[Federal Register Volume 68, Number 144 (Monday, July 28, 2003)]
[Proposed Rules]
[Pages 44276-44277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19042]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

Docket No. FRA 2001-11068, Notice No. 4

RIN 2130-AB39


Application of FRA Alcohol and Drug Rules to Foreign Railroad 
Foreign-Based Employees Who Perform Train or Dispatching Service in the 
United States: Completion of Consultations with Canadian and Mexican 
Governments and Closure of Comment Period

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Proposed rule.

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SUMMARY: Currently, employees of a foreign railroad (a railroad 
incorporated outside the United States) whose primary reporting point 
is outside the United States who enter into the United States to 
perform train or dispatching service (foreign railroad foreign-based 
employees or ``FRFB employees'') are subject only to the general 
conditions, prohibitions, post-accident testing and reasonable 
suspicion testing requirements in FRA's alcohol and drug regulations 
(49 CFR part 219). In a December 11, 2001 notice (NPRM) (66 FR 64000), 
FRA proposed to make FRFB employees, who are presently excepted from 
the requirements concerning employee assistance programs, random 
alcohol and drug testing and pre-employment drug testing, fully subject 
to part 219 requirements.
    In this notice, FRA outlines the likely revisions to the NPRM 
based, in part, on consultations with the Canadian and Mexican 
Governments. FRA also announces the closure of the comment period on 
this rule.

DATES: Written Comments: Written comments must be received by August 
27, 2003. Comments received after that date will be considered to the 
extent possible without incurring additional expense or delay.

ADDRESSES: You may submit comments [identified by DOT DMS Docket Number 
FRA 2001-11068, Notice No. 4] by any of the following methods:
    [sbull] Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    [sbull] Fax: 1-202-493-2251.
    [sbull] Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
    [sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 
p.m., Monday through Friday, except Federal Holidays.
    [sbull] Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to http://dms.dot.gov including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal Holidays.

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

[[Page 44277]]

Counsel, RCC-11, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 
20590 (telephone 202-493-6038).

SUPPLEMENTARY INFORMATION: 

Public Participation

    FRA invites interested persons to participate in this rulemaking by 
submitting written comments, data, or views. We also invite comments 
relating to the economic, environmental, energy, or federalism impacts 
that might result from adopting the proposals in this document. The 
most helpful comments reference a specific portion of the proposal, 
explain the reason for any recommended change, and include supporting 
data. We ask that you send us two copies of written documents.
    We will file in the docket all written comments that we receive, as 
well as a report summarizing each substantive public contact with FRA 
personnel concerning this proposed rulemaking. The docket is available 
for public inspection before and after the comment closing date. If you 
wish to review the docket in person, go to the address in the ADDRESSES 
section of this preamble between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal Holidays. You may also review the docket using 
the Internet at the web address in the ADDRESSES section.
    Before acting on this proposal, we will consider all comments we 
receive on or before the closing date for comments. We will consider 
comments filed late if it's possible to do so without incurring expense 
or delay. We may change this proposal in light of the comments that we 
receive.
    If you want FRA to acknowledge receipt of your comments on the 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.

Background

    As stated above, in December 2001, FRA proposed to amend part 219 
by making FRFB employees subject to the employee assistance program, 
random alcohol and drug testing, and pre-employment drug testing 
requirements. In May 2002, two months after FRA had held a public 
hearing and closed the comment period, the Canadian Embassy delivered a 
diplomatic note objecting to the proposed rule, while in July 2002 the 
Canadian Human Rights Commission issued a long-awaited policy (Policy) 
on the alcohol and drug testing of workers. In response to these 
developments, FRA published a notice (67 FR 75996, December 10, 2002) 
which asked for comment on the Policy and reopened the comment period 
until further notice to allow for additional consultations with Canada 
and Mexico. Since then, FRA has twice had the opportunity to discuss 
these issues: first, at the annual Transport Canada/FRA meeting in 
March 2003 and, more recently, at the Land Transportation Standards 
Subcommittee meeting in May 2003. At the latter meeting FRA also 
discussed the NPRM with representatives of the Mexican Government; the 
Mexican representatives indicated that Mexico would be issuing 
regulations in the near future that would be compatible with FRA's 
rules.
    Based upon the considerations discussed among FRA and the 
representatives of the Canadian and Mexican governments, as well as 
other comments to the docket, FRA intends to issue a final rule that 
would revise the NPRM as outlined below. FRA believes that the final 
rule will reasonably address the concerns which Canadian and Mexican 
representatives expressed during the consultation process. FRA will, of 
course, carefully consider any comments that are filed when issuing the 
final rule.
    1. The proposed rule will be made final, but with significant 
revisions.
    2. FRA will include in the final rule an exclusion permitting 
foreign-based employees of foreign railroads to enter into the United 
States to perform train or dispatching service for a distance of up to 
10 route miles under the present exceptions (which will have the effect 
of facilitating interchange with U.S. railroads at the majority of 
current gateways). FRA will work with Transport Canada to confirm the 
locations and mileage of existing Canadian gateways.
    3. FRA will entertain and consider requests for waiver in other 
circumstances where consistent with railroad safety and in the public 
interest. Existing crew assignments will remain subject to the current 
exceptions until waiver requests can be considered on their merits, 
provided such requests are filed within 120 days of the publication of 
the final rule.
    4. Obligations of foreign railroads with respect to testing may, at 
the election of the railroad, be conducted on U.S. soil. Any employee 
testing positive or refusing a test will be subject to removal from 
service only with respect to service in the U.S. Canadian and Mexican 
railroads will otherwise be free to handle such employees under 
applicable law in their home countries.
    5. Even where no exception or waiver applies, FRA will except 
current employees from pre-employment drug testing requirements. Only 
employees entering train or dispatching service in the U.S. after the 
effective date of the final rule will be required to be pre-employment 
tested. (This is consistent with FRA's approach to U.S. workers as the 
pre-employment drug testing program was initiated.) Again, FRA is 
indifferent to whether specimens are collected in Canada (for Canadian 
railroads), Mexico (for Mexican railroads), or the U.S., so long as 
United States Department of Transportation workplace procedures (49 CFR 
part 40) are observed and records are maintained as required. Canadian 
and Mexican employers remain free to retain any employee testing 
positive or refusing a test, although these employees may not be used 
for service in the U.S.
    6. The final rule will also allow FRA's Associate Administrator for 
Safety to recognize a foreign government's program as compatible to 
that of FRA. To be so recognized, the foreign government program must 
include the essential elements of part 219, including pre-employment 
testing and random testing, and adopt testing procedures, criteria and 
assays equivalent to those used in part 40. Once granted, program 
recognition remains valid so long as the program retains these elements 
and foreign-based railroads comply with the program's requirements.
    FRA believes that the approach outlined above is the best 
compromise that can be fashioned to accommodate the concerns of some 
commenters while continuing to be responsible for control of alcohol 
and drug use in railroad operations within U.S. borders.

    Issued in Washington, DC on July 22, 2003.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 03-19042 Filed 7-25-03; 8:45 am]
BILLING CODE 4910-06-P