Revisions to FRA Regulations (49 CFR Part 219)

train

Maintenance of Way (MOW) Employees

Effective June 12, 2017

In response to Congress’ mandate in the Rail Safety Improvement Act of 2008 (RSIA), the Federal Railroad Administration (FRA) is expanding the scope of its drug and alcohol regulation to cover Maintenance of Way (MOW) employees.

1. To whom does this regulation revision apply?

a. It applies to railroad employees and contractors who perform maintenance of way (MOW) functions for a railroad. MOW employees/contractors are roadway workers as defined in §214.7, which includes ‘‘any employee of a railroad or a contractor to a railroad, whose duties include inspection, construction, maintenance or repair of roadway track; bridges, roadway, signal and communications systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track; and flagmen and watchmen/lookouts.”

2. What testing are MOW workers subject to?

a. Pre-employment, random, post-accident, reasonable suspicion/cause, return to duty and follow-up.

3. Who is responsible for compliance?

a. FRA holds railroads, contractors and subcontractors equally responsible for ensuring that their employees who perform MOW activities are in compliance with the requirements of the Part 219 rule.

4. What is the Small Railroad Exception and how does it affect MOW Contractors?

a. MOW contractors who perform MOW activities only for small railroads (as defined in §219.3 (c)) are not required to comply with all portions of Part 219. Subparts E (Reasonable Cause Testing) and G (Random Testing) do not apply to small railroads. A small railroad: Has a total of 15 or fewer employees who are covered by the hours of service laws; and does not have joint operations, as defined in § 219.5, with another railroad that operates in the United States, except as necessary for purposes of interchange. An employee or contractor performing only MOW activities 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. A contractor performing MOW activities exclusively for small railroads also qualifies for the small railroad exception (i.e., is excepted from the reasonable cause and random testing requirements of Part 219).

5. For MOW contractors that must conduct random testing, what are the requirements?

a. Beginning June 12, 2017, MOW contractors must conduct random drug tests at an annual rate of 50% of MOW employees and they must conduct random alcohol tests at a 25% annual rate. Random testing must be conducted at least quarterly, with at least one employee selected each quarter. All MOW employees are eligible for random selection each time selections are made, regardless of previous selection or testing. Random selection must be accomplished by a computer random number generator or use of a table of random numbers.

6. How can a MOW contractor accomplish its random testing requirement?

a. A contractor may choose to:

i. Establish its own part 219 program and provide the railroad with documentation of its compliance with Part 219; or

ii. Contract with a consortium to administer its part 219 program. The consortium may either place the contractor’s regulated employees in a stand-alone random testing pool or in a random testing pool with the regulated employees of other regulated service contractors. The contractor must then submit documentation of its membership in the consortium and its compliance with part 219 to the contracting railroad.

7. What does a contractor have to provide to the railroad(s) to document its Part 219 Compliance Plan?

a. FRA has developed two sets of model drug and alcohol plans (including testing plans); a set for a contractor subject to all of part 219 and another for a contractor that qualifies for the small railroad exception. Both model plans are available at FRA’s Web site: http://www.fra.dot.gov/Page/P0345. If the contractor is managing its own testing program or using a C/TPA, it must provide a statistical summary of Part 219 testing data every 6 months to the railroad(s).

8. Does a contractor have to conduct FRA pre-employment drug testing on employees currently performing MOW activities for railroads?

a. No. FRA is exempting all current MOW employees from subpart F pre-employment drug testing. Only MOW employees hired after the effective date of this rule must have a negative DOT pre-employment drug test result before performing regulated service for the first time. FRA realizes that a large percentage of MOW employees may already have a negative pre-employment drug test result under the alcohol and drug testing regulations of another DOT agency (e.g. Federal Motor Carrier Safety Administration). Thus contractors or railroads may use a negative pre-employment drug test conducted under the rules and regulations of another DOT agency to satisfy FRA’s pre-employment drug test requirements for employees initially transferring into regulated service after the effective date of this rule.

9. Is a contractor responsible for conducting the Post-accident testing required under Part 219 Subpart C?

a. The contractor is responsible for ensuring that MOW workers contributing to a qualifying train accident/incident which requires FRA post-accident testing remain available for and cooperate with the testing. It is the railroad that will arrange for the actual post-accident testing of the contractor MOW employees, using the FRA designated post-accident supplies and forms.

10. Does the FRA Part 219 testing program follow the Part 40 requirements for drug and alcohol testing?

a. Yes, except for FRA post-accident testing. All other types of testing (e.g. random, pre-employment, etc.) follow the Part 40 specimen collection, laboratory analysis, and MRO procedures for drug testing. Likewise, except for FRA post-accident alcohol testing, the Part 40 breath alcohol testing procedures are required.

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