Alcohol Testing; Amendments to Alcohol/Drug Regulations; Final Rule

SUMMARY: FRA issues a final rule to conform its regulations on control

of alcohol and drug use in railroad operations to the requirements of

the Omnibus Transportation Employee Testing Act of 1991 (Act). Among

other changes, FRA now requires pre-employment and random alcohol

testing of safety-sensitive employees, and makes the reasonable

suspicion component of for cause testing mandatory for both alcohol and

drugs. FRA also amends its procedures to incorporate split sample

testing and to incorporate the departmental alcohol testing procedures

published elsewhere in today's Federal Register.

EFFECTIVE DATES: This final rule is effective January 1, 1995, except

that the amendment to Sec. 219.707 and Sec. 219.708 are effective

August 15, 1994.

ADDRESSES: Any petition for reconsideration should be submitted in

triplicate to the Docket Clerk, Docket No. RSOR-6, Office of the Chief

Counsel, Federal Railroad Administration, 400 7th Street SW., room

8201, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Walter C. Rockey, Executive Assistant

to the Associate Administrator for Safety (RRS-3), Office of Safety,

FRA, Washington, DC 20590 (Telephone: (202) 366-0897) or Patricia V.

Sun, Trial Attorney (RCC-30), Office of Chief Counsel, FRA, Washington,

DC 20590 (Telephone: (202) 366-4002).

SUPPLEMENTARY INFORMATION:

Background

On December 15, 1992, FRA published a notice proposing to amend its

regulations on alcohol and drug misuse (49 CFR part 219) in response to

the testing requirements mandated by the Omnibus Transportation

Employee Testing Act of 1991 (57 FR 59588). At hearings in Washington,

DC, Chicago, and San Francisco, FRA heard testimony from over 20

parties, including the major industry trade associations (the American

Association of Railroads (AAR) and the American Short Line Railroad

Association (ASLRA)) and labor organizations (the Brotherhood of

Locomotive Engineers (BLE), the Brotherhood of Railroad Signalmen

(BRS), and the Railway Labor Executives' Association (RLEA)). FRA also

received oral or written comment from the American Public Transit

Association (APTA), the Transportation Trades Department (TTD) of the

AFL-CIO, the National Transportation Safety Board (NTSB), individual

freight and commuter railroads, service providers, and state and local

governments, among others. FRA has reconsidered some of its proposals

in light of the comments received.

First, the effective date for this rule is January 1, 1995, to

ensure that EBTs that meet part 40 specifications will be widely

available and to allow for implementation of quality control systems.

This will also allow railroads time to purchase evidential breath

testing devices (EBTs) and phase in other part 40 requirements such as

breath alcohol technician training. To ensure a smooth transition,

existing provisions will remain in effect and voluntary compliance

before the effective date will not be allowed. (However, urine split

sample drug testing is effective beginning on August 15, 1994. See part

40 and Secs. 219.707 and 219.708 of this final rule.

Second, FRA permits screening tests to be conducted on preliminary

breath testing devices (PBTs) found on the Conforming Products List

(CPL) of the National Highway Traffic Safety Administration (NHTSA).

EBTs that currently qualify for the CPL but do not meet the

specifications listed in DOT's amended ``Procedures for Transportation

Workplace Drug and Alcohol Testing Programs'' (49 CFR Part 40 (Part

40), published elsewhere in today's Federal Register), may be used as

PBTs. As discussed in part 40, NHTSA will develop model specifications

for a new CPL to qualify other alcohol testing devices (such as saliva

tests and breath tubes) as PBTs. Procedures for these additional PBTs

will be addressed in future rulemakings.

Third, in a separate notice issued by the Office of the Secretary

(OST), the Department proposes to allow blood testing for screening and

confirmation tests in the case of reasonable suspicion or after

qualifying accidents (for modes other than rail). Combined, the use of

PBTs and blood would be an alternative testing methodology that could

be used in remote locations or unusual circumstances when EBTs are

inaccessible. Allowing a blood test option for for cause testing would

substantially reduce the costs of alcohol testing, since railroads

would not have to ensure system-wide availability of breath alcohol

technicians (BATs) and EBTs for unplanned testing events. Railroads

would then be free to plan the deployment or contracting of BATs and

EBTs for the remaining types of testing (pre-employment, return to

service, follow-up, and random) which are all, of course, scheduled by

the railroads.

Since FRA has repealed its existing breath and blood testing

procedures (Sec. 219.104(e) and former Sec. 219.303), for cause testing

will be conducted exclusively under today's amended part 40 procedures,

which contain new breath testing safeguards. For now, FRA allows only

breath to be used in for cause testing. As mentioned above, however,

the Department is proposing part 40 blood testing procedures (see the

DOT notice titled ``Procedures for Transportation Workplace Drug and

Alcohol Testing Programs,'' 49 CFR part 40, published elsewhere in

today's Federal Register). If the Department adopts this proposal, and

allows for cause blood alcohol testing, FRA will allow railroads to

conduct for cause blood alcohol testing under part 40 procedures.

Also, FRA moves the authority for optional post-accident breath

testing formerly contained in Sec. 219.303 from for cause testing to

post-accident testing. Although urine and blood samples must still be

collected and sent to FRA's post-accident laboratory for full

toxicological testing, the EBT breath testing option allows railroads

to obtain immediate test results. (Post-accident breath testing must be

conducted in accordance with part 40, however, since FRA will not

retain Sec. 219.303's procedures.) This relocation means, in effect,

that the categorical standards used in subpart C will govern, rather

than the reasonable cause criteria of subpart D.

Additional discussion of alcohol testing methodology can be found

below and in a separate departmental Final Rule, ``Procedures for

Transportation Workplace Testing Programs'' (49 CFR part 40), also

published elsewhere in today's Federal Register.

Finally, for random alcohol testing, FRA will introduce

performance-based testing by industry. Performance-based testing was

widely supported by commenters. As proposed, FRA will use a graduated

submission and implementation schedule similar to the one used to

phase-in random drug testing. Railroads will initially be required to

conduct random alcohol testing at a 25 percent rate. Performance-based

testing, as determined by the Administrator, will begin a year after

industry-wide implementation of random alcohol testing has occurred.

(In a separate departmental NPRM in today's Federal Register, FRA also

proposes to implement performance-based testing for random drug

testing. See ``Random Drug Testing Program.'')

The section-by-section analysis discusses these and other

amendments contained in the final rule. (Editorial changes and several

proposed amendments that did not receive comment are adopted without

further discussion.)

Interested parties should also review the departmental preamble

(common preamble) published by the Office of the Secretary of

Transportation elsewhere in today's Federal Register, which is

incorporated herein by reference. (The Federal Aviation Administration

(FAA), Federal Highway Administration (FHWA), Federal Transit

Administration (FTA) and Research and Special Projects Administration

(RSPA) are also publishing alcohol testing rules in today's Federal

Register.) Although the common preamble discusses issues pertaining to

all of the modal rules, some of its discussion is not directly

applicable to FRA's rule. The basis for any differences can be found in

the section-by-section analysis.

For convenience and ease of reference, the entire rule text as

amended is republished.

Multi-modal Coverage

For railroads, multi-modal coverage primarily affects those

employees (mainly signal maintainers) who both perform covered service

and hold Commercial Driver's Licenses (CDLs). These employees are

subject to FRA and FHWA regulations. CDL holders who do not perform

covered service (such as maintenance of way and shop employees) are

subject only to FHWA's regulations.

The ASLRA and rail labor wanted all railroad employees to be

covered by FRA only. The AAR, on the other hand, recommended that FHWA

regulations determine coverage for railroad commercial vehicle drivers,

although testing would be conducted in accordance with FRA's

regulations. Estimating that approximately 1,000 rail drivers per major

railroad are subject to dual coverage, the AAR expressed concern about

how to resolve differences between FRA and FHWA regulations and pointed

out that this group of employees could be subject to a different random

testing rate if performance-based rates are set by industry.

While sympathetic to these industry concerns, FRA and DOT believe

that modal coverage, like reportability (see Annual Reporting

Requirements; Amendments to Alcohol/Drug Regulations, 58 FR 68232),

must be determined by employee function to be logically consistent. As

guidance, FRA's policy for CDL holders who perform covered service (and

other employees subject to dual coverage) is as follows:

For pre-employment and random testing, an employee is covered by

whichever operating administration (OA) covers more than 50% of that

employee's function. For post-accident and reasonable suspicion

testing, however, coverage is determined by the function the employee

was performing at the time of the accident or incident. Finally, for

return to service and follow-up testing, the employee is covered by the

same OA to which the initial positive was reported.

For example, a signalman who holds a CDL but performs less than 50%

of his time driving is covered by FRA for pre-employment and random

testing. If that signalman were to have a reportable accident while

driving a commercial motor vehicle, however, the post-accident test and

any return to service tests and follow-up tests would be governed by

FHWA. On the other hand, if in another instance a supervisor determined

that the same signalman was impaired by a controlled substance while

performing covered service under FRA's regulations, the reasonable

suspicion test result and any post-positive return to service and

follow-up test results would be governed by FRA.

Under the management information system (MIS), test results should

be reported to whichever OA governed the particular type of test. Each

OA will calculate the violation rate for its industry, based on

reported random test results. It is possible, therefore, that CDL

holders covered by FHWA regulations could be tested at a different rate

from those under FRA regulations.

See the common preamble for further discussion of this issue.

Section by Section Analysis

Subpart A--General

Sec. 219.3 Application.

Paragraph (b)(2)

FRA continues to exempt small railroads from subparts D, E, F and

G. Although they are exempt from mandatory reasonable suspicion

testing, small railroads must enforce the prohibitions contained in

Secs. 219.101 and 219.102 (presumably through the industry's

longstanding Rule G and their own for cause testing programs).

Additionally, even though small railroads are exempted from the

employee assistance requirements of subpart E, they must provide

information on substance abuse services to their covered employees, as

required by Sec. 219.23.

Paragraph (b)(3)

As mentioned above, FRA recently published a final rule

implementing the drug testing portion of the management information

system, a new reporting system for alcohol and drug program information

that replaces the data that railroads currently submit in their annual

reports under Sec. 217.13(d). For reasons discussed in the drug MIS

rule, FRA exempts railroads with fewer than 400,000 manhours from all

MIS reporting requirements (including the alcohol program data elements

added in today's final rule).

Foreign Application

Foreign railroads have been subject to portions of FRA's

regulations on the control of alcohol and drug use (49 CFR part 219)

since February 10, 1986. In a Notice of Termination of Rulemaking

Proceedings published elsewhere in today's Federal Register, FRA

withdraws its advance notice of proposed rulemaking (ANPRM) on

application of the Act's new requirements to foreign railroads

operating within the United States (57 FR 59605). In lieu of a separate

rulemaking on this issue, FRA revises Sec. 219.3(c) to continue and

make permanent its current level of application of alcohol and drug

testing to foreign railroads operating within the United States.

As applied, FRA's current approach affects only Canadian employees,

since Mexican employees do not operate in U.S. territory. FRA does not

seek extra-territorial application of its regulations. A covered

service employee whose primary place of service or point of departure

(``home terminal'') for rail transportation services is located outside

the U.S. continues to be subject to limited exceptions in coverage,

since the primary terms and conditions of his or her employment were

established under foreign law. Thus, the employee is subject to FRA's

prohibitions and return to service conditions, as well as post-accident

and for cause testing, only when operating in U.S. territory. (Pursuant

to the Act, the employee is subject to mandatory reasonable suspicion

alcohol and drug testing while on U.S. soil, although the accident/

incident and rules violation components of FRA's for cause testing

program remain discretionary.) Employee assistance policies (subpart

E), pre-employment testing (subpart F) and random testing (subpart G)

remain subject to the law of the country where the employee is based

(as determined by the employee's home terminal or reporting point).

A U.S.-based covered service employee of a foreign railroad

continues to be subject to all components of FRA's program, as amended.

For both U.S.-based and foreign based covered service employees, all

testing pursuant to part 219 must be conducted under the procedures set

forth in part 219 and part 40, as amended in today's Federal Register.

Sec. 219.5 Definitions.

FRA revises its definition of alcohol to conform to the definition

published by NHTSA in its September 17, 1993 notice on ``Highway Safety

Programs; Model Specifications for Devices to Measure Breath Alcohol''

(58 FR 48705), which proposed to revise model specifications for EBTs.

As discussed in both part 40 and the common preamble, FRA now requires

employers to look to NHTSA's CPL for both PBTs and EBTs.

Commenters were split on FRA's proposal to expand its definition of

covered employees to include first line supervisors in random alcohol

and drug testing programs. Most industry commenters found this proposal

unjustified, since supervisors as a group have no record of substance

abuse directly affecting railroad safety and are already subject to

post-accident and for cause testing if they perform covered service.

The ASLRA did not want supervisors to count as covered employees for

purposes of the small railroad exemption (under FRA's proposal,

supervisors would not have been considered Hours of Service Act

employees towards the 15 employee threshold). On the other hand, the

Long Island Railroad wanted testing expanded to include every

supervisor in the chain of command, and Amtrak already uses its own

authority to test its first two levels of supervisors (although Amtrak

was concerned about preemption by FRA). Rail labor has always supported

supervisory testing, for both equity and safety reasons.

On balance, FRA has decided to drop this proposal since there is no

statutory mandate to include supervisors in testing. Moreover, it would

often be difficult to determine where first-line supervisory lines

should be drawn since supervisors frequently perform multiple

functions. Further, other modal administrations have not included

supervisory personnel in the covered class.

FRA amends its proposed definition of substance abuse professional

(SAP), to include addiction counselors who have been certified by the

National Association of Alcoholism and Drug Abuse Counselors

Commission. This DOT-wide amendment is discussed in more detail in the

common preamble.

FRA also substitutes substance abuse professional for EAP counselor

wherever that term appeared in the text of the Locomotive Engineer

Certification regulation. Commenters did not offer any other changes to

conform the language of 49 CFR part 240 to the language of this part.

FRA adds a definition, ``violation rate,'' which measures the rail

industry's overall random alcohol ``positive'' rate. Each year, the

Administrator will examine the violation rate to determine whether the

industry testing rate should be adjusted, as explained in Sec. 219.608

on performance-based testing.

Sec. 219.9 Responsibility for compliance.

Paragraphs (a) and (c)

The recently enacted Rail Safety Enforcement and Review Act

(RSREA), Public Law No. 102-365, amended the Federal Railroad Safety

Act of 1970 (FRSA) (See 45 U.S.C. 438(a)) to clarify that FRA's safety

jurisdiction extends to all entities that may violate the railroad

safety laws. FRA amends this section to make clear that this part, like

all regulations issued under authority of the FRSA, applies not only to

railroads but also to any other entity that may violate this part,

including independent contractors who provide goods and services to

railroads and the employees of such contractors.

Metro-North and the Metropolitan Transit Authority commented that

this amendment appeared to make a railroad responsible for

administering substance abuse programs for its independent contractor

employees. That is not FRA's intent. FRA is concerned at this time only

with ensuring that all persons who perform covered service for a

railroad are subject to the same testing, regardless of whether the

person has a direct employment relationship with the railroad. For FRA

purposes, a railroad is in compliance if it contracts with its

contractors who perform covered service to assure their compliance with

part 219. The railroad may then, for example, attach copies of these

contracts as part of its random alcohol testing plan submission. In

practice, FRA anticipates that many contractors will develop a single

substance abuse program for their employees, which can be recognized by

all the railroads that the contractor serves. FRA has added regulatory

text to clarify what is intended here.

FRA will publish a separate notice to make conforming revisions to

the penalty schedule set out in Appendix A to part 219.)

Sec. 219.11 General conditions for chemical tests.

Paragraph (g)

As proposed, FRA continues to require supervisors to receive a

minimum of three hours of combined training on alcohol and drugs. FRA

received little comment on this issue. While two commenters felt that

60 minutes should be sufficient, particularly if offered as an annual

refresher course, a commuter railroad that already provides 8 hours of

supervisory training felt that 3 hours was a bare minimum.

FRA believes that a minimum of 3 hours is sufficient, but now

requires training on post-accident testing criteria and collection

procedures. Railroads may integrate these required topics into their

current training programs, which must be made available for inspection

upon request.

Sec. 219.13 Preemptive effect.

Section 219.13, which states the preemptive effect of safety

regulations issued under the FRSA (See 45 U.S.C. 434), remains

unchanged. The Act expressly did not provide a new preemption standard;

instead, it amended the FRSA to require the Secretary to issue rules,

regulations, standards, and orders relating to alcohol and drug use in

railroad operations.

Sec. 219.15 Alcohol concentrations in blood and breath.

This section is deleted since a revised alcohol concentration

definition is included in Sec. 219.5.

Sec. 219.21 Information collection.

As mentioned above, FRA has replaced Sec. 217.13(d)'s reporting

requirements with a management information system to collect

information on railroad drug misuse programs. (MIS comments were

addressed in that rule.) After railroads have implemented alcohol

testing, FRA will require reporting of alcohol misuse programs data as

well. In Sec. 219.801, FRA adds data elements on alcohol testing to

complete the MIS' information collection on railroad substance abuse

programs. FRA will use this data to monitor compliance and enforcement.

Sec. 219.23 Railroad policies.

Paragraph (f)

FRA received no comments on this paragraph. In addition to the

proposed requirements, FRA requires railroads to publish information to

each covered employee on the signs, symptoms and effects of alcohol

misuse, as well as available methods of intervention once an alcohol

problem is suspected. FRA hopes that publishing such information will

facilitate self- and peer-referrals, particularly when supplemented by

the list of EAP resources that must be made available to covered

employees under paragraph (d) of this section. Railroads must therefore

provide the required information to all of their covered employees (not

just those who have been identified as having a substance-abuse

problem).

Railroads may of course provide additional information beyond these

requirements.

Subpart B--Prohibitions

As discussed above, existing provisions will remain in effect to

allow for a smooth transition. The effective date for the amendments to

this subpart is January 1, 1995.

Sec. 219.101 Alcohol and drug use prohibited.

Paragraph (a)(3), Pre-Duty Abstinence

FRA proposed to prohibit a safety-sensitive employee from using

alcohol either for four hours before reporting to perform covered

service, or for the period of time running from when the employee

receives a ``call,'' or notice to report for covered service, to when

the employee actually reports for covered service, whichever is the

lesser of the two periods. FRA also proposed to prohibit a railroad,

through an employer's duty to prevent violations of Sec. 219.101 and

Sec. 219.102, from allowing an employee to report for covered service,

or go or remain on duty in covered service, if the railroad has actual

knowledge that the employee is in violation of Sec. 219.101(a)(3).

Industry commenters were concerned that specifying a pre-duty

abstinence period would erode Rule G's prohibition on working with any

alcohol in one's system, by implying that employees may report to work

with alcohol in their system so long as consumption occurred before the

required abstinence period. The Chicago and North Western (CNW)

commented that pre-duty abstinence would be difficult to enforce, and

should more properly be identified as the employee's responsibility.

Several commenters felt that FRA's proposed period was too short.

APTA, the Metropolitan Transportation Authority and SEPTA suggested

mandating eight hours of pre-duty abstinence. The NTSB preferred a

longer period, but would also support an eight hours of pre-duty

abstinence if uniformly applied.

New Jersey Transit (NJT), however, while recommending that pre-duty

drinking should be absolutely prohibited, felt that the proposed

abstinence period would be useful both as an enforcement and a public

relations tool. NJT also felt that the employee should have the option

to take a pre-duty test if either the employee or the employer suspects

that the employee may be in violation.

FRA had asked for comment on whether this pre-duty prohibition is

workable for ``short-call'' employees, such as those who operate trains

in pool crew service and off extra boards and signal maintainers who

are subject to call without notice round the clock to handle ``trouble

calls.'' In response to this query, the BLE and BRS recommended that

FRA mandate by-pass provisions (mark-offs), particularly for signal

employees subject to short call. The RLEA agreed that employees should

be allowed to mark off and stay off-duty when impaired, and suggested

that any potential for abuse could be curbed by setting limits; for

example, requiring an EAP referral for any employee who marks off three

or more times in a year. The TTD commented that pre-duty abstinence

would be impracticable for those employees who are always subject to

call, and that FRA should allow employees to mark off for any type of

impairment.

As discussed in the NPRM, FRA encourages railroads to adopt mark

off procedures in the concept of voluntary programs such as Operation

Red Block. However, because the successful implementation of such

programs requires faithful adherence to mutual undertakings, FRA

believes that implementation of such programs should be a bargaining

issue rather than a federal mandate. Implementation of mark-off

procedures therefore remains voluntary. In contrast, the eight hour

pre-duty abstinence period suggested by the NTSB and some carriers

would in effect impose total prohibition on short-call employees. After

considering the comments, FRA believes that its proposal is the most

workable compromise and thus the approach most likely to elicit

voluntary compliance.

Paragraph (a)(4)

Rail management commenters uniformly supported a .02 standard (the

equivalent of zero tolerance, because of the technological limitations

of EBTs), because of concerns that the proposed system would preempt

Rule G's longstanding prohibitions against alcohol use. Railroads

opposed a .04 standard for the same reason.

Because of the technological limitations of EBTs, rail labor

considered a .04 standard to be the most defensible, and suggested that

any alcohol level below be considered a negative. The RLEA saw no

conflict between a .04 standard and Rule G, since railroads would

remain free to maintain a zero tolerance standard under their own

authority.

The NTSB supported a .00 standard, which would not permit an

employee with any positive BAC to perform ``safety-sensitive

functions,'' citing evidence in aviation and highway research of a

hangover effect on performance many hours after a person's BAC had

returned to zero.

After considering the comments, FRA believes that none of these

recommended standards is appropriate. A true .00 standard could not be

enforced, as a practical matter. A .02 standard would probably cause

SAPs to waste time and effort on employees who do not in fact have

alcohol or substance abuse problems, while a .04 standard would

actually invite some employees to risk using alcohol, in the hope that

their BAC would be below .04 by the time that they could be tested

(e.g., employees at remote work sites). This approach would also

deprive railroads of information that could be used to enforce Rule G

and other, more stringent company policies.

FRA therefore believes that the proposed ``bifurcated'' or ``two-

tier'' system is necessary to avoid having the full consequences of a

violation apply to those situations where an employee's test result

indicates an alcohol concentration between .02 percent and .039

percent. The employee will not have to be evaluated by a SAP, or

administered a return to duty test. However, since use of alcohol

indicates that the employee may present a safety risk, the employee

will not be allowed to perform covered service for a minimum of eight

hours after administration of the test.

With the sole exception of pre-employment tests for final

applicants for employment (discussed below), FRA does not adopt the

proposed retest option. Railroads were unsure as to what to do with an

employee while waiting for his or her BAC to drop to below .02., since

Rule G prohibits a covered employee who has any alcohol in his or her

system from being on company property. Since this option is

incompatible with traditional railroad policy, FRA believes that

employees who are identified to have low levels of alcohol can more

appropriately be handled through Operation Redblock and other existing

programs specifically developed to fit industry needs.

Like the very similar rule currently in effect, the bifurcated

system does not preempt a railroad's independent authority to test and

discipline under Rule G. As stated in Sec. 219.1, railroads retain the

latitude to adopt more stringent standards under their own authority.

For instance, railroads retain their authority to discipline an

employee under company policy for a .02-.039 test result conducted

under FRA authority or to discipline an employee found to have violated

Rule G based solely on supervisory observations. The latter option

should prove useful for very small railroads (who will not be required

to conduct mandatory reasonable suspicion testing) when faced with an

obviously drunk employee reporting for duty, particularly if an

evidential breath testing device (EBT) is not readily available.

Sec. 219.104 Responsive action.

Existing provisions will remain in effect to allow for a smooth

transition. As discussed above, however, the effective date for

implementation of post-positive return to service and follow-up alcohol

testing is January 1, 1995.

Paragraph (d), Return to Covered Service

FRA proposed to require a return to service test for the substance

of the original positive only. Because of concerns about polydrug and

alcohol abuse, discussed in greater detail in the section below, FRA

also authorizes a railroad to require an employee to be tested for both

alcohol and drugs, if such return to service testing has been

recommended by the SAP for that employee.

Paragraph (e), Follow-up Testing

Earlier, FRA discussed the deletion of its current blood testing

procedures. As proposed, FRA deletes the breath and blood testing

procedures formerly contained in this paragraph. Testing will instead

be conducted under part 40's more rigorous evidential breath testing

procedures, which should provide employees ample reassurance that

breath testing will be fair and technically sound.

FRA had proposed that an employee's first year of follow-up testing

after a post-positive return to covered service include a minimum of

six unannounced tests that would track the basis for the employee's

removal; that is, an employee who was removed for misuse of controlled

substances or for refusing to provide body fluid samples under a

mandatory provision of this part would be follow-up tested only for

drugs, while an employee who was removed for misuse of alcohol or for

refusing to provide breath under a mandatory provision of this part

would be follow-up tested only for alcohol. After this first year,

additional follow-up testing would be discretionary upon recommendation

of the SAP, who is authorized to recommend follow-up testing for up to

48 months.

FRA asked for comment on the issues of recidivism and polydrug

abuse. In its compliance reviews, FRA uncovered instances of railroads

failing to conduct follow-up tests on employees who had returned to

covered service following positive drug tests. In several cases,

routine random testing had detected drug use by post-positive

employees. Moreover, FRA's study of clinical literature shows some

incidence (10-50 percent) of individuals abusing both alcohol and one

or more illicit or controlled substances. There is more evidence for

individuals who cease drug misuse crossing over from drugs to alcohol;

the cross-over from alcohol to drugs (and particularly those drugs

contained in the DHHS test panel) is not as well documented.

Comment was divided. The AAR and the ASLRA, among others, felt that

follow-up testing should be left completely to the discretion of the

SAP. Rail labor agreed. SEPTA and APTA however, wanted mandatory

testing for 60 months, with APTA recommending a minimum of 12 tests the

first year and 6 tests each year thereafter. APTA and all rail

commenters wanted the authority to follow-up test for both alcohol and

drugs, regardless of the substance of the positive. SEPTA offered data

from its program, which includes 30 months of follow-up testing. Other

than reasonable suspicion testing, SEPTA's highest positive rate (10.17

percent in the last fiscal year) was for post-positive return to

service tests.

To address concerns about employee relapse, FRA retains its

proposed testing minimums while allowing for greater cross-substance

testing. Broader monitoring may help detect instances where an employee

switches to alternative drugs after being deprived of his or her

primary drug of abuse. FRA therefore requires a return to service test

and six follow-up tests in the first 12 months for the substance (or

class) of the original positive. In addition, a railroad may choose to

test for both alcohol and drugs at the return to service test, and at

follow-up tests for a total of up to 60 months, if such testing is

recommended by the SAP. The SAP may make such additional testing part

of a conditional recommendation for the employee's return to service.

This approach allows for flexible case management, recognizing that

an employee who misuses either alcohol or a controlled substance could

have a more general propensity to abuse psychoactive drugs (i.e.,

active polydrug abuse or incipient cross-addiction). Its intent is to

eliminate any question as to the employer's right and obligation to

provide for aftercare monitoring of employees who have violated alcohol

or drug rules.

Paragraph (f)

(As discussed above, the .02-.039 rule text is now in

Sec. 219.101(a)(4).) This paragraph seeks to ensure that the SAP places

the interest of safety above other considerations, when recommending

treatment or advising the railroad about whether to return an employee

to covered service.

Subpart C--Post-Accident Toxicological Testing

The common preamble discussion of post-accident testing does not

apply to FRA's program, which unlike those of other modes, requires

full toxicological testing following designated accidents and

incidents.

As discussed above, existing provisions will remain in effect to

allow for a smooth transition. The effective date for the amendments to

this subpart is January 1, 1995.

Sec. 219.201 Events for which testing is required.

Paragraphs (a)(1)(iii) and (a)(2)(ii), Damage thresholds for Major

Train Accidents and Impact Accidents

FRA received little comment on its proposal to raise the amount of

railroad property damage required for major train accidents and for

impact accidents, which was prompted by recent low positive rates.

Accordingly, FRA redefines Sec. 219.201(a)(1)(iii) (major train

accidents) to require testing for accidents that cause $1,000,000 or

more in damage. FRA also redefines Sec. 219.201(a)(2)(ii) (impact

accidents) to require testing for non-injury accidents that cause

$150,000 or more in damage. The NTSB uses this reporting threshold

(although the NTSB, unlike FRA, includes damage to lading).

FRA expects that much of this data will be replaced through

railroad for cause testing. (Commenters were silent as to whether

Subpart D testing should be required for events between the existing

$50,000 threshold and the proposed $150,000 threshold where there is a

reasonable belief that the particular employee contributed to the

accident.)

Paragraph (b) [Exceptions]

All commenters supported FRA's proposal to exclude from post-

accident testing accidents that otherwise qualify but are clearly

attributable to vandalism. (The NTSB did not comment.) FRA therefore

adopts this proposal. Consistent with the other exceptions, the

vandalism exception holds railroad supervisors to Sec. 219.201(c)'s

reasonable inquiry/good faith judgment standard when making

determinations.

Sec. 219.203 Responsibilities of railroads and employees.

Paragraph (a), Employees Tested

As discussed above, once a railroad has made a good faith

determination that a qualifying event has occurred, the railroad may

conduct breath alcohol testing if an EBT is available and breath

testing does not interfere with or delay collection of samples for

mandatory blood and urine testing. While railroads must still collect

blood and urine samples for full toxicological testing, this option

allows quick enforcement action since there is no need to wait for

laboratory analysis.

Although FRA has moved the authority for optional breath testing

from for cause testing to post-accident testing, the procedures

specified in Sec. 219.303 have not been retained. Instead, railroads

who choose to exercise this option must conduct breath testing in

accordance with the new Part 40 procedures published today.

FRA will revise Forms 6180.73 and 6180.74 to allow for railroad

reporting of EBT test results. Form 6180.73 will add a check off box on

the railroad representative's copy asking whether one or more employees

were breath tested. Form 6180.74 will add a similar check off box for

each tested employee. If breath alcohol tests are conducted, the

railroad may either attach a copy of each Part 40 breath alcohol

testing form (the railroad will have to make an additional copy for FRA

purposes, since the Part 40 form allows only for BAT, employee, and

employer copies) to the FRA forms to be shipped with the toxicology

kit, or send a copy of each Part 40 form directly to FRA within 10 days

of the tests. (Appendix C will contain revised instructions.)

FRA expects the results from breath and blood alcohol testing to

almost always vary, since an EBT test will usually be conducted hours

before the railroad is able to collect blood and urine samples,

allowing the employee's BAC to change in the interim. The breath test

result will always stand on its own, however, since by definition an

EBT test always meets evidential standards.

FRA will use the results from all three types of testing (breath,

blood, and urine) for post-accident toxicological analysis, since the

purpose of mandatory toxicological testing remains unchanged. Blood and

urine samples will continue to be collected as independent aids to

accident investigation, not as backups for EBT test results.

Sec. 219.205 Sample collection and handling.

FRA will publish an amended Appendix C to part 219 to modify post-

accident procedures, toxicology kits, forms, and instructions to

accommodate optional breath alcohol testing and mandatory urine split

sample procedures. (FRA already splits blood samples into two sealed 10

milliliter tubes.) FRA will announce when the new kits and forms become

available.

Upon employee request, FRA's post-accident toxicological laboratory

will ship the employee's sealed split samples to another DHHS-certified

laboratory for testing.

Sec. 219.209 Reports of tests and refusals.

Paragraph (b)

With the addition of the breath test option described above, a

railroad must report to FRA any refusals to provide breath for testing.

Paragraph (c)

In an earlier Safety Recommendation, the NTSB recommended that FRA

require railroads to submit notification, including reasons for the

delay, whenever a post-accident test could not be conducted within four

hours of the qualifying accident or incident. The NTSB's current

recommendation reduces this testing window from four hours to two. Such

a requirement would in effect compel railroads to submit a report for

each qualifying event, since the average FRA post-accident collection

time is 5.5 hours.

FRA requires reporting but will minimize the burden by adopting the

NTSB's original four hour recommendation, which is a more workable

window for post-accident testing. In addition, while reports must be

prepared and maintained for inspection upon request, they do not have

to be submitted to FRA.

Sec. 219.211 Analysis and follow-up.

Paragraph (a)

As part of its amended Appendix C, FRA will publish a summary of

its post-accident testing protocols, which have been submitted to the

DHHS.

Sec. 219.213 Unlawful refusals; consequences.

A refusal to provide breath for optional testing will have the same

consequences as a refusal to provide bodily fluid samples for mandatory

testing; the employee shall be disqualified from covered service for

nine months.

Subpart D--Testing for Cause

As proposed, FRA amends the heading of this subpart to

differentiate now-mandatory reasonable suspicion from accident/incident

and rule violation testing, which remain discretionary. This new

heading also conforms to the classifications used in FRA's drug MIS.

As discussed above, existing provisions will remain in effect to

allow for a smooth transition. The effective date for the amendments to

this subpart is January 1, 1995.

Sec. 219.300 Mandatory reasonable suspicion testing.

Noting that an alcohol test is not needed to confirm possession of

alcohol or controlled substances, the AAR considered the proposed

language in this paragraph overbroad since it would require alcohol

testing whenever a supervisor suspected any violation of

Sec. 219.101(a). FRA agrees, and has amended this paragraph to require

testing only when use of alcohol is suspected. (The Act specifies that

reasonable suspicion testing must be conducted for use of alcohol or

controlled substances.) Therefore, a suspicion of possession alone does

not require a reasonable suspicion test.

FRA will not add long-time decline in job performance as a factor

for the employer to consider when determining whether to conduct a

reasonable suspicion test on an employee. Only one commuter line

supported this proposal. The AAR thought this additional factor

unnecessary, since a supervisor could only consider long-term

performance in conjunction with specific contemporaneous observations

indicative of substance abuse, and such observations would provide an

independent basis for a now mandatory reasonable suspicion test. Rail

labor agreed, commenting that employers have authority to conduct

reasonable suspicion testing without this factor, and that long-term

decline in job performance would more properly be handled by EAPs,

since it is often caused by personal problems other than substance

abuse. The NTSB did not comment on this issue.

(For purposes of intermodal consistency, and to avoid any

misimpression that a reasonable suspicion drug test could be required

solely based on perceived long-term decline in performance without a

contemporaneous manifestation clearly tied to drug use, FRA has deleted

the following phrase: ``[s]uch observations may include indications of

the chronic and withdrawal effects of drugs.'' Deletion of this phrase

is not intended to limit a supervisor from taking into consideration

any contemporaneous indication of drug use. But FRA cautions that

chronic and withdrawal effects alone will seldom yield unambiguous

contemporary indications in the case of either alcohol or drugs. Where

unambiguous withdrawal effects are encountered, prompt medical

attention will normally take precedence over occupational alcohol or

drug testing. Where a long-term decline in performance occurs, referral

under subpart E of this rule (``Identification of Troubled Employees'')

is the indicated course of action.

Paragraph (b)

FRA had proposed a ``logic tree'' for situations where a supervisor

reasonably suspects an employee of substance abuse, but is unable to

determine whether the medium of abuse is alcohol or controlled

substance(s). FRA continues to recommend, but will not require, the

following process: a supervisor should conduct an alcohol test first

whenever an employee's symptoms could be consistent with either alcohol

or controlled substance use. If the breath test result is below .02,

the supervisor should conduct a urine drug test to continue the search

for an explanation. If the breath test result is .02 percent or more,

drug urinalysis is optional.

Because of polydrug abuse, Metra and SEPTA considered this logic

tree unnecessary, suggesting that employers should be allowed to

conduct both a breath alcohol test and a urine drug test whenever

reasonable suspicion exists to test for alcohol. Although FRA agrees

that employers need some latitude to inquire into suspected polydrug

abuse, FRA recommends that supervisors decide step by step whether

additional testing is needed, instead of automatically proceeding to

test for both alcohol and controlled substances.

Paragraph (c)(1)

Reaction was cleanly split on FRA's proposal to prohibit a

supervisor who makes a reasonable suspicion determination from also

conducting the breath test for that employee. Railroads uniformly

opposed this prohibition as both impractical and unnecessary. Carriers

who conduct for cause testing programs under their own authority had

experienced no problems with supervisory abuse of discretion. To

document their lack of supervisory depth, several AAR member railroads

submitted examples of locations where normally only one supervisor

would be available. Commenters also noted that testing could only be

conducted if a trained supervisor had an articulable basis for his or

her suspicion. Additionally, the employee would observe the entire

breath alcohol testing process and the NPRM required all breath testing

devices to meet evidential standards.

In contrast, rail labor supported the determining supervisor as BAT

prohibition. The BLE and BRS noted that FRA's requirement of two

supervisors (one of whom must be trained) to make a reasonable

suspicion drug testing determination has been in place for several

years. In theory, therefore, the same two supervisors would also be

available for reasonable suspicion alcohol testing. More importantly,

this requirement makes more likely that each breath alcohol test will

have an independent witness.

FRA believes that a compromise may be possible, particularly in

light of the Department's decision to allow employers to use PBTs for

screening tests. In the above-mentioned NPRM on blood testing

procedures, OST proposes to allow the determining supervisor to conduct

the screening test on an EBT or a PBT (if an EBT is unavailable), but

not the confirmation test, which must still be conducted on an EBT by

another individual. This would provide testing flexibility for

reasonable suspicion events that occur in remote locations, while still

requiring all confirmation tests to be conducted by a person not in the

employee's chain of command. Comments on this proposal should be

submitted to OST's docket.

Paragraph (c)(2)

Commenters raised similar pros and cons for FRA's proposal to

require two trained supervisors to make a determination to conduct a

reasonable suspicion drug test. In response, FRA will instead retain

its existing requirement of two supervisors, one of whom must be

trained in the signs and symptoms of substance abuse (as provided for

in Sec. 219.11(g)), to make a reasonable suspicion drug testing

determination.

Paragraph (d)

Under FRA's original proposal, a major concern for commenters was

the possibility that testing situations could frequently occur in

remote locations where EBTs are unavailable. Where this occurred, a

railroad could still enforce prohibitions against alcohol misuse under

its own authority, but would be unable to conduct federally mandated

testing.

At a minimum, permitting the use of PBTs should enable railroads to

conduct screening tests in most circumstances. As discussed above, FRA

proposes to allow confirmation blood alcohol testing. Under current FRA

procedures, however, if the screening test result indicates alcohol

misuse, the supervisor must determine whether a confirmation test can

be conducted on an EBT within eight hours of the screen. If an EBT is

unavailable, the unconfirmed screening test will be considered a no

test.

However, once a supervisor suspects alcohol misuse, he or she must

enforce the prohibitions in Subpart B even if the employee cannot be

tested at that time. FRA requires the supervisor to comply with the

prohibitions in Sec. 219.101(a)(4) and send the employee home for at

least eight hours. As always, a railroad may also take independent

enforcement action under its own authority.

Sec. 219.301 Testing for reasonable cause.

FRA has reformulated its proposed language in response to the

ASLRA's comment that the phrase ``based on affirmative evidence of

unsafe conduct'' implied a probable cause standard for testing.

Instead, FRA will require a supervisor to have ``a reasonable belief,

based on specific, articulable facts, that the employee's acts or

omissions contributed to the occurrence or severity of the accident or

incident''. This case law-derived language, while clearly a lesser

standard than traditional probable cause, stresses that a supervisor

must have more than a hunch or a guess upon which to base his or her

determination. This restriction applies only to testing under FRA

accident/incident authority, however.

Sec. 219.302 Prompt sample collection; time limitation.

Paragraph (b)(2)

Contrary to the discussion in the common preamble, the eight hour

time limit for completion of accident/incident for cause testing, runs

from the time a responsible railroad supervisor receives notice of the

event providing reasonable cause for conduct of the test.

Paragraph (f)

A railroad must prepare and maintain a report, similar to the post-

accident delay report required in Sec. 219.209(c), whenever a

reasonable suspicion test cannot be conducted within two hours of the

observations or events that were the basis for the railroad's

reasonable suspicion determination. The report does not have to be

submitted, but must be made available upon request.

Sec. 219.303 Alcohol test procedures and safeguards.

As discussed earlier, FRA will allow PBTs to be used for screening

tests in response to commenters' near unanimous demand for greater

flexibility. By allowing the use of PBTs, however, FRA does not excuse

railroads from making their best efforts to ensure the availability of

EBTs for routine testing situations.

Sec. 219.303 Breath test procedures and safeguards.

Paragraph (c)

As discussed above, FRA will adopt part 40 blood alcohol testing

procedures upon publication of the Department's final rule. This

paragraph is accordingly deleted.

Subpart F-Pre-employment Tests

Existing provisions will remain in effect to allow for a smooth

transition. As discussed above, however, the effective date for

implementation of pre-employment alcohol testing is January 1, 1995.

Sec. 219.501 Pre-employment tests.

As mentioned above, FRA adopts the proposed retest option only for

final applicants for employment. An applicant whose test result

indicates an alcohol concentration between .02 percent and .039 percent

will not be allowed to perform safety-sensitive service until he or she

has a later test result indicating an alcohol concentration of less

than .02. Since rule G applies only to current railroad employees,

allowing a retest option for applicants is compatible with traditional

industry policy. This option also makes FRA pre-employment policy

administratively consistent with the rest of the Department.

Commenters expressed no interest in the proposed ``grandfathering''

provision, which would have allowed railroads to exempt a covered

employee from pre-employment testing if a background check indicated

that the employee had not had any violations of this part or of the

alcohol and drug misuse rules of another DOT agency within the last six

months. FRA has decided to delete this option, since the added

flexibility it would have provided is unnecessary for the rail

industry, which traditionally has a stable employee population and a

low turnover rate (unlike trucking, for example).

Subpart G-Random Testing Programs

Sec. 219.607 Railroad random alcohol testing programs.

Paragraph (a)

All commenters on the issue favored combined alcohol and drug

random testing programs. The BLE and BRS recommended this approach as a

cost effective means of deterrence, since an employee could not know in

advance whether he or she was being tested for alcohol, for drugs, or

for both. Transtar felt that a single testing program would reduce both

cost and confusion. Metra and APTA supported using the same selection

to conduct alcohol and drug testing, while Amtrak wanted the

flexibility to conduct alcohol and drug tests simultaneously for some

employees, but at different times for others.

FRA agrees that flexibility is important, and will allow railroads

to combine plans/and or testing, if desired. A railroad may submit a

separate alcohol testing plan or a combined testing plan for approval.

The combined testing plan may be a previously approved random drug

testing plan that has been modified by adding alcohol testing elements

(any modifications should be specified and highlighted, however).

FRA will, for the most part, duplicate the notice requirements and

criteria for plan approval that were used to implement random drug

testing, including a three-tier submission and implementation schedule

that allows smaller carriers additional time to develop and execute

random alcohol testing plans. Class I and commuter railroads must

submit random alcohol testing plans for FRA approval within 6 months

after publication of this rule and must implement random alcohol

testing beginning on January 1, 1995; Class II railroads must submit

plans within 12 months after publication and must implement testing

beginning on July 1, 1995, and Class III railroads must submit plans

within 18 months after publication and must implement testing beginning

on January 1, 1996. (For the reasons discussed below, there will be no

phase-in of the testing rate.)

Paragraph (b)(2)

Commenters (including, among others, the APTA, AAR, ASLRA, BLE, BRS

and RLEA) were close to unanimous in supporting a 10 percent testing

rate the first year, followed by an annual performance-based rate set

according to each railroad's random alcohol positive rate for the

preceding year. In support of this low initial rate, commenters pointed

to the existence of an extensive peer prevention and employee

assistance system, the addition of new types of mandatory (pre-

employment and reasonable suspicion) alcohol testing, and supervisory

knowledge of the signs and symptoms of alcohol, making alcohol misuse

comparatively easy to detect. Commenters also cited the General

Accounting Office's study and the results of the AAR's test project, as

evidence that lowering testing rates does not affect deterrence.

Support was also widespread for railroad-specific performance-based

testing (for both alcohol and drugs), both as an incentive for carriers

to try alternative methods of deterrence, and as a reward to those

carriers who have viable peer referral and bypass programs.

FRA agrees that the initial random rate for alcohol testing should

be lower than the current 50 percent random drug testing rate, and that

testing rates should then be tied to the preceding year's positive

rate. However, FRA believes that a 10 percent testing rate is the

absolute minimum level of effort required to sustain awareness and

deterrence. Moreover, FRA is concerned that a railroad-specific

performance-based system could create an incentive for some railroads

to report and/or keep records dishonestly, thus requiring considerable

enforcement effort to guard against such improper manipulation. Such a

system would also be difficult to apply to smaller railroads, since

even a small variation in the number of positives (e.g., 0 vs. 1) would

result in high year-to-year volatility in each railroad's required

testing rate. In other words, the small size of a given railroad's

population and the resulting small number of tests could create

variations in positive rates that do not truly reflect that railroad's

incidence of employee misuse.

Therefore, FRA (along with FAA, FHWA and FTA) will instead set a 25

percent initial rate for alcohol testing, with performance-based

alcohol testing by industry. Each railroad is expected to achieve the

required 25 percent testing rate at the inception of random alcohol

testing. (FRA intends to discuss the random rate for drug testing in a

separate NPRM). As discussed in Sec. 219.608, the Administrator will

publish a minimum random testing rate, which will be determined by the

overall violation rate for the rail industry.

Paragraph (b)(3)

Because of the short half-life of alcohol in the body, railroads

may conduct random alcohol testing at any time the employee reports for

work and at any time during the duty tour (except for when the employee

is expressly relieved of any responsibility for the performance of

safety-sensitive duties).

Paragraph (b)(6)

An employee may be tested only when he or she is on duty and either

performs covered service or is immediately available to perform covered

service. Therefore, the issue of commingled service is critical to plan

approval, since off-duty consumption of alcohol is not proscribed (so

long as the employee does not report for duty with a BAC of .02 or

more). Plans must be carefully designed to subject commingled service

employees to testing only to the extent that they perform or can

reasonably be expected to perform covered service during a given duty

tour.

Industry commenters wanted the flexibility to conduct testing at

different times during an employee's ``duty tour.'' FRA has no

objections, so long as the date or time of the test is not predictable

to the employee. For instance, a railroad could not cluster its tests

exclusively at the beginning or end of the duty tour. (FRA will not

adopt its proposal to limit a railroad's time in which to notify an

employee to a period running from 30 minutes before to 30 minutes after

the employee performs safety-sensitive functions, plus applicable

travel time.)

Sec. 219.608 Administrator's determination of random alcohol testing

rate.

For at least three calendar years (because of staggered

implementation dates, the minimum amount of time needed for all classes

of railroads to have one year of alcohol testing data), railroads will

conduct random alcohol testing at a 25 percent annualized rate.

Subsequently, FRA will use employer data obtained from MIS reports to

determine the industry's violation rate, which will in turn determine

the minimum testing rate to be authorized by the Administrator. Any

random rate change indicated by industry performance will occur at the

beginning of the calendar year. Railroads will remain free to test at

higher rates provided they treat all employees alike.

Subpart H--Procedures and Safeguards for Urine Drug Testing and for

Breath Alcohol Testing

As noted above, the urine drug testing split sample procedures

specified in part 40 are mandatory beginning on August 15, 1994 as are

the amendments to this subpart concerning urine drug testing.

Sec. 219.708 Employee requests for testing.

Comments were cleanly divided as to how much time should be allowed

for an employee to request a test of his or her split sample. Carriers

uniformly supported the 72 hour period proposed by OST, while labor

wanted to duplicate the 60 day period currently allowed in FRA's retest

option.

Although FRA agrees with labor that the retest option has worked

well in the past, FRA will no longer allow retests of primary samples.

Instead, to be consistent with the rest of the Department, FRA will

allow split sample testing only. An employee will have 72 hours (the

minimum contemplated by the Act) within which to request a test of his

or her split sample, running from when the employee receives actual

notice from the medical review officer (MRO) that the employee's test

result has been verified as positive. As an additional safeguard, the

MRO must inform an employee who has a confirmed test result of his or

her right to request a split sample test at the time of the MRO's

initial contact with the employee, even though the employee's 72 hours

do not begin to run until after the MRO has completed the verification

process. The employee may also present information to the MRO if he or

she believes that unusual circumstances (e.g., an intervening holiday,

the unavailability of the MRO) prevented him or her from requesting a

split sample test within 72 hours.

Sec. 219.715 Alcohol testing procedures.

As discussed, FRA will permit railroads to use EBTs that qualify

for NHTSA's CPL but do not meet part 40 requirements (lacking

sequential numbering and printout capability, for example) as PBTs for

screening tests. This allows those railroads that already conduct

alcohol testing under their own authority (such as Amtrak and the CNW),

to recoup the full useful life of previously purchased EBTs, while

allowing other railroads the flexibility to reduce costs. An EBT test

is still required for confirmation, however.

Subpart I--Annual Report

Sec. 219.801 Reporting of alcohol misuse prevention program results in

a management information system.

FRA recently published a final rule implementing a management

information system to obtain and analyze employer drug misuse program

data. Included in this rule are comparable information collection

requirements for alcohol misuse program data.

Appendices D3 and D4, attached as exhibits to this rule, are

respectively the standard and ``EZ'' forms for reporting of employer

alcohol misuse program data. (These forms are similar to Appendices D

and D2 in the drug MIS.) FRA will not ask for information on

operational tests and inspections or supervisory training, since

reporting on these combined programs is already required under the drug

MIS.

Like the drug MIS, the alcohol MIS asks for information on for

cause alcohol testing (although these data elements appear repetitive,

they are not identical since the charts have been modified to reflect

the two-tier or bifurcated system). Once alcohol testing has produced a

year's worth of data, FRA will republish a combined MIS form for

alcohol and drug program data.

Subpart J--Recordkeeping Requirements

Secs. 219.901 and 219.903 Retention of breath alcohol testing records

and urine drug testing records.

FRA adopts the retention requirements as proposed. Although several

commenters felt that these proposed requirements were too burdensome,

these sections conform with the departmental requirements published in

part 40 today. In addition, FRA retains Sec. 219.713's current

requirement for railroads to maintain for at least five years a summary

record of each covered employee's test results.

Sec. 219.905 Access to facilities and records.

FRA proposes to replace Sec. 219.713's language on access to

records and adopt 49 CFR Sec. 40.81, which allows an employer to

release an employee's alcohol and drug test records only with the

written consent of the employee, with the exceptions of when access is

requested by a DOT agency or the NTSB or when access is requested by a

decisionmaker in a legal proceeding relating to a benefit sought by the

employee.

Executive Order 12866 and DOT Regulatory Policy and Procedures

This proposal is significant under Executive Order 12866. It is

also significant under the Department of Transportation's Regulatory

Policy and Procedures.

The Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 was enacted by Congress to

ensure that small entities are not unnecessarily and disproportionately

burdened by Government regulations. FRA certifies that this rule will

not have a significant economic impact on a substantial number of small

entities. Railroads that have fewer than 15 employees in covered

service that do not operate on the tracks of another railroad or engage

in joint operations are exempt from subparts D, E, F, and G, and are

exempted from new subparts I and J as well. Railroads with fewer than

400,000 manhours of employment are also exempt from subpart I.

Federalism Implications

This rule does not have substantial direct effects on the States,

on the relationship between the national government and the States, or

on the distribution of power and responsibilities among the various

levels of government. Therefore, in accordance with Executive Order

12612, FRA has determined that this rule does not have sufficient

federalism implications to warrant preparation of a Federalism

assessment.

Paperwork Reduction Act

The Paperwork Reduction Act (Pub. L. 96-511) applies to this final

rule because it changes several approved collections of information and

initiates several new information collection requirements for alcohol

misuse programs. As mentioned earlier, FRA recently implemented a

Management Information System to collect drug misuse prevention program

data.

For the drug portion of the MIS only, FRA estimated that

information gathering, record maintenance and form preparation would

approximate 65 hours each year for the standard form. For the

simplified (EZ) form, FRA estimated that information gathering, record

maintenance and form preparation would approximate 20 hours each year.

FRA estimates that the addition of alcohol testing data elements

will add approximately 8 hours to preparation of the standard form, for

a total of 73 hours each year. The simplified form will require an

additional 4 hours to prepare, for a total of 24 hours each year.

Approximately 40 railroads are expected to submit the standardized

form, and 20 railroads are expected to submit the short form.

FRA has requested Office of Management and Budget (OMB) approval of

these revised information collection requirements. A Federal Register

notice will be published when Paperwork Reduction Act approval is

obtained. Current information collection requirements under part 219

were approved under OMB No. 2130-0526.

List of Subjects in 49 CFR Part 219

Alcohol and drug abuse, Railroad safety, Reporting and record

keeping requirements.

Accordingly, for the reasons stated in the preamble, FRA amends 49

CFR part 219 as follows:

PART 219-CONTROL OF ALCOHOL AND DRUG USE

1. Authority for part 219 continues to read as follows:

Authority: 45 U.S.C. 431, 437, and 438, as amended; Pub. L. 100-

342; Pub. L. 102-143; and 49 CFR 1.49(m).

Part 219--[Amended]

2. Part 219 is amended by removing the terms ``EAP counselor'' and

``counselor'' wherever they appear and by replacing them with

``Substance abuse professional'' and ``professional'' respectively; and

by removing ``$5,700 in 1989 and 1990'' and by adding in its place

``$6,300 in 1991 and thereafter'' wherever this phrase appears in the

text.

3. Section 219.3 is amended by revising paragraph (a) introductory

text; adding paragraph (b)(3); and revising paragraph (c) to read as

follows:

Sec. 219.3 Application.

(a) Except as provided in paragraphs (b) and (c), this part applies

to----

(b) * * *

(b)(3) Subpart I does not apply to a railroad that has fewer than

400,000 total manhours.

(c) Subparts E, F and G do not apply to operations of a foreign

railroad conducted by covered service employees whose primary place of

service (``home terminal'') for rail transportation services is located

outside the United States. Such operations and employees are subject to

Subparts A, B, C, and D when operating in United States territory.

4. Section 219.5 is amended by adding, in alphabetical order,

definitions for alcohol concentration (or content), alcohol use,

confirmation test, consortium, DOT agency, screening test, refuse to

submit, substance abuse professional and violation rate; by removing

the definition for EAP counselor; by revising the definitions for

alcohol, covered employee, and the first sentence of independent, as

follows:

Sec. 219.5 Definitions.

As used in this part--

Alcohol means the intoxicating agent in beverage alcohol, ethanol

or other low molecular weight alcohols including methyl or isopropyl

alcohol.

Alcohol concentration (or content) means the alcohol in a volume of

breath expressed in terms of grams of alcohol per 210 liters of breath

(as indicated by a breath test under this part) or grams of alcohol per

100 milliliters of whole blood.

Alcohol use means the consumption of any beverage, mixture or

preparation, including any medication, containing alcohol.

* * * * *

Confirmation test means a second test, following a screening test

with a result of .02 or greater, that provides quantitative data of

alcohol concentration.

Consortium means an entity, including a group or association of

employers or contractors, that provides alcohol testing as required by

this part or other DOT alcohol testing regulation and that acts on

behalf of the employers.

* * * * *

Covered employee means a person who has been assigned to perform

service subject to the Hours of Service Act (45 U.S.C. 61-64b) during a

duty tour, whether or not the person has performed or is currently

performing such service, and any person who performs such service. (An

employee is not ``covered'' within the meaning of this part exclusively

by reason of being an employee for purposes of section 2(a)(3) of the

Hours of Service Act, as amended (45 U.S.C. 62(a)(3)).) For the

purposes of pre-employment testing only, the term covered employee

includes a person applying to perform covered service.

* * * * *

DOT Agency means an agency (or ``operating administration'') of the

United States Department of Transportation administering regulations

requiring alcohol or controlled substance testing (14 CFR parts 61, 63,

65, 121 and 135; 49 CFR parts 199, 219, 382 and 654) in accordance with

part 40 of this title.

* * * * *

Independent with respect to a medical facility, means not under the

ownership or control of the railroad and not operated or staffed by a

salaried officer or employee of the railroad. * * *

* * * * *

Refuse to submit (to an alcohol test) means that a covered employee

fails to provide adequate breath for testing without a valid medical

explanation after he or she has received notice of the requirement to

be tested in accordance with the provisions of this part, or engages in

conduct that clearly obstructs the testing process.

* * * * *

Screening test means an analytical procedure to determine whether a

covered employee may have a prohibited concentration of alcohol in his

or her system.

* * * * *

Substance abuse professional means a licensed physician (Medical

Doctor or Doctor of Osteopathy), or a licensed or certified

psychologist, social worker, employee assistance professional, or

addiction counselor (certified by the National Association of

Alcoholism and Drug Abuse Counselors Certification Commission), with

knowledge of and clinical experience in the diagnosis and treatment of

alcohol and drug related disorders.

* * * * *

Violation rate means the number of covered employees (as reported

under Sec. 219.801 of this part) found during random tests given under

this part to have an alcohol concentration of .04 or greater, plus the

number of employees who refuse a random test required by this part,

divided by the total reported number of employees in the industry given

random alcohol tests under this part plus the total reported number of

employees in the industry who refuse a random test required by this

part.

5. Section 219.9 is amended by revising the first sentence of

paragraph (a) and adding a new paragraph (c) as follows:

Sec. 219.9 Responsibility for compliance.

(a) Any person (including but not limited to a railroad; any

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; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor) who violates

any requirement of this part or causes the violation of any such

requirement is subject to a civil penalty of at least $500 and not more

than $10,000 per violation, except that: Penalties may be assessed

against individuals only for willful violations; where a grossly

negligent violation or a pattern of repeated violations has created an

imminent hazard of death or injury, or has caused death or injury, a

penalty not to exceed $20,000 per violation may be assessed; and the

standard of liability for a railroad will vary depending upon the

requirement involved. * * *

(b) * * *

(c) Any independent contractor or other entity that performs

covered service for a railroad has the same responsibilities as a

railroad under this part, with respect to its employees who perform

covered service. The entity's responsibility for compliance with this

part may be fulfilled either directly by that entity or by the

railroad's treating the entity's employees who perform covered service

as if they were its own employees for purposes of this part. The

responsibility for compliance must be clearly spelled out in the

contract between the railroad and the other entity or in another

document. In the absence of such a clear delineation of responsibility,

FRA will hold the railroad and the other entity jointly and severally

liable for compliance.

6. Section 219.11 is amended by revising paragraph (b)(2); by

redesignating existing paragraph (g) as paragraph (h); and by adding

paragraphs (c)(4) and (g) as follows:

Sec. 219.11 General conditions for chemical tests.

* * * * *

(b) * * *

(2) In any case where an employee has sustained a personal injury

and is subject to alcohol or drug testing under this part, necessary

medical treatment shall be accorded priority over provision of the

breath or body fluid sample(s). No employee who is unable to urinate

normally (based on the judgment of a medical professional that

catheterization would be required) as a result of a personal injury,

resulting medical treatment, or renal failure shall be required to

provide a urine sample. Nothing in this section shall bar use of a

urine sample made available as a result of catheterization undertaken

for medical purposes, provided the circumstances of such collection are

fully documented and the specimen is otherwise handled in accordance

with the applicable requirements of this title.

* * * * *

(c) * * *

(4) The results of any breath tests for alcohol conducted by or for

the treating facility.

* * * * *

(g) Each supervisor responsible for covered employees (except a

working supervisor within the definition of co-worker under this part)

shall be trained in the signs and symptoms of alcohol and drug

influence, intoxication and misuse consistent with a program of

instruction to be made available for inspection upon demand by FRA.

Such a program shall, at a minimum provide information concerning the

acute behavioral and apparent physiological effects of alcohol and the

major drug groups on the controlled substances list. The program shall

also provide training on the qualifying criteria for post-accident

testing contained in subpart C of this part, and the role of the

supervisor in post-accident collections described in subpart C and

appendix C of this part. The duration of such training shall be not

less than 3 hours.

* * * * *

Sec. 219.15 [Removed]

7. Section 219.15 is removed and reserved.

8. Section 219.23 is amended by revising the section heading;

revising paragraphs (a) and (b); and adding paragraphs (d) through (f),

to read as follows:

Sec. 219.23 Railroad policies.

(a) Whenever a breath or body fluid test is required of an employee

under this part, the railroad shall provide clear and unequivocal

written notice to the employee that the test is being required under

Federal Railroad Administration regulations. Use of the mandated DOT

form for urine drug testing or breath analysis satisfies the

requirements of this paragraph.

(b) Whenever a breath or body fluid test is required of an employee

under this part, the railroad shall provide clear, unequivocal written

notice of the basis or bases upon which the test is required (e.g.,

reasonable suspicion, violation of a specified operating/safety rule

enumerated in subpart D of this part, random selection, follow-up,

etc.). Completion of the alcohol testing form or urine custody and

control form indicating the basis of the test (prior to providing a

copy to the employee) satisfies the requirement of this paragraph.

* * * * *

(d) Each railroad shall provide educational materials that explain

the requirements of this part, and the railroad's policies and

procedures with respect to meeting those requirements.

(1) The railroad shall ensure that a copy of these materials is

distributed to each covered employee prior to the start of alcohol

testing under the railroad's alcohol misuse prevention program and to

each person subsequently hired for or transferred to a covered

position.

(2) Each railroad shall provide written notice to representatives

of employee organizations of the availability of this information.

(e) Required content. The materials to be made available to

employees shall include detailed discussion of at least the following:

(1) The identity of the person designated by the railroad to answer

employee questions about the materials.

(2) The classes or crafts of employees who are subject to the

provisions of this part.

(3) Sufficient information about the safety-sensitive functions

performed by those employees to make clear that the period of the work

day the covered employee is required to be in compliance with this part

is that period when the employee is on duty and is required to perform

or is available to perform covered service.

(4) Specific information concerning employee conduct that is

prohibited under subpart B of this part.

(5) In the case of a railroad utilizing the accident/incident and

rule violation reasonable cause testing authority provided by this

part, prior notice (which may be combined with the notice required by

Secs. 219.601(d)(1) and 219.607(d)(1)), to covered employees of the

circumstances under which they will be subject to testing.

(6) The circumstances under which a covered employee will be tested

under this part.

(7) The procedures that will be used to test for the presence of

alcohol and controlled substances, protect the employee and the

integrity of the testing processes, safeguard the validity of the test

results, and ensure that those results are attributed to the correct

employee.

(8) The requirement that a covered employee submit to alcohol and

drug tests administered in accordance with this part.

(9) An explanation of what constitutes a refusal to submit to an

alcohol or drug test and the attendant consequences.

(10) The consequences for covered employees found to have violated

subpart B of this part, including the requirement that the employee be

removed immediately from covered service, and the procedures under

Sec. 219.104.

(11) The consequences for covered employees found to have an

alcohol concentration of .02 or greater but less than .04.

(12) Information concerning the effects of alcohol misuse on an

individual's health, work, and personal life; signs and symptoms of an

alcohol problem (the employee's or a coworker's); and available methods

of evaluating and resolving problems associated with the misuse of

alcohol, including utilization of the procedures set forth in subpart E

of this part and the names, addresses, and telephone numbers of

substance abuse professionals and counseling and treatment programs.

(f) Optional provisions. The materials supplied to employees may

also include information on additional railroad policies with respect

to the use or possession of alcohol and drugs, including any

consequences for an employee found to have a specific alcohol

concentration, that are based on the railroad's authority independent

of this part. Any such additional policies or consequences shall be

clearly and obviously described as being based on independent

authority.

9. Section 219.101 is amended by revising paragraph (a)(2)(ii); and

adding new paragraphs (a)(3) and (a)(4) as follows:

Sec. 219.101 Alcohol and drug use prohibited.

(a) * * *

(2) * * *

(ii) Having .04 or more alcohol concentration in the breath or

blood; or

* * * * *

(3) No employee may use alcohol for whichever is the lesser of the

following periods:

(i) within four hours of reporting for covered service; or

(ii) after receiving notice to report for covered service.

(4) No employee tested under the provisions of this part whose test

result indicates an alcohol concentration of .02 or greater but less

than .04 shall perform or continue to perform covered service functions

for a railroad, nor shall a railroad permit the employee to perform or

continue to perform covered service, until the start of the employee's

next regularly scheduled duty period, but not less than eight hours

following administration of the test.

* * * * *

10. Section 219.104 is amended by revising paragraphs (a), (d), and

(e); and adding paragraphs (f) and (g) as follows:

Sec. 219.104 Responsive action.

(a) Removal from covered service.

(1) If the railroad determines that an employee has violated

Sec. 219.101 or Sec. 219.102, or the alcohol or controlled substances

misuse rule of another DOT agency, the railroad shall immediately

remove the employee from covered service and the procedures described

in paragraphs (b) through (e) of this section shall apply.

(2) If an employee refuses to provide breath or a body fluid sample

or samples when required to by the railroad under a mandatory provision

of this part, the railroad shall immediately remove the employee from

covered service, and the procedures described in paragraphs (b) through

(e) of this section shall apply.

(3) (i) This section does not apply to actions based on breath or

body fluid tests for alcohol or drugs that are conducted exclusively

under authority other than that provided in this part (e.g., testing

under a company medical policy, for-cause testing policy wholly

independent of Subpart D of this part, or testing under a labor

agreement).

(ii) This section and the information requirements listed in

Sec. 219.23 do not apply to applicants who refuse to submit to a pre-

employment test or who have a pre-employment test with a result

indicating either an alcohol concentration equal to or greater than

.04, or the misuse of controlled substances.

* * * * *

(d) Return to covered service. An employee who has been determined

to have violated Sec. 219.101 or Sec. 219.102 or who refused to

cooperate in a breath or body fluid test under this part shall not be

returned to covered service unless the employee has--

(1) Been evaluated by a substance abuse professional to determine

if the employee is affected by a psychological or physical dependence

on alcohol or one or more controlled substances or by another

identifiable and treatable mental or physical disorder involving misuse

of alcohol or drugs as a primary manifestation;

(2) Been evaluated by a substance abuse professional to determine

that the employee has properly followed the prescribed rehabilitation

program; and

(3) (i) Presented a urine sample for testing under Subpart H of

this part that tested negative for controlled substances assayed (in

the case of an employee who has been determined to have violated a

prohibition of Sec. 219.101 or Sec. 219.102 regarding possession or

misuse of controlled substances or who refused to provide a body fluid

sample or samples when required to by the railroad under a mandatory

provision of this part); or

(ii) presented breath for testing under Subpart H of this part that

indicated an alcohol concentration of less than .02. (in the case of an

employee who has been determined to have violated a prohibition of

Sec. 219.101 regarding possession or misuse of alcohol or who refused

to provide breath when required to by the railroad under a mandatory

provision of this part).

(4) An employee shall be required to present both a urine sample

and breath for testing, as specified in this section and Subpart H of

this part, if the substance abuse professional determines that such

testing is necessary as a condition for returning the particular

employee to covered service.

(e) Follow-up testing. An employee returned to service under the

above-stated conditions shall continue in any program of counseling or

treatment deemed necessary by the substance abuse professional and

shall be subject to unannounced follow-up tests administered by the

railroad following the employee's return to duty. The number and

frequency of such follow-up testing shall be determined by a substance

abuse professional, but shall consist of at least six tests in the

first 12 months following the employee's return to duty. Any such

testing shall be performed in accordance with the requirements of 49

CFR part 40. Follow-up testing shall not exceed 60 months from the date

of the employee's return to duty. The substance abuse professional may

terminate the requirement for follow-up testing at any time after the

first six tests have been administered, if the substance abuse

professional determines that such testing is no longer necessary.

(1) If the employee has been determined to have violated a

prohibition of Sec. 219.101 or Sec. 219.102 regarding possession or

misuse of controlled substances, or if the employee refused to provide

a body fluid sample or samples when required to by the railroad under a

mandatory provision of this part, the employee shall be subject to

follow-up testing as specified in this section. Such testing shall be

for controlled substances, but may include testing for alcohol as well,

if the substance abuse professional determines that alcohol testing is

necessary for the particular employee.

(2) If the employee has been determined to have violated a

prohibition of Sec. 219.101 regarding possession or misuse of alcohol,

or if the employee refused to provide breath when required to by the

railroad under a mandatory provision of this part, the employee shall

be subject to follow-up testing as specified in this section. Such

testing shall be for alcohol, but may include testing for controlled

substances as well, if the substance abuse professional determines that

drug testing is necessary for the particular employee.

(f) The railroad shall ensure that a substance abuse professional

who determines that a covered employee requires assistance in resolving

problems with alcohol or controlled substances misuse does not refer

the employee to the substance abuse professional's private practice or

to a person or organization from which the substance abuse professional

receives remuneration or in which the substance abuse professional has

a financial interest. This paragraph does not prohibit a substance

abuse professional from referring an employee for assistance provided

through--

(1) a public agency, such as a state, county, or municipality;

(2) the railroad or a person under contract to provide treatment

for alcohol problems on behalf of the railroad;

(3) the sole source of therapeutically appropriate treatment under

the employee's health insurance program; or

(4) the sole source of therapeutically appropriate treatment

reasonably accessible to the employee.

(g) Railroad compliance with the provisions of paragraphs (a), (d),

and (e) of this section is mandatory beginning on January 1, 1995.

11. Part 219 is amended by adding Sec. 219.107 to subpart B as

follows:

Sec. 219.107 Consequences of unlawful refusal.

(a) An employee who refuses to provide breath or a body fluid

sample or samples when required to by the railroad under a mandatory

provision of this part shall be deemed disqualified for a period of

nine (9) months.

(b) Prior to or upon withdrawing the employee from covered service

under this section, the railroad shall provide notice of the reason for

this action, and the procedures described in Sec. 219.104(c) shall

apply.

(c) The disqualification required by this section shall apply with

respect to employment in covered service by any railroad with notice of

such disqualification.

(d) The requirement of disqualification for nine (9) months does

not limit any discretion on the part of the railroad to impose

additional sanctions for the same or related conduct.

(e) Upon the expiration of the 9-month period described in this

section, a railroad may permit the employee to return to covered

service only under the same conditions specified in Sec. 219.104(d),

and the employee shall be subject to follow-up tests, as provided by

that section.

12. Section 219.201 is amended by revising paragraphs (a)(1)(iii),

(a)(2)(ii), and (b) as follows:

Sec. 219.201 Events for which testing is required.

(a) * * *

(1) * * *

(iii) Damage to railroad property of $1,000,000 or more.

(2) * * *

(ii) Damage to railroad property of $150,000 or more.

* * * * *

(b) Exceptions. No test shall be required in the case of a

collision between railroad rolling stock and a motor vehicle or other

highway conveyance at a rail/highway grade crossing. No test shall be

required in the case of an accident/incident the cause and severity of

which are wholly attributable to a natural cause (e.g., flood, tornado

or other natural disaster) or to vandalism, as determined on the basis

of objective and documented facts by the railroad representative

responding to the scene.

* * * * *

13. Section 219.203 is amended by revising paragraph (a)(1); and

revising the first sentence of paragraph (d)(2), as follows:

Sec. 219.203 Responsibilities of railroads and employees.

(a) Employees tested.

(1) (i) Following each accident and incident described in

Sec. 219.201, the railroad (or railroads) shall take all practicable

steps to assure that all covered employees of the railroad directly

involved in the accident or incident provide blood and urine samples

for toxicological testing by FRA. Such employees shall cooperate in the

provision of samples as described in this part and Appendix C.

(ii) If the conditions for mandatory toxicological testing exist,

the railroad may also require employees to provide breath for testing

in accordance with the procedures set forth in 49 CFR Part 40 and this

part, if such testing does not interfere with timely collection of

required samples.

* * * * *

(d) * * *

(2) If an injured employee is unconscious or otherwise unable to

evidence consent to the procedure and the treating medical facility

declines to obtain blood samples after having been acquainted with the

requirements of this subpart, the railroad shall immediately notify FRA

by toll free telephone (800-424-0201), stating the employee's name, the

medical facility, its location, the name of the appropriate decisional

authority at the medical facility, and the telephone number at which

that person can be reached. * * *

* * * * *

14. Section 219.205 is amended by revising paragraph (a) as

follows:

Sec. 219.205 Sample collection and handling.

(a) General. Urine and blood samples shall be obtained, marked,

preserved, handled, and made available to FRA consistent with the

requirements of this subpart, and the technical specifications set

forth in Appendix C to this part.

* * * * *

15. Part 219 is amended by adding Sec. 219.206 as follows:

Sec. 219.206 FRA access to breath test results.

Documentation of breath test results shall be made available to FRA

consistent with the requirements of this subpart, and the technical

specifications set forth in Appendix C to this part.

16. Section 219.209 is amended by adding a new last sentence to

paragraph (a)(1); and by adding a new paragraph (c), as follows:

Sec. 219.209 Reports of tests and refusals.

(a)(1) * * * Notification shall be provided to the Office of

Safety, FRA, at (202) 366-0501; an answering machine will record any

notification calls made to this number outside of the Federal work week

(8:30 a.m. to 5 p.m. EST or EDT).

* * * * *

(c) If a test required by this section is not administered within

four hours following the accident or incident, the railroad shall

prepare and maintain on file a record stating the reasons the test was

not promptly administered. Records shall be submitted to the Federal

Railroad Administration upon request of the Associate Administrator for

Safety.

17. Section 219.211 is amended by revising the second sentence of

paragraph (a); by revising the last sentence of paragraph (c) and the

last sentence of paragraph (d); and by revising paragraphs (e) and (h),

as follows:

Sec. 219.211 Analysis and follow-up.

(a) * * * Samples are analyzed for alcohol and controlled

substances specified by FRA under protocols specified by FRA,

summarized in Appendix C, which have been submitted to the Department

of Health and Human Services for acceptance.

* * * * *

(c) * * * The Federal Railroad Administration shall not be bound by

the railroad Medical Review Officer's determination, but that

determination will be considered by FRA in relation to the accident/

incident investigation and with respect to any enforcement action under

consideration.

(d) * * * (However, as further provided in this section, FRA may

provide results of testing under this subpart and supporting

documentation to the National Transportation Safety Board.)

(e) An employee may respond in writing to the results of the test

prior to the preparation of any final investigation report concerning

the accident or incident. An employee wishing to respond shall do so by

letter addressed to the Alcohol/Drug Program Manager, Office of Safety,

FRA, 400 Seventh Street, SW., Washington, DC 20590 within 45 days of

receipt of the test results. Any such submission shall refer to the

accident date, railroad and location, shall state the position occupied

by the employee on the date of the accident/incident, and shall

identify any information contained therein that the employee requests

be withheld from public disclosure on grounds of personal privacy (but

the decision whether to honor such request shall be made by the FRA on

the basis of controlling law).

* * * * *

(h) Except as provided in Sec. 219.201 (with respect to non-

qualifying events), each sample (including each split sample) provided

under this subpart is retained for not less than three months following

the date of the accident or incident (two years from the date of the

accident or incident in the case of a sample testing positive for

alcohol or a controlled substance). Post-mortem specimens may be made

available to the National Transportation Safety Board (on request).

* * * * *

18. Section 219.213 is amended by revising paragraphs (a) and (b)

as follows:

Sec. 219.213 Unlawful refusals; consequences.

(a) Disqualification.

An employee who refuses to cooperate in providing breath, blood or

urine samples following an accident or incident specified in this

subpart shall be withdrawn from covered service and shall be deemed

disqualified for covered service for a period of nine (9) months in

accordance with the conditions specified in Sec. 219.107.

(b) Procedures. Prior to or upon withdrawing the employee from

covered service under this section, the railroad shall provide notice

of the reason for this action and an opportunity for hearing before a

presiding officer other than the charging official. The employee shall

be entitled to the procedural protection set out in Sec. 219.104(d).

* * * * *

19. Subpart D is amended by revising the heading of the subpart and

adding Sec. 219.300 as follows:

Subpart D--Testing For Cause

Sec. 219.300 Mandatory reasonable suspicion testing.

(a) Requirements.

(1) Beginning on January 1, 1995, a railroad shall require a

covered employee to submit to an alcohol test when the railroad has

reasonable suspicion to believe that the employee has violated any

prohibition of Subpart B of this part concerning use of alcohol. The

railroad's determination that reasonable suspicion exists to require

the covered employee to undergo an alcohol test must be based on

specific, contemporaneous, articulable observations concerning the

appearance, behavior, speech or body odors of the employee.

(2) A railroad shall require a covered employee to submit to a

urine drug test when the railroad has reasonable suspicion to believe

that the employee has violated the prohibitions of Subpart B of this

part concerning use of controlled substances. The railroad's

determination that reasonable suspicion exists to require the covered

employee to undergo a drug test must be based on specific,

contemporaneous, articulable observations concerning the appearance,

behavior, speech or body odors of the employee. Such observations may

include indications of the chronic and withdrawal effects of drugs.

(b) (1) With respect to an alcohol test, the required observations

shall be made by a supervisor trained in accordance with

Sec. 219.11(g). The supervisor who makes the determination that

reasonable suspicion exists may not conduct testing on that employee.

(2) With respect to a urine drug test, the required observations

shall be made by two supervisors, at least one of whom is trained in

accordance with Sec. 219.11(g).

(c) Nothing in this section shall be construed to require the

conduct of breath alcohol testing or urine drug testing when the

employee is apparently in need of immediate medical attention.

20. Section 219.301 is amended by removing and reserving paragraph

(b)(1); revising the introductory text to paragraphs (b), (b)(2) and

(c); and removing paragraphs (f) and (g), as follows:

Sec. 219.301 Testing for cause.

(a) * * *

(b) For cause breath testing. In addition to reasonable suspicion

as described in Sec. 219.300, the following circumstances constitute

cause for the administration of breath alcohol tests under this

section:

(1) [Reserved].

(2) Accident/incident. The employee has been involved in an

accident or incident reportable under part 225 of this title, and a

supervisory employee of the railroad has a reasonable belief, based on

specific, articulable facts, that the employee's acts or omissions

contributed to the occurrence or severity of the accident or incident;

or

(3) * * *

(c) For cause urine testing. In addition to reasonable suspicion as

described in Sec. 219.300, each of the conditions set forth in

paragraphs (b)(2) (``accident/incident'') and (b)(3) (``rule

violation'') of this section as constituting cause for breath alcohol

testing also constitutes cause with respect to urine drug testing.

* * * * *

21. Part 219 is amended by adding a new Sec. 219.302 as follows:

Sec. 219.302 Prompt sample collection; time limitation.

(a) Testing under this subpart may only be conducted promptly

following the observations or events upon which the testing decision is

based, consistent with the need to protect life and property.

(b) No employee shall be required to participate in breath alcohol

or urine drug testing under this section after the expiration of an

eight hour period from--

(1) The time of the observations or other events described in this

section; or

(2) In the case of an accident/incident, the time a responsible

railroad supervisor receives notice of the event providing reasonable

cause for conduct of the test.

(c) An employee may not be tested under this subpart if that

employee has been released from duty under the normal procedures of the

railroad. An employee who has been transported to receive medical care

is not released from duty for purposes of this section. Nothing in this

section prohibits the subsequent testing of an employee who has failed

to remain available for testing as required (i.e., who is absent

without leave).

(d) As used in this subpart a ``responsible railroad supervisor''

means any responsible line supervisor (e.g., a trainmaster or road

foreman of engines) or superior official in authority over the employee

to be tested.

(e) In the case of a urine drug test, the eight-hour requirement is

satisfied if the employee has been delivered to the collection site

(where the collector is present) and the request has been made to

commence collection of the urine specimens within that period.

(f) If a test required by this section is not administered within

two hours following the determination under Sec. 219.300, the railroad

shall prepare and maintain on file a record stating the reasons the

test was not properly administered. If a test required by this section

is not administered within eight hours following the determination

under Sec. 219.300, the railroad shall cease attempts to administer an

alcohol test and shall state in the record the reasons for not

administering the test. Records shall be submitted to FRA upon request

of the Administrator.

(g) Section 219.23 prescribes the notice to an employee that is

required to provide breath or a body fluid sample under this part.

22. Part 219 is amended by revising Sec. 219.303 to read as

follows:

Sec. 219.303 Alcohol test procedures and safeguards.

The conduct of alcohol testing under this subpart is governed by

Subpart H of this part and Part 40 of Subtitle A of this title.

23. Part 219 is amended by removing Secs. 219.307 and 219.309.

24. Subpart F is amended by revising the subpart heading to read as

follows:

Subpart F--Pre-employment Tests

25. Section 219.501 is revised to read as follows:

Sec. 219.501 Pre-employment tests.

(a) Beginning on January 1, 1995, prior to the first time a covered

employee performs covered service for a railroad, the employee shall

undergo testing for alcohol and drugs. No railroad shall allow a

covered employee to perform covered service, unless the employee has

been administered an alcohol test with a result indicating an alcohol

concentration less than .04 and has been administered a test for drugs

with a result that did not indicate the misuse of controlled

substances. This requirement shall apply to final applicants for

employment and to employees seeking to transfer for the first time from

non-covered service to duties involving covered service. If the test

result of a final applicant for pre-employment indicates an alcohol

content of .02 or greater, the provisions of paragraph (b) of this

section shall apply.

(b) No final applicant for employment tested under the provisions

of this part who is found to have an alcohol concentration of .02 or

greater but less than .04 shall perform safety-sensitive functions for

a railroad, nor shall a railroad permit the applicant to perform

safety-sensitive functions, until the applicant's alcohol concentration

measures less than .02.

(c) Tests shall be accomplished through breath analysis and

analysis of urine samples. The conduct of breath alcohol testing and

urine drug testing under this subpart is governed by Subpart H of this

part and part 40 of subtitle A of this title.

(d) As used in subpart H with respect to a test required under this

subpart, the term covered employee includes an applicant for pre-

employment testing only. In the case of an applicant who declines to be

tested and withdraws the application for employment, no record shall be

maintained of the declination.

(e) Railroad compliance with the provisions of paragraphs (a)

through (c) of this section is mandatory beginning on January 1, 1995.

26. Part 219 is amended by revising Sec. 219.503 to read as

follows:

Sec. 219.503 Notification; records.

The railroad shall provide for medical review of the urine drug

test results as provided in subpart H of this part. The railroad shall

notify the applicant of the results of the urine and breath tests in

the same manner as provided for employees in subpart H. Records shall

be maintained confidentially and shall be retained in the same manner

as required under subpart J for employee test records, except that such

records need not reflect the identity of an applicant whose application

for employment in covered service was denied.

Sec. 219.505 [Amended]

27. Section 219.505 is amended by revising the section heading to

read ``Refusals;'' removing the designation from paragraph (a); and

removing paragraph (b).

28. Part 219 is amended by revising the heading of subpart G as

follows:

Subpart G--Random Alcohol and Drug Testing Programs

PART 219--[AMENDED]

29. Section 219.601 is amended by revising the heading, the

undesignated paragraph following (b)(2)(iii), paragraph (b)(7), and the

first two sentences of paragraph (c) as follows:

Sec. 219.601 Railroad random drug testing programs.

* * * * *

(b) * * *

(2) * * *

(iii) * * *

During the subsequent 12-month period, the program shall select for

testing a sufficient number of employees so that the number of tests

conducted will equal at least 50 percent of the number of covered

employees. Annualized percentage rates shall be determined by reference

to the total number of covered employees employed by the railroad at

the beginning of the particular twelve-month period or by an alternate

method specified in the plan approved by the Associate Administrator

for Safety. If the railroad conducts random testing through a

consortium, the annual rate may be calculated for each individual

employer or for the total number of covered employees subject to random

testing by the consortium.

* * * * *

(7) Each time an employee is notified for random drug testing the

employee will be informed that selection was made on a random basis.

(c) Approval. The Associate Administrator for Safety will notify

the railroad in writing whether the program is approved as consistent

with the criteria set forth in this part. If the Associate

Administrator for Safety determines that the program does not conform

to those criteria, the Associate Administrator for Safety will inform

the railroad of any matters preventing approval of the program, with

specific explanation as to necessary revisions. * * *

* * * * *

Sec. 219.603 [Amended]

30. Section 219.603 is amended by revising the section heading to

read ``Participation in drug testing'', and by removing the designation

``(a) Participation'' from paragraph (a); and removing paragraphs (b)

and (c).

31. Section 219.605 is amended by revising the heading and adding a

new final sentence to paragraph (b) as follows:

Sec. 219.605 Positive drug test results; procedures.

* * * * *

(b) * * * The responsive action required in Sec. 219.104 is not

stayed pending the result of a retest or split sample test.

32. Part 219 is amended by adding a new Sec. 219.607 to subpart G

as follows:

Sec. 219.607 Railroad random alcohol testing programs.

(a) Each railroad shall submit for FRA approval a random alcohol

testing program meeting the requirements of this subpart. A Class I

railroad (including the National Railroad Passenger Corporation) or a

railroad providing commuter passenger service shall submit such a

program not later than August 15, 1994. A Class II railroad shall

submit such a program not later than February 15, 1995. A Class III

railroad (including a switching and terminal or other railroad not

otherwise classified) shall submit such a program not later than August

15, 1995. A railroad commencing operations after the pertinent date

specified in this paragraph shall submit a random alcohol testing

program not later than 30 days prior to such commencement. The program

shall be submitted to the Associate Administrator for Safety, FRA, for

review and approval. If, after approval, a railroad desires to amend

the random alcohol testing program implemented under this subpart, the

railroad shall file with FRA a notice of such amendment at least 30

days prior to the intended effective date of such action. A program

responsive to the requirements of this section or any amendment to the

program shall not be implemented prior to approval.

(b) Form of programs. Random alcohol testing programs submitted by

or on behalf of each railroad under this subpart shall meet the

following criteria, and the railroad and its managers, supervisors,

officials and other employees and agents shall conform to such criteria

in implementing the program:

(1) Selection of covered employees for testing shall be made by a

method employing objective, neutral criteria which ensures that every

covered employee has a substantially equal statistical chance of being

selected within a specified time frame. The method may not permit

subjective factors to play a role in selection, i.e., no employee may

be selected as the result of the exercise of discretion by the

railroad. The selection method shall be capable of verification with

respect to the randomness of the selection process, and any records

necessary to document random selection shall be retained for not less

than 24 months from the date upon which the particular samples were

collected.

(2) The program shall include testing procedures and safeguards,

and, consistent with this part, procedures for action based on tests

where the employee is found to have violated Sec. 219.101.

(3) The program shall ensure that random alcohol tests conducted

under this part are unannounced and that the dates for administering

random tests are spread reasonably throughout the calendar year.

(4) The program shall ensure to the maximum extent practicable that

each covered employee shall perceive the possibility that a random

alcohol test may be required at any time the employee reports for work

and at any time during the duty tour (except any period when the

employee is expressly relieved of any responsibility for performance of

covered service).

(5) An employee shall be subject to testing only while on duty.

Only employees who perform covered service for the railroad shall be

subject to testing under this part. In the case of employees who during

some duty tours perform covered service and during others do not, the

railroad program shall specify the extent to which, and the

circumstances under which they shall be subject to testing. To the

extent practical within the limitations of this part and in the context

of the railroad's operations, the railroad program shall provide that

employees shall be subject to the possibility of random testing on any

day they actually perform covered service.

(6) Testing shall be conducted promptly, as provided in

Sec. 219.715(a).

(7) Each time an employee is notified for random alcohol testing

the employee will be informed that selection was made on a random

basis.

(8) Each railroad shall ensure that each covered employee who is

notified of selection for random alcohol testing proceeds to the test

site immediately; provided, however, that if the employee is performing

a safety-sensitive function at the time of the notification, the

railroad shall instead ensure that the employee ceases to perform the

safety-sensitive function and proceeds to the testing site as soon as

possible.

(c) Implementation. (1) No later than 45 days prior to commencement

of random alcohol testing, the railroad shall publish to each of its

covered employees, individually, a written notice that they will be

subject to random alcohol testing under this part. Such notice shall

state the date for commencement of the program, shall state that the

selection of employees for testing will be on a strictly random basis,

shall describe the consequences of a determination that the employee

has violated Sec. 219.101 or any applicable railroad rule, and shall

inform the employee of the employee's rights under subpart E of this

part. A copy of the notice shall be provided to each new covered

employee on or before the employee's initial date of service. Since

knowledge of Federal law is presumed, nothing in this paragraph creates

a defense to a violation of Sec. 219.101. This notice may be combined

with the notice or policy statement required by Sec. 219.23.

(2) Each Class I railroad (including the National Railroad

Passenger Corporation) and each railroad providing commuter passenger

service shall implement its approved random alcohol testing program

beginning on January 1, 1995. Each Class II railroad shall implement

its approved random testing program beginning on July 1, 1995. Each

Class III railroad (including a switching and terminal or other

railroad not otherwise classified) shall implement its approved random

testing program beginning on January 1, 1996. In the case of a railroad

commencing operations after the pertinent date set forth in paragraph

(a) of this section for filing of a program, the railroad shall

implement its approved random testing program not later than the

expiration of 60 days from approval by the Administrator or by the

pertinent date set forth in this paragraph, whichever is later.

33. Part 219 is amended by adding a new Sec. 219.608 to Subpart G

as follows:

Sec. 219.608 Administrator's determination of random alcohol testing

rate.

(a) Except as provided in paragraphs (b) through (d) of this

section, the minimum annual percentage rate for random alcohol testing

shall be 25 percent of covered employees.

(b) The Administrator's decision to increase or decrease the

minimum annual percentage rate for random alcohol testing is based on

the violation rate for the entire industry. All information used for

the determination is drawn from the alcohol MIS reports required by

this part. In order to ensure reliability of the data, the

Administrator considers the quality and completeness of the reported

data, may obtain additional information or reports from employers, and

may make appropriate modifications in calculating the industry

violation rate. Each year, the Administrator will publish in the

Federal Register the minimum annual percentage rate for random alcohol

testing of covered employees. The new minimum annual percentage rate

for random alcohol testing will be applicable starting January 1 of the

calendar year following publication.

(c)(1) When the minimum annual percentage rate for random alcohol

testing is 25 percent or more, the Administrator may lower this rate to

10 percent of all covered employees if the Administrator determines

that the data received under the reporting requirements of Sec. 219.801

for two consecutive calendar years indicate that the violation rate is

less than 0.5 percent.

(2) When the minimum annual percentage rate for random alcohol

testing is 50 percent, the Administrator may lower this rate to 25

percent of all covered employees if the Administrator determines that

the data received under the reporting requirements of Sec. 219.801 for

two consecutive calendar years indicate that the violation rate is less

than 1.0 percent but equal to or greater than 0.5 percent.

(d) (1) When the minimum annual percentage rate for random alcohol

testing is 10 percent, and the data received under the reporting

requirements of Sec. 219.801 for that calendar year indicate that the

violation rate is equal to or greater than 0.5 percent, but less than

1.0 percent, the Administrator will increase the minimum annual

percentage rate for random alcohol testing to 25 percent of all covered

employees.

(2) When the minimum annual percentage rate for random alcohol

testing is 25 percent or less, and the data received under the

reporting requirements of Sec. 219.801 for any calendar year indicate

that the violation rate is equal to or greater than 1.0 percent, the

Administrator will increase the minimum annual percentage rate for

random alcohol testing to 50 percent of all covered employees.

(e) The railroad shall randomly select and test a sufficient number

of covered employees for testing during each calendar year to equal an

annual rate not less than the minimum annual percentage rate for random

alcohol testing determined by the Administrator. If the railroad

conducts random alcohol testing through a consortium, the number of

employees to be tested may be calculated for each individual employer

or may be based on the total number of covered employees covered by the

consortium who are subject to random testing at the same minimum annual

percentage rate under this part or any DOT alcohol testing rule.

(f) If a railroad is required to conduct random alcohol testing

under the alcohol testing rules of more than one DOT agency, the

railroad may--

(1) establish separate pools for random selection, with each pool

containing the covered employees who are subject to testing at the same

required rate; or

(2) randomly select such employees for testing at the highest

percentage rate established for the calendar year by any DOT agency to

which the railroad is subject.

34. Part 219 is amended by adding a new Sec. 219.609 to Subpart G

as follows:

Sec. 219.609 Participation in alcohol testing.

A railroad shall, under the conditions specified in this subpart

and Subpart H of this part, require a covered employee selected through

the random testing program to cooperate in breath testing to determine

compliance with Sec. 219.101, and the employee shall provide the

required breath and complete the required paperwork and certifications.

Compliance by the employee shall be excused only in the case of a

documented medical or family emergency.

35. Part 219 is amended by adding a new Sec. 219.611 to Subpart G

as follows:

Sec. 219.611 Test result indicating prohibited alcohol concentration;

procedures.

Procedures for administrative handling by the railroad in the event

an employee's confirmation test indicates an alcohol concentration of

.04 or greater are set forth in Sec. 219.104.

PART 219--[AMENDED]

36. Part 219 is amended by revising the heading of Subpart H as

follows:

Subpart H--Procedures and Safeguards for Urine Drug Testing and for

Alcohol Testing

37. Part 219 is amended by revising the heading of Sec. 219.703 as

follows:

Sec. 219.703 Drug testing procedures.

38. Section 219.707 is amended by revising the section heading and

the first sentence of paragraph (a) as follows:

Sec. 219.707 Review by MRO of Urine Drug Testing Results.

(a) Urine drug test results reported positive by the laboratory as

provided in part 40 of this title shall not be deemed positive or

disseminated to any person (other than to the employee tested in a

medical interview, if conducted) until they are reviewed by a Medical

Review Officer (MRO) of the railroad as required by part 40 of this

title and this section. * * *

* * * * *

39. Part 219 is amended by adding a new Sec. 219.708 as follows:

Sec. 219.708 Employee requests for testing.

If the test result of the primary sample is positive, an employee

may request that his or her split sample(s) be tested in accordance

with the procedures specified in 49 CFR part 40.

Sec. 219.713 [Removed]

40. Part 219 is amended by removing and reserving Sec. 219.713.

41. Part 219 is amended by adding a new Sec. 219.715 as follows:

Sec. 219.715 Alcohol testing procedures.

(a) Each covered employee who is notified of selection for alcohol

testing and who is not performing covered service at the time of

notification shall proceed to the testing site immediately. The

railroad shall ensure that an employee who is performing covered

service at the time of notification shall, as soon as possible without

affecting safety, cease to perform covered service and proceed to the

testing site.

(b) Each railroad shall ensure that all alcohol testing conducted

under this part complies with the procedures set forth in Part 40 of

this title. The provisions of Part 40 of this title that address

alcohol testing are made applicable to employers by this part.

42. Part 219 is amended by adding a new Subpart I as follows:

Subpart I--Annual Report

Sec. 219.801 Reporting alcohol misuse prevention program results in a

management information system.

(a) Each railroad that has 400,000 or more total manhours shall

submit to FRA by March 15 of each year a report covering the previous

calendar year (January 1-December 31), summarizing the results of its

alcohol misuse prevention program.

(b) A railroad that is subject to more than one DOT agency alcohol

regulation shall identify each employee covered by the regulations of

more than one DOT agency. The identification will be by the total

number and category of covered functions. Prior to conducting any

alcohol test on a covered employee subject to the regulations of more

than one DOT agency, the railroad shall determine which DOT agency

regulation or rule authorizes or requires the test. The test result

information shall be directed to the appropriate DOT agency or

agencies.

(c) Each railroad shall ensure the accuracy and timeliness of each

report submitted. The report shall be submitted on one of the two forms

specified by the FRA.

(d) Each report that contains information on an alcohol screening

test result of .02 or greater or a violation of the alcohol misuse

provisions of Subpart B of this part shall include the following

elements (the ``Alcohol Testing Management Information System Data

Collection Form,'' Appendix D3 to this part):

(1) Number of covered employees by employee category (i.e., train

service, engine service, dispatcher/operator, signal, other).

(2) Number of covered employees in each category subject to alcohol

testing under the alcohol misuse regulation of another DOT agency,

identified by each agency.

(3) (i) Number of screening tests by type of test (i.e., pre-

employment and covered service transfer, random, post-positive return

to service, and follow-up) and employee category.

(ii) Number of confirmation tests, by type of test and employee

category.

(4) Number of confirmation alcohol tests indicating an alcohol

concentration equal of .02 or greater but less than .04, by type of

test and employee category.

(5) Number of confirmation alcohol tests indicating an alcohol

concentration of .04 or greater, by type of test and employee category.

(6) Number of persons denied a position as a covered employee

following a pre-employment alcohol test indicating an alcohol

concentration of .04 or greater.

(7) Number of covered employees with a confirmation alcohol test

indicating an alcohol concentration of .04 or greater, or who have

violations of other alcohol misuse provisions, who were returned to

service in covered positions (having complied with the recommendations

of a substance abuse professional as described in Sec. 219.104(d)).

(8) For cause breath alcohol testing under railroad authority, by

reason for test (accident/injury or rules violation), the number of

screening tests conducted, the number of confirmation tests conducted,

the number of confirmation tests of .02 or greater but less than .04,

and the number of confirmation test results of .04 or greater.

(9) For cause breath alcohol testing under FRA authority, by reason

for test (reasonable suspicion, accident/injury or rules violation),

the number of screening tests conducted, the number of confirmation

tests conducted, the number of confirmation tests of .02 or greater but

less than .04, and the number of confirmation test results of .04 or

greater.

(10) Number of covered employees who were found to have violated

other provisions of Subpart B of this part, and the action taken in

response to the violation.

(11) Number of covered employees who were administered alcohol and

drug tests at the same time, with both a positive drug test result and

an alcohol test result indicating an alcohol concentration of .04 or

greater.

(12) Number of covered employees who refused to submit to a random

alcohol test required under this part.

(13) Number of covered employees who refused to submit to a non-

random alcohol test required under this part.

(14) Number of supervisory personnel who have received the required

initial training on the specific contemporaneous physical, behavioral,

and performance indicators of probable alcohol use during the reporting

period.

(e) Each report that contains no screening test results of 0.02 or

greater or violations of the alcohol misuse provisions of Subpart B of

this part shall include the following informational elements (the

``Alcohol Testing Management Information System Data Collection Form

(No Alcohol Misuse),'' Appendix D4 to this part): (This report may only

be submitted if the program results meet this criteria.)

(1) Number of covered employees by employee category (i.e., train

service, engine service, dispatcher/operator, signal, other).

(2) Number of covered employees in each category subject to alcohol

testing under the alcohol misuse regulation of another DOT agency,

identified by each agency.

(3) Number of screening tests by type of test (i.e., pre-employment

and covered service transfer, random, post-positive return to service,

and follow-up) and employee category.

(4) Number of covered employees with a confirmation alcohol test

indicating an alcohol concentration of .04 or greater, or who have

violations of other alcohol misuse provisions, who were returned to

service in covered positions (having complied with the recommendations

of a substance abuse professional as described in Sec. 219.104(d)).

(5) For cause breath alcohol testing under railroad authority, by

reason for test (accident/injury or rules violation), the number of

screening tests conducted.

(6) For cause breath alcohol testing under FRA authority, by reason

for test (reasonable suspicion, accident/injury or rules violation),

the number of screening tests conducted.

(7) Number of covered employees who refused to submit to a random

alcohol test required under this part.

(8) Number of covered employees who refused to submit to a non-

random alcohol test required under this part.

(9) Number of supervisory personnel who have received the required

initial training on the specific contemporaneous physical, behavioral,

and performance indicators of probable alcohol use during the reporting

period.

(f) Annual reporting for calendar year 1993 and prior years shall

be governed by the provisions of Sec. 217.13 of this chapter in effect

during the subject calendar period.

43. Part 219 is amended by adding Subpart J as follows:

Subpart J--Record Keeping Requirements

Sec. 219.901 Retention of breath alcohol testing records.

(a) General requirement. Each railroad shall maintain records of

its alcohol misuse prevention program as provided in this section. The

records shall be maintained in a secure location with controlled

access.

(b) Period of retention. Each railroad shall maintain the records

in accordance with the following schedule:

(1) Five years. The following shall be maintained for a minimum of

five years:

(i) records of alcohol test results with results indicating an

alcohol concentration of .02 or greater, documentation of refusals to

take required alcohol tests, calibration documentation, and employee

evaluation and referrals;

(ii) a summary record of each covered employee's test results; and

(iii) a copy of the annual report summarizing the results of its

alcohol misuse prevention programs (if required to submit under

Sec. 219.801(a).

(2) Two years. Records related to the collection process (except

calibration of evidential breath testing devices) and training shall

also be maintained for a minimum of two years.

(3) One year. Records of all test results below .02 shall be

maintained for a minimum of one year.

(c) Types of records. The following specific records must be

maintained.

(1) Records related to the collection process:

(i) Collection logbooks, if used.

(ii) Documents relating to the random selection process.

(iii) Calibration documentation for evidential breath testing

devices.

(iv) Documentation of breath alcohol technician training.

(v) Documents generated in connection with decisions to administer

reasonable suspicion alcohol tests.

(vi) Documents generated in connection with decisions on post-

accident testing.

(vii) Documents verifying the existence of a medical explanation of

the inability of a covered employee to provide an adequate breath

sample.

(2) Records related to test results:

(i) The railroad's copy of the alcohol test form, including the

results of the test.

(ii) Documents related to the refusal of any covered employee to

submit to an alcohol test required by this part.

(iii) Documents presented by a covered employee to dispute the

result of an alcohol test administered under this part.

(3) Records related to other violations of this part.

(4) Records related to evaluations:

(i) Records pertaining to a determination by a substance abuse

professional concerning a covered employee's need for assistance.

(ii) Records concerning a covered employee's compliance with the

recommendations of the substance abuse professional.

(5) Records related to evaluation and training:

(i) Materials on drug misuse awareness, including a copy of the

railroad's policy on drug misuse.

(ii) Documentation of compliance with the requirements of

Sec. 219.23.

(iii) Documentation of training provided to supervisors for the

purpose of qualifying the supervisors to make a determination

concerning the need for alcohol testing based on reasonable suspicion.

(iv) Certification that any training conducted under this part

complies with the requirements for such training.

Sec. 219.903 Retention of urine drug testing records.

(a) General requirement. Each railroad shall maintain records of

its drug misuse prevention program as provided in this section. The

records shall be maintained in a secure location with controlled

access.

(b) Period of retention. Each railroad shall maintain the records

in accordance with the following schedule:

(1) Five years. The following shall be maintained for a minimum of

five years:

(i) records of employee positive drug test results, documentation

of refusals to take required drug tests, and employee evaluation and

referral;

(ii) a summary record of each covered employee's test results; and

(iii) a copy of the annual report summarizing the results of its

drug misuse prevention program (if required to submit under

Sec. 219.803(a).

(2) Two years. Records related to the collection process and

training shall be maintained for a minimum of two years.

(3) One year. Records of negative test results (as defined in Part

40 of this title) shall be maintained for a minimum of one year.

(c) Types of records. The following specific records must be

maintained.

(1) Records related to the collection process:

(i) Documents relating to the random selection process.

(ii) Documents generated in connection with decisions to administer

reasonable suspicion drug tests.

(iii) Documents generated in connection with decisions on post-

accident testing.

(iv) Documents verifying the existence of a medical explanation of

the inability of a covered employee to provide a urine sample.

(2) Records related to test results:

(i) The railroad's copy of the drug test custody and control form,

including the results of the test.

(ii) Documents related to the refusal of any covered employee to

submit to a drug test required by this part.

(iii) Documents presented by a covered employee to dispute the

result of a drug test administered under this part.

(3) Records related to other violations of this part.

(4) Records related to evaluations:

(i) Records pertaining to a determination by a substance abuse

professional concerning a covered employee's need for assistance.

(ii) Records concerning a covered employee's compliance with the

recommendations of the substance abuse professional.

(5) Records related to evaluation and training:

(i) Materials on alcohol misuse awareness, including a copy of the

railroad's policy on alcohol misuse.

(ii) Documentation of compliance with the requirements of

Sec. 219.23.

(iii) Documentation of training provided to supervisors for the

purpose of qualifying the supervisors to make a determination

concerning the need for alcohol testing based on reasonable suspicion.

(iv) Certification that any training conducted under this part

complies with the requirements for such training.

Sec. 219.905 Access to facilities and records.

(a) Release of covered employee information contained in records

required to be maintained under Secs. 219.901 and 219.903 shall be in

accordance with 49 CFR Part 40 and this section. (For purposes of this

section only, urine drug testing records shall be considered equivalent

to breath alcohol testing records.)

(b) Each railroad shall permit access to all facilities utilized in

complying with the requirements of this part to the Secretary of

Transportation or any DOT agency with regulatory authority over the

railroad or any of its covered employees.

(c) Each railroad shall make available copies of all results for

railroad alcohol and drug testing programs conducted under this part

and any other information pertaining to the railroad's alcohol and drug

misuse prevention program, when requested by the Secretary of

Transportation or any DOT agency with regulatory authority over the

railroad or covered employee.

44. Part 219 is amended by adding Appendices D3 and D4 as follows:

BILLING CODE 4910-06-P

TR15FE94.030

TR15FE94.031

TR15FE94.032

TR15FE94.033

TR15FE94.034

TR15FE94.035

TR15FE94.036

TR15FE94.037

TR15FE94.038

TR15FE94.039

TR15FE94.040

TR15FE94.041

TR15FE94.042

Issued in Washington, D.C. on January 25, 1994.

Federico Pena,

Secretary of Transportation.

Jolene M. Molitoris,

Administrator, Federal Railroad Administration.

[FR Doc. 94-2111 Filed 2-3-94; 1:00 pm]

BILLING CODE 4910-06-C