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Compliance

Effective March 4th: Mechanical Employees Included in Part 219

On February 2, 2022, FRA published a Final Rule updating 49 CFR Part 219 to include Mechanical Employees. This post provides a brief update on what is changing and when. Several changes to PAT Testing, Reasonable Cause, and Pre-Employment tests are effective March 4, 2022.

To ensure you understand the full scope of these changes, read the full Final Rule here.

Updated Definitions

Refer to 219.5 for a full list of definitions.

Covered regulated employee means a broad class of covered service, maintenance-of-way, or mechanical employees (as defined in this section). For the purposes of determining random testing rates under § 219.625, if an individual performs both covered service and maintenance-of-way activities, or covered service and mechanical activities, he or she belongs in the category of regulated employee that corresponds with the type of regulated service comprising the majority of his or her regulated service

Employee means any individual, (including a volunteer or a probationary employee) performing activities for a railroad, a contractor to a railroad, or a subcontractor to a railroad.

Mechanical employee or MECH employee

(1) Any employee who, on behalf of a railroad, performs mechanical tests or inspections required by parts 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.

Effective March 4, 2022

With a quickly approaching effective date of March 4th, first, let's look at what is required in just a few short weeks.

PAT Testing

Mechanical employees are subject to the same Post-Accident Toxicological (PAT) Testing as covered service and Maintenance of Way Employees. This means a Mechanical employee (as defined by Part 219) 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.

Below are some highlights of the PAT Testing, again refer to the Final Rule for the full list of changes.

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.

FRA is adding reasonable cause testing bases specifically applicable to Mechanical employee functions. FRA authorizes but does not require reasonable cause testing, and to 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 rules. Additional rule violations include:

(17) Improper use of individual train detection in a manual interlocking or control point;

(18) Failure to apply three point protection (fully apply the locomotive and train brakes, center the reverser, and place the generator field switch in the off position) that results in a reportable injury to a regulated employee;

(19) Failure to display blue signals in accordance with § 218.25 through § 218.30 of this chapter;

(20) Failure to perform a required brake test, or having knowledge that a required brake test was not performed, pursuant to the Class I, Class IA, Class II, or Class III, or transfer train brake test provisions of part 232, or the running brake test provisions of part 238, of this chapter;

(21) Failure to comply with prohibitions against tampering with locomotive mounted safety devices, or permitting a train to be operated with an unauthorized disabled safety device in the controlling locomotive; or

(22) Failure to have a derailing device in proper position and locked if required in accordance with § 218.109 of this chapter

Pre-Employment Tests

Mechanical employees who were performing regulated service for a railroad, or contractor or subcontractor of a railroad before March 4, 2022. However, Mechanical employees that are hired on a new or additional railroad after March 4, 2022, are subject to pre-employment testing.

From the discussion section of the Final Rule, "To clarify how the proposed revisions in this section fit with the existing requirements of part 40, as discussed above, this new paragraph specifies that § 40.25 of DOT’s Workplace Testing Procedures (49 CFR part 40) applies to a MOW or MECH employee who was or would be exempted from FRA pre-employment drug testing. To comply with § 40.25, a railroad must conduct a drug and alcohol records check of a previously exempted MOW or MECH employee’s previous two years of employment within 30 days of when the employee performs regulated service for the first time."

Random Testing

Within 30 days after it becomes subject to the requirements of this subpart, the random testing plan is required to be submitted to FRA by email to FRA-DrugAlcoholProgram.email@dot.gov. The plan must include the name of the railroad or contractor in the subject line.

From FRA's Discussion Section on 219.605 Submission and Approval of Random Testing Plans –by May 3, 2022

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. 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.

Other Notes

Are you still feeling a little confused about what needs to be done as a result of these changes? We can help! Contact us at info@sparkts.net.

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