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Safety Recommendation Details

Safety Recommendation R-08-007
Details
Synopsis: On Tuesday, January 9, 2007, at 1:38 p.m., southbound Massachusetts Bay Transportation Authority (MBTA) passenger train 322 operated by Massachusetts Bay Commuter Railroad (MBCR) struck a track maintenance vehicle that was on the track near Woburn, Massachusetts. Passenger train 322 consisted of six passenger cars, including a lead control car, and a locomotive pushing from the rear. The track maintenance vehicle was thrown forward about 210 feet; the train did not derail. Of the six maintenance-of-way employees (work crew) working on or near the track maintenance vehicle, two were killed, and two were seriously injured. Emergency responders treated and released 10 passengers at the accident scene. As a result of the accident, 160 feet of rail, 80 crossties, and 100 tons of ballast had to be replaced. The cost, including labor, was $15,841. The accident damaged the lead control car and undercarriage of the train. Repairing the train cost an estimated $450,000. The track maintenance vehicle was destroyed; replacing it cost $95,000. Total estimated property damage was $560,841.
Recommendation: TO THE FEDERAL RAILROAD ADMINISTRATION: Revise the definition of covered employee under 49 Code of Federal Regulations Part 219 for purposes of Congressionally mandated alcohol and controlled substances testing programs to encompass all employees and agents performing safety-sensitive functions, as described in 49 Code of Federal Regulations 209.301 and 209.303.
Original recommendation transmittal letter: PDF
Overall Status: Open - Unacceptable Response
Mode: Railroad
Location: Woburn, MA, United States
Is Reiterated: Yes
Is Hazmat: No
Is NPRM: No
Accident #: DCA 07 FR 006
Accident Reports:
Report #: RAR-08-01
Accident Date: 1/9/2007
Issue Date: 4/10/2008
Date Closed:
Addressee(s) and Addressee Status: FRA (Open - Unacceptable Response)
Keyword(s):

Safety Recommendation History
From: FRA
To: NTSB
Date: 2/10/2019
Response: -From Ronald L. Batory, Administrator: FRA has worked successfully to add two additional classes of worker to the definition of "covered employee," and there is legal precedent against adding any other classes of workers, which would be necessary to fully meet this recommendation. On August 10, 2017, FRA responded to a reiteration of this recommendation, explaining that in 2016, FRA published a final rule, Control of Alcohol and Drug Use: Coverage of Maintenance of Way (MOW) Employees and Retrospective Regulatory Review Based Amendments, in accordance with the Rail Safety Improvement Act of2008 (RSIA). This rule created a new definition, called a "regulated employee," because MOW employees are not covered by the hours of service (HOS) laws. The rule added 34,000 MOW employees and contractors to the scope of FRA's drug and alcohol program. Because the RSIA did not authorize FRA to expand 49 CFR Part 219 to include additional crafts of railroad employees, the final rule did not cover employees performing safety-sensitive functions as defined by 49 CFR §§ 209.301 and 209.303. FRA previously explained to the NTSB that we found no overriding safety interest justifying such an expansion, and that we would continue to monitor other railroad employee crafts by conducting post-accident toxicological testing for all on-duty railroad employees who are fatally injured in train accidents and incidents. On May 30, 2018, the NTSB rejected FRA 's request for closure, restating that 49 CFR Part 219 should be expanded to include all safety-sensitive employees covered by 49 CFR §§ 209.301 and 209.303, and that until FRA requires random toxicology testing of all employees performing 49 CFR §§ 209.301 and 209.303 safety-sensitive functions, R-08-07 is classified as an "Unacceptable Response." With the rule changes adding MOW employees to FRA's drug and alcohol testing program, mechanical craft employees were the only remaining major non-HOS craft not subject to 49 CFR Part 219. FRA provided technical assistance on H.R. 6, a bill to add mechanical craft employees to the scope of 49 CPR Part 219, which passed on October 4, 2018, and was signed into law on October 23, 2018. Now, all safety-sensitive functions under 49 CFR Part 209.303 will be subject to 49 CFR Part 219. This achievement, though significant, does not fully meet the recommendation as written. However, if FRA expanded 49 CFR Part 219 to include employee positions that are ancillary to safe rail operations (such as training, testing, or supervision as defined in§ 209.303(b)(3) and (c)(2)), FRA's alcohol and controlled substance testing programs would likely face legal challenge. While these positions are subject to enforcement under FRA' s general railroad safety authority, the potential safety impact of these functions is negligible and does not justify subjecting these employees to FRA alcohol and drug testing under the Fourth Amendment's prohibition on unlawful search and seizure actions. As an example of the sort of legal challenge that FRA could face: in 1988, the United States Coast Guard (USCG) issued a notice of proposed rulemaking (NPRM) that would have subjected to random testing all crewmembers aboard inspected vessels, on the basis that any crewmember could be responsible for crucial safety functions in an emergency. In Transportation Institute v. United States Coast Guard, the U.S. District Court for the District of Columbia held that this safety nexus did not outweigh the privacy interests of non-safety-sensitive crewmembers such as deck maintainers and cooks (727 F. Supp. 648, December 18, 1989). In response, the USCG withdrew its NPRM and issued a new proposal to include only safety-sensitive crewmembers in its random testing program. This second NPRM became the basis of the current USCG program. Therefore, FRA cannot justify further action on R-08-07. Because we have taken significant action by adding MOW employees to the scope of 49 CFR Part 219, with a statutorily required rule to add mechanical employees forthcoming, FRA respectfully requests that the NTSB close this recommendation. FRA met with staff at the NTSB on October 11, 2018, to discuss these topics and answer questions, so we hope these closures can be expedited. I appreciate your interest in these important safety issues. If FRA can provide further information or assistance, please contact Mr. Robert C. Lauby, Associate Administrator for Railroad Safety and Chief Safety Officer.

From: NTSB
To: FRA
Date: 5/30/2018
Response: We are aware of the final rule that went into effect June 12, 2017, and expanded drug and alcohol testing program requirements in 49 CFR Part 219 to cover those employees who perform maintenance-of-way (MOW) activities. In addition to employees covered under Part 219, our recommendation is intended to include safety-sensitive railroad employees or agents who inspect, install, repair, or maintain track and roadbed; inspect, repair, or maintain locomotives, passenger cars, and freight cars; or conduct training or testing when the training is required by FRA regulations. It is also intended to include railroad managers, supervisors, or agents when they perform—or supervise employees performing—the safety-sensitive functions listed above and those in a position to direct those whose actions could violate Parts 213 through 236. We note that you will continue to monitor other railroad employee crafts by conducting post-accident toxicological testing on all railroad employees who are fatally injured in train accidents and incidents. The intent of this safety recommendation is to deter employees and contractors performing safety-sensitive functions from abusing alcohol and other drugs by subjecting them to toxicology testing—both random, pre-accident testing as well as post-accident testing. Therefore, until you require random toxicology testing of all employees performing safety-sensitive functions, Safety Recommendation R-08-7 is classified OPEN--UNACCEPTABLE RESPONSE.

From: FRA
To: NTSB
Date: 8/10/2017
Response: -From Heath Hall, Acting Administrator: Thank you for your letter of July 3, 2017, reiterating Safety Recommendation R-08-07 that the National Safety Transportation Board (NTSB) issued on April 10, 2008. The Federal Railroad Administration (FRA) understands that this recommendation was initially in response to a January 9, 2007, accident near Woburn, Massachusetts, where a southbound Massachusetts Bay Commuter Railroad passenger train struck a track maintenance vehicle that was on the track. FRA last responded to this recommendation on July 20, 2016, but would like to provide additional information included in the enclosure. Accordingly, FRA respectfully requests that NTSB classify Safety Recommendation R-08-07 as "Closed-Acceptable Action." I appreciate your interest in this important safety issue. Section 412 of the Rail Safety Improvement Act of2008 (RSIA) mandated FRA to expand its drug and alcohol testing program requirements in 49 CFR Part 219 to cover those employees who perform maintenance-of-way (MOW) activities; no other types of employees were referred to in Section 412. Accordingly, FRA published the final rule, Control of Alcohol and Drug Use: Coverage of Maintenance of Way (MOW) Employees and Retrospective Regulatory Review Based Amendments (81 Fed. Reg. 37893), on June 10, 2016. This rule expanded the definition of MOW activities to cover the maintenance and communications functions listed in 49 CFR § 209.303 that employees perform on or around a railroad's track or roadbed. Expanding the definition adds approximately 34,000 MOW employees and contractors to the scope of 49 CFR Part 219. In the final rule, FRA adopted the definition of roadway worker" found in 49 CFR Part 214, Railroad Workplace Safety, to define "MOW employee" under 49 CFR Part 219. Because Section 412 of the RSIA did not direct FRA to expand Part 219 to additional crafts of railroad employees beyond MOW employees, the final rule did not cover every employee performing safety-sensitive functions as described in 49 CFR §§ 209.301and209.303. Further, FRA found no overriding safety interest justifying such an expansion (81 Fed. Reg. 37894; Fed. Reg. 81 37896). However, FRA continues to monitor other railroad employee crafts by conducting post-accident toxicological testing for all railroad employees who are fatally injured in train accidents and incidents under 49 CFR § 219.203(a)(4)(ii). FRA is also collecting data for all on-duty railroad employee fatalities caused by drug overdose. The implementation date of the final rule was June 12, 2017, and FRA has accepted Part 219 program plans from myriad contractors that perform duties for railroad clients with a potential to foul the track, which FRA defines as machinery operated (hoists, crane arms, etc.) or individuals that come within 4 feet of the track. FRA' s post-mortem post-accident toxicological (PAT) testing data does not support the expansion of 49 CFR Part 219's scope beyond that of individuals who have the potential to foul the track. FRA will revisit the issue of coverage for individuals who perform other 49 CFR § 209.303 functions if their rate of positive post-mortem PAT test results should rise in the future.

From: NTSB
To: FRA
Date: 7/3/2017
Response: Reiterated in the Railroad Accident Brief: CSX Transportation Employee Struck by Remote Control Locomotive in Richmond, Virginia on April 1, 2015. Report number RAB-17-06 published on 7/3/2017. On June 20, 2017, the National Transportation Safety Board (NTSB) adopted its report concerning the April 1, 2015, accident, in which a CSX Transportation (CSX) train operating with a remote control locomotive, struck and killed a CSX employee who walked in front of it as it moved through the south end of yard switch N02, in remote control zone 91, of the Acca Yard in Richmond, Virginia.1 Additional information about this accident and the resulting reiterated recommendation may be found in the report of the investigation, which can be accessed at our website, http://www.ntsb.gov, under report number RAB-17/06. As a result of this investigation, we reiterated one previously issued recommendation to the Federal Railroad Administration (FRA).

From: FRA
To: NTSB
Date: 7/20/2016
Response: -From Sarah E. Feinberg, Administrator: On June 10, 2016, FRA published a final rule entitled Control of Alcohol and Drug Use: Coverage of Maintenance of Way (MOW) Employees and Retrospective Regulatory Review Based Amendments. 81 Fed. Reg. 37893. The final rule responds to Section 412 of the Rail Safety Improvement Act of 2008 (RSIA) and Safety Recommendations R -08-07 and R -01-17. The final rule responds to Safety Recommendation R-08-07 by expanding the scope of FRA's drug and alcohol regulations found at Title 49 Code of Federal Regulations (CFR) Part 219, Control of Alcohol and Drug Use, to cover MOW employees. In the final rule, FRA adopts the definition of "roadway worker" found in 49 CFR Part 214, Railroad Workplace Safety, to define "MOW employee" under 49 CFR Part 219. As the final rule explains, FRA did not expand 49 CFR Part 219's scope to cover every employee performing safety-sensitive functions as described in 49 CFR §§ 209.301 and 209.303. Section 412 of the RSIA did not direct FRA to expand Part 219 to additional crafts of railroad employees beyond MOW employees, and no comments to the rulemaking docket supported so wide an expansion. Further, FRA found no overriding safety interest justifying such an expansion. See 81 FR 37894, 37896 (June 10, 2016). However, FRA continues to monitor other railroad employee crafts by conducting postaccident toxicological testing for all railroad employees who are fatally-injured in train accidents and incidents under 49 CFR § 219.203(a)(4)(ii). FRA is also collecting data for all on-duty railroad employee fatalities caused by drug overdose. The final rule also responds to Safety Recommendation R-0 1-17 by amending 49 CFR § 219.201(a)(5) generally to require railroads to test signal, maintenance, and other regulated employees in connection with a highway-rail grade crossing accident where human factors were involved including the following: (i) A regulated employee who interfered with the normal functioning of a grade crossing signal system, in testing or otherwise, without first taking measures to provide for the safety of highway traffic that depends on the normal functioning of such system; (ii) A train crewmember who was, or who should have been, flagging highway traffic to stop due to an activation failure of the grade crossing system; (iii) A regulated employee who was performing, or should have been performing, the duties of an appropriately equipped flagger due to an activation failure, partial activation, or false activation of the grade crossing signal system; (iv) A fatality to any regulated employee performing duties for the railroad, regardless of fault; or (v) A regulated employee who violated an FRA regulation or railroad operating rule and whose actions may have played a role in the cause or severity of the accident/incident. This final rule narrows the previous blanket testing exemption for grade crossing accidents. FRA believes this action meets the intent of Safety Recommendation R-0 1-17 and does not intend to take any further action. I appreciate your ongoing interest in these important safety issues. If I can provide further information or assistance.

From: NTSB
To: FRA
Date: 5/15/2015
Response: In our September 26, 2014, comments on your July 2014 NPRM, we stated our belief (1) that the NPRM does not effectively address the safety concerns raised by the use of prescription and OTC drugs by individuals subject to Part 219 and (2) that the document represents a missed opportunity to more fully speak to safety issues related to general health and medication effects in safety-sensitive railroad?including maintenance-of-way?employees. Pending your resolving these concerns and issuing the recommended final rule, Safety Recommendation R 08 7 remains classified OPEN—UNACCEPTABLE RESPONSE. As this recommendation is nearly 7 years old, we request that you expedite these actions.

From: FRA
To: NTSB
Date: 1/27/2015
Response: -From Sarah Feinberg, Acting Administrator: This letter is to update you on the status of the National Transportation Safety Board's (NTSB) Safety Recommendations R-00-01 through R-00-04, R-01-17, and R-08-07, issued to the Federal Railroad Administration (FRA). Safety Recommendation R-00-01 asks FRA to establish procedures and criteria for train operating crewmembers who take medications on a list of drugs approved by the U.S. Department of Transportation (DOT). Safety Recommendations R-00-02 through R-00-03 ask FRA to address the hazards of train operating crewmembers using specific medications while performing their duties. Safety Recommendation R-00-04 asks FRA, in coordination with DOT, the Federal Motor Carrier Safety Administration, the Federal Transit Administration, and the U.S. Coast Guard, to conduct post-mortem toxicological testing on a sample number of accident fatalities to determine if the use of prescription and over-the-counter drugs played a role in these fatal accidents. Safety Recommendation R-01-17 asks FRA to narrow its current highway-rail grade crossing exemption to allow the post-accident toxicological testing of any employee who may have contributed to the occurrence or severity of an accident. Finally, Safety Recommendation R-08-07 asks FRA to expand the scope of its drug and alcohol testing program to cover all employees and agents performing the functions listed in Title 49 Code of Federal Regulations Section 209.303. In Enclosure 1, FRA explains the actions that it has taken in response to Safety Recommendations R-00-01 through R-00-04, R-01-17, and R-08-07. FRA respectfully requests that the NTSB classify Safety Recommendation R-00-01 as "Closed-Unacceptable," Safety Recommendations R-00-02 through R-00-04 and R-08-07 as "Open-Acceptable Response," and Recommendation R-01-17 as "Closed-Acceptable Action." We look forward to continuing to work with you on important safety issues. As noted above in its responses to R-00-04 and R-01-17, in a July 2014 NPRM, FRA proposed to expand the scope of its drug and alcohol testing program (49 CFR Part 219) to cover employees who perform MOW activities included in the NPRM's proposed definition. FRA proposed to add these employees because, although FRA currently conducts PAT tests only on those MOW employees who died as a result of a rail accident, the post-mortem testing results of these MOW fatalities revealed a rate of positive test results three times that of those employees currently covered by Part 219. However, 49 CFR § 209.303 covers all individuals subject to disqualification under§ 209.301 's disqualification procedures, not only those who perform MOW activities. As discussed in FRA's July 2014 NPRM, FRA believes that individuals who perform the safety-sensitive functions listed in§ 209.303 (other than the performance of MOW activities) should not be added to the scope of Part 219. These individuals do not typically experience the same type of safety risks as individuals who perform MOW activities because they generally do not work on or around a railroad's track or roadbed. For example, individuals who inspect, repair, or maintain locomotives, passenger cars, and freight cars, as described in§ 209.303(b)(2), generally perform these functions in locomotive or car repair facilities subject to Blue Flag Protection. See Title 49 CFR Part 218, Subpart B. Similarly, individuals who conduct training and testing of employees required by FRA safety regulations, as described in§ 209.303(b)(3), may conduct such training without ever approaching a railroad track or roadbed. Furthermore, FRA notes that Section 412 of the RSIA authorizes FRA to expand its drug and alcohol testing program only to cover those employees who perform MOW activities. By including in the proposed definition of MOW activities the operation of fouling equipment, and the obtaining or granting of on-track authority, the proposed regulations would cover the maintenance and communications functions (e.g., the installation of cable or masts) listed in 49 CFR § 209.303, that employees would perform on or around a railroad's track or roadbed, thus adding approximately 32,000 MOW employees and contractors to the scope of Part 219. Finally, FRA's PAT testing data does not support the expansion of Part 219's scope beyond that of individuals who perform MOW activities. As with MOW employees,§ 219.201(a)(3) requires the PAT testing of any fatally injured on-duty railroad employee or contractor, including individuals who perform the other functions listed in§ 209.303. To date, however, among the individuals who perform functions listed in§ 209.303, only those who perform MOW activities have post-mortem test results indicating a higher use of drugs or alcohol than those of currently covered safety-sensitive employees. FRA will revisit the issue of coverage for individuals who perform other § 209.303 functions if their rate of positive post-mortem PAT test results should rise in the future.

From: NTSB
To: FRA
Date: 9/26/2014
Response: The National Transportation Safety Board (NTSB) has reviewed the Federal Railroad Administration’s (FRA) notice of proposed rulemaking (NPRM), “Control of Alcohol and Drug Use: Coverage of Maintenance of Way Employees, Retrospective Regulatory Review-Based Amendments (RRR)” published in the Federal Register July 28, 2014. We appreciate this opportunity to comment on the proposed rulemaking in response to Congress’ mandate in the Rail Safety Improvement Act of 2008 and are encouraged by the FRA addressing NTSB safety recommendations in these proposed fundamental revisions to this rule. Over the years, the NTSB has made recommendations concerning alcohol and drug use by transportation workers in safety-sensitive positions. In 1987, we undertook a safety study to review the first full year of implementation of the FRA’s alcohol and drug testing rules that established requirements for postaccident toxicological (PAT) testing and testing for cause (the FRA did not require random alcohol testing, and drug testing was not required until 1988). , As a result of this safety study, we issued 11 safety recommendations to the FRA. One, R-88-23, was relevant to testing all employees in safety-sensitive positions: Amend 49 CFR Part 219 to require postaccident toxicological testing of all employees in safety-sensitive positions. As noted in NTSB records, the FRA responded on September 21, 1990, that it had reviewed this issue on several occasions and concluded that employees covered by the Hours of Service (HOS) Act occupy the most safety-sensitive positions on the railroads and are the proper focus of Federal requirements: Categorical expansion of those tested following accidents would either result in an excessive testing burden in relation to the benefits derived (e.g., testing of an entire track gang at the scene of a derailment) or in an overboard delegation of decisional authority to the railroad supervisor in the field. In correspondence on March 3, 1994, the FRA again stated that it found no basis to expand PAT testing to other railroad crafts. On May 3, 1994, we replied: Based on FRA’s response, the Safety Board classifies Safety Recommendation R 88-23 ‘Closed—Reconsidered.’ However, the Safety Board will continue to monitor this issue closely. We made a similar safety recommendation, R-08-06, as a result of our investigation of the January 9, 2007, accident in which two Massachusetts Bay Transportation Authority (MBTA) MOW employees were killed near Woburn, Massachusetts, when a passenger train struck a roadway maintenance machine on the track. The FRA specifically references this recommendation in this NPRM. PAT testing of one of the fatally injured MOW employees showed he had likely used marijuana within 3 hours of his death. This class of employee was not subject to other toxicological testing protocols. As a result of the investigation, we issued safety recommendation R-08-07: Revise the definition of covered employee under 49 Code of Federal Regulations Part 219 for purposes of Congressionally mandated alcohol and controlled substances testing programs to encompass all employees and agents performing safety-sensitive functions, as described in 49 Code of Federal Regulations 209.301 and 209.303. This safety recommendation is currently classified “Open—Unacceptable Response.” In the Woburn accident, the presence of the illicit drug was determined only because of PAT testing following a fatality. Of the seven MOW employees tested following this accident, four had positive results, and one submitted a diluted specimen that may have masked a positive result. This high rate of positive test results was symptomatic of a substance abuse problem among MBTA MOW employees. Based on these accidents, we are concerned that waiting for a fatal accident to determine if an employee’s performance is impaired is too late. A proactive approach similar to that in Part 219 for covered employees, including random testing, will likely result in reduced accident rates, as indicated by the FRA PAT testing conducted over the 10 years ending January 9, 2007. We reviewed the data from this period and noted that in PAT testing of MOW employees, positive test results were about three times more likely when compared to the overall testing results of covered employees. The FRA uses these results to support its proposal to expand the number of employees tested, and we agree. However, FRA also proposes to limit testing to specific MOW employees, stating that “it is [not] necessary to expand part 219 beyond railroad employees (including contractors, subcontractors, volunteers, and probationary employees) who perform covered service and/or MOW activities for a railroad.” We disagree with this position, as discussed later in this response, as we believe that expanding the testing population to include contractors, defined in 49 CFR 209.303 as “agents” of the railroads will improve safety.

From: NTSB
To: FRA
Date: 1/15/2014
Response: Our last letter from the FRA regarding these recommendations was dated August 19, 2009. On January 27, 2010, the NTSB classified both recommendations “Open?Acceptable Response,” pending completion of the recommended actions. We were disappointed to learn that, regarding Safety Recommendation R-08-7, the FRA stated in its 2012 Report to Congress that it does not intend to add any other categories of employees to the scope of 49 CFR Part 219 at this time and asked that we reconsider the scope of the recommendation. We continue to believe that mandated alcohol and controlled substances testing programs should apply to all employees and agents performing safety sensitive functions. Accordingly, pending our receipt of a timely reply from the FRA that includes a detailed explanation of its intended action to address Safety Recommendation R-08-7, this recommendation is classified OPEN—UNACCEPTABLE RESPONSE.

From: NTSB
To: FRA
Date: 12/1/2011
Response: CC# 201100449 was closed administratively; no response was written or mailed.

From: FRA
To: NTSB
Date: 4/12/2011
Response: -From Ray LaHood, Secretary of the United States Department of Transportation: NTSB Classification and Actions Taken by FRA: Open – Acceptable Response. Since the inception of the railroad alcohol/drug program in 1986, FRA has required testing of the remains of any railroad employee killed in a train incident or train accident, regardless of craft. However, in other respects, testing has been limited to employees subject to the hours of service laws. FRA is concerned that the scope of implementing this safety recommendation involves other crafts for which there are few historical safety data and that the recommendation raises other implementation issues. While FRA had begun a comprehensive study and review of this matter, Congress weighed these issues and mandated in Section 412 of the RSIA that MOW employees be included in the existing alcohol/drug program by October 16, 2010. Accordingly, FRA will proceed to implement the mandate; and, in connection with this action, FRA will request public comment on inclusion of employees performing other safety-sensitive functions. See Item No. 14 in Exhibit A. Actions Needed to Be Taken by FRA: Issue regulations.

From: NTSB
To: FRA
Date: 1/27/2010
Response: The NTSB notes that the FRA generally concurs with the intent of this recommendation but that it believes the recommendation is too broad and is not supported by historical safety data. Although the FRA believes that its postaccident testing and carrier testing programs have yielded significant evidence that some MOW employees in particular are affected by problems with drug use, it believes that it is unclear whether safety would be improved by expanding the program to include employees in various other groups rather than only those employees who exercise responsibilities related to the safety of others. The FRA also is concerned with resolving any overlap between the Federal Motor Carrier Safety Administration requirements for commercial motor vehicle licenses and FRA action. On October 16, 2008, the Railroad Safety Improvement Act (RSIA) of 2008 was enacted. Section 412 of this legislation directed rulemaking to address alcohol and controlled substance testing for MOW employees: Not later than 2 years following the date of enactment of this Act, the Secretary of Transportation shall complete a rulemaking proceeding to revise the regulations prescribed under section 20140 of title 49, United States Code [U.S.C.], to cover all employees of railroad carriers and contractors or subcontractors to railroad carriers who perform maintenance-of-way activities. The NTSB points out, however, that although this law directs the Secretary of Transportation to complete rulemaking to revise alcohol and controlled substances testing to cover all railroad employees, including contractors who perform MOW activities, 49 U.S.C. 20140 does not satisfy Safety Recommendation R-08-7. The NTSB’s intent in issuing this recommendation was to ensure testing of all employees and agents performing safety-sensitive functions, as described in 49 CFR 209.303. In addition to employees covered under Part 219, this recommendation is intended to include railroad employees or agents who inspect, install, repair, or maintain track and roadbed; inspect, repair, or maintain locomotives, passenger cars, and freight cars; or conduct training or testing when the training is required by FRA regulations. It is also intended to include railroad managers, supervisors, or agents when they perform, or supervise employees performing, the safety-sensitive functions listed above and those in a position to direct those whose actions could violate Parts 213 through 236. We encourage the FRA to include these employees, managers, supervisors, and agents in its definition of covered employee under Part 219 in revising the regulation. As of the date of this letter, the NPRM has not been issued. Pending an NTSB review of the NPRM directed by the RSIA, Safety Recommendation R-08-7 is classified OPEN -- ACCEPTABLE RESPONSE.

From: FRA
To: NTSB
Date: 8/19/2009
Response: Letter Mail Controlled 8/26/2009 9:34:30 AM MC# 2090530: - From Joseph C. Szabo, Administrator: Since the inception of the railroad alcohol/drug prograni, in 1986, FRA has required testing of the remains of any railroad employee killed in a train incident or train accident, regardless of craft. However, in other respects, testing has been limited to employees subject to the hours of service law. FRA is concerned that the scope of implementing this safety recommendation involves otl~erc rafts for which there is little historical safety data and that the recommendation raises other implementation issues. FRA started a comprehensive study and review of this matter, during which time, Congress weighed these issues and mandated in Section 4 12 of the Rail Safety lniprovement Act of 2008 that maintenance-of-way employees be included in the existing alcohol/drug prograni by October 16,2010. Accordingly, FRA will proceed to implement the mandate, and, in connection with this action, FRA will request public comment on inclusion of employees performing other safety-sensitive functions. In September 2008, FRA sent an initial recommendation response letter to NTSB requesting that Safety Recon~mendationR -08-7 be reclassified as "Open-Acceptable Response." FRA is awaiting a formal response from NTSB. 'The FRA respectfully requests that NTSB classify this recommendation as "Open-Response Received," until such time as the NTSB staff and Board members have determined a classification based on PRA's initial recommendation response letter

From: FRA
To: NTSB
Date: 9/16/2008
Response: Letter Mail Controlled 9/23/2008 2:20:07 PM MC# 2080585: - From Joseph H. Boardman, Administrator: The FRA generally concurs with the intent of this recommendation. Since the inception of the railroad alcohol/drug program in 1986, FRA has required testing of any railroad employee involved in a train incident or train accident, regardless of craft. This program and carrier testing programs have yielded significant evidence that some maintenance-of-way employees in particular are affected by drug-use problems. Although establishing causality in the realm of human factors is always difficult, it does appear likely that the safety of roadway work groups and train operations is compromised by drug use among the employee population. The FRA is concerned that the scope of implementing this safety recommendation involves other crafts for which there is little to no historical safety data. It is not clear, for instance, whether safety would be materially improved by adding shop crafts or bridge and building employees to the program. Even in the case of maintenance-of-way employees, it may be wise to consider testing only those employees who exercise responsibilities related to the safety of others (e.g., roadway workers in charge), rather than attempting to address all laborers. Further, we need to consider the overlap between Federal Motor Carrier Safety Administration requirements for employees holding commercial motor vehicle licenses and any FRA action. These sorts of questions are more readily posed than resolved. In any event, this recommendation asks that FRA initiate a significant rulemaking. The current presidential administration has already finalized its designations of significant rulemakings that will be initiated or completed, and the new administration taking office in January should have the ability to determine the course of action it will take. However, FRA has started to study this recommendation and to mine data, where possible. Upon completion of a comprehensive study and review, safety staff will make a recommendation to the new administration as to whether to publish an NPRM. An implementation schedule has been enclosed for your review. Until such time as FRA is able to fully analyze and address this safety recommendation, FRA respectfully requests that NTSB classify Safety Recommendation R-08-07 as Open-Acceptable Response.