Start Preamble Start Printed Page 37894

AGENCY:

Federal Railroad Administration (FRA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

In response to Congress' mandate in the Rail Safety Improvement Act of 2008 (RSIA), FRA is expanding the scope of its drug and alcohol regulation to cover MOW employees. This rule also codifies guidance from FRA compliance manuals, responds to National Transportation Safety Board (NTSB) recommendations, and adopts substantive amendments based upon FRA's regulatory review of 30 years of implementation of this part.

The final rule contains two significant differences from FRA's July 28, 2014 Notice of Proposed Rulemaking (NPRM). First, it adopts part 214's definition of “roadway worker” to define “MOW employee” under this part. Second, because FRA has withdrawn its proposed peer support requirements, subpart K contains a revised version of the troubled employee identification requirements previously in subpart E.

DATES:

This rule is effective June 12, 2017. Petitions for reconsideration must be received on or before August 9, 2016. Petitions for reconsideration will be posted in the docket for this proceeding. Comments on any submitted petition for reconsideration must be received on or before September 13, 2016.

ADDRESSES:

Petitions for Reconsideration related to Docket No. FRA-2009-0039 may be submitted by any of the following methods: Web site: The Federal eRulemaking Portal, http://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. 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.

Docket: For access to the docket to read background documents or comments received, go to www.regulations.gov or to 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.

A complete version of part 219 as amended in this final rule 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 this rule affects part 219 as a whole.

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FOR FURTHER INFORMATION CONTACT:

Gerald Powers, Drug and Alcohol Program Manager, Office of Safety Enforcement, Federal Railroad Administration, 1200 New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590 (telephone 202-493-6313), 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; or 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.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary

II. Rulemaking Proceedings

III. Effective Date

IV. Maintenance-of-Way Employees and Contactors

A. Definitions

B. MOW Employees and the Small Railroad Exception

C. MOW Contractors and the Small Railroad Exception

D. Railroad and Contractor Responsibility for Compliance

E. Pre-employment Drug Testing of MOW Employees

F. Initial MOW Employee Random Testing Rates

G. MOW Employee Minimum Random Testing Pool Size

V. Restructuring of Part 219

A. Division of Reasonable Suspicion and Reasonable Cause Testing into Subparts D and E

B. Transfer of Revised and Retitled Troubled Employee Requirements to Subpart K

VI. Section-by-Section Analysis

VII. Regulatory Impact and Notices

A. Executive Orders 12866 and13563 and DOT Policies and Procedures

B. Regulatory Flexibility Act and Executive Order 13272; Final Regulatory Flexibility Assessment

C. Paperwork Reduction Act

D. Federalism Implications

E. Environmental Impact

F. Executive Order 12898 (Environmental Justice)

G. Executive Order 13175 (Tribal Consultation)

H. International Trade Impact Assessment

I. Unfunded Mandates Reform Act of 1995

J. Energy Impact

K. Privacy Act Information

I. Executive Summary

In the first major updating of its drug and alcohol regulation (49 CFR part 219) since its inception in 1985, FRA is expanding the scope of part 219 to cover Maintenance-of-Way (MOW) employees. Historically, FRA has conducted only post-mortem post-accident toxicological (PAT) testing of MOW employees, since an MOW employee, unlike a covered service employee, has been subject to part 219 testing only when he or she has died as the result of a reportable railroad accident or incident. Even in this comparatively small sample of post-mortem results, however, FRA found a disproportionately high level of positive test results among deceased MOW employees compared to the PAT testing and random testing results of covered employees who are already wholly subject to part 219.

Congress, in the Rail Safety Act of 2008 (RSIA), recognized the substance abuse problem among MOW employees by directing FRA to make them fully subject to the policies and protections of part 219. Partly in response to comments received, FRA is adopting the definition of roadway worker in part 214 of this chapter to define who is an MOW employee for purposes of part 219. FRA will introduce MOW employees to random drug and alcohol testing at the same initial minimum random testing rates it initially applied to covered employees. FRA is also adding a new definition, “regulated employee,” to encompass both covered and MOW employees.

In this rule, FRA is making MOW employees subject to all part 219 testing, namely, random testing, PAT testing, reasonable suspicion testing, reasonable cause testing, pre-employment testing, return-to-duty testing, and follow-up testing. Because many MOW employees work for multiple contractors or contract for short-term jobs, FRA is addressing not only the roles and responsibilities of railroads with respect to those employees who directly Start Printed Page 37895perform MOW activities for them, but also the roles and responsibilities of contractors and subcontractors who provide MOW services to railroads on a contract basis. As has been its practice, FRA is holding railroads, contractors, and subcontractors equally responsible for ensuring that their employees who perform MOW activities are in compliance with the requirements of this rule. FRA is also continuing its practice of counting only a railroad's total number of covered employees to determine whether that railroad qualifies for certain exceptions as a small entity.

In addition, FRA has used this lookback at part 219 to conduct a complete retrospective regulatory review of the rule. As a result, FRA has largely restructured and rewritten large sections of this rule and incorporated longstanding compliance guidance, to make part 219's requirements easier to read, find, and implement.

Finally, in response to widespread opposition from commenters, FRA is not adopting its proposal to require peer support programs. FRA is instead transferring part 219's requirements for troubled employee programs to a new subpart in a revised, expanded, and clarified format.

Costs and Benefits of Final Rule

The final rule will 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 $24.3 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 will 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 final 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).

II. Rulemaking Proceedings

On July 28, 2014, in response to a Congressional mandate (see sec. 412 of the RSIA (Pub. L. 110-432, October 16, 2008)) and NTSB recommendation R-08-07, FRA published an NPRM (79 FR 48380) which proposed to expand the scope of part 219 to cover MOW employees. See 79 FR 43830. FRA also proposed to modify its post-accident toxicology (PAT) testing criteria and to replace its subpart E programs addressing troubled employees with a peer support program in new subpart K. The NPRM also proposed to adopt longstanding program guidance, and to clarify and restructure part 219 to make its requirements easier to understand and implement.

On September 15, 2014, in a jointly filed petition, the American Public Transportation Association (APTA), American Short Line and Regional Railroad Association (ASLRRA), Association of American Railroads (AAR), and National Railroad Construction and Maintenance Association, Inc. (NRCMA), requested a 60 day extension of the NPRM's comment period, which had been scheduled to close on September 26, 2014. FRA agreed to this request, and published a notice allowing commenters until November 25, 2014, to submit comments. (September 25, 2014, 79 FR 57495).

FRA received 16 comments during this extended comment period, including an AAR/ASLRRA (hereinafter referred to as the “Associations”) joint submission, as well as comments from APTA, the NRCMA, the NTSB, SMART (the American Train Dispatchers Association, Brotherhood of Locomotive Engineers and Trainmen, Brotherhood of Maintenance of Way Employees Division, International Brotherhood of Electrical Workers; and Sheet Metal, Air, Rail and Transportation), Twin Cities & Western Railroad Company (TC&W), Drug Abuse Program Administrators Administration Worldwide (SAPAA), Pacific Southwest Railway Museum (PSRM), SAPlist.com, and Southeastern Pennsylvania Transportation Authority (SEPTA). Six individuals also submitted comments. (Although SMART had requested a public hearing in its November 28, 2014 comment, the deadline for filing such a request was 30 days after the Start Printed Page 37896publication of the NPRM, or August 27, 2014).

In this final rule, FRA will not address comments that raised issues outside the scope of, or not specific to, the proposals in the NPRM, or comments submitted after the extended comment period had closed. In addition, the NPRM proposed to make this part more user-friendly, by reorganizing sections, re-designating paragraphs, updating terms, and amending language for consistency. Because FRA received no comment on these minor edits, FRA is not repeating the NPRM's discussion of them.

III. Effective Date

FRA received only one comment concerning the rule's effective date. The Associations requested that the final rule become effective two years after its publication, to allow for the implementation of new testing policies and procedures, and for the creation of random testing pools for MOW employees. FRA notes, however, that many MOW employees are already subject to drug and alcohol testing under Federal authority, company authority, or both. For example, any MOW employee whose duties require the holding of a Commercial Driver's License (CDL) is subject to Federal Motor Carrier Safety Administration (FMCSA) testing requirements. MOW employees may also be subject to testing under company authority, often in a “look-alike” (a company testing program that mirrors FRA standards and procedures) program. This familiarity with drug and alcohol programs will facilitate the implementation of part 219 requirements for MOW employees.

Moreover, railroads have thirty years of experience implementing part 219 requirements for their covered service employees; while employers who are newly subject to part 219, such as contractors who provide MOW service to railroads, have service agents (e.g., random testing consortia and third party administrators) readily available to facilitate adoption and compliance with this part. Given the experience and resources railroads and contractors have to draw on, FRA believes a one year implementation window is reasonable for the requirements in this rule.

IV. Maintenance-of-Way Employees and Contractors

A. Definitions

As proposed, FRA is expanding the scope of part 219 to cover employees and contractors who perform MOW activities. This rule also adopts FRA's proposal to define the term “employee” to include employees, volunteers, and probationary employees of railroads and contractors (including subcontractors) to railroads, and to adopt the term “regulated service” to encompass both covered service and MOW activities. Performance of regulated service makes 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.

In the NPRM, FRA requested comment on who should be subject to the expanded scope of this part. As alternatives, FRA asked whether part 219's definition of MOW employee should: (1) Be identical to the roadway worker definition in part 214, Roadway Workplace Safety; (2) include all employees subject to disqualification under 49 CFR 209.303, as recommended by the NTSB; or (3) incorporate a modified version of part 214's definition of roadway worker which would include certain roadway worker functions but not others, as proposed in the NPRM. Of those who commented on FRA's proposed definition of MOW activities, SEPTA stated that the definition of MOW activities in part 219 should be consistent with the definition of roadway worker duties in part 214. While the Associations supported FRA's proposed exclusions from MOW activities, they agreed with SEPTA's view that part 219's definition of MOW activities and § 214.7's definition of roadway worker duties should be consistent. SMART, however, commented that FRA's proposed MOW activities definition was both too inclusive and too exclusive, while the NRCMA unqualifiedly supported the proposed definition.

In its comments, the NTSB continued to advocate for adoption of Recommendation R-08-07, which recommended that FRA expand the scope of part 219 to include all employees subject to § 209.303. No other commenter supported so wide an expansion. As noted in the NPRM, § 209.303 encompasses many employees besides those who perform covered service and MOW activities, no matter how such activities are defined. As examples, § 209.303 includes employees who conduct tests and training, and mechanics who maintain locomotives, and freight and passenger cars, among others.

In Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989), the Supreme Court held that an alcohol or drug test conducted under FRA authority is a Fourth Amendment search, and in its determination of who should be subject to part 219 testing, FRA must carefully balance public safety interests against individual privacy rights. FRA has done so, and can find no overriding safety interest that would justify making every employee covered by § 209.303 subject to part 219 testing. In its comment to the NPRM, the NTSB cited no accidents or data to support adoption of R-08-07. To date, FRA has no data suggesting that the functions of testers, trainers, and mechanics are of such a safety-sensitive nature that employees who perform these functions should be subject to drug and alcohol testing. FRA therefore finds no compelling reason to expand the scope of part 219 to equal that of § 209.303.

Upon consideration of the other comments, however, FRA has reevaluated its proposed definition of MOW employee. Almost all commenters pointed out that an employee who performs activities on or near a railroad's roadbed or track is by definition one who performs work that could pose risks to the safety of both the employee and the public. As demonstrated by the high positive rate among MOW employee fatalities (detailed in the NPRM), the misuse of drugs or alcohol by these employees can have disastrous consequences. Congress determined when it enacted the RSIA, that an employee who performs MOW activities performs work that is sufficiently safety-sensitive to trigger FRA's drug and alcohol requirements. Adoption of the NPRM's proposed definition of MOW employee would have required railroads to maintain fine distinctions among MOW activities, since the performance of certain activities would make an employee subject to both parts 214 and 219, while the performance of others would make an employee subject only to part 214 or to part 219.

FRA's proposed MOW definition could have potentially required a railroad or contractor to establish three different categories of coverage, with the attendant administrative burdens necessary to sort and maintain such categories. In contrast, because the term “roadway worker” has been long established by part 214, the railroad industry is already familiar with its meaning and application. FRA is therefore adopting, for its definition of MOW employee, § 214.7's definition of roadway worker, which includes “any employee of a railroad or a contractor to a railroad, whose duties include inspection, construction, maintenance or repair of roadway track; bridges, roadway, signal and communications systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track Start Printed Page 37897or with the potential of fouling a track, and flagmen and watchmen/lookouts as defined in this section.” By doing so, FRA is adopting the recommendation of the majority of commenters, who asserted that an individual subject to roadway worker protection under part 214 should also be a MOW employee subject to drug and alcohol testing under part 219.

B. MOW Employees and the Small Railroad Exception

Since the inception of its alcohol and drug program in 1985, FRA has counted 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. Historically, a small railroad, defined by FRA as one that has 15 or fewer covered employees and no joint operations with other railroads, has proven less likely to have a drug and alcohol-related accident than a larger railroad. Therefore, FRA has always required a larger railroad (defined as one that has 16 or more covered employees or is engaged in joint operations) to implement all of part 219, while § 219.3 previously excepted a small railroad from the requirements of subpart D (reasonable suspicion and reasonable cause testing), subpart E (previously identification of troubled employees), subpart F (pre-employment testing), and subpart G (random alcohol and drug testing); these exceptions lessened part 219's regulatory burden on small railroads.

As proposed, FRA is continuing its longstanding approach of counting only a railroad's covered employees for purposes of determining whether the railroad qualifies for the small railroad exception (the railroad also cannot participate in any joint operations) because FRA believes this is the best measure of the risks posed by the railroad's operations. FRA received no objections to this proposal.

C. MOW Contractors and the Small Railroad Exception

With respect to a contractor who performs MOW activities for a railroad, FRA is amending § 219.3 to apply part 219 to an 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 will be determined by the size of the railroad for which it is performing regulated service, regardless of the size of the contractor itself. New language in the small railroad exception states that a contractor who performs MOW activities exclusively for small railroads that are excepted from full compliance with part 219 will also be excepted from full compliance. For example, an MOW contractor with five employees who perform regulated service for a large railroad must implement a full part 219 program if the railroad for which it performs regulated service must do so, while an MOW contractor with 20 employees does 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 an MOW contractor may perform regulated service for multiple railroads, some of which may not be required to comply fully with part 219. To simplify application, FRA is adding new language to the small railroad exception requiring an 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. If an MOW contractor performs regulated service for at least one large railroad, it must incorporate all of its regulated employees into a full part 219 program, even if only some of these employees perform regulated service for large railroads, regardless of whether or not a particular employee is currently performing regulated service for a large or a small railroad. This approach allows an MOW contractor to flexibly allocate its employees between small and large railroads. To ensure that it does not encourage the hiring of MOW contractors in lieu of MOW employees, FRA is excluding both contractor employees who perform MOW activities and railroad employees who perform MOW activities, for purposes of the employee count to determine whether a railroad qualifies as a small railroad. Labor supported FRA's decision.

D. Railroad and Contractor Responsibility for Compliance

FRA is adopting its proposal to hold both a railroad and its contractor(s) responsible for ensuring that any contractor employees who perform regulated service for the railroad are in compliance with part 219. In their comments, the Associations objected that the RSIA mandated that part 219 cover contractors who perform regulated service, but did not make railroads responsible for ensuring that compliance, and that a contractor who performs regulated service for more than one railroad would be required to comply with the drug and alcohol training requirements of multiple railroads. The TC&W commented that FRA should audit the drug and alcohol compliance of contractors who perform regulated service.

FRA notes that making a railroad responsible for its contractor's compliance, and making a contractor who performs regulated service responsible for its own compliance, are not new requirements, because existing § 219.9 makes every person—including a railroad, an independent contractor and an employee of an independent contractor—who violates or causes a violation of a part 219 requirement subject to a civil penalty. To avoid confusion, FRA is discussing a contractor's options to ensure part 219 compliance for its regulated employees below, while the corresponding railroad options to ensure that its contractor employees who perform regulated service are in compliance will be discussed below in the section-by-section analysis of § 219.609.

A contractor who must establish a random testing program for its regulated service employees may do so through any of the following methods. As discussed in the NPRM, a contractor may choose to:

• Establish its own part 219 program and provide the railroad with documentation of its compliance with part 219. If a contractor chooses this option, FRA will not audit the contractor but will instead require the railroad to maintain the contractor's 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 may 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 will 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 may 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 must then submit documentation of its membership in the consortium and its compliance with part 219 to the contracting railroad. As with the option described above, if the contractor's documentation or program contains a deficiency or violation that the railroad could not have reasonably detected, FRA may use its enforcement discretion to take action only against the contractor. Upon request, FRA will Start Printed Page 37898assist a railroad in reviewing the part 219 documentation of its regulated service contractors.
• Ensure that any employees who perform regulated service for a railroad are incorporated into the railroad's part 219 program.

To facilitate part 219 implementation for railroads and contractors, FRA has developed two sets of model drug and alcohol plans (including testing plans); a set for an entity subject to all of part 219 and another for an entity that qualifies for the small railroad exception. Both sets are currently available at FRA's Web site: http://www.fra.dot.gov/​Page/​P0345.

FRA had proposed an alternative two-pronged approach, which would require a contractor to provide a railroad with: (1) Written certification that all of its regulated employees are in compliance with part 219, and (2) a summary of its part 219 data at least every six months. The NRCMA commented that it was unnecessary to require certification of compliance with part 219, noting that railroad contracts routinely require a contractor to certify compliance with all relevant Federal, state, and local laws and regulations. The NCRMA also objected to providing summary data, commenting that this was both unnecessary and an undue administrative burden. FRA agrees, and has decided not to adopt these proposed requirements.

A railroad has the additional option of accepting a contractor's plan for random testing, regardless of whether that plan is managed by the contractor or by a consortium/third party administrator (C/TPA). If a railroad adopts this approach, the contractor must:

• Certify in writing to the railroad that all of its regulated employees are subject to part 219 (including, as applicable, random testing under subpart G, pre-employment drug testing under subpart F, and a previous employer background check as required by § 40.25); and
• Report, in an FRA model format, summary part 219 testing data to the railroad at least every six months.

The railroad should review this summary data since it remains responsible for monitoring the contractor's compliance.

E. Pre-Employment Drug Testing of MOW Employees

As proposed, FRA is exempting all current MOW employees from subpart F pre-employment drug testing (with certain limitations, pre-employment alcohol testing is authorized but not required). Only MOW employees hired after the effective date of this rule must have a negative DOT pre-employment drug test result before performing regulated service for the first time. As with its initial minimum random testing rates, FRA used a similar approach to exempt current covered employees from pre-employment drug testing in 1986. Although these employees do not have to be pre-employment drug tested, current MOW employees are subject to FRA's initial minimum random drug testing rate of 50%.

FRA realizes that a large percentage of MOW employees may already have a negative pre-employment drug test result under the alcohol and drug testing regulations of another DOT agency; usually these MOW employees are required by their employers to hold a Commercial Driver's License (CDL), and are therefore subject to the regulations of both FRA and FMCSA. To hold a CDL, an individual must have a negative FMCSA pre-employment drug test. See § 382.301. To ease the compliance burden on both employees and employers, an employing railroad may use a negative pre-employment drug test conducted under the rules and regulations of another DOT agency to satisfy FRA's pre-employment drug test requirements for employees initially transferring into regulated service after the effective date of this rule. This amendment adopts previous FRA guidance on pre-employment drug testing.

F. Initial MOW Employee Random Testing Rates

This rule makes MOW employees subject to FRA random testing, with the exception of those who perform regulated service solely for a small railroad. For covered employees, FRA has annually set minimum random drug and alcohol testing rates determined by the overall railroad random testing violation rates for covered employees. FRA determines this overall rate from program data that railroads submit to its Management Information System (MIS). See 49 CFR 219.602 and 219.608. When FRA first established minimum random testing rates for covered employees, it set the initial minimums for drugs and alcohol at the top end of their respective ranges, at 50 percent for drugs and 25 percent for alcohol. At that time, FRA had no rail industry random testing data because the MIS had been newly established. FRA later lowered both minimum annual random testing rates to the bottom of their ranges after MIS data showed consistently low overall random testing violation rates for covered employees. These minimum rates, which have been unchanged since 2000, are 25 percent for drugs and 10 percent for alcohol in 2016.

Similarly, because MOW employees are being introduced to random testing, FRA has no overall railroad random testing violation rate data for these employees. To develop this data, FRA is setting the initial minimum random testing rates for MOW employees at 50 percent for drugs and 25 percent for alcohol, as it initially did for covered employees. A railroad must therefore create and maintain a separate random testing pool for its MOW employees, both to allow these employees to be tested at their own minimum random testing rates and, from those railroads required to file an MIS report, to establish a separate database. As it did with covered employees, FRA could lower these minimum random testing rates in the future if the data for MOW employees show consistently low overall random testing violation rates.

G. MOW Employee Minimum Random Testing Pool Size

As proposed, to maintain the deterrent effect of random testing for very small railroads and contractors, FRA is requiring each individual random testing pool established under subpart G to select and randomly test at least one entry per quarter, even if fewer tests are needed to meet FRA's minimum random testing rates. Conversely, the requirement to conduct at least four tests throughout the year does not excuse a railroad (or contractor to a railroad, or a C/TPA) from complying with FRA's minimum random testing rates. For example, a railroad that maintains a pool of 16 MOW employees must conduct at least eight, not four, random drug tests in a year to comply with a minimum random drug testing rate of 50%.

V. Restructuring of Part 219

A. Division of Reasonable Suspicion and Reasonable Cause Testing Into Subparts D and E

Previously, the requirements for both reasonable suspicion and reasonable cause testing were found in subpart D. Because of their similar names and their location in the same subpart, railroads and employees often confused the two types of testing, even though reasonable suspicion and reasonable cause testing have very different requirements. To clarify the substantive differences between the two, the requirements for reasonable suspicion testing will remain in subpart D, while the requirements for reasonable cause testing have been moved to subpart E, which formerly addressed voluntary referral and co-Start Printed Page 37899worker report policies (“Identification of Troubled Employees,” now found in subpart K). This differentiation is important since small railroads are required to conduct reasonable suspicion testing, but not reasonable cause testing. FRA received no objections to its proposal to divide reasonable suspicion and reasonable cause testing into two distinct subparts.

B. Transfer of Revised and Retitled Troubled Employee Requirements to Subpart K

To accommodate the placement of reasonable cause testing into subpart E, FRA has transferred a revised and retitled version of the “Identification of Troubled Employees” requirements previously in subpart E to new subpart K. (As noted above, this is in lieu of FRA's proposal to require peer support programs in subpart K, which, for the reasons discussed below, FRA is not adopting).

VI. Section-by-Section Analysis

As discussed earlier, throughout most of part 219 FRA is substituting “regulated employee” and “regulated service” where the terms “covered employee” and “covered service” formerly appeared. “Regulated employee” and “regulated service” are terms-of-art encompassing all individuals and duties subject to part 219, including both covered service and MOW activities. The terms “covered employee” and “covered service,” however, are retained where necessary, such as in § 219.12, which addresses issues of overlap between part 219 and the HOS laws that apply only to covered employees.

Authority Citation

The authority citation for part 219 adds a reference to Section 412 of the RSIA, 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

This section now includes a reference to the new definition of “employee” in § 219.5, which includes any individual (including a volunteer or a probationary employee) who performs regulated activities for a railroad or a contractor to a railroad.

Section 219.3—Application

The small railroad exception in § 219.3(b)(2) has provided, 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 (both previously found in subpart D), identification of troubled employees (previously subpart E), pre-employment drug testing (subpart F), or random testing (subpart G).

FRA is modifying the small railroad exception so that small railroads are no longer excepted from the reasonable suspicion testing requirements of subpart D. Subpart D requires a railroad to conduct Federal reasonable suspicion testing whenever one or more trained supervisors reasonably suspects that an employee has violated an FRA prohibition against the use of alcohol or drugs. See § 219.300(a). FRA's decision not to authorize small railroads to conduct FRA-authority reasonable cause testing (moved to subpart E of this rule) remains unchanged, however.

FRA is also amending the small railroad exception so that small railroads are no longer excepted from subpart F. As is already required for larger railroads, a small railroad must conduct a pre-employment drug test and obtain a negative result before allowing an individual to perform regulated service for the first time. See § 219.501(a). As with larger railroads, this requirement applies only to those regulated employees hired by a small railroad after the effective date of this final rule, because all regulated employees hired before the effective date of this rule are exempted from pre-employment drug testing.

FRA received no comments on the clarifications in this section, which are adopted without further comment.

Section 219.5—Definitions

As proposed, FRA is amending this section by adding, clarifying, and deleting definitions. Additional or clarified definitions include:

Administrator

FRA is defining “Administrator” to include the Administrator of the FRA or the Administrator's delegate.

Associate Administrator

FRA is clarifying that “Associate Administrator” means both the FRA's Associate Administrator for Railroad Safety and the Associate Administrator's delegate.

Contractor

As proposed, FRA's new definition of “contractor” includes both a contractor and a subcontractor performing functions for a railroad.

DOT-Regulated Employee

A “DOT-regulated employee” means a person who is subject to drug or alcohol testing, or both, under any DOT agency regulation, including an individual currently performing DOT safety-sensitive functions and an applicant for employment subject to DOT pre-employment drug testing.

DOT Safety-Sensitive Duty or DOT Safety-Sensitive Function

The performance of a “DOT safety-sensitive duty” or “DOT safety-sensitive function” makes a person subject to the drug testing and/or alcohol testing requirements of a DOT agency. The performance of regulated service is a DOT safety-sensitive duty or function under this part.

Drug and Alcohol Counselor or DAC

FRA is adopting this part's definition for “Drug and Alcohol Counselor” or “DAC” from § 242.7 of its conductor certification rule.

Employee

An “employee” is any person, including a volunteer, and a probationary employee, who performs activities for a railroad or a contractor to a railroad.

Evacuation

Under § 219.201(a)(1)(ii)(A), one of the criteria for a “major train accident” requiring PAT testing is an evacuation. To qualify as an evacuation, an event must involve the relocation of at least one person who is not a railroad employee to a safe area to avoid exposure to a hazardous material release. This relocation would normally be ordered by local authorities and could be either mandatory or voluntary. This definition does not include the closure of public roadways for hazardous material spill containment purposes, unless that closure was accompanied by an evacuation order.

Flagman or Flagger

FRA is adopting its proposal to define a “flagman” (also known as a “flagger”) and “watchman/lookout” in § 219.5 as those terms are currently defined in § 214.7.

Highway-Rail Grade Crossing

FRA is adopting the definition of “highway-rail grade crossing” found in § 225.5 of its accident and incident reporting regulation, which includes all crossing locations within industry and rail yards, ports, and dock areas.Start Printed Page 37900

Highway-Rail Grade Crossing Accident/Incident

This definition is essentially identical to the description of highway-rail grade crossing impacts found in the definition for “accident/incident” in FRA's accident and incident reporting regulation. See 49 CFR 225.5.

Joint Operations

The phrase “rail operations” in this definition encompasses dispatching and other types of operations. As examples, even if Railroad A has fewer than sixteen covered employees, Railroad A is engaged in joint operations with Railroad B if it either dispatches trains for Railroad B and/or enters Railroad B's yard to perform switching operations. Railroad A is also engaged in joint operations with Railroad B if they operate over the same track at different times of the day.

Railroad A is not, however, engaged in joint operations with Railroad B, if they operate over the same track but are physically separated (e.g., through a split rail derail or the removal of a section of rail), since this separation prevents Railroad A's operations from overlapping with those of Railroad B. FRA is also excluding from joint operations certain minimal operations on the same track for the purposes of interchange, so long as these operations: (1) Do not exceed 20 mph; (2) are conducted under restricted speed; (3) proceed no more than three miles; (4) and, if extending into another railroad's yard(s), operate into another railroad's yard(s) solely to set out or pick up cars on a designated interchange track. FRA is excluding these minimal operations from its new “joint operations” definition because of their comparatively lesser safety risk.

On-Track or Fouling Equipment

This new definition includes any railroad equipment positioned on or over the rails or fouling a track.

Other Impact Accident

An “other impact accident” includes any accident/incident involving contact 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 new definition also includes an impact in which a single car or cut of cars is damaged during operations involving switching, train makeup, setting out, etc.

Person

As amended, this definition adopts the existing language in § 219.9 and adds an independent contractor who provides goods or services to a railroad to the scope of whom or what is considered a “person” under this part (e.g., a service agent such as a collection site or laboratory) See 49 CFR part 40, subpart Q—Roles and Responsibilities of Service Agents. Service agents are already required to comply with both part 219 and part 40, so this amendment is a clarification that makes no substantive changes.

Plant Railroad

For clarification, FRA has added language defining when an entity's operations do not qualify for plant railroad status.

Raking Collision

As newly defined, 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. A collision that occurs at a turnout is not a raking collision.

Regulated Employee and Regulated Service

A regulated employee is any employee subject to this part: a covered employee, an MOW employee, and an employee of a railroad or a contractor to a railroad who performs covered service or MOW activities. Correspondingly, regulated service is any duty which makes an employee subject to this part.

Side Collision

A side collision occurs when one consist strikes the side of another consist at a turnout, including a collision at a switch or at a railroad crossing at grade.

Tourist, Scenic, Historic, or Excursion Operation That Is Not Part of the General Railroad System of Transportation

To be considered not part of the general railroad system of transportation, a tourist, scenic, historic, or excursion operation must be 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).

Watchman/Lookout

This definition is identical to that in § 214.7, subpart C of part 214, roadway worker protection.

Revised definitions include:

Covered Employee

As revised, a “person” includes an employee, volunteer, and probationary employee. FRA has also updated the reference to the hours of service laws (49 U.S.C. ch. 211). Neither change is substantive.

Covered Service

FRA is adding examples of covered service and a reference to appendix A to 49 CFR part 228, Requirements of the Hours of Service Act: Statement of Agency Policy and Interpretation. No substantive changes are intended.

FRA Representative

As proposed, the definition of “FRA representative” is amended to include the oversight contractor for FRA's Drug and Alcohol Program and the staff of FRA's Associate Administrator for Railroad Safety.

Impact Accident

In its initial implementation of this part, FRA excepted derailment and raking collisions from its definition of “impact accident” because it formerly believed these types of collisions were not caused by human factors. (See 50 FR 31539 and 31542, Aug. 2, 1985 and 54 FR 39647, Sep. 27, 1989). FRA is removing these exceptions after learning that human factors such as fatigue and impairment can and do contribute to both derailment and raking collisions.

As additional clarification, FRA is excluding the impact of rail equipment with “naturally-occurring obstructions such as fallen trees, rock or snow slides, livestock, etc.” from its definition of an impact accident. FRA is also incorporating guidance stating 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 usually permanently placed at the end of a line, while derails can easily be moved from place to place.

Medical Facility

As amended, a “medical facility” is an independent (i.e., not maintained by the railroad) site which is able to collect blood and urine specimens for PAT testing and, if necessary, treat an employee who has been injured in a PAT testing event.

Railroad Property Damage or Damage to Railroad Property

As proposed, the amended definition of “railroad property damage or damage to railroad property” means damage to railroad property, including damage to on-track equipment, signals, track, track structure, or roadbed; and labor costs, including hourly wages, transportation costs, and hotel expenses; but excluding damage to lading and the cost of Start Printed Page 37901clearing a wreck; except that the cost of contractor services, of renting and operating machinery, and of any additional damage caused while clearing the wreck is included when calculating railroad property damage to determine whether PAT testing is required under FRA's regulations. These clarifications are meant to enable easier compliance with this part, and no substantive changes are intended.

Train Accident

As amended, the definition of “train accident” refers to rail equipment accidents under § 225.19(c) which include, but are not limited to, collisions, derailments, and other events involving the operation of on-track or fouling equipment.

Train Incident

As amended, a “train incident” is defined as an event involving the operation of on-track or fouling equipment that results in a casualty, but does not result in damage to railroad property exceeding the applicable reporting threshold.

Deleted Definitions

As proposed, FRA is deleting the definitions of “General Railroad System of Transportation,” and “Train,” since these terms have been superseded by newly added definitions and amendments in this rule. FRA received no comments on these deletions.

Section 219.11—General Conditions for Chemical Tests

In its comments, the NCRMA asked FRA to impose conditions on urine specimen collections conducted under this part (e.g., that FRA require a railroad to transport an employee to a company owned or contracted facility, or that drinking water not be used during the urine specimen collection process). With the exception of its PAT testing program, which is discussed below, FRA is prohibited from doing so, because the Department's Procedures for Workplace Drug and Alcohol Testing Programs (49 CFR part 40 or part 40) control the procedures and facilities used in FRA (non-PAT) and other DOT agency testing. FRA is authorized to enforce railroad compliance with part 40 requirements, but may not impose new requirements of its own. Therefore, for example, FRA cannot specify that only non-drinking water sources be used during random testing, because part 40 already regulates collection site conditions.

Because it predates part 40, FRA PAT testing is exempt from part 40's requirements. FRA therefore has the authority to set its own PAT testing protocols, which are found in appendix C to this part. PAT testing blood and urine specimens must be collected at an independent medical facility, such as a hospital or physician's office. By definition an independent medical facility cannot be railroad owned or controlled, and it meets the NCRMA's requests for privacy, heat, and sanitation during specimen collection.

New paragraph (a)(2) clarifies that a regulated employee who is 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 does not apply to pre-employment drug testing of applicants for regulated service positions.

Paragraph (b)

Paragraph (b)(1) clarifies 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.

As proposed, in paragraph (b)(2), FRA is replacing the phrase “has sustained a personal injury” with “is suffering a substantiated medical emergency,” to allow treatment for medical emergencies that do not involve a personal injury (e.g., a stroke) to take priority over required FRA testing. A medical emergency must be an acute medical condition requiring immediate medical care, and a railroad may require an employee to submit proof that that he or she had experienced one by providing, within a reasonable time period after, verifiable documentation of the emergency from a credible outside professional.

Paragraph (g)

In addition to the PAT testing requirements of subpart C and the signs and symptoms of drug and alcohol influence, intoxication, and misuse, paragraph (g) now requires a supervisor to be trained on the signs and symptoms of certain prescription drugs that can have acute behavioral and apparent physiological effects. To facilitate this training, FRA is developing a module for both supervisors and employees that will cover the required material and be made available on its Web site. In lieu of the previous minimum of three hours of training, FRA is requiring a supervisor to be able to demonstrate an understanding of the course material, usually through a written or oral examination at the end of the course.

PAT and Reasonable Suspicion Testing

Paragraph (a) adopts FRA's long-established guidance that a railroad may exceed employee HOS limitations if all three of the following conditions are met: (1) The excess service was necessary and solely caused by the railroad's completion of PAT or reasonable suspicion testing; (2) the railroad used due diligence to minimize the excess service; and (3) the railroad collected the PAT or reasonable suspicion specimens within the time limits of § 219.203(d) (for PAT testing) or § 219.305 (for reasonable suspicion testing). The railroad must still submit an excess service report, however.

Reasonable Cause Testing

Reasonable cause testing, like PAT and reasonable suspicion testing, is triggered by the occurrence of a specified but unpredictable event (in this case, 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). For this reason, FRA will not pursue an HOS violation if any excess service was caused solely by a railroad's decision to conduct reasonable cause testing, provided the railroad used reasonable due diligence to complete the test and did so within the time limitations of § 219.407 (i.e., within eight hours of the observation, event or supervisory notification that was the basis for the test). However, because reasonable cause testing, unlike both PAT and reasonable suspicion testing, is authorized, but not required by part 219, paragraph (b) correspondingly authorizes, but does not require, a railroad to exceed HOS limitations to complete reasonable cause testing. As with mandatory PAT and reasonable suspicion testing, a railroad must file an excess service report if it decides to exceed HOS limitations to conduct optional reasonable cause testing.

Random Testing

As proposed, paragraph (c) adopts FRA's longstanding guidance that completion of a random test does not excuse compliance with a regulated employee's HOS limits, unless the circumstances of the employee's test require the employee to provide a directly observed urine specimen. A directly observed urine collection must be performed whenever an employee's previous test results or current behavior indicate the possibility of specimen tampering (see § 40.67). As with PAT, reasonable suspicion, and reasonable cause tests, the occurrence of such Start Printed Page 37902circumstances is unpredictable. FRA will therefore not pursue an HOS violation provided the railroad conducts the random test with due diligence and files an excess service report.

Paragraph (d)

As proposed, paragraph (d) clarifies that because follow-up tests, like random tests, are scheduled by the railroad, follow-up testing must be completed within a covered employee's HOS limits. A railroad may place an employee on duty solely for the purpose of a follow-up drug test any time the employee is subject to being called for duty; a railroad may place an employee on duty for a follow-up alcohol test only if the employee's return-to-duty agreement requires total abstention from alcohol use, since legitimate alcohol use is allowed so long as it is in compliance with the prohibitions of § 219.101. A railroad that chooses to place an employee on duty solely for the purpose of follow-up testing must document why it did so and provide the documentation to FRA upon request.

Paragraph (c)

As proposed, a railroad can make this part's required educational materials available to its regulated employees by posting them continuously in an easily visible location at a designated reporting place, provided the railroad also supplies a copy to each labor organization representing a class or craft of regulated employees (if applicable). Alternatively, a railroad can make these materials available by posting them on a Web site accessible to all regulated employees; any distribution method that can ensure the accessibility of these materials to all regulated employees is acceptable.

For MOW employees only, however, FRA is initially requiring distribution of individual hard copies of educational materials, since these employees are being introduced to the requirements of part 219. This individual distribution requirement applies for three years after the effective date of this final rule, although it does not apply to an applicant for a regulated service position who refuses a pre-employment test or has a pre-employment test result indicating a part 219 violation.

Section 219.25—Previous Employer Drug and Alcohol Checks

This new section reminds railroads and contractors that they must comply with § 40.25, which requires an employer to conduct a search (for non-negative test results, e.g., positives, substitutions, and adulterations) of a new hire's past two years of drug and alcohol test records before that individual can perform any DOT safety-sensitive functions. This requirement applies only to the railroad or contractor's direct employees (e.g., a railroad has no responsibility to conduct a background check on a contractor's direct employees, since that responsibility belongs to the contractor). A railroad must also comply with the prior drug and alcohol conduct requirements of § 240.119(c) for certified locomotive engineers and § 242.115(e) for certified conductors.

Subpart B—Prohibitions

Section 219.101—Alcohol and Drug Use Prohibited

Paragraph (a)(1)

In the NPRM, FRA had asked for comment on whether it should remove part 219.101's prohibitions against the on-duty possession of alcohol and controlled substances. FRA modeled these prohibitions after those in Rule G, a longstanding railroad operating rule which originally prohibited the on-duty use and possession of alcohol, and was later amended to include controlled substances as well. See 49 FR 24266, June 12, 1984.

Many commonly prescribed drugs, such as muscle relaxants and pain relievers, are controlled substances. As strictly read, § 219.101 prohibits the on-duty possession of not only illicit drugs but many prescription drugs with legitimate medical uses (with the exception of any controlled substance prescribed in accordance with § 219.103). Similarly, because § 219.101 prohibits the on-duty possession of alcohol, if strictly read, this section also bans the on-duty possession of any over-the-counter cough and cold remedy that contains alcohol. In the NPRM, FRA asked for comment on whether it should remove § 219.101's prohibitions against on-duty possession of controlled substances and alcohol because they could be construed to prohibit the possession of legal drugs and remedies on railroad property. FRA noted that no other DOT agency prohibits the on-duty possession of both controlled substances and alcohol, and that a railroad remains free to impose discipline for such possession under its own authority.

Labor commented that FRA should clarify its policy on prescription use, as did the NTSB. The NTSB opposed FRA's proposal to remove 219.101's prohibitions against the on-duty possession of controlled substances and alcohol, without explanation.

As proposed, FRA is therefore retaining but clarifying this prohibition, which, as amended, prohibits the use or possession of controlled substances and alcohol by a regulated employee while “on duty and subject to performing regulated service for a railroad.” This prohibition applies not only when a regulated employee is actually performing regulated service, but also when the employee is subject to performing regulated service.

Paragraph (a)(4)

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. However, 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.

As proposed, FRA is adding 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 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. Although Labor opposed allowing a railroad to impose discipline under its own authority in this circumstance, this is not a substantive change, since FRA guidance has long allowed this narrow exception.

Paragraph (a)(5)

Paragraph (a)(5) states that a Federal test result with an alcohol concentration below 0.02 is a negative result that a railroad may not use as evidence of alcohol misuse, either as evidence in a company proceeding or as a basis for subsequent testing under company authority. A railroad may conduct additional company testing only if it has an independent basis for doing so.

As proposed, FRA is amending this paragraph to adopt its previously stated policy that a railroad has an independent basis for a subsequent company authority alcohol test only when an employee continues to exhibit signs and symptoms of alcohol use after having had a negative FRA reasonable suspicion alcohol test result. If a railroad has an independent basis to conduct a subsequent alcohol test under company authority, the company test result stands independent of the prior FRA test result.Start Printed Page 37903

Section 219.103—Use of Prescription and Over-the-Counter Drugs

In the NPRM, FRA asked railroads to submit comments on their 30 years of administering this section, which has been unchanged since the inception of part 219 in 1985. The NTSB, the sole responder, commented that this section did not adequately address the safety concerns raised by the use of prescription and over-the-counter (OTC) drugs, particularly diphenhydramine and other sedating antihistamines that could impair performance. In its comment, the NTSB reiterated R-13-01, in which it recommended that FRA address employees' underlying medical conditions by developing medical certification regulations, a recommendation that is beyond the scope of this rule.

In response to the NTSB's other concerns, however, FRA is developing a training module which will cover the more commonly used prescription and OTC drugs that could have adverse effects, including diphenhydramine. This module, which will be downloadable for free on FRA's Web site, will also contain general information on the best practices to follow when using prescription and OTC drugs. FRA will inform its regulated entities when this module is available for distribution.

Section 219.104—Responsive Action

FRA is amending this section to clarify that: (1) With the exception of the right to a hearing, an applicant for regulated service who has refused to take a pre-employment test is entitled to all of the protections of this part; (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) a regulated employee is entitled to request a hearing under this section following an alleged violation of § 219.101 or § 219.102.

Paragraph (a)

Paragraph (a)(2) emphasizes that none of the requirements in this section apply to tests conducted under company authority. FRA is also removing the word “mandatory” because it is inaccurate, since neither reasonable cause nor pre-employment alcohol testing are mandated by part 219. If, however, a railroad does decide to conduct a reasonable cause or pre-employment alcohol test under FRA authority, a regulated employee or applicant for regulated service who refuses the test is subject to the consequences for refusals found in this section.

Paragraph (b)

Previously, paragraph (b) required a railroad, before “withdrawing” an employee from covered service, to provide notice to the employee of the reason for his or her withdrawal. This notice must be in writing, although a railroad may first notify an employee verbally, if the railroad provides written notice to the employee as soon as practicable. In its written removal notice, the railroad must include a statement prohibiting the employee from performing any DOT safety-sensitive functions until he or she has successfully completed the evaluation, referral, and treatment processes required for return-to-duty under part 40. FRA believes receipt of this information will discourage an employee from job hopping in an effort to avoid compliance with part 40's return-to-duty requirements. A railroad may use this notice to comply with § 40.287's requirement to provide each employee who violates a DOT drug and alcohol regulation with a listing of SAPs who are both readily available to the employee and acceptable to the railroad, by providing the contact information (name, address, telephone number, and, if applicable, email address) for each SAP on its list. (Of course, a railroad may also provide this information separately.)

Paragraph (c)

Previously, paragraph (c)(1) allowed an employee to request a hearing if the employee denied “that the test result is valid evidence of alcohol or drug use prohibited by this subpart.” FRA has removed this phrase because 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). 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 is amending paragraph (c)(4) to clarify that its statement that part 219 does not limit any 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)

As stated above, FRA PAT testing pre-dates part 40 and has always been excepted from DOT's testing procedures. Because the primary purpose of FRA PAT testing is accident investigation, FRA has always tested a wider variety of specimens (i.e., blood, post-mortem tissue specimens) for a wider variety of substances (e.g., barbiturates and benzodiazepines) than part 40 testing does. A regulated employee can therefore have a PAT test with a positive result that would not be detectable or duplicable under DOT procedures (e.g., a positive PAT blood test result for benzodiazepines). With respect to responsive action, however, PAT testing follows part 40 requirements, by requiring a negative return-to-duty test and a minimum of six negative follow-up tests for the substance of the original positive in the first 12 months after returning to regulated service (certified locomotive engineers and conductors have different follow-up testing minimums, see §§ 240.119(d)(2) and 242.115(f)(2)).

To ensure that any regulated employee who has had a positive PAT test result is in compliance with FRA's return-to-duty and follow-up requirements, in addition to Part 40 tests, FRA is allowing company tests to fulfill these requirements where necessary. If and only if, the substance of the employee's original PAT positive is not a drug listed in § 40.5's definition of “Drug,” a railroad may conduct return-to-duty and follow-up tests for that substance under its own authority, provided the railroad's procedures mirror those of part 40 and the substance is on the company test's panel. FRA is allowing company testing in this limited circumstance because of the important role return-to-duty and follow-up tests play in maintaining an employee's abstinence from substance abuse in the first year following the employee's return to performing regulated service.

Paragraph (e)

FRA is adding new paragraph (e) to clarify when § 219.104's requirements do not apply.

The language formerly in paragraph (a)(3)(i), which stated that the requirements of this section do not apply to actions based on alcohol or drug testing that is not conducted under part 219, can now be found in paragraph (e)(1).

Paragraph (e)(2) clarifies that this section's requirements do not apply to Federal alcohol tests with a result less than 0.04. As mentioned above in FRA's discussion of § 219.101(a)(4), a Federal test result that is .02 or greater but less than .04 proves that an employee has recently used alcohol, but not that the employee is impaired. Because an employee who has a test result in this range is not in violation of § 219.101, Start Printed Page 37904the only consequence allowed under this part is the removal of the employee from regulated service for a minimum of eight hours. All other actions following an alcohol test result below .04, including the administration of return-to-duty or follow-up tests, must therefore be conducted under a railroad's own authority.

Paragraph (e)(3) clarifies that although parts 240 and 242 require a substance abuse evaluation for 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, an off-duty conviction or completed state action is not a violation of § 219.101 or § 219.102.

Paragraph (e)(4) clarifies that this section does not apply to an applicant who declines to participate in pre-employment testing before the test begins.

Similarly, paragraph (e)(5) clarifies 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.

In contrast, paragraph (e)(6) clarifies that an applicant who has tested positive or refused a DOT pre-employment test must complete the return-to-duty requirements in paragraph (d) before performing DOT safety-sensitive functions subject to the drug and alcohol regulation of any DOT agency. Section 40.25(j) prohibits an employee who has tested positive or refused a test from performing any DOT safety-sensitive functions until and unless the employee documents successful completion of part 40's return-to-duty process.

Section 219.105—Railroad's Duty To Prevent Violations

Paragraph (a)

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 clarifying that a railroad's “actual knowledge” of such a violation is limited to the knowledge of a railroad manager or supervisor in the employee's chain of command. A manager or supervisor is 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 does not by itself constitute actual knowledge); (2) learns from a § 40.25 background check of a previous employer's drug and alcohol records that an employee had a § 219.101 or § 219.102 violation and did not complete

§ 219.104's return-to-duty requirements; or (3) receives an employee's admission of prohibited alcohol possession or misuse or drug abuse.

Paragraph (b)

FRA is not amending paragraph (b) of this section. Instead, as guidance FRA is reprinting the 1989 preamble discussion which, in proposing this section, explained its purpose as:

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. While this paragraph places an affirmative duty on a railroad to use due diligence to prevent violations of § 219.101 or § 219.102, a railroad that can show it has done so has only limited liability under this part for violations of its prohibitions by individual employees. Since what constitutes due diligence under this provision varies on a case-by-case basis, a railroad that is uncertain about its applicability in a given situation should contact FRA for guidance.

Paragraph (c)

New paragraph (c) prohibits the design and implementation of any railroad drug and/or alcohol education, prevention, identification, intervention, or rehabilitation program or policy that circumvents or otherwise undermines the requirements of part 219. A railroad must make all documents, data, or other records related to such programs or policies available to FRA upon request.

Paragraph (d)

Rule G Observations

In its guidance, FRA required a railroad's supervisors to make and record each quarter a total number of “Rule G” observations equivalent, at a minimum, to the railroad's total number of covered employees. Each Rule G observation should be made sufficiently close to an employee to enable the supervisor to determine whether the employee was displaying signs and symptoms of impairment requiring a reasonable suspicion test.

In the NPRM, FRA requested comment on whether § 219.105 should adopt this guidance by requiring a specific number of Rule G observations; FRA was particularly interested in the safety benefits versus the costs and paperwork burdens of such a requirement. In response, the Associations commented that FRA's requirement for each supervisor to be trained in signs and symptoms of drug and alcohol abuse already ensured that railroad supervisors were automatically aware of what to look for when observing an employee's demeanor and behavior. Therefore, according to the Associations, requiring a specific number of what were essentially constant supervisory observations to be systematically recorded would be a paperwork exercise that added nothing to safety.

Because reasonable suspicion and reasonable cause testing share the same check box on DOT's drug and alcohol chain of custody forms, FRA's MIS data does not distinguish between tests conducted under mandatory reasonable suspicion authority and tests conducted under discretionary reasonable cause. While there is no direct correlation showing that Rule G observations increase or result in reasonable suspicion tests, FRA believes that each year's consistently low total of reasonable suspicion tests indicates the continuing need to focus supervisory attention on the use and importance of reasonable suspicion testing as deterrence. To make Rule G observations both more meaningful and less burdensome, new paragraph (d) adopts FRA's previous guidance requirements but: (1) Decreases the minimum annual number of observations supervisors must make and record from four to two times a railroad's total number of covered employees, and (2) requires each observation to be sufficiently up close and personal to determine if a covered employee is displaying signs and symptoms indicative of a violation of the prohibitions in this part. The latter requirement is intended to ensure that supervisory observations are of individuals rather than collective sweeps of multiple employees.

Section 219.107—Consequences of Refusal

This section requires an employee who has refused to provide breath or body fluid specimens when required by part 219 to be disqualified from performing covered service for nine months. As suggested by SAPlist.com, FRA is deleting the word “unlawful” from the title of this section, since it Start Printed Page 37905implies that there are “lawful” refusals. This is not a substantive change.

Paragraph (b)

Paragraph (b) requires a railroad, before withdrawing an employee from regulated service, to provide notice to the employee of the reason for the withdrawal and the procedures in § 219.104(c) under which the employee may request a hearing. As proposed, FRA is clarifying that this notice must be in writing, although a railroad may initially provide an employee with verbal notice if the railroad provides written notice to the employee as soon as practicable.

Paragraph (c)

This section prohibits a railroad with notice that an employee has been withdrawn from regulated service from authorizing or permitting the employee to perform any regulated service on its behalf. The railroad may, however, authorize or permit the employee to perform non-regulated service.

Subpart C—Post-Accident Toxicological Testing

Section 219.201—Events for Which Testing Is Required

Paragraph (a)

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. As proposed, FRA is amending the definitions of these qualifying events and adding a new qualifying event that requires PAT testing, “Human-Factor Highway-rail Grade Crossing Accident/Incident.”

• Major Train Accidents

As proposed, FRA is clarifying that the fatality criteria for a major train accident is met by the death of “any person,” including an individual who is not an employee of the railroad.

Also as proposed, FRA is increasing the property damage threshold for major train accidents from $1,000,000 to $1,500,000 to account for inflation since January 1, 1995, when FRA last raised the damages threshold for major train accidents from $500,000 to $1,000,000. As noted by the AAR in its comment supporting this amendment, reducing the number of events qualifying as major train accidents correspondingly reduces the number of employees subject to PAT testing, which reduces such railroad costs as lost opportunities and wages.

• Impact Accidents

See discussion in § 219.5 above.

Human-Factor Highway-Rail Grade Crossing Accident/Incident

In § 219.201(b), FRA prohibits PAT testing after a highway-rail grade crossing accident. FRA carved out this PAT testing exception after concluding that there was no justification for testing members of the train crew since they could not have played any role in the cause or severity of the highway-rail grade crossing accident. By the time a train crew spots a vehicle or other obstruction on the track, the weight and momentum of the train prevent the crew from stopping in time to avoid a collision.

FRA continues to believe that the members of a train crew should be excepted from PAT testing after the occurrence of a highway-rail grade crossing accident. As proposed, however, FRA is narrowing this blanket exception by adding a new qualifying event, “Human-factor highway-rail grade crossing accident/incident” in paragraph (a)(5), to allow the PAT testing of a signal maintainer, flagman, or other employee only if a railroad's preliminary investigation indicates that the employee may have played a role in the cause or severity of the accident. This amendment responds to NTSB Recommendation R-01-17, in which the NTSB had 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.

New paragraph (a)(5)(i) contains the criteria for a “human-factor highway-rail grade crossing accident/incident.” This paragraph requires PAT testing after a highway-rail grade crossing accident/incident whenever there is reason to believe that a regulated employee has 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 in FRA's grade crossing regulation (see 49 CFR 234.209), a grade crossing accident/incident involving a § 234.209 violation qualifies as a human-factor highway-rail grade crossing accident/incident for purposes of PAT testing.

Under paragraphs (a)(5)(ii) and (iii), PAT testing after a highway-rail grade crossing accident/incident is also required if the event involved violations of the flagging duties found in FRA's grade crossing regulation'. See 49 CFR 234.105(c), 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 paragraphs (a)(5)(ii) and (iii), an employee who fails to comply with this flagging requirement is subject to PAT testing if a highway-rail grade crossing accident/incident then occurs. Under paragraph (a)(5)(iv), FRA is further narrowing its PAT testing exception for highway-rail grade crossing accident/incidents by requiring PAT testing if a fatality of a regulated employee is involved. As with fatal train incidents, a deceased regulated employee is subject to post-mortem PAT testing regardless of whether the employee was at fault. For example, a regulated employee who died while operating an on-rail truck that collided with a motor vehicle at a highway-rail grade crossing is subject to post-mortem PAT testing regardless of who was at fault for the collision.

Similarly, paragraph (a)(5)(v) requires PAT testing after a highway-rail grade crossing accident/incident if a violation of an FRA regulation or railroad operating rule by a regulated employee may have played a role in the cause or severity of the accident/incident. While paragraphs (a)(5)(i)-(iv) of this section specify the circumstances under which PAT testing is required for highway-rail grade crossing accidents/incidents involving human-factor errors, paragraph (a)(5)(v) serves as a catch-all provision that requires 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)

As discussed above, FRA is narrowing this grade crossing exception to allow PAT testing for human-factor highway-rail grade crossing accident/incidents, and is amending the language in this paragraph accordingly.

SEPTA had asked FRA to clarify whether the contributing action of a Start Printed Page 37906motor vehicle operator within a grade crossing could trigger the PAT testing of a MOW employee. Any employee involved in a highway-rail grade crossing accident is excepted from PAT testing unless a railroad's preliminary investigation indicates that the employee's actions may have contributed to the occurrence or severity of the accident; this general exception applies to all regulated employees and is not affected by the addition of MOW employees to this part.

Section 219.203—Responsibilities of Railroads and Employees

Paragraph (a)(1)

Paragraph (a)(1) requires 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) to 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, as required by FRA's amended PAT testing recall provisions in paragraph (e) of this section.

Paragraph (a)(2)

Paragraph (a)(2) specifies that the remains of an on-duty employee who has been fatally injured in a qualifying PAT testing event must undergo post-mortem PAT testing if the employee dies within 12 hours of the event. This requirement applies regardless of whether the employee was performing regulated service, was at fault, or was a direct employee, 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)

Paragraph (a)(3) specifies which regulated employees must be tested for major train accidents. In paragraph (a)(3)(i), FRA requires all crew members of on-track equipment involved in a major train accident to be PAT tested, regardless of fault—a requirement that already applies to all train crew members involved in a major train accident. See § 219.203(a)(3). In addition, paragraph (a)(3)(ii) requires 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)

In paragraph (a)(4), which applies specifically to fatal train incidents, FRA proposed that an individual must die within 12 hours of the incident to qualify for post-mortem PAT testing. The NTSB suggested that FRA instead define a PAT testing fatality as one that occurred within 30 days of the incident, to match its own definition and that of FMCSA's. FRA's proposed 12-hour time limit applies to the post-mortem testing of a fatality, however, not to the reporting of its occurrence, as the NTSB and FMCSA time limits do. The result of a post-mortem PAT test conducted up to 30 days later would fail to indicate an individual's condition at the time of an incident, and would have no probative value because any alcohol and most controlled substances present in the individual when the accident occurred would have metabolized long before the test was conducted. FRA is therefore adopting its proposal that post-mortem PAT testing is required only if an individual dies within 12 hours of an incident.

Paragraph (a)(5)

Paragraph (a)(5) specifies which regulated employees must be PAT tested following human-factor highway-rail grade crossing accidents/incidents. 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 must be PAT tested. Paragraphs (a)(5)(ii) and (iii) clarify the testing requirements for human-factor highway-rail grade crossing accidents/incidents under § 219.201(a)(5)(ii) and (iii). If a grade crossing activation failure occurs, these paragraphs require PAT testing of a regulated employee responsible for flagging (either flagging highway traffic or acting as an appropriately equipped flagger as defined in § 234.5), if the employee either fails to flag or to ensure that the required flagging occurs, or if the employee contributes to the cause or severity of the accident/incident.

Paragraph (a)(5)(iv) states that only the remains of a fatally-injured regulated employee(s) involved in a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(iv) must be post-mortem PAT tested.

Paragraph (a)(5)(v) states that only a regulated employee who has violated an FRA regulation or railroad operating rule and whose actions may have contributed to the cause or severity of the event must be PAT tested in the event of a human-factor highway-rail grade crossing accident/incident.

Paragraph (a)(6)

Paragraph 219.203(a)(3) requires a railroad to 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 can immediately determine that the employee had no role in the cause or severity of the event. If a railroad determines that an event qualifies for PAT testing, the railroad must consider the same immediately available information to determine whether an employee should be subject to or excluded from PAT testing.

Correspondingly, paragraph (a)(6) requires a railroad to make a PAT testing determination when an employee survives a human-factor highway-rail grade crossing accident/incident. There is no determination to be made, however, when a regulated employee has been involved in a major train accident or an employee has been fatally injured in a qualifying event while on-duty; in these circumstances the employee must be post-mortem PAT tested, as specified in paragraphs (a)(6)(i) and (ii).

Paragraph (b)—Railroad Responsibility

Paragraph (b)(1) requires a railroad to take all practicable steps to ensure that each regulated employee subject to PAT testing provides the required specimens. This includes 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, since paragraph (e) of this section amends FRA's recall provisions to allow employee recall in such circumstances.

Paragraph (b)(3) adopts longstanding FRA guidance that FRA PAT testing takes precedence over any toxicological testing conducted by state or local law enforcement officials. See Interpretive Guidance Manual at 20.

Paragraph (c)—Alcohol Testing

Paragraph (c) allows a railroad to require a regulated employee who is subject to PAT testing to undergo additional PAT breath alcohol testing if the employee is still on, and has never left, railroad property.

Paragraph (d)—Timely Specimen Collection

New paragraph (d)(1) requires a railroad: (1) To make “every reasonable effort to assure that specimens are provided as soon as possible after the accident or incident,” and, (2) if the railroad was unable to collect specimens within four hours of the qualifying event, to prepare and maintain a record Start Printed Page 37907stating why the test was not promptly administered (the railroad is still required to collect the specimens as soon thereafter as possible, however, under § 219.203(b)(1)).

Previously, § 219.209(c) required a railroad to notify FRA's Drug and Alcohol Program Manager immediately by phone whenever a specimen collection took longer than four hours, and to prepare a written explanation for any delay in specimen collection beyond four hours; submission of that report, however, was required only upon request by FRA. As amended in § 219.203(d)(1), FRA is reiterating most of the requirements formerly in § 219.209(c), but is now requiring a railroad to submit its written report within 30 days after expiration of the month during which the qualifying event occurred.

Paragraph (e)—Employee Recall

As proposed, FRA eliminated its previous requirement that a qualifying PAT event had to have occurred during the employee's duty tour.

FRA has simplified its employee recall provisions by requiring a regulated employee to be immediately recalled and placed on duty for PAT testing if only two conditions are met: (1) The railroad could not retain the employee in duty status because the employee went off duty under normal carrier procedures before the railroad instructed the employee to remain on duty pending its testing determination; and (2) the railroad's preliminary investigation indicates a clear probability that the employee played a role in the cause or severity of the accident/incident. An employee who has been transported to receive medical care is considered to be on-duty for purposes of PAT testing. A railroad may also PAT test an employee who has failed to remain available for PAT testing as required.

Paragraph (e)(3) requires an employee to be recalled regardless of whether the qualifying event occurred while the employee was on duty, although a railroad is prohibited from recalling an employee if more than 24 hours has passed since the event. An employee who has been recalled for PAT testing must be placed on duty before he or she is PAT tested.

Paragraph (e)(4) specifies that both urine and blood specimens must be collected from an employee who has been recalled for PAT testing. An employee who left railroad property before being recalled can be PAT tested for drugs only, since the employee could have legitimately used alcohol after leaving. For this reason, a recalled employee can be PAT tested for alcohol only if the employee never left the railroad's property and the railroad completely prohibits the use of alcohol on its property.

Paragraph (e)(5) requires a railroad to document its attempts to contact an employee who has to be recalled for PAT testing. If a railroad cannot contact and obtain a specimen from an employee subject to mandatory recall within 24 hours of a qualifying event, the railroad must notify and submit a narrative report to FRA as required by paragraph (d)(1). In its report, 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.

Paragraph (f)—Place of Specimen Collection

Paragraph (f) states that an independent medical facility is required only for the mandatory collection of PAT urine and blood specimens since a breath alcohol PAT test (which is authorized, but not required) is not an invasive procedure. Section 219.203(c) authorizes a railroad to conduct FRA breath alcohol testing following a qualifying event, provided this testing does not interfere with the timely collection of urine and blood specimens (as specified in the PAT testing specimen collection procedures in appendix C to this part.

Although FRA still considers it a best practice for a railroad to pre-designate medical facilities for PAT testing, FRA has removed this requirement, which is impracticable for several reasons. First, because the prompt treatment of injured employees must take precedence over any railroad pre-designation, an emergency responder may take an injured employee to a closer but non-designated medical facility. Second, even if a railroad has pre-designated a medical facility, the facility's responding employees may not be aware of or honor this designation.

Paragraph (f)(1) states 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. (A qualified medical professional does not need to meet the requirements of part 40, since part 40 does not apply to FRA PAT testing.) A qualified railroad or hospital contracted collector may also collect or assist in the collection of specimens, provided the medical facility has no objections.

Paragraph (f)(2) clarifies that employees who are subject to performing regulated service are deemed to have consented to PAT testing under § 219.11(a), just as employees who perform covered service already are. For PAT testing only, FRA allows urine to be collected from an injured regulated employee who has already been catheterized for medical purposes, regardless of whether the employee is conscious. PAT testing is not subject to part 40's prohibition against collecting urine from an unconscious person.

Paragraph (g)—Obtaining Cooperation of Facility

In the NPRM, FRA had proposed replacing 1-800-424-8801 with 1-800-424-8802 as the contact number for the National Response Center (NRC). A railroad must contact the NRC when a treating medical facility refuses to collect blood specimens because an employee is unable to provide consent. A commenter suggested that FRA instead replace both 1-800-424-8801 and 1-800-424-8802 with 1-800-424-0201, a toll-free phone number specific to FRA. As the commenter noted, listing 1-800-424-0201 as the contact number for the NRC would make this part consistent with §§ 229.17, 230.22 and 234.7 of this chapter (respectively, Locomotive Safety Standards, Steam Locomotive Inspection and Maintenance Standards, and Grade Crossing Safety). FRA agrees, and is listing 1-800-424-0201 as its sole NRC contact number, in this paragraph, and in §§ 219.207(b) and 219.209(a)(1) of this part.

Section 219.205—Specimen Collection and Handling

Paragraph (c)

A railroad may no longer order a PAT testing kit directly from the designated FRA PAT testing laboratory (the laboratory specified in appendix B to part 219); the railroad must instead contact FRA's Drug and Alcohol Program Manager to request an order form to obtain a PAT testing kit from the laboratory. FRA will continue to follow its standard practice of making fatality PAT testing kits available only to Class I, Class II, and commuter railroads. If 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.

As proposed, FRA is removing paragraph (c)(3), which states that a limited number of shipping kits are Start Printed Page 37908available at FRA's field offices, since FRA field offices no longer have these kits.

Paragraph (d)

For greater flexibility, FRA has amended this paragraph to allow a railroad to use other shipment methods besides air freight, provided the 24-hour delivery requirement is met. FRA is also allowing a railroad to hold specimens in a secure refrigerator for a maximum of 72 hours if a specimen's delivery cannot be ensured within 24 hours due to a suspension in delivery services.

Paragraph (e)

To ensure greater specimen security, FRA is prohibiting a railroad or medical facility from opening a specimen kit or a transport box after it has been sealed, even if it is later discovered 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 transport box.

Section 219.207—Fatality

As discussed above, FRA is replacing 1-800-424-8801 and 1-800-424-8802, the phone numbers for the NRC previously listed in paragraph (b), with 1-800-424-0201. A railroad supervisor who is having difficulty obtaining post-mortem specimens from the local authority or custodian should call 1-800-424-0201 to notify the NRC duty officer.

In paragraph (d), FRA is clarifying that the information in “Appendix C to this part [which] specifies body fluid and tissue specimens for toxicological analysis in the case of a fatality,” is also available in the “instructions included inside the shipping kits.”

Section 219.209—Reports of Tests and Refusals

Paragraph (a)(1)

As discussed above, FRA is replacing 1-800-424-8802, the phone number previously listed in this paragraph for the NRC, with 1-800-424-0201. A railroad should call the latter number to notify the NRC of the occurrence of a qualifying post-accident event. The railroad must also notify the FRA Drug and Alcohol Manager; the contact number for doing so, 202-493-6313, is unchanged.

Previously, paragraph (a)(2)(v) of this section required a railroad reporting PAT tests and refusals to include the number, names, and occupations of the involved employees. To protect employee privacy interests and reduce railroads, reporting burdens, FRA is requiring railroads to report only the number of employees tested.

Paragraph (b) required a railroad to provide a “concise narrative report” to FRA if, as a result of the non-cooperation of an employee or any other reason, the railroad was unable to obtain PAT testing specimens from an employee subject to PAT testing. As amended, a railroad must also notify FRA's Drug and Alcohol Program Manager immediately by phone of the failure. If a railroad representative is unable to speak directly to the FRA Drug and Alcohol Program Manager, the representative must leave a detailed voicemail explaining the circumstances and reasons for the railroad's failure to obtain PAT specimens. The purpose of this telephonic report is to assist both railroads and FRA in determining whether a refusal has occurred.

Paragraph (c) previously required a railroad to maintain records explaining why PAT testing was not performed within four hours of a qualifying event. FRA is deleting this requirement from § 219.209 because it is already addressed in § 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 amending paragraph (b) of this section to adopt part 40's prohibition on standing down (temporarily removing from service) an employee based solely upon a laboratory's confirmation of a non-negative test result, before the railroad's Medical Review Officer (MRO) has completed the result's verification. See § 40.21(a). As in part 40, a railroad may remove an employee from regulated service only after an MRO has verified that the employee has had a confirmed positive test, an adulterated test, or a substituted test.

As amended, paragraph (c) now provides the address of the FRA Associate Administrator for Railroad Safety.

For consistency throughout this part, in paragraph (e), FRA is substituting “Drug and Alcohol Program Manager” for “Alcohol/Drug Program Manager.” Also, to enable employees to respond to their test results more easily, FRA is allowing responses to be sent by email.

Paragraph (g)(3) previously provided 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.” As clarification, FRA is adding that a railroad must have additional information regarding an employee's actions or inaction, independent of the employee's involvement in a qualifying event, to justify holding the employee out of service under company authority. As with paragraph (b)'s prohibition against standing down an employee based solely on a confirmed laboratory test result, reports, an employee's involvement in a PAT testing event is not in itself a basis for a railroad's holding the employee out of regulated service.

Section 219.213—Refusals; Consequences

Paragraph (b) now requires a railroad to provide written notice to an employee who is being withdrawn from service under this part for refusing to provide a specimen for PAT testing. As with § 219.107, FRA is adopting SAPlist.com's suggestion to delete the term “unlawful” from this section's heading, since it implies that there are “lawful” refusals. This is not a substantive change.

Subpart D—Reasonable Suspicion Testing

As proposed, reasonable suspicion testing remains in subpart D while reasonable cause testing is now in subpart E; this division underscores the importance of the differences between these types of tests, despite their similarity in names. (To accommodate this restructuring, the Identification of Troubled Employees requirements previously in subpart E have been moved to new subpart K.)

Section 219.301—Mandatory Reasonable Suspicion Testing

Paragraph (a) clarifies that a reasonable suspicion alcohol test is not required to confirm an on-duty employee's possession of alcohol.

Paragraph (c) requires all reasonable suspicion tests to comply with § 219.303 (which is generally consistent with the requirements previously found in § 219.300(b) and is discussed in more detail below).

Paragraph (d) requires a regulated employee to undergo reasonable suspicion testing if the employee's condition has stabilized within eight hours.

Section 219.303—Reasonable Suspicion Observations

This section contains the requirements for reasonable suspicion observations that were formerly in § 219.300(b).Start Printed Page 37909

Paragraph (b)

In paragraph (b), FRA clarifies that although two supervisors are required to make the required observations for reasonable suspicion drug testing, only one of these supervisors must be on-site and trained in accordance with § 219.11(g). This amendment incorporates long-standing FRA guidance, since two on-site trained supervisors are rarely available.

Before a reasonable suspicion drug test can take place, a trained on-site supervisor must describe the signs and symptoms that the on-site supervisor has observed of an employee's appearance and behavior to an off-site supervisor, who must confirm that these observations provide a reasonable basis to suspect the employee of drug abuse. Because of privacy concerns, this communication between supervisors may be made by telephone, but not by radio or email.

Paragraph (c)

New paragraph (c) prohibits a railroad from holding a regulated employee out of service from the time of the employee's reasonable suspicion test to the time of the railroad's receipt of the employee's verified test result (a practice known as “stand down”). A railroad may, however, use its own authority to hold an employee out of service during this period if the railroad has an independent basis for doing so (e.g., the employee is continuing to exhibit signs and symptoms of alcohol use).

Paragraph (d)

Paragraph (d) requires an on-site supervisor to document as soon as practicable the observed signs and symptoms that were the basis for the supervisor's decision to reasonable suspicion test a regulated employee. FRA is not adopting Labor's suggested alternate language, which essentially restates FRA's own without adding any clarification.

Section 219.305—Prompt Specimen Collection; Time Limits

Paragraph (a)

Paragraph (a) reiterates language formerly in § 219.302(a), which states consistent with the need to protect life and property, reasonable suspicion testing must be promptly conducted following the observations upon which the reasonable suspicion determination was based.

Paragraph (b)

Paragraph (b) requires a railroad to prepare and maintain a record explaining the reasons for the delay whenever the railroad does not collect reasonable suspicion breath and/or urine specimens within two hours of the determination to test. If, however, a railroad has failed to collect 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. The eight-hour deadline is met when the railroad has delivered the employee to a collection site where a collector is present and asked the collector to begin specimen collection.

Paragraph (b) also requires a railroad to submit its reasonable suspicion testing records upon request of the FRA Drug and Alcohol Program Manager.

Paragraph (c)

Subpart E—Reasonable Cause Testing

As discussed above, FRA is dividing reasonable suspicion and reasonable cause testing into separate subparts to emphasize that despite the similarity in names, the authority and criteria for mandatory reasonable suspicion testing is very different from that for discretionary reasonable cause testing. Formerly, reasonable suspicion and reasonable cause testing were both located in subpart D; reasonable suspicion testing remains in subpart D while reasonable cause testing is moved to subpart E. In addition, subpart E contains new rule violations tailored to the activities of MOW employees. FRA has re-designated the provisions of former subpart E as new subpart K.

Section 219.401—Authorization for Reasonable Cause Testing

Previously, a railroad had three options whenever the conditions for reasonable cause testing were met; the railroad could choose to: (1) Conduct a reasonable cause test under FRA authority, (2) conduct a reasonable cause test under its own (company) authority, or (3) not conduct a reasonable cause test. The railroad could switch among these choices without advance notice. For example, a railroad could conduct one employee's reasonable cause test under FRA authority, and another's under company authority, without any explanation. In many instances, an employee who had received a reasonable cause test was unsure as to what authority the test had been conducted under, while the lack of a consistency requirement led to frequent complaints about disparate treatment among employees.

FRA is now requiring a railroad to choose between using FRA authority or company authority for reasonable cause testing. A railroad that chooses to use FRA authority must announce its choice to its employees and must use that FRA authority exclusively, by (1) providing notice of its selection of FRA authority in its educational materials; (2) specifying that FRA testing is authorized only after “train accidents” and “train incidents,” as defined in § 219.5; and (3) adding new rule violations or other errors to § 219.403 as bases to test. Once a railroad has announced that it will be using FRA authority exclusively for reasonable cause testing, the railroad is prohibited from conducting reasonable cause tests under its own authority after an event listed in § 219.403. The railroad may always, however, use its own authority to test for events that are outside of the FRA criteria for reasonable cause testing listed in this subpart.

Section 219.403—Requirements for Reasonable Cause Testing

This section authorizes FRA reasonable cause testing after “train accidents” and “train incidents” as defined in § 219.5, but not after all part 225 reportable “accidents/incidents.” As amended, railroads are authorized to conduct FRA 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.

Paragraph (a)

Section 219.301(b)(2) previously authorized 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.” In this rule, FRA is clarifying that the terms “accident/incident” and “accident or incident reportable under part 225” in § 219.301(b)(2) do not authorize FRA reasonable cause testing after all part 225 reportable accidents/incidents.

As defined in § 225.5, the term “accident/incident” includes employee injuries and illnesses that conform with OSHA's recordkeeping/reporting requirements, but do not otherwise fall within FRA's railroad safety jurisdiction. See Accident Reporting Guide at 1-2 (“FRA's accident/incident reporting regulations that concern railroad occupational casualties should be maintained, to the extent practicable, Start Printed Page 37910in general conformity with OSHA's recordkeeping and reporting regulations”).

In its audits, FRA has found numerous instances where this confusion in terms has resulted in a railroad deciding to conduct an FRA reasonable cause test after every reportable injury, even if that injury was unconnected with the movement of on-track equipment (e.g., a slip, trip, or fall that was not related to the movement of on-track equipment where the railroad had no basis 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, the § 225.5 definition of “accident/incident” includes occupational illnesses, such as carpal tunnel syndrome, carbon monoxide poisoning, noise-induced hearing loss, and dust diseases of the lungs, as well as circumstances such as a suicide attempt made by an on-duty employee, that do not authorize FRA reasonable cause testing. See Accident Reporting Guide at 33, and at Appendix E-2 through E-5.

To correct this confusion, FRA is specifying in § 219.403(a) that 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 limit the circumstances under which FRA reasonable cause testing is authorized to a subset of part 225 reportable accident/incidents. (A railroad may, of course, perform a reasonable cause test under its own authority for an accident/incident that does not qualify as a train accident or train incident.)

For consistency with the remainder of this subpart, FRA is also substituting the term “responsible railroad supervisor” for “supervisory employee.”

Paragraph (b)

Paragraph (b) contains a list of rule violations and other errors that are grounds for FRA reasonable cause testing whenever a regulated employee is directly involved. The rule violations and other errors previously in § 219.301(b)(3) can now be found in paragraphs (b)(1)-(4), (b)(6)-(8), and (b)(10) of this section, without any substantive amendments. Paragraphs (b)(5), (b)(9), (b)(11)-(12), and (b)(13)-(18) contain additional rule violations and other errors that are new grounds for FRA reasonable cause testing, as discussed below.

• Additional Rule Violations or Other Errors Related to Railroad Operating Practices

In paragraphs (b)(5) and (9), FRA is adding 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. Many of these operating rule requirements for switches already provided bases for FRA reasonable cause testing, such as “[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, in paragraph (b)(5), FRA is authorizing reasonable cause testing if a regulated employee fails to restore and secure a main track switch when required.

Although § 218.99 requires a railroad to adopt specific operating rules governing shoving and pushing movements, FRA is authorizing reasonable cause testing only for § 218.99 violations that can pose significant safety concerns, as discussed below. For instance, a railroad is authorized to conduct FRA reasonable cause testing on a regulated employee who fails to provide point protection in accordance with § 218.99(b)(3), but is not authorized to do so if a regulated employee fails to conduct a job briefing.

• Additional Rule Violations or Other Errors Related to MOW Employees

Paragraphs (b)(13)-(17) authorize FRA reasonable cause testing for additional rules violations and errors related to the performance of MOW activities: Paragraph (b)(13) authorizes testing 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; paragraph (b)(14) authorizes testing for the failure of a roadway worker-in-charge to notify all affected employees when releasing working limits; paragraph (b)(15) authorizes testing for the failure of a flagman or watchman/lookout to notify employees of an approaching train or other on-track equipment; paragraph (b)(16) authorizes testing for the failure to ascertain on-track safety before fouling a track; and paragraph (b)(17) authorizes testing for the improper use of individual train detection (ITD) in a manual interlocking or control point.

• Additional Rule Violations or Other Errors Related to Covered Service

As proposed, FRA is authorizing reasonable cause testing for three additional rule violations or other errors primarily addressing the actions of covered employees.

First, paragraph (b)(11) authorizes a railroad to conduct FRA 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 (e.g., by temporarily installing a jumper cable and failing to remove it after finishing repairs or testing). This includes the types of unlawful interference described in § 234.209 (grade crossing systems) and § 236.4 (signals).

Second, paragraph (b)(12) authorizes a railroad to conduct FRA reasonable cause testing if a regulated employee has failed to perform required stop-and-flag duties after a malfunction of a grade crossing signal system.

Third, paragraph (b)(18) authorizes a railroad to conduct FRA reasonable cause testing on a regulated employee whose 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.

A contracting company that performs regulated service for a railroad is authorized, but not required, to conduct FRA reasonable cause tests on its regulated employees. Conversely, a railroad is authorized to conduct FRA reasonable cause testing on its contractors when they are performing regulated service on the railroad's behalf.

Section 219.405—Documentation Requirements

Although reasonable cause testing remains discretionary, a railroad must create and maintain written documentation of the basis for a reasonable cause test if that test is conducted under FRA authority. Start Printed Page 37911Accordingly, the railroad supervisor who made the determination that reasonable cause exists must promptly document the observations or facts (e.g., the amount of property damage, the rule that was violated, the role of the employee) that were the basis for this determination, although the documentation does not have to be completed before the FRA reasonable cause testing has been conducted.

Section 219.407—Prompt Specimen Collection; Time Limitations

This section clarifies that the eight-hour time period for conducting a reasonable cause test runs from the time a railroad supervisor is notified of the occurrence of the train accident, train incident, or rule violation that is the basis for the test.

Section 219.409—Limitations on Authority

Paragraph (a)

This paragraph contains an amended version of language that was previously in § 219.301(e), As amended, this paragraph states that: (1) 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 is removing the word “compulsory,” which misleadingly implies that FRA reasonable cause testing is required, when it is optional but authorized in certain situations. Third, FRA is removing the second sentence of § 219.301(e), which, in part, stated 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 testing, although such testing should be recorded on DOT's alcohol custody and control form.

Paragraph (b)

For reasons similar to those discussed in § 219.211(b), paragraph (b) of this section prohibits a railroad from holding a regulated employee out of service pending the results of an FRA reasonable cause test. A railroad may, however, hold an employee out of service under its own authority.

Paragraph (c)

Paragraph (c) requires a supervisor to make a separate reasonable cause determination for each individual in a train crew, rather than a collective decision to test the crew as a whole.

Subpart F—Pre-Employment Tests

Section 219.501—Pre-Employment Drug Testing

Paragraph (a)

A regulated railroad employee must have a negative Federal pre-employment drug test result for each railroad for which the employee performs regulated service. This requirement does not apply to contractor employees who perform regulated service for the railroad.

Paragraph (b)

As proposed, FRA is moving language previously in this paragraph to paragraph (e), where it will be discussed below.

Paragraph (b) now addresses the pre-employment drug testing requirements for contractor employees. In contrast to the pre-employment drug testing requirements for regulated employees discussed in paragraph (a) above, FRA is not requiring 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 only has 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 is required to have a new Federal pre-employment drug test if he or she switches direct employers by working for a different contractor who provides regulated service to railroads.

Paragraph (c)

A railroad is not required to conduct an FRA pre-employment drug test on an applicant or first-time transfer to regulated service if the railroad has already conducted a pre-employment drug test with a negative test result on the applicant or first-time transfer under the authority of another DOT agency. In most cases, this agency will be FMCSA, because railroads often require signal maintainers and MOW employees to hold a CDL as a condition of their employment, and a negative FMCSA pre-employment drug test result is one of the prerequisites to obtaining a CDL. See 49 CFR 382.301. This amendment increases a railroad's hiring flexibility by allowing the railroad to transfer a CDL holder to first-time regulated service without having to conduct an FRA pre-employment drug test or having to wait for a negative test result (a railroad could, however, choose to perform a new pre-employment drug test under its own authority). Since many MOW employees already hold CDLs because their jobs require the operation of railroad commercial motor vehicles, this limited exception will substantially lessen the number of pre-employment drug tests railroads will have to perform after the effective date of this final rule.

This exception applies, however, only when an applicant or first-time transfer's negative DOT pre-employment drug test result is the result of a test conducted by the railroad itself. In other words, a CDL holder who performs regulated service for multiple railroads must have a separate negative pre-employment drug test result for each railroad. For example, a CDL holder who already has a negative DOT pre-employment drug test for Railroad A must still have a negative FRA pre-employment drug test result for Railroad B before he or she can begin performing regulated service for Railroad B.

Paragraph (d)

As proposed, new paragraph (d) specifies that an applicant must withdraw his or her application before the drug testing process begins if the applicant wants to decline a pre-employment drug test and have no record kept of that declination.

Paragraph (e)

In new paragraph (e), FRA exempts from pre-employment drug testing: (1) An employee who began performing MOW activities for a railroad before the effective date of this final rule; and (2) an employee who began performing regulated service for a small railroad (as defined in § 219.3(c)) before the effective date of this final rule. Both exemptions apply only so long as the employee continues to work for the same railroad that he or she was working for before the effective date of the final rule.

Section 219.502—Pre-Employment Alcohol Testing

This section addresses optional pre-employment alcohol testing.

Paragraph (a)(5)

Paragraph (a)(5) prohibits a railroad from permitting a regulated employee with an alcohol concentration of 0.04 or greater from performing regulated service until the employee has completed the return-to-duty process in § 219.104(d).

Paragraph (b)

Paragraph (b) of this section (addressing pre-employment alcohol Start Printed Page 37912testing) previously contained language identical to § 219.501(b) (addressing pre-employment drug testing), which provides that, as used in subpart H, the term covered employee includes an applicant for pre-employment testing only. It also provided that no record may be maintained if an applicant declines to be tested and withdraws his or her application for employment. As discussed above in § 219.501(b), FRA has amended the language in § 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 § 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

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 is amending both of these sentences to clarify that subpart H adopts the requirements found in part 40. FRA is also amending the second sentence to clarify that a railroad must provide written notice to an applicant who has had any type of non-negative FRA test result (i.e., not just a positive, but also an adulteration, substitution, or refusal). A railroad is not required, however, to provide written notification to an applicant who has had a negative FRA pre-employment alcohol or drug test result.

FRA is also amending the third sentence of this section to clarify that a railroad must maintain a record of each application it denies because of the applicant's non-negative FRA pre-employment test. A railroad must maintain a record for each individual who has had a non-negative test result on a FRA pre-employment test, even if the railroad denied the individual's application for employment, because an individual who has had such a result must comply with the return-to-service and follow-up testing requirements of part 40 before he or she can begin performing DOT safety-sensitive functions for any employer regulated by a DOT agency. A railroad does not have to maintain a record, however, if an applicant withdraws his or her application to perform regulated service before the testing process begins.

Section 219.505—Non-Negative Tests and Refusals

Previously, this section prohibited an individual who “refuses” a pre-employment test from performing covered service based upon the application and examination with respect to which such refusal was made. As proposed, FRA has amended this section to specifically prohibit an individual who has refused or who had a non-negative (i.e., a positive, adulterated, or substituted test result) pre-employment test result from performing DOT safety-sensitive functions for any DOT-regulated employer until the individual has completed the Federal return-to-duty process in § 219.104(d). As amended, this section conforms with § 40.25(e), which prohibits an employer who has information that an individual has violated a DOT agency drug or alcohol regulation from using that individual to perform DOT safety-sensitive functions until the employer receives information that the individual has complied with the return-to-duty requirements of part 40 or any DOT agency.

Subpart G—Random Alcohol and Drug Testing Programs

To achieve deterrence, a random testing program must ensure that each covered employee (including volunteers and probationary employees of a railroad or a contractor to a railroad), believes that he or she is subject to random testing without advance notice each time the employee is on duty and subject to performing covered service.

FRA received no objections to its proposal to subject an employee who performs MOW activities to the same random testing requirements as one who performs covered service. Accordingly, each railroad must submit for FRA approval a random testing plan that ensures each regulated employee believes he or she is subject to random testing without advance warning each time the employee is on-duty and subject to performing regulated service.

As proposed, FRA is revising and expanding subpart G,-to clarify and consolidate requirements and to-incorporate longstanding published FRA guidance. FRA received no comment on the majority of these changes, which are adopted as proposed without additional discussion.

Subpart H—Drug and Alcohol Testing Procedures

FRA received no comments on its minor editorial changes to this section, which are adopted as proposed.

Subpart I—Annual Report

Section 219.800—Annual Reports

FRA received no comments on its minor editorial changes to this section, which are adopted as proposed.

Subpart J—Recordkeeping Requirements

Section 219.901—Retention of Alcohol and Drug Testing Records

FRA received no comments on its proposals to ease recordkeeping burdens by consolidating requirements, removing others, and allowing still others to be maintained electronically. Accordingly, FRA is adopting these proposals without further discussion, except for proposed paragraph (c)(4)(iv), which contained an incorrect reference to prescription drug training records under § 219.103 and FRA has not adopted.

Subpart K—Referral Programs

For a variety of reasons, commenters found FRA's proposal to replace its self-referral, co-worker report, and alternative policy requirements with peer support program requirements, to be both confusing and ill-advised. NCRMA and SMART (from this point forward collectively referred to as “Labor,” unless a comment was submitted by only one labor organization), in particular, raised objections and called for clarifications. As Labor noted, the concept of a voluntary peer referral program arose from “Operation Redblock,” a private rail industry initiative to address alcohol abuse. Labor expressed deep misgivings, both that FRA's proposed peer support programs could harm these existing railroad programs, and that FRA's proposal to audit each program would invade individual privacy and undermine employee trust in the program. Labor also criticized FRA's proposal to allow an EAP counselor to function as an alternative to a trained drug and alcohol counselor, because an EAP counselor rarely has specific expertise in abuse and addiction issues. (Typically, an EAP program addresses a broad range of issues, such as marital or financial problems.) Similarly, Labor objected to using peer counselors, noting that a peer is usually a volunteer who provides empathy and advice based on his or her own drug and alcohol problems, without a counseling or medical degree.

The Associations suggested that FRA use the term “peer prevention” instead of “peer support” to emphasize that these programs should be proactive in nature. The Associations also warned Start Printed Page 37913that FRA should audit and release aggregate program data only, because an employee could be discouraged from self-referring if the employee knew that his or her individual data would be subject to FRA examination. Like Labor, the Associations noted that a peer support group is usually composed of selected peers and volunteers rather than medical professionals; the Associations therefore supported allowing an employee who self-refers to have the option of receiving counseling and treatment from a Drug Abuse Counselor (DAC). Overall, the Associations found FRA's proposed subpart K flawed and redundant of the voluntary referral provisions already in § 219.403.

After consideration, FRA agrees that its proposal to mandate the establishment of peer support programs was unnecessary, since privately run railroad programs and FRA's own subpart E policies have both proven effective in identifying and helping employees with drug and alcohol abuse issues. FRA also agrees that its proposed peer support programs could interfere with, or possibly even be detrimental to, existing railroad self-referral programs. Therefore, instead of requiring the adoption of peer prevention programs, FRA is revising and moving its voluntary referral, co-worker report, and alternative policy requirements from subpart E (which has been revised to address reasonable cause testing) to new subpart K.

With the exception of its proposal for non-peer referral programs, which FRA is authorizing but not requiring under this rule, FRA is not adopting its proposal to require peer support programs. To correspond with this decision, FRA is retitling this subpart “Referral Programs” instead of the proposed “Peer Support Programs.” As explained in the NPRM, FRA believes subpart E's previous title “Identification of Troubled Employees,” to be outdated since the primary purpose of that subpart had always been to evaluate and treat, not merely identify, employees who have substance abuse issues. FRA is also, as proposed, substituting the more commonly used term “program” for “policy.”

In addition, FRA is adopting the Associations' recommendation to simplify this rule by requiring all the evaluation, counseling, treatment, and recommendation required by this part to be performed by a DAC. As defined in 49 CFR 242.7, a DAC meets all the credentialing and qualifying requirements of a Substance Abuse Professional (SAP). Title 49 CFR 40.3 defines an SAP A SAP as an individual who evaluates an employee who has violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare. By definition, therefore, a SAP cannot perform a role in a voluntary referral program. In contrast, a DAC can treat and evaluate an employee enrolled in a voluntary referral program, since the DAC's involvement is not triggered by an employee's drug or alcohol violation. With this caveat, a DAC serves the same function in part this part as a SAP does in part 40.

As mentioned above, FRA is adding an option for a “non-peer referral” program, which authorizes, but does not require, a railroad to accept referrals from family members, supervisors, labor representatives, and other individuals who are not co-workers but who have knowledge of an employee's drug abuse problems. FRA received no objections to its proposal of this additional referral program. To accommodate this third program, FRA is retitling its required “co-worker report” program as a “co-worker referral” program so that henceforth these three programs—voluntary, co-worker, and non-peer—will collectively be referred to as “referral programs.”

With the addition of the option for a non-peer program, FRA is reprinting requirements formerly found in subpart E, in a format that breaks these requirements down to make them easier to understand and implement. Both partially excepted small railroads and contractors are excluded from subpart K. Class III railroads that do not qualify for the small railroad exception must comply, however.

Section 219.1001—Requirements for Referral Programs

Paragraph (b)

This paragraph generally outlines the purposes of mandatory voluntary referral and co-worker referral programs. The descriptions of these programs are reworded from those previously in subpart E, and no substantive changes are intended.

Paragraph (c)

This paragraph generally outlines the purposes of optional non-peer referral and alternative programs. The description of an alternate program is reworded from the one previously in subpart E, and no substantive change is intended.

Paragraph (c)(1)

Although FRA is not otherwise adopting its proposal to require “peer support groups,” FRA is authorizing a railroad to establish a “non-peer referral” program if it chooses to do so. A “non-peer” is an individual who is not considered to be an employee's co-worker, such as a trained supervisor, representative of an employee's collective bargaining organization, or family member.

Paragraphs (d)(1), (2), and (5)

These paragraphs restate general conditions for referral programs previously found in subpart E. No substantive changes are intended.

Paragraphs (d)(3)-(4)

These paragraphs prohibit referral programs from interfering with the return-to-duty requirements in subpart B and the reasonable suspicion testing requirements in subpart D.

Section 219.1003—Referral Program Conditions

With the exception of the paragraphs discussed below, the required allowances, conditions, and procedures in this section were previously contained in subpart E.

Paragraph (g)

As proposed, FRA is removing its previous minimum of 45 days leave of absence to allow the DAC to determine the period of time an employee needs.

Paragraph (h)(3)

Formerly, only co-worker referrals allowed railroads to condition an employee's return to regulated service upon successful completion of a return-to-service medical evaluation. As proposed, a railroad may impose this condition on self-referrals and non-peer referrals as well.

Paragraph (h)(4)

As proposed, a railroad must return an employee to regulated service within five working days of a DAC's recommendation that the employee is fit to return.

Paragraph (i)

As proposed, this paragraph prohibits a person or entity from changing a DAC's evaluation of an employee or recommendation for assistance. Only the DAC who made the initial evaluation may modify that evaluation and any follow-up recommendations based upon new or additional information.

Paragraph (j)

As proposed, the confidentiality conditions in this paragraph, which had previously applied only to candidates Start Printed Page 37914for locomotive certification and locomotive engineers, have been expanded to cover candidates for conductor certification and conductors. Similarly, these requirements no longer apply only to voluntary referrals; co-worker and non-peer referrals are also covered.

Paragraph (k)

As proposed, a regulated employee who enters a co-worker or non-peer referral for a verified violation of § 219.101 or § 219.102 must contact a DAC within a reasonable period of time, as specified by the railroad's programs. If a regulated employee does not contact a DAC within this time period, the railroad may investigate the employee's cooperation and compliance with the referral program.

Paragraph (l)

As proposed, paragraph (l) requires a DAC to complete a regulated employee's evaluation within 10 working days of the employee's entering a referral program and contacting the DAC. If more than one evaluation is required, the DAC must complete these evaluations within 20 working days. These time frames, which had previously applied only to co-worker referrals, now apply to voluntary and non-peer referrals as well.

Paragraph (m)

As proposed, a referral program may not require follow-up treatment, care, or testing that exceeds 24 months beyond the regulated employee's removal from service, unless the regulated employee had committed a substantiated part 219 violation.

Section 219.1005—Optional Provisions

This section describes provisions that a railroad is authorized, but not required to, include in its referral program. The inclusion of any of these provisions may be conditioned on the agreement of an affected labor organization.

Paragraph (a) permits a referral program to waive confidentiality if a regulated employee refuses to cooperate in a course of education, counseling, or treatment recommended by a DAC 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 text was previously found in subpart E for voluntary referrals.

Paragraph (a) specifies that nothing in subpart K prevents a railroad or labor organization from adopting, publishing, and implementing referral program policies that offer 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 was previously found in subpart E.

Paragraph (b) requires an alternate program to have the concurrence of the recognized representatives of the regulated employees as shown by a collective bargaining agreement or other document describing the class or craft of employees to which the alternate program applies. This agreement must expressly reference subpart K and the intention of the railroad and the employee representatives that the alternate program applies in lieu of the programs required by subpart K. This language is similar to that previously found in subpart E.

Paragraph (c) requires a railroad to submit a copy of the agreement or other document described in paragraph (b), along with a copy of the alternate program described in paragraph (a), to the FRA Drug and Alcohol Program Manager for approval. FRA will review the program to see if it meets the general standards and intent of § 219.1003. If an alternate policy is amended or revoked, the railroad must notify FRA at least 30 days before the amendment or revocation's effective date. This last requirement was previously in subpart E.

Paragraph (d) specifies that § 219.1007 does not excuse a railroad from the requirement to adopt, publish, and implement § 219.1003 programs for any group of regulated employees not covered by an approved alternate program. A virtually identical provision was previously located in subpart E.

Paragraph (e) references § 219.105(c), which specifies that FRA has the authority to audit any railroad alcohol and/or drug use education, prevention, identification, and rehabilitation program (including, but not limited to, alternate referral programs), to ensure that the program is not designed or implemented to circumvent or otherwise undermine Federal requirements.

Appendix A

Appendix A to this part contains a schedule of civil penalties for use in enforcing this part's requirements. FRA has revised the penalty schedule to correspond to the restructuring of and addition of new sections to this part. Because such penalty schedules are statements of agency policy, notice and comment are not required before their issuance. See 5 U.S.C. 553(b)(3)(A). Nonetheless, FRA has revised the penalty schedule consistent with the previous, public schedule.

VII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures

This final 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 final 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 http://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 final rule. Overall, the final rule will result in safety benefits and potential business benefits for the railroad industry. It will 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 will 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 final rule over a 20-year period. It presents costs associated with the various types of drug and alcohol testing in the final rule 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), 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 result from implementation of the Start Printed Page 37915RSIA mandate to expand part 219 to MOW employees) and the discretionary benefits (those that are due to the non-RSIA requirements). The benefits include not only injury, fatality, and property damage avoidance (accident reduction benefits), but also the savings, or benefit, that will accrue from fewer PAT tests being conducted due to FRA's increasing the property damage threshold for major train accidents.

For the 20-year period analyzed, the estimated quantified cost that will be imposed on industry totals approximately $24.3 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 totally $57.4 million (PV, 7 percent) and $83.6 million (PV, 3 percent).

Overall, the RIA demonstrates that the costs, both statutory and discretionary, associated with implementing the final 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 will 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 portion of the costs to incur over the next 20-years is $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

FRA developed the final rule in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) to ensure potential impacts of rules on small entities are properly considered. Furthermore, FRA invited all interested parties to submit data and information regarding the Initial Regulatory Flexibility Analysis (IRFA) and did receive two comments about it during the public comment period.

The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant economic impact on a substantial number of small entities.

The final rule will apply to all employees of railroad carriers, contractors, or subcontractors to railroad carriers who perform maintenance-of-way activities. Based on information available, FRA estimates that less than 14 percent of the total railroad costs associated with implementing the final rule will be borne by small entities. This percentage is based directly upon the percentage of affected employees estimated to be working for small entities. Small entities were exempt from certain requirements of the prior rule, continue to be exempt from certain requirements of this final rule, and otherwise bear proportional burden for the requirements 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 final rule will be approximately $24 million for the next 20 years for the railroad industry. There are 695 railroads that are considered small for purposes of this analysis, and together they comprise approximately 93 percent of the railroads impacted directly by this final regulation. The 14 percent of the burden will be spread amongst the 695 entities, based proportionally upon the number of employees each has. Thus, although a substantial number of small entities in this sector will likely be impacted, the economic impact on them will likely be insignificant. This RFA is not intended to be a stand-alone document. To get a better understanding of the total costs for the railroad industry (which form the basis for the estimates in this RFA), or more cost detail on any specific requirement, please see the RIA that FRA has placed in the docket for this rulemaking.

1. Description of Regulated Entities

The “universe” of the entities considered in an RFA generally includes only those small entities that can reasonably expect to be directly regulated by this final action. The types of small entities potentially affected by this final rule are: (1) Small railroads; Start Printed Page 37916(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 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 STB'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 1,095 entities will be affected by the rule. FRA estimates that there are approximately 400 MOW contractor companies and 695 small railroads on the general system. 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 695 small railroads (as defined by revenue size). 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 final 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 amending to the substantive criteria of classification, there should be no change in the number of partially excepted small railroads associated with the final rule.

All 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 have not needed 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 will 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 burdens associated with this rulemaking will get passed on from the contractor to the pertinent railroad. FRA has determined that there are approximately 400 MOW-related contractor companies who will be covered by the final 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 expects that some HOS small contractors will be impacted based upon the 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 pre-employment drug tests, the least costly of all tests, will only be required for new employees.

No other small businesses (non-railroad related) are expected to be negatively impacted significantly by this rulemaking. Conversely, this final 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 pre-employment 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 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).

Consortia are companies that provide testing, random selection, collection, policy development, and training services to help employers stay compliant. Consortia alleviate much of the administrative burden of a testing Start Printed Page 37917program 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 that have been covered under the regulation. It should also be noted that approximately 125 of the small railroads that will 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 regulation. 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 RFA.

Significant Economic Impact Criteria

Previously, FRA sampled small railroads and found that revenue averaged approximately $4.7 million (not discounted) in 2006. One percent of that average annual revenue per small railroad is $47,000. FRA realizes that some railroads will have lower revenue than $4.7 million. However, FRA estimates that small railroads will not have any additional expenses over the next ten years to comply with the new requirements in this final regulation. Based on this, FRA concludes that the expected burden of this final rule will not have a significant impact on the competitive position of small entities, or on the small entity segment of the railroad industry as a whole.

Substantial Number Criteria

This final rule will likely burden all small railroads that are not exempt from its scope or application (see 49 CFR 219.3). Thus, as noted above this final rule will impact a substantial number of small railroads.

2. Certification

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. FRA invited all interested parties to submit data and information regarding the potential economic impact that will result from adoption of the proposals in the NPRM. FRA did receive comments concerning the initial regulatory flexibility analysis in the public comment process. The final rule addresses these concerns by continuing FRA's longstanding approach of counting only a railroad's covered employees for purposes of determining whether the railroad qualifies for the small railroad exception (the railroad also cannot participate in any joint operations) because FRA believes this is the best measure of the risks posed by the railroad's operations. FRA received no objections to this proposal and adopted in its final rule.

C. Paperwork Reduction Act

FRA is submitting the information collection requirements in this final rule for review and 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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All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, FRA Office of Railroad Safety, Information Collection Clearance Officer, at 202-493-6292, or Ms. Kim Toone, FRA Office of Information Technology, Information Clearance Officer, at 202-493-6132.

Organizations and individuals desiring to submit comments on the collection of information requirements should send them directly to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via email to the Office of Management and Budget at the following address: oira_submissions@omb.eop.gov.

OMB is required to make a decision concerning the collection of information requirements contained in this final 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.

FRA cannot 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 before 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 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 final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. FRA has determined that the 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 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 rule complies with a statutory mandate and will 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 rule will 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 rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this 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 rule is not required.

E. Environmental Impact

FRA has evaluated this final rule in accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other environmental statutes, related regulatory requirements, and its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999). FRA has determined that this final rule is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's NEPA Procedures, “Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions of air or water pollutants or noise or increased traffic congestion in any mode of transportation.” See 64 FR 28547, May 26, 1999. Categorical exclusions (CEs) are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4.

In analyzing the applicability of a CE, the agency must also consider whether extraordinary circumstances are present that would warrant a more detailed environmental review through the preparation of an EA or EIS. Id. 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 regulation that might trigger the need for a more detailed environmental review. The purpose of this rulemaking is to expand the scope of FRA's drug and alcohol regulations to cover MOW workers as per Congress' mandate in the RSIA. Specifically, the rule adopts part 214's definition of “Roadway Worker” to define “MOW employee” under part 214, contains a revised version of the troubled employee identification requirements, and updates and restructures the rule to make it more user-friendly. FRA does not anticipate any environmental impacts from this or any other requirement of the final rule. FRA also finds that there are no extraordinary circumstances present in connection with this final rule.

F. Executive Order 12898 (Environmental Justice)

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) (91 FR 27534, May 10, Start Printed Page 379222012) require DOT agencies to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations. The DOT Order instructs DOT agencies to address compliance with Executive Order 12898 and requirements within the DOT Order in rulemaking activities, as appropriate. FRA has evaluated this final rule under Executive Order 12898 and the DOT Order and determined it will not cause disproportionately high and adverse human health and environmental effects on minority populations or low-income populations.

G. Executive Order 13175 (Tribal Consultation)

FRA has evaluated this final rule in accordance with the principles and criteria contained in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, dated November 6, 2000. The final rule would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal laws. Therefore, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

H. 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 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.

I. 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 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 rule will not result in the expenditure of more than $100,000,000 (as adjusted annually for inflation) by the public sector in any one year, and thus preparation of such a statement is not required.

J. Energy Impact

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 rule in accordance with Executive Order 13211, and determined that it will 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.

K. Privacy Act Information

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See http://www.regulations.gov/​#!privacyNotice for the privacy notice of regulations.gov or interested parties may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/​privacy.

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List of Subjects in 49 CFR Part 219

• Alcohol abuse
• Drug abuse
• Drug testing
• Penalties
• Railroad safety
• Reporting and recordkeeping requirements
• Safety
• Transportation

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The Rule

For the reasons stated above, FRA amends part 219 as follows:

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PART 219—CONTROL OF ALCOHOL AND DRUG USE

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1. The authority citation for part 219 is revised to read as follows:

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Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 28 U.S.C. 2461, note; Sec. 412, Div. A, Pub. L. 110-432, 122 Stat. 4889 (49 U.S.C. 20140, note); and 49 CFR 1.89.

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Subpart A—General

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2. Revise § 219.1(a) to read as follows:

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3. Revise § 219.3 to read as follows:

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4. In § 219.4, revise paragraphs (a)(1), (b)(1), and (b)(2) to read as follows:

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5. Section 219.5 is amended by:

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a. Revising the introductory text;

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b. Adding new definitions of “Administrator”, “Associate Administrator”, “category of regulated employee”, and “contractor” in alphabetical order;

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c. Revising the definitions of “covered employee” and “covered service”;

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d. Adding new definitions of “DOT, The Department, or DOT agency”, “DOT-regulated employee”, “DOT safety-sensitive duties or DOT safety-sensitive functions”, “Drug and Alcohol Counselor or DAC,” “employee”, “evacuation”, “flagman or flagger” and “fouling a track” in alphabetical order;

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e. Revising the definition of “FRA representative”;

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f. Removing the definition of “general railroad system of transportation”;

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g. Adding new definitions of “highway-rail grade crossing” and “highway-rail grade crossing accident/incident” in alphabetical order;

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h. Revising the definition of “impact accident”;

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i. Adding new definitions of “joint operations” and “maintenance-of-way employee or MOW employee” in alphabetical order;

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j. Revising the definition of “medical facility”;

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k. Adding new definitions of “non-peer”, “on-track or fouling equipment”, “other impact accident”, “person”, and “plant railroad” in alphabetical order;

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l. Revising the definition of “railroad property damage or damage to railroad property”;

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m. Adding new definitions of “raking collision”, “regulated employee”, “regulated service”, “responsible railroad supervisor”, “side collision”, and “tourist, scenic, historic, or Start Printed Page 37924excursion operations that are not part of the general railroad system of transportation” in alphabetical order;

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n. Removing the definition of “train”;

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o. Revising the definitions of “train accident” and “train incident”; and

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p. Adding a new definition of “watchman/lookout” in alphabetical order.

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The revisions and additions read as follows:

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6. Revise § 219.9 to read as follows:

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7. Add § 219.10 to read as follows:

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8. Amend § 219.11 by revising paragraphs (a), (b)(1) and (2), and (c) through (h) to read as follows:

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9. Add § 219.12 to read as follows:

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10. Revise § 219.23 to read as follows:

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11. Add § 219.25 to subpart A to read as follows:

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Subpart B—Prohibitions

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12. Revise § 219.101(a) to read as follows:

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13. Revise § 219.102 to read as follows:

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14. Revise § 219.104 to read as follows:

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15. Revise § 219.105 to read as follows:

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16. Revise § 219.107 to read as follows:

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Subpart C—Post-Accident Toxicological Testing

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17. In § 219.201, revise paragraphs (a) and (b) to read as follows:

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18. Revise § 219.203 to read as follows:

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19. Revise § 219.205 to read as follows:

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20. Section 219.207 is amended by—

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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”;

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b. In the introductory text of paragraph (b), removing “(800) 424-8801 or”;

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c. In paragraph (c), removing the word “and/or” and adding, in its place, the word “and”; and

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d. In paragraph (d), removing the word “specifies” and adding, in its place, the words “and the instructions included inside the shipping kits specify”.

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21. In § 219.209, revise paragraphs (a)(2)(iv), (a)(2)(v), and (b), and remove paragraph (c), to read as follows:

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22. Section 219.211 is amended by—

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a. Adding a sentence at the end of paragraph (b);

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b. Revising the second sentence of paragraph (c) and the second sentence of paragraph (e); and

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c. Revising paragraph (g)(3).

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The revisions and additions read as follows:

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23. In § 219.213, paragraphs (a) and (b), revise all references to “covered service” to read “regulated service,” and in paragraph (b), add “written” in front of the word “notice”.

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24. Revise subpart D to read as follows:

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Subpart D—Reasonable Suspicion Testing

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25. Revise subpart E to read as follows:

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Subpart E—Reasonable Cause Testing

Subpart F—Pre-Employment Tests

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26. Revise § 219.501 to read as follows:

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27. In § 219.502, revise paragraph (a) introductory text, (a)(1), (a)(2), (a)(5), and (b) to read as follows:

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28. Revise § 219.503 to read as follows:

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29. Revise § 219.505 to read as follows:

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30. Revise subpart G to read as follows:

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Subpart G—Random Alcohol and Drug Testing Programs

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Subpart H—Drug and Alcohol Testing Procedures

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31. Revise § 219.701 by:

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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

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b. Removing paragraph (c).

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Subpart I—Annual Report

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32. In § 219.800, revise the last sentence of paragraph (b) and the first sentence of paragraph (d) and add a new paragraph (f) to read as follows:

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Subpart J—Recordkeeping Requirements

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33. Revise § 219.901 to read as follows:

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34. Revise § 219.903 to read as follows:

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35. Remove and reserve § 219.905.

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36. Add a new subpart K to read as follows:

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Subpart K—Referral Programs

Subpart K—Referral Programs

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37. Revise appendix A to read as follows:

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Appendix A to Part 219—Schedule of Penalties

The following chart lists the schedule of civil penalties:

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