[Federal Register Volume 66, Number 238 (Tuesday, December 11, 2001)]
[Proposed Rules]
[Pages 64000-64014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30184]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

[Docket No. FRA 2001-11068, Notice No. 1]
RIN 2130-AB39


Control of Alcohol and Drug Use: Proposed Application of Random 
Testing and Other Requirements to Employees of a Foreign Railroad Who 
Are Based Outside the United States and Perform Train or Dispatching 
Service in the United States; Request for Comment on Even Broader 
Application of Rules and on Implementation Issues

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Notice of proposed rulemaking (NPRM) and request for comments.

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SUMMARY: In general, FRA's regulation on the control of alcohol and 
drug use (49 CFR part 219) currently applies to all railroads that 
operate on the general railroad system of transportation in the United 
States. However, part 219 presently exempts certain operations by 
foreign railroads and certain small railroads from certain subparts. In 
this NPRM, FRA proposes to narrow the scope of these exemptions.
    This NPRM also seeks to reopen a discussion of part 219 
implementation issues, many of which were first raised in FRA's 1992 
advance notice of proposed rulemaking on this subject. Finally, FRA 
invites comment on whether it should expand the basis for requiring 
post-accident testing (subpart C) and testing for cause (subpart D) of 
part 219 to include events that occur outside the United States.

DATES: (1) Written Comments: Written comments must be received by 
February 11, 2002. Comments received after that date will be considered 
to the extent possible without incurring additional expense or delay.
    (2) Public Hearing: FRA will conduct a public hearing to provide 
interested parties an opportunity to comment on this proposed rule. FRA 
will issue a separate document in the Federal Register informing 
interested parties of the date and location of the hearing.

ADDRESSES: Anyone wishing to file a comment should refer to the FRA 
docket and notice numbers (FRA Docket No. FRA 2001-11068, Notice No. 
1). You may submit your comments and related material by only one of 
the following methods:
    By mail to the Docket Management System, U.S. Department of 
Transportation, room PL-401, 400 7th Street, SW., Washington, DC 20590-
0001; or
    Electronically through the Web site for the Docket Management 
System at http://dms.dot.gov. For instructions on how to submit 
comments electronically, visit the Docket Management System web site 
and click on the ``Help'' menu.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments, and documents as indicated in this preamble, will 
become part of this docket and will be available for inspection or 
copying at room PL-401 on the plaza level of the Nassif Building at the 
same address during regular business hours. You may also obtain access 
to this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For technical issues, Lamar Allen, 
Alcohol and Drug Program Manager, FRA Office of Safety, RRS-11, 1120 
Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590 (telephone 202-
493-6313). For legal issues, Patricia V. Sun, Trial Attorney, Office of 
the Chief Counsel, RCC-11, 1120 Vermont Avenue, NW., Mail Stop 10, 
Washington, DC 20590 (telephone 202-493-6038).

[[Page 64001]]


SUPPLEMENTARY INFORMATION\1\:
     
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    \1\ Elsewhere in today's Federal Register, FRA published an 
Interim Final Rule (new 49 CFR part 241). That rule requires all 
dispatching of railroad operations that occur in the United States 
to be performed in the United States, with three limited exceptions. 
First, a railroad is allowed to conduct extraterritorial dispatching 
(dispatching of railroad operations that occur in the United States 
by dispatchers who are located outside the United States) in 
emergency situations. Second, the grandfathering provision of the 
rule permits continued extraterritorial dispatching of the very 
limited track segments in the United States that were regularly 
being so dispatched in December 1999. Third, certain other fringe 
border operations are permitted. FRA does not propose at this time 
to apply part 219 to the limited number of extraterritorial 
dispatchers covered by the grandfathering provision in part 241, but 
invites public comment on this issue.
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Table of Contents for Supplementary Information

I. Introduction
    A. Summary
    B. Abbreviations
II. Alcohol Abuse and Illegal Drug Use by Train Employees and 
Dispatching Service Employees Pose Significant Dangers to the Safety 
of Railroad Operations
    A. Safety-Sensitive Role of Train Employees
    B. Safety-Sensitive Role of Dispatching Service Employees
    C. The Dangers to Railroad Operations Posed by Alcohol Abuse and 
Illegal Drug Use by Train Employees and Dispatching Service 
Employees
III. Congress Has Determined that Comprehensive Alcohol and Drug 
Testing (Including Random Testing) Is Needed in the Railroad 
Industry; FRA's Regulations on Control of Alcohol and Drug Use (49 
CFR Part 219) Require Such Comprehensive Testing for Safety-
Sensitive Employees of United States Railroads
IV. Currently, a Foreign Railroad's Foreign-Based (FRFB) Employees 
Who Perform Service Covered by the Hours of Service Laws in the 
United States Are Exempted by Sec. 219.3(c) from subparts E 
(Identification of Troubled Employees), F (Pre-employment Testing), 
and G (Random Testing)
    A. FRA's 1992 Advance Notice of Propose Rulemaking and 1994 
Issuance of Current Exemption at Sec. 219.3(c)
    B. Scope of Existing Exemption at Sec. 219.3(c)
V. FRA Is Proposing to Narrow the Scope of Sec. 219.3(c) and to 
Apply All of Part 219 to FRFB Employees Who Perform Train Service or 
Dispatching Service in the United States, and Pre-employment Testing 
to All Individuals Seeking to Perform Such Service for the First 
Time, Unless Their Employer Would Be Exempt under Proposed 
Sec. 219.3(b) (Dealing with Small Railroads)
VI. Whether and to What Extent Extraterritorial Dispatchers or FRFB 
or Extraterritorial Signal Maintainers Should Be Covered by Part 219
VII. Whether to Broaden the Application of Other Part 219 
Requirements
VIII. Implementation Issues Raised by Extraterritorial Application 
of Part 219
IX. In Conclusion, FRA Believes that, Unless Exempted by Proposed 
Sec. 219.3(b), All of Part 219 Should Apply to FRFB Employees Who 
Perform Train Service or Dispatching Service in the United States 
and Pre-employment Testing Should Apply to Applicants to Perform 
such Service
X. Section-by-Section Analysis
XI. Regulatory Impact
    A. Executive Order No. 12866 and DOT Policies and Procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Reform Act of 1995
XII. Request for Public Comment

I. Introduction

A. Summary

    Paragraph (c) of Sec. 219.3 now exempts employees of a foreign 
railroad whose primary reporting point is outside the United States (a 
foreign railroad's foreign-based employees or ``FRFB employees'') who 
perform service in the United States covered by the hours of service 
laws (``covered service'')--train service, dispatching service, or 
signal service--from subparts E (identification of troubled employees), 
F (pre-employment testing), and G (random testing). FRA proposes to 
limit the exemption to FRFB signal service employees, who are currently 
few in number. FRA would apply all of part 219 to FRFB train and 
dispatching service employees, including pre-employment testing under 
subpart F for all individuals seeking to serve in such capacity, unless 
their employer qualifies as a small railroad under proposed 
Sec. 219.3(b). This change, together with the Interim Final Rule 
discussed at footnote 1 below, and will ensure that dispatchers 
controlling the bulk of rail operations in the United States are 
covered by part 219
    Paragraph (b)(2) of Sec. 219.3 currently exempts railroads 
employing not more than 15 covered service employees from the 
requirements of subparts D (testing for cause), E, F, and G, and 
paragraph (b)(3) exempts railroads having fewer than 400,000 total 
manhours from the requirements of subpart I (annual reports). In this 
NPRM, FRA proposes to amend paragraphs (b)(2) and (3) to take into 
account a railroad's operations outside the United States in 
determining its size and eligibility for the ``small railroad'' 
exemptions.
    As mentioned above, FRA also invites a discussion of part 219 
implementation issues, and comment on whether it should expand the 
basis for requiring post-accident testing (subpart C) and testing for 
cause to include events that occur outside the United States.

B. Abbreviations

    The following abbreviations are used with some frequency in this 
preamble and are collected here for the convenience of the reader:
ANPRM  Advance Notice of Proposed Rulemaking
CFR  Code of Federal Regulations
ch.  chapter
DOT  United States Department of Transportation
FAA  Federal Aviation Administration
FHWA  Federal Highway Administration
FMCSA  Federal Motor Carrier Safety Administration
FR  Federal Register
FRA  Federal Railroad Administration
FRFB  foreign railroad's foreign-based
HHS  United States Department of Health and Human Services
MRO  Medical Review Officer
NPRM  Notice of Proposed Rulemaking
Pub. L.  Public Law
OST  Office of the Secretary, United States Department of 
Transportation
SAP  Substance Abuse Professional
U.S.C.  United States Code

II. Alcohol Abuse and Illegal Drug Use by Train Employees and 
Dispatching Service Employees Pose Significant Dangers to the 
Safety of Railroad Operations

A. Safety-Sensitive Role of Train Employees

    Train employees include engineers, conductors, switchmen, trainmen, 
brakemen, and hostlers. See statement of agency policy and 
interpretation of the hours of service laws (49 U.S.C. ch. 211 and 
related provisions in chs. 201 and 213), including 49 U.S.C. 21101(5) 
and 21103, at 49 CFR part 228, appendix A. These train employees are 
responsible for safely assembling, disassembling, and operating 
passenger and freight trains, including working on and around the 
equipment. Train crew members can become fatigued because of the long 
and varied hours they are expected to work. Because trains have long 
stopping distances, a small mistake in application of power or brakes 
by an engineer or the misreading or forgetting of a signal or a 
mandatory directive by any of the crew could have serious consequences. 
For example, such a small mistake could cause the train to run over a 
crew member, or to exceed its authorized speed and possibly derail or 
collide with another train, with resulting injuries or death to train 
crews, passengers, or both, and possible harm to surrounding 
communities by

[[Page 64002]]

the release of hazardous materials. These errors by the train crew 
could also cause their train to enter into a track segment without 
authority, endangering authorized occupants of the track such as 
another train or a roadway work group. The crew's failure to sound the 
locomotive horn at a grade crossing could endanger motorists. Again, 
the long stopping distances required by trains can make it very 
difficult for a crew to recover from such mistakes or omissions in time 
to avoid accidents and consequent property damage, injury, or death. 
Train crew members whose judgment and motor skills are impaired by the 
use of alcohol or drugs pose a significant safety risk to themselves 
and others.
    Adding to the criticality of the train crew's need to be subject to 
an effective safety program that encourages them to be in the best 
possible physical and mental state is the environment in which they 
work. Road train crews and road switching crews in particular (as 
opposed to switch crews who work in yards) normally work independent of 
supervision, without the supervisory monitoring that could assist in 
identifying substance-abuse symptoms, such as poor work performance, 
and allowing subsequent timely remedies. Misuse of drugs and alcohol is 
often difficult to identify under the best of circumstances, and this 
is particularly true of drugs such as cocaine, for which the chronic or 
after-effects of the drug may be of greater concern than the acute 
effects. Even practiced, functional alcoholics can sometimes avoid 
detection over long periods of time.
    Train crews do not experience the deterrence provided by the timely 
oversight of a supervisor because of their normal, independent working 
conditions. Random alcohol and drug testing of these train employees 
helps to provide the necessary deterrent effect.

B. Safety-Sensitive Role of Dispatching Service Employees

    Proper dispatching is essential for safe railroad operations. 
Because trains have long stopping distances, train operations are 
generally not conducted by line of sight. Rather, the route ahead must 
be cleared for the train's movement. Switches must be aligned properly 
along the route. Potentially conflicting movements must be guarded 
against in order to prevent collisions. Dispatching service employees 
actually ``steer'' the train by remotely aligning switches; these 
dispatchers determine whether the train should stop or move, and if so, 
at what speed, by operating signals and issuing train orders and other 
forms of movement authority or speed restriction. See 49 U.S.C. 
21101(2), 21105 and 49 CFR part 228, appendix A. In addition, 
dispatchers protect track gangs and other roadway workers from passing 
trains by issuing authorities for working limits. Train crews on board 
locomotives carry out the dispatchers' instructions and are responsible 
for actually moving the train, but dispatchers make it possible to do 
so safely. A dispatcher's judgment must be sound if railroad operations 
are to be conducted safely.

C. The Dangers to Railroad Operations Posed by Alcohol Abuse and 
Illegal Drug Use by Train Employees and Dispatching Service Employees

    Alcohol and drug use results in safety risks and consequences that 
are unacceptable in the railroad environment. The loss of life, 
injuries, and property damage in accidents caused by train employees or 
dispatchers impaired by alcohol or drugs or both has been well 
documented. See 49 FR 24254-24264 (June 12, 1984) and 53 FR 47105 (Nov. 
21, 1988). One of the most serious of these accidents in the United 
States was the January 4, 1987 train accident at Chase, Maryland, in 
which 16 persons were killed and 174 injured when a Conrail train 
passed an absolute restrictive signal and went through a switch into 
the path of a high-speed Amtrak train. The engineer and conductor of 
the Conrail train admitted smoking marijuana immediately prior to the 
accident.
    Drug and alcohol abuse in the railroad industry is not limited to 
the United States. It also occurs in other countries, as evidenced by a 
1987 Canadian survey commissioned by a Canadian Task Force on the 
Control of Drug and Alcohol Abuse in the Railway Industry. In that 
survey, 1,000 randomly-selected Canadian railway workers, including 
train employees, were interviewed by telephone. The survey revealed, 
among other things, that 20 percent of those surveyed had come to work 
feeling the effects of alcohol and nine percent felt that their use of 
alcohol had at some time compromised job safety. In addition, 2.5 
percent admitted to using illegal drugs during their shift. As the 
following passage from a recent Canadian arbitration award involving CN 
illustrates, drug and alcohol abuse problems continue to exist in 
Canada:

    As related in the submission of the employer's counsel, CN has 
extensive experience in drug and alcohol testing over the past 
decade, including circumstances of hiring, promotion, reasonable 
cause and post accident testing. Its data confirm a relatively high 
incidence of positive test results across Canada, exceeding ten per 
cent over all categories of testing in Western Canada. While 
positive drug tests obviously do not confirm that individuals in the 
railway industry have necessarily used illegal drugs while at work, 
a substantial number of awards of the Canadian Railway Office of 
Arbitration provide a well-documented record of cases which reveal 
the unfortunate willingness of some employees to have drugs or 
alcohol in their possession while at work, to use them while at 
work, or to report for work under their influence. * * *

    In the Matter of an Arbitration Between Canadian National Railway 
Company and National Automobile, Aerospace, Transportation and General 
Workers Union of Canada (Union) and Canadian Council of Railway 
Operating Unions (Intervener), Re: the Company's Drug and Alcohol 
Policy at 123-24, Arbitrator Michel G. Picher (July 18, 2000). The drug 
and alcohol abuse problem in Canada is relevant to the current problem 
posed by FRFB employees who are performing train or dispatching service 
in the United States and helps demonstrate the need for more 
comprehensive drug and alcohol testing of such employees.

III. Congress Has Determined That Comprehensive Alcohol and Drug 
Testing (Including Random Testing) Is Needed in the Railroad 
Industry; FRA's Regulations on Control of Alcohol and Drug Use (49 
CFR Part 219) Require Such Comprehensive Testing for Safety-
Sensitive Employees of United States Railroads

    In 1991, the many alcohol- and drug-related railroad accidents 
caused Congress to require FRA to expand its existing comprehensive 
drug and alcohol program (and to strengthen FRA's 1988 regulations 
requiring random drug testing) because Federal regulations and the 
industry's own rule on drug and alcohol usage had not proven to be 
totally effective.\2\ Congress determined that alcohol abuse and 
illegal drug use posed significant dangers to the safety of railroad 
operations, and mandated DOT to establish regulations to eliminate the 
abuse of alcohol and use of illegal drugs (whether on or off duty), by 
individuals involved in railroad operations. In passing the Omnibus 
Transportation Employee Testing Act of 1991, Pub. L. No. 102-143 
(Omnibus Act), Congress specifically found that--
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    \2\ The railroad industry has long had in place a common rule 
(Rule G) prohibiting employees from using, possessing, or being 
under the influence of intoxicants or other drugs while on duty or 
subject to duty. Rule G can be tracked back to at least 1849.

    (1) Alcohol abuse and illegal drug use pose significant dangers 
to the safety and welfare of the Nation;

[[Page 64003]]

    (2) Millions of the Nation's citizens utilize transportation by 
aircraft, railroads, trucks, and buses and depend on the operators 
of aircraft, trains, trucks, and buses to perform in a safe and 
responsible manner;
    (3) The greatest efforts must be expended to eliminate the abuse 
of alcohol and use of illegal drugs (whether on duty or off duty), 
by those individuals who are involved in the operation of aircraft, 
trains, trucks, and buses;
    (4) The use of alcohol and illegal drugs has been demonstrated 
to affect significantly the performance of individuals, and has been 
proven to have been a critical factor in transportation accidents;
    (5) The testing of uniformed personnel of the Armed Forces has 
shown that the most effective deterrent to abuse of alcohol and use 
of illegal drugs is increased testing, especially random testing;
    (6) Adequate safeguards can be implemented to ensure that 
testing for abuse of alcohol or use of illegal drugs is performed in 
a manner which protects an individual's right to privacy, ensures 
that no individual is harassed by being treated differently from 
other individuals, and ensures that no individual's reputation or 
career development is unduly threatened or harmed; and
    (7) Rehabilitation is a critical component of any testing 
program for abuse of alcohol or use of illegal drugs, and should be 
made available to individuals, as appropriate.

49 U.S.C. app. 1434 note.
    The Omnibus Act, as subsequently recodified in 1994 and amended in 
1995, requires the Secretary of Transportation to issue regulations 
relating to alcohol and drug use in railroad operations (49 U.S.C. 
20140, ``section 20140''), aviation (49 U.S.C. 45101-45106), motor 
carriers (49 U.S.C. 31306), and mass transportation (49 U.S.C. 5331). 
Pub. L. No. 103-272 (1994); Pub. L. No. 104-59 (1995). Section 20140(b) 
provides that--* * *

    (b) General.--(1) In the interest of safety, the Secretary of 
Transportation shall prescribe regulations and issue orders, . . . 
related to alcohol and controlled substances use in railroad 
operations. The regulations shall establish a program requiring--
    (A) A railroad carrier to conduct preemployment, reasonable 
suspicion, random, and post-accident testing of all railroad 
employees responsible for safety-sensitive functions (as decided by 
the Secretary) for the use of a controlled substance in violation of 
law or United States Government regulation, and to conduct 
reasonable suspicion, random, and post-accident testing of such 
employees for the use of alcohol in violation of law or a United 
States Government regulation; and
    (B) When the Secretary considers it appropriate, 
disqualification for an established period of time or dismissal of 
any employee found--
    (i) To have used or been impaired by alcohol while on duty; or
    (ii) To have used a controlled substance, whether on or not on 
duty, except as allowed for medical purposes by law or a regulation 
or order under this chapter.
    (2) When the Secretary of Transportation considers it 
appropriate in the interest of safety, the Secretary may prescribe 
regulations and issue orders requiring railroad carriers to conduct 
periodic recurring testing of railroad employees responsible for 
safety-sensitive functions (as decided by the Secretary) for the use 
of alcohol or a controlled substance in violation of law or a 
Government regulation.

    In establishing these requirements, the Secretary is to act 
consistent with the international obligations of the United States, and 
to take foreign countries' laws and regulations into account. 49 U.S.C. 
20140(e). Part 219 implements the requirements of the Omnibus Act.
    In general, FRA's regulation on the control of alcohol and drug use 
(49 CFR part 219) currently applies to all railroads except a railroad 
that operates only on track inside an installation which is not part of 
the general railroad system of transportation or a rapid transit 
operation in an urban area that is not connected to the general 
railroad system of transportation. However, part 219 currently exempts 
certain operations by foreign railroads and certain small railroads 
from certain subparts. As discussed later in this notice, FRA proposes 
to narrow the scope of most of these exemption provisions.
    Under part 219, dispatcher and train employees of a domestic 
railroad that perform their duties in the United States are generally 
subject to random, reasonable suspicion, reasonable cause, return-to-
duty, follow-up, and post-accident drug and alcohol testing, as well as 
pre-employment testing for drugs.\3\ See subparts B, C, D, F, and G of 
part 219. Post-accident testing is required for a dispatcher or train 
employee who is directly and contemporaneously involved in the 
circumstances of any train accident meeting FRA testing thresholds. See 
subpart C. A dispatcher or train employee found to have violated 
219.101 or 219.102 of FRA's drug and alcohol rules is required to be 
immediately removed from covered service, and the railroad must follow 
specified procedures, including rehabilitation and return-to-duty and 
follow-up testing requirements, before returning the dispatcher or 
train employee to covered service. A dispatcher or train employee who 
refuses to cooperate with providing a required sample is required to be 
removed from covered service for a nine-month period and to complete a 
rehabilitation program. See subpart B. Additionally, employers of such 
dispatchers and train crews operating in the United States generally 
must provide self-referral and co-worker reporting (self-policing) 
programs for their employees (subpart E), submit random alcohol and 
drug testing plans for approval by FRA (subpart G), conduct random 
testing under part 219 and DOT procedures found in 49 CFR part 40 (part 
40) (subpart H), submit annual reports (subpart I), and maintain 
program records (subpart J).\4\ The reports and records required by 
part 219, especially subparts H through J are necessary for audit 
purposes in order to demonstrate the employer's compliance with part 
219.
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    \3\ Pre-employment testing for alcohol, unlike pre-employment 
testing for drugs, is authorized but not required (see Sec. 219.502)
    \4\ For example, Subpart I requires larger railroads to 
summarize and submit the results of their alcohol and drug misuse 
programs annually to FRA for review.
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    FRA's broad-based, multi-component alcohol and drug program has 
reduced alcohol and drug abuse in the railroad industry (the original 
regulations were implemented in 1986, and random alcohol testing began 
in 1994).
     In 1987, testing for cause conducted under FRA and 
railroad programs resulted in a 4.0 percent positive rate for alcohol 
and a 6.9 percent positive rate for drugs. These rates have declined 
each year, with the 1998 testing for cause resulting in a 0.36 percent 
positive rate for alcohol and a 0.95 percent rate for drugs.
     Random drug testing began in 1989. The first full year's 
data for 1990 indicated a 1.04 percent rate, declining in 1995 to a 
0.93 percent rate, and to a 0.77 percent rate in 1998.
     Random alcohol testing began in 1994, with the first full 
year's data for 1995 resulting in a 0.42 percent rate, which has 
declined each year to a 0.003 percent rate for 1998.
    FRA post-accident testing data provide perhaps the most stark and 
compelling proof of the decline in alcohol and drug abuse in the 
railroad industry. In its post-accident testing program, in which 
testing is triggered only by significant accidents, FRA may use lower 
drug detection levels (cutoffs) and test for more substances than those 
tested for in other types of FRA testing. Post-accident testing data 
are the most scrutinized because FRA reviews each testing event, and 
tests each specimen in a designated contract laboratory, which FRA 
inspects quarterly. Furthermore, because the program has been in effect 
since 1986, post-accident testing data provide the longest trend line.

[[Page 64004]]

    An analysis of the post-accident testing data in the chart below 
demonstrates how positive test results have dramatically declined since 
FRA's program started. In 1987, the first year of the program, 42 
employees produced a positive specimen, resulting in a post-accident 
positive rate of 0.4 percent for alcohol and 5.1 percent for drugs; by 
1998 only four employees produced a positive specimen, resulting in 
positive rates of 0.0 percent for alcohol and 2.6 percent for drugs.
    As shown in the post-accident testing chart, in each of the 
fields--``Qualifying Events,'' ``Employees Tested,'' and ``Employees 
Positive . . .''--FRA has achieved a desired reduction, despite a 
significant increase in rail traffic. The deterrent effect of random 
drug testing, which was implemented in 1988-1989, most certainly 
influenced the dramatic reduction in post-accident positives from 41 in 
1988 to only 17 in 1990. Additionally, in the eight years from 1987 
through 1994, there were 20 post-accident alcohol positives, but only 
two post-accident alcohol positives in the succeeding four years after 
implementation of random alcohol testing in 1994. Although some 
refinement of regulatory requirements over the years has reduced the 
class of qualifying events (damages criteria for two of the qualifying 
events have been increased), the remaining events are those for which 
higher positive rates would be expected due to a higher component of 
likely human factor involvement.
    FRA is aware that many factors have contributed to these results 
and probably influenced movement in both directions. The number of 
employees tested has decreased due to fewer qualifying events and crew 
consist reductions. For Federal workplace detection programs such as 
FRA's (other than FRA post-accident testing under subpart C), Health 
and Human Services (HHS) has reduced the detection cut-off level for 
marijuana metabolites and has increased the detection levels for 
opiates. Another factor likely to have contributed to higher industry 
positive rates is the constant improvement in railroad random testing 
programs. Nonetheless, testing data remain the best indicator of the 
success that the comprehensive programs mandated by FRA have had in 
significantly reducing alcohol and drug abuse in the railroad industry.

                           FRA Post-Accident Toxicological Testing Results (1987-1998)
----------------------------------------------------------------------------------------------------------------
                                            Qualifying       Employees    Employees positive one/more substances
                  Year                        events          tested            [number (A=alcohol; D=drug)]
----------------------------------------------------------------------------------------------------------------
1987....................................             179             770  42 (3A-39D)
1988....................................             178             682  41 (3A-38D)
1989....................................             161             607  24 (6A-18D)
1990....................................             149             524  17 (1A-16D)
1991....................................             157             552  8 (2A-6D)
1992....................................             109             332  7 (1A-6D)
1993....................................             128             403  8 (2A-6D)
1994....................................             115             294  7 (2A-5D)
1995....................................              82             225  2 (0A-2D)
1996....................................              73             197  1 (0A-1D)
1997....................................              86             240  3 (2A-1D)
1998....................................              68             153  4 (0A-4D)
----------------------------------------------------------------------------------------------------------------

    Note on this chart, concerning 49 CFR 219, subpart C--Post-Accident 
Toxicological Testing:
    The positives reflected in the chart indicate the presence of drugs 
or alcohol in a covered employee during the event. A positive result 
does not necessarily indicate a causal relationship with the accident. 
Causal determinations are made only after a thorough review of all 
factors that may have contributed to the accident.
    With certain stated exceptions, post-accident toxicological tests 
are required to be conducted for the following events occurring in the 
United States:
    1. Major Train Accident (involving damage exceeding the current FRA 
reporting threshold ($6,600 in 1998)) involving:
    (a) a fatality;
    (b) a release of hazardous material lading from railroad equipment 
resulting in either an evacuation or a reportable injury; or
    (c) damage to railroad property of $1,000,000 or more.
    2. Impact Accident (as defined in Sec. 219.5 involving damage 
exceeding the FRA reporting threshold) involving:
    (a) a reportable injury; or
    (b) damage to railroad property of $150,000 or more.
    3. Fatal Train Incident: fatality to any on-duty railroad employee 
involving movement of on-track equipment with damage not exceeding the 
reporting threshold.
    4. Passenger Train Accident: passenger train involved in an 
accident that exceeds the reporting threshold and results in an injury 
reportable to FRA under 49 CFR part 225.
    See 49 CFR 219.201(a). Rail/highway grade crossing accidents and 
accidents wholly resulting from natural causes (e.g., tornado), 
vandalism, or trespassing are exempt from FRA post-accident testing. 
See 49 CFR 219.201(b). For a major train accident, all train 
crewmembers must be tested, but any other covered employees (e.g., 
dispatchers, signalmen) determined not to have had a role in the cause 
or severity of the accident are not to be tested. See 49 CFR 
219.201(c)(2).

IV. Currently, a Foreign Railroad's Foreign-Based (FRFB) Employees 
Who Perform Service Covered by the Hours of Service Laws in the 
United States Are Exempted by Sec. 219.3(c) from Subparts E 
(Identification of Troubled Employees), F (Pre-employment Testing), 
and G (Random Testing)

A. FRA's 1992 Advance Notice of Proposed Rulemaking and 1994 Issuance 
of Current Exemption at Sec. 219.3(c)

    Foreign railroads (railroads incorporated in a place outside the 
United States) have been subject to portions of FRA's regulations on 
the control of alcohol and drug use (part 219) since 1986. 51 FR 3973, 
Jan. 31, 1986. In 1992, FRA published an advance notice of proposed 
rulemaking (ANPRM) asking for comment on the international application 
of the additional areas of drug and alcohol testing discussed in the 
Omnibus Act.

[[Page 64005]]

The ANPRM discussed departmental issues because the Federal Aviation 
Administration (FAA) and the Federal Highway Administration (FHWA, 
whose Office of Motor Carrier Safety is now the Federal Motor Carrier 
Safety Administration (FMCSA)), concurrently published separate ANPRMs 
on international application of the Omnibus Act.
    As noted in FRA's ANPRM, section 4 of the Omnibus Act amended then 
section 202(r)(1) of the Federal Railroad Safety Act of 1970, as well 
as sections of the Federal Aviation Act and the Commercial Motor 
Vehicle Safety Act of 1988. 49 U.S.C. 20140, superseding 45 U.S.C. 
432(r). Addressing concerns of all three modal administrations, the 
ANPRM stated that:

    Under these similar provisions, FAA, FRA and FHWA have the 
authority and obligation to require drug and alcohol tests for 
safety sensitive employees of foreign employers. The FAA provisions 
specifically extend coverage to foreign air carriers, and the FHWA 
and FRA provisions cover motor carriers and railroads, respectively, 
which definitions include employers based in this country or a 
foreign country. Moreover, the legal authority extends to all kinds 
of testing required by the Act: Reasonable suspicion, post-accident, 
preemployment, and random (subject to U.S. international 
obligations).
    It is the Department's policy to carry out the Act's 
requirements using a territorial jurisdiction approach. That is, the 
Department interprets its statutory authority and obligation for 
drug and alcohol testing to apply to foreign employers who conduct 
operations in the United States, with respect to those operations. 
This does not mean that all operations of such a transportation 
employer would be subject to the rules. For example, a foreign 
employer's operations within its own country would not be subject to 
these rules. Following the same policy, only those employees of a 
foreign transportation employer who perform safety-sensitive 
functions in operations within the U.S. would be subject to testing.
    For each of the three industries involved, the Act requires the 
Department to act consistent with the international obligations of 
the U.S. and, to take foreign countries' laws and regulations into 
account.

(57 FR 59606, Dec. 15, 1992).
    To implement Congress' intent, FRA proposed several rules (which 
later became final rules) and asked in its ANPRM for comments on 
whether FRA should extend the reach of all its substance abuse rules to 
FRFB employees who perform, or are assigned to perform, train service 
or other service covered by the hours of service laws (signal service 
or dispatching service) in the United States. The ANPRM also asked for 
information on any treaty obligations or principles of international 
law that could affect FRA's implementation of the Omnibus Act. 
Questions posed in the ANPRM are discussed in Section VIII of this 
preamble.
    FRA received no comments in response to this ANPRM. Based on this 
lack of response and the perceived lack of interest in these issues 
that it implied, FRA decided not to proceed with a separate rulemaking 
on extraterritorial application. Accordingly, in 1994, FRA withdrew the 
ANPRM and instead, in its final rule implementing the Omnibus Act, 
codified at Sec. 219.3(c) the scope of extraterritorial application 
already in effect. 59 FR 7448, 59 FR 7482; Feb.15, 1994.

B. Scope of Existing Exemption at Sec. 219.3(c)

    Section 219.3(a) makes all of the requirements of part 219 
applicable to railroads that operate on the general system and to 
commuter railroads unless these railroads are exempted by paragraphs 
(b) (dealing with small railroads) or (c). Paragraph (c) explicitly 
exempts foreign railroads from only subparts E through G, therefore 
leaving them subject to subparts A, B, C, D, H, I, and J. Section 
219.3(c) reads as follows:

    Subparts E [self-referral and co-worker report policy], F [pre-
employment testing] and G [random testing] 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.

    The existing paragraph (c) exemption from subparts E through G 
applies to ``covered service employees''--train crews, dispatchers, and 
signal maintainers subject to the hours of service laws at 49 U.S.C. 
ch. 21101--who are employed by a foreign railroad and whose primary 
reporting point is outside the United States. See, e.g., 57 FR 59606 
(Dec. 15, 1992); 59 FR 7449-7450 (Feb. 15, 1994); and Section X of the 
preamble, ``Section-by-Section Analysis,'' infra. The following 
categories of employees do not fall within the exemption and are, 
therefore, subject to part 219 in its entirety, unless their employing 
railroad qualifies as a small railroad under Sec. 219.3(b): (1) An 
employee of a United States railroad whose primary reporting point is 
outside the United States but who enters the United States to perform, 
or is assigned to perform, service subject to the hours of service 
laws; and (2) an employee of a foreign or domestic railroad whose 
primary reporting point is in the United States and who performs, or is 
assigned to perform, service subject to the hours of service laws.

V. FRA Is Proposing To Narrow the Scope of Sec. 219.3(c) and To 
Apply All of Part 219 to FRFB Employees Who Perform Train Service 
or Dispatching Service in the United States, and Pre-employment 
Testing to All Individuals Seeking To Perform Such Service for the 
First Time, Unless Their Employer Would Be Exempt Under Proposed 
Sec. 219.3(b) (Dealing with Small Railroads)

    Recent trends in the organization of North American railroads and 
the expansion of trade among the United States, Mexico, and Canada 
under such treaties as the North American Free Trade Agreement, 
together have resulted in a growth, and potential for further growth, 
in multinational railroad operations. See the preamble to FRA's Interim 
Final Rule (49 CFR part 241) published in today's edition of the 
Federal Register for a discussion of organizational trends, current and 
potential level of cross-border train dispatching operations, and other 
issues related to this NPRM. The Interim Final Rule points out the 
increasing prospect that, if unrestrained, foreign railroads will 
resort to the use of foreign-based dispatchers who are not subject to 
the same safety laws and regulations as United States-based 
dispatchers, to control rail operations in the United States.
    Because of the existing level of cross-border train operations 
involving FRFB train crews, the potential for increase in such 
operations, and the increasing risk of foreign railroads using foreign-
based dispatchers to control rail operation in the United States, and 
the resulting increased safety risk posed by such actions, FRA now 
proposes to narrow the scope of all three provisions of Sec. 219.3 that 
create exemptions from portions of part 219.\5\ With regard to the most 
important of these exemptions, Sec. 219.3(c), FRA would limit the 
exemption from subparts E, F, and G to FRFB signal service employees, 
who are currently few in number. FRA would apply all of part 219 to 
FRFB train and dispatching service employees, including pre-employment 
testing under subpart F for all individuals seeking to serve in such 
capacity, unless their

[[Page 64006]]

employer qualifies as a small railroad under proposed Sec. 219.3(b).
---------------------------------------------------------------------------

    \5\ In the proposed rule, FRA repeats verbatim the existing 
exemption provided by Sec. 219.3(b)(1) from all of part 219, which 
is for a railroad whose operations are confined to an installation 
that is not part of the general railroad system of transportation.
---------------------------------------------------------------------------

    Furthermore, FRA proposes to reduce the scope of the two exemptions 
at Secs. 219.3(b)(2) and 219.3(b)(3) to make sure that they provide 
relief only to relatively small railroads, as originally intended, and 
that a railroad's operations outside the United States are taken into 
account in determining the size of the railroad for purposes of those 
exemptions. Currently, Sec. 219.3(b)(2) provides relief from subparts 
D, E, F, and G for a railroad that both (1) does not operate on the 
track of another railroad except for purposes of interchange and (2) 
has 15 or fewer employees whose duties are covered by the hours of 
service laws. The other exemption, at Sec. 219.3(b)(3), provides relief 
from subpart I (annual reports) for a railroad with fewer than 400,000 
manhours. (See Section X of the preamble, ``Section-by-Section 
Analysis,'' infra.)
    In the context of Sec. 219.3(c), and omitting the special case 
involving pre-employment testing, the term ``FRFB train employee'' or 
``FRFB dispatching service employee'' basically refers to an individual 
who meets all of the following three criteria. First, the individual 
must be employed by a foreign railroad or by a contractor to a foreign 
railroad. If the individual is employed by a United States railroad (a 
railroad incorporated in the United States) or a contractor to a United 
States railroad, the exemption in Sec. 219.3(c) from subparts E through 
G does not apply. Second, the individual's primary place of service for 
rail transportation services (``home terminal'') must be located 
outside the United States. If the individual's home terminal is inside 
the United States, Sec. 219.3(c) does not apply. Third, the individual 
must either--
    (a) In the case of a train service employee, be engaged in or 
connected with the movement of a train, including a hostler (49 U.S.C. 
21101(5)), or
    (b) In the case of a dispatching service employee, report, 
transmit, receive, or deliver orders related to or affecting train 
movements (49 U.S.C. 21101(2))--in the United States during a duty tour 
or be assigned to perform such train service or dispatching service in 
the United States during a duty tour.
    As previously noted, train and dispatching service in the United 
States conducted by FRFB employees who perform, or are assigned to 
perform, such service in the United States is already subject to 
subparts A (general requirements and definitions), B (prohibitions), C 
(post-accident toxicological testing), D (testing for cause), H 
(testing procedures), I (annual report), and J (recordkeeping 
procedures), unless their employer falls within an exemption at 
Sec. 219.3(b).
    FRA proposes to amend the exemption at Sec. 219.3(c) to limit it to 
FRFB signal maintainers. Train operations and dispatching service in 
the United States performed by FRFB train or dispatching service 
employees, who are currently subject to all of part 219 other than 
subparts E (self-referral and co-worker report programs), F (pre-
employment drug tests), and G (random testing), would become subject to 
these subparts as well. It should be noted that even though, broadly 
speaking, subparts H, I, and J currently apply to operations in the 
United States by FRFB train crews and dispatching service employees, 
some specific requirements in subparts H, I, and J do not by their 
terms apply to these operations because the requirements are partly or 
wholly triggered only if the employing railroad is required to do pre-
employment or random testing. See the annual reporting requirements in 
subpart I at, e.g., Secs. 219.801(d)(3)-(5) and 219.803(e)(3)-(5), for 
information by type of testing; Sec. 219.803(d)(6), for number of 
persons denied a position as a covered employee following a pre-
employment drug test; and Sec. 219.801(d)(12), for number of covered 
employees who refused to submit to a random alcohol test required by 
part 219. By making pre-employment and random testing requirements 
applicable to such operations, the proposed amendments would trigger 
these additional reporting requirements in subpart I, increase the 
scope of the foreign railroad's activities subject to subpart H and 49 
CFR part 40 testing safeguards and procedures, and require the keeping 
of additional records under subpart J.
    To comply with these proposed requirements, foreign railroads that 
use FRFB train or dispatching service employees to conduct train 
operations in the United States would have to conduct pre-employment 
drug tests (subpart F) and submit random alcohol and drug testing plans 
for approval by FRA (subpart G) for these employees. To meet the same 
requirements already applicable to railroads with United States-based 
train and dispatching service employees and to United States railroads 
with foreign-based train and dispatching service employees, FRA would 
also require foreign railroads employing or contracting for the 
services of FRFB train or dispatching service employees operating in 
the United States to comply with subpart E by providing self-referral 
and co-worker report programs for such operations and employees. 
Finally, as indicated earlier, a foreign railroad's responsibilities to 
comply with subparts H, I, and J with respect to such operations and 
employees would become more complex because subpart H would also govern 
random and pre-employment testing, subpart I would require additional 
specific information on random or pre-employment tests if random or 
pre-employment testing is required, and subpart J would call for 
certain records for random and pre-employment tests. FRA's intent is to 
ensure that, unless exempted by proposed Sec. 219.3(b), part 219 is 
fully applicable to all employees who perform, or are assigned to 
perform, train or dispatching service in the United States subject to 
the hours of service laws at 49 U.S.C. ch. 211, whether they are 
foreign- or domestically-based and whether employed by a foreign or a 
domestic railroad.

VI. Whether and to What Extent Extraterritorial Dispatchers or FRFB 
or Extraterritorial Signal Maintainers Should Be Covered by Part 
219

    FRA's Interim Final Rule, also published in this edition of the 
Federal Register, generally requires dispatchers controlling United 
States railroad operations to be located in the United States; by way 
of exception, the rule (1) conditionally permits extraterritorial 
dispatching in an emergency, (2) permits continued extraterritorial 
dispatching of very limited track segments in the United States that 
were normally being so dispatched in December 1999, and (3) 
conditionally permits extraterritorial dispatching of certain other 
fringe border operations. The Interim Final Rule invites comments on 
whether FRA should adopt an alternative regulatory scheme under which 
extraterritorial dispatching would be permitted; under this alternative 
scheme extraterritorial dispatchers may be subject to part 219. As 
discussed in the Interim Final Rule, an extraterritorial dispatcher of 
railroad operations in the United States, who is not a ``covered 
employee'' and therefore generally outside the scope of application of 
part 219, could compromise safety in the United States if impaired by 
drugs or alcohol. Because of the de minimis nature of the exceptions to 
the prohibition against extraterritorial dispatching, FRA does not 
propose to apply any or all of part 219 to the few employees permitted 
to conduct extraterritorial dispatching under the Interim Final Rule 
based on that service. FRA invites comment on this issue.

[[Page 64007]]

    FRA's safety analysis of extraterritorial dispatchers parallels its 
safety analysis of extraterritorial and FRFB signal maintainers. An 
impaired extraterritorial signal maintainer responsible for signals 
controlling rail operations in the United States could adversely impact 
safety in the United States without ever physically entering United 
States territory. An extraterritorial signal maintainer, who by 
definition is not a ``covered employee'' and therefore who is normally 
outside the scope of application of part 219, or an FRFB signal 
maintainer, who is exempt from subparts E, F, and G under 
Sec. 219.3(c), could endanger railroad operations in the United States. 
For this reason, FRA considered proposing an expanded application of 
part 219 to cover such extraterritorial or FRFB signal maintainers. It 
appears that this activity is also de minimis. To FRA's knowledge, no 
FRFB signal maintainer comes into the United States to maintain a 
railroad signal system on a regular basis, and only a few FRFB signal 
maintainers do so on an occasional basis. This infrequent performance 
of signal service in the United States by FRFB signal maintainers 
occurs in the areas of Buffalo and Niagara Falls, New York; Detroit, 
Michigan; and Sarnia, Michigan. After examining the de minimis impact 
of such extraterritorial or FRFB signal maintainers on rail operations 
in the United States, FRA has decided that such a proposal is not 
necessary at this time. However, commenters are invited to address 
whether any or all of part 219 should be applied to extraterritorial 
signal maintainers and whether subparts E, F, and G should be applied 
to FRFB signal maintainers who perform signal service in the United 
States. (Again, it should be noted that signal maintainers based in the 
United States, whether employed by United States or foreign railroads, 
remain, as always, fully subject to part 219 with respect to their 
covered service (which by definition is in the United States) unless 
exempt under a provision of existing Sec. 219.3(b). Likewise, signal 
maintainers employed by United States railroads but based outside the 
United States remain subject to part 219 in its entirety with respect 
to their covered service in the United States unless otherwise exempt.)

VII. Whether To Broaden the Application of Other Part 219 
Requirements

    The preceding portions of this preamble discuss the issue of 
whether and how to broaden the application of principally random 
testing and pre-employment testing and of how to narrow three exemption 
provisions in Sec. 219.3. In this portion of the preamble, FRA solicits 
comment on whether to broaden the application of other part 219 
requirements to reach operations and employees outside the United 
States.
    For example, FRA invites comment on whether it should expand the 
basis for requiring post-accident testing under subpart C and testing 
for cause under subpart D to events that occur outside the United 
States and, if so, what those events should include. Currently, under 
part 219, FRA limits qualifying events for post-accident and ``for 
cause'' testing to those within the borders of the United States. 
Should FRA expand post-accident testing to include FRFB train employees 
who are involved in an otherwise qualifying event while in transit to 
or from the United States?
    If FRA decides against such an expansion, the agency will likely 
amend--
     Sec. 219.201 to make explicit that events for which post-
accident toxicological testing under subpart C is required are limited 
to those within the borders of the United States; and
     Secs. 219.300 and 219.301 to clarify that events for which 
reasonable suspicion testing is mandatory and reasonable cause testing 
is authorized are limited to those that occur within the borders of the 
United States.

VIII. Implementation Issues Raised by Extraterritorial Application 
of Part 219

    In its 1992 ANPRM, FRA raised for comment several practical issues 
associated with the extraterritorial application of part 219, 
including:
     How would foreign employers ensure that an employee who 
had tested positive did not engage in operations in the United States 
until after his or her reinstatement requirements had been met?
     How would FRA monitor or enforce compliance outside the 
United States?
    As in its 1992 ANPRM, FRA seeks comment on potential implementation 
issues. FAA and FMCSA, the other DOT modes covered by the Omnibus Act, 
have taken divergent approaches to extraterritorial application of 
their regulations. (The Federal Transit Administration has not 
addressed this issue since to date there are no cross-border transit 
operations affecting United States transit safety.) Citing work in 
progress by the International Civil Aviation Organization, FAA withdrew 
a proposed rulemaking that would have required foreign air carriers to 
establish alcohol and drug testing programs for their employees 
performing safety-sensitive aviation functions within the United States 
(65 FR 2079, Jan. 13, 2000).
    FMCSA, which, like FRA, does not have an international treaty 
organization for its regulated industry, adopted an approach similar to 
what FRA is proposing. FMCSA has applied all of 49 CFR part 382 
(FMCSA's equivalent to part 219) to persons and employers of such 
persons who operate a commercial motor vehicle in commerce in the 
United States, including foreign-domiciled employees. See 49 CFR 
382.115. In the preamble to its final rule (60 FR 49321, 49323, Sept. 
22, 1995), FMCSA's predecessor agency, the FHWA, stated that ``[a]ll 
drivers operating in the United States are to be subject to controlled 
substances and alcohol testing, regardless of domicile. The safety 
concerns which led to the Omnibus Act pertain equally to United States 
and foreign-based drivers.''
    FRA is now reconsidering many of the issues first raised in its 
ANPRM about the implementation of part 219 testing in foreign 
countries, and invites comments on extraterritorial application issues. 
FRA post-accident toxicological testing, unlike other testing under 
part 219, does not parallel part 40 procedures. See part 219, subpart 
C. In its investigation of a qualifying accident, FRA may require 
testing for different substances (e.g., carbon monoxide in the remains 
of a deceased employee) or testing at lower levels of detection than 
those required under part 40. FRA therefore contracts out all post-
accident testing to an HHS-certified special laboratory that meets its 
detailed testing specifications (currently NWT Inc. in Salt Lake City, 
Utah). For example, if based on comments received on this NPRM, FRA 
decides to apply part 219 to extraterritorial signal maintainers and an 
extraterritorial signal maintainer could have contributed to a 
qualifying accident on United States soil, is there a way to assure 
that the employing railroad will ship the maintainer's specimens to 
FRA's designated post-accident laboratory? Although several Canadian 
laboratories have been deemed equivalent by HHS, post-accident testing 
requires testing specifications beyond those of part 40.
    Furthermore, clearance through customs and international mail may 
delay shipment of body fluid and tissue specimens, and may also cause 
problems with the timely transmission of specimens and their 
accompanying paperwork. FRA also seeks comment on whether employing 
railroads in foreign countries would have difficulty obtaining and 
using evidential breath

[[Page 64008]]

testing devices that are on the National Highway Traffic Safety 
Administration Conforming Products List, as required for part 40 
alcohol testing.

IX. In Conclusion, FRA Believes That, Unless Exempted by Proposed 
Sec. 219.3(b), All of Part 219 Should Apply to FRFB Employees Who 
Perform Train Service or Dispatching Service in the United States 
and Pre-Employment Testing Should Apply to Applicants To Perform 
Such Service

    Train and dispatching service employees operating in the United 
States whose judgment and motor skills are impaired by the use of 
alcohol or drugs pose a significant safety risk to themselves and 
others. Significant portions of FRA's highly successful, broad-based, 
multi-component part 219 alcohol and drug program, including random 
drug and alcohol testing, do not currently apply to FRFB train and 
dispatching service employees operating in the United States. If such 
employees are impaired by alcohol or drugs, they can jeopardize the 
safety of United States railroad operations. Since train employees do 
not experience the deterrence provided by the timely oversight of a 
supervisor because of their normal, independent working conditions, 
random testing is especially necessary to provide the necessary 
deterrent effect. With the existing levels of cross-border train 
operations and the potential for increases in such operations, FRA 
believes that it is necessary to narrow the scope of three exemptions 
from part 219 and (absent exemption by proposed 219.3(b)) to apply all 
of its part 219 program to FRFB train and dispatching service employees 
operating in the United States, and to apply pre-employment testing to 
individuals seeking to perform such service. The proposed amendments to 
part 219 (together with the Interim Final Rule on extraterritorial 
dispatching published elsewhere in this issue), will help ensure the 
safety of railroad operations in the United States.

X. Section-by-Section Analysis

Introduction

    This section-by-section analysis is intended to explain the 
provisions of the proposed rule. A number of these provisions and 
issues related to them have been addressed earlier in this preamble. 
Accordingly, the preceding discussions should be considered in 
conjunction with those below and will be referred to as appropriate.

General Provisions (Subpart A)

Section 219.3  Application
    Paragraph (a) contains a general statement of the scope of 
applicability of part 219, and paragraphs (b) and (c) contain 
exceptions to the general statement of applicability. The three 
exemptions in paragraph (b) are available to both domestic and foreign 
railroads, which is noted in the new heading for the paragraph. The 
exemption in paragraph (c) is available only to foreign railroads, also 
noted in the new heading for paragraph (c).
    Paragraph (a) is unchanged except to add the heading ``General'' 
and to make explicit that the commuter railroads to which part 219 
applies must operate in the United States. Paragraph (a) means that 
part 219 applies to each railroad that operates on the general railroad 
system of transportation and each railroad providing commuter or other 
short-haul service as described in the statutory definition of 
``railroad,'' unless the railroad falls into an exception stated in 
paragraph (b) or (c). The terms ``railroad'' and ``general railroad 
system of transportation'' are defined in Sec. 219.5. Intercity 
passenger operations and commuter operations in the United States are 
covered even if not physically connected to other portions of the 
general railroad system. See discussion below.
    Paragraph (b)(1), which uses standardized regulatory language, 
means that railroads whose entire operations are conducted on track 
within an installation that is outside of the general railroad system 
of transportation in the United States (in this paragraph, ``general 
system'' or ``general railroad system'') are not covered by this part. 
Tourist, scenic or excursion operations that occur on tracks that are 
not part of the general railroad system would, therefore, not be 
subject to this part. The word ``installation'' is intended to convey 
the meaning of physical (and not just operational) separateness from 
the general system. A railroad that operates only within a distinct 
enclave that is connected to the general system only for the purposes 
of receiving or offering its own shipments is within an installation. 
Examples of such installations are chemical and manufacturing plants, 
most tourist railroads, mining railroads, and military bases. However, 
a rail operation conducted over the general system in a block of time 
during which the general system railroad is not operating is not within 
an installation and, accordingly, not outside of the general system 
merely because of the operational separation.
    Read together, proposed paragraphs (a) and (b)(1) mean that all of 
part 219 applies to all railroads that operate on the general railroad 
system of transportation or are commuter or intercity passenger 
railroads, except those exempted from one or more subparts of part 219 
by proposed paragraphs (b)(2), (b)(3), or (c).
    Paragraph (b)(2). Existing paragraph (b)(2) exempts from subparts D 
(testing for cause), E (self-referral and co-worker report programs), F 
(pre-employment testing), and G (random testing) a railroad that meets 
both of the following criteria: the railroad must (1) utilize 15 or 
fewer employees covered by the hours of service laws and (2) not 
operate on the tracks of another railroad or engage in other joint 
operations with another railroad except for purposes of interchange.
    Under proposed paragraph (b)(2), the second criterion remains the 
same, but the first criterion changes. As proposed, a railroad 
(including, for example, a foreign railroad that utilizes FRFB 
employees to perform train operations in the United States) would 
qualify as a small entity exempt from subparts D, E, F, and G of part 
219 upon satisfaction of the following two conditions. First, the total 
number of its employees covered by the hours of service laws (as train 
employees, dispatching service employees, or signal employees), and 
employees who would be covered by the hours of service laws if their 
services were performed in the United States, would have to be 15 or 
fewer. Second, as is the case currently, the railroad would also be 
obliged not to operate on the tracks of another railroad or otherwise 
engage in joint operations in the United States except in order to 
perform interchange.
    The following example, the first of a series, illustrates the 
interpretation of proposed paragraph (b)(2):

     Example 1: Railroad XYZ employs 10 foreign-based 
individuals who perform service in the United States that is covered 
by the hours of service laws and 120 foreign-based individuals who 
would be covered by the hours of service laws if their services were 
performed in the United States. Railroad XYZ would not qualify under 
proposed paragraph (b)(2)(i) since it employs a total of 130 
individuals who are, or would be, subject to the hours of service 
laws.

By exempting only railroads which in their entirety, worldwide, 
comprise 15 or fewer employees who are or would be subject to the hours 
of service laws, FRA would effectuate the original intent of this 
subsection, which was to lessen the economic impact of part 219 on 
those small entities that have both limited

[[Page 64009]]

resources and a minimal impact on safety.
    Although under proposed paragraph (b)(2) FRA would partially 
determine the applicability of subparts D, E, F, and G to a railroad 
based on the total number of its employees who are, or would be, 
covered by the hours of service laws, a railroad that is exempted only 
under proposed paragraph (b)(2) from subparts D, E, F, and G would have 
to comply with all the other requirements of part 219 (subparts A, B, 
C, D, H, I, and J) generally only with respect to those of its 
employees who are ``covered employees'' within the meaning of the 
substantive provisions of part 219. In Example 1, Railroad XYZ with 10 
foreign-based employees covered by the hours of service laws and 120 
foreign-based employees who would be covered by the hours of service 
laws if their services were performed in the United States, would not 
be exempt under proposed paragraph (b)(2). The question remains whether 
Railroad XYZ is exempt from any subpart of part 219 under proposed 
paragraph (c) of Sec. 219.3. The following examples illustrate the 
relationship between the exemption in proposed paragraph (b)(2) and the 
exemption in proposed paragraph (c).

     Example 2: If Railroad XYZ is a domestic railroad 
(incorporated in the United States) that just happens to have only 
foreign-based employees, then the proposed exemption at paragraph 
(c) would not apply because paragraph (c) exempts from subparts E, 
F, and G only operations by a foreign railroad, not a domestic 
railroad. As a result, this domestic railroad would be required to 
conduct random testing on its 10 foreign-based employees who perform 
covered service in the United States.\6\ Broadly speaking, these 10 
employees would also be the only ones subject to part 219's 
prohibitions, general conditions, and other testing and reporting 
requirements. (However, for example, if Sec. 219.ll(g) requires 
training of a supervisor of a covered employee, then the railroad 
would have to train the supervisor even if the supervisor is not a 
covered employee.)
---------------------------------------------------------------------------

    \6\ Consistent with FRA's treatment of domestic small railroads; 
part 219 would prohibit a railroad from conducting random testing 
under part 219 authority on its 120 employees who do not operate in 
the United States.
---------------------------------------------------------------------------

     Example 3: If Railroad XYZ is a foreign railroad 
(incorporated outside the United States) and all ten of its foreign-
based employees who perform covered service in the United States 
perform train or dispatching service in the United States, then 
proposed paragraph (c) would not exempt them either. All ten FRFB 
train or dispatching service employees would be subject to random 
testing.

     Example 4: However, if some of foreign Railroad XYZ's 
ten foreign-based employees instead perform only signal service in 
the United States, then those employees would be subject to the 
exemption at proposed paragraph (c) and, therefore, would not be 
subject to random testing.

    Paragraph (b)(3). Existing paragraph (b)(3) reads as follows, 
``Subpart I does not apply to a railroad that has fewer than 400,000 
total manhours.'' Proposed paragraph (b)(3) would make two basic 
changes to that provision. First, it would replace the term 
``manhours'' with the term ``employee hours'' to make the provision 
gender-neutral. Second, the proposed paragraph would change and clarify 
the way in which employee hours are to be calculated, in part by 
defining the term ``employee'' as used in that subsection. Under the 
proposal FRA would look to a railroad's total number of employee hours 
worked worldwide in a calendar year, not just those worked in the 
United States, to determine whether the railroad would be required to 
file an annual Management Information System (MIS) report under subpart 
I. For a railroad to be exempt from MIS reporting, the number of hours 
worked by all of the railroad's employees regardless of their location 
or occupation, not just those employees performing train operations or 
other covered service in the United States, would have to total fewer 
than 400,000. For purposes of proposed paragraph (b)(3), an ``employee 
of a railroad'' is any individual who performs a service for the 
railroad; the term would include, for example, people directly 
compensated by the railroad and people employed by a contractor to the 
railroad who perform a service for the railroad. Non-work time, such as 
holidays, sick leave, or annual leave, would be excluded from the 
calculation of employee hours, even though it is paid.
    It should be noted that the calculation of employee hours under 
proposed paragraph (b)(3) differs in some respects from the calculation 
of employee hours for purposes of FRA's accident reporting rules at 49 
CFR part 225. See 49 CFR 225.21(d) (regarding the Form FRA 6180.56, 
``Annual Railroad Report of Manhours by State''). When reporting 
employee hours under the accident reporting rules, a railroad is to 
include only the hours of individuals who are directly compensated by a 
railroad, not the hours of employees of railroad contractors, and, as a 
general rule, to include only hours worked in the United States. See 
the FRA Guide for Preparing Accident/Incident Reports (1997 edition), 
Ch. 3, p. 3; Ch. 11, p. 1.) (By way of exception to the general rule 
for part 225 purposes, a railroad reporting under part 225 must include 
hours worked outside the United States in the count of employee hours 
only if the employee works in both the United States and in a foreign 
country during the same tour of duty. Id.)
    FRA proposes to base the application of subpart I on a railroad's 
total number of employee hours worldwide, rather than on the railroad's 
total number of employee hours worked in the United States, in order to 
ensure FRA's ability to monitor foreign-based railroads that impact 
rail safety in the United States. Requiring these railroads to submit 
MIS reports, which provide data on the required part 219 programs and 
tests on the subject employees, would allow FRA to capture basic 
compliance data even if budgetary and logistical concerns were to 
impact FRA's ability to conduct inspections in foreign countries.
    Paragraph (c). This paragraph would revise existing paragraph (c). 
Proposed paragraph (c) would limit the existing exemption for 
operations of a foreign railroad conducted by a covered service 
employee whose primary reporting point is outside the United States and 
who is employed by a foreign railroad to FRFB signal maintainers. The 
change would make an FRFB train or dispatching service employee subject 
to part 219 to the same extent as a train or dispatching service 
employee whose primary reporting point is in the United States and as a 
train or dispatching service employee whose primary reporting point is 
outside the United States and who is employed by a United States 
railroad (a railroad incorporated in the United States). Proposed 
Sec. 219.5 would define ``foreign railroad'' as a railroad that is 
incorporated outside the United States. The current term (``primary 
place of service (``home terminal'') for rail transportation 
services'') would be replaced by the more generic term (``primary place 
of reporting'') to convey more clearly that the proposed narrower 
exemption applies to signal employees, whose principal reporting point 
is not typically called a ``home terminal.''
    While the text of proposed paragraph (c) states that subparts E, F, 
and G do not apply to services of a foreign railroad performed by one 
of its employees whose principal reporting place is outside the United 
States and who performs signal maintenance in the United States, the 
note under that proposed paragraph states the positive inference that 
subparts A, B, C, D, H, I, and J of part 219 do apply to services in 
the United States performed by FRFB signal employees unless a provision 
of paragraph (b) provides an exemption from one or more of those 
subparts. (For

[[Page 64010]]

example, if the foreign railroad is small enough and operationally 
isolated enough to come within proposed paragraph (b)(2), then none of 
its covered service employees (neither its train crews, nor its signal 
maintainers, nor its dispatchers who perform covered service in the 
United States) would be subject to subparts D, E, F, or G.) For 
clarity, the proposed rule adds subparts H, I, and J to the existing 
list (``subparts A, B, C, and D'') in the second sentence of paragraph 
(c) of those subparts applicable to individuals meeting all of the 
following criteria: (1) Whose principal reporting point is outside the 
United States, (2) who are employed by foreign railroads, and (3) who 
are covered signal employees, unless exempted by Sec. 219.3(b).
    As discussed above, FRA is also asking for comment on whether 
signal maintainers who are the counterparts of FRFB train and 
dispatching service employees and whether extraterritorial signal 
maintainers, who remain outside the United States but may affect rail 
operations in the United States without entering United States 
territory, should be treated differently from FRFB train and 
dispatching service employees.
Section 219.5  Definitions
    The terms ``covered service'' and ``covered employee'' are closely 
interrelated and, therefore, their definitions are discussed together.
    Covered service. FRA proposes to add this definition of a basic 
term used in part 219, which appeared in part 219 as originally issued 
in 1985 but which is no longer among the definitions. The proposed 
definition tracks the definition in the 1985 final rule, with the 
exception that FRA makes explicit that FRA continues to interpret 
``covered service'' as occurring only in the United States. In this 
respect, no substantive change is intended. As stated in the section-
by-section analysis of the 1985 final rule,

    Covered service is service subject to the Hours of Service Act. 
This is a practical, rather than a craft-based, definition of the 
persons and functions subject to the regulations. However, the 
employees that will most often fall within the definition of covered 
employee are train and engine crews, yard crews (including switchmen), 
hostlers, train order and block operators, dispatchers, and signalmen. 
These are the functions identified by the Congress as being connected 
with the movement of trains and requiring maximum limits on duty 
periods and required off-duty periods in order to ensure their fitness.
50 FR 31530 (Aug. 2, 1985).
    Covered employee. The definition of this term is proposed to be 
revised to make clear that FRA interprets covered service as being 
performed only in the United States. It should be noted that the 
existing rule currently provides as follows:

    (6) An employee must be subject to testing only while on duty. 
Only employees who perform covered service for the railroad are 
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 must specify the extent to which, and the 
circumstances under which they are to 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 must 
provide that employees are subject to the possibility of random 
testing on any day they actually perform covered service.

49 CFR 219.601(b)(6) (regarding railroad random drug testing programs). 
The section on railroad random alcohol testing programs contains an 
almost identical provision. 49 CFR 219.607(b)(5). FRA will be glad to 
work with railroads to exercise the flexibility provided by the rule.
    General railroad system of transportation. FRA proposes to add this 
definition to clarify that the term is limited to that part of the 
general railroad system of transportation that is located within the 
borders of the United States.

Annual Report (Subpart I)


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


Sec. 219.803  Reporting drug misuse prevention program results in a 
management information system.

    First, FRA proposes to make conforming changes to Secs. 219.801 and 
219.803 in order to reflect the replacement of the term ``manhours'' in 
Sec. 219.3(b)(3) with the gender-neutral term ``employee hours'' and to 
reflect the new criteria for determining which hours should be included 
as employee hours (e.g., hours worked by a railroad's employees and 
contractors worldwide). See text and analysis of proposed 
Sec. 219.3(b)(3). Finally, FRA would conform Sec. 219.803 to 
Sec. 219.801 by, e.g., defining the calendar year.

XI. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034; 
Feb. 26, 1979). FRA has prepared and placed in the docket a regulatory 
evaluation addressing the economic impact of this proposed rule. 
Document inspection and copying facilities are available at 1120 
Vermont Avenue, NW., 7th Floor, Washington, DC. Photocopies may also be 
obtained by submitting a written request to the FRA Docket Clerk, 
Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 
1120 Vermont Avenue, NW., Washington, DC 20590. Access to the docket 
may also be obtained electronically through the web site for the Docket 
Management System at http://dms.dot.gov. FRA invites comments on this 
regulatory evaluation.
    As part of the regulatory evaluation, FRA has assessed costs and 
benefits expected from the adoption of the proposed rule. Canadian and 
Mexican railroads employing FRFB employees to perform train or 
dispatching service in the United States would incur, by United States 
standards, a seemingly low level of costs associated with extending the 
application of all of the part 219 requirements addressing control of 
alcohol and drug use to FRFB employees performing train or dispatching 
service in the United States.
    For a twenty-year period, the Net Present Value (NPV) of the 
estimated quantified costs are $250,384 for Canadian railroads and 
$115,860 for Mexican railroads. The following table presents estimated 
twenty-year monetary costs associated with the distinct proposed rule 
modifications.

                         Estimated 20-Year Costs
                           [Net Present Value]
------------------------------------------------------------------------
            Description                   Canada             Mexico
------------------------------------------------------------------------
Identification of Troubled                     $7,883             $2,032
 Employees........................
Pre-employment Tests..............             20,857             15,370
Random Alcohol and Drug Testing...            166,139             49,962

[[Page 64011]]

 
Annual Report.....................              7,373              4,256
Recordkeeping Procedures..........             47,758             43,162
General: Written Instructions.....                374              1,078
    Total (rounded)...............            250,384            115,860
------------------------------------------------------------------------


Detailed calculations of these estimates can be found in Section 7.0 of 
the regulatory evaluation on file at FRA in the docket for this 
rulemaking.
    The United States Department of Transportation estimates the 
``willingness to pay'' to avert a fatality to be $2.7 million. The 
estimated value of preventing a critical injury that is non-fatal over 
the next twenty years is between $532,020 and $2,058,750, depending on 
the year in which the injury occurs. Twenty-year costs of this NPRM 
would be justified if one critical injury or a combination of less 
severe injuries and property damages totaling $366,244 was prevented 
over the twenty years. FRA believes that the costs associated with the 
transition from the current rule to the proposed rule would be 
justified by safety benefits in the form of fewer accidents and related 
injuries, fatalities, property damage, and hazardous materials 
releases. FRA also believes that the safety of certain domestic rail 
operations would be compromised if the proposed rule is not 
implemented. A more detailed explanation of the benefits of this rule 
as well as a summary of the cost-benefit analysis can be found in 
Sections 9.0 and 10.0 of the regulatory evaluation on file at FRA in 
the docket for this rulemaking.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of proposed and final rules to assess their impact on 
small entities. FRA has prepared and placed in the docket an Initial 
Regulatory Flexibility Assessment (IRA), which assesses the small 
entity impact. Document inspection and copying facilities are available 
at 1120 Vermont Avenue, NW., 7th Floor, Washington, DC 20590. 
Photocopies may also be obtained by submitting a written request to the 
FRA Docket Clerk, Office of Chief Counsel, Mail Stop 10, Federal 
Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 
20590.
    Pursuant to section 312 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has published 
an interim policy that formally establishes ``small entities'' as being 
railroads that meet the line-haulage revenue requirements of a Class 
III railroad. For other entities, the same dollar limit in revenue 
governs whether a railroad, contractor, or other respondent is a small 
entity (62 FR 43024, Aug. 11, 1997).
    The IRA concludes that this proposed rule would not have an 
economic impact on a sizable number of small entities. FRA further 
certifies that this proposed rule is not expected to have a significant 
economic impact on a substantial number of small entities.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
and the estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                           Total        Total
                                    Respondent        Total annual    Average time per     annual       annual
      CFR Section--49 CFR            universe          responses           response        burden       burden
                                                                                           hours        hours
----------------------------------------------------------------------------------------------------------------
219.401/403/405--Voluntary      6 railroads......  6 policies.......  33.33 hours.....          200       $7,880
 Referral & Co-worker Report
 Policies.
219.405(c)(1)--Report by a Co-  6 railroads......  1 report.........  5 minutes.......          .08            3
 worker.
219.403/405--SAP Counselor      6 railroads......  10 reports/        2 hours.........           20        3,000
 Evaluation.                                        referrals.
219.601(a)--Railroad Random     6 railroads......  6 programs.......  1 hour..........            6          228
 Drug Testing Programs.
    --Amendments to Programs..  6 railroads......  1 amendment......  1 hour..........            1           38
219.601(b)(1)--Random           6 railroads......  72 documents.....  4 hours.........          288        4,320
 Selection Proc.--Drug.
219.601(b)(4); 219.601(d)--     6 railroads......  6 notices........  10 hours........           60        2,280
 Notice to Employees.
    --Notice to Employees--     6 railroads......  60 notices.......  1 minute........            1           38
     Selection for Testing.
219.603(a)--Notice by Employee  200 employees....  2 documented       15 minutes......          .50           17
 Asking to be Excused from                          excuses.
 Urine excuses.
219.607(a)--Railroad Random     6 railroads......  Incl. in           Incl. in                (\1\)        (\1\)
 Alcohol Testing Progs.                             219.601(a).        219.601(a).
    --Amendments..............  6 railroads......  1 amendment......  1 hour..........            1           38
219.608--Administrator's        6 railroads......  2 MIS reports....  2 hours.........            4          152
 Determination of Random
 Alcohol Testing Rate.
219.609--Notice by Employee     200 employees....  2 documented       15 minutes......          .50           17
 Asking to be Excused from                          excuses.
 Random Alcohol Testing.
219.801--Alcohol Testing        6 railroads......  1 form...........  4 hours.........            4          152
 Management Information System
 Data Collection Form.
    --``EZ'' Data Collection    6 railroads......  1 form...........  2 hours.........            2           76
     Form.
219.803--Drug Testing MIS Data  6 railroads......  1 form...........  4 hours.........            4          152
 Collection Form.

[[Page 64012]]

 
    --Drug Testing MIS Zero     6 railroads......  5 forms..........  2 hours.........           10          380
     Positives Data Coll. Form.
219.901/903--Retention of       6 railroads......  240 records......  5 minutes.......           20         300
 Breath Alcohol/Urine Drug
 Testing Records.
----------------------------------------------------------------------------------------------------------------
\1\ Included in 219.601(a).

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), the FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan at 
202-493-6292.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail 
Stop 17, Washington, DC 20590.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of a final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

D. Federalism Implications

    Executive Order 13132, entitled ``Federalism,'' requires that 
each agency in a separately identified portion of the preamble to 
the regulation as it is to be issued in the Federal Register, 
provide[] to the Director of the Office of Management and Budget a 
federalism summary impact statement, which consists of a description 
of the extent of the agency's prior consultation with State and 
local officials, a summary of the nature of their concerns and the 
agency's position supporting the need to issue the regulation, and a 
statement of the extent to which the concerns of the State and local 
officials have been met * * *


See section 6(b)(2)(B).
    Normally, FRA performs these required Federalism consultations in 
the early stages of a rulemaking at meetings of the full Railroad 
Safety Advisory Committee (``RSAC''), which includes representatives of 
groups representing State and local officials. Shortly after RSAC's 
inception FRA agreed not to task the RSAC with rulemaking concerning 
alcohol and drug testing issues, since, as discussed above, these 
issues require extensive coordination and consultation with both DOT 
and HHS.
    FRA has instead solicited comment on the Federalism implications of 
this proposed rule from nine groups designated as representatives for 
various State and local officials. On March 17, 2000, FRA sent a letter 
seeking comment on the Federalism implications of this NPRM and on the 
Interim Final Rule to the following organizations: the American 
Association of State Highway and Transportation Officials, the 
Association of State Rail Safety Managers, the Council of State 
Governments, The National Association of Counties, the National 
Association of Towns and Townships, the National Conference of State 
Legislatures, the National Governors' Association, the National League 
of Cities, and the U.S. Conference of Mayors. To date, FRA has received 
no indication of concerns about the Federalism implications of this 
rulemaking from these representatives. FRA will adhere to Executive 
Order 13132 when issuing a final rule in this proceeding.

E. Environmental Impact

    FRA has evaluated this regulation in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this regulation is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
64 FR 28545, 28547, May 26, 1999. Section 4(c)(20) reads as follows:

    (c) Actions Categorically Excluded. Certain classes of FRA 
actions have been determined to be categorically excluded from the 
requirements of these Procedures as they do not individually or 
cumulatively have a significant effect on the human environment. * * 
* The following classes of FRA actions are categorically excluded: * 
* *
    (20) Promulgation of railroad safety rules and policy statements 
that do not result in significantly increased emissions of air or 
water pollutants or noise or increased traffic congestion in any 
mode of transportation.


In accordance with section 4(c) and (e) of FRA's Procedures, the agency 
has further concluded that no extraordinary circumstances exist with 
respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
regulation is not a major Federal action significantly affecting the 
quality of the human environment.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that


[[Page 64013]]


before promulgating any general notice of proposed rulemaking that 
is likely to result in the promulgation of any rule that includes 
any Federal mandate that may result in expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, 
of $100,000,000 or more (adjusted annually for inflation) in any 1 
year, and before promulgating any final rule for which a general 
notice of proposed rulemaking was published, the agency shall 
prepare a written statement * * *


detailing the effect on State, local, and tribal governments and the 
private sector. The proposed rule would not result in the expenditure, 
in the aggregate, of $100,000,000 or more in any one year, and thus 
preparation of a statement is not required.

XII. Request for Public Comment

    In accordance with Executive Order 12866, FRA is allowing 60 days 
for comments. FRA believes that a 60-day comment period is appropriate 
to allow parties with interests to comment on this proposed rule. FRA 
solicits written comments on all aspects of this proposed rule, and FRA 
may make changes to the final rule based on comments received in 
response to this NPRM.

List of Subjects in 49 CFR Part 219

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

The Proposal

    In consideration of the foregoing, the FRA proposes to amend 
chapter II, subtitle B of title 49, Code of Federal Regulations as 
follows:

PART 219--[AMENDED]

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

    Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 
28 U.S.C. 2461, note; and 49 CFR 1.49(m).

    2. Section 219.3 is revised to read as follows:


Sec. 219.3  Application.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, this part applies to--
    (1) Railroads that operate rolling equipment on standard gage track 
which is part of the general railroad system of transportation; and
    (2) Railroads that provide commuter or other short haul rail 
passenger service in a metropolitan or suburban area (as described by 
49 U.S.C. 20102) in the United States.
    (b) Exceptions for domestic railroads and foreign railroads. (1) 
This part does not apply to a railroad that operates only on track 
inside an installation which is not part of the general railroad system 
of transportation.
    (2) Subparts D, E, F and G of this part do not apply to a railroad 
that--
    (i) Has a total of 15 or fewer employees who are covered by the 
hours of service laws at 49 U.S.C. 21103, 21104, or 21105, or who would 
be subject to the hours of service laws at 49 U.S.C. 21103, 21104, or 
21105 if their services were performed in the United States; and
    (ii) Does not operate on the tracks in the United States of another 
railroad (or otherwise engage in joint operations in the United States 
with another railroad) except as necessary for purposes of interchange.
    (3) Subpart I of this part does not apply to a railroad that has 
fewer than 400,000 total employee hours, including hours worked by all 
employees of the railroad, regardless of occupation, not only while in 
the United States but also while outside the United States. For 
purposes of this paragraph (b)(3), the term ``employees of the 
railroad'' includes individuals who perform service for the railroad, 
including not only individuals who receive direct monetary compensation 
from the railroad for performing a service for the railroad, but also 
such individuals as employees of a contractor to the railroad who 
perform a service for the railroad.
    (c) Exception for foreign railroads. Subparts E, F, and G of this 
part do not apply to service in the United States or outside the United 
States of a foreign railroad performed by a covered signal employee of 
the foreign railroad if the employee's primary place of reporting is 
located outside the United States.

    Note to paragraph (c) of this section: Unless otherwise provided 
by paragraph (b) of this section, subparts A, B, C, D, H, I, and J 
of this part apply to service in the United States of a foreign 
railroad performed by a covered signal employee of the foreign 
railroad if the employee's primary place of reporting is located 
outside the United States. Unless otherwise provided by paragraph 
(b) of this section, this part applies to the following: (1) 
Operations in the United States of a foreign railroad conducted by a 
covered train employee of the foreign railroad if the employee's 
primary place of service (``home terminal'') for rail transportation 
services is located outside the United States or inside the United 
States; (2) service in the United States performed by a covered 
dispatching service employee of the foreign railroad if the 
employee's primary place of reporting is located outside the United 
States or inside the United States ; and (3) service in the United 
States performed by a covered signal employee of the foreign 
railroad if the employee's primary place of reporting is located in 
the United States.

    3. Section 219.5 is amended by revising the definition of covered 
employee and adding new definitions in alphabetical order, to read as 
follows:


Sec. 219.5  Definitions.

* * * * *
    Covered dispatching service employee means a person who has been 
assigned to perform service in the United States subject to the 
limitations on duty hours of dispatching service employees under the 
hours of service laws at 49 U.S.C. 21105 during a duty tour, whether or 
not the person has performed or is currently performing such service, 
and a person who performs such service. For the purposes of pre-
employment testing only, the term ``covered dispatching service 
employee'' includes a person applying to perform service in the United 
States subject to 49 U.S.C. 21105.
    Covered employee means a person who has been assigned to perform 
service in the United States subject to the hours of service laws (49 
U.S.C. ch. (211) during a duty tour, whether or not the person has 
performed or is currently performing such service, and any person who 
performs such service. (An employee is not ``covered'' within the 
meaning of this part exclusively by reason of being an employee for 
purposes of 49 U.S.C. 21106.) For the purposes of pre-employment 
testing only, the term ``covered employee'' includes a person applying 
to perform covered service in the United States.
    Covered service means service in the United States that is subject 
to the hours of service laws at 49 U.S.C. 21103, 21104, or 21105, but 
does not include any period the employee is relieved of all 
responsibilities and is free to come and go without restriction.
    Covered signal employee means a person who has been assigned to 
perform service in the United States subject to the limitations on duty 
hours of signal employees under the hours of service laws at 49 U.S.C. 
21104 during a duty tour, whether or not the person has performed or is 
currently performing such service, and a person who performs such 
service. For the purposes of pre-employment testing only, the term 
``covered signal employee'' includes a person applying to perform 
service in the United States subject to 49 U.S.C. 21104.
    Covered train employee means a person who has been assigned to 
perform service in the United States subject to the limitations on duty 
hours of train employees under the hours of service laws at 49 U.S.C. 
21103 during a duty tour, whether or not the person has performed or is 
currently

[[Page 64014]]

performing such service, and a person who performs such service. For 
the purposes of pre-employment testing only, the term ``covered train 
employee'' includes a person applying to perform service subject to 49 
U.S.C. 21103.
* * * * *
    Domestic railroad means a railroad that is incorporated in the 
United States.
* * * * *
    Foreign railroad means a railroad that is incorporated outside the 
United States.
* * * * *
    General railroad system of transportation means the general 
railroad system of transportation in the United States.
* * * * *
    State means a State of the United States of America or the District 
of Columbia.
* * * * *
    United States means all of the States.
* * * * *
    4. Section 219.801(a) is revised to read as follows:


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

    (a) Each railroad that has 400,000 or more total employee hours 
(including hours worked by all employees of the railroad, regardless of 
occupation, not only while in the United States but also while outside 
the United States) must 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. As 
used in this paragraph, the term ``employees of the railroad'' includes 
individuals who perform service for the railroad, including not only 
individuals who receive direct monetary compensation from the railroad 
for performing a service for the railroad, but also such individuals as 
employees of a contractor to the railroad who perform a service for the 
railroad.
* * * * *
    5. Section 219.803(a) is revised to read as follows:


Sec. 219.803  Reporting drug misuse prevention program results in a 
management information system.

    (a) Each railroad that has 400,000 or more total employee hours 
(including hours worked by all employees of the railroad, regardless of 
occupation, not only while in the United States but also while outside 
the United States) must submit to FRA by March 15 of each year an 
annual report covering the previous calendar year (January 1 through 
December 31), summarizing the results of its drug misuse prevention 
program. As used in this paragraph, the term ``employees of the 
railroad'' includes individuals who perform service for the railroad, 
including not only individuals who receive direct monetary compensation 
from the railroad for performing a service for the railroad, but also 
such individuals as employees of a contractor to the railroad who 
perform a service for the railroad.
* * * * *

    Issued in Washington, DC, on November 30, 2001.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 01-30184 Filed 12-10-01; 8:45 am]
BILLING CODE 4910-06-P