Control of Alcohol and Drug Use: Coverage of Maintenance of Way Employees, Retrospective Regulatory Review-Based Amendments (RRR)

Federal RegisterJul 28, 2014

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

[Docket No. FRA-2009-0039]

RIN 2130-AC10

Control of Alcohol and Drug Use: Coverage of Maintenance of Way Employees, Retrospective Regulatory Review-Based Amendments (RRR)

AGENCY:

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

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

In response to Congress' mandate in the Rail Safety Improvement Act of 2008 (RSIA), FRA is proposing to expand the scope of its alcohol and drug regulations to cover employees who perform maintenance-of-way (MOW) activities. In addition, FRA is proposing certain substantive amendments that either respond to National Transportation Safety Board (NTSB) recommendations or update and clarify the alcohol and drug regulations based on a retrospective regulatory review (RRR) analysis.

DATES:

Comments:

Submit comments on or before September 26, 2014.

Public Hearing:

FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to August 27, 2014, one will be scheduled and FRA will publish a supplemental notice in the

Federal Register

to inform interested parties of the date, time, and location of any such hearing.

ADDRESSES:

Comments:

Comments related to Docket No. FRA-2009-0039 may be submitted by any of the following methods:

•

Online:

Comments should be filed at the Federal eRulemaking Portal,

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. Note that all comments received will be posted without change to

http://www.regulations.gov

including any personal information provided. Please see the Privacy Act heading in the “Supplementary Information” section of this document for Privacy Act information related to any submitted comments or materials.

Proposed Revised Part 219 Available in Docket No. FRA-2009-0039

A revised version of part 219 incorporating all amendments proposed by this NPRM is available for review in the public docket of this rulemaking (docket no. FRA-2009-0039). Interested persons can review this document to learn how the proposed amendments would affect part 219 as a whole.

FOR FURTHER INFORMATION CONTACT:

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

gerald.powers@dot.gov.

For legal issues, contact Elizabeth A. Gross, Trial Attorney, Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590 (telephone 202-493-1342),

elizabeth.gross@dot.gov;

or Patricia V. Sun, Trial Attorney, Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590 (telephone 202-493-6060),

patricia.sun@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary

II. Statutory Authority and Proceedings to Date

III. Expansion of Part 219 to Employees Who Perform MOW Activities

A. Background

B. FRA's Proposed Definition of MOW Activities

C. “Regulated Employees” and “Regulated Service”

D. Alternatives Considered for Part 219 Expansion

1. Alternative No. 1: Adopt the “roadway worker” definition in § 214.7

2. Alternative No. 2: Include all employees who perform FRA safety-sensitive functions under §§ 219.301 and 209.303

E. MOW Employees and the Small Railroad Exception

F. Railroad and Contractor Responsibility for Compliance

G. MOW Employee Random Testing Rate

H. MOW Employee Pre-employment Drug Testing

IV. Signal Contractors

V. Other Proposed Substantive Amendments

A. Small railroads would no longer be excepted from the requirements for reasonable suspicion testing and pre-employment drug testing

B. For purposes of the small railroad exception, a new definition of “joint operations” would be incorporated

C. The post-accident toxicological (PAT) testing damage threshold for major train accidents would be increased

D. Derailment and raking collisions would no longer be excluded from the § 219.5 definition of impact accident

E. PAT testing would be required for railroad highway-rail grade crossing accidents/incidents involving human-factor errors

F. The provisions governing when regulated employees could be recalled for PAT testing would be amended

G. Reasonable cause testing would be authorized only for reportable “train accidents and “train incidents”

H. Federal reasonable cause testing would be authorized for additional operating rule violations or other errors

I. Part 219 would be amended to conform certain provisions to the final conductor certification rule

VI. Primary Clarifying Amendments

A. Reasonable suspicion and reasonable cause testing would be separated into different subparts, resulting in the re-designation of other subparts

B. Random alcohol and drug testing would be reorganized and clarified

C. Substituting “Drug and Alcohol” for “Alcohol and Drug”

VII. Section-by-Section Analysis

VIII. Regulatory Impact and Notices

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

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

C. Paperwork Reduction Act

D. Federalism Implications

E. International Trade Impact Assessment

F. Environmental Impact

G. Unfunded Mandates Reform Act of 1995

H. Energy Impact

I. Privacy Act

I. Executive Summary

FRA has regulated the use of alcohol and drugs by certain railroad employees since 1985, when it issued a final rule establishing alcohol and drug use control regulations under 49 CFR part 219 (part 219).

See

50 FR 31508, Aug. 2, 1985. The rule contained certain prohibitions on the use and possession of alcohol and drugs by covered employees, who were defined as employees who had been assigned to perform covered service subject to the Hours of Service Act (45 U.S.C. 61-64b).

See id.

at 31569. The rule also contained requirements for post-accident toxicological (PAT) testing, discretionary reasonable cause and reasonable suspicion testing, co-worker and voluntary referral policies, pre-employment drug testing, and reporting.

See id.

at 31508. In 1988, FRA amended part 219 to require random drug testing of covered employees.

See

53 FR 47102, Nov. 21, 1988. In 1994, FRA again amended part 219 to require random alcohol testing and reasonable suspicion testing, in conformance with the requirements of the Omnibus Transportation Employee Testing Act of 1991 (Omnibus Act) (reasonable cause testing remained discretionary).

See

59 FR 7448, Feb. 15, 1994. FRA has not fundamentally revised part 219 since 1994.

The hours of service (HOS) laws are currently found at 49 U.S.C. ch. 211.

In 2004, FRA expanded the scope of part 219 to cover foreign railroad foreign-based employees who perform train or dispatching service in the United States.

See

69 FR 19270, Apr. 12, 2004. In 2013, FRA added routine tests for certain non-controlled substances to its PAT testing program.

See

78 FR 14217, Mar. 5, 2013.

The Omnibus Act required the Department of Transportation (DOT or Department) to establish Federal workplace testing procedures for transportation employees. The Department's Procedures for Transportation Workplace Drug and Alcohol Testing Program are contained in 49 CFR part 40 (part 40), which is published by the DOT Office of the Secretary (OST). Only the DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) and the DOT Office of General Counsel (OGC) are authorized to interpret part 40 requirements.

See

49 CFR 40.5.

Part 40 testing requirements and procedures apply to any drug or alcohol test required by DOT agency regulations, except for FRA's PAT testing and certain testing conducted pursuant to DOT-mandated peer prevention programs (including FRA's peer prevention program currently required by subpart E of part 219).

See

§ 219.701. FRA's PAT testing program pre-dates the enactment of the Omnibus Act, which specifically exempts the program from part 40.

See

§ 40.1(c).

Unless otherwise specified, all references to CFR sections and parts in this document refer to Title 49 of the CFR.

In response to Congress' mandate in the RSIA, FRA is proposing to expand the scope of part 219 to cover employees who perform MOW activities. As used in this NPRM, the term “employee” includes employees, volunteers, and probationary employees of railroads and contractors (defined to include subcontractors) to railroads. In addition, because MOW employees are not subject to the HOS laws, FRA is proposing a new term-of-art—“regulated service”—that would encompass both covered service and MOW activities. Performance of regulated service would make an individual a “regulated employee” subject to part 219, regardless of whether the individual is employed by a railroad or a contractor to a railroad. This proposed expansion of part 219 would both comply with the RSIA mandate and respond in part to NTSB Recommendation R-08-07 (Apr. 10, 2008),

available at http://www.ntsb.gov/doclib/recletters/2008/R08_05_07.pdf.

In Recommendation R-08-07, the NTSB advised FRA to expand its alcohol and drug regulations to all railroad employees and contractors who perform FRA safety-sensitive functions as defined by §§ 209.301 and 209.303 (the regulations setting forth the purpose, scope and coverage of FRA's procedures for disqualifying individuals from performing certain safety-sensitive functions).

FRA is also proposing to amend part 219 in response to NTSB Recommendation R-01-17,

available at http://www.ntsb.gov/doclib/recletters/2001/R01_17.pdf.

Recommendation R-01-17 advised FRA to limit the current blanket exception for PAT testing after highway-rail grade crossing accidents to allow PAT testing when an accident was likely due to human factors or involved a regulated employee fatality.

This NPRM also proposes amendments based on a retrospective review of part 219, which FRA has been implementing for more than 25 years. These amendments, which reflect practical lessons FRA has learned, are necessary to update and simplify the regulation's requirements.

Costs and Benefits of Proposed Rule

The proposed rule would impose costs that are outweighed by the quantified safety benefits. For the 20-year period analyzed, the estimated costs that will be imposed on industry total approximately $24 million (undiscounted), with discounted costs totaling $14.2 million (Present Value (PV), 7 percent) and $18.9 million (PV, 3 percent). The estimated quantified benefits for this 20-year period total approximately $115.8 million (undiscounted), with discounted benefits totaling $57.4 million (PV, 7 percent) and $83.6 million (PV, 3 percent).

The costs would primarily be derived from implementation of the statutory mandate to expand the scope of part 219 to cover MOW employees. The benefits will primarily accrue from the expected injury, fatality, and property damage avoidance resulting from the expansion of part 219 to cover MOW employees, as well as the PAT testing threshold increase. The table below summarizes the quantified costs and benefits expected to accrue over a 20-year period from adoption of the proposed rule and identifies the statutory costs and benefits (those required by the RSIA mandate to expand part 219 to MOW employees) and the discretionary costs and benefits (those that are due to the non-RSIA requirements that FRA is proposing).

20 Year costs

Statutory

Discretionary

PAT Testing Costs—Adding MOW

$52,000

PAT Testing Costs—Impact Def + Xing

$241,974

Reasonable Suspicion Testing Costs

842,398

Pre-Emp. Testing Costs—Adding MOW

673,897

Pre-Emp. Testing Costs—Sm. RR

29,904

Random Testing Costs

20,863,074

Annual Report Costs

160,911

Recordkeeping Requirements Costs

1,397,840

Total Costs

23,990,121

271,878

24,261,999

20 Year Benefits

Statutory

Discretionary

Accident Reduction Benefits

115,369,281

PAT Testing Threshold Reduction Benefits

388,295

Total Benefits

115,757,576

II. Statutory Authority and Proceedings to Date

Currently, part 219 applies only to covered employees, defined in § 219.5 as individuals who perform covered service subject to the HOS laws at 49 U.S.C. 21103, 21104, or 21105. In Section 412 of the RSIA (Section 412), Congress directed the Secretary to “revise the regulations prescribed under section 20140 of title 49, United States Code, to cover all employees of railroad carriers and contractors or subcontractors to railroad carriers who perform maintenance-of-way activities.” The Secretary has delegated this responsibility to the FRA Administrator.

See

49 CFR 1.89(b);

see also

49 U.S.C. 103(g). The RSIA does not define MOW activities.

When the RSIA was enacted in 2008, FRA was already conducting a retrospective analysis of part 219, looking for ways to clarify the regulations and make the requirements less burdensome. This NPRM therefore proposes both amendments that would incorporate MOW employees and amendments suggested by FRA's retrospective analysis of part 219.

As explained above, part 219 incorporates the alcohol and drug testing procedures found in part 40, which is published and administered by ODAPC. For this reason, FRA did not consult with the Railroad Safety Advisory Committee (RSAC) on this proposed rule. Instead, FRA gathered information and suggestions from railroads, labor organizations, and other stakeholders at railroad industry meetings. For example, railroad industry stakeholders provided statistics about the number of employees of railroads and contractors to railroads who perform MOW activities and submitted suggestions on how FRA should define MOW activities.

III. Expansion of Part 219 to Employees Who Perform MOW Activities

In this NPRM, FRA is proposing to expand the scope of part 219 to include employees who perform MOW activities (MOW employees). As discussed above, the term “employee,” as used in this NPRM, includes employees, contractors, subcontractors, volunteers, and probationary employees. Accordingly, the term “MOW employee” includes any individual performing MOW activities for a railroad, whether employed directly by the railroad, employed by a contractor or subcontractor to the railroad, or a volunteer for the railroad. MOW employees are at a high safety risk because they work along railroad track and roadbed and may suffer injury or death as a result of being struck by trains or other on-track or fouling equipment. Additionally, MOW employees directly affect the safety of railroad operations because they work on or near railroad tracks, operate on-track or fouling equipment, and assist in directing trains through work areas. The purpose of expanding part 219 to include MOW employees is to improve safety by reducing the rate of alcohol and drug use among the MOW employee population.

Background

On January 9, 2007, a southbound Massachusetts Bay Transit Administration (MBTA) passenger train, operated by the Massachusetts Bay Commuter Railroad (MBCR), struck a track maintenance vehicle that was on the track near Woburn, Massachusetts.

See

NTSB, Railroad Accident Report: Collision of Massachusetts Bay Transportation Authority Train 322 and Track Maintenance Equipment Near Woburn, Massachusetts, NTSB/RAR-08/01, PB2008-916301, Mar. 18, 2008, at 1,

available at

http://www.ntsb.gov/doclib/reports/2008/RAR0801.pdf

(“Woburn Report”). At the time of the collision, six MBCR MOW employees were replacing crossties and were working on or near the track maintenance vehicle. The train rounded a curve at 62 mph and struck the track maintenance vehicle. The MOW workers had only about 15 seconds warning before the collision.

Id.

at 17. Two of the MBCR employees, a track foreman and a track worker/welder, were killed, and two were seriously injured. The NTSB investigated the collision and determined that one of its probable causes was the failure of the MOW crew to apply a shunting device that would have provided redundant signal protection for their track segment.

An MBCR rule required the crew to have a shunting device at the end of the work area every time a track was taken out of service for maintenance. The track foreman in charge of the MOW crew, however, had not complied with this rule.

Id.

at vi and 17.

The NTSB also found that a probable cause of the accident was the failure of the train dispatcher to maintain blocking that provided signal protection for the track segment occupied by the MOW crew.

See id.

at vi.

While the MOW employees involved in the MBTA accident were not covered employees, § 219.203(a)(4)(ii) requires PAT testing on the remains of any railroad employee fatally injured in a train accident or incident. The PAT testing results for the fatally injured foreman involved in the MBTA accident showed that that he had likely used marijuana within three hours of his

death. The NTSB concluded that the foreman's performance would likely have been measurably impaired at the time of the accident by his recent use of marijuana. The NTSB also concluded that the foreman's positive drug test result was “not an isolated incident among MBCR maintenance-of-way employees.”

Id.

at 19. Between December 2003 and January 2007, the MBCR had four fatalities, one critical injury, and one potentially serious incident involving MOW employees.

Id.

Seven MOW employees were tested for drugs and/or alcohol as a result of these incidents.

Id.

(Four fatally injured employees were tested under FRA authority, and three surviving employees were tested under MBCR's company authority.

Id.

) Of the seven MOW employees tested, four had positive results, and one employee submitted a specimen that was a negative dilute which may have masked a positive.

Id.

The NTSB found that this high rate of positive test results was symptomatic of a substance abuse problem among MBCR MOW employees.

Id.

As part of its investigation of this accident, the NTSB reviewed industry-wide PAT testing data for accidents involving MOW employee fatalities. Over the 10-year period ending January 9, 2007, FRA PAT testing of 26 MOW fatalities resulted in 5 positive test results, a positive rate of 19.23%.

Id.

at 19. In contrast, the overall PAT testing positive rate for covered employees was only 6.56%.

Id.

The NTSB concluded that these results showed greater alcohol and drug use among MOW employees than among covered employees subject to part 219.

Id.

Thus, the NTSB determined that alcohol and drug use by MOW employees in the railroad industry was a safety concern.

Id.

at vi and 19.

The NTSB noted that FRA data indicate that MOW employees are about three times more likely to have positive test results than covered employees (19.23% positive for MOW employees vs. 6.56% positive for covered employees).

See

Woburn Report at 20. Attributing this difference “to the deterrent value of the FRA's random testing program to which covered employees are subject but maintenance-of-way employees are not,” the NTSB recommended that FRA revise its definition of covered employee to include all railroad employees and contractors who perform FRA safety-sensitive functions, as defined by §§ 209.301 and 209.303.

See

NTSB Recommendation R-08-07.

Section 209.303 lists the safety-sensitive functions that an individual may be disqualified from performing if he or she has been found unfit to do so after committing a FRA safety violation.

See

§ 209.301. If FRA expanded the scope of part 219 to cover the safety-sensitive functions listed in § 209.303, it would include not only covered employees, as currently defined, but all railroad employees and contractor employees (including managers and supervisors) who: (1) Inspect, install, repair, or maintain track and roadbed; (2) inspect, repair, or maintain locomotives, passenger cars, and freight cars; (3) conduct training and testing of employees when required to do so by the FRA's safety regulations; (4) perform service subject to the Transportation of Hazardous Materials Law (Hazmat Law);

(5) supervise and otherwise direct the performance of the safety-sensitive functions; or (6) are in a position to direct the commission of violations of any FRA safety regulation. As discussed below, FRA does not currently believe that it is necessary to expand part 219 beyond railroad employees (including contractors, subcontractors, volunteers and probationary employees) who perform covered service and/or MOW activities for a railroad.

The Transportation of Hazardous Materials Laws are located at 49 U.S.C. ch. 51. Under 49 U.S.C. 5103, the Secretary is directed to prescribe regulations for the “safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce.” These regulations apply to a person who performs a broad range of activities, including testing a “packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce” and “certif[ying] compliance with any requirements under this chapter.” Such activities generally are not related to what would be considered railroad MOW activities.

The Secretary delegated the authority to issue these regulations to the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the resulting regulations are found at 49 CFR subtitle B, ch. 1. The broad extent of these regulations go far beyond what would be an appropriate scope for FRA's alcohol and drug regulation.

FRA's Proposed Definition of “MOW Activities”

In response to the mandate contained in Section 412 and NTSB Recommendation R-08-07, FRA is proposing to expand part 219 to include employees who perform MOW activities, as defined in proposed § 219.5. FRA's proposed definition of MOW activities includes the following: (1) The inspection, repair, or maintenance of track, roadbed, or electric traction systems; (2) the operation of on-track or fouling equipment utilized for the inspection, repair, or maintenance of track, roadbed, or electric traction systems; (3) the performance of flagman or watchman/lookout duties; (4) the obtaining of on-track authority and/or permission for the performance of activities described by the proposed definition; or (5) the granting of on-track authority and/or permission for operation over a segment of track while workers are performing activities described by the proposed definition.

In drafting its proposed definition of “MOW activities,” FRA drew from § 209.303's definition of FRA safety-sensitive functions and identified those activities that most closely fit the common understanding of MOW activities in the railroad industry. Based in part on feedback from stakeholders, FRA determined that these activities include the inspection, installation, repair, or maintenance of track and roadbed.

See

§ 209.303(b)(1). Individuals performing such activities work along railroad track and roadbed and may suffer serious injury or death from being struck by trains or other on-track or fouling equipment. These individuals also directly affect the safety of railroad operations because they work on or near railroad tracks, operate on-track or fouling equipment, and authorize or direct trains through working limits.

In contrast, individuals performing the other FRA safety-sensitive functions listed in § 209.303 do not typically experience the same type of safety risks because they generally do not work on or around a railroad's track or roadbed. Individuals who inspect, repair, or maintain locomotives, passenger cars, and freight cars, as described by § 209.303(b)(2), generally perform these functions in locomotive or car repair facilities subject to blue flag protection.

See

49 CFR part 218, subpart B. Individuals who conduct training and testing of employees required by FRA safety regulations, as described in § 209.303(b)(3), may conduct such training without ever approaching a railroad track or roadbed. Individuals who perform service subject to the Hazmat Law may sometimes do so on or near a track or roadbed, but this is not necessarily the case. Nevertheless, any individuals performing the above activities would fall within the proposed expanded scope of part 219 if they otherwise perform covered service or MOW activities as defined in this NPRM.

Once FRA decided to begin its MOW activities definition with the language from § 209.303(b)(1), it decided to remove “install” from the definition because part 219 applies only to railroads that operate on track that is part of the general railroad system of

transportation.

See

§ 219.3(a). By not including the word “install” in its proposed MOW activities definition, FRA would exclude the installation of track that has not yet been incorporated into the general railroad system of transportation. Rebuilding a track that is already part of the general system of transportation, however, would be covered by the definition because it would be considered repair or maintenance. Essentially, work on a track would be covered under the proposed MOW activities definition once the track became part of the general system of transportation and subject to FRA's track safety standards in 49 CFR part 213. FRA is specifically requesting public comment, however, on whether the installation of new track should be considered a MOW activity, and whether its proposed definition would improperly exclude other installation work that should be considered a MOW activity.

FRA also decided, however, that its proposed definition of MOW activities should specifically include employees who work on electric traction systems. Electric traction is a wayside electric distribution system (such as an overhead catenary or third rail) that a railroad can utilize for locomotion in lieu of locomotive diesel engines. Electric traction systems also include various pieces of equipment that can be found along the railroad's right-of-way, such as power stations, power sub-stations, breaker sites, power feed lines, catenary towers, and power dispatching offices. Currently, Amtrak and other commuter railroads use electric traction systems.

FRA also concluded that the definition of MOW activities should specifically include employees who perform duties as flagmen or watchmen/lookouts. While flagmen or watchmen/lookouts may not be directly engaged in the inspection, repair, or maintenance of track, roadbed, or electric traction systems, they are generally working in the foul of track and are providing on-track safety for employees who are engaged in such activities. For example, a flagman may be responsible for keeping all trains and on-track equipment clear of the working limits within which MOW activities are being performed.

See

§ 214.7. Watchmen/lookouts are also responsible under § 214.329 for providing train approach warnings to MOW employees who foul any track outside of working limits.

Since flagmen and watchmen/lookouts must stay alert at all times to properly perform these safety-critical job duties, it would run counter to safety purposes to exclude their duties from FRA's proposed definition of MOW activities. FRA is proposing to define “flagman” and “watchman/lookout” in § 219.5 as those terms are currently defined in FRA's roadway worker regulations.

See

§ 214.7. Because these definitions have already been established by part 214, the railroad industry is already familiar with their meaning and application.

While § 214.329 is phrased in terms of watchmen/lookouts providing train approach warning to

roadway workers,

FRA notes that the definition of “roadway worker” in § 214.7 (discussed further below) is not craft-specific and would likely include any MOW employee (as defined in this NPRM) fouling a track outside of working limits. Any MOW employee fouling a track outside of working limits would therefore require a train approach warning by one or more watchmen/lookouts under § 214.329.

FRA notes that the term flagman is also used by the railroad industry to describe an employee (e.g., a “conductor flagman”) who obtains on-track authority for contractors that are not contractors to a railroad and therefore not roadway workers. The general public also understands flagman to mean a person who flags highway traffic during highway construction or grade crossing projects. In this NPRM, FRA is proposing to define “flagman” solely as defined in § 214.7, rather than in the sense of “conductor-flagman” or “highway-traffic-flagman.”

For illustration purposes, part 219's proposed MOW activities definition would include (but not be limited to) the following activities: (1) The clearing of snow and ice from track and switches (but not from passenger station platforms, as discussed below); (2) the operation of on-track or fouling equipment used for repair/maintenance purposes such as tampers, tie-throwers, ballast machines, weed sprayers, etc. or working with such equipment; (3) the operation of on-track rail inspection vehicles; (4) the requesting or granting of authority to occupy a segment of track for the purpose of performing MOW activities; and (5) the requesting or granting of permission for a train to proceed through MOW working limits. The above list is not exhaustive, and FRA is specifically requesting public comment on whether there are other functions that should be considered MOW activities that may not be included in its proposed definition. FRA is specifically interested in whether it should consider duties already covered by the alcohol and drug testing requirements of the Federal Motor Carrier Safety Administration (FMSCA) as MOW activities, when those duties also impact the safe performance of MOW activities (e.g., the operation of tractor-trailers or other equipment for the purpose of loading or unloading MOW equipment or supplies onto or within the foul of the track).

FRA proposes, however, to exclude the following types of activities from the definition of MOW activities: (1) The clearing of snow and ice from passenger station platforms; (2) other passenger station maintenance, such as painting, cleaning, sweeping platforms, etc.; (3) activities performed by individuals who are not engaged by or under contract to a railroad, such as workers who are installing cable for a public utility company or constructing a bridge for a government highway agency; (4) railroad bridge

work that is not on the track or within four feet of the nearest rail (on a horizontal plane), such as painting the base of a bridge or diving to inspect a bridge structure; (5) engagement as a tractor-trailer operator solely for the purpose of hauling MOW equipment to and from a work site (although such persons would be included in the definition if they were engaged in loading or unloading MOW equipment or supplies onto or within the foul of the track); and (6) emergency work that is wholly the result of a natural disaster, such as a flood, tornado, or mudslide. As with the list of included activities above, this list of excluded activities is not exhaustive, and FRA is requesting public comment on what, if any, other activities should be specifically excluded from the definition of MOW activities.

Under § 214.7, a “railroad bridge” is a structure supporting one or more railroad tracks above land or water with a span length of 12 feet or more measured along the track centerline. This includes the entire structure between the faces of the backwalls of abutments or equivalent components, regardless of number of spans, and includes all such structures, whether constructed of timber, stone, concrete, metal, or any combination of these materials. Under § 237.5, a “railroad bridge” is any structure with a deck, regardless of length, which supports one or more railroad tracks, or any other undergrade structure with an individual span length of 10 feet or more located at such a depth that it is affected by live loads.

See

49 CFR part 237, appendix A—Supplemental Statement of Agency Policy on the Safety of Railroad Bridges.

FRA is also specifically requesting public comment on whether the proposed MOW activities definition should include any of the following activities: (1) Boring a pipe under a track; (2) paving a highway-rail grade crossing; (3) placing detour or other signs in conjunction with grade crossing work; (4) operating cranes for the loading and unloading of MOW equipment, regardless of whether or not that equipment is being loaded onto or within the foul of a track; (5) clearing and repairing a railroad track following an accident or incident; and (6) operating a bridge if the employee is not covered under the HOS laws.

FRA notes that the proposed definition of MOW activities in part 219 is narrower than the definition of roadway worker duties in § 214.7 of

FRA's railroad workplace safety rule (part 214). Consequently, a roadway worker as defined in part 214 may perform duties that would not be considered MOW activities as defined in part 219. For example, an employee who performs passenger station maintenance is performing roadway worker duties under part 214 (since a passenger station is considered a “roadway facility” under § 214.7) but would not be performing MOW activities under part 219, so that performance of these duties would make the employee subject to part 214 but not to part 219. If FRA incorporates its proposed definition of MOW activities into part 219, railroads would be required to distinguish between roadway workers as defined in part 214 and MOW employees as defined in part 219, and to realize that individuals may require roadway worker protection even if they are not performing MOW activities. The proposed MOW activities definition differs from the definition of roadway worker duties because it focuses exclusively on the nature of the activities being performed, and does not consider an employee's proximity to the track. Unlike under the roadway worker duties definition, MOW activities do not need to be performed either “on or near track or with the potential of fouling a track.” FRA is requesting public comment on how to make clear the differences between its proposed MOW employee and MOW activity definitions in part 219 and the roadway worker definition in § 214.7. FRA is also asking for input on the scope of its proposed definitions, and the safety concerns that involve individuals performing MOW activities.

“Regulated Employees” and “Regulated Service”

To implement the expansion of part 219 to cover MOW employees, FRA is proposing to add two new definitions to § 219.5: “Regulated employee,” which would refer to an any employee who is subject to part 219 (whether a covered or MOW employee) and a corresponding term, “regulated service,” which would refer to all activities subject to part 219 (again, both covered service and MOW activities). Together, these two proposed terms-of-art would encompass all individuals and duties subject to part 219, and would substitute for the awkward terms “covered employees and maintenance-of-way employees” or “covered service and MOW activities.” FRA believes these proposed definitions would make its RSIA-mandated addition of MOW employees easier to understand and implement, but is requesting public comment on whether its proposed definitions would be clearly understood to refer to both covered service and MOW employees and duties.

Alternatives Considered for Part 219 Expansion

Before proposing to expand the scope of this rule to cover MOW activities as defined above, FRA considered two alternative approaches for meeting the statutory mandate of Section 412. Although FRA is not proposing to adopt either alternative, FRA is requesting input on each approach's feasibility in comparison to the approach proposed in this NPRM. FRA is also requesting public comment on whether there are other approaches it should consider.

1. Alternative No. 1: Adopt the “roadway worker” definition in § 214.7.

FRA initially considered adopting § 214.7's definition of “roadway worker,” since it is an established definition with which the railroad industry is familiar. As defined by § 214.7, “roadway worker” includes any employee of a railroad (or a contactor to a railroad) who inspects, constructs, maintains, or repairs railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery “on or near track or with the potential of fouling a track.” This definition of roadway worker also includes flagmen and watchmen/lookouts.

Although FRA initially assumed that the roadway worker population is generally the same as that of employees who perform MOW activities, FRA ultimately concluded that this is not so since § 214.7 defines railroad employees (including employees of contractors to a railroad) as roadway workers if they perform any of the section's listed duties “on or near the track or with the potential to foul the track.” This particular language applies to individuals performing duties that would not be considered MOW activities, such as maintenance of roadway facilities that could involve fouling the track. Individuals performing such duties may qualify as roadway workers, but they are not generally considered to be MOW employees if their activities do not involve work on track or roadbed.

Furthermore, as used in part 214, a roadway worker is defined as any employee who performs one or more of the duties listed that has the potential of fouling a track, and this definition determines which employees must be provided roadway worker training and on-track protection in certain situations. In part 214, this broad language is not problematic because it is relatively easy for a railroad to provide employees with roadway worker training and on-track protection on short notice. However, FRA believes that adopting part 214's roadway worker definition would make it difficult for railroads and contractors to comply with the expanded scope of part 219, since part 219 elements often require advance planning before implementation For example, to establish an effective random testing program that meets FRA's minimum random testing rates, a railroad would first have to identify all employees and contractors who may ever perform duties qualifying them as roadway workers.

Therefore, while FRA considered adopting the § 214.7 roadway worker definition, FRA concluded that this definition was too broad for part 219 purposes. Nonetheless, FRA is requesting public comment on this alternative.

2. Alternative No. 2: Include all employees who perform FRA safety-sensitive functions under §§ 219.301 and 209.303.

As a second alternative approach, FRA considered implementing NTSB recommendation R-08-07 in its entirety by expanding part 219 to cover all employees who perform FRA safety-sensitive functions under §§ 209.301 and 209.303. For the reasons discussed below, FRA has determined that it is currently unnecessary to expand the scope of part 219 to such an extent.

As discussed above, FRA believes that in addition to the covered employees already subject to part 219, MOW employees occupy the most at-risk safety-sensitive positions in the railroad industry. Their duties regularly require them to work on or alongside track and roadbed, putting them at risk for being struck by a train or other on-track or fouling equipment. MOW employees also greatly impact safety because their activities can directly interfere with the movement of trains or other on-track equipment. Furthermore, as discussed above, the NTSB based recommendation R-08-07 upon its findings that illegal drug use by MOW employees may have played a role in a 2007 fatal MBTA accident, and that test data from FRA's PAT testing program showed an alcohol and drug use problem in the MOW employee population.

See

Woburn Report at 19-20.

In contrast, as discussed earlier, individuals who perform the other FRA safety-sensitive functions listed in § 209.303 (e.g., individuals who inspect, repair, or maintain locomotives,

passenger cars, and freight cars) do not pose or have similar safety risks because these functions, unlike MOW activities, are typically performed in designated shop areas or on track designated as repair track and, as such, individuals performing these functions are not subject to the same risks as individuals working on or around railroad track over which normal railroad operations are taking place. Furthermore, employees who perform § 209.303 safety-sensitive functions but are neither covered employees nor MOW employees have a lower PAT testing positive rate than those who perform MOW activities. From January 1997 to August 2010, FRA conducted PAT tests on 14 fatally injured employees who were neither covered employees nor MOW workers. Only one of these fatalities tested positive, resulting in a PAT testing positive rate of 7.14% for fatalities who were neither covered employees nor MOW workers, which is comparable to the 6.56% PAT testing positive rate for covered employees cited by the NTSB in its report on the MBTA accident.

See

Woburn Report at 20. In comparison, the NTSB's examination of the PAT testing results from MOW fatalities found a positive rate of 19.23%, about three times as high as that for covered employees.

Id.

FRA is therefore not proposing at this time to apply part 219 to those § 209.303 safety-sensitive employees who are neither covered employees nor MOW employees. Accordingly, as proposed, the expanded scope of part 219 would not cover all § 209.303 safety-sensitive employees, as recommended by the NTSB. FRA believes this more limited scope is not only data-driven but appropriate given the need to minimize the burden and costs of implementing the mandate of Section 412. However, as with the first alternative approach discussed above, FRA is requesting public comment on this alternative.

MOW Employees and the Small Railroad Exception

Since the inception of its alcohol and drug program in 1985, FRA has used the number of covered employees a railroad has (including covered service contractors and volunteers) as one factor in determining the railroad's risk of alcohol and drug-related accidents.

See

50 FR 31529, Aug. 2, 1985. For example, FRA believes that generally small railroads, defined as those railroads that have 15 or fewer covered employees and no joint operations with other railroads, pose a lower risk of alcohol and drug-related accidents than larger railroads. Existing part 219 therefore requires larger railroads (defined as those railroads that either have 16 or more covered employees or are engaged in joint operations) to implement all of part 219, while small railroads have to implement only certain subparts of part 219. Currently under § 219.3, small railroads do not have to comply with subpart D (reasonable suspicion and reasonable cause testing), subpart E (identification of troubled employees), subpart F (pre-employment testing) and subpart G (random alcohol and drug testing).

The purpose of this small railroad exception is to limit part 219's regulatory burden on small railroads without adversely affecting safety.

As discussed later in this preamble, FRA is proposing to modify the small railroad exception of § 219.3 so that small railroads would no longer be exempt from the reasonable suspicion and pre-employment testing requirements of part 219.

FRA's use of a railroad's number of covered employees and participation in joint operations as measures of the railroad's risk of alcohol and drug-related accidents is a well-established approach with which the railroad industry is familiar. FRA is therefore proposing to continue counting only a railroad's covered employees for purposes of determining whether the railroad qualifies for the small railroad exception, particularly since FRA has found no safety rationale for doing otherwise. This would minimize implementation burdens by continuing to except a small railroad from full part 219 coverage provided that the railroad continues to meet § 219.3 criteria.

With respect to a contractor who performs MOW activities for a railroad, FRA proposes to amend § 219.3 to apply part 219 to a MOW contractor to the same extent as it applies to the railroad for which the MOW contractor performs regulated service. As proposed, a contractor's level of part 219 compliance would be determined by the size of the railroad for which it is performing regulated service, regardless of the size of the contractor itself. To achieve this, FRA is proposing to add new language to the small railroad exception. Pursuant to this new language, if a contractor performs MOW activities exclusively for small railroads that are excepted from full compliance with part 219, the contractor would also be excepted from full compliance. For example, a MOW contractor with five employees who perform regulated service for a large railroad would have to implement a full part 219 program if the railroad for which it performs regulated service is required to do so, while a MOW contractor with 20 employees would not have to implement a full part 219 program if it performs regulated service for a small railroad that is excepted from full compliance with part 219.

FRA recognizes that a MOW contractor may perform regulated service for multiple railroads, not all of which may be required to comply fully with part 219. To simplify application, FRA is proposing to add new language to the small railroad exception requiring a MOW contractor who performs regulated service for multiple railroads to implement a full part 219 program if the contractor performs regulated service for at least one large railroad fully subject to part 219. Under this proposal, if a MOW contractor performs regulated service for at least one large railroad, it would have to incorporate all of its regulated employees into a full part 219 program, even if only some of these employees perform regulated service for a large railroad, and regardless of whether or not a particular employee was currently performing regulated service for a large or a small railroad. This approach would allow a MOW contractor the flexibility to allocate its employees effectively and efficiently by allowing it to use any of its employees to perform regulated service for a large railroad on any given day.

Although FRA considered amending the small railroad exception to allow a railroad to qualify for the small railroad exception if it did not have joint operations and the combined number of its covered employees and MOW workers was 15 or fewer, FRA ultimately decided that this approach would create several difficulties. For example, a railroad with 15 covered employees and five MOW employees that currently qualifies as a small railroad would become fully subject to part 219 if FRA counted the five MOW employees towards the 15 or fewer cutoff. FRA believes it would be unfair for a railroad's status to change simply because MOW employees were added to the count, without any actual change to the railroad's operations or the risks they would pose.

Counting MOW contractors for purposes of the small railroad exception would present even more difficult issues. While § 219.3 currently counts contractor employees who perform covered service for a railroad for purposes of the small railroad exception, this approach has not been problematic because railroads generally hire covered service contractors, such as locomotive engineers, conductors, or train dispatchers, on a long-term basis. Similarly, the demand for signal service contractors is also stable, so it is fairly easy for a railroad to count its number

of covered service employees and contractors at any given time.

In contrast, MOW work is variable, and MOW contractors frequently move from railroad to railroad. It is not unusual for a MOW contractor to perform work for a railroad only on a one-time basis. Including MOW contractors for purposes of the small railroad exception count could therefore create a situation where a railroad's status would vary from week to week. For instance, a railroad that loses its small railroad status after hiring MOW contractors to perform non-routine track maintenance could revert to small railroad status once its short-term contract with the MOW contractors expired. If a railroad no longer qualifies for small railroad status, it is no longer excepted from the requirement to implement a random testing program. Adoption of criteria that could result in short-term fluctuations in a railroad's status and requirements would be impracticable because implementation of a random testing program is generally a long-term commitment that involves contracting with collectors and other service providers.

FRA also does not want to encourage the hiring of MOW contractors in lieu of MOW employees. Accordingly, for purposes of determining whether a railroad qualifies for the small railroad exception, since FRA is proposing to exclude contractor employees who perform MOW activities, FRA similarly proposes to exclude railroad employees who perform MOW activities. Furthermore, counting a railroad's MOW employees but not its MOW contractors would inaccurately reflect the safety risk presented by the railroad's total MOW worker population.

FRA is proposing to maintain its current criteria for the small railroad exception, but is specifically requesting comment on the following questions:

• Should FRA amend the small railroad exception to consider MOW employees? If so, should FRA amend its current threshold of 15 employees to account for the increased population of individuals performing MOW activities and covered service?

• Do railroads that currently meet the small railroad exception of § 219.3 currently perform reasonable cause or random drug and alcohol testing under their own authority? If so, how does this small railroad company testing authority differ from the reasonable cause or random drug and alcohol testing conducted by larger railroads that fully complies with part 219? Should railroads that meet the existing small railroad exception also be required to fully comply with part 219?

• In light of the changes in the railroad operating environment since the inception of the small railroad exception, are there other approaches to the small railroad exception that FRA should consider? For example, given the criticality of ensuring the safety of all rail passenger operations (whether the operations are large or small), should the small railroad exception be modified, more narrowly tailored, or removed altogether for passenger operations? Similarly, given the increase in the volume and frequency of the rail transportation of DOT-regulated hazardous materials in recent years (e.g., flammable liquids), should the small railroad exception be modified, more narrowly tailored, or removed altogether if a railroad transports hazardous materials? For example, should the small railroad exception be limited to railroads that do not transport hazardous materials or that transport only certain low hazard hazardous materials? Should the exception be limited to railroads that do not transport hazardous materials above a certain threshold quantity? FRA is requesting information on the operations of small railroads as defined under § 219.3: How many of these small railroads transport passengers and how many currently transport hazardous materials? For those small railroads that transport hazardous materials, what types of hazardous materials do they transport?

Although in this NPRM, FRA is not proposing to modify its criteria for determining when a railroad meets the small railroad exception, FRA may do so in the final rule after consideration of any comments received in response to the above questions.

Railroad and Contractor Responsibility for Compliance

FRA is proposing to hold both the railroad and the contractor responsible for ensuring that contractor employees performing regulated service for a railroad (contractor regulated employees) are in compliance with part 219. Since § 219.9 currently provides that every person—including railroad agents and contractors—who violates or causes a violation of a part 219 requirement may be subject to a civil penalty, both railroads and contractors performing covered service for railroads are already responsible for part 219 compliance. FRA is stressing this provision because the expansion of part 219 to cover MOW employees would also subject a large population of MOW contractors to its requirements.

While the RSIA-mandated expansion of part 219 to cover MOW employees may create complications for a railroad with a large number of MOW contractors, particularly if those contractors perform MOW activities for the railroad only on a periodic or temporary basis, there are several methods that a railroad and a regulated service contractor could use to ensure compliance with part 219. If a regulated service contractor is required to establish a random testing program because it provides regulated service for a railroad that is fully subject to part 219, the contractor could do any of the following:

• Establish its own part 219 program and provide the railroad with documentation of its compliance with part 219. The railroad should maintain this documentation for FRA audit purposes. If the contractor's documentation or program contains a deficiency or violation that the railroad could not have reasonably detected, FRA could use its enforcement discretion to take action solely against the contractor. As discussed earlier in the preamble, the extent of a regulated service contractor's responsibilities would be determined by the size of the railroad(s) with which it contracts.

• Contract with a consortium to administer its part 219 program. The consortium could either place the contractor's regulated employees in a stand-alone random testing pool or in a random testing pool with the regulated employees of other regulated service contractors. The contractor could then submit documentation of its membership in the consortium and its compliance with part 219 to the contracting railroad. As with the method described above, if the contractor's documentation or program contains a deficiency or violation that the railroad could not have reasonably detected, FRA could use its enforcement discretion to take action only against the contractor. Upon request, FRA would assist a railroad in reviewing the part 219 documentation of its regulated service contractors.

• Have a railroad incorporate contractor employees who perform regulated service for it into the railroad's own part 219 program.

To minimize the burden of these proposed requirements and to promote compliance with part 219, FRA has developed model “fill-in-the-blank” alcohol and drug policies (including testing plans) that can serve as templates for both railroads and contractors. These plans are currently available at FRA's Web site:

http://www.fra.dot.gov/Page/P0345.

FRA

developed one set of plans for entities that are subject to all of part 219 and another for entities that qualify for the small railroad exception.

FRA expects it to be common practice for a railroad to incorporate into its own part 219 program all of the contractor employees who perform regulated service for it, even if one or more of the contractors has its own part 219 program. A railroad that does so would ensure that all of its contractor regulated employees are in compliance with part 219 requirements, particularly the random testing requirements of subpart G. A railroad that chooses this approach would incorporate all contractor regulated employees into the railroad's own random testing program.

One additional option would be for a railroad to accept a contractor's plan for random testing, regardless of whether that plan was managed by the contractor or by a consortium/third party administrator (C/TPA). Although not specifically proposed in the rule text, FRA is soliciting feedback on the following approach that could create a framework for a railroad wishing to accept a contractor's random testing plan. Under this approach, if a railroad accepted a contractor's random testing plan, the contractor could be required to comply with the following requirements:

• To certify in writing to the railroad that all of the contractor's regulated employees are subject to alcohol and drug testing as required by part 219 (including, as applicable, the requirements that all regulated employees be subject to selection for random testing as required by subpart G, have a DOT pre-employment drug test resulting in a negative result under subpart F, and be subject to a previous employer background check as required by § 40.25); and

• To report, in an FRA model format, summary part 219 testing data to the railroad at least every six months.

FRA is soliciting public comment on whether the last alternative described above would make it easier for a railroad to ensure that its regulated contractor employees were complying with the requirements of part 219, without having to incorporate the contractor's regulated employees into its own part 219 program. If not, how could this approach be improved? What costs, if any, would it impose? Would contractors performing regulated service for railroads be willing to comply with the proposed requirements for written certification and reporting of summary testing data? Are there other approaches that both railroads and contractors could use to ensure that all contractor employees performing regulated service for a railroad are in compliance with part 219?

MOW Employee Random Testing Rate and Minimum Random Testing Pool Size

As mentioned above, FRA is proposing to require random alcohol and drug testing for MOW employees (unless they perform regulated service solely for a railroad qualifying for the small railroad exception of § 219.3). As with covered employees, FRA would set the minimum random rates for MOW employees according to the overall reported random testing violation rate for MOW employees in the railroad industry.

See

§§ 219.602 and 219.608. Because MOW employees have never been subject to FRA random testing before, FRA only has data from its PAT testing of MOW fatalities (described above) on the prevalence of prohibited alcohol and drug use in the MOW employee population. FRA is therefore proposing to set the initial minimum annual percentage rates for MOW employees at 50% for drug testing and 25% for alcohol testing Although the initial minimum random rates for MOW employees would be higher than those currently set for covered employees,

FRA set the same initial minimum random rates for covered employees. (FRA required random drug and alcohol testing for covered employees in 1988 and 1995, respectively.

See

53 FR 47123, Nov. 21, 1988 and 59 FR 7448, Feb. 15, 1994).

In 2014 the random testing rates for covered employees are 25% for drug testing and 10% for alcohol testing. (

See

78 FR 78275, Dec. 26, 2013).

Railroads would initially be required to establish and maintain separate random testing selection pools for MOW employees. Maintaining distinct random testing pools for covered and MOW employees would make it easier for railroads to comply with the different minimum testing rates set for each employee population. Requiring separate random testing pools would also make it easier for railroads that are required to file an annual Management Information System (MIS) report under § 219.800 to report separate random testing results for covered and MOW employees. FRA would in turn use the data from these separate pools to set the future minimum random rates for covered and MOW employees.

Under existing § 219.3, a railroad with 15 or fewer covered employees must conduct random testing if it has joint operations with another railroad, even though the railroad's small size may diminish the deterrence effect of the testing. The purpose of random testing is to make every regulated employee expect that he or she could be subject to a random alcohol or drug test any time he or she is on-duty and subject to performing covered service. FRA is concerned that the random testing conducted by very small railroads and contractors may have an insufficient deterrence effect. For example, a railroad with two covered employees and joint operations need only conduct one random alcohol test to meet the 10% minimum alcohol testing rate; afterwards, the railroad's random alcohol testing program would cease to have any deterrent effect because its covered employees would know that the alcohol testing required for the year had already been completed. A contractor who is required to conduct random testing because it performs regulated service for large railroads would have a similar problem if it has only a very small number of regulated employees.

As will be further discussed below in the section-by-section analysis for §§ 219.611(c) and 219.613(d), FRA is proposing the following regulatory change in response to this concern. Any individual random testing pool required under subpart G (whether maintained by a railroad, contractor to a railroad, or a consortium) must contain at least four entries and at least one entry per quarter must be selected and tested, even if doing so would require testing above FRA's minimum annual random testing rates. This new requirement would not excuse a railroad from complying with the minimum random testing percentage rates. (For example, a pool comprised of 16 MOW employees—who would be subject to random drug testing at a rate of 50%—would still be required to conduct at least eight random tests per year.) This requirement would apply both to railroads and contractors required to perform random testing.

MOW Employee Pre-employment Drug Testing

FRA is proposing to grandfather all current MOW employees from the pre-employment drug testing requirements of subpart F.

Under FRA's proposal, only MOW employees hired by a railroad or contractor after the effective date of the final rule would be required to have a negative DOT pre-employment drug test result before performing

regulated service for the first time. As with the minimum random testing rates discussed above, FRA's approach to implementing pre-employment drug testing for MOW employees would be similar to its implementation of pre-employment drug testing for covered employees in 1986, when FRA grandfathered employees who had performed covered service for a railroad prior to the effective date of the final rule.

See

50 FR 31508, Aug. 2, 1985. Although current MOW employees would not be subject to a pre-employment drug test, FRA believes its proposal to initiate random drug testing of MOW employees at a base rate of 50% would provide sufficient deterrence for this group.

While railroads are currently authorized to conduct pre-employment alcohol testing for covered employees (so long as they treat all covered employees the same), such testing is not required under subpart F.

See

§ 219.502. FRA is not proposing to change this approach and require pre-employment alcohol testing for regulated employees.

FRA understands that railroads may have already given some MOW employees a Federal pre-employment drug test (resulting in a negative) under the alcohol and drug testing regulations of another DOT agency. The most common area of interagency overlap is among MOW employees who are required by their employers to hold Commercial Driver's Licenses (CDL), since these employees are subject to the regulations of both FRA and the FMCSA. To hold a CDL, an individual must have a negative FMCSA pre-employment drug test.

See

§ 382.301. To ease the compliance burden for these employees and their employers, FRA would allow a negative pre-employment test conducted by an employing railroad under the rules and regulations of another DOT agency to satisfy the requirements of subpart F for employees transferring into regulated service for the first time. FRA has historically interpreted its pre-employment drug testing requirements this way, and this proposed amendment would incorporate this interpretation into the regulatory text.

See

Federal Railroad Administration, Alcohol and Drug Testing Regulations (Parts 219 and 40) Interpretive Guidance Manual (“Interpretive Guidance Manual”) 32 (September 2006),

available at http://www.fra.dot.gov/eLib/Details/L02799.

IV. Signal Contractors

Railroads and contractors should note that the RSIA made signal contractors subject to part 219. Effective July 16, 2009, section 108(a) of the RSIA amended the HOS laws by eliminating the words “employed by a railroad carrier” from the definition of “signal employee”.

See

49 U.S.C. 21101(4). As a result, contractor employees who install, repair, or maintain signal systems for a railroad are now considered covered employees under part 219, and signal contractors are responsible for compliance with part 219 to the same extent as any other covered service contractors. This statutory change does not necessitate any amendments to part 219. Nevertheless, FRA is mentioning this change to ensure that it is understood by the railroad industry.

V. Other Proposed Substantive Amendments

This section contains a brief overview of the proposed amendments in this NPRM other than those discussed above. These proposed amendments will be discussed in greater detail in the section-by-section analysis below.

A. Small Railroads Would No Longer Be Excepted From the Requirements for Reasonable Suspicion Testing and Pre-Employment Drug Testing

Currently, the small railroad exception in § 219.3(b)(2) provides, in part, that a railroad with 15 or fewer covered employees that does not engage in joint operations with another railroad is not subject to the requirements for reasonable suspicion or reasonable cause testing (subpart D), identification of troubled employees (subpart E), pre-employment drug testing (subpart F), or random testing (subpart G).

FRA is proposing to modify the small railroad exception so that small railroads are no longer excepted from the reasonable suspicion testing requirements of subpart D. Subpart D requires railroads to conduct Federal reasonable suspicion testing on a covered employee when one or more supervisors reasonably suspects that the employee has violated an FRA prohibition against the use of alcohol or drugs.

See

§ 219.300(a). Small railroads would continue to be excepted, however, from the requirements for reasonable cause testing.

As discussed in Section VI below, FRA is proposing to separate the requirements for reasonable suspicion and reasonable cause testing by leaving the reasonable suspicion requirements in their current location in subpart D and moving the reasonable cause testing requirements to a new subpart E.

FRA is also proposing to amend the small railroad exception so that small railroads are no longer excepted from subpart F, which requires a railroad to conduct a pre-employment drug test (resulting in a negative) on an individual before permitting him or her to perform regulated service for the first time.

See

§ 219.501(a). This proposed amendment would apply only to regulated employees hired by a small railroad after the effective date of a final rule (i.e., a negative pre-employment drug test would not be required for regulated employees hired by a small railroad before the effective date of any final rule issued in this proceeding).

B. For Purposes of the Small Railroad Exception, a new Definition of “Joint Operations” Would Be Incorporated

The small railroad exception is currently available to railroads that have 15 or fewer covered employees and do not operate on another railroad's tracks in the United States or otherwise engage in joint operations with another railroad in the United States, except as necessary for purposes of interchange.

See

§ 219.3(b)(2)(ii). While the small railroad exception uses the phrase “joint operations,” this term has never been defined in part 219. As a result, the meaning of “joint operations” has been open to different interpretations. In order to support uniform application of the small railroad exception, FRA is proposing to add a definition of “joint operations” to part 219.

C. The Post-Accident Toxicological (PAT) Testing Damage Threshold for Major Train Accidents Would Be Increased

Part 219 currently requires railroads to conduct PAT testing for major train accidents,

defined in part as train accidents that involve damage to railroad property of $1,000,000 or more.

See

§ 219.201(a)(1)(iii). (A train accident also qualifies as a major train accident if it meets the current reporting threshold and involves either a fatality or a hazardous materials release accompanied by an evacuation or a reportable injury resulting from the hazardous material release.

See

§ 219.201(a)(1)(i)-(ii).) FRA is proposing to increase the railroad property damage threshold for major train accidents to $1,500,000 to account for inflation. Since major train accidents require all involved crew members to be PAT tested, this proposed change would reduce the burden on railroads (e.g., employee opportunity and wage costs) by reducing the number of employees subject to PAT testing.

PAT testing is also required for events that meet FRA's criteria for impact accidents, fatal train incidents, or passenger train accidents.

See

§ 219.201(a)(2)-(4).

D. Derailment and Raking Collisions Would No Longer Be Excluded From the Definition of Impact Accidents

Part 219 also requires railroads to conduct PAT testing for impact accidents. Section 219.5 currently excludes from the definition of “impact accident” derailment accidents, where a derailment of equipment causes an impact with other rail equipment, and

raking collisions (i.e., collisions caused by derailment of rolling stock or operation of equipment in violation of clearance limitations). FRA is proposing to remove these existing exclusions, and require PAT testing after both derailment and raking collisions.

E. PAT Testing Would Be Required for Railroad Highway-Rail Grade Crossing Accidents/Incidents Involving Human-Factor Errors

Currently, § 219.201(b) excepts from PAT testing any event involving a “collision between railroad rolling stock and a motor vehicle or other highway conveyance at a rail/highway grade crossing.” FRA is proposing to narrow this exception to require PAT testing after any highway-rail grade crossing accident/incident in which human-factor errors may have played a role.

F. The Provisions Governing When Regulated Employees Could Be Recalled for PAT Testing Would Be Amended

Currently, a railroad may recall a covered employee for PAT testing only if three conditions are met: (1) the employee was released from duty under the normal procedures of the railroad; (2) the railroad's preliminary investigation indicates a clear probability that the employee played a major role in the cause or severity of the accident/incident; and (3) the accident/incident occurred while the employee was on duty.

See

§ 219.203(b)(4). To improve its investigation of human-factor related accidents, FRA is proposing, not only to lower its threshold for employee recall by removing the requirement for the accident/incident to have occurred while a regulated employee was on duty, but also to require employee recall in certain circumstances.

G. Federal Reasonable Cause Testing Would Be Authorized Only for Reportable “Train Accidents” and “Train Incidents”

FRA believes the use of “accident/incident” in the introductory text of existing § 219.301(b)(2) has led to confusion regarding whether reasonable cause testing is permitted following all part 225 reportable accidents/incidents, which would include reportable events such as occupational illnesses and railroad casualties unconnected to the operation of on-track equipment. Because FRA never intended to authorize reasonable cause testing following occupational illness cases (e.g., carpal tunnel syndrome) and casualties unconnected to the movement of on-track equipment (e.g., slips-trips-and-falls resulting from safety concerns under the jurisdiction of the Occupational Safety and Health Administration (OSHA)), FRA is proposing to revise this existing language to specify that FRA reasonable cause testing is only authorized after “train accidents” (defined to include rail equipment accidents meeting the part 225 reporting threshold) and “train incidents” (defined to include events involving the operation of railroad on-track or fouling equipment resulting in a casualty, but in which the part 225 reporting threshold is not met). For the reasons discussed in VI.A below, FRA is proposing to include this revised language at § 219.403(b).

H. Federal Reasonable Cause Testing Would Be Authorized for Additional Operating Rule Violations or Other Errors

As mentioned above, FRA reasonable cause testing is also authorized after certain railroad operating rule violations and other errors specified in § 219.301(b)(3). Currently, these rule violations and errors listed are primarily directed at covered employees. FRA is proposing to add rule violations and errors that would specifically address employees performing MOW activities, and to add others directed at signal workers performing covered service or reflect recent amendments to 49 CFR part 218, Railroad Operating Practices.

I. Part 219 Would Be Amended To Conform Certain Provisions to the Final Conductor Certification Rule

On November 9, 2011, FRA published a final rule requiring the certification of conductors (49 CFR part 242), which was also mandated by the RSIA. (76 FR 69802, Nov. 9, 2011). This final rule became effective January 1, 2012.

Id.

FRA is therefore proposing to amend part 219 so that those sections that apply to the certification of locomotive engineers would also clearly apply to the certification of conductors. The proposed definition for a Drug and Alcohol Counselor (DAC) is one of these conforming amendments.

VI. Primary Clarifying Amendments

FRA is proposing several amendments that would both improve the organization of part 219 and make it easier to find pertinent requirements and information. Although these proposed amendments are discussed in the section-by-section analysis below, for the reader's convenience, a brief description of the major organizational amendments is included here.

A. Reasonable Suspicion and Reasonable Cause Testing Would Be Separated Into Different Subparts, Resulting in the Re-Designation of Other Subparts

Currently, the requirements for reasonable suspicion testing and reasonable cause testing are both found in subpart D. Because of their similar names and the placement of both types of tests in subpart D, railroads often confuse one type of testing with the other, even though reasonable suspicion and reasonable cause testing have very different requirements. To clarify the substantive differences between the two, FRA is proposing to retain the requirements for reasonable suspicion testing in subpart D but move the requirements for reasonable cause testing to subpart E, which currently covers voluntary referral and co-worker report policies. The proposed separation of reasonable suspicion and reasonable cause testing into different subparts is intended to help railroads distinguish between these two types of testing. This differentiation should be particularly helpful for small railroads, since FRA is proposing to require that those railroads implement reasonable suspicion, but not reasonable cause testing. To accommodate the movement of reasonable cause testing into subpart E, FRA is proposing to move (and amend as discussed below) the sections addressing the “Identification of Troubled Employees” currently found in that subpart to new subpart K, “Peer Prevention Programs.”

B. Random Alcohol and Drug Testing Requirements Would Be Reorganized and Clarified

FRA is proposing to revise and expand subpart G, which contains FRA's requirements for random alcohol and drug testing, to clarify these requirements and to incorporate published FRA guidance.

See generally

FRA, Part 219 Alcohol/Drug Program Compliance Manual, 2nd edition (2002)

available at http://www.fra.dot.gov/eLib/details/L01186

(Compliance Manual). In addition, FRA is proposing several substantive amendments which will be discussed below in the section-by-section analysis.

C. Substituting “Drug and Alcohol” for “Alcohol and Drug”

FRA has previously used both “Drug and Alcohol” and “Alcohol and Drug” as terms to describe its part 219 program and many of its components. For consistency, FRA is proposing to use only the term “Drug and Alcohol” throughout part 219 and to substitute

“Drug and Alcohol” wherever the term “Alcohol and Drug” is currently used.

VII. Section-by-Section Analysis

As discussed earlier, FRA is proposing to add definitions for “regulated employee” and “regulated service” which would serve as terms-of-art encompassing all individuals and duties subject to part 219, including both covered service and MOW activities. Throughout most of part 219, FRA would replace the terms “covered employee” and “covered service” with “regulated employee” and “regulated service.” The terms “covered employee” and “covered service,” however, would still be used where necessary, such as in proposed § 219.12, which addresses issues of overlap between part 219 and the HOS laws that apply only to covered employees.

Throughout this NPRM, FRA is also proposing small changes to conform the regulatory language, where necessary, to the proposed substantive and reorganization amendments. To streamline this NPRM, FRA is not discussing most of these minimal clarifying amendments, none of which are intended to affect the regulation's substantive requirements.

Authority Citation

The authority citation for part 219 would be amended to add a reference to Section 412, which mandated the expansion of part 219 to cover all employees of railroads and contractors or subcontractors to railroads who perform MOW activities.

Subpart A—General

Section 219.1—Purpose and Scope

Currently, this section states that the purpose of part 219 is to “prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.” FRA is proposing to amend this section to include a reference to the proposed definition of “employee” in § 219.5, which, as used in part 219, would include any individual (including a volunteer or a probationary employee) who performs regulated activities for a railroad or a contractor to a railroad. FRA is not proposing to include a similar reference every time “employee” is used, but believes it is appropriate to do so the first time it appears in part 219.

Section 219.3—Application

FRA is proposing the following structural and substantive amendments to this section.

Paragraph (a)

FRA proposes to amend paragraph (a) to apply part 219 to all railroads, except as provided in proposed paragraphs (a)(1)-(3) and paragraphs (b), (c), and (d) of the section.

The first exception, contained in proposed paragraph (a)(1), addresses operations that occur within the confines of industrial installations commonly referred to as “plant railroads.” Plant railroads are typified by operations such as those in steel mills that do not go beyond the plant's boundaries and that do not involve the switching of rail cars for entities other than themselves. This exception for plant railroads is currently found in paragraph (b)(1) of this section, but FRA believes it belongs more appropriately with the general applicability provisions of paragraph (a) (this will also permit proposed paragraph (b) to be dedicated solely to reporting requirements, as discussed below). FRA is also amending this language to specify that there is a definition of “plant railroads” in § 219.5.

Proposed paragraph (a)(2) addresses operations commonly described as tourist, scenic, or excursion service to the extent that they occur on tracks that are not part of the general railroad system. FRA has decided to except tourist, scenic, historic, or excursion rail operations that are not part of the general system, regardless of whether they are insular or non-insular rail operations. FRA has elected to exclude these typically small operations from the requirements of part 219 because of the limited safety risk that these operations pose to members of the public due to the fact that their operations do not take place on the general system. This is new language for this section, but reflects FRA's tradition of exercising its jurisdiction in a way that excludes tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation from certain portions of its regulations.

See Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws, The Extent and Exercise of FRA's Safety Jurisdiction,

49 CFR part 209, Appendix A (FRA's Policy Statement or the Policy Statement).

Proposed paragraph (a)(3) would except from part 219 rapid transit operations in an urban area that are not connected to the general system (although rapid transit type operations with links to the general system would continue to be covered by part 219). This exception is currently found in paragraph (a)(2), which excepts railroads that “provide commuter or other short-haul rail passenger service in a metropolitan or suburban area (as described by 49 U.S.C. 20102) in the United States.” The new language in proposed paragraph (a)(3) would conform part 219's language to that used in the applicability sections of other FRA regulations without changing the scope of the exception.

Paragraph (b)

Paragraph (b) currently contains three different exceptions that are unique to part 219 and are available to both foreign and domestic railroads. To clarify these exceptions, and make them easier to find FRA is proposing to separate them into individual paragraphs as follows:

• As discussed above, the “plant railroad” exception would remain the same but would be moved from its current location in paragraph (b)(1) to proposed paragraph (a)(1). This exception is a general statement about FRA's jurisdiction and more properly belongs with the general applicability provisions.

• The exception in current paragraph (b)(2) for railroads with 15 or fewer covered employees that do not engage in joint operations with other railroads (the “small railroad exception”) would be moved to paragraph (c) and amended to remove the exceptions related to reasonable suspicion testing and pre-employment testing.

• The exception in current paragraph (b)(3) would remain in paragraph (b), but the paragraph would be renamed “Annual report requirements.”

Paragraph (c)

As noted above, FRA is proposing to move the small railroad exception in existing paragraph (b)(2) to proposed paragraph (c) and to move the language currently in paragraph (c) relating to exceptions that apply only to foreign railroads to a new paragraph (d). In addition, because FRA is proposing to require that small railroads perform both reasonable suspicion and pre-employment drug testing (discussed below), paragraph (c)(1) would be amended to state that small railroads are excepted only from subparts E (reasonable cause testing), G (random testing), and K (peer support programs).

• Small Railroads Would No Longer Be Excepted From Reasonable Suspicion Testing

Section 219.11(g) currently requires all railroads to ensure that supervisors who are responsible for covered employees are trained in the signs and symptoms of alcohol and drug abuse.

(This provision also requires railroads to train covered employee supervisors on FRA PAT testing criteria.) This requirement applies to small railroads as well, even though they are currently excepted from having to conduct reasonable suspicion testing in accordance with current § 219.3(b)(2). Because small railroads must already meet the mandatory supervisory training requirements in § 219.11(g), FRA believes that removing the current exception and requiring small railroads to conduct reasonable suspicion testing would promote safety with fairly low additional costs.

The proposed expansion of part 219 to include MOW activities would require supervisors of employees who perform MOW activities to also comply with the training requirements in § 219.11(g). As with supervisors of covered employees, all railroads, regardless of size, must ensure that supervisors of employees who perform MOW activities have been trained on reasonable suspicion and post-accident testing criteria.

• Small Railroads Would No Longer Be Excepted From Pre-employment Drug Testing

Current paragraph (b)(2) excepts small railroads from the requirement to conduct pre-employment drug testing. FRA is proposing to remove this exception, because many small railroads already pre-employment drug test all applicants (not just those applying for covered service) under their own company authority. This has resulted in many small railroads mistakenly using DOT forms to conduct company authority pre-employment drug tests. Requiring small railroads to use only FRA authority for pre-employment drug tests of regulated employees would address this problem, and would also eliminate the ability of individuals to dodge FRA pre-employment drug tests by applying to small railroads instead of larger ones. The removal of the current small railroad exception to pre-employment drug testing would also make FRA's pre-employment testing policy consistent with that of other DOT modes, since no other DOT agency excepts small employers from conducting pre-employment drug tests. This proposed amendment would only apply to regulated employees who are hired by small railroads after the effective date of any final rule.

Furthermore, FRA believes the reasons behind its initial decision to except small railroads from pre-employment drug testing no longer apply. In 1986, when FRA's pre-employment drug testing requirements went into effect, small railroads could not benefit from economies of scale because drug testing was new and collection and other test costs were high.

See

49 FR 24293, June 12, 1984. This is no longer true today, as the workplace drug testing industry is well-established, and collectors, laboratories, and other service agents are widely available. Furthermore, drug use is now a significant issue in many small communities where small railroads operate.

• Other Proposed Amendments to the Small Railroad Exception

FRA is proposing to amend the introductory text of paragraph (c)(1) to clarify that small railroads are not authorized to perform Federal alcohol and drug testing under the subparts from which they are excepted. In other words, in addition to not requiring small railroads to conduct Federal reasonable cause or random testing, FRA is also not authorizing small railroads to conduct such testing. The proposed amendment would therefore clarify that small railroads are prohibited from conducting reasonable cause or random testing under Federal authority, and may only do so under their own authority. (FRA is also proposing to amend this paragraph to incorporate the small railroad criteria currently found in § 219.3(b)(2), no substantive change is intended.)

FRA proposes to amend the small railroad exception for proposed subpart K (Peer Support Programs) differently. Because FRA wants to limit the regulatory burden on small entities, FRA is not proposing to require small railroads to implement peer support programs. However, FRA does not want to prohibit small railroads from voluntarily implementing peer support programs such as those contemplated by new proposed subpart K. Accordingly, FRA proposes to authorize small railroads to implement peer referral and support programs because these programs encourage and facilitate the referral and rehabilitative support of regulated employees who abuse alcohol or drugs. This proposed exception from proposed subpart K would be the only exception which would neither require, nor prohibit, small railroads from implementing the requirements of part 219 under FRA authority.

As discussed in section III.F of this preamble, paragraph (c)(2) would state that a regulated employee who performs only MOW activities would not be counted when determining whether the railroad had 15 or fewer covered employees as required to meet the small railroad exception.

Also as discussed in section III.F of this preamble, paragraph (c)(3) would state that a contractor must perform MOW activities exclusively for small railroads in order to qualify for the small railroad exception.

As previously discussed in section III.G of this preamble, under proposed paragraph (c)(4), if a contractor is subject to all of part 219 (including subparts E, G, and K) because it performs regulated service for at least one railroad that is not a small railroad, only those railroads which must also comply with all of part 219 (in other words, railroads that do not qualify for the small railroad exception) would share responsibility for ensuring the contractor's full compliance with part 219. If the contractor also performs regulated service for small railroads, these small railroads would not share responsibility for the contractor's full compliance.

Public Comment Invited

Currently, a railroad's HOS contractors are counted when determining whether a railroad qualifies for the small railroad exception. Part 219 makes no distinctions, however, for those HOS contractors who work for a railroad only on a temporary basis. FRA is asking for comment on whether such a distinction should be made. For example, should a small railroad still qualify for the exception if it temporarily engages enough HOS contractors (e.g., signal contractors) to bring its number of covered employees above the 16 employee threshold? If so, how long can an HOS contractor work for the railroad and still be considered a “temporary” employee?

Paragraph (d)

FRA is proposing to move the applicability exceptions that apply only to foreign railroads to a new paragraph (d), which would be entitled “Foreign railroads.” The following structural and clarification amendments are also being proposed:

• New language in paragraph (d)(1) would clarify that part 219 does not apply to the operations of a foreign railroad that occur outside the United States. For example, a major train accident on a foreign railroad that occurred outside the United States would not be subject to FRA's PAT testing requirements under subpart C. This would not be a new exception, but rather a clarification of current requirements.

• FRA would combine the exceptions currently in paragraphs (c)(1) and (c)(2) into new paragraph (d)(2), since both exceptions exclude certain foreign

railroad operations from subparts E through G. The intent of this proposed consolidation is to improve clarity and reduce redundancy, and no substantive changes are intended. FRA would also amend these exceptions to incorporate the proposed move of peer programs from subpart E to new subpart K (see discussion above).

Section 219.4—Recognition of a Foreign Railroad's Workplace Testing Program

This section contains provisions regarding the recognition of a foreign railroad's workplace testing program as a “compatible alternative” to certain requirements of part 219. FRA is proposing minimal clarifying amendments to this section, none of which are intended to affect its substantive requirements. Paragraphs (a)(1) and (b)(1) would be amended to reflect that FRA is proposing to move existing subpart E (Identification of Troubled Employees) to a new subpart K (Peer Support Programs). The final sentence of paragraph (b)(1) would be further amended to correct a mistaken reference to subpart E that should be a reference to the pre-employment testing requirements of subpart F.

Paragraph (b)(2) would be amended to clarify what type of requirements are contained in the various referenced subparts. For example, FRA is proposing to clarify that subpart C contains the requirements for PAT testing.

Section 219.5—Definitions

FRA is proposing to amend the definitions section of part 219 to add several new definitions, to revise and clarify certain current definitions, and to delete unnecessary definitions.

New Definitions

Administrator

A new definition of “Administrator” would clarify that the term means the Administrator of the FRA or the Administrator's delegate.

Associate Administrator

A new definition of “Associate Administrator” would clarify that the term means the FRA's Associate Administrator for Railroad Safety/Chief Safety Officer or the Associate Administrator's delegate.

Category of Regulated Employee

A new definition, “category of regulated employee,” would mean a broad class of either covered employees or MOW employees. For the purpose of determining random testing rates under proposed § 219.625, if an individual performs both covered service and MOW activities, he or she would be placed in the category which comprises the majority of his or her regulated service. For example, an individual who performs covered service 45 percent of the time and MOW activities 55 percent of the time should be placed in the random testing pool for MOW employees.

Contractor

A new definition of “contractor” would clarify that this term includes both a contractor and a subcontractor performing functions for a railroad.

Counselor

FRA is proposing to add this term to encompass a Drug and Alcohol Counselor (as discussed below), Employee Assistance Program Counselor, or Substance Abuse Professional, since most, but not all, of the education, counseling, and treatment requirements in new subpart K could be conducted by a person who meets the credentialing and qualification requirements for any of these professions.

DOT-Regulated Employee

A new definition of “DOT-regulated employee” would clarify that this term means any person who is subject to drug testing and/or alcohol testing under any DOT agency regulation. This term would include both individuals currently performing DOT safety-sensitive functions (as designated in other DOT agency regulations) and applicants for employment subject to DOT pre-employment drug testing.

DOT Safety-Sensitive Duty or DOT Safety-Sensitive Function

A new definition of “DOT safety-sensitive duty” or “DOT safety-sensitive function” would clarify that these terms mean a function designated by a DOT agency, the performance of which makes an individual subject to the drug testing and/or alcohol testing requirements of that DOT agency. For part 219 purposes, the performance of regulated service would be a DOT safety-sensitive duty or function.

Drug and Alcohol Counselor or DAC

FRA is proposing to adopt a definition for “Drug and Alcohol Counselor” or “DAC” from 49 CFR 242.7. As specified in § 242.111, an individual whose records show a conviction or other State action for abuse of drugs or alcohol, must be evaluated and successfully treated by a DAC as a condition of conductor certification. Although a DAC must meet the same credentialing requirements as a Substance Abuse Professional (SAP), this evaluation and treatment may not be called a SAP evaluation because § 40.3 specifies that a SAP may provide such services only after a violation of a DOT alcohol and drug regulation, and a conviction or other State action (e.g., driving while impaired) is not a violation of part 219.

Employee

FRA is proposing to adopt a new definition of “employee” to clarify that this term includes any individual (including volunteers and probationary employees) performing activities for a railroad or a contractor to a railroad. The proposed amendment would incorporate previous FRA guidance that volunteers who perform covered service are to be considered covered employees.

See

Compliance Manual 2.2.

Employee Assistance Program Counselor or EAP Counselor

FRA is proposing to restore to part 219 the term “Employee assistance program counselor or EAP counselor.” A previous definition of “EAP counselor” was removed when FRA amended part 219 to conform to subpart P of part 40, which requires an evaluation by a SAP when an employee has violated a DOT drug or alcohol regulation (i.e., by refusing to take or having a positive result on a DOT alcohol or drug test).

See

59 FR 7457, Feb. 15, 1994. A part 219 definition of “Employee assistance program counselor or EAP counselor” is still required, however, because a SAP's role is to evaluate an employee

after

he or she has committed an DOT alcohol or drug testing violation, but § 219.403, which governs voluntary referrals, specifies that an employee may only self-refer

before

he or she has committed a violation of §§ 219.101 or 219.102. The proposed definition of “Employee assistance program counselor or EAP counselor” is adapted from the “EAP counselor” definition in § 240.7 of FRA's locomotive engineer certification regulations.

Evacuation

For clarification purposes, FRA is proposing to define the term “evacuation,” which, when accompanying a release of hazardous material lading from railroad equipment, is listed in § 219.201(a)(1)(ii)(A) as one of the criteria which determines whether a train accident qualifies as a “major train accident” requiring the PAT testing of all crew members involved. This has been one of the criteria for PAT testing since the inception of the program.

See

50 FR 31508, Aug. 2, 1985.

To qualify as an evacuation for purposes of PAT testing, an event must involve the relocation of at least one person who is not a railroad employee to a safe area in order to avoid exposure to a hazardous material release. This relocation would normally be ordered by local authorities and could be either mandatory or voluntary. The definition would not include the closure of public roadways for hazardous material spill containment purposes, unless that closure was accompanied by an evacuation order. FRA is specifically requesting public comment on whether the proposed definition would help railroads make PAT testing determinations and whether it properly encompasses the various events that should qualify as an evacuation.

Flagman, Fouling a Track

To clarify FRA's proposed requirements for employees who perform MOW activities, FRA would add definitions of “flagman” and “fouling a track,” both of which are modeled on the definitions in § 214.7 of FRA's roadway worker regulations.

Highway-Rail Grade Crossing

FRA also proposes to incorporate the definition of “highway-rail grade crossing” found in § 225.5 of its accident and incident reporting regulations. The proposed incorporation of a part 225 definition into part 219 would lessen the burden on entities who have to comply with both regulations by maintaining consistency between the regulations and by making it unnecessary to refer to part 225 to determine what a “highway-rail grade crossing” means in part 219. By incorporating part 225's definition of a “highway-rail grade crossing” into part 219, FRA proposes to incorporate part 225's guidance on this term as well.

See

FRA, FRA Guide for Preparing Accident/Incident Reports (Guide), 23-24 (2011),

available at http://safetydata.fra.dot.gov/officeofsafety/ProcessFile.aspx?doc=FRAGuideforPreparingAccIncReportspubMay2011.pdf

, which states that all crossing locations within industry and rail yards, ports, and dock areas are considered to be highway-rail grade crossings.

Highway-Rail Grade Crossing Accident/Incident

A new definition of “highway-rail grade crossing accident/incident” would clarify the meaning of the phrase as used in part 219. The proposed definition is essentially identical to language describing highway-rail grade crossing impacts found in the definition for “accident/incident” in FRA's accident and incident reporting regulations.

See

49 CFR 225.5. As with the proposed definition for “highway-rail grade crossing,” FRA believes maintaining consistency between part 219 and part 225 will minimize confusion for regulated entities.

Joint Operations

As discussed earlier, FRA is proposing to add a definition of “joint operations” to clarify the meaning of that term as used in the small railroad exception of § 219.3. This proposed definition, which is not intended to make any substantive changes or to create any additional burdens on small railroads, would define joint operations as “rail operations conducted by more than one railroad on the same track (except for certain minimal joint operations necessary for the purpose of interchange), regardless of whether such operations are the result of contractual arrangements between the railroads, order of a governmental agency or a court of law, or any other legally binding directive.” FRA interprets the phrase “rail operations” in this definition broadly, so that it would encompass dispatching and other types of operations. For example, a railroad that has fewer than sixteen covered employees but dispatches trains for another railroad would be considered to have joint operations with that railroad.

A railroad entering another railroad's yard to perform switching operations would also constitute joint operations. For purposes of this definition, railroads that operate on the same track would not be conducting joint operations if their respective operations are absolutely separated by physical means, such as a split rail derail or the removal of a section of rail, and there is no physical possibility that the railroads' respective operations could overlap on the same track. However, this exclusion from joint operations would not apply when one railroad merely agrees, whether informally or by contract, not to engage in operations on the same track as another railroad, or when railroad operations are only temporally separated because they operate over the same track at different times of the day.

The proposed definition would also exclude certain minimal joint operations necessary for the purpose of interchange, so long as: (1) The maximum authorized speed for operations on the shared track does not exceed 20 mph; (2) operations are conducted under restricted speed (operating rules that require every locomotive and train to proceed at a speed that permits stopping within one half the range of vision of the locomotive engineer); (3) the maximum distance for operations on the shared track does not exceed three miles; and (4) any operations extending into one of the railroad's yards are for the sole purpose of setting out or picking up cars on a designated interchange track. By excluding the above operations from its proposed “joint operations” definition, FRA would focus scarce agency resources on the operations with the greatest safety risk.

Maintenance-of-Way Activities or MOW Activities, Maintenance-of-Way Employee or MOW Employee

As discussed earlier, FRA would add definitions of “maintenance-of-way activities or MOW activities” and “maintenance-of-way employee or MOW employee” as part of its proposed expansion of part 219 to cover employees who perform MOW activities.

FRA's proposed definition of MOW employee would cover any employee (as defined in proposed § 219.5, this would include volunteers and probationary employees) who performs MOW activities for a railroad or a contractor to a railroad. As discussed above, MOW activities would be defined to include (in part) activities such as the inspection, repair, or maintenance of track, roadbed, or electric traction systems and the operation of on-track or fouling equipment utilized for the inspection, repair, or maintenance of track, roadbed, or electric traction systems.

On-Track or Fouling Equipment

FRA would add a new definition of “on-track or fouling equipment” that would include any railroad equipment positioned on or over the rails or fouling a track. In this proposed definition, FRA provides examples of what would be considered on-track or fouling equipment, including trains, locomotives, cuts of cars, single cars, motorcars, yard switching trains, work trains, inspection trains, track motorcars, highway-rail vehicles, push cars, or other roadway maintenance machines (such as ballast tamping machines), if this equipment is positioned on or over rails or is fouling a track.

Other Impact Accident

FRA would add a definition of “other impact accident” to clarify the meaning of the phrase as it is used in FRA's proposed amendment to the definition of “impact accident.” As defined, an “other impact accident” would include any accident/incident involving contact

between on-track or fouling equipment that is not otherwise classified as another type of collision (e.g., a head-on collision, rear-end collision, side collision, raking collision, or derailment collision). This definition would also include impacts in which single cars or cuts of cars are damaged during operations involving switching, train makeup, setting out, etc.

Person

A new definition of “person” would clarify that this term means an entity of any type covered under 1 U.S.C. 1, including, but not limited to, the following: A railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad, such as a service agent performing functions under part 40 of this title; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor. While similar to the definition currently found in § 219.9, under this proposed definition a “person” would specifically include an independent contractor who provides goods or services to a railroad, such as a service agent (e.g., a collection site, laboratory, Substance Abuse Professional (SAP), or other entity) that provides alcohol and drug testing services to a railroad subject to part 219 and part 40.

See

49 CFR part 40, subpart Q—Roles and Responsibilities of Service Agents. This definition would be added for clarification purposes only, since railroad service agents are already required to comply with both part 219 and part 40.

Plant Railroad

A new definition of plant railroad would clarify the meaning of that term as used in § 219.3. This proposed definition reflects FRA's longstanding approach, consistent with its published policy statement referenced below, of excluding certain plant operations from the exercise of its jurisdiction.

In § 219.3, FRA would continue to except plant railroads, as defined in proposed § 219.5, from the requirements of this part. Although FRA's

Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws, The Extent and Exercise of FRA's Safety Jurisdiction,

49 CFR part 209, appendix A (FRA's Policy Statement or the Policy Statement) already explains in detail when an entity's operations qualify for plant railroad status, FRA proposes to incorporate this language into a new definition of “plant railroad” to make these qualifications easier to find. To enable better understanding of this term, the proposed definition would also incorporate language clarifying when an entity's operations do

not

qualify for plant railroad status. The proposed definition of the term “plant railroad” is consistent with FRA's Policy Statement that provides that the agency will exercise its safety jurisdiction over a rail operation that moves rail cars for entities other than itself because those movements bring the track over which the entity is operating into the general system. FRA's Policy Statement specifically provides that “operations by the plant railroad indicating it [i]s moving cars on . . . trackage for other than its own purposes (e.g., moving cars to neighboring industries for hire)” brings plant track into the general system and thereby subjects it to FRA's safety jurisdiction. This interpretation of the term “plant railroad” has been upheld in litigation before the U.S. Court of Appeals for the Fifth Circuit.

See Port of Shreveport-Bossier

Federal Railroad Administration,

No. 10-60324 (5th Cir. 2011) (unpublished per curiam opinion).

Raking Collision

A new definition for “raking collision” would clarify that a raking collision occurs when there is a collision between parts, with the lading of a train on an adjacent track, or with a structure such as a bridge. Collisions that occur at a turnout are not considered raking collisions. The proposed definition is identical to the definition of raking collision contained in FRA's guidance regarding accident/incident reporting.

See

FRA Guide for Preparing Accident/Incident Reports at 20 (Accident Reporting Guide).

Regulated Employee and Regulated Service

As discussed in section III.B of this preamble, FRA is proposing a new term “regulated employee.” As proposed, “regulated employee” would refer to all employees who are subject to part 219, including covered employees and MOW employees, and employees of a railroad or a contractor to a railroad who perform covered service or MOW activities. Another new proposed definition of “regulated service” would mean the duties which regulated employees perform that make them subject to part 219.

Responsible Railroad Supervisor

FRA would incorporate the description of “responsible railroad supervisor” currently in § 219.302(d) into a new definition of this term.

Side Collision

As with “raking collision,” FRA proposes to add a definition of “side collision” taken from the Accident Reporting Guide. A side collision occurs when one consist strikes the side of another consist at a turnout, and includes collisions at switches or at railroad crossings at grade.

See

Accident Reporting Guide at 20.

Tourist, Scenic, Historic, or Excursion Operations That Are Not Part of the General Railroad System of Transportation

A new definition of “tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation” would clarify the meaning of that term as used in the proposed application provisions of § 219.3. The proposed definition clarifies that the phrase means a tourist, scenic, historic, or excursion rail operation that is conducted only on track used exclusively for that purpose (i.e., there are no freight, intercity passenger, or commuter passenger railroad operations on the track). If there are any freight, intercity passenger, or commuter passenger railroad operations on the track, the track is considered part of the general system, and the rail operation would not meet the definition of term as used in § 219.3. This proposed definition is consistent with FRA's longstanding policy that excludes insular operations entirely from FRA's safety jurisdiction and excludes non-insular operations from all but a limited number of Federal safety laws, regulations and orders.

See

49 CFR part 209, Appendix A (defining the terms

insular

and

non-insular

Watchman/Lookout

FRA would add a definition of “watchman/lookout” identical to that in § 214.7 of its roadway worker regulations.

Revised Definitions

Covered Employee

The current definition of “covered employee” includes, in part, “a person who has been assigned to perform service in the United States subject to the hours of service laws (49 U.S.C. ch. 211) during a duty tour, whether or not the person has performed or is currently performing such service, and any person who performs such service.” FRA proposes to amend this definition to clarify that “person” includes employees, volunteers, and probationary employees, and by

updating its reference to the hours of service laws so that a “covered employee” would be defined as one “who is performing covered service under the hours of service laws at 49 U.S.C. 21101, 21104, or 21105 or who is subject to performing such covered service, regardless of whether the person has performed or is currently performing covered service.” FRA believes this proposed language is clearer than that in the current definition, and it also makes the reference to the hours of service laws consistent with that contained elsewhere in part 219. No substantive change to this definition is intended.

Covered Service

FRA would amend the definition of “covered service” to provide examples of the types of activities generally considered covered service and to refer to Appendix A of 49 CFR part 228, Requirements of the Hours of Service Act: Statement of Agency Policy and Interpretation. The proposed amendments are for clarification purposes only; no substantive change is intended.

FRA Representative

The definition of “FRA representative” would be amended to clarify that the term includes the oversight contractor for FRA's Drug and Alcohol Program and the staff of FRA's Associate Administrator for Railroad Safety.

Impact Accident

As discussed in section V.D of this preamble, the definition of “impact accident” would be amended to remove the exceptions for derailment collisions

and raking collisions. FRA originally excepted derailment collisions and raking collisions from the definition of “impact accident” because it believed that these types of collisions were not normally caused by human-factors.

See

50 FR 31539 and 31542, Aug. 2, 1985 and 54 FR 39647, Sep. 27, 1989.

Derailment collisions fall within the definition of “obstruction accidents” in FRA's Accident Report Guide.

See

Accident Reporting Guide at 24. But for the purposes of part 219, this type of collision is referred to only as a derailment collision.

FRA has since found that both derailment collisions and raking collisions can be caused by human-factors, such as alcohol and/or drug impairment. For example, a derailment collision could occur when a dispatcher fails to properly notify trains of a derailment, or when a crew does not operate its train at the proper speed after such a notification. Similarly, a raking collision could occur when a train crew does not comply with the special handling instruction for a high-wide load or when cars are left standing on a track without sufficient clearance.

Additionally, FRA has found evidence that railroads sometimes improperly apply the exception for derailment collisions and raking collisions in situations involving true impact accidents. For example, railroads have sometimes claimed that PAT testing was not required because equipment from a train derailed just prior to what otherwise would be considered a head-on, rear-end, or side collision with other on-track equipment. FRA did not intend the exception for a derailment collision to apply when on-track equipment derailed immediately prior to striking other on-track equipment. FRA believes that these sorts of events should be classified as impact accidents. FRA has also found that the difference between side collisions and raking collisions is not understood by some railroads, who have erroneously claimed that accidents occurring at a turnout (switch) were raking collisions. For example, some railroads have claimed that a raking collision has occurred when a switch crew strikes cars they had previously left fouling a track or when a train operates out of a siding and strikes another train. These types of accidents, however, are actually side collisions or other impacts and should therefore be considered impact accidents.

(FRA notes that currently under § 219.201(a)(1), a derailment collision

would

qualify as a Major Train Accident if it resulted in damage to railroad property of $1 million or more.)

As discussed below, FRA is also proposing to clarify the part 219 definition of side collision, to specifically include accidents/incidents that occur at a switch or turnout. This is the same definition for a side collision as used in the Accident Reporting Guide.

FRA does not anticipate that its proposal to remove the exceptions for derailment collisions and raking collisions would significantly increase PAT testing costs. FRA believes that the regulated employees involved in these collisions will often be excluded from PAT testing when a “railroad representative can immediately determine, on the basis of specific information, that the employee(s) had no role in the cause(s) or severity of the accident/incident.”

See

§ 219.203(a)(3).

In order to improve clarity, FRA also proposes to restructure this definition by listing each type of impact accident separately. FRA would also incorporate its previous guidance that an impact with a derail does not qualify as an “impact with a deliberately-placed obstruction, such as a bumping post,” since bumping posts are mostly permanent objects found at the end of a line, while derails are mobile and can easily be moved from place to place.

See

FRA, Alcohol and Drug Testing Regulations (Parts 219 and 40) Interpretive Guidance Manual (“Interpretive Guidance Manual”) 18 (September 2006),

available at http://www.fra.dot.gov/eLib/Details/L02799

FRA would also clarify that the definition of “impact accident” excludes the impact of rail equipment with “naturally-occurring obstructions such as fallen trees, rock or snow slides, livestock, etc.”

Medical Facility

FRA would add language to the definition of “medical facility” to reflect the main purpose for including this definition in this part; that is, that a medical facility is a hospital, clinic, physician's office, or laboratory which can collect PAT testing specimens and address an individual's post-accident medical needs. In order to improve consistency, FRA would also substitute “medical facility” wherever “treating facility” currently appears throughout part 219.

Railroad Property Damage or Damage to Railroad Property

The definition of “railroad property damage or damage to railroad property” would be clarified to mean damage to railroad property as calculated according to the FRA Guide for Preparing Accident/Incident Reports. Additional language from the Guide would clarify what costs must be included (damage to on-track equipment, signals, track, track structure, or roadbed; and labor costs including hourly wages, transportation costs, and hotel expenses) and excluded (damage to lading and the cost of clearing a wreck, although the cost of contractor services and of renting and operating machinery is included, as is the cost of any additional damage caused while clearing the wreck) when calculating railroad property damage to determine whether PAT testing is required under FRA's regulations. These clarifications would be incorporated to enable easier compliance with this part, and no substantive changes are intended.

Train Accident

The definition of “train accident” would be amended to clarify that it refers to rail equipment accidents under § 225.19(c) and to specify that rail

equipment accidents include, but are not limited to, collisions, derailments, and other events involving the operation of on-track or fouling equipment.

Train Incident

The definition of “train incident” would be amended to clarify that it includes events involving the operation of on-track or fouling equipment that results in a casualty, but in which damage to railroad property does not exceed the applicable reporting threshold.

Deleted Definitions

DOT Agency

The definition of “DOT agency” would be removed because it is being replaced by the proposed definition of “DOT, The Department, or DOT agency.”

General Railroad System of Transportation

The definition of “general railroad system of transportation” would be removed because FRA's proposed amendments to the application section of this part (§ 219.3) would make this definition redundant.

Train

The definition of “train” would be removed because part 219 already contains definitions for “train accident” and “train incident” that specifically include on-track equipment (which includes trains).

Section 219.9—Responsibility for Compliance

Currently, this section contains provisions relating to compliance with part 219 and penalties for violations of part 219. FRA is proposing to amend this section by removing the language addressing penalty amounts in paragraph (a) and placing it in a new § 219.10, entitled “Penalties.” This organization would be similar to the approach taken in other FRA regulations (

see

49 CFR parts 232, 238, and 239), and-would make it easier for railroads to find specific provisions relating to either compliance or penalties.

Proposed paragraph (a) would clarify that while part 219 requirements are stated in terms of a railroad's duty, the duty to meet part 219 requirements applies to any person performing a function required by part 219. This language would apply equally to the requirements of part 40, since § 219.701 requires all testing conducted under part 219 testing (except for PAT testing in subpart C) to comply with part 40. Also, existing paragraph (a) contains language defining the term “person” as used in part 219. As discussed in the section-by-section analysis for § 219.5, FRA is proposing to move this definition of “person” to § 219.5 and amend it to clarify that it includes any entity who acts as a service agent for a railroad under part 40.

FRA is also proposing several minimal changes to the language contained in paragraphs (b)(1), (b)(2), and (c). These amendments are intended to increase the clarity of this section and not to make any substantive changes. For example, paragraph (b)(2) currently states that when an employee engaged in joint operations is required to participate in Federal PAT, reasonable suspicion, or reasonable cause testing and is then subject to adverse action allegedly arising from that testing (or an alleged refusal to participate in such testing), the other railroad (i.e., the railroad by which the employee is not directly employed) must provide to the employee any necessary witnesses and documents on a reasonable basis. FRA is proposing to amend this requirement to clarify that the other railroad must also provide such witnesses and documents to the regulated employee's employing railroad.

Section 219.10—Penalties

As discussed immediately above, FRA is proposing to transfer the penalty provisions currently found in § 219.9 to a new § 219.10, entitled “Penalties.” This amendment is not intended to make any substantive changes to the penalty provisions, but is intended to increase the clarity and organization of part 219.

Section 219.11—General Conditions for Chemical Tests

This section contains various general provisions regarding FRA alcohol and drug testing requirements. FRA is proposing amendments to this section as described below.

Paragraph (a)

FRA would re-designate current paragraph (a) as paragraph (a)(1), and add new paragraph (a)(2). Paragraph (a) currently states that “[a]ny employee who performs covered service for a railroad is deemed to have consented to testing as required in subparts B, C, D, and G of this part; and consent is implied by performance of such service.” Proposed paragraph (a)(1) would amend this language to clarify that “[a]ny regulated employee who is subject to performing regulated service” is deemed to have consented to testing. This amendment is necessary because under proposed § 219.615(c)(1), a regulated employee can be required to participate in random testing whenever the employee is on-duty and subject to performing regulated service, even if the employee is not performing regulated service at the time. FRA would also remove the language “and consent is implied by performance of such service,” as it believes this language is unnecessary and redundant. FRA would also amend this paragraph to clarify that performance of regulated service means consent to testing mandated by the peer prevention requirements of proposed subpart K.

New paragraph (a)(2) would clarify that regulated employees required to participate in Federal testing under part 219 must be on-duty and subject to performing regulated service at the time of a breath alcohol test or urine specimen collection. This requirement would not apply to the pre-employment drug testing of applicants for regulated service positions.

Paragraph (b)

Paragraph (b)(1) would be amended to clarify that regulated employees must participate in Federal testing as required by part 219 and as implemented by a representative of the railroad or an employing contractor.

Paragraph (b)(2) currently provides that “[i]n any case where an employee has sustained a personal injury and is subject to alcohol or drug testing under this part, necessary medical treatment must be accorded priority over provision of the breath or body fluid specimen(s).” This provision would be amended to replace “has sustained a personal injury” with “is suffering a substantiated medical emergency,” as certain medical emergencies that do not involve a personal injury (e.g. a stroke) may necessitate prioritizing medical treatment over testing. New language would further clarify that a medical emergency is an acute medical condition requiring immediate medical care, and a railroad may require an employee to substantiate a medical emergency by providing verifiable documentation from a credible outside professional substantiating the emergency situation within a reasonable period of time.

Paragraph (c)

FRA is proposing minor amendments throughout existing paragraph (c) to reflect the updated terminology proposed in this NPRM (e.g., regulated employee, medical facility) and to account for FRA's proposal to separate reasonable cause and reasonable suspicion testing into two separate subparts.

Paragraph (d)

This paragraph, which currently requires an employee who is tested under either subpart C (PAT testing) or subpart H (which applies part 40 procedures to part 219 testing except for PAT tests) to execute a consent form upon request, conflicts directly with the Department's specific prohibition on the use of consent forms in § 40.27. To resolve this conflict, FRA proposes to remove the reference to subpart H in this paragraph, thus making execution of a consent form an available option only for PAT testing under subpart C.

Paragraph (e)

Paragraph (e) currently provides that nothing in part 219 may be construed to “authorize the use of physical coercion or any other deprivation of liberty in order to compel breath or body fluid testing.” FRA is proposing to amend this paragraph by re-designating this language as paragraph (e)(3), and by adding new paragraphs (e)(1) and (e)(2).

Proposed paragraph (e)(1) would clarify that a regulated employee notified of his or her selection for Federal testing under part 219 must cease to perform his or her assigned duties and proceed to the testing site as soon as possible

without adversely affecting safety.

For example, a train crew selected for random testing would not be required to proceed immediately to the testing site if the crew had received special instructions to remain on the train and protect it until a relief crew arrived. In such a situation, FRA would not expect the train crew to violate their specific instructions, and random testing would occur only after the crew was relieved. This language is currently contained in § 219.701(c), but FRA believes it belongs more appropriately in § 219.11 as it is a general condition regarding Federal tests. Similarly, paragraph (e)(2) would further specify that a railroad must ensure that the absence of a regulated employee from his or her assigned duties for testing does not adversely affect safety.

Paragraph (f)

Under current paragraph (f), any railroad employee (as discussed earlier, the term “employee” would include volunteers and probationary employees of a railroad or a contractor to a railroad) who performs service for a railroad who dies within 12 hours of an accident or incident is deemed to have consented to the removal of specimens for the purpose of PAT testing under part 219. FRA is proposing to amend this paragraph by replacing the word “service” with the word “duties.” This change is intended to make it clear that any individual who performs duties for a railroad, regardless of whether or not those duties are regulated service (covered service or MOW activities), is deemed to have consented to the removal of specimens for PAT testing. FRA is also proposing other clarifying amendments to this paragraph (i.e., that consent is implied by the performance of duties for the railroad since no consent form is required). No substantive changes are intended.

Paragraph (g)

Paragraph (g) currently requires at least three hours of supervisor training regarding the signs and symptoms of alcohol and drug use and the qualifying criteria for PAT testing under subpart C. This training must include (at a minimum) “information concerning the acute behavioral and apparent physiological effects of alcohol and the major drug groups on the controlled substances list.” FRA is proposing to amend this existing training requirement to incorporate supervisory training on the signs and symptoms of “other impairing drugs,” since drugs that are not controlled substances can also have “acute behavioral and apparent physiological” effects.

FRA is also proposing to amend this paragraph by removing the three hour duration requirement (a design standard) and replacing it with a requirement that supervisors demonstrate their understanding of the training at its conclusion (a performance standard). Supervisors could do so through either a written or oral examination, which must contain questions related to both the PAT testing regulations of subpart C and the signs and symptoms of alcohol and drug influence, intoxication, and misuse. FRA believes the proposed amendment would improve the required supervisor training by making it based on a performance standard rather than a design standard.

See

Office of Management and Budget, Circular A-4, 8 (Sep. 17, 2003) (discussing performance standards as opposed to design standards). Currently, the three hour duration requirement does not actually ensure that a supervisor has understood the contents of the training. Under the proposed amendment, railroads would have the flexibility to make the training as long—or short—as necessary to produce supervisors who could demonstrate their understanding of the requirements. Overall, FRA believes that the effectiveness of the training is better measured by the outcomes it produces, as opposed to the amount of time it lasts.

Paragraph (h)

FRA is proposing only a minor editorial revision to paragraph (h) to delete an unnecessary paragraph reference.

Section 219.12—Hours of Service Laws Implications

FRA is proposing a new section § 219.12 to clarify the relationship between the alcohol and drug testing requirements of part 219 and the HOS requirements of 49 U.S.C. ch. 211.

Paragraph (a)

Proposed paragraph (a) clarifies that HOS limitations do not excuse a railroad from conducting PAT or reasonable suspicion testing. These types of tests must be performed regardless of HOS requirements because they are triggered by specific unpredictable events that indicate the possible existence of a safety issue related to alcohol or drug use. When an event occurs that mandates PAT or reasonable suspicion testing, determining the cause of the event is of greater safety concern than compliance with the HOS requirements. Thus, this proposed paragraph provides that if a railroad establishes that excess service under the HOS laws is caused solely by the railroad's need to complete required PAT or reasonable suspicion testing, that the railroad used reasonable due diligence in completing the required PAT or reasonable suspicion testing, and that the railroad completed the collection within the time limits of § 219.203(d) (for PAT testing) or § 219.305 (for reasonable suspicion testing), FRA will not take enforcement action for the excess service. The railroad would, however, still be required to file an excess service report

While technically a new part 219 requirement, this language would incorporate past FRA guidance on the impact of PAT testing and reasonable suspicion testing on HOS limitations.

See

Compliance Manual 2.3.

Paragraph (b)

As with PAT and reasonable suspicion testing, reasonable cause testing is triggered by the occurrence of a specific unpredictable event (a train accident, train incident, or rule violation), the cause or severity of which may be linked to a safety issue involving alcohol or drug use by a regulated employee. FRA would therefore not pursue an HOS violation if the excess service was caused solely by a railroad's decision to conduct

reasonable cause testing, so long as the railroad used reasonable due diligence to complete the test and did so within the time limitations of proposed § 219.407 (i.e., within eight hours of the observation, event or supervisory notification that was the basis for the test). The crucial difference between incurring excess service to conduct PAT or reasonable suspicion testing as compared to reasonable cause testing, is that reasonable cause testing, unlike both PAT and reasonable suspicion testing, is authorized, but not required by part 219. For this reason, proposed paragraph (b) clarifies that a railroad would be allowed to, but is not required to, exceed HOS limitations to perform reasonable cause testing. The railroad would, however, still be required to file an excess service report.

Paragraph (c)

Proposed paragraph (c) clarifies that random tests must be handled differently from the other types of tests discussed above, since random tests are timed and planned in advance. When conducting random alcohol and drug tests, compliance with HOS requirements must take precedence since the timing of a random test is predictable and is not triggered by a potential safety concern. With one exception, railroads must schedule random tests with sufficient time for completion within an employee's HOS limitations. The only exception to this general rule is if an employee's random drug test requires additional time to complete because of the need to conduct a directly observed collection (see § 40.67). In such direct observation situations, FRA would allow completion of the test to exceed the employee's HOS limitations not because the random test was unplanned, but because the occurrence of the direct observation was unpredictable and indicative of the fact that the employee may be trying to cheat the test. As with the other types of tests described above, to not have an HOS penalty assessed, a railroad must show that any excess service was caused solely by the need to respond to a direct observation, must complete the random test as soon as practicable, and must report any excess service to FRA. FRA would also amend this paragraph to prohibit a railroad from placing a regulated employee on duty solely for the purpose of conducting a Federal random test.

Paragraph (d)

Similar to proposed paragraph (c)'s requirements related to random tests, proposed paragraph (d) would clarify that railroads must schedule follow-up tests, which are also planned events, with sufficient time to allow testing to be completed within a covered employee's HOS limitations. A railroad may place an employee on-duty solely for the purpose of a follow-up test if the employee is subject to being called for duty, with the caveat that an employee may be placed on duty for a follow-up alcohol test

only

if the employee's return-to-duty agreement requires total abstention from alcohol use. This exception is necessary because absent such an agreement, an employee may legitimately use alcohol when not prohibited by § 219.101 (that is, when not on-duty, not within four hours of reporting for duty, and not after receiving notice to report). In such a case, a follow-up test for alcohol could result in an employee being penalized for legitimate alcohol use. FRA anticipates few instances where an employee will be placed on-duty solely for the purpose of follow-up testing, but a railroad that chooses to do so must document why the action was necessary and provide the documentation to FRA upon request.

Section 219.23—Railroad Policies

This section establishes the requirements for a railroad's Federal alcohol and drug testing policy. FRA is proposing to clarify the language in this section governing the following requirements: (1) the providing of written notice to a regulated employee whenever a Federal alcohol or drug test is required under part 219; (2) the use of DOT forms for FRA-mandated alcohol and drug tests; and (3) the educational materials employers must provide to employees. FRA would also conform the section's structure to reflect amendments proposed in this section and elsewhere in part 219.

Paragraph (a)

Paragraph (a) currently requires a railroad to provide “clear and unequivocal written notice” to an employee when an alcohol or drug test is being required under FRA regulations. While the use of DOT testing forms satisfies this notice requirement, FRA is proposing several clarifications. First, FRA is proposing to amend this paragraph to clarify that the written notice must be provided by either a railroad employee or a designated service agent (e.g., by a collector providing a DOT form to an employee for an FRA random test) and must include the basis for the test (this requirement is currently contained in paragraph (b) of this section). Second, FRA would replace the phrase “violation of a specified operating/safety rule enumerated in subpart D of this part” with the simpler phrase “reasonable cause.” Finally, FRA would clarify that the notice requirements for PAT tests must be handled differently since notice of PAT tests may be provided only through use of a FRA-specific PAT testing form.

Paragraph (b)

The last sentence of current paragraph (b) provides that use of a DOT form is prohibited for a non-Federal test. This provision, amended to clarify that use of the DOT form is also prohibited for PAT testing, remains in revised paragraph (b). FRA also proposes to amend this paragraph to specify that the FRA PAT testing form may not be used for any other type of test. This is not a new requirement, but is currently found in the final sentence of paragraph (c) of this section.

Paragraph (c)

Proposed paragraph (c) discusses various requirements related to part 219 educational materials that must be provided to regulated employees. These requirements are found in existing paragraph (d) of this section. FRA is proposing minor amendments to clarify the language in this section and to provide railroads greater flexibility in making the required educational materials available to employees. As proposed, a railroad could post these materials continuously in an easily visible location at a designated reporting place for regulated employees, provided the railroad also supplies copies to any labor organizations representing a class or craft of regulated employees (if applicable). Alternatively, a railroad could provide these materials in some other manner that ensures that regulated employees can find and access them, such as posting them on a Web site accessible to all regulated employees. Through longstanding informal guidance, FRA has allowed railroads to post educational materials in easily visible locations. Thus, this proposed amendment would incorporate this guidance into the rule text. Because MOW employees are going to be newly subject to part 219 requirements and may be unfamiliar with the regulation, for three years after the effective date of the final rule, FRA is proposing to require a hard copy of the educational materials to be provided to each MOW employee. FRA is also proposing new language in this paragraph specifying that the requirement to provide educational materials to regulated employees would not apply to applicants for a regulated service position who either refuse to participate

in pre-employment testing or who have a pre-employment test result indicating a part 219 violation. This requirement is currently in § 219.104(a)(ii), but FRA believes it belongs more appropriately in this section, as it discusses the applicability of § 219.23.

Paragraph (d)

Currently, paragraph (e) of this section contains requirements governing the content of the educational materials that a railroad must provide to its covered employees. FRA is proposing to move these requirements to proposed paragraph (d). New language in the introductory text of paragraph (d) would clarify that the educational materials that must be made available to employees are the materials that are specified in proposed paragraph (c) of this section.

While paragraph (e)(1) currently requires training materials to include the “identity” of the person designated to answer employee questions about the materials, proposed paragraph (d)(1) would include this requirement but replace the word “identity” with “position title, name, and means of contacting” that individual. Similarly, language currently in paragraph (e)(2) would be moved to proposed paragraph (d)(2) and amended to require educational materials to identify each class or craft subject to part 219 (e.g., engineers, conductors, MOW employees, signal maintainers, train dispatchers) instead of using less specific terms such as “regulated employees” or “covered employees.”

Language currently found in paragraph (e)(3) would be amended in proposed paragraph (d)(3) to replace “safety-sensitive” with “regulated service” and to require the educational materials provided to regulated employees to distinguish between FRA's prohibitions on alcohol use and on drug use. FRA proposes to distinguish between the two prohibitions by explicitly stating that a railroad must provide sufficient information about regulated service that regulated employees perform so that a regulated employee knows when he or she must be in compliance with part 219's prohibition regarding alcohol use. This amendment is necessary because unlike part 219's prohibition on

alcohol

use, which applies when an employee is on duty and required to perform or is available to perform regulated service, FRA's prohibitions on

drug

use apply at all times, not just when a regulated employee is on duty and performing (or subject to performing) regulated service.

Existing paragraph (e)(5) would be further amended in proposed paragraph (d)(5) to simplify the reference to reasonable cause testing authority provided by subpart E.

FRA would also move the language in paragraph (e)(12) to proposed paragraph (d)(12) and amend it to require railroads to provide educational materials on both alcohol and drug misuse.

Section 219.25—Previous Employer Drug and Alcohol Checks

This new section would direct railroads and contractors to § 40.25, which requires employers to request and review the drug and alcohol testing record of any individual they intend to use to perform DOT safety-sensitive functions. This requirement applies only to a railroad or contractor's direct employees. For example, a railroad would not be required to check the alcohol and drug testing record of the direct employees of a contractor, since this responsibility would belong to the contractor. While § 219.701 requires all testing under part 219 (except for PAT testing under subpart C) to be completed in accordance with the requirements of part 40, FRA's experience has been that railroads sometimes overlook the drug and alcohol background check required by § 40.25. The proposed amendment would address this concern by specifically reminding railroads and contractors of the § 40.25 requirement.

This section would also remind railroads that they must comply with the prior alcohol and drug conduct requirements of § 240.119(c) for certified locomotive engineers and § 242.115(e) for certified conductors. Under these sections, a railroad determining whether a person may be or may remain certified as a locomotive engineer or conductor must consider certain part 219 violations and refusals that occurred within a period of sixty consecutive months (five years) prior to the review of the individual's records. As with the reference to § 40.25, these references to parts 240 and 242 are intended only to remind railroads of their existing responsibilities, not to make any substantive changes.

Subpart B—Prohibitions

Section 219.101—Alcohol and Drug Use Prohibited

Paragraph (a)(1)

Section 219.101 contains FRA's general prohibitions on the use and possession of alcohol and drugs by railroad employees. Currently, paragraph (a)(1) prohibits the use and possession of both alcohol and controlled substances while a covered employee is assigned to perform covered service. Existing § 219.103 provides an exception to the prohibition on the use and possession of controlled substances, so long as certain conditions are met regarding the controlled substance's prescription or authorization by a medical practitioner.

While not specifically proposed in this NPRM, FRA is soliciting public feedback on whether it should consider removing part 219's longstanding prohibitions against the on-duty possession of alcohol and controlled substances. These prohibitions were originally intended to make FRA's alcohol and drug requirements similar to those in Rule G, a longstanding railroad operating rule which prohibited the on-duty use and possession of alcohol, and was later amended to address the use and possession of controlled substances.

See

49 FR 24266, June 12, 1984. As currently written, however, the FRA's prohibition against the possession of controlled substances applies not only to the possession of illicit drugs (e.g., PCP, cocaine), but also to many prescription drugs which have legitimate medical uses (e.g., muscle relaxants, pain relievers), but have been classified by the Drug Enforcement Administration (DEA) as controlled substances because of their potential for abuse. Therefore, strictly read, FRA's prohibition against the on-duty possession of all controlled substances would prohibit the on-duty possession of many common prescription drugs, unless that possession was incident to proper use of the prescribed drug as provided for by § 219.103.

Similarly, because of its roots in Rule G, part 219 currently prohibits the on-duty possession of alcohol. Strictly read, this prohibition would ban the on-duty possession of many commonly sold over-the-counter cough and cold remedies that contain alcohol. FRA solicits comment on whether part 219 should continue to prohibit the on-duty possession of all controlled substances and alcohol, noting that no other DOT agency prohibits the on-duty possession of both controlled substances and alcohol.

While FRA does not want to prohibit the use of legal prescription drugs or over-the-counter drugs by regulated employees, provided that such use complies with the requirements of § 219.103 (discussed below), FRA is specifically seeking public comment on whether removing the prohibitions on possession of controlled substances and/or alcohol would have an adverse effect on railroad safety. Removing the prohibition on possessing controlled substances or alcohol would not affect a railroad's ability to take action under its own authority if a railroad employee

was found in possession of alcohol or a controlled substance in violation of a railroad operating rule, such as Rule G.

See id.

FRA would also amend paragraph (a)(1) to prohibit the use or possession of alcohol or any controlled substance by regulated employees while they are “on-duty and subject to performing regulated service for a railroad.” This proposed language is intended to clarify that this prohibition applies whenever a regulated employee is subject to performing regulated service for a railroad, not only when the employee is actually performing regulated service.

Paragraph (a)(4)

Paragraph (a)(4) applies to regulated employees who have a breath or blood alcohol concentration of 0.02 or greater but less than 0.04 on a Federal test. Specifically, current paragraph (a)(4) prohibits an employee whose Federal test indicates an alcohol concentration of 0.02 or greater, but less than 0.04, from performing covered service until the start of his or her next regularly scheduled duty period, but not less than eight hours from the administration of the test. Since an alcohol concentration of 0.02 or greater but less than 0.04 is not a violation of § 219.101, an alcohol test result in this range may not be used for locomotive engineer or conductor certification purposes under part 240 or part 242. FRA is proposing to redesignate the current text of paragraph (a)(4) as paragraph (a)(4)(i), and add a new paragraph (a)(4)(ii) to clarify that a railroad is not prohibited from taking further action under its own authority against an employee whose Federal test result indicates an alcohol concentration of 0.02 or greater but less than 0.04, since a result in this range indicates the presence of alcohol in the employee's system. This new language is taken from FRA guidance and is intended for clarification purposes only, not to make any substantive change to the regulatory requirement.

See

Compliance Manual 3.5.2.

Paragraph (a)(5)

Currently, paragraph (a)(5) states that a test result with an alcohol concentration below 0.02 must be considered negative and is not evidence of alcohol misuse. It also provides that a railroad may not use a Federal test result below 0.02 either as evidence in a company proceeding or as a basis for subsequent testing under company authority, and that a railroad may compel cooperation in additional breath or body fluid testing only if it has an independent basis for doing so.

FRA is proposing to add new language to this paragraph clarifying that an independent basis for subsequent

company

authority alcohol testing would exist only when, after a negative FRA reasonable suspicion alcohol test result, an employee exhibits additional or continuing signs and symptoms of alcohol use. (A railroad may

not,

however, conduct an additional

FRA

test in such situations.) If an independent basis for testing exists and a subsequent company authority alcohol test indicates a violation of a railroad alcohol operating rule, the company test result is independent of the Federal test result and must stand on its own merits. FRA is proposing this amendment, which is taken from FRA guidance, to allow railroads to perform company authority alcohol tests in the infrequent and limited circumstances where an employee continues to exhibit signs and symptoms of alcohol use even after the employee's FRA test result indicates an alcohol concentration below 0.02.

Section 219.102—Prohibition on Abuse of Controlled Substances

Currently, this section prohibits employees performing covered service from using a controlled substance at any time, except as permitted by § 219.103. FRA's only proposed amendment to this section would substitute the term “regulated employee” for “employee” to reflect the expansion of this part to cover employees who perform MOW activities.

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

Despite its title, “Prescribed and over-the-counter drugs,” § 219.103 currently covers only a small portion of prescription drugs and no over-the-counter (OTC) drugs, since most prescription and OTC drugs are not Schedule II-V controlled substances. FRA is not proposing any changes to this section, which has not been changed since its implementation in 1985. Instead, FRA is asking for information in response to several questions. How do railroads administer § 219.103's requirements? Does this section effectively address the safety concerns raised by the use of prescription and OTC drugs by individuals subject to part 219? What, if any, amendments should FRA make to address the increase in prescription and OTC drug use over the last 25 years? Are any amendments necessary to address FRA's proposed addition of employees who perform MOW activities?

Section 219.104—Responsive Action

FRA is proposing both clarifying and structural changes to this section, which addresses what responsive action a railroad must take when it determines that an employee subject to part 219 has either violated certain provisions part 219 (or the alcohol or drug misuse rule of another DOT agency) or refused to provide breath or body fluid specimens under a mandatory provision of the regulation. Specifically, FRA proposes to clarify that: (1) The responsive action requirements of this section (except for the right to a hearing under proposed paragraph (c)

apply to a regulated service applicant who has refused to take a pre-employment test, as determined by the provisions of part 40; (2) the notice a railroad must provide to a regulated employee before removing him or her from regulated service must be in writing; and (3) that regulated employees have the right to request a hearing under this section following an alleged violation of § 219.101 or § 219.102.

Paragraph (a)

FRA proposes to add a new sentence to paragraph (a)(2) specifying that the procedures and rights in this section apply to reasonable cause tests conducted under FRA authority, but not to reasonable cause tests conducted under a company's own authority. This would not be a substantive change, only a reminder to railroads of one important distinction between a reasonable cause test conducted under FRA authority and one conducted under company authority. FRA also proposes to remove the word “mandatory” as used in paragraph (a)(2) to describe the provisions under which a railroad may require an employee to participate in alcohol or drug testing, since neither reasonable cause or pre-employment alcohol testing are mandatory under part 219. If, however, a regulated employee (or applicant for regulated service) refuses a reasonable cause or pre-employment alcohol test that has been

conducted under FRA authority,

the employee would be subject to the consequences for unlawful refusals found in this section.

Currently, paragraph (a)(3) explains that the procedures and rights in § 219.104 and the informational requirements in § 219.23 do not apply: (1) When a test is conducted under other than part 219 authority (e.g., a test under a company medical policy); and (2) when an applicant refuses to participate in a pre-employment test or otherwise has a positive pre-employment test indicating the misuse

of alcohol or controlled substances. FRA is proposing to move the language addressing § 219.23 into § 219.23 itself, and to move the remainder of this paragraph to a new paragraph (e), which would contain provisions specifically discussing the applicability of this section.

Paragraph (b)

Currently, paragraph (b) requires a railroad, prior to “withdrawing” an employee from covered service, to provide notice to the employee of the reason for his or her withdrawal. FRA would clarify that this notice must be in writing. A railroad may initially give an employee verbal notice, provided the railroad follows up as soon as practicable with an official written notice. For consistency of language throughout this section, FRA is also proposing to replace “withdrawing” in this paragraph with the term “removing.” FRA would also require the notice to inform the employee that he or she is prohibited from performing any DOT safety-sensitive functions until he or she successfully completes the evaluation, referral, and treatment processes required for return-to-duty under part 40. FRA believes this information would discourage employees from job hopping to try to avoid their return-to-duty requirements. A railroad may also use this notice to comply with § 40.287, which requires an employer to provide to each employee who violates a DOT drug and alcohol regulation a listing of SAPs readily available to the employee and acceptable to the employer, with names, addresses, and telephone numbers.

Paragraph (c)

Paragraph (c)(1) currently specifies that employees can request a hearing if they “[deny] that the test result is valid evidence of alcohol or drug use prohibited by this subpart.” FRA is proposing to remove this phrase in to make clear that the removal from duty and hearing procedures in this section also apply to violations of §§ 219.101 or 219.102 that have

not

been detected through testing (e.g., a refusal or a violation of the prohibition against possessing alcohol). This proposed amendment would clarify that an employee may demand a hearing for any violation of §§ 219.101 or 219.102, regardless of whether the alleged violation was based on a test result.

Similarly, FRA would amend paragraph (c)(4) to clarify that the statement that part 219 does not limit the procedural rights or remedies available (e.g., at common law or through an applicable bargaining agreement) to an employee, applies to all violations of part 219, not just those based on test results.

Paragraph (d)

Currently, paragraph (d) provides that a railroad must comply with “the return-to-service and follow-up testing requirements, and the Substance Abuse Professional [SAP] conflict-of-interest prohibitions, contained in §§ 40.305, 40.207, and 40.209 of this title.” FRA would simplify this language by deleting these section citations and referring generally to the requirements in part 40 for SAP evaluations, the return-to-duty process, and follow-up testing.

Paragraph (e)

FRA is proposing to add a new paragraph (e), which would clarify when the requirements of this section do not apply.

Paragraph (e)(1) would contain the language currently in paragraph (a)(3)(i) stating that the requirements of this section do not apply to actions based on alcohol or drug testing that is not conducted under part 219.

Paragraph (e)(2) would clarify that the requirements in this section do

not

apply to Federal alcohol tests with a result less than 0.04. As discussed above in the analy

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