result of a test conducted by the railroad itself. In other words, a
CDL holder who performs regulated service for multiple railroads must
have a separate negative pre-employment drug test result for each
railroad. For example, a CDL holder who already has a negative DOT pre-
employment drug test for Railroad A must still have a negative FRA pre-
employment drug test result for Railroad B before he or she can begin
performing regulated service for Railroad B.
Paragraph (d)
    As proposed, new paragraph (d) specifies that an applicant must
withdraw his or her application before the drug testing process begins
if the applicant wants to decline a pre-employment drug test and have
no record kept of that declination.
Paragraph (e)
    In new paragraph (e), FRA exempts from pre-employment drug testing:
(1) An employee who began performing MOW activities for a railroad
before the effective date of this final rule; and (2) an employee who
began performing regulated service for a small railroad (as defined in
Sec.  219.3(c)) before the effective date of this final rule. Both
exemptions apply only so long as the employee continues to work for the
same railroad that he or she was working for before the effective date
of the final rule.

Section 219.502--Pre-Employment Alcohol Testing

    This section addresses optional pre-employment alcohol testing.
Paragraph (a)(5)
    Paragraph (a)(5) prohibits a railroad from permitting a regulated
employee with an alcohol concentration of 0.04 or greater from
performing regulated service until the employee has completed the
return-to-duty process in Sec.  219.104(d).
Paragraph (b)
    Paragraph (b) of this section (addressing pre-employment alcohol

testing) previously contained language identical to Sec.  219.501(b)
(addressing pre-employment drug testing), which provides that, as used
in subpart H, the term covered employee includes an applicant for pre-
employment testing only. It also provided that no record may be
maintained if an applicant declines to be tested and withdraws his or
her application for employment. As discussed above in Sec.  219.501(b),
FRA has amended the language in Sec.  219.502(b) to clarify that an
individual must decline to participate in a pre-employment alcohol test
by withdrawing his or her application before the testing process
begins. As defined by DOT in Sec.  40.243(a), the testing process
begins when an individually wrapped or sealed mouthpiece is selected by
the collector or the employee.

Section 219.503--Notification; Records

    The first and second sentences of this section require railroads to
provide medical review of pre-employment drug tests and to ``notify''
an applicant of the ``results of the drug and alcohol test'' as
provided for by subpart H. FRA is amending both of these sentences to
clarify that subpart H adopts the requirements found in part 40. FRA is
also amending the second sentence to clarify that a railroad must
provide written notice to an applicant who has had any type of non-
negative FRA test result (i.e., not just a positive, but also an
adulteration, substitution, or refusal). A railroad is not required,
however, to provide written notification to an applicant who has had a
negative FRA pre-employment alcohol or drug test result.
    FRA is also amending the third sentence of this section to clarify
that a railroad must maintain a record of each application it denies
because of the applicant's non-negative FRA pre-employment test. A
railroad must maintain a record for each individual who has had a non-
negative test result on a FRA pre-employment test, even if the railroad
denied the individual's application for employment, because an
individual who has had such a result must comply with the return-to-
service and follow-up testing requirements of part 40 before he or she
can begin performing DOT safety-sensitive functions for any employer
regulated by a DOT agency. A railroad does not have to maintain a
record, however, if an applicant withdraws his or her application to
perform regulated service before the testing process begins.

Section 219.505--Non-Negative Tests and Refusals

    Previously, this section prohibited an individual who ``refuses'' a
pre-employment test from performing covered service based upon the
application and examination with respect to which such refusal was
made. As proposed, FRA has amended this section to specifically
prohibit an individual who has refused or who had a non-negative (i.e.,
a positive, adulterated, or substituted test result) pre-employment
test result from performing DOT safety-sensitive functions for any DOT-
regulated employer until the individual has completed the Federal
return-to-duty process in Sec.  219.104(d). As amended, this section
conforms with Sec.  40.25(e), which prohibits an employer who has
information that an individual has violated a DOT agency drug or
alcohol regulation from using that individual to perform DOT safety-
sensitive functions until the employer receives information that the
individual has complied with the return-to-duty requirements of part 40
or any DOT agency.

Subpart G--Random Alcohol and Drug Testing Programs

    To achieve deterrence, a random testing program must ensure that
each covered employee (including volunteers and probationary employees
of a railroad or a contractor to a railroad), believes that he or she
is subject to random testing without advance notice each time the
employee is on duty and subject to performing covered service.
    FRA received no objections to its proposal to subject an employee
who performs MOW activities to the same random testing requirements as
one who performs covered service. Accordingly, each railroad must
submit for FRA approval a random testing plan that ensures each
regulated employee believes he or she is subject to random testing
without advance warning each time the employee is on-duty and subject
to performing regulated service.
    As proposed, FRA is revising and expanding subpart G,-to clarify
and consolidate requirements and to-incorporate longstanding published
FRA guidance. FRA received no comment on the majority of these changes,
which are adopted as proposed without additional discussion.

Subpart H--Drug and Alcohol Testing Procedures

    FRA received no comments on its minor editorial changes to this
section, which are adopted as proposed.

Subpart I--Annual Report

Section 219.800--Annual Reports

    FRA received no comments on its minor editorial changes to this
section, which are adopted as proposed.

Subpart J--Recordkeeping Requirements

Section 219.901--Retention of Alcohol and Drug Testing Records

    FRA received no comments on its proposals to ease recordkeeping
burdens by consolidating requirements, removing others, and allowing
still others to be maintained electronically. Accordingly, FRA is
adopting these proposals without further discussion, except for
proposed paragraph (c)(4)(iv), which contained an incorrect reference
to prescription drug training records under Sec.  219.103 and FRA has
not adopted.

Subpart K--Referral Programs

    For a variety of reasons, commenters found FRA's proposal to
replace its self-referral, co-worker report, and alternative policy
requirements with peer support program requirements, to be both
confusing and ill-advised. NCRMA and SMART (from this point forward
collectively referred to as ``Labor,'' unless a comment was submitted
by only one labor organization), in particular, raised objections and
called for clarifications. As Labor noted, the concept of a voluntary
peer referral program arose from ``Operation Redblock,'' a private rail
industry initiative to address alcohol abuse. Labor expressed deep
misgivings, both that FRA's proposed peer support programs could harm
these existing railroad programs, and that FRA's proposal to audit each
program would invade individual privacy and undermine employee trust in
the program. Labor also criticized FRA's proposal to allow an EAP
counselor to function as an alternative to a trained drug and alcohol
counselor, because an EAP counselor rarely has specific expertise in
abuse and addiction issues. (Typically, an EAP program addresses a
broad range of issues, such as marital or financial problems.)
Similarly, Labor objected to using peer counselors, noting that a peer
is usually a volunteer who provides empathy and advice based on his or
her own drug and alcohol problems, without a counseling or medical
degree.
    The Associations suggested that FRA use the term ``peer
prevention'' instead of ``peer support'' to emphasize that these
programs should be proactive in nature. The Associations also warned

that FRA should audit and release aggregate program data only, because
an employee could be discouraged from self-referring if the employee
knew that his or her individual data would be subject to FRA
examination. Like Labor, the Associations noted that a peer support
group is usually composed of selected peers and volunteers rather than
medical professionals; the Associations therefore supported allowing an
employee who self-refers to have the option of receiving counseling and
treatment from a Drug Abuse Counselor (DAC). Overall, the Associations
found FRA's proposed subpart K flawed and redundant of the voluntary
referral provisions already in Sec.  219.403.
    After consideration, FRA agrees that its proposal to mandate the
establishment of peer support programs was unnecessary, since privately
run railroad programs and FRA's own subpart E policies have both proven
effective in identifying and helping employees with drug and alcohol
abuse issues. FRA also agrees that its proposed peer support programs
could interfere with, or possibly even be detrimental to, existing
railroad self-referral programs. Therefore, instead of requiring the
adoption of peer prevention programs, FRA is revising and moving its
voluntary referral, co-worker report, and alternative policy
requirements from subpart E (which has been revised to address
reasonable cause testing) to new subpart K.
    With the exception of its proposal for non-peer referral programs,
which FRA is authorizing but not requiring under this rule, FRA is not
adopting its proposal to require peer support programs. To correspond
with this decision, FRA is retitling this subpart ``Referral Programs''
instead of the proposed ``Peer Support Programs.'' As explained in the
NPRM, FRA believes subpart E's previous title ``Identification of
Troubled Employees,'' to be outdated since the primary purpose of that
subpart had always been to evaluate and treat, not merely identify,
employees who have substance abuse issues. FRA is also, as proposed,
substituting the more commonly used term ``program'' for ``policy.''
    In addition, FRA is adopting the Associations' recommendation to
simplify this rule by requiring all the evaluation, counseling,
treatment, and recommendation required by this part to be performed by
a DAC. As defined in 49 CFR 242.7, a DAC meets all the credentialing
and qualifying requirements of a Substance Abuse Professional (SAP).
Title 49 CFR 40.3 defines an SAP A SAP as an individual who evaluates
an employee who has violated a DOT drug and alcohol regulation and
makes recommendations concerning education, treatment, follow-up
testing, and aftercare. By definition, therefore, a SAP cannot perform
a role in a voluntary referral program. In contrast, a DAC can treat
and evaluate an employee enrolled in a voluntary referral program,
since the DAC's involvement is not triggered by an employee's drug or
alcohol violation. With this caveat, a DAC serves the same function in
part this part as a SAP does in part 40.
    As mentioned above, FRA is adding an option for a ``non-peer
referral'' program, which authorizes, but does not require, a railroad
to accept referrals from family members, supervisors, labor
representatives, and other individuals who are not co-workers but who
have knowledge of an employee's drug abuse problems. FRA received no
objections to its proposal of this additional referral program. To
accommodate this third program, FRA is retitling its required ``co-
worker report'' program as a ``co-worker referral'' program so that
henceforth these three programs--voluntary, co-worker, and non-peer--
will collectively be referred to as ``referral programs.''
    With the addition of the option for a non-peer program, FRA is
reprinting requirements formerly found in subpart E, in a format that
breaks these requirements down to make them easier to understand and
implement. Both partially excepted small railroads and contractors are
excluded from subpart K. Class III railroads that do not qualify for
the small railroad exception must comply, however.

Section 219.1001--Requirements for Referral Programs

Paragraph (b)
    This paragraph generally outlines the purposes of mandatory
voluntary referral and co-worker referral programs. The descriptions of
these programs are reworded from those previously in subpart E, and no
substantive changes are intended.
Paragraph (c)
    This paragraph generally outlines the purposes of optional non-peer
referral and alternative programs. The description of an alternate
program is reworded from the one previously in subpart E, and no
substantive change is intended.
Paragraph (c)(1)
    Although FRA is not otherwise adopting its proposal to require
``peer support groups,'' FRA is authorizing a railroad to establish a
``non-peer referral'' program if it chooses to do so. A ``non-peer'' is
an individual who is not considered to be an employee's co-worker, such
as a trained supervisor, representative of an employee's collective
bargaining organization, or family member.
Paragraphs (d)(1), (2), and (5)
    These paragraphs restate general conditions for referral programs
previously found in subpart E. No substantive changes are intended.
Paragraphs (d)(3)-(4)
    These paragraphs prohibit referral programs from interfering with
the return-to-duty requirements in subpart B and the reasonable
suspicion testing requirements in subpart D.

Section 219.1003--Referral Program Conditions

    With the exception of the paragraphs discussed below, the required
allowances, conditions, and procedures in this section were previously
contained in subpart E.
Paragraph (g)
    As proposed, FRA is removing its previous minimum of 45 days leave
of absence to allow the DAC to determine the period of time an employee
needs.
Paragraph (h)(3)
    Formerly, only co-worker referrals allowed railroads to condition
an employee's return to regulated service upon successful completion of
a return-to-service medical evaluation. As proposed, a railroad may
impose this condition on self-referrals and non-peer referrals as well.
Paragraph (h)(4)
    As proposed, a railroad must return an employee to regulated
service within five working days of a DAC's recommendation that the
employee is fit to return.
Paragraph (i)
    As proposed, this paragraph prohibits a person or entity from
changing a DAC's evaluation of an employee or recommendation for
assistance. Only the DAC who made the initial evaluation may modify
that evaluation and any follow-up recommendations based upon new or
additional information.
Paragraph (j)
    As proposed, the confidentiality conditions in this paragraph,
which had previously applied only to candidates

for locomotive certification and locomotive engineers, have been
expanded to cover candidates for conductor certification and
conductors. Similarly, these requirements no longer apply only to
voluntary referrals; co-worker and non-peer referrals are also covered.
Paragraph (k)
    As proposed, a regulated employee who enters a co-worker or non-
peer referral for a verified violation of Sec.  219.101 or Sec.
219.102 must contact a DAC within a reasonable period of time, as
specified by the railroad's programs. If a regulated employee does not
contact a DAC within this time period, the railroad may investigate the
employee's cooperation and compliance with the referral program.
Paragraph (l)
    As proposed, paragraph (l) requires a DAC to complete a regulated
employee's evaluation within 10 working days of the employee's entering
a referral program and contacting the DAC. If more than one evaluation
is required, the DAC must complete these evaluations within 20 working
days. These time frames, which had previously applied only to co-worker
referrals, now apply to voluntary and non-peer referrals as well.
Paragraph (m)
    As proposed, a referral program may not require follow-up
treatment, care, or testing that exceeds 24 months beyond the regulated
employee's removal from service, unless the regulated employee had
committed a substantiated part 219 violation.

Section 219.1005--Optional Provisions

    This section describes provisions that a railroad is authorized,
but not required to, include in its referral program. The inclusion of
any of these provisions may be conditioned on the agreement of an
affected labor organization.
    Paragraph (a) permits a referral program to waive confidentiality
if a regulated employee refuses to cooperate in a course of education,
counseling, or treatment recommended by a DAC or if the railroad
determines later, after investigation, that a regulated employee was
involved in an alcohol or drug-related disciplinary offense growing out
of subsequent conduct. This text was previously found in subpart E for
voluntary referrals.
    Paragraph (a) specifies that nothing in subpart K prevents a
railroad or labor organization from adopting, publishing, and
implementing referral program policies that offer more favorable
conditions to regulated employees with substance abuse problems,
consistent with the railroad's responsibility to prevent violations of
Sec. Sec.  219.101 and 219.102. This language was previously found in
subpart E.
    Paragraph (b) requires an alternate program to have the concurrence
of the recognized representatives of the regulated employees as shown
by a collective bargaining agreement or other document describing the
class or craft of employees to which the alternate program applies.
This agreement must expressly reference subpart K and the intention of
the railroad and the employee representatives that the alternate
program applies in lieu of the programs required by subpart K. This
language is similar to that previously found in subpart E.
    Paragraph (c) requires a railroad to submit a copy of the agreement
or other document described in paragraph (b), along with a copy of the
alternate program described in paragraph (a), to the FRA Drug and
Alcohol Program Manager for approval. FRA will review the program to
see if it meets the general standards and intent of Sec.  219.1003. If
an alternate policy is amended or revoked, the railroad must notify FRA
at least 30 days before the amendment or revocation's effective date.
This last requirement was previously in subpart E.
    Paragraph (d) specifies that Sec.  219.1007 does not excuse a
railroad from the requirement to adopt, publish, and implement Sec.
219.1003 programs for any group of regulated employees not covered by
an approved alternate program. A virtually identical provision was
previously located in subpart E.
    Paragraph (e) references Sec.  219.105(c), which specifies that FRA
has the authority to audit any railroad alcohol and/or drug use
education, prevention, identification, and rehabilitation program
(including, but not limited to, alternate referral programs), to ensure
that the program is not designed or implemented to circumvent or
otherwise undermine Federal requirements.

Appendix A

    Appendix A to this part contains a schedule of civil penalties for
use in enforcing this part's requirements. FRA has revised the penalty
schedule to correspond to the restructuring of and addition of new
sections to this part. Because such penalty schedules are statements of
agency policy, notice and comment are not required before their
issuance. See 5 U.S.C. 553(b)(3)(A). Nonetheless, FRA has revised the
penalty schedule consistent with the previous, public schedule.

VII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures

    This final rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant, under
both Executive Orders 12866, and 13563, and DOT policies and
procedures. See 44 FR 11034, Feb. 26, 1979. FRA has prepared and placed
in the docket (No. FRA-2009-0039) a regulatory impact analysis (RIA)
addressing the economic impact of this final rule. Document inspection
and copying facilities are available at the DOT Central Docket
Management Facility located in Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590. Docket
material is also available for inspection electronically through the
Federal eRulemaking Portal at http://www.regulations.gov. As part of
the RIA, FRA has assessed quantitative measurements of the cost and
benefit streams expected to result from implementation of this final
rule. Overall, the final rule will result in safety benefits and
potential business benefits for the railroad industry. It will also,
however, generate an additional burden on railroads and railroad
contractors, mainly due to the expenses associated with increased drug
and alcohol testing and program administration, particularly regarding
MOW employees.
    The costs will primarily be derived from implementation of the
statutory mandate to expand the scope of part 219 to cover MOW
employees. The benefits will primarily accrue from the expected injury,
fatality, and property damage avoidance resulting from the expansion of
part 219 to cover MOW employees, as well as the PAT testing threshold
increase.
    Table 1 summarizes the quantified costs and benefits expected to
accrue from implementation of the final rule over a 20-year period. It
presents costs associated with the various types of drug and alcohol
testing in the final rule and details the statutory costs (those
required by the RSIA mandate to expand part 219 to MOW employees),
discretionary costs (those that are due to the non-RSIA requirements),
and the total of the two types of costs. Table 1 also presents the
quantified benefits expected to accrue over a 20-year period and
details the statutory benefits (those that result from implementation
of the

RSIA mandate to expand part 219 to MOW employees) and the discretionary
benefits (those that are due to the non-RSIA requirements). The
benefits include not only injury, fatality, and property damage
avoidance (accident reduction benefits), but also the savings, or
benefit, that will accrue from fewer PAT tests being conducted due to
FRA's increasing the property damage threshold for major train
accidents.
    For the 20-year period analyzed, the estimated quantified cost that
will be imposed on industry totals approximately $24.3 million
(undiscounted), with discounted costs totaling $14.2 million (Present
Value (PV), 7 percent) and $18.9 million (PV, 3 percent). The estimated
quantified benefits for this 20-year period total approximately $115.8
million (undiscounted), with discounted benefits totally $57.4 million
(PV, 7 percent) and $83.6 million (PV, 3 percent).

----------------------------------------------------------------------------------------------------------------
                                                                Statutory       Discretionary         Total
----------------------------------------------------------------------------------------------------------------
                                                 Costs (20 year)
----------------------------------------------------------------------------------------------------------------
PAT Testing--Adding MOW...................................           $52,000  ................           $52,000
PAT Testing--Impact Def + Xing............................  ................          $241,974           241,974
Reasonable Suspicion Testing..............................           842,398  ................           842,398
Pre-Employment Testing--Adding MOW........................           673,897  ................           673,897
Pre-Employment Testing--Sm, RR............................  ................            29,904            29,904
Random Testing............................................        20,863,074  ................        20,863,074
Annual Reporting..........................................           160,911  ................           160,911
Recordkeeping Requirement.................................         1,397,840  ................         1,397,840
                                                           -----------------------------------------------------
    Costs Subtotal........................................        23,990,120           271,878        24,261,998
----------------------------------------------------------------------------------------------------------------
                                               Benefits (20 year)
----------------------------------------------------------------------------------------------------------------
Accident Reduction........................................       115,369,281  ................       115,369,281
PAT Testing Threshold Reduction...........................  ................           388,295           388,295
                                                           -----------------------------------------------------
    Benefits Subtotal.....................................       115,369,281           388,295       115,757,576
                                                           -----------------------------------------------------
        Net Benefits......................................        91,379,161           116,417        91,495,578
----------------------------------------------------------------------------------------------------------------

    Overall, the RIA demonstrates that the costs, both statutory and
discretionary, associated with implementing the final rule are expected
to be outweighed by the benefits resulting from reduced injuries,
fatalities, and property damage attributable to drug and alcohol misuse
by regulated employees. FRA has also found that the costs will be
outweighed by injury and fatality mitigation alone, and benefits will
further accrue due to reduced property damage. Specifically, the
statutory requirements incur a discounted 20-year cost of $14.1 million
(PV, 7 percent) and $18.6 million (PV, 3 percent). The discretionary
portion of the costs to incur over the next 20-years is $143,665 (PV, 7
percent) and $202,023 (PV, 3 percent), with discounted 20-year benefits
of $205,574 (PV, 7 percent) and $288,776 (PV, 3 percent).

B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment

    FRA developed the final rule in accordance with Executive Order
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's procedures and policies to promote compliance with the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) to ensure potential
impacts of rules on small entities are properly considered.
Furthermore, FRA invited all interested parties to submit data and
information regarding the Initial Regulatory Flexibility Analysis
(IRFA) and did receive two comments about it during the public comment
period.
    The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant economic
impact on a substantial number of small entities.
    The final rule will apply to all employees of railroad carriers,
contractors, or subcontractors to railroad carriers who perform
maintenance-of-way activities. Based on information available, FRA
estimates that less than 14 percent of the total railroad costs
associated with implementing the final rule will be borne by small
entities. This percentage is based directly upon the percentage of
affected employees estimated to be working for small entities. Small
entities were exempt from certain requirements of the prior rule,
continue to be exempt from certain requirements of this final rule, and
otherwise bear proportional burden for the requirements based upon the
number of regulated employees each entity employs. Small entities will
not incur greater costs per employee than the larger entities.
    FRA generally uses conservative assumptions in its costing of
rules; based on those assumptions, FRA estimates that the cost for the
final rule will be approximately $24 million for the next 20 years for
the railroad industry. There are 695 railroads that are considered
small for purposes of this analysis, and together they comprise
approximately 93 percent of the railroads impacted directly by this
final regulation. The 14 percent of the burden will be spread amongst
the 695 entities, based proportionally upon the number of employees
each has. Thus, although a substantial number of small entities in this
sector will likely be impacted, the economic impact on them will likely
be insignificant. This RFA is not intended to be a stand-alone
document. To get a better understanding of the total costs for the
railroad industry (which form the basis for the estimates in this RFA),
or more cost detail on any specific requirement, please see the RIA
that FRA has placed in the docket for this rulemaking.
1. Description of Regulated Entities
    The ``universe'' of the entities considered in an RFA generally
includes only those small entities that can reasonably expect to be
directly regulated by this final action. The types of small entities
potentially affected by this final rule are: (1) Small railroads;

(2) small contractors that engage in MOW operations; and (3) small
contractors that provide HOS services (such as dispatching, signal, and
train and engine services).
    ``Small entity'' is defined in 5 U.S.C. 601(3) as having the same
meaning as ``small business concern'' under Section 3 of the Small
Business Act. This includes any small business concern that is
independently owned and operated, and is not dominant in its field of
operation. Section 601(4) likewise includes within the definition of
``small entities'' not-for-profit enterprises that are independently
owned and operated, and are not dominant in their field of operation.
The U.S. Small Business Administration (SBA) stipulates in its size
standards that the largest a railroad business firm that is ``for
profit'' may be and still be classified as a ``small entity'' is 1,500
employees for ``Line Haul Operating Railroads'' and 500 employees for
``Switching and Terminal Establishments.'' Additionally, 5 U.S.C.
601(5) defines as ``small entities'' governments of cities, counties,
towns, townships, villages, school districts, or special districts with
populations less than 50,000.
    Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to that authority, FRA has published a final
statement of agency policy that formally establishes ``small entities''
or ``small businesses'' as being railroads, contractors, and hazardous
materials shippers that meet the revenue requirements of a Class III
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less
in inflation-adjusted annual revenues, and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less.
(See 68 FR 24891; May 9, 2003, codified at appendix C to 49 CFR part
209.) The $20 million limit is based on the STB's revenue threshold for
a Class III railroad. Railroad revenue is adjusted for inflation by
applying a revenue deflator formula in accordance with 49 CFR 1201.1-1.
FRA is using this definition for this rulemaking.
    An estimated 1,095 entities will be affected by the rule. FRA
estimates that there are approximately 400 MOW contractor companies and
695 small railroads on the general system. FRA estimates that 86
percent of employees that will be regulated under this rule work for
these 74 railroads and contractors. Most railroads must comply with all
provisions of part 219. However, as previously indicated, FRA has a
``small railroad'' definition associated with part 219 that limits
compliance requirements for railroads with 15 HOS employees or less and
no joint operations to reduce burden on the smallest of railroads.
    There are approximately 695 small railroads (as defined by revenue
size). Class II and Class III railroads do not report to the STB, and
although the number of Class II railroads is known, the precise number
of Class III railroads is difficult to ascertain due to conflicting
definitions, conglomerates, and even seasonal operations. Potentially,
all small railroads could be impacted by this final regulation. Part
219 has a small railroad exception for all railroads with 15 or fewer
covered employees, except when these railroads have joint operations
with another railroad, therefore increasing risk. Thus a railroad with
such characteristics shall be called a ``partially excepted small
railroad'' in this analysis, and is a subsection of the ``small
entities'' as defined by the STB and FRA, addressed above. Currently,
there are 288 partially excepted small railroads and, as FRA is not
amending to the substantive criteria of classification, there should be
no change in the number of partially excepted small railroads
associated with the final rule.
    All commuter railroad operations in the United States are part of
larger governmental entities whose jurisdictions exceed 50,000 in
population.
    As mentioned, all railroads must comply with all or limited
subparts of part 219. For partially excepted small railroads, per FRA's
definition, the significant burden involves the costs of adding MOW
employees to the existing testing programs, and adding reasonable
suspicion and pre-employment drug testing (which they have not needed
to comply with).
    A significant portion of the MOW industry consists of contractors.
FRA has determined that risk lies as heavily with contractors as with
railroad employees, so contractors and subcontractors will be subject
to the same provisions of part 219 as the railroads for which they do
contract work. Whether contractors must comply with all or part of the
provisions of part 219 will depend on the size of the largest railroad
(assumed to have the largest risk) for which the contractor works.
    FRA discussed with industry representatives how to ascertain the
number of contractors that will be involved with this rulemaking. FRA
is aware that some railroads hire contractors to conduct some or all of
the MOW worker functions on their railroads. Generally, the costs for
the burdens associated with this rulemaking will get passed on from the
contractor to the pertinent railroad. FRA has determined that there are
approximately 400 MOW-related contractor companies who will be covered
by the final rule. Of those, 370 are considered to be a ``small
entity.'' FRA has sought estimates of the number of contractors that
may be fully compliant and how many may be partially excepted,
depending on the size of the largest railroad for which they work.
    FRA expects that some HOS small contractors will be impacted based
upon the compliance requirements for part 219 small railroads to now
include reasonable suspicion testing and pre-employment drug testing.
This burden is estimated to be minimal, as reasonable suspicion tests
occur extremely infrequently on small railroads (average less than one
time per year for all small railroads), and pre-employment drug tests,
the least costly of all tests, will only be required for new employees.
    No other small businesses (non-railroad related) are expected to be
negatively impacted significantly by this rulemaking. Conversely, this
final regulation will bring business to consortiums, collectors,
testing labs, and other companies involved in the drug and alcohol
program business.
    Expanding the program to cover MOW employees will only have a small
effect in terms of testing burden for railroads, based upon the cost of
pre-employment drug testing for new employees and the testing of MOW
employees. FRA estimates that 90 percent of small railroads already
conduct pre-employment drug testing under their own company authority.
Many of these contractors have employees with commercial drivers'
licenses (CDLs), and therefore fall under the drug and alcohol program
requirements of the Federal Motor Carrier Safety Administration
(FMCSA). Therefore, an estimated 40 percent of MOW contracted employees
already participate in a DOT drug and alcohol testing program.
Furthermore, FRA estimates that as many as 50-75 percent of all MOW
contractor companies have some form of a drug and alcohol testing
program, and that around 25 percent of these companies currently
complete random testing (the most burdensome type of testing).
    Consortia are companies that provide testing, random selection,
collection, policy development, and training services to help employers
stay compliant. Consortia alleviate much of the administrative burden
of a testing

program and negotiate volume discounts on behalf of their clients. It
is likely that all part 219 small railroads already have a compliant
testing program for employees that have been covered under the
regulation. It should also be noted that approximately 125 of the small
railroads that will be impacted are subsidiaries of large short line
holding companies with resources comparable to larger railroads.
Additionally, many small railroads are members of ASLRRA, which was
consulted throughout the development of this regulation. ASLRRA has
helped create a consortium for its members in the past, and FRA will
work to ensure that small entities, as well as large, have the ability
to adhere to the regulation as easily as possible. The consortium
market will be affected in a positive manner due to new business from
this rulemaking; this is a secondary benefit not discussed in this RFA.
Significant Economic Impact Criteria
    Previously, FRA sampled small railroads and found that revenue
averaged approximately $4.7 million (not discounted) in 2006. One
percent of that average annual revenue per small railroad is $47,000.
FRA realizes that some railroads will have lower revenue than $4.7
million. However, FRA estimates that small railroads will not have any
additional expenses over the next ten years to comply with the new
requirements in this final regulation. Based on this, FRA concludes
that the expected burden of this final rule will not have a significant
impact on the competitive position of small entities, or on the small
entity segment of the railroad industry as a whole.
Substantial Number Criteria
    This final rule will likely burden all small railroads that are not
exempt from its scope or application (see 49 CFR 219.3). Thus, as noted
above this final rule will impact a substantial number of small
railroads.
2. Certification
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA
certifies that this final rule will not have a significant economic
impact on a substantial number of small entities. FRA invited all
interested parties to submit data and information regarding the
potential economic impact that will result from adoption of the
proposals in the NPRM. FRA did receive comments concerning the initial
regulatory flexibility analysis in the public comment process. The
final rule addresses these concerns by continuing FRA's longstanding
approach of counting only a railroad's covered employees for purposes
of determining whether the railroad qualifies for the small railroad
exception (the railroad also cannot participate in any joint
operations) because FRA believes this is the best measure of the risks
posed by the railroad's operations. FRA received no objections to this
proposal and adopted in its final rule.

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this
final rule for review and 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 and current information
collection requirements and the estimated time to fulfill each
requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
           CFR Section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
219.4--Petition for Recognition    2 Railroads........  2 petitions........  40 hours...........              80
 of a Foreign Railroad's
 Workplace Testing Program.
219.7--Waivers...................  722 railroads + 400  4 waivers..........  2 hours............               8
                                    MOW contractors.
219.9--Joint Operating Agreement   722 railroads + 400  525 agreements.....  30 minutes.........             263
 between Railroads Assigning        MOW contractors.
 Responsibility for Compliance
 with this Part Amongst
 Themselves (Revised Requirement).
    --Request to railroad for      722 railroads + 400  2 requests/          1 hour.............               2
     documents by employee          MOW contractors.     documents.
     engaged in joint operation
     and subject to adverse
     action after being required
     to participate in breath/
     body fluid testing under
     subpart C, D, or E of part
     219 (Revised Requirement).
    --Document by railroad/        722 railroads + 400  10 documents.......  2 hours............              20
     contractor delineating         MOW contractors.
     responsibility for
     Compliance with this part
     (Revised Requirement).
219.11--Employee consent to        722 railroads + 400  30 consent forms...  2 minutes..........               1
 participate in body fluid          MOW contractors.
 testing under subpart C.
    --Notification to employees    142,000 employees..  9,508 notices......  5 seconds..........              13
     for testing (New
     Requirement).
    --RR Alcohol & Drug Program    722 railroads + 400  722 modified         1 hour.............             722
     that provides training to      MOW contractors.     Programs.
     supervisors and information
     on criteria for post-
     accident toxicological
     testing contained in part
     219, subpart C, and appendix
     C (Revised Requirement).
    --Alcohol and Drug Programs -- 5 railroads........  5 programs.........  3 hours............              15
     New RRs.
    --Training of Supervisory      722 railroads + 400  2,462 trained        3 hours............           7,386
     Employees in signs/symptoms    MOW contractors.     supervisors.
     of alcohol/drug influence.
219.12--RR Documentation on need   722 railroads + 400  5 documents........  30 minutes.........               3
 to place employee on duty for      MOW contractors.
 follow-up tests (New
 Requirement).
219.23--Educational materials      722 railroads + 400  1,098 revised        1 hour.............           1,098
 concerning the effects of          MOW contractors.     educational
 alcohol/drug misuse on                                  documents.
 individual employees.
    --Copies of educational        142,000 employees..  142,000 copies of    2 minutes..........           4,733
     materials to employees.                             documents.

219.104--Removal of employee from  722 railroads + 400  500 notices + 500    30 seconds + 2                   21
 regulated service (Rev.            MOW contractors.     letters.             minutes.
 Requirement) Verbal Notice +
 Follow-up Written Letter.
    --Request for Hearing by       722 railroads + 400  50 requests + 50     2 minutes +........             202
     Employee who Denies Test       MOW contractors.     hearings.           4 hours............
     Result or other Information
     is Valid Evidence of part
     219 Violation.
    --Applicants Declining Pre-    722 railroads + 400  60 notices/          2 minutes..........               2
     Employment Testing and         MOW contractors.     communications.
     Withdrawing Employment
     Application- Communications
     (Revised Requirement).
219.105--Revised Requirements RR   722 railroads + 400  2 documents........  5 minutes..........             .17
 Duty to prevent violation--        MOW contractors.
 Documents provided to FRA after
 agency request regarding RR's
 Alcohol and/or Drug Use
 Education/Prevention/Etc.
    --RR Supervisor Rule G         722 railroads/400    280,000 Rule G       2 seconds + 2                   310
     observations and records of    MOW contractors.     observations +       seconds.
     regulated employees.                                280,000 records.
219.201(c)--Report by RR           722 railroads + 400  2 reports..........  30 minutes.........               1
 concerning decision by person      MOW contractors.
 other than RR representative
 about whether an accident/
 incident qualifies for testing.
219.203/207--Major train
 accidents--Post Accident
 Toxicological Testing Forms
    --Completion of FRA F 6180.73  142,000 employees..  240 forms..........  10 minutes.........              40
    --Determination by RR          722 railroads + 400  80 decisions/        15 minutes.........              20
     representative to test non-    MOW contractors.     determinations.
     crew member regulated
     employees based on specific
     information (New
     Requirement).
    --Determination by RR          722 railroads + 400  50 decisions/        5 minutes..........               4
     representative to exclude      MOW contractors.     determinations.
     surviving crewmember from
     testing (New Requirement).
    --Verbal notification and      722 railroads +      80 notifications +   2 minutes + 30                   43
     subsequent written report of   400MOW contractors.  80 reports.          minutes.
     failure to collect urine/
     blood specimens within four
     hours (New Requirement).
    --RR determination after       722 railroads + 400  25 decisions/        10 minutes.........               4
     accident to make crew          MOW contractors.     determinations.
     available for toxicological
     testing (New Requirement).
    --RR call for train relief     722 railroads + 400  25 calls...........  5 minutes..........               2
     crew (New Requirement).        MOW contractors.
    --Recall of employees for      722 railroads + 400  4 calls + 4 reports  2 minutes + 30                    2
     testing and Narrative Report   MOW contractors.                          minutes.
     Completion (New Requirement).
    --RR Reference to part 219     722 railroads + 400  80 references......  15 minutes.........              20
     requirements and FRA's post-   MOW contractors.
     accident toxicological kit
     in seeking to obtain
     facility cooperation (New
     Requirement).
    --RR Notification to National  722 railroads + 400  2 phone calls......  10 minutes.........             .33
     Response Center of injured     MOW contractors.
     employee unconscious or
     otherwise unable to give
     testing consent.
219.205--Specimen Handling/        722 railroads + 400  240 forms..........  15 minutes.........              60
 Collection--Completion of Form     MOW contractors.
 FRA F 6180.74 by train crew
 members after accident.
    --RR representative request    722 railroads + 400  80 ph. requests....  2 minutes..........               3
     to medical facility            MOW contractors.
     representative to complete
     remaining information on FRA
     F 6180.74.
    --RR representative            722 railroads + 400  80 forms...........  10 minutes.........              13
     completion of Form FRA F       MOW contractors.
     6180.73.
    --Request to FRA Alcohol and   722 railroads + 400  5 requests.........  2 minutes..........             .17
     Drug Program Manager for       MOW contractors.
     order form for Standard
     Shipping Kits (new
     requirement).
    --Request to National          722 railroads + 400  1 request..........  2 minutes..........          .03333
     Response Center (NRC) for      MOW contractors.
     Post-Mortem Shipping Kit
     (New Requirement).
    --RR Request to Medical        722 railroads + 400  40 ph. requests....  2 minutes..........               1
     Facility to Transfer Sealed    MOW contractors.
     Toxicology Kit.
    --Documentation of chain of    722 railroads + 400  40 documents.......  2 minutes..........               1
     custody of sealed toxicology   MOW contractors.
     kit from medical facility to
     lab delivery.
    --RR/Medical Facility Record   722 RRs + 400        20 written records.  2 minutes..........               1
     of Kit Error (New              contr..
     Requirement).

219.209(a)--Notification to NRC    722 railroads + 400  40 phone reports...  2 minutes..........               1
 and FRA of Accident/Incident       MOW contractors.
 where Samples were Obtained.
219.209(c)--Record of Part 219     722 railroads + 400  40 records.........  30 minutes.........              20
 Test not Administered within 4     MOW contractors.
 Hours Following Accident/
 Incident.
219.211(b)--Results of post-       722 railroads + 400  10 reports.........  15 minutes.........               3
 accident toxicological testing     MOW contractors.
 to RR MRO and RR Employee.
    (c)--MRO Report to FRA of      722 railroads + 400  10 reports.........  15 minutes.........               3
     positive test for alcohol/     MOW contractors.
     drugs of surviving employee.
219.303--Reasonable Suspicion
 Observations (Drug Test)
    --Communication between On-    722 railroads + 400  50 phone             2 minutes..........               2
     Site and Off-Site              MOW contractors.     communications.
     Supervisors regarding
     Reasonable Suspicion
     Observation.
    --RR Written Documentation of  722 railroads + 400  30 documents.......  5 minutes..........               3
     Observed Signs/Symptoms for    MOW contractors.
     Reasonable Suspicion
     Determination.
219.305--RR Written Record         722 railroads + 400  30 records.........  2 minutes..........               1
 Stating Reasons Test was Not       MOW contractors.
 Promptly Administered (New
 Requirement).
219.401--Notification to Employee  722 railroads + 400  50 notifications...  15 minutes.........              13
 regarding Reasonable Cause         MOW contractors.
 Testing (New Requirement).
219.405--RR Documentation          722 railroads + 400  50 documents.......  15 minutes.........              13
 Describing Basis of Reasonable     MOW contractors.
 Cause Testing (New Requirements).
    --RR Documentation of Rule/    722 railroads + 400  20 documents.......  15 minutes.........               5
     Part 225 Violation for Each    MOW contractors.
     Reasonable Cause Test (New
     Requirement).
219.407--Prompt specimen           722 railroads + 400  15 records.........  15 minutes.........               4
 collection time limitation         MOW contractors.
 exceeded--Record (Revised
 Requirement).
219.501--RR Documentation of       722 railroads + 400  1,200 tests + 1,200  15 minutes + 5                  400
 Negative Pre-Employment Drug       MOW contractors.     documents.           minutes.
 Tests (New Requirement).
219.605--Submission of random      5 railroads........  5 plans............  1 hour.............               5
 testing plan (Revised
 Requirement): Existing RRs.
    --New Railroads submission of  722 railroads + 400  20 amendments......  1 hour.............              20
     random testing plans           MOW contractors.
     (Revised Requirement).
    --Amendments to Currently-     722 railroads + 400  21 resubmitted       15 minutes.........               5
     Approved FRA Random Testing    MOW contractors.     plans.
     Plan (Revised Requirement).
    --Resubmitted random testing   722 railroads + 400  50 amendments......  10 minutes.........               8
     plans after notice of FRA      MOW contractors.
     disapproval (New
     Requirement).
    --Non-Substantive Amendment    722 railroads + 400  20 random testing    15 minutes.........               5
     to an Approved Plan (New       MOW contractors.     plans.
     Requirement).
    --New/Combined/Amended Random  722 railroads + 400  200 plans..........  1 hour.............             200
     Testing Plans Incorporating    MOW contractors.
     New Categories of Regulated
     Employees (New Requirement).
219.607--RR Requests to            722 railroads + 400  50 requests........  15 minutes.........              13
 Contractor or Service Agent to     MOW contractors.
 Submit Part 219 Compliant Random
 Testing Plan on Its Behalf (New
 Requirement).
    --Contractor Random Testing    722 MOW contractors  50 plans...........  1 hour.............              50
     Plan (New Requirement).
219.609--Inclusion of Regulated    722 railroads + 400  15 plans...........  10 minutes.........               3
 Service Contractor Employees/      MOW contractors.
 Volunteers in RR Random Testing
 Plan (New Requirement).
    --Addenda to RR Random         722 railroads + 400  15 addenda.........  10 minutes.........               3
     Testing Plan Describing        MOW contractors.
     Method Used to Test
     Contractor/Volunteer
     Employees in Non-Random
     Testing Plan (New
     Requirement).
219.611--Random Alcohol and Drug   722 railroads + 400  25,000               30 seconds + 30                 417
 Test Pools: Good Faith             MOW contractors.     determinations +     seconds.
 Determinations and Evaluations                          25,000 evaluations.
 of Employee Likelihood of
 Performing Regulated Service
 (New Requirement).
    --Random Testing Pool Updates  722 railroads + 400  13,176 pool updates  5 minutes..........           1,098
     (New Requirement).             MOW contractors.
    --Documents on RR Multiple     722 railroads + 400  96 documents.......  5 minutes..........               8
     Random Testing Pools (New      MOW contractors.
     Requirement).

219.613--RR Identification of      722 railroads + 400  2,196 IDs..........  2 minutes..........              73
 Total Number of Eligible           MOW contractors.
 Employees for Random Testing
 (New Requirement).
    --RR Records/Explanation of    722 railroads + 400  10 records/          2 minutes..........             .33
     Discarded Selection Draws      MOW contractors.     explanations.
     (New Requirement).
    --Electronic or Hard Copy of   722 railroads + 400  13,176 snapshots/    2 minutes..........           1,098
     RR Snapshot of Each Random     MOW contractors.     records.
     Testing Pool (New
     Requirement).
219.615--Incomplete Random         722 railroads + 400  2,000 documents....  .5 minute..........              17
 Testing Collections--              MOW contractors.
 Documentation (New Requirement).
219.617--Employee Exclusion from   722 railroads + 400  5 documents........  1 hour.............               5
 Random alcohol/drug testing        MOW contractors.
 after providing verifiable
 evidence from credible outside
 professional (Revised
 Requirement).
219.619--Report by MRO of          722 railroads + 400  88 reports.........  5 minutes..........               7
 Verified Positive Test or by       MOW contractors.
 Breath Alcohol Technician of
 Breath Alcohol Specimen of 0.04
 or Greater (New Requirement).
219.623--Random Testing Records    722 railroads + 400  40,000 records.....  1 minute...........             667
 (New Requirement).                 MOW contractors.
219.901--RR Alcohol and Drug       722 railroads + 400  16,960 records.....  5 minutes..........           1,413
 Misuse Prevention Records for      MOW contractors.
 MOW Employees Kept by FRA--Two
 Year Maintenance (Revised
 Requirement).
219.1001--RR Change of Service     722 railroads + 400  40 programs........  3 hours............             120
 Provider or Policy for Referral    MOW contractors.
 Program.
    --New Railroads Adoption of    5 railroads........  5 programs.........  3 hours............              15
     Referral Program.
    --Co-worker Report that        722 railroads + 400  602 reports........  5 minutes..........              50
     Employee is Unsafe to work     MOW contractors.
     with/in Violation of Part
     219 or Railroad's Drug/
     Alcohol Rules.
219.1003--RR Designation of DAC    722 railroads + 400  40 designations/ RR  20 minutes.........              13
 and expectations when self-        MOW contractors.     expectations.
 referral is allowed.
    --RR Employee Self-Referral..  722 railroads + 400  602 self-referrals.  10 seconds.........               2
                                    MOW contractors.
    --Referral for treatment/      722 railroads + 400  602 treatment        30 minutes.........             301
     evaluation of regulated        MOW contractors.     referrals/
     employee by co-worker as                            evaluations.
     unsafe to work with or in
     violation of part 219 or RR
     alcohol/drug rules.
    --After non-per referral,      722 railroads + 400  3 removal            4 hours............              12
     removal of employee from       MOW contractors.     confirmations.
     service and confirmation by
     RR representative that
     employee is unsafe to work
     with or in violation of part
     219 or RR drug/alcohol rule
     (New Requirement).
    --Regulated employee waiver    722 railroads + 400  3 waivers + 3 DAC    3 hours + 20                     10
     of investigation on RR rule    MOW contractors.     contacts.            minutes.
     charge and contact of DAC
     within reasonable time
     period (New Requirement).
    --Employee evaluation by       722 railroads + 400  602 evaluations....  2 hours............           1,204
     qualified DAC after self-      MOW contractors.
     referral, co-worker
     referral, or non-peer
     referral.
    --DAC recommendation of leave  722 railroads + 400  602 mentions/        1 hour.............             602
     of absence for regulated       MOW contractors.     recommendation.
     employee.
    --DAC Notification to RR that  722 railroads + 400  602 notices........  10 minutes.........             100
     employee is fit to return to   MOW contractors.
     regulated service.
    --DAC modification of initial  722 railroads + 400  60 modified          10 minutes.........              10
     evaluation of regulated        MOW contractors.     evaluations.
     employee.
219.1005--Referral Programs with   722 railroads + 400  10 referral          20 hours...........             200
 Labor Organization Approvals       MOW contractors.     programs.
 that Include Optional Provisions
 (New Requirement).
219.1007--Filing of Documents/     722 railroads + 400  10 documents.......  1 hour.............              10
 Records with FRA of Labor          MOW contractors.
 Concurrences for Alternate
 Referral Programs (New
 Requirement).
    --Notice to FRA of Amendment   722 railroads + 400  1 notice/amended     1 hour.............               1
     or Revocation of FRA           MOW contractors.     peer referral
     Approved Referral Program                           program.
     (New Requirement).
Appendix C--Completion of Form     722 railroads + 400  10 completed forms.  20 minutes.........               3
 FRA F 6180.75 after rail           MOW contractors.
 accident/incident resulting in
 fatality.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Mr. Robert Brogan, FRA
Office of Railroad Safety, Information Collection Clearance Officer, at
202-493-6292, or Ms. Kim Toone, FRA Office of Information Technology,
Information Clearance Officer, at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should send them directly to the
Office of Management and Budget, Office of Information and Regulatory
Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments
may also be sent via email to the Office of Management and Budget at
the following address<EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this final 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 cannot 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 before the effective date of the final rule. The OMB
control number, when assigned, will be announced by separate notice in
the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 4, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132. FRA has determined
that the rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. In addition, FRA has determined that this rule
will not impose substantial direct compliance costs on State and local
governments. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply.
    This rule complies with a statutory mandate and will not have a
substantial effect on the States, on the relationship between the
Federal government and the States, or on the distribution of power and
responsibilities among the various levels of government. In addition,
this rule will not have any federalism implications that impose
substantial direct compliance costs on State and local governments.
    However, FRA notes that this part could have preemptive effect by
the operation of law under a provision of the former Federal Railroad
Safety Act of 1970, repealed and codified at 49 U.S.C. 20106 (Sec.
20106). Sec. 20106 provides that States may not adopt or continue in
effect any law, regulation, or order related to railroad safety or
security that covers the subject matter of a regulation prescribed or
order issued by the Secretary of Transportation (with respect to
railroad safety matters) or the Secretary of Homeland Security (with
respect to railroad security matters), except when the State law,
regulation, or order qualifies under the ``essentially local safety or
security hazard'' exception to Sec. 20106.
    In sum, FRA has analyzed this rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this rule has no federalism
implications, other than the possible preemption of State laws under 49
U.S.C. 20106 and 20119. Accordingly, FRA has determined that
preparation of a federalism summary impact statement for this rule is
not required.

E. Environmental Impact

    FRA has evaluated this final rule in accordance with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other
environmental statutes, related regulatory requirements, and its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999). FRA has determined that this final rule is
categorically excluded from detailed environmental review pursuant to
section 4(c)(20) of FRA's NEPA Procedures, ``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.'' See 64 FR 28547,
May 26, 1999. Categorical exclusions (CEs) are actions identified in an
agency's NEPA implementing procedures that do not normally have a
significant impact on the environment and therefore do not require
either an environmental assessment (EA) or environmental impact
statement (EIS). See 40 CFR 1508.4.
    In analyzing the applicability of a CE, the agency must also
consider whether extraordinary circumstances are present that would
warrant a more detailed environmental review through the preparation of
an EA or EIS. Id. In accordance with section 4(c) and (e) of FRA's
Procedures, the agency has further concluded that no extraordinary
circumstances exist with respect to this regulation that might trigger
the need for a more detailed environmental review. The purpose of this
rulemaking is to expand the scope of FRA's drug and alcohol regulations
to cover MOW workers as per Congress' mandate in the RSIA.
Specifically, the rule adopts part 214's definition of ``Roadway
Worker'' to define ``MOW employee'' under part 214, contains a revised
version of the troubled employee identification requirements, and
updates and restructures the rule to make it more user-friendly. FRA
does not anticipate any environmental impacts from this or any other
requirement of the final rule. FRA also finds that there are no
extraordinary circumstances present in connection with this final rule.

F. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534, May 10,

2012) require DOT agencies to achieve environmental justice as part of
their mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects, including interrelated social and economic effects, of their
programs, policies, and activities on minority populations and low-
income populations. The DOT Order instructs DOT agencies to address
compliance with Executive Order 12898 and requirements within the DOT
Order in rulemaking activities, as appropriate. FRA has evaluated this
final rule under Executive Order 12898 and the DOT Order and determined
it will not cause disproportionately high and adverse human health and
environmental effects on minority populations or low-income
populations.

G. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this final rule in accordance with the principles
and criteria contained in Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, dated November 6, 2000.
The final rule would not have a substantial direct effect on one or
more Indian tribes, would not impose substantial direct compliance
costs on Indian tribal governments, and would not preempt tribal laws.
Therefore, the funding and consultation requirements of Executive Order
13175 do not apply, and a tribal summary impact statement is not
required.

H. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to foreign commerce of the United States. Legitimate domestic
objectives, such as safety, are not considered unnecessary obstacles.
The statute also requires consideration of international standards and
where appropriate, that they be the basis for U.S. standards.
    This rulemaking is purely domestic in nature and is not expected to
affect trade opportunities for U.S. firms doing business overseas or
for foreign firms doing business in the United States.

I. 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 one 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 rule will not result in the expenditure of more than $100,000,000
(as adjusted annually for inflation) by the public sector in any one
year, and thus preparation of such a statement is not required.

J. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) 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, that: (1)(i) 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) is designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
FRA has evaluated this rule in accordance with Executive Order 13211,
and determined that it will not 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 Executive Order 13211.

K. Privacy Act Information

    Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the comment (or signing the document,
if submitted on behalf of an association, business, labor union, etc.).
See http://www.regulations.gov/#!privacyNotice for the privacy notice
of regulations.gov or interested parties may review DOT's complete
Privacy Act Statement in the Federal Register published on April 11,
2000 (65 FR 19477). In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

List of Subjects in 49 CFR Part 219

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

The Rule

    For the reasons stated above, FRA amends part 219 as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

0
1. The authority citation for part 219 is revised to read as follows:

    Authority:  49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311;
28 U.S.C. 2461, note; Sec. 412, Div. A, Pub. L. 110-432, 122 Stat.
4889 (49 U.S.C. 20140, note); and 49 CFR 1.89.

Subpart A--General

0
2. Revise Sec.  219.1(a) to read as follows:

Sec.  219.1  Purpose and scope.

    (a) The purpose of this part is to prevent accidents and casualties
in railroad operations that result from impairment of employees by
alcohol or drugs.
* * * * *

0
3. Revise Sec.  219.3 to read as follows:

Sec.  219.3  Application.

    (a) General. This part applies to all railroads and contractors,
except as provided in paragraphs (b), (c), and (d) of this section, and
except for:
    (1) Railroads that operate only on track inside an installation
that is not part of the general railroad system of transportation
(i.e., plant railroads, as defined in Sec.  219.5);
    (2) Tourist, scenic, historic, or excursion operations that are not
part of the general railroad system of transportation, as defined in
Sec.  219.5; or
    (3) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
    (b) Annual report requirements. (1) Subpart I of this part does not
apply to

any domestic or foreign railroad that has fewer than 400,000 total
annual employee work 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.
    (2) Subpart I of this part does not apply to any contractor that
performs regulated service exclusively for railroads with fewer than
400,000 total annual employee work 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.
    (3) When a contractor performs regulated service for at least one
railroad with fewer than 400,000 total annual 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, subpart I of this part applies as follows:
    (i) A railroad with more than 400,000 total annual employee work
hours must comply with subpart I regarding any contractor employees it
integrates into its own alcohol and drug testing program under this
part; and
    (ii) If a contractor establishes its own independent alcohol and
drug testing program that meets the requirements of this part and is
acceptable to the railroad, the contractor must comply with subpart I
if it has 200 or more regulated employees.
    (c) Small railroad exception. (1) Subparts E and G of this part do
not apply to small railroads, and a small railroad may not perform the
Federal alcohol and drug testing authorized by these subparts. For
purposes of this part, a small railroad means 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 have joint operations, as defined in Sec.  219.5,
with another railroad that operates in the United States, except as
necessary for purposes of interchange.
    (2) An employee performing only MOW activities, as defined in Sec.
219.5, does not count towards a railroad's total number of covered
employees for the purpose of determining whether it qualifies for the
small railroad exception.
    (3) A contractor performing MOW activities exclusively for small
railroads also qualifies for the small railroad exception (i.e., is
excepted from the requirements of subparts E and G of this part). A
contractor is not excepted if it performs MOW activities for at least
one or more railroads that does not qualify for the small railroad
exception under this section.
    (4) If a contractor is subject to all of part 219 of this chapter
because it performs regulated service for multiple railroads, not all
of which qualify for the small railroad exception, the responsibility
for ensuring that the contractor complies with subparts E and G of this
part is shared between the contractor and any railroad using the
contractor that does not qualify for the small railroad exception.
    (d) Foreign railroad. (1) This part does not apply to the
operations of a foreign railroad that take place outside the United
States. A foreign railroad is required to conduct post-accident
toxicological testing or reasonable suspicion testing only for
operations that occur within the United States.
    (2) Subparts F, G, and K of this part do not apply to an employee
of a foreign railroad whose primary reporting point is outside the
United States if that employee is:
    (i) Performing train or dispatching service on that portion of a
rail line in the United States extending up to 10 route miles from the
point that the line crosses into the United States from Canada or
Mexico; or
    (ii) Performing signal service in the United States.

0
4. In Sec.  219.4, revise paragraphs (a)(1), (b)(1), and (b)(2) to read
as follows:

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

    (a) * * *
    (1) To be so considered, the petition must document that the
foreign railroad's workplace testing program contains equivalents to
subparts B, F, G, and K of this part:
* * * * *
    (b) * * *
    (1) Upon FRA's recognition of a foreign railroad's workplace
alcohol and drug use program as compatible with the return-to-service
requirements in subpart B of this part and the requirements of subparts
F, G, and K of this part, the foreign railroad must comply with either
the specified provisions of Sec.  219.4 or with the standards of its
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 F of this part or the standards of its
recognized program.
    (2) The foreign railroad must comply with subparts A (general), B
(prohibitions, other than the return-to-service provisions in paragraph
(d) of this section), C (post-accident toxicological testing), D
(reasonable suspicion testing), I (annual report requirements), and J
(recordkeeping requirements) of this part. Drug or alcohol testing
required by these subparts (except for post-accident toxicological
testing required by subpart C) must be conducted in compliance with all
applicable provisions of the DOT Procedures for Workplace Drug and
Alcohol Testing Programs (part 40 of this title).
* * * * *

0
5. Section 219.5 is amended by:
0
a. Revising the introductory text;
0
b. Adding new definitions of ``Administrator'', ``Associate
Administrator'', ``category of regulated employee'', and ``contractor''
in alphabetical order;
0
c. Revising the definitions of ``covered employee'' and ``covered
service'';
0
d. Adding new definitions of ``DOT, The Department, or DOT agency'',
``DOT-regulated employee'', ``DOT safety-sensitive duties or DOT
safety-sensitive functions'', ``Drug and Alcohol Counselor or DAC,''
``employee'', ``evacuation'', ``flagman or flagger'' and ``fouling a
track'' in alphabetical order;
0
e. Revising the definition of ``FRA representative'';
0
f. Removing the definition of ``general railroad system of
transportation'';
0
g. Adding new definitions of ``highway-rail grade crossing'' and
``highway-rail grade crossing accident/incident'' in alphabetical
order;
0
h. Revising the definition of ``impact accident'';
0
i. Adding new definitions of ``joint operations'' and ``maintenance-of-
way employee or MOW employee'' in alphabetical order;
0
j. Revising the definition of ``medical facility'';
0
k. Adding new definitions of ``non-peer'', ``on-track or fouling
equipment'', ``other impact accident'', ``person'', and ``plant
railroad'' in alphabetical order;
0
l. Revising the definition of ``railroad property damage or damage to
railroad property'';
0
m. Adding new definitions of ``raking collision'', ``regulated
employee'', ``regulated service'', ``responsible railroad supervisor'',
``side collision'', and ``tourist, scenic, historic, or

excursion operations that are not part of the general railroad system
of transportation'' in alphabetical order;
0
n. Removing the definition of ``train'';
0
o. Revising the definitions of ``train accident'' and ``train
incident''; and
0
p. Adding a new definition of ``watchman/lookout'' in alphabetical
order.
    The revisions and additions read as follows:

Sec.  219.5  Definitions.

    As used in this part only--
* * * * *
    Administrator means the Administrator of the Federal Railroad
Administration or the Administrator's delegate.
    Associate Administrator means the Associate Administrator for
Railroad Safety, Federal Railroad Administration, or the Associate
Administrator's delegate.
    Category of regulated employee means a broad class of either
covered service or maintenance-of-way employees (as defined in this
section). For the purpose of determining random testing rates under
Sec.  219.625, if an individual performs both covered service and
maintenance-of-way activities, he or she belongs in the category of
regulated employee that corresponds with the type of regulated service
comprising more than 50 percent of his or her regulated service.
* * * * *
    Contractor means a contractor or subcontractor performing functions
for a railroad.
* * * * *
    Covered employee means an employee (as defined in this section to
include an employee, volunteer, or probationary employee performing
activities for a railroad or a contractor to a railroad) who is
performing covered service under the hours of service laws at 49 U.S.C.
21101, 21104, or 21105 or who is subject to performing such covered
service, regardless of whether the person has performed or is currently
performing covered service. (An employee is not a ``covered employee''
under this definition exclusively because he or she is 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 as a train
employee, a dispatching service employee, or a signal employee, as
those terms are defined at 49 U.S.C. 21101, but does not include any
period the employee is relieved of all responsibilities and is free to
come and go without restriction.
* * * * *
    DOT, The Department, or DOT agency means all DOT agencies,
including, but not limited to, the Federal Aviation Administration
(FAA), the Federal Railroad Administration (FRA), the Federal Motor
Carrier Safety Administration (FMCSA), the Federal Transit
Administration (FTA), the National Highway Traffic Safety
Administration (NHTSA), the Pipeline and Hazardous Materials Safety
Administration (PHMSA), the United States Coast Guard (USCG) (for
purposes of part 40 coverage only), and the Office of the Secretary
(OST). These terms include any designee of a DOT agency.
    DOT-regulated employee means any person who is designated in a DOT
agency regulation as subject to drug testing and/or alcohol testing.
The term includes individuals currently performing DOT safety-sensitive
functions designated in DOT agency regulations and applicants for
employment subject to pre-employment testing. For purposes of drug
testing conducted under the provisions of 49 CFR part 40, the term
employee has the same meaning as the term ``donor'' as found on the
Custody and Control Form and related guidance materials produced by the
Department of Health and Human Services.
    DOT safety-sensitive duties or DOT-safety sensitive functions means
functions or duties designated by a DOT agency, the performance of
which makes an individual subject to the drug testing and/or alcohol
testing requirements of that DOT agency. For purposes of this part,
regulated service has been designated by FRA as a DOT safety-sensitive
duty or function.
* * * * *
    Drug and Alcohol Counselor or DAC means a person who meets the
credentialing and qualification requirements described in Sec.  242.7
of this chapter.
    Employee means any individual (including a volunteer or a
probationary employee) performing activities for a railroad or a
contractor to a railroad.
    Evacuation means the mandatory or voluntary relocation of at least
one person who is not a railroad employee for the purpose of avoiding
exposure to a hazardous material release. It does not include the
closure of public transportation roadways for the purpose of containing
a hazardous material release, unless the closure is accompanied by an
evacuation order.
    Flagman or Flagger means any person designated by the railroad to
direct or restrict the movement of trains past a point on a track to
provide on-track safety for maintenance-of-way employees, while engaged
solely in performing that function.
* * * * *
    Fouling a track means the placement of an individual or an item of
equipment in such proximity to a track that the individual or equipment
could be struck by a moving train or on-track equipment, or in any case
is within four feet of the field side of the near running rail.
* * * * *
    FRA representative means the Associate Administrator for Railroad
Safety of FRA and staff, the Associate Administrator's delegate
(including a qualified State inspector acting under part 212 of this
chapter), the Chief Counsel of FRA, the Chief Counsel's delegate, or
FRA's Drug and Alcohol Program oversight contractor.
* * * * *
    Highway-rail grade crossing means:
    (1) A location where a public highway, road, or street, or a
private roadway, including associated sidewalks, crosses one or more
railroad tracks at grade; or
    (2) A location where a pathway explicitly authorized by a public
authority or a railroad carrier that is dedicated for the use of non-
vehicular traffic, including pedestrians, bicyclists, and others that
crosses one or more railroad tracks at grade. The term ``sidewalk''
means that portion of a street between the curb line, or the lateral
line of a roadway, and the adjacent property line or, on easements of
private property, that portion of a street that is paved or improved
and intended for use by pedestrians.
    Highway-rail grade crossing accident/incident means any impact
between railroad on-track equipment and a highway user at a highway-
rail grade crossing. The term ``highway user'' includes pedestrians, as
well as automobiles, buses, trucks, motorcycles, bicycles, farm
vehicles, and all other modes of surface transportation motorized and
un-motorized.
    Impact accident, (1) Impact accident means a train accident, as
defined in this section, consisting either of--
    (i) A head-on or rear-end collision between on-track equipment;
    (ii) A side collision, derailment collision, raking collision,
switching collision, or ``other impact accident,'' as defined by this
section;
    (iii) Impact with a deliberately-placed obstruction, such as a
bumping post (but not a derail); or
    (iv) Impact between on-track equipment and any railroad equipment

fouling the track, such as an impact between a train and the boom of an
off-rail vehicle.
    (2) The definition of ``impact accident'' does not include an
impact with naturally-occurring obstructions such as fallen trees, rock
or snow slides, livestock, etc.
* * * * *
    Joint operations means rail operations conducted by more than one
railroad on the same track (except for minimal joint operations
necessary for the purpose of interchange), regardless of whether such
operations are the result of contractual arrangements between the
railroads, order of a governmental agency or a court of law, or any
other legally binding directive. For purposes of this part only,
minimal joint operations are considered necessary for the purpose of
interchange when:
    (1) The maximum authorized speed for operations on the shared track
does not exceed 20 mph;
    (2) Operations are conducted under operating rules that require
every locomotive and train to proceed at a speed that permits stopping
within one half the range of vision of the locomotive engineer;
    (3) The maximum distance for operations on the shared track does
not exceed 3 miles; and
    (4) Any operations extending into another railroad's yard are for
the sole purpose of setting out or picking up cars on a designated
interchange track.
    Maintenance-of-way employee or MOW employee means a roadway worker
as defined in Sec.  214.7 of this chapter.
    Medical facility means a hospital, clinic, physician's office, or
laboratory where post-accident toxicological testing specimens can be
collected according to recognized professional standards, and where an
individual's post-accident medical needs can be attended to.
* * * * *
    Non-peer means a supervisor (other than a co-worker), labor
organization representative, or family member of a regulated employee.
    On-track or fouling equipment means any railroad equipment that is
positioned on the rails or that is fouling the track, and includes, but
is not limited to, the following: A train, locomotive, cut of cars,
single car, motorcar, yard switching train, work train, inspection
train, track motorcar, highway-rail vehicle, push car, crane, or other
roadway maintenance machine, such as a ballast tamping machine, if the
machine is positioned on or over the rails or is fouling the track.
    Other impact accident means an accident or incident, not classified
as a head-on, rear-end, side, derailment, raking, or switching
collision, that involves contact between on-track or fouling equipment.
This includes impacts in which single cars or cuts of cars are damaged
during operations involving switching, train makeup, setting out, etc.
* * * * *
    Person means an entity of any type covered under 1 U.S.C. 1,
including but not limited to the following: A railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any independent contractor providing goods or services to a
railroad, such as a service agent performing functions under part 40 of
this title; and any employee of such owner, manufacturer, lessor,
lessee, or independent contractor.
    Plant railroad means a plant or installation that owns or leases a
locomotive, uses that locomotive to switch cars throughout the plant or
installation, and is moving goods solely for use in the facility's own
industrial processes. The plant or installation could include track
immediately adjacent to the plant or installation if the plant railroad
leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for
other entities, even if solely within the confines of the plant or
installation, rather than for its own purposes or industrial processes,
will not be considered a plant railroad because the performance of such
activity makes the operation part of the general railroad system of
transportation.
* * * * *
    Railroad property damage or damage to railroad property means
damage to railroad property (specifically, on-track equipment, signals,
track, track structure, or roadbed) and must be calculated according to
the provisions for calculating costs and reportable damage in the FRA
Guide for Preparing Accident/Incident Reports (see Sec.  225.21 of this
chapter for instructions on how to obtain a copy). Generally, railroad
property damage includes labor costs and all other costs to repair or
replace in-kind damaged on-track equipment, signals, track, track
structures (including bridges and tunnels), or roadbed. (Labor costs
that must be accounted for include hourly wages, transportation costs,
and hotel expenses.) It does not include the cost of clearing a wreck;
however, additional damage to the above-listed items caused while
clearing the wreck must be included in the damage estimate. It also
includes the cost of rental and/or operation of machinery such as
cranes and bulldozers, including the services of contractors, to
replace or repair the track right-of-way and associated structures.
Railroad property damage does not include damage to lading. Trailers/
containers on flatcars are considered to be lading and damage to these
is not to be included in on-track equipment damage. Damage to a flat
car carrying a trailer/container, however, is included in railroad
property damage. Railroads should refer directly to the FRA Guide for
Preparing Accident/Incident Reports for additional guidance on what
constitutes railroad property damage.
    Raking collision means a collision between parts or lading of a
consist on an adjacent track, or with a structure such as a bridge.
    Regulated employee means a covered employee or maintenance-of-way
employee who performs regulated service for a railroad subject to the
requirements of this part.
    Regulated service means covered service or maintenance-of-way
activities, the performance of which makes an employee subject to the
requirements of this part.
* * * * *
    Responsible railroad supervisor means any responsible line
supervisor (e.g., a trainmaster or road foreman of engines) or superior
official in authority over the regulated employees to be tested.
* * * * *
    Side collision means a collision at a turnout where one consist
strikes the side of another consist.
* * * * *
    Tourist, scenic, historic, or excursion operations that are not
part of the general railroad system of transportation means a tourist,
scenic, historic, or excursion operation conducted only on track used
exclusively for that purpose (i.e., there is no freight, intercity
passenger, or commuter passenger railroad operation on the track).
    Train accident means a rail equipment accident described in Sec.
225.19(c) of this chapter involving damage in excess of the current
reporting threshold (see Sec.  225.19(e) of this chapter), including an
accident involving a switching movement. Rail

equipment accidents include, but are not limited to, collisions,
derailments, and other events involving the operations of on-track or
fouling equipment (whether standing or moving).
    Train incident means an event involving the operation of railroad
on-track or fouling equipment that results in a casualty but in which
railroad property damage does not exceed the reporting threshold.
* * * * *
    Watchman/lookout means an employee who has been annually trained
and qualified to provide warning of approaching trains or on-track
equipment. Watchmen/lookouts must be properly equipped to provide
visual and auditory warning by such means as a whistle, air horn, white
disk, red flag, lantern, or fusee. A watchman/lookout's sole duty is to
look out for approaching trains/on-track equipment and provide at least
fifteen seconds advanced warning to employees before the arrival of
trains/on-track equipment.

0
6. Revise Sec.  219.9 to read as follows:

Sec.  219.9  Responsibility for compliance.

    (a) General. Although the requirements of this part are stated in
terms of the duty of a railroad, when any person, as defined by Sec.
219.5, performs any function required by this part, that person
(whether or not a railroad) shall perform that function in accordance
with this part.
    (b) Joint operations. (1) In the case of joint operations, primary
responsibility for compliance with subparts C, D, and E of this part
rests with the host railroad, and all affected employees must be
responsive to direction from the host railroad that is consistent with
this part. However, nothing in this paragraph restricts railroads
engaged in joint operations from appropriately assigning responsibility
for compliance with this part amongst themselves through a joint
operating agreement or other binding contract. FRA reserves the right
to bring an enforcement action for noncompliance with this part against
the host railroad, the employing railroad, or both.
    (2) When an employee of a railroad engaged in joint operations is
required to participate in breath or body fluid testing under subpart
C, D, or E of this part and is subsequently subject to adverse action
alleged to have arisen out of the required test (or alleged refusal
thereof), necessary witnesses and documents available to the other
railroad engaged in the joint operations must be made available to the
employee and his or her employing railroad on a reasonable basis.
    (c) Contractor responsibility for compliance. As provided by
paragraph (a) of this section, any independent contractor or other
entity that performs regulated service for a railroad, or any other
services under this part or part 40 of this title, has the same
responsibilities as a railroad under this part with respect to its
employees who perform regulated service or other service required by
this part or part 40 of this title for the railroad. The entity's
responsibility for compliance with this part may be fulfilled either
directly by that entity or by the railroad treating the entity's
regulated employees as if they were the railroad's own employees for
purposes of this part. The responsibility for compliance must be
clearly spelled out in the contract between the railroad and the other
entity or in another document. In the absence of a clear delineation of
responsibility, FRA may hold the railroad and the other entity jointly
and severally liable for compliance.

0
7. Add Sec.  219.10 to read as follows:

Sec.  219.10  Penalties.

    Any person, as defined by Sec.  219.5, who violates any requirement
of this part or causes the violation of any such requirement is subject
to a civil penalty of at least $650 and not more than $25,000 per
violation, except that: Penalties may be assessed against individuals
only for willful violations; where a grossly negligent violation or a
pattern of repeated violations has created an imminent hazard of death
or injury, or has caused death or injury, a penalty not to exceed
$105,000 per violation may be assessed; and the standard of liability
for a railroad will vary depending upon the requirement involved. See,
e.g., Sec.  219.105, which is construed to qualify the responsibility
of a railroad for the unauthorized conduct of an employee that violates
Sec.  219.101 or Sec.  219.102 (while imposing a duty of due diligence
to prevent such conduct). Each day a violation continues constitutes a
separate offense. See Appendix A to this part for a statement of agency
civil penalty policy.

0
8. Amend Sec.  219.11 by revising paragraphs (a), (b)(1) and (2), and
(c) through (h) to read as follows:

Sec.  219.11  General conditions for chemical tests.

    (a)(1) Any regulated employee who is subject to performing
regulated service for a railroad is deemed to have consented to testing
as required in subparts B, C, D, E, F, G, and K of this part.
    (2) A regulated employee required to participate in alcohol and/or
drug testing under this part must be on duty and subject to performing
regulated service when the specimen collection is initiated and the
alcohol testing/urine specimen collection is conducted (with the
exception of pre-employment testing under subpart F of this part).
    (b)(1) Each regulated employee must participate in such testing, as
required under the conditions set forth in this part and implemented by
a representative of the railroad or employing contractor.
    (2) In any case where an employee is suffering a substantiated
medical emergency and is subject to alcohol or drug testing under this
part, necessary medical treatment must be accorded priority over
provision of the breath or body fluid specimen(s). A medical emergency
is an acute medical condition requiring immediate medical care. A
railroad may require an employee to substantiate a medical emergency by
providing verifiable documentation from a credible outside professional
(e.g., doctor, dentist, hospital, or law enforcement officer)
substantiating the medical emergency within a reasonable period of
time.
* * * * *
    (c) A regulated employee who is required to be tested under
subparts C, D, or E of this part and who is taken to a medical facility
for observation or treatment after an accident or incident is deemed to
have consented to the release to FRA of the following:
    (1) The remaining portion of any body fluid specimen taken by the
medical facility within 12 hours of the accident or incident that is
not required for medical purposes, together with any normal medical
facility record(s) pertaining to the taking of such specimen;
    (2) The results of any laboratory tests for alcohol or any drug
conducted by or for the medical facility on such specimen;
    (3) The identity, dosage, and time of administration of any drugs
administered by the medical facility before the time specimens were
taken by the medical facility or before the time specimens were taken
in compliance with this part; and
    (4) The results of any breath tests for alcohol conducted by or for
the medical facility.
    (d) Any person required to participate in body fluid testing under
subpart C of this part (post-accident toxicological testing) shall, if
requested by a representative of the railroad or the medical facility,
evidence consent to the taking of specimens, their release for
toxicological analysis under pertinent

provisions of this part, and release of the test results to the
railroad's Medical Review Officer by promptly executing a consent form,
if required by the medical facility. A regulated employee is not
required to execute any document or clause waiving rights that the
employee would otherwise have against the railroad, and any such waiver
is void. The employee may not be required to waive liability with
respect to negligence on the part of any person participating in the
collection, handling or analysis of the specimen or to indemnify any
person for the negligence of others. Any consent provided consistent
with this section may be construed to extend only to those actions
specified in this section.
    (e)(1) A regulated employee who is notified of selection for
testing under this part must cease to perform his or her assigned
duties and proceed to the testing site either immediately or as soon as
possible without adversely affecting safety.
    (2) A railroad must ensure that the absence of a regulated employee
from his or her assigned duties to report for testing does not
adversely affect safety.
    (3) Nothing in this part may be construed to authorize the use of
physical coercion or any other deprivation of liberty to compel breath
or body fluid testing.
    (f) Any employee performing duties for a railroad who is involved
in a qualifying accident or incident described in subpart C of this
part, and who dies within 12 hours of that accident or incident as the
result thereof, is deemed to have consented to the removal of body
fluid and/or tissue specimens necessary for toxicological analysis from
the remains of such person, and this consent is implied by the
performance of duties for the railroad (i.e., a consent form is not
required). This consent provision applies to all employees performing
duties for a railroad, and not just regulated employees.
    (g) Each supervisor responsible for regulated employees (except a
working supervisor who is a co-worker as defined in Sec.  219.5) must
be trained in the signs and symptoms of alcohol and drug influence,
intoxication, and misuse consistent with a program of instruction to be
made available for inspection upon demand by FRA. Such a program shall,
at a minimum, provide information concerning the acute behavioral and
apparent physiological effects of alcohol, the major drug groups on the
controlled substances list, and other impairing drugs. The program must
also provide training on the qualifying criteria for post-accident
toxicological testing contained in subpart C of this part, and the role
of the supervisor in post-accident collections described in subpart C
and appendix C of this part.
    (h) Nothing in this subpart restricts any discretion available to
the railroad to request or require that a regulated employee cooperate
in additional breath or body fluid testing. However, no such testing
may be performed on urine or blood specimens provided under this part.
For purposes of this paragraph (h), all urine from a void constitutes a
single specimen.
* * * * *

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9. Add Sec.  219.12 to read as follows:

Sec.  219.12  Hours-of-service laws implications.

    (a) A railroad is not excused from performing alcohol or drug
testing under subpart C (post-accident toxicological testing) and
subpart D (reasonable suspicion testing) of this part because the
performance of such testing would violate the hours-of-service laws at
49 U.S.C. ch. 211. If a railroad establishes that a violation of the
hours-of-service laws is caused solely because it was required to
conduct post-accident toxicological testing or reasonable suspicion
testing, FRA will not take enforcement action for the violation if the
railroad used reasonable due diligence in completing the collection and
otherwise completed it within the time limitations of Sec.  219.203(d)
(for post-accident toxicological testing) or Sec.  219.305 (for
reasonable suspicion testing), although the railroad must still report
any excess service to FRA.
    (b) A railroad may perform alcohol or drug testing authorized under
subpart E (reasonable cause testing) of this part even if the
performance of such testing would violate the hours-of-service laws at
49 U.S.C. ch. 211. If a railroad establishes that a violation of the
hours-of-service laws is caused solely by its decision to conduct
authorized reasonable cause testing, FRA will not take enforcement
action for the violation if the railroad used reasonable due diligence
in completing the collection and otherwise completed it within the time
limitations of Sec.  219.407, although the railroad must still report
any excess service to FRA.
    (c) A railroad must schedule random alcohol and drug tests under
subpart G of this part so that sufficient time is provided to complete
the test within a covered employee's hours-of-service limitations under
49 U.S.C. ch. 211. However, if a direct observation collection is
required during a random test per the requirements of part 40 of this
title, then the random test must be completed regardless of the hours-
of-service law limitations, although the railroad must still report any
excess service to FRA. A railroad may not place a regulated employee
on-duty for the sole purpose of conducting a random alcohol or drug
test under subpart G of this part.
    (d) A railroad must schedule follow-up tests under Sec.  219.104 so
that sufficient time is provided to complete a test within a covered
employee's hours-of-service limitations under 49 U.S.C. ch. 211. If a
railroad is having a difficult time scheduling the required number of
follow-up tests because a covered employee's work schedule is
unpredictable, there is no prohibition against the railroad placing an
employee (who is subject to being called to perform regulated service)
on duty for the purpose of conducting the follow-up tests; except that
an employee may be placed on duty for a follow-up alcohol test only if
he or she is required to completely abstain from alcohol by a return-
to-duty agreement, as provided by Sec.  40.303(b) of this title. A
railroad must maintain documentation establishing the need to place the
employee on duty for the purpose of conducting the follow-up test and
provide this documentation for review upon request of an FRA
representative.

0
10. Revise Sec.  219.23 to read as follows:

Sec.  219.23  Railroad policies.

    (a) Whenever a breath or body fluid test is required of an employee
under this part, the railroad (either through a railroad employee or a
designated agent, such as a contracted collector) must provide clear
and unequivocal written notice to the employee that the test is being
required under FRA regulations and is being conducted under Federal
authority. The railroad must also provide the employee clear and
unequivocal written notice of the type of test that is required (e.g.,
reasonable suspicion, reasonable cause, random selection, follow-up,
etc.). These notice requirements are satisfied if:
    (1) For all FRA testing except mandatory post-accident
toxicological testing under subpart C of this part, a railroad uses the
mandated DOT alcohol or drug testing form, circles or checks off the
box corresponding to the type of test, and shows this form to the
employee before testing begins; or
    (2) For mandatory post-accident toxicological testing under subpart
C of this part, a railroad uses the approved FRA form and shows this
form to the employee before testing begins.
    (b) Use of the mandated DOT alcohol or drug testing forms for non-
Federal

tests or mandatory post-accident toxicological testing under subpart C
of this part is prohibited (except for post-accident breath alcohol
testing permitted under Sec.  219.203(c)). Use of the approved FRA
post-accident toxicological testing form for any testing other than
that mandated under subpart C is prohibited.
    (c) Each railroad must develop and publish educational materials,
specifically designed for regulated employees that clearly explain the
requirements of this part, as well as the railroad's policies and
procedures with respect to meeting those requirements. The railroad
must ensure that a copy of these materials is distributed to each
regulated employee hired for or transferred to a position that requires
alcohol and drug testing under this part. (This requirement does not
apply to an applicant for a regulated service position who either
refuses to provide a specimen for pre-employment testing or who has a
pre-employment test with a result indicating a violation of the alcohol
or drug prohibitions of this part.) A railroad may satisfy this
requirement by either--
    (1)(i) Continually posting the materials in a location that is
easily visible to all regulated employees going on duty at their
designated reporting place and, if applicable, providing a copy of the
materials to any employee labor organization representing a class or
craft of regulated employees of the railroad; or
    (ii) Providing a copy of the materials in some other manner that
will ensure regulated employees can find and access these materials
explaining the critical aspects of the program (e.g., by posting the
materials on a company Web site that is accessible to all regulated
employees); or
    (2) For a minimum of three years after June 12, 2017, also ensuring
that a hard copy of these materials is provided to each maintenance-of-
way employee.
    (d) Required content. The materials to be made available to
regulated employees under paragraph (c) of this section must, at a
minimum, include clear and detailed discussion of the following:
    (1) The position title, name, and means of contacting the person(s)
the railroad designates to answer employee questions about the
materials;
    (2) The specific classes or crafts of employees who are subject to
the provisions of this part, such as engineers, conductors, MOW
employees, signal maintainers, or train dispatchers;
    (3) Sufficient information about the regulated service functions
those employees perform to make clear that the period of the work day
the regulated employee is required to be in compliance with the alcohol
prohibitions of this part is that period when the employee is on duty
and is required to perform or is available to perform regulated
service;
    (4) Specific information concerning regulated employee conduct that
is prohibited under subpart B of this part (e.g., the minimum
requirements of Sec. Sec.  219.101, 219.102, and 219.103);
    (5) The requirement that a railroad utilizing the reasonable cause
testing authority provided by subpart E of this part must give prior
notice to regulated employees of the circumstances under which they
will be subject to reasonable cause testing;
    (6) The circumstances under which a regulated employee will be
tested under this part;
    (7) The procedures used to test for the presence of alcohol and
controlled substances, protect the regulated employee and the integrity
of the testing processes, safeguard the validity of the test results,
and ensure that those results are attributed to the correct employee;
    (8) The requirement that a regulated employee submit to alcohol and
drug tests administered in accordance with this part;
    (9) An explanation of what constitutes a refusal to submit to an
alcohol or drug test and the attendant consequences;
    (10) The consequences for a regulated employee found to have
violated subpart B of this part, including the requirement that the
employee be removed immediately from regulated service, and the
responsive action requirements of Sec.  219.104;
    (11) The consequences for a regulated employee who has a Federal
alcohol test indicating an alcohol concentration of 0.02 or greater but
less than 0.04; and
    (12) Information concerning the effects of alcohol and drug misuse
on an individual's health, work, and personal life; signs and symptoms
of an alcohol or drug problem (the employee's or a co-worker's); and
available methods of evaluating and resolving problems associated with
the misuse of alcohol and drugs, and the names, addresses, and
telephone numbers of DACs and counseling and treatment programs.
    (e) Optional provisions. The materials supplied to employees may
also include information on additional railroad policies with respect
to the use or possession of alcohol and drugs, including any
consequences for an employee found to have a specific alcohol
concentration that are based on the railroad's company authority
independent of this part. Any such additional policies or consequences
must be clearly and obviously described as being based on the
railroad's independent company authority.

0
11. Add Sec.  219.25 to subpart A to read as follows:

Sec.  219.25  Previous employer drug and alcohol checks.

    (a) As required by Sec.  219.701(a) and (b), a railroad must
conduct drug or alcohol testing under this part in compliance with part
40 of this title (except for post-accident toxicological testing under
subpart C of this part). A railroad must therefore comply with Sec.
40.25 of this title by checking the alcohol and drug testing record of
any direct regulated employee (a regulated employee who is not employed
by a contractor to the railroad) it intends to use for regulated
service before the employee performs such service for the first time. A
railroad is not required to check the alcohol and drug testing record
of contractor employees performing regulated service on its behalf (the
alcohol and drug testing record of those contractor employees must be
checked by their direct employers).
    (b) When determining whether a person may become or remain
certified as a locomotive engineer or a conductor, a railroad must
comply with the requirements in Sec.  240.119(c) (for engineers) or
Sec.  242.115(e) (for conductors) of this chapter regarding the
consideration of Federal alcohol and drug violations that occurred
within a period of 60 consecutive months before the review of the
person's records.

Subpart B--Prohibitions

0
12. Revise Sec.  219.101(a) to read as follows:

Sec.  219.101  Alcohol and drug use prohibited.

    (a) Prohibitions. Except as provided in Sec.  219.103--
    (1) No regulated employee may use or possess alcohol or any
controlled substance when the employee is on duty and subject to
performing regulated service for a railroad.
    (2) No regulated employee may report for regulated service, or go
or remain on duty in regulated service, while--
    (i) Under the influence of or impaired by alcohol;
    (ii) Having 0.04 or more alcohol concentration in the breath or
blood; or
    (iii) Under the influence of or impaired by any controlled
substance.
    (3) No regulated employee may use alcohol for whichever is the
lesser of the following periods:
    (i) Within four hours of reporting for regulated service; or

    (ii) After receiving notice to report for regulated service.
    (4)(i) No regulated employee tested under the provisions of this
part whose Federal test result indicates an alcohol concentration of
0.02 or greater but less than 0.04 may perform or continue to perform
regulated service for a railroad, nor may a railroad permit the
regulated employee to perform or continue to perform regulated service,
until the start of the regulated employee's next regularly scheduled
duty period, but not less than eight hours following administration of
the test.
    (ii) Nothing in this section prohibits a railroad from taking
further action under its own independent company authority when a
regulated employee tested under the provisions of this part has a
Federal test result indicating an alcohol concentration of 0.02 or
greater, but less than 0.04. However, while a Federal test result of
0.02 or greater but less than 0.04 is a positive test and may be a
violation of a railroad's operating rules, it is not a violation of
this section and cannot be used to decertify an engineer under part 240
of this chapter or a conductor under part 242 of this chapter.
    (5) If an employee tested under the provisions of this part has a
test result indicating an alcohol concentration below 0.02, the test is
negative and is not evidence of alcohol misuse. A railroad may not use
a Federal test result below 0.02 either as evidence in a company
proceeding or as a basis for subsequent testing under company
authority. A railroad may take further action to compel cooperation in
other breath or body fluid testing only if it has an independent basis
for doing so. An independent basis for subsequent company authority
testing will exist only when, after having a negative Federal
reasonable suspicion alcohol test result, the employee exhibits
additional or continuing signs and symptoms of alcohol use. If a
company authority test then indicates a violation of the railroad's
operating rules, this result is independent of the Federal test result
and must stand on its own merits.
* * * * *

0
13. Revise Sec.  219.102 to read as follows:

Sec.  219.102  Prohibition on abuse of controlled substances.

    No regulated employee may use a controlled substance at any time,
whether on duty or off duty, except as permitted by Sec.  219.103.

0
14. Revise Sec.  219.104 to read as follows:

Sec.  219.104  Responsive action.

    (a) Removal from regulated service. (1) If a railroad determines
that a regulated employee has violated Sec.  219.101 or Sec.  219.102,
or the alcohol or controlled substances misuse rule of another DOT
agency, the railroad must immediately remove the employee from
regulated service and the procedures described in paragraphs (b)
through (d) of this section apply.
    (2) If a regulated employee refuses to provide a breath or body
fluid specimen or specimens when required to by the railroad under a
provision of this part, a railroad must immediately remove the
regulated employee from regulated service, and the procedures described
in paragraphs (b) through (d) of this section apply. This provision
also applies to Federal reasonable cause testing under subpart E of
this part (if the railroad has elected to conduct this testing under
Federal authority).
    (b) Notice. Before or upon removing a regulated employee from
regulated service under this section, a railroad must provide written
notice to the employee of the reason for this action. A railroad may
provide a regulated employee with an initial verbal notice so long as
it provides a follow-up written notice to the employee as soon as
possible. In addition to the reason for the employee's withdrawal from
regulated service, the written notice must also inform the regulated
employee that he may not perform any DOT safety-sensitive duties until
he completes the return-to-duty process of part 40.
    (c) Hearing procedures. (1) Except as provided in paragraph (e)(5)
of this section, if a regulated employee denies that a test result or
other information is valid evidence of a Sec.  219.101 or Sec.  219.102
violation, the regulated employee may demand and must be provided an
opportunity for a prompt post-suspension hearing before a presiding
officer other than the charging official. This hearing may be
consolidated with any disciplinary hearing arising from the same
accident or incident (or conduct directly related thereto), but the
presiding officer must make separate findings as to compliance with
Sec. Sec.  219.101 and 219.102.
    (2) The hearing must be convened within the period specified in the
applicable collective bargaining agreement. In the absence of an
agreement provision, the regulated employee may demand that the hearing
be convened within 10 calendar days of the employee's suspension or, in
the case of a regulated employee who is unavailable due to injury,
illness, or other sufficient cause, within 10 days of the date the
regulated employee becomes available for the hearing.
    (3) A post-suspension proceeding conforming to the requirements of
an applicable collective bargaining agreement, together with the
provisions for adjustment of disputes under sec. 3 of the Railway Labor
Act (49 U.S.C. 153), satisfies the procedural requirements of this
paragraph (c).
    (4) With respect to a removal or other adverse action taken as a
consequence of a positive test result or refusal in a test authorized
or required by this part, nothing in this part may be deemed to abridge
any procedural rights or remedies consistent with this part that are
available to a regulated employee under a collective bargaining
agreement, the Railway Labor Act, or (with respect to employment at
will) at common law.
    (5) Nothing in this part restricts the discretion of a railroad to
treat a regulated employee's denial of prohibited alcohol or drug use
as a waiver of any privilege the regulated employee would otherwise
enjoy to have such prohibited alcohol or drug use treated as a non-
disciplinary matter or to have discipline held in abeyance.
    (d) A railroad must comply with the requirements for Substance
Abuse Professional evaluations, the return-to-duty process, and follow-
up testing contained in part 40 of this title.
    (1) Post-accident toxicology testing exception. If a regulated
employee has a post-accident toxicology test result under subpart C of
this part that is positive for a drug not listed in Sec.  40.5's
definition of ``Drugs,'' a railroad may conduct the employee's return-
to-duty and follow-up tests under part 40, or may conduct the
employee's return-to-duty and follow-up tests under its own authority
to comply with the requirements of paragraph (d) of this section, so
long as its testing procedures are otherwise identical to those of part
40, and include the specific drug for which the violation occurred, on
an expanded drug testing panel.
    (e) Applicability. (1) This section does not apply to actions based
on breath or body fluid tests for alcohol or drugs that are conducted
exclusively under authority other than that provided in this part
(e.g., testing under a company medical policy, testing for cause wholly
independent of the subpart E Federal authority of this part, or testing
under a labor agreement).
    (2) This section does not apply to Federal alcohol tests indicating
an alcohol concentration of less than 0.04.
    (3) This section does not apply to a locomotive engineer or
conductor who has an off-duty conviction for, or a completed state
action to cancel, revoke,

suspend, or deny a motor vehicle driver's license for operating while
under the influence of or impaired by alcohol or a controlled
substance. (However, this information remains relevant for the purpose
of locomotive engineer or conductor certification, according to the
requirements of parts 240 or 242 of this chapter.)
    (4) This section does not apply to an applicant who declines to be
subject to pre-employment testing and withdraws an application for