Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 5719 

1Public Law 115–271, Oct. 24, 2018. 

2 86 FR 1418. 

332.7002 Policy. 

(a) Contracts shall require the 

electronic submission of payment 

requests, except for— 

(1) Purchases paid for with a 

Government-wide commercial purchase 

card; and 

(2) Classified contracts or purchases 

when electronic submission and 

processing of payment requests could 

compromise classified information or 

national security. 

(b) Where a contract otherwise 

requires the electronic submission of 

invoices, the Contracting Officer may 

authorize alternate procedures only if 

the Contracting Officer makes a written 

determination that: 

(1) The Department of Health and 

Human Services (HHS) is unable to 

receive electronic payment requests or 

provide acceptance electronically; 

(2) The contractor has demonstrated 

that electronic submission would be 

unduly burdensome; or 

(3) The contractor is in the process of 

transitioning to electronic submission of 

payment requests, but needs additional 

time to complete such transition. 

Authorizations granted on the basis of 

this paragraph (b)(3) must specify a date 

by which the contractor will transition 

to electronic submission. 

(c) Except as provided in paragraphs 

(a) and (b) of this section, HHS officials 

shall process electronic payment 

submissions through the Department of 

the Treasury Invoice Processing 

Platform or successor system. 

(d) If the requirement for electronic 

submission of payment requests is 

waived under paragraph (a)(2) or (b) of 

this section, the contract or alternate 

payment authorization, as applicable, 

shall specify the form and method of 

payment request submission. 

332.7003 Contract clause. 

Except as provided in 332.7002(a), 

use the clause at 352.232–71, Electronic 

Submission of Payment Requests, in all 

solicitations and contracts. 

PART 352—SOLICITATIONS 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. The authority citation for part 352 

continues to read as follows: 

Authority: 5 U.S.C. 301; 40 U.S.C. 

121(c)(2). 

■ 4. Add section 352.232–71 to read as 

follows: 

352.232–71 Electronic submission of 

payment requests 

As prescribed in HHSAR 332.7003, 

use the following clause: 

Electronic Submission of Payment Requests 

(a) Definitions. As used in this clause— 

Payment request means a bill, voucher, 

invoice, or request for contract financing 

payment with associated supporting 

documentation. The payment request must 

comply with the requirements identified in 

FAR 32.905(b), ‘‘Content of Invoices’’ and the 

applicable Payment clause included in this 

contract. 

(b) Except as provided in paragraph (c) of 

this clause, the Contractor shall submit 

payment requests electronically using the 

Department of Treasury Invoice Processing 

Platform (IPP) or successor system. 

Information regarding IPP, including IPP 

Customer Support contact information, is 

available at www.ipp.gov or any successor 

site. 

(c) The Contractor may submit payment 

requests using other than IPP only when the 

Contracting Officer authorizes alternate 

procedures in writing in accordance with 

HHS procedures. 

(d) If alternate payment procedures are 

authorized, the Contractor shall include a 

copy of the Contracting Officer’s written 

authorization with each payment request. 

(End of Clause) 

Xavier Becerra, 

Secretary. 

[FR Doc. 2022–02134 Filed 2–1–22; 8:45 am] 

BILLING CODE 4151–19–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 219 

[Docket No. FRA–2019–0071, Notice No. 2] 

RIN 2130–AC80 

Control of Alcohol and Drug Use: 

Coverage of Mechanical Employees 

and Miscellaneous Amendments 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: As mandated by the 

Substance Use-Disorder Prevention that 

Promotes Opioid Recovery and 

Treatment for Patients and Communities 

Act (SUPPORT Act or Act), FRA is 

expanding the scope of its alcohol and 

drug regulation to cover mechanical 

employees. This rule clarifies who FRA 

considers a mechanical employee for 

regulatory purposes, and adopts 

proposed technical amendments. 

DATES: This rule is effective March 4, 

2022. 

ADDRESSES: Docket: For access to the 

docket to read background documents 

or comments received, go to http://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Gerald Powers, Drug and Alcohol 

Program Manager, Office of Railroad 

Safety—Office of Technical Oversight, 

telephone: 202–493–6313, email: 

gerald.powers@dot.gov; Sam Noe, Drug 

and Alcohol Specialist, Office of 

Railroad Safety—Office of Technical 

Oversight, telephone: 615–719–2951, 

email: sam.noe@dot.gov; or Patricia V. 

Sun, Attorney Adviser, Office of Safety 

Law, telephone: 202–493–6060, email: 

patricia.sun@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Executive Summary 

II. Discussion of General Comments and 

Conclusions 

A. FRA’s Proposed Mechanical Employee 

Definition 

1. Summary 

2. Fourth Amendment Implications 

3. Decrease in Random Testing Deterrence 

4. Consistency With the SUPPORT Act 

5. Consistency With the MOW Employee 

Definition 

6. Treatment of Employees Subject to Part 

209 

B. Pre-Employment Testing 

C. Initial Mechanical Employee Annual 

Random Testing Rates 

D. Post-Accident Toxicological Testing 

E. Effective Date of Final Rule and 

Timetable for Submitting Random 

Testing Plans for MECH Employees 

III. Section-by-Section Analysis 

IV. Regulatory Impact and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

B. Regulatory Flexibility Act and Executive 

Order 13272; Certification 

C. Paperwork Reduction Act 

D. Environmental Impact 

E. Executive Order 12898 (Environmental 

Justice) 

F. Federalism Implications 

G. Unfunded Mandates Reform Act of 1995 

H. Energy Impact 

I. Tribal Consultation 

I. Executive Summary 

In Section 8102(a) of the SUPPORT 

Act,1 Congress mandated FRA (as the 

Secretary of Transportation’s delegate) 

include ‘‘all employees of railroad 

carriers who perform mechanical 

activities’’ (MECH employee(s)) in its 

alcohol and drug regulation, 49 CFR 

part 219. In section 8102(b) of the Act, 

Congress directed FRA to define 

mechanical activities for purposes of 

part 219 coverage. On January 8, 2021, 

FRA published a Notice of Proposed 

Rulemaking (NPRM) in response to this 

mandate.2 FRA received comments on 

the NPRM from four organizations 

(including one joint filing) and 12 


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3The final rule will not create new costs 

associated with PAT testing for mechanical 

employees as they are already subject to part 219 

PAT requirements. 

4Note: In this and subsequent tables, numbers 

may not add due to rounding. 

individuals. This final rule addresses 

those comments and amends part 219, 

as proposed, by defining a MECH 

employee as any employee who, on 

behalf of a railroad, performs 

mechanical tests or inspections required 

by the following FRA regulations: 

Railroad Freight Car Safety Standards 

(49 CFR part 215), Rear End Marking 

Device—Passenger, Commuter and 

Freight Trains (49 CFR part 221), 

Railroad Locomotive Safety Standards 

(49 CFR part 229), Steam Locomotive 

Inspection and Maintenance Standards 

(49 CFR part 230), Brake System Safety 

Standards for Freight and Other NonPassenger Trains and Equipment; Endof-Train Devices (49 CFR part 232), and 

Passenger Equipment Safety Standards 

(49 CFR part 238). In addition, as 

discussed in the Section-by-Section 

Analysis, the definition also includes 

any such employee who performs 

mechanical tests or inspections required 

by the Texas Central Railroad HighSpeed Rail Safety Standards (49 CFR 

part 299). Defining a MECH employee as 

one who performs these required tests 

or inspections properly limits part 219 

coverage to those mechanical 

department employees who perform 

functions that most directly affect 

safety. An employee who conducts tests 

or inspections provides the last safety 

check on railroad rolling equipment 

before its operation. Final tests or 

inspections, if not performed or if 

performed improperly, could lead to 

single points of failure in the 

mechanical safety process. An employee 

who performs a Federally mandated 

‘‘last look’’ at the equipment, whether or 

not it has undergone any repair, 

maintenance, or servicing work, is 

responsible for ensuring that the 

equipment is compliant with Federal 

regulations and safe for use. 

By amending the term ‘‘regulated 

employee’’ to include MECH employees, 

FRA is making them subject to all part 

219 prohibitions and testing (preemployment, random, post-accident 

toxicological (PAT), reasonable 

suspicion, return-to-duty, and followup). Railroads, contractors, and 

subcontractors must comply with the 

same reporting, recordkeeping, and 

referral requirements for MECH 

employees, as for covered service and 

MOW employees. 

In addition to changes to part 219 

directly related to the addition of MECH 

employees, this final rule also makes 

other changes to part 219, as proposed 

in the NPRM. 

FRA has analyzed the economic 

impact of this final rule. FRA estimated 

the costs associated with random 

testing, reasonable cause/reasonable 

suspicion testing, pre-employment drug 

testing, and Government administrative 

costs.3 As shown in the following table, 

over the 10-year period of analysis, the 

final rule will result in total costs of 

approximately $10.7 million (Present 

Value (PV) 7%). 

TOTAL 10-YEAR COSTS 4

Category 

Total cost, 

7 percent 

($) 

Total cost, 

3 percent 

($) 

Annualized 

cost, 

7 percent 

($) 

Annualized 

cost, 

3 percent 

($) 

Pre-Employment .............................................................................................. 1,621,930 1,896,210 230,926 222,294 

Random Testing .............................................................................................. 7,987,551 9,038,433 1,137,248 1,059,580 

Reasonable Cause and Reasonable Suspicion .............................................. 261,670 305,921 37,256 35,863 

Government Administrative Cost ..................................................................... 866,431 1,012,950 123,360 118,749 

Total .......................................................................................................... 10,737,582 12,253,514 1,528,790 1,436,486 

The benefits of the final rule will 

come from reducing the number of 

mechanical employees who have a 

substance use disorder (SUD). FRA has 

determined that testing programs 

provide a deterrent effect to the misuse 

of alcohol and use of illicit drugs. This 

deterrence will reduce the number of 

existing mechanical employees with an 

SUD. Employee SUDs have an array of 

associated costs, including lost 

productivity, absenteeism, low morale, 

increased illness, and accidents. The 

deterrent effect of testing will induce 

mechanical employees with an SUD to 

modify their behavior with regard to the 

misuse of alcohol and/or use of illicit 

drugs. Pre-employment drug testing will 

prevent individuals with SUDs from 

being hired as mechanical employees. 

Random testing and reasonable cause/ 

suspicion testing will allow railroads to 

identify mechanical employees with 

SUDs so that they can address those 

safety issues through rehabilitation or 

termination of employment. 

As shown in the following table, over 

a 10-year period of analysis, the final 

rule will result in total benefits of $41.0 

million (PV 7%). 

TOTAL 10-YEAR BENEFITS

Category 

Total benefit, 

7 percent 

($) 

Total benefit, 

3 percent 

($) 

Annualized 

benefit, 

7 percent 

($) 

Annualized 

benefit, 

3 percent 

($) 

Deterrent Effect ................................................................................................ 37,732,478 44,113,296 5,372,256 5,171,424 

Pre-Employment .............................................................................................. 1,759,972 2,096,798 250,580 245,809 

Random Testing .............................................................................................. 1,251,224 1,432,169 178,146 167,894 

Reasonable Cause and Reasonable Suspicion .............................................. 209,520 249,619 29,831 29,263 

Total .......................................................................................................... 40,953,195 47,891,881 5,830,814 5,614,390 


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5 86 FR 1419. 

6 489 U.S. 602 (1989). 

7 727 F. Supp. 648 (D.D.C. 1989). 

8 53 FR 47064, Nov. 21, 1988. 

9 56 FR 31034, July 8, 1991. 

II. Discussion of General Comments 

and Conclusions 

FRA received comments from 12 

individuals and 4 organizations in 

response to the NPRM. While FRA has 

considered all of the comments 

submitted, FRA is not identifying 

comments from individuals in the 

discussion below as they were generally 

supportive of the rule or raised 

unrelated issues outside of its scope 

such as the opioid epidemic and 

marijuana legalization. 

The American Public Transportation 

Association (APTA), the National 

Transportation Safety Board (NTSB), 

and in a joint submission, the 

Association of American Railroads 

(AAR) and the American Short Line and 

Regional Railroad Association 

(ASLRRA), submitted comments on the 

NPRM. Rail labor did not comment on 

FRA’s proposal. 

A. FRA’s Proposed Mechanical 

Employee Definition 

1. Summary 

A common thread among the railroad 

commenters was that FRA should 

expand its proposed MECH employee 

definition to include all mechanical 

department employees, without 

qualifications or limitations on the 

functions or duties these employees 

perform. APTA supported the addition 

of employees who repair, service, and 

maintain railroad rolling equipment, 

while the NTSB reiterated Safety 

Recommendation R–08–7, which 

advocates coverage of all employees 

who perform safety-sensitive functions, 

as defined in § 209.303. FRA will 

address the APTA and NTSB comments 

below. 

AAR/ASLRRA asserted that FRA 

should include all employees who 

perform mechanical duties involving 

railroad rolling equipment in the 

definition of MECH employee, stating 

that other FRA safety regulations, such 

as training standards (49 CFR part 243) 

and blue signal protection (49 CFR part 

218), define mechanical employees to 

include those who perform repair, 

service, and maintenance functions. 

AAR had submitted a petition for 

rulemaking requesting part 219 coverage 

of mechanical employees in 2018.5

AAR/ASLRRA also stated that 

employees who perform repair, service, 

and maintenance functions have the 

same risk exposure as employees who 

inspect and test rolling equipment, as 

they also work on, under or between 

rolling equipment. Moreover, employees 

who fuel locomotives, replenish engine 

oils and water, clean and/or supply 

locomotives, check car lading, and load/ 

unload freight cars, perform work with 

and around railroad rolling equipment. 

According to AAR/ASLRRA, both 

groups are subject to personal injury if 

impaired while on-duty, and have the 

potential to cause safety-related 

accidents and incidents. 

Finally, while laborers and hostlers 

who operate locomotives are already 

regulated employees under part 219, 

AAR/ASLRRA suggested that FRA 

consider them MECH employees even if 

railroads later decide to remove their 

locomotive operation duties, because 

they would continue to be exposed to 

the risks of working with and around 

rolling stock. 

FRA is not persuaded that this rule 

should anticipate speculative railroad 

work policies. And, as discussed further 

below, although the purpose of part 219 

in general, and random testing in 

particular, is to encourage safety by 

deterring workplace substance abuse, it 

is not an employee safety rule. 

Moreover, if FRA were to include 

every employee who performs 

mechanical activities without qualifying 

distinctions, part 219 would cover 

employees whose tasks are too 

attenuated from rail safety to constitute 

a direct risk, such as employees who 

fuel, clean, and supply locomotives, or 

retrieve and fulfill parts orders. As 

discussed below, FRA has both 4th 

Amendment and programmatic 

concerns about subjecting these 

employees to random testing. 

2. Fourth Amendment Implications 

In Skinner v. Railway Labor 

Executives’ Association,6 the Supreme 

Court held that the collection and 

analysis of biological samples for FRA 

mandated or authorized drug and 

alcohol tests are 4th Amendment 

searches. The Court, in upholding FRA 

PAT and reasonable suspicion testing, 

found both searches reasonable because 

FRA’s compelling interest in rail safety 

outweighed the privacy interests of 

railroad employees performing safetysensitive tasks. 

Although Skinner did not address the 

Constitutionality of random testing, 

several months later, a decision by the 

U.S. District Court for the District of 

Columbia reinforced that a direct safety 

nexus was crucial to sustain the 

workplace testing of employees. In 

Transportation Institute, et al. v. United 

States Coast Guard, et al.,7 the Court 

enjoined implementation of the random 

testing part of a U.S. Coast Guard final 

rule 8 that established its workplace 

testing program. The Coast Guard had 

required, with limited exceptions, all 

crewmembers serving on board a 

commercial vessel to be subject to 

random testing, to include not only 

those employees whose ordinary duties 

directly affected the safety of vessel 

navigation and operations, but also any 

who could be assigned safety-critical 

tasks in an emergency. In holding the 

program was over-inclusive and 

violative of the 4th Amendment, the 

Court found that the Coast Guard had 

impermissibly covered maintainers, 

cooks, messmen, and other employees 

whose tasks were insufficiently tied to 

safety to justify their inclusion in 

random testing. The Coast Guard, in lieu 

of appealing the decision, suspended 

implementation of its random testing 

program and published another final 

rule which narrowed the focus of its 

random testing program to employees 

who performed functions directly 

affecting the safety of vessel operations 

or the emergency safety of passengers.9

Similarly, the expansion of the MECH 

employee definition to include all 

employees who perform mechanical 

activities would add mechanical 

department employees who, as 

examples, fuel, clean, and supply 

locomotives, or retrieve and fulfill parts 

orders, as noted above. The addition of 

these employees, and others who 

perform mechanical activities that do 

not directly affect safety, would 

impermissibly broaden the scope of part 

219 beyond the workplace testing limits 

set by these decisions. 

3. Decrease in Random Testing 

Deterrence 

The inclusion of employees who 

repair, service, or maintain rail rolling 

stock would lessen the impact of 

random testing, FRA’s strongest 

deterrence tool against railroad 

workplace substance abuse. The FRA 

random drug positive rate has declined 

from a high of 0.94% in 2004 to 0.51% 

in 2020, even with the addition of 

maintenance-of-way (MOW) activities to 

regulated service in 2017 and synthetic 

opioid pain medications to the testing 

panel in 2018. FRA has consistently 

refined its random testing pool design 

requirements to improve the probability 

of a railroad selecting and testing 

employees who directly affect safety. 

For example, a railroad must 

periodically review its random testing 

pools to detect and remove employees 

who perform regulated service on a de 

minimis (less than quarterly) basis. In 


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5722 Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 

10 81 FR 37894, June 10, 2016. 11 81 FR 47894. 

12https://data.ntsb.gov/carol-main-public/srdetails/R-08-007. 

13https://www.ntsb.gov/safety/safety-recs/ 

recletters/R08_05_07.pdf. 

14https://www.ntsb.gov/investigations/ 

AccidentReports/Pages/RAR0801.aspx. 

15 79 FR 43830 (July 28, 2014), 81 FR 37894 (June 

10, 2016). 

its final rule adding MOW employees to 

part 219 coverage,10 FRA specified pool 

size minimums and other requirements 

to improve the efficacy of random 

testing. 

Adoption of the commenters’ 

requested definition would add 

thousands of mechanical department 

employees, such as locomotive servicing 

employees and shop laborers, who 

perform functions only tangentially 

related to rail safety. The inclusion of 

these employees would ‘‘dilute’’ 

mechanical employee pools by adding 

random testing selections that would 

displace those of employees who 

directly impact rail safety. 

4. Consistency With the SUPPORT Act 

AAR/ASLRRA, APTA, and NTSB 

asserted that FRA’s proposed definition, 

by covering some, but not all, 

mechanical department employees was 

inconsistent with section 8102 of the 

Act. FRA notes, however, that as a 

corollary to section 8102(a)’s mandate to 

cover MECH employees, section 8102(b) 

authorized FRA to define mechanical 

activities. Had Congress intended FRA 

to cover mechanical department 

employees without restrictions, the Act 

would not have qualified section 

8102(a)’s mandate with section 

8102(b)’s direction for FRA to 

determine, and thus limit, which 

functions constitute mechanical 

activities for purposes of part 219 

coverage. Under the Act’s own terms, 

the final rule complies with both 

subsections of section 8102. 

5. Consistency With the MOW 

Employee Definition 

APTA suggested an alternate 

definition, under which a MECH 

employee would be ‘‘[a]ny employee of 

a railroad whose duties include 

inspection, testing, maintenance or 

repair of railroad rolling equipment or 

its components.’’ As explanation, APTA 

stated that: This language would make 

FRA’s MECH and MOW employee 

definitions more consistent; substituting 

‘‘whose duties include’’ for ‘‘performs’’ 

would remove the need to track 

employees who perform tests and 

inspections for purposes of determining 

random testing pool inclusion; and poor 

performance of maintenance and 

repairs, which it asserts are safetycritical tasks, could go undetected 

during daily and periodic inspections 

and tests. AAR/ASLRRA also 

commented that FRA’s proposed 

treatment of MECH employees differed 

from its treatment of MOW employees 

who, as ‘‘roadway workers,’’ are defined 

in § 214.7 to include employees who 

maintain or repair railroad track and 

other structures. 

Yet, the Act neither addresses, nor 

requires, consistency between part 219’s 

MECH employee and MOW employee 

definitions. In its final rule 

incorporating MOW employees,11 FRA 

adopted the roadway worker definition 

in § 214.7 of its Railroad Workplace 

Safety regulation, Roadway Worker 

Protection (subpart C of 49 CFR part 

214). FRA adopted this longstanding 

definition because the railroad industry 

was already familiar with its meaning 

and application. In contrast, there is no 

pre-existing definition of MECH 

employee, and FRA is authorized to 

define the term as it deems appropriate. 

As FRA states in § 219.1, the purpose 

of its alcohol and drug regulation is to 

prevent accidents and casualties related 

to substance abuse in rail operations. In 

§ 214.301, however, FRA states that the 

purpose of its roadway worker 

protection regulation is, as implied by 

its subpart’s heading, to prevent moving 

equipment-related accidents and 

casualties to roadway workers. Part 219, 

like all workplace testing rules, focuses 

on deterrence and detection of on-duty 

use and impairment, to improve the 

safety of rail employees generally, while 

part 214 focuses on operating rules to 

improve the safety of roadway 

employees specifically. FRA’s 

mechanical regulations (e.g., part 215) 

set minimum Federal safety standards 

for rail equipment. While these rules 

specify equipment requirements that 

promote a safe working environment for 

all employees, their stated purposes do 

not specifically include MECH 

employee safety. 

FRA is expanding the scope of part 

219, a workplace safety rule, to include 

MECH employees who work with 

railroad equipment subject to numerous 

workplace safety rules. Subpart C of part 

214’s stated purpose, to protect the 

safety of an individual category of 

employees, is unique to roadway 

workers/MOW employees. Aside from 

their consecutive incorporation as noncovered service employee categories, 

there is no equivalency between MOW 

and MECH employees, and no reason to 

make their definitions consistent. In 

addition, part 214 and FRA’s 

mechanical regulations do not have the 

burden of balancing 4th Amendment 

rights and safety that must be 

considered when defining a regulated 

service function in part 219. 

6. Treatment of Employees Subject to 

Part 209 

While pleased that FRA was 

proposing to expand the scope of part 

219, the NTSB expressed 

disappointment that FRA’s proposal 

would not satisfy Safety 

Recommendation R–08–7,12 which 

recommends the inclusion not only of 

employees who repair or maintain 

railroad rolling equipment, but all 

railroad employees and agents who 

perform the training, testing, and 

supervision roles described in § 209.303 

(subpart D of 49 CFR part 209, Railroad 

Safety Enforcement Procedures). 

However, the NTSB acknowledged that 

it may be appropriate, on a limited 

basis, to exempt certain employees who 

perform only specific minor repair or 

maintenance tasks from the MECH 

employee definition in the final rule, 

following the example of paragraph 

(1)(ii) of the proposed MECH employee 

definition. 

As further background, on April 10, 

2008, the NTSB issued Safety 

Recommendations R–08–5 through R– 

08–7 to FRA.13 At that time, part 219 

coverage extended only to covered 

service employees. All three 

recommendations stemmed from a 

January 9, 2007, Massachusetts Bay 

Transportation Authority accident, 

which killed two MOW employees and 

seriously injured two others. (FRA 

discussed this accident and its 

corresponding NTSB accident report 

(NTSB RAR–08/01 14) in its MOW 

rulemaking.15) The NTSB stated: 

The FRA data from postaccident alcohol 

and drug testing indicate that maintenanceof-way employees are about three times more 

likely to have positive test results than are 

covered employees (19.23 percent vs. 6.56 

percent). This difference is attributable to the 

deterrent value of the FRA’s random testing 

program to which covered employees are 

subject but maintenance-of-way employees 

are not. The Safety Board concludes that the 

FRA’s random alcohol and drug testing 

program has been a deterrent to alcohol and 

drug use by covered employees, as evidenced 

by their significantly lower positive rate in 

postaccident tests than maintenance-of-way 

employees who are not subject to random 

testing. Limiting the applicability of alcohol 

and drug testing to only ‘‘hours-of-service’’ 

employees restricts the potential 

effectiveness of the FRA rule to control 

alcohol and drug use. All employees and 

agents in safety-sensitive positions should be 


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Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 5723 

16 54 FR 48924, Oct. 18, 1989, implementating in 

part the Rail Safety Improvement Act of 1988, 

Public Law 100–342 (June 22, 1988). 

subject to all the provisions of 49 Code of 

Federal Regulations (CFR) Part 219. 

Therefore, the Safety Board recommends that 

the FRA revise the definition of ‘‘covered 

employee’’ under 49 CFR part 219 for 

purposes of Congressionally mandated 

alcohol and controlled substances testing 

programs to encompass all employees and 

agents performing safety-sensitive functions, 

as described in 49 CFR 209.301 and 209.303. 

In § 209.303, FRA identified the 

individuals in the rail industry who 

would be subject to disqualification by 

specifying the functions these 

individuals performed.16 While 

§ 209.303 includes individuals who 

train and test employees, individuals 

who conduct FRA-mandated training 

and testing may do so without 

approaching railroad track, equipment, 

or roadbed. Moreover, part 209 is a rule 

of general applicability, which lists the 

individuals subject to FRA’s individual 

liability, disqualification, and subpoena 

powers. The NTSB does not provide a 

direct correlation between the functions 

identified for purposes of 

disqualification and individual liability 

and the functions identified for 

purposes of random alcohol or drug 

testing. Without further justification 

from the NTSB, it is unclear how the 

performance of the excluded § 209.303 

functions impacts rail safety, or why 

FRA should include all employees 

subject to § 209.303 under part 219. 

APTA also recommended that FRA 

include foremen, general foremen, 

supervisors, general supervisors, and 

others who directly supervise or oversee 

employees performing mechanical 

activities. Because FRA’s MECH 

employee definition determines 

coverage by function, not title, these 

employees would be performing 

regulated service if they sign-off on 

inspections, or test safety-critical 

systems or components. 

B. Pre-Employment Testing 

APTA requested that FRA exempt 

MECH employees from the required 

two-year retrospective alcohol and drug 

records check for new and first-time 

transfers in § 40.25 of DOT’s Procedures 

for Transportation Workplace Drug and 

Alcohol Testing Programs (49 CFR part 

40, cross-referenced in part 219 in 

§ 219.701(a)). Section 40.25 requires an 

employer to check an employee’s 

previous two years of DOT drug and 

alcohol testing results within 30 days of 

when the employee performs safetysensitive duties for that employer for the 

first time. FRA cannot grant an 

exemption from § 40.25 for MECH 

employees, which APTA acknowledged 

is a requirement set by DOT’s Office of 

Drug and Alcohol Policy and 

Compliance (ODAPC). Section 40.5 

authorizes only ODAPC and the DOT 

Office of General Counsel to issue 

official interpretations of part 40. 

FRA is, however, exempting current 

MECH employees from pre-employment 

drug testing. Only MECH employees 

hired by a railroad, or a railroad 

contractor or subcontractor, after the 

effective date of this final rule will be 

required to have a negative DOT preemployment drug test before performing 

regulated service for the first time. As 

with MOW employees, this exemption 

applies only so long as the MECH 

employee continues to perform work for 

the same DOT-regulated employer. An 

initially exempted MECH employee 

must have a negative DOT preemployment drug test result before 

performing regulated service for a 

different or additional DOT-regulated 

employer. 

Moreover, consistent with part 219’s 

treatment of MOW employees, FRA is 

not requiring a contractor or 

subcontractor employee who performs 

MECH activities for multiple railroads 

to have a negative Federal preemployment drug test result for each 

railroad, provided that the contractor or 

subcontractor employee has a negative 

Federal pre-employment drug test result 

on file with the contractor who is his or 

her direct employer. 

C. Initial Mechanical Employee Annual 

Random Testing Rates 

FRA is setting the initial minimum 

annual random testing rates for MECH 

employees at 50 percent for drugs and 

25 percent for alcohol, as it did for 

MOW and covered service employees 

when they first became subject to FRA 

testing. See § 219.625(c). FRA will 

create an independent Management 

Information System (MIS) database of 

industry-wide MECH employee positive 

and violation rates to set future 

minimum annual random testing rates, 

and will maintain its initial random 

testing rates for MECH employees until 

it has received two complete years of 

MIS data for this new category. An 

employer who is required to submit an 

annual MIS report may place its MECH 

employees in a commingled pool so 

long as the employer reports its results 

under the correct safety-sensitive 

category. 

D. Post-Accident Toxicological Testing 

In 2019, FRA published on its website 

a PAT testing application (app) which 

can be downloaded for free in both iOS 

and Android formats. The app contains 

guidance, among other resources, for 

determining whether an accident or 

incident qualifies as a PAT testing event 

and, if it does, which employees should 

be tested. FRA had proposed to remove 

appendix B, which designates its PAT 

testing laboratory, and appendix C, 

which contains its PAT specimen 

collection procedures, from part 219, in 

favor of making the information 

contained in both appendices kept in 

traditional hardcopy form in the actual 

testing kits and available on its app, 

where PAT guidance is already 

available. 

AAR/ASLRRA asserted that appendix 

C should remain in part 219 because 

railroads are responsible for compliance 

with its instructions and procedures. 

FRA notes that a railroad representative 

is unlikely to consult appendix C until 

a PAT testing event has occurred, and 

PAT testing kits will, as always, contain 

up-to-date and accurate reference copies 

of information otherwise contained in 

both appendices. Furthermore, an onsite supervisor conducting a preliminary 

field accident investigation can readily 

access the information contained in 

(former) appendix C on FRA’s app, 

which is intended to be a one-stop 

resource for information on PAT 

determinations and collections. 

AAR/ASLRRA also asked how FRA 

will notify railroads of future changes to 

the information otherwise contained in 

(former) appendices B and C. FRA will 

announce these changes on its drug and 

alcohol page, at https://

railroads.dot.gov/divisions/ 

partnerships-programs/drug-andalcohol, and in its app. In addition, FRA 

maintains an individual inventory 

number for each PAT testing box it has 

issued, and will distribute updates to 

box holders (primarily railroad DERs 

(Designated Employee Representatives)) 

as necessary as it has done in the past. 

For example, all box holders will 

automatically receive new mailing 

labels upon FRA’s selection of a 

different contracted PAT testing 

laboratory. 

AAR/ASLRRA requested that FRA 

add PAT testing protocols specifically to 

address the PAT testing of MECH 

employees, noting that unlike other 

regulated employees who have real-time 

involvement with railroad accidents, 

MECH employees frequently perform 

their functions well in advance of a 

qualifying event. This is unnecessary. 

FRA’s requirements for PAT drug 

testing to be conducted within four 

hours of an event, and no later than 24 

hours after its occurrence, apply to all 

PAT testing events. If a railroad is 

unable to determine that a MECH 

employee may have contributed to a 


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

PAT testing event’s cause or severity 

within those time limits, the railroad is 

prohibited from PAT testing the 

employee involved. FRA is not revising 

its PAT testing protocols. Further, as 

discussed below, the tracing back of 

repair and servicing records, beyond the 

mechanical test or inspection point, 

would make PAT testing of the 

employees who performed these 

functions unlikely. 

E. Effective Date of Final Rule and 

Timetable for Submitting Random 

Testing Plans for MECH Employees 

Noting that FRA had allowed 12 

months for implementation of the MOW 

rule, APTA requested a minimum 

period of 18–24 months, asserting that 

due to the coronavirus pandemic, 

railroads need more time to meet the 

hiring needs required to staff the 

addition of MECH employees to random 

testing. FRA is not persuaded by this 

argument. Most railroads are required to 

conduct random testing. A railroad that 

does so will already have its selection 

method, DERs, service agents, and other 

program requirements and structures in 

place, so that the addition of one or 

more random testing pools should not 

require extensive hiring. 

AAR/ASLRRA requested a 90-day 

implementation period, should FRA 

require railroads to submit revised or 

new random testing plans 30 days 

before the rule’s effective date. FRA is 

meeting this requested timetable by 

making the rule effective 30 days after 

its publication, and then requiring 

random testing plan submissions to be 

submitted to FRA within 60 days after 

the rule becomes effective, instead of 30 

days before, as proposed. Railroads may 

also submit random testing plans to 

FRA as soon as the rule becomes 

effective. 

III. Section-by-Section Analysis 

Unless discussed below, FRA is 

adopting, as proposed, each provision of 

the NPRM for which it received no 

comment. 

Authority 

FRA is amending the authority 

citation for part 219 to add a reference 

to section 8102 of the SUPPORT Act. 

Subpart A—General 

Section 219.3 Application 

Paragraph (b) 

FRA received no comments on its 

proposal to remove and reserve 

paragraph (b) in its entirety, and is 

adopting this amendment as proposed. 

Former paragraph (b)(1) is redundant 

with § 219.800(a), and former 

paragraphs (b)(2) and (3) can now be 

found in new paragraph (g) of § 219.800. 

Paragraph (c) 

FRA received no comments on its 

proposal to except small railroads, 

defined as railroads with 15 or fewer 

covered employees with minimal joint 

operations, from the reasonable cause, 

random testing, and employee referral 

requirements found respectively in 

subparts E, G, and K. FRA will continue 

to count only covered employees, and 

not MECH or MOW employees, to 

determine whether a railroad is a small 

railroad for purposes of this exception. 

FRA will also treat MECH employees 

the same as MOW employees for 

purposes of contractor compliance. As 

with MOW employees, a contractor’s 

level of part 219 compliance will be 

determined by the size of the railroad(s) 

for which it performs MECH activities, 

not its size as a contractor. A contractor 

who performs MECH activities 

exclusively for small railroads (15 or 

fewer covered employees) that are 

excepted from full compliance with part 

219 is also excepted from full 

compliance. Whereas, a contractor who 

performs MECH activities for at least 

one railroad that is required to be in full 

compliance with part 219 must also be 

in full compliance with part 219. 

Section 219.5 Definitions 

Category of Regulated Employee 

As amended, this definition includes 

the categories of covered service, MOW, 

and MECH employees (as defined in 

this section). For the purposes of 

determining random testing rates under 

§ 219.625, if an individual performs 

covered service, maintenance-of-way 

activities, and/or mechanical activities, 

he or she belongs in the category of 

regulated employee that corresponds 

with the majority of the employee’s 

regulated service. 

Employee 

FRA is amending this definition to 

include any individual who performs 

activities for a subcontractor to a 

railroad. 

Mechanical or MECH Employee 

For the reasons stated above, FRA is 

adopting its proposal to define a MECH 

employee as any employee who, on 

behalf of a railroad, performs 

mechanical tests or inspections required 

by parts 215, 221, 229, 230, 232, or 238 

of this chapter on railroad rolling 

equipment, or its components. In 

addition, the term would also include 

any such employee who performs 

mechanical tests or inspections required 

by the Texas Central Railroad HighSpeed Rail Safety Standards (49 CFR 

part 299). These employees working on 

behalf of the Texas Central Railroad may 

otherwise be inadvertently excluded 

from the application of this rule because 

part 299 is a rule of particular 

applicability with its own requirements 

for mechanical tests and inspections.17

No such exclusion was intended. 

Regulated Employee 

FRA is expanding this definition to 

include a MECH employee (as defined 

in this section) who performs regulated 

service (as defined in this section). 

Regulated Service 

FRA is expanding this definition to 

include activities performed by a MECH 

employee (as defined in this section). 

Rolling Equipment 

FRA is defining rolling equipment as 

locomotives, railroad cars, and one or 

more locomotives coupled to one or 

more cars, based on the definition of 

rolling equipment provided in FRA’s 

Railroad Operating Practices regulation 

(49 CFR 218.5). 

Side Collision 

The term ‘‘side collision’’ was 

formerly defined to mean ‘‘a collision at 

a turnout where one consist strikes the 

side of another consist.’’ FRA had 

proposed to clarify this term to include 

collisions at switches or ‘‘highway-rail 

grade crossings.’’ In this final rule, FRA 

is substituting ‘‘railroad crossings at 

grade’’ for its proposed addition of 

‘‘highway-rail grade crossings.’’ This 

change more appropriately clarifies the 

intent to address side collisions between 

train consists, not those that occur at 

highway-rail grade crossings between 

trains and highway vehicles. 

Section 219.10 Penalties 

As proposed, FRA is substituting the 

term ‘‘regulated employee’’ for 

‘‘employee,’’ to clarify that the 

requirements of this section apply to 

MOW, MECH, and covered employees. 

Section 219.11 General Conditions for 

Chemical Tests 

Paragraph (g) 

FRA is removing references to 

appendices B and C. 

Section 219.23 Railroad Policies 

This section sets forth requirements 

for a railroad’s Federal alcohol and drug 

testing policy, including requirements 

for railroads to provide employees 

educational materials explaining the 

requirements of this part, as well as the 


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Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 5725 

railroad’s policies and procedures with 

respect to meeting those requirements. 

Paragraph (a) 

FRA is substituting the term 

‘‘regulated employee’’ for ‘‘employee,’’ 

to clarify that the requirements of this 

section apply to MOW, MECH, and 

covered employees. 

Paragraph (c) 

FRA is revising paragraph (c)(2) to 

require railroads to make hard copies of 

the required educational materials in 

this section available to each MECH 

employee for a minimum of three years 

after the effective date of the final rule. 

When FRA added MOW employees to 

the scope of part 219, it required 

railroads to make the same hard copy 

distribution to those employees for the 

same three-year period to introduce 

them to part 219. Because that threeyear period for MOW employees has 

ended, existing paragraph (c)(2) has 

become unnecessary. FRA is therefore 

revising paragraph (c)(2) to address the 

addition of MECH employees and 

remove the reference to MOW 

employees. 

Paragraph (d)(2) 

FRA is amending this paragraph to 

specify that MECH employees as subject 

to the provisions in this part. 

Subpart C—Post-Accident Toxicological 

Testing 

As discussed above, MECH employees 

are subject to the same PAT testing 

requirements as covered service and 

MOW employees. A MECH employee 

must be PAT tested if a railroad 

representative can immediately 

determine, based on the best 

information available at the time of the 

decision, that the employee’s improper 

or omitted mechanical test or inspection 

may have contributed to the cause or 

severity of a PAT-qualifying accident or 

incident. FRA is not revising its PAT 

testing protocols. The tracing back of 

repair and servicing records, beyond the 

mechanical test or inspection point, 

would make PAT testing of the 

employees who performed these 

functions unlikely, since PAT drug 

testing must be conducted within four 

hours of an event, and no later than 24 

hours after its occurrence. The on-duty 

and recall provisions for MECH 

employees are the same as for other 

employee categories. 

As proposed, FRA is removing 

appendices B and C. The name and 

mailing address of FRA’s designated 

PAT laboratory (former appendix B) and 

instructions for toxicological specimen 

collection (former appendix C) will be 

made available both in FRA’s PAT 

testing kits and in its PAT testing app. 

Section 219.203 Responsibilities of 

Railroads and Employees 

Paragraph (a) 

FRA is removing the reference to 

appendix C in this paragraph, consistent 

with the removal of appendix C from 

this part. 

Paragraph (d) 

FRA is eliminating the requirement 

for a railroad to submit a written 

explanation if a specimen collection is 

delayed for more than four hours after 

the occurrence of a PAT event. 

However, under § 219.209(b), a railroad 

must still provide immediate telephonic 

notification and submit a written 

follow-up report via email when it is 

unable to collect and provide PAT 

specimens to FRA. 

Section 219.205 Specimen Collection 

and Handling 

FRA is removing the references to 

appendices B and C in this section, 

consistent with the removal of these 

appendices from this part. 

Section 219.206 FRA Access to Breath 

Test Results 

FRA is removing the reference to 

appendix C, consistent with the removal 

of appendix C from this part. 

Section 219.207 Fatality 

This section contains the 

requirements for PAT testing in the case 

of an employee fatality in an accident or 

incident described in § 219.101. 

Paragraph (c) 

FRA is removing ‘‘Aviation Medical 

Examiners’’ (AMEs) from the list of 

professionals authorized to collect postmortem body fluid and tissue samples 

from a deceased employee for FRA PAT 

testing. 

Paragraph (d) 

FRA is removing the reference to 

appendix C, consistent with the removal 

of appendix C from this part. 

Section 219.211 Analysis and FollowUp 

As proposed in the NPRM, FRA is 

amending this section to simplify and 

clarify its language. Additionally, FRA 

is requiring the submission of reports 

and requests under this section to be 

sent to FRA solely by email. Although 

FRA had proposed to continue to allow 

such reports and requests to be 

submitted in hard copy, while 

additionally allowing the flexibility of 

email submissions, the onset of the 

coronavirus disease 2019 (COVID–19) 

pandemic has led both FRA and its 

stakeholders to increasingly rely on 

electronic communications and 

submissions, which has become even 

clearer since issuance of the NPRM. 

Therefore, requiring all submissions to 

be made electronically under this 

section effectively codifies existing 

practice. No substantive changes are 

intended other than the amendments 

discussed below. 

Paragraph (a) 

FRA is removing the reference to 

appendix B, consistent with the removal 

of appendix B from this part. 

Paragraph (c) 

As noted, FRA is requiring an MRO to 

submit a report by email to an email box 

specifically set up for receipt of MRO 

reports (FRA-MROletters.email@

dot.gov). 

Paragraph (e) 

FRA is amending this paragraph to 

adopt its proposed clarifications and to 

require that an employee’s response to 

the employee’s PAT results be sent by 

email within 45 days of receipt to FRADrugAlcoholProgram.email@dot.gov. 

Paragraph (i) 

FRA is amending this paragraph to 

adopt its proposed clarifications and 

provide that an employee’s request for 

a retest of PAT test specimens must be 

submitted by email to FRADrugAlcoholProgram.email@dot.gov. 

The employee’s request must still be 

submitted within the 60-day time limit 

and specify the railroad, accident date, 

and location. 

Subpart E—Reasonable Cause Testing 

Section 219.403 Requirements for 

Reasonable Cause Testing 

FRA is revising the introductory 

paragraph of this section to clarify that 

a railroad that elects to conduct 

reasonable cause testing under FRA 

authority may only use the rule 

violations listed in paragraph (b) as 

bases for testing. 

Paragraph (b) 

FRA is removing ‘‘or other errors’’ 

from this paragraph to clarify that a 

railroad that chooses to conduct 

reasonable cause testing for rule 

violations under FRA authority may do 

so only for a rule violation specified in 

paragraph (b). FRA is also clarifying the 

intent of the proposed language of rule 

violation § 219.403(b)(20), for ease of 

understanding. No substantive changes 

are intended. 


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18 81 FR 37911 (June 10, 2016). 

19A Model Railroad Contractor Compliance Plan 

is available on the FRA Drug and Alcohol Program 

web page at https://railroads.dot.gov/divisions/ 

partnerships-programs/drug-and-alcohol. 

As proposed, FRA is adding 

reasonable cause testing bases 

specifically applicable to MECH 

employee functions. FRA authorizes, 

but does not require, reasonable cause 

testing, and received no comments in 

response to these additional rule 

violations, which involve common 

mechanical activities such as setting 

derails, performing brake tests, and 

initiating appropriate blue flag 

protection, as well as a rule violation for 

positive train control (PTC) enforcement 

to address PTC requirements that 

became applicable after the publication 

of the MOW rule. 

Subpart F—Pre-Employment Tests 

Section 219.501 Pre-employment Drug 

Testing 

Paragraph (e) 

FRA is clarifying that: (1) Covered 

employees performing regulated service 

for small railroads are exempted from 

pre-employment drug testing only if 

they were performing regulated service 

for the railroad before June 12, 2017; 

and (2) MOW employees are exempted 

from pre-employment drug testing only 

if they were performing ‘‘regulated 

service’’ for a railroad before June 12, 

2017, and not just ‘‘duties’’ that may not 

have qualified as ‘‘regulated service.’’ 

Both clarifying amendments are 

consistent with discussion in the MOW 

final rule preamble, which explained 

that FRA was exempting employees 

who, before June 12, 2017, were 

performing MOW activities for a 

railroad or covered service for a small 

railroad.18

FRA is also exempting from preemployment drug testing MECH 

employees who were performing 

mechanical activities for a railroad, or 

contractor or subcontractor of a railroad, 

before March 4, 2022. 

An exempted employee must have a 

negative pre-employment drug test 

before performing regulated service for 

a new or additional employing railroad, 

or contractor or subcontractor of a 

railroad, on or after June 12, 2017, for 

exempted covered employees and 

maintenance-of-way employees, and on 

or after March 4, 2022 for MECH 

employees. 

Paragraph (f) 

To clarify how the proposed revisions 

in this section fit with the existing 

requirements of part 40, as discussed 

above, this new paragraph specifies that 

§ 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 preemployment drug testing. To comply 

with § 40.25, a railroad must conduct a 

drug and alcohol records check of a 

previously exempted MOW or MECH 

employee’s previous two years of 

employment within 30 days of when the 

employee performs regulated service for 

the first time. 

Subpart G—Random Alcohol and Drug 

Testing Programs 

Section 219.605 Submission and 

Approval of Random Testing Plans 

Paragraph (a) 

Similar to the revisions made to the 

filing requirements of § 219.211, and to 

effectively codify current practice, this 

final rule revises this section to require 

a railroad to submit its random testing 

plan to FRA by email to FRADrugAlcoholProgram.email@dot.gov. 

The plan must include the name of the 

railroad or contractor in the subject line. 

Paragraph (e) 

FRA is amending this paragraph to 

subject an employee who performs 

MECH activities to the same random 

testing requirements as one who 

performs covered service or MOW 

activities. As discussed under section 

II.E. above, AAR/ASLRRA requested a 

90-day implementation period. FRA is 

meeting this requested timetable by 

making the rule effective 30 days after 

its publication, and then requiring 

random testing plan submissions to be 

submitted to FRA within 60 days after 

the rule becomes effective. Railroads 

may submit random testing plans to 

FRA as soon as the rule becomes 

effective. 

Each railroad or contractor or 

subcontractor to a railroad must submit 

for FRA approval or acceptance a 

random testing plan ensuring that each 

MECH employee reasonably anticipates 

that he or she is subject to random 

testing without advance warning each 

time the employee is on-duty and 

subject to performing MECH activities. 

A railroad can comply with its 

responsibility for ensuring that its 

MECH contractor and subcontractor 

employees are subject to random testing 

by including these contractor and 

subcontractor employees in its own 

random testing plan, or by requiring 

contractors and subcontractors to 

submit their own random testing plans 

to FRA for acceptance. FRA has 

developed model random testing plans 

for MOW employees and contractors 

that could also serve as templates for 

MECH employees and contractors.19 In 

either case, contractors and 

subcontractors are also responsible for 

ensuring that their employees who 

perform MECH activities comply with 

the rule’s random testing requirements. 

Section 219.607 Requirements for 

Random Testing Plans 

Paragraph (c) 

FRA is revising paragraph (c) of this 

section to reflect the application of 

railroad random testing plans to MECH 

employees, and to make other, minor 

clarifications. 

Section 219.615 Random Testing 

Collections 

Paragraph (e) 

FRA is revising paragraph (e)(3) to 

state that a railroad must inform ‘‘each 

regulated employee’’ that he or she has 

been selected for random testing at the 

time the employee is notified—rather 

than inform ‘‘an regulated employee.’’ 

FRA does not intend this as a 

substantive change but merely as a 

clarification and grammatical correction 

of an existing requirement. 

Section 219.617 Participation in 

Random Alcohol and Drug Testing 

Paragraph (a) 

FRA is substituting the term 

‘‘regulated employee’’ for ‘‘employee’’ 

in paragraph (a)(3), to clarify that the 

requirements of this section apply to 

MOW, MECH, and covered employees. 

Section 219.625 FRA Administrator’s 

Determination of Random Alcohol and 

Drug Testing Rates 

Paragraph (c)(1) 

As stated above, an employee who 

performs MECH activities is subject to 

the same random testing requirements 

as one who performs covered service. 

Formerly, this paragraph authorized the 

Administrator to amend the minimum 

annual random testing rates, which are 

initially set at 50 percent for drugs and 

25 percent for alcohol, for a new 

category of regulated employee after the 

compilation of 18 months of 

Management Information System (MIS) 

data. To allow sufficient time for the 

implementation of random testing by 

MECH contractors, FRA is requiring two 

consecutive, full calendar years of MIS 

data before the minimum annual 

random testing rates for this category 

may be lowered, as it did with both 

MOW and covered employees when 


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Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 5727 

20https://www.transportation.gov/sites/dot.gov/ 

files/2021-06/DOT-2100.6A-Rulemaking-andGuidance-%28003%29.pdf. 

21Public Law 115–271. 

they first became subject to random 

testing. 

Subpart I—Annual Report 

Section 219.800 Annual Reports 

Paragraph (a) 

FRA is clarifying that a railroad must 

submit summary data for its alcohol 

misuse and drug abuse programs in its 

MIS report. 

Paragraph (f) 

FRA is requiring a railroad to submit 

its annual MIS report in the appropriate 

separate sections for its covered 

employees (e.g., train, engine, signal, 

dispatch), MOW employees, and MECH 

employees. 

Paragraph (g) 

As proposed, FRA is moving 

§ 219.3(b)’s annual MIS reporting 

requirements for contractors to this 

subpart to consolidate and clarify its 

railroad and contractor MIS reporting 

requirements. 

Appendices B and C to Part 219 

As discussed above, FRA is removing 

appendices B and C to this part, because 

these appendices duplicate information 

that can be found in FRA’s PAT testing 

kits and PAT testing app. Every PAT 

testing kit includes the address of FRA’s 

PAT testing laboratory and an address 

for mailing. For ease of reference, 

standard PAT testing kits contain 

instructions for the collection of urine, 

blood and breath specimens, while 

fatality PAT testing shipping kits 

contain instructions for the post-mortem 

collection of body fluid and tissue 

specimens. 

IV. Regulatory Impact and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule is not a significant 

regulatory action within the meaning of 

Executive Order 12866 and DOT Order 

2100.6A (Rulemaking and Guidance 

Procedures).20 Details on the 10-year 

estimated costs and benefits of this rule 

can be found in the rule’s Regulatory 

Impact Analysis, which FRA has 

prepared and placed in the docket 

(docket number FRA–2019–0071). 

FRA is expanding the definition of 

regulated employee to include 

mechanical employees in part 219, as 

mandated by section 8102 of the 

SUPPORT Act.21 The final rule will 

subject mechanical employees to the 

provisions of part 219. The final rule 

will also include non-quantified 

miscellaneous amendments that will 

reduce reporting burdens, enhance a 

railroad’s authority to conduct 

reasonable cause testing, and add clarity 

to part 219. 

The final rule generates costs related 

to provisions on pre-employment, 

random testing, reasonable cause/ 

reasonable suspicion testing, and 

Government administration. As shown 

in the following table, over the 10-year 

period of analysis, the final rule will 

result in a total discounted cost of 

approximately $10.7 million (PV 7%). 

TOTAL 10-YEAR COSTS

Category 

Total cost, 

7 percent 

($) 

Total cost, 

3 percent 

($) 

Annualized 

cost, 

7 percent 

($) 

Annualized 

cost, 

3 percent 

($) 

Pre-Employment .............................................................................................. 1,621,930 1,896,210 230,926 222,294 

Random Testing .............................................................................................. 7,987,551 9,038,433 1,137,248 1,059,580 

Reasonable Cause and Reasonable Suspicion .............................................. 261,670 305,921 37,256 35,863 

Government Administrative Cost ..................................................................... 866,431 1,012,950 123,360 118,749 

Total .......................................................................................................... 10,737,582 12,253,514 1,528,790 1,436,486 

The benefits of the final rule will 

come from reducing the number of 

mechanical employees who have an 

SUD. FRA has determined that testing 

programs provide a deterrent effect to 

the misuse of alcohol and illicit drugs. 

This deterrence will reduce the number 

of existing mechanical employees with 

an SUD. Employee SUDs have an array 

of associated costs, including lost 

productivity, absenteeism, low morale, 

increased illness, and accidents. The 

deterrent effect of testing will induce 

mechanical employees with an SUD to 

modify their behavior with regard to the 

misuse of alcohol and/or use drugs. Preemployment drug testing will help 

prevent individuals with SUDs from 

being hired as mechanical employees. 

Random testing and reasonable cause/ 

suspicion testing will help railroads 

identify mechanical employees with 

SUDs so that they can mitigate those 

issues through rehabilitation or 

termination of employment. 

Over a 10-year period of analysis, this 

analysis estimates the final rule’s 

benefits by multiplying the reduction in 

the number of employee work years that 

mechanical employees with an SUD are 

employed (17,036 employee work years) 

by the annual cost of having a 

mechanical employee with an SUD 

($3,200) on the payroll. As shown in the 

following table, over a 10-year period of 

analysis, the final rule will result in 

total benefits of approximately $41.0 

million (PV 7%). 

TOTAL 10-YEAR BENEFITS

Category 

Total 

benefit, 

7 percent 

($) 

Total 

benefit, 

3 percent 

($) 

Annualized 

benefit, 

7 percent 

($) 

Annualized 

benefit, 

3 percent 

($) 

Deterrent Effect ................................................................................................ 37,732,478 44,113,296 5,372,256 5,171,424 

Pre-Employment .............................................................................................. 1,759,972 2,096,798 250,580 245,809 

Random Testing .............................................................................................. 1,251,224 1,432,169 178,146 167,894 


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22 5 U.S.C. 603(a). 23 44 U.S.C. 3501 et seq. 

TOTAL 10-YEAR BENEFITS—Continued 

Category 

Total 

benefit, 

7 percent 

($) 

Total 

benefit, 

3 percent 

($) 

Annualized 

benefit, 

7 percent 

($) 

Annualized 

benefit, 

3 percent 

($) 

Reasonable Cause and Reasonable Suspicion .............................................. 209,520 249,619 29,831 29,263 

Total .......................................................................................................... 40,953,195 47,891,881 5,830,814 5,614,390 

B. Regulatory Flexibility Act and 

Executive Order 13272; Certification 

The Regulatory Flexibility Act of 1980 

((RFA) 5 U.S.C. 601 et seq.) and 

Executive Order 13272 (67 FR 53461, 

Aug. 16, 2002) require agency review of 

proposed and final rules to assess their 

impacts on small entities. When an 

agency issues a rulemaking proposal, 

the RFA requires the agency to ‘‘prepare 

and make available for public comment 

an initial regulatory flexibility analysis’’ 

which will ‘‘describe the impact of the 

proposed rule on small entities.’’ 22

Section 605 of the RFA allows an 

agency to certify a rule, in lieu of 

preparing an analysis, if the proposed 

rulemaking is not expected to have a 

significant economic impact on a 

substantial number of small entities. 

Out of an abundance of caution, FRA 

prepared an initial regulatory flexibility 

analysis (IRFA) to accompany the 

NPRM, which noted no expected 

significant economic impact on a 

substantial number of small entities; no 

comments were received on this 

analysis. 

In this final rule, FRA is amending 

part 219 to include mechanical 

employees. Drug and alcohol testing 

will become applicable to employees 

who perform mechanical activities for 

railroads, contractors, and 

subcontractors. This will include preemployment drug, random, and 

reasonable cause/reasonable suspicion 

testing. 

The final rule will apply to all 

railroads, although not all requirements 

will be relevant to all railroads. FRA 

estimates there are 744 Class III 

railroads, of which 704 operate on the 

general system. These railroads are of 

varying size, with some belonging to 

larger holding companies. 

Part 219 excepts small railroads, 

defined as railroads with 15 or fewer 

covered employees and having minimal 

joint operations with other railroads, 

from random testing. Small railroads are 

also exempt from FRA reasonable cause 

testing. FRA is not changing this small 

railroad exception to account for 

railroads’ mechanical employees. 

The final rule will impose statutorily 

required costs related to preemployment drug testing, random 

testing, reasonable suspicion testing, 

recordkeeping, and annual report 

submission. The final rule will also 

impose discretionary costs related to 

reasonable cause testing, which FRA has 

included in its economic analysis 

supporting this rule. FRA expects that 

the costs borne by a railroad will be 

proportionate to the number of 

employees. As such, FRA expects the 

costs for small entities will be much less 

than those borne by large entities. 

As enumerated in the IRFA, the final 

rule will result in an average annual 

cost for a full compliance small railroad 

of $449 in year 1 to year 3 and $242 in 

year 4 to year 10. Partial compliance 

small railroads will have an average 

annual burden of approximately $41 as 

they will only be subject to adding preemployment testing. 

When developing the final rule, FRA 

considered the impact that the final rule 

would have on small entities. To add 

clarity and narrow the scope of those 

employees subject to the final rule, FRA 

chose a definition for ‘‘mechanical 

employees’’ that listed explicit 

exclusions. This rule will benefit small 

railroads by reducing the number of 

employees with an SUD that remain on 

the payroll. FRA estimates this final rule 

will only minimally impact small 

railroads and, overall, the net benefit 

will be positive to small railroads. 

Consistent with the findings in FRA’s 

IRFA, and the lack of any comments 

received on it, the Deputy Administrator 

of FRA hereby certifies that this final 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

C. Paperwork Reduction Act 

FRA is submitting the information 

collection requirements in this final rule 

to the Office of Management and Budget 

(OMB) for approval under the 

Paperwork Reduction Act of 1995.23

The sections that contain the new 

information collection requirements are 

duly designated and the estimated time 

to fulfill each requirement is as follows: 

CFR section 24 Respondent 

universe 

Total annual 

responses 

Average 

time per 

response 

Total annual 

burden hours 

Total annual 

dollar cost 

equivalent 25

219.4—Petition for recognition of a foreign 

railroad’s workplace testing program.

1 railroad ............... 1 petition ................ 40 hours ................ 40.00 $3,097.60 

—Comments on petitions ..................... 1 railroad ............... 2 comments + 2 

copies.

15 mins + 15 minutes.1.00 77.44 

219.7—Waivers ........................................... 734 railroads 26 ...... 3 waiver letters ...... 90 minutes ............. 4.50 348.48 

219.12(d)—RR Documentation on need to 

place employee on duty for follow-up 

tests.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

6 documents .......... 30 minutes ............. 3.00 232.32 

219.23(a)—Notification to employees for 

testing.

165,058 employees 27.71,978 notices ....... 3 seconds + 30 

seconds.

194.94 15,096.15 


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Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 5729 

CFR section 24 Respondent 

universe 

Total annual 

responses 

Average 

time per 

response 

Total annual 

burden hours 

Total annual 

dollar cost 

equivalent 25

—(c) and (e)—Educational materials ... 734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

744 modified/revised educational 

documents.

1 hour .................... 744.33 57,640.92 

—Copies of educational materials to 

employees.

165,058 employees 22,052 copies of 

educational material documents.

2 minutes ............... 735.07 56,923.82 

219.25(a)—Previous employer drug and alcohol checks—Employee testing records 

from previous employers and employee 

release of information (49 CFR 40.25(a) 

and (f)).

19,058 MECH employees.7,623 reports ......... 8 minutes ............... 1,016.40 78,710.02 

219.104(b)—Removal of employee from 

regulated service—Verbal notice + follow-up written letter.

734 (railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

530 verbal notices 

+ 530 letters.

30 seconds + 2 

minutes.

22.08 1,709.88 

219.105—RR’s duty to prevent violations— 

Documents provided to FRA after agency request regarding RR’s alcohol and/or 

drug use education/prevention program.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

3 document copies 5 minutes ............... .25 19.36 

—RR Supervisor Rule G observations 

and records of regulated employees.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

330,116 observation records.2 seconds .............. 183.40 14,202.50 

219.201(a)—Events for which testing is required—List of event (Note: App on PAT 

testing) 28.

Supervisors of regulated employees.500 PAT testing 

determinations.

5 minutes ............... 41.67 3,226.92 

—(c) Report by RR concerning decision by person other than RR representative about whether an accident/incident qualifies for testing.734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

2 reports ................ 30 minutes ............. 1.00 77.44 

219.203/207—Verbal notification and subsequent written report of failure to collect 

urine/blood specimens within four hours 

(revision to the current CFR, removal of 

written notification reports).

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

80 notifications ...... 2 minutes ............... 2.67 206.76 

—Recall of employees for testing and 

Narrative Report Completion.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

4 reports ................ 30 minutes ............. 2.00 154.88 

—RR reference to part 219 requirements and FRA’s post-accident toxicological kit instructions in seeking 

to obtain facility cooperation.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

98 references ........ 5 minutes ............... 8.17 632.68 

—RR notification to National Response 

Center of injured employee unconscious or otherwise unable to give 

testing consent.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

2 phone calls ......... 10 minutes ............. .33 25.56 

—RR notification to local authority ....... 734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

5 phone calls ......... 10 minutes ............. .83 64.28 

219.205 29—Post Accident Toxicological 

Testing Forms—Completion of FRA F 

6180.73.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

103 forms .............. 10 minutes ............. 17.17 1,329.64 

—Specimen handling/collection—Completion of Form FRA F 6180.74 by 

train crew members after accident.

165,058 employees 219 forms .............. 15 minutes ............. 54.75 4,239.84 


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5730 Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 

CFR section 24 Respondent 

universe 

Total annual 

responses 

Average 

time per 

response 

Total annual 

burden hours 

Total annual 

dollar cost 

equivalent 25

—Completion of Form FRA 6180.75 ... 734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

7 forms .................. 20 minutes ............. 2.33 180.44 

—Documentation of chain of custody 

of sealed toxicology kit from medical 

facility to lab delivery.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

103 chain of custody documents.2 minutes ............... 3.43 265.62 

—RR/medical facility record of kit error 734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

10 written records .. 2 minutes ............... .33 25.56 

219.209(a)—Notification to NRC and FRA 

of accident/incident where samples were 

obtained.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

103 phone reports 2 minutes ............... 3.43 265.62 

219.211(b)—Results of post-accident toxicological testing to RR MRO and RR 

employee.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

7 reports ................ 15 minutes ............. 1.75 135.52 

—MRO report to FRA of positive test 

for alcohol/drugs of surviving employee.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

6 reports ................ 15 minutes ............. 1.50 116.16 

219.303—RR written documentation of observed signs/symptoms for reasonable 

suspicion determination.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

33 written documents.5 minutes ............... 2.75 212.96 

219.305—RR written record stating reasons test was not promptly administered.734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

11 records ............. 2 minutes ............... .37 28.65 

219.405—RR documentation describing 

basis of reasonable cause testing.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

2,314 written documents.5 minutes ............... 192.81 14,931.21 

219.407(b)—Prompt specimen collection 

time limitation exceeded—Record.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

17 records ............. 15 minutes ............. 4.25 329.12 

219.501—RR documentation of negative 

pre-employment drug tests.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

6,400 lists .............. 30 seconds ............ 53.33 4,129.88 

219.605(a)—Submission of random testing 

plan: New RRs.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

12 plans ................. 1 hour .................... 12.00 929.28 

—Amendments to currently-approved 

FRA random testing plan.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

450 amendments ... 1 hour .................... 450.00 34,848.00 

—Resubmitted random testing plans 

after notice of FRA disapproval of 

plan or amendment.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

56 resubmitted 

plans.

30 minutes ............. 28.00 2,168.32 


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Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 5731 

24The burdens under §§ 219.25(a) and 219.800(b), 

once approved by OMB, will fall under DOT’s part 

40 information collection (OMB No. 2105–0529). 

Additionally, the burdens under §§ 219.603, 

219.607, 219.609, 219.611, 219.1001, 219.1003, 

219.1005, and 219.1007 are included under 

§ 219.605. Furthermore, the burdens under 

§§ 219.12(c), 219.104(d), 219.105(a)(2)–(a)(3), 

219.107(a)–(b), 219.203(a)(3)(ii), 219.300, 219.301, 

219.302, 219.502, 219.503, 219.608, 219.615(g), 

219.617(b)(2), 219.621, 219.701, and 219.903 are 

covered under DOT’s Part 40 (OMB No. 2105– 

0529). 

25The dollar equivalent cost is derived from the 

2020 Surface Transportation Board’s Full Year 

Wage A&B data series using the appropriate 

employee group hourly wage rate that includes 75- 

percent overhead charges. Also, totals may not add 

due to rounding. 

26For purposes of this table, the respondent 

universe of 734 railroads includes the estimated 30 

contractor companies that will be newly subject to 

part 219 because they perform MECH activities on 

behalf of these railroads. 

27The respondent universe of 165,058 employees 

includes an estimated 19,058 MECH employees 

who will be newly subject to part 219. Note: The 

number of employees changed from 171,410 to 

165,058 due to a change in the estimated number 

of MECH employees from 25,410 to 19,058. 

28FRA is adding the existing burden associated 

with the usage of FRA’s PAT testing app. 

29A public comment from AAR/ASLRRA asked 

FRA how it will notify railroads of future changes 

to the information otherwise contained in (former) 

appendices B and C. FRA will add any changes to 

information from these former appendices on its 

drug and alcohol page, at https://railroads.dot.gov/ 

divisions/partnerships-programs/drug-and-alcohol, 

and in FRA’s PAT testing app, in addition to its 

PAT testing kits, as appropriate. The burden 

associated with the review of the updated 

information is already covered under § 219.201(a). 

30 42 U.S.C. 4321 et seq. 

31 40 CFR 1508.4. 

CFR section 24 Respondent 

universe 

Total annual 

responses 

Average 

time per 

response 

Total annual 

burden hours 

Total annual 

dollar cost 

equivalent 25

—Non-substantive amendment to an 

approved plan.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

300 amendments ... 15 minutes ............. 75.00 5,808.00 

219.615—Incomplete random testing collections—Documentation.734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

2,250 documents ... 30 seconds ............ 18.75 1,452.00 

219.617—Employee Exclusion from random alcohol/drug testing after providing 

verifiable evidence from credible outside 

professional.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

6 documents .......... 1 hour .................... 6.00 464.64 

219.623—Random testing records .............. 734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

48,977 records ...... 1 minutes ............... 816.28 63,212.72 

219.800—Annual reports—Management Information System (MIS) form for MECH 

employees (49 CFR 40.26—MIS form 

submission).

38 railroads + 17 

contractors.

55 MIS reports ....... 90 minutes ............. 82.50 6,388.80 

219–1001—Co-worker referral of employee 

who is unsafe to work with/in violation of 

part 219 or railroad’s drug/alcohol rules.

734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

24 referrals ............ 5 minutes ............... 2.00 154.88 

Total ...................................................... 734 railroads + 

44,797 MOW + 

(New) 19,058 

MECH employees.

495,744 responses N/A ......................... 4,830 374,064 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. 

For information or a copy of the 

paperwork package submitted to OMB, 

contact Ms. Hodan Wells, Information 

Collection Clearance Officer, Office of 

Railroad Safety, Federal Railroad 

Administration, at 202–493–0440. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them via email to Ms. 

Wells at Hodan.Wells@dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this rule 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. FRA is not authorized to 

impose a penalty on persons for 

violating information collection 

requirements that do not display a 

current OMB control number, if 

required. 

D. Environmental Impact 

Consistent with the National 

Environmental Policy Act 30 (NEPA), the 

Council of Environmental Quality’s 

NEPA implementing regulations at 40 

CFR parts 1500–1508, and FRA’s NEPA 

implementing regulations at 23 CFR part 

771, FRA has evaluated this final rule 

and determined that it is categorically 

excluded from environmental review 

and therefore does not require the 

preparation of an environmental 

assessment (EA) or environmental 

impact statement (EIS). Categorical 

exclusions (CEs) are actions identified 

in an agency’s NEPA implementing 

regulations that do not normally have a 

significant impact on the environment 

and therefore do not require either an 

EA or EIS.31 Specifically, FRA has 

determined that this final rule is 

categorically excluded from detailed 


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5732 Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 

32 23 CFR 771.116(b). 33 16 U.S.C. 470. 34 Department of Transportation Act of 1966, as 

amended (Pub. L. 89–670, 80 Stat. 931); 49 U.S.C. 

303. 35 91 FR 27534 (May 10, 2012). 36 64 FR 43255 (Aug. 10, 1999). 

37Public Law 104–4, 2 U.S.C. 1531. 

38 2 U.S.C. 1532. 

39 66 FR 28355 (May 22, 2001). 

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.’’ 

The purpose of this rulemaking is to 

expand the scope of FRA’s alcohol and 

drug regulation to cover MECH 

employees who test or inspect railroad 

rolling equipment. This rule will not 

directly or indirectly impact any 

environmental resources and will not 

result in significantly increased 

emissions of air or water pollutants or 

noise. Instead, the rule will likely result 

in safety benefits. In analyzing the 

applicability of a CE, FRA must also 

consider whether unusual 

circumstances are present that would 

warrant a more detailed environmental 

review.32 FRA has concluded that no 

such unusual circumstances exist with 

respect to this final rule and it meets the 

requirements for categorical exclusion 

under 23 CFR 771.116(c)(15). 

Pursuant to Section 106 of the 

National Historic Preservation Act and 

its implementing regulations, FRA has 

determined this undertaking has no 

potential to affect historic properties.33

FRA has also determined that this 

rulemaking will not approve a project 

resulting in a use of a resource protected 

by Section 4(f).34

E. Executive Order 12898 

(Environmental Justice) 

Executive Order 12898, Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, and DOT 

Order 5610.2(a) 35 require DOT agencies 

to achieve environmental justice as part 

of their mission by identifying and 

addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects, 

including interrelated social and 

economic effects, of their programs, 

policies, and activities on minority 

populations and low-income 

populations. The DOT Order instructs 

DOT agencies to address compliance 

with Executive Order 12898 and 

requirements within the DOT Order in 

rulemaking activities, as appropriate. 

FRA has evaluated this final rule under 

Executive Order 12898 and the DOT 

Order and has determined it will not 

cause disproportionately high and 

adverse human health and 

environmental effects on minority 

populations or low-income populations. 

F. Federalism Implications 

Executive Order 13132, 

‘‘Federalism,’’ 36 requires FRA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, an Agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments or the agency consults 

with State and local government 

officials early in the process of 

developing the regulation. Where a 

regulation has federalism implications 

and preempts State law, the Agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

FRA has analyzed this final rule 

under the principles and criteria 

contained in Executive Order 13132. 

This rule, issued under a statutory 

mandate, will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. FRA has 

determined that the rule will not impose 

substantial direct compliance costs on 

State and local governments, and that 

the consultation and funding 

requirements of Executive Order 13132 

do not apply. However, this rule could 

have preemptive effect by operation of 

law under certain provisions of the 

Federal railroad safety statutes, 

specifically the former Federal Railroad 

Safety Act of 1970, repealed and 

recodified at 49 U.S.C. 20106. Section 

20106 provides that States may not 

adopt or continue in effect any law, 

regulation, or order related to railroad 

safety or security that covers the subject 

matter of a regulation prescribed or 

order issued by the Secretary of 

Transportation (with respect to railroad 

safety matters) or the Secretary of 

Homeland Security (with respect to 

railroad security matters), except when 

the State law, regulation, or order 

qualifies under the ‘‘essentially local 

safety or security hazard’’ exception to 

section 20106. 

In sum, FRA has analyzed this rule 

under the principles and criteria in 

Executive Order 13132, and determined 

that it has no federalism implications, 

other than the possible preemption of 

State laws under Federal railroad safety 

statutes, specifically 49 U.S.C. 20106. 

Therefore, preparation of a federalism 

summary impact statement is not 

required. 

G. Unfunded Mandates Reform Act of 

1995 

Pursuant to section 201 of the 

Unfunded Mandates Reform Act of 

1995,37 each Federal agency shall, 

unless otherwise prohibited by law, 

assess the effects of Federal regulatory 

actions on State, local, and tribal 

governments, and the private sector 

(other than to the extent that such 

regulations incorporate requirements 

specifically set forth in law). Section 

202 of the Act 38 further requires that 

before promulgating any general notice 

of proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any one year, 

and before promulgating any final rule 

for which a general notice of proposed 

rulemaking was published, the Agency 

shall prepare a written statement 

detailing the effect on State, local, and 

tribal governments and the private 

sector. This rule will not result in such 

an expenditure, and thus preparation of 

such a statement is not required. 

H. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 39 FRA has evaluated 

this rule in accordance with Executive 

Order 13211 and determined that this 

regulatory action is not a ‘‘significant 

energy action’’ within the meaning of 

the Executive Order. 

Executive Order 13783, ‘‘Promoting 

Energy Independence and Economic 

Growth,’’ requires Federal agencies to 


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Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 5733 

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

review regulations to determine whether 

they potentially burden the 

development or use of domestically 

produced energy resources, with 

particular attention to oil, natural gas, 

coal, and nuclear energy resources.40

FRA has determined that this rule will 

not burden the development or use of 

domestically produced energy 

resources. 

I. Tribal Consultation 

FRA has evaluated this rule under the 

principles and criteria in Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, dated November 6, 2000. 

The rule will not have a substantial 

direct effect on one or more Indian 

tribes, impose substantial direct 

compliance costs on Indian tribal 

governments, or preempt tribal laws, 

and a tribal summary impact statement 

is not required. 

List of Subjects in 49 CFR Part 219 

Alcohol abuse, Drug abuse, Drug 

testing, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements, Safety, Transportation. 

The Final Rule 

For the reasons stated above, FRA 

amends part 219 of chapter II, subtitle 

B of title 49, Code of Federal 

Regulations as follows: 

PART 219—CONTROL OF ALCOHOL 

AND DRUG USE 

■ 1. Revise the authority citation for part 

219 to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20140, 

21301, 21304, 21311; 28 U.S.C. 2461, note; 

Sec. 412, Pub. L. 110–432, 122 Stat. 4889; 

Sec. 8108, Div. A; Sec. 8102, Pub. L. 115– 

271; 132 Stat. 3894; and 49 CFR 1.89. 

Subpart A—General 

■ 2. In § 219.3, remove and reserve 

paragraph (b) and revise and republish 

paragraph (c). 

The revision reads as follows: 

§ 219.3 Application. 

* * * * * 

(c) Small railroad exception. (1) 

Subparts E, G, and K do not apply to 

small railroads, and a small railroad 

may not perform the Federal 

requirements authorized by those 

subparts. For purposes of this part, a 

small railroad means a railroad that: 

(i) Has a total of 15 or fewer 

employees who are covered by the 

hours of service laws at 49 U.S.C. 21103, 

21104, or 21105, or who would be 

subject to the hours of service laws at 49 

U.S.C. 21103, 21104, or 21105 if their 

services were performed in the United 

States; and 

(ii) Does not have joint operations, as 

defined in § 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 

§ 219.5, does not count towards a 

railroad’s total number of covered 

employees for the purpose of 

determining whether it qualifies for the 

small railroad exception. 

(3) A contractor performing MOW or 

MECH activities exclusively for small 

railroads also qualifies for the small 

railroad exception (i.e., is excepted from 

the requirements of subparts E, G, and 

K of this part). A contractor is not 

excepted if it performs MOW or MECH 

activities for at least one railroad that is 

required to be in full compliance with 

this part. 

(4) If a contractor is subject to all of 

part 219 because it performs regulated 

service for multiple railroads, not all of 

which qualify for the small railroad 

exception, the responsibility for 

ensuring that the contractor complies 

with subparts E and G of this part is 

shared between the contractor and any 

railroad using the contractor that does 

not qualify for the small railroad 

exception. 

* * * * * 

■ 3. In § 219.5: 

■ a. Revise the definitions of ‘‘Category 

of regulated employee’’ and ‘‘Employee’’ 

■ b. Add in alphabetical order a 

definition for ‘‘Mechanical employee’’; 

■ c. Revise the definitions of ‘‘Regulated 

employee’’ and ‘‘Regulated service’’; 

■ d. Add in alphabetical order a 

definition for ‘‘Rolling equipment’’; and 

■ e. Revise the definition of and ‘‘Side 

collision’’. 

The revisions and additions read as 

follows: 

§ 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 § 219.625, if an 

individual performs both covered 

service and maintenance-of-way 

activities, or covered service and 

mechanical activities, he or she belongs 

in the category of regulated employee 

that corresponds with the type of 

regulated service comprising the 

majority of his or her regulated service. 

* * * * * 

Employee means any individual, 

(including a volunteer or a probationary 

employee) performing activities for a 

railroad, a contractor to a railroad, or a 

subcontractor to a railroad. 

* * * * * 

Mechanical employee or MECH 

employee means— 

(1) Any employee who, on behalf of 

a railroad, performs mechanical tests or 

inspections required by part 215, 221, 

229, 230, 232, 238, or 299 of this chapter 

on railroad rolling equipment, or its 

components, except for: 

(i) An employee who is a member of 

a train crew assigned to test or inspect 

railroad rolling equipment that is part of 

a train or yard movement the employee 

has been called to operate; or 

(ii) An employee who only performs 

one or more of the following duties: 

(A) Cleaning and/or supplying 

cabooses, locomotives, or passenger cars 

with ice, food concession items, 

drinking water, tools, sanitary supplies, 

or flagging equipment; 

(B) Servicing activities on locomotives 

such as fueling, replenishing engine oils 

and engine water, sanding, and toilet 

discharge and recharge; 

(C) Checking lading for pilferage or 

vandalism; or 

(D) Loading, unloading, or shifting car 

loads. 

(2) An employee who only performs 

work related to the original 

manufacturing, testing, or inspection of 

railroad rolling equipment, or its 

components, on the manufacturer’s 

behalf, is not a mechanical employee or 

MECH employee. 

* * * * * 

Regulated employee means a covered 

employee, maintenance-of-way 

employee, or mechanical employee (as 

defined in this section) who performs 

regulated service for a railroad subject to 

the requirements of this part. 

Regulated service means activities a 

covered employee, maintenance-of-way 

employee, or mechanical employee (as 

defined in this section) performs that 

makes such an employee subject to this 

part. 

* * * * * 

Rolling equipment means 

locomotives, railroad cars, and one or 

more locomotives coupled to one or 

more railroad cars. 

Side collision means a collision when 

one consist strikes the side of another 

consist at a turnout, including a 

collision at a switch or at a railroad 

crossing at grade. 

* * * * * 

■ 4. Revise and republish § 219.10 to 

read as follows: 


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§ 219.10 Penalties. 

Any person, as defined by § 219.5, 

who violates any requirement of this 

part or causes the violation of any such 

requirement is subject to a civil penalty 

of at least $919 and not more than 

$30,058 per violation, except that: 

Penalties may be assessed against 

individuals only for willful violations; 

where a grossly negligent violation or a 

pattern of repeated violations has 

created an imminent hazard of death or 

injury, or has caused death or injury, a 

penalty not to exceed $120,231 per 

violation may be assessed; and the 

standard of liability for a railroad will 

vary depending upon the requirement 

involved. See, e.g., § 219.105, which is 

construed to qualify the responsibility 

of a railroad for the unauthorized 

conduct of a regulated employee that 

violates § 219.101 or § 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. 

■ 5. In § 219.11, revise paragraph (g) to 

read as follows: 

§ 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 § 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. 

* * * * * 

■ 6. In § 219.23, revise the first sentence 

of paragraph (a) introductory text and 

revise paragraphs (c)(2) and (d)(2) to 

read as follows: 

§ 219.23 Railroad policies. 

(a) Whenever a breath or body fluid 

test is required of a regulated employee 

under this part, the railroad (either 

through a railroad employee or a 

designated agent, such as a contracted 

collector) must provide clear and 

unequivocal written notice to the 

employee that the test is being required 

under FRA regulations and is being 

conducted under Federal authority. 

* * * 

* * * * * 

(c) * * * 

(2) For a minimum of three years after 

March 4, 2022, also ensuring that a hard 

copy of these materials is provided to 

each mechanical employee. 

(d) * * * 

(2) The specific classes or crafts of 

employee who are subject to the 

provisions of this part, such as 

engineers, conductors, MOW 

employees, MECH employees, signal 

maintainers, or train dispatchers; 

* * * * * 

Subpart C—Post-Accident 

Toxicological Testing 

■ 7. In § 219.203, revise paragraphs (a) 

introductory text and (d)(1) to read as 

follows: 

§ 219.203 Responsibilities of railroads and 

employees. 

(a) Employees tested. A regulated 

employee subject to post-accident 

toxicological testing under this subpart 

must cooperate in the provision of 

specimens as described in this part. 

* * * * * 

(d) * * * 

(1) A railroad must make every 

reasonable effort to assure that 

specimens are provided as soon as 

possible after the accident or incident, 

preferably within four hours. Specimens 

that are not collected within four hours 

after a qualifying accident or incident 

must be collected as soon thereafter as 

practicable. If a specimen is not 

collected within four hours of a 

qualifying event, the railroad must 

immediately notify the FRA Drug and 

Alcohol Program Manager at 202–493– 

6313 and provide detailed information 

regarding the failure (either in 

conversation or via a voicemail). 

* * * * * 

■ 8. In § 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: 

§ 219.205 Specimen collection and 

handling. 

(a) General. Urine and blood 

specimens must be obtained, marked, 

preserved, handled, and made available 

to FRA consistent with the requirements 

of this subpart and the instructions 

provided inside the FRA post-accident 

toxicological shipping kit. 

* * * * * 

(c) * * * 

(1) FRA makes available for purchase 

a limited number of standard shipping 

kits for the purpose of routine handling 

of post-accident toxicological specimens 

under this subpart. Specimens must be 

placed in the shipping kit and prepared 

for shipment according to the 

instructions provided in the kit. 

(2) Standard shipping kits may be 

ordered by requesting an order form 

from FRA’s Drug and Alcohol Program 

Manager at 202–493–6313. * * * 

(d) Shipment. Specimens must be 

shipped as soon as possible by pre-paid 

air express (or other means adequate to 

ensure delivery within 24 hours from 

time of shipment) to FRA’s postaccident toxicological testing laboratory. 

However, if delivery cannot be ensured 

within 24 hours due to a suspension in 

air express delivery services, the 

specimens must be held in a secure 

refrigerator until delivery can be 

accomplished. In no circumstances may 

specimens be held for more than 72 

hours. Where express courier pickup is 

available, the railroad must ask the 

medical facility to transfer the sealed 

toxicology kit directly to the express 

courier for transportation. If courier 

pickup is not available at the medical 

facility where the specimens are 

collected or if for any other reason a 

prompt transfer by the medical facility 

cannot be assured, the railroad must 

promptly transport the sealed shipping 

kit holding the specimens to the most 

expeditious point of shipment via air 

express. The railroad must maintain and 

document a secure chain of custody of 

the kit(s) from its release by the medical 

facility to its delivery for transportation. 

(e) Specimen security. After a 

specimen kit or transportation box has 

been sealed, no entity other than FRA’s 

post-accident toxicological testing 

laboratory may open it. * * * 

■ 9. Revise § 219.206 to read as follows: 

§ 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. 

■ 10. In § 219.207, revise paragraphs (c) 

and (d) to read as follows: 

§ 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 


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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. 

■ 11. In § 219.211, revise paragraphs (a), 

(c), (e), and (i) to read as follows: 

§ 219.211 Analysis and follow-up. 

(a) Specimens are analyzed for 

alcohol, controlled substances, and noncontrolled 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 § 219.103) 

that could account for the laboratory 

findings. The MRO must promptly 

report the results of each review by 

email to FRA-MROletters.email@

dot.gov. The report must reference the 

employing railroad, accident/incident 

date, and location; and state whether the 

MRO reported the test result to the 

employing railroad as positive or 

negative and the basis of any 

determination that analytes detected by 

the laboratory derived from authorized 

use (including a statement of the 

compound prescribed, dosage/ 

frequency, and any restrictions imposed 

by the authorized medical practitioner). 

Unless specifically requested by FRA in 

writing, the MRO may not disclose to 

FRA the underlying physical condition 

for which any medication was 

authorized or administered. The FRA is 

not bound by the MRO’s determination, 

but that determination will be 

considered by FRA in relation to the 

accident/incident investigation and 

with respect to any enforcement action 

under consideration. 

* * * * * 

(e) An employee may respond within 

45 days of receipt of his or her test 

results prior to the preparation of any 

final investigative report concerning the 

accident or incident by email to FRADrugAlcoholProgram.email@dot.gov. 

The employee’s response must state the 

accident date, railroad, and location; the 

position the employee held on the date 

of the accident/incident; and any 

information the employee requests be 

withheld from public disclosure. FRA 

will decide whether to honor the 

employee’s request to withhold 

information. 

* * * * * 

(i) An employee may, within 60 days 

of receipt of the toxicology report, 

request a retest of his or her PAT testing 

specimen. A request for retest must be 

emailed to FRADrugAlcoholProgram.email@dot.gov. 

The employee’s request must specify the 

railroad, accident date, and location. 

Upon receipt of the employee’s request, 

FRA will identify and select a qualified 

referee laboratory that has available an 

appropriate, validated assay for the 

specimen type and analyte(s) declared 

positive. Because some analytes may 

deteriorate during storage, if the referee 

laboratory detects levels above its Limit 

of Detection (as defined in 49 CFR 40.3), 

FRA will report the retest result as 

corroborative of the original PAT test 

result. 

Subpart E—Reasonable Cause Testing 

■ 12. In § 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: 

§ 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 § 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 § 218.25 through 

§ 218.30 of this chapter; 

(20) Failure to perform a required 

brake test, or having knowledge that a 

required brake test was not performed, 

pursuant to the Class I, Class IA, Class 

II, or Class III, or transfer train brake test 

provisions of part 232, or the running 

brake test provisions of part 238, of this 

chapter; 

(21) Failure to comply with 

prohibitions against tampering with 

locomotive mounted safety devices, or 

permitting a train to be operated with an 

unauthorized disabled safety device in 

the controlling locomotive; or 

(22) Failure to have a derailing device 

in proper position and locked if 

required in accordance with § 218.109 

of this chapter. 

Subpart F—Pre-Employment Tests 

■ 13. In § 219.501, revise paragraph (e) 

and add paragraph (f) to read as follows: 

§ 219.501 Pre-employment drug testing. 

* * * * * 

(e)(1) The pre-employment drug 

testing requirements of this section do 

not apply to: 

(i) Covered employees of railroads 

qualifying for the small railroad 

exception (see § 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 


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for a railroad, or a contractor or 

subcontractor of a railroad, before June 

12, 2017; or 

(iii) MECH employees who were 

performing regulated service for a 

railroad, or contractor or subcontractor 

of a railroad, before March 4, 2022. 

(2) An exempted employee under 

paragraph (e)(1) of this section must 

have a negative pre-employment drug 

test before performing regulated service 

for a new or additional employing 

railroad, or contractor or subcontractor 

of a railroad: 

(i) On or after June 12, 2017, for 

exempted covered employees and 

maintenance-of-way employees, and 

(ii) On or after March 4, 2022 for 

MECH employees. 

(f) A railroad, or contractor or 

subcontractor of a railroad, must comply 

with 49 CFR 40.25 by performing a 

records check on any of its MOW or 

MECH employees who have been 

exempted from pre-employment testing 

before the employee first performs 

regulated service. An employee may not 

perform regulated service after 30 days 

from the date on which the employee 

first performed regulated service, unless 

this information has been obtained or a 

good faith effort to obtain this 

information has been made and 

documented. 

Subpart G—Random Alcohol and Drug 

Testing Programs 

■ 14. In § 219.605, revise and republish 

paragraphs (a) and (e) to read as follows: 

§ 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 §§ 219.607 and 219.609 

by email to FRADrugAlcoholProgram.email@dot.gov. 

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 § 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 

§ 219.5), combine all categories into a 

single plan, or amend its current FRAapproved plan to add additional 

categories of regulated employees, as 

defined by this part. 

* * * * * 

(e) Previously approved plans. A 

railroad is not required to resubmit a 

random testing plan that FRA had 

approved before March 4, 2022, unless 

the railroad must amend the plan to 

comply with the requirements of this 

subpart. A railroad must submit new 

plans, combined plans, or amended 

plans incorporating new categories of 

regulated employees (i.e., mechanical 

employees) for FRA approval at least 60 

days after March 4, 2022. 

■ 15. Revise § 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: 

§ 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 § 219.603), after which time 

any individual selections for that 

designated testing window that have not 

been collected are no longer active; and 

* * * * * 

■ 16. In § 219.615, revise the first 

sentence of paragraph (e)(3) to read as 

follows: 

§ 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. * * * 

* * * * * 

■ 17. In § 219.617, revise the first 

sentence of paragraph (a)(3) to read as 

follows: 

§ 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. * * * 

* * * * * 

■ 18. In § 219.625, revise paragraph 

(c)(1) to read as follows: 

§ 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 

■ 19. In § 219.800, revise the first 

sentence of paragraph (a), revise 

paragraph (f), and add paragraph (g) to 

read as follows: 

§ 219.800 Annual reports. 

(a) Each railroad that has a total of 

400,000 or more employee hours 

(including hours worked by all 

employees of the railroad, regardless of 

occupation, not only while in the 

United States, but also while outside the 

United States), must submit to FRA by 

March 15 of each year a report covering 

the previous calendar year (January 1– 

December 31), summarizing the results 

of its alcohol misuse and drug abuse 

prevention program. * * * 

* * * * * 

(f) A railroad required to submit an 

MIS report under this section must 

submit separate reports for covered 

employees, MOW employees, and 

MECH employees. 

(g)(1) This subpart does not apply to 

any contractor that performs regulated 

service exclusively for railroads with 

fewer than 400,000 total employee 


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Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 5737 

annual work hours, including hours 

worked by all employees of the railroad, 

regardless of occupation, not only while 

in the United States, but also while 

outside the United States. 

(2) When a contractor performs 

regulated service for at least one railroad 

with 400,000 or more total annual 

employee work hours, including hours 

worked by all employees of the railroad, 

regardless of occupation, not only while 

in the United States, but also while 

outside the United States, this subpart 

applies as follows: 

(i) A railroad with 400,000 or more 

total employee annual work hours must 

comply with this subpart regarding any 

contractor employees it integrates into 

its own alcohol and drug program under 

this part; and 

(ii) If a contractor establishes an 

independent alcohol and drug testing 

program that meets the requirements of 

this part and is acceptable to the 

railroad, the contractor must comply 

with this subpart if it has 200 or more 

regulated employees. 

Appendix B to Part 219—[Removed] 

■ 20. Remove appendix B to part 219. 

Appendix C to Part 219—[Removed] 

■ 21. Remove appendix C to part 219. 

Issued in Washington, DC. 

Amitabha Bose, 

Administrator. 

[FR Doc. 2022–01985 Filed 2–1–22; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2012–0042; 

FF09E21000 FXES1111090FEDR 223] 

RIN 1018–AX13 

Endangered and Threatened Wildlife 

and Plants; Revision of the Critical 

Habitat Designation for the Jaguar in 

Compliance With a Court Order; 

Correction 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule; correction. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, are correcting an 

erroneous acreage amount presented 

twice in the preamble of our July 22, 

2021, final rule that was issued to 

comply with a court order concerning 

the critical habitat designation for the 

jaguar (Panthera onca) under the 

Endangered Species Act of 1973, as 

amended (Act). 

DATES: This correction is effective 

February 2, 2022. 

FOR FURTHER INFORMATION CONTACT: U.S. 

Fish and Wildlife Service, Attn: Jeff 

Humphrey, at 9828 North 31st Avenue 

#C3, Phoenix, AZ 85051; by telephone 

at 602–242–0210; or by email at 

incomingazcorr@fws.gov. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Correction 

On July 22, 2021, we published in the 

Federal Register (86 FR 38570) a final 

rule that was issued to comply with a 

court order to vacate Unit 6 and the 

New Mexico portion of Unit 5 from the 

March 5, 2014, final rule designating 

approximately 764,207 acres (309,263 

hectares) of land in New Mexico and 

Arizona as critical habitat for the jaguar 

under the Act (16 U.S.C. 1531 et seq.). 

In two places in the preamble of the July 

22, 2021, final rule, we erroneously 

stated that the final rule removes 

approximately 110,438 acres (44,693 

hectares) of land within New Mexico 

from the designation of critical habitat 

for the jaguar. This document corrects 

the preamble to state that the July 22, 

2021, final rule removes approximately 

59,286 acres (23,993 hectares) of land 

within New Mexico from the 

designation of critical habitat for the 

jaguar. We are not making any 

corrections to the maps we codified in 

the July 22, 2021, final rule; they are 

correct as published (86 FR 38570, July 

22, 2021, pp. 86 FR 38571–38572). 

Therefore, in the final rule published 

at 86 FR 38570, in the July 22, 2021, 

issue of the Federal Register, we make 

the following corrections to the 

preamble: 

1. On page 38570 in the third column, 

second line, we remove the words 

‘‘110,438 acres (44,693 hectares)’’ and 

add in their place the words ‘‘59,286 

acres (23,993 hectares)’’. 

2. On page 38571 in the first column, 

in the first sentence under Effects of the 

Rule, we remove the words ‘‘110,438 

acres (44,693 hectares)’’ and add in their 

place the words ‘‘59,286 acres (23,993 

hectares)’’. 

Administrative Procedure 

We have determined, pursuant to 5 

U.S.C. 553(b)(3)(B), that prior notice and 

opportunity for public comment are 

impractical and unnecessary. Public 

comment could not inform this 

correction process in any meaningful 

way. We have further determined that, 

under 5 U.S.C. 553(d)(3), the agency has 

good cause to make this rule effective 

upon publication, as it is important for 

the proper administration of our 

programs for our rulemaking documents 

published in the Federal Register to be 

complete and accurate. 

Authority 

The authority for this action is the 

Endangered Species Act (16 U.S.C. 1531 

et seq.) 

Martha Williams, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2022–02054 Filed 2–1–22; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 180117042–8884–02; RTID 

0648–XB751] 

Atlantic Highly Migratory Species; 

Atlantic Bluefin Tuna Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; Purse Seine 

category annual quota adjustment; 

inseason quota transfer. 

SUMMARY: NMFS is adjusting the 

Atlantic bluefin tuna (BFT) Purse Seine 

and Reserve category quotas for 2022. 

NMFS also is transferring 26 metric tons 

(mt) of BFT quota from the Reserve 

category to the General category January 

through March 2022 subquota period. 

The transfer to the General category is 

based on consideration of the regulatory 

determination criteria regarding 

inseason adjustments and applies to 

Atlantic Tunas General category 

(commercial) permitted vessels and 

Highly Migratory Species (HMS) 

Charter/Headboat permitted vessels 

with a commercial sale endorsement 

when fishing commercially for BFT. 

DATES: Effective January 28, 2022 

through December 31, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Larry Redd, Jr., larry.redd@noaa.gov, 

301–427–8503, Nicholas Velseboer, 

nicholas.velsboer@noaa.gov, 978–281– 

9260, or Thomas Warren, 

thomas.warren@noaa.gov, 978–281– 

9347. 


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