Federal Railroad Administration, DOT Pt. 219legismex.mty.itesm.mx/secc_inter/49CFR/49CFRPART219.pdf199 Federal Railroad Administration, DOT Pt. 219 if either (1) due to their failure

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if either (1) due to their failure to exercisereasonable care, they failed to determinethat the safety device was not functioning,or (2) having ascertained that the device wasnot functioning, still elected to operate thetrain. Similarly, railroad supervisors whopermit or direct that a train with a disableddevice be operated after having learned thatthe safety device is not functioning or afterhaving failed to use reasonable care in theperformance of their duties could also besubject to sanction.

However, as a matter of enforcement pol-icy, application of a negligence standard inthis particular context presently appears un-warranted. We have seen no evidence of anemployee’s negligent failure to detect an-other employee’s tampering having caused asafety problem. FRA can effectively attackthe known dimensions of the tamperingproblem by employing an enforcement policythat limits its enforcement actions to situa-tions where individuals clearly had actualknowledge of the disabled device and inten-tionally operated the train notwithstandingthat knowledge.

Therefore, FRA will not take enforcementaction against an individual under § 218.57 ab-sent a showing of such actual knowledge ofthe facts. Actual, subjective knowledge neednot be demonstrated. It will suffice to showobjectively that the alleged violator musthave known the facts based on reasonable in-ferences drawn from the circumstances. Forexample, it is reasonable to infer that a per-son knows about something plainly in sighton the locomotive he is operating. Also, un-like the case where willfulness must beshown (see FRA’s statement of policy at 49CFR part 209, appendix A), knowledge of orreckless disregard for the law need not beshown to make out a violation of § 218.57. Theknowledge relevant here is knowledge of thefacts constituting the violation, not knowl-edge of the law.

Should FRA receive evidence indicatingthat a stricter enforcement policy is nec-essary to address the tampering problem, itwill revise its enforcement policy to permitenforcement actions based only on a showingof the subsequent operator’s negligent fail-ure to detect the tampering, as the relevantprovision of the RSIA permits it to do now.Any such change in enforcement policy willbecome effective only after publication of arevised version of this appendix.

[54 FR 5492, Feb. 3, 1989. Redesignated andamended at 58 FR 43293, Aug. 16, 1993]

PART 219—CONTROL OF ALCOHOLAND 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 viola-

tions.219.107 Consequences of unlawful refusal.

Subpart C—Post-Accident ToxicologicalTesting

219.201 Events for which testing is required.219.203 Responsibilities of railroads and em-

ployees.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.

Subpart D—Testing for Cause

219.300 Mandatory reasonable suspiciontesting.

219.301 Testing for reasonable cause.219.302 Prompt specimen collection; time

limitation.

Subpart E—Identification of TroubledEmployees

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 DrugTesting Programs

219.601 Railroad random drug testing pro-grams.

219.602 FRA Administrator’s determinationof random drug testing rate.

219.603 Participation in drug testing.

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219.605 Positive drug test results; proce-dures.

219.607 Railroad random alcohol testing pro-grams.

219.608 FRA Administrator’s determinationof random alcohol testing rate.

219.609 Participation in alcohol testing.219.611 Test result indicating prohibited al-

cohol concentration; procedures.

Subpart H—Drug and Alcohol TestingProcedures

219.701 Standards for drug and alcohol test-ing.

Subpart I—Annual Report

219.801 Reporting alcohol misuse preventionprogram results in a management infor-mation system.

219.803 Reporting drug misuse preventionprogram results in a management infor-mation 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

PENALTIESAPPENDIX B TO PART 219—DESIGNATION OF

LABORATORY FOR POST-ACCIDENT TOXI-COLOGICAL TESTING

APPENDIX C TO PART 219—POST-ACCIDENTTESTING SPECIMEN COLLECTION

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

SOURCE: 66 FR 41973, Aug. 9, 2001, unlessotherwise noted.

Subpart A—General

§ 219.1 Purpose and scope.(a) The purpose of this part is to pre-

vent accidents and casualties in rail-road operations that result from im-pairment of employees by alcohol ordrugs.

(b) This part prescribes minimumFederal safety standards for control ofalcohol and drug use. This part doesnot restrict a railroad from adoptingand enforcing additional or more strin-gent requirements not inconsistentwith this part.

§ 219.3 Application.(a) Except as provided in paragraphs

(b) and (c) of this section, this part ap-plies to—

(1) Railroads that operate rollingequipment on standard gauge trackwhich is part of the general railroadsystem of transportation; and

(2) Railroads that provide commuteror other short-haul rail passenger serv-ice in a metropolitan or suburban area(as described by 49 U.S.C. 20102).

(b)(1) This part does not apply to arailroad that operates only on track in-side an installation which is not part ofthe general railroad system of trans-portation.

(2) Subparts D, E, F and G of thispart do not apply to a railroad thatemploys not more than 15 employeescovered by the hours of service laws at49 U.S.C. 21103, 21104, or 21105, and thatdoes not operate on tracks of anotherrailroad (or otherwise engage in jointoperations with another railroad) ex-cept as necessary for purposes of inter-change.

(3) Subpart I of this part does notapply to a railroad that has fewer than400,000 total manhours.

(c) Subparts E, F and G of this partdo not apply to operations of a foreignrailroad conducted by covered serviceemployees whose primary place of serv-ice (‘‘home terminal’’) for rail trans-portation services is located outsidethe United States. Such operations andemployees are subject to Subparts A,B, C, and D of this part when operatingin United States territory.

§ 219.5 Definitions.As used in this part—Class I, Class II, and Class III have the

meaning assigned by regulations of theSurface Transportation Board (49 CFRpart 1201; General Instructions 1–1).

Controlled substance has the meaningassigned by 21 U.S.C. 802, and includesall substances listed on Schedules Ithrough V as they may be revised fromtime to time (21 CFR Parts 1301–1316).

Covered employee means a person whohas been assigned to perform servicesubject to the hours of service laws (49U.S.C. ch. 211) during a duty tour,whether or not the person has per-formed or is currently performing suchservice, and any person who performssuch service. (An employee is not ‘‘cov-ered’’ within the meaning of this partexclusively by reason of being an em-ployee for purposes of 49 U.S.C. 21106.)


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Federal Railroad Administration, DOT § 219.5

For the purposes of pre-employmenttesting only, the term ‘‘covered em-ployee’’ includes a person applying toperform covered service.

Co-worker means another employee ofthe railroad, including a working su-pervisor directly associated with ayard or train crew, such as a conductoror yard foreman, but not including anyother railroad supervisor, specialagent, or officer.

DOT Agency means an agency (or‘‘operating administration’’) of theUnited States Department of Transpor-tation administering regulations re-quiring alcohol or controlled substancetesting (14 CFR parts 61, 63, 65, 121 and135; 49 CFR parts 199, 219, 382 and 655) inaccordance with Part 40 of this title.

Drug means any substance (otherthan alcohol) that has known mind- orfunction-altering effects on a humansubject, specifically including anypsychoactive substance and including,but not limited to, controlled sub-stances.

FRA means the Federal Railroad Ad-ministration, United States Depart-ment of Transportation.

FRA representative means the Asso-ciate Administrator for Safety of FRA,the Associate Administrator’s delegate(including a qualified State inspectoracting under Part 212 of this chapter),the Chief Counsel of FRA, or the ChiefCounsel’s delegate.

Hazardous material means a com-modity designated as a hazardous ma-terial by Part 172 of this title.

Impact accident means a train acci-dent (i.e., a rail equipment accident in-volving damage in excess of the currentreporting threshold (see § 225.19(e) ofthis chapter)) consisting of a head-oncollision, a rear-end collision, a sidecollision (including a collision at arailroad crossing at grade), a switchingcollision, or impact with a delib-erately-placed obstruction such as abumping post. The following are notimpact accidents:

(1) An accident in which the derail-ment of equipment causes an impactwith other rail equipment;

(2) Impact of rail equipment with ob-structions such as fallen trees, rock orsnow slides, livestock, etc.; and

(3) Raking collisions caused by de-railment of rolling stock or operation

of equipment in violation of clearancelimitations.

Independent with respect to a medicalfacility, means not under the owner-ship or control of the railroad and notoperated or staffed by a salaried officeror employee of the railroad. The factthat the railroad pays for services ren-dered by a medical facility or labora-tory, selects that entity for performingtests under this part, or has a standingcontractual relationship with that en-tity to perform tests under this part orperform other medical examinations ortests of railroad employees does not, byitself, remove the facility from thisdefinition.

Medical facility means a hospital,clinic, physician’s office, or laboratorywhere toxicological specimens can becollected according to recognized pro-fessional standards.

Medical practitioner means a physi-cian or dentist licensed or otherwiseauthorized to practice by the state.

NTSB means the National Transpor-tation Safety Board.

Passenger train means a train trans-porting persons (other than employees,contractors, or persons riding equip-ment to observe or monitor railroadoperations) in intercity passenger serv-ice, commuter or other short-haul serv-ice, or for excursion or recreationalpurposes.

Positive rate means the number ofpositive results for random drug testsconducted under this part plus thenumber of refusals of random tests re-quired by this part, divided by thetotal number of random drug tests con-ducted under this part plus the numberof refusals of random tests required bythis part.

Possess means to have on one’s personor in one’s personal effects or underone’s control. However, the concept ofpossession as used in this part does notinclude control by virtue of presence inthe employee’s personal residence orother similar location off of railroadproperty.

Railroad means any form of non-highway ground transportation thatruns on rails or electromagnetic guide-ways, and any person providing suchtransportation, including—


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49 CFR Ch. II (10–1–01 Edition)§ 219.7

(1) Commuter or other short-haulrailroad passenger service in a metro-politan or suburban area and com-muter railroad service that was oper-ated by the Consolidated Rail Corpora-tion on January 1, 1979; and

(2) High speed ground transportationsystems that connect metropolitanareas, without regard to whether thosesystems use new technologies not asso-ciated with traditional railroads; butdoes not include rapid transit oper-ations in an urban area that are notconnected to the general railroad sys-tem of transportation.

Railroad property damage or damage torailroad property refers to damage torailroad property, including railroadon-track equipment, signals, track,track structures (including bridges andtunnels), or roadbed, including laborcosts and all other costs for repair orreplacement in kind. Estimated costfor replacement of railroad propertymust be calculated as described in theFRA Guide for Preparing Accident/In-cident Reports. (See § 225.21 of thischapter.) However, replacement of pas-senger equipment is calculated basedon the cost of acquiring a new unit forcomparable service.

Reportable injury means an injury re-portable under Part 225 of this chapter.

Reporting threshold means the amountspecified in § 225.19(e) of this chapter, asadjusted from time to time in accord-ance with Appendix B to Part 225 ofthis chapter.

Supervisory employee means an officer,special agent, or other employee of therailroad who is not a co-worker andwho is responsible for supervising ormonitoring the conduct or performanceof one or more employees.

Train, except as context requires,means a locomotive, or more than onelocomotive coupled, with or withoutcars. (A locomotive is a self-propelledunit of equipment which can be used intrain service.)

Train accident means a passenger,freight, or work train accident de-scribed in § 225.19(c) of this chapter (a‘‘rail equipment accident’’ involvingdamage in excess of the current report-ing threshold), including an accidentinvolving a switching movement.

Train incident means an event involv-ing the movement of railroad on-track

equipment that results in a casualtybut in which railroad property damagedoes not exceed the reporting thresh-old.

Violation rate means the number ofcovered employees (as reported under§ 219.801) found during random testsgiven under this part to have an alco-hol concentration of .04 or greater, plusthe number of employees who refuse arandom test required by this part, di-vided by the total reported number ofemployees in the industry given ran-dom alcohol tests under this part plusthe total reported number of employeesin the industry who refuse a randomtest required by this part.

§ 219.7 Waivers.

(a) A person subject to a requirementof this part may petition the FRA for awaiver of compliance with such re-quirement.

(b) Each petition for waiver underthis section must be filed in a mannerand contain the information requiredby Part 211 of this chapter. A petitionfor waiver of the Part 40 prohibitionagainst stand down of an employee be-fore the Medical Review Officer hascompleted the verification must alsocomply with § 40.21 of this title.

(c) If the FRA Administrator findsthat waiver of compliance is in thepublic interest and is consistent withrailroad safety, the Administrator maygrant the waiver subject to any nec-essary conditions.

§ 219.9 Responsibility for compliance.

(a) Any person (an entity of any typecovered under 1 U.S.C. 1, including butnot limited to the following: A rail-road; a manager, supervisor, official, orother employee or agent of a railroad;any owner, manufacturer, lessor, orlessee of railroad equipment, track, orfacilities; any independent contractorproviding goods or services to a rail-road; and any employee of such owner,manufacturer, lessor, lessee, or inde-pendent contractor) who violates anyrequirement of this part or causes theviolation of any such requirement issubject to a civil penalty of at least$500 and not more than $11,000 per vio-lation, except that: Penalties may beassessed against individuals only for


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willful violations; where a grossly neg-ligent violation or a pattern of re-peated violations has created an immi-nent hazard of death or injury, or hascaused death or injury, a penalty notto exceed $22,000 per violation may beassessed; and the standard of liabilityfor a railroad will vary depending uponthe requirement involved. See, e.g.,§ 219.105, which must be construed toqualify the responsibility of a railroadfor the unauthorized conduct of an em-ployee that violates § 219.101 or § 219.102(while imposing a duty of due diligenceto prevent such conduct). Each day aviolation continues constitutes a sepa-rate offense. See Appendix A to thispart for a statement of agency civilpenalty policy.

(b)(1) In the case of joint operations,primary responsibility for compliancewith this part with respect to deter-mination of events qualifying forbreath or body fluid testing under Sub-parts C and D of this part rests withthe host railroad, and all affected em-ployees must be responsive to directionfrom the host railroad consistent withthis part. However, nothing in thisparagraph (b)(1) restricts the ability ofthe railroads to provide for an appro-priate assignment of responsibility forcompliance with this part as amongthose railroads through a joint oper-ating agreement or other binding con-tract. FRA reserves the right to bringan enforcement action for noncompli-ance with applicable portions of thispart against the host railroad, the em-ploying railroad, or both.

(2) Where an employee of one railroadis required to participate in breath orbody fluid testing under Subpart C or Dof this part and is subsequently subjectto adverse action alleged to have arisenout of the required test (or alleged re-fusal thereof), necessary witnesses anddocuments available to the other rail-road must be made available to the em-ployee on a reasonable basis.

(c) Any independent contractor orother entity that performs coveredservice for a railroad has the same re-sponsibilities as a railroad under thispart, with respect to its employees whoperform covered service. The entity’sresponsibility for compliance with thispart may be fulfilled either directly bythat entity or by the railroad’s treat-

ing the entity’s employees who performcovered service as if they were its ownemployees for purposes of this part.The responsibility for compliance mustbe clearly spelled out in the contractbetween the railroad and the other en-tity or in another document. In the ab-sence of such a clear delineation of re-sponsibility, FRA will hold the railroadand the other entity jointly and sever-ally liable for compliance.

§ 219.11 General conditions for chem-ical tests.

(a) Any employee who performs cov-ered service for a railroad is deemed tohave consented to testing as requiredin subparts B, C, D, and G of this part;and consent is implied by performanceof such service.

(b)(1) Each such employee must par-ticipate in such testing, as requiredunder the conditions set forth in thispart by a representative of the rail-road.

(2) In any case where an employeehas sustained a personal injury and issubject to alcohol or drug testingunder this part, necessary medicaltreatment must be accorded priorityover provision of the breath or bodyfluid specimen(s).

(3) Failure to remain available fol-lowing an accident or casualty as re-quired by company rules (i.e., being ab-sent without leave) is considered a re-fusal to participate in testing, withoutregard to any subsequent provision ofspecimens.

(c) A covered employee who is re-quired to be tested under subpart C orD of this part and who is taken to amedical facility for observation ortreatment after an accident or incidentis deemed to have consented to the re-lease to FRA of the following:

(1) The remaining portion of anybody fluid specimen taken by the treat-ing facility within 12 hours of the acci-dent or incident that is not requiredfor medical purposes, together withany normal medical facility record(s)pertaining to the taking of such speci-men;

(2) The results of any laboratorytests for alcohol or any drug conductedby or for the treating facility on suchspecimen;


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(3) The identity, dosage, and time ofadministration of any drugs adminis-tered by the treating facility prior tothe time specimens were taken by thetreating facility or prior to the timespecimens were taken in compliancewith this part; and

(4) The results of any breath tests foralcohol conducted by or for the treat-ing facility.

(d) An employee required to partici-pate in body fluid testing under sub-part C of this part (post-accident toxi-cological testing) or testing subject tosubpart H of this part shall, if re-quested by the representative of therailroad or the medical facility (includ-ing, under subpart H of this part, anon-medical contract collector), evi-dence consent to taking of specimens,their release for toxicological analysisunder pertinent provisions of this part,and release of the test results to therailroad’s Medical Review Officer bypromptly executing a consent form, ifrequired by the medical facility. Theemployee is not required to executeany document or clause waiving rightsthat the employee would otherwisehave against the employer, and anysuch waiver is void. The employee maynot be required to waive liability withrespect to negligence on the part ofany person participating in the collec-tion, handling or analysis of the speci-men or to indemnify any person for thenegligence of others. Any consent pro-vided consistent with this section maybe construed to extend only to thoseactions specified in this section.

(e) Nothing in this part may be con-strued to authorize the use of physicalcoercion or any other deprivation ofliberty in order to compel breath orbody fluid testing.

(f) Any railroad employee who per-forms service for a railroad is deemedto have consented to removal of bodyfluid and/or tissue specimens necessaryfor toxicological analysis from the re-mains of such employee, if such em-ployee dies within 12 hours of an acci-dent or incident described in subpart Cof this part as a result of such event.This consent is specifically required ofemployees not in covered service, aswell as employees in covered service.

(g) Each supervisor responsible forcovered employees (except a working

supervisor within the definition of co-worker under this part) must betrained in the signs and symptoms ofalcohol and drug influence, intoxica-tion and misuse consistent with a pro-gram of instruction to be made avail-able for inspection upon demand byFRA. Such a program shall, at a min-imum, provide information concerningthe acute behavioral and apparentphysiological effects of alcohol and themajor drug groups on the controlledsubstances list. The program must alsoprovide training on the qualifying cri-teria for post-accident testing con-tained in subpart C of this part, andthe role of the supervisor in post-acci-dent collections described in subpart Cand Appendix C of this part. The dura-tion of such training may not be lessthan 3 hours.

(h) Nothing in this subpart restrictsany discretion available to the railroadto request or require that an employeecooperate in additional body fluid test-ing. However, no such testing may beperformed on urine or blood specimensprovided under this part. For purposesof this paragraph (h), all urine from avoid constitutes a single specimen.

§ 219.13 Preemptive effect.(a) Under section 20106 of title 49,

United States Code, issuance of theregulations in this part preempts anyState law, rule, regulation, order orstandard covering the same subjectmatter, except a provision directed at alocal hazard that is consistent withthis part and that does not impose anundue burden on interstate commerce.

(b) FRA does not intend by issuanceof the regulations in this part to pre-empt provisions of State criminal lawthat impose sanctions for reckless con-duct that leads to actual loss of life, in-jury or damage to property, whethersuch provisions apply specifically torailroad employees or generally to thepublic at large.

§ 219.15 [Reserved]

§ 219.17 Construction.Nothing in this part—(a) Restricts the power of FRA to

conduct investigations under sections20107, 20108, 20111, and 20112 of title 49,United States Code; or


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(b) Creates a private right of actionon the part of any person for enforce-ment of the provisions of this part orfor damages resulting from noncompli-ance with this part.

§ 219.19 [Reserved]

§ 219.21 Information collection.

(a) The information collection re-quirements of this part have been re-viewed by the Office of Managementand Budget pursuant to the PaperworkReduction Act of 1980 (44 U.S.C. 3501 etseq.) and have been assigned OMB con-trol number 2130–0526.

(b) The information collection re-quirements are found in the followingsections: 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.

§ 219.23 Railroad policies.

(a) Whenever a breath or body fluidtest is required of an employee underthis part, the railroad must provideclear and unequivocal written notice tothe employee that the test is being re-quired under FRA regulations. Use ofthe mandated DOT form for drug or al-cohol testing satisfies the require-ments of this paragraph (a).

(b) Whenever a breath or body fluidtest is required of an employee underthis part, the railroad must provideclear, unequivocal written notice of thebasis or bases upon which the test isrequired (e.g., reasonable suspicion,violation of a specified operating/safetyrule enumerated in subpart D of thispart, random selection, follow-up, etc.).Completion of the DOT alcohol or drugtesting form indicating the basis of thetest (prior to providing a copy to theemployee) satisfies the requirement ofthis paragraph (b). Use of the DOTform for non-Federal tests is prohib-ited.

(c) Use of approved forms for manda-tory post-accident toxicological test-ing under subpart C of this part pro-vides the notifications required underthis section with respect to such tests.Use of those forms for any other test isprohibited.

(d) Each railroad must provide edu-cational materials that explain the re-quirements of this part, and the rail-road’s policies and procedures with re-spect to meeting those requirements.

(1) The railroad must ensure that acopy of these materials is distributedto each covered employee prior to thestart of alcohol testing under the rail-road’s alcohol misuse prevention pro-gram and to each person subsequentlyhired for or transferred to a covered po-sition.

(2) Each railroad must provide writ-ten notice to representatives of em-ployee organizations of the availabilityof this information.

(e) Required content. The materials tobe made available to employees mustinclude detailed discussion of at leastthe following:

(1) The identity of the person des-ignated by the railroad to answer em-ployee questions about the materials.

(2) The classes or crafts of employeeswho are subject to the provisions ofthis part.

(3) Sufficient information about thesafety-sensitive functions performed bythose employees to make clear that theperiod of the work day the covered em-ployee is required to be in compliancewith this part is that period when theemployee is on duty and is required toperform or is available to perform cov-ered service.

(4) Specific information concerningemployee conduct that is prohibitedunder subpart B of this part.

(5) In the case of a railroad utilizingthe accident/incident and rule viola-tion reasonable cause testing authorityprovided by this part, prior notice(which may be combined with the no-tice required by §§ 219.601(d)(1) and219.607(d)(1)), to covered employees ofthe circumstances under which theywill be subject to testing.

(6) The circumstances under which acovered employee will be tested underthis part.

(7) The procedures that will be usedto test for the presence of alcohol andcontrolled substances, protect the em-ployee and the integrity of the testingprocesses, safeguard the validity of thetest results, and ensure that those re-sults are attributed to the correct em-ployee.


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(8) The requirement that a coveredemployee submit to alcohol and drugtests administered in accordance withthis part.

(9) An explanation of what con-stitutes a refusal to submit to an alco-hol or drug test and the attendant con-sequences.

(10) The consequences for coveredemployees found to have violated Sub-part B of this part, including the re-quirement that the employee be re-moved immediately from covered serv-ice, and the procedures under § 219.104.

(11) The consequences for coveredemployees found to have an alcoholconcentration of .02 or greater but lessthan .04.

(12) Information concerning the ef-fects of alcohol misuse on an individ-ual’s health, work, and personal life;signs and symptoms of an alcohol prob-lem (the employee’s or a coworker’s);and available methods of evaluatingand resolving problems associated withthe misuse of alcohol, including utili-zation of the procedures set forth insubpart E of this part and the names,addresses, and telephone numbers ofsubstance abuse professionals andcounseling and treatment programs.

(f) Optional provisions. The materialssupplied to employees may also includeinformation on additional railroadpolicies with respect to the use or pos-session of alcohol and drugs, includingany consequences for an employeefound to have a specific alcohol con-centration, that are based on the rail-road’s authority independent of thispart. Any such additional policies orconsequences must be clearly and obvi-ously described as being based on inde-pendent authority.


§ 219.101 Alcohol and drug use prohib-ited.

(a) Prohibitions. Except as provided in§ 219.103—

(1) No employee may use or possessalcohol or any controlled substancewhile assigned by a railroad to performcovered service.

(2) No employee may report for cov-ered service, or go or remain on duty incovered service while—

(i) Under the influence of or impairedby alcohol;

(ii) Having .04 or more alcohol con-centration in the breath or blood; or

(iii) Under the influence of or im-paired by any controlled substance.

(3) No employee may use alcohol forwhichever is the lesser of the followingperiods:

(i) Within four hours of reporting forcovered service; or

(ii) After receiving notice to reportfor covered service.

(4) No employee tested under the pro-visions of this part whose test resultindicates an alcohol concentration of.02 or greater but less than .04 may per-form or continue to perform coveredservice functions for a railroad, normay a railroad permit the employee toperform or continue to perform coveredservice, until the start of the employ-ee’s next regularly scheduled duty pe-riod, but not less than eight hours fol-lowing administration of the test.

(5) If an employee tested under theprovisions of this part has a test resultindicating an alcohol concentrationbelow 0.02, the test must be considerednegative and is not evidence of alcoholmisuse. A railroad may not use a fed-eral test result below 0.02 either as evi-dence in a company proceeding or as abasis for subsequent testing under com-pany authority. A railroad may takefurther action to compel cooperation inother breath or body fluid testing onlyif it has an independent basis for doingso.

(b) Controlled substance. ‘‘Controlledsubstance’’ is defined by § 219.5. Con-trolled substances are grouped as fol-lows: marijuana, narcotics (such asheroin and codeine), stimulants (suchas cocaine and amphetamines), depres-sants (such as barbiturates and minortranquilizers), and hallucinogens (suchas the drugs known as PCP and LSD).Controlled substances include illicitdrugs (Schedule I), drugs that are re-quired to be distributed only by a med-ical practitioner’s prescription or otherauthorization (Schedules II through IV,and some drugs on Schedule V), andcertain preparations for which dis-tribution is through documented overthe counter sales (Schedule V only).

(c) Railroad rules. Nothing in this sec-tion restricts a railroad from imposing


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an absolute prohibition on the presenceof alcohol or any drug in the bodyfluids of persons in its employ, whetherin furtherance of the purpose of thispart or for other purposes.

(d) Construction. This section may notbe construed to prohibit the presenceof an unopened container of an alco-holic beverage in a private motor vehi-cle that is not subject to use in thebusiness of the railroad; nor may it beconstrued to restrict a railroad fromprohibiting such presence under itsown rules.

§ 219.102 Prohibition on abuse of con-trolled substances.

No employee who performs coveredservice may use a controlled substanceat any time, whether on duty or offduty, except as permitted by § 219.103.

§ 219.103 Prescribed and over-the-counter drugs.

(a) This subpart does not prohibit theuse of a controlled substance (onSchedules II through V of the con-trolled substance list) prescribed or au-thorized by a medical practitioner, orpossession incident to such use, if—

(1) The treating medical practitioneror a physician designated by the rail-road has made a good faith judgment,with notice of the employee’s assignedduties and on the basis of the availablemedical history, that use of the sub-stance by the employee at the pre-scribed or authorized dosage level isconsistent with the safe performance ofthe employee’s duties;

(2) The substance is used at the dos-age prescribed or authorized; and

(3) In the event the employee is beingtreated by more than one medical prac-titioner, at least one treating medicalpractitioner has been informed of allmedications authorized or prescribedand has determined that use of themedications is consistent with the safeperformance of the employee’s duties(and the employee has observed any re-strictions imposed with respect to useof the medications in combination).

(b) This subpart does not restrict anydiscretion available to the railroad torequire that employees notify the rail-road of therapeutic drug use or obtainprior approval for such use.

§ 219.104 Responsive action.

(a) Removal from covered service. (1) Ifthe railroad determines that an em-ployee has violated § 219.101 or § 219.102,or the alcohol or controlled substancesmisuse rule of another DOT agency,the railroad must immediately removethe employee from covered service andthe procedures described in paragraphs(b) through (e) of this section apply.

(2) If an employee refuses to providebreath or a body fluid specimen orspecimens when required to by the rail-road under a mandatory provision ofthis part, the railroad must imme-diately remove the employee from cov-ered service, and the procedures de-scribed in paragraphs (b) through (e) ofthis section apply.

(3)(i) This section does not apply toactions based on breath or body fluidtests for alcohol or drugs that are con-ducted exclusively under authorityother than that provided in this part(e.g., testing under a company medicalpolicy, for-cause testing policy whollyindependent of subpart D of this part,or testing under a labor agreement).

(ii) This section and the informationrequirements listed in § 219.23 do notapply to applicants who refuse to sub-mit to a pre-employment test or whohave a pre-employment test with a re-sult indicating the misuse of alcohol orcontrolled substances.

(b) Notice. Prior to or upon with-drawing the employee from coveredservice under this section, the railroadmust provide notice to the employee ofthe reason for this action.

(c) Hearing procedures. (1) If the em-ployee denies that the test result isvalid evidence of alcohol or drug useprohibited by this subpart, the em-ployee may demand and must be pro-vided an opportunity for a promptpost-suspension hearing before a pre-siding officer other than the chargingofficial. This hearing may be consoli-dated with any disciplinary hearingarising from the same accident or inci-dent (or conduct directly related there-to), but the presiding officer mustmake separate findings as to compli-ance with §§ 219.101 and 219.102.

(2) The hearing must be convenedwithin the period specified in the appli-cable collective bargaining agreement.


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49 CFR Ch. II (10–1–01 Edition)§ 219.105

In the absence of an agreement provi-sion, the employee may demand thatthe hearing be convened within 10 cal-endar days of the suspension or, in thecase of an employee who is unavailabledue to injury, illness, or other suffi-cient cause, within 10 days of the datethe employee becomes available forhearing.

(3) A post-suspension proceeding con-forming to the requirements of an ap-plicable collective bargaining agree-ment, together with the provisions foradjustment of disputes under sec. 3 ofthe Railway Labor Act (49 U.S.C. 153),satisfies the procedural requirementsof this paragraph (c).

(4) Nothing in this part may bedeemed to abridge any additional pro-cedural rights or remedies not incon-sistent with this part that are avail-able to the employee under a collectivebargaining agreement, the RailwayLabor Act, or (with respect to employ-ment at will) at common law with re-spect to the removal or other adverseaction taken as a consequence of apositive test result in a test authorizedor required by this part.

(5) Nothing in this part restricts thediscretion of the railroad to treat anemployee’s denial of prohibited alcoholor drug use as a waiver of any privilegethe employee would otherwise enjoy tohave such prohibited alcohol or druguse treated as a non-disciplinary mat-ter or to have discipline held in abey-ance.

(d) The railroad must comply withthe return-to-service and follow-uptesting requirements, and the Sub-stance Abuse Professional conflict-of-interest prohibitions, contained in§§ 40.305, 40.307, and 40.299 of this title,respectively.

§ 219.105 Railroad’s duty to preventviolations.

(a) A railroad may not, with actualknowledge, permit an employee to goor remain on duty in covered service inviolation of the prohibitions of § 219.101or § 219.102. As used in this section, theknowledge imputed to the railroadmust be limited to that of a railroadmanagement employee (such as a su-pervisor deemed an ‘‘officer,’’ whetheror not such person is a corporate offi-cer) or a supervisory employee in the

offending employee’s chain of com-mand.

(b) A railroad must exercise due dili-gence to assure compliance with§§ 219.101 and 219.102 by each coveredemployee.

§ 219.107 Consequences of unlawful re-fusal.

(a) An employee who refuses to pro-vide breath or a body fluid specimen orspecimens when required to by the rail-road under a mandatory provision ofthis part must be deemed disqualifiedfor a period of nine (9) months.

(b) Prior to or upon withdrawing theemployee from covered service underthis section, the railroad must providenotice of the reason for this action, andthe procedures described in § 219.104(c)apply.

(c) The disqualification required bythis section applies with respect to em-ployment in covered service by anyrailroad with notice of such disquali-fication.

(d) The requirement of disqualifica-tion for nine (9) months does not limitany discretion on the part of the rail-road to impose additional sanctions forthe same or related conduct.

(e) Upon the expiration of the 9-month period described in this section,a railroad may permit the employee toreturn to covered service only underthe same conditions specified in§ 219.104(d), and the employee must besubject to follow-up tests, as providedby that section.

Subpart C—Post-AccidentToxicological Testing

§ 219.201 Events for which testing isrequired.

(a) List of events. Except as providedin paragraph (b) of this section, post-accident toxicological tests must beconducted after any event that in-volves one or more of the cir-cumstances described in paragraphs(a)(1) through (4) of this section:

(1) Major train accident. Any train ac-cident (i.e., a rail equipment accidentinvolving damage in excess of the cur-rent reporting threshold) that involvesone or more of the following:

(i) A fatality;


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(ii) A release of hazardous materiallading from railroad equipment accom-panied 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 acci-dent (i.e., a rail equipment accident de-fined as an ‘‘impact accident’’ in § 219.5)that involves damage in excess of thecurrent reporting threshold, resultingin—

(i) A reportable injury; or(ii) Damage to railroad property of

$150,000 or more.(3) Fatal train incident. Any train in-

cident that involves a fatality to anyon-duty railroad employee.

(4) Passenger train accident. Report-able injury to any person in a train ac-cident (i.e., a rail equipment accidentinvolving damage in excess of the cur-rent reporting threshold) involving apassenger train.

(b) Exceptions. No test may be re-quired in the case of a collision be-tween railroad rolling stock and amotor vehicle or other highway con-veyance at a rail/highway grade cross-ing. No test may be required in thecase of an accident/incident the causeand severity of which are wholly at-tributable to a natural cause (e.g.,flood, tornado, or other natural dis-aster) or to vandalism or trespasser(s),as determined on the basis of objectiveand documented facts by the railroadrepresentative responding to the scene.

(c) Good faith determinations. (1)(i)The railroad representative respondingto the scene of the accident/incidentmust determine whether the accident/incident falls within the requirementsof paragraph (a) of this section or iswithin the exception described in para-graph (b) of this section. It is the dutyof the railroad representative to makereasonable inquiry into the facts asnecessary to make such determina-tions. In making such inquiry, the rail-road representative must consider theneed to obtain specimens as soon aspractical in order to determine thepresence or absence of impairing sub-stances reasonably contemporaneous

with the accident/incident. The rail-road representative satisfies the re-quirement of this section if, after mak-ing reasonable inquiry, the representa-tive exercises good faith judgement inmaking the required determinations.

(ii) The railroad representative mak-ing the determinations required by thissection may not be a person directlyinvolved in the accident/incident. Thissection does not prohibit consultationbetween the responding railroad rep-resentative and higher level railroadofficials; however, the responding rail-road representative must make the fac-tual determinations required by thissection.

(iii) Upon specific request made tothe railroad by the Associate Adminis-trator for Safety, FRA (or the Asso-ciate Administrator’s delegate), therailroad must provide a report describ-ing any decision by a person other thanthe responding railroad representativewith respect to whether an accident/in-cident qualifies for testing. This reportmust be affirmed by the decisionmaker and must be provided to FRAwithin 72 hours of the request. The re-port must include the facts reported bythe responding railroad representative,the basis upon which the testing deci-sion was made, and the person makingthe decision.

(iv) Any estimates of railroad prop-erty damage made by persons not atthe scene must be based on descrip-tions of specific physical damage pro-vided by the on-scene railroad rep-resentative.

(v) In the case of an accident involv-ing passenger equipment, a host rail-road may rely upon the damage esti-mates provided by the passenger rail-road (whether present on scene or not)in making the decision whether testingis required, subject to the same re-quirement that visible physical dam-age be specifically described.

(2) A railroad must not require anemployee to provide blood or urinespecimens under the authority or pro-cedures of this subject unless the rail-road has made the determinations re-quired by this section, based upon rea-sonable inquiry and good faith judg-ment. A railroad does not act in excessof its authority under this subpart if


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49 CFR Ch. II (10–1–01 Edition)§ 219.203

its representative has made such rea-sonable inquiry and exercised suchgood faith judgment, but it is later de-termined, after investigation, that oneor more of the conditions thought tohave required testing were not, in fact,present. However, this section does notexcuse the railroad for any error aris-ing from a mistake of law (e.g., appli-cation of testing criteria other thanthose contained in this part).

(3) A railroad is not in violation ofthis subpart if its representative hasmade such reasonable inquiry and exer-cised such good faith judgment butnevertheless errs in determining thatpost-accident testing is not required.

(4) An accident/incident with respectto which the railroad has made reason-able inquiry and exercised good faithjudgment in determining the facts nec-essary to apply the criteria containedin paragraph (a) of this section isdeemed a qualifying event for purposesof specimen analysis, reporting, andother purposes.

(5) In the event specimens are col-lected following an event determinedby FRA not to be a qualifying eventwithin the meaning of this section,FRA directs its designated laboratoryto destroy any specimen material sub-mitted and to refrain from disclosingto any person the results of any anal-ysis conducted.

§ 219.203 Responsibilities of railroadsand employees.

(a) Employees tested. (1)(i) Followingeach accident and incident described in§ 219.201, the railroad (or railroads)must take all practicable steps to as-sure that all covered employees of therailroad directly involved in the acci-dent or incident provide blood andurine specimens for toxicological test-ing by FRA. Such employees must co-operate in the provision of specimensas described in this part and AppendixC to this part.

(ii) If the conditions for mandatorytoxicological testing exist, the railroadmay also require employees to providebreath for testing in accordance withthe procedures set forth in part 40 ofthis title and in this part, if such test-ing does not interfere with timely col-lection of required specimens.

(2) Such employees must specificallyinclude each and every operating em-ployee assigned as a crew member ofany train involved in the accident orincident. In any case where an oper-ator, dispatcher, signal maintainer orother covered employee is directly andcontemporaneously involved in the cir-cumstances of the accident/incident,those employees must also be requiredto provide specimens.

(3) An employee must be excludedfrom testing under the following cir-cumstances: In any case of an accident/incident for which testing is mandatedonly under § 219.201(a)(2) (an ‘‘impactaccident’’), § 219.201(a)(3) (‘‘fatal trainincident’’), or § 219.201(a)(4) (a ‘‘pas-senger train accident with injury’’) ifthe railroad representative can imme-diately determine, on the basis of spe-cific information, that the employeehad no role in the cause(s) or severityof the accident/incident. The railroadrepresentative must consider any suchinformation immediately available atthe time the qualifying event deter-mination is made under § 219.201.

(4) The following provisions governaccidents/incidents involving non-cov-ered employees:

(i) Surviving non-covered employeesare not subject to testing under thissubpart.

(ii) Testing of the remains of non-covered employees who are fatally in-jured in train accidents and incidentsis required.

(b) Timely specimen collection. (1) Therailroad must make every reasonableeffort to assure that specimens are pro-vided as soon as possible after the acci-dent or incident.

(2) This paragraph (b) must not beconstrued to inhibit the employees re-quired to be tested from performing, inthe immediate aftermath of the acci-dent or incident, any duties that maybe necessary for the preservation of lifeor property. However, where practical,the railroad must utilize other employ-ees to perform such duties.

(3) In the case of a passenger trainwhich is in proper condition to con-tinue to the next station or its destina-tion after an accident or incident, therailroad must consider the safety and


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convenience of passengers in deter-mining whether the crew is imme-diately available for testing. A reliefcrew must be called to relieve the traincrew as soon as possible.

(4) Covered employees who may besubject to testing under this subpartmust be retained in duty status for theperiod necessary to make the deter-minations required by § 219.201 and thissection and (as appropriate) to com-plete the specimen collection proce-dure. An employee may not be recalledfor testing under this subpart if thatemployee has been released from dutyunder the normal procedures of therailroad, except that an employee maybe immediately recalled for testing if—

(i) The employee could not be re-tained in duty status because the em-ployee went off duty under normal car-rier procedures prior to being con-tacted by a railroad supervisor and in-structed to remain on duty pendingcompletion of the required determina-tions (e.g., in the case of a dispatcheror signal maintainer remote from thescene of an accident who was unawareof the occurrence at the time the em-ployee went off duty);

(ii) The railroad’s preliminary inves-tigation (contemporaneous with the de-termination required by § 219.201) indi-cates a clear probability that the em-ployee played a major role in the causeor severity of the accident/incident;and

(iii) The accident/incident actuallyoccurred during the employee’s dutytour. An employee who has been trans-ported to receive medical care is notreleased from duty for purposes of thissection. Nothing in this section pro-hibits the subsequent testing of an em-ployee who has failed to remain avail-able for testing as required (i.e., who isabsent without leave); but subsequenttesting does not excuse such refusal bythe employee timely to provide the re-quired specimens.

(c) Place of specimen collection. (1) Em-ployees must be transported to an inde-pendent medical facility where thespecimens must be obtained. The rail-road must pre-designate for such test-ing one or more such facilities in rea-sonable proximity to any locationwhere the railroad conducts oper-ations. Designation must be made on

the basis of the willingness of the facil-ity to conduct specimen collection andthe ability of the facility to completespecimen collection promptly, profes-sionally, and in accordance with perti-nent requirements of this part. In allcases blood may be drawn only by aqualified medical professional or by aqualified technician subject to the su-pervision of a qualified medical profes-sional.

(2) In the case of an injured em-ployee, the railroad must request thetreating medical facility to obtain thespecimens.

(d) Obtaining cooperation of facility. (1)In seeking the cooperation of a medicalfacility in obtaining a specimen underthis subpart, the railroad shall, as nec-essary, make specific reference to therequirements of this subpart.

(2) If an injured employee is uncon-scious or otherwise unable to evidenceconsent to the procedure and the treat-ing medical facility declines to obtainblood specimens after having been ac-quainted with the requirements of thissubpart, the railroad must imme-diately notify the duty officer at theNational Response Center (NRC) at(800) 424–8801 or (800) 424–8802, statingthe employee’s name, the medical fa-cility, its location, the name of the ap-propriate decisional authority at themedical facility, and the telephonenumber at which that person can bereached. FRA will then take appro-priate measures to assist in obtainingthe required specimen.

(e) Discretion of physician. Nothing inthis subpart may be construed to limitthe discretion of a physician to deter-mine whether drawing a blood speci-men is consistent with the health of aninjured employee or an employee af-flicted by any other condition thatmay preclude drawing the specifiedquantity of blood.

§ 219.205 Specimen collection and han-dling.

(a) General. Urine and blood speci-mens must be obtained, marked, pre-served, handled, and made available toFRA consistent with the requirementsof this subpart, and the technical speci-fications set forth in Appendix C tothis part.


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(b) Information requirements. In orderto process specimens, analyze the sig-nificance of laboratory findings, andnotify the railroads and employees oftest results, it is necessary to obtainbasic information concerning the acci-dent/incident and any treatment ad-ministered after the accident/incident.Accordingly, the railroad representa-tive must complete the information re-quired by Form FRA 6180.73 (revised)for shipping with the specimens. Eachemployee subject to testing must co-operate in completion of the requiredinformation on Form FRA F 6180.74 (re-vised) for inclusion in the shipping kitand processing of the specimens. Therailroad representative must requestan appropriate representative of themedical facility to complete the re-maining portion of the information oneach Form 6180.74. One Form 6180.73must be forwarded in the shipping kitwith each group of specimens. OneForm 6180.74 must be forwarded in theshipping kit for each employee whoprovides specimens. Forms 6180.73 and6180.74 may be ordered from the labora-tory specified in Appendix B to thispart; the forms are also provided torailroads free of charge in the shippingkit. (See paragraph (c) of this section.)

(c) Shipping kit. (1) FRA and the lab-oratory designated in Appendix B tothis part make available for purchase alimited number of standard shippingkits for the purpose of routine handlingof toxicological specimens under thissubpart. Whenever possible, specimensmust be placed in the shipping kit pre-pared for shipment according to the in-structions provided in the kit and Ap-pendix C to this part.

(2) Kits may be ordered directly fromthe laboratory designated in AppendixB to this part.

(3) FRA maintains a limited numberof kits at its field offices. A Class IIIrailroad may utilize kits in FRA’s pos-session, rather than maintaining suchkits on its property.

(d) Shipment. Specimens must beshipped as soon as possible by pre-paidair express or air freight (or othermeans adequate to ensure deliverywithin twenty-four (24) hours fromtime of shipment) to the laboratorydesignated in Appendix B to this part.Where express courier pickup is avail-

able, the railroad must request themedical facility to transfer the sealedtoxicology kit directly to the expresscourier for transportation. If courierpickup is not available at the medicalfacility where the specimens are col-lected or for any other reason prompttransfer by the medical facility cannotbe assured, the railroad must promptlytransport the sealed shipping kit hold-ing the specimens to the most expedi-tious point of shipment via air express,air freight or equivalent means. Therailroad must maintain and documentsecure chain of custody of the kit fromrelease by the medical facility to deliv-ery for transportation, as described inAppendix C to this part.

§ 219.206 FRA access to breath test re-sults.

Documentation of breath test resultsmust be made available to FRA con-sistent with the requirements of thissubpart, and the technical specifica-tions set forth in Appendix C to thispart.

§ 219.207 Fatality.(a) In the case of an employee fatal-

ity in an accident or incident describedin § 219.201, body fluid and/or tissuespecimens must be obtained from theremains of the employee for toxi-cological testing. To ensure that speci-mens are timely collected, the railroadmust immediately notify the appro-priate local authority (such as a cor-oner or medical examiner) of the fatal-ity and the requirements of this sub-part, making available the shipping kitand requesting the local authority toassist in obtaining the necessary bodyfluid or tissue specimens. The railroadmust also seek the assistance of thecustodian of the remains, if a personother than the local authority.

(b) If the local authority or custodianof the remains declines to cooperate inobtaining the necessary specimens, therailroad must immediately notify theduty officer at the National ResponseCenter (NRC) at (800) 424–8801 or (800)424–8802 by providing the following in-formation:

(1) Date and location of the accidentor incident;

(2) Railroad;(3) Name of the deceased;


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(4) Name and telephone number ofcustodian of the remains; and

(5) Name and telephone number oflocal authority contacted.

(c) A coroner, medical examiner, pa-thologist, Aviation Medical Examiner,or other qualified professional is au-thorized to remove the required bodyfluid and/or tissue specimens from theremains on request of the railroad orFRA pursuant to this part; and, in soacting, such person is the delegate ofthe FRA Administrator under sections20107 and 20108 of title 49, United StatesCode (but not the agent of the Sec-retary for purposes of the Federal TortClaims Act (chapter 171 of title 28,United States Code). Such qualifiedprofessional may rely upon the rep-resentations of the railroad or FRArepresentative with respect to the oc-currence of the event requiring thattoxicological tests be conducted andthe coverage of the deceased employeeunder this part.

(d) Appendix C to this part specifiesbody fluid and tissue specimens re-quired for toxicological analysis in thecase of a fatality.

§ 219.209 Reports of tests and refusals.(a)(1) A railroad that has experienced

one or more events for which speci-mens were obtained must provideprompt telephonic notification summa-rizing such events. Notification mustimmediately be provided to the dutyofficer at the National Response Center(NRC) at (800) 424–8802 and to the Officeof Safety, FRA, at (202) 493–6313.

(2) Each telephonic report must con-tain:

(i) Name of railroad;(ii) Name, title and telephone num-

ber of person making the report;(iii) Time, date and location of the

accident/incident;(iv) Brief summary of the cir-

cumstances of the accident/incident,including basis for testing; and

(v) Number, names and occupationsof employees tested.

(b) If the railroad is unable, as a re-sult of non-cooperation of an employeeor for any other reason, to obtain aspecimen and cause it to be provided toFRA as required by this subpart, therailroad must make a concise narrativereport of the reason for such failure

and, if appropriate, any action taken inresponse to the cause of such failure.This report must be appended to the re-port of the accident/incident requiredto be submitted under Part 225 of thischapter.

(c) If a test required by this section isnot administered within four hours fol-lowing the accident or incident, therailroad must prepare and maintain onfile a record stating the reasons thetest was not promptly administered.Records must be submitted to FRAupon request of the FRA Associate Ad-ministrator for Safety.

§ 219.211 Analysis and follow-up.

(a) The laboratory designated in Ap-pendix B to this part undertakesprompt analysis of specimens providedunder this subpart, consistent with theneed to develop all relevant informa-tion and produce a complete report.Specimens are analyzed for alcohol andcontrolled substances specified by FRAunder protocols specified by FRA, sum-marized in Appendix C to this part,which have been submitted to Healthand Human Services for acceptance.Specimens may be analyzed for otherimpairing substances specified by FRAas necessary to the particular accidentinvestigation.

(b) Results of post-accident toxi-cological testing under this subpart arereported to the railroad’s Medical Re-view Officer and the employee. TheMRO and the railroad must treat thetest results and any information con-cerning medical use or administrationof drugs provided under this subpart inthe same confidential manner as if sub-ject to subpart H of this part, exceptwhere publicly disclosed by FRA or theNational Transportation Safety Board.

(c) With respect to a surviving em-ployee, a test reported as positive foralcohol or a controlled substance bythe designated laboratory must be re-viewed by the railroad’s Medical Re-view Officer with respect to any claimof use or administration of medications(consistent with § 219.103) that could ac-count for the laboratory findings. TheMedical Review Officer must promptlyreport the results of each review to theAssociate Administrator for Safety,


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49 CFR Ch. II (10–1–01 Edition)§ 219.211

FRA, Washington, DC 20590. Such re-port must be in writing and must ref-erence the employing railroad, acci-dent/incident date, and location, andthe envelope must be marked ‘‘ADMIN-ISTRATIVELY CONFIDENTIAL: AT-TENTION ALCOHOL/DRUG PROGRAMMANAGER.’’ The report must statewhether the MRO reported the test re-sult to the employing railroad as posi-tive or negative and the basis of anydetermination that analytes detectedby the laboratory derived from author-ized use (including a statement of thecompound prescribed, dosage/fre-quency, and any restrictions imposedby the authorized medical practi-tioner). Unless specifically requestedby FRA in writing, the Medical ReviewOfficer may not disclose to FRA theunderlying physical condition forwhich any medication was authorizedor administered. The FRA is not boundby the railroad Medical Review Offi-cer’s determination, but that deter-mination will be considered by FRA inrelation to the accident/incident inves-tigation and with respect to any en-forcement action under consideration.

(d) To the extent permitted by law,FRA treats test results indicating med-ical use of controlled substances con-sistent with § 219.103 (and other infor-mation concerning medically author-ized drug use or administration pro-vided incident to such testing) as ad-ministratively confidential and with-holds public disclosure, except where itis necessary to consider this informa-tion in an accident investigation in re-lation to determination of probablecause. (However, as further provided inthis section, FRA may provide resultsof testing under this subpart and sup-porting documentation to the NationalTransportation Safety Board.)

(e) An employee may respond in writ-ing to the results of the test prior tothe preparation of any final investiga-tion report concerning the accident orincident. An employee wishing to re-spond may do so by letter addressed tothe Alcohol/Drug Program Manager,Office of Safety, FRA, 400 SeventhStreet, S.W., Washington, DC 20590within 45 days of receipt of the test re-sults. Any such submission must referto the accident date, railroad and loca-tion, must state the position occupied

by the employee on the date of the ac-cident/incident, and must identify anyinformation contained therein that theemployee requests be withheld frompublic disclosure on grounds of per-sonal privacy (but the decision whetherto honor such request will be made bythe FRA on the basis of controllinglaw).

(f)(1) The toxicology report may con-tain a statement of pharmacologicalsignificance to assist FRA and otherparties in understanding the data re-ported. No such statement may be con-strued as a finding of probable cause inthe accident or incident.

(2) The toxicology report is a part ofthe report of the accident/incident andtherefore subject to the limitation of 49U.S.C. 20903 (prohibiting use of the re-port for any purpose in a civil actionfor damages resulting from a mattermentioned in the report).

(g)(1) It is in the public interest toensure that any railroad disciplinaryactions that may result from accidentsand incidents for which testing is re-quired under this subpart are disposedof on the basis of the most completeand reliable information available sothat responsive action will be appro-priate. Therefore, during the intervalbetween an accident or incident andthe date that the railroad receives no-tification of the results of the toxi-cological analysis, any provision of col-lective bargaining agreements estab-lishing maximum periods for chargingemployees with rule violations, or forholding an investigation, may not bedeemed to run as to any offense involv-ing the accident or incident (i.e., suchperiods must be tolled).

(2) This provision may not be con-strued to excuse the railroad from anyobligation to timely charge an em-ployee (or provide other actual notice)where the railroad obtains sufficientinformation relating to alcohol or druguse, impairment or possession or otherrule violations prior to the receipt totoxicological analysis.

(3) This provision does not authorizeholding any employee out of servicepending receipt of toxicological anal-ysis; nor does it restrict a railroadfrom taking such action in an appro-priate case.


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(h) Except as provided in § 219.201(with respect to non-qualifying events),each specimen (including each splitspecimen) provided under this subpartis retained for not less than threemonths following the date of the acci-dent or incident (two years from thedate of the accident or incident in thecase of a specimen testing positive foralcohol or a controlled substance).Post-mortem specimens may be madeavailable to the National Transpor-tation Safety Board (on request).

(i) An employee (donor) may, within60 days of the date of the toxicology re-port, request that his or her split speci-men be tested by the designated lab-oratory or by another laboratory cer-tified by Health and Human Servicesunder that Department’s Guidelines forFederal Workplace Drug Testing Pro-grams that has available an appro-priate, validated assay for the fluid andcompound declared positive. Sincesome analytes may deteriorate duringstorage, detected levels of the com-pound shall, as technically appropriate,be reported and considered corrobora-tive of the original test result. Any re-quest for a retest shall be in writing,specify the railroad, accident date andlocation, be signed by the employee/donor, be addressed to the AssociateAdministrator for Safety, Federal Rail-road Administration, Washington, DC20590, and be designated ‘‘ADMINIS-TRATIVELY CONFIDENTIAL: AT-TENTION ALCOHOL/DRUG PROGRAMMANAGER.’’ The expense of any em-ployee-requested split specimen test ata laboratory other than the laboratorydesignated under this subpart shall beborne by the employee.

§ 219.213 Unlawful refusals; con-sequences.

(a) Disqualification. An employee whorefuses to cooperate in providingbreath, blood or urine specimens fol-lowing an accident or incident speci-fied in this subpart must be withdrawnfrom covered service and must bedeemed disqualified for covered servicefor a period of nine (9) months in ac-cordance with the conditions specifiedin § 219.107.

(b) Procedures. Prior to or upon with-drawing the employee from coveredservice under this section, the railroad

must provide notice of the reason forthis action and an opportunity forhearing before a presiding officer otherthan the charging official. The em-ployee is entitled to the proceduralprotection set out in § 219.104(d).

(c) Subject of hearing. The hearing re-quired by this section must determinewhether the employee refused to sub-mit to testing, having been requestedto submit, under authority of this sub-part, by a representative of the rail-road. In determining whether a dis-qualification is required, the hearingofficial shall, as appropriate, also con-sider the following:

(1) Whether the railroad made a goodfaith determination, based on reason-able inquiry, that the accident or inci-dent was within the mandatory testingrequirements of this subpart; and

(2) In a case where a blood test wasrefused on the ground it would be in-consistent with the employee’s health,whether such refusal was made in goodfaith and based on medical advice.


§ 219.300 Mandatory reasonable sus-picion testing.

(a) Requirements. (1) A railroad mustrequire a covered employee to submitto an alcohol test when the railroadhas reasonable suspicion to believethat the employee has violated anyprohibition of subpart B of this partconcerning use of alcohol. The rail-road’s determination that reasonablesuspicion exists to require the coveredemployee to undergo an alcohol testmust be based on specific, contempora-neous, articulable observations con-cerning the appearance, behavior,speech or body odors of the employee.

(2) A railroad must require a coveredemployee to submit to a drug testwhen the railroad has reasonable sus-picion to believe that the employee hasviolated the prohibitions of subpart Bof this part concerning use of con-trolled substances. The railroad’s de-termination that reasonable suspicionexists to require the covered employeeto undergo a drug test must be basedon specific, contemporaneous,articulable observations concerningthe appearance, behavior, speech or


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body odors of the employee. Such ob-servations may include indications ofthe chronic and withdrawal effects ofdrugs.

(b)(1) With respect to an alcohol test,the required observations must bemade by a supervisor trained in accord-ance with § 219.11(g). The supervisorwho makes the determination that rea-sonable suspicion exists may not con-duct testing on that employee.

(2) With respect to a drug test, therequired observations must be made bytwo supervisors, at least one of whomis trained in accordance with § 219.11(g).

(c) Nothing in this section may beconstrued to require the conduct of al-cohol testing or drug testing when theemployee is apparently in need of im-mediate medical attention.

(d)(1) If a test required by this sec-tion is not administered within twohours following the determinationunder this section, the railroad mustprepare and maintain on file a recordstating the reasons the test was notproperly administered. If a test re-quired by this section is not adminis-tered within eight hours of the deter-mination under this section, the rail-road must cease attempts to admin-ister an alcohol test and must state inthe record the reasons for not admin-istering the test. Records must be sub-mitted to FRA upon request of theFRA Administrator.

(2) [Reserved]

§ 219.301 Testing for reasonable cause.(a) Authorization. A railroad may,

under the conditions specified in thissubpart, require any covered employee,as a condition of employment in cov-ered service, to cooperate in breath orbody fluid testing, or both, to deter-mine compliance with §§ 219.101 and219.102 or a railroad rule implementingthe requirements of §§ 219.101 and219.102. This authority is limited totesting after observations or eventsthat occur during duty hours (includ-ing any period of overtime or emer-gency service). The provisions of thissubpart apply only when, and to the ex-tent that, the test in question is con-ducted in reliance upon the authorityconferred by this section. Section 219.23prescribes the notice to an employeethat is required when an employee is

required to provide a breath or bodyfluid specimen under this part. A rail-road may not require an employee tobe tested under the authority of thissubpart unless reasonable cause, as de-fined in this section, exists with re-spect to that employee.

(b) For cause breath testing. In addi-tion to reasonable suspicion as de-scribed in § 219.300, the following cir-cumstances constitute cause for theadministration of alcohol tests underthis section:

(1) [Reserved](2) Accident/incident. The employee

has been involved in an accident or in-cident reportable under Part 225 of thischapter, and a supervisory employee ofthe railroad has a reasonable belief,based on specific, articulable facts,that the employee’s acts or omissionscontributed to the occurrence or sever-ity of the accident or incident; or

(3) Rule violation. The employee hasbeen directly involved in one of the fol-lowing operating rule violations or er-rors:

(i) Noncompliance with a train order,track warrant, timetable, signal indi-cation, special instruction or other di-rection with respect to movement of atrain that involves—

(A) Occupancy of a block or othersegment of track to which entry wasnot authorized;

(B) Failure to clear a track to permitopposing or following movement topass;

(C) Moving across a railroad crossingat grade without authorization; or

(D) Passing an absolute restrictivesignal or passing a restrictive signalwithout stopping (if required);

(ii) Failure to protect a train as re-quired by a rule consistent with § 218.37of this chapter (including failure toprotect a train that is fouling an adja-cent track, where required by the rail-road’s rules);

(iii) Operation of a train at a speedthat exceeds the maximum authorizedspeed by at least ten (10) miles per houror by fifty percent (50%) of such max-imum authorized speed, whichever isless;

(iv) Alignment of a switch in viola-tion of a railroad rule, failure to aligna switch as required for movement, op-eration of a switch under a train, or


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unauthorized running through aswitch;

(v) Failure to apply or stop short ofderail as required;

(vi) Failure to secure a hand brake orfailure to secure sufficient handbrakes, as required;

(vii) Entering a crossover before bothswitches are lined for movement; or

(viii) In the case of a person per-forming a dispatching function orblock operator function, issuance of atrain order or establishment of a routethat fails to provide proper protectionfor a train.

(c) For cause drug testing. In additionto reasonable suspicion as described in§ 219.300, each of the conditions setforth in paragraphs (b)(2) (‘‘accident/in-cident’’) and (b)(3) (‘‘rule violation’’) ofthis section as constituting cause foralcohol testing also constitutes causewith respect to drug testing.

(d) [Reserved](e) Limitation for subpart C events. The

compulsory drug testing authority con-ferred by this section does not applywith respect to any event subject topost-accident toxicological testing asrequired by § 219.201. However, use ofcompulsory breath test authority isauthorized in any case where breathtest results can be obtained in a timelymanner at the scene of the accidentand conduct of such tests does not ma-terially impede the collection of speci-mens under Subpart C of this part.

§ 219.302 Prompt specimen collection;time limitation.

(a) Testing under this subpart mayonly be conducted promptly followingthe observations or events upon whichthe testing decision is based, con-sistent with the need to protect lifeand property.

(b) No employee may be required toparticipate in alcohol or drug testingunder this section after the expirationof an eight-hour period from—

(1) The time of the observations orother events described in this section;or

(2) In the case of an accident/inci-dent, the time a responsible railroadsupervisor receives notice of the eventproviding reasonable cause for conductof the test.

(c) An employee may not be testedunder this subpart if that employee hasbeen released from duty under the nor-mal procedures of the railroad. An em-ployee who has been transported to re-ceive medical care is not released fromduty for purposes of this section. Noth-ing in this section prohibits the subse-quent testing of an employee who hasfailed to remain available for testingas required (i.e., who is absent withoutleave).

(d) As used in this subpart, a ‘‘respon-sible railroad supervisor’’ means anyresponsible line supervisor (e.g., atrainmaster or road foreman of en-gines) or superior official in authorityover the employee to be tested.

(e) In the case of a drug test, theeight-hour requirement is satisfied ifthe employee has been delivered to thecollection site (where the collector ispresent) and the request has been madeto commence collection of the drugtesting specimens within that period.

(f) [Reserved](g) Section 219.23 prescribes the no-

tice to an employee that is required toprovide breath or a body fluid specimenunder this part.

Subpart E—Identification ofTroubled Employees

§ 219.401 Requirement for policies.

(a) The purpose of this subpart is toprevent the use of alcohol and drugs inconnection with covered service.

(b) Each railroad must adopt, publishand implement—

(1) A policy designed to encourageand facilitate the identification ofthose covered employees who abuse al-cohol or drugs as a part of a treatablecondition and to ensure that such em-ployees are provided the opportunity toobtain counseling or treatment beforethose problems manifest themselves indetected violations of this part (here-after ‘‘voluntary referral policy’’); and

(2) A policy designed to foster em-ployee participation in preventing vio-lations of this subpart and encourageco-worker participation in the directenforcement of this part (hereafter‘‘co-worker report policy’’).

(c) A railroad may comply with thissubpart by adopting, publishing and


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implementing policies meeting the spe-cific requirements of §§ 219.403 and219.405 or by complying with § 219.407.

(d) If a railroad complies with thispart by adopting, publishing and imple-menting policies consistent with§§ 219.403 and 219.405, the railroad mustmake such policies, and publicationsannouncing such policies, available forinspection and copying by FRA.

(e) Nothing in this subpart may beconstrued to—

(1) Require payment of compensationfor any period an employee is out ofservice under a voluntary referral orco-worker report policy;

(2) Require a railroad to adhere to avoluntary referral or co-worker reportpolicy in a case where the referral orreport is made for the purpose, or withthe effect, of anticipating the immi-nent and probable detection of a ruleviolation by a supervising employee; or

(3) Limit the discretion of a railroadto dismiss or otherwise discipline anemployee for specific rule violations orcriminal offenses, except as specificallyprovided by this subpart.

§ 219.403 Voluntary referral policy.(a) Scope. This section prescribes

minimum standards for voluntary re-ferral policies. Nothing in this sectionrestricts a railroad from adopting, pub-lishing and implementing a voluntaryreferral policy that affords more favor-able conditions to employees troubledby alcohol or drug abuse problems, con-sistent with the railroad’s responsi-bility to prevent violations of §§ 219.101and 219.102.

(b) Required provisions. A voluntaryreferral policy must include the fol-lowing provisions:

(1) A covered employee who is af-fected by an alcohol or drug use prob-lem may maintain an employment re-lationship with the railroad if, beforethe employee is charged with conductdeemed by the railroad sufficient towarrant dismissal, the employee seeksassistance through the railroad for theemployee’s alcohol or drug use problemor is referred for such assistance by an-other employee or by a representativeof the employee’s collective bargainingunit. The railroad must specify wheth-er, and under what circumstances, itspolicy provides for the acceptance of

referrals from other sources, including(at the option of the railroad) super-visory employees.

(2) Except as may be provided underparagraph (c) of this section, the rail-road treats the referral and subsequenthandling, including counseling andtreatment, as confidential.

(3) The railroad will, to the extentnecessary for treatment and rehabilita-tion, grant the employee a leave of ab-sence from the railroad for the periodnecessary to complete primary treat-ment and establish control over theemployee’s alcohol or drug problem.The policy must allow a leave of ab-sence of not less than 45 days, if nec-essary for the purpose of meeting ini-tial treatment needs.

(4) Except as may be provided underparagraph (c)(2) of this section, the em-ployee will be returned to service onthe recommendation of the substanceabuse professional. Approval to returnto service may not be unreasonablywithheld.

(5) With respect to a certified loco-motive engineer or a candidate for cer-tification, the railroad must meet therequirements of § 240.119(e) of this chap-ter.

(c) Optional provisions. A voluntaryreferral policy may include any of thefollowing provisions, at the option ofthe railroad:

(1) The policy may provide that therule of confidentiality is waived if—

(i) The employee at any time refusesto cooperate in a recommended courseof counseling or treatment; and/or

(ii) The employee is later deter-mined, after investigation, to havebeen involved in an alcohol or drug-re-lated disciplinary offense growing outof subsequent conduct.

(2) The policy may require successfulcompletion of a return-to-service med-ical examination as a further conditionon reinstatement in covered service.

(3) The policy may provide that itdoes not apply to an employee who haspreviously been assisted by the rail-road under a policy or program sub-stantially consistent with this sectionor who has previously elected to waiveinvestigation under § 219.405 (co-workerreport policy).


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(4) The policy may provide that, inorder to invoke its benefits, the em-ployee must report to the contact des-ignated by the railroad either:

(i) During non-duty hours (i.e., at atime when the employee is off duty); or

(ii) While unimpaired and otherwisein compliance with the railroad’s alco-hol and drug rules consistent with thissubpart.

§ 219.405 Co-worker report policy.(a) Scope. This section prescribes

minimum standards for co-worker re-port policies. Nothing in this sectionrestricts a railroad from adopting, pub-lishing and implementing a policy thataffords more favorable conditions toemployees troubled by alcohol or drugabuse problems, consistent with therailroad’s responsibility to prevent vio-lations of §§ 219.101 and 219.102.

(b) Employment relationship. A co-worker report policy must provide thata covered employee may maintain anemployment relationship with the rail-road following an alleged first offenseunder this part or the railroad’s alco-hol and drug rules, subject to the con-ditions and procedures contained inthis section.

(c) General conditions and procedures.(1) The alleged violation must come tothe attention of the railroad as a resultof a report by a co-worker that the em-ployee was apparently unsafe to workwith or was, or appeared to be, in viola-tion of this part or the railroad’s alco-hol and drug rules.

(2) If the railroad representative de-termines that the employee is in viola-tion, the railroad may immediately re-move the employee from service in ac-cordance with its existing policies andprocedures.

(3) The employee must elect to waiveinvestigation on the rule charge andmust contact the substance abuse pro-fessional within a reasonable periodspecified by the policy.

(4) The substance abuse professionalmust schedule necessary interviewswith the employee and complete anevaluation within 10 calendar days ofthe date on which the employee con-tacts the professional with a requestfor evaluation under the policy, unlessit becomes necessary to refer the em-ployee for further evaluation. In each

case, all necessary evaluations must becompleted within 20 days of the date onwhich the employee contacts the pro-fessional.

(d) When treatment is required. If thesubstance abuse professional deter-mines that the employee is affected bypsychological or chemical dependenceon alcohol or a drug or by anotheridentifiable and treatable mental orphysical disorder involving the abuseof alcohol or drugs as a primary mani-festation, the following conditions andprocedures apply:

(1) The railroad must, to the extentnecessary for treatment and rehabilita-tion, grant the employee a leave of ab-sence from the railroad for the periodnecessary to complete primary treat-ment and establish control over theemployee’s alcohol or drug problem.The policy must allow a leave of ab-sence of not less than 45 days, if nec-essary for the purpose of meeting ini-tial treatment needs.

(2) The employee must agree to un-dertake and successfully complete acourse of treatment deemed acceptableby the substance abuse professional.

(3) The railroad must promptly re-turn the employee to service, on rec-ommendation of the substance abuseprofessional, when the employee hasestablished control over the substanceabuse problem. Return to service mayalso be conditioned on successful com-pletion of a return-to-service medicalexamination. Approval to return toservice may not be unreasonably with-held.

(4) Following return to service, theemployee, as a further condition onwithholding of discipline, may, as nec-essary, be required to participate in areasonable program of follow-up treat-ment for a period not to exceed 60months from the date the employeewas originally withdrawn from service.

(e) When treatment is not required. Ifthe substance abuse professional deter-mines that the employee is not affectedby an identifiable and treatable mentalor physical disorder—

(1) The railroad must return the em-ployee to service within 5 days aftercompletion of the evaluation.

(2) During or following the out-of-service period, the railroad may re-quire the employee to participate in a


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program of education and training con-cerning the effects of alcohol and drugson occupational or transportation safe-ty.

(f) Follow-up tests. A railroad mayconduct return-to-service and/or fol-low-up tests (as described in § 219.104) ofan employee who waives investigationand is determined to be ready to returnto service under this section.

§ 219.407 Alternate policies.

(a) In lieu of a policy under § 219.403(voluntary referral) or § 219.405 (co-worker report), or both, a railroad mayadopt, publish and implement, with re-spect to a particular class or craft ofcovered employees, an alternate policyor policies having as their purpose theprevention of alcohol or drug use inrailroad operations, if such policy orpolicies have the written concurrenceof the recognized representatives ofsuch employees.

(b) The concurrence of recognizedemployee representatives in an alter-nate policy may be evidenced by a col-lective bargaining agreement or anyother document describing the class orcraft of employees to which the alter-nate policy applies. The agreement orother document must make express ref-erence to this part and to the intentionof the railroad and employee represent-atives that the alternate policy appliesin lieu of the policy required by§ 219.403, ≤§ 219.405, or both.

(c) The railroad must file the agree-ment or other document described inparagraph (b) of this section with theAssociate Administrator for Safety,FRA. If the alternate policy is amend-ed or revoked, the railroad must file anotice of such amendment or revoca-tion at least 30 days prior to the effec-tive date of such action.

(d) This section does not excuse arailroad from adopting, publishing andimplementing the policies required by§§ 219.403 and 219.405 with respect to anygroup of covered employees not withinthe coverage of an appropriate alter-nate policy.

Subpart F—Pre-Employment Tests§ 219.501 Pre-employment drug test-

ing.(a) Prior to the first time a covered

employee performs covered service fora railroad, the employee must undergotesting for drugs. No railroad mayallow a covered employee to performcovered service, unless the employeehas been administered a test for drugswith a result that did not indicate themisuse of controlled substances. Thisrequirement applies to final applicantsfor employment and to employeesseeking to transfer for the first timefrom non-covered service to duties in-volving covered service.

(b) As used in subpart H of this partwith respect to a test required underthis subpart, the term covered em-ployee includes an applicant for pre-employment testing only. In the caseof an applicant who declines to be test-ed and withdraws the application foremployment, no record may be main-tained of the declination.

§ 219.502 Pre-employment alcohol test-ing.

(a) A railroad may, but is not re-quired to, conduct pre-employment al-cohol testing under this part. If a rail-road chooses to conduct pre-employ-ment alcohol testing, the railroad mustcomply with the following require-ments:

(1) It must conduct a pre-employ-ment alcohol test before the first per-formance of safety-sensitive functionsby every covered employee (whether anew employee or someone who hastransferred to a position involving theperformance of safety-sensitive func-tions).

(2) It must treat all safety-sensitiveemployees performing safety-sensitivefunctions the same for the purpose ofpre-employment alcohol testing (i.e., itmust not test some covered employeesand not others).

(3) It must conduct the pre-employ-ment tests after making a contingentoffer of employment or transfer, sub-ject to the employee passing the pre-employment alcohol test.


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(4) It must conduct all pre-employ-ment alcohol tests using the alcoholtesting procedures of part 40 of thistitle.

(5) It must not allow a covered em-ployee to begin performing safety-sen-sitive functions unless the result of theemployee’s test indicates an alcoholconcentration of less than 0.04.

(b) As used in subpart H of this part,with respect to a test authorized underthis subpart, the term covered em-ployee includes an applicant for pre-employment testing only. In the caseof an applicant who declines to be test-ed and withdraws the application foremployment, no record may be main-tained of the declination.

§ 219.503 Notification; records.The railroad must provide for med-

ical review of drug test results as pro-vided in subpart H of this part. Therailroad must notify the applicant ofthe results of the drug and alcoholtests in the same manner as providedfor employees in subpart H of this part.Records must be maintained confiden-tially and be retained in the same man-ner as required under subpart J of thispart for employee test records, exceptthat such records need not reflect theidentity of an applicant whose applica-tion for employment in covered servicewas denied.

§ 219.505 Refusals.An applicant who has refused to sub-

mit to pre-employment testing underthis section may not be employed incovered service based upon the applica-tion and examination with respect towhich such refusal was made. This sec-tion does not create any right on thepart of the applicant to have a subse-quent application considered; nor doesit restrict the discretion of the railroadto entertain a subsequent applicationfor employment from the same person.

Subpart G—Random Alcohol andDrug Testing Programs

§ 219.601 Railroad random drug test-ing programs.

(a) Submission. Each railroad mustsubmit for FRA approval a randomtesting program meeting the require-ments of this subpart. A railroad com-

mencing operations must submit sucha program not later than 30 days priorto such commencement. The programmust be submitted to the Associate Ad-ministrator for Safety, FRA, for reviewand approval by the FRA Adminis-trator. If, after approval, a railroad de-sires to amend the random testing pro-gram implemented under this subpart,the railroad must file with FRA a no-tice of such amendment at least 30days prior to the intended effectivedate of such action. A railroad alreadysubject to this subpart that becomessubject to this subpart with respect toone or more additional employees mustamend its program not later than 60days after these employees becomesubject to this subpart and file withFRA a notice of such amendment atleast 30 days prior to the intended ef-fective date of such action. A programresponsive to the requirements of thissection or any amendment to the pro-gram may not be implemented prior toapproval.

(b) Form of programs. Random testingprograms submitted by or on behalf ofeach railroad under this subpart mustmeet the following criteria, and therailroad and its managers, supervisors,officials and other employees andagents must conform to such criteriain implementing the program:

(1) Selection of covered employees fortesting must be made by a method em-ploying objective, neutral criteriawhich ensure that every covered em-ployee has a substantially equal statis-tical chance of being selected within aspecified time frame. The method maynot permit subjective factors to play arole in selection, i.e., no employee maybe selected as the result of the exerciseof discretion by the railroad. The selec-tion method must be capable ofverification with respect to the ran-domness of the selection process, andany records necessary to documentrandom selection must be retained fornot less than 24 months from the dateupon which the particular specimenswere collected.

(2)(i) The program must select fortesting a sufficient number of employ-ees so that, during the first 12months—


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(A) The random testing program isspread reasonably through the 12-month period.

(B) [Reserved](ii) During the subsequent 12-month

period, the program must select fortesting a sufficient number of employ-ees so that the number of tests con-ducted will equal at least 50 percent ofthe number of covered employees.Annualized percentage rates must bedetermined by reference to the totalnumber of covered employees employedby the railroad at the beginning of theparticular twelve-month period or byan alternate method specified in theplan approved by the Associate Admin-istrator for Safety, FRA. If the rail-road conducts random testing througha consortium, the annual rate may becalculated for each individual em-ployer or for the total number of cov-ered employees subject to random test-ing by the consortium.

(3) Railroad random testing programsmust ensure to the maximum extentpracticable that each employee per-ceives the possibility that a randomtest may be required on any day theemployee reports for work.

(4) Notice of an employee’s selectionmay not be provided until the dutytour in which testing is to be con-ducted, and then only so far in advanceas is reasonably necessary to ensurethe employee’s presence at the timeand place set for testing.

(5) The program must include testingprocedures and safeguards, and proce-dures for action based on positive testresults, consistent with this part.

(6) An employee must be subject totesting only while on duty. Only em-ployees who perform covered servicefor the railroad are subject to testingunder this part. In the case of employ-ees who during some duty tours per-form covered service and during othersdo not, the railroad program mustspecify the extent to which, and thecircumstances under which they are tobe subject to testing. To the extentpractical within the limitations of thispart and in the context of the rail-road’s operations, the railroad programmust provide that employees are sub-ject to the possibility of random test-

ing on any day they actually performcovered service.

(7) Each time an employee is notifiedfor random drug testing the employeewill be informed that selection wasmade on a random basis.

(c) Approval. The Associate Adminis-trator for Safety, FRA, will notify therailroad in writing whether the pro-gram is approved as consistent withthe criteria set forth in this part. If theAssociate Administrator for Safety de-termines that the program does notconform to those criteria, the Asso-ciate Administrator for Safety will in-form the railroad of any matters pre-venting approval of the program, withspecific explanation as to necessary re-visions. The railroad must resubmit itsprogram with the required revisionswithin 30 days of such notice. Failureto resubmit the program with the nec-essary revisions will be considered afailure to implement a program underthis subpart.

(d) Implementation. (1) No later than45 days prior to commencement of ran-dom testing, the railroad must publishto each of its covered employees, indi-vidually, a written notice that he orshe will be subject to random drugtesting under this part. Such noticemust state the date for commencementof the program, must state that the se-lection of employees for testing will beon a strictly random basis, must de-scribe the consequences of a deter-mination that the employee has vio-lated § 219.102 or any applicable railroadrule, and must inform the employee ofthe employee’s rights under subpart Eof this part. A copy of the notice mustbe provided to each new covered em-ployee on or before the employee’s ini-tial date of service. Since knowledge ofFederal law is presumed, nothing inthis paragraph (d)(1) creates a defenseto a violation of § 219.102.

(2) A railroad commencing operationsmust submit a random testing program60 days after doing so. The railroadmust implement its approved randomtesting program not later than the ex-piration of 60 days from approval bythe Administrator.


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§ 219.602 FRA Administrator’s deter-mination of random drug testingrate.

(a) Except as provided in paragraphs(b) through (d) of this section, the min-imum annual percentage rate for ran-dom drug testing must be 50 percent ofcovered employees.

(b) The FRA Administrator’s decisionto increase or decrease the minimumannual percentage rate for randomdrug testing is based on the reportedpositive rate for the entire industry.All information used for this deter-mination is drawn from the drug MISreports required by this part. In orderto ensure reliability of the data, theAdministrator considers the qualityand completeness of the reported data,may obtain additional information orreports from railroads, and may makeappropriate modifications in calcu-lating the industry positive rate. Eachyear, the Administrator will publish inthe FEDERAL REGISTER the minimumannual percentage rate for randomdrug testing of covered employees. Thenew minimum annual percentage ratefor random drug testing will be appli-cable starting January 1 of the cal-endar year following publication.

(c) When the minimum annual per-centage rate for random drug testing is50 percent, the Administrator maylower this rate to 25 percent of all cov-ered employees if the Administratordetermines that the data receivedunder the reporting requirements of§ 219.803 for two consecutive calendaryears indicate that the reported posi-tive rate is less than 1.0 percent.

(d) When the minimum annual per-centage rate for random drug testing is25 percent, and the data received underthe reporting requirements of § 219.803for any calendar year indicate that thereported positive rate is equal to orgreater than 1.0 percent, the Adminis-trator will increase the minimum an-nual percentage rate for random drugtesting to 50 percent of all covered em-ployees.

(e) Selection of covered employeesfor testing must be made by a methodemploying objective, neutral criteriawhich ensures that every covered em-ployee has a substantially equal statis-tical chance of being selected within aspecified time frame. The method may

not permit subjective factors to play arole in selection, i.e., no employee maybe selected as a result of the exercise ofdiscretion by the railroad. The selec-tion method must be capable ofverification with respect to the ran-domness of the selection process.

(f) The railroad must randomly selecta sufficient number of covered employ-ees for testing during each calendaryear to equal an annual rate not lessthan the minimum annual percentagerate for random drug testing deter-mined by the Administrator. If therailroad conducts random drug testingthrough a consortium, the number ofemployees to be tested may be cal-culated for each individual railroad ormay be based on the total number ofcovered employees covered by the con-sortium who are subject to randomdrug testing at the same minimum an-nual percentage rate under this part orany DOT agency drug testing rule.

(g) Each railroad must ensure thatrandom drug tests conducted underthis part are unannounced and that thedates for administering random testsare spread reasonably throughout thecalendar year.

(h) If a given covered employee issubject to random drug testing underthe drug testing rules of more than oneDOT agency for the same railroad, theemployee must be subject to randomdrug testing at the percentage rate es-tablished for the calendar year by theDOT agency regulating more than 50percent of the employee’s function.

(i) If a railroad is required to conductrandom drug testing under the drugtesting rules of more than one DOTagency, the railroad may—

(1) Establish separate pools for ran-dom selection, with each pool con-taining the covered employees who aresubject to testing at the same requiredrate; or

(2) Randomly select such employeesfor testing at the highest percentagerate established for the calendar yearby any DOT agency to which the rail-road is subject.

§ 219.603 Participation in drug testing.A railroad shall, under the conditions

specified in this subpart and subpart Hof this part, require a covered em-ployee selected through the random


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testing program to cooperate in urinetesting to determine compliance with§ 219.102, and the employee must pro-vide the required specimen and com-plete the required paperwork and cer-tifications. Compliance by the em-ployee may be excused only in the caseof a documented medical or familyemergency.

§ 219.605 Positive drug test results;procedures.

(a) [Reserved](b) Procedures for administrative

handling by the railroad in the event aspecimen provided under this subpartis reported as positive by the MRO areset forth in § 219.104. The responsive ac-tion required in § 219.104 is not stayedpending the result of a retest or splitspecimen test.

§ 219.607 Railroad random alcoholtesting programs.

(a) Each railroad must submit forFRA approval a random alcohol testingprogram meeting the requirements ofthis subpart. A railroad commencingoperations must submit a random alco-hol testing program not later than 30days prior to such commencement. Theprogram must be submitted to the As-sociate Administrator for Safety, FRA,for review and approval. If, after ap-proval, a railroad desires to amend therandom alcohol testing program imple-mented under this subpart, the railroadmust file with FRA a notice of suchamendment at least 30 days prior tothe intended effective date of such ac-tion. A program responsive to the re-quirements of this section or anyamendment to the program may not beimplemented prior to approval.

(b) Form of programs. Random alcoholtesting programs submitted by or onbehalf of each railroad under this sub-part must meet the following criteria,and the railroad and its managers, su-pervisors, officials and other employeesand agents must conform to such cri-teria in implementing the program:

(1) Selection of covered employees fortesting must be made by a method em-ploying objective, neutral criteriawhich ensures that every covered em-ployee has a substantially equal statis-tical chance of being selected within aspecified time frame. The method may

not permit subjective factors to play arole in selection, i.e., no employee maybe selected as the result of the exerciseof discretion by the railroad. The selec-tion method must be capable ofverification with respect to the ran-domness of the selection process, andany records necessary to documentrandom selection must be retained fornot less than 24 months from the dateupon which the particular specimenswere collected.

(2) The program must include testingprocedures and safeguards, and, con-sistent with this part, procedures foraction based on tests where the em-ployee is found to have violated§ 219.101.

(3) The program must ensure thatrandom alcohol tests conducted underthis part are unannounced and that thedates for administering random testsare spread reasonably throughout thecalendar year.

(4) The program must ensure to themaximum extent practicable that eachcovered employee perceives the possi-bility that a random alcohol test maybe required at any time the employeereports for work and at any time dur-ing the duty tour (except any periodwhen the employee is expressly re-lieved of any responsibility for per-formance of covered service).

(5) An employee may be subject totesting only while on duty. Only em-ployees who perform covered servicefor the railroad may be subject to test-ing under this part. In the case of em-ployees who during some duty toursperform covered service and duringothers do not, the railroad programmay specify the extent to which, andthe circumstances under which theyare subject to testing. To the extentpractical within the limitations of thispart and in the context of the rail-road’s operations, the railroad programmust provide that employees are sub-ject to the possibility of random test-ing on any day they actually performcovered service.

(6) Testing must be conductedpromptly, as provided in § 219.701(b)(1).

(7) Each time an employee is notifiedfor random alcohol testing the em-ployee must be informed that selectionwas made on a random basis.


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(8) Each railroad must ensure thateach covered employee who is notifiedof selection for random alcohol testingproceeds to the test site immediately;provided, however, that if the employeeis performing a safety-sensitive func-tion at the time of the notification, therailroad must instead ensure that theemployee ceases to perform the safety-sensitive function and proceeds to thetesting site as soon as possible.

(c) Implementation. (1) No later than45 days prior to commencement of ran-dom alcohol testing, the railroad mustpublish to each of its covered employ-ees, individually, a written notice thatthe employee will be subject to randomalcohol testing under this part. Suchnotice must state the date for com-mencement of the program, must statethat the selection of employees fortesting will be on a strictly randombasis, must describe the consequencesof a determination that the employeehas violated § 219.101 or any applicablerailroad rule, and must inform the em-ployee of the employee’s rights undersubpart E of this part. A copy of thenotice must be provided to each newcovered employee on or before the em-ployee’s initial date of service. Sinceknowledge of Federal law is presumed,nothing in this paragraph (c)(1) createsa defense to a violation of § 219.101. Thisnotice may be combined with the no-tice or policy statement required by§ 219.23.

(2) A railroad commencing operationsmust submit a random testing program60 days after doing so. The railroadmust implement its approved randomtesting program not later than the ex-piration of 60 days from approval bythe Administrator.

§ 219.608 FRA Administrator’s deter-mination of random alcohol testingrate.

(a) Except as provided in paragraphs(b) through (d) of this section, the min-imum annual percentage rate for ran-dom alcohol testing must be 25 percentof covered employees.

(b) The Administrator’s decision toincrease or decrease the minimum an-nual percentage rate for random alco-hol testing is based on the violationrate for the entire industry. All infor-mation used for the determination is

drawn from the alcohol MIS reports re-quired by this part. In order to ensurereliability of the data, the Adminis-trator considers the quality and com-pleteness of the reported data, may ob-tain additional information or reportsfrom employers, and may make appro-priate modifications in calculating theindustry violation rate. Each year, theAdministrator will publish in the FED-ERAL REGISTER the minimum annualpercentage rate for random alcoholtesting of covered employees. The newminimum annual percentage rate forrandom alcohol testing will be applica-ble starting January 1 of the calendaryear following publication.

(c)(1) When the minimum annual per-centage rate for random alcohol test-ing is 25 percent or more, the Adminis-trator may lower this rate to 10 per-cent of all covered employees if the Ad-ministrator determines that the datareceived under the reporting require-ments of § 219.801 for two consecutivecalendar years indicate that the viola-tion rate is less than 0.5 percent.

(2) When the minimum annual per-centage rate for random alcohol test-ing is 50 percent, the Administratormay lower this rate to 25 percent of allcovered employees if the Adminis-trator determines that the data re-ceived under the reporting require-ments of § 219.801 for two consecutivecalendar years indicate that the viola-tion rate is less than 1.0 percent butequal to or greater than 0.5 percent.

(d)(1) When the minimum annual per-centage rate for random alcohol test-ing is 10 percent, and the data receivedunder the reporting requirements of§ 219.801 for that calendar year indicatethat the violation rate is equal to orgreater than 0.5 percent, but less than1.0 percent, the Administrator will in-crease the minimum annual percentagerate for random alcohol testing to 25percent of all covered employees.

(2) When the minimum annual per-centage rate for random alcohol test-ing is 25 percent or less, and the datareceived under the reporting require-ments of § 219.801 for any calendar yearindicate that the violation rate isequal to or greater than 1.0 percent,the Administrator will increase theminimum annual percentage rate for


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49 CFR Ch. II (10–1–01 Edition)§ 219.609

random alcohol testing to 50 percent ofall covered employees.

(e) The railroad must randomly se-lect and test a sufficient number ofcovered employees for testing duringeach calendar year to equal an annualrate not less than the minimum annualpercentage rate for random alcoholtesting determined by the Adminis-trator. If the railroad conducts randomalcohol testing through a consortium,the number of employees to be testedmay be calculated for each individualemployer or may be based on the totalnumber of covered employees coveredby the consortium who are subject torandom testing at the same minimumannual percentage rate under this partor any DOT agency alcohol testingrule.

(f) If a railroad is required to conductrandom alcohol testing under the alco-hol testing rules of more than one DOTagency, the railroad may—

(1) Establish separate pools for ran-dom selection, with each pool con-taining the covered employees who aresubject to testing at the same requiredrate; or

(2) Randomly select such employeesfor testing at the highest percentagerate established for the calendar yearby any DOT agency to which the rail-road is subject.

§ 219.609 Participation in alcohol test-ing.

A railroad must, under the condi-tions specified in this subpart and sub-part H of this part, require a coveredemployee selected through the randomtesting program to cooperate in breathtesting to determine compliance with§ 219.101, and the employee must pro-vide the required breath and completethe required paperwork and certifi-cations. Compliance by the employeemay be excused only in the case of adocumented medical or family emer-gency.

§ 219.611 Test result indicating prohib-ited alcohol concentration; proce-dures.

Procedures for administrative han-dling by the railroad in the event anemployee’s confirmation test indicatesan alcohol concentration of .04 orgreater are set forth in § 219.104.

Subpart H—Drug and AlcoholTesting Procedures

§ 219.701 Standards for drug and alco-hol testing.

(a) Drug testing required or author-ized by subparts B, D, F, and G of thispart must be conducted in compliancewith all applicable provisions of theDepartment of Transportation Proce-dures for Transportation WorkplaceDrug and Alcohol Testing Programs(part 40 of this title).

(b) Alcohol testing required or au-thorized by subparts B, D, F, and G ofthis part must be conducted in compli-ance with all applicable provisions ofthe Department of Transportation Pro-cedures for Transportation WorkplaceDrug and Alcohol Testing Programs(part 40 of this title).

(c) Each covered employee who is no-tified of selection for testing and whois not performing covered service atthe time of notification must proceedto the testing site immediately. Therailroad must ensure that an employeewho is performing covered service atthe time of notification shall, as soonas possible without affecting safety,cease to perform covered service andproceed to the testing site.

Subpart I—Annual Report§ 219.801 Reporting alcohol misuse

prevention program results in amanagement information system.

(a) Each railroad that has 400,000 ormore total manhours shall submit toFRA by March 15 of each year a reportcovering the previous calendar year(January 1—December 31), summa-rizing the results of its alcohol misuseprevention program.

(b) A railroad that is subject to morethan one DOT agency alcohol regula-tion must identify each employee cov-ered by the regulations of more thanone DOT agency. The identificationwill be by the total number and cat-egory of covered functions. Prior toconducting any alcohol test on a cov-ered employee subject to the regula-tions of more than one DOT agency,the railroad must determine whichDOT agency regulation or rule author-izes or requires the test. The test re-sult information must be directed to


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the appropriate DOT agency or agen-cies.

(c) Each railroad must ensure the ac-curacy and timeliness of each reportsubmitted. The report must be sub-mitted on one of the two forms speci-fied by the FRA.

(d) Each report required by this sec-tion that contains information on analcohol screening test result of .02 orgreater or a violation of the alcoholmisuse provisions of subpart B of thispart must include the following ele-ments:

(1) Number of covered employees byemployee category (i.e., train service,engine service, dispatcher/operator,signal, other).

(2) Number of covered employees ineach category subject to alcohol test-ing under the alcohol misuse regula-tion of another DOT agency, identifiedby each agency.

(3)(i) Number of screening tests bytype of test (i.e., pre-employment andcovered service transfer, random, post-positive return to service, and follow-up) and employee category.

(ii) Number of confirmation tests, bytype of test and employee category.

(4) Number of confirmation alcoholtests indicating an alcohol concentra-tion equal of .02 or greater but lessthan .04, by type of test and employeecategory.

(5) Number of confirmation alcoholtests indicating an alcohol concentra-tion of .04 or greater, by type of testand employee category.

(6) Number of persons denied a posi-tion as a covered employee following apre-employment alcohol test indi-cating an alcohol concentration of .04or greater.

(7) Number of covered employeeswith a confirmation alcohol test indi-cating an alcohol concentration of .04or greater, or who have violations ofother alcohol misuse provisions, whowere returned to service in covered po-sitions (having complied with the rec-ommendations of a substance abuseprofessional as described in § 219.104(d)).

(8) For cause breath alcohol testingunder railroad authority, by reason fortest (accident/injury or rules viola-tion), the number of screening testsconducted, the number of confirmationtests conducted, the number of con-

firmation tests of .02 or greater butless than .04, and the number of con-firmation test results of .04 or greater.

(9) For cause breath alcohol testingunder FRA authority, by reason fortest (reasonable suspicion, accident/in-jury or rules violation), the number ofscreening tests conducted, the numberof confirmation tests conducted, thenumber of confirmation tests of .02 orgreater but less than .04, and the num-ber of confirmation test results of .04or greater.

(10) Number of covered employeeswho were found to have violated otherprovisions of subpart B of this part,and the action taken in response to theviolation.

(11) Number of covered employeeswho were administered alcohol anddrug tests at the same time, with botha positive drug test result and an alco-hol test result indicating an alcoholconcentration of .04 or greater.

(12) Number of covered employeeswho refused to submit to a random al-cohol test required under this part.

(13) Number of covered employeeswho refused to submit to a non-randomalcohol test required under this part.

(14) Number of supervisory personnelwho have received the required initialtraining on the specific contempora-neous physical, behavioral, and per-formance indicators of probable alco-hol use during the reporting period.

(e) Each report required by this sec-tion that contains information on nei-ther a screening test result of 0.02 orgreater nor a violation of the alcoholmisuse provisions of subpart B of thispart must include the following infor-mational elements:

(1) Number of covered employees byemployee category (i.e., train service,engine service, dispatcher/operator,signal, other).

(2) Number of covered employees ineach category subject to alcohol test-ing under the alcohol misuse regula-tion of another DOT agency, identifiedby each agency.

(3) Number of screening tests by typeof test (i.e., pre-employment and cov-ered service transfer, random, post-positive return to service, and follow-up) and employee category.


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49 CFR Ch. II (10–1–01 Edition)§ 219.803

(4) Number of covered employeeswith a confirmation alcohol test indi-cating an alcohol concentration of .04or greater, or who have violations ofother alcohol misuse provisions, whowere returned to service in covered po-sitions (having complied with the rec-ommendations of a substance abuseprofessional as described in § 219.104(d)).

(5) For cause breath alcohol testingunder railroad authority, by reason fortest (accident/injury or rules viola-tion), the number of screening testsconducted.

(6) For cause breath alcohol testingunder FRA authority, by reason fortest (reasonable suspicion, accident/in-jury or rules violation), the number ofscreening tests conducted.

(7) Number of covered employees whorefused to submit to a random alcoholtest required under this part.

(8) Number of covered employees whorefused to submit to a non-random al-cohol test required under this part.

(9) Number of supervisory personnelwho have received the required initialtraining on the specific contempora-neous physical, behavioral, and per-formance indicators of probable alco-hol use during the reporting period.

§ 219.803 Reporting drug misuse pre-vention program results in a man-agement information system.

(a) Each railroad that has 400,000 ormore total manhours shall submit toFRA an annual report covering the cal-endar year, summarizing the results ofits drug misuse prevention program.

(b) A railroad that is subject to morethan one DOT agency drug regulationmust identify each employee coveredby the regulations of more than oneDOT agency. The identification will beby the total number and category ofcovered functions. Prior to conductingany drug test on a covered employeesubject to the regulations of more thanone DOT agency, the railroad must de-termine which DOT agency regulationor rules authorizes or requires the test.The test result information must be di-rected to the appropriate DOT agencyor agencies.

(c) Each railroad must ensure the ac-curacy and timeliness of each reportsubmitted by the railroad or a consor-tium.

(d) Each railroad must submit the re-quired annual reports no later thanMarch 15 of each year. The report mustbe submitted on one of the forms speci-fied by the FRA. A railroad with nopositive test result must submit the‘‘Drug Testing Management Informa-tion System Zero Positives Data Col-lection Form.’’ All other railroadsmust submit the ‘‘Drug Testing Man-agement Information System Data Col-lection Form.’’

(e) A railroad submitting the ‘‘DrugTesting Management Information Sys-tem Data Collection Form’’ must ad-dress each of the following data ele-ments:

(1) Number of covered employees byemployee category (i.e., train service,engine service, dispatcher/operator,signal service, other).

(2) Number of covered employees ineach category subject to testing underthe anti-drug regulations of more thanone DOT agency, identified by eachagency.

(3) Number of specimens collected bytype of test (i.e., pre-employment andcovered service transfer, random, post-positive return to service, and follow-up), and employee category.

(4) Number of specimens verified neg-ative by a Medical Review Officer(MRO) by type of test, and employeecategory.

(5) Number of specimens verifiedpositive for one or more of the fivedrugs by a MRO by type of test, em-ployee category, and type of drug. If atest has been verified positive by aMRO for multiple drugs, the employershould report the result as a positivefor each type of drug.

(6) Number of applicants or transfersdenied employment or transfer to acovered service position following averified positive pre-employment drugtest.

(7) Number of employees, currentlyin or having completed rehabilitationor otherwise qualified to return toduty, who have returned to work in acovered position during the reportingperiod.

(8) For cause drug testing, the num-ber of specimens collected by reasonfor test (i.e., accident/injury, rules vio-lation, or reasonable suspicion), type ofauthority (railroad or FRA), employee


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category and type of drug, includingdrugs tested for under railroad author-ity only.

(9) For cause drug testing, the num-ber of specimens verified negative by aMRO by reason for test, type of author-ity, employee category and type ofdrug, including drugs tested for underrailroad authority only.

(10) For cause drug testing, the num-ber of specimens verified positive by aMRO by reason for test, type of author-ity, employee category and type ofdrug, including drugs tested for underrailroad authority only.

(11) For cause breath alcohol testingunder railroad authority, by reason fortest, the number of tests conducted,the number of tests with a positive re-sult (i.e., breath alcohol concentration(BAC) = or > .02), and the number of re-fusals.

(12) For cause urine alcohol testingunder railroad authority, by reason fortest, the number of tests conducted,the number of tests with a positive re-sult, and the number of refusals.

(13) For cause breath alcohol testingunder FRA authority, by reason fortest, the number of tests conducted,the number of tests with a positive re-sult, and the number of refusals.

(14) Total number of covered employ-ees observed in documented oper-ational tests and inspections related toenforcement of the railroad’s rules onalcohol and drug use.

(15) Based on the tests and inspec-tions described in paragraph (e)(14) ofthis section, the number of covered em-ployees charged with a violation of therailroad’s Rule G or similar rule or pol-icy on drugs.

(16) Based on the tests and inspec-tions described in paragraph (e)(14) ofthis section, the number of covered em-ployees charged with a violation of therailroad’s Rule G or similar rule or pol-icy on alcohol.

(17) Number of specimens verifiedpositive for more than one drug, by em-ployee category and type of drug.

(18) Number of covered employeeswho refused to submit to a randomdrug test required under FRA author-ity.

(19) Number of covered employeeswho refused to submit to a non-random

drug test required under FRA author-ity.

(20) Number of supervisory personnelwho have received the required initialtraining on the specific contempora-neous physical, behavioral, and per-formance indicators of probable druguse during the reporting period.

(f) A railroad authorized to submitthe ‘‘Drug Testing Management Infor-mation System Zero Positives DataCollection Form’’ must address each ofthe following data elements:

(1) Number of covered employees byemployee category (i.e., train service,engine service, dispatcher/operator,signal service, other).

(2) Number of covered employees ineach category subject to testing underthe anti-drug regulations of more thanone DOT agency, identified by eachagency.

(3) Number of specimens collectedand verified negative by type of test(i.e., pre-employment and covered serv-ice transfer, random, for cause due toaccident/incident, for cause due torules violation, reasonable suspicion,post-positive return to service, and fol-low-up), and employee category.

(4) For cause breath alcohol testingunder railroad authority, the numberof tests conducted by reason for test(i.e., accident/injury, rules violation, orreasonable suspicion).

(5) For cause urine alcohol testingunder railroad authority, the numberof tests conducted by reason for test.

(6) For cause breath alcohol testingunder FRA authority, the number oftests conducted by reason for test.

(7) Total number of covered employ-ees observed in documented oper-ational tests and inspections related toenforcement of the railroad’s rules onalcohol and drug use.

(8) Based on the tests and inspectionsdescribed in paragraph (f)(7) of this sec-tion, the number of covered employeescharged with a violation of the rail-road’s Rule G or similar rule or policyon drugs.

(9) Based on the tests and inspectionsdescribed in paragraph (f)(7) of this sec-tion, the number of covered employeescharged with a violation of the rail-road’s Rule G or similar rule or policyon alcohol.


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49 CFR Ch. II (10–1–01 Edition)§ 219.901

(10) Number of covered employeeswho refused to submit to a randomdrug test required under FRA author-ity.

(11) Number of covered employeeswho refused to submit to a non-randomdrug test required under FRA author-ity.

(12) Number of supervisory personnelwho have received the required initialtraining on the specific contempora-neous physical, behavioral, and per-formance indicators of probable druguse during the reporting period.

Subpart J—RecordkeepingRequirements

§ 219.901 Retention of alcohol testingrecords.

(a) General requirement. In addition tothe records required to be kept by part40 of this title, each railroad mustmaintain alcohol misuse preventionprogram records in a secure locationwith controlled access as set out inthis section.

(b) Each railroad must maintain thefollowing records for a minimum offive years:

(1) A summary record of each coveredemployee’s test results; and

(2) A copy of the annual report sum-marizing the results of its alcohol mis-use prevention program (if required tosubmit the report under § 219.801(a)).

(c) Each railroad must maintain thefollowing records for a minimum of twoyears:

(1) Records related to the collectionprocess:

(i) Collection logbooks, if used.(ii) Documents relating to the ran-

dom selection process.(iii) Documents generated in connec-

tion with decisions to administer rea-sonable suspicion alcohol tests.

(iv) Documents generated in connec-tion with decisions on post-accidenttesting.

(v) Documents verifying the exist-ence of a medical explanation of the in-ability of a covered employee to pro-vide an adequate specimen.

(2) Records related to test results:(i) The railroad’s copy of the alcohol

test form, including the results of thetest.

(ii) Documents related to the refusalof any covered employee to submit toan alcohol test required by this part.

(iii) Documents presented by a cov-ered employee to dispute the result ofan alcohol test administered under thispart.

(3) Records related to other viola-tions of this part.

(4) Records related to employeetraining:

(i) Materials on alcohol abuse aware-ness, including a copy of the railroad’spolicy on alcohol abuse.

(ii) Documentation of compliancewith the requirements of § 219.23.

(iii) Documentation of training pro-vided to supervisors for the purpose ofqualifying the supervisors to make adetermination concerning the need foralcohol testing based on reasonablesuspicion.

(iv) Certification that any trainingconducted under this part complieswith the requirements for such train-ing.

§ 219.903 Retention of drug testingrecords.

(a) General requirement. In addition tothe records required to be kept by part40 of this title, each railroad mustmaintain drug abuse prevention pro-gram records in a secure location withcontrolled access as set forth in thissection.

(b) (1) Each railroad must maintainthe following records for a minimum offive years:

(i) A summary record of each coveredemployee’s test results; and

(ii) A copy of the annual report sum-marizing the results of its drug misuseprevention program (if required to sub-mit under § 219.803(a)).

(2) Each railroad must maintain thefollowing records for a minimum of twoyears.

(c) Types of records. The followingspecific records must be maintained:

(1) Records related to the collectionprocess:

(i) Documents relating to the randomselection process.

(ii) Documents generated in connec-tion with decisions to administer rea-sonable suspicion drug tests.


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Federal Railroad Administration, DOT Pt. 219, App. A

(iii) Documents generated in connec-tion with decisions on post-accidenttesting.

(iv) Documents verifying the exist-ence of a medical explanation of the in-ability of a covered employee to pro-vide a specimen.

(2) Records related to test results:(i) The railroad’s copy of the drug

test custody and control form, includ-ing the results of the test.

(ii) Documents presented by a cov-ered employee to dispute the result ofa drug test administered under thispart.

(3) Records related to other viola-tions of this part.

(4) Records related to employeetraining:

(i) Materials on drug abuse aware-ness, including a copy of the railroad’spolicy on drug abuse.

(ii) Documentation of compliancewith the requirements of § 219.23.

(iii) Documentation of training pro-vided to supervisors for the purpose ofqualifying the supervisors to make adetermination concerning the need foralcohol testing based on reasonablesuspicion.

(iv) Certification that any trainingconducted under this part complieswith the requirements for such train-ing.

§ 219.905 Access to facilities andrecords.

(a) Release of covered employee in-formation contained in records re-quired to be maintained under §§ 219.901and 219.903 must be in accordance withpart 40 of this title and with this sec-tion. (For purposes of this section only,urine drug testing records are consid-ered equivalent to breath alcohol test-ing records.)

(b) Each railroad must permit accessto all facilities utilized in complyingwith the requirements of this part tothe Secretary of Transportation,United States Department of Transpor-tation, or any DOT agency with regu-latory authority over the railroad orany of its covered employees.

(c) Each railroad must make avail-able copies of all results for railroad al-cohol and drug testing programs con-ducted under this part and any otherinformation pertaining to the rail-road’s alcohol and drug misuse preven-tion program, when requested by theSecretary of Transportation or anyDOT agency with regulatory authorityover the railroad or covered employee.

APPENDIX A TO PART 219—SCHEDULE OFCIVIL PENALTIES

The following chart lists the schedule ofcivil penalties:

PENALTY SCHEDULE 1

Section 2 Violation Willful violation

Subpart A—General

219.3 Application:Railroad does not have required program ............................................................................. $5,000 $7,500

219.11 General conditions for chemical tests:(b)(1) Employee unlawfully refuses to participate in testing .................................................. 2,500 5,000(b)(2) Employer fails to give priority to medical treatment .................................................... 3,000 8,000(b)(3) Employee fails to remain available .............................................................................. 2,500 5,000(b)(4) Employee tampers with specimen ............................................................................... 2,500 5,000(d) Employee unlawfully required to execute a waiver of rights ........................................... 2,500 5,000(e) Railroad used or authorized the use of coercion to obtain specimens ........................... ........................ 7,500(g) Failure to meet supervisory training requirements or program of instruction not avail-

able or program not complete ............................................................................................ 2,500 5,000(h) Urine or blood specimens provided for Federal testing were used for non-authorized

testing ................................................................................................................................. 2,500 5,000219.23 Railroad policies:

(a) Failure to provide written notice of FRA test ................................................................... 1,000 4,000(b) Failure to provide written notice of basis for FRA test .................................................... 1,000 4,000(c) Use of Subpart C form for other test ................................................................................ 1,000 4,000(d) Failure to provide educational materials .......................................................................... 1,000 4,000(e) Educational materials fail to explain requirements of this part and/or include required

content ................................................................................................................................ 1,000 4,000(f) Non-Federal provisions are clearly described as independent authority .......................... 1,000 4,000


219.101 Alcohol and drug use prohibited:Employee violates prohibition(s) ............................................................................................ 10,000 ........................

219.103 Prescribed and over-the-counter drugs:


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49 CFR Ch. II (10–1–01 Edition)Pt. 219, App. A

PENALTY SCHEDULE 1—Continued


(a) Failure to train employee properly on requirements ........................................................ 2,500 5,000219.104 Responsive action:

(a) Failure to remove employee from covered service immediately ..................................... 3,000 8,000(b) Failure to provide notice for removal ............................................................................... 1,000 4,000(c) Failure to provide prompt hearing .................................................................................... 2,000 7,000(d) Employee improperly returned to service ........................................................................ 2,000 7,000

219.105 Railroad’s duty to prevent violations:(a) Employee improperly permitted to remain in covered service ......................................... 7,000 10,000(b) Failure to exercise due diligence to assure compliance with prohibition ........................ 2,500 5,000

219.107 Consequences of unlawful refusal:(a) Failure to disqualify an employee for nine months following a refusal ............................ 5,000 7,500(e) Employee unlawfully returned to service ......................................................................... 5,000 7,500

Subpart C—Post-Accident Toxicological Testing

219.201 Events for which testing is required:(a) Failure to test after qualifying event (each employee not tested is a violation) .............. 5,000 7,500(c)(1)(i) Failure to make good faith determination ................................................................. 2,500 5,000(c)(1)(ii) Failure to provide requested decision report to FRA ............................................... 1,000 3,000(c)(2) Testing performed after non-qualifying event .............................................................. 5,000 10,000

219.203 Responsibilities of railroads and employees:(a)(1)(i) and (a)(2)(i) Failure to properly test/exclude from testing ........................................ 2,500 5,000(a)(1)(ii) and (a)(2)(ii) Non-covered service employee tested ............................................... 2,500 5,000(b)(1) Delay in obtaining specimens due to failure to make every reasonable effort ........... 2,500 5,000(c) Independent medical facility not utilized ........................................................................... 2,500 5,000(d) Failure to report event or contact FRA when intervention required ................................ 1,000 3,000

219.205 Specimen collection and handling:(a) Failure to observe requirements with respect to specimen collection, marking and han-

dling .................................................................................................................................... 2,500 5,000(b) Failure to provide properly prepared forms with specimens ............................................ 2,500 5,000(d) Failure to promptly or properly forward specimens ......................................................... 2,500 5,000

219.207 Fatality:(a) Failure to test .................................................................................................................... 5,000 7,500(a)(1) Failure to ensure timely collection and shipment of required specimens ................... 2,500 5,000(b) Failure to request assistance when necessary ................................................................ 2,500 5,000

219.209 Reports of tests and refusals:(a)(1) Failure to provide telephonic report ............................................................................. 1,000 2,000(b) Failure to provide written report of refusal to test ............................................................ 1,000 2,000(c) Failure to maintain report explaining why test not conducted within 4 hours .................. 1,000 2,000

219.211 Analysis and follow-up:(c) Failure of MRO to report review of positive results to FRA ............................................. 2,500 5,000


219.300 Mandatory reasonable suspicion testing:(a)(1) Failure to test when reasonable suspicion criteria met ............................................... 5,000 7,500(a)(2) Tested when reasonable suspicion criteria not met .................................................... 5,000 7,500

219.301 Testing for reasonable cause:(a) Event did not occur during daily tour ............................................................................... 2,500 5,000(b)(2) Tested when accident/incident criteria not met ........................................................... 5,000 7,500(b)(3) Tested when operating rules violation criteria not met ................................................ 5,000 7,500

219.302 Prompt specimen collection:(a) Specimen collection not conducted promptly ................................................................... 2,500 5,000

Subpart E—Identification of Troubled Employees

219.401 Requirement for policies:(b) Failure to publish and/or implement required policy ........................................................ 2,500 5,000

219.407 Alternate policies:(c) Failure to file agreement or other document or provide timely notice or revocation ....... 2,500 5,000

Subpart F—Pre-Employment Tests

219.501 Pre-employment tests:(a) Failure to perform pre-employment drug test before first time employee performs cov-

ered service ........................................................................................................................ 2,500 5,000

Subpart G—Random Testing Programs

219.601 Railroad random drug programs:(a)(1) Failure to file a random program ................................................................................. 2,500 5,000(a)(2) Failure to file amendment to program ......................................................................... 2,500 5,000(b) Failure to meet random testing criteria ............................................................................ 2,500 5,000(b)(1)(i) Failure to use a neutral selection process ............................................................... 2,500 5,000(b)(2)(i)(B) Testing not spread throughout the year .............................................................. 2,500 5,000(b)(3) Testing not distributed throughout the day .................................................................. 2,500 5,000(b)(4) Advance notice provided to employee ......................................................................... 2,500 5,000(b)(6) Testing when employee not on duty ............................................................................ 2,500 5,000

219.601A Failure to include covered service employee in pool ................................................ 2,500 5,000


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Federal Railroad Administration, DOT Pt. 219, App. C

PENALTY SCHEDULE 1—Continued


219.602 Administrator’s determination of drug testing rate:(f) Total number of tests below minimum random drug testing rate ..................................... 2,500 5,000

219.603 Participation in drug testing:Failure to document reason for not testing selected employee ............................................ 2,500 5,000

219.607 Railroad random alcohol programs:(a)(1) Failure to file a random alcohol program ..................................................................... 2,500 5,000(a)(2) Failure to file amendment to program ......................................................................... 2,500 5,000(b) Failure to meet random testing criteria ............................................................................ 2,500 5,000(b)(1) Failure to use a neutral selection process ................................................................... 2,500 5,000(b)(5) Testing when employee not on duty ............................................................................ 2,500 5,000(b)(8) Advance notice provided to employee ......................................................................... 2,500 5,000

219.607A Failure to include covered service employee in pool ................................................ 2,500 5,000219.608 Administrator’s determination of random alcohol testing rate:

(e) Total number of tests below minimum random alcohol testing rate ................................ 2,500 5,000219.609 Participation in alcohol testing:

Failure to document reason for not testing selected employee ............................................ 2,500 5,000

Subpart H—Drug and Alcohol Testing Procedures

219.701 Standards for drug and alcohol testing:(a) Failure to comply with Part 40 procedures in Subpart B, D, F, or G testing .................. ¥5,000 ¥7,500(b) Testing not performed in a timely manner ....................................................................... 2,500 5,000

Subpart I—Annual Report

219.801 Reporting alcohol misuse prevention program results in a management informationsystem:

(a) Failure to submit MIS report on time ............................................................................... 2,500 5,000(c) Failure to submit accurate MIS report .............................................................................. 2,500 5,000(d) Failure to include required data ....................................................................................... 2,500 5,000

219.803 Reporting drug misuse prevention program results in a management informationsystem:

(c) Failure to submit accurate MIS report .............................................................................. 2,500 5,000(d) Failure to submit MIS report on report ............................................................................. 2,500 5,000(e) Failure to include required data ....................................................................................... 2,500 5,000

Subpart J—Recordkeeping Requirements

219.901 Retention of Alcohol Testing Records:(a) Failure to maintain records required to be kept by Part 40 ............................................. 2,500 5,000(b) Failure to maintain records required to be kept for five years ......................................... 2,500 5,000(c) Failure to maintain records required to be kept for two years ......................................... 2,500 5,000

219.903 Retention of Drug Testing Records:(a) Failure to maintain records required to be kept by Part 40 ............................................. 2,500 5,000(b) Failure to maintain records required to be kept for five years ......................................... 2,500 5,000(c) Failure to maintain records required to be kept for two years ......................................... 2,500 5,000

219.905 Access to facilities and records:(a) Failure to release records in this subpart in accordance with Part 40 ............................ 2,500 5,000(b) Failure to permit access to facilities ................................................................................. 2,500 5,000(c) Failure to provide access to results of railroad alcohol and drug testing programs ........ 2,500 5,000

1 A penalty may be assessed against an individual only for a willful violation. The FRA Administrator reserves the right to as-sess a penalty of up to $22,000 for any violation, including ones not listed in this penalty schedule, where circumstances warrant.See 49 CFR Part 209, appendix A.

2 The penalty schedule uses section numbers from 49 CFR Part 219; and if more than one item is listed as a type of violationof a given section, each item is also designated by a ‘‘penalty code’’ (e.g., ‘‘A’’), which is used to facilitate assessment of civilpenalties. For convenience, penalty citations will cite the CFR section and the penalty code, if any (e.g., ‘‘Sec. 219.11A’’) FRAreserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combinedCFR and penalty code citation.

APPENDIX B TO PART 219—DESIGNATION

OF LABORATORY FOR POST-ACCIDENT

TOXICOLOGICAL TESTING

The following laboratory is currently des-ignated to conduct post-accident toxi-cological analysis under Subpart C of thispart: NWT Inc., 1141 E. 3900 South, Suite A–110, Salt Lake City, UT 84124, Telephone:(801) 268–2431 (Day), (801) 483–3383 (Night/Weekend).

APPENDIX C TO PART 219—POST-ACCI-DENT TESTING SPECIMEN COLLECTION

1.0 General.This appendix prescribes procedures for

collection of specimens for mandatory post-accident testing pursuant to Subpart C ofthis part. Collection of blood and urine speci-mens is required to be conducted at an inde-pendent medical facility.

(Surviving Employees)

2.0 Surviving Employees.


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49 CFR Ch. II (10–1–01 Edition)Pt. 219, App. C

This unit provides detailed procedures forcollecting post-accident toxicological speci-mens from surviving employees involved intrain accidents and train incidents, as re-quired by Subpart C of this part. Subpart Cspecifies qualifying events and employees re-quired to be tested.

2.1 Collection Procedures; General.a. All forms and supplies necessary for col-

lection and transfer of blood and urine speci-mens for three surviving employees can befound in the FRA post-accident shipping box,which is made available to the collectionsite by the railroad representative.

b. Each shipping box contains supplies forblood/urine collections from three individ-uals, including instructions and necessaryforms. The railroad is responsible for ensur-ing that materials are fresh, complete andmeet FRA requirements.

2.1.1 Responsibility of the Railroad Rep-resentative.

a. In the event of an accident/incident forwhich testing is required under Subpart C ofthis part, the railroad representative shallfollow the designated set of instructions,and, upon arrival at the independent medicalfacility, promptly present to the collectionfacility representative a post-accident ship-ping box or boxes with all remaining sets ofinstructions. (Each box contains supplies tocollect specimens from three employees.)The railroad representative shall request thecollection facility representative to reviewthe instructions provided and, through quali-fied personnel, provide for collection of thespecimens according to the procedures setout.

b. The railroad representative shall under-take the following additional responsibil-ities—

1. Complete Form FRA 6180.73 (revised),Accident Information Required for Post-Ac-cident Toxicological Testing (49 CFR Part219), describing the testing event and identi-fying the employees whose specimens are tobe deposited in the shipping box.

2. As necessary to verify the identity of in-dividual employees, affirm the identity ofeach employee to the medical facility per-sonnel.

3. Consistent with the policy of the collec-tion facility, monitor the progress of the col-lection procedure.

Warning: Monitor but do not directly ob-serve urination or otherwise disturb the pri-vacy of urine or blood collection. Do nothandle specimen containers, bottles or tubes(empty or full). Do not become part of thecollection process.

2.1.2 Employee Responsibility.a. An employee who is identified for post-

accident toxicological testing shall cooper-ate in testing as required by the railroad andpersonnel of the independent medical facil-ity. Such cooperation will normally consist

of the following, to be performed as re-quested:

1. Provide a blood specimen, which a quali-fied medical professional or technician willdraw using a single-use sterile syringe. Theemployee should be seated for this proce-dure.

2. Provide, in the privacy of an enclosure,a urine specimen into a plastic collectioncup. Deliver the cup to the collector.

3. Do not let the blood and urine specimensthat you provided leave your sight until theyhave been properly sealed and initialed byyou.

4. Certify the statement in Step 4 of thePost-Accident Testing Blood/Urine Custodyand Control Form (49 CFR 219) (Form FRA F6180.74 (revised)).

5. If required by the medical facility, com-plete a separate consent form for taking ofthe specimens and their release to FRA foranalysis under the FRA rule.

NOTE: The employee may not be requiredto complete any form that contains anywaiver of rights the employee may have inthe employment relationship or that releasesor holds harmless the medical facility withrespect to negligence in the collection.

2.2 The Collection.Exhibit C–1 contains instructions for col-

lection of specimens for post-accident toxi-cology from surviving employees. These in-structions shall be observed for each collec-tion. Instructions are also contained in eachpost-accident shipping box and shall be pro-vided to collection facility personnel in-volved in the collection and/or packaging ofspecimens for shipment.(Post Mortem Collection)

3.0 Fatality.This unit provides procedures for col-

lecting post-accident body fluid/tissue speci-mens from the remains of employees killedin train accidents and train incidents, as re-quired by Subpart C of this part. Subpart Cspecifies qualifying events and employees re-quired to be tested.

3.1 Collection.In the event of a fatality for which testing

is required under Subpart C of this part, therailroad shall promptly make available tothe custodian of the remains a post-accidentshipping box. The railroad representativeshall request the custodian to review the in-structions contained in the shipping box and,through qualified medical personnel, to pro-vide the specimens as indicated.

(Surviving Employees and Fatalities)

4.0 Shipment.a. The railroad is responsible for arranging

overnight transportation of the sealed ship-ping box containing the specimens. Whenpossible without incurring delay, the boxshould be delivered directly from the collec-tion personnel providing the specimens to an


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overnight express service courier. If it be-comes necessary for the railroad to transportthe box from point of collection to point ofshipment, then—

1. Individual kits and the shipping boxshall be sealed by collection personnel beforethe box is turned over to the railroad rep-resentative;

2. The railroad shall limit the number ofpersons handling the shipping box to theminimum necessary to provide for transpor-tation;

3. If the shipping box cannot immediatelybe delivered to the express carrier for trans-portation, it shall be maintained in securetemporary storage; and

4. The railroad representatives handlingthe box shall document chain of custody ofthe shipping box and shall make availablesuch documentation to FRA on request.

EXHIBIT C–1—INSTRUCTIONS FOR COLLECTIONOF BLOOD AND URINE SPECIMENS: MANDA-TORY POST-ACCIDENT TOXICOLOGICAL TEST-ING

A. Purpose

These instructions are for the use of per-sonnel of collection facilities conducting col-lection of blood and urine specimens fromsurviving railroad employees following rail-road accidents and casualties that qualifyfor mandatory alcohol/drug testing. The Fed-eral Railroad Administration appreciates theparticipation of medical facilities in this im-portant public safety program.

B. Prepare for Collection

a. Railroad employees have consented toprovision of specimens for analysis by theFederal Railroad Administration as a condi-tion of employment (49 CFR 219.11). A pri-vate, controlled area should be designatedfor collection of specimens and completion ofpaperwork.

b. Only one specimen should be collected ata time, with each employee’s blood draw orurine collection having the complete atten-tion of the collector until the specific speci-men has been labeled, sealed and docu-mented.

c. Please remember two critical rules forthe collections:

d. All labeling and sealing must be done inthe sight of the donor, with the specimennever having left the donor’s presence untilthe specimen has been labeled, sealed andinitialed by the donor.

e. Continuous custody and control of bloodand urine specimens must be maintained anddocumented on the forms provided. In orderto do this, it is important for the paperworkand the specimens to stay together.

f. To the extent practical, blood collectionshould take priority over urine collection.To limit steps in the chain of custody, it is

best if a single collector handles both collec-tions from a given employee.

g. You will use a single Post-AccidentTesting Blood/Urine Custody and ControlForm (FRA Form 6108.74 (revised)), con-sisting of six Steps to complete the collec-tion for each employee. We will refer to it asthe Control Form.

C. Identify the Donor

a. The employee donor must provide photoidentification to each collector, or lackingthis, be identified by the railroad representa-tive.

b. The donor should remove all unneces-sary outer garments such as coats or jack-ets, but may retain valuables, including awallet. Donors should not be asked to dis-robe, unless necessary for a separate phys-ical examination required by the attendingphysician.

D. Draw Blood

a. Assemble the materials for collectingblood from each employee: two 10 ml grey-stoppered blood tubes and the Control Form.

b. Ask the donor to complete STEP 1 onthe Control Form.

c. With the donor seated, draw two (2) 10ml tubes of blood using standard medicalprocedures (sterile, single-use syringe intoevacuated gray-top tubes provided). CAU-TION: Do not use alcohol or an alcohol-basedswab to cleanse the venipuncture site.

d. Once both tubes are filled and the site ofvenipuncture is protected, immediately—

1. Seal and label each tube by placing anumbered blood specimen label from thelabel set on the Control Form over the top ofthe tube and securing it down the sides.

2. Ask the donor to initial each label.Please check to see that the initials matchthe employee’s name and note any discrep-ancies in the ‘‘Remarks’’ block of the Con-trol Form.

3. As collector, sign and date each bloodtube label at the place provided.

4. Skip to STEP 5 and initiate chain of cus-tody for the blood tubes by filling out thefirst line of the block to show receipt of theblood specimens from the donor.

5. Complete STEP 2 on the form.6. Return the blood tubes into the indi-

vidual kit. Keep the paperwork and speci-mens together. If another collector will becollecting the urine specimen from this em-ployee, transfer both the form and the indi-vidual kit with blood tubes to that person,showing the transfer of the blood tubes onthe second line of STEP 5 (the chain of cus-tody block).

E. Collect Urine

a. The urine collector should assemble athis/her station the materials for collecting


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urine from each employee: one plastic collec-tion cup with temperature device affixed en-closed in a heat-seal bag (with protectiveseal intact), two 90 ml urine specimen bot-tles with caps and one biohazard bag (withabsorbent) also enclosed in a heat-seal bag(with protective seal intact), and the ControlForm. Blood specimens already collectedmust remain in the collector’s custody andcontrol during this procedure.

b. After requiring the employee to washhis/her hands, the collector should escort theemployee directly to the urine collectionarea. To the extent practical, all sources ofwater in the collection area should be se-cured and a bluing agent (provided in thebox) placed in any toilet bowl, tank, or otherstanding water.

c. The employee will be provided a privateplace in which to void. Urination will not bedirectly observed. If the enclosure contains asource of running water that cannot be se-cured or any material (soap, etc.) that couldbe used to adulterate the specimen, the col-lector should monitor the provision of thespecimen from outside the enclosure. Anyunusual behavior or appearance should benoted in the remarks section of the ControlForm or on the back of that form.

d. The collector should then proceed as fol-lows:

e. Unwrap the collection cup in the em-ployee’s presence and hand it to the em-ployee (or allow the employee to unwrap it).

f. Ask the employee to void at least 60 mlinto the collection cup (at least to the linemarked).

g. Leave the private enclosure.

IF THERE IS A PROBLEM WITH URINA-TION OR Specimen QUANTITY, SEE THE‘‘TROUBLE BOX’’ AT THE BACK OF THESEINSTRUCTIONS.

h. Once the void is complete, the employeeshould exit the private enclosure and deliverthe specimen to the collector. Both the col-lector and the employee must proceed imme-diately to the labeling/sealing area, with thespecimen never leaving the sight of the em-ployee before being sealed and labeled.

i. Upon receipt of the specimen, proceed asfollows:

1. In the full view of the employee, removethe wrapper from the two urine specimenbottles. Transfer the urine from the collec-tion cup into the specimen bottles (at least30 ml in bottle A and at least 15 ml in bottleB).

2. As you pour the specimen into the speci-men bottles, please inspect for any unusualsigns indicating possible adulteration or di-lution. Carefully secure the tops. Note anyunusual signs under ‘‘Remarks’’ at STEP 3 ofthe Control Form.

3. Within 4 minutes after the void, measurethe temperature of the urine by reading the

strip on the bottle. Mark the result at STEP3 of the Control Form.IF THERE IS A PROBLEM WITH THEURINE Specimen, SEE THE ‘‘TROUBLEBOX’’ AT THE BACK OF THESE INSTRUC-TIONS.

4. Remove the urine bottle labels from theControl Form. The labels are marked ‘‘A’’and ‘‘B.’’ Place each label as marked overthe top of its corresponding bottle, and se-cure the label to the sides of the bottle.

5. Ask the donor to initial each label.Please check to see that the initials matchthe employee name and note any discrepancyin the ‘‘Remarks’’ block of STEP 3.

6. As collector, sign and date each urinelabel.

7. Skip to STEP 5 and initiate chain-of-custody by showing receipt of the urinespecimens from the donor. (If you collectedthe blood, a check under ‘‘urine’’ will suffice.If someone else collected the blood, firstmake sure transfer of the blood to you isdocumented. Then, using the next availableline, show ‘‘Provide specimens’’ under pur-pose, ‘‘Donor’’ under ‘‘released by,’’ checkunder ‘‘urine’’ and place your name, signa-ture and date in the space provided.)

8. Complete the remainder of STEP 3 onthe Control Form.

9. Have the employee complete STEP 4 onthe Control Form.

10. Place the filled urine bottles in the in-dividual employee kit. Keep the paperworkand specimens together. If another collectorwill be collecting the blood specimen fromthis employee, transfer both the form andthe kit to that person, showing the transferof the urine specimens on the next availableline of STEP 5 (the chain of custody block).

F. Seal the Individual Employee Kit

a. The blood and urine specimens have nowbeen collected for this employee. The blood/urine specimens will now be sealed into theindividual employee kit, while all paperworkwill be retained for further completion. Afterrechecking to see that each specimen isproperly labeled and initialed, close the plas-tic bag to contain any leakage in transpor-tation, and apply the kit security seal to thesmall individual kit. As collector, sign anddate the kit seal.

b. Before collecting specimens from thenext employee, complete the next line on thechain-of-custody block showing release ofthe blood and urine by yourself for the pur-pose of ‘‘Shipment’’ and receipt by the cou-rier service or railroad representative thatwill provide transportation of the box, to-gether with the date.

G. Complete Treatment Information

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


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H. Prepare the Box for Shipment

a. Sealed individual employee kits shouldbe retained in secure storage if there will bea delay in preparation of the shipping box.The shipping box shall be prepared andsealed by a collection facility representativeas follows:

1. Inspect STEP 5 of each Control Form toensure chain-of-custody is continuous andcomplete for each fluid (showing specimensreleased for shipment). Retain the medicalfacility copy of each Control Form and theAccident Information form for your records.

2. Place sealed individual employee kits inthe shipping box. Place all forms in zip-lockbag and seal securely. Place bag with formsand unused supplies in shipping box.

3. Affix the mailing label provided to theoutside of the shipping box.

I. Ship the Box

a. The railroad must arrange to have thebox shipped overnight air express or (if ex-press service is unavailable) by air freight,prepaid, to FRA’s designated laboratory.Whenever possible without incurring delay,the collector should deliver the box directlyinto the hands of the express courier or airfreight representative.

b. Where courier pickup is not imme-diately available at the collection facilitywhere the specimens are taken, the railroadis required to transport the shipping box forexpeditious shipment by air express, airfreight or equivalent means.

c. If the railroad is given custody of the boxto arrange shipment, please record the nameof the railroad official taking custody on thecopy of Form 6180.73 retained by the collec-tion site.

‘‘TROUBLE BOX’’

1. Problem: The employee claims an inabilityto urinate, either because he/she has recentlyvoided or because of anxiety concerning the col-lection.

Action: The employee may be offered mod-erate quantities of liquid to assist urination.If the employee continues to claim inabilityafter 4 hours, the urine collection should bediscontinued, but the blood specimens shouldbe forwarded and all other procedures fol-lowed. Please note in area provided for re-marks what explanation was provided by theemployee.

2. Problem: The employee cannot provide ap-proximately 60 ml. of specimen.

Action: The employee should remain at thecollection facility until as much as possibleof the required amount can be given (up to 4hours). The employee should be offered mod-erate quantities of liquids to aid urination.The first bottle, if it contains any quantityof urine, should be sealed and securely storedwith the blood tubes and Control Form pend-ing shipment. A second bottle should then be

used for the subsequent void (using a secondControl Form with the words ‘‘SECONDVOID—FIRST Specimen INSUFFICIENT’’ inthe remarks block and labels from thatform). However, if after 4 hours the donor’ssecond void is also insufficient or containsno more than the first insufficient void, dis-card the second void and send the first voidto the laboratory.

3. Problem: The urine temperature is outsidethe normal range of 32 deg.¥38 deg.C/90deg.¥100 deg.F, and a suitable medical expla-nation cannot be provided by an oral tem-perature or other means; or

4. Problem: The collector observes conductclearly and unequivocally indicating an attemptto substitute or adulterate the specimen (e.g.,substitute urine in plain view, blue dye inspecimen presented, etc.) and a collectionsite supervisor or the railroad representativeagrees that the circumstances indicate anattempt to tamper with the specimen.

Action (for either Problem No. 3 or Prob-lem No. 4): Document the problem on theControl Form.

i. If the collection site supervisor or rail-road representative concurs that the tem-perature of the specimen, or other clear andunequivocal evidence, indicates a possibleattempt to substitute or alter the specimen,another void must be taken under direct ob-servation by a collector of the same gender.

ii. If a collector of the same sex is notavailable, do NOT proceed with this step.

iii. If a collector of the same gender isavailable, proceed as follows: A new ControlForm must be initiated for the second void.The original suspect specimen should bemarked ‘‘Void’’ and the follow-up voidshould be marked ‘‘Void 2,’’ with both voidsbeing sent to the laboratory and the incidentclearly detailed on the Control Form.

EXHIBIT C–2—INSTRUCTIONS FOR COLLECTIONOF POST MORTEM SPECIMENS: EMPLOYEEKILLED IN A RAILROAD ACCIDENT/INCIDENT

To the Medical Examiner, Coroner, or Pa-thologist:

a. In compliance with Federal safety regu-lations (49 CFR Part 219), a railroad rep-resentative has requested that you obtainspecimens for toxicology from the remains ofa railroad employee who was killed in a rail-road accident or incident. The deceased con-sented to the taking of such specimens, as amatter of Federal law, by performing serviceon the railroad (49 CFR 219.11(f)).

b. Your assistance is requested in carryingout this program of testing, which is impor-tant to the protection of the public safetyand the safety of those who work on the rail-roads.

A. Materials:

The railroad will provide you a post-acci-dent shipping box that contains necessary


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supplies. If the box is not immediately avail-able, please proceed using supplies availableto you that are suitable for forensic toxi-cology.

B. Specimens requested, in order of preference:

a. Blood—20 milliliters or more. Preferredsites: intact femoral vein or artery or periph-eral vessels (up to 10 ml, as available) and in-tact heart (20 ml). Deposit blood in gray-stopper tubes individually by site and shaketo mix specimen and preservative.

NOTE: If uncontaminated blood is notavailable, bloody fluid or clots from bodycavity may be useful for qualitative pur-poses; but do not label as blood. Please indi-cate source and identity of specimen on labelof tube.

b. Urine—as much as 100 milliliters, ifavailable. Deposit into plastic bottles pro-vided.

c. Vitreous fluid—all available, depositedinto smallest available tube (e.g., 3 ml) with1% sodium fluoride, or gray-stopper tube(provided). Shake to mix specimen and pre-servative.

d. If available at autopsy, organs—50 to 100grams each of two or more of the followingin order preference, as available: liver, bile,brain, kidney, spleen, and/or lung. Specimensshould be individually deposited into zip-lock bags or other clean, single use con-tainers suitable for forensic specimens.

e. If vitreous or urine is not available,please provide—

1. Spinal fluid—all available, in 8 ml con-tainer (if available) with sodium fluoride orin gray-stopper tube; or, if spinal fluid can-not be obtained,

2. Gastric content—up to 100 milliliters, asavailable, into plastic bottle.

C. Specimen collection:

a. Sampling at time of autopsy is preferredso that percutaneous needle puncturing isnot necessary. However, if autopsy will notbe conducted or is delayed, please proceedwith sampling.

b. Blood specimens should be taken bysterile syringe and deposited directly intoevacuated tube, if possible, to avoid con-tamination of specimen or dissipation ofvolatiles (ethyl alcohol).

NOTE: If only cavity fluid is available,please open cavity to collect specimen. Notecondition of cavity.

c. Please use smallest tubes available toaccommodate available quantity of fluidspecimen (with 1% sodium fluoride).

D. Specimen identification, sealing:

a. As each specimen is collected, seal eachblood tube and each urine bottle using therespective blood tube or urine bottle usingthe identifier labels from the set providedwith the Post-Accident Testing Blood/Urine

Custody and Control Form (49 CFR part 219)(Form FRA F 6180.74 (revised)). Make surethe unique identification number on the la-bels match the pre-printed number on theControl Form. Please label other specimenswith name and specimen set identificationnumbers. You may use labels and seals fromany of the extra forms, but annotate themaccordingly.

b. Annotate each label with specimen de-scription and source (as appropriate) (e.g.,blood, femoral vein).

c. Please provide copy of any written docu-mentation regarding condition of body and/or sampling procedure that is available atthe time specimens are shipped.

E. Handling:

a. If specimens cannot be shipped imme-diately as provided below, specimens otherthan blood may be immediately frozen.Blood specimens should be refrigerated, butnot frozen.

b. All specimens and documentation shouldbe secured from unauthorized access pendingdelivery for transportation.

F. Information:

a. If the railroad has not already done so,please place the name of the subject at thetop of the Control Form (STEP 1). You arerequested to complete STEP 2 of the form,annotating it by writing the word ‘‘FATAL-ITY,’’ listing the specimens provided, pro-viding any further information under ‘‘Re-marks’’ or at the bottom of the form. If it isnecessary to transfer custody of the speci-mens from the person taking the specimensprior to preparing the box for shipment,please use the blocks provided in STEP 5 todocument transfer of custody.

b. The railroad representative will alsoprovide Accident Information Required forPost-Accident Toxicological Testing (49 CFRPart 219), Form FRA 6180.73 (revised). Bothforms should be placed in the shipping boxwhen completed; but you may retain the des-ignated medical facility copy of each formfor your records.

G. Packing the shipping box:

a. Place urine bottles and blood tubes inthe sponge liner in the individual kit, closethe biohazard bag zipper, close the kit andapply the kit custody seal to the kit. Youmay use additional kits for each tissue speci-men, being careful to identify specimen bytissue, name of deceased, and specimen setidentification number. Apply kit securityseals to individual kits and initial across allseals. Place all forms in the zip-lock bag andseal securely.

b. Place the bag in the shipping box. Donot put forms in with the specimens. Sealthe shipping box with the seal provided andinitial and date across the seal.


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c. Affix the mailing label to the outside ofthe box.

H. Shipping the box:

a. The railroad must arrange to have thebox shipped overnight air express or (if ex-press service is unavailable) by air freight,prepaid, to FRA’s designated laboratory.When possible, but without incurring delay,deliver the sealed shipping box directly tothe express courier or the air freight rep-resentative.

b. If courier pickup is not immediatelyavailable at your facility, the railroad is re-quired to transport the sealed shipping boxto the nearest point of shipment via air ex-press, air freight or equivalent means.

c. If the railroad receives the sealed shippingbox to arrange shipment, please record under‘‘Supplemental Information’’ on the ControlForm, the name of the railroad official tak-ing custody.

I. Other:

FRA requests that the person taking thespecimens annotate the Control Form under‘‘Supplemental Information’’ if additionaltoxicological analysis will be undertakenwith respect to the fatality. FRA reports areavailable to the coroner or medical examineron request.

PART 220—RAILROADCOMMUNICATIONS

Subpart A—General

Sec.220.1 Scope.220.2 Preemptive effect.220.3 Application.220.5 Definitions.220.7 Penalty.220.8 Waivers.220.9 Requirements for trains.220.11 Requirements for roadway workers.220.13 Reporting emergencies.

Subpart B—Radio and WirelessCommunication Procedures

220.21 Railroad operating rules; radio com-munications; recordkeeping.

220.23 Publication of radio information.220.25 Instruction and operational testing of

employees.220.27 Identification.220.29 Statement of letters and numbers in

radio communications.220.31 Initiating a radio transmission.220.33 Receiving a radio transmission.220.35 Ending a radio transmission.220.37 Testing radio and wireless commu-

nication equipment.220.38 Communication equipment failure.220.39 Continuous radio monitoring.

220.41 [Reserved].220.43 Radio communications consistent

with federal regulations and railroad op-erating rules.

220.45 Radio communication shall be com-plete.

220.47 Emergency radio transmissions.220.49 Radio communication used in shov-

ing, backing or pushing movements.220.51 Radio communications and signal in-

dications.220.61 Radio transmission of mandatory di-

rectives.

APPENDIX A TO PART 220—RECOMMENDEDPHONETIC ALPHABET

APPENDIX B TO PART 220—RECOMMENDED PRO-NUNCIATION OF NUMERALS

APPENDIX C TO PART 220—SCHEDULE OF CIVILPENALTIES

AUTHORITY: 49 U.S.C. 20102–20103, 20107,21301–21302, 21304, 21311; 28 U.S.C. 2461, note;and 49 CFR 1.49.

SOURCE: 63 FR 47195, Sept. 4, 1998, unlessotherwise noted.

Subpart A—General

§ 220.1 Scope.

This part prescribes minimum re-quirements governing the use of wire-less communications in connectionwith railroad operations. So long asthese minimum requirements are met,railroads may adopt additional or morestringent requirements.

§ 220.2 Preemptive effect.

Under 49 U.S.C. 20106 (formerly sec-tion 205 of the Federal Railroad SafetyAct of 1970, 45 U.S.C. 434), issuance ofthe regulations in this part preemptsany State law, rule, regulation, order,or standard covering the same subjectmatter, except a provision necessary toeliminate or reduce an essentially localsafety hazard that is not incompatiblewith this part and that does not unrea-sonably burden interstate commerce.

§ 220.3 Application.

(a) Except as provided in paragraph(b) of this section, this part applies torailroads that operate trains or otherrolling equipment on standard gagetrack which is part of the general rail-road system of transportation.

(b) This part does not apply to:(1) A railroad that operates only on

track inside an installation which is
