Recognition of a foreign railroad's workplace testing program.
(a) General. A foreign railroad may petition the FRA Associate Administrator for Safety for recognition of a workplace testing program promulgated under the laws of its home country as a compatible alternative to the return-to-service requirements in subpart B of this part and the requirements of subparts E, F, and G of this part with respect to its employees whose primary reporting point is outside the United States but who enter the United States to perform train or dispatching service and with respect to its final applicants for, or its employees seeking to transfer for the first time to, duties involving such service.
(1) To be so considered, the petition must document that the foreign railroad's workplace testing program contains equivalents to subparts B, E, F, and G of this part:
(i) Pre-employment drug testing;
(ii) A policy dealing with co-worker and self-reporting of alcohol and drug abuse problems;
(iii) Random drug and alcohol testing;
(iv) Return-to-duty testing; and
(v) Testing procedures and safeguards reasonably comparable in effectiveness to all applicable provisions of the United States Department of Transportation Procedures for Workplace Drug and Alcohol Testing Programs ( part 40 of this title ).
(2) In approving a program under this section, the FRA Associate Administrator for Safety may impose conditions deemed necessary.
(b) Alternative programs.(1) Upon FRA's recognition of a foreign railroad's workplace testing program as compatible with the return-to-service requirements in subpart B and the requirements of subparts E, F, and G of this part, the foreign railroad must comply with either the enumerated provisions of part 219 or with the standards of the recognized program, and any imposed conditions, with respect to its employees whose primary reporting point is outside the United States and who perform train or dispatching service in the United States. The foreign railroad must also, with respect to its final applicants for, or its employees seeking to transfer for the first time to, duties involving such train or dispatching service in the United States, comply with either subpart E of this part or the standards of the recognized program.
(2) The foreign railroad must comply with subparts A, B (other than the return-to-service provisions in § 219.104(d) ), C, reasonable suspicion testing in subpart D, and subparts I and J. Drug or alcohol testing required by these subparts must be conducted in compliance with all applicable provisions of the United States Department of Transportation Procedures for Workplace Drug and Alcohol Testing Programs ( part 40 of this title ).
(c) Petitions for recognition of a foreign railroad's workplace testing programs. Each petition for recognition of a foreign workplace testing program shall contain:
(1) The name, title, address, and telephone number of the primary person to be contacted with regard to review of the petition;
(2) The requirements of the foreign railroad workplace testing program to be considered for recognition;
(3) Appropriate data or records, or both, for FRA to consider in determining whether the foreign railroad workplace testing program is equivalent to the minimum standards contained in this part and provides at least an equivalent level of safety.
(d) Federal Registernotice. FRA will publish a notice in the Federal Register concerning each petition under paragraph (c) of this section that it receives.
(e) Comment. Not later than 30 days from the date of publication of the notice in the Federal Register concerning a petition under paragraph (c) of this section, any person may comment on the petition.
(1) A comment shall set forth specifically the basis upon which it is made, and contain a concise statement of the interest of the commenter in the proceeding.
(2) Any comment on a petition should reference the FRA docket and notice numbers. A commenter may submit a comment and related material by only one of the following methods:
(i) Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments on the Federal Docket Management System electronic docket site.
(ii) Fax. 1-202-493-2251.
(iii) Mail. U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(iv) Hand delivery. Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
(3) The commenter shall certify that a copy of the comment was served on the petitioner. Note that all petitions received will be posted without change to http://www.regulations.gov including any personal information provided.
(f) Disposition of petitions.(1) If FRA finds that the petition complies with the requirements of this section and that the foreign railroad's workplace testing program is compatible with the minimum standards of this part, the petition will be granted, normally within 90 days of its receipt. If the petition is neither granted nor denied within 90 days, the petition remains pending for decision. FRA may attach special conditions to the approval of any petition. Following the approval of a petition, FRA may reopen consideration of the petition for cause.
(2) If FRA finds that the petition does not comply with the requirements of this section or that the foreign railroad's workplace testing program is not compatible with the minimum standards of this part, the petition will be denied, normally within 90 days of its receipt.
(3) When FRA grants or denies a petition, or reopens consideration of the petition, written notice is sent to the petitioner and other interested parties.
(g) Program recognition. If its program has been recognized, the foreign railroad shall maintain a letter on file indicating that it has elected to extend specified elements of the recognized program to its operations in the United States. Once granted, program recognition remains valid so long as the program retains these elements and the foreign railroad complies with the program requirements.
[69 FR 19286, Apr. 12, 2004, as amended at 74 FR 25172, 25173, May 27, 2009]
Title 49 published on 2012-10-01
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