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Rule2022-01985

Control of Alcohol and Drug Use: Coverage of Mechanical Employees and Miscellaneous Amendments

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Published

February 2, 2022

Effective

March 4, 2022

Issuing agencies

Transportation DepartmentFederal Railroad Administration

Abstract

As mandated by the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act or Act), FRA is expanding the scope of its alcohol and drug regulation to cover mechanical employees. This rule clarifies who FRA considers a mechanical employee for regulatory purposes, and adopts proposed technical amendments.

Full Text

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<title>Federal Register, Volume 87 Issue 22 (Wednesday, February 2, 2022)</title>
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[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Rules and Regulations]
[Pages 5719-5737]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01985]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

[Docket No. FRA-2019-0071, Notice No. 2]
RIN 2130-AC80

Control of Alcohol and Drug Use: Coverage of Mechanical Employees
and Miscellaneous Amendments

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: As mandated by the Substance Use-Disorder Prevention that
Promotes Opioid Recovery and Treatment for Patients and Communities Act
(SUPPORT Act or Act), FRA is expanding the scope of its alcohol and
drug regulation to cover mechanical employees. This rule clarifies who
FRA considers a mechanical employee for regulatory purposes, and adopts
proposed technical amendments.

DATES: This rule is effective March 4, 2022.

ADDRESSES: Docket: For access to the docket to read background
documents or comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Gerald Powers, Drug and Alcohol
Program Manager, Office of Railroad Safety--Office of Technical
Oversight, telephone: 202-493-6313, email: <a href="/cdn-cgi/l/email-protection#fa9d9f889b969ed48a958d9f8889ba9e958ed49d958c">[email&#160;protected]</a>; Sam
Noe, Drug and Alcohol Specialist, Office of Railroad Safety--Office of
Technical Oversight, telephone: 615-719-2951, email: <a href="/cdn-cgi/l/email-protection#b7c4d6da99d9d8d2f7d3d8c399d0d8c1">[email&#160;protected]</a>;
or Patricia V. Sun, Attorney Adviser, Office of Safety Law, telephone:
202-493-6060, email: <a href="/cdn-cgi/l/email-protection#daaabbaea8b3b9b3bbf4a9afb49abeb5aef4bdb5ac">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Discussion of General Comments and Conclusions
A. FRA's Proposed Mechanical Employee Definition
1. Summary
2. Fourth Amendment Implications
3. Decrease in Random Testing Deterrence
4. Consistency With the SUPPORT Act
5. Consistency With the MOW Employee Definition
6. Treatment of Employees Subject to Part 209
B. Pre-Employment Testing
C. Initial Mechanical Employee Annual Random Testing Rates
D. Post-Accident Toxicological Testing
E. Effective Date of Final Rule and Timetable for Submitting
Random Testing Plans for MECH Employees
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act and Executive Order 13272;
Certification
C. Paperwork Reduction Act
D. Environmental Impact
E. Executive Order 12898 (Environmental Justice)
F. Federalism Implications
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Tribal Consultation

I. Executive Summary

In Section 8102(a) of the SUPPORT Act,\1\ Congress mandated FRA (as
the Secretary of Transportation's delegate) include ``all employees of
railroad carriers who perform mechanical activities'' (MECH
employee(s)) in its alcohol and drug regulation, 49 CFR part 219. In
section 8102(b) of the Act, Congress directed FRA to define mechanical
activities for purposes of part 219 coverage. On January 8, 2021, FRA
published a Notice of Proposed Rulemaking (NPRM) in response to this
mandate.\2\ FRA received comments on the NPRM from four organizations
(including one joint filing) and 12

[[Page 5720]]

individuals. This final rule addresses those comments and amends part
219, as proposed, by defining a MECH employee as any employee who, on
behalf of a railroad, performs mechanical tests or inspections required
by the following FRA regulations: Railroad Freight Car Safety Standards
(49 CFR part 215), Rear End Marking Device--Passenger, Commuter and
Freight Trains (49 CFR part 221), Railroad Locomotive Safety Standards
(49 CFR part 229), Steam Locomotive Inspection and Maintenance
Standards (49 CFR part 230), Brake System Safety Standards for Freight
and Other Non-Passenger Trains and Equipment; End-of-Train Devices (49
CFR part 232), and Passenger Equipment Safety Standards (49 CFR part
238). In addition, as discussed in the Section-by-Section Analysis, the
definition also includes any such employee who performs mechanical
tests or inspections required by the Texas Central Railroad High-Speed
Rail Safety Standards (49 CFR part 299). Defining a MECH employee as
one who performs these required tests or inspections properly limits
part 219 coverage to those mechanical department employees who perform
functions that most directly affect safety. An employee who conducts
tests or inspections provides the last safety check on railroad rolling
equipment before its operation. Final tests or inspections, if not
performed or if performed improperly, could lead to single points of
failure in the mechanical safety process. An employee who performs a
Federally mandated ``last look'' at the equipment, whether or not it
has undergone any repair, maintenance, or servicing work, is
responsible for ensuring that the equipment is compliant with Federal
regulations and safe for use.
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\1\ Public Law 115-271, Oct. 24, 2018.
\2\ 86 FR 1418.
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By amending the term ``regulated employee'' to include MECH
employees, FRA is making them subject to all part 219 prohibitions and
testing (pre-employment, random, post-accident toxicological (PAT),
reasonable suspicion, return-to-duty, and follow-up). Railroads,
contractors, and subcontractors must comply with the same reporting,
recordkeeping, and referral requirements for MECH employees, as for
covered service and MOW employees.
In addition to changes to part 219 directly related to the addition
of MECH employees, this final rule also makes other changes to part
219, as proposed in the NPRM.
FRA has analyzed the economic impact of this final rule. FRA
estimated the costs associated with random testing, reasonable cause/
reasonable suspicion testing, pre-employment drug testing, and
Government administrative costs.\3\ As shown in the following table,
over the 10-year period of analysis, the final rule will result in
total costs of approximately $10.7 million (Present Value (PV) 7%).
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\3\ The final rule will not create new costs associated with PAT
testing for mechanical employees as they are already subject to part
219 PAT requirements.

Total 10-Year Costs \4\
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Annualized Annualized
Category Total cost, 7 Total cost, 3 cost, 7 cost, 3
percent ($) percent ($) percent ($) percent ($)
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Pre-Employment.................................. 1,621,930 1,896,210 230,926 222,294
Random Testing.................................. 7,987,551 9,038,433 1,137,248 1,059,580
Reasonable Cause and Reasonable Suspicion....... 261,670 305,921 37,256 35,863
Government Administrative Cost.................. 866,431 1,012,950 123,360 118,749
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Total....................................... 10,737,582 12,253,514 1,528,790 1,436,486
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The benefits of the final rule will come from reducing the number
of mechanical employees who have a substance use disorder (SUD). FRA
has determined that testing programs provide a deterrent effect to the
misuse of alcohol and use of illicit drugs. This deterrence will reduce
the number of existing mechanical employees with an SUD. Employee SUDs
have an array of associated costs, including lost productivity,
absenteeism, low morale, increased illness, and accidents. The
deterrent effect of testing will induce mechanical employees with an
SUD to modify their behavior with regard to the misuse of alcohol and/
or use of illicit drugs. Pre-employment drug testing will prevent
individuals with SUDs from being hired as mechanical employees. Random
testing and reasonable cause/suspicion testing will allow railroads to
identify mechanical employees with SUDs so that they can address those
safety issues through rehabilitation or termination of employment.
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\4\ Note: In this and subsequent tables, numbers may not add due
to rounding.
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As shown in the following table, over a 10-year period of analysis,
the final rule will result in total benefits of $41.0 million (PV 7%).

Total 10-Year Benefits
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Annualized Annualized
Category Total benefit, Total benefit, benefit, 7 benefit, 3
7 percent ($) 3 percent ($) percent ($) percent ($)
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Deterrent Effect................................ 37,732,478 44,113,296 5,372,256 5,171,424
Pre-Employment.................................. 1,759,972 2,096,798 250,580 245,809
Random Testing.................................. 1,251,224 1,432,169 178,146 167,894
Reasonable Cause and Reasonable Suspicion....... 209,520 249,619 29,831 29,263
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Total....................................... 40,953,195 47,891,881 5,830,814 5,614,390
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[[Page 5721]]

II. Discussion of General Comments and Conclusions

FRA received comments from 12 individuals and 4 organizations in
response to the NPRM. While FRA has considered all of the comments
submitted, FRA is not identifying comments from individuals in the
discussion below as they were generally supportive of the rule or
raised unrelated issues outside of its scope such as the opioid
epidemic and marijuana legalization.
The American Public Transportation Association (APTA), the National
Transportation Safety Board (NTSB), and in a joint submission, the
Association of American Railroads (AAR) and the American Short Line and
Regional Railroad Association (ASLRRA), submitted comments on the NPRM.
Rail labor did not comment on FRA's proposal.

A. FRA's Proposed Mechanical Employee Definition

1. Summary
A common thread among the railroad commenters was that FRA should
expand its proposed MECH employee definition to include all mechanical
department employees, without qualifications or limitations on the
functions or duties these employees perform. APTA supported the
addition of employees who repair, service, and maintain railroad
rolling equipment, while the NTSB reiterated Safety Recommendation R-
08-7, which advocates coverage of all employees who perform safety-
sensitive functions, as defined in Sec. 209.303. FRA will address the
APTA and NTSB comments below.
AAR/ASLRRA asserted that FRA should include all employees who
perform mechanical duties involving railroad rolling equipment in the
definition of MECH employee, stating that other FRA safety regulations,
such as training standards (49 CFR part 243) and blue signal protection
(49 CFR part 218), define mechanical employees to include those who
perform repair, service, and maintenance functions. AAR had submitted a
petition for rulemaking requesting part 219 coverage of mechanical
employees in 2018.\5\
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\5\ 86 FR 1419.
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AAR/ASLRRA also stated that employees who perform repair, service,
and maintenance functions have the same risk exposure as employees who
inspect and test rolling equipment, as they also work on, under or
between rolling equipment. Moreover, employees who fuel locomotives,
replenish engine oils and water, clean and/or supply locomotives, check
car lading, and load/unload freight cars, perform work with and around
railroad rolling equipment. According to AAR/ASLRRA, both groups are
subject to personal injury if impaired while on-duty, and have the
potential to cause safety-related accidents and incidents.
Finally, while laborers and hostlers who operate locomotives are
already regulated employees under part 219, AAR/ASLRRA suggested that
FRA consider them MECH employees even if railroads later decide to
remove their locomotive operation duties, because they would continue
to be exposed to the risks of working with and around rolling stock.
FRA is not persuaded that this rule should anticipate speculative
railroad work policies. And, as discussed further below, although the
purpose of part 219 in general, and random testing in particular, is to
encourage safety by deterring workplace substance abuse, it is not an
employee safety rule.
Moreover, if FRA were to include every employee who performs
mechanical activities without qualifying distinctions, part 219 would
cover employees whose tasks are too attenuated from rail safety to
constitute a direct risk, such as employees who fuel, clean, and supply
locomotives, or retrieve and fulfill parts orders. As discussed below,
FRA has both 4th Amendment and programmatic concerns about subjecting
these employees to random testing.
2. Fourth Amendment Implications
In Skinner v. Railway Labor Executives' Association,\6\ the Supreme
Court held that the collection and analysis of biological samples for
FRA mandated or authorized drug and alcohol tests are 4th Amendment
searches. The Court, in upholding FRA PAT and reasonable suspicion
testing, found both searches reasonable because FRA's compelling
interest in rail safety outweighed the privacy interests of railroad
employees performing safety-sensitive tasks.
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\6\ 489 U.S. 602 (1989).
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Although Skinner did not address the Constitutionality of random
testing, several months later, a decision by the U.S. District Court
for the District of Columbia reinforced that a direct safety nexus was
crucial to sustain the workplace testing of employees. In
Transportation Institute, et al. v. United States Coast Guard, et
al.,\7\ the Court enjoined implementation of the random testing part of
a U.S. Coast Guard final rule \8\ that established its workplace
testing program. The Coast Guard had required, with limited exceptions,
all crewmembers serving on board a commercial vessel to be subject to
random testing, to include not only those employees whose ordinary
duties directly affected the safety of vessel navigation and
operations, but also any who could be assigned safety-critical tasks in
an emergency. In holding the program was over-inclusive and violative
of the 4th Amendment, the Court found that the Coast Guard had
impermissibly covered maintainers, cooks, messmen, and other employees
whose tasks were insufficiently tied to safety to justify their
inclusion in random testing. The Coast Guard, in lieu of appealing the
decision, suspended implementation of its random testing program and
published another final rule which narrowed the focus of its random
testing program to employees who performed functions directly affecting
the safety of vessel operations or the emergency safety of
passengers.\9\
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\7\ 727 F. Supp. 648 (D.D.C. 1989).
\8\ 53 FR 47064, Nov. 21, 1988.
\9\ 56 FR 31034, July 8, 1991.
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Similarly, the expansion of the MECH employee definition to include
all employees who perform mechanical activities would add mechanical
department employees who, as examples, fuel, clean, and supply
locomotives, or retrieve and fulfill parts orders, as noted above. The
addition of these employees, and others who perform mechanical
activities that do not directly affect safety, would impermissibly
broaden the scope of part 219 beyond the workplace testing limits set
by these decisions.
3. Decrease in Random Testing Deterrence
The inclusion of employees who repair, service, or maintain rail
rolling stock would lessen the impact of random testing, FRA's
strongest deterrence tool against railroad workplace substance abuse.
The FRA random drug positive rate has declined from a high of 0.94% in
2004 to 0.51% in 2020, even with the addition of maintenance-of-way
(MOW) activities to regulated service in 2017 and synthetic opioid pain
medications to the testing panel in 2018. FRA has consistently refined
its random testing pool design requirements to improve the probability
of a railroad selecting and testing employees who directly affect
safety. For example, a railroad must periodically review its random
testing pools to detect and remove employees who perform regulated
service on a de minimis (less than quarterly) basis. In

[[Page 5722]]

its final rule adding MOW employees to part 219 coverage,\10\ FRA
specified pool size minimums and other requirements to improve the
efficacy of random testing.
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\10\ 81 FR 37894, June 10, 2016.
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Adoption of the commenters' requested definition would add
thousands of mechanical department employees, such as locomotive
servicing employees and shop laborers, who perform functions only
tangentially related to rail safety. The inclusion of these employees
would ``dilute'' mechanical employee pools by adding random testing
selections that would displace those of employees who directly impact
rail safety.
4. Consistency With the SUPPORT Act
AAR/ASLRRA, APTA, and NTSB asserted that FRA's proposed definition,
by covering some, but not all, mechanical department employees was
inconsistent with section 8102 of the Act. FRA notes, however, that as
a corollary to section 8102(a)'s mandate to cover MECH employees,
section 8102(b) authorized FRA to define mechanical activities. Had
Congress intended FRA to cover mechanical department employees without
restrictions, the Act would not have qualified section 8102(a)'s
mandate with section 8102(b)'s direction for FRA to determine, and thus
limit, which functions constitute mechanical activities for purposes of
part 219 coverage. Under the Act's own terms, the final rule complies
with both subsections of section 8102.
5. Consistency With the MOW Employee Definition
APTA suggested an alternate definition, under which a MECH employee
would be ``[a]ny employee of a railroad whose duties include
inspection, testing, maintenance or repair of railroad rolling
equipment or its components.'' As explanation, APTA stated that: This
language would make FRA's MECH and MOW employee definitions more
consistent; substituting ``whose duties include'' for ``performs''
would remove the need to track employees who perform tests and
inspections for purposes of determining random testing pool inclusion;
and poor performance of maintenance and repairs, which it asserts are
safety-critical tasks, could go undetected during daily and periodic
inspections and tests. AAR/ASLRRA also commented that FRA's proposed
treatment of MECH employees differed from its treatment of MOW
employees who, as ``roadway workers,'' are defined in Sec. 214.7 to
include employees who maintain or repair railroad track and other
structures.
Yet, the Act neither addresses, nor requires, consistency between
part 219's MECH employee and MOW employee definitions. In its final
rule incorporating MOW employees,\11\ FRA adopted the roadway worker
definition in Sec. 214.7 of its Railroad Workplace Safety regulation,
Roadway Worker Protection (subpart C of 49 CFR part 214). FRA adopted
this longstanding definition because the railroad industry was already
familiar with its meaning and application. In contrast, there is no
pre-existing definition of MECH employee, and FRA is authorized to
define the term as it deems appropriate.
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\11\ 81 FR 47894.
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As FRA states in Sec. 219.1, the purpose of its alcohol and drug
regulation is to prevent accidents and casualties related to substance
abuse in rail operations. In Sec. 214.301, however, FRA states that
the purpose of its roadway worker protection regulation is, as implied
by its subpart's heading, to prevent moving equipment-related accidents
and casualties to roadway workers. Part 219, like all workplace testing
rules, focuses on deterrence and detection of on-duty use and
impairment, to improve the safety of rail employees generally, while
part 214 focuses on operating rules to improve the safety of roadway
employees specifically. FRA's mechanical regulations (e.g., part 215)
set minimum Federal safety standards for rail equipment. While these
rules specify equipment requirements that promote a safe working
environment for all employees, their stated purposes do not
specifically include MECH employee safety.
FRA is expanding the scope of part 219, a workplace safety rule, to
include MECH employees who work with railroad equipment subject to
numerous workplace safety rules. Subpart C of part 214's stated
purpose, to protect the safety of an individual category of employees,
is unique to roadway workers/MOW employees. Aside from their
consecutive incorporation as non-covered service employee categories,
there is no equivalency between MOW and MECH employees, and no reason
to make their definitions consistent. In addition, part 214 and FRA's
mechanical regulations do not have the burden of balancing 4th
Amendment rights and safety that must be considered when defining a
regulated service function in part 219.
6. Treatment of Employees Subject to Part 209
While pleased that FRA was proposing to expand the scope of part
219, the NTSB expressed disappointment that FRA's proposal would not
satisfy Safety Recommendation R-08-7,\12\ which recommends the
inclusion not only of employees who repair or maintain railroad rolling
equipment, but all railroad employees and agents who perform the
training, testing, and supervision roles described in Sec. 209.303
(subpart D of 49 CFR part 209, Railroad Safety Enforcement Procedures).
However, the NTSB acknowledged that it may be appropriate, on a limited
basis, to exempt certain employees who perform only specific minor
repair or maintenance tasks from the MECH employee definition in the
final rule, following the example of paragraph (1)(ii) of the proposed
MECH employee definition.
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\12\ <a href="https://data.ntsb.gov/carol-main-public/sr-details/R-08-007">https://data.ntsb.gov/carol-main-public/sr-details/R-08-007</a>.
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As further background, on April 10, 2008, the NTSB issued Safety
Recommendations R-08-5 through R-08-7 to FRA.\13\ At that time, part
219 coverage extended only to covered service employees. All three
recommendations stemmed from a January 9, 2007, Massachusetts Bay
Transportation Authority accident, which killed two MOW employees and
seriously injured two others. (FRA discussed this accident and its
corresponding NTSB accident report (NTSB RAR-08/01 \14\) in its MOW
rulemaking.\15\) The NTSB stated:
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\13\ <a href="https://www.ntsb.gov/safety/safety-recs/recletters/R08_05_07.pdf">https://www.ntsb.gov/safety/safety-recs/recletters/R08_05_07.pdf</a>.
\14\ <a href="https://www.ntsb.gov/investigations/AccidentReports/Pages/RAR0801.aspx">https://www.ntsb.gov/investigations/AccidentReports/Pages/RAR0801.aspx</a>.
\15\ 79 FR 43830 (July 28, 2014), 81 FR 37894 (June 10, 2016).

The FRA data from postaccident alcohol and drug testing indicate
that maintenance-of-way employees are about three times more likely
to have positive test results than are covered employees (19.23
percent vs. 6.56 percent). This difference is attributable to the
deterrent value of the FRA's random testing program to which covered
employees are subject but maintenance-of-way employees are not. The
Safety Board concludes that the FRA's random alcohol and drug
testing program has been a deterrent to alcohol and drug use by
covered employees, as evidenced by their significantly lower
positive rate in postaccident tests than maintenance-of-way
employees who are not subject to random testing. Limiting the
applicability of alcohol and drug testing to only ``hours-of-
service'' employees restricts the potential effectiveness of the FRA
rule to control alcohol and drug use. All employees and agents in
safety-sensitive positions should be

[[Page 5723]]

subject to all the provisions of 49 Code of Federal Regulations
(CFR) Part 219. Therefore, the Safety Board recommends that the FRA
revise the definition of ``covered employee'' under 49 CFR 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 CFR
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209.301 and 209.303.

In Sec. 209.303, FRA identified the individuals in the rail
industry who would be subject to disqualification by specifying the
functions these individuals performed.\16\ While Sec. 209.303 includes
individuals who train and test employees, individuals who conduct FRA-
mandated training and testing may do so without approaching railroad
track, equipment, or roadbed. Moreover, part 209 is a rule of general
applicability, which lists the individuals subject to FRA's individual
liability, disqualification, and subpoena powers. The NTSB does not
provide a direct correlation between the functions identified for
purposes of disqualification and individual liability and the functions
identified for purposes of random alcohol or drug testing. Without
further justification from the NTSB, it is unclear how the performance
of the excluded Sec. 209.303 functions impacts rail safety, or why FRA
should include all employees subject to Sec. 209.303 under part 219.
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\16\ 54 FR 48924, Oct. 18, 1989, implementating in part the Rail
Safety Improvement Act of 1988, Public Law 100-342 (June 22, 1988).
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APTA also recommended that FRA include foremen, general foremen,
supervisors, general supervisors, and others who directly supervise or
oversee employees performing mechanical activities. Because FRA's MECH
employee definition determines coverage by function, not title, these
employees would be performing regulated service if they sign-off on
inspections, or test safety-critical systems or components.

B. Pre-Employment Testing

APTA requested that FRA exempt MECH employees from the required
two-year retrospective alcohol and drug records check for new and
first-time transfers in Sec. 40.25 of DOT's Procedures for
Transportation Workplace Drug and Alcohol Testing Programs (49 CFR part
40, cross-referenced in part 219 in Sec. 219.701(a)). Section 40.25
requires an employer to check an employee's previous two years of DOT
drug and alcohol testing results within 30 days of when the employee
performs safety-sensitive duties for that employer for the first time.
FRA cannot grant an exemption from Sec. 40.25 for MECH employees,
which APTA acknowledged is a requirement set by DOT's Office of Drug
and Alcohol Policy and Compliance (ODAPC). Section 40.5 authorizes only
ODAPC and the DOT Office of General Counsel to issue official
interpretations of part 40.
FRA is, however, exempting current MECH employees from pre-
employment drug testing. Only MECH employees hired by a railroad, or a
railroad contractor or subcontractor, after the effective date of this
final rule will be required to have a negative DOT pre-employment drug
test before performing regulated service for the first time. As with
MOW employees, this exemption applies only so long as the MECH employee
continues to perform work for the same DOT-regulated employer. An
initially exempted MECH employee must have a negative DOT pre-
employment drug test result before performing regulated service for a
different or additional DOT-regulated employer.
Moreover, consistent with part 219's treatment of MOW employees,
FRA is not requiring a contractor or subcontractor employee who
performs MECH activities for multiple railroads to have a negative
Federal pre-employment drug test result for each railroad, provided
that the contractor or subcontractor employee has a negative Federal
pre-employment drug test result on file with the contractor who is his
or her direct employer.

C. Initial Mechanical Employee Annual Random Testing Rates

FRA is setting the initial minimum annual random testing rates for
MECH employees at 50 percent for drugs and 25 percent for alcohol, as
it did for MOW and covered service employees when they first became
subject to FRA testing. See Sec. 219.625(c). FRA will create an
independent Management Information System (MIS) database of industry-
wide MECH employee positive and violation rates to set future minimum
annual random testing rates, and will maintain its initial random
testing rates for MECH employees until it has received two complete
years of MIS data for this new category. An employer who is required to
submit an annual MIS report may place its MECH employees in a
commingled pool so long as the employer reports its results under the
correct safety-sensitive category.

D. Post-Accident Toxicological Testing

In 2019, FRA published on its website a PAT testing application
(app) which can be downloaded for free in both iOS and Android formats.
The app contains guidance, among other resources, for determining
whether an accident or incident qualifies as a PAT testing event and,
if it does, which employees should be tested. FRA had proposed to
remove appendix B, which designates its PAT testing laboratory, and
appendix C, which contains its PAT specimen collection procedures, from
part 219, in favor of making the information contained in both
appendices kept in traditional hardcopy form in the actual testing kits
and available on its app, where PAT guidance is already available.
AAR/ASLRRA asserted that appendix C should remain in part 219
because railroads are responsible for compliance with its instructions
and procedures. FRA notes that a railroad representative is unlikely to
consult appendix C until a PAT testing event has occurred, and PAT
testing kits will, as always, contain up-to-date and accurate reference
copies of information otherwise contained in both appendices.
Furthermore, an on-site supervisor conducting a preliminary field
accident investigation can readily access the information contained in
(former) appendix C on FRA's app, which is intended to be a one-stop
resource for information on PAT determinations and collections.
AAR/ASLRRA also asked how FRA will notify railroads of future
changes to the information otherwise contained in (former) appendices B
and C. FRA will announce these changes on its drug and alcohol page, at
<a href="https://railroads.dot.gov/divisions/partnerships-programs/drug-and-alcohol">https://railroads.dot.gov/divisions/partnerships-programs/drug-and-alcohol</a>, and in its app. In addition, FRA maintains an individual
inventory number for each PAT testing box it has issued, and will
distribute updates to box holders (primarily railroad DERs (Designated
Employee Representatives)) as necessary as it has done in the past. For
example, all box holders will automatically receive new mailing labels
upon FRA's selection of a different contracted PAT testing laboratory.
AAR/ASLRRA requested that FRA add PAT testing protocols
specifically to address the PAT testing of MECH employees, noting that
unlike other regulated employees who have real-time involvement with
railroad accidents, MECH employees frequently perform their functions
well in advance of a qualifying event. This is unnecessary. FRA's
requirements for PAT drug testing to be conducted within four hours of
an event, and no later than 24 hours after its occurrence, apply to all
PAT testing events. If a railroad is unable to determine that a MECH
employee may have contributed to a

[[Page 5724]]

PAT testing event's cause or severity within those time limits, the
railroad is prohibited from PAT testing the employee involved. FRA is
not revising its PAT testing protocols. Further, as discussed below,
the tracing back of repair and servicing records, beyond the mechanical
test or inspection point, would make PAT testing of the employees who
performed these functions unlikely.

E. Effective Date of Final Rule and Timetable for Submitting Random
Testing Plans for MECH Employees

Noting that FRA had allowed 12 months for implementation of the MOW
rule, APTA requested a minimum period of 18-24 months, asserting that
due to the coronavirus pandemic, railroads need more time to meet the
hiring needs required to staff the addition of MECH employees to random
testing. FRA is not persuaded by this argument. Most railroads are
required to conduct random testing. A railroad that does so will
already have its selection method, DERs, service agents, and other
program requirements and structures in place, so that the addition of
one or more random testing pools should not require extensive hiring.
AAR/ASLRRA requested a 90-day implementation period, should FRA
require railroads to submit revised or new random testing plans 30 days
before the rule's effective date. FRA is meeting this requested
timetable by making the rule effective 30 days after its publication,
and then requiring random testing plan submissions to be submitted to
FRA within 60 days after the rule becomes effective, instead of 30 days
before, as proposed. Railroads may also submit random testing plans to
FRA as soon as the rule becomes effective.

III. Section-by-Section Analysis

Unless discussed below, FRA is adopting, as proposed, each
provision of the NPRM for which it received no comment.

Authority

FRA is amending the authority citation for part 219 to add a
reference to section 8102 of the SUPPORT Act.

Subpart A--General

Section 219.3 Application

Paragraph (b)
FRA received no comments on its proposal to remove and reserve
paragraph (b) in its entirety, and is adopting this amendment as
proposed. Former paragraph (b)(1) is redundant with Sec. 219.800(a),
and former paragraphs (b)(2) and (3) can now be found in new paragraph
(g) of Sec. 219.800.
Paragraph (c)
FRA received no comments on its proposal to except small railroads,
defined as railroads with 15 or fewer covered employees with minimal
joint operations, from the reasonable cause, random testing, and
employee referral requirements found respectively in subparts E, G, and
K. FRA will continue to count only covered employees, and not MECH or
MOW employees, to determine whether a railroad is a small railroad for
purposes of this exception. FRA will also treat MECH employees the same
as MOW employees for purposes of contractor compliance. As with MOW
employees, a contractor's level of part 219 compliance will be
determined by the size of the railroad(s) for which it performs MECH
activities, not its size as a contractor. A contractor who performs
MECH activities exclusively for small railroads (15 or fewer covered
employees) that are excepted from full compliance with part 219 is also
excepted from full compliance. Whereas, a contractor who performs MECH
activities for at least one railroad that is required to be in full
compliance with part 219 must also be in full compliance with part 219.

Section 219.5 Definitions

Category of Regulated Employee
As amended, this definition includes the categories of covered
service, MOW, and MECH employees (as defined in this section). For the
purposes of determining random testing rates under Sec. 219.625, if an
individual performs covered service, maintenance-of-way activities,
and/or mechanical activities, he or she belongs in the category of
regulated employee that corresponds with the majority of the employee's
regulated service.
Employee
FRA is amending this definition to include any individual who
performs activities for a subcontractor to a railroad.
Mechanical or MECH Employee
For the reasons stated above, FRA is adopting its proposal to
define a MECH employee as any employee who, on behalf of a railroad,
performs mechanical tests or inspections required by parts 215, 221,
229, 230, 232, or 238 of this chapter on railroad rolling equipment, or
its components. In addition, the term would also include any such
employee who performs mechanical tests or inspections required by the
Texas Central Railroad High-Speed Rail Safety Standards (49 CFR part
299). These employees working on behalf of the Texas Central Railroad
may otherwise be inadvertently excluded from the application of this
rule because part 299 is a rule of particular applicability with its
own requirements for mechanical tests and inspections.\17\ No such
exclusion was intended.
---------------------------------------------------------------------------

\17\ 85 FR 69731 (Nov. 3, 2020).
---------------------------------------------------------------------------

Regulated Employee
FRA is expanding this definition to include a MECH employee (as
defined in this section) who performs regulated service (as defined in
this section).
Regulated Service
FRA is expanding this definition to include activities performed by
a MECH employee (as defined in this section).
Rolling Equipment
FRA is defining rolling equipment as locomotives, railroad cars,
and one or more locomotives coupled to one or more cars, based on the
definition of rolling equipment provided in FRA's Railroad Operating
Practices regulation (49 CFR 218.5).
Side Collision
The term ``side collision'' was formerly defined to mean ``a
collision at a turnout where one consist strikes the side of another
consist.'' FRA had proposed to clarify this term to include collisions
at switches or ``highway-rail grade crossings.'' In this final rule,
FRA is substituting ``railroad crossings at grade'' for its proposed
addition of ``highway-rail grade crossings.'' This change more
appropriately clarifies the intent to address side collisions between
train consists, not those that occur at highway-rail grade crossings
between trains and highway vehicles.

Section 219.10 Penalties

As proposed, FRA is substituting the term ``regulated employee''
for ``employee,'' to clarify that the requirements of this section
apply to MOW, MECH, and covered employees.

Section 219.11 General Conditions for Chemical Tests

Paragraph (g)
FRA is removing references to appendices B and C.

Section 219.23 Railroad Policies

This section sets forth requirements for a railroad's Federal
alcohol and drug testing policy, including requirements for railroads
to provide employees educational materials explaining the requirements
of this part, as well as the

[[Page 5725]]

railroad's policies and procedures with respect to meeting those
requirements.
Paragraph (a)
FRA is substituting the term ``regulated employee'' for
``employee,'' to clarify that the requirements of this section apply to
MOW, MECH, and covered employees.
Paragraph (c)
FRA is revising paragraph (c)(2) to require railroads to make hard
copies of the required educational materials in this section available
to each MECH employee for a minimum of three years after the effective
date of the final rule. When FRA added MOW employees to the scope of
part 219, it required railroads to make the same hard copy distribution
to those employees for the same three-year period to introduce them to
part 219. Because that three-year period for MOW employees has ended,
existing paragraph (c)(2) has become unnecessary. FRA is therefore
revising paragraph (c)(2) to address the addition of MECH employees and
remove the reference to MOW employees.
Paragraph (d)(2)
FRA is amending this paragraph to specify that MECH employees as
subject to the provisions in this part.

Subpart C--Post-Accident Toxicological Testing

As discussed above, MECH employees are subject to the same PAT
testing requirements as covered service and MOW employees. A MECH
employee must be PAT tested if a railroad representative can
immediately determine, based on the best information available at the
time of the decision, that the employee's improper or omitted
mechanical test or inspection may have contributed to the cause or
severity of a PAT-qualifying accident or incident. FRA is not revising
its PAT testing protocols. The tracing back of repair and servicing
records, beyond the mechanical test or inspection point, would make PAT
testing of the employees who performed these functions unlikely, since
PAT drug testing must be conducted within four hours of an event, and
no later than 24 hours after its occurrence. The on-duty and recall
provisions for MECH employees are the same as for other employee
categories.
As proposed, FRA is removing appendices B and C. The name and
mailing address of FRA's designated PAT laboratory (former appendix B)
and instructions for toxicological specimen collection (former appendix
C) will be made available both in FRA's PAT testing kits and in its PAT
testing app.

Section 219.203 Responsibilities of Railroads and Employees

Paragraph (a)
FRA is removing the reference to appendix C in this paragraph,
consistent with the removal of appendix C from this part.
Paragraph (d)
FRA is eliminating the requirement for a railroad to submit a
written explanation if a specimen collection is delayed for more than
four hours after the occurrence of a PAT event. However, under Sec.
219.209(b), a railroad must still provide immediate telephonic
notification and submit a written follow-up report via email when it is
unable to collect and provide PAT specimens to FRA.

Section 219.205 Specimen Collection and Handling

FRA is removing the references to appendices B and C in this
section, consistent with the removal of these appendices from this
part.

Section 219.206 FRA Access to Breath Test Results

FRA is removing the reference to appendix C, consistent with the
removal of appendix C from this part.

Section 219.207 Fatality

This section contains the requirements for PAT testing in the case
of an employee fatality in an accident or incident described in Sec.
219.101.
Paragraph (c)
FRA is removing ``Aviation Medical Examiners'' (AMEs) from the list
of professionals authorized to collect post-mortem body fluid and
tissue samples from a deceased employee for FRA PAT testing.
Paragraph (d)
FRA is removing the reference to appendix C, consistent with the
removal of appendix C from this part.

Section 219.211 Analysis and Follow-Up

As proposed in the NPRM, FRA is amending this section to simplify
and clarify its language. Additionally, FRA is requiring the submission
of reports and requests under this section to be sent to FRA solely by
email. Although FRA had proposed to continue to allow such reports and
requests to be submitted in hard copy, while additionally allowing the
flexibility of email submissions, the onset of the coronavirus disease
2019 (COVID-19) pandemic has led both FRA and its stakeholders to
increasingly rely on electronic communications and submissions, which
has become even clearer since issuance of the NPRM. Therefore,
requiring all submissions to be made electronically under this section
effectively codifies existing practice. No substantive changes are
intended other than the amendments discussed below.
Paragraph (a)
FRA is removing the reference to appendix B, consistent with the
removal of appendix B from this part.
Paragraph (c)
As noted, FRA is requiring an MRO to submit a report by email to an
email box specifically set up for receipt of MRO reports (<a href="/cdn-cgi/l/email-protection#91d7c3d0bcdcc3defdf4e5e5f4e3e2bff4fcf0f8fdd1f5fee5bff6fee7">[email&#160;protected]</a>).
Paragraph (e)
FRA is amending this paragraph to adopt its proposed clarifications
and to require that an employee's response to the employee's PAT
results be sent by email within 45 days of receipt to <a href="/cdn-cgi/l/email-protection#feb8acbfd3ba8c8b99bf929d91969192ae8c91998c9f93d09b939f9792be9a918ad0999188">[email&#160;protected]</a>.
Paragraph (i)
FRA is amending this paragraph to adopt its proposed clarifications
and provide that an employee's request for a retest of PAT test
specimens must be submitted by email to <a href="/cdn-cgi/l/email-protection#0d4b5f4c20497f786a4c616e626562615d7f626a7f6c602368606c64614d696279236a627b">[email&#160;protected]</a>. The employee's request must still be
submitted within the 60-day time limit and specify the railroad,
accident date, and location.

Subpart E--Reasonable Cause Testing

Section 219.403 Requirements for Reasonable Cause Testing

FRA is revising the introductory paragraph of this section to
clarify that a railroad that elects to conduct reasonable cause testing
under FRA authority may only use the rule violations listed in
paragraph (b) as bases for testing.
Paragraph (b)
FRA is removing ``or other errors'' from this paragraph to clarify
that a railroad that chooses to conduct reasonable cause testing for
rule violations under FRA authority may do so only for a rule violation
specified in paragraph (b). FRA is also clarifying the intent of the
proposed language of rule violation Sec. 219.403(b)(20), for ease of
understanding. No substantive changes are intended.

[[Page 5726]]

As proposed, FRA is adding reasonable cause testing bases
specifically applicable to MECH employee functions. FRA authorizes, but
does not require, reasonable cause testing, and received no comments in
response to these additional rule violations, which involve common
mechanical activities such as setting derails, performing brake tests,
and initiating appropriate blue flag protection, as well as a rule
violation for positive train control (PTC) enforcement to address PTC
requirements that became applicable after the publication of the MOW
rule.

Subpart F--Pre-Employment Tests

Section 219.501 Pre-employment Drug Testing

Paragraph (e)
FRA is clarifying that: (1) Covered employees performing regulated
service for small railroads are exempted from pre-employment drug
testing only if they were performing regulated service for the railroad
before June 12, 2017; and (2) MOW employees are exempted from pre-
employment drug testing only if they were performing ``regulated
service'' for a railroad before June 12, 2017, and not just ``duties''
that may not have qualified as ``regulated service.'' Both clarifying
amendments are consistent with discussion in the MOW final rule
preamble, which explained that FRA was exempting employees who, before
June 12, 2017, were performing MOW activities for a railroad or covered
service for a small railroad.\18\
---------------------------------------------------------------------------

\18\ 81 FR 37911 (June 10, 2016).
---------------------------------------------------------------------------

FRA is also exempting from pre-employment drug testing MECH
employees who were performing mechanical activities for a railroad, or
contractor or subcontractor of a railroad, before March 4, 2022.
An exempted employee must have a negative pre-employment drug test
before performing regulated service for a new or additional employing
railroad, or contractor or subcontractor of a railroad, on or after
June 12, 2017, for exempted covered employees and maintenance-of-way
employees, and on or after March 4, 2022 for MECH employees.
Paragraph (f)
To clarify how the proposed revisions in this section fit with the
existing requirements of part 40, as discussed above, this new
paragraph specifies that Sec. 40.25 of DOT's Workplace Testing
Procedures (49 CFR part 40) applies to a MOW or MECH employee who was
or would be exempted from FRA pre-employment drug testing. To comply
with Sec. 40.25, a railroad must conduct a drug and alcohol records
check of a previously exempted MOW or MECH employee's previous two
years of employment within 30 days of when the employee performs
regulated service for the first time.

Subpart G--Random Alcohol and Drug Testing Programs

Section 219.605 Submission and Approval of Random Testing Plans

Paragraph (a)
Similar to the revisions made to the filing requirements of Sec.
219.211, and to effectively codify current practice, this final rule
revises this section to require a railroad to submit its random testing
plan to FRA by email to <a href="/cdn-cgi/l/email-protection#4503170468013730220429262a2d2a2915372a223724286b2028242c2905212a316b222a33">[email&#160;protected]</a>. The plan
must include the name of the railroad or contractor in the subject
line.
Paragraph (e)
FRA is amending this paragraph to subject an employee who performs
MECH activities to the same random testing requirements as one who
performs covered service or MOW activities. As discussed under section
II.E. above, AAR/ASLRRA requested a 90-day implementation period. FRA
is meeting this requested timetable by making the rule effective 30
days after its publication, and then requiring random testing plan
submissions to be submitted to FRA within 60 days after the rule
becomes effective. Railroads may submit random testing plans to FRA as
soon as the rule becomes effective.
Each railroad or contractor or subcontractor to a railroad must
submit for FRA approval or acceptance a random testing plan ensuring
that each MECH employee reasonably anticipates that he or she is
subject to random testing without advance warning each time the
employee is on-duty and subject to performing MECH activities. A
railroad can comply with its responsibility for ensuring that its MECH
contractor and subcontractor employees are subject to random testing by
including these contractor and subcontractor employees in its own
random testing plan, or by requiring contractors and subcontractors to
submit their own random testing plans to FRA for acceptance. FRA has
developed model random testing plans for MOW employees and contractors
that could also serve as templates for MECH employees and
contractors.\19\ In either case, contractors and subcontractors are
also responsible for ensuring that their employees who perform MECH
activities comply with the rule's random testing requirements.
---------------------------------------------------------------------------

\19\ A Model Railroad Contractor Compliance Plan is available on
the FRA Drug and Alcohol Program web page at <a href="https://railroads.dot.gov/divisions/partnerships-programs/drug-and-alcohol">https://railroads.dot.gov/divisions/partnerships-programs/drug-and-alcohol</a>.
---------------------------------------------------------------------------

Section 219.607 Requirements for Random Testing Plans

Paragraph (c)
FRA is revising paragraph (c) of this section to reflect the
application of railroad random testing plans to MECH employees, and to
make other, minor clarifications.

Section 219.615 Random Testing Collections

Paragraph (e)
FRA is revising paragraph (e)(3) to state that a railroad must
inform ``each regulated employee'' that he or she has been selected for
random testing at the time the employee is notified--rather than inform
``an regulated employee.'' FRA does not intend this as a substantive
change but merely as a clarification and grammatical correction of an
existing requirement.

Section 219.617 Participation in Random Alcohol and Drug Testing

Paragraph (a)
FRA is substituting the term ``regulated employee'' for
``employee'' in paragraph (a)(3), to clarify that the requirements of
this section apply to MOW, MECH, and covered employees.

Section 219.625 FRA Administrator's Determination of Random Alcohol and
Drug Testing Rates

Paragraph (c)(1)
As stated above, an employee who performs MECH activities is
subject to the same random testing requirements as one who performs
covered service. Formerly, this paragraph authorized the Administrator
to amend the minimum annual random testing rates, which are initially
set at 50 percent for drugs and 25 percent for alcohol, for a new
category of regulated employee after the compilation of 18 months of
Management Information System (MIS) data. To allow sufficient time for
the implementation of random testing by MECH contractors, FRA is
requiring two consecutive, full calendar years of MIS data before the
minimum annual random testing rates for this category may be lowered,
as it did with both MOW and covered employees when

[[Page 5727]]

they first became subject to random testing.

Subpart I--Annual Report

Section 219.800 Annual Reports

Paragraph (a)
FRA is clarifying that a railroad must submit summary data for its
alcohol misuse and drug abuse programs in its MIS report.
Paragraph (f)
FRA is requiring a railroad to submit its annual MIS report in the
appropriate separate sections for its covered employees (e.g., train,
engine, signal, dispatch), MOW employees, and MECH employees.
Paragraph (g)
As proposed, FRA is moving Sec. 219.3(b)'s annual MIS reporting
requirements for contractors to this subpart to consolidate and clarify
its railroad and contractor MIS reporting requirements.
Appendices B and C to Part 219
As discussed above, FRA is removing appendices B and C to this
part, because these appendices duplicate information that can be found
in FRA's PAT testing kits and PAT testing app. Every PAT testing kit
includes the address of FRA's PAT testing laboratory and an address for
mailing. For ease of reference, standard PAT testing kits contain
instructions for the collection of urine, blood and breath specimens,
while fatality PAT testing shipping kits contain instructions for the
post-mortem collection of body fluid and tissue specimens.

IV. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is not a significant regulatory action within the
meaning of Executive Order 12866 and DOT Order 2100.6A (Rulemaking and
Guidance Procedures).\20\ Details on the 10-year estimated costs and
benefits of this rule can be found in the rule's Regulatory Impact
Analysis, which FRA has prepared and placed in the docket (docket
number FRA-2019-0071).
---------------------------------------------------------------------------

\20\ <a href="https://www.transportation.gov/sites/dot.gov/files/2021-06/DOT-2100.6A-Rulemaking-and-Guidance-%28003%29.pdf">https://www.transportation.gov/sites/dot.gov/files/2021-06/DOT-2100.6A-Rulemaking-and-Guidance-%28003%29.pdf</a>.
---------------------------------------------------------------------------

FRA is expanding the definition of regulated employee to include
mechanical employees in part 219, as mandated by section 8102 of the
SUPPORT Act.\21\ The final rule will subject mechanical employees to
the provisions of part 219. The final rule will also include non-
quantified miscellaneous amendments that will reduce reporting burdens,
enhance a railroad's authority to conduct reasonable cause testing, and
add clarity to part 219.
---------------------------------------------------------------------------

\21\ Public Law 115-271.
---------------------------------------------------------------------------

The final rule generates costs related to provisions on pre-
employment, random testing, reasonable cause/reasonable suspicion
testing, and Government administration. As shown in the following
table, over the 10-year period of analysis, the final rule will result
in a total discounted cost of approximately $10.7 million (PV 7%).

Total 10-Year Costs
----------------------------------------------------------------------------------------------------------------
Annualized Annualized
Category Total cost, 7 Total cost, 3 cost, 7 cost, 3
percent ($) percent ($) percent ($) percent ($)
----------------------------------------------------------------------------------------------------------------
Pre-Employment.................................. 1,621,930 1,896,210 230,926 222,294
Random Testing.................................. 7,987,551 9,038,433 1,137,248 1,059,580
Reasonable Cause and Reasonable Suspicion....... 261,670 305,921 37,256 35,863
Government Administrative Cost.................. 866,431 1,012,950 123,360 118,749
---------------------------------------------------------------
Total....................................... 10,737,582 12,253,514 1,528,790 1,436,486
----------------------------------------------------------------------------------------------------------------

The benefits of the final rule will come from reducing the number
of mechanical employees who have an SUD. FRA has determined that
testing programs provide a deterrent effect to the misuse of alcohol
and illicit drugs. This deterrence will reduce the number of existing
mechanical employees with an SUD. Employee SUDs have an array of
associated costs, including lost productivity, absenteeism, low morale,
increased illness, and accidents. The deterrent effect of testing will
induce mechanical employees with an SUD to modify their behavior with
regard to the misuse of alcohol and/or use drugs. Pre-employment drug
testing will help prevent individuals with SUDs from being hired as
mechanical employees. Random testing and reasonable cause/suspicion
testing will help railroads identify mechanical employees with SUDs so
that they can mitigate those issues through rehabilitation or
termination of employment.
Over a 10-year period of analysis, this analysis estimates the
final rule's benefits by multiplying the reduction in the number of
employee work years that mechanical employees with an SUD are employed
(17,036 employee work years) by the annual cost of having a mechanical
employee with an SUD ($3,200) on the payroll. As shown in the following
table, over a 10-year period of analysis, the final rule will result in
total benefits of approximately $41.0 million (PV 7%).

[[Page 5728]]

Reasonable Cause and Reasonable Suspicion....... 209,520 249,619 29,831 29,263
---------------------------------------------------------------
Total....................................... 40,953,195 47,891,881 5,830,814 5,614,390
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272; Certification

The Regulatory Flexibility Act of 1980 ((RFA) 5 U.S.C. 601 et seq.)
and Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impacts on small
entities. When an agency issues a rulemaking proposal, the RFA requires
the agency to ``prepare and make available for public comment an
initial regulatory flexibility analysis'' which will ``describe the
impact of the proposed rule on small entities.'' \22\ Section 605 of
the RFA allows an agency to certify a rule, in lieu of preparing an
analysis, if the proposed rulemaking is not expected to have a
significant economic impact on a substantial number of small entities.
Out of an abundance of caution, FRA prepared an initial regulatory
flexibility analysis (IRFA) to accompany the NPRM, which noted no
expected significant economic impact on a substantial number of small
entities; no comments were received on this analysis.
---------------------------------------------------------------------------

\22\ 5 U.S.C. 603(a).
---------------------------------------------------------------------------

In this final rule, FRA is amending part 219 to include mechanical
employees. Drug and alcohol testing will become applicable to employees
who perform mechanical activities for railroads, contractors, and
subcontractors. This will include pre-employment drug, random, and
reasonable cause/reasonable suspicion testing.
The final rule will apply to all railroads, although not all
requirements will be relevant to all railroads. FRA estimates there are
744 Class III railroads, of which 704 operate on the general system.
These railroads are of varying size, with some belonging to larger
holding companies.
Part 219 excepts small railroads, defined as railroads with 15 or
fewer covered employees and having minimal joint operations with other
railroads, from random testing. Small railroads are also exempt from
FRA reasonable cause testing. FRA is not changing this small railroad
exception to account for railroads' mechanical employees.
The final rule will impose statutorily required costs related to
pre-employment drug testing, random testing, reasonable suspicion
testing, recordkeeping, and annual report submission. The final rule
will also impose discretionary costs related to reasonable cause
testing, which FRA has included in its economic analysis supporting
this rule. FRA expects that the costs borne by a railroad will be
proportionate to the number of employees. As such, FRA expects the
costs for small entities will be much less than those borne by large
entities.
As enumerated in the IRFA, the final rule will result in an average
annual cost for a full compliance small railroad of $449 in year 1 to
year 3 and $242 in year 4 to year 10. Partial compliance small
railroads will have an average annual burden of approximately $41 as
they will only be subject to adding pre-employment testing.
When developing the final rule, FRA considered the impact that the
final rule would have on small entities. To add clarity and narrow the
scope of those employees subject to the final rule, FRA chose a
definition for ``mechanical employees'' that listed explicit
exclusions. This rule will benefit small railroads by reducing the
number of employees with an SUD that remain on the payroll. FRA
estimates this final rule will only minimally impact small railroads
and, overall, the net benefit will be positive to small railroads.
Consistent with the findings in FRA's IRFA, and the lack of any
comments received on it, the Deputy Administrator of FRA hereby
certifies that this final rule will not have a significant economic
impact on a substantial number of small entities.

C. Paperwork Reduction Act

FRA is submitting the information collection requirements in this
final rule to the Office of Management and Budget (OMB) for approval
under the Paperwork Reduction Act of 1995.\23\ The sections that
contain the new information collection requirements are duly designated
and the estimated time to fulfill each requirement is as follows:
---------------------------------------------------------------------------

\23\ 44 U.S.C. 3501 et seq.

----------------------------------------------------------------------------------------------------------------
Total annual
Respondent Total annual Average time Total annual dollar cost
CFR section \24\ universe responses per response burden hours equivalent
\25\
----------------------------------------------------------------------------------------------------------------
219.4--Petition for 1 railroad..... 1 petition..... 40 hours....... 40.00 $3,097.60
recognition of a foreign
railroad's workplace testing
program.
--Comments on petitions.. 1 railroad..... 2 comments + 2 15 mins + 15 1.00 77.44
copies. minutes.
219.7--Waivers............... 734 railroads 3 waiver 90 minutes..... 4.50 348.48
\26\. letters.
219.12(d)--RR Documentation 734 railroads + 6 documents.... 30 minutes..... 3.00 232.32
on need to place employee on 44,797 MOW +
duty for follow-up tests. (New) 19,058
MECH employees.
219.23(a)--Notification to 165,058 71,978 notices. 3 seconds + 30 194.94 15,096.15
employees for testing. employees \27\. seconds.

[[Page 5729]]

--(c) and (e)-- 734 railroads + 744 modified/ 1 hour......... 744.33 57,640.92
Educational materials. 44,797 MOW + revised
(New) 19,058 educational
MECH employees. documents.
--Copies of educational 165,058 22,052 copies 2 minutes...... 735.07 56,923.82
materials to employees. employees. of educational
material
documents.
219.25(a)--Previous employer 19,058 MECH 7,623 reports.. 8 minutes...... 1,016.40 78,710.02
drug and alcohol checks-- employees.
Employee testing records
from previous employers and
employee release of
information (49 CFR 40.25(a)
and (f)).
219.104(b)--Removal of 734 (railroads 530 verbal 30 seconds + 2 22.08 1,709.88
employee from regulated + 44,797 MOW + notices + 530 minutes.
service--Verbal notice + (New) 19,058 letters.
follow-up written letter. MECH employees.
219.105--RR's duty to prevent 734 railroads + 3 document 5 minutes...... .25 19.36
violations--Documents 44,797 MOW + copies.
provided to FRA after agency (New) 19,058
request regarding RR's MECH employees.
alcohol and/or drug use
education/prevention program.
--RR Supervisor Rule G 734 railroads + 330,116 2 seconds...... 183.40 14,202.50
observations and records 44,797 MOW + observation
of regulated employees. (New) 19,058 records.
MECH employees.
219.201(a)--Events for which Supervisors of 500 PAT testing 5 minutes...... 41.67 3,226.92
testing is required--List of regulated determinations.
event (Note: App on PAT employees.
testing) \28\.
--(c) Report by RR 734 railroads + 2 reports...... 30 minutes..... 1.00 77.44
concerning decision by 44,797 MOW +
person other than RR (New) 19,058
representative about MECH employees.
whether an accident/
incident qualifies for
testing.
219.203/207--Verbal 734 railroads + 80 2 minutes...... 2.67 206.76
notification and subsequent 44,797 MOW + notifications.
written report of failure to (New) 19,058
collect urine/blood MECH employees.
specimens within four hours
(revision to the current
CFR, removal of written
notification reports).
--Recall of employees for 734 railroads + 4 reports...... 30 minutes..... 2.00 154.88
testing and Narrative 44,797 MOW +
Report Completion. (New) 19,058
MECH employees.
--RR reference to part 734 railroads + 98 references.. 5 minutes...... 8.17 632.68
219 requirements and 44,797 MOW +
FRA's post-accident (New) 19,058
toxicological kit MECH employees.
instructions in seeking
to obtain facility
cooperation.
--RR notification to 734 railroads + 2 phone calls.. 10 minutes..... .33 25.56
National Response Center 44,797 MOW +
of injured employee (New) 19,058
unconscious or otherwise MECH employees.
unable to give testing
consent.
--RR notification to 734 railroads + 5 phone calls.. 10 minutes..... .83 64.28
local authority. 44,797 MOW +
(New) 19,058
MECH employees.
219.205 \29\--Post Accident 734 railroads + 103 forms...... 10 minutes..... 17.17 1,329.64
Toxicological Testing Forms-- 44,797 MOW +
Completion of FRA F 6180.73. (New) 19,058
MECH employees.
--Specimen handling/ 165,058 219 forms...... 15 minutes..... 54.75 4,239.84
collection--Completion employees.
of Form FRA F 6180.74 by
train crew members after
accident.

[[Page 5730]]

--Completion of Form FRA 734 railroads + 7 forms........ 20 minutes..... 2.33 180.44
6180.75. 44,797 MOW +
(New) 19,058
MECH employees.
--Documentation of chain 734 railroads + 103 chain of 2 minutes...... 3.43 265.62
of custody of sealed 44,797 MOW + custody
toxicology kit from (New) 19,058 documents.
medical facility to lab MECH employees.
delivery.
--RR/medical facility 734 railroads + 10 written 2 minutes...... .33 25.56
record of kit error. 44,797 MOW + records.
(New) 19,058
MECH employees.
219.209(a)--Notification to 734 railroads + 103 phone 2 minutes...... 3.43 265.62
NRC and FRA of accident/ 44,797 MOW + reports.
incident where samples were (New) 19,058
obtained. MECH employees.
219.211(b)--Results of post- 734 railroads + 7 reports...... 15 minutes..... 1.75 135.52
accident toxicological 44,797 MOW +
testing to RR MRO and RR (New) 19,058
employee. MECH employees.
--MRO report to FRA of 734 railroads + 6 reports...... 15 minutes..... 1.50 116.16
positive test for 44,797 MOW +
alcohol/drugs of (New) 19,058
surviving employee. MECH employees.
219.303--RR written 734 railroads + 33 written 5 minutes...... 2.75 212.96
documentation of observed 44,797 MOW + documents.
signs/symptoms for (New) 19,058
reasonable suspicion MECH employees.
determination.
219.305--RR written record 734 railroads + 11 records..... 2 minutes...... .37 28.65
stating reasons test was not 44,797 MOW +
promptly administered. (New) 19,058
MECH employees.
219.405--RR documentation 734 railroads + 2,314 written 5 minutes...... 192.81 14,931.21
describing basis of 44,797 MOW + documents.
reasonable cause testing. (New) 19,058
MECH employees.
219.407(b)--Prompt specimen 734 railroads + 17 records..... 15 minutes..... 4.25 329.12
collection time limitation 44,797 MOW +
exceeded--Record. (New) 19,058
MECH employees.
219.501--RR documentation of 734 railroads + 6,400 lists.... 30 seconds..... 53.33 4,129.88
negative pre-employment drug 44,797 MOW +
tests. (New) 19,058
MECH employees.
219.605(a)--Submission of 734 railroads + 12 plans....... 1 hour......... 12.00 929.28
random testing plan: New RRs. 44,797 MOW +
(New) 19,058
MECH employees.
--Amendments to currently- 734 railroads + 450 amendments. 1 hour......... 450.00 34,848.00
approved FRA random 44,797 MOW +
testing plan. (New) 19,058
MECH employees.
--Resubmitted random 734 railroads + 56 resubmitted 30 minutes..... 28.00 2,168.32
testing plans after 44,797 MOW + plans.
notice of FRA (New) 19,058
disapproval of plan or MECH employees.
amendment.

[[Page 5731]]

--Non-substantive 734 railroads + 300 amendments. 15 minutes..... 75.00 5,808.00
amendment to an approved 44,797 MOW +
plan. (New) 19,058
MECH employees.
219.615--Incomplete random 734 railroads + 2,250 documents 30 seconds..... 18.75 1,452.00
testing collections-- 44,797 MOW +
Documentation. (New) 19,058
MECH employees.
219.617--Employee Exclusion 734 railroads + 6 documents.... 1 hour......... 6.00 464.64
from random alcohol/drug 44,797 MOW +
testing after providing (New) 19,058
verifiable evidence from MECH employees.
credible outside
professional.
219.623--Random testing 734 railroads + 48,977 records. 1 minutes...... 816.28 63,212.72
records. 44,797 MOW +
(New) 19,058
MECH employees.
219.800--Annual reports-- 38 railroads + 55 MIS reports. 90 minutes..... 82.50 6,388.80
Management Information 17 contractors.
System (MIS) form for MECH
employees (49 CFR 40.26--MIS
form submission).
219-1001--Co-worker referral 734 railroads + 24 referrals... 5 minutes...... 2.00 154.88
of employee who is unsafe to 44,797 MOW +
work with/in violation of (New) 19,058
part 219 or railroad's drug/ MECH employees.
alcohol rules.
----------------------------------------------------------------------------------
Total.................... 734 railroads + 495,744 N/A............ 4,830 374,064
44,797 MOW + responses.
(New) 19,058
MECH employees.
----------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information.
---------------------------------------------------------------------------

\24\ The burdens under Sec. Sec. 219.25(a) and 219.800(b), once
approved by OMB, will fall under DOT's part 40 information
collection (OMB No. 2105-0529). Additionally, the burdens under
Sec. Sec. 219.603, 219.607, 219.609, 219.611, 219.1001, 219.1003,
219.1005, and 219.1007 are included under Sec. 219.605.
Furthermore, the burdens under Sec. Sec. 219.12(c), 219.104(d),
219.105(a)(2)-(a)(3), 219.107(a)-(b), 219.203(a)(3)(ii), 219.300,
219.301, 219.302, 219.502, 219.503, 219.608, 219.615(g),
219.617(b)(2), 219.621, 219.701, and 219.903 are covered under DOT's
Part 40 (OMB No. 2105-0529).
\25\ The dollar equivalent cost is derived from the 2020 Surface
Transportation Board's Full Year Wage A&B data series using the
appropriate employee group hourly wage rate that includes 75-percent
overhead charges. Also, totals may not add due to rounding.
\26\ For purposes of this table, the respondent universe of 734
railroads includes the estimated 30 contractor companies that will
be newly subject to part 219 because they perform MECH activities on
behalf of these railroads.
\27\ The respondent universe of 165,058 employees includes an
estimated 19,058 MECH employees who will be newly subject to part
219. Note: The number of employees changed from 171,410 to 165,058
due to a change in the estimated number of MECH employees from
25,410 to 19,058.
\28\ FRA is adding the existing burden associated with the usage
of FRA's PAT testing app.
\29\ A public comment from AAR/ASLRRA asked FRA how it will
notify railroads of future changes to the information otherwise
contained in (former) appendices B and C. FRA will add any changes
to information from these former appendices on its drug and alcohol
page, at <a href="https://railroads.dot.gov/divisions/partnerships-programs/drug-and-alcohol">https://railroads.dot.gov/divisions/partnerships-programs/drug-and-alcohol</a>, and in FRA's PAT testing app, in addition to its
PAT testing kits, as appropriate. The burden associated with the
review of the updated information is already covered under Sec.
219.201(a).
---------------------------------------------------------------------------

For information or a copy of the paperwork package submitted to
OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer,
Office of Railroad Safety, Federal Railroad Administration, at 202-493-
0440.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them via email to
Ms. Wells at <a href="/cdn-cgi/l/email-protection#d59dbab1b4bbfb82b0b9b9a695b1baa1fbb2baa3">[email&#160;protected]</a>.
OMB is required to make a decision concerning the collection of
information requirements contained in this 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 is not authorized to
impose a penalty on persons for violating information collection
requirements that do not display a current OMB control number, if
required.

D. Environmental Impact

Consistent with the National Environmental Policy Act \30\ (NEPA),
the Council of Environmental Quality's NEPA implementing regulations at
40 CFR parts 1500-1508, and FRA's NEPA implementing regulations at 23
CFR part 771, FRA has evaluated this final rule and determined that it
is categorically excluded from environmental review and therefore does
not require the preparation of an environmental assessment (EA) or
environmental impact statement (EIS). Categorical exclusions (CEs) are
actions identified in an agency's NEPA implementing regulations that do
not normally have a significant impact on the environment and therefore
do not require either an EA or EIS.\31\ Specifically, FRA has
determined that this final rule is categorically excluded from detailed

[[Page 5732]]

environmental review pursuant to 23 CFR 771.116(c)(15),
``[p]romulgation of rules, the issuance of policy statements, the
waiver or modification of existing regulatory requirements, or
discretionary approvals that do not result in significantly increased
emissions of air or water pollutants or noise.''
---------------------------------------------------------------------------

\30\ 42 U.S.C. 4321 et seq.
\31\ 40 CFR 1508.4.
---------------------------------------------------------------------------

The purpose of this rulemaking is to expand the scope of FRA's
alcohol and drug regulation to cover MECH employees who test or inspect
railroad rolling equipment. This rule will not directly or indirectly
impact any environmental resources and will not result in significantly
increased emissions of air or water pollutants or noise. Instead, the
rule will likely result in safety benefits. In analyzing the
applicability of a CE, FRA must also consider whether unusual
circumstances are present that would warrant a more detailed
environmental review.\32\ FRA has concluded that no such unusual
circumstances exist with respect to this final rule and it meets the
requirements for categorical exclusion under 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

\32\ 23 CFR 771.116(b).
---------------------------------------------------------------------------

Pursuant to Section 106 of the National Historic Preservation Act
and its implementing regulations, FRA has determined this undertaking
has no potential to affect historic properties.\33\ FRA has also
determined that this rulemaking will not approve a project resulting in
a use of a resource protected by Section 4(f).\34\
---------------------------------------------------------------------------

\33\ 16 U.S.C. 470.
\34\ Department of Transportation Act of 1966, as amended (Pub.
L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------

E. 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) \35\ 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 has determined it will not cause
disproportionately high and adverse human health and environmental
effects on minority populations or low-income populations.
---------------------------------------------------------------------------

\35\ 91 FR 27534 (May 10, 2012).
---------------------------------------------------------------------------

F. Federalism Implications

Executive Order 13132, ``Federalism,'' \36\ 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, an 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.
---------------------------------------------------------------------------

\36\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

FRA has analyzed this final rule under the principles and criteria
contained in Executive Order 13132. This rule, issued under a statutory
mandate, 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. FRA has determined that the rule will not impose
substantial direct compliance costs on State and local governments, and
that the consultation and funding requirements of Executive Order 13132
do not apply. However, this rule could have preemptive effect by
operation of law under certain provisions of the Federal railroad
safety statutes, specifically the former Federal Railroad Safety Act of
1970, repealed and recodified at 49 U.S.C. 20106. Section 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 section 20106.
In sum, FRA has analyzed this rule under the principles and
criteria in Executive Order 13132, and determined that it has no
federalism implications, other than the possible preemption of State
laws under Federal railroad safety statutes, specifically 49 U.S.C.
20106. Therefore, preparation of a federalism summary impact statement
is not required.

G. Unfunded Mandates Reform Act of 1995

Pursuant to section 201 of the Unfunded Mandates Reform Act of
1995,\37\ 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 \38\ 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 such an
expenditure, and thus preparation of such a statement is not required.
---------------------------------------------------------------------------

\37\ Public Law 104-4, 2 U.S.C. 1531.
\38\ 2 U.S.C. 1532.
---------------------------------------------------------------------------

H. Energy Impact

Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' \39\
FRA has evaluated this rule in accordance with Executive Order 13211
and determined that this regulatory action is not a ``significant
energy action'' within the meaning of the Executive Order.
---------------------------------------------------------------------------

\39\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

Executive Order 13783, ``Promoting Energy Independence and Economic
Growth,'' requires Federal agencies to

[[Page 5733]]

review regulations to determine whether they potentially burden the
development or use of domestically produced energy resources, with
particular attention to oil, natural gas, coal, and nuclear energy
resources.\40\ FRA has determined that this rule will not burden the
development or use of domestically produced energy resources.
---------------------------------------------------------------------------

\40\ 82 FR 16093 (Mar. 31, 2017).
---------------------------------------------------------------------------

I. Tribal Consultation

FRA has evaluated this rule under the principles and criteria in
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, dated November 6, 2000. The rule will not have a
substantial direct effect on one or more Indian tribes, impose
substantial direct compliance costs on Indian tribal governments, or
preempt tribal laws, and a tribal summary impact statement is not
required.

List of Subjects in 49 CFR Part 219

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

The Final Rule

For the reasons stated above, FRA amends part 219 of chapter II,
subtitle B of title 49, Code of Federal Regulations as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

0
1. Revise the authority citation for part 219 to read as follows:

Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311;
28 U.S.C. 2461, note; Sec. 412, Pub. L. 110-432, 122 Stat. 4889;
Sec. 8108, Div. A; Sec. 8102, Pub. L. 115-271; 132 Stat. 3894; and
49 CFR 1.89.

Subpart A--General

0
2. In Sec. 219.3, remove and reserve paragraph (b) and revise and
republish paragraph (c).
The revision reads as follows:

Sec. 219.3 Application.

* * * * *
(c) Small railroad exception. (1) Subparts E, G, and K do not apply
to small railroads, and a small railroad may not perform the Federal
requirements authorized by those 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 or MECH 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 or MECH activities exclusively for
small railroads also qualifies for the small railroad exception (i.e.,
is excepted from the requirements of subparts E, G, and K of this
part). A contractor is not excepted if it performs MOW or MECH
activities for at least one railroad that is required to be in full
compliance with this part.
(4) If a contractor is subject to all of part 219 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.
* * * * *

0
3. In Sec. 219.5:
0
a. Revise the definitions of ``Category of regulated employee'' and
``Employee''
0
b. Add in alphabetical order a definition for ``Mechanical employee'';
0
c. Revise the definitions of ``Regulated employee'' and ``Regulated
service'';
0
d. Add in alphabetical order a definition for ``Rolling equipment'';
and
0
e. Revise the definition of and ``Side collision''.
The revisions and additions read as follows:

Sec. 219.5 Definitions.

* * * * *
Category of regulated employee means a broad class of covered
service, maintenance-of-way, or mechanical employees (as defined in
this section). For the purposes of determining random testing rates
under Sec. 219.625, if an individual performs both covered service and
maintenance-of-way activities, or covered service and mechanical
activities, he or she belongs in the category of regulated employee
that corresponds with the type of regulated service comprising the
majority of his or her regulated service.
* * * * *
Employee means any individual, (including a volunteer or a
probationary employee) performing activities for a railroad, a
contractor to a railroad, or a subcontractor to a railroad.
* * * * *
Mechanical employee or MECH employee means--
(1) Any employee who, on behalf of a railroad, performs mechanical
tests or inspections required by part 215, 221, 229, 230, 232, 238, or
299 of this chapter on railroad rolling equipment, or its components,
except for:
(i) An employee who is a member of a train crew assigned to test or
inspect railroad rolling equipment that is part of a train or yard
movement the employee has been called to operate; or
(ii) An employee who only performs one or more of the following
duties:
(A) Cleaning and/or supplying cabooses, locomotives, or passenger
cars with ice, food concession items, drinking water, tools, sanitary
supplies, or flagging equipment;
(B) Servicing activities on locomotives such as fueling,
replenishing engine oils and engine water, sanding, and toilet
discharge and recharge;
(C) Checking lading for pilferage or vandalism; or
(D) Loading, unloading, or shifting car loads.
(2) An employee who only performs work related to the original
manufacturing, testing, or inspection of railroad rolling equipment, or
its components, on the manufacturer's behalf, is not a mechanical
employee or MECH employee.
* * * * *
Regulated employee means a covered employee, maintenance-of-way
employee, or mechanical employee (as defined in this section) who
performs regulated service for a railroad subject to the requirements
of this part.
Regulated service means activities a covered employee, maintenance-
of-way employee, or mechanical employee (as defined in this section)
performs that makes such an employee subject to this part.
* * * * *
Rolling equipment means locomotives, railroad cars, and one or more
locomotives coupled to one or more railroad cars.
Side collision means a collision when one consist strikes the side
of another consist at a turnout, including a collision at a switch or
at a railroad crossing at grade.
* * * * *

0
4. Revise and republish Sec. 219.10 to read as follows:

[[Page 5734]]

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 $919 and not more than $30,058 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
$120,231 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 a regulated 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 FRA's website at <a href="http://www.fra.dot.gov">www.fra.dot.gov</a>
for a statement of agency civil penalty policy.

0
5. In Sec. 219.11, revise paragraph (g) to read as follows:

Sec. 219.11 General conditions for chemical tests.

* * * * *
(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.
* * * * *

0
6. In Sec. 219.23, revise the first sentence of paragraph (a)
introductory text and revise paragraphs (c)(2) and (d)(2) to read as
follows:

Sec. 219.23 Railroad policies.

(a) Whenever a breath or body fluid test is required of a regulated
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. * * *
* * * * *
(c) * * *
(2) For a minimum of three years after March 4, 2022, also ensuring
that a hard copy of these materials is provided to each mechanical
employee.
(d) * * *
(2) The specific classes or crafts of employee who are subject to
the provisions of this part, such as engineers, conductors, MOW
employees, MECH employees, signal maintainers, or train dispatchers;
* * * * *

Subpart C--Post-Accident Toxicological Testing

0
7. In Sec. 219.203, revise paragraphs (a) introductory text and (d)(1)
to read as follows:

Sec. 219.203 Responsibilities of railroads and employees.

(a) Employees tested. A regulated employee subject to post-accident
toxicological testing under this subpart must cooperate in the
provision of specimens as described in this part.
* * * * *
(d) * * *
(1) A railroad must make every reasonable effort to assure that
specimens are provided as soon as possible after the accident or
incident, preferably within four hours. Specimens that are not
collected within four hours after a qualifying accident or incident
must be collected as soon thereafter as practicable. If a specimen is
not collected within four hours of a qualifying event, the railroad
must immediately notify the FRA Drug and Alcohol Program Manager at
202-493-6313 and provide detailed information regarding the failure
(either in conversation or via a voicemail).
* * * * *

0
8. In Sec. 219.205, revise paragraphs (a) and (c)(1), the first
sentence of paragraph (c)(2), paragraph (d), and the first sentence of
paragraph (e) to read as follows:

Sec. 219.205 Specimen collection and handling.

(a) General. Urine and blood specimens must be obtained, marked,
preserved, handled, and made available to FRA consistent with the
requirements of this subpart and the instructions provided inside the
FRA post-accident toxicological shipping kit.
* * * * *
(c) * * *
(1) FRA makes available for purchase a limited number of standard
shipping kits for the purpose of routine handling of post-accident
toxicological specimens under this subpart. Specimens must be placed in
the shipping kit and prepared for shipment according to the
instructions provided in the kit.
(2) Standard shipping kits may be ordered by requesting an order
form from FRA's Drug and Alcohol Program Manager at 202-493-6313. * * *
(d) Shipment. Specimens must be shipped as soon as possible by pre-
paid air express (or other means adequate to ensure delivery within 24
hours from time of shipment) to FRA's post-accident toxicological
testing laboratory. However, if delivery cannot be ensured within 24
hours due to a suspension in air express delivery services, the
specimens must be held in a secure refrigerator until delivery can be
accomplished. In no circumstances may specimens be held for more than
72 hours. Where express courier pickup is available, the railroad must
ask the medical facility to transfer the sealed toxicology kit directly
to the express courier for transportation. If courier pickup is not
available at the medical facility where the specimens are collected or
if for any other reason a prompt transfer by the medical facility
cannot be assured, the railroad must promptly transport the sealed
shipping kit holding the specimens to the most expeditious point of
shipment via air express. The railroad must maintain and document a
secure chain of custody of the kit(s) from its release by the medical
facility to its delivery for transportation.
(e) Specimen security. After a specimen kit or transportation box
has been sealed, no entity other than FRA's post-accident toxicological
testing laboratory may open it. * * *

0
9. Revise Sec. 219.206 to read as follows:

Sec. 219.206 FRA access to breath test results.

Documentation of breath test results must be made available to FRA
consistent with the requirements of this subpart.

0
10. In Sec. 219.207, revise paragraphs (c) and (d) to read as follows:

Sec. 219.207 Fatality.

* * * * *
(c) A coroner, medical examiner, pathologist, or other qualified
professional is authorized to remove the required body fluid and tissue
specimens from the remains on request of the railroad or FRA pursuant
to this part; and in so acting, such person is the delegate of the FRA
Administrator

[[Page 5735]]

under sections 20107 and 20108 of title 49, United States Code (but not
the agent of the Secretary for purposes of the Federal Tort Claims Act
(chapter 71 of Title 28, United States Code). A qualified professional
may rely upon the representations of the railroad or FRA representative
with respect to the occurrence of the event requiring that
toxicological tests be conducted and the coverage of the deceased
employee under this part.
(d) The instructions included inside the shipping kits specify body
fluid and tissue specimens required for toxicological analysis in the
case of a fatality.

0
11. In Sec. 219.211, revise paragraphs (a), (c), (e), and (i) to read
as follows:

Sec. 219.211 Analysis and follow-up.

(a) Specimens are analyzed for alcohol, controlled substances, and
non-controlled substances specified by FRA under protocols specified by
FRA. These substances may be tested for in any form, whether naturally
or synthetically derived. Specimens may be analyzed for other impairing
substances specified by FRA as necessary to the particular accident
investigation.
* * * * *
(c) With respect to a surviving employee, a test reported as
positive for alcohol or a controlled substance must be reviewed by the
railroad's Medical Review Officer (MRO) with respect to any claim of
use or administration of medications (consistent with Sec. 219.103)
that could account for the laboratory findings. The MRO must promptly
report the results of each review by email to <a href="/cdn-cgi/l/email-protection#7f392d3e52322d30131a0b0b1a0d0c511a121e16133f1b100b51181009">[email&#160;protected]</a>. The report must reference the employing
railroad, accident/incident date, and location; and state whether the
MRO reported the test result to the employing railroad as positive or
negative and the basis of any determination that analytes detected by
the laboratory derived from authorized use (including a statement of
the compound prescribed, dosage/frequency, and any restrictions imposed
by the authorized medical practitioner). Unless specifically requested
by FRA in writing, the MRO may not disclose to FRA the underlying
physical condition for which any medication was authorized or
administered. The FRA is not bound by the MRO's determination, but that
determination will be considered by FRA in relation to the accident/
incident investigation and with respect to any enforcement action under
consideration.
* * * * *
(e) An employee may respond within 45 days of receipt of his or her
test results prior to the preparation of any final investigative report
concerning the accident or incident by email to <a href="/cdn-cgi/l/email-protection#c2849083ef86b0b7a583aea1adaaadae92b0ada5b0a3afeca7afa3abae82a6adb6eca5adb4">[email&#160;protected]</a>. The employee's response must state
the accident date, railroad, and location; the position the employee
held on the date of the accident/incident; and any information the
employee requests be withheld from public disclosure. FRA will decide
whether to honor the employee's request to withhold information.
* * * * *
(i) An employee may, within 60 days of receipt of the toxicology
report, request a retest of his or her PAT testing specimen. A request
for retest must be emailed to <a href="/cdn-cgi/l/email-protection#b3f5e1f29ef7c1c6d4f2dfd0dcdbdcdfe3c1dcd4c1d2de9dd6ded2dadff3d7dcc79dd4dcc5">[email&#160;protected]</a>. The
employee's request must specify the railroad, accident date, and
location. Upon receipt of the employee's request, FRA will identify and
select a qualified referee laboratory that has available an
appropriate, validated assay for the specimen type and analyte(s)
declared positive. Because some analytes may deteriorate during
storage, if the referee laboratory detects levels above its Limit of
Detection (as defined in 49 CFR 40.3), FRA will report the retest
result as corroborative of the original PAT test result.

Subpart E--Reasonable Cause Testing

0
12. In Sec. 219.403, revise the introductory text, revise and
republish paragraph (b)(1), revise paragraphs (b)(17) and (18), and add
paragraphs (b)(19) through (22) to read as follows:

Sec. 219.403 Requirements for reasonable cause testing.

Each railroad's decision process regarding whether reasonable cause
testing is authorized must be completed before the reasonable cause
testing is performed and documented according to the requirements of
Sec. 219.405. The following circumstances constitute reasonable cause
for the administration of alcohol and/or drug tests under the authority
of this subpart. For reasonable cause testing based on a rule violation
as authorized in paragraph (b) of this section, a railroad that elects
to test under FRA authority may only use the rule violations listed in
paragraph (b) of this section as bases for reasonable cause testing.
* * * * *
(b) * * *
(1) Noncompliance with a train order, track warrant, track
bulletin, track permit, stop and flag order, timetable, signal
indication, special instruction or other directive with respect to
movement of railroad on-track equipment that involves--
(i) Occupancy of a block or other segment of track to which entry
was not authorized;
(ii) Failure to clear a track to permit opposing or following
movements to pass;
(iii) Moving across a railroad crossing at grade without
authorization;
(iv) Passing an absolute restrictive signal or passing a
restrictive signal without stopping (if required); or
(v) Failure to take appropriate action, resulting in the
enforcement of a positive train control system.
* * * * *
(17) Improper use of individual train detection in a manual
interlocking or control point;
(18) Failure to apply three point protection (fully apply the
locomotive and train brakes, center the reverser, and place the
generator field switch in the off position) that results in a
reportable injury to a regulated employee;
(19) Failure to display blue signals in accordance with Sec.
218.25 through Sec. 218.30 of this chapter;
(20) Failure to perform a required brake test, or having knowledge
that a required brake test was not performed, pursuant to the Class I,
Class IA, Class II, or Class III, or transfer train brake test
provisions of part 232, or the running brake test provisions of part
238, of this chapter;
(21) Failure to comply with prohibitions against tampering with
locomotive mounted safety devices, or permitting a train to be operated
with an unauthorized disabled safety device in the controlling
locomotive; or
(22) Failure to have a derailing device in proper position and
locked if required in accordance with Sec. 218.109 of this chapter.

Subpart F--Pre-Employment Tests

0
13. In Sec. 219.501, revise paragraph (e) and add paragraph (f) to
read as follows:

Sec. 219.501 Pre-employment drug testing.

* * * * *
(e)(1) The pre-employment drug testing requirements of this section
do not apply to:
(i) Covered employees of railroads qualifying for the small
railroad exception (see Sec. 219.3(c)) who were performing regulated
service for the qualifying railroad, or a contractor or subcontractor
of a qualifying railroad, before June 12, 2017;
(ii) Maintenance-of-way employees who were performing regulated
service

[[Page 5736]]

for a railroad, or a contractor or subcontractor of a railroad, before
June 12, 2017; or
(iii) MECH employees who were performing regulated service for a
railroad, or contractor or subcontractor of a railroad, before March 4,
2022.
(2) An exempted employee under paragraph (e)(1) of this section
must have a negative pre-employment drug test before performing
regulated service for a new or additional employing railroad, or
contractor or subcontractor of a railroad:
(i) On or after June 12, 2017, for exempted covered employees and
maintenance-of-way employees, and
(ii) On or after March 4, 2022 for MECH employees.
(f) A railroad, or contractor or subcontractor of a railroad, must
comply with 49 CFR 40.25 by performing a records check on any of its
MOW or MECH employees who have been exempted from pre-employment
testing before the employee first performs regulated service. An
employee may not perform regulated service after 30 days from the date
on which the employee first performed regulated service, unless this
information has been obtained or a good faith effort to obtain this
information has been made and documented.

Subpart G--Random Alcohol and Drug Testing Programs

0
14. In Sec. 219.605, revise and republish paragraphs (a) and (e) to
read as follows:

Sec. 219.605 Submission and approval of random testing plans.

(a) Plan submission. (1) Each railroad must submit for review and
approval a random testing plan meeting the requirements of Sec. Sec.
219.607 and 219.609 by email to <a href="/cdn-cgi/l/email-protection#a9effbe884eddbdccee8c5cac6c1c6c5f9dbc6cedbc8c487ccc4c8c0c5e9cdc6dd87cec6df">[email&#160;protected]</a>.
The submission must include the name of the railroad or contractor in
the subject line. A railroad commencing start-up operations must submit
its plan no later than 30 days before its date of commencing
operations. A railroad that must comply with this subpart because it no
longer qualifies for the small railroad exception under Sec. 219.3
(due to a change in operations or its number of covered employees) must
submit its plan no later than 30 days after it becomes subject to the
requirements of this subpart. A railroad may not implement a Federal
random testing plan or any substantive amendment to that plan before
FRA approval.
(2) A railroad may submit separate random testing plans for each
category of regulated employees (as defined in Sec. 219.5), combine
all categories into a single plan, or amend its current FRA-approved
plan to add additional categories of regulated employees, as defined by
this part.
* * * * *
(e) Previously approved plans. A railroad is not required to
resubmit a random testing plan that FRA had approved before March 4,
2022, unless the railroad must amend the plan to comply with the
requirements of this subpart. A railroad must submit new plans,
combined plans, or amended plans incorporating new categories of
regulated employees (i.e., mechanical employees) for FRA approval at
least 60 days after March 4, 2022.

0
15. Revise Sec. 219.607 by redesignating paragraphs (c)(3) through
(14) as (c)(4) through (15), adding new paragraph (c)(3), and revising
newly redesignated paragraphs (c)(7), (9), and (14) to read as follows:

Sec. 219.607 Requirements for random testing plans.

* * * * *
(c) * * *
(3) Total number of mechanical employees, including mechanical
contractor employees and volunteers;
* * * * *
(7) Name, address, and contact information for any service
providers, including the railroad's Medical Review Officers (MROs),
Substance Abuse and Mental Health Services Administration (SAMHSA)
certified drug testing laboratory(ies), Drug and Alcohol Counselors
(DACs), Substance Abuse Professionals (SAPs), and Consortium/Third
Party Administrators (C/TPAs) or collection site management companies.
Individual collection sites do not have to be identified;
* * * * *
(9) Target random testing rates meeting or exceeding the minimum
annual random testing rates;
* * * * *
(14) Designated testing window. A designated testing window extends
from the beginning to the end of the designated testing period
established in the railroad's FRA-approved random plan (see Sec.
219.603), after which time any individual selections for that
designated testing window that have not been collected are no longer
active; and
* * * * *

0
16. In Sec. 219.615, revise the first sentence of paragraph (e)(3) to
read as follows:

Sec. 219.615 Random testing collections.

* * * * *
(e) * * *
(3) A railroad must inform each regulated employee that he or she
has been selected for random testing at the time the employee is
notified. * * *
* * * * *

0
17. In Sec. 219.617, revise the first sentence of paragraph (a)(3) to
read as follows:

Sec. 219.617 Participation in random alcohol and drug testing.

(a) * * *
(3) A railroad may excuse a regulated employee who has been
notified of his or her selection for random testing only if the
employee can substantiate that a medical emergency involving the
employee or an immediate family member (e.g., birth, death, or medical
emergency) supersedes the requirement to complete the test. * * *
* * * * *

0
18. In Sec. 219.625, revise paragraph (c)(1) to read as follows:

Sec. 219.625 FRA Administrator's determination of random alcohol and
drug testing rates.

* * * * *
(c) * * *
(1) These initial testing rates are subject to amendment by the
Administrator in accordance with paragraphs (d) and (e) of this section
after at least two consecutive calendar years of MIS data have been
compiled for the category of regulated employee.
* * * * *

Subpart I--Annual Report

0
19. In Sec. 219.800, revise the first sentence of paragraph (a),
revise paragraph (f), and add paragraph (g) to read as follows:

Sec. 219.800 Annual reports.

(a) Each railroad that has a total of 400,000 or more 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), must submit to FRA by March 15 of
each year a report covering the previous calendar year (January 1-
December 31), summarizing the results of its alcohol misuse and drug
abuse prevention program. * * *
* * * * *
(f) A railroad required to submit an MIS report under this section
must submit separate reports for covered employees, MOW employees, and
MECH employees.
(g)(1) This subpart does not apply to any contractor that performs
regulated service exclusively for railroads with fewer than 400,000
total employee

[[Page 5737]]

annual 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) When a contractor performs regulated service for at least one
railroad with 400,000 or more 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, this subpart applies as follows:
(i) A railroad with 400,000 or more total employee annual work
hours must comply with this subpart regarding any contractor employees
it integrates into its own alcohol and drug program under this part;
and
(ii) If a contractor establishes an independent alcohol and drug
testing program that meets the requirements of this part and is
acceptable to the railroad, the contractor must comply with this
subpart if it has 200 or more regulated employees.

Appendix B to Part 219--[Removed]

0
20. Remove appendix B to part 219.

Appendix C to Part 219--[Removed]

0
21. Remove appendix C to part 219.

Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2022-01985 Filed 2-1-22; 8:45 am]
BILLING CODE 4910-06-P

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