achieve this, FRA
is proposing to add new language to the small railroad exception.
Pursuant to this new language, if a contractor performs MOW activities
exclusively for small railroads that are excepted from full compliance
with part 219, the contractor would also be excepted from full
compliance. For example, a MOW contractor with five employees who
perform regulated service for a large railroad would have to implement
a full part 219 program if the railroad for which it performs regulated
service is required to do so, while a MOW contractor with 20 employees
would not have to implement a full part 219 program if it performs
regulated service for a small railroad that is excepted from full
compliance with part 219.
FRA recognizes that a MOW contractor may perform regulated service
for multiple railroads, not all of which may be required to comply
fully with part 219. To simplify application, FRA is proposing to add
new language to the small railroad exception requiring a MOW contractor
who performs regulated service for multiple railroads to implement a
full part 219 program if the contractor performs regulated service for
at least one large railroad fully subject to part 219. Under this
proposal, if a MOW contractor performs regulated service for at least
one large railroad, it would have to incorporate all of its regulated
employees into a full part 219 program, even if only some of these
employees perform regulated service for a large railroad, and
regardless of whether or not a particular employee was currently
performing regulated service for a large or a small railroad. This
approach would allow a MOW contractor the flexibility to allocate its
employees effectively and efficiently by allowing it to use any of its
employees to perform regulated service for a large railroad on any
given day.
Although FRA considered amending the small railroad exception to
allow a railroad to qualify for the small railroad exception if it did
not have joint operations and the combined number of its covered
employees and MOW workers was 15 or fewer, FRA ultimately decided that
this approach would create several difficulties. For example, a
railroad with 15 covered employees and five MOW employees that
currently qualifies as a small railroad would become fully subject to
part 219 if FRA counted the five MOW employees towards the 15 or fewer
cutoff. FRA believes it would be unfair for a railroad's status to
change simply because MOW employees were added to the count, without
any actual change to the railroad's operations or the risks they would
pose.
Counting MOW contractors for purposes of the small railroad
exception would present even more difficult issues. While Sec. 219.3
currently counts contractor employees who perform covered service for a
railroad for purposes of the small railroad exception, this approach
has not been problematic because railroads generally hire covered
service contractors, such as locomotive engineers, conductors, or train
dispatchers, on a long-term basis. Similarly, the demand for signal
service contractors is also stable, so it is fairly easy for a railroad
to count its number
[[Page 43837]]
of covered service employees and contractors at any given time.
In contrast, MOW work is variable, and MOW contractors frequently
move from railroad to railroad. It is not unusual for a MOW contractor
to perform work for a railroad only on a one-time basis. Including MOW
contractors for purposes of the small railroad exception count could
therefore create a situation where a railroad's status would vary from
week to week. For instance, a railroad that loses its small railroad
status after hiring MOW contractors to perform non-routine track
maintenance could revert to small railroad status once its short-term
contract with the MOW contractors expired. If a railroad no longer
qualifies for small railroad status, it is no longer excepted from the
requirement to implement a random testing program. Adoption of criteria
that could result in short-term fluctuations in a railroad's status and
requirements would be impracticable because implementation of a random
testing program is generally a long-term commitment that involves
contracting with collectors and other service providers.
FRA also does not want to encourage the hiring of MOW contractors
in lieu of MOW employees. Accordingly, for purposes of determining
whether a railroad qualifies for the small railroad exception, since
FRA is proposing to exclude contractor employees who perform MOW
activities, FRA similarly proposes to exclude railroad employees who
perform MOW activities. Furthermore, counting a railroad's MOW
employees but not its MOW contractors would inaccurately reflect the
safety risk presented by the railroad's total MOW worker population.
FRA is proposing to maintain its current criteria for the small
railroad exception, but is specifically requesting comment on the
following questions:
Should FRA amend the small railroad exception to consider
MOW employees? If so, should FRA amend its current threshold of 15
employees to account for the increased population of individuals
performing MOW activities and covered service?
Do railroads that currently meet the small railroad
exception of Sec. 219.3 currently perform reasonable cause or random
drug and alcohol testing under their own authority? If so, how does
this small railroad company testing authority differ from the
reasonable cause or random drug and alcohol testing conducted by larger
railroads that fully complies with part 219? Should railroads that meet
the existing small railroad exception also be required to fully comply
with part 219?
In light of the changes in the railroad operating
environment since the inception of the small railroad exception, are
there other approaches to the small railroad exception that FRA should
consider? For example, given the criticality of ensuring the safety of
all rail passenger operations (whether the operations are large or
small), should the small railroad exception be modified, more narrowly
tailored, or removed altogether for passenger operations? Similarly,
given the increase in the volume and frequency of the rail
transportation of DOT-regulated hazardous materials in recent years
(e.g., flammable liquids), should the small railroad exception be
modified, more narrowly tailored, or removed altogether if a railroad
transports hazardous materials? For example, should the small railroad
exception be limited to railroads that do not transport hazardous
materials or that transport only certain low hazard hazardous
materials? Should the exception be limited to railroads that do not
transport hazardous materials above a certain threshold quantity? FRA
is requesting information on the operations of small railroads as
defined under Sec. 219.3: How many of these small railroads transport
passengers and how many currently transport hazardous materials? For
those small railroads that transport hazardous materials, what types of
hazardous materials do they transport?
Although in this NPRM, FRA is not proposing to modify its criteria
for determining when a railroad meets the small railroad exception, FRA
may do so in the final rule after consideration of any comments
received in response to the above questions.
F. Railroad and Contractor Responsibility for Compliance
FRA is proposing to hold both the railroad and the contractor
responsible for ensuring that contractor employees performing regulated
service for a railroad (contractor regulated employees) are in
compliance with part 219. Since Sec. 219.9 currently provides that
every person--including railroad agents and contractors--who violates
or causes a violation of a part 219 requirement may be subject to a
civil penalty, both railroads and contractors performing covered
service for railroads are already responsible for part 219 compliance.
FRA is stressing this provision because the expansion of part 219 to
cover MOW employees would also subject a large population of MOW
contractors to its requirements.
While the RSIA-mandated expansion of part 219 to cover MOW
employees may create complications for a railroad with a large number
of MOW contractors, particularly if those contractors perform MOW
activities for the railroad only on a periodic or temporary basis,
there are several methods that a railroad and a regulated service
contractor could use to ensure compliance with part 219. If a regulated
service contractor is required to establish a random testing program
because it provides regulated service for a railroad that is fully
subject to part 219, the contractor could do any of the following:
Establish its own part 219 program and provide the
railroad with documentation of its compliance with part 219. The
railroad should maintain this documentation for FRA audit purposes. If
the contractor's documentation or program contains a deficiency or
violation that the railroad could not have reasonably detected, FRA
could use its enforcement discretion to take action solely against the
contractor. As discussed earlier in the preamble, the extent of a
regulated service contractor's responsibilities would be determined by
the size of the railroad(s) with which it contracts.
Contract with a consortium to administer its part 219
program. The consortium could either place the contractor's regulated
employees in a stand-alone random testing pool or in a random testing
pool with the regulated employees of other regulated service
contractors. The contractor could then submit documentation of its
membership in the consortium and its compliance with part 219 to the
contracting railroad. As with the method described above, if the
contractor's documentation or program contains a deficiency or
violation that the railroad could not have reasonably detected, FRA
could use its enforcement discretion to take action only against the
contractor. Upon request, FRA would assist a railroad in reviewing the
part 219 documentation of its regulated service contractors.
Have a railroad incorporate contractor employees who
perform regulated service for it into the railroad's own part 219
program.
To minimize the burden of these proposed requirements and to
promote compliance with part 219, FRA has developed model ``fill-in-
the-blank'' alcohol and drug policies (including testing plans) that
can serve as templates for both railroads and contractors. These plans
are currently available at FRA's Web site: https://www.fra.dot.gov/Page/P0345. FRA
[[Page 43838]]
developed one set of plans for entities that are subject to all of part
219 and another for entities that qualify for the small railroad
exception.
FRA expects it to be common practice for a railroad to incorporate
into its own part 219 program all of the contractor employees who
perform regulated service for it, even if one or more of the
contractors has its own part 219 program. A railroad that does so would
ensure that all of its contractor regulated employees are in compliance
with part 219 requirements, particularly the random testing
requirements of subpart G. A railroad that chooses this approach would
incorporate all contractor regulated employees into the railroad's own
random testing program.
One additional option would be for a railroad to accept a
contractor's plan for random testing, regardless of whether that plan
was managed by the contractor or by a consortium/third party
administrator (C/TPA). Although not specifically proposed in the rule
text, FRA is soliciting feedback on the following approach that could
create a framework for a railroad wishing to accept a contractor's
random testing plan. Under this approach, if a railroad accepted a
contractor's random testing plan, the contractor could be required to
comply with the following requirements:
To certify in writing to the railroad that all of the
contractor's regulated employees are subject to alcohol and drug
testing as required by part 219 (including, as applicable, the
requirements that all regulated employees be subject to selection for
random testing as required by subpart G, have a DOT pre-employment drug
test resulting in a negative result under subpart F, and be subject to
a previous employer background check as required by Sec. 40.25); and
To report, in an FRA model format, summary part 219
testing data to the railroad at least every six months.
FRA is soliciting public comment on whether the last alternative
described above would make it easier for a railroad to ensure that its
regulated contractor employees were complying with the requirements of
part 219, without having to incorporate the contractor's regulated
employees into its own part 219 program. If not, how could this
approach be improved? What costs, if any, would it impose? Would
contractors performing regulated service for railroads be willing to
comply with the proposed requirements for written certification and
reporting of summary testing data? Are there other approaches that both
railroads and contractors could use to ensure that all contractor
employees performing regulated service for a railroad are in compliance
with part 219?
G. MOW Employee Random Testing Rate and Minimum Random Testing Pool
Size
As mentioned above, FRA is proposing to require random alcohol and
drug testing for MOW employees (unless they perform regulated service
solely for a railroad qualifying for the small railroad exception of
Sec. 219.3). As with covered employees, FRA would set the minimum
random rates for MOW employees according to the overall reported random
testing violation rate for MOW employees in the railroad industry. See
Sec. Sec. 219.602 and 219.608. Because MOW employees have never been
subject to FRA random testing before, FRA only has data from its PAT
testing of MOW fatalities (described above) on the prevalence of
prohibited alcohol and drug use in the MOW employee population. FRA is
therefore proposing to set the initial minimum annual percentage rates
for MOW employees at 50% for drug testing and 25% for alcohol testing
Although the initial minimum random rates for MOW employees would be
higher than those currently set for covered employees,\10\ FRA set the
same initial minimum random rates for covered employees. (FRA required
random drug and alcohol testing for covered employees in 1988 and 1995,
respectively. See 53 FR 47123, Nov. 21, 1988 and 59 FR 7448, Feb. 15,
1994).
---------------------------------------------------------------------------
\10\ In 2014 the random testing rates for covered employees are
25% for drug testing and 10% for alcohol testing. (See 78 FR 78275,
Dec. 26, 2013).
---------------------------------------------------------------------------
Railroads would initially be required to establish and maintain
separate random testing selection pools for MOW employees. Maintaining
distinct random testing pools for covered and MOW employees would make
it easier for railroads to comply with the different minimum testing
rates set for each employee population. Requiring separate random
testing pools would also make it easier for railroads that are required
to file an annual Management Information System (MIS) report under
Sec. 219.800 to report separate random testing results for covered and
MOW employees. FRA would in turn use the data from these separate pools
to set the future minimum random rates for covered and MOW employees.
Under existing Sec. 219.3, a railroad with 15 or fewer covered
employees must conduct random testing if it has joint operations with
another railroad, even though the railroad's small size may diminish
the deterrence effect of the testing. The purpose of random testing is
to make every regulated employee expect that he or she could be subject
to a random alcohol or drug test any time he or she is on-duty and
subject to performing covered service. FRA is concerned that the random
testing conducted by very small railroads and contractors may have an
insufficient deterrence effect. For example, a railroad with two
covered employees and joint operations need only conduct one random
alcohol test to meet the 10% minimum alcohol testing rate; afterwards,
the railroad's random alcohol testing program would cease to have any
deterrent effect because its covered employees would know that the
alcohol testing required for the year had already been completed. A
contractor who is required to conduct random testing because it
performs regulated service for large railroads would have a similar
problem if it has only a very small number of regulated employees.
As will be further discussed below in the section-by-section
analysis for Sec. Sec. 219.611(c) and 219.613(d), FRA is proposing the
following regulatory change in response to this concern. Any individual
random testing pool required under subpart G (whether maintained by a
railroad, contractor to a railroad, or a consortium) must contain at
least four entries and at least one entry per quarter must be selected
and tested, even if doing so would require testing above FRA's minimum
annual random testing rates. This new requirement would not excuse a
railroad from complying with the minimum random testing percentage
rates. (For example, a pool comprised of 16 MOW employees--who would be
subject to random drug testing at a rate of 50%--would still be
required to conduct at least eight random tests per year.) This
requirement would apply both to railroads and contractors required to
perform random testing.
H. MOW Employee Pre-employment Drug Testing
FRA is proposing to grandfather all current MOW employees from the
pre-employment drug testing requirements of subpart F.\11\ Under FRA's
proposal, only MOW employees hired by a railroad or contractor after
the effective date of the final rule would be required to have a
negative DOT pre-employment drug test result before performing
[[Page 43839]]
regulated service for the first time. As with the minimum random
testing rates discussed above, FRA's approach to implementing pre-
employment drug testing for MOW employees would be similar to its
implementation of pre-employment drug testing for covered employees in
1986, when FRA grandfathered employees who had performed covered
service for a railroad prior to the effective date of the final rule.
See 50 FR 31508, Aug. 2, 1985. Although current MOW employees would not
be subject to a pre-employment drug test, FRA believes its proposal to
initiate random drug testing of MOW employees at a base rate of 50%
would provide sufficient deterrence for this group.
---------------------------------------------------------------------------
\11\ While railroads are currently authorized to conduct pre-
employment alcohol testing for covered employees (so long as they
treat all covered employees the same), such testing is not required
under subpart F. See Sec. 219.502. FRA is not proposing to change
this approach and require pre-employment alcohol testing for
regulated employees.
---------------------------------------------------------------------------
FRA understands that railroads may have already given some MOW
employees a Federal pre-employment drug test (resulting in a negative)
under the alcohol and drug testing regulations of another DOT agency.
The most common area of interagency overlap is among MOW employees who
are required by their employers to hold Commercial Driver's Licenses
(CDL), since these employees are subject to the regulations of both FRA
and the FMCSA. To hold a CDL, an individual must have a negative FMCSA
pre-employment drug test. See Sec. 382.301. To ease the compliance
burden for these employees and their employers, FRA would allow a
negative pre-employment test conducted by an employing railroad under
the rules and regulations of another DOT agency to satisfy the
requirements of subpart F for employees transferring into regulated
service for the first time. FRA has historically interpreted its pre-
employment drug testing requirements this way, and this proposed
amendment would incorporate this interpretation into the regulatory
text. See Federal Railroad Administration, Alcohol and Drug Testing
Regulations (Parts 219 and 40) Interpretive Guidance Manual
(``Interpretive Guidance Manual'') 32 (September 2006), available at
https://www.fra.dot.gov/eLib/Details/L02799.
IV. Signal Contractors
Railroads and contractors should note that the RSIA made signal
contractors subject to part 219. Effective July 16, 2009, section
108(a) of the RSIA amended the HOS laws by eliminating the words
``employed by a railroad carrier'' from the definition of ``signal
employee''. See 49 U.S.C. 21101(4). As a result, contractor employees
who install, repair, or maintain signal systems for a railroad are now
considered covered employees under part 219, and signal contractors are
responsible for compliance with part 219 to the same extent as any
other covered service contractors. This statutory change does not
necessitate any amendments to part 219. Nevertheless, FRA is mentioning
this change to ensure that it is understood by the railroad industry.
V. Other Proposed Substantive Amendments
This section contains a brief overview of the proposed amendments
in this NPRM other than those discussed above. These proposed
amendments will be discussed in greater detail in the section-by-
section analysis below.
A. Small Railroads Would No Longer Be Excepted From the Requirements
for Reasonable Suspicion Testing and Pre-Employment Drug Testing
Currently, the small railroad exception in Sec. 219.3(b)(2)
provides, in part, that a railroad with 15 or fewer covered employees
that does not engage in joint operations with another railroad is not
subject to the requirements for reasonable suspicion or reasonable
cause testing (subpart D), identification of troubled employees
(subpart E), pre-employment drug testing (subpart F), or random testing
(subpart G).
FRA is proposing to modify the small railroad exception so that
small railroads are no longer excepted from the reasonable suspicion
testing requirements of subpart D. Subpart D requires railroads to
conduct Federal reasonable suspicion testing on a covered employee when
one or more supervisors reasonably suspects that the employee has
violated an FRA prohibition against the use of alcohol or drugs. See
Sec. 219.300(a). Small railroads would continue to be excepted,
however, from the requirements for reasonable cause testing.\12\
---------------------------------------------------------------------------
\12\ As discussed in Section VI below, FRA is proposing to
separate the requirements for reasonable suspicion and reasonable
cause testing by leaving the reasonable suspicion requirements in
their current location in subpart D and moving the reasonable cause
testing requirements to a new subpart E.
---------------------------------------------------------------------------
FRA is also proposing to amend the small railroad exception so that
small railroads are no longer excepted from subpart F, which requires a
railroad to conduct a pre-employment drug test (resulting in a
negative) on an individual before permitting him or her to perform
regulated service for the first time. See Sec. 219.501(a). This
proposed amendment would apply only to regulated employees hired by a
small railroad after the effective date of a final rule (i.e., a
negative pre-employment drug test would not be required for regulated
employees hired by a small railroad before the effective date of any
final rule issued in this proceeding).
B. For Purposes of the Small Railroad Exception, a new Definition of
``Joint Operations'' Would Be Incorporated
The small railroad exception is currently available to railroads
that have 15 or fewer covered employees and do not operate on another
railroad's tracks in the United States or otherwise engage in joint
operations with another railroad in the United States, except as
necessary for purposes of interchange. See Sec. 219.3(b)(2)(ii). While
the small railroad exception uses the phrase ``joint operations,'' this
term has never been defined in part 219. As a result, the meaning of
``joint operations'' has been open to different interpretations. In
order to support uniform application of the small railroad exception,
FRA is proposing to add a definition of ``joint operations'' to part
219.
C. The Post-Accident Toxicological (PAT) Testing Damage Threshold for
Major Train Accidents Would Be Increased
Part 219 currently requires railroads to conduct PAT testing for
major train accidents,\13\ defined in part as train accidents that
involve damage to railroad property of $1,000,000 or more. See Sec.
219.201(a)(1)(iii). (A train accident also qualifies as a major train
accident if it meets the current reporting threshold and involves
either a fatality or a hazardous materials release accompanied by an
evacuation or a reportable injury resulting from the hazardous material
release. See Sec. 219.201(a)(1)(i)-(ii).) FRA is proposing to increase
the railroad property damage threshold for major train accidents to
$1,500,000 to account for inflation. Since major train accidents
require all involved crew members to be PAT tested, this proposed
change would reduce the burden on railroads (e.g., employee opportunity
and wage costs) by reducing the number of employees subject to PAT
testing.
---------------------------------------------------------------------------
\13\ PAT testing is also required for events that meet FRA's
criteria for impact accidents, fatal train incidents, or passenger
train accidents. See Sec. 219.201(a)(2)-(4).
---------------------------------------------------------------------------
D. Derailment and Raking Collisions Would No Longer Be Excluded From
the Definition of Impact Accidents
Part 219 also requires railroads to conduct PAT testing for impact
accidents. Section 219.5 currently excludes from the definition of
``impact accident'' derailment accidents, where a derailment of
equipment causes an impact with other rail equipment, and
[[Page 43840]]
raking collisions (i.e., collisions caused by derailment of rolling
stock or operation of equipment in violation of clearance limitations).
FRA is proposing to remove these existing exclusions, and require PAT
testing after both derailment and raking collisions.
E. PAT Testing Would Be Required for Railroad Highway-Rail Grade
Crossing Accidents/Incidents Involving Human-Factor Errors
Currently, Sec. 219.201(b) excepts from PAT testing any event
involving a ``collision between railroad rolling stock and a motor
vehicle or other highway conveyance at a rail/highway grade crossing.''
FRA is proposing to narrow this exception to require PAT testing after
any highway-rail grade crossing accident/incident in which human-factor
errors may have played a role.
F. The Provisions Governing When Regulated Employees Could Be Recalled
for PAT Testing Would Be Amended
Currently, a railroad may recall a covered employee for PAT testing
only if three conditions are met: (1) the employee was released from
duty under the normal procedures of the railroad; (2) the railroad's
preliminary investigation indicates a clear probability that the
employee played a major role in the cause or severity of the accident/
incident; and (3) the accident/incident occurred while the employee was
on duty. See Sec. 219.203(b)(4). To improve its investigation of
human-factor related accidents, FRA is proposing, not only to lower its
threshold for employee recall by removing the requirement for the
accident/incident to have occurred while a regulated employee was on
duty, but also to require employee recall in certain circumstances.
G. Federal Reasonable Cause Testing Would Be Authorized Only for
Reportable ``Train Accidents'' and ``Train Incidents''
FRA believes the use of ``accident/incident'' in the introductory
text of existing Sec. 219.301(b)(2) has led to confusion regarding
whether reasonable cause testing is permitted following all part 225
reportable accidents/incidents, which would include reportable events
such as occupational illnesses and railroad casualties unconnected to
the operation of on-track equipment. Because FRA never intended to
authorize reasonable cause testing following occupational illness cases
(e.g., carpal tunnel syndrome) and casualties unconnected to the
movement of on-track equipment (e.g., slips-trips-and-falls resulting
from safety concerns under the jurisdiction of the Occupational Safety
and Health Administration (OSHA)), FRA is proposing to revise this
existing language to specify that FRA reasonable cause testing is only
authorized after ``train accidents'' (defined to include rail equipment
accidents meeting the part 225 reporting threshold) and ``train
incidents'' (defined to include events involving the operation of
railroad on-track or fouling equipment resulting in a casualty, but in
which the part 225 reporting threshold is not met). For the reasons
discussed in VI.A below, FRA is proposing to include this revised
language at Sec. 219.403(b).
H. Federal Reasonable Cause Testing Would Be Authorized for Additional
Operating Rule Violations or Other Errors
As mentioned above, FRA reasonable cause testing is also authorized
after certain railroad operating rule violations and other errors
specified in Sec. 219.301(b)(3). Currently, these rule violations and
errors listed are primarily directed at covered employees. FRA is
proposing to add rule violations and errors that would specifically
address employees performing MOW activities, and to add others directed
at signal workers performing covered service or reflect recent
amendments to 49 CFR part 218, Railroad Operating Practices.
I. Part 219 Would Be Amended To Conform Certain Provisions to the Final
Conductor Certification Rule
On November 9, 2011, FRA published a final rule requiring the
certification of conductors (49 CFR part 242), which was also mandated
by the RSIA. (76 FR 69802, Nov. 9, 2011). This final rule became
effective January 1, 2012. Id. FRA is therefore proposing to amend part
219 so that those sections that apply to the certification of
locomotive engineers would also clearly apply to the certification of
conductors. The proposed definition for a Drug and Alcohol Counselor
(DAC) is one of these conforming amendments.
VI. Primary Clarifying Amendments
FRA is proposing several amendments that would both improve the
organization of part 219 and make it easier to find pertinent
requirements and information. Although these proposed amendments are
discussed in the section-by-section analysis below, for the reader's
convenience, a brief description of the major organizational amendments
is included here.
A. Reasonable Suspicion and Reasonable Cause Testing Would Be Separated
Into Different Subparts, Resulting in the Re-Designation of Other
Subparts
Currently, the requirements for reasonable suspicion testing and
reasonable cause testing are both found in subpart D. Because of their
similar names and the placement of both types of tests in subpart D,
railroads often confuse one type of testing with the other, even though
reasonable suspicion and reasonable cause testing have very different
requirements. To clarify the substantive differences between the two,
FRA is proposing to retain the requirements for reasonable suspicion
testing in subpart D but move the requirements for reasonable cause
testing to subpart E, which currently covers voluntary referral and co-
worker report policies. The proposed separation of reasonable suspicion
and reasonable cause testing into different subparts is intended to
help railroads distinguish between these two types of testing. This
differentiation should be particularly helpful for small railroads,
since FRA is proposing to require that those railroads implement
reasonable suspicion, but not reasonable cause testing. To accommodate
the movement of reasonable cause testing into subpart E, FRA is
proposing to move (and amend as discussed below) the sections
addressing the ``Identification of Troubled Employees'' currently found
in that subpart to new subpart K, ``Peer Prevention Programs.''
B. Random Alcohol and Drug Testing Requirements Would Be Reorganized
and Clarified
FRA is proposing to revise and expand subpart G, which contains
FRA's requirements for random alcohol and drug testing, to clarify
these requirements and to incorporate published FRA guidance. See
generally FRA, Part 219 Alcohol/Drug Program Compliance Manual, 2nd
edition (2002) available at https://www.fra.dot.gov/eLib/details/L01186
(Compliance Manual). In addition, FRA is proposing several substantive
amendments which will be discussed below in the section-by-section
analysis.
C. Substituting ``Drug and Alcohol'' for ``Alcohol and Drug''
FRA has previously used both ``Drug and Alcohol'' and ``Alcohol and
Drug'' as terms to describe its part 219 program and many of its
components. For consistency, FRA is proposing to use only the term
``Drug and Alcohol'' throughout part 219 and to substitute
[[Page 43841]]
``Drug and Alcohol'' wherever the term ``Alcohol and Drug'' is
currently used.
VII. Section-by-Section Analysis
As discussed earlier, FRA is proposing to add definitions for
``regulated employee'' and ``regulated service'' which would serve as
terms-of-art encompassing all individuals and duties subject to part
219, including both covered service and MOW activities. Throughout most
of part 219, FRA would replace the terms ``covered employee'' and
``covered service'' with ``regulated employee'' and ``regulated
service.'' The terms ``covered employee'' and ``covered service,''
however, would still be used where necessary, such as in proposed Sec.
219.12, which addresses issues of overlap between part 219 and the HOS
laws that apply only to covered employees.
Throughout this NPRM, FRA is also proposing small changes to
conform the regulatory language, where necessary, to the proposed
substantive and reorganization amendments. To streamline this NPRM, FRA
is not discussing most of these minimal clarifying amendments, none of
which are intended to affect the regulation's substantive requirements.
Authority Citation
The authority citation for part 219 would be amended to add a
reference to Section 412, which mandated the expansion of part 219 to
cover all employees of railroads and contractors or subcontractors to
railroads who perform MOW activities.
Subpart A--General
Section 219.1--Purpose and Scope
Currently, this section states that the purpose of part 219 is to
``prevent accidents and casualties in railroad operations that result
from impairment of employees by alcohol or drugs.'' FRA is proposing to
amend this section to include a reference to the proposed definition of
``employee'' in Sec. 219.5, which, as used in part 219, would include
any individual (including a volunteer or a probationary employee) who
performs regulated activities for a railroad or a contractor to a
railroad. FRA is not proposing to include a similar reference every
time ``employee'' is used, but believes it is appropriate to do so the
first time it appears in part 219.
Section 219.3--Application
FRA is proposing the following structural and substantive
amendments to this section.
Paragraph (a)
FRA proposes to amend paragraph (a) to apply part 219 to all
railroads, except as provided in proposed paragraphs (a)(1)-(3) and
paragraphs (b), (c), and (d) of the section.
The first exception, contained in proposed paragraph (a)(1),
addresses operations that occur within the confines of industrial
installations commonly referred to as ``plant railroads.'' Plant
railroads are typified by operations such as those in steel mills that
do not go beyond the plant's boundaries and that do not involve the
switching of rail cars for entities other than themselves. This
exception for plant railroads is currently found in paragraph (b)(1) of
this section, but FRA believes it belongs more appropriately with the
general applicability provisions of paragraph (a) (this will also
permit proposed paragraph (b) to be dedicated solely to reporting
requirements, as discussed below). FRA is also amending this language
to specify that there is a definition of ``plant railroads'' in Sec.
219.5.
Proposed paragraph (a)(2) addresses operations commonly described
as tourist, scenic, or excursion service to the extent that they occur
on tracks that are not part of the general railroad system. FRA has
decided to except tourist, scenic, historic, or excursion rail
operations that are not part of the general system, regardless of
whether they are insular or non-insular rail operations. FRA has
elected to exclude these typically small operations from the
requirements of part 219 because of the limited safety risk that these
operations pose to members of the public due to the fact that their
operations do not take place on the general system. This is new
language for this section, but reflects FRA's tradition of exercising
its jurisdiction in a way that excludes tourist, scenic, historic, or
excursion operations that are not part of the general railroad system
of transportation from certain portions of its regulations. See
Statement of Agency Policy Concerning Enforcement of the Federal
Railroad Safety Laws, The Extent and Exercise of FRA's Safety
Jurisdiction, 49 CFR part 209, Appendix A (FRA's Policy Statement or
the Policy Statement).
Proposed paragraph (a)(3) would except from part 219 rapid transit
operations in an urban area that are not connected to the general
system (although rapid transit type operations with links to the
general system would continue to be covered by part 219). This
exception is currently found in paragraph (a)(2), which excepts
railroads that ``provide commuter or other short-haul rail passenger
service in a metropolitan or suburban area (as described by 49 U.S.C.
20102) in the United States.'' The new language in proposed paragraph
(a)(3) would conform part 219's language to that used in the
applicability sections of other FRA regulations without changing the
scope of the exception.
Paragraph (b)
Paragraph (b) currently contains three different exceptions that
are unique to part 219 and are available to both foreign and domestic
railroads. To clarify these exceptions, and make them easier to find
FRA is proposing to separate them into individual paragraphs as
follows:
As discussed above, the ``plant railroad'' exception would
remain the same but would be moved from its current location in
paragraph (b)(1) to proposed paragraph (a)(1). This exception is a
general statement about FRA's jurisdiction and more properly belongs
with the general applicability provisions.
The exception in current paragraph (b)(2) for railroads
with 15 or fewer covered employees that do not engage in joint
operations with other railroads (the ``small railroad exception'')
would be moved to paragraph (c) and amended to remove the exceptions
related to reasonable suspicion testing and pre-employment testing.
The exception in current paragraph (b)(3) would remain in
paragraph (b), but the paragraph would be renamed ``Annual report
requirements.''
Paragraph (c)
As noted above, FRA is proposing to move the small railroad
exception in existing paragraph (b)(2) to proposed paragraph (c) and to
move the language currently in paragraph (c) relating to exceptions
that apply only to foreign railroads to a new paragraph (d). In
addition, because FRA is proposing to require that small railroads
perform both reasonable suspicion and pre-employment drug testing
(discussed below), paragraph (c)(1) would be amended to state that
small railroads are excepted only from subparts E (reasonable cause
testing), G (random testing), and K (peer support programs).
Small Railroads Would No Longer Be Excepted From Reasonable
Suspicion Testing
Section 219.11(g) currently requires all railroads to ensure that
supervisors who are responsible for covered employees are trained in
the signs and symptoms of alcohol and drug abuse.
[[Page 43842]]
(This provision also requires railroads to train covered employee
supervisors on FRA PAT testing criteria.) This requirement applies to
small railroads as well, even though they are currently excepted from
having to conduct reasonable suspicion testing in accordance with
current Sec. 219.3(b)(2). Because small railroads must already meet
the mandatory supervisory training requirements in Sec. 219.11(g), FRA
believes that removing the current exception and requiring small
railroads to conduct reasonable suspicion testing would promote safety
with fairly low additional costs.
The proposed expansion of part 219 to include MOW activities would
require supervisors of employees who perform MOW activities to also
comply with the training requirements in Sec. 219.11(g). As with
supervisors of covered employees, all railroads, regardless of size,
must ensure that supervisors of employees who perform MOW activities
have been trained on reasonable suspicion and post-accident testing
criteria.
Small Railroads Would No Longer Be Excepted From Pre-
employment Drug Testing
Current paragraph (b)(2) excepts small railroads from the
requirement to conduct pre-employment drug testing. FRA is proposing to
remove this exception, because many small railroads already pre-
employment drug test all applicants (not just those applying for
covered service) under their own company authority. This has resulted
in many small railroads mistakenly using DOT forms to conduct company
authority pre-employment drug tests. Requiring small railroads to use
only FRA authority for pre-employment drug tests of regulated employees
would address this problem, and would also eliminate the ability of
individuals to dodge FRA pre-employment drug tests by applying to small
railroads instead of larger ones. The removal of the current small
railroad exception to pre-employment drug testing would also make FRA's
pre-employment testing policy consistent with that of other DOT modes,
since no other DOT agency excepts small employers from conducting pre-
employment drug tests. This proposed amendment would only apply to
regulated employees who are hired by small railroads after the
effective date of any final rule.
Furthermore, FRA believes the reasons behind its initial decision
to except small railroads from pre-employment drug testing no longer
apply. In 1986, when FRA's pre-employment drug testing requirements
went into effect, small railroads could not benefit from economies of
scale because drug testing was new and collection and other test costs
were high. See 49 FR 24293, June 12, 1984. This is no longer true
today, as the workplace drug testing industry is well-established, and
collectors, laboratories, and other service agents are widely
available. Furthermore, drug use is now a significant issue in many
small communities where small railroads operate.
Other Proposed Amendments to the Small Railroad Exception
FRA is proposing to amend the introductory text of paragraph (c)(1)
to clarify that small railroads are not authorized to perform Federal
alcohol and drug testing under the subparts from which they are
excepted. In other words, in addition to not requiring small railroads
to conduct Federal reasonable cause or random testing, FRA is also not
authorizing small railroads to conduct such testing. The proposed
amendment would therefore clarify that small railroads are prohibited
from conducting reasonable cause or random testing under Federal
authority, and may only do so under their own authority. (FRA is also
proposing to amend this paragraph to incorporate the small railroad
criteria currently found in Sec. 219.3(b)(2), no substantive change is
intended.)
FRA proposes to amend the small railroad exception for proposed
subpart K (Peer Support Programs) differently. Because FRA wants to
limit the regulatory burden on small entities, FRA is not proposing to
require small railroads to implement peer support programs. However,
FRA does not want to prohibit small railroads from voluntarily
implementing peer support programs such as those contemplated by new
proposed subpart K. Accordingly, FRA proposes to authorize small
railroads to implement peer referral and support programs because these
programs encourage and facilitate the referral and rehabilitative
support of regulated employees who abuse alcohol or drugs. This
proposed exception from proposed subpart K would be the only exception
which would neither require, nor prohibit, small railroads from
implementing the requirements of part 219 under FRA authority.
As discussed in section III.F of this preamble, paragraph (c)(2)
would state that a regulated employee who performs only MOW activities
would not be counted when determining whether the railroad had 15 or
fewer covered employees as required to meet the small railroad
exception.
Also as discussed in section III.F of this preamble, paragraph
(c)(3) would state that a contractor must perform MOW activities
exclusively for small railroads in order to qualify for the small
railroad exception.
As previously discussed in section III.G of this preamble, under
proposed paragraph (c)(4), if a contractor is subject to all of part
219 (including subparts E, G, and K) because it performs regulated
service for at least one railroad that is not a small railroad, only
those railroads which must also comply with all of part 219 (in other
words, railroads that do not qualify for the small railroad exception)
would share responsibility for ensuring the contractor's full
compliance with part 219. If the contractor also performs regulated
service for small railroads, these small railroads would not share
responsibility for the contractor's full compliance.
Public Comment Invited
Currently, a railroad's HOS contractors are counted when
determining whether a railroad qualifies for the small railroad
exception. Part 219 makes no distinctions, however, for those HOS
contractors who work for a railroad only on a temporary basis. FRA is
asking for comment on whether such a distinction should be made. For
example, should a small railroad still qualify for the exception if it
temporarily engages enough HOS contractors (e.g., signal contractors)
to bring its number of covered employees above the 16 employee
threshold? If so, how long can an HOS contractor work for the railroad
and still be considered a ``temporary'' employee?
Paragraph (d)
FRA is proposing to move the applicability exceptions that apply
only to foreign railroads to a new paragraph (d), which would be
entitled ``Foreign railroads.'' The following structural and
clarification amendments are also being proposed:
New language in paragraph (d)(1) would clarify that part
219 does not apply to the operations of a foreign railroad that occur
outside the United States. For example, a major train accident on a
foreign railroad that occurred outside the United States would not be
subject to FRA's PAT testing requirements under subpart C. This would
not be a new exception, but rather a clarification of current
requirements.
FRA would combine the exceptions currently in paragraphs
(c)(1) and (c)(2) into new paragraph (d)(2), since both exceptions
exclude certain foreign
[[Page 43843]]
railroad operations from subparts E through G. The intent of this
proposed consolidation is to improve clarity and reduce redundancy, and
no substantive changes are intended. FRA would also amend these
exceptions to incorporate the proposed move of peer programs from
subpart E to new subpart K (see discussion above).
Section 219.4--Recognition of a Foreign Railroad's Workplace Testing
Program
This section contains provisions regarding the recognition of a
foreign railroad's workplace testing program as a ``compatible
alternative'' to certain requirements of part 219. FRA is proposing
minimal clarifying amendments to this section, none of which are
intended to affect its substantive requirements. Paragraphs (a)(1) and
(b)(1) would be amended to reflect that FRA is proposing to move
existing subpart E (Identification of Troubled Employees) to a new
subpart K (Peer Support Programs). The final sentence of paragraph
(b)(1) would be further amended to correct a mistaken reference to
subpart E that should be a reference to the pre-employment testing
requirements of subpart F.
Paragraph (b)(2) would be amended to clarify what type of
requirements are contained in the various referenced subparts. For
example, FRA is proposing to clarify that subpart C contains the
requirements for PAT testing.
Section 219.5--Definitions
FRA is proposing to amend the definitions section of part 219 to
add several new definitions, to revise and clarify certain current
definitions, and to delete unnecessary definitions.
New Definitions
Administrator
A new definition of ``Administrator'' would clarify that the term
means the Administrator of the FRA or the Administrator's delegate.
Associate Administrator
A new definition of ``Associate Administrator'' would clarify that
the term means the FRA's Associate Administrator for Railroad Safety/
Chief Safety Officer or the Associate Administrator's delegate.
Category of Regulated Employee
A new definition, ``category of regulated employee,'' would mean a
broad class of either covered employees or MOW employees. For the
purpose of determining random testing rates under proposed Sec.
219.625, if an individual performs both covered service and MOW
activities, he or she would be placed in the category which comprises
the majority of his or her regulated service. For example, an
individual who performs covered service 45 percent of the time and MOW
activities 55 percent of the time should be placed in the random
testing pool for MOW employees.
Contractor
A new definition of ``contractor'' would clarify that this term
includes both a contractor and a subcontractor performing functions for
a railroad.
Counselor
FRA is proposing to add this term to encompass a Drug and Alcohol
Counselor (as discussed below), Employee Assistance Program Counselor,
or Substance Abuse Professional, since most, but not all, of the
education, counseling, and treatment requirements in new subpart K
could be conducted by a person who meets the credentialing and
qualification requirements for any of these professions.
DOT-Regulated Employee
A new definition of ``DOT-regulated employee'' would clarify that
this term means any person who is subject to drug testing and/or
alcohol testing under any DOT agency regulation. This term would
include both individuals currently performing DOT safety-sensitive
functions (as designated in other DOT agency regulations) and
applicants for employment subject to DOT pre-employment drug testing.
DOT Safety-Sensitive Duty or DOT Safety-Sensitive Function
A new definition of ``DOT safety-sensitive duty'' or ``DOT safety-
sensitive function'' would clarify that these terms mean a function
designated by a DOT agency, the performance of which makes an
individual subject to the drug testing and/or alcohol testing
requirements of that DOT agency. For part 219 purposes, the performance
of regulated service would be a DOT safety-sensitive duty or function.
Drug and Alcohol Counselor or DAC
FRA is proposing to adopt a definition for ``Drug and Alcohol
Counselor'' or ``DAC'' from 49 CFR 242.7. As specified in Sec.
242.111, an individual whose records show a conviction or other State
action for abuse of drugs or alcohol, must be evaluated and
successfully treated by a DAC as a condition of conductor
certification. Although a DAC must meet the same credentialing
requirements as a Substance Abuse Professional (SAP), this evaluation
and treatment may not be called a SAP evaluation because Sec. 40.3
specifies that a SAP may provide such services only after a violation
of a DOT alcohol and drug regulation, and a conviction or other State
action (e.g., driving while impaired) is not a violation of part 219.
Employee
FRA is proposing to adopt a new definition of ``employee'' to
clarify that this term includes any individual (including volunteers
and probationary employees) performing activities for a railroad or a
contractor to a railroad. The proposed amendment would incorporate
previous FRA guidance that volunteers who perform covered service are
to be considered covered employees. See Compliance Manual 2.2.
Employee Assistance Program Counselor or EAP Counselor
FRA is proposing to restore to part 219 the term ``Employee
assistance program counselor or EAP counselor.'' A previous definition
of ``EAP counselor'' was removed when FRA amended part 219 to conform
to subpart P of part 40, which requires an evaluation by a SAP when an
employee has violated a DOT drug or alcohol regulation (i.e., by
refusing to take or having a positive result on a DOT alcohol or drug
test). See 59 FR 7457, Feb. 15, 1994. A part 219 definition of
``Employee assistance program counselor or EAP counselor'' is still
required, however, because a SAP's role is to evaluate an employee
after he or she has committed an DOT alcohol or drug testing violation,
but Sec. 219.403, which governs voluntary referrals, specifies that an
employee may only self-refer before he or she has committed a violation
of Sec. Sec. 219.101 or 219.102. The proposed definition of ``Employee
assistance program counselor or EAP counselor'' is adapted from the
``EAP counselor'' definition in Sec. 240.7 of FRA's locomotive
engineer certification regulations.
Evacuation
For clarification purposes, FRA is proposing to define the term
``evacuation,'' which, when accompanying a release of hazardous
material lading from railroad equipment, is listed in Sec.
219.201(a)(1)(ii)(A) as one of the criteria which determines whether a
train accident qualifies as a ``major train accident'' requiring the
PAT testing of all crew members involved. This has been one of the
criteria for PAT testing since the inception of the program. See 50 FR
31508, Aug. 2, 1985.
[[Page 43844]]
To qualify as an evacuation for purposes of PAT testing, an event
must involve the relocation of at least one person who is not a
railroad employee to a safe area in order to avoid exposure to a
hazardous material release. This relocation would normally be ordered
by local authorities and could be either mandatory or voluntary. The
definition would not include the closure of public roadways for
hazardous material spill containment purposes, unless that closure was
accompanied by an evacuation order. FRA is specifically requesting
public comment on whether the proposed definition would help railroads
make PAT testing determinations and whether it properly encompasses the
various events that should qualify as an evacuation.
Flagman, Fouling a Track
To clarify FRA's proposed requirements for employees who perform
MOW activities, FRA would add definitions of ``flagman'' and ``fouling
a track,'' both of which are modeled on the definitions in Sec. 214.7
of FRA's roadway worker regulations.
Highway-Rail Grade Crossing
FRA also proposes to incorporate the definition of ``highway-rail
grade crossing'' found in Sec. 225.5 of its accident and incident
reporting regulations. The proposed incorporation of a part 225
definition into part 219 would lessen the burden on entities who have
to comply with both regulations by maintaining consistency between the
regulations and by making it unnecessary to refer to part 225 to
determine what a ``highway-rail grade crossing'' means in part 219. By
incorporating part 225's definition of a ``highway-rail grade
crossing'' into part 219, FRA proposes to incorporate part 225's
guidance on this term as well. See FRA, FRA Guide for Preparing
Accident/Incident Reports (Guide), 23-24 (2011), available at https://safetydata.fra.dot.gov/officeofsafety/ProcessFile.aspx?doc=FRAGuideforPreparingAccIncReportspubMay2011.pdf,
which states that all crossing locations within industry and rail
yards, ports, and dock areas are considered to be highway-rail grade
crossings.
Highway-Rail Grade Crossing Accident/Incident
A new definition of ``highway-rail grade crossing accident/
incident'' would clarify the meaning of the phrase as used in part 219.
The proposed definition is essentially identical to language describing
highway-rail grade crossing impacts found in the definition for
``accident/incident'' in FRA's accident and incident reporting
regulations. See 49 CFR 225.5. As with the proposed definition for
``highway-rail grade crossing,'' FRA believes maintaining consistency
between part 219 and part 225 will minimize confusion for regulated
entities.
Joint Operations
As discussed earlier, FRA is proposing to add a definition of
``joint operations'' to clarify the meaning of that term as used in the
small railroad exception of Sec. 219.3. This proposed definition,
which is not intended to make any substantive changes or to create any
additional burdens on small railroads, would define joint operations as
``rail operations conducted by more than one railroad on the same track
(except for certain minimal joint operations necessary for the purpose
of interchange), regardless of whether such operations are the result
of contractual arrangements between the railroads, order of a
governmental agency or a court of law, or any other legally binding
directive.'' FRA interprets the phrase ``rail operations'' in this
definition broadly, so that it would encompass dispatching and other
types of operations. For example, a railroad that has fewer than
sixteen covered employees but dispatches trains for another railroad
would be considered to have joint operations with that railroad.
A railroad entering another railroad's yard to perform switching
operations would also constitute joint operations. For purposes of this
definition, railroads that operate on the same track would not be
conducting joint operations if their respective operations are
absolutely separated by physical means, such as a split rail derail or
the removal of a section of rail, and there is no physical possibility
that the railroads' respective operations could overlap on the same
track. However, this exclusion from joint operations would not apply
when one railroad merely agrees, whether informally or by contract, not
to engage in operations on the same track as another railroad, or when
railroad operations are only temporally separated because they operate
over the same track at different times of the day.
The proposed definition would also exclude certain minimal joint
operations necessary for the purpose of interchange, so long as: (1)
The maximum authorized speed for operations on the shared track does
not exceed 20 mph; (2) operations are conducted under restricted speed
(operating rules that require every locomotive and train to proceed at
a speed that permits stopping within one half the range of vision of
the locomotive engineer); (3) the maximum distance for operations on
the shared track does not exceed three miles; and (4) any operations
extending into one of the railroad's yards are for the sole purpose of
setting out or picking up cars on a designated interchange track. By
excluding the above operations from its proposed ``joint operations''
definition, FRA would focus scarce agency resources on the operations
with the greatest safety risk.
Maintenance-of-Way Activities or MOW Activities, Maintenance-of-Way
Employee or MOW Employee
As discussed earlier, FRA would add definitions of ``maintenance-
of-way activities or MOW activities'' and ``maintenance-of-way employee
or MOW employee'' as part of its proposed expansion of part 219 to
cover employees who perform MOW activities.
FRA's proposed definition of MOW employee would cover any employee
(as defined in proposed Sec. 219.5, this would include volunteers and
probationary employees) who performs MOW activities for a railroad or a
contractor to a railroad. As discussed above, MOW activities would be
defined to include (in part) activities such as the inspection, repair,
or maintenance of track, roadbed, or electric traction systems and the
operation of on-track or fouling equipment utilized for the inspection,
repair, or maintenance of track, roadbed, or electric traction systems.
On-Track or Fouling Equipment
FRA would add a new definition of ``on-track or fouling equipment''
that would include any railroad equipment positioned on or over the
rails or fouling a track. In this proposed definition, FRA provides
examples of what would be considered on-track or fouling equipment,
including trains, locomotives, cuts of cars, single cars, motorcars,
yard switching trains, work trains, inspection trains, track motorcars,
highway-rail vehicles, push cars, or other roadway maintenance machines
(such as ballast tamping machines), if this equipment is positioned on
or over rails or is fouling a track.
Other Impact Accident
FRA would add a definition of ``other impact accident'' to clarify
the meaning of the phrase as it is used in FRA's proposed amendment to
the definition of ``impact accident.'' As defined, an ``other impact
accident'' would include any accident/incident involving contact
[[Page 43845]]
between on-track or fouling equipment that is not otherwise classified
as another type of collision (e.g., a head-on collision, rear-end
collision, side collision, raking collision, or derailment collision).
This definition would also include impacts in which single cars or cuts
of cars are damaged during operations involving switching, train
makeup, setting out, etc.
Person
A new definition of ``person'' would clarify that this term means
an entity of any type covered under 1 U.S.C. 1, including, but not
limited to, the following: A railroad; a manager, supervisor, official,
or other employee or agent of a railroad; any owner, manufacturer,
lessor, or lessee of railroad equipment, track, or facilities; any
independent contractor providing goods or services to a railroad, such
as a service agent performing functions under part 40 of this title;
and any employee of such owner, manufacturer, lessor, lessee, or
independent contractor. While similar to the definition currently found
in Sec. 219.9, under this proposed definition a ``person'' would
specifically include an independent contractor who provides goods or
services to a railroad, such as a service agent (e.g., a collection
site, laboratory, Substance Abuse Professional (SAP), or other entity)
that provides alcohol and drug testing services to a railroad subject
to part 219 and part 40. See 49 CFR part 40, subpart Q--Roles and
Responsibilities of Service Agents. This definition would be added for
clarification purposes only, since railroad service agents are already
required to comply with both part 219 and part 40.
Plant Railroad
A new definition of plant railroad would clarify the meaning of
that term as used in Sec. 219.3. This proposed definition reflects
FRA's longstanding approach, consistent with its published policy
statement referenced below, of excluding certain plant operations from
the exercise of its jurisdiction.
In Sec. 219.3, FRA would continue to except plant railroads, as
defined in proposed Sec. 219.5, from the requirements of this part.
Although FRA's Statement of Agency Policy Concerning Enforcement of the
Federal Railroad Safety Laws, The Extent and Exercise of FRA's Safety
Jurisdiction, 49 CFR part 209, appendix A (FRA's Policy Statement or
the Policy Statement) already explains in detail when an entity's
operations qualify for plant railroad status, FRA proposes to
incorporate this language into a new definition of ``plant railroad''
to make these qualifications easier to find. To enable better
understanding of this term, the proposed definition would also
incorporate language clarifying when an entity's operations do not
qualify for plant railroad status. The proposed definition of the term
``plant railroad'' is consistent with FRA's Policy Statement that
provides that the agency will exercise its safety jurisdiction over a
rail operation that moves rail cars for entities other than itself
because those movements bring the track over which the entity is
operating into the general system. FRA's Policy Statement specifically
provides that ``operations by the plant railroad indicating it [i]s
moving cars on . . . trackage for other than its own purposes (e.g.,
moving cars to neighboring industries for hire)'' brings plant track
into the general system and thereby subjects it to FRA's safety
jurisdiction. This interpretation of the term ``plant railroad'' has
been upheld in litigation before the U.S. Court of Appeals for the
Fifth Circuit. See Port of Shreveport-Bossier v. Federal Railroad
Administration, No. 10-60324 (5th Cir. 2011) (unpublished per curiam
opinion).
Raking Collision
A new definition for ``raking collision'' would clarify that a
raking collision occurs when there is a collision between parts, with
the lading of a train on an adjacent track, or with a structure such as
a bridge. Collisions that occur at a turnout are not considered raking
collisions. The proposed definition is identical to the definition of
raking collision contained in FRA's guidance regarding accident/
incident reporting. See FRA Guide for Preparing Accident/Incident
Reports at 20 (Accident Reporting Guide).
Regulated Employee and Regulated Service
As discussed in section III.B of this preamble, FRA is proposing a
new term ``regulated employee.'' As proposed, ``regulated employee''
would refer to all employees who are subject to part 219, including
covered employees and MOW employees, and employees of a railroad or a
contractor to a railroad who perform covered service or MOW activities.
Another new proposed definition of ``regulated service'' would mean the
duties which regulated employees perform that make them subject to part
219.
Responsible Railroad Supervisor
FRA would incorporate the description of ``responsible railroad
supervisor'' currently in Sec. 219.302(d) into a new definition of
this term.
Side Collision
As with ``raking collision,'' FRA proposes to add a definition of
``side collision'' taken from the Accident Reporting Guide. A side
collision occurs when one consist strikes the side of another consist
at a turnout, and includes collisions at switches or at railroad
crossings at grade. See Accident Reporting Guide at 20.
Tourist, Scenic, Historic, or Excursion Operations That Are Not Part of
the General Railroad System of Transportation
A new definition of ``tourist, scenic, historic, or excursion
operations that are not part of the general railroad system of
transportation'' would clarify the meaning of that term as used in the
proposed application provisions of Sec. 219.3. The proposed definition
clarifies that the phrase means a tourist, scenic, historic, or
excursion rail operation that is conducted only on track used
exclusively for that purpose (i.e., there are no freight, intercity
passenger, or commuter passenger railroad operations on the track). If
there are any freight, intercity passenger, or commuter passenger
railroad operations on the track, the track is considered part of the
general system, and the rail operation would not meet the definition of
term as used in Sec. 219.3. This proposed definition is consistent
with FRA's longstanding policy that excludes insular operations
entirely from FRA's safety jurisdiction and excludes non-insular
operations from all but a limited number of Federal safety laws,
regulations and orders. See 49 CFR part 209, Appendix A (defining the
terms insular and non-insular).
Watchman/Lookout
FRA would add a definition of ``watchman/lookout'' identical to
that in Sec. 214.7 of its roadway worker regulations.
Revised Definitions
Covered Employee
The current definition of ``covered employee'' includes, in part,
``a person who has been assigned to perform service in the United
States subject to the hours of service laws (49 U.S.C. ch. 211) during
a duty tour, whether or not the person has performed or is currently
performing such service, and any person who performs such service.''
FRA proposes to amend this definition to clarify that ``person''
includes employees, volunteers, and probationary employees, and by
[[Page 43846]]
updating its reference to the hours of service laws so that a ``covered
employee'' would be defined as one ``who is performing covered service
under the hours of service laws at 49 U.S.C. 21101, 21104, or 21105 or
who is subject to performing such covered service, regardless of
whether the person has performed or is currently performing covered
service.'' FRA believes this proposed language is clearer than that in
the current definition, and it also makes the reference to the hours of
service laws consistent with that contained elsewhere in part 219. No
substantive change to this definition is intended.
Covered Service
FRA would amend the definition of ``covered service'' to provide
examples of the types of activities generally considered covered
service and to refer to Appendix A of 49 CFR part 228, Requirements of
the Hours of Service Act: Statement of Agency Policy and
Interpretation. The proposed amendments are for clarification purposes
only; no substantive change is intended.
FRA Representative
The definition of ``FRA representative'' would be amended to
clarify that the term includes the oversight contractor for FRA's Drug
and Alcohol Program and the staff of FRA's Associate Administrator for
Railroad Safety.
Impact Accident
As discussed in section V.D of this preamble, the definition of
``impact accident'' would be amended to remove the exceptions for
derailment collisions \14\ and raking collisions. FRA originally
excepted derailment collisions and raking collisions from the
definition of ``impact accident'' because it believed that these types
of collisions were not normally caused by human-factors. See 50 FR
31539 and 31542, Aug. 2, 1985 and 54 FR 39647, Sep. 27, 1989.
---------------------------------------------------------------------------
\14\ Derailment collisions fall within the definition of
``obstruction accidents'' in FRA's Accident Report Guide. See
Accident Reporting Guide at 24. But for the purposes of part 219,
this type of collision is referred to only as a derailment
collision.
---------------------------------------------------------------------------
FRA has since found that both derailment collisions and raking
collisions can be caused by human-factors, such as alcohol and/or drug
impairment. For example, a derailment collision could occur when a
dispatcher fails to properly notify trains of a derailment, or when a
crew does not operate its train at the proper speed after such a
notification. Similarly, a raking collision could occur when a train
crew does not comply with the special handling instruction for a high-
wide load or when cars are left standing on a track without sufficient
clearance.
Additionally, FRA has found evidence that railroads sometimes
improperly apply the exception for derailment collisions and raking
collisions in situations involving true impact accidents. For example,
railroads have sometimes claimed that PAT testing was not required
because equipment from a train derailed just prior to what otherwise
would be considered a head-on, rear-end, or side collision with other
on-track equipment. FRA did not intend the exception for a derailment
collision to apply when on-track equipment derailed immediately prior
to striking other on-track equipment. FRA believes that these sorts of
events should be classified as impact accidents. FRA has also found
that the difference between side collisions and raking collisions is
not understood by some railroads, who have erroneously claimed that
accidents occurring at a turnout (switch) were raking collisions. For
example, some railroads have claimed that a raking collision has
occurred when a switch crew strikes cars they had previously left
fouling a track or when a train operates out of a siding and strikes
another train. These types of accidents, however, are actually side
collisions or other impacts and should therefore be considered impact
accidents.\15\ (FRA notes that currently under Sec. 219.201(a)(1), a
derailment collision would qualify as a Major Train Accident if it
resulted in damage to railroad property of $1 million or more.)
---------------------------------------------------------------------------
\15\ As discussed below, FRA is also proposing to clarify the
part 219 definition of side collision, to specifically include
accidents/incidents that occur at a switch or turnout. This is the
same definition for a side collision as used in the Accident
Reporting Guide.
---------------------------------------------------------------------------
FRA does not anticipate that its proposal to remove the exceptions
for derailment collisions and raking collisions would significantly
increase PAT testing costs. FRA believes that the regulated employees
involved in these collisions will often be excluded from PAT testing
when a ``railroad representative can immediately determine, on the
basis of specific information, that the employee(s) had no role in the
cause(s) or severity of the accident/incident.'' See Sec.
219.203(a)(3).
In order to improve clarity, FRA also proposes to restructure this
definition by listing each type of impact accident separately. FRA
would also incorporate its previous guidance that an impact with a
derail does not qualify as an ``impact with a deliberately-placed
obstruction, such as a bumping post,'' since bumping posts are mostly
permanent objects found at the end of a line, while derails are mobile
and can easily be moved from place to place. See FRA, Alcohol and Drug
Testing Regulations (Parts 219 and 40) Interpretive Guidance Manual
(``Interpretive Guidance Manual'') 18 (September 2006), available at
https://www.fra.dot.gov/eLib/Details/L02799.
FRA would also clarify that the definition of ``impact accident''
excludes the impact of rail equipment with ``naturally-occurring
obstructions such as fallen trees, rock or snow slides, livestock,
etc.''
Medical Facility
FRA would add language to the definition of ``medical facility'' to
reflect the main purpose for including this definition in this part;
that is, that a medical facility is a hospital, clinic, physician's
office, or laboratory which can collect PAT testing specimens and
address an individual's post-accident medical needs. In order to
improve consistency, FRA would also substitute ``medical facility''
wherever ``treating facility'' currently appears throughout part 219.
Railroad Property Damage or Damage to Railroad Property
The definition of ``railroad property damage or damage to railroad
property'' would be clarified to mean damage to railroad property as
calculated according to the FRA Guide for Preparing Accident/Incident
Reports. Additional language from the Guide would clarify what costs
must be included (damage to on-track equipment, signals, track, track
structure, or roadbed; and labor costs including hourly wages,
transportation costs, and hotel expenses) and excluded (damage to
lading and the cost of clearing a wreck, although the cost of
contractor services and of renting and operating machinery is included,
as is the cost of any additional damage caused while clearing the
wreck) when calculating railroad property damage to determine whether
PAT testing is required under FRA's regulations. These clarifications
would be incorporated to enable easier compliance with this part, and
no substantive changes are intended.
Train Accident
The definition of ``train accident'' would be amended to clarify
that it refers to rail equipment accidents under Sec. 225.19(c) and to
specify that rail
[[Page 43847]]
equipment accidents include, but are not limited to, collisions,
derailments, and other events involving the operation of on-track or
fouling equipment.
Train Incident
The definition of ``train incident'' would be amended to clarify
that it includes events involving the operation of on-track or fouling
equipment that results in a casualty, but in which damage to railroad
property does not exceed the applicable reporting threshold.
Deleted Definitions
DOT Agency
The definition of ``DOT agency'' would be removed because it is
being replaced by the proposed definition of ``DOT, The Department, or
DOT agency.''
General Railroad System of Transportation
The definition of ``general railroad system of transportation''
would be removed because FRA's proposed amendments to the application
section of this part (Sec. 219.3) would make this definition
redundant.
Train
The definition of ``train'' would be removed because part 219
already contains definitions for ``train accident'' and ``train
incident'' that specifically include on-track equipment (which includes
trains).
Section 219.9--Responsibility for Compliance
Currently, this section contains provisions relating to compliance
with part 219 and penalties for violations of part 219. FRA is
proposing to amend this section by removing the language addressing
penalty amounts in paragraph (a) and placing it in a new Sec. 219.10,
entitled ``Penalties.'' This organization would be similar to the
approach taken in other FRA regulations (see 49 CFR parts 232, 238, and
239), and-would make it easier for railroads to find specific
provisions relating to either compliance or penalties.
Proposed paragraph (a) would clarify that while part 219
requirements are stated in terms of a railroad's duty, the duty to meet
part 219 requirements applies to any person performing a function
required by part 219. This language would apply equally to the
requirements of part 40, since Sec. 219.701 requires all testing
conducted under part 219 testing (except for PAT testing in subpart C)
to comply with part 40. Also, existing paragraph (a) contains language
defining the term ``person'' as used in part 219. As discussed in the
section-by-section analysis for Sec. 219.5, FRA is proposing to move
this definition of ``person'' to Sec. 219.5 and amend it to clarify
that it includes any entity who acts as a service agent for a railroad
under part 40.
FRA is also proposing several minimal changes to the language
contained in paragraphs (b)(1), (b)(2), and (c). These amendments are
intended to increase the clarity of this section and not to make any
substantive changes. For example, paragraph (b)(2) currently states
that when an employee engaged in joint operations is required to
participate in Federal PAT, reasonable suspicion, or reasonable cause
testing and is then subject to adverse action allegedly arising from
that testing (or an alleged refusal to participate in such testing),
the other railroad (i.e., the railroad by which the employee is not
directly employed) must provide to the employee any necessary witnesses
and documents on a reasonable basis. FRA is proposing to amend this
requirement to clarify that the other railroad must also provide such
witnesses and documents to the regulated employee's employing railroad.
Section 219.10--Penalties
As discussed immediately above, FRA is proposing to transfer the
penalty provisions currently found in Sec. 219.9 to a new Sec.
219.10, entitled ``Penalties.'' This amendment is not intended to make
any substantive changes to the penalty provisions, but is intended to
increase the clarity and organization of part 219.
Section 219.11--General Conditions for Chemical Tests
This section contains various general provisions regarding FRA
alcohol and drug testing requirements. FRA is proposing amendments to
this section as described below.
Paragraph (a)
FRA would re-designate current paragraph (a) as paragraph (a)(1),
and add new paragraph (a)(2). Paragraph (a) currently states that
``[a]ny employee who performs covered service for a railroad is deemed
to have consented to testing as required in subparts B, C, D, and G of
this part; and consent is implied by performance of such service.''
Proposed paragraph (a)(1) would amend this language to clarify that
``[a]ny regulated employee who is subject to performing regulated
service'' is deemed to have consented to testing. This amendment is
necessary because under proposed Sec. 219.615(c)(1), a regulated
employee can be required to participate in random testing whenever the
employee is on-duty and subject to performing regulated service, even
if the employee is not performing regulated service at the time. FRA
would also remove the language ``and consent is implied by performance
of such service,'' as it believes this language is unnecessary and
redundant. FRA would also amend this paragraph to clarify that
performance of regulated service means consent to testing mandated by
the peer prevention requirements of proposed subpart K.
New paragraph (a)(2) would clarify that regulated employees
required to participate in Federal testing under part 219 must be on-
duty and subject to performing regulated service at the time of a
breath alcohol test or urine specimen collection. This requirement
would not apply to the pre-employment drug testing of applicants for
regulated service positions.
Paragraph (b)
Paragraph (b)(1) would be amended to clarify that regulated
employees must participate in Federal testing as required by part 219
and as implemented by a representative of the railroad or an employing
contractor.
Paragraph (b)(2) currently provides that ``[i]n any case where an
employee has sustained a personal injury and is subject to alcohol or
drug testing under this part, necessary medical treatment must be
accorded priority over provision of the breath or body fluid
specimen(s).'' This provision would be amended to replace ``has
sustained a personal injury'' with ``is suffering a substantiated
medical emergency,'' as certain medical emergencies that do not involve
a personal injury (e.g. a stroke) may necessitate prioritizing medical
treatment over testing. New language would further clarify that a
medical emergency is an acute medical condition requiring immediate
medical care, and a railroad may require an employee to substantiate a
medical emergency by providing verifiable documentation from a credible
outside professional substantiating the emergency situation within a
reasonable period of time.
Paragraph (c)
FRA is proposing minor amendments throughout existing paragraph (c)
to reflect the updated terminology proposed in this NPRM (e.g.,
regulated employee, medical facility) and to account for FRA's proposal
to separate reasonable cause and reasonable suspicion testing into two
separate subparts.
[[Page 43848]]
Paragraph (d)
This paragraph, which currently requires an employee who is tested
under either subpart C (PAT testing) or subpart H (which applies part
40 procedures to part 219 testing except for PAT tests) to execute a
consent form upon request, conflicts directly with the Department's
specific prohibition on the use of consent forms in Sec. 40.27. To
resolve this conflict, FRA proposes to remove the reference to subpart
H in this paragraph, thus making execution of a consent form an
available option only for PAT testing under subpart C.
Paragraph (e)
Paragraph (e) currently provides that nothing in part 219 may be
construed to ``authorize the use of physical coercion or any other
deprivation of liberty in order to compel breath or body fluid
testing.'' FRA is proposing to amend this paragraph by re-designating
this language as paragraph (e)(3), and by adding new paragraphs (e)(1)
and (e)(2).
Proposed paragraph (e)(1) would clarify that a regulated employee
notified of his or her selection for Federal testing under part 219
must cease to perform his or her assigned duties and proceed to the
testing site as soon as possible without adversely affecting safety.
For example, a train crew selected for random testing would not be
required to proceed immediately to the testing site if the crew had
received special instructions to remain on the train and protect it
until a relief crew arrived. In such a situation, FRA would not expect
the train crew to violate their specific instructions, and random
testing would occur only after the crew was relieved. This language is
currently contained in Sec. 219.701(c), but FRA believes it belongs
more appropriately in Sec. 219.11 as it is a general condition
regarding Federal tests. Similarly, paragraph (e)(2) would further
specify that a railroad must ensure that the absence of a regulated
employee from his or her assigned duties for testing does not adversely
affect safety.
Paragraph (f)
Under current paragraph (f), any railroad employee (as discussed
earlier, the term ``employee'' would include volunteers and
probationary employees of a railroad or a contractor to a railroad) who
performs service for a railroad who dies within 12 hours of an accident
or incident is deemed to have consented to the removal of specimens for
the purpose of PAT testing under part 219. FRA is proposing to amend
this paragraph by replacing the word ``service'' with the word
``duties.'' This change is intended to make it clear that any
individual who performs duties for a railroad, regardless of whether or
not those duties are regulated service (covered service or MOW
activities), is deemed to have consented to the removal of specimens
for PAT testing. FRA is also proposing other clarifying amendments to
this paragraph (i.e., that consent is implied by the performance of
duties for the railroad since no consent form is required). No
substantive changes are intended.
Paragraph (g)
Paragraph (g) currently requires at least three hours of supervisor
training regarding the signs and symptoms of alcohol and drug use and
the qualifying criteria for PAT testing under subpart C. This training
must include (at a minimum) ``information concerning the acute
behavioral and apparent physiological effects of alcohol and the major
drug groups on the controlled substances list.'' FRA is proposing to
amend this existing training requirement to incorporate supervisory
training on the signs and symptoms of ``other impairing drugs,'' since
drugs that are not controlled substances can also have ``acute
behavioral and apparent physiological'' effects.
FRA is also proposing to amend this paragraph by removing the three
hour duration requirement (a design standard) and replacing it with a
requirement that supervisors demonstrate their understanding of the
training at its conclusion (a performance standard). Supervisors could
do so through either a written or oral examination, which must contain
questions related to both the PAT testing regulations of subpart C and
the signs and symptoms of alcohol and drug influence, intoxication, and
misuse. FRA believes the proposed amendment would improve the required
supervisor training by making it based on a performance standard rather
than a design standard. See Office of Management and Budget, Circular
A-4, 8 (Sep. 17, 2003) (discussing performance standards as opposed to
design standards). Currently, the three hour duration requirement does
not actually ensure that a supervisor has understood the contents of
the training. Under the proposed amendment, railroads would have the
flexibility to make the training as long--or short--as necessary to
produce supervisors who could demonstrate their understanding of the
requirements. Overall, FRA believes that the effectiveness of the
training is better measured by the outcomes it produces, as opposed to
the amount of time it lasts.
Paragraph (h)
FRA is proposing only a minor editorial revision to paragraph (h)
to delete an unnecessary paragraph reference.
Section 219.12--Hours of Service Laws Implications
FRA is proposing a new section Sec. 219.12 to clarify the
relationship between the alcohol and drug testing requirements of part
219 and the HOS requirements of 49 U.S.C. ch. 211.
Paragraph (a)
Proposed paragraph (a) clarifies that HOS limitations do not excuse
a railroad from conducting PAT or reasonable suspicion testing. These
types of tests must be performed regardless of HOS requirements because
they are triggered by specific unpredictable events that indicate the
possible existence of a safety issue related to alcohol or drug use.
When an event occurs that mandates PAT or reasonable suspicion testing,
determining the cause of the event is of greater safety concern than
compliance with the HOS requirements. Thus, this proposed paragraph
provides that if a railroad establishes that excess service under the
HOS laws is caused solely by the railroad's need to complete required
PAT or reasonable suspicion testing, that the railroad used reasonable
due diligence in completing the required PAT or reasonable suspicion
testing, and that the railroad completed the collection within the time
limits of Sec. 219.203(d) (for PAT testing) or Sec. 219.305 (for
reasonable suspicion testing), FRA will not take enforcement action for
the excess service. The railroad would, however, still be required to
file an excess service report
While technically a new part 219 requirement, this language would
incorporate past FRA guidance on the impact of PAT testing and
reasonable suspicion testing on HOS limitations. See Compliance Manual
2.3.
Paragraph (b)
As with PAT and reasonable suspicion testing, reasonable cause
testing is triggered by the occurrence of a specific unpredictable
event (a train accident, train incident, or rule violation), the cause
or severity of which may be linked to a safety issue involving alcohol
or drug use by a regulated employee. FRA would therefore not pursue an
HOS violation if the excess service was caused solely by a railroad's
decision to conduct
[[Page 43849]]
reasonable cause testing, so long as the railroad used reasonable due
diligence to complete the test and did so within the time limitations
of proposed Sec. 219.407 (i.e., within eight hours of the observation,
event or supervisory notification that was the basis for the test). The
crucial difference between incurring excess service to conduct PAT or
reasonable suspicion testing as compared to reasonable cause testing,
is that reasonable cause testing, unlike both PAT and reasonable
suspicion testing, is authorized, but not required by part 219. For
this reason, proposed paragraph (b) clarifies that a railroad would be
allowed to, but is not required to, exceed HOS limitations to perform
reasonable cause testing. The railroad would, however, still be
required to file an excess service report.
Paragraph (c)
Proposed paragraph (c) clarifies that random tests must be handled
differently from the other types of tests discussed above, since random
tests are timed and planned in advance. When conducting random alcohol
and drug tests, compliance with HOS requirements must take precedence
since the timing of a random test is predictable and is not triggered
by a potential safety concern. With one exception, railroads must
schedule random tests with sufficient time for completion within an
employee's HOS limitations. The only exception to this general rule is
if an employee's random drug test requires additional time to complete
because of the need to conduct a directly observed collection (see
Sec. 40.67). In such direct observation situations, FRA would allow
completion of the test to exceed the employee's HOS limitations not
because the random test was unplanned, but because the occurrence of
the direct observation was unpredictable and indicative of the fact
that the employee may be trying to cheat the test. As with the other
types of tests described above, to not have an HOS penalty assessed, a
railroad must show that any excess service was caused solely by the
need to respond to a direct observation, must complete the random test
as soon as practicable, and must report any excess service to FRA. FRA
would also amend this paragraph to prohibit a railroad from placing a
regulated employee on duty solely for the purpose of conducting a
Federal random test.
Paragraph (d)
Similar to proposed paragraph (c)'s requirements related to random
tests, proposed paragraph (d) would clarify that railroads must
schedule follow-up tests, which are also planned events, with
sufficient time to allow testing to be completed within a covered
employee's HOS limitations. A railroad may place an employee on-duty
solely for the purpose of a follow-up test if the employee is subject
to being called for duty, with the caveat that an employee may be
placed on duty for a follow-up alcohol test only if the employee's
return-to-duty agreement requires total abstention from alcohol use.
This exception is necessary because absent such an agreement, an
employee may legitimately use alcohol when not prohibited by Sec.
219.101 (that is, when not on-duty, not within four hours of reporting
for duty, and not after receiving notice to report). In such a case, a
follow-up test for alcohol could result in an employee being penalized
for legitimate alcohol use. FRA anticipates few instances where an
employee will be placed on-duty solely for the purpose of follow-up
testing, but a railroad that chooses to do so must document why the
action was necessary and provide the documentation to FRA upon request.
Section 219.23--Railroad Policies
This section establishes the requirements for a railroad's Federal
alcohol and drug testing policy. FRA is proposing to clarify the
language in this section governing the following requirements: (1) the
providing of written notice to a regulated employee whenever a Federal
alcohol or drug test is required under part 219; (2) the use of DOT
forms for FRA-mandated alcohol and drug tests; and (3) the educational
materials employers must provide to employees. FRA would also conform
the section's structure to reflect amendments proposed in this section
and elsewhere in part 219.
Paragraph (a)
Paragraph (a) currently requires a railroad to provide ``clear and
unequivocal written notice'' to an employee when an alcohol or drug
test is being required under FRA regulations. While the use of DOT
testing forms satisfies this notice requirement, FRA is proposing
several clarifications. First, FRA is proposing to amend this paragraph
to clarify that the written notice must be provided by either a
railroad employee or a designated service agent (e.g., by a collector
providing a DOT form to an employee for an FRA random test) and must
include the basis for the test (this requirement is currently contained
in paragraph (b) of this section). Second, FRA would replace the phrase
``violation of a specified operating/safety rule enumerated in subpart
D of this part'' with the simpler phrase ``reasonable cause.'' Finally,
FRA would clarify that the notice requirements for PAT tests must be
handled differently since notice of PAT tests may be provided only
through use of a FRA-specific PAT testing form.
Paragraph (b)
The last sentence of current paragraph (b) provides that use of a
DOT form is prohibited for a non-Federal test. This provision, amended
to clarify that use of the DOT form is also prohibited for PAT testing,
remains in revised paragraph (b). FRA also proposes to amend this
paragraph to specify that the FRA PAT testing form may not be used for
any other type of test. This is not a new requirement, but is currently
found in the final sentence of paragraph (c) of this section.
Paragraph (c)
Proposed paragraph (c) discusses various requirements related to
part 219 educational materials that must be provided to regulated
employees. These requirements are found in existing paragraph (d) of
this section. FRA is proposing minor amendments to clarify the language
in this section and to provide railroads greater flexibility in making
the required educational materials available to employees. As proposed,
a railroad could post these materials continuously in an easily visible
location at a designated reporting place for regulated employees,
provided the railroad also supplies copies to any labor organizations
representing a class or craft of regulated employees (if applicable).
Alternatively, a railroad could provide these materials in some other
manner that ensures that regulated employees can find and access them,
such as posting them on a Web site accessible to all regulated
employees. Through longstanding informal guidance, FRA has allowed
railroads to post educational materials in easily visible locations.
Thus, this proposed amendment would incorporate this guidance into the
rule text. Because MOW employees are going to be newly subject to part
219 requirements and may be unfamiliar with the regulation, for three
years after the effective date of the final rule, FRA is proposing to
require a hard copy of the educational materials to be provided to each
MOW employee. FRA is also proposing new language in this paragraph
specifying that the requirement to provide educational materials to
regulated employees would not apply to applicants for a regulated
service position who either refuse to participate
[[Page 43850]]
in pre-employment testing or who have a pre-employment test result
indicating a part 219 violation. This requirement is currently in Sec.
219.104(a)(ii), but FRA believes it belongs more appropriately in this
section, as it discusses the applicability of Sec. 219.23.
Paragraph (d)
Currently, paragraph (e) of this section contains requirements
governing the content of the educational materials that a railroad must
provide to its covered employees. FRA is proposing to move these
requirements to proposed paragraph (d). New language in the
introductory text of paragraph (d) would clarify that the educational
materials that must be made available to employees are the materials
that are specified in proposed paragraph (c) of this section.
While paragraph (e)(1) currently requires training materials to
include the ``identity'' of the person designated to answer employee
questions about the materials, proposed paragraph (d)(1) would include
this requirement but replace the word ``identity'' with ``position
title, name, and means of contacting'' that individual. Similarly,
language currently in paragraph (e)(2) would be moved to proposed
paragraph (d)(2) and amended to require educational materials to
identify each class or craft subject to part 219 (e.g., engineers,
conductors, MOW employees, signal maintainers, train dispatchers)
instead of using less specific terms such as ``regulated employees'' or
``covered employees.''
Language currently found in paragraph (e)(3) would be amended in
proposed paragraph (d)(3) to replace ``safety-sensitive'' with
``regulated service'' and to require the educational materials provided
to regulated employees to distinguish between FRA's prohibitions on
alcohol use and on drug use. FRA proposes to distinguish between the
two prohibitions by explicitly stating that a railroad must provide
sufficient information about regulated service that regulated employees
perform so that a regulated employee knows when he or she must be in
compliance with part 219's prohibition regarding alcohol use. This
amendment is necessary because unlike part 219's prohibition on alcohol
use, which applies when an employee is on duty and required to perform
or is available to perform regulated service, FRA's prohibitions on
drug use apply at all times, not just when a regulated employee is on
duty and performing (or subject to performing) regulated service.
Existing paragraph (e)(5) would be further amended in proposed
paragraph (d)(5) to simplify the reference to reasonable cause testing
authority provided by subpart E.
FRA would also move the language in paragraph (e)(12) to proposed
paragraph (d)(12) and amend it to require railroads to provide
educational materials on both alcohol and drug misuse.
Section 219.25--Previous Employer Drug and Alcohol Checks
This new section would direct railroads and contractors to Sec.
40.25, which requires employers to request and review the drug and
alcohol testing record of any individual they intend to use to perform
DOT safety-sensitive functions. This requirement applies only to a
railroad or contractor's direct employees. For example, a railroad
would not be required to check the alcohol and drug testing record of
the direct employees of a contractor, since this responsibility would
belong to the contractor. While Sec. 219.701 requires all testing
under part 219 (except for PAT testing under subpart C) to be completed
in accordance with the requirements of part 40, FRA's experience has
been that railroads sometimes overlook the drug and alcohol background
check required by Sec. 40.25. The proposed amendment would address
this concern by specifically reminding railroads and contractors of the
Sec. 40.25 requirement.
This section would also remind railroads that they must comply with
the prior alcohol and drug conduct requirements of Sec. 240.119(c) for
certified locomotive engineers and Sec. 242.115(e) for certified
conductors. Under these sections, a railroad determining whether a
person may be or may remain certified as a locomotive engineer or
conductor must consider certain part 219 violations and refusals that
occurred within a period of sixty consecutive months (five years) prior
to the review of the individual's records. As with the reference to
Sec. 40.25, these references to parts 240 and 242 are intended only to
remind railroads of their existing responsibilities, not to make any
substantive changes.
Subpart B--Prohibitions
Section 219.101--Alcohol and Drug Use Prohibited
Paragraph (a)(1)
Section 219.101 contains FRA's general prohibitions on the use and
possession of alcohol and drugs by railroad employees. Currently,
paragraph (a)(1) prohibits the use and possession of both alcohol and
controlled substances while a covered employee is assigned to perform
covered service. Existing Sec. 219.103 provides an exception to the
prohibition on the use and possession of controlled substances, so long
as certain conditions are met regarding the controlled substance's
prescription or authorization by a medical practitioner.
While not specifically proposed in this NPRM, FRA is soliciting
public feedback on whether it should consider removing part 219's
longstanding prohibitions against the on-duty possession of alcohol and
controlled substances. These prohibitions were originally intended to
make FRA's alcohol and drug requirements similar to those in Rule G, a
longstanding railroad operating rule which prohibited the on-duty use
and possession of alcohol, and was later amended to address the use and
possession of controlled substances. See 49 FR 24266, June 12, 1984. As
currently written, however, the FRA's prohibition against the
possession of controlled substances applies not only to the possession
of illicit drugs (e.g., PCP, cocaine), but also to many prescription
drugs which have legitimate medical uses (e.g., muscle relaxants, pain
relievers), but have been classified by the Drug Enforcement
Administration (DEA) as controlled substances because of their
potential for abuse. Therefore, strictly read, FRA's prohibition
against the on-duty possession of all controlled substances would
prohibit the on-duty possession of many common prescription drugs,
unless that possession was incident to proper use of the prescribed
drug as provided for by Sec. 219.103.
Similarly, because of its roots in Rule G, part 219 currently
prohibits the on-duty possession of alcohol. Strictly read, this
prohibition would ban the on-duty possession of many commonly sold
over-the-counter cough and cold remedies that contain alcohol. FRA
solicits comment on whether part 219 should continue to prohibit the
on-duty possession of all controlled substances and alcohol, noting
that no other DOT agency prohibits the on-duty possession of both
controlled substances and alcohol.
While FRA does not want to prohibit the use of legal prescription
drugs or over-the-counter drugs by regulated employees, provided that
such use complies with the requirements of Sec. 219.103 (discussed
below), FRA is specifically seeking public comment on whether removing
the prohibitions on possession of controlled substances and/or alcohol
would have an adverse effect on railroad safety. Removing the
prohibition on possessing controlled substances or alcohol would not
affect a railroad's ability to take action under its own authority if a
railroad employee
[[Page 43851]]
was found in possession of alcohol or a controlled substance in
violation of a railroad operating rule, such as Rule G. See id.
FRA would also amend paragraph (a)(1) to prohibit the use or
possession of alcohol or any controlled substance by regulated
employees while they are ``on-duty and subject to performing regulated
service for a railroad.'' This proposed language is intended to clarify
that this prohibition applies whenever a regulated employee is subject
to performing regulated service for a railroad, not only when the
employee is actually performing regulated service.
Paragraph (a)(4)
Paragraph (a)(4) applies to regulated employees who have a breath
or blood alcohol concentration of 0.02 or greater but less than 0.04 on
a Federal test. Specifically, current paragraph (a)(4) prohibits an
employee whose Federal test indicates an alcohol concentration of 0.02
or greater, but less than 0.04, from performing covered service until
the start of his or her next regularly scheduled duty period, but not
less than eight hours from the administration of the test. Since an
alcohol concentration of 0.02 or greater but less than 0.04 is not a
violation of Sec. 219.101, an alcohol test result in this range may
not be used for locomotive engineer or conductor certification purposes
under part 240 or part 242. FRA is proposing to redesignate the current
text of paragraph (a)(4) as paragraph (a)(4)(i), and add a new
paragraph (a)(4)(ii) to clarify that a railroad is not prohibited from
taking further action under its own authority against an employee whose
Federal test result indicates an alcohol concentration of 0.02 or
greater but less than 0.04, since a result in this range indicates the
presence of alcohol in the employee's system. This new language is
taken from FRA guidance and is intended for clarification purposes
only, not to make any substantive change to the regulatory requirement.
See Compliance Manual 3.5.2.
Paragraph (a)(5)
Currently, paragraph (a)(5) states that a test result with an
alcohol concentration below 0.02 must be considered negative and is not
evidence of alcohol misuse. It also provides that a railroad may 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, and that a railroad may compel cooperation in additional
breath or body fluid testing only if it has an independent basis for
doing so.
FRA is proposing to add new language to this paragraph clarifying
that an independent basis for subsequent company authority alcohol
testing would exist only when, after a negative FRA reasonable
suspicion alcohol test result, an employee exhibits additional or
continuing signs and symptoms of alcohol use. (A railroad may not,
however, conduct an additional FRA test in such situations.) If an
independent basis for testing exists and a subsequent company authority
alcohol test indicates a violation of a railroad alcohol operating
rule, the company test result is independent of the Federal test result
and must stand on its own merits. FRA is proposing this amendment,
which is taken from FRA guidance, to allow railroads to perform company
authority alcohol tests in the infrequent and limited circumstances
where an employee continues to exhibit signs and symptoms of alcohol
use even after the employee's FRA test result indicates an alcohol
concentration below 0.02.
Section 219.102--Prohibition on Abuse of Controlled Substances
Currently, this section prohibits employees performing covered
service from using a controlled substance at any time, except as
permitted by Sec. 219.103. FRA's only proposed amendment to this
section would substitute the term ``regulated employee'' for
``employee'' to reflect the expansion of this part to cover employees
who perform MOW activities.
Section 219.103--Use of Prescription and Over-the-Counter Drugs
Despite its title, ``Prescribed and over-the-counter drugs,'' Sec.
219.103 currently covers only a small portion of prescription drugs and
no over-the-counter (OTC) drugs, since most prescription and OTC drugs
are not Schedule II-V controlled substances. FRA is not proposing any
changes to this section, which has not been changed since its
implementation in 1985. Instead, FRA is asking for information in
response to several questions. How do railroads administer Sec.
219.103's requirements? Does this section effectively address the
safety concerns raised by the use of prescription and OTC drugs by
individuals subject to part 219? What, if any, amendments should FRA
make to address the increase in prescription and OTC drug use over the
last 25 years? Are any amendments necessary to address FRA's proposed
addition of employees who perform MOW activities?
Section 219.104--Responsive Action
FRA is proposing both clarifying and structural changes to this
section, which addresses what responsive action a railroad must take
when it determines that an employee subject to part 219 has either
violated certain provisions part 219 (or the alcohol or drug misuse
rule of another DOT agency) or refused to provide breath or body fluid
specimens under a mandatory provision of the regulation. Specifically,
FRA proposes to clarify that: (1) The responsive action requirements of
this section (except for the right to a hearing under proposed
paragraph (c) do apply to a regulated service applicant who has refused
to take a pre-employment test, as determined by the provisions of part
40; (2) the notice a railroad must provide to a regulated employee
before removing him or her from regulated service must be in writing;
and (3) that regulated employees have the right to request a hearing
under this section following an alleged violation of Sec. 219.101 or
Sec. 219.102.
Paragraph (a)
FRA proposes to add a new sentence to paragraph (a)(2) specifying
that the procedures and rights in this section apply to reasonable
cause tests conducted under FRA authority, but not to reasonable cause
tests conducted under a company's own authority. This would not be a
substantive change, only a reminder to railroads of one important
distinction between a reasonable cause test conducted under FRA
authority and one conducted under company authority. FRA also proposes
to remove the word ``mandatory'' as used in paragraph (a)(2) to
describe the provisions under which a railroad may require an employee
to participate in alcohol or drug testing, since neither reasonable
cause or pre-employment alcohol testing are mandatory under part 219.
If, however, a regulated employee (or applicant for regulated service)
refuses a reasonable cause or pre-employment alcohol test that has been
conducted under FRA authority, the employee would be subject to the
consequences for unlawful refusals found in this section.
Currently, paragraph (a)(3) explains that the procedures and rights
in Sec. 219.104 and the informational requirements in Sec. 219.23 do
not apply: (1) When a test is conducted under other than part 219
authority (e.g., a test under a company medical policy); and (2) when
an applicant refuses to participate in a pre-employment test or
otherwise has a positive pre-employment test indicating the misuse
[[Page 43852]]
of alcohol or controlled substances. FRA is proposing to move the
language addressing Sec. 219.23 into Sec. 219.23 itself, and to move
the remainder of this paragraph to a new paragraph (e), which would
contain provisions specifically discussing the applicability of this
section.
Paragraph (b)
Currently, paragraph (b) requires a railroad, prior to
``withdrawing'' an employee from covered service, to provide notice to
the employee of the reason for his or her withdrawal. FRA would clarify
that this notice must be in writing. A railroad may initially give an
employee verbal notice, provided the railroad follows up as soon as
practicable with an official written notice. For consistency of
language throughout this section, FRA is also proposing to replace
``withdrawing'' in this paragraph with the term ``removing.'' FRA would
also require the notice to inform the employee that he or she is
prohibited from performing any DOT safety-sensitive functions until he
or she successfully completes the evaluation, referral, and treatment
processes required for return-to-duty under part 40. FRA believes this
information would discourage employees from job hopping to try to avoid
their return-to-duty requirements. A railroad may also use this notice
to comply with Sec. 40.287, which requires an employer to provide to
each employee who violates a DOT drug and alcohol regulation a listing
of SAPs readily available to the employee and acceptable to the
employer, with names, addresses, and telephone numbers.
Paragraph (c)
Paragraph (c)(1) currently specifies that employees can request a
hearing if they ``[deny] that the test result is valid evidence of
alcohol or drug use prohibited by this subpart.'' FRA is proposing to
remove this phrase in to make clear that the removal from duty and
hearing procedures in this section also apply to violations of
Sec. Sec. 219.101 or 219.102 that have not been detected through
testing (e.g., a refusal or a violation of the prohibition against
possessing alcohol). This proposed amendment would clarify that an
employee may demand a hearing for any violation of Sec. Sec. 219.101
or 219.102, regardless of whether the alleged violation was based on a
test result.
Similarly, FRA would amend paragraph (c)(4) to clarify that the
statement that part 219 does not limit the procedural rights or
remedies available (e.g., at common law or through an applicable
bargaining agreement) to an employee, applies to all violations of part
219, not just those based on test results.
Paragraph (d)
Currently, paragraph (d) provides that a railroad must comply with
``the return-to-service and follow-up testing requirements, and the
Substance Abuse Professional [SAP] conflict-of-interest prohibitions,
contained in Sec. Sec. 40.305, 40.207, and 40.209 of this title.'' FRA
would simplify this language by deleting these section citations and
referring generally to the requirements in part 40 for SAP evaluations,
the return-to-duty process, and follow-up testing.
Paragraph (e)
FRA is proposing to add a new paragraph (e), which would clarify
when the requirements of this section do not apply.
Paragraph (e)(1) would contain the language currently in paragraph
(a)(3)(i) stating that the requirements of this section do not apply to
actions based on alcohol or drug testing that is not conducted under
part 219.
Paragraph (e)(2) would clarify that the requirements in this
section do not apply to Federal alcohol tests with a result less than
0.04. As discussed above in the analysis of Sec. 219.101(a)(4),
because a Federal alcohol test with a result below 0.04 is not a
violation of Sec. 219.101, a railroad is not required to take
responsive action under this section. Under Sec. 219.101(a)(4), the
only consequence for a Federal test result between 0.02-0.039 is
removal of the employee from regulated service for a minimum of eight
hours. (This is because a test result in this range is evidence of
alcohol use but not of impairment.) A railroad must therefore use its
own authority for any other actions (e.g., any return-to-duty or
follow-up tests for an alcohol test result below .04 must be
administered under company authority).
Paragraph (e)(3) would contain new language clarifying that this
section also does not apply to a locomotive engineer or conductor who
has had an off-duty conviction for, or a completed state action to
cancel, revoke, suspend, or deny a motor vehicle-driver's license for
operating while under the influence of or impaired by alcohol or a
controlled substance. While parts 240 and 242 require an individual
with such an off-duty conviction to undergo a substance abuse
evaluation, an off-duty conviction is not a violation of Sec. 219.101
or Sec. 219.102.
Paragraph (e)(4) would contain new language clarifying that this
section does not apply to applicants who decline to participate in pre-
employment testing and withdraw the application for employment prior to
the commencement of the test (the determination of when a test
commences is made according to the provisions of part 40).
Paragraph (e)(5) would clarify that the hearing procedures in
paragraph (c) of this section do not apply to an applicant who tests
positive or refuses a DOT pre-employment test.
Paragraph (e)(6) would clarify that an applicant who tests positive
or refuses any DOT pre-employment test must complete the return-to-duty
requirements in paragraph (d) before performing DOT safety-sensitive
functions subject to the alcohol and drug regulations of any DOT
agency. Under Sec. 40.25(j), an employee who tested positive or
refused to test cannot perform any DOT safety-sensitive functions until
and unless the employee documents successful completion of the part 40
return-to-duty process.
Section 219.105--Railroad's Duty To Prevent Violations
Paragraph (a)
Currently, paragraph (a) of this section provides that a railroad
may not with ``actual knowledge'' permit an employee to remain or go on
duty in covered service in violation of either Sec. 219.101 or Sec.
219.102. FRA is proposing to clarify when a railroad is deemed to have
``actual knowledge'' of such a violation. As proposed, actual knowledge
would be limited to the knowledge of a railroad manager or supervisor
in the employee's chain of command. A manager or supervisor would be
considered to have actual knowledge of a violation when he or she: (1)
Personally observes an employee violating part 219 by either using or
possessing alcohol, or by using drugs (observing potential signs and
symptoms of alcohol/drug use would not by itself constitute actual
knowledge); (2) receives information regarding a violation from a
previous employer as part of a Sec. 40.25 background check; or (3)
receives an employee's admission of prohibited alcohol possession or
use or drug use.
Paragraph (b)
Although FRA is not proposing to amend paragraph (b) of this
section, FRA is taking this opportunity to clarify what ``due
diligence'' means in this paragraph's requirement for a railroad to
``exercise due diligence to assure compliance with Sec. Sec. 219.101
and 219.102.'' When FRA proposed to add
[[Page 43853]]
new paragraph (b), FRA stated its purpose as follows:
to describe the limitations on railroad liability with respect
to the prevention of the violations of the Subpart B prohibitions. .
. . In summary, the provisions require the railroad to exercise a
high degree of care to prevent violations, but do not impose
liability where, despite such efforts, an individual employee uses
alcohol or drugs in a manner that is prohibited (and the railroad is
not aware of the conduct).
54 FR 39649, Sep. 27, 1989. Paragraph (b) therefore places an
affirmative duty on a railroad to use due diligence to prevent
violations of Sec. 219.101 or Sec. 219.102, and a railroad that can
show it has done so will have only limited liability under part 219 for
the violations of its individual employees. Conversely, a railroad
could be found to have violated Sec. 219.105(b) if it did nothing
after becoming aware that a regulated employee had an active substance
abuse disorder that could manifest itself in actual violations of Sec.
219.101 or Sec. 219.102. The due diligence a railroad most exercise to
prevent violations will vary on a case-by-case basis and railroads
uncertain how this provision may apply in certain situations are
encouraged to contact FRA for guidance.
Paragraph (c)
FRA is proposing to add new a paragraph (c) to this section, which
would clarify that a railroad's alcohol and/or drug use education,
prevention, identification, intervention, or rehabilitation programs or
policies must be designed and implemented in such a way that they do
not circumvent or otherwise undermine the requirements of part 219. It
would also clarify that a railroad must make all documents, data, or
other records related to such programs or policies available to FRA
upon request. This paragraph would not establish a new power for FRA,
but would merely clarify and explain FRA's authority to conduct
inspections and investigations under 5 U.S.C. 20107.
Rule G Observations and Public Comment Requested
Currently, FRA guidance directs a railroad to require its
supervisors to make and record a specified number of observations of
covered employees for compliance with its operating rule on alcohol
and/or drug prohibitions (e.g., Rule G), as part of its part 217
operational tests and inspections program. See generally Sec. 217.9.
These observations are often referred to as ``Rule G observations.'' At
a minimum, FRA guidance states that each quarter a railroad should
conduct a number of part 217 observations that equals the number of its
covered employees. For example, if a railroad has 100 covered
employees, it should conduct at least 100 observations per quarter. See
Compliance Manual 11.3.3.2.
FRA requests public comment on whether Sec. 219.105 should be
amended to incorporate this guidance regarding Rule G observations. FRA
is particularly interested in comment regarding both the safety
benefits of requiring a specific number of Rule G observations and the
costs and burdens of such a requirement. Also, to what extent are these
observations already being performed throughout the railroad industry?
FRA may ultimately decide to include a Rule G observation requirement
in a final rule.
Section 219.107--Consequences of Unlawful Refusal
Currently, this section provides that an employee who refuses to
provide breath or body fluid specimens when required by a mandatory
provision of part 219 must be disqualified from performing covered
service for nine months. FRA is proposing several clarifying amendments
to this section.
Paragraph (a)
In paragraph (a), FRA would replace the term ``disqualified'' with
``withdrawn'' to distinguish between the withdrawal requirement of this
section and the disqualification requirements for certified engineers
in part 240 and certified conductors in part 242. (Similar amendments
would also be made to paragraphs (c)-(e) of this section.) FRA would
also clarify that provision of an adulterated or substituted specimen,
as defined in part 40, is a refusal under part 219 and subject to the
withdrawal requirements of this section. FRA would also remove the word
``mandatory'' which may be misleading because neither reasonable cause
nor pre-employment alcohol testing are mandatory for railroads in part
219. However, a regulated employee (or applicant for regulated service)
who refuses a reasonable cause test or a pre-employment alcohol test
conducted under FRA authority has always been subject to the
consequences for unlawful refusals found in this section.
Paragraph (b)
Currently, paragraph (b) requires a railroad, prior to withdrawing
an employee from covered service, to provide notice to that employee
both of the reason for his or her withdrawal and of the procedures
available to the employee under Sec. 219.104(c) to request a hearing.
FRA proposes to amend this paragraph to clarify that this notice must
be in writing. A railroad may provide an employee with an initial
verbal notice, but must follow this up as soon as practicable with an
official written notice.
Paragraph (c)
Currently, paragraph (c) generally provides that a railroad with
notice of an employee's withdrawal from covered service may not
authorize or permit the employee to perform such service on its behalf.
FRA would revise this paragraph to clarify that this withdrawal
provision applies ``only'' to an employee's performance of regulated
service, and not to the employee's performance of non-regulated
service. FRA would also add an additional sentence clarifying that
during the period of withdrawal, a railroad with notice of the
withdrawal may not authorize or permit the employee to perform any
regulated service on its behalf.
Paragraph (e)
Currently, paragraph (e) states that upon expiration of a mandatory
nine month withdrawal period, an employee may return to covered service
only under the conditions specified in Sec. 219.104(d) and must be
subject to follow-up testing as provided by that section. Because Sec.
219.104(d) also requires return-to-duty testing, FRA proposes to amend
paragraph (e) to clarify that the employee must also be subject return-
to-duty testing. This proposed amendment is not intended to
substantively change the existing requirement, only to clarify that
Sec. 219.104(d) requires both return-to-duty and follow-up testing.
Subpart C--Post-Accident Toxicological Testing
Section 219.201--Events for Which Testing is Required.
Paragraph (a)
Currently, this section defines the types of accidents or incidents
for which PAT testing is required and states that a railroad must make
a good faith determination as to whether an event meets the criteria
for PAT testing. Specifically, existing paragraph (a) requires a
railroad to conduct PAT testing after the following qualifying events:
(1) major train accidents; (2) impact accidents; (3) fatal train
incidents; and (4) passenger train accidents. FRA is proposing both to
amend the criteria defining some of these qualifying events and to
create a new qualifying event requiring PAT
[[Page 43854]]
testing, ``Human-Factor Highway-rail Grade Crossing Accident/
Incident.''
Major Train Accidents
Paragraph (a)(1) defines a ``major train accident'' as any train
accident meeting the part 225 reporting threshold that involves either:
(1) a fatality; (2) a hazardous material release accompanied by either
an evacuation or a reportable injury caused by the release; or (3)
damage to railroad property of $1,000,000 or more. (As discussed in the
section-by-section analysis for Sec. 219.5, FRA is proposing a new
part 219 definition for ``evacuation,'' to clarify the meaning of that
term as used in the definition of ``major train accident.'') FRA is
proposing two substantive amendments to the criteria for a major train
accident.
First, FRA would clarify that the fatality in a major train
accident can be ``to any person,'' regardless of whether the person is
an employee of the railroad. For example, a train accident meeting the
reporting threshold would qualify as a major train accident requiring
PAT testing if it resulted in a fatality to an uninvolved bystander
near the track.
Second, and as discussed in Section V.D of this preamble, FRA would
increase the property damage threshold for major train accidents from
$1,000,000 to $1,500,000. On November 19, 2008, the Association of
American Railroads (AAR) petitioned FRA to increase the damage
threshold for major train accidents to $1,500,000 and the damage
threshold for impact accidents to $250,000.\16\ FRA last increased the
property damage thresholds for major train accidents and impact
accidents in January 1, 1995, when FRA increased the threshold for
major train accidents from $500,000 to $1,000,000, and the threshold
for impact accidents from $50,000 to $150,000. See 59 FR 7452, Feb. 15,
1994). In its petition, the AAR asserted that these thresholds needed
to be raised again to account for inflation since 1994. In calculating
its proposed thresholds, the AAR measured inflation both by the rail
cost recovery index and the Gross Domestic Product, assuming an annual
4 percent increase.
---------------------------------------------------------------------------
\16\ A copy of AAR's petition is available for review in the
public docket of this rulemaking (docket no. FRA-2009-0039).
---------------------------------------------------------------------------
FRA agrees with AAR that the property damage threshold for major
train accidents should be increased to $1,500,000 to account for
inflation, and is proposing to increase that threshold accordingly. FRA
utilized publically available price indices from the Bureau of Labor
Statistics for comparison and consistency: the Producer Price Index--
All Commodities \17\ and the Consumer Price Index--All Urban Consumers
Inflation Calculator,\18\ and also extrapolated an index for comparison
from part 225, Appendix B--Procedure for Determining Reporting
Threshold. FRA found that all three indices supported raising the major
accident threshold from $1,000,000 to $1,500,000.
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\17\ Bureau of Labor Statistics, Producer Price Index-
Commodities, available at https://data.bls.gov/cgi-bin/surveymost.
\18\ Bureau of Labor Statistics, Consumer Price Index, available
at https://www.bls.gov/CPI/.
---------------------------------------------------------------------------
Impact accidents
As discussed above, AAR also asked FRA to increase its railroad
property damage threshold for impact accidents from $150,000 to
$250,000. After consideration, FRA has decided to maintain its current
impact accident threshold of $150,000. Doing so will allow inflation to
increase the number of events that qualify for PAT testing as impact
accidents, which involve human error more than other types of PAT
testing events. (For instance, impact accidents such as collisions
between trains are usually due to human error. In contrast, major train
accidents such as derailments are often due to track defects.)
Conducting PAT testing for more impact accidents will allow FRA to
identify a greater number of events involving human factor errors
caused or contributed to by the misuse of alcohol or drugs.
While FRA is proposing to amend the Sec. 219.5 definition of
``impact accident'' to remove the exceptions for raking collisions and
derailment collisions, as discussed above, FRA is not proposing any
amendments to the ``impact accident'' testing criteria found in this
section.
Fatal Train Incident
Currently, paragraph (a)(3) defines a ``fatal train incident'' as
any train incident that results in a fatality to an on-duty railroad
employee and that involves the operation of on-track equipment. FRA
proposes to clarify that to qualify as a fatal train incident, the
fatality must have occurred within 12 hours of the train incident,
although the deceased employee need not have been performing regulated
service at the time of the train incident. For example, the criteria
for a fatal train incident would be met if the operation of on-track
equipment involved a fatality to a mechanical employee, regardless of
whether the employee was performing regulated service at the time of
the train incident, so long as the fatality occurred within 12 hours of
the train incident's occurrence.
Passenger Train Accident
FRA is proposing to amend the definition of ``passenger train
accident'' in this paragraph to be more consistent with the rest of
this section. No substantive effects are intended.
Human-Factor Highway-Rail Grade Crossing Accident/Incident
Currently, Sec. 219.201(b) prohibits PAT testing after a
``collision between railroad rolling stock and a motor vehicle or other
highway conveyance at a rail/highway grade crossing,'' even if the
collision would otherwise qualify as a PAT testing event. As mentioned
in section V.E of this preamble, FRA would narrow this exception by
creating a new qualifying event, ``Human-factor highway-rail grade
crossing accident/incident'' in paragraph (a)(5), which would specify
when PAT testing would be required after a qualifying human-factor
highway-rail grade crossing accident/incident. (In Sec. 219.203 below,
FRA discusses who would be subject to PAT testing after a qualifying
human-factor highway-rail grade crossing accident/incident.)
This proposal is based in part on NTSB Recommendation R-01-17, in
which the NTSB recommended that FRA narrow its exception for highway-
rail grade crossing accidents to require PAT testing of any railroad
signal, maintenance, or other employee whose actions at or near a grade
crossing may have contributed to the cause or severity of a highway-
rail grade crossing accident. The NTSB based this recommendation on its
investigation of a 1999 highway-rail grade crossing accident at McLean,
Illinois, in which an Amtrak train collided with an automobile, killing
both the automobile driver and a passenger. The NTSB found that the
automobile driver had no warning that a train was approaching, since
the flashing lights and gates at the crossing had failed to activate.
The NTSB concluded that the probable cause of this activation failure
was a signal maintainer who, after taking the crossing equipment out of
service for maintenance, had made repairs and then left without
restoring the equipment back to operating status. Although the
maintainer was directly responsible for the signal and gate failure, he
was not subject to PAT testing because of the grade crossing control
exception. See NTSB, Railroad Accident Report: Collision of Amtrak
Train 304-26 with a Highway Vehicle at a Highway-Rail Grade Crossing
McLean, Illinois September 26, 1999, NTSB/
[[Page 43855]]
RAR-01/03, PB2001-916303, Sep. 18, 2001, at v, available at https://www.ntsb.gov/doclib/reports/2001/RAR0103.pdf. Since the 1999 McLean
collision, FRA has investigated other highway-rail grade crossing
accidents in which the actions of railroad employees and contractors
may have played a role. See FRA, Accident Investigation Report, HQ-
2005-106, at 4 (available at https://www.fra.dot.gov/eLib/Find#p1_z5_lAC_kHQ-2005-106) and Accident Investigation Report, HQ-2006-12, at 4
(available at https://www.fra.dot.gov/eLib/Find#p1_z5_lAC_kHQ-2006-12).
FRA's proposed new qualifying event termed ``human-factor highway-
rail grade crossing accident/incident'' would be in new paragraph
(a)(5). Under proposed paragraph (a)(5)(i), PAT testing would be
required after a highway-rail grade crossing accident/incident whenever
a regulated employee interfered with the normal functioning of a grade
crossing signal system, in testing or otherwise, without first
providing for the safety of highway traffic that depends on the normal
functioning of such a system. Because this language is adapted from the
prohibition against such interference contained in FRA's grade crossing
regulation (see 49 CFR 234.209), a grade crossing accident/incident
involving a Sec. 234.209 violation would qualify as a human-factor
highway-rail grade crossing accident/incident for PAT testing.\19\ See
FRA's Signal & Train Control Compliance Manual for additional guidance
on the meaning of interference.\20\
---------------------------------------------------------------------------
\19\ Section 234.209(b) states that ``interference'' includes
(but is not limited to): (1) trains, locomotives or other railroad
equipment standing within the system's approach circuit, other than
normal train movements or switching operations, where the warning
system is not designed to accommodate those activities; and (2) not
providing alternative methods of maintaining safety for the highway
user while testing or performing work on the warning systems or on
track and other railroad systems or structures which may affect the
integrity of the warning system.
\20\ According to the Signal & Train Control Compliance Manual,
``Interference is any condition that circumvents, hinders, impedes,
or diminishes whatsoever the intended warning of a system, and may
be accomplished by installing, repairing, replacing, operating, or
manipulating a warning system component used in detecting the
presence of or of displaying warning of a train, or indicating the
operation of the warning system. There is no difference between
accidental or intentional interference with respect to the
enforcement of this [rule].'' FRA, Signal & Train Control Compliance
Manual: Part 234--Grade Crossing Signal System Safety, at 234-24,
available at https://www.fra.dot.gov/eLib/Find#p1_z10_lCM_kSignal%20and%20Train%20Control.
---------------------------------------------------------------------------
Under proposed paragraphs (a)(5)(ii) and (a)(5)(iii), PAT testing
after a highway-rail grade crossing accident/incident would be required
if the event involved violations of the flagging duties found in FRA's
grade crossing regulations. See 49 CFR 234.105(c)(3)-(c)(2), 234.106,
and 234.107(c)(1)(i). The sections referenced in these paragraphs
permit trains to operate through malfunctioning grade crossings if an
appropriately equipped flagger, law enforcement officer, or crewmember
provides warning for each direction of highway traffic. For example,
when a false activation occurs, Sec. 234.107(c)(1)(i) requires
flagging by an appropriately equipped flagger if one is available.
Under proposed paragraphs (a)(5)(ii) and (a)(5)(iii), an employee who
failed to comply with this flagging requirement would be subject to PAT
testing if a highway-rail grade crossing accident/incident then
occurred. Under paragraph (a)(5)(iv), FRA would further narrow its
exclusion for highway-rail grade crossing accident/incidents by
requiring PAT testing if a fatality of a regulated employee performing
duties for the railroad was involved. As with fatal train incidents, a
deceased regulated employee would be subject to PAT regardless of
whether the employee was at fault. For example, a regulated employee
would be subject to PAT testing if the employee died while operating an
on-rail truck that collided with a motor vehicle at a highway-rail
grade crossing, regardless of who was at fault for the collision.
Similarly, paragraph (a)(5)(v) would require PAT testing if a
highway-rail grade crossing accident/incident involved a regulated
employee whose violation of an FRA regulation or railroad operating
rule may have played a role in the cause or severity of the accident/
incident. While proposed paragraphs (a)(5)(i)-(iv) of this section
would specify the circumstances under which PAT testing would be
required for highway-rail grade crossing accidents/incidents involving
human-factor errors, paragraph (a)(5)(v) would serve as a catch-all
provision to require PAT testing for highway-rail grade crossing
accidents/incidents that involve human-factor errors other than those
specified in paragraphs (a)(5)(i)-(iv).
Paragraph (b)
Currently, paragraph (b) provides that no PAT testing ``may be
required in the case of a collision between railroad rolling stock and
a motor vehicle or other highway conveyance at a rail/highway grade
crossing.'' FRA would make conforming changes to this paragraph to
allow PAT testing for human-factor highway-rail grade crossing
accident/incidents.
Section 219.203--Responsibilities of Railroads and Employees
Currently, this section sets forth general requirements for both
railroads and employees regarding PAT testing, by specifying which
employees must be tested, when employees must be excluded from PAT
testing, and the time and place of specimen collections. As discussed
further below, FRA is proposing substantive amendments to this section
to specify which employees must be tested in human-factor highway-rail
grade crossing accidents/incidents. Structural revisions are also being
proposed to increase the clarity and organization of this section.
Paragraph (a)--Employees Tested
Currently, paragraph (a) contains requirements regarding which
employees must be tested after the various qualifying events. FRA is
proposing to: (1) Reorganize and clarify this paragraph; and (2) add
new language specifying which employees must be tested after a human-
factor highway-rail grade crossing accident/incident.
Paragraph (a), Introductory Text
FRA would add introductory text in paragraph (a) stating that
regulated employees must cooperate with the collection of PAT testing
specimens. This existing requirement is currently found in the final
sentence of paragraph (a)(1)(i).
Paragraph (a)(1)
Proposed paragraph (a)(1) would state that a regulated employee
whose actions may have played a role in the cause or severity of a PAT
testing qualifying event (e.g., an operator, dispatcher, or signal
maintainer) must provide blood and urine samples for PAT testing,
regardless of whether the employee was present or on-duty at the time
or location of the qualifying event. This language is generally
consistent with the existing language of this section except that as
proposed, regulated employees who may not have been on-duty or present
at the time of a qualifying event are subject to PAT testing. This
difference reflects the proposed change to FRA's PAT testing recall
provisions, discussed in the section-by-section analysis below for
paragraph (e) of this section.
Paragraph (a)(2)
Proposed paragraph (a)(2) would specify that testing of the remains
of an on-duty employee fatally injured in a qualifying event is
required if the employee dies within 12 hours of the qualifying event
as a result of such
[[Page 43856]]
qualifying event, regardless of whether the employee was performing
regulated service, was at fault, or was a direct employee of a
railroad, or a volunteer or contractor to a railroad. Part 219 already
requires such fatality testing. See Sec. Sec. 219.11(f) and
219.203(a)(4)(ii).
Paragraph (a)(3)
Proposed paragraph (a)(3) would contain requirements specifying
which regulated employees must be tested for major train accidents.
Paragraph (a)(3)(i) would clarify that all crew members of on-track
equipment involved in a major train accident must be PAT tested,
regardless of fault. This requirement already applies to all crew
members of trains involved in a major train accident. See Sec.
219.203(a)(3). Paragraph (a)(3)(ii) would require a regulated employee
who is not an assigned crew member of an involved train or other on-
track equipment to be PAT tested, if it can be immediately determined
that the regulated employee may have played a role in the cause or
severity of the major train accident.
Paragraph (a)(4)
Proposed paragraph (a)(4), which applies specifically to fatal
train incidents, would state that the remains of an on-duty employee
performing duties for a railroad who is fatally injured during the
event must be tested, regardless of whether he or she was performing
regulated service, was at fault, or was an employee or volunteer for a
railroad or contractor to a railroad.
Paragraph (a)(5)
Proposed new paragraph (a)(5) would contain new language specifying
which regulated employees must be PAT tested following human-factor
highway-rail grade crossing accidents/incidents. Proposed paragraph
(a)(5)(i) would clarify that under proposed Sec. 219.201(a)(5)(i),
only regulated employees who interfered with the normal functioning of
a grade crossing signal system and whose actions may have contributed
to the cause or severity of the event must be PAT tested. Proposed
paragraphs (a)(5)(ii) and (a)(5)(iii) would clarify the testing
requirements for human-factor highway-rail grade crossing accidents/
incidents under proposed Sec. 219.201(a)(5)(ii) and (iii). These
paragraphs specify that in the event of a grade crossing activation
failure, PAT testing would be required if a regulated employee
responsible for flagging (either flagging highway traffic or acting as
an appropriately equipped flagger as defined in Sec. 234.5), or an on-
site regulated employee directly responsible for ensuring flagging,
either fails to do so, or contributes to the cause or severity of the
accident/incident.
Proposed paragraph (a)(5)(iv) would clarify that, for human-factor
highway-rail grade crossing accidents/incidents under Sec.
219.201(a)(5)(iv), the remains of the fatally-injured regulated
employee(s) (as defined in Sec. 219.5) must be tested.
Proposed paragraph (a)(5)(v) would clarify that, for human-factor
highway-rail grade crossing accidents/incidents under Sec.
219.201(a)(5)(v), only a regulated employee who violated an FRA
regulation or railroad operating rule and whose actions may have
contributed to the cause or severity of the event must be tested.
Paragraph (a)(6)
Proposed paragraph (a)(6) would reword the requirement currently in
Sec. 219.203(a)(3), which states that a railroad must exclude from PAT
testing an employee involved in an impact accident or passenger train
accident with injury, or a surviving employee involved in a fatal train
incident, if the railroad immediately determines that the employee had
no role in the cause or severity of the event. In making this
determination, a railroad must consider the same immediately available
information it considers in determining whether an event qualifies for
PAT testing under Sec. 219.201. Proposed paragraph (a)(6) would
similarly exclude an employee who survives a human-factor highway-rail
grade crossing accident/incident. In contrast, proposed paragraphs
(a)(6)(i) and (a)(6)(ii) would clarify that a regulated employee who
has been involved in a major train accident or any employee who has
been fatally injured in a qualifying event while on-duty must be
subject to PAT testing.
Paragraph (b)--Railroad Responsibility
Proposed paragraph (b)(1) would incorporate an amended version of
language currently contained in paragraph (a)(1)(i), under which a
railroad must take all practicable steps to ensure that each regulated
employee who is subject to PAT testing provides specimens as required,
including a regulated employee who may not have been present or on-duty
at the time of the PAT testing event, but who may have played a role in
its cause or severity. Including such regulated employees who may not
have been present or on-duty at the time of the qualifying event
reflects a proposed change to FRA's PAT testing recall provisions, as
discussed below in paragraph (e) of this section.
Paragraph (b)(3) would state that FRA PAT testing takes precedence
over any toxicological testing conducted by state or local law
enforcement officials. This would not be a new requirement, since it
incorporates FRA guidance that testing performed by local law
enforcement must not interfere with FRA PAT testing. See Interpretive
Guidance Manual at 20.
Paragraph (c)--Alcohol Testing
Paragraph (c) would contain language currently found in paragraph
(a)(1)(ii), which allows a railroad to require a regulated employee who
is subject to PAT testing to also be subject to additional PAT breath
alcohol testing. A railroad may not, however, conduct breath alcohol
testing on an employee who has been recalled for PAT testing unless the
employee is still on and has never left railroad property. If an
employee has been recalled after having left railroad property, the
employee's breath test result would have no probative value, since a
``positive'' breath alcohol test result could be due to legitimate
alcohol use that occurred after the employee went off-duty and left
railroad property. Paragraph (e)(4) below also addresses employee
recall.
Paragraph (d)--Timely Specimen Collection
A new paragraph (d)(1) would combine two requirements currently
found elsewhere in this subpart: (1) The requirement in existing
paragraph (b)(1) of this section that railroads make ``every reasonable
effort to assure that specimens are provided as soon as possible after
the accident or incident,'' and (2) the requirement in current Sec.
219.209(c) stating that if specimens are not collected within 4 hours
of the qualifying event, the railroad must prepare and maintain a
record stating the reasons the test was not promptly administered.
(Specimens not collected within 4 hours should still be collected as
soon thereafter as possible, in accordance with Sec. 219.203(b)(1).)
FRA is also proposing to require a railroad to notify FRA's Drug
and Alcohol Program Manager immediately by phone whenever a specimen
collection takes longer than four hours. In addition, Sec. 219.209(c)
currently requires a railroad to prepare a written explanation of any
delay in specimen collection beyond four hours, but does not require
the railroad to submit that report unless requested to do so by FRA.
FRA is proposing to amend this provision to require railroads to submit
these written reports within 30 days after expiration of the month
during which the qualifying event occurred. FRA is also proposing to
move the language currently in paragraphs (b)(2),
[[Page 43857]]
(b)(3), and (b)(4) (pertaining to written delay reports) to proposed
paragraphs (d)(2), (d)(3), and (d)(4), respectively. Proposed paragraph
(d)(4), however, would no longer contain any requirements concerning
the recall of employees for testing because FRA is proposing to move
these employee recall requirements to proposed paragraph (e), as
discussed immediately below.
Paragraph (e)--Employee Recall
Currently, paragraph (b)(4) of this section addresses employee
recall for the purpose of PAT testing. Generally, that paragraph
provides that a railroad must retain in duty status any covered
employees who may be subject to PAT testing until a railroad
representative determines whether an event qualifies for PAT testing
and, if it does qualify, who must be PAT tested (see Sec. 219.201).
Furthermore, that paragraph also currently provides that an employee
may not be recalled for PAT testing if the employee has been released
from duty under normal procedures, except for in very narrow
circumstances (i.e., a railroad may recall an employee for testing
after he or she has been released from duty only if: (1) The employee
went off duty under the normal procedures of the railroad prior to
being instructed by a railroad supervisor to remain on duty pending
completion of the required determinations; (2) the railroad's
preliminary investigation indicates a clear probability that the
employee played a major role in the cause and/or severity of the
qualifying event; and (3) the qualifying event actually occurred during
the employee's tour of duty. Currently, however, a railroad is not
required to recall a covered employee for PAT testing, even if these
conditions have been met. Existing paragraph (b)(4) also provides that
an employee who has been transported to receive medical care is not
off-duty for purposes of PAT testing.
In addition to moving these recall provisions into new paragraph
(e), as discussed earlier, FRA is proposing to require employees to be
recalled for PAT testing in certain situations. Employee recall would
be required in these situations even if the qualifying event did not
occur during the employee's duty tour. To further consolidate these
provisions, FRA would move to paragraph (e)(1) language currently in
paragraph (b)(4)(iii), which states that an employee who has been
transported to receive medical care has not been released from duty for
purposes of PAT testing and that a railroad is not prohibited from
testing an employee who has failed to remain available for PAT testing
as required. Proposed paragraph (e)(1) would also generally prohibit a
railroad from recalling an employee for PAT testing if the employee has
already been released from duty under the normal procedures of the
railroad, unless the conditions in proposed paragraph (e)(2) have been
met.
Proposed paragraph (e)(2) would mandate employee recall for PAT
testing if two of the three requirements in existing paragraph (b)(4)
are met. As proposed, an employee would have to be immediately recalled
and placed on duty for PAT testing if: (1) The railroad could not
retain the employee in duty status because he or she went off duty
under normal carrier procedures before being instructed to remain on
duty pending the testing determination; and (2) the railroad's
preliminary investigation indicated a clear probability that the
employee played a role in the cause or severity of the accident/
incident. As proposed, the current requirement for the qualifying event
to have occurred during the employee's duty tour would be removed.
Proposed paragraph (e)(3) would require an employee to be recalled
regardless of whether the qualifying event occurred while the employee
was on duty, except that an employee could not be recalled if more than
24 hours has passed since the event. This paragraph would also clarify
that an employee who has been recalled for PAT testing must be placed
on duty before he or she is PAT tested.
Proposed paragraph (e)(4) would specify that both urine and blood
specimens must be collected from an employee who is recalled for PAT
testing. For the reasons discussed earlier in paragraph (c) of this
section, if an employee left railroad property before being recalled,
the employee's specimens could be tested for drugs only. A recalled
employee may be tested for alcohol, however, if he or she stayed on
railroad property and the railroad's company policy completely
prohibits the use of alcohol on railroad property.
Proposed paragraph (e)(5) would require a railroad to document its
attempts to contact an employee who must be recalled for PAT testing.
As proposed, the railroad must also notify FRA and provide
documentation in accordance with the requirements of paragraph (d)(1)
if it is unable to contact and obtain a specimen from an employee
subject to the mandatory recall requirement within 24 hours of a
qualifying event. In the narrative report that the railroad submits to
FRA, the railroad must show that it made a good faith effort to contact
the employee, recall the employee, place the employee on duty, and
obtain specimens from the employee.
For illustrative purposes, under these proposed recall provisions,
a railroad would be required to recall a dispatcher whose actions had
played a role in the cause of a qualifying event, even if the
dispatcher went off duty before the event occurred. While the
dispatcher would have to be recalled as soon as the determination to
test is made (and no later than within 24 hours of the qualifying
event), the dispatcher could not be alcohol tested unless he or she had
remained on railroad property and the railroad's company policy
completely prohibits the use of alcohol on railroad property. As
another example, if a switch crew had left a switch improperly lined or
a yard crew had failed to apply sufficient hand brakes to a cut of cars
that rolled away, the crew would have to be recalled for PAT testing
even if they had gone off-duty, so long as the additional requirements
of proposed paragraph (e)(2) had been met.
Paragraph (f)--Place of Specimen Collection
As part of the proposed reorganization of this section, FRA is
proposing to move the provisions contained in current paragraph (c)
regarding the place of specimen collection to new paragraph (f).
Currently, paragraph (c) requires an employee who is subject to PAT
testing to be transported to a pre-designated independent medical
facility for collection of PAT testing specimen(s). In proposed
paragraph (f), FRA would clarify that this requirement applies only to
the collection of urine and blood specimens, since optional PAT breath
alcohol tests do not have to be conducted at an independent medical
facility. (Proposed Sec. 219.203(c) authorizes a railroad to conduct
Federal breath alcohol testing in accordance with part 40 following a
qualifying event, so long as the testing does not interfere with the
timely collection of required specimens in compliance with part 219.)
Although FRA believes that as a best practice railroads should pre-
designate medical facilities for PAT testing as much as practicable,
FRA is proposing to remove this requirement because of several
impractical burdens it poses. For example, an emergency responder may
take an injured employee to a non-designated medical facility, and the
prompt treatment of injured employees must take precedence over any
railroad pre-designation. Furthermore, even if a railroad pre-
designates a medical
[[Page 43858]]
facility, the medical facility and its employees may not be aware of or
honor this designation.
FRA is also proposing to clarify in paragraph (f)(1) that a
phlebotomist (a certified technician trained and qualified to draw
blood in accordance with state requirements) is a ``qualified medical
professional'' who may draw blood specimens for PAT testing. (For PAT
testing purposes, a qualified medical professional does not need to be
qualified under the requirements of part 40, since part 40 does not
apply to FRA PAT testing.) FRA would also clarify that a qualified
railroad or hospital contracted collector may collect or assist in the
collection of specimens, so long as the medical facility has no
objections.
Proposed paragraph (f)(2) would clarify that employees who are
subject to performing regulated service are deemed to have consented to
PAT testing under Sec. 219.11(a), as employees who perform covered
service already are. FRA would also allow urine to be collected from an
injured regulated employee who has already been catheterized for
medical purposes, regardless of whether the employee is conscious,
although a regulated employee could not be catheterized solely for the
purpose of collecting a PAT urine specimen. Although this language was
previously contained in part 219, it was removed when part 40 addressed
the issue (under part 40, urine may be collected from a person
catheterized for medical purposes only if that person is conscious).
This proposal would allow urine to be collected from an unconscious
catheterized employee only for PAT testing, since FRA PAT testing is
not subject to part 40's prohibition against collecting urine from an
unconscious person. This proposed change would not, however, apply to
other FRA tests that are subject to the requirements of part 40, such
as reasonable cause or random testing.
Paragraph (g)--Obtaining Cooperation of Facility
FRA proposes to move the provisions regarding the obtaining of a
medical facility's cooperation for PAT testing, currently contained in
paragraph (d), to a new paragraph (g). Proposed paragraph (g)(1) would
require railroads to refer to the instructions and information in FRA's
PAT testing shipping kit and the requirements of subpart C when seeking
the cooperation of a medical facility. FRA is also proposing to amend
this paragraph by removing one of the two phone numbers given for the
National Response Center (NRC), 1-800-424-8801, as this phone number no
longer belongs to the NRC.
Paragraph (h)--Discretion of Physician
As part of its reorganization of this section, FRA would move the
statement that nothing in this subpart limits a medical professional's
discretion to determine whether drawing a blood specimen is consistent
with the health of an employee subject to PAT testing from its current
location in paragraph (e) to new paragraph (h). FRA is proposing no
substantive amendments to this language.
Section 219.205--Specimen Collection and Handling
This section contains requirements regarding the collection and
handling of specimens collected for PAT testing. Generally, specimens
must be collected using an FRA PAT testing shipping kit and Form FRA
6180.73 and must be shipped to FRA's designated laboratory within
certain time limitations.
Paragraph (a)
Currently, paragraph (a) provides that PAT testing specimens must
be ``obtained, marked, preserved, handled, and made available to FRA
consistent with the requirements of this subpart, and the technical
specifications set forth in Appendix C to this part.'' FRA is proposing
to amend this language to add that specimens must also be collected
according to the instructions in the PAT shipping kit.
Paragraph (b)
FRA would remove language in paragraph (b) stating that Forms
6180.73 and 6180.74 may be ``ordered from the laboratory specified in
Appendix B [to part 219].'' This language is no longer necessary
because FRA now includes Forms 6180.73 and 6180.74 in its standard PAT
shipping kits, and Form 6180.75 in its fatality kits.
Paragraph (c)
In paragraph (c)(1), FRA proposes to delete the phrase ``whenever
possible'' to emphasize that railroads are always required to follow
the instructions in the shipping kit and Appendix C when placing PAT
testing specimens in the shipping kit and preparing them for shipment.
Currently, paragraph (c)(2) states that shipping kits may be
ordered directly from the FRA-designated laboratory. FRA is proposing
to amend this language to require that a railroad request an order form
from FRA's Drug and Alcohol Program Manager before ordering a PAT
shipping kit from its designated PAT laboratory. In addition, FRA would
clarify that fatality shipping kits are being made available only to
Class I, Class II, and commuter railroads to conserve resources. In the
rare instance where a small railroad has a PAT testing event involving
a fatality to an on-duty employee, the small railroad should contact
the National Railroad Response Center. FRA will then provide a fatality
kit to a medical examiner or assist the small railroad in obtaining one
from a larger railroad.
FRA is also proposing to remove paragraph (c)(3), which states that
a limited number of shipping kits are available at FRA's field offices,
since FRA field offices no longer have these kits.
Paragraph (d)
Currently, paragraph (d) requires specimens to be shipped as soon
as possible by pre-paid ``air express or air freight (or other means
adequate to ensure delivery within twenty-four (24) hours from time of
shipment).'' FRA proposes to remove the language regarding ``air
freight'' shipments so that specimens must be shipped by air express or
other adequate means. FRA also proposes to allow railroads greater
flexibility by allowing them to hold specimens in a secure refrigerator
if delivery cannot be ensured within 24 hours due to a suspension in
delivery services. As proposed, a secure refrigerator could be used to
hold specimens for a maximum of 72 hours, since FRA believes this is
ample time for a railroad to ensure shipment of specimens through
alternative means.
Paragraph (e)
To ensure greater specimen security, FRA proposes to add new
paragraph (e) to this section, which would prohibit a specimen kit or a
transportation box from being opened after it has been sealed, even if
a railroad or medical facility discovers that an error had been made
either with the specimens or the chain of custody form. If such an
error is discovered, the railroad or medical facility must make a
contemporaneous written record of it and send that record to the
laboratory, preferably with the transportation box.
Section 219.207--Fatality
FRA is proposing several minor clarifying amendments to this
section, which contains requirements specifically addressing fatality
PAT testing. None of these amendments are intended to have a
substantive effect on the requirements of this section.
For fatalities, existing paragraph (a) requires railroads to obtain
``body fluid and/or tissue specimens.'' FRA is
[[Page 43859]]
proposing to amend this language to replace ``and/or'' with ``and,'' as
FRA has always expected railroads to collect both body fluid and tissue
specimens. (FRA is proposing a similar clarification to paragraph (c)).
In addition, FRA would clarify that the shipping kit referenced in this
paragraph is the ``post-mortem shipping kit.''
In paragraph (b), FRA is proposing to remove one of the two phone
numbers given for the National Response Center (NRC), 1-800-424-8801,
since this phone number is no longer correct.
Paragraph (d) currently states that ``Appendix C to this part
specifies body fluid and tissue specimens for toxicological analysis in
the case of a fatality.'' FRA is proposing to clarify that this
information can also be found in the ``instructions included inside the
shipping kits.''
Section 219.209--Reports of Tests and Refusals
Currently, paragraph (a)(2)(v) of this section requires railroads
reporting tests and refusals to include the number, names, and
occupations of tested employees. To protect privacy interests and
reduce reporting burdens, FRA is proposing to require railroads to
report only the number of employees tested.
Existing paragraph (b) requires a railroad to provide FRA a
``concise narrative report'' if, as a result of non-cooperation of an
employee or any other reason, it is unable to obtain PAT testing
specimens from an employee subject to PAT testing. As proposed, FRA
would require the railroad to immediately notify FRA's Drug and Alcohol
Program Manager by phone of the failure, in addition to the current
requirement for a written, narrative report. If a railroad
representative is not able to speak directly to the FRA Drug and
Alcohol Program Manager, the railroad must leave a detailed voicemail
explaining the circumstances and reasons for the failure. This
telephonic report would assist both railroads and FRA in determining
whether an employee has refused to be tested.
Currently, paragraph (c) requires railroads to maintain records
explaining why PAT testing was not performed within four hours of a
qualifying event. FRA is proposing to delete this requirement from
Sec. 219.209 because it is already addressed in proposed Sec.
219.203(d)(1), as discussed above in the section-by-section analysis
for that section.
Section 219.211--Analysis and Follow-Up
Since part 40 does not apply to FRA PAT testing, FRA is proposing
to amend paragraph (b) of this section to incorporate part 40's
prohibition on standing down (temporarily removing from service) an
employee solely based upon a laboratory report indicating a non-
negative test result, before the MRO has completed verification of this
test result. See Sec. 40.21(a). As proposed, an employee could be
removed from regulated service only after an MRO has verified that the
employee has had a confirmed positive test for a drug or drug
metabolite, an adulterated test, or a substituted test.
Paragraph (c) would be amended to provide the address of the FRA
Associate Administrator for Railroad Safety.
Paragraph (e) would be amended to replace ``Alcohol/Drug Program
Manager'' with ``Drug and Alcohol Program Manager'' for consistency
throughout part 219. FRA would also amend this paragraph to permit
employees to respond to test results more easily through email.
Currently, paragraph (g)(3) provides that FRA's PAT testing program
does not authorize railroads to hold an employee out of service pending
the receipt of the test results, ``nor does it restrict a railroad from
taking such action in an appropriate case.'' FRA would clarify that a
railroad must have additional information regarding an employee's
actions or inaction, independent of the mere fact that he or she was
involved in a qualifying event, to justify holding him or her out of
service under its own authority. As with the proposed stand-down
provision in paragraph (b) regarding laboratory reports, FRA seeks to
clarify that an employee's involvement in a PAT testing event is not in
itself a basis for holding the employee out of regulated service.
Section 219.213--Unlawful Refusals; Consequences
Currently, paragraph (b) requires a railroad to provide notice to
an employee who is being withdrawn from service under part 219 for
refusing to provide a specimen for PAT testing. FRA is proposing to
amend this paragraph to clarify that this notice must be in writing.
Subpart D--Reasonable Suspicion Testing
Currently, the requirements for both reasonable suspicion testing
and reasonable cause testing are contained in Subpart D--Testing for
Cause. Because these types of tests are similarly named, reasonable
suspicion testing is frequently confused with reasonable cause testing
even though their criteria are completely different, and reasonable
suspicion testing is mandatory while reasonable cause testing is
discretionary. To highlight the distinctions between these two types of
tests, FRA is proposing to separate its reasonable suspicion and
reasonable cause testing requirements into two subparts. While subpart
D would continue to contain FRA's requirements for reasonable suspicion
testing, FRA's reasonable cause testing requirements would be moved to
proposed subpart E. (The Identification of Troubled Employees
requirements currently in subpart E would be moved to new subpart K,
which would address Peer Prevention Programs.)
Section 219.301--Mandatory Reasonable Suspicion Testing
This section would contain general provisions requiring railroads
to conduct reasonable suspicion testing. The language in paragraph (a),
which addresses reasonable suspicion alcohol tests, and paragraph (b),
which addresses reasonable suspicion drug tests, would be generally
consistent with the existing requirements in Sec. 219.300, but FRA is
proposing new language in paragraph (a) to clarify that a reasonable
suspicion alcohol test is not required to confirm an on-duty employee's
possession of alcohol.
Paragraph (c) would require all reasonable suspicion tests to
comply with the requirements of proposed Sec. 219.303 (which is
generally consistent with existing requirements found in Sec.
219.300(b) and is discussed in more detail below).
Paragraph (d) would reference the provision in proposed Sec.
219.11(b)(2) stating that in a case where an employee is suffering a
substantiated medical emergency and is subject to alcohol or drug
testing under part 219, necessary medical treatment must be accorded
priority over provision of the breath or body fluid specimens. This
replaces similar language currently found in Sec. 219.300(c), which
states that reasonable suspicion testing is not required when a
regulated employee is in need of immediate medical attention. However,
FRA proposes to add new language in proposed Sec. 219.305 clarifying
that reasonable suspicion testing is still required if the employee's
condition stabilizes within eight hours.
Section 219.303--Reasonable Suspicion Observations
This section would contain the requirements for reasonable
suspicion observations currently in Sec. 219.300(b).
[[Page 43860]]
Paragraph (a)
The language in paragraph (a), which addresses the observations
required for alcohol tests, and paragraph (b), which addresses the
observations required for drug tests, would be generally consistent
with the existing reasonable suspicion observation requirements in
Sec. 219.300(b), although additional language would be added to both
paragraphs to clarify that these observations must be made by a
``responsible railroad supervisor.''
Paragraph (b)
Additional language in paragraph (b) would clarify that although
two supervisors are required to make the required observations for
reasonable suspicion drug testing, only one of these supervisors must
to be on-site and trained in accordance with Sec. 219.11(g). This
incorporates long-standing FRA guidance, since two on-site trained
supervisors are rarely available. See Compliance Manual 11.3.3.3. The
supervisor who is trained and on-site is required to describe the signs
and symptoms that he or she observed to the off-site supervisor so that
the off-site supervisor can confirm that reasonable suspicion of drug
abuse exists. Because of privacy concerns, this communication between
supervisors may be made by telephone, but not by radio or email.
Paragraph (c)
FRA is proposing new language in paragraph (c). Under this new
language, a regulated employee who has had an FRA reasonable suspicion
test may not be held out of service pending receipt of the employee's
test result, although a railroad may hold the employee out of service
under its own authority if the railroad has an independent basis for
doing so. For example, a railroad may remove a regulated employee from
service if the employee is exhibiting signs of drunken behavior,
regardless of whether Federal reasonable suspicion testing was
performed.
Paragraph (d)
Paragraph (d) would contain new language requiring railroads to
document and maintain the basis for each determination to conduct a
reasonable suspicion test (e.g., the determining supervisor(s)'s
observations of the employee's signs and symptoms). The trained
supervisor who made the determination should complete this
documentation as soon as practicable. This proposal would incorporate
FRA's long-standing guidance and interpretation regarding this
requirement. See id.
Section 219.305--Prompt Specimen Collection; Time Limits
This section would contain provisions regarding the prompt
collection of specimens for reasonable suspicion testing. These
requirements are currently found in Sec. 219.300(d)(1) and Sec.
219.302(a), (c), and (e).
Paragraph (a)
Proposed paragraph (a) would contain language currently in Sec.
219.302(a), which specifies that, consistent with the need to protect
life and property, testing must be promptly conducted following the
observations upon which the reasonable suspicion testing determination
is based.
Paragraph (b)
Paragraph (b) would state that whenever a railroad cannot collect
reasonable suspicion testing specimens within two hours of the
determination to test, the railroad must prepare and maintain a record
explaining the reasons for the delay. If, however, a railroad has not
collected reasonable suspicion testing specimens within eight hours of
its determination to test, the railroad must discontinue its collection
attempts and record why the test could not be conducted. Currently,
this requirement is found only in Sec. 219.300(d)(1) and applies only
to reasonable suspicion alcohol tests, but FRA is proposing to
specifically apply this requirement to reasonable suspicion drug tests
as well. The proposed requirement for a railroad to cease its attempts
to conduct a reasonable suspicion drug test if it has not done so
within eight hours of the railroad's determination to test would
supersede the current language in Sec. 219.302(b)(1) (which currently
addresses both reasonable suspicion and reasonable cause testing).
Consistent with existing language in Sec. 219.302(e), paragraph (b)
would specify that the eight-hour deadline has been met if the railroad
has delivered the employee to the collection site (where the collector
is present) and made a request to commence specimen collection.
Proposed paragraph (b) would also contain language similar to that
currently in Sec. 219.300(d)(1), under which reasonable suspicion
testing records required by that section must be submitted upon request
of the FRA Administrator. The amended requirement in paragraph (b)
would instead require these records to be submitted upon request of the
FRA Drug and Alcohol Program Manager.
Paragraph (c)
Paragraph (c) would incorporate, without change, language currently
found in Sec. 219.302(c), which addresses the reasonable suspicion
testing of employees who have been released from duty, who have been
transported to receive medical care, or who have failed to remain
available for testing.
Subpart E--Reasonable Cause Testing
As discussed above, FRA is proposing to move its reasonable cause
testing requirements from subpart D to subpart E to separate reasonable
suspicion and reasonable cause testing into distinct subparts. As
discussed further below, FRA is proposing the following substantive
amendments to its reasonable cause testing requirements: (1) Requiring
a railroad to select and perform all reasonable cause testing under
either FRA or company authority; (2) specifying that reasonable cause
testing is only authorized after ``train accidents'' and ``train
incidents,'' as defined in Sec. 219.5; and (3) adding new rule
violations or other errors related to railroad operating practices as a
basis for Federal reasonable cause testing.
Section 219.401--Authorization for Reasonable Cause Testing
This section would contain an amended version of the conditions for
FRA reasonable cause testing currently in Sec. 219.301. Under Sec.
219.301, a railroad currently has three options if the conditions for a
reasonable cause test outlined in the section have been met: (1)
Conducting a reasonable cause test under FRA authority; (2) conducting
a reasonable cause test under its own authority; or (3) choosing not to
conduct a reasonable cause test. A railroad does not have to announce
in advance or be consistent as to which option it chooses; thus, a
railroad may decide to conduct an FRA reasonable cause test for one
event, and a company reasonable cause test for the next, without any
explanation. This flexibility has, unfortunately, had the unintended
effect of creating confusion within the railroad industry. In some
instances, FRA believes it has led to arbitrary decision making by
railroads. For example, Federal reasonable cause testing is sometimes
performed in situations that don't meet one of the conditions specified
in current Sec. 219.301, but which would nevertheless qualify for
company reasonable cause testing.
In new paragraph (a), FRA is proposing to address these issues by
requiring each railroad to decide and announce (in the educational
materials the railroad would be required to
[[Page 43861]]
provide to its regulated employees under Sec. 219.23(e)(5)) whether it
will be exclusively using FRA or its own authority for reasonable cause
testing after Sec. 219.403 testing events. For example, under this
proposal, a railroad that announces it will be using FRA authority for
reasonable cause tests would then be prohibited from conducting
reasonable cause tests under its own authority. However, this
restriction would apply only to reasonable cause tests conducted after
an event listed in Sec. 219.403. A railroad may always use its own
authority to test for events that are outside of FRA's criteria for
reasonable cause testing.
Consistent with existing Sec. 219.301(a), proposed paragraph (b)
of this section would authorize railroads to conduct reasonable cause
testing under certain conditions. FRA is not proposing any substantive
changes to this general authorizing language, except to clarify that it
would apply only when a railroad conducts reasonable cause testing
under FRA authority.
Section 219.403--Requirements for Reasonable Cause Testing
This section would describe when FRA reasonable cause testing is
authorized. As briefly discussed earlier in Section V.H of this
preamble, FRA is proposing to specify that reasonable cause testing is
authorized only after ``train accidents'' and ``train incidents,'' as
defined in Sec. 219.5, and not after all part 225 reportable
``accidents/incidents.'' In addition, as briefly discussed earlier in
Section V.I of this preamble, FRA is proposing to authorize Federal
reasonable cause testing for additional rule violations or other errors
that reflect the expansion of part 219 to MOW workers, relate to signal
systems and highway-rail grade crossing warning systems, and reflect
recent amendments to 49 CFR part 218, Railroad Operating Practices.
Introductory Text
If a potential reasonable cause testing event occurs, FRA would
require a railroad to determine whether it has the authority to conduct
an FRA reasonable cause test before it can begin reasonable cause
testing process. As proposed, a railroad would have to make a threshold
determination about its authority before it can conduct a reasonable
cause test.
Paragraph (a)
Existing Sec. 219.301(b)(2) is currently titled ``Accident/
incident'' and authorizes reasonable cause testing following ``an
accident or incident reportable under part 225'' when ``a supervisory
employee of the railroad has a reasonable belief, based on specific,
articulable facts, that the employee's acts or omissions contributed to
the occurrence or severity of the accident or incident.'' FRA is
proposing to make this language paragraph (a) of this section and amend
it to clarify that reasonable cause testing is only authorized
following train accidents and train incidents, as defined in Sec.
219.5.
FRA believes the phrases ``accident/incident'' and ``accident or
incident reportable under part 225'' in existing Sec. 219.301(b)(2)
could imply that FRA reasonable cause testing is authorized after all
part 225 reportable accidents/incidents. This implication is
problematic because the term accident/incident, as defined in Sec.
225.5, includes many events that should not justify FRA reasonable
cause testing. Specifically, the term ``accident/incident'' includes
many employee injuries and illnesses that are designed to conform with
OSHA's recordkeeping/reporting requirements, but that do not
necessarily fall otherwise within FRA's railroad safety
jurisdiction.\21\ See Accident Reporting Guide at 1-2 (stating that
``FRA's accident/incident reporting regulations that concern railroad
occupational casualties should be maintained, to the extent
practicable, in general conformity with OSHA's recordkeeping and
reporting regulations'').
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\21\ Because FRA's employee injury and illness recordkeeping/
reporting requirements employ equivalent standards to those
promulgated by OSHA, OSHA permits railroads to record and report
employee injuries and illnesses only to FRA. Id. FRA then shares
this employee injury and illness data with OSHA. Id. at 2.
---------------------------------------------------------------------------
FRA audits have found some instances in which this confusing
language has led a railroad to conduct FRA reasonable cause testing
after all reportable injuries, regardless of whether or not a
reportable injury was connected with the movement of on-track
equipment. For example, FRA has encountered situations where railroads
were conducting FRA reasonable cause testing after slips, trips, and
falls resulting in a reportable injury, even if the railroad had
insufficient reason to believe that the employee's act or omission
contributed to the injury (which is also a violation of existing Sec.
219.301(b)(2)).
Furthermore, confusion about whether FRA reasonable cause testing
is authorized following all part 225 reportable accidents/incidents
could potentially create a situation where a railroad utilizes FRA
reasonable cause testing in a clearly inappropriate situation. For
example, the Sec. 225.5 definition of ``accident/incident'' includes
occupational illnesses, such as carpal tunnel syndrome, carbon monoxide
poisoning, noise-induced hearing loss, and various dust diseases of the
lungs. See Accident Reporting Guide at Appendix E-2 through E-5. FRA
also requires railroads to record and report certain suicide data,
including a suicide attempt made by an employee on duty. See id. at 33.
These are just a few examples of the events that could qualify as part
225 reportable accident/incidents that FRA believes should clearly not
serve as a basis for FRA reasonable cause testing.\22\
---------------------------------------------------------------------------
\22\ Although Sec. 219.5 does currently define ``accident or
incident reportable under part 225'' to exclude ``covered data''
cases under part 225, ``covered data'' cases are only a small subset
of part 225 reportable accidents/incidents that should not authorize
FRA reasonable cause testing.
---------------------------------------------------------------------------
FRA is proposing to correct this confusion by specifying in
proposed Sec. 219.403(a) that FRA reasonable cause testing is
authorized following ``train accidents'' and ``train incidents,'' as
defined by Sec. 219.5, when a responsible railroad supervisor has a
reasonable belief, based on specific, articulable facts, that the
individual employee's acts or omissions contributed to the occurrence
or severity of the train accident or train incident. By using the terms
train accident and train incident, FRA is attempting to remove any
implication that reasonable cause testing could be authorized following
any part 225 reportable accident/incident. (A railroad would still
remain free, however, to perform company authority reasonable cause
testing for an accident/incident that otherwise did not qualify as a
train accident or train incident.) FRA specifically requests public
comment on the clarity of the proposed language.
As an editorial change, FRA is also proposing to replace the term
``supervisory employee'' with ``responsible railroad supervisor'' for
consistency with the remainder of the subpart.
Paragraph (b)
Paragraph (b) would contain a list of rule violations and other
errors that would be grounds for FRA reasonable cause testing when a
regulated employee is directly involved. The rule violations and other
errors currently in Sec. 219.301(b)(3) would be moved to proposed
paragraphs (b)(1)-(b)(4), (b)(6)-(b)(8), and (b)(10) of this section,
without any substantive amendments. Proposed paragraphs (b)(5), (b)(9),
(b)(11)-(b)(12), and (b)(13)-(b)(18) would contain additional rule
violations and other errors that would be new
[[Page 43862]]
grounds for FRA reasonable cause testing, as discussed below.\23\
---------------------------------------------------------------------------
\23\ Railroads should note that FRA reasonable cause drug
testing authority does not apply if a rule violation or error
results in an event that qualifies for mandatory PAT testing under
Sec. 219.201. See Sec. 219.301(e). Reasonable cause alcohol
testing authority may, however, currently be exercised in PAT
testing situations when ``breath test results can be obtained in a
timely manner at the scene of the accident and conduct of such tests
does not materially impede the collection of specimens under subpart
C.'' Id. Similar provisions (amended as discussed below) are found
in Sec. 219.409 of the proposed rule.
---------------------------------------------------------------------------
Additional Rule Violations or Other Errors Related to Railroad
Operating Practices
In proposed paragraphs (b)(5) and (b)(9), FRA would add two new
categories to the rule violations or other errors that are grounds for
reasonable cause testing. These additional categories reflect recent
amendments to 49 CFR part 218--Railroad Operating Practices.
In 2008, FRA amended part 218 to require railroads to adopt and
comply with operating rules regarding shoving and pushing movements and
the operation of switches. See 73 FR 8475-8482, Feb. 13, 2008.
Specifically, Sec. Sec. 218.103-218.107 require railroads to adopt and
comply with operating rules regarding switches. FRA believes that many
of these operating rule requirements for switches are already reflected
by the current reasonable cause testing provisions, which authorize
testing for ``[a]lignment of a switch in violation of a railroad rule,
failure to align a switch as required for movement, operation of a
switch under a train, or unauthorized running through a switch'' and
``[e]ntering a crossover before both switches are lined for movement or
restoring either switch to normal position before the crossover
movement is completed.'' Sec. 219.301(b)(3)(iv) and (vii).
Nevertheless, paragraph (b)(5) would authorize FRA reasonable cause
testing if a regulated employee fails to restore and secure a main
track switch when required.
Similarly, Sec. 218.99 establishes certain requirements for
railroad operating rules regarding shoving and pushing movements. FRA
is proposing to authorize reasonable cause testing only for certain
Sec. 218.99 operating rule violations. For instance, FRA would not
authorize such testing when the violation of an operating rule does not
pose a sufficient safety concern (e.g., a failure to conduct a required
job briefing). FRA would, however, authorize reasonable cause testing
if a regulated employee violates a valid Sec. 218.99(b)(3) railroad
operating rule addressing point protection.
Additional Rule Violations or Other Errors Related to MOW
Employees
To reflect the proposed expansion of part 219 to cover MOW
employees, paragraphs (b)(13)-(b)(17) would authorize FRA reasonable
cause testing for certain rules violations and errors related to the
performance of MOW activities. Under paragraph (b)(13), testing would
be authorized for the failure of a machine operator that results in a
collision between a roadway maintenance machine and/or other on-track
equipment or a regulated employee. Under paragraph (b)(14), testing
would be authorized for the failure of a roadway worker-in-charge to
notify all affected employees when releasing working limits. Under
paragraph (b)(15), testing would be authorized for the failure of a
flagman or watchman/lookout to notify employees of an approaching train
or other on-track equipment. Under paragraph (b)(16), testing would be
authorized for the failure to ascertain on-track safety before fouling
a track. Under paragraph (b)(17), testing would be authorized for the
improper use of individual train detection (ITD) in a manual
interlocking or control point.
FRA is requesting public comment on whether these proposed
paragraphs sufficiently address those MOW operating rule violations and
errors that justify reasonable testing by posing a safety concern. Are
there other operating rule violations and errors that should be
included?
Additional Rule Violations or Other Errors Related to Covered
Service
FRA is also proposing new rule violations and other errors that
would be grounds for FRA reasonable cause testing primarily for covered
employees. The first two additional rule violations or other errors
related to signal systems and highway-rail grade crossing warning
systems. Interference with the normal functioning of a signal system or
a grade-crossing signal device is a serious safety concern, as is the
failure to properly perform any required stop-and-flag duties. Such
failures could result in a collision between trains or a highway-rail
grade crossing accident.
First, under paragraph (b)(11), FRA would authorize reasonable
cause testing if a regulated employee has interfered with the normal
functioning of any grade crossing signal system or any signal or train
control device without first taking measures to provide for the safety
of highway traffic or train operations which depend on the normal
functioning of such a device. Such interference includes, but would not
be limited to, failure to provide alternative methods of maintaining
safety for highway traffic or train operations while testing or
performing work on the devices or on track and other railroad systems
or structures which may affect the integrity of the system. This
proposed provision adopts language from the unlawful interference
provisions of Sec. 234.209 (grade crossing systems) and Sec. 236.4
(signals) and is intended to encompass the same types of interference
that are covered by those sections. The types of devices referred to by
this provision would include (but are not limited to) a wayside or cab
signal system, component, or warning device, as well as the flashing
lights or gates at a highway-rail grade crossing. For example, FRA
reasonable cause testing would be authorized whenever the actions of a
regulated employee result in a false proceed signal or a highway-rail
grade crossing activation failure.
Second, under paragraph (b)(12), FRA reasonable cause testing would
also be authorized if a regulated employee failed to perform required
stop-and-flag duties as required after of a malfunction of a grade
crossing signal system. FRA is proposing this revision because a
regulated employee who fails to perform stop-and-flag duties as
required after a malfunction of a grade crossing signal system may not
be the same regulated employee who originally interfered with the
normal functioning of the system.
Finally, in paragraph (b)(18), FRA reasonable cause testing would
be authorized if a failure to apply three point protection (by fully
applying the locomotive and train brakes, centering the reverser, and
placing the generator field switch in the off position) results in a
reportable injury to a regulated employee.
Public Comment Requested
As with its proposed MOW operating rule violations and errors, FRA
is requesting public comment on whether additional rule violations or
errors should be added. FRA is also interested in feedback recommending
changes to the wording ``proposed rule violations or other errors'' as
used in this section. Because FRA reasonable cause testing would remain
optional, a contracting company that performs regulated service for a
railroad would not be required to conduct FRA reasonable cause tests on
its regulated employees. However, a railroad could conduct FRA
reasonable cause testing of contractors when they are performing
regulated service on the railroad's behalf.
[[Page 43863]]
Section 219.405--Documentation Requirements
FRA is proposing to require a railroad to create and maintain
written documentation describing the basis for each reasonable cause
test it conducts under FRA authority. The railroad supervisor who
determines that reasonable cause exists for FRA testing would have to
document the observations or facts that he or she relied upon in making
the determination. To ensure that a supervisor's recollection of the
incident is as fresh as possible, FRA would require the supervisor to
document the basis for each reasonable cause test promptly, although
the supervisor would not be expected to complete this documentation
before the test has been performed. The minimum supervisory
documentation requirements would vary according to the basis for the
reasonable cause test. If the basis for a reasonable cause test is the
occurrence of a train accident or train incident, a supervisor must
document, at a minimum, the following: (1) The amount of railroad
property damage; and (2) the basis for the supervisor's belief that an
employee's acts or omissions contributed to the occurrence or severity
of the train accident or train incident. If the basis for a reasonable
cause test is a rule violation or other error, a supervisor would have
to document, at a minimum, the following: (1) The type of violation
involved; and (2) the extent of each tested employee's involvement in
the violation. FRA believes that this proposed documentation
requirement would decrease the number of improperly performed Federal
reasonable cause tests.
Section 219.407--Prompt Specimen Collection; Time Limitations
This section would contain language similar to that in proposed
Sec. 219.305 (which addresses specimen collection and time limitation
requirements for reasonable suspicion testing), but would also clarify
that the eight-hour time period for conducting reasonable cause testing
runs from the time a railroad supervisor is notified of the occurrence
of a train accident, train incident, or rule violation, rather than
from the time of the train accident, train incident, or rule
violation's occurrence.
Section 219.409--Limitations on Authority
Paragraph (a)
This paragraph would contain language currently in Sec.
219.301(e), with three proposed clarifications. First, FRA would
clarify that if an event qualifies for mandatory PAT testing, a
railroad is prohibited from conducting FRA reasonable cause tests in
lieu of, or in addition to, the required PAT tests. Second, FRA would
remove the word ``compulsory,'' which misleadingly implies that FRA
reasonable cause testing is required, when it is optional but
authorized in certain situations. Third, FRA would remove the second
sentence of the current Sec. 219.301(e), which, in part, states that
``breath test authority is authorized in any case where breath test
results can be obtained in a timely manner at the scene of an accident
and conduct of such tests does not materially impede the collection of
specimens under Subpart C of this part.'' FRA believes this sentence is
confusing because FRA is proposing, in Sec. 219.203(c), to allow only
PAT breath alcohol tests to be performed after a PAT qualifying event,
although such testing should be recorded on the Part 40 Alcohol Testing
Form (ATF).
Paragraph (b)
For reasons similar to those discussed in proposed Sec.
219.211(b), paragraph (b) of this section would prohibit a railroad
from holding a regulated employee out of service pending the results of
an FRA reasonable cause test. A railroad would not be prohibited from
holding an employee out of service under its own authority, however, so
long as the railroad is not doing so simply because it is waiting for
the employee's FRA reasonable cause test result.
Paragraph (c)
This paragraph would contain new language requiring a supervisor to
make a reasonable cause determination for each crew member, instead of
for the crew as a whole. For example, if a train crew operated their
train past an absolute block signal, a supervisor would have to
consider the engineer's actions apart from those of the conductor, to
ensure that only those crew members who may have contributed to the
rule violation are tested. In this example, if a supervisor discovers
that the conductor was on the ground setting out a freight car when the
train passed the signal, the supervisor should require only the
engineer to undergo FRA reasonable cause testing.
Subpart F--Pre-Employment Tests
Section 219.501--Pre-Employment Drug Testing
Paragraph (a)
Currently, paragraph (a) of this section prohibits a railroad from
allowing an individual to perform covered service unless the individual
has had a Federal pre-employment drug test with a negative test result.
FRA is proposing to amend this paragraph to require a regulated
employee to have a negative Federal pre-employment drug test result for
each railroad for which the employee performs regulated service,
although this requirement would apply only to a railroad's direct
employees, and not to employees of contractors who perform regulated
service for the railroad.
Paragraph (b)
Currently, paragraph (b) states that, for purposes of pre-
employment drug testing only, the term covered employee includes an
applicant. The paragraph also states that no record may be maintained
if an applicant declines to be tested and withdraws his or her
application for employment. FRA is proposing to move this language to
new paragraph (e) and to amend it as discussed below.
As proposed, new paragraph (b) would address the pre-employment
drug testing requirements for contractor employees. In contrast to its
proposed pre-employment drug testing requirements for regulated
employees (see the discussion of paragraph (a) above), FRA would not
require a contractor employee who performs regulated service for
multiple railroads to have a negative Federal pre-employment drug test
result for each railroad. Instead, each railroad would only have to
verify and document that the contractor employee has a negative Federal
pre-employment drug test result on file with the contractor who is his
or her direct employer. However, a contractor employee would be
required to have a new Federal pre-employment drug test if the he or
she switches direct employers by working for another contractor who
provides regulated service to railroads.
Paragraph (c)
FRA is proposing a new paragraph (c) to clarify that a railroad
would not have to conduct an FRA pre-employment drug test if an
applicant or first-time transfer to regulated service already has a
negative drug test result from a pre-employment test conducted by the
railroad under the authority of another DOT agency, such as the Federal
Motor Carrier Safety Administration (FMCSA). FRA believes this
flexibility most benefits employees in positions requiring a commercial
driver's license (CDL) (e.g., certain MOW employees and signal
maintainers), since a negative FMCSA pre-employment drug test result is
one prerequisite to holding a CDL.
[[Page 43864]]
See 49 CFR 382.301. Under this proposal, a railroad would not have to
wait for a negative FRA pre-employment drug test result before
transferring a CDL holder to a regulated service position for the first
time, although the railroad would remain free to perform a second pre-
employment drug test under its own authority. Since many MOW employees
already hold CDLs because they operate railroad commercial motor
vehicles, FRA believes this proposal would substantially lessen the
number of pre-employment drug tests railroads would have to perform
after the effective date of the final rule. (FRA has previously
included this pre-employment drug testing interpretation in its
guidance. See Interpretive Guidance Manual at 32.)
This provision would apply, however, only to negative DOT pre-
employment drug tests that had been conducted by the railroad itself. A
CDL holder would still need a negative FRA pre-employment drug test for
each railroad for which he or she performs regulated service. For
example, a CDL holder who had a negative DOT pre-employment drug test
for Railroad A would still need a negative FRA pre-employment drug test
result for Railroad B before he or she could begin to perform regulated
service for Railroad B.
Paragraph (d)
As mentioned above, FRA would move an amended version of the
language currently in paragraph (b) to a new paragraph (d). As
proposed, to decline a pre-employment drug test and have no record kept
of that declination, an applicant must withdraw his or her application
before the drug testing process begins. In Sec. 40.63(c), DOT states
that the drug testing process begins when either the collector or the
employee selects an individually wrapped or sealed collection
container.
Paragraph (e)
In new paragraph (e), FRA would exempt two groups of employees from
pre-employment drug testing: (1) Employees who are performing MOW
activities for a railroad prior to the effective date of the final
rule; and (2) employees who are performing regulated service for a
small railroad (as defined in Sec. 219.3(c)) prior to the effective
date of the final rule. However, a MOW or regulated employee would be
exempted only so long as the employee continues to work for the same
railroad that he or she was working for prior to the effective date of
the final rule. A previously exempted employee would be required to
have a negative Federal pre-employment drug test result if he or she
applies to perform regulated activities for a new railroad.
Section 219.502--Pre-Employment Alcohol Testing
FRA is proposing only minor amendments to this section, which
addresses optional pre-employment alcohol testing.
Paragraphs (a)(1)-(a)(2)
Currently, paragraphs (a)(1) and (a)(2) of this section refer to
pre-employment alcohol testing for ``safety-sensitive employees'' who
perform ``safety-sensitive functions.'' (In this context, ``safety-
sensitive'' is referring to ``DOT safety-sensitive functions'' and
``DOT safety-sensitive employees,'' as defined in this proposed rule,
and not FRA ``safety-sensitive functions'' as used in Sec. 209.301 and
Sec. 219.303.) For clarification purposes only, FRA would substitute
``regulated employees'' and ``regulated service'' wherever ``safety-
sensitive employees'' or ``safety-sensitive functions'' now appear,
since FRA would designate regulated employees and regulated service as
DOT safety-sensitive employees and DOT safety-sensitive functions for
purposes of this part.
Paragraph (a)(5)
As in paragraphs (a)(1) and (a)(2) of this section, FRA would amend
paragraph (a)(5) by substituting ``regulated service'' for ``safety-
sensitive functions.'' FRA would also amend this paragraph to clarify
that a railroad may not permit a regulated employee with an alcohol
concentration of 0.04 or greater to perform regulated service until the
employee has completed the return-to-duty process in Sec. 219.104(d).
Paragraph (b)
Currently, paragraph (b) of this section (addressing pre-employment
alcohol testing) contains language identical to current Sec.
219.501(b) (addressing pre-employment drug testing), which provides
that, as used in subpart H of this part, the term covered employee
includes an applicant for pre-employment testing only. It also provides
that no record may be maintained if an applicant declines to be tested
and withdraws his or her application for employment. As discussed above
for Sec. 219.501(b), FRA is also proposing to amend the language in
Sec. 219.502(b) to clarify that an individual must decline to
participate in a pre-employment alcohol test by withdrawing his or her
application before the testing process begins. As defined by DOT in
Sec. 40.243(a), the testing process begins when an individually
wrapped or sealed mouthpiece is selected by the collector or the
employee.
Section 219.503--Notification; Records
Currently, the first and second sentences of this section require
railroads to provide medical review of pre-employment drug tests and to
``notify'' an applicant of the ``results of the drug and alcohol test''
as provided for by subpart H. FRA would amend both sentences to clarify
that subpart H incorporates the requirements found in part 40. In
addition, FRA would amend the second sentence to clarify that a
railroad must provide written notice not only when an applicant has a
positive test result but also when an applicant has another type of
non-negative test result (an adulteration, substitution, or refusal).
FRA would not, however, require written notification of negative pre-
employment alcohol or drug tests.
FRA would also amend the third sentence of this section to clarify
that a railroad must maintain a record if an application was denied
because the applicant had a non-negative Federal pre-employment test.
It is important to maintain records for individuals who have a non-
negative test result on a pre-employment test, even if it resulted in
their application for employment being denied, because such individuals
must comply with the return-to-service and follow-up testing
requirements of part 40 prior to performing DOT safety-sensitive
functions for any employer regulated by a DOT agency. FRA is therefore
proposing to specify that the only time a record does not have to be
maintained is when an applicant withdrew an application to perform
regulated service prior to the commencement of the testing process. FRA
believes that this is the only time that such records are not
necessary.
Section 219.505--Non-Negative Tests and Refusals
Currently, this section provides that an individual who ``refuses''
a pre-employment test may not perform covered service based upon the
application and examination with respect to which such refusal is made.
FRA believes this language is too narrow for two reasons. First, it
should also clarify that an individual may not begin performing
regulated service if he or she has a non-negative test result (e.g., a
positive, adulterated, or substituted test result) on a DOT pre-
employment test. Second, the prohibition on performing covered service
should be extended to the performance of any DOT safety-sensitive
functions. FRA therefore proposes to
[[Page 43865]]
amend this section to specifically prohibit individuals who refused or
who had a non-negative pre-employment test result from performing DOT
safety-sensitive functions for any DOT-regulated employer until they
have completed the Federal return-to-duty process of Sec. 219.104(d).
This amendment would also standardize the requirements of this section
with Sec. 40.25(e), which provides that an employer who obtains
information that an employee has violated a DOT agency drug or alcohol
regulation must not use that individual to perform DOT safety-sensitive
functions unless the employer receives information that the individual
has complied with the return-to-duty requirements of part 40 or any
other DOT agency.
Subpart G--Random Drug and Alcohol Testing Programs
A properly constructed and managed random testing program is a
valuable tool for deterring the misuse of drugs and abuse of alcohol by
regulated employees. As such, it is an essential cornerstone to a
successful part 219 drug and alcohol safety program. The goal of random
drug and alcohol testing is for all regulated employees to believe that
they may be called for a random test without advance warning any time
they are on-duty and subject to performing regulated service.
Subpart G currently contains few definite requirements for FRA
random testing. Given this lack of specificity, finding and
understanding FRA's random testing requirements can sometimes be a
difficult task. FRA is proposing to revise and expand subpart G,
although very few of the proposed amendments would result in
substantive changes to the regulatory requirements. Rather, the primary
purpose of the proposed amendments is to clarify the applicable
requirements and provide railroads additional information on how to
properly implement and manage an FRA random testing program. Much of
this additional information is currently contained in the second
edition of FRA's Part 219 Alcohol/Drug Program Compliance Manual
(``Compliance Manual''). Available to the public on FRA's Web site
(https://www.fra.dot.gov/eLib/details/L01186), the Compliance Manual
promotes part 219 compliance by clarifying both the regulation's
requirements and FRA's expectations. See Compliance Manual 1.2. The
program standards contained in the Compliance Manual have formed the
basis of FRA's part 219 railroad audits for over nine years and have
been particularly useful in helping railroads establish effective FRA
random testing programs. Incorporating this important guidance into the
regulations will help railroads understand and implement the complex
random testing requirements of subpart G, thereby improving the
deterrence value of FRA random testing and promoting railroad
safety.\24\
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\24\ After publication of the final rule, FRA will revise and
update the Compliance Manual as necessary to reflect any new
requirements.
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In order to effectively incorporate this operational guidance, FRA
is proposing to reorganize subpart G. The principal proposed changes
can be summarized as follows:
Individual sections on random drug testing requirements
(Sec. Sec. 219.601-219.605) and random alcohol testing requirements
(Sec. Sec. 219.607-219.611) would be combined into single sections
addressing both drug and alcohol random testing. Because the
differences between the requirements for random drug and alcohol
testing are minimal, this consolidation would eliminate a significant
amount of redundancy.
Requirements for random testing plans, pools, selections,
and collections would be separated and placed into individual sections
dedicated to those subjects. These sections would also incorporate
guidance from the Compliance Manual.
Subpart G would be amended to explain how a regulated
service contractor could either participate in a railroad's FRA random
testing program or operate its own FRA-accepted random testing program
(either independently or through a C/TPA).
Railroads would be required to demonstrate that all
employees (defined in Sec. 219.5 to include employees, volunteers, or
probationary employees of a railroad or a contractor to a railroad),
performing regulated service are in compliance with the random testing
requirements of subpart G. FRA is also proposing a mechanism that would
provide a clear path for the future incorporation of any additional
categories of employees into the random testing requirements of subpart
G. This mechanism would eliminate the need to extensively amend subpart
G if the scope of part 219 was expanded again in the future.
Section 219.601--Purpose and Scope of Random Testing Programs
This section would contain general language explaining the purpose
of Federal random testing programs and would clarify how subpart G
applies to regulated employees, including contractors and volunteers,
who work for more than one railroad or are subject to the random
testing requirements of more than one DOT agency.
Paragraph (a) would explain that the purpose of random testing
programs is to promote safety by deterring regulated employees from
misusing drugs or abusing alcohol.
Paragraph (b) would require a railroad to ensure that all of its
regulated employees are subject to the random testing requirements of
subpart G, including its regulated employees who are contractors or
volunteers performing regulated service for the railroad. Specifically,
this paragraph is intended to clarify that a railroad is obligated to
ensure that all individuals performing regulated service for the
railroad either as a contractor or volunteer are subject to FRA's
random testing requirements when performing regulated service for that
railroad. Of course, a railroad would not be required to ensure that
contractor employees or volunteers are compliant with subpart G when
they are performing regulated service for another railroad. FRA
believes this clarification is necessary given the proposed expansion
of part 219 to cover a large population of MOW contractors. A
contractor who failed or refused to comply with the random testing
requirements of this subpart when performing regulated service for any
railroad could be subject to the civil penalty sanctions of Sec.
219.9.
Paragraph (c) would state that a regulated service contractor or
volunteer could be incorporated into more than one FRA random testing
program if: (1) The contractor or volunteer would otherwise not be part
of a non-railroad testing program (discussed in proposed Sec. 219.609)
that meets the requirements of subpart G and is acceptable to the
contracting railroad; or (2) the contracting railroad cannot verify
that the contractor or volunteer is part of an FRA random testing
program that meets the requirements of subpart G and is acceptable to
the railroad. This section would not require a railroad to accept
either a railroad or non-railroad random testing program. A railroad
would always be free to incorporate regulated service contractor
employees and volunteers into its own random testing program,
regardless of whether or not they are already part of a program run by
another railroad or a contracting company.
Paragraph (d) would explain how railroads must handle regulated
employees who are subject to the random testing regulations of more
than one DOT agency. (For example, a regulated employee may be subject
to the random testing requirements of both FRA and FMCSA if he or she
holds a
[[Page 43866]]
CDL.) The proposed language of paragraph (d) is generally consistent
with paragraph (h) of existing Sec. 219.602, but would be revised to
clarify that regulated employees subject to the random testing
regulations of more than one DOT agency may not be included in more
than one DOT random testing pool and that this provision applies to
both random drug and alcohol testing, as discussed below.
Currently, paragraph (h) of Sec. 219.602 states that covered
employees subject to random drug testing under the drug testing rules
of more than one DOT agency for the same railroad must be subject to
random drug testing selection at the applicable rate set by the DOT
agency regulating more than 50% of the employee's functions. For
example, if FMCSA regulates 60 percent of a regulated employee's DOT
functions, the railroad must subject him or her to random testing
selection at or above the minimum annual random testing rate set by
FMCSA. This has been historic DOT guidance regarding Federal random
testing. See Office of Drug & Alcohol Policy and Compliance, U.S.
Dep't. of Transp., Best Practices for DOT Random Drug and Alcohol
Testing 3, available at https://www.dot.gov/odapc/best-practices-dot-random-drug-and-alcohol-testing. A similar provision is inexplicably
missing, however, from the random alcohol testing sections of the
existing regulation. As there is no logical reason for this provision
to apply only to random drug testing, FRA believes that this is an
accidental oversight in the current regulation. Furthermore, FRA
guidance has historically applied this requirement to random alcohol
testing, as well as drug testing. See generally Compliance Manual
9.5.3.1(e) (discussing the requirements for employees from different
DOT agencies without distinguishing between random drug and alcohol
testing). Accordingly, proposed paragraph (d) would correct this
oversight and clarify that this provision applies to both drug and
alcohol random testing.
Section 219.603--General Requirements for Random Testing Programs
This section would contain requirements that apply generally to FRA
random testing programs. This section would also act as a table of
contents for subpart G, directing readers to the specific sections
containing the detailed requirements for random testing entries, pools,
selections, etc. FRA believes including such information near the
beginning of subpart G would help make the regulation more reader-
friendly.
Paragraph (a) would generally require a railroad to ensure that its
random testing program is designed and implemented in a way that its
regulated employees should reasonably believe that they may be called
for FRA random testing without advance notice any time they are on duty
and subject to performing regulated service. FRA understands that
ensuring this perception may be difficult for smaller railroads and
contractor companies with a limited number of individuals in a testing
pool, but FRA expects all entities to comply with this provision to the
extent possible. FRA could find a railroad in violation of this section
if it determines the railroad has not made a good faith effort to
comply.
Paragraph (b) would prohibit a random testing program from having a
bias, having an appearance of bias, or providing an opportunity for a
regulated employee to avoid complying with subpart G. For example, this
paragraph would prohibit a supervisor from performing the selection for
a random testing pool to which he or she belonged, as this would create
an appearance of bias.
Paragraph (c) would require a railroad to submit for FRA approval a
random testing plan meeting the requirements of Sec. Sec. 219.603-
219.609 and addressing all employees as defined in Sec. 219.5
(including contractors and volunteers) who perform regulated service on
the railroad's behalf. Paragraphs (d)-(j) would identify where
railroads may find the subpart G requirements for random pools (Sec.
219.611), random selections (Sec. 219.613), random collections (Sec.
219.615), railroad and employee cooperation (Sec. 219.617), responsive
action (Sec. 219.619), service agents (Sec. 219.621), and records
(Sec. 219.623), respectively.
Section 219.605--Submission and Approval of Random Testing Plans
This section would contain requirements for the submission,
approval, and amendment of random testing plans by railroads subject to
the requirements of subpart G.
Paragraph (a)(1) would require a railroad to submit a random
testing plan directly to the FRA Drug and Alcohol Program Manager
(Program Manager) for approval. This submission must be made no later
than 30 days prior to the date a railroad commences operations. If a
railroad previously qualified for the small railroad exception under
Sec. 219.3, but no longer does, it must submit its random testing plan
no later than 30 days after it ceases to qualify as a small railroad.
No random testing plan or substantive amendment to such plan may be
implemented prior to obtaining FRA approval. While Sec. Sec.
219.601(a) and 219.607(a) currently direct railroads to submit random
testing plans to the Associate Administrator for Safety (for plan
approval by the Administrator), the task of approving random testing
plans has been delegated as a matter of practice to the Program
Manager, who has played this role since the implementation of random
testing in 1989. Amending this section to specify that plans must be
submitted to the Program Manager would not substantively alter the
approval process, but would enhance the efficiency by reflecting actual
FRA practice.
Paragraph (a)(2) would provide a railroad three options for
addressing different categories of regulated employees in its random
testing plan. A railroad could either submit a separate plan for each
category, combine all categories into a single plan, or amend a plan
currently approved by FRA to incorporate an additional category. This
approach is intended to provide maximum flexibility for railroads
incorporating additional categories of regulated employees into their
random testing plans. (Under the proposed rule, the only categories of
regulated employees subject to the requirements of part 219 are covered
employees and MOW employees. This proposed requirement would also
apply, however, to any additional categories of employees that might be
added to the scope of part 219 in the future.) FRA would still
independently evaluate each plan or plan amendment submitted by a
railroad to ensure that it met the requirements of subpart G. FRA would
not approve individual plans or plan amendments that appear to
discriminate against a particular group of regulated employees or that
fail to meet the requirements of subpart G. A railroad could also not
submit separate random testing plans for subcategories of regulated
employees, such as engineers, conductors, or signalmen.
Paragraph (b) would specify that FRA will notify a railroad in
writing whether its plan is approved, with specific explanation as to
necessary revisions if the plan is not approved. Plans that are not
approved must be revised and resubmitted by a railroad within 30 days
of that notice. Failure to resubmit a disapproved plan with the
necessary revisions would be considered a failure to submit a plan.
This is slightly different from language currently found in Sec.
219.601(c),\25\ which states that a
[[Page 43867]]
failure to resubmit is a failure to implement a plan. FRA believes that
the proposed language is a more accurate description of the underlying
violation, however, because in such a situation there is no approved
random testing plan to implement. This amendment would not
substantively change existing requirements.
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\25\ The requirements of proposed paragraph (b) are currently
found in Sec. 219.601(c) for random drug testing, but are
inexplicably missing from the sections on random alcohol testing.
FRA believes this is an accidental oversight, as there is no logical
reason for these plan submission requirements to apply only to
random drug testing. Proposed paragraph (b) would correct the
oversight and ensure that the requirements apply to both random drug
and alcohol testing.
---------------------------------------------------------------------------
Paragraph (c) would require a railroad to implement a random
testing plan no later than 30 days after FRA approval. Currently,
railroads are required to implement random testing plans no later than
60 days following FRA approval. See Sec. Sec. 219.601(d)(2) and
219.607(c)(2). When FRA's random testing requirements first became
effective in 1988, allowing railroads 60 days to implement an approved
random testing plan was appropriate given the newness of the
regulation. Since that time, however, the railroad industry has become
quite familiar with FRA's random testing requirements. Even if a
railroad underwent an operational change that required it to implement
an FRA random testing program for the first time (for example, if a
railroad with 15 or fewer covered employees began engaging in joint
operations \26\), there are numerous existing resources (such as
established service agents, C/TPAs, FRA guidance, etc.) that can help
the railroad promptly and efficiently implement a random testing plan.
Given the availability of these resources and the knowledge of FRA's
random testing program requirements throughout the railroad industry,
FRA believes that 30 days is now sufficient for a railroad to implement
a random testing plan following FRA approval.
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\26\ Railroads should note that because this NPRM is not
proposing any amendments to the small railroad exception of Sec.
219.3(c), no railroad that was previously excepted from the Subpart
G random testing requirements would lose that exception as a result
of this proposed rule.
---------------------------------------------------------------------------
Paragraph (d)(1) would require a railroad to submit a substantive
amendment to an already-approved random testing plan at least 30 days
prior to its intended effective date. Any such amendment could not be
implemented prior to FRA approval. See Sec. Sec. 219.601(a) and
219.607(a). An example of a substantive amendment would be any change
to a railroad's construction of its random testing pools or its method
of conducting random selections. If a railroad is uncertain whether an
amendment is substantive or not, it should contact the Program Manager
for guidance.
Paragraph (d)(2) would incorporate FRA guidance by clarifying that
FRA pre-approval is not required for non-substantive amendments, but
that the railroad must notify FRA of any such amendment prior to its
effective date. See Compliance Manual 9.4.3.2. Examples of non-
substantive amendments would include, but not be limited to, replacing
or adding a service provider, such as a C/TPA, laboratory, collector,
or MRO. FRA recognizes that current guidance in the Compliance Manual
describes a change in service provider (except for a collector) as a
substantive change for which pre-approval is necessary. Id. FRA's
experience, however, has indicated that requiring approval for a change
of service provider is not necessary because it imposes a burden on
railroads that does not significantly promote safety. Accordingly,
paragraph (d)(2) would specifically note that a change in service
providers is not a substantive change requiring pre-approval.
Paragraph (e) would address railroad random testing plans that were
approved prior to the effective date of the final rule. A railroad
would not be required to resubmit such a plan unless it required
amendment to comply with the final rule. If a railroad is required to
submit either a new or an amended plan as a result of the final rule,
this submission must be made at least 30 days before the effective date
of the final rule.
Section 219.607--Requirements for Random Testing Plans
Generally, this section would direct a railroad to submit and
comply with a random testing plan containing certain items of
information. This is not a new requirement, and FRA guidance provides
direction on what information such plans must contain.
Paragraph (a) would generally require a railroad to submit a random
testing plan meeting the requirements of subpart G and to comply with
those requirements when implementing the plan. Similar language can
currently be found in Sec. 219.601(b).
New language in paragraph (b) would inform railroads, contractor
companies, and service agents that they may request a model random
testing plan from the Program Manager. While this proposed language is
new, FRA has historically made a model random testing plan available to
railroads, and the plan is available for review and download on FRA's
Web site at https://www.fra.dot.gov/Page/P0345. After modifying the
model plan as necessary to fit its needs and the requirements of
subpart G, a railroad could then submit it to FRA for approval.\27\
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\27\ After publication of the final rule, FRA will revise and
update its model random testing plan as necessary to reflect any new
requirements.
---------------------------------------------------------------------------
New language in paragraph (c) would specify certain information
that a railroad's random testing plan must contain. Each item of
information identified by paragraph (c) would have to be contained in a
separate, clearly identified section of a random testing plan. For
example, each plan would be required to have separate sections
dedicated to items of information such as the total number of covered
employees; the name, address, and contact information for the
railroad's Designated Employer Representative; the method used to make
random selections; etc. While section 9.4.3 of the Compliance Manual
briefly discusses similar information requirements, proposed paragraph
(c) provides additional detail and specificity regarding these
mandatory elements of information, which largely mirror and somewhat
expand the format of FRA's model random testing plan. By specifying the
elements that must be included in every random testing plan, FRA
intends to further the standardization of random testing plans.
Standardizing random testing plans would promote compliance with
subpart G by making it easier for FRA inspectors to evaluate plans,
provide guidance and feedback on the development and implementation of
such plans to regulated entities, and compare a railroad's actual
practice with the required plan elements.
Section 219.609--Inclusion of Contractors and Volunteers in Random
Testing Plans
Currently, subpart G does not discuss how a railroad's random
testing plan should incorporate contractor employees and volunteers.
FRA has nevertheless historically provided railroads informal guidance
on how to manage random testing for covered service contractors and
volunteers. This section would incorporate this guidance into part 219.
The introductory text of paragraph (a) would clearly state that a
railroad's random testing plan must demonstrate that all of its
regulated service contractor employees and volunteers are part of an
FRA-compliant random testing program. Paragraphs (a)(1) and (a)(2)
would explain two ways that a railroad could demonstrate compliance
with this requirement:
[[Page 43868]]
Under paragraph (a)(1), a railroad could incorporate into
its own random testing plan any contractor employee and/or volunteer
performing regulated service on its behalf. The railroad would be
responsible for ensuring that such individuals were selected and tested
according to its random testing plan; or
Under paragraph (a)(2), a railroad could indicate in its
random testing plan that all contractor employees and/or volunteers
performing regulated service on its behalf are included in a non-
railroad random testing program meeting subpart G requirements. As used
in subpart G, a non-railroad random testing program is one conducted by
either a service agent (such as a C/TPA) or a contractor company. A
railroad utilizing this option would be required to append to its
random testing plan one or more addenda explaining how it would ensure
that its regulated service contractor employees and volunteers are in
compliance with subpart G. Such addenda could be either the non-
railroad random testing program itself or a detailed description of the
program and how it complies with FRA requirements.\28\
\28\ Railroads would be able to obtain information about the
non-railroad random testing program under proposed Sec. 219.623
(discussed below), which would require contractor companies and
service agents to provide random testing records upon request to any
railroad for which they are performing random testing
responsibilities.
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FRA believes the above options would facilitate subpart G
compliance. For example, a railroad utilizing the paragraph (a)(2)
option would be able to directly analyze the random testing programs of
its contracting companies. This would help ensure that contracting
companies performing regulated service for more than one railroad are
in compliance with subpart G.
Railroads should note that paragraph (a) would not require them to
accept and incorporate a non-railroad random testing program into their
own random testing programs. A railroad would always be able to comply
with subpart G by incorporating regulated service contractor employees
and volunteers into its own random testing program, regardless of
whether or not such individuals were already part of a non-railroad
random testing program that complied with the requirements of subpart
G.
Paragraph (b) would generally require a random testing plan and any
attached addenda to contain sufficient details to fully document that
the railroad is meeting the subpart G requirements for all personnel
performing regulated service on its behalf.
Paragraph (c) would specify that a railroad accepting a non-
railroad random testing program would remain responsible for ensuring
that the non-railroad program is properly subjecting the railroad's
regulated service contractor employees and volunteers to the random
testing requirements of subpart G. For example, this provision would
require a railroad to evaluate for subpart G compliance any non-
railroad random testing plan that it accepts.
Paragraph (d) would specify that FRA would not require submission
and would not approve random testing plans for contractor companies or
service agents under the provisions of Sec. 219.603. FRA believes
there may be a vast number of such contractor companies and service
agents, and does not believe it would be a beneficial use of its
resources to attempt to approve and audit all of them. Rather, as
provided in paragraph (c), responsibility for ensuring that such plans
and programs comply with the requirements of subpart G would rest with
the railroad employing the contractor company or service agent. The
only time FRA might address a non-railroad random testing plan would be
when the plan itself was appended to a railroad's random testing plan,
as described in paragraph (a)(2). In such situations, FRA could look at
the non-railroad plan and note instances of non-compliance, which FRA
would then communicate to the railroad for it to pursue on its own
behalf with the contracting company or service agent.
Section 219.611--Random Alcohol and Drug Testing Pools
Subpart G currently provides railroads little guidance on the
creation or management of random testing pools. Random testing pools
are only briefly discussed in Sec. 219.601(b)(2)(ii)-(iii), which
requires all covered employees to be included in an FRA random testing
pool and each random testing pool to contain only covered employees.
FRA believes that subpart G can be improved by including this new
section dedicated to requirements on how to implement random testing
pools. In addition to some new substantive requirements (discussed
below), this section would also incorporate FRA guidance on the proper
creation and management of random testing pools. See generally
Compliance Manual 9.5. FRA has been auditing railroads according to the
standards of the Compliance Manual since it was published in 2002.
Paragraph (a)--General
Paragraph (a) would require a railroad to ensure that its random
testing pools include all personnel performing regulated service on its
behalf, except that a railroad would not have to include regulated
employees who are part of a non-railroad random testing program that
has been accepted by the railroad and is compliant with subpart G.
Paragraph (b)--Pool Entries
Paragraph (b) would contain requirements for pool entries, and the
introductory text would state that a railroad must clearly indicate who
will be tested when a specific pool entry is selected. FRA would not
approve vaguely defined pool entries lacking either clarity or
specificity. For example, if a railroad's pool entry is a job function,
the railroad must indicate exactly who would be tested when an entry is
selected. Would the individual performing that job function on the
first shift of the selected day be tested, or the individual performing
that job function for the first train into a certain yard after
midnight? Would all individuals performing that job function be tested
or would a single individual from that group be tested? As an
illustration, if a pool entry was the job function ``third shift
dispatcher,'' additional information (such as the desk that the
dispatcher was working on) would be required if there was more than one
individual acting as a third shift dispatcher and only one random test
was to be performed.
Paragraph (b)(1) would identify three types of pool entries that
are generally permitted: (1) Individual employee names or
identification numbers; (2) train symbols; and (3) specific job
assignments. These three options have traditionally been accepted by
FRA as pool entries if they otherwise meet the requirements of subpart
G. See Compliance Manual 9.5.3.1(f). If a railroad wishes FRA to
consider other types of pool entries, it should include them in the
random testing plan submitted to FRA for approval under proposed Sec.
219.605. Although not required, FRA encourages smaller railroads to use
individual employees or identification numbers as pool entries, rather
than trains or job assignments. Individual pool entries are preferable
for a smaller railroad because this maximizes its limited number of
pool entries. Larger pool entries (such as train symbols), contain more
than one employee, and would make a small railroad reach its required
minimal annual testing rate earlier in the year than if it used
individual pool entries. This could be problematic if the small
railroad's random testing is not spread evenly through the year to
achieve
[[Page 43869]]
maximum deterrence effect, as required by proposed Sec. 219.615(c)(2)
(discussed below). Small railroads also do not face the same logistical
and cost difficulties that make train symbols or job functions useful
as entries for larger railroads.
Paragraph (b)(1) would also incorporate FRA guidance by stating
that pool entries must be of a generally consistent size and type. See
Compliance Manual 9.5.3.1(f). For example, a pool could not combine
individual employee entries with job function entries that identify
multiple individuals. FRA would likely not take exception to a pool
consisting of train symbols where the crew sizes might slightly vary.
However, FRA may take exception to a pool made up of both individual
employees and job assignments, or with job assignments which might vary
in size from one employee to dozens of employees, as pool entries of
vastly different size and type would adversely affect the chances that
some individuals may be selected over others. A railroad contemplating
unusual or possibly controversial pool make-ups should request FRA
approval for that approach in its random testing plan.
Paragraph (b)(2) would state that pool entries may not be
constructed in a way that permits a railroad field manager or field
supervisor to have discretion over which regulated employees would be
selected for random testing. For example, if the selected entry was
``third shift dispatcher'' and more than one individual met this
description, a railroad could not permit a field manager/supervisor to
decide which third shift dispatcher would be subject to random testing.
Field managers/supervisors may personally know the individuals involved
in a random selection, and permitting a field manager/supervisor to
exercise discretion in this manner could create a situation where he or
she was using that discretion to target or protect a specific
individual. This language would supplement other proposed provisions
prohibiting railroads from utilizing a selection method or conducting
random testing collections in a way that permits a railroad field
manager or supervisor to have discretion over which particular
regulated employees would be selected for random testing.
Paragraph (b)(3) would incorporate FRA guidance by requiring a
railroad to construct and maintain pool entries so that all regulated
employees have an equal chance of being selected for random testing
during each selection draw. See Compliance Manual 9.6.3. This
requirement would apply even to regulated employees who were selected
for random testing during a previous selection draw. For example, a
railroad could not remove a regulated employee from a testing pool
simply because he or she had already been selected for random testing
that year. In order for a random testing program to have a deterrence
effect, each regulated employee must believe that he or she could be
selected for testing during any selection draw, regardless of whether
or not he or she was selected for testing the week, month, or year
before.
Paragraph (c)--Minimum Number of Pool Entries
Paragraph (c) would contain new language requiring a random testing
pool to have at least four entries. A railroad could not use
placeholder entries (entries that do not represent legitimate
selections of regulated employees, whether individuals, train symbols,
or job assignments) to comply with this requirement. This would be a
new requirement not currently found in the regulation, Compliance
Manual, or other published FRA guidance.
This proposal would address FRA's concern that random testing pools
with fewer than four entries (regardless of whether the entries are
individuals, trains, or job assignments) can diminish the deterrence
effect of random testing. For example, if a railroad with only three
regulated employees as entries in a pool was required to test for
alcohol at a minimum annual rate of 10 percent,\29\ the railroad would
meet this requirement once it had selected and tested only one
regulated employee. Once this test was completed, the deterrence effect
of random testing would vanish because the railroad's other regulated
employees could learn that the only test required for the year had
already been completed. The purpose of random testing is to make every
regulated employee expect that he or she could be subject to an alcohol
or drug test any day. If the railroad has a limited number of entries
in its random testing pool, this purpose is defeated.
---------------------------------------------------------------------------
\29\ In this scenario, even though the railroad has 15 or fewer
covered employees, it is required to implement a Subpart G random
testing program under Sec. 219.3 because it engages in joint
operations with another railroad.
---------------------------------------------------------------------------
Of course, the problem of small random testing pools and a
diminished deterrence effect does not vanish once a pool has four or
more entries. The same concern can exist for random testing pools with
5, 10, or even more entries, depending on the minimum annual testing
rate. For this reason, this proposed amendment is only one component of
FRA's solution for this difficulty. The second component is found in
proposed Sec. 219.613(d), which would require a railroad to select and
test at least one entry from a random testing pool per quarter (i.e.,
every three months), regardless of the size of the pool and regardless
of whether the railroad has already met its minimum annual random
testing rate requirement. (A quarter would not need to be based on a
calendar determination if a railroad is making selections on a monthly
basis.) While Sec. 219.613(d) will be independently discussed below,
its relevance to Sec. 219.611(c) lies in the fact that even a small
random testing pool can provide a deterrence effect, so long as the
pool members anticipate that at least one individual will be selected
and tested per quarter. FRA intends Sec. Sec. 219.611(c) and
219.613(d) to work together to promote the deterrence effect of random
testing.
FRA does not believe it would be appropriate under Sec. 219.613(d)
to require railroads to select and test at least one entry from a pool
per quarter without also requiring pools to have at least four entries.
If the four entry requirement did not exist, a railroad could
theoretically maintain a random testing pool with only one entry, which
would then necessarily be subject to random testing four times a year
as a result of proposed Sec. 219.613(d). FRA believes that four is
appropriate for the minimum number of pool entries because it
complements the proposed Sec. 219.613(d) requirement to select and
test at least one entry per pool per quarter, which results in a
minimum number of four tests per year. Under this approach, perfect
odds for a four entry pool would result in each entry being selected
for random testing once per year. (Of course, the odds are not perfect,
and any entry in a four entry pool could end up being selected for
random testing four times a year. It is this imperfection that
generates the deterrence effect of random testing, so that every
regulated employee believes that he or she can be selected for testing
at any time, regardless of whether he or she was previously selected
for testing.)
Overall, FRA's experience in helping railroads implement random
testing programs indicates that there is no compelling reason for a
railroad to maintain a random testing pool with fewer than four
entries. FRA believes that this new requirement would not adversely
impact railroads with fewer than four regulated employees, since
paragraph (c) would specify that a railroad with fewer than four
regulated employees could comply with this requirement by having those
employees incorporated into either a railroad program or a non-railroad
program (e.g.,
[[Page 43870]]
by joining a C/TPA), so long as the random testing pool contained at
least four entries.
Paragraph (d)--Pool Construction
Paragraph (d) would contain requirements for the construction of
random testing pools.
Paragraph (d)(1) would prohibit a railroad from placing in an FRA
random testing pool anyone who is not an individual subject to the
random alcohol and drug testing requirements of a DOT agency (i.e., an
individual who is not a ``DOT-regulated employee''). Including non-DOT-
regulated employees in an FRA random testing pool would dilute the
chances of a DOT-regulated employee being selected, thereby diminishing
the deterrence value of random testing. Furthermore, a railroad mixing
DOT-regulated and non-DOT-regulated employees in random testing pools
would find it difficult to determine whether it was properly testing at
the mandatory minimum percentage rate for DOT-regulated employees.
Paragraph (d)(2) would prohibit a single railroad from including a
regulated employee in more than one DOT random testing pool. For
example, a railroad could not include a regulated employee who holds a
CDL in both an FRA and an FMCSA random testing pool. Rather, as
provided by proposed Sec. 219.601(d), a railroad must determine which
agency regulates more than 50 percent of a regulated employee's DOT
safety-sensitive duties and place that employee in the random testing
pool that is testing at the required minimum annual rate of that
agency. This paragraph would not prohibit a regulated employee from
belonging to more than one FRA random testing pool if he or she
performs regulated service for more than one railroad, each of which
includes him or her in its own random testing program. Rather, it
merely would state that an individual cannot be included in more than
one DOT testing pool by the same railroad.
Paragraph (d)(3) would permit a railroad to place all DOT-regulated
employees (both FRA and non-FRA regulated individuals) in a single
random testing pool. Such a mixed pool, however, would have to be
tested at the highest minimum random testing rate mandated by a DOT
agency for any individual pool entry. For example, if the highest rate
for an individual pool entry was 50 percent, the entire pool must be
tested at a rate of 50 percent, regardless of whether other individual
pool entries were subject to a lower minimum testing rate. Similarly,
this paragraph would also permit railroads to place different
categories of FRA regulated employees into a single testing pool, even
if the minimum annual testing rates for those categories were
different, so long as the entire pool was tested at the highest minimum
testing rate for any individual entry.
This proposal is different from the strict wording of certain
provisions in current part 219, which require railroads using a service
agent to ensure that only FRA ``covered employees'' are in the service
agent's random testing pool. See Sec. Sec. 219.601(b)(2)(iii) and
219.607(b)(1)(i). However, FRA has not been actively enforcing this
requirement, and other current provisions contradict it. See Sec. Sec.
219.602(i) and 219.608(f). Furthermore, both FRA and ODAPC have
independently published guidance specifying that employees regulated by
different DOT agencies can be mixed in the same pool. See Compliance
Manual 9.5.3.1(e) and Office of Drug and Alcohol Policy and Compliance,
Best Practices for DOT Random Drug and Alcohol Testing, available at
https://www.dot.gov/odapc/best-practices-dot-random-drug-and-alcohol-testing. Paragraph (d)(3), therefore, would make the wording of part
219 consistent with FRA and DOT's actual practice.
Paragraph (d)(4) would incorporate FRA guidance indicating that a
railroad does not need to place regulated employees in separate pools
for random drug and alcohol testing selection. See Compliance Manual
9.5.3.1(c). This paragraph would not, however, permit a railroad to
make selections from a pool for drug testing, and then sub-select for
alcohol testing from within that selected group. It would permit a
railroad, however, to select employees for drug testing only and other
employees for both drug and alcohol testing so long as every employee
in the pool had an equal chance for selection for each group.
Paragraph (d)(5) would require a railroad to incorporate an
individual into a random testing pool as soon as possible after his or
her hire or transfer into regulated service. This requirement would
promote both safety and fairness by ensuring that an individual newly
hired or transferred into regulated service would be subject to
selection during the next random testing selection period. Railroads
must have a mechanism to ensure that these personnel are entered into a
random pool without delay.
Paragraph (e)--Frequency of Regulated Service
Paragraph (e) would incorporate FRA guidance addressing the
potential dilution of random testing pools by individuals who perform
regulated service on a de minimis basis. See Compliance Manual 9.5.3.2.
FRA considers such individuals to present a lesser safety risk than
individuals who routinely perform regulated service. The purpose of
paragraph (e) is to promote safety by focusing random testing on the
population of employees who perform regulated service on a routine
basis.
Paragraph (e)(1) would prohibit a railroad from placing individuals
into a random testing pool for any selection period in which they are
not expected to perform regulated service. Such individuals present a
lesser safety risk, and their inclusion in a random testing pool would
dilute the chances that an individual who routinely performs regulated
service would be selected.
Paragraph (e)(2) would address railroad employees who perform
regulated service on average less than once a quarter. FRA considers
such employees to be a de minimis safety concern and do not require
them to be included in a railroad's random testing program. A railroad
may randomly test de minimis employees, but must do so by placing them
in a separate random testing pool, and not in a random testing pool
that includes employees who perform regulated service on a routine
basis.
Paragraph (e)(3) would require railroads to make a good faith
effort when determining the frequency with which an individual performs
regulated service. Individuals who perform regulated service on a de
minimis basis would have to be evaluated each selection period as to
the likelihood of their performing regulated service in the upcoming
quarter.
Paragraph (f)--Pool Maintenance
Paragraph (f) would incorporate FRA guidance by requiring a
railroad to update pool entries at least monthly, regardless of how
often selections are made. See Compliance Manual 9.5.3.1 (introductory
text) and 9.5.3.3. For example, if a railroad conducted selections
every three months, it would still have to update the pool entries on a
monthly basis. At each monthly update, a railroad would be required to
ensure that each random testing pool was complete and did not contain
outdated or inappropriate entries. It is important for outdated and
inappropriate entries to be immediately removed from random testing
pools because their inclusion dilutes the population of regulated
employees in the pool.
[[Page 43871]]
Paragraph (g)--Multiple Pools
Paragraph (g) would permit a railroad to maintain more than one
random testing pool if it can demonstrate that selecting from multiple
pools would still meet the requirements of subpart G and that having
multiple pools would not adversely impact the construction of pool
entities. See Compliance Manual 9.5.3.1 (c). Multiple random testing
pools can be problematic if they create an unnecessary level of
complexity in the management of the railroad's random selection and
testing process. Under paragraph (g), FRA would evaluate the structure
of a railroad's random testing pools to ensure that it facilitates a
coherent, effective, and efficient deterrence program. Multiple random
testing pools that adversely impact the deterrence value of random
testing would not be approved as part of a railroad's random testing
plan.
Section 219.613--Random Testing Selections
Properly constructed pools will not guarantee an effective random
testing program if the method of selection from those pools is flawed.
Random testing selections must be conducted in a manner ensuring that
each regulated employee has an equal chance of being selected during
each selection draw. This applies to selections at the level of both
the random testing pool and the railroad as a whole. The purpose of
this section, therefore, is to ensure that a railroad's random testing
selections are conducted in a way that promotes the deterrence effect
of random testing.
Discussed in greater depth below, paragraphs (a) through (k) would
incorporate FRA guidance on proper random testing selections. See
generally Compliance Manual 9.6.
Paragraph (a)--General
Paragraph (a) would require a railroad to ensure that each
regulated employee has an equal chance of being selected for random
testing whenever a selection is performed. A railroad may not increase
or decrease an individual's chance of selection by weighting any
particular entry or pool. See Compliance Manual 9.6.3.3. For example, a
railroad may not remove an already-selected regulated employee from a
pool in order to increase the chances that another regulated employee
will be selected for testing. This requirement is intended to help
ensure that each regulated employee believes that he or she can be
selected for testing during any selection draw, even if he or she was
already selected for testing the week, month, or year before.
Paragraph (b)--Method of Selection
Paragraph (b)(1) would incorporate FRA guidance by requiring a
railroad to utilize a selection method that meets the requirements of
subpart G and that is acceptable to FRA. See Compliance Manual 9.6.4.2.
An acceptable method would be either a computer selection program or
the proper use of a random number table. Id. A railroad could include a
different selection method in the random plan that it submits for FRA
approval under Sec. 219.603, but the plan would likely not be approved
unless the railroad could demonstrate clearly that the method complied
with subpart G. For railroads wishing to conduct selections through the
use of a random number table, FRA has drafted a guidance document
explaining how this approach can be implemented in compliance with
subpart G. A railroad can obtain this guidance document by contacting
the FRA Drug and Alcohol Program Manager. It is also included as
Appendix C to the model random testing plan, available on FRA's Web
site at https://www.fra.dot.gov/Page/P0345.
Paragraph (b)(2) would specify that a selection method must be free
of bias (either real or apparent) and must employ objective, neutral
criteria to ensure that every employee has a statistically equal chance
of being selected during a specified time frame. A selection method
could not utilize subjective factors that would permit a railroad to
manipulate selections to either target or shield from testing a certain
regulated employee. See Compliance Manual 9.6.1. These requirements are
found in multiple sections of the current rule addressing random drug
testing (for example, Sec. 219.601(b)(1) and Sec. 219.602(e)), but
are missing from the sections on random alcohol testing. FRA believes
that this is an accidental oversight, as there is no logical reason for
drug selections to be made according to objective and neutral criteria,
but not alcohol selections. Furthermore, FRA has historically
interpreted subpart G in a manner that applies these requirements to
random alcohol testing. See generally Compliance Manual 9.6 (discussing
selection procedures without distinguishing between random drug and
random alcohol testing). This paragraph would correct this oversight
and ensure that the requirements specifically apply to both random drug
and random alcohol testing.
Paragraph (b)(3) would require a railroad to be able to verify the
randomness of its selection method. Examples of how a railroad could do
so include, but are not limited to, analyzing the source code of a
computer selection program or reviewing past selections to ensure that
the results appear to conform to randomness (e.g., the same individual
is not always selected first). Paragraph (b)(3) would also require a
railroad to maintain any records necessary to document random
selections for a minimum of two years from the date the designated
testing window for the selection closed. Such records include, but are
not limited to, documentation indicating the composition of the random
selection pool and the entries that were selected from it. See
Compliance Manual 9.6.2.
Paragraph (c)--Minimum Random Testing Rate
Paragraph (c) would incorporate FRA guidance by requiring a
railroad to make sufficient selections to ensure that each random
testing pool will meet the minimum annual testing rates. See Compliance
Manual 9.6.5. To support the deterrence effect of random testing,
railroads would also have to ensure that random tests are reasonably
distributed throughout the calendar year. See Compliance Manual
9.6.5.1. FRA understands that the distribution of random selections and
tests throughout the year cannot be absolutely perfect. Nevertheless, a
railroad would be in violation of this section if its distribution of
selections and tests throughout the year suggested that the tests were
loaded into certain months or quarters because the railroad had failed
to properly monitor its random test completion rate and was trying to
comply with the minimum annual testing rate at the last minute.
Similarly, a railroad would be in violation of this paragraph if it
made all its selections and conducted all required testing within the
first quarter of a year, thereby eliminating the deterrence value of
random testing for the remainder of the year.
Paragraph (c)(2) would incorporate FRA guidance by requiring a
railroad to continuously monitor changes in its workforce to ensure
that the required number of selections and tests will be completed
annually. See Compliance Manual 9.6.5.4.
Paragraph (c)(3) would explain how a railroad must calculate the
total number of regulated employees eligible for random testing
selection throughout a year and the total number of selections that it
needs to complete and test to meet the minimum annual testing rate. The
substantive requirements of this proposed paragraph are essentially the
same as those contained in current
[[Page 43872]]
Sec. Sec. 219.601(b)(2)(ii) and 219.607(b)(1), and no substantive
change is intended.
Paragraph (d)--Selection Frequency
Paragraph (d) would require a railroad to select and test at least
one entry from each random testing pool every three months (i.e., once
per quarter), regardless of the size of the pool or how often
selections are made. This is a new requirement not currently found in
subpart G or FRA's published guidance. Paragraph (d) would not,
however, excuse the railroad from complying with the applicable minimum
annual percentage rates (e.g., for a pool of 16 MOW workers subject to
a minimum annual random drug testing rate of 50 percent, a railroad
would still have to select and test a minimum of eight entries per
year).
This paragraph would complement proposed Sec. 219.611(c)
(discussed above), which would require random testing pools to include
at least four entries. Both proposals would address FRA's concern that
small random testing pools do not create a sufficient deterrence
effect. As discussed above, FRA believes a sufficient deterrence effect
would be created if at least one entry from a random testing pool is
selected for testing each quarter. FRA is soliciting public comment on
whether it should consider requiring at least one selection to be made
at a rate greater or less than quarterly.
FRA does not believe that the combined requirements of proposed
Sec. Sec. 219.611(c) and 219.613(d) would create an undue burden for
railroads. A railroad would have the following options to comply with
these proposed provisions:
If the railroad has four or more entries in each random
testing pool, it could select and test at least one entry from each
pool per quarter.
If the railroad has fewer than four regulated employees,
it could join a C/TPA so that its regulated employees are placed into a
pool with regulated employees from other DOT-regulated entities. Any C/
TPA pool with FRA regulated employees would still be required to have
more than four entries, and at least one entry from each pool must
still be tested per quarter.
If an employer is a contractor company performing
regulated service for a railroad, the contractor's regulated employees
could be incorporated into the railroad's subpart G random testing
program.
Paragraph (e)--Discarded Selection Draws
Paragraph (e) would require a railroad to utilize a completed
selection draw to identify which individuals must be subject to random
testing. This requirement would apply regardless of the number of
entries selected. A completed selection draw could not be discarded
without an acceptable explanation, such as the selection was made from
a pool that was incomplete or inaccurate (e.g., a selected employee was
no longer employed by the railroad).\30\ For each instance where
selected individuals were not random tested, a railroad would have to
maintain records documenting the specific reason why testing was not
completed. This requirement would prevent a railroad from discarding a
selection simply because it was not satisfied with who was or was not
selected for random testing (i.e., because the railroad wished to
either target or protect certain regulated employees). For example, a
railroad manager would be prohibited from discarding a selection draw
because he wished to protect a selected individual whom he knew was
using drugs or alcohol in violation of FRA prohibitions. See Compliance
Manual 9.6.4.1.
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\30\ Railroads should note that while proposed Sec. 219.613(e)
would permit a selection draw to be discarded for an ``acceptable''
reason, it does not permit the cancellation of a random test that
has already been completed as a result of that draw. See Sec.
40.209(b)(10) (prohibiting a railroad from cancelling a test because
an employee claimed that he or she was improperly selected for
testing).
---------------------------------------------------------------------------
Paragraph (f)--Increasing Random Selections
Paragraph (f) would specify that if a railroad was not able to
complete a collection for all selections during the designated testing
window, as provided by Sec. 219.615(f) (which would require a railroad
to have an acceptable reason for an incomplete collection) or Sec.
219.617(a)(3) (which would excuse an employee notified of a random test
in a situation involving a substantiated medical emergency involving
the employee or an immediate family member), the railroad may over-
select during the draw for the next designated window to ensure that it
is meeting the minimum random testing rate. Railroads doing so should
remain aware, however, of the Sec. 219.613(c) requirements that random
tests be distributed reasonably throughout the calendar year. A
railroad could violate this requirement if it had numerous incomplete
collections throughout the calendar year and then drastically increased
selection during the final designated testing window in that year in
order to meet the minimum random testing rate.
Paragraph (g)--Selection Snapshots
Paragraph (g) would incorporate FRA guidance by requiring a
railroad to capture and maintain an electronic or hard copy snapshot of
the entries in each random testing pool at the time of a selection.
While FRA guidance currently directs railroads to maintain a hard copy
of such snapshots, this proposed provision would specifically permit
electronic copies. See Compliance Manual 9.5.3.4. The snapshot must be
contemporaneous with the time of the selection, and pool entries could
not be re-created from records after the time of the selection.
Documentation of each snapshot would be required to be maintained for
two years, in accordance with the record-keeping requirements of
subpart J (referenced by proposed Sec. 219.623). FRA would review such
snapshots during its audits to ensure that the random testing pool from
which a selection was made was complete.
Paragraph (h)--Multiple DOT Agencies
Paragraph (h) would remind railroads that regulated employees who
are subject to the regulations of more than one DOT agency must be
subject to random drug testing at or above the minimum annual
percentage rate set by the DOT agency regulating more than 50 percent
of the employee's DOT functions, as provided by proposed Sec.
219.601(d).
Section 219.615--Random Testing Collections
This section would contain requirements governing random testing
collections, many of which are incorporated from traditional FRA
guidance on the proper management of random testing collections. See
generally Compliance Manual 9.7.3. These requirements would supplement,
and not replace, the drug and alcohol testing procedural requirements
of part 40, which apply to random testing under Sec. 219.701.
Overall, the proposed requirements of this section would continue
to emphasize the deterrence value of random testing. If specimen
collections are thoughtfully planned and properly executed, regulated
employees should generally perceive that they may be selected for
random testing anytime they are subject to performing regulated
service.
Paragraph (a)--Minimum Random Testing Rates
Paragraph (a) would require a railroad to complete a sufficient
number of random testing collections from each
[[Page 43873]]
random testing pool to meet the minimum annual percentage rates.
Paragraph (b)--Designated Testing Window
Paragraph (b) would incorporate FRA guidance by requiring a
railroad to complete the collection for a selected pool entry within
its designated testing window (which a railroad must describe in its
random testing plan under proposed Sec. 219.607(c)(13)). See generally
Compliance Manual 9.7.3.2. A designated testing window is the specified
time frame within which a railroad must complete a collection once an
entry has been selected for random testing (for example, from midnight
on Monday through midnight the following Monday). Such designated
testing windows are necessary because regulated employees may not be
on-duty and subject to performing regulated service on the date for
which they are selected. If a railroad does not complete a collection
within the designated testing window, the selection is no longer valid.
A selected employee cannot be subjected to random testing outside a
designated testing window. See generally Compliance Manual 9.7.3.2.
Paragraph (c)--Collection Timing
Paragraph (c)(1) would state that a regulated employee may be
subject to random testing only when he or she is on duty and subject to
performing regulated service. Sections 219.601(b)(6) and 219.607(b)(5)
currently require a covered employee to be on-duty when subject to
testing. The additional language in this proposed paragraph is intended
for clarification purposes only.
Paragraph (c)(2) would restate the current requirement that random
collections must be unannounced and spread reasonably through the
calendar year. See Sec. 219.602(g) and Sec. 219.607(b)(3). As
provided by FRA guidance, collections must also be spread unpredictably
throughout a designated testing window and reasonably cover all
operating days of the week (including operating weekends and holidays),
shifts, and locations. See Compliance Manual 9.7.3.3. While the
distribution of collections during a specific time period does not have
to be perfectly equal to that time period's percentage of a railroad's
total operations (e.g., if 20 percent of a railroad's operations occur
during a specific day in a week, a railroad is not required to conduct
exactly 20 percent of its random tests during that day), sufficient
random testing during a time period must be conducted to establish a
deterrence effect. Id. For example, a railroad would be in violation of
this provision if 30 percent of its operations occurred on Saturdays
and Sundays, but only 5 percent of collections occurred on a Saturday
and no tests occurred on Saturday afternoons. Id. If a railroad
predictably did not perform random testing during a certain time, day,
month, etc., an employee may believe that he or she could use drugs
and/or alcohol at those times, without risk of FRA random testing.
Paragraph (c)(3) would incorporate FRA guidance by requiring random
alcohol test collections to be performed unpredictably and in
sufficient numbers at either end of an operating shift to establish an
acceptable deterrence effect throughout the entire shift. See
Compliance Manual 9.7.3.5. The predictability of alcohol testing is a
special concern for FRA because breath testing can only detect alcohol
use for a limited amount of time (a few hours) afterwards. As stated
earlier, FRA realizes that railroads often conduct alcohol tests at the
beginning or end of a train crew's shift for operational reasons, but
alcohol testing must be conducted at other times to prevent crews from
being able to predict when tests are likely to occur. For example, if
random alcohol testing occurs only at the end of shifts, an employee
may consume alcohol at the beginning of a shift under the assumption
that his or her alcohol use would not be detectable by the end of the
shift. FRA is therefore proposing to require a railroad to conduct some
of its random alcohol tests at both the beginning and end of shifts. At
least 10 percent of a railroad's random alcohol tests should occur at
the opposite end of the shift in which it usually tests in order to
generate an acceptable level of deterrence throughout an entire shift.
See Compliance Manual 9.7.3.5.
Paragraph (c)(4) would clarify that if a regulated employee is
selected for both random drug and alcohol testing, these tests may be
conducted separately, so long as both tests can be completed by the end
of the employee's shift and the railroad does not inform the employee
that an additional random test will occur later. Conducting the tests
in this manner could have two benefits for a railroad. First, it could
minimize burdens resulting from either operational delays or possible
hours-of-service violations due to the sometimes lengthy times required
for drug testing specimen collections. Second, it could support the
railroad's compliance with the FRA requirement that at least 10 percent
of random alcohol tests must be conducted at opposite ends of the
shift.
Paragraph (d)--Collection Scheduling
The introductory text of paragraph (d) would incorporate FRA
guidance by clarifying that, while pool entries must be selected
randomly, railroads do not have to select random testing dates or
schedule specimen collections randomly. See Compliance Manual 9.7.3.2.
A railroad may choose the date and time on which a pool entry is to be
notified and tested, so long as its pool entries are randomly selected
and urine collections and breath alcohol tests are completed within the
railroad's designated testing window. As provided by paragraph (d)(1),
scheduling could be based upon the availability of the selected pool
entry, the logistics of performing the collection, and any other
requirements of subpart G. See Compliance Manual 9.7.3.2. However, when
a selected pool entry contains different employees at different times
(such as a train crew or a job function), paragraph (d)(2) would
prohibit a railroad from using its discretion to schedule the test on a
date which would deliberately target or protect a particular employee.
See Compliance Manual 9.7.3.2.
Similarly, paragraph (d)(2) would prohibit railroad field
supervisors and/or managers from using their discretion or personal
knowledge to intentionally choose dates or times that would alter the
identity of who would be tested. See Compliance Manual 9.7.3.6. FRA
understands that the individual who schedules testing dates for a
railroad may have some personal knowledge as to who would be tested as
a result of that scheduling. Generally, FRA believes that any risk to
the integrity and credibility of a random testing program is minimized
when the person making scheduling decisions is located at the level of
the railroad's headquarters, rather than at the field level where it is
easier for personal considerations to come into play.
Paragraph (e)--Notification Requirements
Paragraph (e)(1) would restate existing Sec. 219.601(b)(4), which
prohibits a railroad from notifying a regulated employee of his or her
random testing selection until the duty tour in which the random
testing collection is to be conducted. Consistent with this existing
regulatory requirement, notification may occur only so far in advance
as is reasonably necessary to ensure the regulated employee's presence
at the
[[Page 43874]]
time and place of the scheduled collection.\31\ See Sec.
219.601(b)(4).
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\31\ As stated earlier, while Sec. 219.601(b)(4) currently
specifies that these notification requirements apply to random drug
testing, similar language is missing from the sections on random
alcohol testing. The proposed provision would correct this oversight
and clarify that these requirements also apply to random alcohol
testing.
---------------------------------------------------------------------------
Paragraph (e)(2) would further provide that, unless there is an
acceptable reason for the delay, collections must be conducted as soon
as possible and commence no later than two hours after notification.
This would be a new requirement not currently found in FRA regulations
or guidance. (While FRA guidance currently directs railroads to notify
train crews in transit no more than an hour before their arrival, this
guidance applies only to train crews selected for random testing and
does not directly address the time in which a random testing collection
must begin. See Compliance Manual 9.7.3.8.) FRA believes that two hours
is more than enough time to begin a collection once a regulated
employee has been notified of his or her selection for random testing.
Consistent with current guidance, paragraph (e)(2) would require a
regulated employee to be monitored after notification and, when
possible, immediately escorted by supervisory or management personnel
to the collection location. Id. These requirements would ensure that a
regulated employee notified of his or her selection for random testing
does not have the opportunity to either obtain false samples/
contaminating products or to otherwise avoid the collection. Id.
Paragraph (e)(3) would restate current provisions requiring a
railroad to inform a notified regulated employee that his or her
selection was on a random basis. See Sec. Sec. 219.601(b)(7) and
219.607(b)(7). It would also clarify that a railroad may satisfy this
requirement by showing the regulated employee a completed DOT Custody
and Control Form (CCF) or DOT Alcohol Testing Form (ATF) indicating the
basis for testing, so long as the employee has been shown and directed
to sign the CCF or ATF as required by Sec. Sec. 40.73 and 40.241.
Paragraph (f)--Incomplete Collections
Paragraph (f) would require a railroad to use due diligence to
ensure that a test is completed for each selection, unless there is an
acceptable reason for not conducting the test. This language would
incorporate historic FRA guidance directing railroads to ensure that a
collection is completed for each selection, unless there is an
acceptable reason for failing to do so. See Compliance Manual 9.7.3.7.
New language would require a railroad to document its reasons for
failing to complete the test of a selection in sufficient detail to
allow FRA to determine whether due diligence was exercised and whether
there was an acceptable reason for the failure.
Under this paragraph, only an unforeseen and unpredictable problem
would be an acceptable explanation for not completing a collection. An
example of an acceptable explanation would be an illness of a regulated
employee that extended throughout the entire designated testing window.
FRA would likely not accept explanations involving problems that should
be within the railroad's control (for example, a collector that does
not show up for a collection or the lack of an available supervisor
when required). FRA would also not accept an explanation that was based
upon convenience or the operational priority of certain trains within a
railroad's system.
Paragraph (g)--Hours-of-Service Limitations
For covered employees, paragraph (g) would govern the relationship
between FRA's random testing and HOS requirements. Under this
paragraph, a random testing collection not completed within a covered
employee's HOS limitations must be immediately terminated and may not
be rescheduled. Since the railroad controls the timing of a random
test, a railroad is responsible for ensuring that sufficient time is
available to complete a random testing collection, even for situations
involving an employee who has a shy bladder and utilizes the entire
three hours permitted by Sec. 40.193 to provide a urine sample for
drug testing. See Interpretive Guidance Manual at 41.
Paragraph (g)(2), however, would require a railroad to continue a
random testing collection regardless of any HOS limitations when a
direct observation collection is required under Sec. 40.67(a) or
(c).\32\ See Interpretive Guidance Manual at 41. Generally, a mandatory
direct observation is required when: (1) There is evidence indicating
that the employee may have attempted to tamper with his or her specimen
at the collection site (for example, the temperature of the employee's
urine specimen is out of the normal range); or (2) an MRO has ordered
an immediate direct observation collection because the employee had no
legitimate medical reason for an invalid laboratory result or because
the employee's positive or refusal (adulterated/substituted) test
result was cancelled because a split specimen test could not be
performed. See Office of Drug and Alcohol Policy and Compliance, DOT's
Direct Observation Procedures, available at https://www.dot.gov/odapc/dot-direct-observation-procedures. Direct observation collections would
have to be completed in these situations, regardless of HOS
limitations, because there is some indication that the employee,
perhaps knowing that he or she may test positive, may have tried to
beat the test. If a mandatory direct observation collection does result
in an HOS violation, the railroad would be required to submit an excess
service report as required by 49 CFR part 228. In such situations FRA
would use its prosecutorial discretion in deciding whether to pursue
action against the railroad for the HOS violation. See Interpretive
Guidance Manual at 41.
---------------------------------------------------------------------------
\32\ Direct observation collections are also required under
Sec. 40.67(b) for all return-to-duty and follow-up testing.
Proposed paragraph (g)(2) would not apply to Federal return-to-duty
tests, however, because an employee must have a negative return-to-
duty test before resuming the performance of regulated service. It
also would not apply to Federal follow-up tests because their
scheduling is within the discretion of the railroad. However, a
direct observation follow-up test would have to proceed regardless
of HOS limitations if something occurred during the collection that
would have independently triggered a mandatory direct observation
test under Sec. Sec. 40.67(a) and (c).
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Section 219.617--Participation in Random Alcohol and Drug Testing
This section would combine, clarify, and expand upon the
participation requirements currently found at Sec. 219.603 (for drug
testing) and Sec. 219.609 (for alcohol testing).
Under paragraph (a)(1), a railroad would have to require a selected
regulated employee to cooperate in random testing. If an individual was
performing regulated service when notified of his or her selection,
paragraph (a)(2) would require the railroad to ensure that he or she
ceased to perform regulated service and proceeded to the testing site
as soon as possible without affecting safety. The railroad would also
have to ensure that a regulated employee's absence from his or her
assigned duties did not adversely affect safety.
Paragraph (a)(3) would specify that a regulated employee who has
been notified of his or her selection could be excused from random
testing only by a substantiated medical emergency involving either the
employee or an immediate family member. This requirement is currently
found in Sec. Sec. 219.603 and 219.609, and railroads have often
questioned FRA to clarify its meaning when faced with an employee who
failed to appear for or abandoned
[[Page 43875]]
a random test, claiming a medical emergency.\33\ New language in
paragraph (a)(3) would clarify that a medical emergency is an acute
medical condition requiring immediate emergency care. A regulated
employee claiming that he or she had a medical emergency would be
required to provide verifiable documentation from a credible outside
professional (such as a doctor, dentist, hospital, law enforcement
officer, or school authority) within a reasonable time after the
emergency occurred. A regulated employee who was excused from random
testing because of a properly documented medical emergency could not be
later subject to random testing by the railroad under the same
selection. A regulated employee who avoided a random test by claiming a
medical emergency that was unverifiable or did not meet the threshold
of an acute medical condition requiring immediate emergency care would
be deemed to have refused the test.
---------------------------------------------------------------------------
\33\ The text of current Sec. Sec. 219.603 and 219.609
specifically states that an employee may be excused from testing
only for a ``documented medical or family emergency.'' Historically,
FRA has interpreted a ``family emergency'' to mean a medical
emergency involving a family member. In other words, FRA would not
permit a covered employee to be excused from random testing for a
``family emergency'' that was not also a medical emergency. For
example, a covered employee would not be excused from random testing
because he or she needed to pick up his or her child at daycare,
unless that child was experiencing a medical emergency. Therefore,
the purpose of FRA's proposed language, which applies to a
``substantiated medical emergency involving the employee or an
immediate family member,'' is to clarify how FRA has been
interpreting the current language, and not to make any substantive
changes to the current requirements.
---------------------------------------------------------------------------
While paragraph (a) would address the random testing
responsibilities of a railroad, paragraph (b) would address the random
testing responsibilities of a regulated employee. Under paragraph
(b)(1), a regulated employee would be required to cooperate with the
random selection and testing process and to proceed to a testing site
upon notification as soon as possible without adversely affecting
safety. Under paragraph (a)(2), the responsibility for determining
whether there would be an adverse effect on safety would rest with the
railroad, and a railroad should not notify a regulated employee of his
or her selection for random testing until it has determined that the
individual's absence from his or her duties would not adversely affect
safety. A notified regulated employee should therefore assume that the
railroad has already determined that he or she may report immediately
for testing without adversely affecting safety. Under paragraph (b)(2),
a regulated employee would be required to fully cooperate and comply
with the testing procedures of part 40 (such as providing the required
specimens and completing the required paperwork and certifications),
which are incorporated into FRA's random testing requirements by Sec.
219.701.
Section 219.619--Positive Alcohol and Drug Test Results and Refusals;
Procedures
This section would combine the requirements for responding to
positive random alcohol and drug testing results currently found in
Sec. Sec. 219.605 and 219.611, and would clarify that these procedures
apply to refusals as well. No substantive change is intended to the
current requirements.
Section 219.621--Use of Service Agents
This section would contain new provisions clarifying the role that
a service agent, such as a consortium/third party administration (C/
TPA), may play in supporting a railroad's FRA random testing program.
Although the role of service agents is discussed in subpart Q and
Appendix F of part 40, part 219 does not discuss the responsibilities
and limitations for service agents that perform random testing
responsibilities on behalf of railroads. Currently, service agents are
only incompletely addressed in Sec. Sec. 219.601(b)(2)(iii) and
219.607(b)(1)(i), which briefly mention how a railroad can use a
service agent to maintain random testing pools and perform random
selections. Proposed Sec. 219.621 would improve the regulation by
providing additional direction on how service agents may and may not be
utilized.
Paragraph (a) would clarify that railroads may use service agents
to perform any role specifically permitted under subpart Q of part 40
(Roles and Responsibilities of Service Agents). Examples of these roles
include, but are not limited to, maintaining random testing pools,
conducting random selections, and performing random drug collections or
alcohol tests.
Paragraph (b) would prohibit railroads from using a service agent
to notify a regulated employee that he or she has been selected for
Federal random testing, as this function must be performed by the
individual's direct employer. Using a service agent (such as a
collector) to notify a regulated employee of his or her selection is
problematic because the regulated employee may not be aware that the
service agent is an authorized agent of the railroad. This doubt may
lead the regulated employee to refuse to comply with the service
agent's random testing instructions, which could result in the employee
being charged with a refusal. Rather than addressing the difficulties
of ensuring that regulated employees are fully aware and confident of a
service agent's authority, FRA believes it is simpler to require all
notifications to be issued by an individual's direct employer, unless
otherwise provided for by the railroad's FRA-approved random testing
plan. If a railroad's random testing plan does specifically authorize a
service agent to notify regulated employees, FRA would likely only
approve that plan if it specified that the railroad would train or
otherwise ensure that its regulated employees knew that a service agent
was authorized to provide such notification. A direct employer must
notify regulated employees of their selection for random testing also
because Sec. 219.617(a)(2) requires a railroad to ensure that a
notified regulated employee proceeds to the collection site as soon as
possible without affecting safety. This safety determination should be
made by an individual who is responsible for the operational safety of
the railroad, not a service agent who would probably not have the
requisite knowledge and experience to make such a safety determination.
Paragraph (b) would also remind railroads that a service agent may
not perform any roles that are reserved for employers under Sec.
40.355 and would specify that only a railroad or a contractor company
performing railroad-accepted testing can be considered an employer
under Sec. 40.355.
Paragraph (c) would remind railroads and contractor companies of
their responsibilities under Sec. 219.9 (discussed above) by
clarifying that the primary responsibility for subpart G compliance
rests with the railroad, although FRA reserves the right to bring an
enforcement action against a railroad, its service agents, its
contractors, or its employees.
Paragraph (d) would clarify that a C/TPA conducting random testing
may calculate the number of regulated employees who must be tested
either for each individual railroad belonging to the C/TPA, or for the
total number of regulated employees covered by the C/TPA. If a C/TPA is
making selections from a combined employer random pool, it must ensure
that it is testing at a rate equal to the highest minimum annual
percentage rate established under the random testing regulations of a
DOT agency for any individual member of that pool.
[[Page 43876]]
Section 219.623--Records
This section would contain general provisions governing the
maintenance of random testing records. This section would not make any
major substantive changes to the record requirements currently found in
subpart G.
Paragraph (a) would specify that railroads are required to maintain
random testing records for a minimum of two years, as provided by
proposed Sec. 219.901. This requirement is currently found in Sec.
219.901(c) and Sec. 219.903(c).
Paragraph (b) would contain new language clarifying that contractor
companies and service agents performing subpart G random testing
requirements must provide required records whenever requested either by
FRA or the employing railroad, although the railroad remains ultimately
responsible for maintaining the records required by subpart G.
Section 219.625--FRA Administrator's Determination of Random Alcohol
and Drug Testing Rates
FRA is proposing to combine the provisions currently addressing the
Administrator's determination of the minimum annual percentage rate for
random drug testing (current Sec. 219.602) and random alcohol testing
(current Sec. 219.608) into a new Sec. 219.625. No substantive
changes have been made to the rate determination criteria found in the
current rule for either drugs or alcohol, although some of the language
has been streamlined and clarified. (For example, FRA is proposing
minor changes to clarify that FRA only considers MIS data for random
testing positives and/or violations when determining the minimum annual
random percentage rates.) With the exception of the proposed provisions
contained in paragraph (c), this section only contains provisions
related to the determination of random testing rates that are already
in current subpart G.
Paragraph (c) would contain new language establishing criteria for
the future incorporation of any new category of regulated employees
added to the scope of part 219. Although paragraph (c) would
immediately affect the expansion of part 219 to MOW employees, it is
also intended to apply if FRA decides to expand part 219 to cover
additional categories of employees.
For any new category of employees, the introductory text of
paragraph (c) would establish the initial minimum annual percentage
rates for random drug testing (50 percent) and random alcohol testing
(25 percent). As previously discussed in Section III.H of this NPRM in
relation to MOW employees, FRA believes that these higher initial
random testing rates are appropriate because FRA set the same rates
when it initiated random testing for covered employees. FRA believes it
is fair to start all new categories of regulated employees at the same
rates.
Paragraph (c)(1) would provide that the Administrator would
reconsider these initial minimum annual percentage rates once FRA had
at least 18 months worth of MIS testing data for the new category of
regulated employees. FRA briefly considered proposing that the rates
could be changed once it had data for two years, but concluded that
this approach could be problematic given that railroads are only
required to submit MIS data annually. See Sec. 219.800(a). If a new
category of regulated employee was added to part 219 any time after the
start of the MIS reporting year, it would take three MIS reporting
cycles (three years) to collect two complete years' worth of data. By
requiring only 18 months of MIS data, FRA could reconsider its initial
testing rates based on only two years of MIS reports on the drug and
alcohol testing results of regulated employees, so long as this new
employee category was incorporated within the first six months of FRA's
MIS reporting cycle. FRA believes this approach would provide greater
flexibility to adjust initial testing rates in response to MIS data
indicating that such an adjustment may be appropriate.
Paragraph (c)(2) would provide that the Administrator will
determine separate random testing rates for each new category of
regulated employees for a minimum of three full calendar years after
that category has been incorporated into part 219. Paragraph (c)(3)
would further provide that the Administrator could combine a new
category of regulated employees with the larger regulated employee
population once the categories' positive rates have been identical for
two years. This would permit the Administrator sufficient time to
ensure that the deterrence value of the random testing rates has been
clearly established before considering whether to change the testing
rates for a new employee category. The Administrator would also be able
to carefully monitor positive rate trends for the new category that
might otherwise be lost if these employees were automatically made part
of the larger population of regulated employees.
Subpart H--Drug and Alcohol Testing Procedures
Section 219.701--Standards for Drug and Alcohol Testing
Paragraphs (a) and (b) of this section would be amended to reflect
the proposed separation of the requirements for reasonable suspicion
and reasonable cause into two separate subparts, as discussed in
Section VI.A of this preamble. These paragraphs would also be amended
to clarify that any alcohol or drug testing conducted as the result of
a co-worker or non-peer referral under a proposed subpart K peer
prevention program must be conducted under FRA authority and comply
with the requirements of part 40.
Currently, paragraph (c) of this section requires covered employees
notified of their selection for testing to proceed to the testing site
immediately, or as soon as they can stop performing covered service
safely. FRA is proposing to move this requirement to Sec. 219.11(e).
FRA believes this provision is a general requirement that belongs more
appropriately in Sec. 219.11, titled ``General conditions for chemical
tests''.
Subpart I--Annual Report
Section 219.800--Annual Reports
Paragraph (b) of this section would be amended to update and
correct the internet link containing the electronic version of the MIS
form and information on where to submit the form.
FRA is also proposing a new paragraph (f) specifying that railroads
would be required to report MIS information separately for covered
employees and MOW employees. Separate MIS reporting would allow FRA to
gather the data necessary to establish separate random testing rates
for MOW employees. FRA is specifically requesting public comment on
what type of burdens this would impose on railroads and whether
separate MIS reporting should be required only when there are separate
testing rates for covered employees and MOW employees.
Subpart J--Recordkeeping Requirements
Section 219.901--Retention of Alcohol and Drug Testing Records
FRA's requirements for the retention of alcohol testing records are
currently contained in Sec. 219.901, while the requirements for the
retention of drug testing records are contained in Sec. 219.903. The
requirements contained in these two sections, however, are essentially
identical. For the purpose of streamlining the regulations, therefore,
[[Page 43877]]
FRA is proposing to incorporate the requirements for both alcohol and
drug testing records into Sec. 219.901, which would be renamed
``Retention of alcohol and drug testing records.'' This structural
change is intended for clarification purposes only, and no major
substantive amendments are being proposed.
In addition to this structural change, FRA is also proposing
several minimal and clarifying amendments to the provisions of Sec.
219.901, as discussed below.
Paragraph (a)(2)
FRA currently requires railroads to maintain all Federal alcohol
and drug test results, including negative or cancelled results, for a
period of two years. See Sec. 219.901(c)(2)(i)-(iii) and Sec.
219.903(c)(2)(i)-(ii). Under Sec. 40.333(a)(4), however, railroads
must maintain documents related to negative or cancelled alcohol and
drug tests only for a period of one year. Generally, whenever a
railroad is subject to multiple recordkeeping requirements of different
lengths, it must comply with the requirement that mandates the longest
retention period. See Compliance Manual 14.5. Railroads are not excused
from complying with FRA's two-year retention requirement for negative
and cancelled test records, therefore, simply because Sec.
40.333(a)(4) requires employers to keep such records only for one year.
However, in an effort to ease this recordkeeping burden on
railroads, new language in proposed paragraph (a)(2) would permit
railroads to maintain legible and accessible scanned or electronic
copies of test records for the second year that they are required to be
maintained by FRA, whenever Sec. 40.333 requires those records to be
kept only for one year. Permitting railroads to maintain legible and
accessible scanned or electronic copies of test records for the second
year of FRA's mandatory retention period would reduce any difficulties
railroads may face in finding physical space in which to maintain
hardcopies of these records.
Paragraph (b)(1)
Railroads must currently maintain a summary record of each covered
employee's alcohol or drug test results for a period of five years. See
Sec. 219.901(b)(1) and Sec. 219.903(b)(1)(i). FRA has not been
actively enforcing this requirement, however, so long as a railroad has
maintained the individual files of each regulated employee's alcohol
and drug tests for a period of five years. Therefore, FRA is proposing
to amend paragraph (b)(1) to permit a railroad to comply by maintaining
either a summary record or the individual files for the five year
period. This amendment would both reflect FRA's enforcement policy and
support smaller railroads, which often find it impractical to maintain
the summary records currently required.
Paragraph (c)(1)(ii)
Railroads must currently maintain documents related to the random
testing process. Proposed paragraph (c)(1)(ii) would be amended to
clarify that the scope of this requirement includes the railroad's
approved random testing plan and FRA's approval letter for that plan.
Paragraph (c)(1)(iii)
Currently, the language of Sec. 219.901(c)(1)(iii) and Sec.
219.903(c)(1)(ii) specifies that railroads must maintain records
related to decisions to administer Federal reasonable suspicion tests
for a period of two years. Decisions to administer Federal reasonable
cause tests, however, are not specifically addressed by this
requirement. In its guidance, FRA states that this oversight was
inadvertent and that this requirement also applies to Federal
reasonable cause testing determinations. See Compliance Manual 14.5.
Proposed paragraph (c)(1)(iii) would incorporate this guidance by
clarifying that the two-year retention requirement also applies to
records related to Federal reasonable cause testing determinations.
Paragraph (c)(4)(iii)
Railroads are currently required to maintain documentation on
supervisor training regarding reasonable suspicion testing
determinations. See Sec. 219.901(c)(4)(iii) and Sec.
219.903(c)(4)(iii). Under Sec. 219.11(g), however, railroads must
train supervisors regarding both reasonable suspicion testing
determinations and the criteria for making determinations concerning
PAT testing. New language in proposed paragraph (c)(4)(iii) would
clarify that the maintained training documents must include training
attendance records and training materials, and that railroads must also
maintain supervisor training documents related to PAT testing
determinations. FRA guidance applies this provision to documents
related to the training requirements of Sec. 219.11(g), which
addresses both reasonable suspicion and PAT testing determinations. Id.
The proposed amendment would incorporate this guidance into the
regulations.
FRA Would No Longer Require Training Certification
Under Sec. 219.901(c)(iv) and Sec. 219.903(c)(iv), railroads are
currently required to maintain records certifying that any training
conducted under part 219 complies with the requirements for such
training. In its retrospective review, FRA found that it had never
inspected for this requirement because it audits railroads' training
documents directly to ensure that they comply with part 219. FRA is
proposing to reduce its recordkeeping requirements by removing the need
to maintain certification records.
Section 219.903--Access to Facilities and Records
Due to the consolidation of the provisions in Sec. 219.901 and
Sec. 219.903 into proposed Sec. 219.901, which would apply both to
alcohol and drug testing records, the requirements for facilities and
records access currently contained in Sec. 219.905 would be moved to
proposed Sec. 219.903, entitled ``Access to facilities and records.''
Paragraph (a) of this section would also be further amended to reflect
the consolidation of Sec. 219.901 and Sec. 219.903 into a single
Sec. 219.901.
Subpart K--Peer Support Programs
Currently, subpart E requires railroads to design and implement
voluntary referral and co-worker report policies. Under these policies,
a covered employee who abuses alcohol or drugs as part of a treatable
condition may maintain an employment relationship with a railroad so
long as he or she obtains counseling and treatment by entering the
railroad's subpart E program. These policies are beneficial because
they provide assistance to valuable covered employees who have
substance abuse disorders that can be addressed through appropriate
counseling or treatment.
The success of peer support programs would be supported if the
benefit of addressing substance abuse disorders through such
rehabilitative programs is clearly understood by railroad management,
employees, and any involved collective bargaining organizations. Over
the years, however, FRA's experience enforcing the requirements of the
current subpart E has revealed that the railroad industry is sometimes
confused about the subpart's intent and FRA's expectations for
compliance. This NPRM is therefore proposing to rewrite various peer
support program provisions to provide additional detail, clarity, and
focus. The proposed amendments would also give
[[Page 43878]]
railroads greater flexibility to develop peer support programs that
both promote safety and encourage regulated employees to utilize the
peer support programs to address any treatable substance abuse issues.
FRA's audits of subpart E programs have also discovered that
covered employee usage of peer support programs can vary from railroad
to railroad, even though the various programs all appear to meet the
subpart E requirements. To the extent that low usage rates of a subpart
E program at a railroad may be the result of policies that are unclear
or misunderstood, FRA's proposed amendments are an effort to bolster
participation by ensuring that the requirements for peer support
programs are clearly understood by the railroad industry.
Furthermore, in order to accommodate dedicating an entire subpart
each to reasonable cause testing and reasonable suspicion testing, as
discussed above in Section VI.A of this preamble, this NPRM is
proposing to move the requirements for peer support programs from the
current subpart E to a new subpart K. FRA would also change the title
of subpart K from ``Identification of Trouble Employees'' to ``Peer
Support Programs.'' FRA believes the new title is a more accurate
reflection of the purpose and intent of subpart K, which is to provide
support to regulated employees who abuse alcohol or drugs as part of a
treatable condition.
Similarly, FRA is proposing to replace the phrase ``co-worker
report'' with the phrase ``co-worker referral'' throughout subpart K.
FRA believes that ``referral'' is preferable in this situation because
``report'' may sometimes have a negative connotation that discourages
employees from referring co-workers who genuinely need assistance.
FRA is also proposing to streamline the regulations by requiring
railroads to maintain a single peer support program policy, as opposed
to the current rule, which requires a separate voluntary referral
policy and co-worker report policy. The peer support program policy
required by proposed subpart K would then be required to contain both a
self-referral policy and a co-worker referral policy. By making self-
referrals and co-worker referrals part of the same peer support program
policy, FRA is emphasizing that these programs work together towards
the same purpose. FRA is also proposing to clarify that peer support
program policies are permitted to accept non-peer referrals, as will be
discussed further in the section-by-section analysis below.
Section 219.1001--Requirement for Peer Support Programs
Paragraph (a)
Paragraph (a) of this section would specify that the purpose of
subpart K is to help prevent the adverse effects of alcohol misuse and
drug use by regulated employees through the implementation of peer
referral and support programs. This purpose is slightly more specific
than that contained in current Sec. 219.401(a), which states only that
the purpose of subpart E is to prevent the use of alcohol and drugs in
connection with covered service.
Paragraph (b)
Paragraph (b) would require a railroad to adopt, publish, and
implement a subpart K-compliant peer support program policy that is
designed to encourage and facilitate the referral and rehabilitative
support of regulated employees who abuse alcohol or drugs. This
language is slightly different from that contained in current Sec.
219.401(b)(1), which states that the policy must be designed to also
facilitate the ``identification'' of employees who abuse drugs or
alcohol. Because FRA believes that the word ``identification'' does not
accurately reflect the purpose of subpart K, FRA is proposing to
generally remove it from the regulations' discussion of peer support
program policies. Paragraph (b) would also clarify that peer support
programs are established under the railroad's authority. For example,
any follow-up testing recommended for a regulated employee who entered
a peer support program would be conducted under the railroad's own
authority and would not have to meet the part 40 requirements, unless
the regulated employee had committed a substantiated part 219
violation.
Paragraph (c)
Paragraph (c) would specify that a railroad may comply with subpart
K by either adopting, publishing, and implementing a policy meeting the
requirements of proposed Sec. 219.1003 or by complying with proposed
Sec. 219.1007 (which discusses alternate peer support program
policies). The substance of this paragraph is essentially identical to
current Sec. 219.401(c).
Paragraph (d)
Paragraphs (d)(1), (d)(2), and (d)(5) would place specific
limitations on how the requirements of subpart K may be construed.
These provisions are not new, being identical to those contained in
current Sec. 219.401(e)(1)-(e)(3).
Paragraphs (d)(3) and (d)(4) would contain new proposed limitations
on how the requirements of subpart K may be construed. Under paragraph
(d)(3), subpart K could not be construed to interfere with mandatory
reasonable suspicion testing under subpart D when a supervisor properly
determines that a regulated employee is exhibiting signs and symptoms
of alcohol or drug use. For example, if a trained (in accordance with
Sec. 219.11(g)) supervisor noticed that a regulated employee was
exhibiting signs and symptoms, a railroad would not be excused from
performing a Federal reasonable suspicion test if the individual choose
that moment to inform the railroad that he or she wished to self-refer
to the subpart K peer support program. A trained supervisor observing
signs and symptoms may also not make a co-worker referral for the
regulated employee in lieu of performing a reasonable suspicion test.
These limitations are necessary because reasonable suspicion testing is
mandatory when a supervisor's independent actions alert him or her to
the signs and symptoms of alcohol or drug use.
Similarly, paragraph (d)(4) would specify that subpart K may not be
construed to interfere with the Sec. 219.104 responsive action
requirements when a violation of Sec. 219.101 or Sec. 219.102 has
been substantiated. For example, a regulated employee who tests
positive on a Federal random drug test may not avoid the Sec. 219.104
responsive action requirements by self-referring into the railroad's
subpart K peer support program.
Section 219.1003--Peer Support Program Requirements
Paragraph (a)
Paragraph (a) would state that Sec. 219.1003 prescribes the
minimum requirements and standards for peer support programs. It also
specifies that all individuals involved in the implementation of a peer
support program must comply with the program's policies and
implementation procedures.
Paragraph (b)--Policies Required
Paragraph (b)(1) would require a railroad peer support program
policy to include a self-referral policy that provides regulated
employees the opportunity to obtain referral, education, counseling,
and/or treatment before the employee's alcohol or drug abuse problem
results in an accident, injury, or detected part 219 violation. Because
a self-referral does not involve
[[Page 43879]]
a 219 violation, a SAP may not provide such treatment. Instead, part
240 requires a locomotive engineer to receive these services from a
qualified EAP counselor, while part 242 requires a conductor to receive
such services from a DAC. For regulated employees who self-refer and
are neither engineers or conductors, an EAP counselor evaluation would
be required. Paragraph (b)(2), in turn, would require the establishment
and support of a co-worker referral policy. Such policies are already
required by Sec. Sec. 219.403 and 219.405 of the current rule.
Paragraph (b)(3) would indicate that a peer support program policy
may provide for the acceptance of referrals from non-peers. This
language clarifies and expands upon the current Sec. 219.403(b)(1),
which states that a ``railroad must specify whether, and under what
circumstances, its policy provides for the acceptance of referrals from
other sources, including (at the option of the railroad) supervisory
employees.'' As used in proposed subpart K, the term ``non-peer'' would
refer to an individual who is not considered an employee's co-worker,
and could include a trained supervisor, representative of an employee's
collective bargaining organization, or family member. This provision
would not require a railroad to accept non-peer referrals. If a
railroad did develop a non-peer referral policy, however, this
paragraph would require the railroad to include that policy in its
subpart K peer support program policy. FRA believes that permitting
non-peer referral policies would create additional flexibility for
railroads to accept referrals from various sources other than a
regulated employee's co-workers. For example, a non-peer referral
policy could permit a concerned family member to refer a regulated
employee to the railroad's peer support program for assistance. Such a
family member may be in a better position than a co-worker to realize
that a regulated employee might be abusing alcohol or drugs to the
extent that he or she is a safety concern that could require counseling
and treatment.
Paragraph (c)--Referral Conditions
Paragraph (c) would generally require a peer support program policy
to specify the conditions under which a referral could occur. Under
paragraphs (c)(1)-(4) these conditions must encompass (but are not
limited to) the following:
For self-referrals, a policy would have to identify and
include the contact information for a designated EAP or DAC (the phone
number and email, if available). The policy would also have to indicate
when a self-referral could be made. For example, a policy could provide
that a self-referral could not be made while a regulated employee was
actually on-duty and impaired;
Whether non-peer referrals are accepted, and any
allowances, conditions, or procedures of such referrals;
A policy must specify that a railroad may accept a co-
worker or non-peer referral only if it alleges that the regulated
employee was apparently unsafe to work with or in violation of either
part 219 or the railroad's alcohol and drug rules. Similar language for
co-worker referrals is already found in current Sec. 219.405(c)(1);
and
In order to remove from service a regulated employee who
is the subject of a co-worker or non-peer referral, a railroad would
have to confirm that the individual was indeed unsafe to work with or
in violation of either part 219 or the railroad's alcohol and drug
rules. Such confirmation could consist of a credible positive test
result or an observation made by a supervisor trained according to the
requirements of Sec. 219.11(g). Similar language for co-worker
referrals is already found in current Sec. 219.405(c)(2).
Paragraphs (d)-(e)--Employment Maintained
To encourage utilization of peer prevention programs, the
introductory text of paragraph (d) would state that a regulated
employee affected by an alcohol or drug use problem may maintain an
employment relationship with the railroad so long as he or she entered
the railroad's peer support program (either through a self-referral,
co-worker referral, or non-peer referral) and successfully completed
the education, counseling, or treatment program specified by an EAP or
DAC under the provisions of this subpart. Similar language specifying
that an individual entering a peer support program may maintain an
employment relationship with a railroad is currently found in Sec.
219.403(b)(1) for voluntary referrals and Sec. 219.405(b) for co-
worker reports. Paragraph (e) would further clarify that a regulated
employee with an alcohol or drug use problem would be subject to the
railroad's normal employment action if he or she either did not enter
the peer support program or failed to cooperate with the program.
Paragraph (f)-(g)--EAP/DAC or SAP Evaluations
Under paragraph (f)(1), a regulated employee entering a peer
support program through a self-referral would have to be evaluated by
an EAP counselor or DAC acceptable to the railroad. A regulated
employee entering the program through a co-worker or non-peer referral
would have to be evaluated by a SAP counselor acceptable to the
railroad (under the standards of part 40) if the referral involved a
substantiated violation of part 219. (As discussed in the section-by-
section analysis for the proposed definition of ``Counselor,'' FRA is
proposing to use the term Counselor whenever a requirement may be met
by an DAC, EAP counselor or SAP, rather than repeating all three
terms.) A SAP evaluation must be performed in such cases because a
regulated employee who violates part 219 is subject to the responsive
action requirements of Sec. 219.104(d), which requires a SAP
evaluation for all such violations if the individual wishes to return
to regulated service. If a co-worker or non-peer referral does not
involve a substantiated part 219 violation, but the individual is found
to be unsafe to work with or in violation of only the railroad's
alcohol and drug rules, the regulated employee must be evaluated by an
EAP or DAC.
While this NPRM is proposing to provide EAP or DAC evaluations for
individuals entering a peer support program without a part 219
violation, FRA is also taking this opportunity to solicit public input
on whether a DAC evaluation should be required for all peer support
program participants, regardless of whether they have had a part 219
violation. Part 242 already requires a DAC to have the same
credentialing and qualifications a SAP must have under part 40. Would
requiring SAP-level evaluations for all regulated employees more
effectively support subpart K's goal of helping to prevent the adverse
effects of alcohol and drug use by regulated employees? If so, how?
Paragraph (f)(3) would provide that a Counselor evaluating a
regulated employee who has entered a peer support program must
determine the appropriate level of care (education, counseling, and/or
treatment) necessary to resolve any identified active substance abuse
problem (such as, but not limited to, substance dependency). If
treatment and/or education is required, the Counselor must refer the
regulated employee to an appropriately qualified rehabilitation program
in the community, if one is available. A regulated employee who fails
to cooperate with the evaluation, referral process, or aftercare can be
dismissed from the peer support program and made subject to the
railroad's normal employment action.
[[Page 43880]]
Under paragraph (g), if a Counselor's evaluation determines that a
regulated employee has an active substance abuse disorder, the peer
support program policy would have to require the removal of that
individual from regulated service until the Counselor determines that
he or she can safely return to service. The railroad must do so in a
manner that complies with the confidentiality provisions found in
proposed paragraph (h) of this section. For example, a railroad could
maintain confidentiality by coding the regulated employee's removal as
a medical reason.
Paragraph (h)--Confidentiality
Paragraph (h) would require a peer support program policy to treat
any referral and subsequent handling as confidential. Only personnel
who administer the program may have access to the identities of
individuals in it. The only required exception to this confidentiality
requirement would be provided by paragraph (l) of proposed Sec.
219.1003, which would state (in part) that confidentiality may be
waived for a certified locomotive engineer or conductor (or candidate
for engineer or conductor certification) who refuses to cooperate in a
recommended course of counseling or treatment. The provisions of
proposed paragraph (l) will be discussed further below.
Railroads are currently required to treat voluntary referrals as
confidential under Sec. 219.403(b)(2). The current Sec. 219.403(c)
also provides that a policy may contain provisions waiving
confidentiality when an employee refuses to cooperate with the
recommended treatment/counseling or is later determined to have been
involved in an alcohol or drug related disciplinary offense growing out
of subsequent conduct. An identical optional provision would also be
included in proposed Sec. 219.1005, discussed below.
Paragraph (i)--Leave of Absence
Paragraph (i) would require a railroad to grant a regulated
employee who has entered a peer support program a leave of absence for
the period necessary to complete any primary education, counseling, or
treatment program recommended by a Counselor. The leave of absence must
be long enough for the regulated employee to establish control over his
or her alcohol or drug abuse problem to the extent that the evaluating
Counselor determines that he or she is a low risk to return to
substance abuse. Similar language is found in Sec. Sec. 219.403(b)(3)
and Sec. 219.405(d)(1) of the current rule, except that the current
rule specifically states that the leave of absence must be at least 45
days long, if necessary. FRA is proposing to remove this specific time
requirement because it believes that a Counselor should determine the
period of time an employee requires to obtain control over a substance
abuse problem.
Paragraph (j)--Return to Regulated Service
Paragraph (j)(1) would state that a regulated employee must be
returned to regulated service based upon a Counselor's recommendation
when he or she has established controlled over any substance abuse
problem, when the Counselor has determined that he or she is a low risk
to return to substance abuse, and when he or she has completed any
return-to-service requirements recommended by a Counselor. The only
exceptions to this requirement would be found in proposed Sec.
219.1005, which discusses optional provisions that may be contained in
a peer support program policy, and in proposed Sec. 219.1001(d)(4),
which references the responsive action requirements of Sec. 219.104
for part 219 violations. This proposed language would expand and
clarify the language currently found in Sec. 219.403(b)(4), which
states that an employee who has voluntarily referred must be returned
to service on the recommendation of a SAP.\34\ The proposed language is
otherwise essentially identical to that contained in Sec.
219.405(d)(3)-(d)(4) for co-worker reports, except that the proposed
language would not contain the current requirement that a program for
follow-up treatment may not exceed 60 months. A new limitation on how
long any follow-up treatment may last would be found in proposed
paragraph (o) of this section.
---------------------------------------------------------------------------
\34\ Under the proposed rule, this recommendation would be made
by an EAP counselor because employee who self-refers would not be
required to have a SAP counselor evaluation.
---------------------------------------------------------------------------
Paragraph (j)(2) would specify that a Counselor is required to
determine the appropriate number and frequency of follow-up tests (if
required), while the railroad would determine the dates of the testing.
Paragraph (j)(3) would state that an employee's return to regulated
service may be conditioned upon successful completion of a return-to-
service medical evaluation, as directed by the railroad. This is
currently permitted for co-worker reports under Sec. 219.405(d)(3),
and would be expanded in the proposed language to self-referrals and
non-peer referrals as well.
Paragraph (j)(4) would state that approval to return to regulated
service may not be unreasonably withheld; a railroad must return an
employee to regulated service within five working days of a Counselor's
recommendation that the employee is fit to return. The requirement that
such approval may not be unreasonably withheld is currently found in
Sec. 219.403(b)(4) and Sec. 219.405(d)(3), although the proposed
language goes further in specifying that the regulated employee must be
returned to service within five days. The current Sec. 219.405(e)(1)
requires a railroad to return an employee to covered service within
five days only in situations where the SAP has determined that
treatment is not required for a co-worker reported employee.
Paragraph (k)--Rehabilitation Plan
Paragraph (k) would provide that no person or entity may change a
Counselor's evaluation or recommendation for assistance. However, the
Counselor who made the initial evaluation would be permitted to modify
that evaluation and any follow-up recommendations based upon new or
additional information.
Paragraph (l)--Locomotive Engineers and Conductors
Paragraph (l) would state that a peer support program policy must
waive confidentiality for a locomotive engineer, conductor, or
candidate for engineer or conductor certification who refuses to
cooperate in recommended counseling or treatment, to the extent that
the Counselor must provide the railroad official notice if the
locomotive engineer or conductor has an active substance abuse
disorder. A railroad receiving such notice must suspend, revoke, or
deny the engineer's or conductor's certification, as appropriate. For
locomotive engineers, this requirement is currently found for voluntary
referrals in Sec. 219.403(b)(5), which simply requires railroads to
comply with the requirements of Sec. 240.119(e). (Part 219 does not
currently have a similar requirement for certified conductors because
these individuals only recently became subject to the certification
requirements of part 242.) FRA believes it is important in the proposed
rule to also apply this requirement to co-worker and non-peer
referrals.
New language in this paragraph would also specify that a Counselor
who is managing the employee's case is not required to provide this
notice if the locomotive engineer or conductor is medically restricted
from performing regulated service while undergoing treatment to correct
the active substance
[[Page 43881]]
abuse disorder. If, in the Counselor's opinion, the engineer or
conductor fails to make the necessary rehabilitative progress during
this medical restriction from regulated service, then the Counselor
must provide the railroad official notice of the active substance abuse
disorder.
Paragraph (m)--Contacting a SAP
Paragraph (m) would state that if a regulated employee enters a
peer support program as the result of a co-worker or non-peer referral
for a verified violation of Sec. 219.101 or Sec. 219.102, he or she
must contact a SAP within a reasonable period of time, specified by the
railroad's peer support program policy. If the regulated employee does
not contact a SAP within this time period, the railroad could
investigate his or her cooperation and compliance with the peer support
program.
Paragraph (n)--Time Requirements for Counselor Evaluations
Paragraph (n) would state that once a regulated employee entering a
peer support program contacts the designated Counselor, the Counselor's
evaluation must be completed within 10 working days. If more than one
evaluation is required, they must be completed within 20 working days.
This requirement is currently found in Sec. 219.405(b)(4) for co-
worker reports, and FRA's proposed language would expand it to non-peer
and self-referrals as well.
Paragraph (o)--Regulated Employee Agreement
Paragraph (o) would provide that a peer support program policy must
require a participating regulated employee to agree to undertake and
successfully complete a course of prescribed care and any Counselor
recommended follow-up care (including follow-up testing). This
paragraph would also state that any follow-up treatment, care, or
testing may not exceed 24 months beyond the regulated employee's
removal from service, unless the regulated employee had committed a
substantiated part 219 violation. If the regulated employee has
committed such a violation, any follow-up treatment would be subject to
the requirements of part 40, which states that a SAP may require
follow-up testing for 60 months following the violation. See 49 CFR
40.307(d)(2). Currently, Sec. 219.405(d)(4) states that the follow-up
treatment for a co-worker report may not exceed 60 months. FRA is
proposing this change because it believes that 24 months is a more
appropriate time frame for regulated employees who have not committed a
substantiated part 219 violation to be part of a peer support program.
Section 219.1005--Optional Provisions
This section would describe provisions that a railroad may, but is
not required to, include in its peer support program policy. The
inclusion of any such provisions may be subject to the agreement of an
affected labor organization.
Under paragraph (a), the policy could include a mark-off provision
under which a regulated employee may refuse an assignment because of a
concern that he or she may not be safe to work due to alcohol or
prescription medication use.
Paragraphs (b)-(e) would contain optional provisions that are
essentially identical to optional provisions currently provided for
voluntary referral policies by Sec. 219.403(c)(1)-(4). FRA's proposed
text would make these optional provisions available to peer support
program policies in general (including co-worker and non-peer referral
policies).
Paragraph (b) would permit a peer support program policy to waive
the rule of confidentiality if a regulated employee refuses to
cooperate in a course of education, counseling, or treatment
recommended by a Counselor or if the railroad determines later, after
investigation, that a regulated employee was involved in an alcohol or
drug-related disciplinary offense growing out of subsequent conduct.
This proposed text is identical to that currently found in Sec.
219.403(c)(1) for voluntary referrals.
Under paragraph (c), a peer support program policy could require
successful completion of a return-to-service medical examination as a
condition of reinstatement in regulated service.
Under paragraph (d), a peer support program policy could state that
it does not apply to a regulated employee who has previously been
assisted by the railroad under a policy or program substantially
consistent with the requirements of subpart K.
Under paragraph (e), a policy could provide that an employee
invoking the benefits of a peer support program policy must report to a
railroad-designated contact either during non-duty hours or while
unimpaired and otherwise in compliance with the railroad's alcohol and
drug rules consistent with proposed subpart K.
Section 219.1007--Alternate Peer Support Programs
This paragraph would permit a railroad to comply with subpart K by
developing, publishing, and implementing an alternate program or policy
meeting the various standards of Sec. 219.1003. Paragraphs (a)-(d) of
this section are very similar to provisions contained in current Sec.
219.407(a)-(d), although there are some minor differences intended to
clarify the applicable standards.
Paragraph (a) would permit a railroad to develop, publish, and
implement an alternate program or policy that meets the standards of
Sec. 219.1003. Any alternate program or policy must have the written
concurrence of the recognized representatives of the regulated
employees.
Paragraph (a) would also specify that nothing in subpart K prevents
a railroad or labor organization from adopting, publishing, and
implementing peer support program policies that afford more favorable
conditions to regulated employees with substance abuse problems,
consistent with the railroad's responsibility to prevent violations of
Sec. Sec. 219.101 and 219.102. This language is currently found in
Sec. Sec. 219.403(a) and 219.405(a), but FRA believes it belongs more
appropriately in the section addressing alternative programs.
Paragraph (b) would provide that the concurrence of the recognized
representatives of the regulated employees in an alternate program must
be evidenced by a collective bargaining agreement or other document
describing the class or craft of employees to which the alternate
program applies. This agreement would have to expressly reference
subpart K and the intention of the railroad and the employee
representatives that the alternate program applies in lieu of the
program required by subpart K. With a few non-substantive revisions,
this language is identical to that currently found in Sec. 219.407(b).
Paragraph (c) would require a railroad to file the agreement or
other document described in paragraph (b), along with the alternate
program described in paragraph (a), with the FRA Drug and Alcohol
Program Manager for approval. Currently, Sec. 219.407(c) only requires
the railroad to file with FRA the agreement described in Sec.
219.407(b). FRA believes that the railroad must also be required to
submit the alternate program for FRA approval, so that FRA can ensure
that the program does indeed meet the requirements and objectives of
proposed Sec. 219.1003. This paragraph would specify that this
approval would be based on FRA's ability to ascertain whether the
alternative program meets the Sec. 219.1003 standards. An alternative
program would not have to meet each specific Sec. 219.1003 component,
but would be required to meet the general
[[Page 43882]]
standards and intent of Sec. 219.1003. If an alternate policy is
amended or revoked, a railroad must file a notice with FRA of such at
least 30 days prior to the effective date, as a railroad is currently
required to do by Sec. 219.407(c).
Paragraph (d) would specify that Sec. 219.1007 does not excuse a
railroad from adopting, publishing, and implementing the Sec.
219.1003-required programs for any group of regulated employees not
covered by an approved alternate program. This provision is essentially
identical to that currently found in Sec. 219.407(d).
New language in paragraph (e) would reference a proposed provision
of Sec. 219.105(d), which specifies that FRA has the authority to
audit any railroad alcohol and/or drug use education, prevention,
identification, and rehabilitation program or policy (including, but
not limited to, alternate peer support programs), to ensure that they
are not designed or implemented in such a way that they circumvent or
otherwise undermine Federal requirements, including the requirements in
this part regarding peer support programs. Peer support program usage
data could be requested as one tool to evaluate whether a railroad
program or policy is having a positive or negative impact on a required
subpart K peer support program. For example, a railroad program or
policy may not be implemented in a way that directly or indirectly
discourages regulated employees from entering a subpart K peer support
program, and FRA may compare usage data from both the railroad program
and the subpart K program to determine whether the railroad program may
be having a negative impact on the subpart K program.
VIII. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures
This proposed rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant, under
both Executive Orders 12866, and 13563, and DOT policies and
procedures. See 44 FR 11034, Feb. 26, 1979. FRA has prepared and placed
in the docket (No. FRA-2009-0039) a regulatory impact analysis (RIA)
addressing the economic impact of this proposed rule. Document
inspection and copying facilities are available at the DOT Central
Docket Management Facility located in Room W12-140 on the Ground level
of the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590.
Docket material is also available for inspection electronically through
the Federal eRulemaking Portal at https://www.regulations.gov. As part
of the RIA, FRA has assessed quantitative measurements of the cost and
benefit streams expected to result from implementation of this proposed
rule. Overall, the proposed rule would result in safety benefits and
potential business benefits for the railroad industry. It would also,
however, generate an additional burden on railroads and railroad
contractors, mainly due to the expenses associated with increased drug
and alcohol testing and program administration, particularly regarding
MOW employees.
The costs would primarily be derived from implementation of the
statutory mandate to expand the scope of part 219 to cover MOW
employees. The benefits will primarily accrue from the expected injury,
fatality, and property damage avoidance resulting from the expansion of
part 219 to cover MOW employees, as well as the PAT testing threshold
increase.
Table 1 summarizes the quantified costs and benefits expected to
accrue from implementation of the proposed rule over a 20-year period.
It presents costs associated with the various types of drug and alcohol
testing proposed in the NPRM and details the statutory costs (those
required by the RSIA mandate to expand part 219 to MOW employees),
discretionary costs (those that are due to the non-RSIA requirements
that FRA is proposing) and the total of the two types of costs. Table 1
also presents the quantified benefits expected to accrue over a 20-year
period and details the statutory benefits (those that would result from
implementation of the RSIA mandate to expand part 219 to MOW employees)
and the discretionary benefits (those that are due to the non-RSIA
requirements that FRA is proposing). The benefits include not only
injury, fatality, and property damage avoidance (accident reduction
benefits), but also the savings, or benefit, that would accrue from
fewer PAT tests being conducted due to FRA's proposal to increase the
property damage threshold for major train accidents.
For the 20-year period analyzed, the estimated quantified cost that
would be imposed on industry totals $24, 261,999 (undiscounted), with
discounted costs totaling $14.2 million (Present Value (PV), 7 percent)
and $18.9 million (PV, 3 percent). The estimated quantified benefits
for this 20-year period total approximately $115.8 million
(undiscounted), with discounted benefits totally $57.4 million (PV, 7
percent) and $83.6 million (PV, 3 percent).
Table 1--Summary Costs and Benefits: Discretionary and Statutory--Undiscounted Values
----------------------------------------------------------------------------------------------------------------
20 Year costs Statutory Discretionary
----------------------------------------------------------------------------------------------------------------
PAT Testing Costs--Adding MOW................................. $52,000 .......................
PAT Testing Costs--Impact Def + Xing.......................... $241,974
Reasonable Suspicion Testing Costs............................ 842,398 .......................
Pre-Emp. Testing Costs--Adding MOW............................ 673,897 .......................
Pre-Emp. Testing Costs--Sm. RR................................ 29,904
Random Testing Costs.......................................... 20,863,074 .......................
Annual Report Costs........................................... 160,911 .......................
Recordkeeping Requirements Costs.............................. 1,397,840 .......................
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