[Federal Register Volume 66, Number 83 (Monday, April 30, 2001)]
[Proposed Rules]
[Pages 21511-21538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9413]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 219

[FRA Docket No. RSOR-6, Notice No. 48]
RIN 2130-AB43


Control of Alcohol and Drug Use: Proposed Changes To Conform With 
New DOT Transportation Workplace Testing Procedures

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: On December 19, 2000, DOT published a final rule 
comprehensively changing its procedures for transportation workplace 
drug and alcohol testing programs. These amendments to the DOT drug and 
alcohol testing rule became effective on January 18, 2001; the revised 
DOT testing rule will become effective on August 1, 2001. The new DOT 
testing rule uses a plain language, question-and-answer format to make 
the Department's procedures clearer, more comprehensive, and more up-
to-date.
    FRA and the other DOT agencies with substance abuse programs 
governed by DOT testing procedures (the Federal Aviation Administration 
(FAA), the Federal Motor Carrier Safety Administration (FMCSA), the 
Federal Transit Administration (FTA), the Research and Special Programs 
Administration (RSPA), and the United States Coast Guard (USCG)) are 
publishing NPRMs in today's Federal Register proposing changes 
that would conform their individual regulations to the new DOT 
procedures. See the Department's Common Preamble to this NPRM for an 
additional discussion of the changes proposed in this NPRM.

DATES: Written comments must be received by June 14, 2001. 
Comments received after that date will be considered to the extent 
possible without incurring additional expense or delay.

ADDRESSES: Anyone wishing to file a comment should refer to the 
FRA docket and notice numbers (FRA Docket No. RSOR-6, Notice No. 48). 
You may submit your comments and related material by only one of the 
following methods:
    By mail to the Docket Management System, U.S. Department of 
Transportation, room PL-401, 400 7th Street, SW., Washington, DC 20590-
0001; or Electronically through the Web site for the Docket Management 
System at http://dms.dot.gov. For instructions on how to submit 
comments electronically, visit the Docket Management System Web site 
and click on the ``Help'' menu.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments, and documents as indicated in this preamble, will 
become part of this docket and will be available for inspection or 
copying at room PL-401 on the plaza level of the Nassif Building at the 
same address during regular business hours. You may also obtain access 
to this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Lamar Allen, Alcohol and Drug 
Program Manager, FRA Office of Safety, RRS-11, 1120 Vermont Avenue, 
NW., Mail Stop

[[Page 21512]]

25, Washington, DC 20590 (telephone 202-493-6313); or Patricia V. Sun, 
Trial Attorney, Office of the Chief Counsel, RCC-11, 1120 Vermont 
Avenue, NW., Mail Stop 10, Washington, DC 20590 (telephone 202-493-
6038).

SUPPLEMENTARY INFORMATION:

Background

    In this NPRM, FRA proposes changes that would conform its drug and 
alcohol testing regulations (49 CFR part 219) to the recently published 
revision of DOT's procedures for transportation workplace drug and 
alcohol testing programs (49 CFR part 40) (December 19, 2000, 65 FR 
79462). FRA (concurrently with FAA, FMCSA, FTA, RSPA, and USCG, which 
also have programs governed by part 40 procedures), is publishing an 
NPRM that would reference the new part 40 in its own drug and alcohol 
testing rule.
    FRA will not hold a public hearing on this proposal. This NPRM is 
nonsignificant and proposes only changes to update this part and 
conform it to the new part 40. The changes in part 40 were fully 
discussed at three Department listening sessions held earlier this 
year.
    FRA proposes to delete from part 219 provisions that are also 
covered in the new part 40. Railroad employers and employees, along 
with others affected by part 219, have always been required to read and 
understand both part 219 and part 40 to comply with FRA's drug 
and alcohol workplace requirements. Referring the reader directly to 
part 40 instead of duplicating part 40 rule text in part 219 would 
promote both drafting economy and consistency of interpretation.
    Deleting part 40 material from part 219 would affect only certain 
subparts of FRA's rule. Part 40 procedures do not cover FRA post-
accident toxicological testing (subpart C of part 219), which predates 
part 40, has always used separate procedures, and is explicitly 
exempted from the new part 40 in Sec. 40.1. Most of the general 
requirements (subpart A) and prohibitions (subpart B) in part 219 would 
remain unchanged since they are specific to the rail industry (with the 
exception of the return-to-duty, follow-up testing and Substance Abuse 
Professional (SAP) requirements in Sec. 219.104, which would be deleted 
since they now duplicate those in part 40). Employee referral and 
assistance (subpart E), annual report (subpart I) and recordkeeping 
(subpart J) requirements would remain in part 219, but most of the 
procedural provisions in subparts D, F, G, and H (respectively, 
mandatory reasonable suspicion, Federal reasonable cause, pre-
employment, and random testing) would be deleted from part 219 since 
these types of testing use part 40 procedures.
    Although the primary purpose of this NPRM is to conform part 219 
with the new part 40, FRA would also make corrections to comply with 
Federal Register format requirements and delete outdated rule 
text references (e.g., past implementation dates, former accident 
reporting thresholds, old contact information) that can currently be 
found throughout part 219. FRA would also delete Appendix D, which 
reprints the Management Information System (MIS) reporting forms for 
railroad drug and alcohol programs; these forms have been in use since 
1994 and are now available electronically. Following plain language 
principles, FRA would also substitute ``must'' for ``shall'' throughout 
this document, to make clear that FRA intends for the word ``shall,'' 
as currently used in part 219, to impose a requirement, not to express 
futurity or any other notion. Because part 40 already authorizes saliva 
alcohol testing, and may eventually authorize other testing 
methodologies, FRA would also remove the references in subparts D, F, 
G, and H to ``urine drug testing'' and ``breath alcohol testing'' and 
replace these, where appropriate, with more generic terms such as 
``alcohol testing,'' ``drug testing,'' and ``breath or body fluid 
testing.''
    Finally, part 219 contains citations to the Federal Railroad Safety 
Act of 1970 and the Hours of Service Act, which were repealed in 1994 
as part of a broad recodification of the transportation laws and then 
reenacted without substantive change as positive law in title 49 of the 
United States Code. See Public Law 103-272. Throughout this 
document, FRA would replace these references to repealed statutes with 
references to the proper sections or chapters in title 49 of the United 
States Code. FRA does not intend to alter the substantive meaning of a 
provision by making technical changes to its statutory citations.
    For ease of reference, FRA is publishing part 219 in its entirety 
with the proposed amendments discussed below. FRA intends to time 
publication of the final rule so that its conforming changes to part 
219 become effective concurrently with most of part 40 on August 1, 
2001.

Section-by-Section Analysis

Subpart A--General

Section 219.5  Definitions
    Since part 219 would incorporate by reference all of part 40, FRA 
proposes to delete from part 219 those definitions that can now be 
found in Sec. 40.3: Alcohol, Alcohol concentration, Alcohol use, 
Consortium, DOT agency, Drug(s), and Medical Review Officer; 
FRA would also delete Refuse to submit (to a drug test) and 
Refuse to submit (to an alcohol test), which are defined in 
Sec. Sec. 40.191 and 40.261, respectively. Definitions specific to part 
219, the rail industry, or both, such as Covered employee and 
Railroad would remain in this rule.
    The definition of Class I, Class II, and Class III 
has been revised by deleting '', as those regulations may be 
revised and applied by order of the Board (including modifications in 
class thresholds based on revenue deflator adjustments).'' The purpose 
of this change is to conform to Federal Register requirements; 
no substantive change is intended.
    FRA would also delete the outdated references to the 1991 through 
1999 accident reporting thresholds from these definitions: Impact 
accident, Reporting threshold, and Train accident. See the 
discussion of Sec. 219.201 for a further discussion of the proposed 
changes to these definitions.
Section 219.7  Waivers
Paragraph (b)
    Section 40.21 maintains the Departmental policy of prohibiting 
employers from standing employees down; that is, removing employees 
from safety-sensitive service after the Medical Review Officer (MRO) 
has received a laboratory report of confirmed positive test results, 
adulterated test results, or substituted test results, before the 
results have been verified by the MRO. DOT agencies may, however, waive 
this prohibition if an employer can demonstrate that a waiver would 
effectively enhance safety while protecting employee fairness and 
confidentiality. FRA's Railroad Safety Board would determine each 
petition for stand down in accordance with Sec. 40.21 and subpart C of 
49 CFR part 211, which subpart contains the rules of practice governing 
petitions for waiver of FRA safety rules, regulations or standards.
Section 219.11  General Conditions for Chemical Tests
Paragraph (b)
    In Sec. 219.11, FRA would delete the last two sentences of (b)(2), 
which address the use of catheterization to obtain urine samples for 
testing, and would delete subparagraph (b)(4), which makes tampering 
with a sample through adulteration, dilution, or substitution a refusal 
to provide a sample. DOT addresses the use of catheterization in 
Sec. 40.61(b)(3), what constitutes a refusal to provide a sample in 
Sec. 40.191, and

[[Page 21513]]

what an employer must do following a verified adulterated or 
substituted test result in Sec. 40.23.
Section 219.21  Information Collection
    FRA would update the list of information collection requirements in 
this section by adding Sec. Sec. 219.801, 219.803, 219.901, and 219.903 
from the annual report and recordkeeping requirements found in subparts 
I and J, respectively, of this part; which were approved by the Office 
of Management and Budget before their implementation in 1994. FRA would 
also add an information collection requirement for Sec. 219.502, which 
authorizes pre-employment alcohol testing, and would delete the 
requirements for Sec. Sec. 219.307 and 219.309, which have already been 
deleted from this rule, and Sec. Sec. 219.703, 219.705, 219.707, 
219.709, 219.711, and 219.713, which FRA proposes to delete in this 
rulemaking.
Section 219.23  Railroad Policies
Paragraph (b)
    FRA would add new language reiterating the prohibition in 
Sec. 40.47 against the use of DOT custody and control forms for non-DOT 
testing. Section 219.23 would otherwise remain the same.

Subpart B--Prohibitions

Section 219.102  Prohibitions on Abuse of Controlled Substances
    FRA would delete the 1989 implementation date from this section.
Section 219.104  Responsive Action
Paragraph (d)
    FRA would delete its return-to-service and follow-up testing 
requirements, and its Substance Abuse Professional (SAP) conflict-of-
interest prohibitions, and instead reference the sections in part 40 
that cover these requirements (Sec. Sec. 40.305, 40.307, and 40.299, 
respectively) in amended paragraph (d). FRA would also delete 
paragraphs (e) and (f) of this section, which would then be made 
unnecessary, and paragraph (g) of this section, which mandated a 1995 
implementation date for certain requirements in this section.

Subpart C--Post-Accident Toxicological Testing

    As stated above, part 40 procedures do not apply to FRA post-
accident toxicological testing, which has always followed its own 
unique procedures. Section 40.1(c) explicitly states that nothing in 
part 40 supersedes or conflicts with FRA's post-accident testing 
program. Since this subpart does not need to be conformed to part 40, 
the only proposals are minor technical changes to update this subpart.
    One change would streamline FRA's procedures for notification after 
post-accident events. One-stop notification to the National Response 
Center (NRC) would be sufficient for problems in obtaining samples from 
an injured employee (Sec. 219.203(d)(2)) or an employee fatality 
(Sec. 219.207(b)), although FRA would still require railroads to notify 
both the NRC and FRA whenever post-accident testing is conducted 
(Sec. 219.209). The remaining technical changes are discussed below.
Section 219.201  Events for Which Testing Is Required
Paragraph (a)
    In its annual adjustment of the accident reporting threshold, FRA 
decided to leave the $6,600 accident reporting threshold unchanged for 
calendar year 2001 (November 21, 2000, 65 FR 69884). The reporting 
threshold final rule, which becomes effective January 1, 2001, amends 
this section and the definitions of Impact accident, Reporting 
Threshold, and Train Accident found in Sec. 219.5.
    In this NPRM, FRA proposes to ``clean up'' part 219 by removing the 
outdated references to the accident reporting thresholds listed for the 
years 1991-1999. To streamline this part, FRA would incorporate the 
accident reporting threshold set annually in Sec. 225.19(e) of its 
accident reporting rule (49 CFR part 225) instead of listing the 
threshold for each year in this section and in the definitions listed 
above in Sec. 219.5.
Section 219.211  Analysis and Follow-up
Paragraph (i)
    FRA would amend this paragraph, which currently allows an employee 
the right to request a retest of his or her post-accident samples. This 
right no longer exists, since FRA incorporated split sample testing 
into its post-accident testing procedures in 1994; the employee would 
still have up to 60 days from the date of the toxicology report 
(instead of 72 hours from notification by the MRO as in Sec. 40.171) to 
request that his or her split samples be tested.

Subpart D--Testing for Cause

Section 219.300  Mandatory Reasonable Suspicion Testing
Paragraph (a)
    FRA would remove the 1995 implementation date from this paragraph.
Paragraph (d)(2)
    FRA would delete this paragraph which contains reporting 
requirements that expired on March 15, 1998.
Section 219.303  Alcohol Test Procedures and Safeguards
    FRA would delete this section, since alcohol testing conducted 
under this subpart now follows part 40 procedures.
Section 219.305  Urine Test Procedures and Safeguards
    FRA would delete this section since it would be made unnecessary by 
revised Sec. 219.701, which would combine all of the sections in the 
current rule that require tests conducted under part 219 authority 
(except for subpart C post-accident testing) to follow part 40 
procedures.

Subpart E--Identification of Troubled Employees

    Other than the proposed amendment to Sec. 219.403 discussed below, 
this subpart would remain unchanged.
Section 219.403  Voluntary Referral Policy
Subparagraph (b)(5)
    With respect to a certified locomotive engineer and a candidate for 
certification, Sec. 240.119(e) of FRA's regulations on qualification 
and certification of locomotive engineers (49 CFR part 240) requires 
the railroad to waive its policy of confidentiality and suspend or 
revoke the engineer's certificate if the SAP reports that the engineer 
has failed to cooperate with a course of recommended treatment. For 
ease of reference, FRA would add a new subparagraph cross-referencing 
this requirement, which applies to all voluntary referral policies.

Subpart F--Pre-Employment Tests

Section 219.501  Pre-Employment Drug Testing
Section 219.502  Pre-Employment Alcohol Testing
    FRA would revise this subpart to delete an outdated implementation 
schedule and separately address pre-employment drug testing and pre-
employment alcohol testing. Section 219.501 would be revised to address 
only pre-employment drug testing requirements, which would remain 
unchanged. FRA would create a new Sec. 219.502 to incorporate 
Departmental language reauthorizing pre-employment alcohol testing, 
which was suspended in May 1995 (May 10, 1995, 60 FR 24766). Pre-
employment alcohol testing, unlike pre-employment drug testing, would 
be authorized but not mandatory.

[[Page 21514]]

    See the Common Preamble to this NPRM for a discussion of 
Sec. 40.25, which requires employers to ask applicants whether there 
were any situations in which they tested positive on a pre-employment 
test for an employer that subsequently did not hire them.
Section 219.503  Notification; Records
    For the reasons discussed above, FRA proposes to remove the 
references in this section to ``urine and breath tests'' and replace 
these with more generic references to ``drug and alcohol tests.''

Subpart G--Random Alcohol and Drug Testing Programs

Section 219.601  Railroad Random Drug Testing Programs
Paragraph (a) and Subparagraph (d)(2)
    FRA would delete the outdated implementation schedule from this 
section because random drug testing is fully implemented in the rail 
industry. New railroads must submit a random testing program for FRA 
approval within 60 days after commencing operations, and implement the 
program as approved within 60 days of receiving approval.
Section 219.605  Positive Drug Test Results; Procedures
    Paragraph (a) of this section would be removed and reserved, since 
it has been superseded by the MRO verification requirements in 
Sec. 40.129. FRA would also delete the now unnecessary reference to a 
``retest'' from paragraph (b) of this section.
Section 219.607  Railroad Random Alcohol Testing Programs
Paragraph (a) and Subparagraph (c)(2)
    As with Sec. 219.601, FRA would delete the outdated implementation 
schedule and specify the implementation requirements for new railroads.
Section 219.608  Administrator's Determination of Random Alcohol 
Testing Rate
Subparagraph (b)(1)(i)
    This subparagraph specifies the implementation requirements for new 
railroads.

Subpart H--Drug and Alcohol Testing Procedures

Section 219.701  Standards for Drug and Alcohol Testing
    FRA would revise this section to consolidate in one section the 
requirement that testing under subparts B, D, F, and G of this part 
comply with part 40 procedures. In new paragraph (c) of this section, 
FRA would expand the requirement (currently found in Sec. 219.715(a), 
which would be deleted) that an employee proceed to the testing site 
immediately upon notification of selection apply to random drug testing 
as well as to random alcohol testing. FRA would delete the rest of this 
subpart (Sec. Sec. 219.703-219.715), since it has been superseded by 
part 40.

Subpart I--Annual Report

    FRA does not propose to change the reporting requirements of its 
Management Information System (MIS).

Subpart J--Recordkeeping Requirements

Section 219.901  Retention of Alcohol Testing Records
Section 219.903  Retention of Drug Testing Records
    FRA would streamline these sections by deleting any recordkeeping 
requirements that duplicate those contained in various sections of part 
40. In addition to the employer recordkeeping requirements in 
Sec. 40.333, part 40 now requires service agents to maintain copies of 
records that were formerly required to be kept by employers (e.g., SAPs 
are now required to maintain copies of their evaluation and follow-up 
reports to employers for five years), so that some of the recordkeeping 
responsibilities currently in Sec. Sec. 219.901 and 219.903 would shift 
from railroads to their service agents.

Appendix A to Part 219--Schedule of Civil Penalties

    FRA proposes to clarify its schedule of civil penalties by 
reorganizing the schedule and listing more guideline penalty amounts 
for violations of part 219. The examples provided are illustrative, not 
comprehensive, as stated in footnote 1, FRA reserves the right to 
assess a penalty of up to $22,000 for any violation of this rule, 
including violations not listed in this penalty schedule.
    For the most part, FRA does not propose to raise its guideline 
penalty amounts above their current levels. The additional violations 
listed have proposed assessments equivalent to violations already 
listed in the penalty schedule. The only exceptions are those 
violations currently listed at the statutory minimum of $500 (see 
Sec. 209.409 in FRA's railroad safety enforcement procedures (49 CFR 
part 209)); FRA would raise the penalties for these violations to 
$1,000.

Appendix D to Part 219--Management Information System Collection Forms

    As discussed above, FRA would delete Appendix D, which reprints MIS 
forms that have been in use since 1994.

Regulatory Analyses and Notices

    While the Department's final rule amending part 40 is significant 
for purposes of Executive Order 12866, this NPRM is not. Although the 
part 40 rule contains major policy changes, the proposed amendments in 
this NPRM would make policy changes only to the extent necessary to 
conform this rule to the changes already made in part 40. The other 
purpose of this NPRM is to update part 219 by deleting outdated 
references.
    The Department's regulatory analysis of part 40 determined that the 
final rule is not economically significant since its reworking of 
existing requirements would not result in significant new costs. This 
NPRM, which would conform part 219 to part 40, is likewise not 
economically significant. FRA has therefore not prepared a Regulatory 
Evaluation of the costs and benefits of this proposal.
    See the Department of Transportation's common preamble, 
``Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs,'' for a regulatory evaluation summary of this and the other 
operating administration NPRMs proposing changes to conform to the new 
part 40.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 
3501 et seq., FRA has determined that there are no new 
requirements for information collection associated with this proposed 
rule.

Request for Public Comment

    In accordance with Executive Order 12866, FRA is allowing members 
of the public 60 days to comment on this proposed rule. FRA may make 
changes to the final rule based on comments received in response to 
this NPRM.

List of Subjects in 49 CFR Part 219

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

The Proposal

    For the reasons stated above, FRA proposes to revise part 219 to 
read as follows:

[[Page 21515]]

PART 219--CONTROL OF ALCOHOL AND DRUG USE

Subpart A--General

Sec.
219.1   Purpose and scope.
219.3   Application.
219.5   Definitions.
219.7   Waivers.
219.9   Responsibility for compliance.
219.11   General conditions for chemical tests.
219.13   Preemptive effect.
219.15   [Reserved]
219.17   Construction.
219.19   [Reserved]
219.21   Information collection.
219.23   Railroad policies.

Subpart B--Prohibitions

219.101   Alcohol and drug use prohibited.
219.102   Prohibition on abuse of controlled substances.
219.103   Prescribed and over-the-counter drugs.
219.104   Responsive action.
219.105   Railroad's duty to prevent violations.
219.107   Consequences of unlawful refusal.

Subpart C--Post-Accident Toxicological Testing

219.201   Events for which testing is required.
219.203   Responsibilities of railroads and employees.
219.205   Sample collection and handling.
219.206   FRA access to breath test results.
219.207   Fatality.
219.209   Reports of tests and refusals.
219.211   Analysis and follow-up.
219.213   Unlawful refusals; consequences.

Subpart D--Testing for Cause

219.300   Mandatory reasonable suspicion testing.
219.301   Testing for reasonable cause.
219.302   Prompt sample collection; time limitation.

Subpart E--Identification of Troubled Employees

219.401   Requirement for policies.
219.403   Voluntary referral policy.
219.405   Co-worker report policy.
219.407   Alternate policies.

Subpart F--Pre-employment Tests

219.501   Pre-employment drug testing.
219.502   Pre-employment alcohol testing.
219.503   Notification; records.
219.505   Refusals.

Subpart G--Random Alcohol and Drug Testing Programs

219.601   Railroad random drug testing programs.
219.602   FRA Administrator's determination of random drug testing 
rate.
219.603   Participation in drug testing.
219.605   Positive drug test results; procedures.
219.607   Railroad random alcohol testing programs.
219.608   FRA Administrator's determination of random alcohol 
testing rate.
219.609   Participation in alcohol testing.
219.611   Test result indicating prohibited alcohol concentration; 
procedures.

Subpart H--Drug and Alcohol Testing Procedures

219.701   Standards for drug and alcohol testing.

Subpart I--Annual Report

219.801   Reporting alcohol misuse prevention program results in a 
management information system.
219.803   Reporting drug misuse prevention program results in a 
management information system.

Subpart J--Recordkeeping Requirements

219.901   Retention of alcohol testing records.
219.903   Retention of drug testing records.
219.905   Access to facilities and records.
Appendix A to Part 219  Schedule of Civil Penalties
Appendix B to Part 219   Designation of Laboratory for Post-
Accident Toxicological Testing
Appendix C to Part 219  Post-Accident Testing Sample 
Collection

    Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 
21311; 28 U.S.C. 2461, note; and 49 CFR 1.49(m).

Subpart A--General


Sec. 219.1  Purpose and scope.

    (a) The purpose of this part is to prevent accidents and casualties 
in railroad operations that result from impairment of employees by 
alcohol or drugs.
    (b) This part prescribes minimum Federal safety standards for 
control of alcohol and drug use. This part does not restrict a railroad 
from adopting and enforcing additional or more stringent requirements 
not inconsistent with this part.


Sec. 219.3  Application.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
this part applies to--
    (1) Railroads that operate rolling equipment on standard gage track 
which is part of the general railroad system of transportation; and (2) 
Railroads that provide commuter or other short-haul rail passenger 
service in a metropolitan or suburban area (as described by 49 U.S.C. 
20102). (b)(1) This part does not apply to a railroad that operates 
only on track inside an installation which is not part of the general 
railroad system of transportation.
    (2) Subparts D, E, F and G of this part do not apply to a railroad 
that employs not more than 15 employees covered by the hours of service 
laws at 49 U.S.C. 21103, 21104, or 21105, and that does not operate on 
tracks of another railroad (or otherwise engage in joint operations 
with another railroad) except as necessary for purposes of interchange.
    (3) Subpart I of this part does not apply to a railroad that has 
fewer than 400,000 total manhours.
    (c) Subparts E, F and G of this part do not apply to operations of 
a foreign railroad conducted by covered service employees whose primary 
place of service (``home terminal'') for rail transportation services 
is located outside the United States. Such operations and employees are 
subject to subparts A, B, C, and D of this part when operating in 
United States territory.


Sec. 219.5  Definitions.

    As used in this part--
    Class I, Class II, and Class III have the meaning 
assigned by regulations of the Surface Transportation Board (49 CFR 
part 1201; General Instructions 1-1).
    Controlled substance has the meaning assigned by 21 U.S.C. 
802, and includes all substances listed on Schedules I through V as 
they may be revised from time to time (21 CFR parts 1301-1316).
    Covered employee means a person who has been assigned to 
perform service subject to the hours of service laws (49 U.S.C. ch. 
211) during a duty tour, whether or not the person has performed or is 
currently performing such service, and any person who performs such 
service. (An employee is not ``covered'' within the meaning of this 
part exclusively by reason of being an employee for purposes of 49 
U.S.C. 21106.) For the purposes of pre-employment testing only, the 
term ``covered employee'' includes a person applying to perform covered 
service.
    Co-worker means another employee of the railroad, including 
a working supervisor directly associated with a yard or train crew, 
such as a conductor or yard foreman, but not including any other 
railroad supervisor, special agent, or officer.
    DOT Agency means an agency (or ``operating 
administration'') of the United States Department of Transportation 
administering regulations requiring alcohol or controlled substance 
testing (14 CFR parts 61, 63, 65, 121 and 135; 49 CFR parts 199, 219, 
382 and 655) in accordance with part 40 of this title.

[[Page 21516]]

    Drug means any substance (other than alcohol) that has 
known mind- or function-altering effects on a human subject, 
specifically including any psychoactive substance and including, but 
not limited to, controlled substances.
    FRA means the Federal Railroad Administration, United 
States Department of Transportation.
    FRA representative means the Associate Administrator for 
Safety of FRA, the Associate Administrator's delegate (including a 
qualified State inspector acting under part 212 of this chapter), the 
Chief Counsel of FRA, or the Chief Counsel's delegate.
    Hazardous material means a commodity designated as a 
hazardous material by part 172 of this title.
    Impact accident means a train accident (i.e., a rail 
equipment accident involving damage in excess of the current reporting 
threshold (see Sec. 225.19(e) of this chapter)) consisting of a head-on 
collision, a rear-end collision, a side collision (including a 
collision at a railroad crossing at grade), a switching collision, or 
impact with a deliberately-placed obstruction such as a bumping post. 
The following are not impact accidents:
    (1) An accident in which the derailment of equipment causes an 
impact with other rail equipment;
    (2) Impact of rail equipment with obstructions such as fallen 
trees, rock or snow slides, livestock, etc.; and
    (3) Raking collisions caused by derailment of rolling stock or 
operation of equipment in violation of clearance limitations.
    Independent with respect to a medical facility, means not 
under the ownership or control of the railroad and not operated or 
staffed by a salaried officer or employee of the railroad. The fact 
that the railroad pays for services rendered by a medical facility or 
laboratory, selects that entity for performing tests under this part, 
or has a standing contractual relationship with that entity to perform 
tests under this part or perform other medical examinations or tests of 
railroad employees does not, by itself, remove the facility from this 
definition.
    Medical facility means a hospital, clinic, physician's 
office, or laboratory where toxicological samples can be collected 
according to recognized professional standards.
    Medical practitioner means a physician or dentist licensed 
or otherwise authorized to practice by the state.
    NTSB means the National Transportation Safety Board.
    Passenger train means a train transporting persons (other 
than employees, contractors, or persons riding equipment to observe or 
monitor railroad operations) in intercity passenger service, commuter 
or other short-haul service, or for excursion or recreational purposes.
    Positive rate means the number of positive results for 
random drug tests conducted under this part plus the number of refusals 
of random tests required by this part, divided by the total number of 
random drug tests conducted under this part plus the number of refusals 
of random tests required by this part.
    Possess means to have on one's person or in one's personal 
effects or under one's control. However, the concept of possession as 
used in this part does not include control by virtue of presence in the 
employee's personal residence or other similar location off of railroad 
property.
    Railroad means any form of nonhighway ground transportation 
that runs on rails or electromagnetic guideways, and any person 
providing such transportation, including--
    (1) Commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (2) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads; but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    Railroad property damage or damage to railroad property 
refers to damage to railroad property, including railroad on-track 
equipment, signals, track, track structures (including bridges and 
tunnels), or roadbed, including labor costs and all other costs for 
repair or replacement in kind. Estimated cost for replacement of 
railroad property must be calculated as described in the FRA Guide for 
Preparing Accident/Incident Reports. (See Sec. 225.21 of this chapter.) 
However, replacement of passenger equipment is calculated based on the 
cost of acquiring a new unit for comparable service.
    Reportable injury means an injury reportable under part 225 
of this chapter.
    Reporting threshold means the amount specified in 
Sec. 225.19(e) of this chapter, as adjusted from time to time in 
accordance with appendix B to part 225 of this chapter.
    Supervisory employee means an officer, special agent, or 
other employee of the railroad who is not a co-worker and who is 
responsible for supervising or monitoring the conduct or performance of 
one or more employees.
    Train, except as context requires, means a locomotive, or 
more than one locomotive coupled, with or without cars. (A locomotive 
is a self-propelled unit of equipment which can be used in train 
service.)
    Train accident means a passenger, freight, or work train 
accident described in Sec. 225.19(c) of this chapter (a ``rail 
equipment accident'' involving damage in excess of the current 
reporting threshold), including an accident involving a switching 
movement.
    Train incident means an event involving the movement of 
railroad on-track equipment that results in a casualty but in which 
railroad property damage does not exceed the reporting threshold.
    Violation rate means the number of covered employees (as 
reported under Sec. 219.801) found during random tests given under this 
part to have an alcohol concentration of .04 or greater, plus the 
number of employees who refuse a random test required by this part, 
divided by the total reported number of employees in the industry given 
random alcohol tests under this part plus the total reported number of 
employees in the industry who refuse a random test required by this 
part.


Sec. 219.7  Waivers.

    (a) A person subject to a requirement of this part may petition the 
FRA for a waiver of compliance with such requirement.
    (b) Each petition for waiver under this section must be filed in a 
manner and contain the information required by part 211 of this 
chapter. A petition for waiver of the part 40 prohibition against stand 
down of an employee before the Medical Review Officer has completed the 
verification must also comply with Sec. 40.21 of this title.
    (c) If the FRA Administrator finds that waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any necessary conditions.


Sec. 219.9  Responsibility for compliance.

    (a) Any person (an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing

[[Page 21517]]

goods or services to a railroad; and any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor) who violates 
any requirement of this part or causes the violation of any such 
requirement is subject to a civil penalty of at least $500 and not more 
than $11,000 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 $22,000 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 must be construed 
to qualify the responsibility of a railroad for the unauthorized 
conduct of an employee that violates Sec. Sec. 219.101 or 219.102 
(while imposing a duty of due diligence to prevent such conduct). Each 
day a violation continues constitutes a separate offense. See appendix 
A to this part for a statement of agency civil penalty policy.
    (b)(1) In the case of joint operations, primary responsibility for 
compliance with this part with respect to determination of events 
qualifying for breath or body fluid testing under subparts C and D of 
this part rests with the host railroad, and all affected employees must 
be responsive to direction from the host railroad consistent with this 
part. However, nothing in this paragraph (b)(1) restricts the ability 
of the railroads to provide for an appropriate assignment of 
responsibility for compliance with this part as among those railroads 
through a joint operating agreement or other binding contract. FRA 
reserves the right to bring an enforcement action for noncompliance 
with applicable portions of this part against the host railroad, the 
employing railroad, or both.
    (2) Where an employee of one railroad is required to participate in 
breath or body fluid testing under subpart C or D of this part and is 
subsequently subject to adverse action alleged to have arisen out of 
the required test (or alleged refusal thereof), necessary witnesses and 
documents available to the other railroad must be made available to the 
employee on a reasonable basis.
    (c) Any independent contractor or other entity that performs 
covered service for a railroad has the same responsibilities as a 
railroad under this part, with respect to its employees who perform 
covered service. The entity's responsibility for compliance with this 
part may be fulfilled either directly by that entity or by the 
railroad's treating the entity's employees who perform covered service 
as if they were its own employees for purposes of this part. The 
responsibility for compliance must be clearly spelled out in the 
contract between the railroad and the other entity or in another 
document. In the absence of such a clear delineation of responsibility, 
FRA will hold the railroad and the other entity jointly and severally 
liable for compliance.


Sec. 219.11  General conditions for chemical tests.

    (a) Any employee who performs covered service for a railroad is 
deemed to have consented to testing as required in subparts B, C, D, 
and G of this part; and consent is implied by performance of such 
service.
    (b)(1) Each such employee must participate in such testing, as 
required under the conditions set forth in this part by a 
representative of the railroad.
    (2) In any case where an employee has sustained a personal injury 
and is subject to alcohol or drug testing under this part, necessary 
medical treatment must be accorded priority over provision of the 
breath or body fluid sample(s).
    (3) Failure to remain available following an accident or casualty 
as required by company rules (i.e., being absent without leave) is 
considered a refusal to participate in testing, without regard to any 
subsequent provision of samples.
    (c) A covered employee who is required to be tested under subpart C 
or D of this part and who is taken to a medical facility for 
observation or treatment after an accident or incident is deemed to 
have consented to the release to FRA of the following:
    (1) The remaining portion of any body fluid sample taken by the 
treating facility within 12 hours of the accident or incident that is 
not required for medical purposes, together with any normal medical 
facility record(s) pertaining to the taking of such sample;
    (2) The results of any laboratory tests for alcohol or any drug 
conducted by or for the treating facility on such sample;
    (3) The identity, dosage, and time of administration of any drugs 
administered by the treating facility prior to the time samples were 
taken by the treating facility or prior to the time samples were taken 
in compliance with this part; and
    (4) The results of any breath tests for alcohol conducted by or for 
the treating facility.
    (d) An employee required to participate in body fluid testing under 
subpart C of this part (post-accident toxicological testing) or testing 
subject to subpart H of this part shall, if requested by the 
representative of the railroad or the medical facility (including, 
under subpart H of this part, a non-medical contract collector), 
evidence consent to taking of samples, their release for toxicological 
analysis under pertinent provisions of this part, and release of the 
test results to the railroad's Medical Review Officer by promptly 
executing a consent form, if required by the medical facility. The 
employee is not required to execute any document or clause waiving 
rights that the employee would otherwise have against the employer, and 
any such waiver is void. The employee may not be required to waive 
liability with respect to negligence on the part of any person 
participating in the collection, handling or analysis of the specimen 
or to indemnify any person for the negligence of others. Any consent 
provided consistent with this section may be construed to extend only 
to those actions specified in this section.
    (e) Nothing in this part may be construed to authorize the use of 
physical coercion or any other deprivation of liberty in order to 
compel breath or body fluid testing.
    (f) Any railroad employee who performs service for a railroad is 
deemed to have consented to removal of body fluid and/or tissue samples 
necessary for toxicological analysis from the remains of such employee, 
if such employee dies within 12 hours of an accident or incident 
described in subpart C of this part as a result of such event. This 
consent is specifically required of employees not in covered service, 
as well as employees in covered service.
    (g) Each supervisor responsible for covered employees (except a 
working supervisor within the definition of co-worker under this part) 
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 and the 
major drug groups on the controlled substances list. The program must 
also provide training on the qualifying criteria for post-accident 
testing contained in subpart C of this part, and the role of the 
supervisor in post-accident collections described in subpart C and 
appendix C of this part. The duration of such training may not be less 
than 3 hours.
    (h) Nothing in this subpart restricts any discretion available to 
the railroad to request or require that an employee

[[Page 21518]]

cooperate in additional body fluid testing. However, no such testing 
may be performed on urine or blood samples provided under this part. 
For purposes of this paragraph (h), all urine from a void constitutes a 
single sample.


Sec. 219.13  Preemptive effect.

    (a) Under section 20106 of title 49, United States Code, issuance 
of the regulations in this part preempts any State law, rule, 
regulation, order or standard covering the same subject matter, except 
a provision directed at a local hazard that is consistent with this 
part and that does not impose an undue burden on interstate commerce.
    (b) FRA does not intend by issuance of the regulations in this part 
to preempt provisions of State criminal law that impose sanctions for 
reckless conduct that leads to actual loss of life, injury or damage to 
property, whether such provisions apply specifically to railroad 
employees or generally to the public at large.


Sec. 219.15  [Reserved]


Sec. 219.17  Construction.

    Nothing in this part--
    (a) Restricts the power of FRA to conduct investigations under 
sections 20107, 20108, 20111, and 20112 of title 49, United States 
Code; or
    (b) Creates a private right of action on the part of any person for 
enforcement of the provisions of this part or for damages resulting 
from noncompliance with this part.


Sec. 219.19  [Reserved]


Sec. 219.21  Information collection.

    (a) The information collection requirements of this part have been 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and have been 
assigned OMB control number 2130-0526.
    (b) The information collection requirements are found in the 
following sections: 219.7, 219.23, 219.104, 219.201, 219.203, 219.205, 
219.207, 219.209, 219.211, 219.213, 219.303, 219.401, 219.403, 219.405, 
219.407, 219.501, 219.502, 219.503, 219.601, 219.605, 219.701, 219.801, 
219.803, 219.901, and 219.903.


Sec. 219.23  Railroad policies.

    (a) Whenever a breath or body fluid test is required of an employee 
under this part, the railroad must provide clear and unequivocal 
written notice to the employee that the test is being required under 
FRA regulations. Use of the mandated DOT form for drug or alcohol 
testing satisfies the requirements of this paragraph (a).
    (b) Whenever a breath or body fluid test is required of an employee 
under this part, the railroad must provide clear, unequivocal written 
notice of the basis or bases upon which the test is required (e.g., 
reasonable suspicion, violation of a specified operating/safety rule 
enumerated in subpart D of this part, random selection, follow-up, 
etc.). Completion of the DOT alcohol or drug testing form indicating 
the basis of the test (prior to providing a copy to the employee) 
satisfies the requirement of this paragraph (b). Use of the DOT form 
for non-Federal tests is prohibited.
    (c) Use of approved forms for mandatory post-accident toxicological 
testing under subpart C of this part provides the notifications 
required under this section with respect to such tests. Use of those 
forms for any other test is prohibited.
    (d) Each railroad must provide educational materials that explain 
the requirements of this part, and the railroad's policies and 
procedures with respect to meeting those requirements.
    (1) The railroad must ensure that a copy of these materials is 
distributed to each covered employee prior to the start of alcohol 
testing under the railroad's alcohol misuse prevention program and to 
each person subsequently hired for or transferred to a covered 
position.
    (2) Each railroad must provide written notice to representatives of 
employee organizations of the availability of this information.
    (e) Required content. The materials to be made available to 
employees must include detailed discussion of at least the following:
    (1) The identity of the person designated by the railroad to answer 
employee questions about the materials.
    (2) The classes or crafts of employees who are subject to the 
provisions of this part.
    (3) Sufficient information about the safety-sensitive functions 
performed by those employees to make clear that the period of the work 
day the covered employee is required to be in compliance with this part 
is that period when the employee is on duty and is required to perform 
or is available to perform covered service.
    (4) Specific information concerning employee conduct that is 
prohibited under subpart B of this part.
    (5) In the case of a railroad utilizing the accident/incident and 
rule violation reasonable cause testing authority provided by this 
part, prior notice (which may be combined with the notice required by 
Sec. Sec. 219.601(d)(1) and 219.607(d)(1)), to covered employees of the 
circumstances under which they will be subject to testing.
    (6) The circumstances under which a covered employee will be tested 
under this part.
    (7) The procedures that will be used to test for the presence of 
alcohol and controlled substances, protect the employee and the 
integrity of the testing processes, safeguard the validity of the test 
results, and ensure that those results are attributed to the correct 
employee.
    (8) The requirement that a covered employee submit to alcohol and 
drug tests administered in accordance with this part.
    (9) An explanation of what constitutes a refusal to submit to an 
alcohol or drug test and the attendant consequences.
    (10) The consequences for covered employees found to have violated 
subpart B of this part, including the requirement that the employee be 
removed immediately from covered service, and the procedures under 
Sec. 219.104.
    (11) The consequences for covered employees found to have an 
alcohol concentration of .02 or greater but less than .04.
    (12) Information concerning the effects of alcohol misuse on an 
individual's health, work, and personal life; signs and symptoms of an 
alcohol problem (the employee's or a coworker's); and available methods 
of evaluating and resolving problems associated with the misuse of 
alcohol, including utilization of the procedures set forth in subpart E 
of this part and the names, addresses, and telephone numbers of 
substance abuse professionals and counseling and treatment programs.
    (f) Optional provisions. The materials supplied to 
employees may also include information on additional railroad policies 
with respect to the use or possession of alcohol and drugs, including 
any consequences for an employee found to have a specific alcohol 
concentration, that are based on the railroad's authority independent 
of this part. Any such additional policies or consequences must be 
clearly and obviously described as being based on independent 
authority.

Subpart B--Prohibitions


Sec. 219.101  Alcohol and drug use prohibited.

    (a) Prohibitions. Except as provided in Sec. 219.103--
    (1) No employee may use or possess alcohol or any controlled 
substance while assigned by a railroad to perform covered service.
    (2) No employee may report for covered service, or go or remain on 
duty in covered service while--
    (i) Under the influence of or impaired by alcohol;

[[Page 21519]]

    (ii) Having .04 or more alcohol concentration in the breath or 
blood; or
    (iii) Under the influence of or impaired by any controlled 
substance.
    (3) No employee may use alcohol for whichever is the lesser of the 
following periods:
    (i) Within four hours of reporting for covered service; or
    (ii) After receiving notice to report for covered service.
    (4) No employee tested under the provisions of this part whose test 
result indicates an alcohol concentration of .02 or greater but less 
than .04 may perform or continue to perform covered service functions 
for a railroad, nor may a railroad permit the employee to perform or 
continue to perform covered service, until the start of the employee's 
next regularly scheduled duty period, but not less than eight hours 
following administration of the test.
    (5) If an employee tested under the provisions of this part has a 
test result indicating an alcohol concentration below 0.02, the test 
must be considered negative and is not evidence of alcohol misuse. A 
railroad may not use a federal test result below 0.02 either as 
evidence in a company proceeding or as a basis for subsequent testing 
under company authority. A railroad may take further action to compel 
cooperation in other breath or body fluid testing only if it has an 
independent basis for doing so.
    (b) Controlled substance. ``Controlled substance'' is 
defined by Sec. 219.5. Controlled substances are grouped as follows: 
marijuana, narcotics (such as heroin and codeine), stimulants (such as 
cocaine and amphetamines), depressants (such as barbiturates and minor 
tranquilizers), and hallucinogens (such as the drugs known as PCP and 
LSD). Controlled substances include illicit drugs (Schedule I), drugs 
that are required to be distributed only by a medical practitioner's 
prescription or other authorization (Schedules II through IV, and some 
drugs on Schedule V), and certain preparations for which distribution 
is through documented over the counter sales (Schedule V only).
    (c) Railroad rules. Nothing in this section restricts a 
railroad from imposing an absolute prohibition on the presence of 
alcohol or any drug in the body fluids of persons in its employ, 
whether in furtherance of the purpose of this part or for other 
purposes.
    (d) Construction. This section may not be construed to 
prohibit the presence of an unopened container of an alcoholic beverage 
in a private motor vehicle that is not subject to use in the business 
of the railroad; nor may it be construed to restrict a railroad from 
prohibiting such presence under its own rules.


Sec. 219.102  Prohibition on abuse of controlled substances.

    No employee who performs covered service may use a controlled 
substance at any time, whether on duty or off duty, except as permitted 
by Sec. 219.103.


Sec. 219.103  Prescribed and over-the-counter drugs.

    (a) This subpart does not prohibit the use of a controlled 
substance (on Schedules II through V of the controlled substance list) 
prescribed or authorized by a medical practitioner, or possession 
incident to such use, if--
    (1) The treating medical practitioner or a physician designated by 
the railroad has made a good faith judgment, with notice of the 
employee's assigned duties and on the basis of the available medical 
history, that use of the substance by the employee at the prescribed or 
authorized dosage level is consistent with the safe performance of the 
employee's duties;
    (2) The substance is used at the dosage prescribed or authorized; 
and
    (3) In the event the employee is being treated by more than one 
medical practitioner, at least one treating medical practitioner has 
been informed of all medications authorized or prescribed and has 
determined that use of the medications is consistent with the safe 
performance of the employee's duties (and the employee has observed any 
restrictions imposed with respect to use of the medications in 
combination).
    (b) This subpart does not restrict any discretion available to the 
railroad to require that employees notify the railroad of therapeutic 
drug use or obtain prior approval for such use.


Sec. 219.104  Responsive action.

    (a) Removal from covered service. (1) If the railroad 
determines that an employee has violated Sec. 219.101 or Sec. 219.102, 
or the alcohol or controlled substances misuse rule of another DOT 
agency, the railroad must immediately remove the employee from covered 
service and the procedures described in paragraphs (b) through (e) of 
this section apply.
    (2) If an employee refuses to provide breath or a body fluid sample 
or samples when required to by the railroad under a mandatory provision 
of this part, the railroad must immediately remove the employee from 
covered service, and the procedures described in paragraphs (b) through 
(e) of this section apply.
    (3)(i) This section does not apply to actions based on breath or 
body fluid tests for alcohol or drugs that are conducted exclusively 
under authority other than that provided in this part (e.g., testing 
under a company medical policy, for-cause testing policy wholly 
independent of subpart D of this part, or testing under a labor 
agreement).
    (ii) This section and the information requirements listed in 
Sec. 219.23 do not apply to applicants who refuse to submit to a pre-
employment test or who have a pre-employment test with a result 
indicating the misuse of alcohol or controlled substances.
    (b) Notice. Prior to or upon withdrawing the employee from 
covered service under this section, the railroad must provide notice to 
the employee of the reason for this action.
    (c) Hearing procedures. (1) If the employee denies that the 
test result is valid evidence of alcohol or drug use prohibited by this 
subpart, the employee may demand and must be provided an opportunity 
for a prompt post-suspension hearing before a presiding officer other 
than the charging official. This hearing may be consolidated with any 
disciplinary hearing arising from the same accident or incident (or 
conduct directly related thereto), but the presiding officer must make 
separate findings as to compliance with Sec. 219.101 and Sec. 219.102.
    (2) The hearing must be convened within the period specified in the 
applicable collective bargaining agreement. In the absence of an 
agreement provision, the employee may demand that the hearing be 
convened within 10 calendar days of the suspension or, in the case of 
an employee who is unavailable due to injury, illness, or other 
sufficient cause, within 10 days of the date the employee becomes 
available for hearing.
    (3) A post-suspension proceeding conforming to the requirements of 
an applicable collective bargaining agreement, together with the 
provisions for adjustment of disputes under sec. 3 of the Railway Labor 
Act (49 U.S.C. 153), satisfies the procedural requirements of this 
paragraph (c).
    (4) Nothing in this part may be deemed to abridge any additional 
procedural rights or remedies not inconsistent with this part that are 
available to the employee under a collective bargaining agreement, the 
Railway Labor Act, or (with respect to employment at will) at common 
law with respect to the removal or other adverse action taken as a 
consequence of a positive test result in a test authorized or required 
by this part.
    (5) Nothing in this part restricts the discretion of the railroad 
to treat an employee's denial of prohibited alcohol

[[Page 21520]]

or drug use as a waiver of any privilege the employee would otherwise 
enjoy to have such prohibited alcohol or drug use treated as a non-
disciplinary matter or to have discipline held in abeyance.
    (d) The railroad must comply with the return-to-service and follow-
up testing requirements, and the Substance Abuse Professional conflict-
of-interest prohibitions, contained in Sec. Sec. 40.305, 40.307, and 
40.299 of this title, respectively.


Sec. 219.105  Railroad's duty to prevent violations.

    (a) A railroad may not, with actual knowledge, permit an employee 
to go or remain on duty in covered service in violation of the 
prohibitions of Sec. 219.101 or Sec. 219.102. As used in this section, 
the knowledge imputed to the railroad must be limited to that of a 
railroad management employee (such as a supervisor deemed an 
``officer,'' whether or not such person is a corporate officer) or a 
supervisory employee in the offending employee's chain of command.
    (b) A railroad must exercise due diligence to assure compliance 
with Sec. 219.101 and Sec. 219.102 by each covered employee.


Sec. 219.107  Consequences of unlawful refusal.

    (a) An employee who refuses to provide breath or a body fluid 
sample or samples when required to by the railroad under a mandatory 
provision of this part must be deemed disqualified for a period of nine 
(9) months.
    (b) Prior to or upon withdrawing the employee from covered service 
under this section, the railroad must provide notice of the reason for 
this action, and the procedures described in Sec. 219.104(c) apply.
    (c) The disqualification required by this section applies with 
respect to employment in covered service by any railroad with notice of 
such disqualification.
    (d) The requirement of disqualification for nine (9) months does 
not limit any discretion on the part of the railroad to impose 
additional sanctions for the same or related conduct.
    (e) Upon the expiration of the 9-month period described in this 
section, a railroad may permit the employee to return to covered 
service only under the same conditions specified in Sec. 219.104(d), 
and the employee must be subject to follow-up tests, as provided by 
that section.

Subpart C--Post-Accident Toxicological Testing


Sec. 219.201  Events for which testing is required.

    (a) List of events. Except as provided in paragraph (b) of 
this section, post-accident toxicological tests must be conducted after 
any event that involves one or more of the circumstances described in 
paragraphs (a)(1) through (4) of this section:
    (1) Major train accident. Any train accident (i.e., a rail 
equipment accident involving damage in excess of the current reporting 
threshold) that involves one or more of the following:
    (i) A fatality;
    (ii) A release of hazardous material lading from railroad equipment 
accompanied by--
    (A) An evacuation; or
    (B) A reportable injury resulting from the hazardous material 
release (e.g., from fire, explosion, inhalation, or skin contact with 
the material); or
    (iii) Damage to railroad property of $1,000,000 or more.
    (2) Impact accident. An impact accident (i.e., a rail 
equipment accident defined as an ``impact accident'' in Sec. 219.5) 
that involves damage in excess of the current reporting threshold, 
resulting in--
    (i) A reportable injury; or
    (ii) Damage to railroad property of $150,000 or more.
    (3) Fatal train incident. Any train incident that involves 
a fatality to any on-duty railroad employee.
    (4) Passenger train accident. Reportable injury to any 
person in a train accident (i.e., a rail equipment accident involving 
damage in excess of the current reporting threshold) involving a 
passenger train.
    (b) Exceptions. No test may be required in the case of a 
collision between railroad rolling stock and a motor vehicle or other 
highway conveyance at a rail/highway grade crossing. No test may be 
required in the case of an accident/incident the cause and severity of 
which are wholly attributable to a natural cause (e.g., flood, tornado, 
or other natural disaster) or to vandalism or trespasser(s), as 
determined on the basis of objective and documented facts by the 
railroad representative responding to the scene.
    (c) Good faith determinations. (1)(i) The railroad 
representative responding to the scene of the accident/incident must 
determine whether the accident/incident falls within the requirements 
of paragraph (a) of this section or is within the exception described 
in paragraph (b) of this section. It is the duty of the railroad 
representative to make reasonable inquiry into the facts as necessary 
to make such determinations. In making such inquiry, the railroad 
representative must consider the need to obtain samples as soon as 
practical in order to determine the presence or absence of impairing 
substances reasonably contemporaneous with the accident/incident. The 
railroad representative satisfies the requirement of this section if, 
after making reasonable inquiry, the representative exercises good 
faith judgement in making the required determinations.
    (ii) The railroad representative making the determinations required 
by this section may not be a person directly involved in the accident/
incident. This section does not prohibit consultation between the 
responding railroad representative and higher level railroad officials; 
however, the responding railroad representative must make the factual 
determinations required by this section.
    (iii) Upon specific request made to the railroad by the Associate 
Administrator for Safety, FRA (or the Associate Administrator's 
delegate), the railroad must provide a report describing any decision 
by a person other than the responding railroad representative with 
respect to whether an accident/incident qualifies for testing. This 
report must be affirmed by the decision maker and must be provided to 
FRA within 72 hours of the request. The report must include the facts 
reported by the responding railroad representative, the basis upon 
which the testing decision was made, and the person making the 
decision.
    (iv) Any estimates of railroad property damage made by persons not 
at the scene must be based on descriptions of specific physical damage 
provided by the on-scene railroad representative.
    (v) In the case of an accident involving passenger equipment, a 
host railroad may rely upon the damage estimates provided by the 
passenger railroad (whether present on scene or not) in making the 
decision whether testing is required, subject to the same requirement 
that visible physical damage be specifically described.
    (2) A railroad must not require an employee to provide blood or 
urine specimens under the authority or procedures of this subject 
unless the railroad has made the determinations required by this 
section, based upon reasonable inquiry and good faith judgment. A 
railroad does not act in excess of its authority under this subpart if 
its representative has made such reasonable inquiry and exercised such 
good faith judgment, but it is later determined, after investigation, 
that one

[[Page 21521]]

or more of the conditions thought to have required testing were not, in 
fact, present. However, this section does not excuse the railroad for 
any error arising from a mistake of law (e.g., application of testing 
criteria other than those contained in these regulations).
    (3) A railroad is not in violation of this subpart if its 
representative has made such reasonable inquiry and exercised such good 
faith judgment but nevertheless errs in determining that post-accident 
testing is not required.
    (4) An accident/incident with respect to which the railroad has 
made reasonable inquiry and exercised good faith judgment in 
determining the facts necessary to apply the criteria contained in 
paragraph (a) of this section is deemed a qualifying event for purposes 
of sample analysis, reporting, and other purposes.
    (5) In the event samples are collected following an event 
determined by FRA not to be a qualifying event within the meaning of 
this section, FRA directs its designated laboratory to destroy any 
sample material submitted and to refrain from disclosing to any person 
the results of any analysis conducted.


Sec. 219.203  Responsibilities of railroads and employees.

    (a) Employees tested. (1)(i) Following each accident and 
incident described in Sec. 219.201, the railroad (or railroads) must 
take all practicable steps to assure that all covered employees of the 
railroad directly involved in the accident or incident provide blood 
and urine samples for toxicological testing by FRA. Such employees must 
cooperate in the provision of samples as described in this part and 
appendix C to this part.
    (ii) If the conditions for mandatory toxicological testing exist, 
the railroad may also require employees to provide breath for testing 
in accordance with the procedures set forth in part 40 of this title 
and in this part, if such testing does not interfere with timely 
collection of required samples.
    (2) Such employees must specifically include each and every 
operating employee assigned as a crew member of any train involved in 
the accident or incident. In any case where an operator, dispatcher, 
signal maintainer or other covered employee is directly and 
contemporaneously involved in the circumstances of the accident/
incident, those employees must also be required to provide samples.
    (3) An employee must be excluded from testing under the following 
circumstances: In any case of an accident/incident for which testing is 
mandated only under Sec. 219.201(a)(2) (an ``impact accident''), 
Sec. 219.201(a)(3) (``fatal train incident''), or Sec. 219.201(a)(4) (a 
``passenger train accident with injury'') if the railroad 
representative can immediately determine, on the basis of specific 
information, that the employee had no role in the cause(s) or severity 
of the accident/incident. The railroad representative must consider any 
such information immediately available at the time the qualifying event 
determination is made under Sec. 219.201.
    (4) The following provisions govern accidents/incidents involving 
non-covered employees:
    (i) Surviving non-covered employees are not subject to testing 
under this subpart.
    (ii) Testing of the remains of non-covered employees who are 
fatally injured in train accidents and incidents is required.
    (b) Timely sample collection. (1) The railroad must make 
every reasonable effort to assure that samples are provided as soon as 
possible after the accident or incident.
    (2) This paragraph (b) must not be construed to inhibit the 
employees required to be tested from performing, in the immediate 
aftermath of the accident or incident, any duties that may be necessary 
for the preservation of life or property. However, where practical, the 
railroad must utilize other employees to perform such duties.
    (3) In the case of a passenger train which is in proper condition 
to continue to the next station or its destination after an accident or 
incident, the railroad must consider the safety and convenience of 
passengers in determining whether the crew is immediately available for 
testing. A relief crew must be called to relieve the train crew as soon 
as possible.
    (4) Covered employees who may be subject to testing under this 
subpart must be retained in duty status for the period necessary to 
make the determinations required by Sec. 219.201 and this section and 
(as appropriate) to complete the sample collection procedure. An 
employee may not be recalled for testing under this subpart if that 
employee has been released from duty under the normal procedures of the 
railroad, except that an employee may be immediately recalled for 
testing if--
    (i) The employee could not be retained in duty status because the 
employee went off duty under normal carrier procedures prior to being 
contacted by a railroad supervisor and instructed to remain on duty 
pending completion of the required determinations (e.g., in the case of 
a dispatcher or signal maintainer remote from the scene of an accident 
who was unaware of the occurrence at the time the employee went off 
duty);
    (ii) The railroad's preliminary investigation (contemporaneous with 
the determination required by Sec. 219.201) indicates a clear 
probability that the employee played a major role in the cause or 
severity of the accident/incident; and
    (iii) The accident/incident actually occurred during the employee's 
duty tour. An employee who has been transported to receive medical care 
is not released from duty for purposes of this section. Nothing in this 
section prohibits the subsequent testing of an employee who has failed 
to remain available for testing as required (i.e., who is absent 
without leave); but subsequent testing does not excuse such refusal by 
the employee timely to provide the required specimens.
    (c) Place of sample collection. (1) Employees must be 
transported to an independent medical facility where the samples must 
be obtained. The railroad must pre-designate for such testing one or 
more such facilities in reasonable proximity to any location where the 
railroad conducts operations. Designation must be made on the basis of 
the willingness of the facility to conduct sample collection and the 
ability of the facility to complete sample collection promptly, 
professionally, and in accordance with pertinent requirements of this 
part. In all cases blood may be drawn only by a qualified medical 
professional or by a qualified technician subject to the supervision of 
a qualified medical professional.
    (2) In the case of an injured employee, the railroad must request 
the treating medical facility to obtain the samples.
    (d) Obtaining cooperation of facility. (1) In seeking the 
cooperation of a medical facility in obtaining a sample under this 
subpart, the railroad shall, as necessary, make specific reference to 
the requirements of this subpart.
    (2) If an injured employee is unconscious or otherwise unable to 
evidence consent to the procedure and the treating medical facility 
declines to obtain blood samples after having been acquainted with the 
requirements of this subpart, the railroad must immediately notify the 
duty officer at the National Response Center (NRC) at (800) 424-8801 or 
(800) 424-8802, stating the employee's name, the medical facility, its 
location, the name of the appropriate decisional authority at the 
medical facility, and the telephone number at which that person can be 
reached. FRA will then take appropriate measures to assist in obtaining 
the required sample.

[[Page 21522]]

    (e) Discretion of physician. Nothing in this subpart may be 
construed to limit the discretion of a physician to determine whether 
drawing a blood sample is consistent with the health of an injured 
employee or an employee afflicted by any other condition that may 
preclude drawing the specified quantity of blood.


Sec. 219.205  Sample collection and handling.

    (a) General. Urine and blood samples must be obtained, 
marked, preserved, handled, and made available to FRA consistent with 
the requirements of this subpart, and the technical specifications set 
forth in appendix C to this part.
    (b) Information requirements. In order to process samples, 
analyze the significance of laboratory findings, and notify the 
railroads and employees of test results, it is necessary to obtain 
basic information concerning the accident/incident and any treatment 
administered after the accident/incident. Accordingly, the railroad 
representative must complete the information required by Form FRA 
6180.73 (revised) for shipping with the samples. Each employee subject 
to testing must cooperate in completion of the required information on 
Form FRA F 6180.74 (revised) for inclusion in the shipping kit and 
processing of the samples. The railroad representative must request an 
appropriate representative of the medical facility to complete the 
remaining portion of the information on each Form 6180.74. One Form 
6180.73 must be forwarded in the shipping kit with each group of 
samples. One Form 6180.74 must be forwarded in the shipping kit for 
each employee who provides samples. Forms 6180.73 and 6180.74 may be 
ordered from the laboratory specified in appendix B to this part; the 
forms are also provided to railroads free of charge in the shipping 
kit. (See paragraph (c) of this section.)
    (c) Shipping kit. (1) FRA and the laboratory designated in 
appendix B to this part make available for purchase a limited number of 
standard shipping kits for the purpose of routine handling of 
toxicological samples under this subpart. Whenever possible, samples 
must be placed in the shipping kit prepared for shipment according to 
the instructions provided in the kit and appendix C to this part.
    (2) Kits may be ordered directly from the laboratory designated in 
appendix B to this part.
    (3) FRA maintains a limited number of kits at its field offices. A 
Class III railroad may utilize kits in FRA's possession, rather than 
maintaining such kits on its property.
    (d) Shipment. Samples must be shipped as soon as possible 
by pre-paid air express or air freight (or other means adequate to 
ensure delivery within twenty-four (24) hours from time of shipment) to 
the laboratory designated in appendix B to this part. Where express 
courier pickup is available, the railroad must request 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 samples are collected or for any other 
reason prompt transfer by the medical facility cannot be assured, the 
railroad must promptly transport the sealed shipping kit holding the 
samples to the most expeditious point of shipment via air express, air 
freight or equivalent means. The railroad must maintain and document 
secure chain of custody of the kit from release by the medical facility 
to delivery for transportation, as described in appendix C to this 
part.


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, and the technical 
specifications set forth in appendix C to this part.


Sec. 219.207  Fatality.

    (a) In the case of an employee fatality in an accident or incident 
described in Sec. 219.201, body fluid and/or tissue samples must be 
obtained from the remains of the employee for toxicological testing. To 
ensure that samples are timely collected, the railroad must immediately 
notify the appropriate local authority (such as a coroner or medical 
examiner) of the fatality and the requirements of this subpart, making 
available the shipping kit and requesting the local authority to assist 
in obtaining the necessary body fluid or tissue samples. The railroad 
must also seek the assistance of the custodian of the remains, if a 
person other than the local authority.
    (b) If the local authority or custodian of the remains declines to 
cooperate in obtaining the necessary samples, the railroad must 
immediately notify the duty officer at the National Response Center 
(NRC) at (800) 424-8801 or (800) 424-8802 by providing the following 
information:
    (1) Date and location of the accident or incident;
    (2) Railroad;
    (3) Name of the deceased;
    (4) Name and telephone number of custodian of the remains; and
    (5) Name and telephone number of local authority contacted.
    (c) A coroner, medical examiner, pathologist, Aviation Medical 
Examiner, or other qualified professional is authorized to remove the 
required body fluid and/or tissue samples from the remains on request 
of the railroad or FRA pursuant to this part; and, in so acting, such 
person is the delegate of the FRA Administrator under Sec. Sec. 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 171 of 
title 28, United States Code). Such 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 
these rules.
    (d) Appendix C to this part specifies body fluid and tissue samples 
required for toxicological analysis in the case of a fatality.


Sec. 219.209  Reports of tests and refusals.

    (a)(1) A railroad that has experienced one or more events for which 
samples were obtained must provide prompt telephonic notification 
summarizing such events. Notification must immediately be provided to 
the duty officer at the National Response Center (NRC) at (800) 424-
8802 and to the Office of Safety, FRA, at (202) 493-6313.
    (2) Each telephonic report must contain:
    (i) Name of railroad;
    (ii) Name, title and telephone number of person making the report;
    (iii) Time, date and location of the accident/incident;
    (iv) Brief summary of the circumstances of the accident/incident, 
including basis for testing; and
    (v) Number, names and occupations of employees tested.
    (b) If the railroad is unable, as a result of non-cooperation of an 
employee or for any other reason, to obtain a sample and cause it to be 
provided to FRA as required by this subpart, the railroad must make a 
concise narrative report of the reason for such failure and, if 
appropriate, any action taken in response to the cause of such failure. 
This report must be appended to the report of the accident/incident 
required to be submitted under part 225 of this chapter.
    (c) If a test required by this section is not administered within 
four hours following the accident or incident, the railroad must 
prepare and maintain on file a record stating the reasons the test was 
not promptly administered. Records must be submitted to FRA upon 
request

[[Page 21523]]

of the FRA Associate Administrator for Safety.


Sec. 219.211  Analysis and follow-up.

    (a) The laboratory designated in appendix B to this part undertakes 
prompt analysis of samples provided under this subpart, consistent with 
the need to develop all relevant information and produce a complete 
report. Samples are analyzed for alcohol and controlled substances 
specified by FRA under protocols specified by FRA, summarized in 
appendix C to this part, which have been submitted to Health and Human 
Services for acceptance. Samples may be analyzed for other impairing 
substances specified by FRA as necessary to the particular accident 
investigation.
    (b) Results of post-accident toxicological testing under this 
subpart are reported to the railroad's Medical Review Officer and the 
employee. The MRO and the railroad must treat the test results and any 
information concerning medical use or administration of drugs provided 
under this subpart in the same confidential manner as if subject to 
subpart H of this part, except where publicly disclosed by FRA or the 
National Transportation Safety Board.
    (c) With respect to a surviving employee, a test reported as 
positive for alcohol or a controlled substance by the designated 
laboratory must be reviewed by the railroad's Medical Review Officer 
with respect to any claim of use or administration of medications 
(consistent with Sec. 219.103) that could account for the laboratory 
findings. The Medical Review Officer must promptly report the results 
of each review to the Associate Administrator for Safety, FRA, 
Washington, DC 20590. Such report must be in writing and must reference 
the employing railroad, accident/incident date, and location, and the 
envelope must be marked ``ADMINISTRATIVELY CONFIDENTIAL: ATTENTION 
ALCOHOL/DRUG PROGRAM MANAGER.'' The report must 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 Medical Review Officer may not disclose to FRA 
the underlying physical condition for which any medication was 
authorized or administered. The FRA is not be bound by the railroad 
Medical Review Officer'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.
    (d) To the extent permitted by law, FRA treats test results 
indicating medical use of controlled substances consistent with 
Sec. 219.103 (and other information concerning medically authorized 
drug use or administration provided incident to such testing) as 
administratively confidential and withholds public disclosure, except 
where it is necessary to consider this information in an accident 
investigation in relation to determination of probable cause. (However, 
as further provided in this section, FRA may provide results of testing 
under this subpart and supporting documentation to the National 
Transportation Safety Board.)
    (e) An employee may respond in writing to the results of the test 
prior to the preparation of any final investigation report concerning 
the accident or incident. An employee wishing to respond may do so by 
letter addressed to the Alcohol/Drug Program Manager, Office of Safety, 
FRA, 400 Seventh Street, SW., Washington, DC 20590 within 45 days of 
receipt of the test results. Any such submission must refer to the 
accident date, railroad and location, must state the position occupied 
by the employee on the date of the accident/incident, and must identify 
any information contained therein that the employee requests be 
withheld from public disclosure on grounds of personal privacy (but the 
decision whether to honor such request will be made by the FRA on the 
basis of controlling law).
    (f)(1) The toxicology report may contain a statement of 
pharmacological significance to assist FRA and other parties in 
understanding the data reported. No such statement may be construed as 
a finding of probable cause in the accident or incident.
    (2) The toxicology report is a part of the report of the accident/
incident and therefore subject to the limitation of 49 U.S.C. 20903 
(prohibiting use of the report for any purpose in a civil action for 
damages resulting from a matter mentioned in the report).
    (g)(1) It is in the public interest to ensure that any railroad 
disciplinary actions that may result from accidents and incidents for 
which testing is required under this subpart are disposed of on the 
basis of the most complete and reliable information available so that 
responsive action will be appropriate. Therefore, during the interval 
between an accident or incident and the date that the railroad receives 
notification of the results of the toxicological analysis, any 
provision of collective bargaining agreements establishing maximum 
periods for charging employees with rule violations, or for holding an 
investigation, may not be deemed to run as to any offense involving the 
accident or incident (i.e., such periods must be tolled).
    (2) This provision may not be construed to excuse the railroad from 
any obligation to timely charge an employee (or provide other actual 
notice) where the railroad obtains sufficient information relating to 
alcohol or drug use, impairment or possession or other rule violations 
prior to the receipt to toxicological analysis.
    (3) This provision does not authorize holding any employee out of 
service pending receipt of toxicological analysis; nor does it restrict 
a railroad from taking such action in an appropriate case.
    (h) Except as provided in Sec. 219.201 (with respect to non-
qualifying events), each sample (including each split sample) provided 
under this subpart is retained for not less than three months following 
the date of the accident or incident (two years from the date of the 
accident or incident in the case of a sample testing positive for 
alcohol or a controlled substance). Post-mortem specimens may be made 
available to the National Transportation Safety Board (on request).
    (i) An employee (donor) may, within 60 days of the date of the 
toxicology report, request that his or her split sample be tested by 
the designated laboratory or by another laboratory certified by Health 
and Human Services under that Department's Guidelines for Federal 
Workplace Drug Testing Programs that has available an appropriate, 
validated assay for the fluid and compound declared positive. Since 
some analytes may deteriorate during storage, detected levels of the 
compound shall, as technically appropriate, be reported and considered 
corroborative of the original test result. Any request for a retest 
shall be in writing, specify the railroad, accident date and location, 
be signed by the employee/donor, be addressed to the Associate 
Administrator for Safety, Federal Railroad Administration, Washington, 
DC 20590, and be designated ``ADMINISTRATIVELY CONFIDENTIAL: ATTENTION 
ALCOHOL/DRUG PROGRAM MANAGER.'' The expense of any employee-requested 
split sample test at a laboratory other than the laboratory designated 
under this subpart shall be borne by the employee.

[[Page 21524]]

Sec. 219.213  Unlawful refusals; consequences.

    (a) Disqualification. An employee who refuses to cooperate 
in providing breath, blood or urine samples following an accident or 
incident specified in this subpart must be withdrawn from covered 
service and must be deemed disqualified for covered service for a 
period of nine (9) months in accordance with the conditions specified 
in Sec. 219.107.
    (b) Procedures. Prior to or upon withdrawing the employee 
from covered service under this section, the railroad must provide 
notice of the reason for this action and an opportunity for hearing 
before a presiding officer other than the charging official. The 
employee is entitled to the procedural protection set out in 
Sec. 219.104(d).
    (c) Subject of hearing. The hearing required by this 
section must determine whether the employee refused to submit to 
testing, having been requested to submit, under authority of this 
subpart, by a representative of the railroad. In determining whether a 
disqualification is required, the hearing official shall, as 
appropriate, also consider the following:
    (1) Whether the railroad made a good faith determination, based on 
reasonable inquiry, that the accident or incident was within the 
mandatory testing requirements of this subpart; and
    (2) In a case where a blood test was refused on the ground it would 
be inconsistent with the employee's health, whether such refusal was 
made in good faith and based on medical advice.

Subpart D--Testing for Cause


Sec. 219.300  Mandatory reasonable suspicion testing.

    (a) Requirements. (1) A railroad must require a covered 
employee to submit to an alcohol test when the railroad has reasonable 
suspicion to believe that the employee has violated any prohibition of 
subpart B of this part concerning use of alcohol. The railroad's 
determination that reasonable suspicion exists to require the covered 
employee to undergo an alcohol test must be based on specific, 
contemporaneous, articulable observations concerning the appearance, 
behavior, speech or body odors of the employee.
    (2) A railroad must require a covered employee to submit to a drug 
test when the railroad has reasonable suspicion to believe that the 
employee has violated the prohibitions of subpart B of this part 
concerning use of controlled substances. The railroad's determination 
that reasonable suspicion exists to require the covered employee to 
undergo a drug test must be based on specific, contemporaneous, 
articulable observations concerning the appearance, behavior, speech or 
body odors of the employee. Such observations may include indications 
of the chronic and withdrawal effects of drugs.
    (b)(1) With respect to an alcohol test, the required observations 
must be made by a supervisor trained in accordance with Sec. 219.11(g). 
The supervisor who makes the determination that reasonable suspicion 
exists may not conduct testing on that employee.
    (2) With respect to a drug test, the required observations must be 
made by two supervisors, at least one of whom is trained in accordance 
with Sec. 219.11(g).
    (c) Nothing in this section may be construed to require the conduct 
of alcohol testing or drug testing when the employee is apparently in 
need of immediate medical attention.
    (d)(1) If a test required by this section is not administered 
within two hours following the determination under this section, the 
railroad must prepare and maintain on file a record stating the reasons 
the test was not properly administered. If a test required by this 
section is not administered within eight hours of the determination 
under this section, the railroad must cease attempts to administer an 
alcohol test and must state in the record the reasons for not 
administering the test. Records must be submitted to FRA upon request 
of the FRA Administrator.
    (2) [Reserved].


Sec. 219.301  Testing for reasonable cause.

    (a) Authorization. A railroad may, under the conditions 
specified in this subpart, require any covered employee, as a condition 
of employment in covered service, to cooperate in breath or body fluid 
testing, or both, to determine compliance with Sec. Sec. 219.101 and 
219.102 or a railroad rule implementing the requirements of 
Sec. Sec. 219.101 and 219.102. This authority is limited to testing 
after observations or events that occur during duty hours (including 
any period of overtime or emergency service). The provisions of this 
subpart apply only when, and to the extent that, the test in question 
is conducted in reliance upon the authority conferred by this section. 
Section 219.23 prescribes the notice to an employee that is required 
when an employee is required to provide a breath or body fluid sample 
under this part. A railroad may not require an employee to be tested 
under the authority of this subpart unless reasonable cause, as defined 
in this section, exists with respect to that employee.
    (b) For cause breath testing. In addition to reasonable 
suspicion as described in Sec. 219.300, the following circumstances 
constitute cause for the administration of alcohol tests under this 
section:
    (1) [Reserved]
    (2) Accident/incident. The employee has been involved in an 
accident or incident reportable under part 225 of this chapter, and a 
supervisory employee of the railroad has a reasonable belief, based on 
specific, articulable facts, that the employee's acts or omissions 
contributed to the occurrence or severity of the accident or incident; 
or
    (3) Rule violation. The employee has been directly involved 
in one of the following operating rule violations or errors:
    (i) Noncompliance with a train order, track warrant, timetable, 
signal indication, special instruction or other direction with respect 
to movement of a train that involves--
    (A) Occupancy of a block or other segment of track to which entry 
was not authorized;
    (B) Failure to clear a track to permit opposing or following 
movement to pass;
    (C) Moving across a railroad crossing at grade without 
authorization; or
    (D) Passing an absolute restrictive signal or passing a restrictive 
signal without stopping (if required);
    (ii) Failure to protect a train as required by a rule consistent 
with Sec. 218.37 of this chapter (including failure to protect a train 
that is fouling an adjacent track, where required by the railroad's 
rules);
    (iii) Operation of a train at a speed that exceeds the maximum 
authorized speed by at least ten (10) miles per hour or by fifty 
percent (50%) of such maximum authorized speed, whichever is less;
    (iv) Alignment of a switch in violation of a railroad rule, failure 
to align a switch as required for movement, operation of a switch under 
a train, or unauthorized running through a switch;
    (v) Failure to apply or stop short of derail as required;
    (vi) Failure to secure a hand brake or failure to secure sufficient 
hand brakes, as required;
    (vii) Entering a crossover before both switches are lined for 
movement; or
    (viii) In the case of a person performing a dispatching function or 
block operator function, issuance of a train order or establishment of 
a route that fails to provide proper protection for a train.
    (c) For cause drug testing. In addition to reasonable 
suspicion as described in Sec. 219.300, each of the conditions set 
forth in paragraphs (b)(2) (``accident/

[[Page 21525]]

incident'') and (b)(3) (``rule violation'') of this section as 
constituting cause for alcohol testing also constitutes cause with 
respect to drug testing.
    (d) [Reserved]
    (e) Limitation for subpart C events. The compulsory drug 
testing authority conferred by this section does not apply with respect 
to any event subject to post-accident toxicological testing as required 
by Sec. 219.201. However, use of compulsory breath test authority is 
authorized in any case where breath test results can be obtained in a 
timely manner at the scene of the accident and conduct of such tests 
does not materially impede the collection of samples under subpart C of 
this part.


Sec. 219.302  Prompt sample collection; time limitation.

    (a) Testing under this subpart may only be conducted promptly 
following the observations or events upon which the testing decision is 
based, consistent with the need to protect life and property.
    (b) No employee may be required to participate in alcohol or drug 
testing under this section after the expiration of an eight-hour period 
from--
    (1) The time of the observations or other events described in this 
section; or
    (2) In the case of an accident/incident, the time a responsible 
railroad supervisor receives notice of the event providing reasonable 
cause for conduct of the test.
    (c) An employee may not be tested under this subpart if that 
employee has been released from duty under the normal procedures of the 
railroad. An employee who has been transported to receive medical care 
is not released from duty for purposes of this section. Nothing in this 
section prohibits the subsequent testing of an employee who has failed 
to remain available for testing as required (i.e., who is absent 
without leave).
    (d) As used in this subpart, a ``responsible railroad supervisor'' 
means any responsible line supervisor (e.g., a trainmaster or road 
foreman of engines) or superior official in authority over the employee 
to be tested.
    (e) In the case of a drug test, the eight-hour requirement is 
satisfied if the employee has been delivered to the collection site 
(where the collector is present) and the request has been made to 
commence collection of the drug testing specimens within that period.
    (f) [Reserved]
    (g) Section 219.23 prescribes the notice to an employee that is 
required to provide breath or a body fluid sample under this part.

Subpart E--Identification of Troubled Employees


Sec. 219.401  Requirement for policies.

    (a) The purpose of this subpart is to prevent the use of alcohol 
and drugs in connection with covered service.
    (b) Each railroad must adopt, publish and implement--
    (1) A policy designed to encourage and facilitate the 
identification of those covered employees who abuse alcohol or drugs as 
a part of a treatable condition and to ensure that such employees are 
provided the opportunity to obtain counseling or treatment before those 
problems manifest themselves in detected violations of this part 
(hereafter ``voluntary referral policy''); and
    (2) A policy designed to foster employee participation in 
preventing violations of this subpart and encourage co-worker 
participation in the direct enforcement of this part (hereafter ``co-
worker report policy'').
    (c) A railroad may comply with this subpart by adopting, publishing 
and implementing policies meeting the specific requirements of 
Sec. Sec. 219.403 and 219.405 or by complying with Sec. 219.407.
    (d) If a railroad complies with this part by adopting, publishing 
and implementing policies consistent with Sec. Sec. 219.403 and 
219.405, the railroad must make such policies, and publications 
announcing such policies, available for inspection and copying by FRA.
    (e) Nothing in this subpart may be construed to--
    (1) Require payment of compensation for any period an employee is 
out of service under a voluntary referral or co-worker report policy;
    (2) Require a railroad to adhere to a voluntary referral or co-
worker report policy in a case where the referral or report is made for 
the purpose, or with the effect, of anticipating the imminent and 
probable detection of a rule violation by a supervising employee; or
    (3) Limit the discretion of a railroad to dismiss or otherwise 
discipline an employee for specific rule violations or criminal 
offenses, except as specifically provided by this subpart.


Sec. 219.403  Voluntary referral policy.

    (a) Scope. This section prescribes minimum standards for 
voluntary referral policies. Nothing in this section restricts a 
railroad from adopting, publishing and implementing a voluntary 
referral policy that affords more favorable conditions to employees 
troubled by alcohol or drug abuse problems, consistent with the 
railroad's responsibility to prevent violations of Sec. Sec. 219.101 
and 219.102.
    (b) Required provisions. A voluntary referral policy must 
include the following provisions:
    (1) A covered employee who is affected by an alcohol or drug use 
problem may maintain an employment relationship with the railroad if, 
before the employee is charged with conduct deemed by the railroad 
sufficient to warrant dismissal, the employee seeks assistance through 
the railroad for the employee's alcohol or drug use problem or is 
referred for such assistance by another employee or by a representative 
of the employee's collective bargaining unit. The railroad must specify 
whether, and under what circumstances, its policy provides for the 
acceptance of referrals from other sources, including (at the option of 
the railroad) supervisory employees.
    (2) Except as may be provided under paragraph (c) of this section, 
the railroad treats the referral and subsequent handling, including 
counseling and treatment, as confidential.
    (3) The railroad will, to the extent necessary for treatment and 
rehabilitation, grant the employee a leave of absence from the railroad 
for the period necessary to complete primary treatment and establish 
control over the employee's alcohol or drug problem. The policy must 
allow a leave of absence of not less than 45 days, if necessary for the 
purpose of meeting initial treatment needs.
    (4) Except as may be provided under paragraph (c)(2) of this 
section, the employee will be returned to service on the recommendation 
of the substance abuse professional. Approval to return to service may 
not be unreasonably withheld.
    (5) With respect to a certified locomotive engineer or a candidate 
for certification, the railroad must meet the requirements of 
Sec. 240.119(e) of this chapter.
    (c) Optional provisions. A voluntary referral policy may 
include any of the following provisions, at the option of the railroad:
    (1) The policy may provide that the rule of confidentiality is 
waived if--
    (i) The employee at any time refuses to cooperate in a recommended 
course of counseling or treatment; and/or
    (ii) The employee is later determined, after investigation, to have 
been involved in an alcohol or drug-related disciplinary offense 
growing out of subsequent conduct.
    (2) The policy may require successful completion of a return-to-
service medical examination as a further condition on reinstatement in 
covered service.

[[Page 21526]]

    (3) The policy may provide that it does not apply to an employee 
who has previously been assisted by the railroad under a policy or 
program substantially consistent with this section or who has 
previously elected to waive investigation under Sec. 219.405 (co-worker 
report policy).
    (4) The policy may provide that, in order to invoke its benefits, 
the employee must report to the contact designated by the railroad 
either:
    (i) During non-duty hours (i.e., at a time when the employee is off 
duty); or
    (ii) While unimpaired and otherwise in compliance with the 
railroad's alcohol and drug rules consistent with this subpart.


Sec. 219.405  Co-worker report policy.

    (a) Scope. This section prescribes minimum standards for 
co-worker report policies. Nothing in this section restricts a railroad 
from adopting, publishing and implementing a policy that affords more 
favorable conditions to employees troubled by alcohol or drug abuse 
problems, consistent with the railroad's responsibility to prevent 
violations of Sec. Sec. 219.101 and 219.102.
    (b) Employment relationship. A co-worker report policy must 
provide that a covered employee may maintain an employment relationship 
with the railroad following an alleged first offense under these rules 
or the railroad's alcohol and drug rules, subject to the conditions and 
procedures contained in this section.
    (c) General conditions and procedures. (1) The alleged 
violation must come to the attention of the railroad as a result of a 
report by a co-worker that the employee was apparently unsafe to work 
with or was, or appeared to be, in violation of this part or the 
railroad's alcohol and drug rules.
    (2) If the railroad representative determines that the employee is 
in violation, the railroad may immediately remove the employee from 
service in accordance with its existing policies and procedures.
    (3) The employee must elect to waive investigation on the rule 
charge and must contact the substance abuse professional within a 
reasonable period specified by the policy.
    (4) The substance abuse professional must schedule necessary 
interviews with the employee and complete an evaluation within 10 
calendar days of the date on which the employee contacts the 
professional with a request for evaluation under the policy, unless it 
becomes necessary to refer the employee for further evaluation. In each 
case, all necessary evaluations must be completed within 20 days of the 
date on which the employee contacts the professional.
    (d) When treatment is required. If the substance abuse 
professional determines that the employee is affected by psychological 
or chemical dependence on alcohol or a drug or by another identifiable 
and treatable mental or physical disorder involving the abuse of 
alcohol or drugs as a primary manifestation, the following conditions 
and procedures apply:
    (1) The railroad must, to the extent necessary for treatment and 
rehabilitation, grant the employee a leave of absence from the railroad 
for the period necessary to complete primary treatment and establish 
control over the employee's alcohol or drug problem. The policy must 
allow a leave of absence of not less than 45 days, if necessary for the 
purpose of meeting initial treatment needs.
    (2) The employee must agree to undertake and successfully complete 
a course of treatment deemed acceptable by the substance abuse 
professional.
    (3) The railroad must promptly return the employee to service, on 
recommendation of the substance abuse professional, when the employee 
has established control over the substance abuse problem. Return to 
service may also be conditioned on successful completion of a return-
to-service medical examination. Approval to return to service may not 
be unreasonably withheld.
    (4) Following return to service, the employee, as a further 
condition on withholding of discipline, may, as necessary, be required 
to participate in a reasonable program of follow-up treatment for a 
period not to exceed 60 months from the date the employee was 
originally withdrawn from service.
    (e) When treatment is not required. If the substance abuse 
professional determines that the employee is not affected by an 
identifiable and treatable mental or physical disorder--
    (1) The railroad must return the employee to service within 5 days 
after completion of the evaluation.
    (2) During or following the out-of-service period, the railroad may 
require the employee to participate in a program of education and 
training concerning the effects of alcohol and drugs on occupational or 
transportation safety.
    (f) Follow-up tests. A railroad may conduct return-to-
service and/or follow-up tests (as described in Sec. 219.104) of an 
employee who waives investigation and is determined to be ready to 
return to service under this section.


Sec. 219.407  Alternate policies.

    (a) In lieu of a policy under Sec. 219.403 (voluntary referral) or 
Sec. 219.405 (co-worker report), or both, a railroad may adopt, publish 
and implement, with respect to a particular class or craft of covered 
employees, an alternate policy or policies having as their purpose the 
prevention of alcohol or drug use in railroad operations, if such 
policy or policies have the written concurrence of the recognized 
representatives of such employees.
    (b) The concurrence of recognized employee representatives in an 
alternate policy may be evidenced by a collective bargaining agreement 
or any other document describing the class or craft of employees to 
which the alternate policy applies. The agreement or other document 
must make express reference to this part and to the intention of the 
railroad and employee representatives that the alternate policy applies 
in lieu of the policy required by Sec. 219.403, Sec. 219.405, or both.
    (c) The railroad must file the agreement or other document 
described in paragraph (b) of this section with the Associate 
Administrator for Safety, FRA. If the alternate policy is amended or 
revoked, the railroad must file a notice of such amendment or 
revocation at least 30 days prior to the effective date of such action.
    (d) This section does not excuse a railroad from adopting, 
publishing and implementing the policies required by Sec. Sec. 219.403 
and 219.405 with respect to any group of covered employees not within 
the coverage of an appropriate alternate policy.

Subpart F--Pre-employment Tests


Sec. 219.501  Pre-employment drug testing.

    (a) Prior to the first time a covered employee performs covered 
service for a railroad, the employee must undergo testing for drugs. No 
railroad may allow a covered employee to perform covered service, 
unless the employee has been administered a test for drugs with a 
result that did not indicate the misuse of controlled substances. This 
requirement applies to final applicants for employment and to employees 
seeking to transfer for the first time from non-covered service to 
duties involving covered service.
    (b) As used in subpart H of this part with respect to a test 
required under this subpart, the term covered employee includes an 
applicant for pre-employment testing only. In the case of an applicant 
who declines to be tested and withdraws the application for employment, 
no record may be maintained of the declination.

[[Page 21527]]

Sec. 219.502  Pre-employment alcohol testing.

    (a) A railroad may, but is not required to, conduct pre-employment 
alcohol testing under this part. If a railroad chooses to conduct pre-
employment alcohol testing, the railroad must comply with the following 
requirements:
    (1) It must conduct a pre-employment alcohol test before the first 
performance of safety-sensitive functions by every covered employee 
(whether a new employee or someone who has transferred to a position 
involving the performance of safety-sensitive functions).
    (2) It must treat all safety-sensitive employees performing safety-
sensitive functions the same for the purpose of pre-employment alcohol 
testing (i.e., it must not test some covered employees and not others).
    (3) It must conduct the pre-employment tests after making a 
contingent offer of employment or transfer, subject to the employee 
passing the pre-employment alcohol test.
    (4) It must conduct all pre-employment alcohol tests using the 
alcohol testing procedures of part 40 of this title.
    (5) It must not allow a covered employee to begin performing 
safety-sensitive functions unless the result of the employee's test 
indicates an alcohol concentration of less than 0.04.
    (b) As used in subpart H of this part, with respect to a test 
authorized under this subpart, the term covered employee includes an 
applicant for pre-employment testing only. In the case of an applicant 
who declines to be tested and withdraws the application for employment, 
no record may be maintained of the declination.


Sec. 219.503  Notification; records.

    The railroad must provide for medical review of drug test results 
as provided in subpart H of this part. The railroad must notify the 
applicant of the results of the drug and alcohol tests in the same 
manner as provided for employees in subpart H of this part. Records 
must be maintained confidentially and be retained in the same manner as 
required under subpart J of this part for employee test records, except 
that such records need not reflect the identity of an applicant whose 
application for employment in covered service was denied.


Sec. 219.505  Refusals.

    An applicant who has refused to submit to pre-employment testing 
under this section may not be employed in covered service based upon 
the application and examination with respect to which such refusal was 
made. This section does not create any right on the part of the 
applicant to have a subsequent application considered; nor does it 
restrict the discretion of the railroad to entertain a subsequent 
application for employment from the same person.

Subpart G--Random Alcohol and Drug Testing Programs


Sec. 219.601  Railroad random drug testing programs.

    (a) Submission. Each railroad must submit for FRA approval 
a random testing program meeting the requirements of this subpart. A 
railroad commencing operations must submit such a program not later 
than 30 days prior to such commencement. The program must be submitted 
to the Associate Administrator for Safety, FRA, for review and approval 
by the FRA Administrator. If, after approval, a railroad desires to 
amend the random testing program implemented under this subpart, the 
railroad must file with FRA a notice of such amendment at least 30 days 
prior to the intended effective date of such action. A railroad already 
subject to this subpart that becomes subject to this subpart with 
respect to one or more additional employees must amend its program not 
later than 60 days after these employees become subject to this subpart 
and file with FRA a notice of such amendment at least 30 days prior to 
the intended effective date of such action. A program responsive to the 
requirements of this section or any amendment to the program may not be 
implemented prior to approval.
    (b) Form of programs. Random testing programs submitted by 
or on behalf of each railroad under this subpart must meet the 
following criteria, and the railroad and its managers, supervisors, 
officials and other employees and agents must conform to such criteria 
in implementing the program:
    (1) Selection of covered employees for testing must be made by a 
method employing objective, neutral criteria which ensure that every 
covered employee has a substantially equal statistical chance of being 
selected within a specified time frame. The method may not permit 
subjective factors to play a role in selection, i.e., no employee may 
be selected as the result of the exercise of discretion by the 
railroad. The selection method must be capable of verification with 
respect to the randomness of the selection process, and any records 
necessary to document random selection must be retained for not less 
than 24 months from the date upon which the particular samples were 
collected.
    (2)(i) The program must select for testing a sufficient number of 
employees so that, during the first 12 months--
    (A) The random testing program is spread reasonably through the 12-
month period.
    (B) [Reserved]
    (ii) During the subsequent 12-month period, the program must select 
for testing a sufficient number of employees so that the number of 
tests conducted will equal at least 50 percent of the number of covered 
employees. Annualized percentage rates must be determined by reference 
to the total number of covered employees employed by the railroad at 
the beginning of the particular twelve-month period or by an alternate 
method specified in the plan approved by the Associate Administrator 
for Safety, FRA. If the railroad conducts random testing through a 
consortium, the annual rate may be calculated for each individual 
employer or for the total number of covered employees subject to random 
testing by the consortium.
    (3) Railroad random testing programs must ensure to the maximum 
extent practicable that each employee perceives the possibility that a 
random test may be required on any day the employee reports for work.
    (4) Notice of an employee's selection may not be provided until the 
duty tour in which testing is to be conducted, and then only so far in 
advance as is reasonably necessary to ensure the employee's presence at 
the time and place set for testing.
    (5) The program must include testing procedures and safeguards, and 
procedures for action based on positive test results, consistent with 
this part.
    (6) An employee must be subject to testing only while on duty. Only 
employees who perform covered service for the railroad are subject to 
testing under this part. In the case of employees who during some duty 
tours perform covered service and during others do not, the railroad 
program must specify the extent to which, and the circumstances under 
which they are be subject to testing. To the extent practical within 
the limitations of this part and in the context of the railroad's 
operations, the railroad program must provide that employees are 
subject to the possibility of random testing on any day they actually 
perform covered service.
    (7) Each time an employee is notified for random drug testing the 
employee will be informed that selection was made on a random basis.
    (c) Approval. The Associate Administrator for Safety, FRA, 
will

[[Page 21528]]

notify the railroad in writing whether the program is approved as 
consistent with the criteria set forth in this part. If the Associate 
Administrator for Safety determines that the program does not conform 
to those criteria, the Associate Administrator for Safety will inform 
the railroad of any matters preventing approval of the program, with 
specific explanation as to necessary revisions. The railroad must 
resubmit its program with the required revisions within 30 days of such 
notice. Failure to resubmit the program with the necessary revisions 
will be considered a failure to implement a program under this subpart.
    (d) Implementation. (1) No later than 45 days prior to 
commencement of random testing, the railroad must publish to each of 
its covered employees, individually, a written notice that he or she 
will be subject to random drug testing under this part. Such notice 
must state the date for commencement of the program, must state that 
the selection of employees for testing will be on a strictly random 
basis, must describe the consequences of a determination that the 
employee has violated Sec. 219.102 or any applicable railroad rule, and 
must inform the employee of the employee's rights under subpart E of 
this part. A copy of the notice must be provided to each new covered 
employee on or before the employee's initial date of service. Since 
knowledge of Federal law is presumed, nothing in this paragraph (1) 
creates a defense to a violation of Sec. 219.102.
    (2) A railroad commencing operations must submit a random testing 
program 60 days after doing so. The railroad must implement its 
approved random testing program not later than the expiration of 60 
days from approval by the Administrator.


Sec. 219.602  FRA Administrator's determination of random drug testing 
rate.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random drug testing 
must be 50 percent of covered employees.
    (b) The FRA Administrator's decision to increase or decrease the 
minimum annual percentage rate for random drug testing is based on the 
reported positive rate for the entire industry. All information used 
for this determination is drawn from the drug MIS reports required by 
this part. In order to ensure reliability of the data, the 
Administrator considers the quality and completeness of the reported 
data, may obtain additional information or reports from railroads, and 
may make appropriate modifications in calculating the industry positive 
rate. Each year, the Administrator will publish in the Federal 
Register the minimum annual percentage rate for random drug testing 
of covered employees. The new minimum annual percentage rate for random 
drug testing will be applicable starting January 1 of the calendar year 
following publication.
    (c) When the minimum annual percentage rate for random drug testing 
is 50 percent, the Administrator may lower this rate to 25 percent of 
all covered employees if the Administrator determines that the data 
received under the reporting requirements of Sec. 219.803 for two 
consecutive calendar years indicate that the reported positive rate is 
less than 1.0 percent.
    (d) When the minimum annual percentage rate for random drug testing 
is 25 percent, and the data received under the reporting requirements 
of Sec. 219.803 for any calendar year indicate that the reported 
positive rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random drug testing to 50 percent of all covered employees.
    (e) Selection of covered employees for testing must be made by a 
method employing objective, neutral criteria which ensures that every 
covered employee has a substantially equal statistical chance of being 
selected within a specified time frame. The method may not permit 
subjective factors to play a role in selection, i.e., no employee may 
be selected as a result of the exercise of discretion by the railroad. 
The selection method must be capable of verification with respect to 
the randomness of the selection process.
    (f) The railroad must randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
drug testing determined by the Administrator. If the railroad conducts 
random drug testing through a consortium, the number of employees to be 
tested may be calculated for each individual railroad or may be based 
on the total number of covered employees covered by the consortium who 
are subject to random drug testing at the same minimum annual 
percentage rate under this part or any DOT drug testing rule.
    (g) Each railroad must ensure that random drug tests conducted 
under this part are unannounced and that the dates for administering 
random tests are spread reasonably throughout the calendar year.
    (h) If a given covered employee is subject to random drug testing 
under the drug testing rules of more than one DOT agency for the same 
railroad, the employee must be subject to random drug testing at the 
percentage rate established for the calendar year by the DOT agency 
regulating more than 50 percent of the employee's function.
    (i) If a railroad is required to conduct random drug testing under 
the drug testing rules of more than one DOT agency, the railroad may--
    (1) Establish separate pools for random selection, with each pool 
containing the covered employees who are subject to testing at the same 
required rate; or
    (2) Randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the railroad is subject.


Sec. 219.603  Participation in drug testing.

    A railroad shall, under the conditions specified in this subpart 
and subpart H of this part, require a covered employee selected through 
the random testing program to cooperate in urine testing to determine 
compliance with Sec. 219.102, and the employee must provide the 
required sample and complete the required paperwork and certifications. 
Compliance by the employee may be excused only in the case of a 
documented medical or family emergency.


Sec. 219.605  Positive drug test results; procedures.

    (a) [Reserved]
    (b) Procedures for administrative handling by the railroad in the 
event a sample provided under this subpart is reported as positive by 
the MRO are set forth in Sec. 219.104. The responsive action required 
in Sec. 219.104 is not stayed pending the result of a retest or split 
sample test.


Sec. 219.607  Railroad random alcohol testing programs.

    (a) Each railroad must submit for FRA approval a random alcohol 
testing program meeting the requirements of this subpart. A railroad 
commencing operations must submit a random alcohol testing program not 
later than 30 days prior to such commencement. The program must be 
submitted to the Associate Administrator for Safety, FRA, for review 
and approval. If, after approval, a railroad desires to amend the 
random alcohol testing program implemented under this subpart, the 
railroad must file with FRA a notice of such amendment at least 30 days 
prior to the intended effective date of such action. A program 
responsive to the requirements of this section or any

[[Page 21529]]

amendment to the program may not be implemented prior to approval.
    (b) Form of programs. Random alcohol testing programs 
submitted by or on behalf of each railroad under this subpart must meet 
the following criteria, and the railroad and its managers, supervisors, 
officials and other employees and agents must conform to such criteria 
in implementing the program:
    (1) Selection of covered employees for testing must be made by a 
method employing objective, neutral criteria which ensures that every 
covered employee has a substantially equal statistical chance of being 
selected within a specified time frame. The method may not permit 
subjective factors to play a role in selection, i.e., no employee may 
be selected as the result of the exercise of discretion by the 
railroad. The selection method must be capable of verification with 
respect to the randomness of the selection process, and any records 
necessary to document random selection must be retained for not less 
than 24 months from the date upon which the particular samples were 
collected.
    (2) The program must include testing procedures and safeguards, 
and, consistent with this part, procedures for action based on tests 
where the employee is found to have violated Sec. 219.101.
    (3) The program must ensure that random alcohol tests conducted 
under this part are unannounced and that the dates for administering 
random tests are spread reasonably throughout the calendar year.
    (4) The program must ensure to the maximum extent practicable that 
each covered employee perceives the possibility that a random alcohol 
test may be required at any time the employee reports for work and at 
any time during the duty tour (except any period when the employee is 
expressly relieved of any responsibility for performance of covered 
service).
    (5) An employee may be subject to testing only while on duty. Only 
employees who perform covered service for the railroad may be subject 
to testing under this part. In the case of employees who during some 
duty tours perform covered service and during others do not, the 
railroad program may specify the extent to which, and the circumstances 
under which they are subject to testing. To the extent practical within 
the limitations of this part and in the context of the railroad's 
operations, the railroad program must provide that employees are 
subject to the possibility of random testing on any day they actually 
perform covered service.
    (6) Testing must be conducted promptly, as provided in 
Sec. 219.701(b)(1).
    (7) Each time an employee is notified for random alcohol testing 
the employee must be informed that selection was made on a random 
basis.
    (8) Each railroad must ensure that each covered employee who is 
notified of selection for random alcohol testing proceeds to the test 
site immediately; provided, however, that if the employee is performing 
a safety-sensitive function at the time of the notification, the 
railroad must instead ensure that the employee ceases to perform the 
safety-sensitive function and proceeds to the testing site as soon as 
possible.
    (c) Implementation. (1) No later than 45 days prior to 
commencement of random alcohol testing, the railroad must publish to 
each of its covered employees, individually, a written notice that the 
employee will be subject to random alcohol testing under this part. 
Such notice must state the date for commencement of the program, must 
state that the selection of employees for testing will be on a strictly 
random basis, must describe the consequences of a determination that 
the employee has violated Sec. 219.101 or any applicable railroad rule, 
and must inform the employee of the employee's rights under subpart E 
of this part. A copy of the notice must be provided to each new covered 
employee on or before the employee's initial date of service. Since 
knowledge of Federal law is presumed, nothing in this paragraph (c)(1) 
creates a defense to a violation of Sec. 219.101. This notice may be 
combined with the notice or policy statement required by Sec. 219.23.
    (2) A railroad commencing operations must submit a random testing 
program 60 days after doing so. The railroad must implement its 
approved random testing program not later than the expiration of 60 
days from approval by the Administrator.


Sec. 219.608  FRA Administrator's determination of random alcohol 
testing rate.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random alcohol testing 
must be 25 percent of covered employees.
    (b) The Administrator's decision to increase or decrease the 
minimum annual percentage rate for random alcohol testing is based on 
the violation rate for the entire industry. All information used for 
the determination is drawn from the alcohol MIS reports required by 
this part. In order to ensure reliability of the data, the 
Administrator considers the quality and completeness of the reported 
data, may obtain additional information or reports from employers, and 
may make appropriate modifications in calculating the industry 
violation rate. Each year, the Administrator will publish in the 
Federal Register the minimum annual percentage rate for random 
alcohol testing of covered employees. The new minimum annual percentage 
rate for random alcohol testing will be applicable starting January 1 
of the calendar year following publication.
    (c)(1) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or more, the Administrator may lower this rate to 
10 percent of all covered employees if the Administrator determines 
that the data received under the reporting requirements of Sec. 219.801 
for two consecutive calendar years indicate that the violation rate is 
less than 0.5 percent.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 50 percent, the Administrator may lower this rate to 25 
percent of all covered employees if the Administrator determines that 
the data received under the reporting requirements of Sec. 219.801 for 
two consecutive calendar years indicate that the violation rate is less 
than 1.0 percent but equal to or greater than 0.5 percent.
    (d)(1) When the minimum annual percentage rate for random alcohol 
testing is 10 percent, and the data received under the reporting 
requirements of Sec. 219.801 for that calendar year indicate that the 
violation rate is equal to or greater than 0.5 percent, but less than 
1.0 percent, the Administrator will increase the minimum annual 
percentage rate for random alcohol testing to 25 percent of all covered 
employees.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or less, and the data received under the 
reporting requirements of Sec. 219.801 for any calendar year indicate 
that the violation rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random alcohol testing to 50 percent of all covered employees.
    (e) The railroad must randomly select and test a sufficient number 
of covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
alcohol testing determined by the Administrator. If the railroad 
conducts random alcohol testing through a consortium, the number of 
employees to

[[Page 21530]]

be tested may be calculated for each individual employer or may be 
based on the total number of covered employees covered by the 
consortium who are subject to random testing at the same minimum annual 
percentage rate under this part or any DOT alcohol testing rule.
    (f) If a railroad is required to conduct random alcohol testing 
under the alcohol testing rules of more than one DOT agency, the 
railroad may--
    (1) Establish separate pools for random selection, with each pool 
containing the covered employees who are subject to testing at the same 
required rate; or
    (2) Randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the railroad is subject.


Sec. 219.609  Participation in alcohol testing.

    A railroad must, under the conditions specified in this subpart and 
subpart H of this part, require a covered employee selected through the 
random testing program to cooperate in breath testing to determine 
compliance with Sec. 219.101, and the employee must provide the 
required breath and complete the required paperwork and certifications. 
Compliance by the employee may be excused only in the case of a 
documented medical or family emergency.


Sec. 219.611  Test result indicating prohibited alcohol concentration; 
procedures.

    Procedures for administrative handling by the railroad in the event 
an employee's confirmation test indicates an alcohol concentration of 
.04 or greater are set forth in Sec. 219.104.

Subpart H--Drug and Alcohol Testing Procedures


Sec. 219.701  Standards for drug and alcohol testing.

    (a) Drug testing required or authorized by subparts B, D, F, and G 
of this part must be conducted in compliance with all applicable 
provisions of the Department of Transportation Procedures for 
Transportation Workplace Drug and Alcohol Testing Programs (part 40 of 
this title).
    (b) Alcohol testing required or authorized by subparts B, D, F, and 
G of this part must be conducted in compliance with all applicable 
provisions of the Department of Transportation Procedures for 
Transportation Workplace Drug and Alcohol Testing Programs (part 40 of 
this title).
    (c) Each covered employee who is notified of selection for testing 
and who is not performing covered service at the time of notification 
must proceed to the testing site immediately. The railroad must ensure 
that an employee who is performing covered service at the time of 
notification shall, as soon as possible without affecting safety, cease 
to perform covered service and proceed to the testing site.

Subpart I--Annual Report


Sec. 219.801  Reporting alcohol misuse prevention program results in a 
management information system.

    (a) Each railroad that has 400,000 or more total manhours shall 
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 prevention program.
    (b) A railroad that is subject to more than one DOT agency alcohol 
regulation must identify each employee covered by the regulations of 
more than one DOT agency. The identification will be by the total 
number and category of covered functions. Prior to conducting any 
alcohol test on a covered employee subject to the regulations of more 
than one DOT agency, the railroad must determine which DOT agency 
regulation or rule authorizes or requires the test. The test result 
information must be directed to the appropriate DOT agency or agencies.
    (c) Each railroad must ensure the accuracy and timeliness of each 
report submitted. The report must be submitted on one of the two forms 
specified by the FRA.
    (d) Each report required by this section that contains information 
on an alcohol screening test result of .02 or greater or a violation of 
the alcohol misuse provisions of subpart B of this part must include 
the following elements:
    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal, other).
    (2) Number of covered employees in each category subject to alcohol 
testing under the alcohol misuse regulation of another DOT agency, 
identified by each agency.
    (3)(i) Number of screening tests by type of test (i.e., pre-
employment and covered service transfer, random, post-positive return 
to service, and follow-up) and employee category.
    (ii) Number of confirmation tests, by type of test and employee 
category.
    (4) Number of confirmation alcohol tests indicating an alcohol 
concentration equal of .02 or greater but less than .04, by type of 
test and employee category.
    (5) Number of confirmation alcohol tests indicating an alcohol 
concentration of .04 or greater, by type of test and employee category.
    (6) Number of persons denied a position as a covered employee 
following a pre-employment alcohol test indicating an alcohol 
concentration of .04 or greater.
    (7) Number of covered employees with a confirmation alcohol test 
indicating an alcohol concentration of .04 or greater, or who have 
violations of other alcohol misuse provisions, who were returned to 
service in covered positions (having complied with the recommendations 
of a substance abuse professional as described in Sec. 219.104(d)).
    (8) For cause breath alcohol testing under railroad authority, by 
reason for test (accident/injury or rules violation), the number of 
screening tests conducted, the number of confirmation tests conducted, 
the number of confirmation tests of .02 or greater but less than .04, 
and the number of confirmation test results of .04 or greater.
    (9) For cause breath alcohol testing under FRA authority, by reason 
for test (reasonable suspicion, accident/injury or rules violation), 
the number of screening tests conducted, the number of confirmation 
tests conducted, the number of confirmation tests of .02 or greater but 
less than .04, and the number of confirmation test results of .04 or 
greater.
    (10) Number of covered employees who were found to have violated 
other provisions of subpart B of this part, and the action taken in 
response to the violation.
    (11) Number of covered employees who were administered alcohol and 
drug tests at the same time, with both a positive drug test result and 
an alcohol test result indicating an alcohol concentration of .04 or 
greater.
    (12) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (13) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (14) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable alcohol use during the reporting 
period.
    (e) Each report required by this section that contains information 
on neither a screening test result of 0.02 or greater nor a violation 
of the alcohol misuse provisions of subpart B of this part must include 
the following informational elements:

[[Page 21531]]

    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal, other).
    (2) Number of covered employees in each category subject to alcohol 
testing under the alcohol misuse regulation of another DOT agency, 
identified by each agency.
    (3) Number of screening tests by type of test (i.e., pre-employment 
and covered service transfer, random, post-positive return to service, 
and follow-up) and employee category.
    (4) Number of covered employees with a confirmation alcohol test 
indicating an alcohol concentration of .04 or greater, or who have 
violations of other alcohol misuse provisions, who were returned to 
service in covered positions (having complied with the recommendations 
of a substance abuse professional as described in Sec. 219.104(d)).
    (5) For cause breath alcohol testing under railroad authority, by 
reason for test (accident/injury or rules violation), the number of 
screening tests conducted.
    (6) For cause breath alcohol testing under FRA authority, by reason 
for test (reasonable suspicion, accident/injury or rules violation), 
the number of screening tests conducted.
    (7) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (8) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (9) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable alcohol use during the reporting 
period.


Sec. 219.803  Reporting drug misuse prevention program results in a 
management information system.

    (a) Each railroad that has 400,000 or more total manhours shall 
submit to FRA an annual report covering the calendar year, summarizing 
the results of its drug misuse prevention program.
    (b) A railroad that is subject to more than one DOT agency drug 
regulation must identify each employee covered by the regulations of 
more than one DOT agency. The identification will be by the total 
number and category of covered functions. Prior to conducting any drug 
test on a covered employee subject to the regulations of more than one 
DOT agency, the railroad must determine which DOT agency regulation or 
rules authorizes or requires the test. The test result information must 
be directed to the appropriate DOT agency or agencies.
    (c) Each railroad must ensure the accuracy and timeliness of each 
report submitted by the railroad or a consortium.
    (d) Each railroad must submit the required annual reports no later 
than March 15 of each year. The report must be submitted on one of the 
forms specified by the FRA. A railroad with no positive test result 
must submit the ``Drug Testing Management Information System Zero 
Positives Data Collection Form.'' All other railroads must submit the 
``Drug Testing Management Information System Data Collection Form.''
    (e) A railroad submitting the ``Drug Testing Management Information 
System Data Collection Form'' must address each of the following data 
elements:
    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal service, other).
    (2) Number of covered employees in each category subject to testing 
under the anti-drug regulations of more than one DOT agency, identified 
by each agency.
    (3) Number of specimens collected by type of test (i.e., pre-
employment and covered service transfer, random, post-positive return 
to service, and follow-up), and employee category.
    (4) Number of specimens verified negative by a Medical Review 
Officer (MRO) by type of test, and employee category.
    (5) Number of specimens verified positive for one or more of the 
five drugs by a MRO by type of test, employee category, and type of 
drug. If a test has been verified positive by a MRO for multiple drugs, 
the employer should report the result as a positive for each type of 
drug.
    (6) Number of applicants or transfers denied employment or transfer 
to a covered service position following a verified positive pre-
employment drug test.
    (7) Number of employees, currently in or having completed 
rehabilitation or otherwise qualified to return to duty, who have 
returned to work in a covered position during the reporting period.
    (8) For cause drug testing, the number of specimens collected by 
reason for test (i.e., accident/injury, rules violation, or reasonable 
suspicion), type of authority (railroad or FRA), employee category and 
type of drug, including drugs tested for under railroad authority only.
    (9) For cause drug testing, the number of specimens verified 
negative by a MRO by reason for test, type of authority, employee 
category and type of drug, including drugs tested for under railroad 
authority only.
    (10) For cause drug testing, the number of specimens verified 
positive by a MRO by reason for test, type of authority, employee 
category and type of drug, including drugs tested for under railroad 
authority only.
    (11) For cause breath alcohol testing under railroad authority, by 
reason for test, the number of tests conducted, the number of tests 
with a positive result (i.e., breath alcohol concentration (BAC) = or > 
.02), and the number of refusals.
    (12) For cause urine alcohol testing under railroad authority, by 
reason for test, the number of tests conducted, the number of tests 
with a positive result, and the number of refusals.
    (13) For cause breath alcohol testing under FRA authority, by 
reason for test, the number of tests conducted, the number of tests 
with a positive result, and the number of refusals.
    (14) Total number of covered employees observed in documented 
operational tests and inspections related to enforcement of the 
railroad's rules on alcohol and drug use.
    (15) Based on the tests and inspections described in paragraph 
(e)(14) of this section, the number of covered employees charged with a 
violation of the railroad's Rule G or similar rule or policy on drugs.
    (16) Based on the tests and inspections described in paragraph 
(e)(14) of this section, the number of covered employees charged with a 
violation of the railroad's Rule G or similar rule or policy on 
alcohol.
    (17) Number of specimens verified positive for more than one drug, 
by employee category and type of drug.
    (18) Number of covered employees who refused to submit to a random 
drug test required under FRA authority.
    (19) Number of covered employees who refused to submit to a non-
random drug test required under FRA authority.
    (20) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable drug use during the reporting 
period.
    (f) A railroad authorized to submit the ``Drug Testing Management 
Information System Zero Positives Data Collection Form'' must address 
each of the following data elements:
    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal service, other).
    (2) Number of covered employees in each category subject to testing 
under the anti-drug regulations of more than

[[Page 21532]]

one DOT agency, identified by each agency.
    (3) Number of specimens collected and verified negative by type of 
test (i.e., pre-employment and covered service transfer, random, for 
cause due to accident/incident, for cause due to rules violation, 
reasonable suspicion, post-positive return to service, and follow-up), 
and employee category.
    (4) For cause breath alcohol testing under railroad authority, the 
number of tests conducted by reason for test (i.e., accident/injury, 
rules violation, or reasonable suspicion).
    (5) For cause urine alcohol testing under railroad authority, the 
number of tests conducted by reason for test.
    (6) For cause breath alcohol testing under FRA authority, the 
number of tests conducted by reason for test.
    (7) Total number of covered employees observed in documented 
operational tests and inspections related to enforcement of the 
railroad's rules on alcohol and drug use.
    (8) Based on the tests and inspections described in paragraph 
(f)(7) of this section, the number of covered employees charged with a 
violation of the railroad's Rule G or similar rule or policy on drugs.
    (9) Based on the tests and inspections described in paragraph 
(f)(7) of this section, the number of covered employees charged with a 
violation of the railroad's Rule G or similar rule or policy on 
alcohol.
    (10) Number of covered employees who refused to submit to a random 
drug test required under FRA authority.
    (11) Number of covered employees who refused to submit to a non-
random drug test required under FRA authority.
    (12) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable drug use during the reporting 
period.

Subpart J--Recordkeeping Requirements


Sec. 219.901  Retention of alcohol testing records.

    (a) General requirement. In addition to the records required to be 
kept by part 40 of this title, each railroad must maintain alcohol 
misuse prevention program records in a secure location with controlled 
access as set out in this section.
    (b) Each railroad must maintain the following records for a minimum 
of five years:
    (1) A summary record of each covered employee's test results; and
    (2) A copy of the annual report summarizing the results of its 
alcohol misuse prevention program (if required to submit the report 
under Sec. 219.801(a)).
    (c) Each railroad must maintain the following records for a minimum 
of two years:
    (1) Records related to the collection process:
    (i) Collection logbooks, if used.
    (ii) Documents relating to the random selection process.
    (iii) Documents generated in connection with decisions to 
administer reasonable suspicion alcohol tests.
    (iv) Documents generated in connection with decisions on post-
accident testing.
    (v) Documents verifying the existence of a medical explanation of 
the inability of a covered employee to provide an adequate sample.
    (2) Records related to test results:
    (i) The railroad's copy of the alcohol test form, including the 
results of the test.
    (ii) Documents related to the refusal of any covered employee to 
submit to an alcohol test required by this part.
    (iii) Documents presented by a covered employee to dispute the 
result of an alcohol test administered under this part.
    (3) Records related to other violations of this part.
    (4) Records related to employee training:
    (i) Materials on alcohol abuse awareness, including a copy of the 
railroad's policy on alcohol abuse.
    (ii) Documentation of compliance with the requirements of 
Sec. 219.23.
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination 
concerning the need for alcohol testing based on reasonable suspicion.
    (iv) Certification that any training conducted under this part 
complies with the requirements for such training.


Sec. 219.903  Retention of drug testing records.

    (a) General requirement. In addition to the records required to be 
kept by part 40 of this title, each railroad must maintain drug abuse 
prevention program records in a secure location with controlled access 
as set forth in this section.
    (b)(1) Each railroad must maintain the following records for a 
minimum of five years:
    (i) A summary record of each covered employee's test results; and
    (ii) A copy of the annual report summarizing the results of its 
drug misuse prevention program (if required to submit under 
Sec. 219.803(a)).
    (2) Each railroad must maintain the following records for a minimum 
of two years.
    (c) Types of records. The following specific records must 
be maintained:
    (1) Records related to the collection process:
    (i) Documents relating to the random selection process.
    (ii) Documents generated in connection with decisions to administer 
reasonable suspicion drug tests.
    (iii) Documents generated in connection with decisions on post-
accident testing.
    (iv) Documents verifying the existence of a medical explanation of 
the inability of a covered employee to provide a sample.
    (2) Records related to test results:
    (i) The railroad's copy of the drug test custody and control form, 
including the results of the test.
    (ii) Documents presented by a covered employee to dispute the 
result of a drug test administered under this part.
    (3) Records related to other violations of this part.
    (4) Records related to employee training:
    (i) Materials on drug abuse awareness, including a copy of the 
railroad's policy on drug abuse.
    (ii) Documentation of compliance with the requirements of 
Sec. 219.23.
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination 
concerning the need for alcohol testing based on reasonable suspicion.
    (iv) Certification that any training conducted under this part 
complies with the requirements for such training.


Sec. 219.905  Access to facilities and records.

    (a) Release of covered employee information contained in records 
required to be maintained under Sec. Sec. 219.901 and 219.903 must be 
in accordance with part 40 of this title and with this section. (For 
purposes of this section only, urine drug testing records are 
considered equivalent to breath alcohol testing records.)
    (b) Each railroad must permit access to all facilities utilized in 
complying with the requirements of this part to the Secretary of 
Transportation, United States Department of Transportation, or any DOT 
agency with regulatory authority over the railroad or any of its 
covered employees.
    (c) Each railroad must make available copies of all results for 
railroad alcohol and drug testing programs conducted under this part 
and any other information pertaining to the railroad's alcohol and drug 
misuse prevention

[[Page 21533]]

program, when requested by the Secretary of Transportation or any DOT 
agency with regulatory authority over the railroad or covered employee.

Appendix A to Part 219--Schedule of Civil Penalties \1\

    The following chart lists the schedule of civil penalties:

------------------------------------------------------------------------
                                                              Willful
               Section \2\                   Violation       violation
------------------------------------------------------------------------
           Subpart A--General
219.3  Application.
    Railroad does not have required               $5,000          $7,500
     program............................
219.11  General conditions for chemical
 tests.
    A. Employee unlawfully refuses to             $2,500          $5,000
     participate in testing.............
    B. Employer fails to give priority             3,000           8,000
     to medical treatment...............
    C. Employee fails to remain                    2,500           5,000
     available..........................
    D. Employee tampers with sample.....           2,500           5,000
    E. Failure to meet supervisory                 2,500           5,000
     training requirements..............
    F. Program of instruction not                  2,500           5,000
     available..........................
    G. Program not complete.............           2,500           5,000
219.23  Railroad policies.
    A. Failure to provide written notice          $1,000          $4,000
     of FRA test........................
    B. Failure to provide written notice           1,000           4,000
     of basis for FRA test..............
    C. Use of subpart C form for other             1,000           4,000
     test...............................
    D. Failure to provide educational              1,000           4,000
     materials..........................
    E. Educational materials fail to               1,000           4,000
     explain requirements of this part
     and/or include required content....
    F. Non-Federal provisions not                  1,000           4,000
     clearly described as independent
     authority..........................
         Subpart B--Prohibitions
219.101  Alcohol and drug use
 prohibited.
    Employee violates prohibition(s)....  ..............         $10,000
219.103  Prescribed and over-the-counter
 drugs.
    A. Failure to train employee                  $2,500          $5,000
     properly on requirements...........
    B. Employee failure to comply.......           2,500           5,000
219.104  Responsive action.
    A. Failure to remove employee from            $3,000          $8,000
     covered service immediately........
    B. Failure to provide notice for               1,000           4,000
     removal............................
    C. Failure to provide prompt hearing           2,000           7,000
    D. Employee improperly returned to             2,000           7,000
     service............................
    E. Failure to administer proper                2,500           5,000
     number of follow-up tests..........
219.105  Railroad's duty to prevent
 violations.
    A. Employee improperly permitted to           $7,000         $10,000
     remain in covered service..........
    B. Failure to exercise due diligence           2,500           5,000
     to assure compliance with
     prohibition........................
219.107  Consequences of unlawful
 refusal.
    A. Employee not disqualified for              $5,000          $7,500
     nine months........................
    B. Employee unlawfully returned to             5,000           7,500
     service............................
 Subpart C--Post-Accident Toxicological
                 Testing
219.201  Events for which testing is
 required.
    A. Failure to test after qualifying           $5,000          $7,500
     event..............................
    B. Testing performed after non-                5,000          10,000
     qualifying event...................
    C. Failure to make good faith                  2,500           5,000
     determination......................
    D. Failure to provide requested                1,000           3,000
     decision report to FRA.............
219.203  Responsibilities of railroads
 and employees.
    A. Failure to properly test/exclude           $2,500          $5,000
     from testing.......................
    B. Non-covered service employee                2,500           5,000
     tested.............................
    C. Delay in obtaining samples due to           2,500           5,000
     failure to make every reasonable
     effort.............................
    D. Testing not conducted in                    2,500           5,000
     accordance with Appendix C
     requirements.......................
    E. Independent medical facility not            2,500           5,000
     utilized...........................
    F. Failure to report event or                  1,000           3,000
     contact FRA when FRA intervention
     required...........................
219.205  Sample collection and handling.
    A. Failure to observe requirements            $2,500          $5,000
     with respect to sample collection,
     marking and handling...............
    B. Failure to provide properly                 1,000           2,000
     prepared forms with samples........
    C. Failure to promptly or properly             2,500           5,000
     forward samples....................
219.207  Fatality.
    A. Failure to test..................          $5,000          $7,500
    B. Failure to request assistance               2,500           5,000
     when necessary.....................
    C. Failure to ensure timely                    2,500           5,000
     collection and shipment of required
     specimens..........................
219.209  Reports of tests and refusals.
    A. Failure to provide telephonic              $1,000          $2,000
     report.............................
    B. Failure to provide written report           1,000           2,000
     of refusal to test.................
    C. Failure to maintain report                  1,000           2,000
     explaining why test not conducted
     within 4 hours.....................
219.211  Analysis and follow-up.
    A. Failure to promptly forward                $2,500          $5,000
     specimens to designated FRA
     laboratory.........................
    B. Failure of MRO to report review             2,500           5,000
     of positive results to FRA.........
      Subpart D--Testing for Cause
219.300  Mandatory reasonable suspicion
 testing.
    A. Failure to test when reasonable            $5,000          $7,500
     suspicion criteria met.............

[[Page 21534]]

 
    B. Tested when reasonable suspicion            5,000           7,500
     criteria not met...................
    C. Testing did not comply with part            5,000           7,500
     40 procedures......................
219.301  Testing for reasonable cause.
    A. Tested when accident/incident              $5,000          $7,500
     criteria not met...................
    B. Tested when operating rules                 5,000           7,500
     violation criteria not met.........
    C. Testing did not comply with part            5,000           7,500
     40 procedures......................
    D. Event did not occur during duty             2,500           5,000
     tour...............................
    E. Employee not provided with notice           2,500           5,000
219.302  Prompt sample collection.
    Sample collection not conducted               $2,500          $5,000
     promptly...........................
  Subpart E--Identification of Troubled
                Employees
219.401 Requirement for policies.
    A. Failure to publish and/or                  $2,500          $5,000
     implement required policy..........
    B. Failure to implement policy with            2,500           5,000
     respect to individual employee.....
219.407  Alternate policies.
    Failure to file agreement or other            $2,500          $5,000
     document or provide timely notice
     of revocation......................
     Subpart F--Pre-Employment Tests
219.501  Pre-employment tests.
    A. Failure to perform pre-employment          $2,500          $5,000
     drug test before first time
     employee performs covered service..
    B. Failure to give proper notice....           2,500           5,000
   Subpart G--Random Testing Programs
219.601  Railroad random drug programs.
    A. Failure to file a random program.          $2,500          $5,000
    B. Failure to file amendment to                2,500           5,000
     program............................
    C. Failure to meet random criteria..           2,500           5,000
    D. Failure to use a neutral                    2,500           5,000
     selection process..................
    E. Testing not spread throughout the           2,500           5,000
     year...............................
    F. Total number of tests below                 2,500           5,000
     minimum random drug testing rate...
    G. Testing not distributed                     2,500           5,000
     throughout the day.................
    H. Advance notice provided to                  2,500           5,000
     employee...........................
    I. Testing when employee not on duty           2,500           5,000
    J. Testing continued after                     2,500           5,000
     employee's duty tour expired.......
    K. Failure to provide proper notice.           2,500           5,000
    L. Failure to include covered                  2,500           5,000
     service employee in pool...........
    M. Random testing not performed in a           2,500           5,000
     timely manner......................
219.603  Participation in drug testing.
    Failure to document reason for not            $2,500          $5,000
     testing selected employee..........
219.607  Railroad random alcohol
 programs.
    A. Failure to file a random alcohol           $2,500          $5,000
     program............................
    B. Failure to file amendment to                2,500           5,000
     program............................
    C. Failure to meet random criteria..           2,500           5,000
    D. Failure to use a neutral                    2,500           5,000
     selection process..................
    E. Total number of tests below                 2,500           5,000
     minimum random alcohol testing rate
    F. Advance notice provided to                  2,500           5,000
     employee...........................
    G. Testing when employee not on duty           2,500           5,000
    H. Testing continued after                     2,500           5,000
     employee's duty tour expired.......
    I. Failure to provide proper notice.           2,500           5,000
    J. Failure to include covered                  2,500           5,000
     service employee in pool...........
    K. Random testing not performed in a           2,500           5,000
     timely manner......................
219.609  Participation in alcohol
 testing.
    Failure to document reason for not            $2,500          $5,000
     testing selected employee..........
   Subpart H--Drug and Alcohol Testing
               Procedures
219.701  Standards for drug and alcohol
 testing.
    A. Failure to comply with part 40             $2,500          $5,000
     procedures in subpart B, D, F, or G          -5,000          -7,500
     testing............................
    B. Failure to perform timely                   2,500           5,000
     notification and testing...........
        Subpart I--Annual Report
219.801  Reporting alcohol misuse
 prevention program results in a
 management information system.
    A. Failure to submit MIS report on            $2,500          $5,000
     time...............................
    B. Failure to submit accurate MIS              2,500           5,000
     report.............................
    C. Failure to include required data.           2,500           5,000
219.803  Reporting drug misuse
 prevention program results in a
 management information system.
    A. Failure to submit MIS report on            $2,500          $5,000
     time...............................
    B. Failure to submit accurate MIS              2,500           5,000
     report.............................
    C. Failure to include required data.           2,500           5,000
  Subpart J--Recordkeeping Requirements
219.901  Retention of Alcohol Testing
 Records.
    A. Failure to keep records for                $2,500          $5,000
     required period....................
    B. Failure to keep required                    2,500           5,000
     documentation, materials or
     certification......................
219.903  Retention of Drug Testing
 Records.
    A. Failure to keep records for                $2,500          $5,000
     required period....................
    B. Failure to retain required                  2,500           5,000
     documentation, materials or
     certification......................
219.905  Access to facilities and
 records.

[[Page 21535]]

 
    A. Failure to release records in              $2,500          $5,000
     this subpart in accordance with
     part 40............................
    B. Failure to permit access to                 2,500           5,000
     appropriate authorities............
    C. Failure to provide access to                2,500          5,000
     results of railroad alcohol and
     drug testing programs..............
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The FRA Administrator reserves the right to assess a
  penalty of up to $22,000 for any violation, including ones not listed
  in this penalty schedule, where circumstances warrant. See 49 CFR part
  209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 219; and
  if more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code'' (e.g.,
  ``A''), which is used to facilitate assessment of civil penalties. For
  convenience, penalty citations will cite the CFR section and the
  penalty code, if any (e.g., ``Sec.  219.11A'') FRA reserves the right,
  should litigation become necessary, to substitute in its complaint the
  CFR citation in place of the combined CFR and penalty code citation.

Appendix B to Part 219--Designation of Laboratory for Post-Accident 
Toxicological Testing

    The following laboratory is currently designated to conduct 
post-accident toxicological analysis under subpart C of this part: 
NWT Inc., 1141 E. 3900 South, Suite A-110, Salt Lake City, UT 84124, 
Telephone: (801) 268-2431 (Day), (801) 483-3383 (Night/Weekend).

Appendix C to Part 219--Post-Accident Testing Sample Collection

1.0  General

    This appendix prescribes procedures for collection of samples 
for mandatory post-accident testing pursuant to subpart C of this 
part. Collection of blood and urine samples is required to be 
conducted at an independent medical facility.

(Surviving Employees)

2.0  Surviving Employees

    This unit provides detailed procedures for collecting post-
accident toxicological samples from surviving employees involved in 
train accidents and train incidents, as required by subpart C of 
this part. Subpart C of this part specifies qualifying events and 
employees required to be tested.

2.1  Collection Procedures; General

    a. All forms and supplies necessary for collection and transfer 
of blood and urine samples for three surviving employees can be 
found in the FRA post-accident shipping box, which is made available 
to the collection site by the railroad representative.
    b. Each shipping box contains supplies for blood/urine 
collections from three individuals, including instructions and 
necessary forms. The railroad is responsible for ensuring that 
materials are fresh, complete and meet FRA requirements.

2.1.1  Responsibility of the Railroad Representative

    a. In the event of an accident/incident for which testing is 
required under subpart C of this part, the railroad representative 
shall follow the designated set of instructions, and, upon arrival 
at the independent medical facility, promptly present to the 
collection facility representative a post-accident shipping box or 
boxes with all remaining sets of instructions. (Each box contains 
supplies to collect samples from three employees.) The railroad 
representative shall request the collection facility representative 
to review the instructions provided and, through qualified 
personnel, provide for collection of the samples according to the 
procedures set out.
    b. The railroad representative shall undertake the following 
additional responsibilities--
    1. Complete Form FRA 6180.73 (revised), Accident Information 
Required for Post-Accident Toxicological Testing (49 CFR part 219), 
describing the testing event and identifying the employees whose 
samples are to be deposited in the shipping box.
    2. As necessary to verify the identity of individual employees, 
affirm the identity of each employee to the medical facility 
personnel.
    3. Consistent with the policy of the collection facility, 
monitor the progress of the collection procedure.
    Warning: Monitor but do not directly observe urination or 
otherwise disturb the privacy of urine or blood collection. Do not 
handle sample containers, bottles or tubes (empty or full). Do not 
become part of the collection process.

2.1.2  Employee Responsibility

    a. An employee who is identified for post-accident toxicological 
testing shall cooperate in testing as required by the railroad and 
personnel of the independent medical facility. Such cooperation will 
normally consist of the following, to be performed as requested:
    1. Provide a blood sample, which a qualified medical 
professional or technician will draw using a single-use sterile 
syringe. The employee should be seated for this procedure.
    2. Provide, in the privacy of an enclosure, a urine sample into 
a plastic collection cup. Deliver the cup to the collector.
    3. Do not let the blood and urine samples that you provided 
leave your sight until they have been properly sealed and initialed 
by you.
    4. Certify the statement in Step 4 of the Post-Accident Testing 
Blood/Urine Custody and Control Form (49 CFR 219) (Form FRA F 
6180.74 (revised)).
    5. If required by the medical facility, complete a separate 
consent form for taking of the samples and their release to FRA for 
analysis under the FRA rule.
    Note: The employee may not be required to complete any form that 
contains any waiver of rights the employee may have in the 
employment relationship or that releases or holds harmless the 
medical facility with respect to negligence in the collection.

2.2  The Collection

    Exhibit C-1 contains instructions for collection of samples for 
post-accident toxicology from surviving employees. These 
instructions shall be observed for each collection. Instructions are 
also contained in each post-accident shipping box and shall be 
provided to collection facility personnel involved in the collection 
and/or packaging of samples for shipment.

(Post Mortem Collection)

3.0  Fatality

    This unit provides procedures for collecting post-accident body 
fluid/tissue samples from the remains of employees killed in train 
accidents and train incidents, as required by subpart C of this 
part. Subpart C specifies qualifying events and employees required 
to be tested.

3.1  Collection

    In the event of a fatality for which testing is required under 
subpart C of this part, the railroad shall promptly make available 
to the custodian of the remains a post-accident shipping box. The 
railroad representative shall request the custodian to review the 
instructions contained in the shipping box and, through qualified 
medical personnel, to provide the samples as indicated.

(Surviving Employees and Fatalities)

4.0  Shipment

    a. The railroad is responsible for arranging overnight 
transportation of the sealed shipping box containing the samples. 
When possible without incurring delay, the box should be delivered 
directly from the collection personnel providing the samples to an 
overnight express service courier. If it becomes necessary for the 
railroad to transport the box from point of collection to point of 
shipment, then--
    1. Individual kits and the shipping box shall be sealed by 
collection personnel before the box is turned over to the railroad 
representative;
    2. The railroad shall limit the number of persons handling the 
shipping box to the minimum necessary to provide for transportation;
    3. If the shipping box cannot immediately be delivered to the 
express carrier for transportation, it shall be maintained in secure 
temporary storage; and
    4. The railroad representatives handling the box shall document 
chain of custody of the shipping box and shall make available such 
documentation to FRA on request.

[[Page 21536]]

Exhibit C-1--Instructions for Collection of Blood and Urine Samples: 
Mandatory Post-Accident Toxicological Testing

A. Purpose

    These instructions are for the use of personnel of collection 
facilities conducting collection of blood and urine samples from 
surviving railroad employees following railroad accidents and 
casualties that qualify for mandatory alcohol/drug testing. The 
Federal Railroad Administration appreciates the participation of 
medical facilities in this important public safety program.

B. Prepare for Collection

    a. Railroad employees have consented to provision of samples for 
analysis by the Federal Railroad Administration as a condition of 
employment (Sec. 219.11). A private, controlled area should be 
designated for collection of samples and completion of paperwork.
    b. Only one sample should be collected at a time, with each 
employee's blood draw or urine collection having the complete 
attention of the collector until the specific sample has been 
labeled, sealed and documented.
    c. Please remember two critical rules for the collections:
    d. All labeling and sealing must be done in the sight of the 
donor, with the sample never having left the donor's presence until 
the sample has been labeled, sealed and initialed by the donor.
    e. Continuous custody and control of blood and urine samples 
must be maintained and documented on the forms provided. In order to 
do this, it is important for the paperwork and the samples to stay 
together.
    f. To the extent practical, blood collection should take 
priority over urine collection. To limit steps in the chain of 
custody, it is best if a single collector handles both collections 
from a given employee.
    g. You will use a single Post-Accident Testing Blood/Urine 
Custody and Control Form (FRA Form 6108.74 (revised)), consisting of 
six Steps to complete the collection for each employee. We will 
refer to it as the Control Form.

C. Identify the Donor

    a. The employee donor must provide photo identification to each 
collector, or lacking this, be identified by the railroad 
representative.
    b. The donor should remove all unnecessary outer garments such 
as coats or jackets, but may retain valuables, including a wallet. 
Donors should not be asked to disrobe, unless necessary for a 
separate physical examination required by the attending physician.

D. Draw Blood

    a. Assemble the materials for collecting blood from each 
employee: two 10 ml grey-stoppered blood tubes and the Control Form.
    b. Ask the donor to complete STEP 1 on the Control Form.
    c. With the donor seated, draw two (2) 10 ml tubes of blood 
using standard medical procedures (sterile, single-use syringe into 
evacuated gray-top tubes provided). CAUTION: Do not use alcohol or 
an alcohol-based swab to cleanse the venipuncture site.
    d. Once both tubes are filled and the site of venipuncture is 
protected, immediately--
    1. Seal and label each tube by placing a numbered blood sample 
label from the label set on the Control Form over the top of the 
tube and securing it down the sides.
    2. Ask the donor to initial each label. Please check to see that 
the initials match the employee's name and note any discrepancies in 
the ``Remarks'' block of the Control Form.
    3. As collector, sign and date each blood tube label at the 
place provided.
    4. Skip to STEP 5 and initiate chain of custody for the blood 
tubes by filling out the first line of the block to show receipt of 
the blood samples from the donor.
    5. Complete STEP 2 on the form.
    6. Return the blood tubes into the individual kit. Keep the 
paperwork and samples together. If another collector will be 
collecting the urine sample from this employee, transfer both the 
form and the individual kit with blood tubes to that person, showing 
the transfer of the blood tubes on the second line of STEP 5 (the 
chain of custody block).

E. Collect Urine

    a. The urine collector should assemble at his/her station the 
materials for collecting urine from each employee: one plastic 
collection cup with temperature device affixed enclosed in a heat-
seal bag (with protective seal intact), two 90 ml urine sample 
bottles with caps and one biohazard bag (with absorbent) also 
enclosed in a heat-seal bag (with protective seal intact), and the 
Control Form. Blood samples already collected must remain in the 
collector's custody and control during this procedure.
    b. After requiring the employee to wash his/her hands, the 
collector should escort the employee directly to the urine 
collection area. To the extent practical, all sources of water in 
the collection area should be secured and a bluing agent (provided 
in the box) placed in any toilet bowl, tank, or other standing 
water.
    c. The employee will be provided a private place in which to 
void. Urination will not be directly observed. If the enclosure 
contains a source of running water that cannot be secured or any 
material (soap, etc.) that could be used to adulterate the sample, 
the collector should monitor the provision of the sample from 
outside the enclosure. Any unusual behavior or appearance should be 
noted in the remarks section of the Control Form or on the back of 
that form.
    d. The collector should then proceed as follows:
    e. Unwrap the collection cup in the employee's presence and hand 
it to the employee (or allow the employee to unwrap it).
    f. Ask the employee to void at least 60 ml into the collection 
cup (at least to the line marked).
    g. Leave the private enclosure.

IF THERE IS A PROBLEM WITH URINATION OR SAMPLE QUANTITY, SEE THE 
``TROUBLE BOX'' AT THE BACK OF THESE INSTRUCTIONS.

    h. Once the void is complete, the employee should exit the 
private enclosure and deliver the sample to the collector. Both the 
collector and the employee must proceed immediately to the labeling/
sealing area, with the sample never leaving the sight of the 
employee before being sealed and labeled.
    i. Upon receipt of the sample, proceed as follows:
    1. In the full view of the employee, remove the wrapper from the 
two urine sample bottles. Transfer the urine from the collection cup 
into the sample bottles (at least 30 ml in bottle A and at least 15 
ml in bottle B).
    2. As you pour the sample into the sample bottles, please 
inspect for any unusual signs indicating possible adulteration or 
dilution. Carefully secure the tops. Note any unusual signs under 
``Remarks'' at STEP 3 of the Control Form.
    3. Within 4 minutes after the void, measure the temperature of 
the urine by reading the strip on the bottle. Mark the result at 
STEP 3 of the Control Form.

IF THERE IS A PROBLEM WITH THE URINE SAMPLE, SEE THE ``TROUBLE BOX'' AT 
THE BACK OF THESE INSTRUCTIONS.

    4. Remove the urine bottle labels from the Control Form. The 
labels are marked ``A'' and ``B.'' Place each label as marked over 
the top of its corresponding bottle, and secure the label to the 
sides of the bottle.
    5. Ask the donor to initial each label. Please check to see that 
the initials match the employee name and note any discrepancy in the 
``Remarks'' block of STEP 3.
    6. As collector, sign and date each urine label.
    7. Skip to STEP 5 and initiate chain-of-custody by showing 
receipt of the urine samples from the donor. (If you collected the 
blood, a check under ``urine'' will suffice. If someone else 
collected the blood, first make sure transfer of the blood to you is 
documented. Then, using the next available line, show ``Provide 
samples'' under purpose, ``Donor'' under ``released by,'' check 
under ``urine'' and place your name, signature and date in the space 
provided.)
    8. Complete the remainder of STEP 3 on the Control Form.
    9. Have the employee complete STEP 4 on the Control Form.
    10. Place the filled urine bottles in the individual employee 
kit. Keep the paperwork and samples together. If another collector 
will be collecting the blood sample from this employee, transfer 
both the form and the kit to that person, showing the transfer of 
the urine samples on the next available line of STEP 5 (the chain of 
custody block).

F. Seal the Individual Employee Kit

    a. The blood and urine samples have now been collected for this 
employee. The blood/urine samples will now be sealed into the 
individual employee kit, while all paperwork will be retained for 
further completion. After rechecking to see that each sample is 
properly labeled and initialed, close the plastic bag to contain any 
leakage in

[[Page 21537]]

transportation, and apply the kit security seal to the small 
individual kit. As collector, sign and date the kit seal.
    b. Before collecting samples from the next employee, complete 
the next line on the chain-of-custody block showing release of the 
blood and urine by yourself for the purpose of ``Shipment'' and 
receipt by the courier service or railroad representative that will 
provide transportation of the box, together with the date.

G. Complete Treatment Information

    Complete STEP 6 of the Control Form. Mark the box if a breath 
alcohol test was conducted under FRA authority.

H. Prepare the Box for Shipment

    a. Sealed individual employee kits should be retained in secure 
storage if there will be a delay in preparation of the shipping box. 
The shipping box shall be prepared and sealed by a collection 
facility representative as follows:
    1. Inspect STEP 5 of each Control Form to ensure chain-of-
custody is continuous and complete for each fluid (showing samples 
released for shipment). Retain the medical facility copy of each 
Control Form and the Accident Information form for your records.
    2. Place sealed individual employee kits in the shipping box. 
Place all forms in zip-lock bag and seal securely. Place bag with 
forms and unused supplies in shipping box.
    3. Affix the mailing label provided to the outside of the 
shipping box.

I. Ship the Box

    a. The railroad must arrange to have the box shipped overnight 
air express or (if express service is unavailable) by air freight, 
prepaid, to FRA's designated laboratory. Whenever possible without 
incurring delay, the collector should deliver the box directly into 
the hands of the express courier or air freight representative.
    b. Where courier pickup is not immediately available at the 
collection facility where the samples are taken, the railroad is 
required to transport the shipping box for expeditious shipment by 
air express, air freight or equivalent means.
    c. If the railroad is given custody of the box to arrange 
shipment, please record the name of the railroad official taking 
custody on the copy of Form 6180.73 retained by the collection site.

``TROUBLE BOX''

    1. Problem: The employee claims an inability to urinate, 
either because he/she has recently voided or because of anxiety 
concerning the collection.
    Action: The employee may be offered moderate quantities of 
liquid to assist urination. If the employee continues to claim 
inability after 4 hours, the urine collection should be 
discontinued, but the blood samples should be forwarded and all 
other procedures followed. Please note in area provided for remarks 
what explanation was provided by the employee.
    2. Problem: The employee cannot provide approximately 60 ml. 
of sample.
    Action: The employee should remain at the collection 
facility until as much as possible of the required amount can be 
given (up to 4 hours). The employee should be offered moderate 
quantities of liquids to aid urination. The first bottle, if it 
contains any quantity of urine, should be sealed and securely stored 
with the blood tubes and Control Form pending shipment. A second 
bottle should then be used for the subsequent void (using a second 
Control Form with the words ``SECOND VOID--FIRST SAMPLE 
INSUFFICIENT'' in the remarks block and labels from that form). 
However, if after 4 hours the donor's second void is also 
insufficient or contains no more than the first insufficient void, 
discard the second void and send the first void to the laboratory.
    3. Problem: The urine temperature is outside the normal 
range of 32 deg.-38 deg.C/90 deg.-100 deg.F, and a suitable 
medical explanation cannot be provided by an oral temperature or 
other means; or
    4. Problem: The collector observes conduct clearly and 
unequivocally indicating an attempt to substitute or adulterate the 
sample (e.g., substitute urine in plain view, blue dye in sample 
presented, etc.) and a collection site supervisor or the railroad 
representative agrees that the circumstances indicate an attempt to 
tamper with the sample.
    Action (for either Problem No. 3 or Problem No. 4): Document the 
problem on the Control Form. i. If the collection site supervisor or 
railroad representative concurs that the temperature of the sample, 
or other clear and unequivocal evidence, indicates a possible 
attempt to substitute or alter the sample, another void must be 
taken under direct observation by a collector of the same gender.
    ii. If a collector of the same sex is not available, do NOT 
proceed with this step.
    iii. If a collector of the same gender is available, proceed as 
follows: A new Control Form must be initiated for the second void. 
The original suspect sample should be marked ``Void'' and the 
follow-up void should be marked ``Void 2,'' with both voids being 
sent to the laboratory and the incident clearly detailed on the 
Control Form.

Exhibit C-2--Instructions for Collection of Post Mortem Samples: 
Employee Killed in a Railroad Accident/Incident

    To the Medical Examiner, Coroner, or Pathologist:
    a. In compliance with Federal safety regulations (49 CFR part 
219), a railroad representative has requested that you obtain 
samples for toxicology from the remains of a railroad employee who 
was killed in a railroad accident or incident. The deceased 
consented to the taking of such samples, as a matter of Federal law, 
by performing service on the railroad (49 CFR 219.11(f)).
    b. Your assistance is requested in carrying out this program of 
testing, which is important to the protection of the public safety 
and the safety of those who work on the railroads.
    A. Materials:
    The railroad will provide you a post-accident shipping box 
that contains necessary supplies. If the box is not immediately 
available, please proceed using supplies available to you that are 
suitable for forensic toxicology.
    B. Samples requested, in order of preference:
    a. Blood--20 milliliters or more. Preferred sites: intact 
femoral vein or artery or peripheral vessels (up to 10 ml, as 
available) and intact heart (20 ml). Deposit blood in gray-stopper 
tubes individually by site and shake to mix sample and preservative.

    Note: If uncontaminated blood is not available, bloody 
fluid or clots from body cavity may be useful for qualitative 
purposes; but do not label as blood. Please indicate source and 
identity of sample on label of tube.

    b. Urine--as much as 100 milliliters, if available. Deposit into 
plastic bottles provided.
    c. Vitreous fluid--all available, deposited into smallest 
available tube (e.g., 3 ml) with 1% sodium fluoride, or gray-stopper 
tube (provided). Shake to mix sample and preservative.
    d. If available at autopsy, organs--50 to 100 grams each of two 
or more of the following in order preference, as available: liver, 
bile, brain, kidney, spleen, and/or lung. Samples should be 
individually deposited into zip-lock bags or other clean, single use 
containers suitable for forensic samples.
    e. If vitreous or urine is not available, please provide--
    1. Spinal fluid--all available, in 8 ml container (if available) 
with sodium fluoride or in gray-stopper tube; or, if spinal fluid 
cannot be obtained,
    2. Gastric content--up to 100 milliliters, as available, into 
plastic bottle.
    C. Sample collection:
    a. Sampling at time of autopsy is preferred so that 
percutaneous needle puncturing is not necessary. However, if autopsy 
will not be conducted or is delayed, please proceed with sampling.
    b. Blood samples should be taken by sterile syringe and 
deposited directly into evacuated tube, if possible, to avoid 
contamination of sample or dissipation of volatiles (ethyl alcohol).

    Note: If only cavity fluid is available, please open 
cavity to collect sample. Note condition of cavity.

    c. Please use smallest tubes available to accommodate available 
quantity of fluid sample (with 1% sodium fluoride).
    D. Sample identification, sealing:
    a. As each sample is collected, seal each blood tube and 
each urine bottle using the respective blood tube or urine bottle 
using the identifier labels from the set provided with the Post-
Accident Testing Blood/Urine Custody and Control Form (49 CFR part 
219) (Form FRA F 6180.74 (revised)). Make sure the unique 
identification number on the labels match the pre-printed number on 
the Control Form. Please label other samples with name and sample 
set identification numbers. You may use labels and seals from any of 
the extra forms, but annotate them accordingly.
    b. Annotate each label with sample description and source (as 
appropriate) (e.g., blood, femoral vein).
    c. Please provide copy of any written documentation regarding 
condition of body and/or sampling procedure that is available at the 
time samples are shipped.
    E. Handling:

[[Page 21538]]

    a. If samples cannot be shipped immediately as provided 
below, samples other than blood may be immediately frozen. Blood 
samples should be refrigerated, but not frozen.
    b. All samples and documentation should be secured from 
unauthorized access pending delivery for transportation.
    F. Information:
    a. If the railroad has not already done so, please place the 
name of the subject at the top of the Control Form (STEP 1). You are 
requested to complete STEP 2 of the form, annotating it by writing 
the word ``FATALITY,'' listing the samples provided, providing any 
further information under ``Remarks'' or at the bottom of the form. 
If it is necessary to transfer custody of the samples from the 
person taking the samples prior to preparing the box for shipment, 
please use the blocks provided in STEP 5 to document transfer of 
custody.
    b. The railroad representative will also provide Accident 
Information Required for Post-Accident Toxicological Testing (49 CFR 
part 219), Form FRA 6180.73 (revised). Both forms should be placed 
in the shipping box when completed; but you may retain the 
designated medical facility copy of each form for your records.
    G. Packing the shipping box:
    a. Place urine bottles and blood tubes in the sponge liner 
in the individual kit, close the biohazard bag zipper, close the kit 
and apply the kit custody seal to the kit. You may use additional 
kits for each tissue sample, being careful to identify sample by 
tissue, name of deceased, and specimen set identification number. 
Apply kit security seals to individual kits and initial across all 
seals. Place all forms in the zip-lock bag and seal securely.
    b. Place the bag in the shipping box. Do not put forms in with 
the specimens. Seal the shipping box with the seal provided and 
initial and date across the seal.
    c. Affix the mailing label to the outside of the box.
    H. Shipping the box:
    a. The railroad must arrange to have the box shipped 
overnight air express or (if express service is unavailable) by air 
freight, prepaid, to FRA's designated laboratory. When possible, but 
without incurring delay, deliver the sealed shipping box directly to 
the express courier or the air freight representative.
    b. If courier pickup is not immediately available at your 
facility, the railroad is required to transport the sealed shipping 
box to the nearest point of shipment via air express, air freight or 
equivalent means.
    c. If the railroad receives the sealed shipping box to 
arrange shipment, please record under ``Supplemental 
Information'' on the Control Form, the name of the railroad official 
taking custody.
    I. Other:
    FRA requests that the person taking the samples annotate the 
Control Form under ``Supplemental Information'' if additional 
toxicological analysis will be undertaken with respect to the 
fatality. FRA reports are available to the coroner or medical 
examiner on request.

    Issued in Washington, D.C., on April 11, 2001.
S. Mark Lindsey,
Acting Deputy Administrator, Federal Railroad Administration.

[FR Doc. 01-9413 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-06-P