[Federal Register Volume 86, Number 5 (Friday, January 8, 2021)]
[Proposed Rules]
[Pages 1418-1433]
[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:<PHONE_NUMBER>; email:

exception occurred on : 2020-25868.htm
gera[email protected]; Sam Noe, Drug and Alcohol Specialist, Office of
Technical Oversight, telephone<PHONE_NUMBER>, email<EMAIL_ADDRESS>or
Patricia V. Sun, Attorney Adviser, Office of the Chief Counsel,
telephone:<PHONE_NUMBER>, email<EMAIL_ADDRESS>
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.

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

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

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.

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<EMAIL_ADDRESS>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
<EMAIL_ADDRESS>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

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<EMAIL_ADDRESS>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.

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.

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.

    --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
<EMAIL_ADDRESS>    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.

    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

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--

    (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

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<PHONE_NUMBER>. * * *
    (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<EMAIL_ADDRESS>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
<EMAIL_ADDRESS>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<EMAIL_ADDRESS>The
employee's request must specify the railroad, accident date, and
location. Upon receipt of the employee's request, FRA will identify and
select a qualified referee laboratory that has available an
appropriate, validated assay for the specimen type and analyte(s)
declared positive. Because some analytes may deteriorate during
storage, if the referee laboratory detects levels above its Limit of
Detection (as defined in 49 CFR 40.3), FRA will report the retest
result as corroborative of the original PAT test result.

Subpart E--Reasonable Cause Testing

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

Sec.  219.403  Requirements for reasonable cause testing.

    Each railroad's decision process regarding whether reasonable cause
testing is authorized must be completed before the reasonable cause
testing is performed and documented according to the requirements of
Sec.  219.405. The following circumstances constitute reasonable cause
for the administration of alcohol and/or drug tests under the authority
of this subpart. For reasonable cause testing based on a rule violation
as authorized in paragraph (b) of this section, a railroad that elects
to test under FRA authority may only use the rule violations listed in
paragraph (b) of this section as bases for reasonable cause testing.
* * * * *
    (b) * * *
    (1) Noncompliance with a train order, track warrant, track
bulletin, track permit, stop and flag order, timetable,

signal indication, special instruction or other directive with respect
to movement of railroad on-track equipment that involves--
    (i) Occupancy of a block or other segment of track to which entry
was not authorized;
    (ii) Failure to clear a track to permit opposing or following
movements to pass;
    (iii) Moving across a railroad crossing at grade without
authorization;
    (iv) Passing an absolute restrictive signal or passing a
restrictive signal without stopping (if required); or
    (v) Failure to take appropriate action, resulting in the
enforcement of a positive train control system.
* * * * *
    (17) Improper use of individual train detection in a manual
interlocking or control point;
    (18) Failure to apply three point protection (fully apply the
locomotive and train brakes, center the reverser, and place the
generator field switch in the off position) that results in a
reportable injury to a regulated employee;
    (19) Failure to display blue signals in accordance with Sec.
218.25 through Sec.  218.30 of this chapter;
    (20) Failure to perform 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
<EMAIL_ADDRESS>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:

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