[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2111]


[[Page Unknown]]

[Federal Register: February 15, 1994]


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Part VI





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 219




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



International Application: Alcohol/Drug Regulations; Proposed Rule
DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

[Docket No. RSOR-6; Notice No. 38]
RIN 2130-AA81

 
Alcohol Testing; Amendments to Alcohol/Drug Regulations

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: FRA issues a final rule to conform its regulations on control 
of alcohol and drug use in railroad operations to the requirements of 
the Omnibus Transportation Employee Testing Act of 1991 (Act). Among 
other changes, FRA now requires pre-employment and random alcohol 
testing of safety-sensitive employees, and makes the reasonable 
suspicion component of for cause testing mandatory for both alcohol and 
drugs. FRA also amends its procedures to incorporate split sample 
testing and to incorporate the departmental alcohol testing procedures 
published elsewhere in today's Federal Register.

EFFECTIVE DATES: This final rule is effective January 1, 1995, except 
that the amendment to Sec. 219.707 and Sec. 219.708 are effective 
August 15, 1994.

ADDRESSES: Any petition for reconsideration should be submitted in 
triplicate to the Docket Clerk, Docket No. RSOR-6, Office of the Chief 
Counsel, Federal Railroad Administration, 400 7th Street SW., room 
8201, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Walter C. Rockey, Executive Assistant 
to the Associate Administrator for Safety (RRS-3), Office of Safety, 
FRA, Washington, DC 20590 (Telephone: (202) 366-0897) or Patricia V. 
Sun, Trial Attorney (RCC-30), Office of Chief Counsel, FRA, Washington, 
DC 20590 (Telephone: (202) 366-4002).

SUPPLEMENTARY INFORMATION:

Background

    On December 15, 1992, FRA published a notice proposing to amend its 
regulations on alcohol and drug misuse (49 CFR part 219) in response to 
the testing requirements mandated by the Omnibus Transportation 
Employee Testing Act of 1991 (57 FR 59588). At hearings in Washington, 
DC, Chicago, and San Francisco, FRA heard testimony from over 20 
parties, including the major industry trade associations (the American 
Association of Railroads (AAR) and the American Short Line Railroad 
Association (ASLRA)) and labor organizations (the Brotherhood of 
Locomotive Engineers (BLE), the Brotherhood of Railroad Signalmen 
(BRS), and the Railway Labor Executives' Association (RLEA)). FRA also 
received oral or written comment from the American Public Transit 
Association (APTA), the Transportation Trades Department (TTD) of the 
AFL-CIO, the National Transportation Safety Board (NTSB), individual 
freight and commuter railroads, service providers, and state and local 
governments, among others. FRA has reconsidered some of its proposals 
in light of the comments received.
    First, the effective date for this rule is January 1, 1995, to 
ensure that EBTs that meet part 40 specifications will be widely 
available and to allow for implementation of quality control systems. 
This will also allow railroads time to purchase evidential breath 
testing devices (EBTs) and phase in other part 40 requirements such as 
breath alcohol technician training. To ensure a smooth transition, 
existing provisions will remain in effect and voluntary compliance 
before the effective date will not be allowed. (However, urine split 
sample drug testing is effective beginning on August 15, 1994. See part 
40 and Secs. 219.707 and 219.708 of this final rule.
    Second, FRA permits screening tests to be conducted on preliminary 
breath testing devices (PBTs) found on the Conforming Products List 
(CPL) of the National Highway Traffic Safety Administration (NHTSA). 
EBTs that currently qualify for the CPL but do not meet the 
specifications listed in DOT's amended ``Procedures for Transportation 
Workplace Drug and Alcohol Testing Programs'' (49 CFR Part 40 (Part 
40), published elsewhere in today's Federal Register), may be used as 
PBTs. As discussed in part 40, NHTSA will develop model specifications 
for a new CPL to qualify other alcohol testing devices (such as saliva 
tests and breath tubes) as PBTs. Procedures for these additional PBTs 
will be addressed in future rulemakings.
    Third, in a separate notice issued by the Office of the Secretary 
(OST), the Department proposes to allow blood testing for screening and 
confirmation tests in the case of reasonable suspicion or after 
qualifying accidents (for modes other than rail). Combined, the use of 
PBTs and blood would be an alternative testing methodology that could 
be used in remote locations or unusual circumstances when EBTs are 
inaccessible. Allowing a blood test option for for cause testing would 
substantially reduce the costs of alcohol testing, since railroads 
would not have to ensure system-wide availability of breath alcohol 
technicians (BATs) and EBTs for unplanned testing events. Railroads 
would then be free to plan the deployment or contracting of BATs and 
EBTs for the remaining types of testing (pre-employment, return to 
service, follow-up, and random) which are all, of course, scheduled by 
the railroads.
    Since FRA has repealed its existing breath and blood testing 
procedures (Sec. 219.104(e) and former Sec. 219.303), for cause testing 
will be conducted exclusively under today's amended part 40 procedures, 
which contain new breath testing safeguards. For now, FRA allows only 
breath to be used in for cause testing. As mentioned above, however, 
the Department is proposing part 40 blood testing procedures (see the 
DOT notice titled ``Procedures for Transportation Workplace Drug and 
Alcohol Testing Programs,'' 49 CFR part 40, published elsewhere in 
today's Federal Register). If the Department adopts this proposal, and 
allows for cause blood alcohol testing, FRA will allow railroads to 
conduct for cause blood alcohol testing under part 40 procedures.
    Also, FRA moves the authority for optional post-accident breath 
testing formerly contained in Sec. 219.303 from for cause testing to 
post-accident testing. Although urine and blood samples must still be 
collected and sent to FRA's post-accident laboratory for full 
toxicological testing, the EBT breath testing option allows railroads 
to obtain immediate test results. (Post-accident breath testing must be 
conducted in accordance with part 40, however, since FRA will not 
retain Sec. 219.303's procedures.) This relocation means, in effect, 
that the categorical standards used in subpart C will govern, rather 
than the reasonable cause criteria of subpart D.
    Additional discussion of alcohol testing methodology can be found 
below and in a separate departmental Final Rule, ``Procedures for 
Transportation Workplace Testing Programs'' (49 CFR part 40), also 
published elsewhere in today's Federal Register.
    Finally, for random alcohol testing, FRA will introduce 
performance-based testing by industry. Performance-based testing was 
widely supported by commenters. As proposed, FRA will use a graduated 
submission and implementation schedule similar to the one used to 
phase-in random drug testing. Railroads will initially be required to 
conduct random alcohol testing at a 25 percent rate. Performance-based 
testing, as determined by the Administrator, will begin a year after 
industry-wide implementation of random alcohol testing has occurred. 
(In a separate departmental NPRM in today's Federal Register, FRA also 
proposes to implement performance-based testing for random drug 
testing. See ``Random Drug Testing Program.'')
    The section-by-section analysis discusses these and other 
amendments contained in the final rule. (Editorial changes and several 
proposed amendments that did not receive comment are adopted without 
further discussion.)
    Interested parties should also review the departmental preamble 
(common preamble) published by the Office of the Secretary of 
Transportation elsewhere in today's Federal Register, which is 
incorporated herein by reference. (The Federal Aviation Administration 
(FAA), Federal Highway Administration (FHWA), Federal Transit 
Administration (FTA) and Research and Special Projects Administration 
(RSPA) are also publishing alcohol testing rules in today's Federal 
Register.) Although the common preamble discusses issues pertaining to 
all of the modal rules, some of its discussion is not directly 
applicable to FRA's rule. The basis for any differences can be found in 
the section-by-section analysis.
    For convenience and ease of reference, the entire rule text as 
amended is republished.

Multi-modal Coverage

    For railroads, multi-modal coverage primarily affects those 
employees (mainly signal maintainers) who both perform covered service 
and hold Commercial Driver's Licenses (CDLs). These employees are 
subject to FRA and FHWA regulations. CDL holders who do not perform 
covered service (such as maintenance of way and shop employees) are 
subject only to FHWA's regulations.
    The ASLRA and rail labor wanted all railroad employees to be 
covered by FRA only. The AAR, on the other hand, recommended that FHWA 
regulations determine coverage for railroad commercial vehicle drivers, 
although testing would be conducted in accordance with FRA's 
regulations. Estimating that approximately 1,000 rail drivers per major 
railroad are subject to dual coverage, the AAR expressed concern about 
how to resolve differences between FRA and FHWA regulations and pointed 
out that this group of employees could be subject to a different random 
testing rate if performance-based rates are set by industry.
    While sympathetic to these industry concerns, FRA and DOT believe 
that modal coverage, like reportability (see Annual Reporting 
Requirements; Amendments to Alcohol/Drug Regulations, 58 FR 68232), 
must be determined by employee function to be logically consistent. As 
guidance, FRA's policy for CDL holders who perform covered service (and 
other employees subject to dual coverage) is as follows:
    For pre-employment and random testing, an employee is covered by 
whichever operating administration (OA) covers more than 50% of that 
employee's function. For post-accident and reasonable suspicion 
testing, however, coverage is determined by the function the employee 
was performing at the time of the accident or incident. Finally, for 
return to service and follow-up testing, the employee is covered by the 
same OA to which the initial positive was reported.
    For example, a signalman who holds a CDL but performs less than 50% 
of his time driving is covered by FRA for pre-employment and random 
testing. If that signalman were to have a reportable accident while 
driving a commercial motor vehicle, however, the post-accident test and 
any return to service tests and follow-up tests would be governed by 
FHWA. On the other hand, if in another instance a supervisor determined 
that the same signalman was impaired by a controlled substance while 
performing covered service under FRA's regulations, the reasonable 
suspicion test result and any post-positive return to service and 
follow-up test results would be governed by FRA.
    Under the management information system (MIS), test results should 
be reported to whichever OA governed the particular type of test. Each 
OA will calculate the violation rate for its industry, based on 
reported random test results. It is possible, therefore, that CDL 
holders covered by FHWA regulations could be tested at a different rate 
from those under FRA regulations.
    See the common preamble for further discussion of this issue.

Section by Section Analysis

Subpart A--General


Sec. 219.3  Application.

Paragraph (b)(2)

    FRA continues to exempt small railroads from subparts D, E, F and 
G. Although they are exempt from mandatory reasonable suspicion 
testing, small railroads must enforce the prohibitions contained in 
Secs. 219.101 and 219.102 (presumably through the industry's 
longstanding Rule G and their own for cause testing programs). 
Additionally, even though small railroads are exempted from the 
employee assistance requirements of subpart E, they must provide 
information on substance abuse services to their covered employees, as 
required by Sec. 219.23.

Paragraph (b)(3)

    As mentioned above, FRA recently published a final rule 
implementing the drug testing portion of the management information 
system, a new reporting system for alcohol and drug program information 
that replaces the data that railroads currently submit in their annual 
reports under Sec. 217.13(d). For reasons discussed in the drug MIS 
rule, FRA exempts railroads with fewer than 400,000 manhours from all 
MIS reporting requirements (including the alcohol program data elements 
added in today's final rule).

Foreign Application

    Foreign railroads have been subject to portions of FRA's 
regulations on the control of alcohol and drug use (49 CFR part 219) 
since February 10, 1986. In a Notice of Termination of Rulemaking 
Proceedings published elsewhere in today's Federal Register, FRA 
withdraws its advance notice of proposed rulemaking (ANPRM) on 
application of the Act's new requirements to foreign railroads 
operating within the United States (57 FR 59605). In lieu of a separate 
rulemaking on this issue, FRA revises Sec. 219.3(c) to continue and 
make permanent its current level of application of alcohol and drug 
testing to foreign railroads operating within the United States.
    As applied, FRA's current approach affects only Canadian employees, 
since Mexican employees do not operate in U.S. territory. FRA does not 
seek extra-territorial application of its regulations. A covered 
service employee whose primary place of service or point of departure 
(``home terminal'') for rail transportation services is located outside 
the U.S. continues to be subject to limited exceptions in coverage, 
since the primary terms and conditions of his or her employment were 
established under foreign law. Thus, the employee is subject to FRA's 
prohibitions and return to service conditions, as well as post-accident 
and for cause testing, only when operating in U.S. territory. (Pursuant 
to the Act, the employee is subject to mandatory reasonable suspicion 
alcohol and drug testing while on U.S. soil, although the accident/
incident and rules violation components of FRA's for cause testing 
program remain discretionary.) Employee assistance policies (subpart 
E), pre-employment testing (subpart F) and random testing (subpart G) 
remain subject to the law of the country where the employee is based 
(as determined by the employee's home terminal or reporting point).
    A U.S.-based covered service employee of a foreign railroad 
continues to be subject to all components of FRA's program, as amended. 
For both U.S.-based and foreign based covered service employees, all 
testing pursuant to part 219 must be conducted under the procedures set 
forth in part 219 and part 40, as amended in today's Federal Register.


Sec. 219.5  Definitions.

    FRA revises its definition of alcohol to conform to the definition 
published by NHTSA in its September 17, 1993 notice on ``Highway Safety 
Programs; Model Specifications for Devices to Measure Breath Alcohol'' 
(58 FR 48705), which proposed to revise model specifications for EBTs. 
As discussed in both part 40 and the common preamble, FRA now requires 
employers to look to NHTSA's CPL for both PBTs and EBTs.
    Commenters were split on FRA's proposal to expand its definition of 
covered employees to include first line supervisors in random alcohol 
and drug testing programs. Most industry commenters found this proposal 
unjustified, since supervisors as a group have no record of substance 
abuse directly affecting railroad safety and are already subject to 
post-accident and for cause testing if they perform covered service. 
The ASLRA did not want supervisors to count as covered employees for 
purposes of the small railroad exemption (under FRA's proposal, 
supervisors would not have been considered Hours of Service Act 
employees towards the 15 employee threshold). On the other hand, the 
Long Island Railroad wanted testing expanded to include every 
supervisor in the chain of command, and Amtrak already uses its own 
authority to test its first two levels of supervisors (although Amtrak 
was concerned about preemption by FRA). Rail labor has always supported 
supervisory testing, for both equity and safety reasons.
    On balance, FRA has decided to drop this proposal since there is no 
statutory mandate to include supervisors in testing. Moreover, it would 
often be difficult to determine where first-line supervisory lines 
should be drawn since supervisors frequently perform multiple 
functions. Further, other modal administrations have not included 
supervisory personnel in the covered class.
    FRA amends its proposed definition of substance abuse professional 
(SAP), to include addiction counselors who have been certified by the 
National Association of Alcoholism and Drug Abuse Counselors 
Commission. This DOT-wide amendment is discussed in more detail in the 
common preamble.
    FRA also substitutes substance abuse professional for EAP counselor 
wherever that term appeared in the text of the Locomotive Engineer 
Certification regulation. Commenters did not offer any other changes to 
conform the language of 49 CFR part 240 to the language of this part.
    FRA adds a definition, ``violation rate,'' which measures the rail 
industry's overall random alcohol ``positive'' rate. Each year, the 
Administrator will examine the violation rate to determine whether the 
industry testing rate should be adjusted, as explained in Sec. 219.608 
on performance-based testing.


Sec. 219.9  Responsibility for compliance.

Paragraphs (a) and (c)

    The recently enacted Rail Safety Enforcement and Review Act 
(RSREA), Public Law No. 102-365, amended the Federal Railroad Safety 
Act of 1970 (FRSA) (See 45 U.S.C. 438(a)) to clarify that FRA's safety 
jurisdiction extends to all entities that may violate the railroad 
safety laws. FRA amends this section to make clear that this part, like 
all regulations issued under authority of the FRSA, applies not only to 
railroads but also to any other entity that may violate this part, 
including independent contractors who provide goods and services to 
railroads and the employees of such contractors.
    Metro-North and the Metropolitan Transit Authority commented that 
this amendment appeared to make a railroad responsible for 
administering substance abuse programs for its independent contractor 
employees. That is not FRA's intent. FRA is concerned at this time only 
with ensuring that all persons who perform covered service for a 
railroad are subject to the same testing, regardless of whether the 
person has a direct employment relationship with the railroad. For FRA 
purposes, a railroad is in compliance if it contracts with its 
contractors who perform covered service to assure their compliance with 
part 219. The railroad may then, for example, attach copies of these 
contracts as part of its random alcohol testing plan submission. In 
practice, FRA anticipates that many contractors will develop a single 
substance abuse program for their employees, which can be recognized by 
all the railroads that the contractor serves. FRA has added regulatory 
text to clarify what is intended here.
    FRA will publish a separate notice to make conforming revisions to 
the penalty schedule set out in Appendix A to part 219.)


Sec. 219.11  General conditions for chemical tests.

Paragraph (g)

    As proposed, FRA continues to require supervisors to receive a 
minimum of three hours of combined training on alcohol and drugs. FRA 
received little comment on this issue. While two commenters felt that 
60 minutes should be sufficient, particularly if offered as an annual 
refresher course, a commuter railroad that already provides 8 hours of 
supervisory training felt that 3 hours was a bare minimum.
    FRA believes that a minimum of 3 hours is sufficient, but now 
requires training on post-accident testing criteria and collection 
procedures. Railroads may integrate these required topics into their 
current training programs, which must be made available for inspection 
upon request.


Sec. 219.13  Preemptive effect.

    Section 219.13, which states the preemptive effect of safety 
regulations issued under the FRSA (See 45 U.S.C. 434), remains 
unchanged. The Act expressly did not provide a new preemption standard; 
instead, it amended the FRSA to require the Secretary to issue rules, 
regulations, standards, and orders relating to alcohol and drug use in 
railroad operations.


Sec. 219.15  Alcohol concentrations in blood and breath.

    This section is deleted since a revised alcohol concentration 
definition is included in Sec. 219.5.


Sec. 219.21  Information collection.

    As mentioned above, FRA has replaced Sec. 217.13(d)'s reporting 
requirements with a management information system to collect 
information on railroad drug misuse programs. (MIS comments were 
addressed in that rule.) After railroads have implemented alcohol 
testing, FRA will require reporting of alcohol misuse programs data as 
well. In Sec. 219.801, FRA adds data elements on alcohol testing to 
complete the MIS' information collection on railroad substance abuse 
programs. FRA will use this data to monitor compliance and enforcement.


Sec. 219.23  Railroad policies.

Paragraph (f)

    FRA received no comments on this paragraph. In addition to the 
proposed requirements, FRA requires railroads to publish information to 
each covered employee on the signs, symptoms and effects of alcohol 
misuse, as well as available methods of intervention once an alcohol 
problem is suspected. FRA hopes that publishing such information will 
facilitate self- and peer-referrals, particularly when supplemented by 
the list of EAP resources that must be made available to covered 
employees under paragraph (d) of this section. Railroads must therefore 
provide the required information to all of their covered employees (not 
just those who have been identified as having a substance-abuse 
problem).
    Railroads may of course provide additional information beyond these 
requirements.

Subpart B--Prohibitions

    As discussed above, existing provisions will remain in effect to 
allow for a smooth transition. The effective date for the amendments to 
this subpart is January 1, 1995.


Sec. 219.101  Alcohol and drug use prohibited.

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

    FRA proposed to prohibit a safety-sensitive employee from using 
alcohol either for four hours before reporting to perform covered 
service, or for the period of time running from when the employee 
receives a ``call,'' or notice to report for covered service, to when 
the employee actually reports for covered service, whichever is the 
lesser of the two periods. FRA also proposed to prohibit a railroad, 
through an employer's duty to prevent violations of Sec. 219.101 and 
Sec. 219.102, from allowing an employee to report for covered service, 
or go or remain on duty in covered service, if the railroad has actual 
knowledge that the employee is in violation of Sec. 219.101(a)(3).
    Industry commenters were concerned that specifying a pre-duty 
abstinence period would erode Rule G's prohibition on working with any 
alcohol in one's system, by implying that employees may report to work 
with alcohol in their system so long as consumption occurred before the 
required abstinence period. The Chicago and North Western (CNW) 
commented that pre-duty abstinence would be difficult to enforce, and 
should more properly be identified as the employee's responsibility.
    Several commenters felt that FRA's proposed period was too short. 
APTA, the Metropolitan Transportation Authority and SEPTA suggested 
mandating eight hours of pre-duty abstinence. The NTSB preferred a 
longer period, but would also support an eight hours of pre-duty 
abstinence if uniformly applied.
    New Jersey Transit (NJT), however, while recommending that pre-duty 
drinking should be absolutely prohibited, felt that the proposed 
abstinence period would be useful both as an enforcement and a public 
relations tool. NJT also felt that the employee should have the option 
to take a pre-duty test if either the employee or the employer suspects 
that the employee may be in violation.
    FRA had asked for comment on whether this pre-duty prohibition is 
workable for ``short-call'' employees, such as those who operate trains 
in pool crew service and off extra boards and signal maintainers who 
are subject to call without notice round the clock to handle ``trouble 
calls.'' In response to this query, the BLE and BRS recommended that 
FRA mandate by-pass provisions (mark-offs), particularly for signal 
employees subject to short call. The RLEA agreed that employees should 
be allowed to mark off and stay off-duty when impaired, and suggested 
that any potential for abuse could be curbed by setting limits; for 
example, requiring an EAP referral for any employee who marks off three 
or more times in a year. The TTD commented that pre-duty abstinence 
would be impracticable for those employees who are always subject to 
call, and that FRA should allow employees to mark off for any type of 
impairment.
    As discussed in the NPRM, FRA encourages railroads to adopt mark 
off procedures in the concept of voluntary programs such as Operation 
Red Block. However, because the successful implementation of such 
programs requires faithful adherence to mutual undertakings, FRA 
believes that implementation of such programs should be a bargaining 
issue rather than a federal mandate. Implementation of mark-off 
procedures therefore remains voluntary. In contrast, the eight hour 
pre-duty abstinence period suggested by the NTSB and some carriers 
would in effect impose total prohibition on short-call employees. After 
considering the comments, FRA believes that its proposal is the most 
workable compromise and thus the approach most likely to elicit 
voluntary compliance.

Paragraph (a)(4)

    Rail management commenters uniformly supported a .02 standard (the 
equivalent of zero tolerance, because of the technological limitations 
of EBTs), because of concerns that the proposed system would preempt 
Rule G's longstanding prohibitions against alcohol use. Railroads 
opposed a .04 standard for the same reason.
    Because of the technological limitations of EBTs, rail labor 
considered a .04 standard to be the most defensible, and suggested that 
any alcohol level below be considered a negative. The RLEA saw no 
conflict between a .04 standard and Rule G, since railroads would 
remain free to maintain a zero tolerance standard under their own 
authority.
    The NTSB supported a .00 standard, which would not permit an 
employee with any positive BAC to perform ``safety-sensitive 
functions,'' citing evidence in aviation and highway research of a 
hangover effect on performance many hours after a person's BAC had 
returned to zero.
    After considering the comments, FRA believes that none of these 
recommended standards is appropriate. A true .00 standard could not be 
enforced, as a practical matter. A .02 standard would probably cause 
SAPs to waste time and effort on employees who do not in fact have 
alcohol or substance abuse problems, while a .04 standard would 
actually invite some employees to risk using alcohol, in the hope that 
their BAC would be below .04 by the time that they could be tested 
(e.g., employees at remote work sites). This approach would also 
deprive railroads of information that could be used to enforce Rule G 
and other, more stringent company policies.
    FRA therefore believes that the proposed ``bifurcated'' or ``two-
tier'' system is necessary to avoid having the full consequences of a 
violation apply to those situations where an employee's test result 
indicates an alcohol concentration between .02 percent and .039 
percent. The employee will not have to be evaluated by a SAP, or 
administered a return to duty test. However, since use of alcohol 
indicates that the employee may present a safety risk, the employee 
will not be allowed to perform covered service for a minimum of eight 
hours after administration of the test.
    With the sole exception of pre-employment tests for final 
applicants for employment (discussed below), FRA does not adopt the 
proposed retest option. Railroads were unsure as to what to do with an 
employee while waiting for his or her BAC to drop to below .02., since 
Rule G prohibits a covered employee who has any alcohol in his or her 
system from being on company property. Since this option is 
incompatible with traditional railroad policy, FRA believes that 
employees who are identified to have low levels of alcohol can more 
appropriately be handled through Operation Redblock and other existing 
programs specifically developed to fit industry needs.
    Like the very similar rule currently in effect, the bifurcated 
system does not preempt a railroad's independent authority to test and 
discipline under Rule G. As stated in Sec. 219.1, railroads retain the 
latitude to adopt more stringent standards under their own authority. 
For instance, railroads retain their authority to discipline an 
employee under company policy for a .02-.039 test result conducted 
under FRA authority or to discipline an employee found to have violated 
Rule G based solely on supervisory observations. The latter option 
should prove useful for very small railroads (who will not be required 
to conduct mandatory reasonable suspicion testing) when faced with an 
obviously drunk employee reporting for duty, particularly if an 
evidential breath testing device (EBT) is not readily available.


Sec. 219.104  Responsive action.

    Existing provisions will remain in effect to allow for a smooth 
transition. As discussed above, however, the effective date for 
implementation of post-positive return to service and follow-up alcohol 
testing is January 1, 1995.

Paragraph (d), Return to Covered Service

    FRA proposed to require a return to service test for the substance 
of the original positive only. Because of concerns about polydrug and 
alcohol abuse, discussed in greater detail in the section below, FRA 
also authorizes a railroad to require an employee to be tested for both 
alcohol and drugs, if such return to service testing has been 
recommended by the SAP for that employee.

Paragraph (e), Follow-up Testing

    Earlier, FRA discussed the deletion of its current blood testing 
procedures. As proposed, FRA deletes the breath and blood testing 
procedures formerly contained in this paragraph. Testing will instead 
be conducted under part 40's more rigorous evidential breath testing 
procedures, which should provide employees ample reassurance that 
breath testing will be fair and technically sound.
    FRA had proposed that an employee's first year of follow-up testing 
after a post-positive return to covered service include a minimum of 
six unannounced tests that would track the basis for the employee's 
removal; that is, an employee who was removed for misuse of controlled 
substances or for refusing to provide body fluid samples under a 
mandatory provision of this part would be follow-up tested only for 
drugs, while an employee who was removed for misuse of alcohol or for 
refusing to provide breath under a mandatory provision of this part 
would be follow-up tested only for alcohol. After this first year, 
additional follow-up testing would be discretionary upon recommendation 
of the SAP, who is authorized to recommend follow-up testing for up to 
48 months.
    FRA asked for comment on the issues of recidivism and polydrug 
abuse. In its compliance reviews, FRA uncovered instances of railroads 
failing to conduct follow-up tests on employees who had returned to 
covered service following positive drug tests. In several cases, 
routine random testing had detected drug use by post-positive 
employees. Moreover, FRA's study of clinical literature shows some 
incidence (10-50 percent) of individuals abusing both alcohol and one 
or more illicit or controlled substances. There is more evidence for 
individuals who cease drug misuse crossing over from drugs to alcohol; 
the cross-over from alcohol to drugs (and particularly those drugs 
contained in the DHHS test panel) is not as well documented.
    Comment was divided. The AAR and the ASLRA, among others, felt that 
follow-up testing should be left completely to the discretion of the 
SAP. Rail labor agreed. SEPTA and APTA however, wanted mandatory 
testing for 60 months, with APTA recommending a minimum of 12 tests the 
first year and 6 tests each year thereafter. APTA and all rail 
commenters wanted the authority to follow-up test for both alcohol and 
drugs, regardless of the substance of the positive. SEPTA offered data 
from its program, which includes 30 months of follow-up testing. Other 
than reasonable suspicion testing, SEPTA's highest positive rate (10.17 
percent in the last fiscal year) was for post-positive return to 
service tests.
    To address concerns about employee relapse, FRA retains its 
proposed testing minimums while allowing for greater cross-substance 
testing. Broader monitoring may help detect instances where an employee 
switches to alternative drugs after being deprived of his or her 
primary drug of abuse. FRA therefore requires a return to service test 
and six follow-up tests in the first 12 months for the substance (or 
class) of the original positive. In addition, a railroad may choose to 
test for both alcohol and drugs at the return to service test, and at 
follow-up tests for a total of up to 60 months, if such testing is 
recommended by the SAP. The SAP may make such additional testing part 
of a conditional recommendation for the employee's return to service.
    This approach allows for flexible case management, recognizing that 
an employee who misuses either alcohol or a controlled substance could 
have a more general propensity to abuse psychoactive drugs (i.e., 
active polydrug abuse or incipient cross-addiction). Its intent is to 
eliminate any question as to the employer's right and obligation to 
provide for aftercare monitoring of employees who have violated alcohol 
or drug rules.

Paragraph (f)

    (As discussed above, the .02-.039 rule text is now in 
Sec. 219.101(a)(4).) This paragraph seeks to ensure that the SAP places 
the interest of safety above other considerations, when recommending 
treatment or advising the railroad about whether to return an employee 
to covered service.

Subpart C--Post-Accident Toxicological Testing

    The common preamble discussion of post-accident testing does not 
apply to FRA's program, which unlike those of other modes, requires 
full toxicological testing following designated accidents and 
incidents.
    As discussed above, existing provisions will remain in effect to 
allow for a smooth transition. The effective date for the amendments to 
this subpart is January 1, 1995.


Sec. 219.201  Events for which testing is required.

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

    FRA received little comment on its proposal to raise the amount of 
railroad property damage required for major train accidents and for 
impact accidents, which was prompted by recent low positive rates. 
Accordingly, FRA redefines Sec. 219.201(a)(1)(iii) (major train 
accidents) to require testing for accidents that cause $1,000,000 or 
more in damage. FRA also redefines Sec. 219.201(a)(2)(ii) (impact 
accidents) to require testing for non-injury accidents that cause 
$150,000 or more in damage. The NTSB uses this reporting threshold 
(although the NTSB, unlike FRA, includes damage to lading).
    FRA expects that much of this data will be replaced through 
railroad for cause testing. (Commenters were silent as to whether 
Subpart D testing should be required for events between the existing 
$50,000 threshold and the proposed $150,000 threshold where there is a 
reasonable belief that the particular employee contributed to the 
accident.)

Paragraph (b) [Exceptions]

    All commenters supported FRA's proposal to exclude from post-
accident testing accidents that otherwise qualify but are clearly 
attributable to vandalism. (The NTSB did not comment.) FRA therefore 
adopts this proposal. Consistent with the other exceptions, the 
vandalism exception holds railroad supervisors to Sec. 219.201(c)'s 
reasonable inquiry/good faith judgment standard when making 
determinations.


Sec. 219.203  Responsibilities of railroads and employees.

Paragraph (a), Employees Tested

    As discussed above, once a railroad has made a good faith 
determination that a qualifying event has occurred, the railroad may 
conduct breath alcohol testing if an EBT is available and breath 
testing does not interfere with or delay collection of samples for 
mandatory blood and urine testing. While railroads must still collect 
blood and urine samples for full toxicological testing, this option 
allows quick enforcement action since there is no need to wait for 
laboratory analysis.
    Although FRA has moved the authority for optional breath testing 
from for cause testing to post-accident testing, the procedures 
specified in Sec. 219.303 have not been retained. Instead, railroads 
who choose to exercise this option must conduct breath testing in 
accordance with the new Part 40 procedures published today.
    FRA will revise Forms 6180.73 and 6180.74 to allow for railroad 
reporting of EBT test results. Form 6180.73 will add a check off box on 
the railroad representative's copy asking whether one or more employees 
were breath tested. Form 6180.74 will add a similar check off box for 
each tested employee. If breath alcohol tests are conducted, the 
railroad may either attach a copy of each Part 40 breath alcohol 
testing form (the railroad will have to make an additional copy for FRA 
purposes, since the Part 40 form allows only for BAT, employee, and 
employer copies) to the FRA forms to be shipped with the toxicology 
kit, or send a copy of each Part 40 form directly to FRA within 10 days 
of the tests. (Appendix C will contain revised instructions.)
    FRA expects the results from breath and blood alcohol testing to 
almost always vary, since an EBT test will usually be conducted hours 
before the railroad is able to collect blood and urine samples, 
allowing the employee's BAC to change in the interim. The breath test 
result will always stand on its own, however, since by definition an 
EBT test always meets evidential standards.
    FRA will use the results from all three types of testing (breath, 
blood, and urine) for post-accident toxicological analysis, since the 
purpose of mandatory toxicological testing remains unchanged. Blood and 
urine samples will continue to be collected as independent aids to 
accident investigation, not as backups for EBT test results.


Sec. 219.205  Sample collection and handling.

    FRA will publish an amended Appendix C to part 219 to modify post-
accident procedures, toxicology kits, forms, and instructions to 
accommodate optional breath alcohol testing and mandatory urine split 
sample procedures. (FRA already splits blood samples into two sealed 10 
milliliter tubes.) FRA will announce when the new kits and forms become 
available.
    Upon employee request, FRA's post-accident toxicological laboratory 
will ship the employee's sealed split samples to another DHHS-certified 
laboratory for testing.


Sec. 219.209  Reports of tests and refusals.

Paragraph (b)

    With the addition of the breath test option described above, a 
railroad must report to FRA any refusals to provide breath for testing.

Paragraph (c)

    In an earlier Safety Recommendation, the NTSB recommended that FRA 
require railroads to submit notification, including reasons for the 
delay, whenever a post-accident test could not be conducted within four 
hours of the qualifying accident or incident. The NTSB's current 
recommendation reduces this testing window from four hours to two. Such 
a requirement would in effect compel railroads to submit a report for 
each qualifying event, since the average FRA post-accident collection 
time is 5.5 hours.
    FRA requires reporting but will minimize the burden by adopting the 
NTSB's original four hour recommendation, which is a more workable 
window for post-accident testing. In addition, while reports must be 
prepared and maintained for inspection upon request, they do not have 
to be submitted to FRA.


Sec. 219.211  Analysis and follow-up.

Paragraph (a)

    As part of its amended Appendix C, FRA will publish a summary of 
its post-accident testing protocols, which have been submitted to the 
DHHS.


Sec. 219.213  Unlawful refusals; consequences.

    A refusal to provide breath for optional testing will have the same 
consequences as a refusal to provide bodily fluid samples for mandatory 
testing; the employee shall be disqualified from covered service for 
nine months.

Subpart D--Testing for Cause

    As proposed, FRA amends the heading of this subpart to 
differentiate now-mandatory reasonable suspicion from accident/incident 
and rule violation testing, which remain discretionary. This new 
heading also conforms to the classifications used in FRA's drug MIS.
    As discussed above, existing provisions will remain in effect to 
allow for a smooth transition. The effective date for the amendments to 
this subpart is January 1, 1995.


Sec. 219.300  Mandatory reasonable suspicion testing.

    Noting that an alcohol test is not needed to confirm possession of 
alcohol or controlled substances, the AAR considered the proposed 
language in this paragraph overbroad since it would require alcohol 
testing whenever a supervisor suspected any violation of 
Sec. 219.101(a). FRA agrees, and has amended this paragraph to require 
testing only when use of alcohol is suspected. (The Act specifies that 
reasonable suspicion testing must be conducted for use of alcohol or 
controlled substances.) Therefore, a suspicion of possession alone does 
not require a reasonable suspicion test.
    FRA will not add long-time decline in job performance as a factor 
for the employer to consider when determining whether to conduct a 
reasonable suspicion test on an employee. Only one commuter line 
supported this proposal. The AAR thought this additional factor 
unnecessary, since a supervisor could only consider long-term 
performance in conjunction with specific contemporaneous observations 
indicative of substance abuse, and such observations would provide an 
independent basis for a now mandatory reasonable suspicion test. Rail 
labor agreed, commenting that employers have authority to conduct 
reasonable suspicion testing without this factor, and that long-term 
decline in job performance would more properly be handled by EAPs, 
since it is often caused by personal problems other than substance 
abuse. The NTSB did not comment on this issue.
    (For purposes of intermodal consistency, and to avoid any 
misimpression that a reasonable suspicion drug test could be required 
solely based on perceived long-term decline in performance without a 
contemporaneous manifestation clearly tied to drug use, FRA has deleted 
the following phrase: ``[s]uch observations may include indications of 
the chronic and withdrawal effects of drugs.'' Deletion of this phrase 
is not intended to limit a supervisor from taking into consideration 
any contemporaneous indication of drug use. But FRA cautions that 
chronic and withdrawal effects alone will seldom yield unambiguous 
contemporary indications in the case of either alcohol or drugs. Where 
unambiguous withdrawal effects are encountered, prompt medical 
attention will normally take precedence over occupational alcohol or 
drug testing. Where a long-term decline in performance occurs, referral 
under subpart E of this rule (``Identification of Troubled Employees'') 
is the indicated course of action.

Paragraph (b)

    FRA had proposed a ``logic tree'' for situations where a supervisor 
reasonably suspects an employee of substance abuse, but is unable to 
determine whether the medium of abuse is alcohol or controlled 
substance(s). FRA continues to recommend, but will not require, the 
following process: a supervisor should conduct an alcohol test first 
whenever an employee's symptoms could be consistent with either alcohol 
or controlled substance use. If the breath test result is below .02, 
the supervisor should conduct a urine drug test to continue the search 
for an explanation. If the breath test result is .02 percent or more, 
drug urinalysis is optional.
    Because of polydrug abuse, Metra and SEPTA considered this logic 
tree unnecessary, suggesting that employers should be allowed to 
conduct both a breath alcohol test and a urine drug test whenever 
reasonable suspicion exists to test for alcohol. Although FRA agrees 
that employers need some latitude to inquire into suspected polydrug 
abuse, FRA recommends that supervisors decide step by step whether 
additional testing is needed, instead of automatically proceeding to 
test for both alcohol and controlled substances.

Paragraph (c)(1)

    Reaction was cleanly split on FRA's proposal to prohibit a 
supervisor who makes a reasonable suspicion determination from also 
conducting the breath test for that employee. Railroads uniformly 
opposed this prohibition as both impractical and unnecessary. Carriers 
who conduct for cause testing programs under their own authority had 
experienced no problems with supervisory abuse of discretion. To 
document their lack of supervisory depth, several AAR member railroads 
submitted examples of locations where normally only one supervisor 
would be available. Commenters also noted that testing could only be 
conducted if a trained supervisor had an articulable basis for his or 
her suspicion. Additionally, the employee would observe the entire 
breath alcohol testing process and the NPRM required all breath testing 
devices to meet evidential standards.
    In contrast, rail labor supported the determining supervisor as BAT 
prohibition. The BLE and BRS noted that FRA's requirement of two 
supervisors (one of whom must be trained) to make a reasonable 
suspicion drug testing determination has been in place for several 
years. In theory, therefore, the same two supervisors would also be 
available for reasonable suspicion alcohol testing. More importantly, 
this requirement makes more likely that each breath alcohol test will 
have an independent witness.
    FRA believes that a compromise may be possible, particularly in 
light of the Department's decision to allow employers to use PBTs for 
screening tests. In the above-mentioned NPRM on blood testing 
procedures, OST proposes to allow the determining supervisor to conduct 
the screening test on an EBT or a PBT (if an EBT is unavailable), but 
not the confirmation test, which must still be conducted on an EBT by 
another individual. This would provide testing flexibility for 
reasonable suspicion events that occur in remote locations, while still 
requiring all confirmation tests to be conducted by a person not in the 
employee's chain of command. Comments on this proposal should be 
submitted to OST's docket.

Paragraph (c)(2)

    Commenters raised similar pros and cons for FRA's proposal to 
require two trained supervisors to make a determination to conduct a 
reasonable suspicion drug test. In response, FRA will instead retain 
its existing requirement of two supervisors, one of whom must be 
trained in the signs and symptoms of substance abuse (as provided for 
in Sec. 219.11(g)), to make a reasonable suspicion drug testing 
determination.

Paragraph (d)

    Under FRA's original proposal, a major concern for commenters was 
the possibility that testing situations could frequently occur in 
remote locations where EBTs are unavailable. Where this occurred, a 
railroad could still enforce prohibitions against alcohol misuse under 
its own authority, but would be unable to conduct federally mandated 
testing.
    At a minimum, permitting the use of PBTs should enable railroads to 
conduct screening tests in most circumstances. As discussed above, FRA 
proposes to allow confirmation blood alcohol testing. Under current FRA 
procedures, however, if the screening test result indicates alcohol 
misuse, the supervisor must determine whether a confirmation test can 
be conducted on an EBT within eight hours of the screen. If an EBT is 
unavailable, the unconfirmed screening test will be considered a no 
test.
    However, once a supervisor suspects alcohol misuse, he or she must 
enforce the prohibitions in Subpart B even if the employee cannot be 
tested at that time. FRA requires the supervisor to comply with the 
prohibitions in Sec. 219.101(a)(4) and send the employee home for at 
least eight hours. As always, a railroad may also take independent 
enforcement action under its own authority.


Sec. 219.301  Testing for reasonable cause.

    FRA has reformulated its proposed language in response to the 
ASLRA's comment that the phrase ``based on affirmative evidence of 
unsafe conduct'' implied a probable cause standard for testing. 
Instead, FRA will require a supervisor to have ``a reasonable belief, 
based on specific, articulable facts, that the employee's acts or 
omissions contributed to the occurrence or severity of the accident or 
incident''. This case law-derived language, while clearly a lesser 
standard than traditional probable cause, stresses that a supervisor 
must have more than a hunch or a guess upon which to base his or her 
determination. This restriction applies only to testing under FRA 
accident/incident authority, however.


Sec. 219.302  Prompt sample collection; time limitation.

Paragraph (b)(2)

    Contrary to the discussion in the common preamble, the eight hour 
time limit for completion of accident/incident for cause testing, runs 
from the time a responsible railroad supervisor receives notice of the 
event providing reasonable cause for conduct of the test.

Paragraph (f)

    A railroad must prepare and maintain a report, similar to the post-
accident delay report required in Sec. 219.209(c), whenever a 
reasonable suspicion test cannot be conducted within two hours of the 
observations or events that were the basis for the railroad's 
reasonable suspicion determination. The report does not have to be 
submitted, but must be made available upon request.


Sec. 219.303  Alcohol test procedures and safeguards.

    As discussed earlier, FRA will allow PBTs to be used for screening 
tests in response to commenters' near unanimous demand for greater 
flexibility. By allowing the use of PBTs, however, FRA does not excuse 
railroads from making their best efforts to ensure the availability of 
EBTs for routine testing situations.


Sec. 219.303  Breath test procedures and safeguards.

Paragraph (c)

    As discussed above, FRA will adopt part 40 blood alcohol testing 
procedures upon publication of the Department's final rule. This 
paragraph is accordingly deleted.

Subpart F-Pre-employment Tests

    Existing provisions will remain in effect to allow for a smooth 
transition. As discussed above, however, the effective date for 
implementation of pre-employment alcohol testing is January 1, 1995.


Sec. 219.501  Pre-employment tests.

    As mentioned above, FRA adopts the proposed retest option only for 
final applicants for employment. An applicant whose test result 
indicates an alcohol concentration between .02 percent and .039 percent 
will not be allowed to perform safety-sensitive service until he or she 
has a later test result indicating an alcohol concentration of less 
than .02. Since rule G applies only to current railroad employees, 
allowing a retest option for applicants is compatible with traditional 
industry policy. This option also makes FRA pre-employment policy 
administratively consistent with the rest of the Department.
    Commenters expressed no interest in the proposed ``grandfathering'' 
provision, which would have allowed railroads to exempt a covered 
employee from pre-employment testing if a background check indicated 
that the employee had not had any violations of this part or of the 
alcohol and drug misuse rules of another DOT agency within the last six 
months. FRA has decided to delete this option, since the added 
flexibility it would have provided is unnecessary for the rail 
industry, which traditionally has a stable employee population and a 
low turnover rate (unlike trucking, for example).

Subpart G-Random Testing Programs


Sec. 219.607  Railroad random alcohol testing programs.

Paragraph (a)

    All commenters on the issue favored combined alcohol and drug 
random testing programs. The BLE and BRS recommended this approach as a 
cost effective means of deterrence, since an employee could not know in 
advance whether he or she was being tested for alcohol, for drugs, or 
for both. Transtar felt that a single testing program would reduce both 
cost and confusion. Metra and APTA supported using the same selection 
to conduct alcohol and drug testing, while Amtrak wanted the 
flexibility to conduct alcohol and drug tests simultaneously for some 
employees, but at different times for others.
    FRA agrees that flexibility is important, and will allow railroads 
to combine plans/and or testing, if desired. A railroad may submit a 
separate alcohol testing plan or a combined testing plan for approval. 
The combined testing plan may be a previously approved random drug 
testing plan that has been modified by adding alcohol testing elements 
(any modifications should be specified and highlighted, however).
    FRA will, for the most part, duplicate the notice requirements and 
criteria for plan approval that were used to implement random drug 
testing, including a three-tier submission and implementation schedule 
that allows smaller carriers additional time to develop and execute 
random alcohol testing plans. Class I and commuter railroads must 
submit random alcohol testing plans for FRA approval within 6 months 
after publication of this rule and must implement random alcohol 
testing beginning on January 1, 1995; Class II railroads must submit 
plans within 12 months after publication and must implement testing 
beginning on July 1, 1995, and Class III railroads must submit plans 
within 18 months after publication and must implement testing beginning 
on January 1, 1996. (For the reasons discussed below, there will be no 
phase-in of the testing rate.)

Paragraph (b)(2)

    Commenters (including, among others, the APTA, AAR, ASLRA, BLE, BRS 
and RLEA) were close to unanimous in supporting a 10 percent testing 
rate the first year, followed by an annual performance-based rate set 
according to each railroad's random alcohol positive rate for the 
preceding year. In support of this low initial rate, commenters pointed 
to the existence of an extensive peer prevention and employee 
assistance system, the addition of new types of mandatory (pre-
employment and reasonable suspicion) alcohol testing, and supervisory 
knowledge of the signs and symptoms of alcohol, making alcohol misuse 
comparatively easy to detect. Commenters also cited the General 
Accounting Office's study and the results of the AAR's test project, as 
evidence that lowering testing rates does not affect deterrence. 
Support was also widespread for railroad-specific performance-based 
testing (for both alcohol and drugs), both as an incentive for carriers 
to try alternative methods of deterrence, and as a reward to those 
carriers who have viable peer referral and bypass programs.
    FRA agrees that the initial random rate for alcohol testing should 
be lower than the current 50 percent random drug testing rate, and that 
testing rates should then be tied to the preceding year's positive 
rate. However, FRA believes that a 10 percent testing rate is the 
absolute minimum level of effort required to sustain awareness and 
deterrence. Moreover, FRA is concerned that a railroad-specific 
performance-based system could create an incentive for some railroads 
to report and/or keep records dishonestly, thus requiring considerable 
enforcement effort to guard against such improper manipulation. Such a 
system would also be difficult to apply to smaller railroads, since 
even a small variation in the number of positives (e.g., 0 vs. 1) would 
result in high year-to-year volatility in each railroad's required 
testing rate. In other words, the small size of a given railroad's 
population and the resulting small number of tests could create 
variations in positive rates that do not truly reflect that railroad's 
incidence of employee misuse.
    Therefore, FRA (along with FAA, FHWA and FTA) will instead set a 25 
percent initial rate for alcohol testing, with performance-based 
alcohol testing by industry. Each railroad is expected to achieve the 
required 25 percent testing rate at the inception of random alcohol 
testing. (FRA intends to discuss the random rate for drug testing in a 
separate NPRM). As discussed in Sec. 219.608, the Administrator will 
publish a minimum random testing rate, which will be determined by the 
overall violation rate for the rail industry.

Paragraph (b)(3)

    Because of the short half-life of alcohol in the body, railroads 
may conduct random alcohol testing at any time the employee reports for 
work and at any time during the duty tour (except for when the employee 
is expressly relieved of any responsibility for the performance of 
safety-sensitive duties).

Paragraph (b)(6)

    An employee may be tested only when he or she is on duty and either 
performs covered service or is immediately available to perform covered 
service. Therefore, the issue of commingled service is critical to plan 
approval, since off-duty consumption of alcohol is not proscribed (so 
long as the employee does not report for duty with a BAC of .02 or 
more). Plans must be carefully designed to subject commingled service 
employees to testing only to the extent that they perform or can 
reasonably be expected to perform covered service during a given duty 
tour.
    Industry commenters wanted the flexibility to conduct testing at 
different times during an employee's ``duty tour.'' FRA has no 
objections, so long as the date or time of the test is not predictable 
to the employee. For instance, a railroad could not cluster its tests 
exclusively at the beginning or end of the duty tour. (FRA will not 
adopt its proposal to limit a railroad's time in which to notify an 
employee to a period running from 30 minutes before to 30 minutes after 
the employee performs safety-sensitive functions, plus applicable 
travel time.)


Sec. 219.608  Administrator's determination of random alcohol testing 
rate.

    For at least three calendar years (because of staggered 
implementation dates, the minimum amount of time needed for all classes 
of railroads to have one year of alcohol testing data), railroads will 
conduct random alcohol testing at a 25 percent annualized rate. 
Subsequently, FRA will use employer data obtained from MIS reports to 
determine the industry's violation rate, which will in turn determine 
the minimum testing rate to be authorized by the Administrator. Any 
random rate change indicated by industry performance will occur at the 
beginning of the calendar year. Railroads will remain free to test at 
higher rates provided they treat all employees alike.
Subpart H--Procedures and Safeguards for Urine Drug Testing and for 
Breath Alcohol Testing
    As noted above, the urine drug testing split sample procedures 
specified in part 40 are mandatory beginning on August 15, 1994 as are 
the amendments to this subpart concerning urine drug testing.


Sec. 219.708  Employee requests for testing.

    Comments were cleanly divided as to how much time should be allowed 
for an employee to request a test of his or her split sample. Carriers 
uniformly supported the 72 hour period proposed by OST, while labor 
wanted to duplicate the 60 day period currently allowed in FRA's retest 
option.
    Although FRA agrees with labor that the retest option has worked 
well in the past, FRA will no longer allow retests of primary samples. 
Instead, to be consistent with the rest of the Department, FRA will 
allow split sample testing only. An employee will have 72 hours (the 
minimum contemplated by the Act) within which to request a test of his 
or her split sample, running from when the employee receives actual 
notice from the medical review officer (MRO) that the employee's test 
result has been verified as positive. As an additional safeguard, the 
MRO must inform an employee who has a confirmed test result of his or 
her right to request a split sample test at the time of the MRO's 
initial contact with the employee, even though the employee's 72 hours 
do not begin to run until after the MRO has completed the verification 
process. The employee may also present information to the MRO if he or 
she believes that unusual circumstances (e.g., an intervening holiday, 
the unavailability of the MRO) prevented him or her from requesting a 
split sample test within 72 hours.


Sec. 219.715  Alcohol testing procedures.

    As discussed, FRA will permit railroads to use EBTs that qualify 
for NHTSA's CPL but do not meet part 40 requirements (lacking 
sequential numbering and printout capability, for example) as PBTs for 
screening tests. This allows those railroads that already conduct 
alcohol testing under their own authority (such as Amtrak and the CNW), 
to recoup the full useful life of previously purchased EBTs, while 
allowing other railroads the flexibility to reduce costs. An EBT test 
is still required for confirmation, however.

Subpart I--Annual Report


Sec. 219.801  Reporting of alcohol misuse prevention program results in 
a management information system.

    FRA recently published a final rule implementing a management 
information system to obtain and analyze employer drug misuse program 
data. Included in this rule are comparable information collection 
requirements for alcohol misuse program data.
    Appendices D3 and D4, attached as exhibits to this rule, are 
respectively the standard and ``EZ'' forms for reporting of employer 
alcohol misuse program data. (These forms are similar to Appendices D 
and D2 in the drug MIS.) FRA will not ask for information on 
operational tests and inspections or supervisory training, since 
reporting on these combined programs is already required under the drug 
MIS.
    Like the drug MIS, the alcohol MIS asks for information on for 
cause alcohol testing (although these data elements appear repetitive, 
they are not identical since the charts have been modified to reflect 
the two-tier or bifurcated system). Once alcohol testing has produced a 
year's worth of data, FRA will republish a combined MIS form for 
alcohol and drug program data.

Subpart J--Recordkeeping Requirements


Secs. 219.901 and 219.903  Retention of breath alcohol testing records 
and urine drug testing records.

    FRA adopts the retention requirements as proposed. Although several 
commenters felt that these proposed requirements were too burdensome, 
these sections conform with the departmental requirements published in 
part 40 today. In addition, FRA retains Sec. 219.713's current 
requirement for railroads to maintain for at least five years a summary 
record of each covered employee's test results.


Sec. 219.905  Access to facilities and records.

    FRA proposes to replace Sec. 219.713's language on access to 
records and adopt 49 CFR Sec. 40.81, which allows an employer to 
release an employee's alcohol and drug test records only with the 
written consent of the employee, with the exceptions of when access is 
requested by a DOT agency or the NTSB or when access is requested by a 
decisionmaker in a legal proceeding relating to a benefit sought by the 
employee.

Executive Order 12866 and DOT Regulatory Policy and Procedures

    This proposal is significant under Executive Order 12866. It is 
also significant under the Department of Transportation's Regulatory 
Policy and Procedures.

The Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 was enacted by Congress to 
ensure that small entities are not unnecessarily and disproportionately 
burdened by Government regulations. FRA certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities. Railroads that have fewer than 15 employees in covered 
service that do not operate on the tracks of another railroad or engage 
in joint operations are exempt from subparts D, E, F, and G, and are 
exempted from new subparts I and J as well. Railroads with fewer than 
400,000 manhours of employment are also exempt from subpart I.

Federalism Implications

    This rule does not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
12612, FRA has determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
assessment.

Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 96-511) applies to this final 
rule because it changes several approved collections of information and 
initiates several new information collection requirements for alcohol 
misuse programs. As mentioned earlier, FRA recently implemented a 
Management Information System to collect drug misuse prevention program 
data.
    For the drug portion of the MIS only, FRA estimated that 
information gathering, record maintenance and form preparation would 
approximate 65 hours each year for the standard form. For the 
simplified (EZ) form, FRA estimated that information gathering, record 
maintenance and form preparation would approximate 20 hours each year.
    FRA estimates that the addition of alcohol testing data elements 
will add approximately 8 hours to preparation of the standard form, for 
a total of 73 hours each year. The simplified form will require an 
additional 4 hours to prepare, for a total of 24 hours each year. 
Approximately 40 railroads are expected to submit the standardized 
form, and 20 railroads are expected to submit the short form.
    FRA has requested Office of Management and Budget (OMB) approval of 
these revised information collection requirements. A Federal Register 
notice will be published when Paperwork Reduction Act approval is 
obtained. Current information collection requirements under part 219 
were approved under OMB No. 2130-0526.

List of Subjects in 49 CFR Part 219

    Alcohol and drug abuse, Railroad safety, Reporting and record 
keeping requirements.

    Accordingly, for the reasons stated in the preamble, FRA amends 49 
CFR part 219 as follows:

PART 219-CONTROL OF ALCOHOL AND DRUG USE

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

    Authority: 45 U.S.C. 431, 437, and 438, as amended; Pub. L. 100-
342; Pub. L. 102-143; and 49 CFR 1.49(m).

Part 219--[Amended]

    2. Part 219 is amended by removing the terms ``EAP counselor'' and 
``counselor'' wherever they appear and by replacing them with 
``Substance abuse professional'' and ``professional'' respectively; and 
by removing ``$5,700 in 1989 and 1990'' and by adding in its place 
``$6,300 in 1991 and thereafter'' wherever this phrase appears in the 
text.
    3. Section 219.3 is amended by revising paragraph (a) introductory 
text; adding paragraph (b)(3); and revising paragraph (c) to read as 
follows:


Sec. 219.3  Application.

    (a) Except as provided in paragraphs (b) and (c), this part applies 
to----
    (b) * * *
    (b)(3) Subpart I does not apply to a railroad that has fewer than 
400,000 total manhours.
    (c) Subparts E, F and G do not apply to operations of a foreign 
railroad conducted by covered service employees whose primary place of 
service (``home terminal'') for rail transportation services is located 
outside the United States. Such operations and employees are subject to 
Subparts A, B, C, and D when operating in United States territory.
    4. Section 219.5 is amended by adding, in alphabetical order, 
definitions for alcohol concentration (or content), alcohol use, 
confirmation test, consortium, DOT agency, screening test, refuse to 
submit, substance abuse professional and violation rate; by removing 
the definition for EAP counselor; by revising the definitions for 
alcohol, covered employee, and the first sentence of independent, as 
follows:


Sec. 219.5  Definitions.

    As used in this part--
    Alcohol means the intoxicating agent in beverage alcohol, ethanol 
or other low molecular weight alcohols including methyl or isopropyl 
alcohol.
    Alcohol concentration (or content) means the alcohol in a volume of 
breath expressed in terms of grams of alcohol per 210 liters of breath 
(as indicated by a breath test under this part) or grams of alcohol per 
100 milliliters of whole blood.
    Alcohol use means the consumption of any beverage, mixture or 
preparation, including any medication, containing alcohol.
* * * * *
    Confirmation test means a second test, following a screening test 
with a result of .02 or greater, that provides quantitative data of 
alcohol concentration.
    Consortium means an entity, including a group or association of 
employers or contractors, that provides alcohol testing as required by 
this part or other DOT alcohol testing regulation and that acts on 
behalf of the employers.
* * * * *
    Covered employee means a person who has been assigned to perform 
service subject to the Hours of Service Act (45 U.S.C. 61-64b) during a 
duty tour, whether or not the person has performed or is currently 
performing such service, and any person who performs such service. (An 
employee is not ``covered'' within the meaning of this part exclusively 
by reason of being an employee for purposes of section 2(a)(3) of the 
Hours of Service Act, as amended (45 U.S.C. 62(a)(3)).) For the 
purposes of pre-employment testing only, the term covered employee 
includes a person applying to perform covered service.
* * * * *
    DOT Agency means an agency (or ``operating administration'') of the 
United States Department of Transportation administering regulations 
requiring alcohol or controlled substance testing (14 CFR parts 61, 63, 
65, 121 and 135; 49 CFR parts 199, 219, 382 and 654) in accordance with 
part 40 of this title.
* * * * *
    Independent with respect to a medical facility, means not under the 
ownership or control of the railroad and not operated or staffed by a 
salaried officer or employee of the railroad. * * *
* * * * *
    Refuse to submit (to an alcohol test) means that a covered employee 
fails to provide adequate breath for testing without a valid medical 
explanation after he or she has received notice of the requirement to 
be tested in accordance with the provisions of this part, or engages in 
conduct that clearly obstructs the testing process.
* * * * *
    Screening test means an analytical procedure to determine whether a 
covered employee may have a prohibited concentration of alcohol in his 
or her system.
* * * * *
    Substance abuse professional means a licensed physician (Medical 
Doctor or Doctor of Osteopathy), or a licensed or certified 
psychologist, social worker, employee assistance professional, or 
addiction counselor (certified by the National Association of 
Alcoholism and Drug Abuse Counselors Certification Commission), with 
knowledge of and clinical experience in the diagnosis and treatment of 
alcohol and drug related disorders.
* * * * *
    Violation rate means the number of covered employees (as reported 
under Sec. 219.801 of this part) found during random tests given under 
this part to have an alcohol concentration of .04 or greater, plus the 
number of employees who refuse a random test required by this part, 
divided by the total reported number of employees in the industry given 
random alcohol tests under this part plus the total reported number of 
employees in the industry who refuse a random test required by this 
part.
    5. Section 219.9 is amended by revising the first sentence of 
paragraph (a) and adding a new paragraph (c) as follows:


Sec. 219.9  Responsibility for compliance.

    (a) Any person (including but not limited to a railroad; any 
manager, supervisor, official, or other employee or agent of a 
railroad; any owner, manufacturer, lessor, or lessee of railroad 
equipment, track, or facilities; any independent contractor providing 
goods or services to a railroad; and any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor) who violates 
any requirement of this part or causes the violation of any such 
requirement is subject to a civil penalty of at least $500 and not more 
than $10,000 per violation, except that: Penalties may be assessed 
against individuals only for willful violations; where a grossly 
negligent violation or a pattern of repeated violations has created an 
imminent hazard of death or injury, or has caused death or injury, a 
penalty not to exceed $20,000 per violation may be assessed; and the 
standard of liability for a railroad will vary depending upon the 
requirement involved. * * *
    (b) * * *
    (c) Any independent contractor or other entity that performs 
covered service for a railroad has the same responsibilities as a 
railroad under this part, with respect to its employees who perform 
covered service. The entity's responsibility for compliance with this 
part may be fulfilled either directly by that entity or by the 
railroad's treating the entity's employees who perform covered service 
as if they were its own employees for purposes of this part. The 
responsibility for compliance must be clearly spelled out in the 
contract between the railroad and the other entity or in another 
document. In the absence of such a clear delineation of responsibility, 
FRA will hold the railroad and the other entity jointly and severally 
liable for compliance.
    6. Section 219.11 is amended by revising paragraph (b)(2); by 
redesignating existing paragraph (g) as paragraph (h); and by adding 
paragraphs (c)(4) and (g) as follows:


Sec. 219.11  General conditions for chemical tests.

* * * * *
    (b) * * *
    (2) In any case where an employee has sustained a personal injury 
and is subject to alcohol or drug testing under this part, necessary 
medical treatment shall be accorded priority over provision of the 
breath or body fluid sample(s). No employee who is unable to urinate 
normally (based on the judgment of a medical professional that 
catheterization would be required) as a result of a personal injury, 
resulting medical treatment, or renal failure shall be required to 
provide a urine sample. Nothing in this section shall bar use of a 
urine sample made available as a result of catheterization undertaken 
for medical purposes, provided the circumstances of such collection are 
fully documented and the specimen is otherwise handled in accordance 
with the applicable requirements of this title.
* * * * *
    (c) * * *
    (4) The results of any breath tests for alcohol conducted by or for 
the treating facility.
* * * * *
    (g) Each supervisor responsible for covered employees (except a 
working supervisor within the definition of co-worker under this part) 
shall be trained in the signs and symptoms of alcohol and drug 
influence, intoxication and misuse consistent with a program of 
instruction to be made available for inspection upon demand by FRA. 
Such a program shall, at a minimum provide information concerning the 
acute behavioral and apparent physiological effects of alcohol and the 
major drug groups on the controlled substances list. The program shall 
also provide training on the qualifying criteria for post-accident 
testing contained in subpart C of this part, and the role of the 
supervisor in post-accident collections described in subpart C and 
appendix C of this part. The duration of such training shall be not 
less than 3 hours.
* * * * *


Sec. 219.15  [Removed]

    7. Section 219.15 is removed and reserved.
    8. Section 219.23 is amended by revising the section heading; 
revising paragraphs (a) and (b); and adding paragraphs (d) through (f), 
to read as follows:


Sec. 219.23  Railroad policies.

    (a) Whenever a breath or body fluid test is required of an employee 
under this part, the railroad shall provide clear and unequivocal 
written notice to the employee that the test is being required under 
Federal Railroad Administration regulations. Use of the mandated DOT 
form for urine drug testing or breath analysis satisfies the 
requirements of this paragraph.
    (b) Whenever a breath or body fluid test is required of an employee 
under this part, the railroad shall provide clear, unequivocal written 
notice of the basis or bases upon which the test is required (e.g., 
reasonable suspicion, violation of a specified operating/safety rule 
enumerated in subpart D of this part, random selection, follow-up, 
etc.). Completion of the alcohol testing form or urine custody and 
control form indicating the basis of the test (prior to providing a 
copy to the employee) satisfies the requirement of this paragraph.
* * * * *
    (d) Each railroad shall provide educational materials that explain 
the requirements of this part, and the railroad's policies and 
procedures with respect to meeting those requirements.
    (1) The railroad shall ensure that a copy of these materials is 
distributed to each covered employee prior to the start of alcohol 
testing under the railroad's alcohol misuse prevention program and to 
each person subsequently hired for or transferred to a covered 
position.
    (2) Each railroad shall provide written notice to representatives 
of employee organizations of the availability of this information.
    (e) Required content. The materials to be made available to 
employees shall include detailed discussion of at least the following:
    (1) The identity of the person designated by the railroad to answer 
employee questions about the materials.
    (2) The classes or crafts of employees who are subject to the 
provisions of this part.
    (3) Sufficient information about the safety-sensitive functions 
performed by those employees to make clear that the period of the work 
day the covered employee is required to be in compliance with this part 
is that period when the employee is on duty and is required to perform 
or is available to perform covered service.
    (4) Specific information concerning employee conduct that is 
prohibited under subpart B of this part.
    (5) In the case of a railroad utilizing the accident/incident and 
rule violation reasonable cause testing authority provided by this 
part, prior notice (which may be combined with the notice required by 
Secs. 219.601(d)(1) and 219.607(d)(1)), to covered employees of the 
circumstances under which they will be subject to testing.
    (6) The circumstances under which a covered employee will be tested 
under this part.
    (7) The procedures that will be used to test for the presence of 
alcohol and controlled substances, protect the employee and the 
integrity of the testing processes, safeguard the validity of the test 
results, and ensure that those results are attributed to the correct 
employee.
    (8) The requirement that a covered employee submit to alcohol and 
drug tests administered in accordance with this part.
    (9) An explanation of what constitutes a refusal to submit to an 
alcohol or drug test and the attendant consequences.
    (10) The consequences for covered employees found to have violated 
subpart B of this part, including the requirement that the employee be 
removed immediately from covered service, and the procedures under 
Sec. 219.104.
    (11) The consequences for covered employees found to have an 
alcohol concentration of .02 or greater but less than .04.
    (12) Information concerning the effects of alcohol misuse on an 
individual's health, work, and personal life; signs and symptoms of an 
alcohol problem (the employee's or a coworker's); and available methods 
of evaluating and resolving problems associated with the misuse of 
alcohol, including utilization of the procedures set forth in subpart E 
of this part and the names, addresses, and telephone numbers of 
substance abuse professionals and counseling and treatment programs.
    (f) Optional provisions. The materials supplied to employees may 
also include information on additional railroad policies with respect 
to the use or possession of alcohol and drugs, including any 
consequences for an employee found to have a specific alcohol 
concentration, that are based on the railroad's authority independent 
of this part. Any such additional policies or consequences shall be 
clearly and obviously described as being based on independent 
authority.
    9. Section 219.101 is amended by revising paragraph (a)(2)(ii); and 
adding new paragraphs (a)(3) and (a)(4) as follows:


Sec. 219.101  Alcohol and drug use prohibited.

    (a) * * *
    (2) * * *
    (ii) Having .04 or more alcohol concentration in the breath or 
blood; or
* * * * *
    (3) No employee may use alcohol for whichever is the lesser of the 
following periods:
    (i) within four hours of reporting for covered service; or
    (ii) after receiving notice to report for covered service.
    (4) No employee tested under the provisions of this part whose test 
result indicates an alcohol concentration of .02 or greater but less 
than .04 shall perform or continue to perform covered service functions 
for a railroad, nor shall a railroad permit the employee to perform or 
continue to perform covered service, until the start of the employee's 
next regularly scheduled duty period, but not less than eight hours 
following administration of the test.
* * * * *
    10. Section 219.104 is amended by revising paragraphs (a), (d), and 
(e); and adding paragraphs (f) and (g) as follows:


Sec. 219.104  Responsive action.

    (a) Removal from covered service.
    (1) If the railroad determines that an employee has violated 
Sec. 219.101 or Sec. 219.102, or the alcohol or controlled substances 
misuse rule of another DOT agency, the railroad shall immediately 
remove the employee from covered service and the procedures described 
in paragraphs (b) through (e) of this section shall apply.
    (2) If an employee refuses to provide breath or a body fluid sample 
or samples when required to by the railroad under a mandatory provision 
of this part, the railroad shall immediately remove the employee from 
covered service, and the procedures described in paragraphs (b) through 
(e) of this section shall apply.
    (3) (i) This section does not apply to actions based on breath or 
body fluid tests for alcohol or drugs that are conducted exclusively 
under authority other than that provided in this part (e.g., testing 
under a company medical policy, for-cause testing policy wholly 
independent of Subpart D of this part, or testing under a labor 
agreement).
    (ii) This section and the information requirements listed in 
Sec. 219.23 do not apply to applicants who refuse to submit to a pre-
employment test or who have a pre-employment test with a result 
indicating either an alcohol concentration equal to or greater than 
.04, or the misuse of controlled substances.
* * * * *
    (d) Return to covered service. An employee who has been determined 
to have violated Sec. 219.101 or Sec. 219.102 or who refused to 
cooperate in a breath or body fluid test under this part shall not be 
returned to covered service unless the employee has--
    (1) Been evaluated by a substance abuse professional to determine 
if the employee is affected by a psychological or physical dependence 
on alcohol or one or more controlled substances or by another 
identifiable and treatable mental or physical disorder involving misuse 
of alcohol or drugs as a primary manifestation;
    (2) Been evaluated by a substance abuse professional to determine 
that the employee has properly followed the prescribed rehabilitation 
program; and
    (3) (i) Presented a urine sample for testing under Subpart H of 
this part that tested negative for controlled substances assayed (in 
the case of an employee who has been determined to have violated a 
prohibition of Sec. 219.101 or Sec. 219.102 regarding possession or 
misuse of controlled substances or who refused to provide a body fluid 
sample or samples when required to by the railroad under a mandatory 
provision of this part); or
    (ii) presented breath for testing under Subpart H of this part that 
indicated an alcohol concentration of less than .02. (in the case of an 
employee who has been determined to have violated a prohibition of 
Sec. 219.101 regarding possession or misuse of alcohol or who refused 
to provide breath when required to by the railroad under a mandatory 
provision of this part).
    (4) An employee shall be required to present both a urine sample 
and breath for testing, as specified in this section and Subpart H of 
this part, if the substance abuse professional determines that such 
testing is necessary as a condition for returning the particular 
employee to covered service.
    (e) Follow-up testing. An employee returned to service under the 
above-stated conditions shall continue in any program of counseling or 
treatment deemed necessary by the substance abuse professional and 
shall be subject to unannounced follow-up tests administered by the 
railroad following the employee's return to duty. The number and 
frequency of such follow-up testing shall be determined by a substance 
abuse professional, but shall consist of at least six tests in the 
first 12 months following the employee's return to duty. Any such 
testing shall be performed in accordance with the requirements of 49 
CFR part 40. Follow-up testing shall not exceed 60 months from the date 
of the employee's return to duty. The substance abuse professional may 
terminate the requirement for follow-up testing at any time after the 
first six tests have been administered, if the substance abuse 
professional determines that such testing is no longer necessary.
    (1) If the employee has been determined to have violated a 
prohibition of Sec. 219.101 or Sec. 219.102 regarding possession or 
misuse of controlled substances, or if the employee refused to provide 
a body fluid sample or samples when required to by the railroad under a 
mandatory provision of this part, the employee shall be subject to 
follow-up testing as specified in this section. Such testing shall be 
for controlled substances, but may include testing for alcohol as well, 
if the substance abuse professional determines that alcohol testing is 
necessary for the particular employee.
    (2) If the employee has been determined to have violated a 
prohibition of Sec. 219.101 regarding possession or misuse of alcohol, 
or if the employee refused to provide breath when required to by the 
railroad under a mandatory provision of this part, the employee shall 
be subject to follow-up testing as specified in this section. Such 
testing shall be for alcohol, but may include testing for controlled 
substances as well, if the substance abuse professional determines that 
drug testing is necessary for the particular employee.
    (f) The railroad shall ensure that a substance abuse professional 
who determines that a covered employee requires assistance in resolving 
problems with alcohol or controlled substances misuse does not refer 
the employee to the substance abuse professional's private practice or 
to a person or organization from which the substance abuse professional 
receives remuneration or in which the substance abuse professional has 
a financial interest. This paragraph does not prohibit a substance 
abuse professional from referring an employee for assistance provided 
through--
    (1) a public agency, such as a state, county, or municipality;
    (2) the railroad or a person under contract to provide treatment 
for alcohol problems on behalf of the railroad;
    (3) the sole source of therapeutically appropriate treatment under 
the employee's health insurance program; or
    (4) the sole source of therapeutically appropriate treatment 
reasonably accessible to the employee.
    (g) Railroad compliance with the provisions of paragraphs (a), (d), 
and (e) of this section is mandatory beginning on January 1, 1995.
    11. Part 219 is amended by adding Sec. 219.107 to subpart B as 
follows:


Sec. 219.107  Consequences of unlawful refusal.

    (a) An employee who refuses to provide breath or a body fluid 
sample or samples when required to by the railroad under a mandatory 
provision of this part shall be deemed disqualified for a period of 
nine (9) months.
    (b) Prior to or upon withdrawing the employee from covered service 
under this section, the railroad shall provide notice of the reason for 
this action, and the procedures described in Sec. 219.104(c) shall 
apply.
    (c) The disqualification required by this section shall apply with 
respect to employment in covered service by any railroad with notice of 
such disqualification.
    (d) The requirement of disqualification for nine (9) months does 
not limit any discretion on the part of the railroad to impose 
additional sanctions for the same or related conduct.
    (e) Upon the expiration of the 9-month period described in this 
section, a railroad may permit the employee to return to covered 
service only under the same conditions specified in Sec. 219.104(d), 
and the employee shall be subject to follow-up tests, as provided by 
that section.
    12. Section 219.201 is amended by revising paragraphs (a)(1)(iii), 
(a)(2)(ii), and (b) as follows:


Sec. 219.201  Events for which testing is required.

    (a) * * *
    (1) * * *
    (iii) Damage to railroad property of $1,000,000 or more.
    (2) * * *
    (ii) Damage to railroad property of $150,000 or more.
* * * * *
    (b) Exceptions. No test shall be required in the case of a 
collision between railroad rolling stock and a motor vehicle or other 
highway conveyance at a rail/highway grade crossing. No test shall be 
required in the case of an accident/incident the cause and severity of 
which are wholly attributable to a natural cause (e.g., flood, tornado 
or other natural disaster) or to vandalism, as determined on the basis 
of objective and documented facts by the railroad representative 
responding to the scene.
* * * * *
    13. Section 219.203 is amended by revising paragraph (a)(1); and 
revising the first sentence of paragraph (d)(2), as follows:


Sec. 219.203  Responsibilities of railroads and employees.

    (a) Employees tested.
    (1) (i) Following each accident and incident described in 
Sec. 219.201, the railroad (or railroads) shall take all practicable 
steps to assure that all covered employees of the railroad directly 
involved in the accident or incident provide blood and urine samples 
for toxicological testing by FRA. Such employees shall cooperate in the 
provision of samples as described in this part and Appendix C.
    (ii) If the conditions for mandatory toxicological testing exist, 
the railroad may also require employees to provide breath for testing 
in accordance with the procedures set forth in 49 CFR Part 40 and this 
part, if such testing does not interfere with timely collection of 
required samples.
* * * * *
    (d) * * *
    (2) If an injured employee is unconscious or otherwise unable to 
evidence consent to the procedure and the treating medical facility 
declines to obtain blood samples after having been acquainted with the 
requirements of this subpart, the railroad shall immediately notify FRA 
by toll free telephone (800-424-0201), stating the employee's name, the 
medical facility, its location, the name of the appropriate decisional 
authority at the medical facility, and the telephone number at which 
that person can be reached. * * *
* * * * *
    14. Section 219.205 is amended by revising paragraph (a) as 
follows:


Sec. 219.205  Sample collection and handling.

    (a) General. Urine and blood samples shall be obtained, marked, 
preserved, handled, and made available to FRA consistent with the 
requirements of this subpart, and the technical specifications set 
forth in Appendix C to this part.
* * * * *
    15. Part 219 is amended by adding Sec. 219.206 as follows:


Sec. 219.206  FRA access to breath test results.

    Documentation of breath test results shall be made available to FRA 
consistent with the requirements of this subpart, and the technical 
specifications set forth in Appendix C to this part.
    16. Section 219.209 is amended by adding a new last sentence to 
paragraph (a)(1); and by adding a new paragraph (c), as follows:


Sec. 219.209  Reports of tests and refusals.

    (a)(1) * * * Notification shall be provided to the Office of 
Safety, FRA, at (202) 366-0501; an answering machine will record any 
notification calls made to this number outside of the Federal work week 
(8:30 a.m. to 5 p.m. EST or EDT).
* * * * *
    (c) If a test required by this section is not administered within 
four hours following the accident or incident, the railroad shall 
prepare and maintain on file a record stating the reasons the test was 
not promptly administered. Records shall be submitted to the Federal 
Railroad Administration upon request of the Associate Administrator for 
Safety.
    17. Section 219.211 is amended by revising the second sentence of 
paragraph (a); by revising the last sentence of paragraph (c) and the 
last sentence of paragraph (d); and by revising paragraphs (e) and (h), 
as follows:


Sec. 219.211  Analysis and follow-up.

    (a) * * * Samples are analyzed for alcohol and controlled 
substances specified by FRA under protocols specified by FRA, 
summarized in Appendix C, which have been submitted to the Department 
of Health and Human Services for acceptance.
* * * * *
    (c) * * * The Federal Railroad Administration shall not be bound by 
the railroad Medical Review Officer's determination, but that 
determination will be considered by FRA in relation to the accident/
incident investigation and with respect to any enforcement action under 
consideration.
    (d) * * * (However, as further provided in this section, FRA may 
provide results of testing under this subpart and supporting 
documentation to the National Transportation Safety Board.)
    (e) An employee may respond in writing to the results of the test 
prior to the preparation of any final investigation report concerning 
the accident or incident. An employee wishing to respond shall do so by 
letter addressed to the Alcohol/Drug Program Manager, Office of Safety, 
FRA, 400 Seventh Street, SW., Washington, DC 20590 within 45 days of 
receipt of the test results. Any such submission shall refer to the 
accident date, railroad and location, shall state the position occupied 
by the employee on the date of the accident/incident, and shall 
identify any information contained therein that the employee requests 
be withheld from public disclosure on grounds of personal privacy (but 
the decision whether to honor such request shall be made by the FRA on 
the basis of controlling law).
* * * * *
    (h) Except as provided in Sec. 219.201 (with respect to non-
qualifying events), each sample (including each split sample) provided 
under this subpart is retained for not less than three months following 
the date of the accident or incident (two years from the date of the 
accident or incident in the case of a sample testing positive for 
alcohol or a controlled substance). Post-mortem specimens may be made 
available to the National Transportation Safety Board (on request).
* * * * *
    18. Section 219.213 is amended by revising paragraphs (a) and (b) 
as follows:


Sec. 219.213  Unlawful refusals; consequences.

    (a) Disqualification.
    An employee who refuses to cooperate in providing breath, blood or 
urine samples following an accident or incident specified in this 
subpart shall be withdrawn from covered service and shall be deemed 
disqualified for covered service for a period of nine (9) months in 
accordance with the conditions specified in Sec. 219.107.
    (b) Procedures. Prior to or upon withdrawing the employee from 
covered service under this section, the railroad shall provide notice 
of the reason for this action and an opportunity for hearing before a 
presiding officer other than the charging official. The employee shall 
be entitled to the procedural protection set out in Sec. 219.104(d).
* * * * *
    19. Subpart D is amended by revising the heading of the subpart and 
adding Sec. 219.300 as follows:

Subpart D--Testing For Cause


Sec. 219.300  Mandatory reasonable suspicion testing.

    (a) Requirements.
    (1) Beginning on January 1, 1995, a railroad shall require a 
covered employee to submit to an alcohol test when the railroad has 
reasonable suspicion to believe that the employee has violated any 
prohibition of Subpart B of this part concerning use of alcohol. The 
railroad's determination that reasonable suspicion exists to require 
the covered employee to undergo an alcohol test must be based on 
specific, contemporaneous, articulable observations concerning the 
appearance, behavior, speech or body odors of the employee.
    (2) A railroad shall require a covered employee to submit to a 
urine drug test when the railroad has reasonable suspicion to believe 
that the employee has violated the prohibitions of Subpart B of this 
part concerning use of controlled substances. The railroad's 
determination that reasonable suspicion exists to require the covered 
employee to undergo a drug test must be based on specific, 
contemporaneous, articulable observations concerning the appearance, 
behavior, speech or body odors of the employee. Such observations may 
include indications of the chronic and withdrawal effects of drugs.
    (b) (1) With respect to an alcohol test, the required observations 
shall be made by a supervisor trained in accordance with 
Sec. 219.11(g). The supervisor who makes the determination that 
reasonable suspicion exists may not conduct testing on that employee.
    (2) With respect to a urine drug test, the required observations 
shall be made by two supervisors, at least one of whom is trained in 
accordance with Sec. 219.11(g).
    (c) Nothing in this section shall be construed to require the 
conduct of breath alcohol testing or urine drug testing when the 
employee is apparently in need of immediate medical attention.
    20. Section 219.301 is amended by removing and reserving paragraph 
(b)(1); revising the introductory text to paragraphs (b), (b)(2) and 
(c); and removing paragraphs (f) and (g), as follows:


Sec. 219.301  Testing for cause.

    (a) * * *
    (b) For cause breath testing. In addition to reasonable suspicion 
as described in Sec. 219.300, the following circumstances constitute 
cause for the administration of breath alcohol tests under this 
section:
    (1) [Reserved].
    (2) Accident/incident. The employee has been involved in an 
accident or incident reportable under part 225 of this title, and a 
supervisory employee of the railroad has a reasonable belief, based on 
specific, articulable facts, that the employee's acts or omissions 
contributed to the occurrence or severity of the accident or incident; 
or
    (3) * * *
    (c) For cause urine testing. In addition to reasonable suspicion as 
described in Sec. 219.300, each of the conditions set forth in 
paragraphs (b)(2) (``accident/incident'') and (b)(3) (``rule 
violation'') of this section as constituting cause for breath alcohol 
testing also constitutes cause with respect to urine drug testing.
* * * * *
    21. Part 219 is amended by adding a new Sec. 219.302 as follows:


Sec. 219.302  Prompt sample collection; time limitation.

    (a) Testing under this subpart may only be conducted promptly 
following the observations or events upon which the testing decision is 
based, consistent with the need to protect life and property.
    (b) No employee shall be required to participate in breath alcohol 
or urine drug testing under this section after the expiration of an 
eight hour period from--
    (1) The time of the observations or other events described in this 
section; or
    (2) In the case of an accident/incident, the time a responsible 
railroad supervisor receives notice of the event providing reasonable 
cause for conduct of the test.
    (c) An employee may not be tested under this subpart if that 
employee has been released from duty under the normal procedures of the 
railroad. An employee who has been transported to receive medical care 
is not released from duty for purposes of this section. Nothing in this 
section prohibits the subsequent testing of an employee who has failed 
to remain available for testing as required (i.e., who is absent 
without leave).
    (d) As used in this subpart a ``responsible railroad supervisor'' 
means any responsible line supervisor (e.g., a trainmaster or road 
foreman of engines) or superior official in authority over the employee 
to be tested.
    (e) In the case of a urine drug test, the eight-hour requirement is 
satisfied if the employee has been delivered to the collection site 
(where the collector is present) and the request has been made to 
commence collection of the urine specimens within that period.
    (f) If a test required by this section is not administered within 
two hours following the determination under Sec. 219.300, the railroad 
shall prepare and maintain on file a record stating the reasons the 
test was not properly administered. If a test required by this section 
is not administered within eight hours following the determination 
under Sec. 219.300, the railroad shall cease attempts to administer an 
alcohol test and shall state in the record the reasons for not 
administering the test. Records shall be submitted to FRA upon request 
of the Administrator.
    (g) Section 219.23 prescribes the notice to an employee that is 
required to provide breath or a body fluid sample under this part.
    22. Part 219 is amended by revising Sec. 219.303 to read as 
follows:


Sec. 219.303  Alcohol test procedures and safeguards.

    The conduct of alcohol testing under this subpart is governed by 
Subpart H of this part and Part 40 of Subtitle A of this title.
    23. Part 219 is amended by removing Secs. 219.307 and 219.309.
    24. Subpart F is amended by revising the subpart heading to read as 
follows:

Subpart F--Pre-employment Tests

    25. Section 219.501 is revised to read as follows:


Sec. 219.501  Pre-employment tests.

    (a) Beginning on January 1, 1995, prior to the first time a covered 
employee performs covered service for a railroad, the employee shall 
undergo testing for alcohol and drugs. No railroad shall allow a 
covered employee to perform covered service, unless the employee has 
been administered an alcohol test with a result indicating an alcohol 
concentration less than .04 and has been administered a test for drugs 
with a result that did not indicate the misuse of controlled 
substances. This requirement shall apply to final applicants for 
employment and to employees seeking to transfer for the first time from 
non-covered service to duties involving covered service. If the test 
result of a final applicant for pre-employment indicates an alcohol 
content of .02 or greater, the provisions of paragraph (b) of this 
section shall apply.
    (b) No final applicant for employment tested under the provisions 
of this part who is found to have an alcohol concentration of .02 or 
greater but less than .04 shall perform safety-sensitive functions for 
a railroad, nor shall a railroad permit the applicant to perform 
safety-sensitive functions, until the applicant's alcohol concentration 
measures less than .02.
    (c) Tests shall be accomplished through breath analysis and 
analysis of urine samples. The conduct of breath alcohol testing and 
urine drug testing under this subpart is governed by Subpart H of this 
part and part 40 of subtitle A of this title.
    (d) As used in subpart H with respect to a test required under this 
subpart, the term covered employee includes an applicant for pre-
employment testing only. In the case of an applicant who declines to be 
tested and withdraws the application for employment, no record shall be 
maintained of the declination.
    (e) Railroad compliance with the provisions of paragraphs (a) 
through (c) of this section is mandatory beginning on January 1, 1995.
    26. Part 219 is amended by revising Sec. 219.503 to read as 
follows:


Sec. 219.503  Notification; records.

    The railroad shall provide for medical review of the urine drug 
test results as provided in subpart H of this part. The railroad shall 
notify the applicant of the results of the urine and breath tests in 
the same manner as provided for employees in subpart H. Records shall 
be maintained confidentially and shall be retained in the same manner 
as required under subpart J for employee test records, except that such 
records need not reflect the identity of an applicant whose application 
for employment in covered service was denied.


Sec. 219.505  [Amended]

    27. Section 219.505 is amended by revising the section heading to 
read ``Refusals;'' removing the designation from paragraph (a); and 
removing paragraph (b).
    28. Part 219 is amended by revising the heading of subpart G as 
follows:

Subpart G--Random Alcohol and Drug Testing Programs

PART 219--[AMENDED]

    29. Section 219.601 is amended by revising the heading, the 
undesignated paragraph following (b)(2)(iii), paragraph (b)(7), and the 
first two sentences of paragraph (c) as follows:


Sec. 219.601  Railroad random drug testing programs.

* * * * *
    (b) * * *
    (2) * * *
    (iii) * * *
    During the subsequent 12-month period, the program shall select for 
testing a sufficient number of employees so that the number of tests 
conducted will equal at least 50 percent of the number of covered 
employees. Annualized percentage rates shall be determined by reference 
to the total number of covered employees employed by the railroad at 
the beginning of the particular twelve-month period or by an alternate 
method specified in the plan approved by the Associate Administrator 
for Safety. If the railroad conducts random testing through a 
consortium, the annual rate may be calculated for each individual 
employer or for the total number of covered employees subject to random 
testing by the consortium.
* * * * *
    (7) Each time an employee is notified for random drug testing the 
employee will be informed that selection was made on a random basis.
    (c) Approval. The Associate Administrator for Safety will notify 
the railroad in writing whether the program is approved as consistent 
with the criteria set forth in this part. If the Associate 
Administrator for Safety determines that the program does not conform 
to those criteria, the Associate Administrator for Safety will inform 
the railroad of any matters preventing approval of the program, with 
specific explanation as to necessary revisions. * * *
* * * * *


Sec. 219.603  [Amended]

    30. Section 219.603 is amended by revising the section heading to 
read ``Participation in drug testing'', and by removing the designation 
``(a) Participation'' from paragraph (a); and removing paragraphs (b) 
and (c).
    31. Section 219.605 is amended by revising the heading and adding a 
new final sentence to paragraph (b) as follows:


Sec. 219.605  Positive drug test results; procedures.

* * * * *
    (b) * * * The responsive action required in Sec. 219.104 is not 
stayed pending the result of a retest or split sample test.
    32. Part 219 is amended by adding a new Sec. 219.607 to subpart G 
as follows:


Sec. 219.607  Railroad random alcohol testing programs.

    (a) Each railroad shall submit for FRA approval a random alcohol 
testing program meeting the requirements of this subpart. A Class I 
railroad (including the National Railroad Passenger Corporation) or a 
railroad providing commuter passenger service shall submit such a 
program not later than August 15, 1994. A Class II railroad shall 
submit such a program not later than February 15, 1995. A Class III 
railroad (including a switching and terminal or other railroad not 
otherwise classified) shall submit such a program not later than August 
15, 1995. A railroad commencing operations after the pertinent date 
specified in this paragraph shall submit a random alcohol testing 
program not later than 30 days prior to such commencement. The program 
shall be submitted to the Associate Administrator for Safety, FRA, for 
review and approval. If, after approval, a railroad desires to amend 
the random alcohol testing program implemented under this subpart, the 
railroad shall file with FRA a notice of such amendment at least 30 
days prior to the intended effective date of such action. A program 
responsive to the requirements of this section or any amendment to the 
program shall not be implemented prior to approval.
    (b) Form of programs. Random alcohol testing programs submitted by 
or on behalf of each railroad under this subpart shall meet the 
following criteria, and the railroad and its managers, supervisors, 
officials and other employees and agents shall conform to such criteria 
in implementing the program:
    (1) Selection of covered employees for testing shall be made by a 
method employing objective, neutral criteria which ensures that every 
covered employee has a substantially equal statistical chance of being 
selected within a specified time frame. The method may not permit 
subjective factors to play a role in selection, i.e., no employee may 
be selected as the result of the exercise of discretion by the 
railroad. The selection method shall be capable of verification with 
respect to the randomness of the selection process, and any records 
necessary to document random selection shall be retained for not less 
than 24 months from the date upon which the particular samples were 
collected.
    (2) The program shall include testing procedures and safeguards, 
and, consistent with this part, procedures for action based on tests 
where the employee is found to have violated Sec. 219.101.
    (3) The program shall ensure that random alcohol tests conducted 
under this part are unannounced and that the dates for administering 
random tests are spread reasonably throughout the calendar year.
    (4) The program shall ensure to the maximum extent practicable that 
each covered employee shall perceive the possibility that a random 
alcohol test may be required at any time the employee reports for work 
and at any time during the duty tour (except any period when the 
employee is expressly relieved of any responsibility for performance of 
covered service).
    (5) An employee shall be subject to testing only while on duty. 
Only employees who perform covered service for the railroad shall be 
subject to testing under this part. In the case of employees who during 
some duty tours perform covered service and during others do not, the 
railroad program shall specify the extent to which, and the 
circumstances under which they shall be subject to testing. To the 
extent practical within the limitations of this part and in the context 
of the railroad's operations, the railroad program shall provide that 
employees shall be subject to the possibility of random testing on any 
day they actually perform covered service.
    (6) Testing shall be conducted promptly, as provided in 
Sec. 219.715(a).
    (7) Each time an employee is notified for random alcohol testing 
the employee will be informed that selection was made on a random 
basis.
    (8) Each railroad shall ensure that each covered employee who is 
notified of selection for random alcohol testing proceeds to the test 
site immediately; provided, however, that if the employee is performing 
a safety-sensitive function at the time of the notification, the 
railroad shall instead ensure that the employee ceases to perform the 
safety-sensitive function and proceeds to the testing site as soon as 
possible.
    (c) Implementation. (1) No later than 45 days prior to commencement 
of random alcohol testing, the railroad shall publish to each of its 
covered employees, individually, a written notice that they will be 
subject to random alcohol testing under this part. Such notice shall 
state the date for commencement of the program, shall state that the 
selection of employees for testing will be on a strictly random basis, 
shall describe the consequences of a determination that the employee 
has violated Sec. 219.101 or any applicable railroad rule, and shall 
inform the employee of the employee's rights under subpart E of this 
part. A copy of the notice shall be provided to each new covered 
employee on or before the employee's initial date of service. Since 
knowledge of Federal law is presumed, nothing in this paragraph creates 
a defense to a violation of Sec. 219.101. This notice may be combined 
with the notice or policy statement required by Sec. 219.23.
    (2) Each Class I railroad (including the National Railroad 
Passenger Corporation) and each railroad providing commuter passenger 
service shall implement its approved random alcohol testing program 
beginning on January 1, 1995. Each Class II railroad shall implement 
its approved random testing program beginning on July 1, 1995. Each 
Class III railroad (including a switching and terminal or other 
railroad not otherwise classified) shall implement its approved random 
testing program beginning on January 1, 1996. In the case of a railroad 
commencing operations after the pertinent date set forth in paragraph 
(a) of this section for filing of a program, the railroad shall 
implement its approved random testing program not later than the 
expiration of 60 days from approval by the Administrator or by the 
pertinent date set forth in this paragraph, whichever is later.
    33. Part 219 is amended by adding a new Sec. 219.608 to Subpart G 
as follows:


Sec. 219.608  Administrator's determination of random alcohol testing 
rate.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random alcohol testing 
shall be 25 percent of covered employees.
    (b) The Administrator's decision to increase or decrease the 
minimum annual percentage rate for random alcohol testing is based on 
the violation rate for the entire industry. All information used for 
the determination is drawn from the alcohol MIS reports required by 
this part. In order to ensure reliability of the data, the 
Administrator considers the quality and completeness of the reported 
data, may obtain additional information or reports from employers, and 
may make appropriate modifications in calculating the industry 
violation rate. Each year, the Administrator will publish in the 
Federal Register the minimum annual percentage rate for random alcohol 
testing of covered employees. The new minimum annual percentage rate 
for random alcohol testing will be applicable starting January 1 of the 
calendar year following publication.
    (c)(1) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or more, the Administrator may lower this rate to 
10 percent of all covered employees if the Administrator determines 
that the data received under the reporting requirements of Sec. 219.801 
for two consecutive calendar years indicate that the violation rate is 
less than 0.5 percent.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 50 percent, the Administrator may lower this rate to 25 
percent of all covered employees if the Administrator determines that 
the data received under the reporting requirements of Sec. 219.801 for 
two consecutive calendar years indicate that the violation rate is less 
than 1.0 percent but equal to or greater than 0.5 percent.
    (d) (1) When the minimum annual percentage rate for random alcohol 
testing is 10 percent, and the data received under the reporting 
requirements of Sec. 219.801 for that calendar year indicate that the 
violation rate is equal to or greater than 0.5 percent, but less than 
1.0 percent, the Administrator will increase the minimum annual 
percentage rate for random alcohol testing to 25 percent of all covered 
employees.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or less, and the data received under the 
reporting requirements of Sec. 219.801 for any calendar year indicate 
that the violation rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random alcohol testing to 50 percent of all covered employees.
    (e) The railroad shall randomly select and test a sufficient number 
of covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
alcohol testing determined by the Administrator. If the railroad 
conducts random alcohol testing through a consortium, the number of 
employees to be tested may be calculated for each individual employer 
or may be based on the total number of covered employees covered by the 
consortium who are subject to random testing at the same minimum annual 
percentage rate under this part or any DOT alcohol testing rule.
    (f) If a railroad is required to conduct random alcohol testing 
under the alcohol testing rules of more than one DOT agency, the 
railroad may--
    (1) establish separate pools for random selection, with each pool 
containing the covered employees who are subject to testing at the same 
required rate; or
    (2) randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the railroad is subject.
    34. Part 219 is amended by adding a new Sec. 219.609 to Subpart G 
as follows:


Sec. 219.609  Participation in alcohol testing.

    A railroad shall, under the conditions specified in this subpart 
and Subpart H of this part, require a covered employee selected through 
the random testing program to cooperate in breath testing to determine 
compliance with Sec. 219.101, and the employee shall provide the 
required breath and complete the required paperwork and certifications. 
Compliance by the employee shall be excused only in the case of a 
documented medical or family emergency.
    35. Part 219 is amended by adding a new Sec. 219.611 to Subpart G 
as follows:


Sec. 219.611  Test result indicating prohibited alcohol concentration; 
procedures.

    Procedures for administrative handling by the railroad in the event 
an employee's confirmation test indicates an alcohol concentration of 
.04 or greater are set forth in Sec. 219.104.

PART 219--[AMENDED]

    36. Part 219 is amended by revising the heading of Subpart H as 
follows:

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

    37. Part 219 is amended by revising the heading of Sec. 219.703 as 
follows:


Sec. 219.703  Drug testing procedures.

    38. Section 219.707 is amended by revising the section heading and 
the first sentence of paragraph (a) as follows:


Sec. 219.707  Review by MRO of Urine Drug Testing Results.

    (a) Urine drug test results reported positive by the laboratory as 
provided in part 40 of this title shall not be deemed positive or 
disseminated to any person (other than to the employee tested in a 
medical interview, if conducted) until they are reviewed by a Medical 
Review Officer (MRO) of the railroad as required by part 40 of this 
title and this section. * * *
* * * * *
    39. Part 219 is amended by adding a new Sec. 219.708 as follows:


Sec. 219.708  Employee requests for testing.

    If the test result of the primary sample is positive, an employee 
may request that his or her split sample(s) be tested in accordance 
with the procedures specified in 49 CFR part 40.


Sec. 219.713  [Removed]

    40. Part 219 is amended by removing and reserving Sec. 219.713.
    41. Part 219 is amended by adding a new Sec. 219.715 as follows:


Sec. 219.715  Alcohol testing procedures.

    (a) Each covered employee who is notified of selection for alcohol 
testing and who is not performing covered service at the time of 
notification shall proceed to the testing site immediately. The 
railroad shall ensure that an employee who is performing covered 
service at the time of notification shall, as soon as possible without 
affecting safety, cease to perform covered service and proceed to the 
testing site.
    (b) Each railroad shall ensure that all alcohol testing conducted 
under this part complies with the procedures set forth in Part 40 of 
this title. The provisions of Part 40 of this title that address 
alcohol testing are made applicable to employers by this part.
    42. Part 219 is amended by adding a new Subpart I as follows:

Subpart I--Annual Report


Sec. 219.801  Reporting alcohol misuse prevention program results in a 
management information system.

    (a) Each railroad that has 400,000 or more total manhours shall 
submit to FRA by March 15 of each year a report covering the previous 
calendar year (January 1-December 31), summarizing the results of its 
alcohol misuse prevention program.
    (b) A railroad that is subject to more than one DOT agency alcohol 
regulation shall identify each employee covered by the regulations of 
more than one DOT agency. The identification will be by the total 
number and category of covered functions. Prior to conducting any 
alcohol test on a covered employee subject to the regulations of more 
than one DOT agency, the railroad shall determine which DOT agency 
regulation or rule authorizes or requires the test. The test result 
information shall be directed to the appropriate DOT agency or 
agencies.
    (c) Each railroad shall ensure the accuracy and timeliness of each 
report submitted. The report shall be submitted on one of the two forms 
specified by the FRA.
    (d) Each report that contains information on an alcohol screening 
test result of .02 or greater or a violation of the alcohol misuse 
provisions of Subpart B of this part shall include the following 
elements (the ``Alcohol Testing Management Information System Data 
Collection Form,'' Appendix D3 to this part):
    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal, other).
    (2) Number of covered employees in each category subject to alcohol 
testing under the alcohol misuse regulation of another DOT agency, 
identified by each agency.
    (3) (i) Number of screening tests by type of test (i.e., pre-
employment and covered service transfer, random, post-positive return 
to service, and follow-up) and employee category.
    (ii) Number of confirmation tests, by type of test and employee 
category.
    (4) Number of confirmation alcohol tests indicating an alcohol 
concentration equal of .02 or greater but less than .04, by type of 
test and employee category.
    (5) Number of confirmation alcohol tests indicating an alcohol 
concentration of .04 or greater, by type of test and employee category.
    (6) Number of persons denied a position as a covered employee 
following a pre-employment alcohol test indicating an alcohol 
concentration of .04 or greater.
    (7) Number of covered employees with a confirmation alcohol test 
indicating an alcohol concentration of .04 or greater, or who have 
violations of other alcohol misuse provisions, who were returned to 
service in covered positions (having complied with the recommendations 
of a substance abuse professional as described in Sec. 219.104(d)).
    (8) For cause breath alcohol testing under railroad authority, by 
reason for test (accident/injury or rules violation), the number of 
screening tests conducted, the number of confirmation tests conducted, 
the number of confirmation tests of .02 or greater but less than .04, 
and the number of confirmation test results of .04 or greater.
    (9) For cause breath alcohol testing under FRA authority, by reason 
for test (reasonable suspicion, accident/injury or rules violation), 
the number of screening tests conducted, the number of confirmation 
tests conducted, the number of confirmation tests of .02 or greater but 
less than .04, and the number of confirmation test results of .04 or 
greater.
    (10) Number of covered employees who were found to have violated 
other provisions of Subpart B of this part, and the action taken in 
response to the violation.
    (11) Number of covered employees who were administered alcohol and 
drug tests at the same time, with both a positive drug test result and 
an alcohol test result indicating an alcohol concentration of .04 or 
greater.
    (12) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (13) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (14) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable alcohol use during the reporting 
period.
    (e) Each report that contains no screening test results of 0.02 or 
greater or violations of the alcohol misuse provisions of Subpart B of 
this part shall include the following informational elements (the 
``Alcohol Testing Management Information System Data Collection Form 
(No Alcohol Misuse),'' Appendix D4 to this part): (This report may only 
be submitted if the program results meet this criteria.)
    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal, other).
    (2) Number of covered employees in each category subject to alcohol 
testing under the alcohol misuse regulation of another DOT agency, 
identified by each agency.
    (3) Number of screening tests by type of test (i.e., pre-employment 
and covered service transfer, random, post-positive return to service, 
and follow-up) and employee category.
    (4) Number of covered employees with a confirmation alcohol test 
indicating an alcohol concentration of .04 or greater, or who have 
violations of other alcohol misuse provisions, who were returned to 
service in covered positions (having complied with the recommendations 
of a substance abuse professional as described in Sec. 219.104(d)).
    (5) For cause breath alcohol testing under railroad authority, by 
reason for test (accident/injury or rules violation), the number of 
screening tests conducted.
    (6) For cause breath alcohol testing under FRA authority, by reason 
for test (reasonable suspicion, accident/injury or rules violation), 
the number of screening tests conducted.
    (7) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (8) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (9) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable alcohol use during the reporting 
period.
    (f) Annual reporting for calendar year 1993 and prior years shall 
be governed by the provisions of Sec. 217.13 of this chapter in effect 
during the subject calendar period.
    43. Part 219 is amended by adding Subpart J as follows:

Subpart J--Record Keeping Requirements


Sec. 219.901  Retention of breath alcohol testing records.

    (a) General requirement. Each railroad shall maintain records of 
its alcohol misuse prevention program as provided in this section. The 
records shall be maintained in a secure location with controlled 
access.
    (b) Period of retention. Each railroad shall maintain the records 
in accordance with the following schedule:
    (1) Five years. The following shall be maintained for a minimum of 
five years:
    (i) records of alcohol test results with results indicating an 
alcohol concentration of .02 or greater, documentation of refusals to 
take required alcohol tests, calibration documentation, and employee 
evaluation and referrals;
    (ii) a summary record of each covered employee's test results; and
    (iii) a copy of the annual report summarizing the results of its 
alcohol misuse prevention programs (if required to submit under 
Sec. 219.801(a).
    (2) Two years. Records related to the collection process (except 
calibration of evidential breath testing devices) and training shall 
also be maintained for a minimum of two years.
    (3) One year. Records of all test results below .02 shall be 
maintained for a minimum of one year.
    (c) Types of records. The following specific records must be 
maintained.
    (1) Records related to the collection process:
    (i) Collection logbooks, if used.
    (ii) Documents relating to the random selection process.
    (iii) Calibration documentation for evidential breath testing 
devices.
    (iv) Documentation of breath alcohol technician training.
    (v) Documents generated in connection with decisions to administer 
reasonable suspicion alcohol tests.
    (vi) Documents generated in connection with decisions on post-
accident testing.
    (vii) Documents verifying the existence of a medical explanation of 
the inability of a covered employee to provide an adequate breath 
sample.
    (2) Records related to test results:
    (i) The railroad's copy of the alcohol test form, including the 
results of the test.
    (ii) Documents related to the refusal of any covered employee to 
submit to an alcohol test required by this part.
    (iii) Documents presented by a covered employee to dispute the 
result of an alcohol test administered under this part.
    (3) Records related to other violations of this part.
    (4) Records related to evaluations:
    (i) Records pertaining to a determination by a substance abuse 
professional concerning a covered employee's need for assistance.
    (ii) Records concerning a covered employee's compliance with the 
recommendations of the substance abuse professional.
    (5) Records related to evaluation and training:
    (i) Materials on drug misuse awareness, including a copy of the 
railroad's policy on drug misuse.
    (ii) Documentation of compliance with the requirements of 
Sec. 219.23.
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination 
concerning the need for alcohol testing based on reasonable suspicion.
    (iv) Certification that any training conducted under this part 
complies with the requirements for such training.


Sec. 219.903  Retention of urine drug testing records.

    (a) General requirement. Each railroad shall maintain records of 
its drug misuse prevention program as provided in this section. The 
records shall be maintained in a secure location with controlled 
access.
    (b) Period of retention. Each railroad shall maintain the records 
in accordance with the following schedule:
    (1) Five years. The following shall be maintained for a minimum of 
five years:
    (i) records of employee positive drug test results, documentation 
of refusals to take required drug tests, and employee evaluation and 
referral;
    (ii) a summary record of each covered employee's test results; and
    (iii) a copy of the annual report summarizing the results of its 
drug misuse prevention program (if required to submit under 
Sec. 219.803(a).
    (2) Two years. Records related to the collection process and 
training shall be maintained for a minimum of two years.
    (3) One year. Records of negative test results (as defined in Part 
40 of this title) shall be maintained for a minimum of one year.
    (c) Types of records. The following specific records must be 
maintained.
    (1) Records related to the collection process:
    (i) Documents relating to the random selection process.
    (ii) Documents generated in connection with decisions to administer 
reasonable suspicion drug tests.
    (iii) Documents generated in connection with decisions on post-
accident testing.
    (iv) Documents verifying the existence of a medical explanation of 
the inability of a covered employee to provide a urine sample.
    (2) Records related to test results:
    (i) The railroad's copy of the drug test custody and control form, 
including the results of the test.
    (ii) Documents related to the refusal of any covered employee to 
submit to a drug test required by this part.
    (iii) Documents presented by a covered employee to dispute the 
result of a drug test administered under this part.
    (3) Records related to other violations of this part.
    (4) Records related to evaluations:
    (i) Records pertaining to a determination by a substance abuse 
professional concerning a covered employee's need for assistance.
    (ii) Records concerning a covered employee's compliance with the 
recommendations of the substance abuse professional.
    (5) Records related to evaluation and training:
    (i) Materials on alcohol misuse awareness, including a copy of the 
railroad's policy on alcohol misuse.
    (ii) Documentation of compliance with the requirements of 
Sec. 219.23.
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination 
concerning the need for alcohol testing based on reasonable suspicion.
    (iv) Certification that any training conducted under this part 
complies with the requirements for such training.


Sec. 219.905  Access to facilities and records.

    (a) Release of covered employee information contained in records 
required to be maintained under Secs. 219.901 and 219.903 shall be in 
accordance with 49 CFR Part 40 and this section. (For purposes of this 
section only, urine drug testing records shall be considered equivalent 
to breath alcohol testing records.)
    (b) Each railroad shall permit access to all facilities utilized in 
complying with the requirements of this part to the Secretary of 
Transportation or any DOT agency with regulatory authority over the 
railroad or any of its covered employees.
    (c) Each railroad shall make available copies of all results for 
railroad alcohol and drug testing programs conducted under this part 
and any other information pertaining to the railroad's alcohol and drug 
misuse prevention program, when requested by the Secretary of 
Transportation or any DOT agency with regulatory authority over the 
railroad or covered employee.
    44. Part 219 is amended by adding Appendices D3 and D4 as follows:
BILLING CODE 4910-06-P

TR15FE94.030


TR15FE94.031


TR15FE94.032


TR15FE94.033


TR15FE94.034


TR15FE94.035


TR15FE94.036


TR15FE94.037


TR15FE94.038


TR15FE94.039


TR15FE94.040


TR15FE94.041


TR15FE94.042


    Issued in Washington, D.C. on January 25, 1994.
Federico Pena,
Secretary of Transportation.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
[FR Doc. 94-2111 Filed 2-3-94; 1:00 pm]
BILLING CODE 4910-06-C