This guidance document provides clarity to DOT-regulated employers, employees, and service agents on conducting DOT drug-and-alcohol testing given concerns about the Coronavirus Disease 2019 (COVID-19). We, as a nation, are facing an unprecedented public health emergency that is straining medical resources and altering aspects of American life, including the workplace. The nation’s transportation industries, which are not immune to the impacts and disruptions resulting from the spread of COVID-19 in the United States, are playing a vital role in mitigating the effects of COVID-19.
DOT is committed to maintaining public safety while providing maximum flexibility to allow transportation industries to conduct their operations safely and efficiently during this period of national emergency.
The below guidance on compliance with the DOT and modal drug and alcohol testing programs apply during this period of national emergency.
For DOT-regulated employers:
As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements. However, DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP). You should make a reasonable effort to locate the necessary resources. As a best practice at this time, employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available.
If you are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, state or locally imposed quarantine requirements, or other impediments, you are to continue to comply with existing applicable DOT agency requirements to document why a test was not completed. If training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), you are to do so in accordance with applicable modal regulations. Links to the modal regulations and their respective web pages can be found at https://www.transportation.gov/odapc/agencies.
If employers are unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying modal regulations continue to apply. For example, without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions, or in the case of the Federal Aviation Administration (FAA), you cannot hire the individual (See 14 CFR § 120.109(1) and (2)).
Additionally, DOT is aware that some employees have expressed concern about potential public health risks associated with the collection and testing process in the current environment. Employers should review the applicable DOT Agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i). However, as the COVID-19 outbreak poses a novel public health risk, DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites. DOT asks employers to verify with the clinic or collection site that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.
Employers should revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions. For example, these plans should include availability of collectors and collection sites and BAT, and alternate/back-up MRO, as these may have changed as a result of the national emergency. Employers should also have regular communications with service agents regarding the service agent’s availability and capability to support your DOT drug and alcohol testing program.
For DOT-regulated employees:
If you are experiencing COVID-19-related symptoms, you should contact your medical provider and, if necessary, let your employer know about your availability to perform work.
If you have COVID-19-related concerns about testing, you should discuss them with your employer.
As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i).
For service agents:
As a collector, BAT, laboratory, MRO, or SAP, you should continue to provide services to DOT-regulated employers if it is possible to do so in accordance with state or local mandates related to COVID-19. Should you have concerns about COVID-19 when testing or interacting with employees, please follow your company policy, directions from state and local officials, and guidance from the Centers for Disease Control and Prevention (CDC).
Federal agencies have announced their random drug testing rates for the new calendar year.
In December, the Federal Motor Carrier Safety Administration (FMCSA) announced a test rate increase from 25 percent to 50 percent of the average number of driver positions because of an increased number of positive test results in 2018.
In January, the Federal Transit Administration (FTA) announced that the minimum random drug testing rate will remain unchanged at 50 percent.
The Federal Railroad Administration’s minimum drug test rate remains at 25 percent for workers, excluding maintenance-of-way employees.
The random alcohol testing rate has been set for all three agencies at 10 percent.
Railroad maintenance-of-way employees are tested at a higher rate: 50 percent for drugs and 25 percent for alcohol.
WASHINGTON – The U.S Department of Transportation’s (USDOT) Federal Railroad Administration (FRA) issued to Congress the first National Strategy to Prevent Trespassing on Railroad Property. The report examines the causal factors that contribute to trespassing incidents on railroad property, and responds to a U.S. House of Representatives Committee on Appropriations request.
“Almost every trespasser death or injury is preventable and FRA is working to intensify our efforts,” said FRA Administrator Ronald L. Batory. “Now that we have examined current data on contributing factors of the problem, we are seeking to energize our state and local partners to implement solutions and save lives.”
In the report, the FRA examined trespasser casualties over a four-year period (Nov. 2013 to Oct. 2017) and identified the top 10 counties in the United States where the most pedestrian trespasser casualties occurred (Los Angeles, Calif.; Cook (Chicago), Ill.; San Bernardino, Calif.; Harris (Houston), Texas; Broward, Fla.; Palm Beach, Fla.; Fresno, Calif.; Riverside, Calif.; Contra Costa, Calif.; San Diego, Calif.). The report shows that, excluding suicides, 4,242 pedestrians were killed or injured while trespassing on railroad property nationwide during this time period.
Preventing trespasser casualties and injuries is a high priority for FRA as part of the Department’s safety mission. In October 2018, FRA convened a Trespasser & Grade Crossing Fatality Prevention Summit at its headquarters in Washington, DC. Secretary Chao, Administrator Batory, representatives from other DOT modal administrations, and key stakeholders from the rail industry, law enforcement, and the navigation industry attended the meeting to discuss strategies to reduce grade crossing and trespasser fatalities, as well as to solicit ideas to develop and implement a comprehensive national plan and strategy. FRA looks forward to coordinating and working with all stakeholders to prevent trespassing incidents, and this report is an important step forward in the continued effort to improve rail safety.
FRA’s national strategy to prevent trespassing on railroad property includes four strategic focus areas: data gathering and analysis, community site visits, funding and partnerships with stakeholders.
Data gathering and analysis of trespass incidents and close-calls will enable FRA to target its resources to trespassing “hot spots.” Conducting community site visits will help FRA to learn more about the specific local circumstances that contribute to trespassing and work with partners to help implement and evaluate targeted mitigation strategies. Requesting and providing funding will support community-based efforts to deter trespassing. Finally, building strong and enduring partnerships with communities, law enforcement, railroads and other organizations with a shared interest in saving lives will enable FRA to leverage and concentrate available resources, expertise and local knowledge to combat trespassing.
Short term targets for success include stakeholder engagement and implementation of strategies that save lives at trespassing “hot spots.” Over the long term, FRA will measure the success of this national strategy by how much trespassing incidents and casualties are reduced nationwide.
The Associated Press reported Dec. 20 that an analysis by the federal Department of Transportation (DOT) did not take into account up to $117 million in damage reductions when considering the repeal of a Federal Railroad Administration (FRA) rule requiring the installation of electronically controlled pneumatic (ECP) brakes on tanker cars.
The DOT repealed the 2015 rule requiring the installation of the advanced braking system on DOT-117 tank cars that carry explosive fuels in late 2017.
AP reviewed federal documents and found that the damage estimates used by the DOT varied widely between the Obama administration, which enacted the ECP rule, and the Trump administration, which repealed the rule.
“Under Obama, the Transportation Department determined the brakes would cost up to $664 million over 20 years and save between $470 million and $1.1 billion from accidents that would be avoided,” the AP’s Matthew Brown wrote. “The Trump administration reduced the range of benefits to between $131 million and $374 million. Transportation department economists said in their analysis that the change was prompted in part by a reduction in oil train traffic in recent years, which meant there would be fewer derailments. But in making their calculations, they left out the most common type of derailments in which spilled and burning fuel causes property damage but no mass casualties …
“Department of Transportation officials acknowledged the mistake after it was discovered by the AP during a review of federal documents, but said it doesn’t change their decision not to install the brakes,” Brown wrote.
WASHINGTON – The U.S. Department of Transportation’s Federal Transit Administration (FTA) announced a total of $281 million in additional Fiscal Year 2018 federal funding allocations to five transit projects in Arizona, California, Minnesota and Texas. Funding will be provided through FTA’s Capital Investment Grants (CIG) Program.
“These significant investments in the public transit systems in five communities across the country will improve mobility for riders who depend upon public transit every day,” said U.S. Transportation Secretary Elaine L. Chao.
FTA has advanced funding for 17 new CIG projects throughout the nation under this administration since January 20, 2017, totaling approximately $4.8 billion in funding commitments. The present administration will have executed 13 CIG funding agreements by Dec. 31, 2018, for $3.3 billion in CIG funding, compared to 10 projects for $1.08 billion during the corresponding period (Jan. 20, 2009 – Dec. 2010) for the previous administration. In addition, with the allocations announced today, the present administration is committing to execute an additional four agreements for $1.5 billion in CIG funding if those projects continue to meet the CIG program requirements.
The projects included as part of the announcement are the Tempe Streetcar project in Arizona; the Los Angeles Westside Purple Line Section 3 project and San Diego Mid-Coast Light Rail project in California; the Minneapolis Orange Line Bus Rapid Transit (BRT) project in Minnesota; and the Dallas Area Rapid Transit (DART) Red and Blue Line Platform Extensions project in Texas.
FTA indicated its intent to fund the projects through an updated allocation notice for Fiscal Year (FY) 2018 CIG funding appropriated by Congress. FTA is allocating approximately $281 million in appropriated FY 2018 CIG funding among the five projects, which either have a construction grant agreement or are nearing completion of all statutory and readiness requirements. All five projects have either completed or are in process of completing the rigorous CIG program steps as outlined in the law.
“FTA continues to evaluate and advance projects in the CIG program, considering each project on its individual merits while demonstrating good governance consistent with discretion afforded in federal law,” said FTA Acting Administrator K. Jane Williams.
The CIG Program provides funding for major transit infrastructure capital investments nationwide. Projects accepted into the program must go through a multi-year, multi-step process according to requirements in law to be eligible for consideration to receive program funds.
New FY 2018 CIG Allocations
Tempe, AZ: Tempe Streetcar
The Tempe Streetcar is a three-mile streetcar with 14 stations and six vehicles that will connect downtown Tempe and Arizona State University. It also will connect with existing light rail serving Phoenix, Mesa and the airport. The total project cost is $201.9 million with $75 million in funding requested through the CIG Program. Upon final FTA approval of a construction grant agreement, the project will receive $25 million in FY 2018 CIG funds to complete the CIG funding request.
Los Angeles, CA: Los Angeles Westside Purple Line Section 3 Project
The Los Angeles Westside Purple Line Section 3 project is a 2.6-mile heavy rail extension from Century City to Westwood and the Veterans Affairs hospital that includes two stations and 16 vehicles. The total project cost is $3.7 billion with $1.3 billion in funding requested through the CIG Program. Upon final FTA approval of a construction grant agreement, the project will receive $100 million in FY 2018 CIG funds.
San Diego, CA: San Diego Mid-Coast Corridor Light Rail Project
The San Diego Mid-Coast Corridor Light Rail project is a 10.92-mile light rail extension from downtown San Diego to the growing University City area. The extension will improve access to employment hubs and numerous educational and medical facilities north of downtown. FTA announced a $1.04 billion grant agreement for the $2.17 billion project in September 2016. The project will receive an additional $80 million in FY 2018 CIG funds.
Minneapolis, MN: Minneapolis Orange Line BRT Project
The Minneapolis Orange Line BRT project is a 17-mile BRT along Interstate 35 linking job centers including downtown, Best Buy Headquarters, Wells Fargo Home Mortgage, Target Corporation, and Southtown Shopping Center. The total project cost is $150.7 million with $74.08 million requested through the CIG Program. Upon final FTA approval of a construction grant agreement, the project will receive $74.08 million in FY 2018 CIG funds to complete the CIG funding request.
Dallas, TX: Dallas Area Rapid Transit (DART) Red and Blue Line Platform Extensions Project
The DART Red and Blue Line Platform Extensions project will extend and modify platforms along the existing Red and Blue Lines to accommodate three-car trains with level boarding. The total project cost is $128.7 million with $60.76 million requested through the CIG Program. Upon final FTA approval of a construction grant agreement, the project will receive $2 million in FY 2018 CIG funds to complete the CIG funding request.
To date, FTA has allocated $1.86 billion of the $2.62 billion in FY 2018 CIG funds appropriated for projects by Congress. FTA will continue to consider additional FY 2018 CIG allocations, based on the merits of individual projects.
WASHINGTON – The U.S. Department of Transportation’s (DOT) Federal Railroad Administration (FRA) issued a final rule establishing modern, performance-based safety standards for railroad passenger equipment. The rule reinforces FRA’s commitment to safety while representing one of the most significant enhancements to the nation’s passenger rail design standards in a century. The rule paves the way for U.S. high-speed passenger trains to safely travel as fast as 220 miles per hour (mph).
“These new regulations were made possible by a wealth of FRA research, reinforcing our unwavering commitment to safety,” FRA Administrator Ronald L. Batory said. “FRA’s safety experts solicited input from industry stakeholders at numerous levels and took those ideas to develop standards supporting a new era in public transportation.”
The final rule defines a new category of high-speed rail operations and makes it possible for high-speed rail to utilize existing infrastructure, saving the expense of building new rail lines. These new ‘Tier III’ passenger trains can operate over this shared track at conventional speeds, and as fast as 220 mph in areas with exclusive rights-of-way and without grade crossings.
The final rule also establishes minimum safety standards for these trains, focusing on core, structural and critical system design criteria. FRA estimates that the rule will improve safety because of expected improvements made by the railroads to accommodate the operation of high-speed rail equipment in shared rights-of-way.
The final rule will be a deregulatory action under Executive Order (EO) 13771, “Reducing Regulation and Controlling Regulatory Costs.” The rule is expected to save more than $475 million in net regulatory costs.
Passenger train manufacturers across the globe have utilized innovative design and testing techniques for years, incorporating features such as crash energy management. Under FRA’s previous passenger equipment regulations, U.S. rail companies have had limited procurement options or have needed to petition FRA for waivers to use these newer technologies.
The final rule continues to define Tier I as trains operating in shared rights-of-way at speeds up to 125 mph, and it also allows state-of-the-art, alternative designs for equipment operating at these conventional speeds. Tier II trains are defined as those traveling between 125-160 mph, an increase from the previous 150 mph limit. This supports a competitive operating environment for U.S. companies seeking to offer travelers more passenger rail options. By enabling the use of advanced equipment-safety technologies, this final rule helps eliminate the need for waivers.
The final rule was developed with the assistance of the Engineering Task Force (ETF), under the auspices of FRA’s Railroad Safety Advisory Committee (RSAC). The ETF membership included FRA technical staff and representatives from railroads, rail labor organizations, manufacturers and others. The ETF evaluated production trends against the U.S. operating environment. The ETF recommended that FRA expand its traditional speed-and-safety rating system to three categories of passenger trains.
The Bellingham Herald reports that last week the Department of Transportation’s Pipeline and Hazardous Material Safety Administration (PHMSA) decided to repeal a rule that required electronically controlled pneumatic (ECP) braking systems be installed on all oil trains.
The original rule was intended to increase safety and help prevent the derailment and puncturing of cars. DOT’s original analysis of ECP brakes found that they “can reduce the number of cars in a derailment that puncture and release their contents by almost 20 percent compared to other braking technologies.”
With conventional air brakes, the braking message must go through each car individually before moving on to the next car; this process can take up to two minutes for the brake application to reach the back of a freight train. ECP braking uses electronic controls that applies the brakes to all cars consistently and at the same time, providing more control and shortening the stopping distance, which leads to a lower risk of derailment or coupling breakage.
Washington state Governor Jay Inslee criticized the repeal, saying in a press release that the decision to repeal is a “reckless disregard for the life and property of all who live or work along the rail tracks.”
“I fear the day we witness a destructive or deadly derailment that could have been prevented with readily available technology,” he said.
The PHMSA cited a reduction in benefits to the rail carriers from $254 million in benefits to businesses and $215 to $358 million in savings related to safety when the first analysis of ECP braking was done, down to $131 to $198 million in total benefits, as the reason for their repeal of the rule. PHMSA said the lower estimates stem from a decrease in the amount of oil being transported by rail.
The Association of American Railroad (AAR), an organization representing rail carriers, praised the repeal, while Inslee, environmental groups and unions protest this reduction in safety.
Click here to read the full story from the Bellingham Herald.
A man’s rail career was jeopardized after eating a gummy bear, and SMART Transportation Division cautions members of the risks of a positive drug test after consuming “hemp products,” which are unregulated by the federal government and considered illegal by federal law.
Virginia State Legislative Director Ronnie Hobbs says a 28-year-old member experienced a positive Department of Transportation drug test after eating a candy containing the substance cannabidiol, commonly known as CBD, which is a chemical derived from the marijuana plant.
CBD is legal in products in many states, including Virginia, and reportedly has medicinal properties such as relaxation, pain relief and anxiety reduction in users. Because of these properties and the adoption of medical marijuana laws in multiple states, hemp products containing CBD such as ingestible pills or tablets, candies, “vaping” fluid, topical ointments and oils have become more widely available.
“This is a major issue,” said Hobbs. “These products can cost members their jobs – you don’t know what you’re buying.”
The Federal Railroad Administration (FRA) issued a statement in late April warning of the potential risk of using anything containing CBD, such as gummies or hemp oil.
Since CBD comes from the marijuana plant, federal law considers it an illegal Schedule I controlled substance, even though it may be for sale and legal to use in individual states. Because the federal government considers it illegal, products containing it are unregulated by the Food and Drug Administration (FDA) and there is no oversight of these products.
As a result, users of hemp products run the risk of taking in the intoxicating component of marijuana called delta-9 tetrahydrocannabinol, aka THC. Since there is no regulatory oversight, the label may claim the products have no THC content, but there is no guarantee that is the case, the FRA said.
“CBD products can, therefore, be definitely a ‘buyer beware’ concern in terms of product content and quality control,” the FRA stated. “In addition, CBD products may be innocently or purposefully sold with varying amounts of THC present, which will obviously not be listed as an ingredient.”
So the label might be wrong, saying that the product didn’t contain THC when it actually did, as was the case for the member, Hobbs said.
“It’s creative packaging,” he said. “We need to get a strong message out. Even though the packaging says, ‘no THC,’ there could be THC in there. There’s no oversight.”
Drug tests administered by the DOT target a byproduct called THCCOOH, which appears in a person’s urine after the use of a product containing THC. While a product containing pure CBD would not trigger a positive, a product with a mix of THC along with the CBD taken into the body could trigger a positive test.
“If THC is present in sufficient amounts, that could potentially be the source of a positive federal drug test,” the FRA said.
Even if a regulated employee says the source of a positive marijuana test is a hemp product, FRA says the test still will be verified by the Medical Review Officer (MRO) as a positive result.
That’s what happened to the father of two after just one gummy bear, Hobbs said.
U.S. Secretary of Transportation Elaine Chao said at CES, an annual technology show in Las Vegas, that she plans to take steps toward creating policy guiding the development of self-driving transportation for trucks, buses, transit systems and trains. One of the steps that Chao plans to take toward creating this new policy is to deregulate these industries.
“I also want to take this opportunity to announce that the Department (DOT) will be seeking public input from across the transportation industry to identify existing barriers to innovation. This includes not only barriers that impact vehicles, but also impediments to innovations that can impact our highways, railroads, trains and motor carriers,” Chao said.
In response to Chao’s announcement, SMART Transportation Division National Legislative Director John Risch wrote in an email, “This rush to autonomous vehicles of all kinds should worry all transportation workers.
“We have been working with Congress to limit legislation on self-driving vehicles to automobiles and to not include buses and trucks. So far our efforts on that front have been successful,” Risch said. “We will continue to work on this issue, but the times they are a-changing.”
As part of Chao’s efforts to deregulate the transportation industry, notices for public comment have appeared in the Federal Register on behalf of DOT’s Federal Highway Administration (FHWA), Federal Transit Administration (FTA) and National Highway Traffic Safety Administration (NHTSA).
Click here to read the Request for Information on Integration of ADS into the Highway Transportation System as published by the Federal Register – to be published 01/18
Click here to read the Request for Comments on Automated Transit Buses Research Program as published in the Federal Register
Click here to read the Request for Comment on Removing Barriers to Transit Bus Automation
Click here to read the Request for Comment on Removing Regulatory Barriers for Automated Vehicles from the Federal Register
U.S. Secretary of Transportation Elaine L. Chao has announced that Federal Aviation Administration (FAA) Deputy Administrator Daniel K. Elwell will serve as Acting FAA Administrator upon the conclusion of Administrator Michael Huerta’s term. Huerta’s term ended at midnight on Jan. 7, 2018.
“Our nation is grateful for Administrator Huerta’s service to the FAA and his commitment to aviation safety,” Chao said of Huerta.
Elwell was appointed the FAA Deputy Administrator in June 2017. Elwell took office at 12:01 a.m. on Jan. 7. He was replaced as deputy administrator by Carl Burleson, the deputy assistant administrator for policy, international and environment in an acting capacity. FAA’s Deputy Assistant Administrator for Information and Technology Tina Amereihm has taken over as FAA chief of staff, replacing Chris Rocheleau. Rocheleau was recently named as executive director for international aviation.
Elwell has a wealth of experience with the FAA and other agencies, having held various positions such as FAA assistant administrator for policy, planning and environment from 2006 – 2008; senior vice president for safety, security and operations at Airlines for America from 2013 to 2015; and vice president of the Aerospace Industries Association from 2008 – 2013.
Elwell also served the airline industry as a commercial pilot for 16 years with American Airlines. He is also a former U.S. Air Force lieutenant colonel who saw combat during the Operation Desert Storm conflict.
In response to a petition of reconsideration filed by the American Short Line and Regional Railroad Association (ASLRRA) of the final rule that requires training, qualification and oversight for safety-related railroad employees, the Federal Railroad Administration (FRA) has issued a Notice of Proposed Rulemaking (NPRM) to delay the implementation of the rule for an additional year.
On Nov. 7, 2014, the FRA published a final rule that established minimum training standards for each category and subcategory of safety-related railroad employees and required railroad carriers to submit training programs to the FRA for approval. Railroads are required to submit their training programs to the FRA by May 1, 2018. Implementation of the programs is currently required by May 1, 2020. The NPRM proposes moving the May 1, 2018, date to May 1, 2019 and the May 1, 2020 implementation date to May 1, 2021. ASLRRA holds that they are still developing their training programs and won’t be ready for submission to the FRA before fall 2018.
The NPRM has been published in the Federal Register and is open for comments until Jan. 19.
Last week, the SMART Transportation Division National Legislative Office submitted comments to the Department of Transportation (DOT) seeking input on existing rules and other agency actions that are good candidates for repeal, replacement, suspension, or modification. In our comments, we remind the DOT that many rules and regulations in the railroad industry were written in blood and that the reduction in overall accident rates are thanks to the various safety regulations issued by agencies like the Federal Railroad Administration.
Furthermore, we urged the DOT to continue to engage the Railroad Safety Advisory Committee (RSAC) for future rulemaking — a collaborative process that has been successful for nearly 20 years. Alternatively, the Association for American Railroads has called on the DOT to issue rules “based on a demonstrated need, as reflected in current and complete data and sound science; and non-prescriptive regulatory tools, like performance-based regulations…” while listing a number of existing federal requirements. We believe this approach would only undermine critical safety needs in the rail industry such as the need for two-person crews and ECP braking systems.