Control of Alcohol and Drug Use: Coverage of Mechanical Employees and Miscellaneous Amendments, 5719-5737 [2022-01985]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Rules and Regulations]
[Pages 5719-5737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01985]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

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


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

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

ACTION: Final rule.

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

DATES: This rule is effective March 4, 2022.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments received, go to https://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: [email protected]; Sam 
Noe, Drug and Alcohol Specialist, Office of Railroad Safety--Office of 
Technical Oversight, telephone: 615-719-2951, email: [email protected]; 
or Patricia V. Sun, Attorney Adviser, Office of Safety Law, telephone: 
202-493-6060, email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

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

I. Executive Summary

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

[[Page 5720]]

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

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

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

II. Discussion of General Comments and Conclusions

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

A. FRA's Proposed Mechanical Employee Definition

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

[[Page 5722]]

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

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

[[Page 5723]]

subject to all the provisions of 49 Code of Federal Regulations 
(CFR) Part 219. Therefore, the Safety Board recommends that the FRA 
revise the definition of ``covered employee'' under 49 CFR part 219 
for purposes of Congressionally mandated alcohol and controlled 
substances testing programs to encompass all employees and agents 
performing safety-sensitive functions, as described in 49 CFR 
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209.301 and 209.303.

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

B. Pre-Employment Testing

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

C. Initial Mechanical Employee Annual Random Testing Rates

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

D. Post-Accident Toxicological Testing

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

[[Page 5724]]

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

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

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

III. Section-by-Section Analysis

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

Authority

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

Subpart A--General

Section 219.3 Application

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

Section 219.5 Definitions

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

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

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

Section 219.10 Penalties

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

Section 219.11 General Conditions for Chemical Tests

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

Section 219.23 Railroad Policies

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

[[Page 5725]]

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

Subpart C--Post-Accident Toxicological Testing

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

Section 219.203 Responsibilities of Railroads and Employees

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

Section 219.205 Specimen Collection and Handling

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

Section 219.206 FRA Access to Breath Test Results

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

Section 219.207 Fatality

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

Section 219.211 Analysis and Follow-Up

    As proposed in the NPRM, FRA is amending this section to simplify 
and clarify its language. Additionally, FRA is requiring the submission 
of reports and requests under this section to be sent to FRA solely by 
email. Although FRA had proposed to continue to allow such reports and 
requests to be submitted in hard copy, while additionally allowing the 
flexibility of email submissions, the onset of the coronavirus disease 
2019 (COVID-19) pandemic has led both FRA and its stakeholders to 
increasingly rely on electronic communications and submissions, which 
has become even clearer since issuance of the NPRM. Therefore, 
requiring all submissions to be made electronically under this section 
effectively codifies existing practice. No substantive changes are 
intended other than the amendments discussed below.
Paragraph (a)
    FRA is removing the reference to appendix B, consistent with the 
removal of appendix B from this part.
Paragraph (c)
    As noted, FRA is requiring an MRO to submit a report by email to an 
email box specifically set up for receipt of MRO reports ([email protected]).
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 [email protected].
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 [email protected]. The employee's request must still be 
submitted within the 60-day time limit and specify the railroad, 
accident date, and location.

Subpart E--Reasonable Cause Testing

Section 219.403 Requirements for Reasonable Cause Testing

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

[[Page 5726]]

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

Subpart F--Pre-Employment Tests

Section 219.501 Pre-employment Drug Testing

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

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

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

Subpart G--Random Alcohol and Drug Testing Programs

Section 219.605 Submission and Approval of Random Testing Plans

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

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

Section 219.607 Requirements for Random Testing Plans

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

Section 219.615 Random Testing Collections

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

Section 219.617 Participation in Random Alcohol and Drug Testing

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

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

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

[[Page 5727]]

they first became subject to random testing.

Subpart I--Annual Report

Section 219.800 Annual Reports

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

IV. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

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

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

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

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

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

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

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

                                             Total 10-Year Benefits
----------------------------------------------------------------------------------------------------------------
                                                                                    Annualized      Annualized
                    Category                      Total benefit,  Total benefit,    benefit, 7      benefit, 3
                                                   7 percent ($)   3 percent ($)    percent ($)     percent ($)
----------------------------------------------------------------------------------------------------------------
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

[[Page 5728]]

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

B. Regulatory Flexibility Act and Executive Order 13272; Certification

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

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

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

C. Paperwork Reduction Act

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

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

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

[[Page 5729]]

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

[[Page 5730]]

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

[[Page 5731]]

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

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

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

    For information or a copy of the paperwork package submitted to 
OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer, 
Office of Railroad Safety, Federal Railroad Administration, at 202-493-
0440.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them via email to 
Ms. Wells at [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. FRA is not authorized to 
impose a penalty on persons for violating information collection 
requirements that do not display a current OMB control number, if 
required.

D. Environmental Impact

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

[[Page 5732]]

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

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

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

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

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

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

E. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a) \35\ require DOT agencies to achieve environmental 
justice as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority 
populations and low-income populations. The DOT Order instructs DOT 
agencies to address compliance with Executive Order 12898 and 
requirements within the DOT Order in rulemaking activities, as 
appropriate. FRA has evaluated this final rule under Executive Order 
12898 and the DOT Order and has determined it will not cause 
disproportionately high and adverse human health and environmental 
effects on minority populations or low-income populations.
---------------------------------------------------------------------------

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

F. Federalism Implications

    Executive Order 13132, ``Federalism,'' \36\ requires FRA to develop 
an accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, an Agency may not issue a 
regulation with federalism implications that imposes substantial direct 
compliance costs and that is not required by statute, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments or the agency 
consults with State and local government officials early in the process 
of developing the regulation. Where a regulation has federalism 
implications and preempts State law, the Agency seeks to consult with 
State and local officials in the process of developing the regulation.
---------------------------------------------------------------------------

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

    FRA has analyzed this final rule under the principles and criteria 
contained in Executive Order 13132. This rule, issued under a statutory 
mandate, will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. FRA has determined that the rule will not impose 
substantial direct compliance costs on State and local governments, and 
that the consultation and funding requirements of Executive Order 13132 
do not apply. However, this rule could have preemptive effect by 
operation of law under certain provisions of the Federal railroad 
safety statutes, specifically the former Federal Railroad Safety Act of 
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to section 20106.
    In sum, FRA has analyzed this rule under the principles and 
criteria in Executive Order 13132, and determined that it has no 
federalism implications, other than the possible preemption of State 
laws under Federal railroad safety statutes, specifically 49 U.S.C. 
20106. Therefore, preparation of a federalism summary impact statement 
is not required.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 
1995,\37\ each Federal agency shall, unless otherwise prohibited by 
law, assess the effects of Federal regulatory actions on State, local, 
and tribal governments, and the private sector (other than to the 
extent that such regulations incorporate requirements specifically set 
forth in law). Section 202 of the Act \38\ further requires that before 
promulgating any general notice of proposed rulemaking that is likely 
to result in the promulgation of any rule that includes any Federal 
mandate that may result in expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of 
$100,000,000 or more (adjusted annually for inflation) in any one year, 
and before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the Agency shall prepare a written 
statement detailing the effect on State, local, and tribal governments 
and the private sector. This rule will not result in such an 
expenditure, and thus preparation of such a statement is not required.
---------------------------------------------------------------------------

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

H. Energy Impact

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

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

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

[[Page 5733]]

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

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

I. Tribal Consultation

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

List of Subjects in 49 CFR Part 219

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

The Final Rule

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

PART 219--CONTROL OF ALCOHOL AND DRUG USE

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

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

Subpart A--General

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


Sec.  219.3   Application.

* * * * *
    (c) Small railroad exception. (1) Subparts E, G, and K do not apply 
to small railroads, and a small railroad may not perform the Federal 
requirements authorized by those subparts. For purposes of this part, a 
small railroad means a railroad that:
    (i) Has a total of 15 or fewer employees who are covered by the 
hours of service laws at 49 U.S.C. 21103, 21104, or 21105, or who would 
be subject to the hours of service laws at 49 U.S.C. 21103, 21104, or 
21105 if their services were performed in the United States; and
    (ii) Does not have joint operations, as defined in Sec.  219.5, 
with another railroad that operates in the United States, except as 
necessary for purposes of interchange.
    (2) An employee performing only MOW or MECH activities, as defined 
in Sec.  219.5, does not count towards a railroad's total number of 
covered employees for the purpose of determining whether it qualifies 
for the small railroad exception.
    (3) A contractor performing MOW or MECH activities exclusively for 
small railroads also qualifies for the small railroad exception (i.e., 
is excepted from the requirements of subparts E, G, and K of this 
part). A contractor is not excepted if it performs MOW or MECH 
activities for at least one railroad that is required to be in full 
compliance with this part.
    (4) If a contractor is subject to all of part 219 because it 
performs regulated service for multiple railroads, not all of which 
qualify for the small railroad exception, the responsibility for 
ensuring that the contractor complies with subparts E and G of this 
part is shared between the contractor and any railroad using the 
contractor that does not qualify for the small railroad exception.
* * * * *

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


Sec.  219.5   Definitions.

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

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

[[Page 5734]]

Sec.  219.10   Penalties.

    Any person, as defined by Sec.  219.5, who violates any requirement 
of this part or causes the violation of any such requirement is subject 
to a civil penalty of at least $919 and not more than $30,058 per 
violation, except that: Penalties may be assessed against individuals 
only for willful violations; where a grossly negligent violation or a 
pattern of repeated violations has created an imminent hazard of death 
or injury, or has caused death or injury, a penalty not to exceed 
$120,231 per violation may be assessed; and the standard of liability 
for a railroad will vary depending upon the requirement involved. See, 
e.g., Sec.  219.105, which is construed to qualify the responsibility 
of a railroad for the unauthorized conduct of a regulated employee that 
violates Sec.  219.101 or Sec.  219.102 (while imposing a duty of due 
diligence to prevent such conduct). Each day a violation continues 
constitutes a separate offense. See FRA's website at www.fra.dot.gov 
for a statement of agency civil penalty policy.

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


Sec.  219.11   General conditions for chemical tests.

* * * * *
    (g) Each supervisor responsible for regulated employees (except a 
working supervisor who is a co-worker as defined in Sec.  219.5) must 
be trained in the signs and symptoms of alcohol and drug influence, 
intoxication, and misuse consistent with a program of instruction to be 
made available for inspection upon demand by FRA. Such a program shall, 
at a minimum, provide information concerning the acute behavioral and 
apparent physiological effects of alcohol, the major drug groups on the 
controlled substances list, and other impairing drugs. The program must 
also provide training on the qualifying criteria for post-accident 
toxicological testing contained in subpart C of this part, and the role 
of the supervisor in post-accident collections described in subpart C.
* * * * *

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


Sec.  219.23   Railroad policies.

    (a) Whenever a breath or body fluid test is required of a regulated 
employee under this part, the railroad (either through a railroad 
employee or a designated agent, such as a contracted collector) must 
provide clear and unequivocal written notice to the employee that the 
test is being required under FRA regulations and is being conducted 
under Federal authority. * * *
* * * * *
    (c) * * *
    (2) For a minimum of three years after March 4, 2022, also ensuring 
that a hard copy of these materials is provided to each mechanical 
employee.
    (d) * * *
    (2) The specific classes or crafts of employee who are subject to 
the provisions of this part, such as engineers, conductors, MOW 
employees, MECH employees, signal maintainers, or train dispatchers;
* * * * *

Subpart C--Post-Accident Toxicological Testing

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


Sec.  219.203   Responsibilities of railroads and employees.

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

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


Sec.  219.205   Specimen collection and handling.

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

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


Sec.  219.206   FRA access to breath test results.

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

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


Sec.  219.207   Fatality.

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

[[Page 5735]]

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

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


Sec.  219.211   Analysis and follow-up.

    (a) Specimens are analyzed for alcohol, controlled substances, and 
non-controlled substances specified by FRA under protocols specified by 
FRA. These substances may be tested for in any form, whether naturally 
or synthetically derived. Specimens may be analyzed for other impairing 
substances specified by FRA as necessary to the particular accident 
investigation.
* * * * *
    (c) With respect to a surviving employee, a test reported as 
positive for alcohol or a controlled substance must be reviewed by the 
railroad's Medical Review Officer (MRO) with respect to any claim of 
use or administration of medications (consistent with Sec.  219.103) 
that could account for the laboratory findings. The MRO must promptly 
report the results of each review by email to [email protected]. 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 [email protected]. 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 [email protected]. The 
employee's request must specify the railroad, accident date, and 
location. Upon receipt of the employee's request, FRA will identify and 
select a qualified referee laboratory that has available an 
appropriate, validated assay for the specimen type and analyte(s) 
declared positive. Because some analytes may deteriorate during 
storage, if the referee laboratory detects levels above its Limit of 
Detection (as defined in 49 CFR 40.3), FRA will report the retest 
result as corroborative of the original PAT test result.

Subpart E--Reasonable Cause Testing

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


Sec.  219.403   Requirements for reasonable cause testing.

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

Subpart F--Pre-Employment Tests

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


Sec.  219.501   Pre-employment drug testing.

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

[[Page 5736]]

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

Subpart G--Random Alcohol and Drug Testing Programs

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


Sec.  219.605   Submission and approval of random testing plans.

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

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


Sec.  219.607   Requirements for random testing plans.

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

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


Sec.  219.615   Random testing collections.

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

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


Sec.  219.617   Participation in random alcohol and drug testing.

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

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


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

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

Subpart I--Annual Report

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


Sec.  219.800   Annual reports.

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

[[Page 5737]]

annual work hours, including hours worked by all employees of the 
railroad, regardless of occupation, not only while in the United 
States, but also while outside the United States.
    (2) When a contractor performs regulated service for at least one 
railroad with 400,000 or more total annual employee work hours, 
including hours worked by all employees of the railroad, regardless of 
occupation, not only while in the United States, but also while outside 
the United States, this subpart applies as follows:
    (i) A railroad with 400,000 or more total employee annual work 
hours must comply with this subpart regarding any contractor employees 
it integrates into its own alcohol and drug program under this part; 
and
    (ii) If a contractor establishes an independent alcohol and drug 
testing program that meets the requirements of this part and is 
acceptable to the railroad, the contractor must comply with this 
subpart if it has 200 or more regulated employees.

Appendix B to Part 219--[Removed]

0
20. Remove appendix B to part 219.

Appendix C to Part 219--[Removed]

0
21. Remove appendix C to part 219.

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