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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A94-2111

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** February 15, 1994

## Text

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 DO

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-2111. Public record. Not legal advice.