[Federal Register Volume 69, Number 70 (Monday, April 12, 2004)]
[Rules and Regulations]
[Pages 19270-19289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7544]



[[Page 19269]]

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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 219



Control of Alcohol and Drug Use: Expanded Application of FRA Alcohol 
and Drug Rules to Foreign Railroad Foreign-Based Employees Who Perform 
Train or Dispatching Service in the United States; Final Rule

  Federal Register / Vol. 69, No. 70 / Monday, April 12, 2004 / Rules 
and Regulations  

[[Page 19270]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

[Docket No. FRA 2001-11068, Notice No. 5]
RIN 2130-AB39


Control of Alcohol and Drug Use: Expanded Application of FRA 
Alcohol and Drug Rules to Foreign Railroad Foreign-Based Employees Who 
Perform Train or Dispatching Service in the United States

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

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SUMMARY: In 2001, FRA proposed to make 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''). After a public hearing, 
a review of the comments, and consultations with the Canadian and 
Mexican governments, FRA is issuing a final rule that differs from the 
proposal in four ways; the two most significant revisions are 
summarized below.
    First, the final rule allows FRFB employees to enter into the 
United States for a distance of up to 10 route miles and remain 
excepted, as before, from FRA's requirements for employee assistance 
programs, pre-employment drug testing, and random alcohol and drug 
testing. Second, the final rule allows FRA's Associate Administrator 
for Safety to recognize a foreign railroad's substance abuse program 
promulgated under the laws of its home country as a compatible 
alternative to the return-to-service requirements if the program 
includes equivalents to these FRA provisions, and testing procedures, 
criteria, and assays reasonably comparable in effectiveness to all 
applicable provisions of DOT's procedures for workplace drug and 
alcohol testing programs.

DATES: This rule is effective on June 11, 2004.
    Any petition for reconsideration of this final rule must be 
submitted not later than June 11, 2004.

ADDRESSES: Petitions for reconsideration must reference the FRA docket 
and notice numbers (FRA Docket No. FRA 2001-11068, Notice No. 5). You 
may submit your petition and related material by only one of the 
following methods:
     Web site: http://dms.dot.gov. Follow the 
instructions for submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. 
Department of Transportation, 400 Seventh Street, SW., Nassif Building, 
Room PL-401, Washington, DC 20590-001.
     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.
     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, petitions 
for reconsideration, and additional information on the rulemaking 
process, see the Public Participation heading of the Supplementary 
Information section of this document. Note that all petitions 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, 
comments, or petitions 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 Counsel, RCC-11, 1120 Vermont Avenue, NW., Mail Stop 10, 
Washington, DC 20590 (telephone 202-493-6038).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Summary of the Final Rule
II. Statutory Background: the Omnibus Transportation Employee 
Testing Act of 1991 and its Implementation
III. Proceedings in the Present Rulemaking
IV. FRA's Consultations with the Governments of Canada and Mexico
    A. The Canadian Human Rights Commission Policy Statement on 
Alcohol and Drug Testing
    B. FRA's Consultations with the Government of Canada
    C. FRA's Consultations with the Government of Mexico
V. Public Comments and FRA's Response to those Comments
    A. Comments Filed in Response to the December 11, 2001 NPRM
    1. The Issue of Whether to Require Random Testing of FRFB Train 
and Dispatching Service Employees
    2. Other Issues Raised by Extraterritorial Application of Part 
219
    B. Comments Filed in Response to the July 28, 2003 Notice
VI. Alternative Options that FRA Considered But Did Not Adopt
    A. Adopt the NPRM as Proposed
    B. Grandfather Canadian and Mexican Cross-Border Train and 
Dispatching Service Operations in Existence as of the Date of 
Publication of the Final Rule
VII. Section-by-Section Analysis
VIII. Regulatory Impact
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act
List of Subjects

I. Summary of the Final Rule

    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, 
and post-accident testing and reasonable suspicion testing requirements 
in FRA's alcohol and drug regulations (part 219). The NPRM proposed to 
apply all of part 219 to FRFB employees (unless their employer 
qualified as a small railroad) and to persons applying for such service 
by making them subject to FRA's employee assistance program 
requirements, pre-employment drug testing, and random alcohol and drug 
testing (respectively, subparts E, F, and G of part 219). (FRFB 
employees who enter the United States to perform signal service would 
not have been included because of their current de minimis impact on 
rail operations in the United States.) The final rule mirrors the NPRM 
with the following four significant revisions:
    (1) Under the final rule, FRFB employees will be allowed to enter 
into the United States for a distance of up to 10 route miles (up to 20 
train-miles round-trip) without being subject to the employee 
assistance program requirements, pre-employment testing,

[[Page 19271]]

and random testing requirements of part 219. FRA believes that allowing 
a 10-mile ``limited haul exception'' will facilitate the interchange of 
trains in the United States between Canadian and United States 
railroads, and between Mexican railroads and United States railroads, 
since 28 of the current 34 Canadian railroad operations in the United 
States will be excepted from full application of part 219, as will all 
six of the current Mexican railroad operations in the United States. 
(The current cross-border railroad operations originating from Canada 
and Mexico are listed at the end of this rule.) For the most part, 
existing cross-border railroad operations occur on short segments of 
track in the United States and proceed to the closest convenient 
location for handover of the operation from the foreign-based railroad 
crew to the United States-based railroad crew. Since the implementation 
of FRA's post-accident testing program in 1986, there have been few 
accidents or incidents reported on cross-border railroad operations 
significant enough to require post-accident testing, and there have 
been no positive test results. FRA will therefore except cross-border 
railroad operations of 10 route miles or less from full application of 
part 219 since the safety risks on these short movements appear to be 
small.
    Current or new cross-border railroad operations that proceed more 
than 10 route miles into the United States will be subject to the 
employee assistance program requirements, pre-employment testing, and 
random testing requirements of part 219 unless a waiver is granted. 
(See discussion of waiver requests below.) In addition to the longer 
distances traveled in the United States, several of the current longer 
segments involve other significant risk factors, such as high volumes 
of hazardous material traffic or passage through heavily populated 
areas. For example, each of the two longest segments, where crews 
respectively operate 54 and 74 miles into the United States, runs 
through at least 70 public highway-grade crossings before terminating 
in the Detroit, Michigan, metropolitan area.
    (2) A foreign railroad will be allowed to petition FRA to waive 
application of subparts E, F, and G of part 219 for any cross-border 
railroad operation that becomes subject to these subparts by virtue of 
this rule. FRA will consider each such petition to determine if waiving 
application of these subparts on the subject operation is consistent 
with railroad safety and in the public interest. If a petition for 
waiver with respect to existing cross-border railroad operations is 
filed within 120 days of the publication of this rule, the existing 
cross-border crew assignments on the operation subject to the petition 
will continue to be excepted from subparts E, F, and G until FRA 
decides the petition. FRA's determination process will include 
appropriate investigation and opportunity for public comment.
    A foreign railroad beginning a new cross-border operation that 
proceeds more than 10 route miles into the United States, or expanding 
an existing cross-border operation beyond the 10-mile limited haul 
exception, may file a petition in accordance with FRA's rules of 
practice (49 CFR part 211) to waive the application of subparts E, F, 
and G on that operation not later than 90 days before commencing the 
cross-border operation for it to be considered by FRA. FRA will attempt 
to decide such petitions within 90 days. If no action is taken on the 
petition within 90 days, the petition remains pending for decision, and 
the cross-border crew assignments covered by the petition will be 
subject to subparts E, F, and G until FRA grants the petition should 
the petitioner commence the proposed operation.
    (3) A foreign railroad will be allowed, at its option, to choose to 
comply with this part by conducting FRA-required testing entirely on 
United States soil. A Canadian or Mexican railroad required to comply 
in full with part 219 requirements will be permitted to collect FRA-
required specimens in its home country or in the United States, so long 
as the DOT workplace testing procedures (49 CFR part 40) are observed 
and records are maintained as required. For a railroad to do so, 
testing must be conducted at a laboratory currently certified as 
meeting the standards contained in subpart C of the Mandatory 
Guidelines for Federal Workplace Drug Testing Programs (59 FR 29916, 
29925) issued by the United States Department of Health and Human 
Services (HHS).\1\ A foreign railroad will be allowed to fulfill FRA's 
random testing requirements without having to collect specimens in its 
home country by arranging to have contract collectors collect the 
required specimens while its employees are working in the United 
States.
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    \1\ The Standards Council of Canada voted to end its Laboratory 
Accreditation Program for Substance Abuse (LAPSA) effective May 12, 
1998. Laboratories certified through that program were accredited to 
conduct forensic urine drug testing as required by DOT regulations. 
As of that date, the certification of those accredited Canadian 
laboratories has continued under DOT authority. The responsibility 
for conducting quarterly performance testing and periodic on-site 
inspections of those LAPSA-accredited laboratories was transferred 
to the HHS, with the HHS' National Laboratory Certification Program 
(NLCP) contractor continuing to have an active role in the 
performance testing and laboratory inspection processes.
    Other Canadian and foreign laboratories wishing to be considered 
for the NLCP may apply directly to the NLCP contractor just as 
United States laboratories do. Upon finding a foreign laboratory to 
be qualified, HHS will recommend that DOT certify the laboratory 
(Federal Register, July 16, 1996) as meeting the minimum standards 
of the Mandatory Guidelines published on June 9, 1994 (59 FR 29908) 
and on September 30, 1997 (62 FR 51118). After receiving DOT 
certification, the laboratory will be included in the monthly list 
of HHS-certified laboratories and participate in the NLCP 
certification maintenance program.
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    As always, a foreign railroad will continue to be allowed to retain 
an employee who tests positive or refuses a part 219 test; although the 
foreign railroad may not use the employee for train or dispatching 
service in the United States for a period of nine months. Canadian and 
Mexican railroads will continue to remain otherwise free to handle 
their employees under the applicable law and agreements in their home 
countries.
    (4) The final rule will add a provision allowing FRA's Associate 
Administrator for Safety to recognize a foreign railroad's workplace 
testing program promulgated under the laws of its home country as a 
compatible alternative to the return-to-service requirements in subpart 
B, and subparts E, F, and G of this part, with respect to the foreign 
railroad's foreign-based employees who perform train or dispatching 
service in the United States. To be recognized as a compatible 
alternative, the foreign railroad's program must include equivalents to 
these FRA provisions, and use testing procedures, criteria and assays 
reasonably comparable in effectiveness to those in DOT's procedures for 
drug and alcohol workplace testing programs (49 CFR part 40, 
incorporated by reference in subpart H of this part) in its equivalent 
provisions to the return-to-service requirements in subpart B, and 
subparts E, F, and G of this part. In approving a program under this 
section, the FRA Associate Administrator for Safety may impose 
conditions deemed necessary. Upon FRA's recognition of a foreign 
railroad's workplace testing program as a compatible alternative, the 
foreign railroad may comply with the standards of the recognized 
program while operating in the United States as an alternative to 
complying with the enumerated subparts of this part.\2\ If its

[[Page 19272]]

program has been recognized, the foreign railroad shall maintain a 
letter on file indicating that it has elected to extend specified 
elements of the recognized program to its operations in the United 
States. Once granted, program recognition remains valid so long as the 
program retains these elements and the foreign railroad complies with 
the program requirements.
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    \2\ While operating in the United States the FRFB employees will 
continue to be subject to FRA's general prohibitions, post-accident 
testing, and reasonable suspicion testing requirements (subpart A, 
subpart B other than the return-to-service requirements in Sec.  
219.104(d), subpart C, mandatory reasonable suspicion testing in 
Sec.  219.300 in subpart D, and subparts H, I, and J).
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II. Statutory Background: The Omnibus Transportation Employee Testing 
Act of 1991 and Its Implementation

    In 1991, Congress passed the Omnibus Transportation Employee 
Testing Act of 1991, Pub. L. No. 102-143 (``Omnibus Act''or ``Act''). 
The Omnibus Act mandated FRA, the Federal Aviation Administration 
(FAA), the Federal Highway Administration (FHWA, whose Office of Motor 
Carrier Safety is now part of the Federal Motor Carrier Safety 
Administration (FMSCSA)), and the Federal Transit Administration, to 
add new alcohol and drug program requirements for their respective 
regulated industries. FRA subsequently fulfilled the Act's mandates by 
adding pre-employment testing and random alcohol testing to an already 
comprehensive drug and alcohol program that included random drug 
testing (59 FR 7613, February 15, 1994).
    The Omnibus Act also mandated each agency to act consistent with 
the international obligations of the United States, and to take foreign 
countries' laws and regulations into account in fulfilling the Act's 
regulatory requirements. 49 U.S.C. 20140(e). In 1992, FRA published an 
advance notice of proposed rulemaking (ANPRM) asking for comment on 
international application of its alcohol and drug regulations to 
foreign railroad foreign-based railroad employees who cross into the 
United States to work. FRA received no comments and terminated its 
rulemaking in 1994.
    FAA, which had simultaneously published a similar ANPRM with 
respect to its alcohol and drug rule, terminated its international 
application rulemaking in 2000, after deciding that application of its 
regulations to foreign-based flight personnel would be better handled 
through safety standards negotiated within the International Civil 
Aviation Organization (ICAO) (a specialized United Nations agency 
responsible for setting global standards for international civil 
aviation), than through a rulemaking. FHWA (as stated above, now 
FMCSA), which had also published a similar ANPRM, took a different 
approach and in 1995 issued a final rule applying all of its alcohol 
and drug regulations (including pre-employment and random drug testing) 
to truck and bus drivers and their employers who operate in the United 
States, regardless of domicile.

III. Proceedings in the Present Rulemaking

    On December 11, 2001, FRA proposed to amend its regulation on the 
control of alcohol and drug use to narrow the scope of its existing 
exceptions for FRFB employees. 66 FR 64000. FRA also invited comments 
on whether it should expand the scope of events that trigger post-
accident testing (subpart C) and reasonable suspicion testing (subpart 
D) to include events that occur outside the United States, and FRA 
raised for comment several practical issues associated with the 
extraterritorial application of part 219.
    Currently, an FRFB employee who enters the United States to perform 
train, dispatching, or signal service is subject only to the provisions 
on general conditions, prohibitions, post-accident testing, reasonable 
suspicion testing (accident/incident testing and rule violation testing 
are authorized, but not required, for both FRFB and domestic rail 
employees), testing procedures, annual report, and recordkeeping of 
FRA's alcohol and drug rules (respectively, all of subparts A, B, C, 
and Sec.  219.300 (reasonable suspicion testing) in subpart D, and 
subparts H. I, and J of part 219) under paragraph (c) of Sec.  219.3. 
In the NPRM, FRA proposed to apply subparts E (identification of 
troubled employees), F (pre-employment testing), and G (random testing) 
to FRFB train and dispatching service employees, who had previously 
been excepted from these requirements, unless their employer qualified 
as a small railroad under the proposed Sec.  219.3(b). FRA's proposal 
to narrow the current exceptions for FRFB employees arose from its 
concerns about the projected steady increase in the number and extent 
of cross-border train operations due to the continuing consolidation of 
North American railroads. Under this proposal, only FRFB signal service 
employees, who are currently few in number, would continue to be 
excepted from the requirements of subparts E, F, and G.
    The most controversial part of the NPRM was its proposal to include 
random alcohol and drug testing as part of a more comprehensive testing 
program for FRFB employees who perform train or dispatching service in 
the United States. As noted in the preamble to the NPRM, alcohol or 
drug use has resulted in serious accidents in the United States (e.g., 
marijuana use was implicated in a 1987 collision between two trains at 
Chase, Maryland, which killed 16 people and injured 174). FRA believes 
that random alcohol and drug testing is an effective and necessary 
deterrent to substance abuse by road train crews and road switching 
crews, who normally work independent of supervisory monitoring, and to 
dispatching service employees, who are critical to rail safety because 
they determine the movements and speed of trains. Train employees, in 
general, including engineers, conductors, switchmen, trainmen, 
brakemen, and hostlers, pose a significant safety risk to themselves 
and others if their judgment and motor skills are impaired by the use 
of alcohol or drugs.
    FRA's experience with administering part 219 has shown that random 
alcohol and drug testing helps to deter alcohol and drug usage and to 
identify individuals who have a substance abuse problem. Since 
mandatory FRA random drug testing began in 1989, the positive drug rate 
for the United States rail industry has declined from 1.04 percent in 
1990 to 0.77 percent in 2001. A positive drug test result can indicate 
on-duty impairment if the test was conducted shortly after the 
employee's ingestion of an illegal substance (since random testing may 
be conducted only when an employee is on duty). However, even if a test 
were conducted some time after the employee's ingestion, a positive 
result still provides valuable safety information since it establishes 
that the employee has a history of drug use. Use of controlled 
substances is typically compulsive behavior that is likely to be 
repeated, and the chronic and withdrawal effects of drugs are 
frequently as serious as the acute effects.
    Through its Management Information System (subpart I of part 219, 
discussed below), FRA obtains data annually from the larger domestic 
railroads on the training and testing results of their alcohol and drug 
misuse prevention programs. FRA examines the collective data from these 
reports to gauge substance abuse trends in the rail industry, such as 
the overall industry positive rate, which determines the following 
year's minimum annual percentage rate for random drug and random 
alcohol testing. Because Transport Canada does not have comparable 
reporting requirements for Canadian railroads, similar data on the 
extent of substance abuse in the Canadian rail industry are not 
available.
    In the NPRM, FRA also proposed to amend paragraphs (b)(2) and (3) 
of Sec.  219.3 to take into account a railroad's

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operations outside the United States in determining its size for two 
exceptions. Currently, Sec.  219.3(b)(2) provides relief from subparts 
D, E, F, and G for certain small railroads. A small railroad is defined 
as one that (1) does not operate on the track of another railroad or 
otherwise engage in joint operations with 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 exception, at Sec.  
219.3(b)(3), provides relief from subpart I (annual reports) for a 
railroad with fewer than 400,000 employee-hours. FRA proposed to reduce 
the scope of the two exceptions at Sec. Sec.  219.3(b)(2) and 
219.3(b)(3) to provide relief only to relatively small railroads, as 
originally intended, by taking into account a railroad's operations 
outside the United States in determining the size of the railroad for 
purposes of those exceptions.
    Finally, the NPRM also contained an invitation to discuss part 219 
implementation issues, and a request for comment on whether FRA should 
expand the basis for requiring post-accident testing and reasonable 
suspicion testing to include events that occur outside the United 
States.
    In a separate notice, FRA announced a public hearing on the NPRM 
(67 FR 3183, January 23, 2002). At the February 14, 2002 hearing, FRA 
heard testimony from the Canadian National Railway Company (CN), the 
Canadian Pacific Railway Company (CP), and two Canadian counterparts of 
American railroad unions, the Brotherhood of Locomotive Engineers (BLE-
Can.) and the United Transportation Union (UTU-Can.). A transcript of 
this hearing is available in the public docket of this rulemaking. At 
the hearing, FRA also extended the comment period 30 days to allow 
interested parties time to supplement the record.
    On July 10, 2002, several months after the comment period had 
closed, the Canadian Human Rights Commission (CHRC or Commission) 
issued a Policy Statement on Alcohol and Drug Testing (CHRC Policy). To 
consider the implications of this major statement, FRA published a 
notice (December 10, 2002, 67 FR 75996) inviting comment on the CHRC 
Policy and extending the comment period on the NPRM until further 
notice to enable the agency to consult further with the Governments of 
Canada and Mexico.
    As discussed in detail below, FRA has since consulted with both 
Canada and Mexico on this rulemaking and other issues. In a July 28, 
2003 notice (68 FR 44276), FRA outlined the likely revisions to the 
NPRM, based on these consultations and consideration of other public 
comments. FRA also announced that the comment period on this rulemaking 
would close on August 27, 2003, and invited comments on the changes to 
the NPRM that the agency was considering. The public comments filed in 
response to the notice will be discussed later in this preamble.

IV. FRA's Consultations With the Governments of Canada and Mexico

A. The Canadian Human Rights Commission Policy Statement on Alcohol and 
Drug Testing

    In the CHRC Policy, the Commission found four types of testing not 
to be bona fide occupational requirements and, therefore, unacceptable 
types of testing in Canada: Pre-employment drug testing, pre-employment 
alcohol testing, random drug testing, and random alcohol testing of 
employees in non-safety-sensitive positions. Two of these four types of 
testing, namely pre-employment alcohol testing, which is authorized but 
not required by part 219, and random alcohol testing of non-safety-
sensitive employees, which is neither authorized nor required by part 
219, are not at issue here. The CHRC Policy did, however, recognize 
that Canadian trucking and bus companies wishing to do business in the 
United States present a special case and may be required to develop 
drug and alcohol-testing programs that comply with United States 
(FMCSA) alcohol and drug regulations applicable to Canadian truck and 
bus drivers who operate in the United States. Nevertheless, the 
programs would have to respect Canadian human rights laws.
    FRA has attempted to harmonize the final rule to the Commission's 
concerns about pre-employment drug testing and random drug testing to 
the extent practicable. FRA has accordingly limited the application of 
pre-employment drug testing to FRFB employees so that a pre-employment 
drug test is required only when both of the following conditions apply: 
(1) The FRFB employee performs train or dispatching service for a 
railroad for the first time after the effective date of this rule, and 
(2) the FRFB performs such service on a cross-border operation beyond 
the 10-mile limited haul exception adopted in this rule. Thus, an FRFB 
employee who is currently performing train or dispatching service on a 
cross-border operation will be excepted from pre-employment drug 
testing, regardless of whether that operation falls within the 10-mile 
limited haul exception; conversely, an FRFB employee performing train 
or dispatching service on a cross-border operation for the first time 
will only be required to undergo a pre-employment drug test if that 
operation proceeds beyond the 10-mile limited haul exception.
    With respect to random drug testing, however, FRA disagrees with 
the Commission's finding that this type of testing is not reasonably 
necessary to the accomplishment of a legitimate, safety-related 
purpose. Unlike Canada, the United States has adopted a policy 
recognizing that misuse of controlled substances is inconsistent with 
the obligations of transportation employees because of the acute, 
chronic, or withdrawal effects of such misuse. Random testing is a 
legitimate means of detecting and deterring such misuse. Again, 
however, FRA is willing to limit the impact of its random drug testing 
requirements by limiting application only to FRFB employees who operate 
more than 10 route miles into the United States. FRA notes too, that 
the Commission found cross-border trucking and bus operations to be ``a 
special case'' under which Canadian trucking and bus companies that 
conduct extensive cross-border operations may be required to develop 
drug and alcohol testing programs that comply with United States 
regulations, and employees of such companies may be found to have a 
bona fide occupational requirement in not being banned from driving in 
the United States.

B. FRA's Consultations With the Government of Canada

    In a diplomatic note dated May 16, 2002, the Embassy of Canada 
(Embassy) requested that FRA ``formally recognize the regulatory manner 
in which Canada deals internally with its substance use issues in the 
railway industry as providing a safety equivalent, if not identical, to 
that of the United States, and to withdraw the extra-territorial 
application portions of the current NPRM.'' As support for Canadian 
safety regulatory equivalence, the Embassy and CN and CP in their 
comments, cited the following safeguards: (1) The Canadian railroads' 
operating Rule G, which, like the longstanding United States rail 
industry rule, prohibits the use of intoxicants or narcotics by 
employees subject to duty, or their possession or use while on duty; 
(2) the Canadian railroads' implementation of comprehensive drug and 
alcohol programs that, except for random testing, are similar to those 
required by FRA; (3) the Railway Safety Management System Regulations, 
which

[[Page 19274]]

require Canadian railroads to implement and maintain safety programs; 
(4) the Canadian Railway Safety Act, which mandates regular medical 
examinations for all persons occupying safety-critical positions 
(including train crews), and which requires physicians and optometrists 
to notify the railroad's Chief Medical Officer if a person occupying a 
safety-critical position has a medical condition that could be a threat 
to safe railroad operations; and (5) Transport Canada's role in 
monitoring operating crew compliance with Rule G and auditing railroad 
safety programs.
    The Embassy's note also stated that Canada does not believe that 
FRA has proven safety or security reasons to support the 
extraterritorial application of part 219 to the Canadian rail industry, 
or that FRA has jurisdiction to impose the rule in Canada. Furthermore, 
the Embassy stated, any requirement to conduct random drug testing of 
Canadian-based employees would likely be challenged under the privacy 
provisions of the Canadian Charter of Rights and Freedoms, and the 
Canadian Human Rights Act. For these reasons, the Embassy recommended 
that FRA withdraw the NPRM, and continue to work with Transport Canada 
to establish a Canada-United States rail safety working group that 
would explore areas of bilateral cooperation.
    FRA has since consulted both formally and informally with Transport 
Canada on this rulemaking and other topics. FRA and Transport Canada 
meet annually to share information on regulatory initiatives, safety 
programs, and current issues; this year's joint session included a 
discussion of this rulemaking. FRA also discussed this rulemaking with 
Transport Canada and its Mexican counterpart, the Secretaria de 
Comunicaciones y Transportes, at another annual meeting, the Land 
Transportation Standards Subcommittee/Transportation Consultation Group 
(LTSS) meeting, an annual forum where representatives from DOT and the 
Canadian and Mexican governments discuss cross-border transportation 
issues. At the 2003 LTSS meeting, Transport Canada presented FRA with a 
list of four Part 219 rulemaking options for discussion. Transport 
Canada's options are listed in italics, with FRA's response below.
    (a) Continue the current exception for Canadian-based crews, in 
recognition of Canada's rail safety programs and as a reciprocal 
response to Transport Canada's limited exclusion of United States-based 
crews from Canadian medical examination requirements. Transport Canada 
and FRA have reciprocally recognized each other's policies before (for 
example, each recognizes the other's engineer qualification 
requirements). Reciprocity is a significant objective of both the 
Canadian and United States Governments and benefits United States 
carriers conducting operations in Canada.
    Transport Canada has allowed, on a case-by-case basis, United 
States-based crews to enter Canada for short distances without 
complying with Transport Canada's medical standards program, for which 
there is no FRA equivalent. Similarly, FRA will allow, through the 10-
mile limited haul exception adopted in this rule, Canadian-based crews 
to enter the United States for short distances without complying with 
FRA's random testing program (or its employee assistance and pre-
employment drug testing programs), for which there is no Transport 
Canada equivalent. Application of FRA's full alcohol and drug 
requirements will be limited to those cross-border operations that run 
more extensively into the United States, for which FRA believes the 
requirements are necessary to protect the safety of United States 
railroad operations. As will be discussed in the public comments 
section which follows, the Canadian regulatory program is not the 
functional equivalent to subparts E, F, and G of part 219.
    The 10-mile limited haul exception recognizes the fact that most 
movements handled by Canadian-based crews are limited in distance and 
generally involve delivery in interchange to United States carriers. 
However, acquisition of Class I and Class II United States railroads by 
the two major Canadian railways makes it likely that this pattern will 
change over time, with longer ``interdivisional'' runs penetrating more 
deeply into the United States.
    (b) Automatically grandfather all Canadian cross-border operations 
existing as of January 1, 2004. The 10-mile limited haul exception 
discussed above achieves the functional equivalent to grandfathering 
for all but the six longest Canadian cross-border routes, since 29 of 
the 35 current segments (listed at the end of this rule) extend into 
the United States 10 route miles or less. (The 10-mile limited haul 
exception also excepts all current Mexican cross-border railroad 
operations). The remaining six Canadian cross-border segments not only 
extend significantly farther into the United States (the longest three 
segments are 40, 54, and 78 miles long, respectively), but often pose 
other safety risks. Two of these segments carry large volumes of 
hazardous material, while the longest two segments run through Detroit, 
Michigan.
    (c) Grant waivers for Canadian-based crews in cross-border railroad 
operations in accordance with criteria similar to those adopted in 
FRA's rule on locational dispatching (49 CFR part 241).\3\
---------------------------------------------------------------------------

    \3\ The part 241 rulemaking (FRA Docket No. 2001-8728) dealt 
with the issue of whether FRA should permit extraterritorial 
dispatching (the act of dispatching of a railroad operation that 
occurs on trackage in the United States by a dispatcher located 
outside the United States). FRA issued part 241 as a final rule on 
December 10, 2002 (67 FR 75938).
---------------------------------------------------------------------------

    As mentioned above, foreign-based railroads may petition for 
waivers of subparts E, F, and G of this part for the few cross-border 
operations that are fully subject to part 219 by virtue of extending 
more than 10 route miles into the United States. If FRA finds that a 
waiver of compliance is in the public interest and consistent with rail 
safety, FRA may grant the waiver subject to any conditions that FRA 
deems necessary. If a petition for a waiver with respect to existing 
cross-border operations is filed within 120 days of the publication 
date of this rule, the existing crew assignments covered by the 
petition will remain excepted from subparts E, F, and G while FRA until 
the waiver request is acted upon by FRA. If the waiver petition is 
filed beyond the 120-day period, the foreign railroad must comply with 
subparts E, F, and G while its petition for waiver is being considered 
by FRA.
    A foreign railroad beginning a new cross-border operation that 
proceeds more than 10 route miles into the United States, or expanding 
an existing cross-border operation beyond the 10-mile limited haul 
exception, may file a petition in accordance with FRA's rules of 
practice (49 CFR part 211) to waive the application of subparts E, F, 
and G on that operation not later than 90 days before commencing the 
cross-border operation for it to be considered by FRA. FRA will attempt 
to decide such petitions within 90 days. If no action is taken on the 
petition within 90 days, the petition remains pending for decision and 
the cross-border crew assignments covered by the petition will be 
subject to subparts E, F, and G until FRA decides the petition should 
the petitioner commence the proposed operation.
    (d) Apply part 219 requirements to Canadian-based crews only while 
they are operating within the United States.
    Under this rule, only Canadian-based train and engine crews 
employed by foreign railroads who operate on

[[Page 19275]]

extensive cross-border routes will be subject to FRA random testing. As 
discussed above, such testing will be allowed to be accomplished 
without requiring random testing specimens to be collected in Canada. 
Canadian railroads generally have United States subsidiaries that could 
easily manage such programs for collection and testing; FRA is 
committed to working with these railroads to develop and implement 
programs that meet FRA requirements.

C. FRA's Consultations With the Government of Mexico

    At this year's LTSS meeting, the Secretaria de Comunicaciones y 
Transportes committed to making Mexico's drug and alcohol program for 
the railroad industry fully compatible with DOT requirements, including 
random alcohol and random drug testing, with the goal of complete 
mutual recognition between the two programs. The Mexican Constitution 
does not prohibit the Mexican Government from requiring random alcohol 
or drug testing of its citizens, and the Mexican Government routinely 
conducts its own alcohol testing during motor vehicle equipment checks 
(approximately two million tests annually, including a minimum of two 
random tests per year for each transportation employee). Mexico also 
conducts daily on-site fitness-for-duty checks. The Secretaria de 
Comunicaciones y Transportes anticipates expanding Mexico's program by 
requiring testing of FRFB employees as one condition to entry (visual 
and hearing acuity and other examinations would also be performed by 
physicians stationed at the border or in mobile medical units).
    In general, Mexican-based train crews employed by Mexican railroads 
currently hand United States-bound trains off either at the border or 
within one mile of their entry into the United States. As Mexican 
railroads already have major United States participation in both 
capital and organization, this pattern will likely change over time, 
with Mexican-based crews operating longer runs into the United States. 
FRA anticipates that further integration of the North American rail 
networks may result in more extensive sharing of North American routes 
by affiliated or allied carriers. The final rule allows FRA's Associate 
Administrator for Safety to recognize a foreign railroad's alcohol and 
drug program as compatible to that of FRA if the foreign railroad's 
program contains the various elements covered by part 219.

IV. Public Comments and FRA's Response to Those Comments

A. Comments Filed in Response to the December 11, 2001 NPRM

    Two domestic trade associations submitted written comments to the 
NPRM: The Association of American Railroads (AAR) and the Drug and 
Alcohol Testing Industry Association (DATIA). In addition to the 
Canadian Government, the Canadian commenters to the NPRM were the 
Railway Association of Canada (RAC), CN, CP, the BLE-Can., the UTU-
Can., and Barbara Butler, a Canadian consultant. Of these comments, 
only those from DATIA fully supported FRA's proposal. There were no 
comments from the Government of Mexico or from Mexican railroads.
    The Canadian comments all centered around random testing, which is 
controversial in Canada. CN supported FRA's proposal to require random 
testing of safety-sensitive employees, but only if such testing was 
also required by Transport Canada. Without Transport Canada's support, 
CN was concerned that its employees would likely challenge CN's 
implementation of FRA's proposed random testing requirements, and that 
such challenges under current Canadian human rights legislation could 
lead to significant costs and potential disruption to its rail 
operations. CN concluded that expansion of random testing to Canadian-
based employees would best be done if Transport Canada promulgated 
regulations similar to those of FRA. CN therefore urged FRA to continue 
working with Transport Canada to achieve a similar regulatory scheme in 
Canada.
    CP, the AAR, the BLE-Can., and the UTU-Can. opposed random testing. 
A detailed summary of their reasons for doing so, along with FRA's 
responses, is below. For the reasons stated above, FRA is not requiring 
FRFB employees performing cross-border train operations of 10 miles or 
less to be subject to random testing. FRA continues to believe in the 
proven deterrent effect of random testing, however, and FRFB employees 
who perform more extensive cross-border operations are subject to FRA's 
random testing requirements.
1. The Issue of Whether To Require Random Testing of FRFB Train and 
Dispatching Service Employees
    The discussion below is a composite of the objections to random 
testing contained in the Canadian comments to the NPRM. For each item, 
the commenters' objection is in italics and followed by FRA's response.
    a. Canadian railroads operate with FRFB train crews for limited 
distances in the United States. CP estimated that it operates an 
average of 27 trains a day into the United States using Canadian-based 
crews, while CN estimated that approximately 140 of its Canadian-based 
employees are currently in pools that operate into the United States, 
and that this total would increase to 400 FRFB employees if spareboard 
employees who occasionally work in the United States were included. The 
safety record of Canadian-based crews is good over current cross-border 
operations, most of which operate 10 miles or less into the United 
States (see current Canadian and Mexican cross-border operations are 
listed at the end of this rule) and therefore qualify for the limited 
haul exception contained in this rule.
    FRA acknowledges the comments from CP attesting to the fact that 
its cross-border operations have been safely conducted for many years, 
but the nature of these operations can change in the future (for 
example, traffic levels in general and volumes of hazardous materials 
being handled) can greatly increase, thereby increasing the safety risk 
to the areas surrounding that track.\4\
---------------------------------------------------------------------------

    \4\ Between 1998 and 2002, the value of rail traffic moving 
between the United States and Canada has grown from $49.65 billion 
(United States dollars) to $60.94 billion, which is a 22.7 percent 
increase over the period or an annual rate of 5.3 percent. (Since 
the traffic mix has not changed significantly during this period, 
``value'' can be considered a good proxy for physical units such as 
tons or carloads.) Traffic attributable to eastern gateways (Customs 
ports in United States border states of Michigan and eastward) has 
grown more slowly: $28.95 billion (United States dollars) to $33.00 
billion, or 14.0 percent overall, or 3.3 percent per year. It is 
commonly expected that trade between the United States and Canada 
will continue to increase in the future. These data are based on 
USDOT, Bureau of Transportation Statistics, Transborder Surface 
Freight Data public files.
---------------------------------------------------------------------------

    FRA's decision to except cross-border operations of 10 miles or 
less means that only those employees who operate on the six longest 
current Canadian cross-border routes will be subject to random testing. 
FRA chose to set the limited haul exception at 10 miles because its 
main concern was and is the likely expansion of foreign railroad 
operations into United States territory, since FRA anticipates growth 
in both Canadian and Mexican cross-border operations due to trade 
expansion and recent trends in the organization of North American 
railroads as discussed in the preamble to the NPRM. Subsequent to the 
publication of the NPRM the Kansas City Railway Company (KCS) announced 
a series of agreements between separate parents whereby KCS would 
acquire the Texas-Mexican

[[Page 19276]]

Railroad (Tex-Mex) and the Transportacion Ferroviaria Mexicana (TFM--a 
major rail carrier in Mexico), and bring all three under common control 
in a KCS holding company named NAFTA Rail. The acquisition of TFM is 
subject to approval by the Mexican Government and the Surface 
Transportation Board; KCS also needs to overcome TFM shareholder 
opposition to the KCS purchase offer. The approach in this rule seeks 
to minimize conflicts with foreign laws, by impacting only those 
employees who actually engage in extended rail operations in the United 
States.
    b. FRA should take the approach adopted by FAA rather than that 
adopted by FMCSA since the Canadian railroads' cross-border operations 
are very limited while cross-border trucking operations can be quite 
extensive.
    FRA does not agree that FAA's approach is more appropriate than 
that adopted by FMCSA. For example, data supplied by CP stated that in 
1997 there were over 5.7 million trucks crossing from Canada into the 
United States. Despite such numbers (foreign-based truckers have access 
to over 3 million miles of highways in the United States through 
approximately 70 northern border locations), FMCSA has regulated and 
audited foreign Commercial Driver's License holders who operate in the 
United States with few problems since implementation of its program in 
1995. Under FMCSA's program, a combination of Federal and state 
inspectors inspects vehicles engaged in cross-border operations.
    Furthermore, FMCSA and FRA, unlike FAA, share cross-border concerns 
only with Canada and Mexico. As mentioned above, ICAO, an agency with 
187 contracting foreign governments, sets international civil aviation 
standards for the aviation industry. There is no counterpart to ICAO in 
the rail industry. Lastly, FRA anticipates substantial growth in both 
Canadian and Mexican cross-border operations due to trade expansion and 
recent trends in the organization of North American railroads.
    c. There are no data on accidents in the United States involving 
Canadian-based train crews that would justify random alcohol and drug 
testing. Since FRA's accident reporting system does not break out data 
on existing cross-border operations, FRA cannot determine from its 
existing records whether drugs or alcohol have contributed to accidents 
in the United States during cross-border train operations. As mentioned 
earlier, however, and as discussed more fully below, the efficacy of 
random testing as a deterrent program has been demonstrated in the 
United States by the consistent decline in the United States rail 
industry's positive rate since the implementation of random drug 
testing.
    d. Random drug testing detects only past drug use and not current 
levels of impairment. Random testing is conducted to determine whether 
employees are misusing controlled substances. Misuse can have 
detrimental effects on employee fitness whether or not the employee is 
under the acute effects of the drug on the job. FRA's post-accident 
testing program has also identified accidents that have been caused by 
recent usage resulting in the employee's impairment at the time of the 
accident. The rate of positive drug testing results decreased 
significantly when domestic railroad employees became subject to FRA's 
random drug testing requirements. FRA sees no merit in the suggestion 
that FRA encourage Transport Canada to implement random testing. FRA 
has been in conversation with Transport Canada since the late 1980's, 
and has no reason to believe that this approach would be successful.
    e. Regulatory equivalency in Canada justifies the current 
exceptions of FRFB employees from random drug testing. The additional 
deterrence that random testing would provide is unnecessary. The 
commenters cite to the following as five elements of the Canadian rail 
safety program: (1) The Canadian railroads' operating Rule G (Canadian 
Rule G), which prohibits the use of intoxicants or narcotics by 
employees subject to duty, or their possession or use while on duty; 
(2) the Canadian railroads' voluntary implementation of comprehensive 
drug and alcohol programs that provide for pre-employment and pre-
placement (or pre-assignment) drug testing to risk-sensitive positions, 
reasonable cause testing, and return-to-service testing; (3) the 
Railway Safety Management System Regulations, which require Canadian 
railroads to implement and maintain safety programs; (4) the Canadian 
Railway Safety Act, which mandates regular medical examination every 
three to five years, depending upon the age of the employee, for all 
persons occupying safety-critical positions (including train crews), 
and which requires physicians and optometrists to notify the employing 
railroad's Chief Medical Officer if the employee has a medical 
condition that could be a threat to safe railroad operations; (5) 
Transport Canada's role in monitoring compliance with Canadian Rule G 
and auditing railroad safety programs; and (6) criminal prosecutions--
under the Canadian Criminal Code it is an offense to operate railway 
equipment while impaired by alcohol or a drug, or to have a blood 
alcohol concentration level greater than .08 percent.\5\
---------------------------------------------------------------------------

    \5\ Under the Canadian criminal code police officers (including 
railway police officers) are entitled to test for presence of 
alcohol through approved breathalyser machines on reasonable cause. 
Penalties for violation of the criminal code include the possibility 
of fines and imprisonment. CN reported that over the past five years 
there have been four CN employees charged with this offense, one of 
which was a member of a train crew; the others were engineering or 
mechanical employees operating on or off-track equipment. CP 
reported that, between January 1998 and February 2002, five of its 
employees were charged with this offense; seven others were 
investigated but no charges were filed after an arrest, or the 
individuals were cleared of the charge.
---------------------------------------------------------------------------

    CN indicated that despite the drug and alcohol measures that have 
been adopted in Canada, it believed that random drug testing is also 
needed. CN urged FRA to continue to press Transport Canada to adopt a 
random drug testing requirement. However, both CN and CP expressed 
concern that, under current Canadian human rights legislation, 
employees could challenge the application of part 219's random drug 
testing requirement to Canadian railroad employees (such as Canadian 
train crews operating in the United States), and such challenges would 
lead to significant costs and potential disruption to their rail 
operations.
    FRA commends the Canadian railroads and Canadian Government for 
their efforts to stem drug and alcohol abuse by Canadian railroad 
employees. However, FRA believes that the measures that have been 
implemented to date in Canada are neither comparable to the 
requirements of part 219, nor adequate to safeguard United States 
railroad operations were Canadian train crews to engage in extensive 
train operations in the United States. FRA also notes that since July 
1, 1997, Canadian trucking companies with drivers assigned to operate 
commercial motor vehicles in the United States have had to comply with 
United States Department of Transportation substance-testing 
requirements similar to part 219, and that compliance with part 219 (in 
the case of Canadian train crews that operate in the United States) may 
not be as troublesome as CN and CP anticipate.
    Transport Canada has approved Canadian Rule G, which was developed 
by the Canadian railroad industry, but Transport Canada has not 
reviewed and approved individual railroad plans implementing Canadian 
Rule G. \6\ Like

[[Page 19277]]

other aspects of the Canadian regulatory scheme, Canadian Rule G relies 
very much on self-regulation and implementation with broad oversight by 
the Canadian government. Such an approach is in stark contrast to part 
219, which mandates very specific requirements that the testing plans 
of domestic railroads must include.
---------------------------------------------------------------------------

    \6\ The Canadian Rule G provides the following:
    (a) The use of intoxicants or narcotics by employees subject to 
duty, or their possession or use while on duty, is prohibited.
    (b) The use of mood altering agents by employees subject to 
duty, or their possession or use while on duty, is prohibited except 
as prescribed by a doctor.
    (c) The use of drugs, medication or mood altering agents, 
including those prescribed by a doctor, which, in any way, will 
adversely affect their ability to work safely, by employees subject 
to duty, or on duty is prohibited.
    (d) Employees must know and understand the possible effects of 
drugs, medication or mood altering agents, including those 
prescribed by a doctor, which, in any way, will adversely affect 
their ability to work safely.
---------------------------------------------------------------------------

    Canadian Rule G has several significant differences from part 219. 
First, it fails to provide for alcohol and drug testing of railroad 
employees to detect and deter violations. Prior experience with a Rule 
G approach in the United States has revealed that such a rule alone, 
without the random and other tests required by part 219, is not 
effective in detecting and deterring drug and alcohol abuse among 
safety-sensitive railroad employees. Second, Canadian Rule G does not 
directly prohibit the off-duty use of drugs and abuse of alcohol by 
train crews, in contrast to FRA's regulations, which prohibit any off-
duty use of drugs, and which prohibit use of alcohol within four hours 
of reporting for covered service or after receiving notice to report 
for covered service since such usage may ultimately affect an 
individual's performance on the job. See Sec. Sec.  219.101(a)(3) and 
219.102.
    Prior to the adoption of part 219 in 1985, railroads in the United 
States had attempted to deter alcohol and drug use by their employees 
by their Rule G, which prohibited operating employees from possessing 
and using alcohol and drugs while on duty, and from consuming alcoholic 
beverages while subject to being called for duty. The customary 
sanction for violation of Rule G was dismissal. Unfortunately, accident 
reports revealed that the United States railroads' Rule G efforts were 
not effective in curbing alcohol and drug abuse by railroad employees. 
48 FR 30726 (1983). Railroads were able to detect only a relatively 
small number of Rule G violations owing, primarily, to their practice 
of relying on observations by supervisors and co-workers to enforce the 
rule. FRA found that there was a ``conspiracy of silence'' among 
railroad employees concerning alcohol and drug use. 49 FR 24281 (1984). 
Despite Rule G, industry participants confirmed that alcohol and drug 
use occurred on the United States railroads with unacceptable 
frequency. Available information from all sources ``suggest[ed] that 
the problem includ[ed] `pockets' of drinking and drug use involving 
multiple crew members (before and during work), sporadic cases of 
individuals reporting to work impaired, and repeated drinking and drug 
use by individual employees who were chemically or psychologically 
dependent on those substances.'' Id. at 24253-24254. FRA identified 
multiple accidents, fatalities, injuries and property damage that 
resulted from the errors of alcohol- and drug-impaired railroad 
employees. Id. at 24254. Some of these accidents involved the release 
of hazardous material and, in one case, the release required the 
evacuation of an entire Louisiana community. Id. at 24254, 24259. These 
findings led FRA to promulgate the initial version of part 219 in 1985. 
The regulations do not restrict a railroad's authority to impose more 
stringent requirements. 50 FR 31538 (1985).
    A review of the Canadian Rule G violations reported by CP indicates 
that the Canadian Rule G has resulted in the identification of an 
extremely low number of operating crew violators. CP reported that in 
the period 1995-2001, when there were between 3,900 to 4,700 operating 
crew employees per year, there was a total of only 26 Canadian Rule G 
operating crew violators for the period. It is likely that the true 
level of drug and alcohol abuse among Canadian operating crew employees 
was much higher. For example, a 1987 survey commissioned by a Canadian 
Task Force on the Control of Drug and Alcohol Abuse in the Railway 
Industry revealed that 20 percent of 1,000 randomly-selected Canadian 
railway workers admitted that they had come to work feeling the effects 
of alcohol, and 2.5 percent admitted that they had used illegal drugs 
during their shift. In addition, CN's drug screening of its employees 
has shown a significant level of drug abuse among its employees.\7\ 
Furthermore, alcohol and drug testing of safety-sensitive railroad 
employees in the United States found a significantly higher level of 
substance abuse prior to the introduction of random testing.
---------------------------------------------------------------------------

    \7\ CN's submission to a Canadian Standing Committee on 
Transportation noted that CN had utilized pre-employment drug 
screening of job applicants since 1986, and these tests yielded a 
positive rate of 12 percent; similar testing of CN employees 
transferring to safety-sensitive positions (``pre-placement 
testing''), such as dispatcher positions, also yielded a positive 
rate of 12 percent. 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, decision of Arbitrator Michel G. 
Picher at 56 (July 18, 2000). CN drug screening results from of all 
sources (pre-placement, reasonable cause, medical examinations, 
promotions and transfer, reinstatement, and EAP follow-ups) in 1995, 
showed a 6.4 percent positive test rate in the Eastern Canada, and a 
10 percent positive rate in Western Canada. Id. At 59-60.
---------------------------------------------------------------------------

    FRA's own data, compiled from domestic railroad reports, show a 
significantly higher level of substance abuse among safety-sensitive 
railroad employees in the United States prior to the introduction of 
random testing. For example, in 1988, the industry positive rates for 
reasonable cause testing were 4.7 percent for drugs and 4.5 percent for 
alcohol. After the introduction of random testing in 1989, these rates 
declined respectively to 2.02 percent and 1.32 percent. While the 
positive rates for reasonable suspicion testing have continued to fall, 
a comparison of the data for post-accident testing reveals an even 
stronger impact on positive testing rates. In 1988 the positive rate 
for drugs after qualifying accident events was 5.6 percent. After the 
commencement of random testing in 1990, this rate fell to 1.1 percent 
positive. There was a corresponding reduction in post-accident 
positives from 41 in 1988 to 17 in 1990. In 2002, two employees (1.06 
per cent) testing for drugs other than alcohol in post-accident testing 
events.
    The Canadian Government and CN and CP also rely heavily on the 
medical assessment that is required for dispatchers under the new 
Medical Rules for Safety Critical Employees as providing a functional 
equivalent to random testing. Under these rules, an assessment must be 
performed every three to five years, depending on the age of the 
employee, and include a medical examination. CP notes that the required 
intervals between assessments result in approximately 25 percent of 
Canadian employees being examined annually, and it argues that this is 
approximately the same number of United States rail employees that 
receive random drug testing per year under part 219.
    Throughout the preamble to the NPRM, FRA emphasized the importance 
of random drug and alcohol testing in detecting and deterring substance 
abuse by railroad employees. The deterrent effect of random testing, 
which was implemented by FRA in 1988-1989, most certainly influenced 
the dramatic reduction in post-accident positives between the 41 that 
were recorded in 1988 to the 17 that were recorded in 1990. FRA does 
not believe that the

[[Page 19278]]

periodic medical assessments Canadian railroad employees must undergo 
are the functional equivalent of random testing. The medical model 
relies primarily on medical examinations that are scheduled in advance. 
The employees know well beforehand that they will be undergoing an 
exam, giving them the opportunity to refrain from any activity that may 
reveal a substance abuse problem. Experience in similar programs in the 
United States (e.g., in the aviation and motor carrier industries) 
indicates that routine medical examinations will seldom be successful 
in identifying alcohol or drug use problems except perhaps in the most 
advanced stages of chemical dependency when an employee's remaining 
work life is often limited and major damage has been done to vital 
organs. Even if an employee is forthcoming in offering that he or she 
is misusing drugs in his or her personal life, this would apparently 
not be a disqualifying condition absent medical diagnosis of a specific 
substance abuse disorder; however, one does not have to be chemically 
dependent to constitute a threat to public safety. Much of the alcohol 
and drug use that threatens transportation safety has a voluntary 
component, and random testing is therefore an appropriate deterrent. 
Further, Transport Canada is in the early stages of implementing this 
program and has not yet had the opportunity to determine program 
outcomes. For these reasons, it would not be appropriate for FRA to 
rely upon this program as a full substitute for key DOT program 
elements, including a prohibition on non-medical use of controlled 
substances and random testing.
    Aside from the fact that FRA believes that random testing is the 
most important aspect of any testing program and that pre-employment 
testing is important, FRA is also concerned about two other significant 
differences between part 219 and the Canadian railroads' testing 
programs.
    First, the criteria for post-accident testing are much more 
subjective under the Canadian programs than under part 219. In the 
United States, post-accident testing is required for a train crew 
employee who is directly and contemporaneously involved in the 
circumstances of any qualifying train accident. See section 219.203. 
Under the Canadian programs, however, a train crew employee is not 
automatically tested when he or she is involved in an accident. 
Instead, the railroad must have independent evidence of impairment 
before a train crew employee involved in a Canadian accident may be 
tested. Thus, a train crew employee under the influence of drugs or 
alcohol may contribute to an accident and yet must not be tested if he 
or she does not exhibit some physical manifestation of impairment. That 
train crew employee may continue to work without undergoing additional 
scrutiny that may reveal a dependency problem that could continue to 
negatively impact his or her job performance. CN did indicate in its 
written comments that it plans to revise its policy this year to add 
mandatory post-accident testing using criteria identical to that in 
part 219. The CHRC Commission Policy Statement endorses the right of 
Canadian companies to impose such testing for safety-sensitive 
employees.
    Second, a Canadian rail employee may currently decline to be tested 
and not suffer adverse consequences unless the employer has an 
independent basis for concluding that the employee is impaired by drugs 
or alcohol. Under part 219, however, a train crew employee in the 
United States who refuses a test is immediately suspended for a period 
of nine months and must follow specified procedures, including return-
to-duty and follow-up testing, before being allowed to return to 
safety-sensitive service. Obviously, the effectiveness of a testing 
program is severely compromised if an employee is permitted to simply 
decline to be tested.
    In FRA's judgment, commenters who assert that Canada's stress on 
protection of individual rights is incompatible with random testing 
must consider public safety in any balancing test. Random testing, as 
implemented in part 219, effectively balances the rights of the 
individual against those of the public.
    g. FRFB employees may challenge the legality of a random drug 
testing program and may refuse to cooperate with the testing, including 
refusing to cross the border. Litigation is costly and time consuming, 
and refusals by employees to submit to testing would result in them 
having to be taken out of United States service for a nine-month period 
and could lead to serious disruptions in train traffic across the 
border. In addition to the concerns listed above, commenters cited to 
four locations where interchange of railroad border traffic takes place 
in the United States, and asserted that comparable interchange 
facilities do not exist in Canada to permit the alternative of using 
United States-based crews to perform these operations. The AAR also 
pointed out that moving the interchange of traffic to Canada could have 
the counterproductive effect of undermining the deterrence effect of 
random drug testing on United States-based employees since, to 
accommodate Canadian law, railroads would be limited to conducting 
random testing only at the beginning of an employee's shift in the 
United States. Random testing achieves the most deterrence when the 
possibility of testing exists throughout an employee's shift, i.e., 
before, during, or after a tour of duty.
    FRA does not have sufficient information to make an informed 
judgment as to whether current facilities exist in Canada to permit the 
interchange of railroad traffic on the Canadian side of the border, or 
what the costs of constructing such facilities would be. While FRA 
cannot predict whether implementation of a random drug testing program 
would result in extensive Canadian railroad employee refusals to submit 
to such testing, litigation, or extensive disruptions to cross-border 
train service, FRA notes that employees of Canadian trucking companies 
who are subject to FMCSA's alcohol and drug testing regulations have 
not aggressively litigated the legitimacy of these regulations, and 
that the Canadian Human Rights Commission found cross-border trucking 
and bus operations to be ``a special case'' in that employees of 
Canadian cross-border trucking and bus companies may have a bona fide 
occupational requirement in not being banned from driving in the United 
States. As discussed above, FRA has modified its proposal as much as 
practicable to reconcile FRA's program requirements with Canadian 
public policy. Finally, random drug testing will detect and deter use 
whether the testing is conducted before, during, or after a tour of 
duty involving cross-border operations
    h. The proposed rule is not cost beneficial. Commenters asserted 
that the NPRM's regulatory evaluation underestimated some of the costs 
associated with the proposal, including: (1) The likelihood of an 
increase in the pool of employees who would be subject to the proposed 
requirements; (2) the train delays associated with crews' refusals to 
submit to random drug testing; (3) the litigation expenses of defending 
challenges to random drug testing; (4) the need to make reasonable 
accommodations for persons with substance abuse problems, who are 
considered to be disabled under Canadian law; and (5) the back pay and 
other compensation paid to employees out of work due to positive drug 
test results or treatment for substance abuse. CP estimates that costs 
of the regulation, not including the significant costs associated with 
litigation or construction of track that would be

[[Page 19279]]

required to interchange all railroad traffic north of the Canada-United 
States border, are 37 times the benefits.
    FRA believes that the costs may have been understated in the 
initial regulatory evaluation, but has not established the extent to 
which the additional factors cited by the commenters would raise the 
overall costs of the NPRM since FRA is proposing to except most 
existing cross-border operations from the application of subparts E, F, 
and G of part 219. FRA cannot verify or dispute CP's estimate, since CP 
failed to provide a complete justification of the costs and benefits 
used to develop it. The regulatory evaluation accompanying the NPRM 
estimated that its requirements would cost the rail industry 
approximately $366,244 Net Present Value (NPV) over the next 20 years. 
For a discussion of the costs and benefits associated with this final 
rule, see the analysis in the Regulatory Impact section below.
    i. Under NAFTA, trading partners are required to seek the least-
trade-impact solution in furtherance of their national safety goals, 
and the NPRM does not meet this requirement. Commenters indicated that 
FRA had not conducted a risk assessment to establish the need for the 
proposed rule, and that even if such an assessment existed, the 
proposed expansion of part 219 requirements for FRFB employees would be 
better handled through bilateral government negotiations than an FRA 
rulemaking.
    FRA believes that the NPRM was consistent with NAFTA; nevertheless, 
as explained above, FRA has, after consultations with Canada and 
Mexico, and consideration of the public comments, modified the final 
rule to lessen its trade impact while continuing to further the safety 
of railroad operations in the United States. Under NAFTA, each Party 
retains the right to adopt and enforce any nondiscriminatory standards-
related safety measure it considers appropriate to address legitimate 
safety objectives, including prohibiting the provision of service by a 
service provider of another Party that fails to comply with the safety 
measure. FRA has a legitimate interest in assuring the safety of rail 
transportation within the borders of the United States. A Canadian or 
Mexican dispatcher or train or engine crew employee operating in the 
United States who is impaired by alcohol or by use of a controlled 
substance has a substantial, direct, and foreseeable adverse effect on 
the safety of United States railroad operations, especially if he or 
she is involved in the movement of passengers or hazardous materials. 
Congress has determined, and FRA's experience has shown, that pre-
employment drug testing and random drug and alcohol testing are 
critical parts of an effective drug and alcohol screening and deterrent 
program.
2. Other Issues Raised by Extraterritorial Application of Part 219
    Because of the de minimis nature of the exceptions to the 
prohibition against extraterritorial dispatching, FRA proposed not to 
apply part 219 to the few railroad employees permitted to conduct 
extraterritorial dispatching under the interim final rule (49 CFR part 
241) based on that service. Commenters agreed with this proposal, which 
is adopted in this final rule. FRA had also considered proposing an 
expanded application of part 219 to cover extraterritorial or FRFB 
signal maintainers, but decided not to do so after determining that 
this activity is also de minimis. \8\
---------------------------------------------------------------------------

    \8\ As noted above, signal maintainers based in the United 
States, whether employed by United States or foreign railroads, 
remain fully subject to part 219 with respect to their covered 
service unless excepted 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 excepted.
---------------------------------------------------------------------------

    FRA also solicited comment on whether it should 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, and whether to expand the basis for requiring reasonable 
suspicion testing to events that occur outside the United States.
    CN supported post-accident testing in general, but commented that 
any expansion of FRA post-accident criteria would be subject to serious 
legal challenge and would also be rendered unnecessary by CN's plan to 
implement a company post-accident testing program. CP noted that in 
Canada each province has its own exclusive legal jurisdiction over 
post-mortem examinations, and that these differing requirements could 
interfere with administration of any expanded FRA post-accident testing 
requirements. CP also stated that it too is currently considering 
adoption of a post-accident testing program (unlike FRA's program, 
however, CN's post-accident testing program would likely test urine and 
breath specimens, but not blood). In light of the possibility of the 
two largest Canadian freight carriers implementing equivalent post-
accident testing programs on their own, and out of respect for the 
prerogative of the Canadian Government to regulate events occurring 
within its territory, FRA has decided not to broaden the application of 
its post-accident testing program for now.
    Finally, FRA also asked for comment on several implementation 
issues. Would clearance through customs and international mail 
significantly delay the shipment of testing specimens and their 
accompanying paperwork? Would employing railroads in foreign countries 
have difficulty obtaining and using evidential breath testing devices 
(EBTs) certified by the National Highway Traffic Safety Administration 
(NHTSA), as required in DOT's procedures for alcohol testing? In 
response to both questions, commenters indicated that while 
international customs and mail could occasionally cause delays, they 
did not anticipate a major problem with cross-border shipping and 
handling, or with obtaining and using NHTSA-certified EBTs.
    FRA also asked whether, if it decided to apply post-accident 
testing to extraterritorial signal maintainers, foreign railroads would 
have difficulty shipping testing specimens to FRA's designated post-
accident laboratory. This question is rendered moot by FRA's decision 
not to expand its post-accident testing program at this time.

B. Comments Filed in Response to the July 28, 2003 Notice

    As mentioned above, after consulting with the Canadian and Mexican 
Governments, FRA published a notice outlining the likely revisions to 
the NPRM based on those consultations and FRA's consideration of the 
public comments to date. In response to this consultations notice, 
DATIA, CN, CP, and the UTU-Can. filed supplemental comments which, in 
addition to restating concerns expressed earlier in their comments in 
response to the NPRM, raised new issues or requested more information 
concerning the likely revisions outlined in the notice. Those comments 
that raised issues not discussed elsewhere in this rule (e.g., under 
what circumstances an FRFB employee is required to undergo a pre-
employment drug test), or not addressed in the above discussion of the 
comments to the NPRM, are discussed below.
    CN noted that only half of its current cross-border operations 
would be excepted from subparts E, F, and G of this part, since each of 
its five remaining cross-border operations proceeds more than 10 route 
miles into United States territory. By definition, a limited haul is 
one that proceeds only a short distance into the United States; FRA 
excepts such short segment operations because it believes they present 
less of a safety

[[Page 19280]]

risk and are necessary to facilitate interchange. The five CN cross-
border operations that do not fall under this exception can in no way 
be considered limited hauls, since they respectively proceed 23, 25, 
44, 54, and 74 route miles into the United States.
    CN and the UTU-Can. stated that Canadian railroad employees who 
were subject to, but never actually called for cross-border operations, 
should not be subject to FRA's random testing requirements. A random 
testing pool can be designed to limit selections only to those 
employees who actually operate into the United States (e.g., by 
selecting through job numbers or trains that operate in the United 
States beyond 10 route miles instead of through employee names).
    Finally, CN asked whether, in order to aid compliance with the 
rule's requirements, FRA would consider certifying Canadian testing 
laboratories for DOT workplace testing and recognizing Canadian 
railroad Chief Medical Officers (CMOs) as Substance Abuse Professionals 
(SAPs) for return-to-service and follow-up testing evaluations. As 
stated above, FRA has no authority to certify laboratories for forensic 
urine testing; Canadian and foreign laboratories wishing to be 
considered for certification must apply to the HHS National Laboratory 
Certification Program (NLCP) just as United States laboratories do. (As 
noted earlier, several accredited Canadian laboratories are currently 
certified to conduct DOT workplace testing.) FRA also has no authority 
to recognize CMOs as a body as Substance Abuse Professionals; under 
Sec.  40.283, an organization that seeks recognition for its members as 
SAPs must petition DOT for such recognition.

VI. Alternative Options that FRA Considered But Did Not Adopt

    After reviewing the comments on the NPRM, FRA considered several 
alternatives to the one adopted today. FRA's reasons for excepting 
cross-border operations of 10 route miles or less from full application 
of part 219 are fully discussed throughout this preamble. The pluses 
and minus of the alternatives that were considered but not adopted are 
discussed below.

A. Adopt the NPRM as Proposed

    First, FRA considered adopting the NPRM's proposal to apply part 
219 in its entirety to FRFB train and dispatching service employees. 
FRA continues to believe that random testing is an essential component 
of effective programs to deter alcohol and drug abuse since, as stated 
above, industry positive rates have decreased significantly since 
domestic railroad employees became subject to FRA's random drug testing 
requirements. Moreover, a substantial number of the existing Canadian 
cross-border operations involve the movement of significant quantities 
of hazardous materials. Failure to subject the employees conducting 
these operations to random drug and alcohol testing increases the 
possibility that these operations will be conducted with drug or 
alcohol-impaired train crews. Conversely, barring FRFB employees who 
test positive or who refuse to submit to drug and alcohol testing from 
working in the United States would likely improve the safety of United 
States rail operations. Finally, as stated earlier, FMCSA has regulated 
and audited foreign-based Commercial Drivers License holders who 
operate in the United States with few problems since 1995.
    Nevertheless, FRA decided not to adopt the NPRM entirely as 
proposed. Canadian commenters objected strongly to the NPRM's proposal 
to require FRFB employees to submit to random testing, with only CN 
favoring implementation of a random testing requirement, and then only 
if random testing were also required by Transport Canada. Furthermore, 
random testing would be of lesser deterrent value to a Canadian 
employee than to a United States counterpart, since a Canadian FRFB 
employee with a positive result or a refusal could continue to perform 
train or dispatching service in Canada so long as he or she is removed 
from United States service. Also, as commenters pointed out, an 
individual FRFB employee's refusal to be tested could disrupt the flow 
of United States-bound freight over the Canadian border since a train 
delay due to a train crew member's refusal to take a random drug test 
is potentially more disruptive than the refusal of a single trucker to 
comply with the FMCSA testing program. Finally, as commenters noted, to 
date FRA has no specific accident data to show that cross-border 
railroad operations, which are only partially subject to part 219, are 
less safe than domestic operations, which are fully subject to part 
219. Given all these factors, FRA opted instead to adopt a limited haul 
exception.

B. Grandfather Canadian and Mexican Cross-Border Train and Dispatching 
Service Operations in Existence as of the Date of Publication of the 
Final Rule

    FRA also considered modifying its original proposal by 
grandfathering existing Canadian and Mexican cross-border train 
operations and dispatching service in the United States performed by 
FRFB employees. (FRA has not identified any FRFB employees who enter 
the United States to dispatch a United States rail operation.) Because 
FRA does not segregate cross-border operations from overall accident 
reporting data, the prevalence of drug and alcohol abuse on existing 
cross-border operations is unknown, as is the extent to which substance 
abuse has contributed to cross-border accidents. The extent and volume 
of existing Canadian and Mexican cross-border railroad operations are 
limited, however, since, half of the current Canadian cross-border 
railroad operations travel one mile or less into the United States, and 
all of the current Mexican cross-border railroad operations travel one 
mile or less within the United States.
    For the reasons stated above, however, FRA has decided to adopt a 
10-mile limited haul exception instead of grandfathering all existing 
cross-border railroad operations from full application of part 219. 
Setting the fringe border's limits at 10 route miles or less allows FRA 
to except most of the current Canadian cross-border railroad operations 
and all of the current Mexican ones, while still capturing the six 
longest cross-border operations, all of which operate a significant 
distance into the United States from Canada (the two cross-border 
segments that end in Detroit operate respectively 54 and 74 miles into 
United States territory). Other than new cross-border railroad 
operations within the 10-mile limited haul exception, any expansion of 
current cross-border train or dispatching service operations will be 
required to comply with all part 219 requirements (absent the grant of 
waivers or future rule changes by FRA), including random alcohol and 
drug testing, which may, at the option of the foreign railroad, be 
conducted in the United States or in the railroad's home country. The 
limited haul approach is also consistent with NAFTA, since this option 
has the least trade impact consistent with achieving safe railroad 
operations in the United States, and is less costly than adopting the 
full application approach of the NPRM.

VI. Section-by-Section Analysis

Introduction

    This section-by-section analysis explains the provisions of the 
final rule and any changes made from the NPRM. This analysis should be 
considered as a whole with the discussion in the previous sections of 
this preamble. For

[[Page 19281]]

completeness, this analysis reprints portions of the section-by-section 
analysis from the proposed rule where sections have been adopted 
without change from the NPRM.

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 that general statement of applicability. The exceptions 
in paragraph (b) are available to both domestic and foreign railroads, 
while the exceptions in paragraph (c) are available only to foreign 
railroads. These changes are noted in the new paragraph headings.
    Paragraph (a) is unchanged except to add the heading ``General'' 
and to make explicit in paragraph (a)(2) that part 219 applies to 
commuter and short-haul railroad operations in the United States, but 
not to such operations outside 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 in the United States as described in the 
statutory definition of ``railroad,'' unless the railroad falls into 
one of the exceptions contained in paragraphs (b) or (c). 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) is amended to state that this part does not cover 
a railroad whose entire operation is 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''). Tourist, scenic or excursion 
operations that occur on tracks that are not part of the general 
railroad system are, therefore, not subject to this part. FRA uses the 
term ``installation'' 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 solely to receive or offer 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, paragraphs (a) and (b)(1) mean that part 219 applies 
in its entirety to all railroads that operate on the general railroad 
system of transportation or are commuter or intercity passenger 
railroads, except those excepted from certain subparts of part 219 by 
paragraphs (b)(2) or (b)(3), or any provision of paragraph (c).
    Paragraph (b)(2). Existing paragraph (b)(2) excepts from subparts D 
(mandatory reasonable suspicion testing; the other types of for cause 
testing, namely accident/incident and rule violation testing, are 
authorized but not required), E (self-referral and co-worker report 
programs), F (pre-employment testing), and G (random testing) a 
railroad that meets the following two criteria for the small railroad 
exception: the railroad must (1) utilize 15 or fewer employees who are 
subject to 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.
    As proposed, a railroad (including a foreign railroad that utilizes 
FRFB employees to perform train operations in the United States) 
qualifies as a small entity excepted from the reasonable suspicion 
testing requirement in subpart D, and from subparts 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, must be 15 or fewer. (In 
calculating the total number of its employees covered by the hours of 
service laws, a railroad must include all employees covered by virtue 
of operating on United States soil, including those employees who 
operate on cross-border operations that are excepted under the 10-mile 
limited haul exception. The latter, will, however, continue to be 
excepted from subparts E, F, and G.) Second, as is the case currently, 
the railroad may not operate on the tracks of another railroad or 
otherwise engage in joint operations in the United States except in 
order to perform interchange. By excepting only railroads which in 
their entirety, comprise 15 or fewer employees who are or would be 
subject to the hours of service laws, FRA is effectuating the original 
intent of this subsection, which was to lessen the economic impact of 
part 219 on those small entities that have both limited resources and a 
minimal impact on safety.
    Also as proposed, FRA in part determines the applicability of 
subparts 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 excepted under paragraph (b)(2) only from subparts E, 
F, and G must comply with all other requirements of part 219 (subparts 
A, B, C, reasonable suspicion testing in subpart D, and subparts H, I, 
and J) only with respect to those of its employees who are ``covered 
employees'' within the meaning of the substantive provisions of part 
219.
    Paragraph (b)(3). The exception from reporting requirements for 
subpart I is revised in three ways. First, the term ``employee hours'' 
replaces the term ``manhours'' to make the provision gender-neutral. 
Second, the way in which employee hours are to be calculated is 
clarified. Third, the term (``primary place of service (``home 
terminal'') for rail transportation services'') is replaced with the 
more generic term (``primary place of reporting'') to convey more 
clearly that this exception applies to signal employees, whose 
principal reporting point is not typically called a ``home terminal.''
    Paragraph (c). As proposed, to be considered an ``FRFB train 
employee'' or ``FRFB dispatching service employee,'' an individual must 
meet all three of the following criteria. First, the individual must be 
employed by a foreign railroad or by a contractor to a foreign 
railroad. 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)(2) 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. A foreign railroad must remove any employee who refuses to submit 
to FRA-required testing from performing rail operations in the United 
States for a nine-month period (the employee must also comply with the 
return-to-service requirements in Sec.  219.104 before returning to 
safety-sensitive service in

[[Page 19282]]

the United States), although this regulation does not preclude such an 
employee from continuing to perform rail service outside the United 
States.
    Paragraph (c)(1). As stated above, FRFB train or dispatching 
service employees who operate on cross-border segments of 10 route 
miles or less will continue to be excepted from subparts E (self-
referral and co-worker report programs), F (pre-employment drug tests), 
and G (random testing); those who perform train operations or 
dispatching service in the United States on cross-border segments that 
extend more than 10 route miles into the United States are no longer 
excepted from full application of part 219 (unless they work for 
railroads that qualify for the small railroad exception in Sec.  
219.3(b)).
    While FRA has chosen not to address the relatively low safety risk 
of smaller cross-border segments, FRA continues to have safety concerns 
about the potential for future expansion of foreign railroad operations 
into United States territory. In new or expanded cross-border 
operations, FRFB employees may operate a significant distance inside 
the United States. There is no reason to treat these FRFB employees 
differently from domestic employees. Adopting a 10-mile limited haul 
exception ensures that only FRFB train or dispatching service employees 
who perform extended cross-border operations in the United States will 
be subject to random testing.
    Paragraph (c)(2). This paragraph excepts an FRFB signal maintainer, 
defined as an individual (1) whose principal reporting point is outside 
the United States, (2) who is employed by a foreign railroad, and (3) 
who is a covered signal employee (unless the railroad for whom the 
individual works falls under the small railroad exception in Sec.  
219.3(b)) from subparts E, F, and G of this part. As before, subparts 
A, B, C, reasonable suspicion in subpart D, and subparts H, I, and J of 
this part continue to apply to an FRFB signal maintainer when he or she 
is performing signal maintenance in the United States.
    Paragraph (c)(3). As stated earlier, current FRFB employees are not 
subject to pre-employment drug testing. Only employees not covered by 
the 10-mile limited haul exception who perform train or dispatching 
service for the first time in the United States after June 11, 2004 
will be subject to pre-employment testing under this part.

Section 219.4 Recognition of Foreign Railroad Workplace Testing 
Programs

    This new section specifies the procedures and requirements for a 
foreign railroad to obtain FRA recognition of a program promulgated 
under its home country government's workplace testing standards as 
compatible with the return-to-service requirements in subpart B, and 
subparts E, F, and G of this part. To be so recognized, the foreign 
railroad's program must include equivalents to the specified portions 
of part 219, and, in these equivalent provisions, use testing 
procedures, criteria and assays reasonably comparable in effectiveness 
to those in DOT procedures for workplace drug and alcohol testing 
programs (49 CFR part 40, incorporated by reference in subpart H of 
this part). In approving a program under this section, the FRA 
Associate Administrator for Safety may impose conditions deemed 
necessary. Upon FRA's recognition of a foreign workplace testing 
program as compatible with these subparts, train and dispatching 
employees whose primary reporting point is in the foreign country may 
comply with the standards of the recognized program while operating in 
the United States as an alternative of the requirements of these 
subparts; FRFB employees, would, however, continue to be subject to 
certain part 219 requirements: subpart A, subpart B other than the 
return-to-service requirements in section 219.104(d), subpart C, 
reasonable suspicion in subpart D, and subparts I and J of this part; 
all of these requirements remain subject to part 40 procedures.
    Once granted, program recognition allows a foreign railroad to 
comply with the standards of its home country with regard to the FRA 
tests and criteria that are a condition precedent to entry into the 
United States (i.e., return-to-service criteria, employee assistance, 
and pre-employment and random testing procedures). For program 
recognition, these standards need be compatible, but not necessarily 
identical, to their corresponding sections in this part. In contrast, 
part 219 elements that address transactions occurring on United States 
soil (Rule G violations, post-accident testing events, and reasonable 
suspicion) will remain under United States law for all purposes, and 
all protections of this part, including the DOT workplace testing 
procedures incorporated by subpart H of this part, will continue to 
apply.
    Once granted, program recognition would remain valid so long as the 
program retained these elements and foreign-based railroads continued 
to comply with program requirements. For FRA's auditing purposes, the 
foreign railroad should maintain a letter on file indicating that it 
has elected to extend specified elements of the recognized program to 
its operations in the United States. FRA will work with the Canadian 
and Mexican Governments to arrange cooperative audits that build 
confidence in the effectiveness of each government's program.

Section 219.5 Definitions

    The terms ``covered service'' and ``covered employee'' are closely 
interrelated and, therefore, their definitions are discussed together.
    Covered service. As proposed, the definition is added to make clear 
that ``covered service'' is service subject to the hours of service 
laws (49 U.S.C. ch. 211) that occurs in the United States. This is a 
practical, rather than a craft-based, definition of the persons and 
functions subject to the regulations. 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 functions have 
been 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.
    Covered employee. As proposed, the definition of this term is 
revised to make clear that FRA interprets covered service as service 
performed in the United States.
    Cross-border operation. This definition was not proposed in the 
NPRM, but is consistent with the NPRM's usage of this term, and is 
added for clarity.
    Domestic railroad. As proposed, FRA adds this definition for 
clarity to distinguish a railroad that is incorporated in the United 
States from a foreign railroad.
    Foreign railroad. As proposed, FRA this new term refers to a 
railroad that is incorporated outside the United States.
    General railroad system of transportation. As proposed, this new 
definition clarifies that the term applies only to that part of the 
general railroad system of transportation that is located within the 
borders of the United States.
    State. As proposed, FRA this new term refers to a State of the 
United States of America or the District of Columbia.

Section 219.7 Waivers

    Paragraph (d). Special dispensation for employees performing train 
or dispatching service on existing cross-border operations. This 
section allows a foreign railroad to petition FRA, within 120 days of 
the publication of this rule,

[[Page 19283]]

for a waiver of subparts E, F, and G of this part for any existing 
cross-border operation that becomes fully subject to these subparts by 
virtue of this rule. As with other requests for waivers of safety 
rules, FRA's Railroad Safety Board will consider each such petition to 
determine if waiving full application of these subparts on the subject 
operation is consistent with railroad safety and in the public 
interest. Existing cross-border crew assignments on the operation 
subject to a petition filed within the 120-day period will continue to 
be excepted from subparts E, F, and G until the waiver request is acted 
upon by FRA.
    Paragraph (e). Waiver requests for employees performing train or 
dispatching service on new or expanded cross-border operations. As 
stated above, a new cross-border railroad operation that proceeds more 
than 10 route miles into the United States, or a formerly excepted 
cross-border operation that expands beyond the10 mile limited haul 
exception, is subject to these rules unless the foreign railroad 
involved petitions FRA for a waiver of subparts E, F, and G not later 
than 90 days before commencing the cross-border operation, and FRA 
determines that granting the required relief is consistent with rail 
safety and in the public interest. See 49 CFR part 211. FRA will 
attempt to decide such petitions within 90 days. However, if no action 
is taken on the petition within 90 days, the petition remains pending 
for decision and the petitioner must comply with subparts E, F, and G 
should it commence the subject operations.

Section 219.11 General Conditions for Chemical Tests

    As stated above, a foreign railroad now has the option of complying 
with the requirements of this part by conducting required collecting 
and testing entirely on United States soil. The railroad may collect 
FRA-required specimens in its home country or in the United States, so 
long as the DOT's workplace testing procedures (49 CFR part 40) are 
observed and records are maintained as required.

Annual Report (Subpart I)

Section 219.800 Annual Report
Paragraph (a)
    As proposed, Sec.  219.800 is amended to reflect the replacement of 
the term ``manhours'' in Sec.  219.3(b)(3) with the gender-neutral term 
``employee hours.''

VIII. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This 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 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.
    The provision to except FRFB employees who enter the U.S. for 10 
route miles or less from subparts E, F, and G of part 219 narrows the 
number of FRFB employees who will be affected by this rule. All current 
Mexican FRFB employees fall under the exception, because all current 
Mexican-based train operations into the U.S. are less than 1 mile. 
Almost all Canadian railroad operations into the U.S. are also 
excepted, however, a small number of Canadian railroad operations 
extend into the U.S. for more than 10 miles. From information submitted 
to FRA, FRA estimates that 100 Canadian-based employees serving on 
these operations will be affected. The affected FRFB employees are 
employed by two railroads, the Canadian National Railway Company (CN) 
and the St. Lawrence & Atlantic Railroad Inc. (SLR).
    The regulatory evaluation estimates the costs and benefits from 
extending subparts E, F, and G of part 219 to these 100 FRFB employees 
and two railroads. The costs resulting from applying subpart E are the 
costs of developing a referral and co-worker reporting policy, and 
evaluating employees who are experiencing substance abuse problems. The 
costs of subpart F are for costs associated with testing employee 
specimens for pre-employment drug testing. The main contributors to 
costs of extending subpart G are for developing the program and random 
selection procedures, and for costs associated with performing the 
subsequent alcohol and drug tests. A new provision in the Final Rule 
provides an option for foreign railroads to file a letter of intent to 
follow their home country's testing program for U.S. and foreign 
railroad operations, following approval of the alternate, compatible 
program by the FRA's Associate Administrator for Safety. It is 
anticipated this option will be used by Mexican railroads, who will be 
required to file compliance programs with their government (Mexico has 
indicated its intent to establish a regulatory program similar to part 
219). This option will reduce the burden for Mexican railroads to 
comply with two sets of programs. The costs for FRA's review is 
estimated. To better account for all costs, a miscellaneous cost 
category is assigned to represent reporting, testing, administrative, 
logistical, other burdens that may not have been specifically 
estimated. The table below presents the costs of this rule calculated 
as Net Present Value (NPV) over a twenty-year period using a 7 percent 
discount rate.

                               Total Costs
------------------------------------------------------------------------
                                                              Estimated
                        Description                          20 year NPV
                                                              costs @7%
------------------------------------------------------------------------
Subpart E (Voluntary referral and co-worker identification,       $2,726
 employee assistance programs).............................
Subpart F (Pre-employment testing).........................      $10,646
Subpart G (Random alcohol and drug testing)................      $69,741
Filing intent to follow alternative, compatible program and         $359
 review....................................................
Miscellaneous..............................................       $3,000
                                                            ------------
  Total....................................................     $86,472
------------------------------------------------------------------------
Total twenty-year NPV costs associated with the Final Rule are estimated
  to be about $90,000.

    The benefits of this rule will result from improved safety of 
railroad operations in the U.S. FRA believes that eased trade 
restrictions between the U.S. and its foreign neighbors as a result of 
the North American Free Trade Agreement NAFTA, and consolidations in 
North American railroad operations, have led to more cross-border 
railroad operations. This trend will likely continue. Extending 
application of subparts E, F, and G of part 219 will help protect 
against accidents that may be caused by impaired employees. With the 
10-mile limited haul exception, the Final Rule targets the longer-
distance railroad operations that pose a greater safety risk, yet 
reduces regulatory burden on most foreign railroads that have cross-
border operations. Although the deterrent effect of random alcohol and 
drug testing will likely reduce

[[Page 19284]]

accidents, the direct benefits from avoiding fatalities and injuries in 
the future are not monetized because FRA's database has not 
historically separately identified cross-border accidents. FRA also 
notes that extending subparts E, F, and G to some FRFB employees will 
improve fairness in the applicability of part 219, by placing the same 
mandates on those FRFB employees as are already placed on U.S. railroad 
employees.

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 a Regulatory 
Flexibility Assessment, 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. Access 
to the docket may also be obtained electronically through the Web site 
for the Docket Management System at http://dms.dot.gov.
    Pursuant to Section 312 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has published a 
final 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 (68 FR 24891, May 9, 2003).
    In the Regulatory Flexibility Assessment, FRA certifies that this 
rule is not expected to have a significant economic impact on a 
substantial number of small entities. Current cross-border railroad 
operations (listed at the end of this rule) are conducted only by large 
Canadian and Mexican railroad companies.

C. Paperwork Reduction Act

Paperwork Statement--Alcohol and Drug Regulations: FRFB Train Crews and 
Dispatchers
    The information collection requirements in this final 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 annual          Average time per     Total annual  burden   Total annual  burden
         CFR Section-49 CFR           Respondent  universe          responses               response                hours                   cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
219.4-Recognition of a Foreign       2 railroads...........  1 petition............  10 hours.............  10 hours.............  $370.
 Railroad's Workplace Testing
 Program.
-Comment...........................  2 railroads/public....  2 comments + 2 comment  2 hours..............  4 hours..............  $148.
                                                              copies.
219.401/403/405-Voluntary Referral   2 railroads...........  2 policies............  30 hours.............  60 hours.............  $2,364.
 & Co-worker Report Policies.
219.03/405-Evaluation by Substance   2 railroads...........  3 reports/referrals...  2 hours..............  6 hours..............  $900.
 Abuse Professional.
219.405(c)(1)-Report by a Co-worker  2 railroads...........  1 report..............  5 minutes............  .08 hour.............  $3.
219.601(a)-Railroad Random Drug      2 railroads...........  2 programs............  16 hours.............  32 hours.............  $1,184.
 Testing Programs.
                                     2 railroads...........  1 amendment...........  1 hour...............  1 hour...............  $37.
-Amendments to Programs............  ......................  ......................  .....................  .....................  .....................
219.601(b)(1)-Random Selection       2 railroads...........  24 documents..........  4 hours..............  96 hours.............  $1,440.
 Proc.-Drug.
219.601(b)(4); 219.601(d)-Notice to  2 railroads...........  2 notices.............  10 hours.............  20 hours.............  $740.
 Employees.
-Notice to Employees-Selection for   2 railroads...........  20 notices............  1 minute.............  .333 hour............  $12.
 Testing.
219.602; 219.608-Administrator's     Covered under OMB No.   Covered under OMB No.   Covered under OMB No.  Covered under OMB No.  Covered under OMB No.
 Determination of Random/Drug/        2105-0529.              2105-0529.              2105-0529.             2105-0529.             2105-0529.
 Alcohol Testing Rate.
219.603(a)-Notice by Employee        200 employees.........  2 documented excuses..  15 minutes...........  .50 hour.............  $22.
 Asking to be Excused From Urine
 Testing.
219.607(a)-Railroad Random Alcohol   2 railroads...........  1 amendment...........  1 hour...............  1 hour...............  $37.
 Testing Progs.
-Amendments........................  ......................  ......................  .....................  .....................  .....................
219.609-Notice by Employee Asking    200 employees.........  2 documented excuses..  15 minutes...........  .50 hour.............  $22.
 to be Excused from Random Alcohol
 Testing.
219.800--Annual Reports............  Covered under OMB No.   Covered under OMB No.   Covered under OMB No.  Covered under OMB No.  Covered under OMB No.
                                      2105-0529.              2105-0529.              2105-0529.             2105-0529.             2105-0529.
219.901/903-Retention of Breath      2 railroads...........  80 records............  5 minutes............  7 hours..............  $105.
 Alcohol/Urine Drug Testing Records.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 19285]]

    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), FRA solicited comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the function 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. FRA received no replies in 
response to this request for comments. For information or a copy of the 
paperwork package submitted to OMB, contact Robert Brogan, FRA 
Information Clearance Officer, at 202-493-6292.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this 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.
    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).
    In most circumstances 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. 
However, upon RSAC's inception FRA committed not to task the RSAC with 
rulemakings concerning alcohol and drug testing issues since these 
issues require extensive coordination and consultation with both DOT 
and HHS.
    FRA instead solicited comment on the Federalism implications of the 
proposed rule from nine groups designated as representatives for 
various State and local officials. In March 2000, FRA sent a letter 
seeking comment on the Federalism implications of the NPRM 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 United States Conference of 
Mayors. FRA received no indication of concerns about the Federalism 
implications of this rulemaking from these representatives. FRA has 
adhered to Executive Order 13132 in issuing this final rule.

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 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

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. This final rule does 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.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355; May 22, 2001. Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency that promulgates 
or is expected to lead to the promulgation of a final rule or 
regulation, including notices of inquiry, advance notices of proposed 
rulemaking, and notices of proposed rulemaking: (1)(i) That is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. FRA has

[[Page 19286]]

evaluated this final rule in accordance with Executive Order 13211. FRA 
has determined that this final rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Consequently, FRA has determined that this regulatory action is not a 
``significant energy action'' within the meaning of the Executive 
Order.

H. Privacy Act

    Anyone is able to search the electronic form of all public 
submissions to any of our dockets by the name of the individual making 
the submission (or signing the submission, if made on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or by visiting 
http://dms.dot.gov.

List of Subjects in 49 CFR Part 219

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

The Final Rule

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

PART 219--[AMENDED]

0
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).


0
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 available to both domestic 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, 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) Exceptions available to foreign railroads only. (1) Subparts E, 
F and G of this part do not apply to train or dispatching service in 
the United States performed by an employee of a foreign railroad whose 
primary reporting point is outside the United States, on that portion 
of a rail line in the United States extending up to10 route miles from 
the point that the line crosses into the United States from Canada or 
Mexico.
    (2) Unless otherwise provided by paragraph (b) of this section, 
subparts A, B, C, D, H, I, and J of this part apply to signal service 
in the United States of a foreign railroad performed by an employee of 
the foreign railroad if the employee's primary place of reporting is 
located outside the United States. Subparts E, F, and G of this part do 
not apply to signal service in the United States of a foreign railroad 
performed by an employee of the foreign railroad if the employee's 
primary place of reporting is located outside the United States.
    (3) Unless otherwise excepted under paragraph (c)(1) of this 
section, on and after June 11, 2004, a foreign railroad shall conduct a 
pre-employment drug test on each of its final applicants for, and each 
of its employees seeking to transfer for the first time to, duties 
involving train or dispatching service in the United States while 
having his or her primary reporting point outside of the United States. 
The test shall be conducted in accordance with this part prior to the 
applicant or employee's performance of train or dispatching service in 
the United States.

0
3. Section 219.4 is added to read as follows:


Sec.  219.4  Recognition of a foreign railroad's workplace testing 
program.

    (a) General. A foreign railroad may petition the FRA Associate 
Administrator for Safety for recognition of a workplace testing program 
promulgated under the laws of its home country as a compatible 
alternative to the return-to-service requirements in subpart B of this 
part and the requirements of subparts E, F, and G of this part with 
respect to its employees whose primary reporting point is outside the 
United States but who enter the United States to perform train or 
dispatching service and with respect to its final applicants for, or 
its employees seeking to transfer for the first time to, duties 
involving such service.
    (1) To be so considered, the petition must document that the 
foreign railroad's workplace testing program contains equivalents to 
subparts B, E, F, and G of this part:
    (i) Pre-employment drug testing;
    (ii) A policy dealing with co-worker and self-reporting of alcohol 
and drug abuse problems;
    (iii) Random drug and alcohol testing;
    (iv) Return-to-duty testing; and
    (v) Testing procedures and safeguards reasonably comparable in 
effectiveness to all applicable provisions of the United States 
Department of Transportation Procedures for Workplace Drug and Alcohol 
Testing Programs (part 40 of this title).
    (2) In approving a program under this section, the FRA Associate 
Administrator for Safety may impose conditions deemed necessary.
    (b) Alternative programs. (1) Upon FRA's recognition of a foreign 
railroad's workplace testing program as compatible with the return-to-
service requirements in subpart B and the requirements of subparts E, 
F, and G of this part, the foreign railroad must comply with either the 
enumerated provisions of part 219 or with the standards of the 
recognized program, and any imposed conditions, with respect to its 
employees whose primary reporting point is outside the United States 
and who perform train or dispatching service in the United States. The 
foreign railroad must also, with respect to its final applicants for, 
or its employees seeking to transfer for the first time to, duties 
involving such train or dispatching service in the United States, 
comply with either subpart E of

[[Page 19287]]

this part or the standards of the recognized program.
    (2) The foreign railroad must comply with subparts A, B (other than 
the return-to-service provisions in Sec.  219.104(d)), C, reasonable 
suspicion testing in subpart D, and subparts I and J. Drug or alcohol 
testing required by these subparts must be conducted in compliance with 
all applicable provisions of the United States Department of 
Transportation Procedures for Workplace Drug and Alcohol Testing 
Programs (part 40 of this title).
    (c) Petitions for recognition of a foreign railroad's workplace 
testing programs. Each petition for recognition of a foreign workplace 
testing program shall contain:
    (1) The name, title, address, and telephone number of the primary 
person to be contacted with regard to review of the petition;
    (2) The requirements of the foreign railroad workplace testing 
program to be considered for recognition;
    (3) Appropriate data or records, or both, for FRA to consider in 
determining whether the foreign railroad workplace testing program is 
equivalent to the minimum standards contained in this part and provides 
at least an equivalent level of safety.
    (d) Federal Register notice. FRA will publish a notice in the 
Federal Register concerning each petition under paragraph (c) of this 
section that it receives.
    (e) Comment. Not later than 30 days from the date of publication of 
the notice in the Federal Register concerning a petition under 
paragraph (c) of this section, any person may comment on the petition.
    (1) A comment shall set forth specifically the basis upon which it 
is made, and contain a concise statement of the interest of the 
commenter in the proceeding.
    (2) Any comment on a petition should reference the FRA docket and 
notice numbers. A commenter may submit a comment and related material 
by only one of the following methods:
    (i) Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    (ii) Fax: 1-202-493-2251.
    (iii) Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
    (iv) 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.
    (v) Federal eRulemaking Portal: Go to http://www.regulations.gov. 
Follow the online instructions for submitting comments.
    (3) The commenter shall certify that a copy of the comment was 
served on the petitioner. Note that all petitions received will be 
posted without change to http://dms.dot.gov including any personal 
information provided.
    (f) Disposition of petitions. (1) If FRA finds that the petition 
complies with the requirements of this section and that the foreign 
railroad's workplace testing program is compatible with the minimum 
standards of this part, the petition will be granted, normally within 
90 days of its receipt. If the petition is neither granted nor denied 
within 90 days, the petition remains pending for decision. FRA may 
attach special conditions to the approval of any petition. Following 
the approval of a petition, FRA may reopen consideration of the 
petition for cause.
    (2) If FRA finds that the petition does not comply with the 
requirements of this section or that the foreign railroad's workplace 
testing program is not compatible with the minimum standards of this 
part, the petition will be denied, normally within 90 days of its 
receipt.
    (3) When FRA grants or denies a petition, or reopens consideration 
of the petition, written notice is sent to the petitioner and other 
interested parties.
    (g) Program recognition. If its program has been recognized, the 
foreign railroad shall maintain a letter on file indicating that it has 
elected to extend specified elements of the recognized program to its 
operations in the United States. Once granted, program recognition 
remains valid so long as the program retains these elements and the 
foreign railroad complies with the program requirements.


0
4. Section 219.5 is amended by revising the definition of Covered 
employee and by adding new definitions in alphabetical order to read as 
follows:


Sec.  219.5  Definitions.

* * * * *
    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.
    Cross-border operation means a rail operation that crosses into the 
United States from Canada or Mexico.
    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.
* * * * *


0
5. Section 219.7 is amended by adding new paragraphs (d) and (e) to 
read as follows:


Sec.  219.7  Waivers.

* * * * *
    (d) Special dispensation for employees performing train or 
dispatching service on existing cross-border operations. If a foreign 
railroad requests a waiver not later than August 10, 2004, for an 
existing cross-border operation, subparts E, F, and G of this part 
shall not apply to train or dispatching service on that operation in 
the United States performed by an employee of a foreign railroad whose 
primary reporting point is outside the United States, until the 
railroad's waiver request is acted upon by FRA.
    (e) Waiver requests for employees performing train or dispatching 
service on new or expanded cross-border operations. A foreign railroad 
seeking a waiver from subparts E, F, and G of this part for its 
employees performing train or dispatching service on a new cross-border 
operation that proceeds more than 10 route miles into the United 
States, or a formerly excepted cross-border operation that expands 
beyond the 10 mile limited haul exception in paragraph (d) of this 
section, must file

[[Page 19288]]

a petition not later than 90 days before commencing the subject 
operation. FRA will attempt to decide on such petitions within 90 days. 
If no action is taken on the petition within 90 days, the petition 
remains pending for decision and the cross-border crew assignments on 
the operation covered by the petition will be subject to subparts E, F, 
and G until FRA grants the petition should the petitioner commence the 
proposed operation.


0
6. Section 219.11 is amended by adding a new paragraph (i) to read as 
follows:


Sec.  219.11  General conditions for chemical tests.

* * * * *
    (i) A railroad required or authorized to conduct testing under this 
part may conduct all such testing in the United States. A foreign 
railroad required to conduct testing under this part may conduct such 
tests in its home country, provided that it otherwise complies with the 
requirements of this part.


0
7. Section 219.800(a) is revised to read as follows:


Sec.  219.800  Annual reports.

    (a) Each railroad that has a total of 400,000 or more 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.
* * * * *

    Issued in Washington, DC, on March 26, 2004.
Allan Rutter,
Federal Railroad Administrator.
    [Note: The following two tables will not appear in the Code of 
Federal Regulations.]

  Train Operations in the United States by Canadian-Based Employees of
                            Foreign Railroads
------------------------------------------------------------------------
                                 Distance traveled in       Operating
      Destination in U.S.         the U.S. per train        railroad
------------------------------------------------------------------------
                            10 miles or less
------------------------------------------------------------------------
Eastport, ID..................  1.7 miles.............  Canadian Pacific
                                                         Railway Company
                                                         (CP).
Detroit, MI...................  1 mile to CSX           CP.
                                 Transportation, Inc.
                                 (CSX) Expressway Yard.
Detroit, MI...................  9 miles to the tunnel   CP.
                                 to CSX Rougemere Yard.
Detroit, MI...................  9 miles to the tunnel   Canadian
                                 to CSX Rougemere Yard.  National
                                                         Railway Company
                                                         (CN).
Detroit, MI...................  6 miles to the Norfolk  CP.
                                 Southern Railway
                                 Company (NS) Oakwood
                                 Yard.
Sault Ste. Marie, MI..........  2 miles...............  CN.
Noyes, MN.....................  1 mile................  CN.
Noyes, MN.....................  3.2 miles.............  CP.
Ranier, MN....................  Less than 1 mile......  CP.
Coutts, MT....................  unknown...............  CP.
Sweet Grass, MT...............  2 miles...............  CN.
Sweet Grass, MT...............  2 miles...............  CP.
Buffalo, NY...................  5 miles...............  CN.
Buffalo, NY...................  7 miles...............  CN.
Buffalo, NY...................  9 miles...............  CN.
Buffalo, NY...................  7.5 miles.............  CP.
East Alburg, NY...............  2 miles...............  CN.
Niagara Falls, NY.............  1 mile................  CN.
Rouses Point, NY..............  1 mile................  CN.
Rouses Point, NY..............  1.2 mile..............  CP.
Portal, ND....................  2.8 miles.............  CP.
Sumas, WA.....................  \1/4\ mile............  CP.
-------------------------------
                           More than 10 miles
------------------------------------------------------------------------
Island Pond, VT...............  15 miles..............  St. Lawrence &
                                                         Atlantic
                                                         Railroad
                                                         (Quebec), Inc.
Massena, NY...................  23 miles..............  CN.
St. Albans, VT................  25 miles..............  CN.
Baudette, MN..................  44 miles..............  CN
Detroit, MI...................  54 miles to the GTW     CN.
                                 tunnel and East Yard
                                 in Detroit.
Trenton, MI...................  74 miles via Detroit    CN.
                                 to tunnel and GTW
                                 Edison Yard (Trenton,
                                 MI).
------------------------------------------------------------------------


   Train operations in the United States by Mexican-Based Employees of
                            Foreign Railroads
------------------------------------------------------------------------
 Point of entry into U.S. and    Distance traveled in       Operating
      destination in U.S.         the U.S. per train        railroad
------------------------------------------------------------------------
Nogales, AZ...................  Less than \1/4\ mile..  Ferrocaril
                                                         Mexicano (FXE).
Brownsville, TX...............  Less than 1 mile......  Transportacion
                                                         Ferroviaria
                                                         Mexicana (TFM).
Eagle Pass, TX................  Less than 1 mile......  FXE.
El Paso, TX...................  Less than \1/4\ mile..  FXE.

[[Page 19289]]

 
Laredo, TX....................  Less than 1 mile......  TFM.
Presidio, TX..................  Less than 1 mile......  FXE.
------------------------------------------------------------------------

[FR Doc. 04-7544 Filed 4-9-04; 8:45 am]
BILLING CODE 4910-06-P