[Federal Register Volume 86, Number 5 (Friday, January 8, 2021)]
[Proposed Rules]
[Pages 1418-1433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25868]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

[Docket No. FRA-2019-0071, Notice No. 1]
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: Notice of proposed rulemaking.

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SUMMARY: In response to a Congressional mandate in the Substance Use-
Disorder Prevention that Promotes Opioid Recovery and Treatment for 
Patients and Communities Act (SUPPORT Act), FRA is proposing to expand 
the scope of its alcohol and drug regulation to cover mechanical (MECH) 
employees who test or inspect railroad rolling equipment. FRA is also 
proposing miscellaneous, clarifying amendments to its alcohol and drug 
regulation.

DATES: Written comments on this proposed rule must be received on or 
before March 9, 2021. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay.

ADDRESSES: Comments: Comments related to Docket No. FRA-2019-0071 may 
be submitted by going to http://www.regulations.gov and following the 
online instructions for submitting comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://www.regulations.gov including any personal information 
provided. Please see the Privacy Act heading in the SUPPLEMENTARY 
INFORMATION section of this document for Privacy Act information 
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents, 
petitions for reconsideration, or comments received, go to http://www.regulations.gov and follow the online instructions for accessing 
the docket.

FOR FURTHER INFORMATION CONTACT: Gerald Powers, Drug and Alcohol 
Program Manager, Office of Railroad Safety--Office of Technical 
Oversight, telephone: 202-493-6313; email:

[[Page 1419]]

exception occurred on : 2020-25868.htm
gera[email protected]; Sam Noe, Drug and Alcohol Specialist, Office of 
Technical Oversight, telephone 615-719-2951, email: sam.noe@dot.gov; or 
Patricia V. Sun, Attorney Adviser, Office of the Chief Counsel, 
telephone: 202-493-6060, email: patricia.sun@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Mechanical Employees, Contractors, and Subcontractors
    A. Background
    B. The Small Railroad Exception and Employees, Contractor 
Employees, and Subcontractor Employees Who Perform MECH Activities
    C. Railroad, Contractor, and Subcontractor Responsibility for 
Compliance
    D. Pre-Employment Drug Testing of Mechanical Employees
    E. Initial Mechanical Employee Random Testing Rates
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
    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
    J. Privacy Act Statement

I. Executive Summary

    In 2018, Congress enacted the SUPPORT Act.\1\ Section 8102 of the 
SUPPORT Act mandates that the Secretary of Transportation publish a 
rule amending the existing alcohol and drug regulations applicable to 
railroad employees (49 CFR part 219) to cover ``all employees of 
railroad carriers who perform mechanical activities.'' Further, that 
section requires the Secretary of Transportation to ``define the term 
`mechanical activities' by regulation.''
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    \1\ Public Law 115-271.
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    This proposed rule, which responds to that mandate, proposes to add 
MECH employees to the scope of part 219, and makes miscellaneous 
clarifying amendments. With certain exceptions, FRA proposes to define 
a MECH employee as an employee of a railroad, or a railroad contractor 
or subcontractor, who tests or inspects railroad rolling equipment. As 
proposed, individuals who perform those duties typically performed by 
railroad carmen would be included within the definition of MECH 
employee.
    Under existing part 219, with the exception of maintenance-of-way 
(MOW) employees, employees in non-covered service crafts (i.e., 
employees not subject to the hours of service laws in 49 U.S.C. chapter 
211, which would include those employees defined in the notice of 
proposed rulemaking (NPRM) as MECH employees) \2\ are subject to FRA-
mandated alcohol and drug testing only if they are fatally injured as a 
result of a ``fatal train incident'' under Sec.  219.203(a)(4). In such 
situations, the remains of a fatally injured employee (whether the 
employee was a covered-service or non-covered service employee) are 
subject to post-mortem post-accident toxicological (PAT) testing.
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    \2\ Throughout this NPRM, the term ``covered service employees'' 
means employees subject to the hours of service laws of 49 U.S.C. 
ch. 211.
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    Since 2015, two employees who would be considered MECH employees 
under this NPRM have died in such incidents, and post-mortem PAT 
testing results of both employees were positive. One employee was 
fatally injured in a yard incident and tested positive for delta 9-
tetrahydrocannabinol (THC, the primary psychoactive constituent of 
marijuana) in whole blood and liver in FRA post-mortem post-accident 
testing. Based on the identified concentrations of THC found, and those 
of the carboxy metabolite (THCA) identified in urine, whole blood, and 
liver, the employee's last use of the drug likely occurred shortly 
before his death. The second employee was fatally injured by a remote 
control locomotive, and PAT testing found that he had a blood alcohol 
concentration (BAC) of 0.218, over five times the 0.04 BAC limit for an 
FRA alcohol positive.
    Prior to Congress' mandate in section 8102 of the SUPPORT Act, the 
National Transportation Safety Board (NTSB) recommended that FRA expand 
the scope of part 219 to cover all employees and agents performing 
safety-sensitive functions as defined in Sec. Sec.  209.301 and 
209.303.\3\ In response to NTSB's recommendation, in 2016, FRA expanded 
the scope of part 219 to cover MOW employees (non-covered service 
employees), but FRA found that expanding part 219 to all employees 
performing safety-sensitive functions was not justified.\4\ FRA's 2016 
addition of MOW employees to the scope of part 219 was the first time 
non-covered service employees were covered by part 219 for other than 
post-mortem PAT testing. With this NPRM, FRA is proposing to apply part 
219 to MECH employees, another category of non-covered service 
employees who perform safety-sensitive functions. FRA estimates that 
this proposed rule would affect approximately 25,500 MECH employees.
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    \3\ R-08-07, https://www.ntsb.gov/safety/safety-recs/recletters/R08_05_07.pdf.
    \4\ 81 FR 37894 (June 10, 1996).
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    In a 2018 petition for rulemaking, the Association of American 
Railroads (AAR) also requested that FRA make MECH employees, like 
covered service employees and MOW employees, fully subject to part 219. 
In support of its request, the AAR cited the success of DOT random 
testing programs in deterring drug abuse and alcohol misuse, and 
concerns about increased opioid use and State legalization of marijuana 
use. The AAR estimated that only 30 percent of MECH employees are 
currently covered by some form of DOT testing (e.g., in addition to 
performing functions as mechanical employees, they perform covered 
service for a railroad or hold Commercial Driver's Licenses and are 
subject to testing under the Federal Motor Carrier Safety 
Administration's drug and alcohol regulation). The AAR stated that the 
implementation costs of adding approximately 29,550 MECH employees to 
part 219 would ``be borne entirely by the railroads who are the 
entities requesting this expansion of regulation.''
    In response to the SUPPORT Act's mandate, FRA is proposing to make 
MECH employees subject to part 219 in the same manner as MOW employees. 
Like this proposed rule, the MOW rule also responded to a Congressional 
mandate \5\ and an NTSB recommendation (R-08-07). FRA received and 
addressed 16 comments to the 2014 NPRM implementing the MOW employee 
mandate \6\ before publishing a final rule expanding the scope of part 
219 to cover MOW employees.\7\ In lieu of repeating the MOW rule's 
discussion, FRA is providing a summary of its proposed MECH employee 
requirements and referring interested parties to the MOW final rule, 
which contains discussion of the same provisions as applied to MOW 
employees.
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    \5\ Sec. 412 of the Rail Safety Improvement Act (RSIA) (Pub. L. 
110-432, October 16, 2008).
    \6\ 79 FR 48380 (July 28, 2014).
    \7\ 81 FR 37894 (June 10, 2016).
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    In addition to changes to part 219 directly related to the addition 
of MECH employees, FRA also proposes other amendments to part 219. To 
lessen the burden on small railroads, FRA proposes to amend part 219 to 
exempt small railroads from subpart K (Referral Programs) because small 
railroads may lack the expertise and resources necessary to maintain 
referral programs.

[[Page 1420]]

FRA is also proposing to clarify part 219's reasonable cause testing 
requirements to make clear that for reasonable cause testing based on a 
rule violation, a railroad that elects to test under FRA authority may 
only use rule violations listed in Sec.  219.403(b) as a basis for 
testing.
    Further, in May 2019, FRA removed the penalty schedules for its 
rules from the Code of Federal Regulations and republished them on 
FRA's website. In part 219, the penalty schedule was formerly in 
appendix A. FRA now also proposes to remove appendix B, which 
designates the name and contact information of FRA's PAT testing 
laboratory, and appendix C, which contains instructions for post-mortem 
collection of PAT testing specimens. Copies of the information 
contained in both appendices are included in FRA's PAT testing shipping 
kits, and can also be found at the FRA website and post-accident 
testing app. FRA is therefore proposing a global deletion of references 
to both appendices B and C throughout part 219, along with the removal 
of both appendices.

II. Mechanical Employees, Contractors, and Subcontractors

A. Background

    As the SUPPORT Act mandates, this NPRM proposes to make MECH 
employees subject to all part 219 prohibitions and testing requirements 
(pre-employment, random, PAT, reasonable suspicion, return-to-duty, and 
follow-up). Under the proposal, railroads, contractors, and 
subcontractors would be subject to the same reporting, recordkeeping, 
and referral requirements for MECH employees as they are for covered 
service and MOW employees.
    As noted above, before the addition of MOW employees, part 219 
addressed only covered service employees. To incorporate MOW employees, 
FRA adopted the term ``regulated employee,'' and defined the term to 
include both covered service employees and MOW employees subject to 
part 219. FRA is proposing to amend the term ``regulated employee'' to 
include MECH employees and to make additional amendments throughout the 
rule text, in order to incorporate MECH employees into part 219.

B. The Small Railroad Exception and Employees, Contractor Employees, 
and Subcontractor Employees Who Perform MECH Activities

    Currently, part 219 excepts small railroads (defined as railroads 
with 15 or fewer covered service employees and having minimal joint 
operations with other railroads) from both reasonable cause and random 
testing.\8\ As with MOW employees, FRA would not include MECH employees 
in a railroad's count of employees for purposes of the small railroad 
exception. FRA would continue to count only covered service employees 
to determine whether a railroad qualifies as a small railroad.
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    \8\ Sec.  219.3(c).
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    Consistent with part 219's treatment of MOW employees, as proposed, 
a contractor would have its required level of part 219 compliance 
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 that are excepted from 
full compliance with part 219 would also be excepted from full 
compliance, while a contractor who performs MECH activities for at 
least one railroad required to be in full compliance with part 219, 
would also be required to be in full compliance with part 219.

C. Railroad, Contractor, and Subcontractor Responsibility for 
Compliance

    As proposed, FRA would require each railroad to submit for FRA 
approval a revised random testing plan under subpart G of part 219 that 
would include MECH employees, as FRA required for MOW employees. A 
railroad would also be responsible for ensuring that its MECH 
contractor and subcontractor employees are subject to random testing. A 
railroad could do so either 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 using the Model Railroad Contractor Compliance 
Plan available on the FRA Drug and Alcohol Program web page.\9\ 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.
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    \9\ https://railroads.dot.gov/divisions/partnerships-programs/drug-and-alcohol.
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D. Pre-Employment Drug Testing of Mechanical Employees

    As FRA did for MOW employees, FRA is proposing to exempt all 
current MECH employees from the pre-employment drug testing 
requirements of subpart F of part 219. Under FRA's proposal, only those 
MECH employees hired by a railroad, or railroad contractor or 
subcontractor, after the effective date of the final rule would be 
required to have a negative DOT pre-employment drug test before 
performing regulated service for the first time. This exemption would 
apply only so long as the MECH employee continues to perform work for 
the same DOT-regulated employer. An initially exempted MECH employee 
would be required to have a negative DOT pre-employment drug test 
result before performing regulated service for a different or 
additional DOT-regulated employer.
    Interested parties should note that FRA's proposal to exempt 
current MECH employees from FRA pre-employment drug testing would not 
exempt these employees from DOT's background check requirement. DOT's 
background check requirement is a separate requirement under 49 CFR 
40.25 and 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. For part 219 purposes, FRA has designated regulated service 
as a DOT safety-sensitive function which requires a Sec.  40.25 
background check.\10\ Accordingly, a DOT-regulated employer would still 
be required to conduct a background check under Sec.  40.25 on all of 
its MECH employees, including those who are initially exempted from 
pre-employment drug testing. Further, a MECH employee who has had a DOT 
violation may not perform safety-sensitive service until the employee 
has successfully completed the return-to-duty process.
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    \10\ Sec.  219.5.
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    Consistent with part 219's treatment of MOW employees, as proposed, 
FRA would not require 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.

E. Initial Mechanical Employee Random Testing Rates

    FRA would set the initial minimum annual random testing rates for 
MECH employees at 50 percent for drugs and 25 percent for alcohol, the 
same levels it initially set for MOW employees when they first became 
subject to FRA testing.\11\ As it did for MOW employees, FRA would 
create an independent

[[Page 1421]]

Management Information System (MIS) database of industry-wide MECH 
employee positive and violation rates, to set the future minimum annual 
random testing rates for these employees. An employer 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.
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    \11\ Sec.  219.625(c).
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III. Section-by-Section Analysis

Authority

    FRA would amend the authority citation for part 219 to add a 
reference to section 8102 of the SUPPORT Act, which mandates the 
expansion of part 219 to cover ``all employees of railroad carriers who 
perform mechanical activities.''

Subpart A--General

Section 219.3 Application

Paragraph (b)
    FRA proposes to remove and reserve paragraph (b) in its entirety. 
Currently, paragraph (b)(1) applies to railroads and paragraphs (b)(2) 
and (3) apply to contractors. Existing paragraph (b)(1) is redundant 
with Sec.  219.800(a)'s annual report requirements for railroads. In 
addition, to consolidate its railroad and contractor annual report 
requirements, FRA proposes to move the reporting requirements for 
contractors in existing paragraphs (b)(2) and (3) to new paragraph (g) 
of Sec.  219.800 in subpart I. See the Section-by-Section Analysis 
discussion of Sec.  219.800 below.
Paragraph (c)
    As noted in II.B above, FRA would continue to except small 
railroads, defined as railroads with 15 or fewer covered service 
employees with minimal joint operations, from reasonable cause and 
random testing requirements (subparts E and G). FRA would continue to 
count only covered service employees (not MECH or MOW employees) to 
determine whether a railroad is a small railroad for purposes of this 
exception.
    To lessen the burden on small railroads, FRA also proposes to amend 
this paragraph to exempt small railroads from subpart K (Referral 
Programs) because small railroads may lack the expertise and resources 
necessary to maintain referral programs.

Section 219.5 Definitions

    FRA is proposing to amend the definitions section of part 219 to 
add several new definitions and to revise and clarify certain existing 
definitions.
Category of Regulated Employee
    FRA would amend this definition to include the categories of 
covered service, maintenance-of-way, and mechanical 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 would belong in the category of regulated employee that 
corresponds with the majority of the employee's regulated service.
Employee
    The term ``employee'' is currently defined to include ``any 
individual (including a volunteer or a probationary employee) 
performing activities for a railroad or a contractor to a railroad.'' 
FRA proposes to amend this definition to include any individual 
performing activities for a subcontractor to a railroad.
Mechanical or MECH Employee
    FRA proposes to define a mechanical (MECH) employee generally 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. FRA's 
proposed MECH employee definition focuses on the testing and inspection 
of railroad rolling equipment required by FRA regulation, because these 
MECH activities directly affect railroad safety. Accordingly, FRA 
proposes to except employees who perform activities that have a 
negligible effect on rail safety from this definition. Specifically, a 
MECH employee would not include an employee who performs only one or 
more of the following duties:
     Cleaning and/or supplying cabooses, locomotives, or 
passenger cars with ice, food concession items, drinking water, tools, 
sanitary supplies, or flagging equipment;
     Servicing activities on locomotives such as fueling, 
replenishing engine oils and engine water, sanding, and toilet 
discharge and recharge;
     Checking lading for pilferage or vandalism; or
     Loading, unloading, or shifting car loads.
    To avoid duplication with the application of requirements to 
covered service employees, FRA also proposes to exclude from the 
definition an employee who is a member of a train and engine crew 
assigned to perform tests or inspections on railroad rolling equipment 
that is part of a train or yard movement the employee has been called 
to operate.
    Notably, by focusing the definition of MECH employee on the testing 
and inspection of railroad rolling equipment required by FRA 
regulation, employees who only repair railroad rolling equipment are 
specifically excluded from the definition.
    FRA also makes clear that a MECH employee would not include any 
individual involved only in the original manufacturing, or in testing 
or inspection of railroad rolling equipment or its components on the 
manufacturer's behalf, and who does not perform any FRA-mandated final 
tests or inspections on behalf of a railroad. However, regardless of an 
individual's employer (original equipment manufacturer, railroad, or 
contractor or subcontractor to a railroad), an individual who performs 
an FRA-mandated inspection or test (i.e., an inspection or test 
required by parts 215, 221, 229, 230, 232 or 238) of railroad rolling 
equipment or any of its components on a railroad's behalf would be 
considered a MECH employee. For example, if a company manufactures 
railroad rolling equipment and sells it to a railroad, but does not 
inspect or test that equipment once it is delivered to the railroad, 
the employees of that company involved in the equipment's 
manufacturing, product testing, and inspection prior to delivery would 
not be MECH employees for purposes of this rule. If, however, a company 
manufactures railroad rolling equipment (e.g., a locomotive), sells 
that equipment to a railroad, and the railroad then contracts with the 
manufacturing company to perform any FRA-required tests or inspections 
(e.g., the required 92-day periodic inspection and tests under Sec.  
229.23 of this chapter) the employees of the manufacturer performing 
those required tests and/or inspections would be considered MECH 
employees under this rule.
Regulated Employee
    Currently, this definition includes a covered service employee or 
MOW employee who performs regulated service for an entity subject to 
the requirements of this part. FRA would expand this definition to 
include a MECH employee (as defined in this section) who performs 
regulated service (as defined in this section).
Regulated Service
    Currently, ``regulated service'' means activities a covered service 
employee or MOW employee performs that makes such an employee subject 
to this part. FRA would expand this definition to

[[Page 1422]]

include activities performed by a MECH employee (as defined in this 
section).
Rolling Equipment
    FRA proposes to add a definition of railroad 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'' is currently defined to mean ``a 
collision at a turnout where one consist strikes the side of another 
consist.'' FRA is proposing to clarify that the term also includes 
collisions at switches or highway-rail grade crossings. FRA intends 
this proposed revision as a clarification only and does not believe the 
proposed revision is a substantive change from the existing definition.

Section 219.10 Penalties

    FRA proposes to substitute the term ``regulated employee'' for 
``employee'' to clarify that this section would apply to MOW, MECH, and 
covered service employees.

Section 219.11 General Conditions for Chemical Tests

Paragraph (g)
    As mentioned above, FRA is proposing to remove references to 
appendices B and C throughout the rule, along with the appendices 
themselves.

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 railroad's policies and procedures with 
respect to meeting those requirements.
Paragraph (a)
    FRA would substitute the term ``regulated employee'' for 
``employee,'' to clarify that the requirements of this section apply to 
MOW, MECH, and covered service employees.
Paragraph (c)
    FRA proposes to revise 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 will end after June 12, 2020, existing paragraph (c)(2) will 
become unnecessary. FRA is therefore proposing to revise paragraph 
(c)(2) to address the addition of MECH employees and remove the 
reference to MOW employees.
Paragraph (d)(2)
    FRA would amend this paragraph to identify specifically MECH 
employees as subject to the provisions in this part.

Subpart C--Post-Accident Toxicological Testing

Section 219.203 Responsibilities of Railroads and Employees

Paragraph (a)
    As mentioned above, FRA is proposing to remove references to 
appendices B and C throughout the rule, along with the appendices 
themselves. FRA would remove ``and appendix C to this part'' at the end 
of this paragraph.
Paragraph (d)
    Currently, if a railroad does not complete specimen collection 
within four hours of a PAT testing event, the railroad must notify the 
FRA Drug and Alcohol Program Manager and submit a concise written 
explanation for the delay within 30 days after the expiration of the 
month during which the accident or incident occurred. FRA is proposing 
to remove the requirement to provide a written explanation for the 
delay. FRA has found that the immediate, telephonic notification and 
related discussion between the railroad and FRA about the testing 
provide sufficient information to explain the testing delay. Further, 
Sec.  219.209(b) would continue to require each railroad to provide 
both immediate, telephonic notification and a follow-up, written report 
to FRA when, for whatever reason, a specimen cannot be collected and 
provided to FRA as required by this subpart.

Section 219.205 Specimen Collection and Handling

    This section contains several references to both appendices B and 
C. As mentioned above, FRA is proposing to remove references to 
appendices B and C throughout the rule, along with the appendices 
themselves. FRA is proposing to remove references to these appendices 
in paragraphs (a), (c)(1), (c)(2), (d), and (e).

Section 219.206 FRA Access to Breath Test Results

    This section contains a reference to appendix C. As mentioned 
above, FRA is proposing to remove references to appendix C throughout 
the rule, along with the appendix itself.

Section 219.207 Fatality

    This section contains the requirements for PAT testing in the event 
of an employee fatality in an accident or incident described in Sec.  
219.101.
Paragraph (c)
    Paragraph (c) lists the individuals who are authorized to collect 
post-mortem body fluid and tissue samples from a deceased employee for 
FRA PAT testing. FRA proposes to remove ``Aviation Medical Examiners'' 
(AMEs) from the list of authorized professionals. AMEs appointed by the 
FAA primarily conduct airman medical examinations to support FAA 
medical certification requirements. In selecting an AME, the Federal 
Air Surgeon or an authorized representative, considers a number of 
factors regarding the applicant's medical qualifications but does not 
specifically consider whether the applicant has post-mortem expertise 
or expertise in collecting samples from fatally injured persons, unlike 
the other professionals listed in this paragraph, namely, coroners, 
medical examiners, and pathologists.\12\
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    \12\ See 14 CFR 183.11(a); FAA Order 8000.95, Vol. 2, Ch. 2, 
para. 3.
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Paragraph (d)
    This section contains a reference to appendix C. As mentioned 
above, FRA is proposing to remove references to appendix C throughout 
the rule, along with the appendix itself.

Section 219.211 Analysis and Follow-Up

    In addition to allowing reports and requests to be submitted to FRA 
by email as well as hard copy, FRA would simplify and clarify the 
language in this section. No substantive changes are intended other 
than the proposed amendments discussed below.
Paragraph (a)
    This section contains a reference to appendix B. As mentioned 
above, FRA is proposing to remove references to appendix B throughout 
the rule, along with the appendix itself. FRA proposes to remove the 
reference to appendix B in this paragraph and make conforming changes.

[[Page 1423]]

Paragraph (c)
    With regard to surviving employees, existing paragraph (c) requires 
a PAT test reported as positive for alcohol or a controlled substance 
to 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. Currently, this paragraph requires the MRO to report the 
results of each review ``in writing'' to FRA's Associate Administrator 
for Railroad Safety and specifies that the envelope in which each 
report is provided must be marked as confidential. As proposed, FRA 
would allow an MRO to submit the report either by hard copy to FRA's 
Drug and Alcohol Program Manager, or by email to an email box 
specifically set up for receipt of MRO reports (FRA-MROletters.email@dot.gov). Access to this firewall-protected email box 
would be limited to FRA headquarters drug and alcohol staff.
Paragraph (e)
    Currently, an employee may submit a response by hard copy to the 
FRA Drug and Alcohol Program Manager within 45 days of receipt of his 
or her PAT test results prior to the preparation of any final report of 
investigation concerning the accident or incident. Within the 45-day 
limit, FRA would also allow an employee to email the response to FRA-DrugAlcoholProgram.email@dot.gov.
Paragraph (i)
    Currently, an employee may request a retest of his or her PAT test 
specimen within 60 days of receipt of the applicable toxicology report. 
FRA would allow an employee to submit a request for a retest either by 
hard copy to the FRA Drug and Alcohol Program Manager or by email to 
FRA-DrugAlcoholProgram.email@dot.gov. The employee's request would 
still have to be submitted within the 60-day time limit and specify the 
railroad, accident date, and location.
    FRA is also proposing to conform this paragraph to reflect FRA's 
standard procedures for handling employee requests for retests of PAT 
testing specimens. FRA's PAT testing program pre-dates DOT's Workplace 
Testing Procedures (49 CFR part 40), is excepted from its requirements, 
and tests for more substances and specimen types than other DOT tests 
conducted under part 40.\13\ FRA post-accident testing tests blood, as 
well as urine and breath specimens, from surviving employees, and 
vitreous fluid, tissue, and spinal fluid specimens, from fatally-
injured employees.
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    \13\ 49 CFR 40.1(c).
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    Currently, paragraph (i) authorizes a PAT testing retest to be 
performed by FRA's PAT laboratory or by a different laboratory 
certified by the Department of Health and Human Services (HHS). FRA 
proposes to remove the language authorizing an HHS-certified laboratory 
to conduct a PAT retest, because HHS certification only qualifies a 
laboratory to conduct part 40 urine tests. A referee laboratory must, 
however, have the capacity to test the same type of post-accident 
specimen type(s) for the same analyte(s) identified in the employee's 
test result.
    FRA would also make several clarifying changes to conform this 
paragraph to its PAT testing procedures. FRA would change the term 
``split specimen'' to ``specimen,'' because FRA does not collect split 
specimens for PAT testing. When an employee requests a PAT retest, FRA 
sends an aliquot of the employee's PAT testing specimen to the referee 
laboratory for retesting. FRA also proposes to replace the term 
``compound'' with the more specific term ``analyte,'' and to replace 
the term ``fluid'' with ``specimen,'' as FRA PAT testing may test 
specimens that are not fluids.\14\ To address the potential for some 
analytes to deteriorate during storage, FRA currently states that it 
will report and consider corroborative of the original PAT test result, 
a retest result that detects levels of the compound that are 
``technically appropriate.'' For greater precision, FRA would amend 
this paragraph to state that a retest would corroborate a PAT test 
result if the retest's result is above the laboratory's Limit of 
Detection (LOD).\15\ Finally, FRA would remove the sentence stating 
that the employee bears the costs of the retest, because historically 
FRA has paid these costs.
---------------------------------------------------------------------------

    \14\ See Sec.  219.11(f).
    \15\ See Sec.  40.3.
---------------------------------------------------------------------------

Subpart E--Reasonable Cause Testing

Section 219.403 Requirements for Reasonable Cause Testing

    This section authorizes railroads to conduct FRA reasonable cause 
testing as a result of a regulated employee's involvement in certain 
accidents or incidents, or a regulated employee's direct involvement in 
certain rule violations or ``other errors.'' FRA proposes revisions to 
the introductory paragraph of this section to make clear that for 
reasonable cause testing based on a rule violation, a railroad that 
elects to test under FRA authority may only use rule violations listed 
in paragraph (b) as bases for testing.
Paragraph (b)
    Existing paragraph (b) sets forth the rule violations that may 
constitute reasonable cause for the administration of alcohol and/or 
drug tests under this part. FRA proposes to remove ``or other errors'' 
from this paragraph to clarify that a railroad that has chosen to 
conduct reasonable cause testing for rule violations under FRA 
authority may do so only for a rule violation specified in paragraph 
(b).
    FRA would also expand the list of rule violations in paragraph (b) 
by adding rule violations involving common mechanical activities such 
as setting derails, performing brake tests, and initiating appropriate 
blue flag protection. In addition, FRA would add a rule violation for 
positive train control (PTC) enforcement to address PTC requirements 
that became applicable after the publication of the MOW rule.
    Specifically, the additional rule violations would be:
     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 a failure to take 
appropriate action, resulting in the enforcement of a PTC system;
     Failure to comply with blue signal protection of workers 
in accordance with Sec.  218.23 through Sec.  218.30 of this chapter;
     Failure to perform or have knowledge that a required brake 
test was performed pursuant to the Class I, Class IA, Class II, Class 
III, or transfer train brake test provisions of part 232, or the 
running brake test provisions of part 238, of this chapter;
     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
     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 Drug Tests

Section 219.501 Pre-Employment Drug Testing

Paragraph (e)
    FRA is proposing to clarify 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

[[Page 1424]]

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.\16\
---------------------------------------------------------------------------

    \16\ 81 FR 37911 (June 10, 2016).
---------------------------------------------------------------------------

    FRA is also proposing to exempt from pre-employment drug testing 
MECH employees who were performing regulated service for a railroad, or 
contractor or subcontractor of a railroad, before (EFFECTIVE DATE OF 
FINAL RULE).
    An exempted employee would be required to 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 after (EFFECTIVE DATE OF FINAL RULE) 
for MECH employees.
Paragraph (f)
    To clarify how the proposed revisions in this section fit with the 
existing requirements of part 40, as also discussed in II.D above, FRA 
proposes to add paragraph (f) to clarify 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 still conduct a 
drug and alcohol records check of an 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. FRA does not intend this 
as a substantive change to the current requirement and is proposing 
this revision merely as a clarification of existing requirements.

Subpart G--Random Drug and Alcohol Testing Programs

Section 219.605 Submission and Approval of Random Testing Plans


Paragraph (a)
    Existing paragraph (a) requires railroads to submit random testing 
plans to FRA in writing for FRA approval. FRA would allow a railroad to 
submit its random testing plan by email or letter. A railroad that 
chooses to submit its random testing plan by email should send it to 
the FRA Drug and Alcohol Program Manager at FRA-DrugAlcoholProgram.email@dot.gov. Regardless of the manner of 
submission, the plan must include the name of the railroad or 
contractor in the subject line.
Paragraph (e)
    FRA proposes to amend 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. Accordingly, 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. FRA has developed model 
random testing plans for MOW employees and contractors that could also 
serve as templates for MECH employees and contractors.

Section 219.607 Requirements for Random Testing Plans

Paragraph (c)
    FRA proposes to revise paragraph (c) of this section to reflect the 
application of railroad random testing plans to MECH employees. 
Specifically, new paragraph (c)(3) would require railroad random 
testing plans to identify the total number of mechanical employees, 
including mechanical contractor employees and volunteers. Existing 
paragraph (c)(3) would be redesignated as paragraph (c)(4), and the 
remainder of paragraph (c) would be redesignated in conformance. FRA is 
also proposing minor clarifications to newly redesignated paragraphs 
(c)(7), (9) and (14) (existing paragraphs (c)(6), (8), and (13)).

Section 219.615 Random Testing Collections

Paragraph (e)
    FRA proposes to revise 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,'' as paragraph (e)(3) 
currently reads. FRA does not intend this as a substantive change to 
the current requirement and is proposing this revision merely as a 
clarification and grammatical correction of an existing requirement.

Section 219.617 Participation in Random Alcohol and Drug Testing

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

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

Paragraph (c)(1)
    As stated above, FRA is proposing to subject an employee who 
performs MECH activities to the same random testing requirements as one 
who performs covered service. Currently, this paragraph authorizes 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. FRA found, however, 
that MOW contractors were still submitting random testing plans for its 
approval 18 months after the effective date of the MOW rule. To allow 
sufficient time for the implementation of random testing by MECH 
contractors, FRA is proposing to revise this paragraph to require two 
consecutive calendar years of MIS data before the initial minimum 
annual random testing rates for regulated employees could be raised or 
lowered. This would be consistent with the MIS data requirements that 
FRA had set for adjustment of the minimum annual random testing rates 
for covered employees.

Subpart I--Annual Report

Section 219.800 Annual Reports

Paragraph (a)
    A railroad required to file an MIS report must summarize both its 
alcohol misuse and drug abuse results for the previous calendar year. 
As a clarifying change, FRA would re-insert ``and drug abuse,'' which 
had been inadvertently omitted from this paragraph, to state that the 
summary includes both alcohol misuse and drug abuse information.
Paragraph (f)
    FRA would revise this paragraph to require a railroad to submit its 
annual MIS report with separate sections for its covered service 
employees, MOW employees, and MECH employees.

[[Page 1425]]

Paragraph (g)
    As noted in the discussion of Sec.  219.3 above, for ease of 
reference, FRA would move 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 in the Executive Summary, FRA is proposing to 
remove appendices B and C to this part, because these appendices 
duplicate information that can be found in FRA's PAT testing shipping 
kits or on the FRA website and post-accident testing app. For ease of 
reference, each FRA PAT testing shipping kit includes the address of 
FRA's PAT testing laboratory, and each FRA fatality PAT testing 
shipping kit contains 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 proposed rule is a non-significant regulatory action within 
the meaning of Executive Order 12866 (E.O. 12866) and DOT's 
Administrative Rulemaking, Guidance, and Enforcement Procedures in 49 
CFR part 5. FRA made this determination by finding that this proposed 
regulatory action would not exceed the $100 million annual threshold 
defined by E.O. 12866. Details on the estimated cost savings of this 
proposed rule can be found in the proposed rule's Regulatory 
Evaluation, which FRA has prepared and placed in the docket (FRA-2019-
0071). The Regulatory Evaluation details the estimated costs and 
benefits of those entities who are expected to be impacted by the rule, 
are likely to see over a 10-year period.
    FRA is proposing to expand the definition of regulated employee to 
include mechanical employees in part 219, as mandated by section 8102 
of the Support Act.\17\ The proposed rule also includes non-quantified 
miscellaneous amendments that would reduce reporting burdens, enhance a 
railroad's authority to conduct reasonable cause testing, and add 
clarity to part 219.
---------------------------------------------------------------------------

    \17\ Public Law 115-271.
---------------------------------------------------------------------------

    The proposed rule generates costs related to provisions on random 
testing, reasonable cause/reasonable suspicion testing, pre-employment 
drug testing, peer support, and co-worker referral policies and 
reporting. As shown in Table ES.1, over the 10-year period of analysis 
the proposed rule would result in a total discounted cost of $13.9 
million (PV 7%).

                                             Table ES.1--Total Costs
----------------------------------------------------------------------------------------------------------------
                                                     Costs ($)                            Annualized ($)
              Costs              -------------------------------------------------------------------------------
                                   Undiscounted        PV 3%           PV 7%           PV 3%           PV 7%
----------------------------------------------------------------------------------------------------------------
Pre-employment testing..........       2,653,000       2,331,000       1,994,000         273,000         284,000
Random testing..................      13,111,000      11,813,000      10,438,000       1,385,000       1,486,000
Reasonable cause/suspicion               465,000         409,000         350,000          48,000          50,000
 testing........................
Government administrative.......       1,525,000       1,340,000       1,146,000         157,000         134,000
                                 -------------------------------------------------------------------------------
    Total costs.................      17,754,000      15,893,000      13,928,000       1,863,000       1,954,000
----------------------------------------------------------------------------------------------------------------

    The benefits of the proposed rule would come from reducing the 
number of mechanical employees who have a substance use disorder (SUD). 
FRA determined that testing programs would provide a deterrent effect, 
which would provide a reduction in the number of existing mechanical 
employees with an SUD. The deterrent effect would induce mechanical 
employees with an SUD to self-correct their behavior and no longer 
misuse alcohol or abuse drugs. Pre-employment drug testing would 
prevent individuals with SUDs from being hired as mechanical employees. 
Random testing and reasonable cause/suspicion testing would allow 
railroads to identify mechanical employees with SUDs so that they can 
enter rehabilitation.
    Over a 10-year period of analysis, this analysis estimates the 
proposed rule's benefit by multiplying the reduction in the number of 
employee work years that mechanical employees with an SUD are employed 
(21,977 employee work years) by the annual cost of having a mechanical 
employee with a SUD ($3,200) on the payroll. As shown in Table ES.2, 
the proposed rule would result in total benefits of $52.8 million (PV 
7%).

                                           Table ES.2--Total Benefits
----------------------------------------------------------------------------------------------------------------
                                                   Benefits ($)                           Annualized ($)
            Benefits             -------------------------------------------------------------------------------
                                   Undiscounted        PV 3%           PV 7%           PV 3%           PV 7%
----------------------------------------------------------------------------------------------------------------
Deterrent effect................      63,904,000      56,147,000      48,025,000       6,582,000       6,838,000
Pre-employment..................       2,365,000       2,050,000       1,721,000         240,000         245,000
Random testing..................       3,651,000       3,237,000       2,797,000         379,000         398,000
Reasonable cause/suspicion......         406,000         353,000         296,000          41,000          42,000
                                 -------------------------------------------------------------------------------
    Total benefits..............      70,326,000      61,787,000      52,839,000       7,242,000       7,523,000
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 \18\ and E.O. 13272 \19\ 
require agency review of proposed and final rules to assess their 
impacts on small entities. An agency must prepare an Initial Regulatory 
Flexibility Analysis (IRFA) unless it determines and certifies that a 
rule, if promulgated, would not have a significant economic impact on a 
substantial number of small entities.

[[Page 1426]]

FRA has not determined whether this proposed rule would have a 
significant economic impact on a substantial number of small entities. 
Therefore, FRA seeks comment on the potential small business impacts of 
the requirements in this NPRM. FRA prepared an IRFA, which is included 
as an appendix to the accompanying Regulatory Evaluation and available 
in the docket for the rulemaking (FRA-2019-0071), to aid the public in 
commenting on the potential small business impacts of the requirements 
in this NPRM.
---------------------------------------------------------------------------

    \18\ 5 U.S.C. 601 et seq.
    \19\ 67 FR 53461 (Aug. 16, 2020).
---------------------------------------------------------------------------

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
proposed rule to the Office of Management and Budget (OMB) for approval 
under the Paperwork Reduction Act of 1995.\20\ The sections that 
contain the new information collection requirements are duly designated 
and the estimated time to fulfill each requirement is as follows:
---------------------------------------------------------------------------

    \20\ 44 U.S.C. 3501 et seq.

----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
                                  Respondent      Total annual     Average time    Total annual     dollar cost
   CFR section/subject \21\        universe        responses       per response    burden hours     equivalent
                                                                                                       \22\
----------------------------------------------------------------------------------------------------------------
219.4--Petition for            1 railroad.....  1 petition.....  40 hours.......              40          $3,040
 recognition of a foreign
 railroad's workplace testing
 program.
    --Comments on petitions..  1 railroad.....  2 comments + 2   15 minutes + 15               1              76
                                                 copies.          minutes.
219.7--Waivers...............  734 railroads    3 waiver         90 minutes.....               5             380
                                \23\.            letters.
219.23(a)--Notification to     171,410          75,154 notices.  3 seconds + 30              204          15,504
 employees for testing.         employees \24\.                   seconds.
219.12(d)--RR Documentation    734 railroads..  6 documents....  30 minutes.....               3             228
 on need to place employee on
 duty for follow-up tests.
219.23(c) and (e)--            734 railroads..  744 modified/    1 hour.........             744          56,544
 Educational materials.                          revised
                                                 educational
                                                 documents.
    --Copies of educational    171,410          22,901 copies    2 minutes......             763          57,988
     materials to employees.    employees.       of educational
                                                 material
                                                 documents.
219.25(a)--Previous employer   25,410 MECH      10,164 reports.  8 minutes......           1,355         102,980
 drug and alcohol checks--      employees.
 Employee testing records
 from previous employers and
 employee release of
 information (49 CFR Part
 40.25(a) and (f)).
219.104(b)--Removal of         734 railroads..  550 verbal       30 seconds + 2               23           1,748
 employee from regulated                         notices + 550    minutes.
 service--Verbal notice +                        letters.
 follow-up written letter.
219.105--RR's duty to prevent  734 railroads..  3 document       5 minutes......              .3              23
 violations--Documents                           copies.
 provided to FRA after agency
 request regarding RR's
 alcohol and/or drug use
 education/prevention program.
    --RR Supervisor Rule G     734 railroads..  342,820          2 seconds......             190          14,440
     observations and records                    observation
     of regulated employees.                     records.
219.201(c)--Report by RR       734 railroads..  2 reports......  30 minutes.....               1              76
 concerning decision by
 person other than RR
 representative about whether
 an accident/incident
 qualifies for testing.
219.203/207--Verbal            734 railroads..  80               2 minutes......             2.7             205
 notification and subsequent                     notifications.
 written report of failure to
 collect urine/blood
 specimens within four hours.
    --Recall of employees for  734 railroads..  4 reports......  30 minutes.....               2             152
     testing and Narrative
     Report Completion.
    --RR reference to part     734 railroads..  98 references..  5 minutes......               8             608
     219 requirements and
     FRA's post-accident
     toxicological kit
     instructions in seeking
     to obtain facility
     cooperation.
    --RR notification to       734 railroads..  2 phone calls..  10 minutes.....              .3              23
     National Response Center
     of injured employee
     unconscious or otherwise
     unable to give testing
     consent.
    --RR notification to       734 railroads..  5 phone calls..  10 minutes.....             0.8              61
     local authority.
219.205--Post Accident         734 railroads..  105 forms......  10 minutes.....              18           1,368
 Toxicological Testing Forms--
 Completion of FRA F 6180.73.
    --Specimen handling/       171,410          223 forms......  15 minutes.....              56           4,256
     collection--Completion     employees.
     of Form FRA F 6180.74 by
     train crew members after
     accident.
    --Completion of Form FRA   734 railroads..  7 forms........  20 minutes.....               2             152
     6180.75.
    --Documentation of chain   734 railroads..  105 chain of     2 minutes......               4             304
     of custody of sealed                        custody
     toxicology kit from                         documents.
     medical facility to lab
     delivery.

[[Page 1427]]

 
    --RR/medical facility      734 railroads..  10 written       2 minutes......              .3              23
     record of kit error.                        records.
219.209(a)--Notification to    734 railroads..  105 phone        2 minutes......               4             304
 NRC and FRA of accident/                        reports.
 incident where samples were
 obtained.
219.211(b)--Results of post-   734 railroads..  7 reports......  15 minutes.....               2             152
 accident toxicological
 testing to RR MRO and RR
 employee.
    --MRO report to FR of      734 railroads..  6 reports......  15 minutes.....               2             152
     positive test for
     alcohol/drugs of
     surviving employee.
219.303--RR written            734 railroads..  34 written       5 minutes......               3             228
 documentation of observed                       documents.
 signs/symptoms for
 reasonable suspicion
 determination.
219.305--RR written record     734 railroads..  11 records.....  2 minutes......              .4              30
 stating reasons test was not
 promptly administered.
219.405--RR documentation      734 railroads..  2,365 written    5 minutes......             197          14,972
 describing basis of                             documents.
 reasonable cause testing.
219.407(b)--Prompt specimen    734 railroads..  17 records.....  15 minutes.....               4             304
 collection time limitation
 exceeded--Record.
219.501(e)--RR documentation   734 railroads..  6,500 lists....  30 seconds.....              54           4,104
 of negative pre-employment
 drug tests.
219.605(a)--Submission of      734 railroads..  12 plans.......  1 hour.........              12             912
 random testing plan: New RRs.
    --Amendments to currently- 734 railroads..  450 amendments.  1 hour.........             450          34,200
     approved FRA random
     testing plan.
    --Resubmitted random       734 railroads..  57 resubmitted   30 minutes.....              29           2,204
     testing plans after                         plans.
     notice of FRA
     disapproval of plan or
     amendment.
    --Non-substantive          734 railroads..  300 amendments.  15 minutes.....              75           5,700
     amendment to an approved
     plan.
219.615--Incomplete random     734 railroads..  2,333 documents  30 seconds.....              19           1,444
 testing collections--
 Documentation.
219.617--Employee Exclusion    734 railroads..  6 documents....  1 hour.........               6             456
 from random alcohol/drug
 testing after providing
 verifiable evidence from
 credible outside
 professional.
219.623--Random testing        734 railroads..  52,153 records.  1 minutes......             869          66,044
 records.
219.800(b)--Annual reports--   38 railroads...  55 MIS reports.  90 minutes.....              83           6,308
 Management Information        + 17
 System (MIS) form for MECH     contractors.
 employees (49 CFR Part
 40.26--MIS form submission).
219.1001--Co-worker referral   734 railroads..  24 referrals...  5 minutes......               2             152
 of employee who is unsafe to
 work with/in violation of
 Part 219 or railroad's drug/
 alcohol rules.
                              ----------------------------------------------------------------------------------
    Total....................  734 railroads +  517,976          N/A............           5,235         397,845
                                171,410          responses.
                                employees.
----------------------------------------------------------------------------------------------------------------

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

    \21\ The proposed burdens under Sec. Sec.  219.25(a) and 
219.800(b), once approved, will fall under DOT's Part 40 information 
collection (OMB No. 2105-0529).
    \22\ Throughout the tables in this document, the dollar 
equivalent cost is derived from the 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.
    \23\ For purposes of this table, the respondent universe of 734 
railroads represents the estimated 30 contractor companies that 
would be newly subject to part 219 because they perform MECH 
activities on behalf of the 734 railroads.
    \24\ The respondent universe of 171,410 employees includes an 
estimated 25,410 MECH employees who would be newly subject to part 
219.
---------------------------------------------------------------------------

    Under 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: 
Whether these information collection requirements are necessary for the 
proper performance of the functions of FRA, including whether the 
information has practical utility; the accuracy of FRA's estimates of 
the burden of the information collection requirements; the quality, 
utility, and clarity of the information to be collected; and whether 
the burden of collection of information on those who are to respond, 
including through the use of automated collection techniques or other 
forms of information technology, may be minimized.
    For information, a copy of the paperwork package submitted to OMB, 
or to submit comments on the collection of information requirements, 
contact Ms. Hodan Wells, Information Collection Clearance Officer, 
Office of Railroad Safety, Regulatory Analysis Division at 
Hodan.Wells@dot.gov.
    OMB must make a decision concerning the collection of information 
requirements contained in this proposed 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. The final rule will respond 
to any OMB or public comments on the information collection 
requirements contained in this proposal.

[[Page 1428]]

    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. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule, 
and will announce the OMB control number, when assigned, by separate 
notice in the Federal Register.

D. Environmental Impact

    Consistent with the National Environmental Policy Act \25\ (NEPA), 
the Council of Environmental Quality's NEPA implementing 
regulations,\26\ and FRA's NEPA implementing regulations,\27\ FRA has 
evaluated this proposed 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.\28\ Specifically, FRA has determined that this 
proposed rule is categorically excluded from detailed 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.''
---------------------------------------------------------------------------

    \25\ 42 U.S.C. 4321 et seq.
    \26\ 40 CFR parts 1500-1508.
    \27\ 23 CFR part 771.
    \28\ See 40 CFR 1508.4.
---------------------------------------------------------------------------

    The purpose of this rulemaking is to propose expanding the scope of 
FRA's alcohol and drug regulation to cover MECH employees who test or 
inspect railroad rolling equipment. This proposed rule would not 
directly or indirectly impact any environmental resources and would not 
result in significantly increased emissions of air or water pollutants 
or noise. Instead, the proposed rule would 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.\29\ FRA has concluded that no such 
unusual circumstances exist with respect to this proposed regulation 
and the proposal meets the requirements for categorical exclusion under 
23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

    \29\ 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.\30\ FRA has also 
determined that this rulemaking does not approve a project resulting in 
a use of a resource protected by Section 4(f).\31\
---------------------------------------------------------------------------

    \30\ See 16 U.S.C. 470.
    \31\ See 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) \32\ 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 proposed rule under Executive Order 
12898 and the DOT Order and has determined it would not cause 
disproportionately high and adverse human health and environmental 
effects on minority populations or low-income populations.
---------------------------------------------------------------------------

    \32\ 91 FR 27534 (May 10, 2012).
---------------------------------------------------------------------------

F. Federalism Implications

    Executive Order 13132, ``Federalism,'' \33\ 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.
---------------------------------------------------------------------------

    \33\ 64 FR 43255 (Aug. 10, 1999),
---------------------------------------------------------------------------

    FRA has analyzed the proposed rule under the principles and 
criteria contained in Executive Order 13132. This proposed rule 
complies with a statutory mandate and would 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. In addition, 
FRA has determined that the proposed rule would not impose substantial 
direct compliance costs on State and local governments. Therefore, the 
consultation and funding requirements of Executive Order 13132 would 
not apply. However, this proposed 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 proposed rule under the principles 
and criteria in Executive Order 13132. As explained above, FRA has 
determined this proposed rule 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 for this proposed rule is not 
required.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of

[[Page 1429]]

1995,\34\ 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 \35\ 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 proposed rule would not result in such an 
expenditure, and thus preparation of such a statement is not required.
---------------------------------------------------------------------------

    \34\ Public Law 104-4, 2 U.S.C. 1531.
    \35\ 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.'' \36\ 
FRA has evaluated this proposed 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.
---------------------------------------------------------------------------

    \36\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

    Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth,'' requires Federal agencies to 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.\37\ FRA determined this 
proposed rule would not burden the development or use of domestically 
produced energy resources.
---------------------------------------------------------------------------

    \37\ 82 FR 16093 (Mar. 31, 2017).
---------------------------------------------------------------------------

I. Tribal Consultation

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

J. Privacy Act Statement

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, to www.regulations.gov, as described in the 
system of records notice, DOT/ALL-14 FDMS, accessible through 
www.dot.gov/privacy. To facilitate comment tracking and response, FRA 
encourages commenters to provide their names, or the name of their 
organization; although submission of names is optional. Whether or not 
commenters identify themselves, FRA will fully consider all timely 
comments. If you wish to provide comments containing proprietary or 
confidential information, please contact FRA for alternate submission 
instructions.

List of Subjects in 49 CFR Part 219

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

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

PART 219--CONTROL OF ALCOHOL AND DRUG USE--[AMENDED]

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, 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) to read as follows:


Sec.  219.3  Application.

* * * * *
    (b) [Reserved]
    (c) Small railroad exception. (1) Subparts E, G, and K of this part 
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 service 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 of this chapter 
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, add definitions of ``Mechanical employee or MECH 
employee'' and ``Rolling equipment,'' and revise the definitions of 
``Category of regulated employee,'' ``Employee,'' ``Regulated 
employee,'' ``Regulated service,'' and ``Side collision'' to read in 
alphabetical order 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--

[[Page 1430]]

    (1) 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, 
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 service 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 service 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 a 
highway-rail crossing at grade.
* * * * *
0
4. Revise and republish Sec.  219.10 to read as follows:


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 $892 and not more than $29,192 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 
$116,766 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 www.fra.dot.gov 
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 (EFFECTIVE DATE OF FINAL 
RULE), 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 paragraph (a) introductory text and 
paragraph (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 verbally 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

[[Page 1431]]

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 toxicology 
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 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 hard copy or email to the FRA Drug 
and Alcohol Program Manager. Emailed reports must be sent to FRA-MROletters.email@dot.gov. 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 hard copy or email to the FRA 
Drug and Alcohol Program Manager. Emailed responses should be sent to 
FRA-DrugAlcoholProgram.email@dot.gov. 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 by hard 
copy or email to the FRA Drug and Alcohol Program Manager. Emailed 
requests must be sent to FRA-DrugAlcoholProgram.email@dot.gov. 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,

[[Page 1432]]

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 or have knowledge that a required brake 
test was 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 service 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 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 
(Effective Date of Final Rule).
    (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, on or after June 12, 2017, 
for exempted covered employees and maintenance-of-way employees, and 
after (Effective Date of Final Rule) 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 paragraph (a) and paragraph 
(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 to the FRA Drug and Alcohol Program Manager, at 
FRA-DrugAlcoholProgram.email@dot.gov or 1200 New Jersey Ave. SE, 
Washington, DC 20590. 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 (EFFECTIVE 
DATE OF FINAL RULE), 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 30 days before (EFFECTIVE DATE OF FINAL RULE).
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:

[[Page 1433]]

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) and 
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 service 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 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
Quintin C. Kendall,
Deputy Administrator.
[FR Doc. 2020-25868 Filed 1-7-21; 8:45 am]
BILLING CODE 4910-06-P


