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

Summary

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

Full text

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

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

Multi-modal Coverage

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

Section by Section Analysis

Subpart A--General


Sec. 219.3  Application.

Paragraph (b)(2)

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

Paragraph (b)(3)

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

Foreign Application

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


Sec. 219.5  Definitions.

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


Sec. 219.9  Responsibility for compliance.

Paragraphs (a) and (c)

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


Sec. 219.11  General conditions for chemical tests.

Paragraph (g)

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


Sec. 219.13  Preemptive effect.

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


Sec. 219.15  Alcohol concentrations in blood and breath.

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


Sec. 219.21  Information collection.

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


Sec. 219.23  Railroad policies.

Paragraph (f)

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

Subpart B--Prohibitions

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


Sec. 219.101  Alcohol and drug use prohibited.

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

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

Paragraph (a)(4)

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


Sec. 219.104  Responsive action.

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

Paragraph (d), Return to Covered Service

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

Paragraph (e), Follow-up Testing

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

Paragraph (f)

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

Subpart C--Post-Accident Toxicological Testing

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


Sec. 219.201  Events for which testing is required.

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

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

Paragraph (b) [Exceptions]

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


Sec. 219.203  Responsibilities of railroads and employees.

Paragraph (a), Employees Tested

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


Sec. 219.205  Sample collection and handling.

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


Sec. 219.209  Reports of tests and refusals.

Paragraph (b)

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

Paragraph (c)

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


Sec. 219.211  Analysis and follow-up.

Paragraph (a)

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


Sec. 219.213  Unlawful refusals; consequences.

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

Subpart D--Testing for Cause

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


Sec. 219.300  Mandatory reasonable suspicion testing.

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

Paragraph (b)

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

Paragraph (c)(1)

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

Paragraph (c)(2)

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

Paragraph (d)

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


Sec. 219.301  Testing for reasonable cause.

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


Sec. 219.302  Prompt sample collection; time limitation.

Paragraph (b)(2)

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

Paragraph (f)

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


Sec. 219.303  Alcohol test procedures and safeguards.

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


Sec. 219.303  Breath test procedures and safeguards.

Paragraph (c)

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

Subpart F-Pre-employment Tests

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


Sec. 219.501  Pre-employment tests.

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

Subpart G-Random Testing Programs


Sec. 219.607  Railroad random alcohol testing programs.

Paragraph (a)

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

Paragraph (b)(2)

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

Paragraph (b)(3)

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

Paragraph (b)(6)

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


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

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


Sec. 219.708  Employee requests for testing.

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


Sec. 219.715  Alcohol testing procedures.

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

Subpart I--Annual Report


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

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

Subpart J--Recordkeeping Requirements


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

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


Sec. 219.905  Access to facilities and records.

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

Executive Order 12866 and DOT Regulatory Policy  

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