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The Proto-Freelance Modelers "How long ago a flag fell does not matter as long as there are railfans and Home :: 1948 Atlas :: Posters :: Prototype Data :: E-mail Discussion List :: Links |
[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
[CITE: 49CFR219]
[Page 207-247]
TITLE 49--TRANSPORTATION
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
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 Specimen 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.
[[Page 208]]
Subpart D--Testing for Cause
219.300 Mandatory reasonable suspicion testing.
219.301 Testing for reasonable cause.
219.302 Prompt specimen 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 Specimen Collection
Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 28
U.S.C. 2461, note; and 49 CFR 1.49(m).
Source: 66 FR 41973, Aug. 9, 2001, unless otherwise noted.
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 gauge 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
[[Page 209]]
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--
Accident or incident reportable under part 225 does not include a
case that is classified as ``covered data'' under Sec. 225.5 of this
chapter (i.e., employee injury/illness cases reportable exclusively
because a physician or other licensed health care professional either
made a one-time topical application of a prescription-strength
medication to the employee's injury or made a written recommendation
that the employee: Take one or more days away from work when the
employee instead reports to work (or would have reported had he or she
been scheduled) and takes no days away from work in connection with the
injury or illness; work restricted duty for one or more days when the
employee instead works unrestricted (or would have worked unrestricted
had he or she been scheduled) and takes no other days of restricted work
activity in connection with the injury or illness; or take over-the-
counter medication at a dosage equal to or greater than the minimum
prescription strength, whether or not the employee actually takes the
medication).
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.
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.
[[Page 210]]
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 specimens 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 except for an injury that is classified as ``covered data''
under Sec. 225.5 of this chapter (i.e., employee injury/illness cases
reportable exclusively because a physician or other licensed health care
professional either made a one-time topical application of a
prescription-strength medication to the employee's injury or made a
written recommendation that the employee: Take one or more days away
from work when the employee instead reports to work (or would have
reported had he or she been scheduled) and takes no days away from work
in connection with the injury or illness; work restricted duty for one
or more days when the employee instead works unrestricted (or would have
worked unrestricted had he or she been scheduled) and takes no other
days of restricted work activity in connection with the injury or
illness; or take over-the-counter medication at a dosage equal to or
greater than the minimum prescription strength, whether or not the
employee actually takes the medication.
Reporting threshold means the amount specified in Sec. 225.19(e) of
this chapter, as
[[Page 211]]
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.
[66 FR 41973, Aug. 9, 2001, as amended at 68 FR 10135, Mar. 3, 2003]
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 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. 219.101 or
Sec. 219.102 (while imposing a duty of due diligence to prevent such
conduct). Each day a violation continues constitutes a separate offense.
See 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
[[Page 212]]
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 specimen(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 specimens.
(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 specimen 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 specimen;
(2) The results of any laboratory tests for alcohol or any drug
conducted by or for the treating facility on such specimen;
(3) The identity, dosage, and time of administration of any drugs
administered by the treating facility prior to the time specimens were
taken by the treating facility or prior to the time specimens 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 specimens, 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
[[Page 213]]
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
specimens 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 cooperate in
additional body fluid testing. However, no such testing may be performed
on urine or blood specimens provided under this part. For purposes of
this paragraph (h), all urine from a void constitutes a single specimen.
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
[[Page 214]]
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
Secs. 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.
[[Page 215]]
(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;
(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--
[[Page 216]]
(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
specimen or specimens 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 Secs. 219.101 and 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
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employee's denial of prohibited alcohol 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 Secs. 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
Secs. 219.101 and 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
specimen or specimens 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
[[Page 218]]
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 specimens 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 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 this part).
(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 specimen analysis,
reporting, and other purposes.
(5) In the event specimens 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
[[Page 219]]
to destroy any specimen 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
specimens for toxicological testing by FRA. Such employees must
cooperate in the provision of specimens 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 specimens.
(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 specimens.
(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 specimen collection. (1) The railroad must make every
reasonable effort to assure that specimens 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 specimen 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);
[[Page 220]]
(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 specimen collection. (1) Employees must be transported
to an independent medical facility where the specimens 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 specimen collection and the
ability of the facility to complete specimen 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 specimens.
(d) Obtaining cooperation of facility. (1) In seeking the
cooperation of a medical facility in obtaining a specimen 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 specimens 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 specimen.
(e) Discretion of physician. Nothing in this subpart may be
construed to limit the discretion of a physician to determine whether
drawing a blood specimen 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 Specimen collection and handling.
(a) General. Urine and blood specimens must be obtained, marked,
preserved, handled, and made available to FRA consistent with the
requirements of this subpart, and the technical specifications set forth
in Appendix C to this part.
(b) Information requirements. In order to process specimens, 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 specimens. 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 specimens. 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 specimens. One Form
6180.74 must be forwarded in the shipping kit for each employee who
provides specimens. 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
[[Page 221]]
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
specimens under this subpart. Whenever possible, specimens 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. Specimens 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 specimens 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 specimens 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 specimens must be
obtained from the remains of the employee for toxicological testing. To
ensure that specimens 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 specimens. 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 specimens, 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 specimens from the remains on request
of the railroad or FRA pursuant to this part; and, in so acting, such
person is the delegate of the FRA Administrator under sections 20107 and
20108 of title 49, United States Code (but not the agent of the
Secretary for purposes of the Federal Tort Claims Act (chapter 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 this part.
[[Page 222]]
(d) Appendix C to this part specifies body fluid and tissue
specimens 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
specimens 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 specimen 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 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 specimens provided under this subpart, consistent
with the need to develop all relevant information and produce a complete
report. Specimens 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. Specimens 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 bound by the railroad Medical Review
Officer's determination, but that determination will be considered by
FRA in
[[Page 223]]
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, S.W., 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 specimen (including each split specimen)
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 specimen 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 specimen 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,
[[Page 224]]
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 specimen test at
a laboratory other than the laboratory designated under this subpart
shall be borne by the employee.
Sec. 219.213 Unlawful refusals; consequences.
(a) Disqualification. An employee who refuses to cooperate in
providing breath, blood or urine specimens 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
[[Page 225]]
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 Secs. 219.101 and 219.102 or a
railroad rule implementing the requirements of Secs. 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 specimen 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/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]
[[Page 226]]
(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 specimens under Subpart C
of this part.
Sec. 219.302 Prompt specimen 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 specimen 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
Secs. 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 Secs. 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
[[Page 227]]
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 Secs. 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.
(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 Secs. 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
[[Page 228]]
under this part 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.
[[Page 229]]
(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 Secs. 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.
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
[[Page 230]]
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 specimens 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
[[Page 231]]
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 to 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
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 (d)(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
[[Page 232]]
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 agency 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
specimen 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 specimen 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
specimen 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
[[Page 233]]
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 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 specimens 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.
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(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 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 agency 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.
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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
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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:
(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.
[[Page 237]]
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 autho