953 Back   Drug Control
  [Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR219]

[Page 199-239]
 
                        TITLE 49--TRANSPORTATION
 
       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF
                             TRANSPORTATION
 
PART 219--CONTROL OF ALCOHOL AND DRUG USE

                           Subpart A--General

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

                         Subpart B--Prohibitions

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

             Subpart C--Post-Accident Toxicological Testing

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

                      Subpart D--Testing for Cause

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

             Subpart E--Identification of Troubled Employees

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

                     Subpart F--Pre-Employment Tests

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

           Subpart G--Random Alcohol and Drug Testing Programs

219.601 Railroad random drug testing programs.
219.602 FRA Administrator's determination of random drug testing rate.
219.603 Participation in drug testing.

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

             Subpart H--Drug and Alcohol Testing Procedures

219.701 Standards for drug and alcohol testing.

                        Subpart I--Annual Report

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

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


                  Subpart J--Recordkeeping Requirements

219.901 Retention of alcohol testing records.
219.903 Retention of drug testing records.
219.905 Access to facilities and records.

Appendix A to Part 219--Schedule of Civil Penalties
Appendix B to Part 219--Designation of Laboratory for Post-Accident
          Toxicological Testing

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

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

    Source: 66 FR 41973, Aug. 9, 2001, unless otherwise noted.

                           Subpart A--General

Sec. 219.1  Purpose and scope.

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

Sec. 219.3  Application.

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

Sec. 219.5  Definitions.

    As used in this part--
    Class I, Class II, and Class III have the meaning assigned by
regulations of the Surface Transportation Board (49 CFR part 1201;
General Instructions 1-1).
    Controlled substance has the meaning assigned by 21 U.S.C. 802, and
includes all substances listed on Schedules I through V as they may be
revised from time to time (21 CFR Parts 1301-1316).
    Covered employee means a person who has been assigned to perform
service subject to the hours of service laws (49 U.S.C. ch. 211) during
a duty tour, whether or not the person has performed or is currently
performing such service, and any person who performs such service. (An
employee is not ``covered'' within the meaning of this part exclusively
by reason of being an employee for purposes of 49 U.S.C. 21106.)

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For the purposes of pre-employment testing only, the term ``covered
employee'' includes a person applying to perform covered service.
    Co-worker means another employee of the railroad, including a
working supervisor directly associated with a yard or train crew, such
as a conductor or yard foreman, but not including any other railroad
supervisor, special agent, or officer.
    DOT Agency means an agency (or ``operating administration'') of the
United States Department of Transportation administering regulations
requiring alcohol or controlled substance testing (14 CFR parts 61, 63,
65, 121 and 135; 49 CFR parts 199, 219, 382 and 655) in accordance with
Part 40 of this title.
    Drug means any substance (other than alcohol) that has known mind-
or function-altering effects on a human subject, specifically including
any psychoactive substance and including, but not limited to, controlled
substances.
    FRA means the Federal Railroad Administration, United States
Department of Transportation.
    FRA representative means the Associate Administrator for Safety of
FRA, the Associate Administrator's delegate (including a qualified State
inspector acting under Part 212 of this chapter), the Chief Counsel of
FRA, or the Chief Counsel's delegate.
    Hazardous material means a commodity designated as a hazardous
material by Part 172 of this title.
    Impact accident means a train accident (i.e., a rail equipment
accident involving damage in excess of the current reporting threshold
(see Sec. 225.19(e) of this chapter)) consisting of a head-on collision,
a rear-end collision, a side collision (including a collision at a
railroad crossing at grade), a switching collision, or impact with a
deliberately-placed obstruction such as a bumping post. The following
are not impact accidents:
    (1) An accident in which the derailment of equipment causes an
impact with other rail equipment;
    (2) Impact of rail equipment with obstructions such as fallen trees,
rock or snow slides, livestock, etc.; and
    (3) Raking collisions caused by derailment of rolling stock or
operation of equipment in violation of clearance limitations.
    Independent with respect to a medical facility, means not under the
ownership or control of the railroad and not operated or staffed by a
salaried officer or employee of the railroad. The fact that the railroad
pays for services rendered by a medical facility or laboratory, selects
that entity for performing tests under this part, or has a standing
contractual relationship with that entity to perform tests under this
part or perform other medical examinations or tests of railroad
employees does not, by itself, remove the facility from this definition.
    Medical facility means a hospital, clinic, physician's office, or
laboratory where toxicological specimens can be collected according to
recognized professional standards.
    Medical practitioner means a physician or dentist licensed or
otherwise authorized to practice by the state.
    NTSB means the National Transportation Safety Board.
    Passenger train means a train transporting persons (other than
employees, contractors, or persons riding equipment to observe or
monitor railroad operations) in intercity passenger service, commuter or
other short-haul service, or for excursion or recreational purposes.
    Positive rate means the number of positive results for random drug
tests conducted under this part plus the number of refusals of random
tests required by this part, divided by the total number of random drug
tests conducted under this part plus the number of refusals of random
tests required by this part.
    Possess means to have on one's person or in one's personal effects
or under one's control. However, the concept of possession as used in
this part does not include control by virtue of presence in the
employee's personal residence or other similar location off of railroad
property.
    Railroad means any form of nonhighway ground transportation that
runs on rails or electromagnetic guideways, and any person providing
such transportation, including--

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    (1) Commuter or other short-haul railroad passenger service in a
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (2) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads; but does not
include rapid transit operations in an urban area that are not connected
to the general railroad system of transportation.
    Railroad property damage or damage to railroad property refers to
damage to railroad property, including railroad on-track equipment,
signals, track, track structures (including bridges and tunnels), or
roadbed, including labor costs and all other costs for repair or
replacement in kind. Estimated cost for replacement of railroad property
must be calculated as described in the FRA Guide for Preparing Accident/
Incident Reports. (See Sec. 225.21 of this chapter.) However,
replacement of passenger equipment is calculated based on the cost of
acquiring a new unit for comparable service.
    Reportable injury means an injury reportable under Part 225 of this
chapter.
    Reporting threshold means the amount specified in Sec. 225.19(e) of
this chapter, as adjusted from time to time in accordance with Appendix
B to Part 225 of this chapter.
    Supervisory employee means an officer, special agent, or other
employee of the railroad who is not a co-worker and who is responsible
for supervising or monitoring the conduct or performance of one or more
employees.
    Train, except as context requires, means a locomotive, or more than
one locomotive coupled, with or without cars. (A locomotive is a self-
propelled unit of equipment which can be used in train service.)
    Train accident means a passenger, freight, or work train accident
described in Sec. 225.19(c) of this chapter (a ``rail equipment
accident'' involving damage in excess of the current reporting
threshold), including an accident involving a switching movement.
    Train incident means an event involving the movement of railroad on-
track equipment that results in a casualty but in which railroad
property damage does not exceed the reporting threshold.
    Violation rate means the number of covered employees (as reported
under Sec. 219.801) found during random tests given under this part to
have an alcohol concentration of .04 or greater, plus the number of
employees who refuse a random test required by this part, divided by the
total reported number of employees in the industry given random alcohol
tests under this part plus the total reported number of employees in the
industry who refuse a random test required by this part.

Sec. 219.7  Waivers.

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

Sec. 219.9  Responsibility for compliance.

    (a) Any person (an entity of any type covered under 1 U.S.C. 1,
including but not limited to the following: A railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any independent contractor providing goods or services to a
railroad; and any employee of such owner, manufacturer, lessor, lessee,
or independent contractor) who violates any requirement of this part or
causes the violation of any such requirement is subject to a civil
penalty of at least $500 and not more than $11,000 per violation, except
that: Penalties may be assessed against individuals only for

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willful violations; where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury,
or has caused death or injury, a penalty not to exceed $22,000 per
violation may be assessed; and the standard of liability for a railroad
will vary depending upon the requirement involved. See, e.g.,
Sec. 219.105, which must be construed to qualify the responsibility of a
railroad for the unauthorized conduct of an employee that violates
Sec. 219.101 or Sec. 219.102 (while imposing a duty of due diligence to
prevent such conduct). Each day a violation continues constitutes a
separate offense. See Appendix A to this part for a statement of agency
civil penalty policy.
    (b)(1) In the case of joint operations, primary responsibility for
compliance with this part with respect to determination of events
qualifying for breath or body fluid testing under Subparts C and D of
this part rests with the host railroad, and all affected employees must
be responsive to direction from the host railroad consistent with this
part. However, nothing in this paragraph (b)(1) restricts the ability of
the railroads to provide for an appropriate assignment of responsibility
for compliance with this part as among those railroads through a joint
operating agreement or other binding contract. FRA reserves the right to
bring an enforcement action for noncompliance with applicable portions
of this part against the host railroad, the employing railroad, or both.
    (2) Where an employee of one railroad is required to participate in
breath or body fluid testing under Subpart C or D of this part and is
subsequently subject to adverse action alleged to have arisen out of the
required test (or alleged refusal thereof), necessary witnesses and
documents available to the other railroad must be made available to the
employee on a reasonable basis.
    (c) Any independent contractor or other entity that performs covered
service for a railroad has the same responsibilities as a railroad under
this part, with respect to its employees who perform covered service.
The entity's responsibility for compliance with this part may be
fulfilled either directly by that entity or by the railroad's treating
the entity's employees who perform covered service as if they were its
own employees for purposes of this part. The responsibility for
compliance must be clearly spelled out in the contract between the
railroad and the other entity or in another document. In the absence of
such a clear delineation of responsibility, FRA will hold the railroad
and the other entity jointly and severally liable for compliance.

Sec. 219.11  General conditions for chemical tests.

    (a) Any employee who performs covered service for a railroad is
deemed to have consented to testing as required in subparts B, C, D, and
G of this part; and consent is implied by performance of such service.
    (b)(1) Each such employee must participate in such testing, as
required under the conditions set forth in this part by a representative
of the railroad.
    (2) In any case where an employee has sustained a personal injury
and is subject to alcohol or drug testing under this part, necessary
medical treatment must be accorded priority over provision of the breath
or body fluid specimen(s).
    (3) Failure to remain available following an accident or casualty as
required by company rules (i.e., being absent without leave) is
considered a refusal to participate in testing, without regard to any
subsequent provision of specimens.
    (c) A covered employee who is required to be tested under subpart C
or D of this part and who is taken to a medical facility for observation
or treatment after an accident or incident is deemed to have consented
to the release to FRA of the following:
    (1) The remaining portion of any body fluid specimen taken by the
treating facility within 12 hours of the accident or incident that is
not required for medical purposes, together with any normal medical
facility record(s) pertaining to the taking of such specimen;
    (2) The results of any laboratory tests for alcohol or any drug
conducted by or for the treating facility on such specimen;

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    (3) The identity, dosage, and time of administration of any drugs
administered by the treating facility prior to the time specimens were
taken by the treating facility or prior to the time specimens were taken
in compliance with this part; and
    (4) The results of any breath tests for alcohol conducted by or for
the treating facility.
    (d) An employee required to participate in body fluid testing under
subpart C of this part (post-accident toxicological testing) or testing
subject to subpart H of this part shall, if requested by the
representative of the railroad or the medical facility (including, under
subpart H of this part, a non-medical contract collector), evidence
consent to taking of specimens, their release for toxicological analysis
under pertinent provisions of this part, and release of the test results
to the railroad's Medical Review Officer by promptly executing a consent
form, if required by the medical facility. The employee is not required
to execute any document or clause waiving rights that the employee would
otherwise have against the employer, and any such waiver is void. The
employee may not be required to waive liability with respect to
negligence on the part of any person participating in the collection,
handling or analysis of the specimen or to indemnify any person for the
negligence of others. Any consent provided consistent with this section
may be construed to extend only to those actions specified in this
section.
    (e) Nothing in this part may be construed to authorize the use of
physical coercion or any other deprivation of liberty in order to compel
breath or body fluid testing.
    (f) Any railroad employee who performs service for a railroad is
deemed to have consented to removal of body fluid and/or tissue
specimens necessary for toxicological analysis from the remains of such
employee, if such employee dies within 12 hours of an accident or
incident described in subpart C of this part as a result of such event.
This consent is specifically required of employees not in covered
service, as well as employees in covered service.
    (g) Each supervisor responsible for covered employees (except a
working supervisor within the definition of co-worker under this part)
must be trained in the signs and symptoms of alcohol and drug influence,
intoxication and misuse consistent with a program of instruction to be
made available for inspection upon demand by FRA. Such a program shall,
at a minimum, provide information concerning the acute behavioral and
apparent physiological effects of alcohol and the major drug groups on
the controlled substances list. The program must also provide training
on the qualifying criteria for post-accident testing contained in
subpart C of this part, and the role of the supervisor in post-accident
collections described in subpart C and Appendix C of this part. The
duration of such training may not be less than 3 hours.
    (h) Nothing in this subpart restricts any discretion available to
the railroad to request or require that an employee cooperate in
additional body fluid testing. However, no such testing may be performed
on urine or blood specimens provided under this part. For purposes of
this paragraph (h), all urine from a void constitutes a single specimen.

Sec. 219.13  Preemptive effect.

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

Sec. 219.15  [Reserved]

Sec. 219.17  Construction.

    Nothing in this part--
    (a) Restricts the power of FRA to conduct investigations under
sections 20107, 20108, 20111, and 20112 of title 49, United States Code;
or

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    (b) Creates a private right of action on the part of any person for
enforcement of the provisions of this part or for damages resulting from
noncompliance with this part.

Sec. 219.19  [Reserved]

Sec. 219.21  Information collection.

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

Sec. 219.23  Railroad policies.

    (a) Whenever a breath or body fluid test is required of an employee
under this part, the railroad must provide clear and unequivocal written
notice to the employee that the test is being required under FRA
regulations. Use of the mandated DOT form for drug or alcohol testing
satisfies the requirements of this paragraph (a).
    (b) Whenever a breath or body fluid test is required of an employee
under this part, the railroad must provide clear, unequivocal written
notice of the basis or bases upon which the test is required (e.g.,
reasonable suspicion, violation of a specified operating/safety rule
enumerated in subpart D of this part, random selection, follow-up,
etc.). Completion of the DOT alcohol or drug testing form indicating the
basis of the test (prior to providing a copy to the employee) satisfies
the requirement of this paragraph (b). Use of the DOT form for non-
Federal tests is prohibited.
    (c) Use of approved forms for mandatory post-accident toxicological
testing under subpart C of this part provides the notifications required
under this section with respect to such tests. Use of those forms for
any other test is prohibited.
    (d) Each railroad must provide educational materials that explain
the requirements of this part, and the railroad's policies and
procedures with respect to meeting those requirements.
    (1) The railroad must ensure that a copy of these materials is
distributed to each covered employee prior to the start of alcohol
testing under the railroad's alcohol misuse prevention program and to
each person subsequently hired for or transferred to a covered position.
    (2) Each railroad must provide written notice to representatives of
employee organizations of the availability of this information.
    (e) Required content. The materials to be made available to
employees must include detailed discussion of at least the following:
    (1) The identity of the person designated by the railroad to answer
employee questions about the materials.
    (2) The classes or crafts of employees who are subject to the
provisions of this part.
    (3) Sufficient information about the safety-sensitive functions
performed by those employees to make clear that the period of the work
day the covered employee is required to be in compliance with this part
is that period when the employee is on duty and is required to perform
or is available to perform covered service.
    (4) Specific information concerning employee conduct that is
prohibited under subpart B of this part.
    (5) In the case of a railroad utilizing the accident/incident and
rule violation reasonable cause testing authority provided by this part,
prior notice (which may be combined with the notice required by
Secs. 219.601(d)(1) and 219.607(d)(1)), to covered employees of the
circumstances under which they will be subject to testing.
    (6) The circumstances under which a covered employee will be tested
under this part.
    (7) The procedures that will be used to test for the presence of
alcohol and controlled substances, protect the employee and the
integrity of the testing processes, safeguard the validity of the test
results, and ensure that those results are attributed to the correct
employee.

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    (8) The requirement that a covered employee submit to alcohol and
drug tests administered in accordance with this part.
    (9) An explanation of what constitutes a refusal to submit to an
alcohol or drug test and the attendant consequences.
    (10) The consequences for covered employees found to have violated
Subpart B of this part, including the requirement that the employee be
removed immediately from covered service, and the procedures under
Sec. 219.104.
    (11) The consequences for covered employees found to have an alcohol
concentration of .02 or greater but less than .04.
    (12) Information concerning the effects of alcohol misuse on an
individual's health, work, and personal life; signs and symptoms of an
alcohol problem (the employee's or a coworker's); and available methods
of evaluating and resolving problems associated with the misuse of
alcohol, including utilization of the procedures set forth in subpart E
of this part and the names, addresses, and telephone numbers of
substance abuse professionals and counseling and treatment programs.
    (f) Optional provisions. The materials supplied to employees may
also include information on additional railroad policies with respect to
the use or possession of alcohol and drugs, including any consequences
for an employee found to have a specific alcohol concentration, that are
based on the railroad's authority independent of this part. Any such
additional policies or consequences must be clearly and obviously
described as being based on independent authority.

                         Subpart B--Prohibitions

Sec. 219.101  Alcohol and drug use prohibited.

    (a) Prohibitions. Except as provided in Sec. 219.103--
    (1) No employee may use or possess alcohol or any controlled
substance while assigned by a railroad to perform covered service.
    (2) No employee may report for covered service, or go or remain on
duty in covered service while--
    (i) Under the influence of or impaired by alcohol;
    (ii) Having .04 or more alcohol concentration in the breath or
blood; or
    (iii) Under the influence of or impaired by any controlled
substance.
    (3) No employee may use alcohol for whichever is the lesser of the
following periods:
    (i) Within four hours of reporting for covered service; or
    (ii) After receiving notice to report for covered service.
    (4) No employee tested under the provisions of this part whose test
result indicates an alcohol concentration of .02 or greater but less
than .04 may perform or continue to perform covered service functions
for a railroad, nor may a railroad permit the employee to perform or
continue to perform covered service, until the start of the employee's
next regularly scheduled duty period, but not less than eight hours
following administration of the test.
    (5) If an employee tested under the provisions of this part has a
test result indicating an alcohol concentration below 0.02, the test
must be considered negative and is not evidence of alcohol misuse. A
railroad may not use a federal test result below 0.02 either as evidence
in a company proceeding or as a basis for subsequent testing under
company authority. A railroad may take further action to compel
cooperation in other breath or body fluid testing only if it has an
independent basis for doing so.
    (b) Controlled substance. ``Controlled substance'' is defined by
Sec. 219.5. Controlled substances are grouped as follows: marijuana,
narcotics (such as heroin and codeine), stimulants (such as cocaine and
amphetamines), depressants (such as barbiturates and minor
tranquilizers), and hallucinogens (such as the drugs known as PCP and
LSD). Controlled substances include illicit drugs (Schedule I), drugs
that are required to be distributed only by a medical practitioner's
prescription or other authorization (Schedules II through IV, and some
drugs on Schedule V), and certain preparations for which distribution is
through documented over the counter sales (Schedule V only).
    (c) Railroad rules. Nothing in this section restricts a railroad
from imposing

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an absolute prohibition on the presence of alcohol or any drug in the
body fluids of persons in its employ, whether in furtherance of the
purpose of this part or for other purposes.
    (d) Construction. This section may not be construed to prohibit the
presence of an unopened container of an alcoholic beverage in a private
motor vehicle that is not subject to use in the business of the
railroad; nor may it be construed to restrict a railroad from
prohibiting such presence under its own rules.

Sec. 219.102  Prohibition on abuse of controlled substances.

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

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

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

Sec. 219.104  Responsive action.

    (a) Removal from covered service. (1) If the railroad determines
that an employee has violated Sec. 219.101 or Sec. 219.102, or the
alcohol or controlled substances misuse rule of another DOT agency, the
railroad must immediately remove the employee from covered service and
the procedures described in paragraphs (b) through (e) of this section
apply.
    (2) If an employee refuses to provide breath or a body fluid
specimen or specimens when required to by the railroad under a mandatory
provision of this part, the railroad must immediately remove the
employee from covered service, and the procedures described in
paragraphs (b) through (e) of this section apply.
    (3)(i) This section does not apply to actions based on breath or
body fluid tests for alcohol or drugs that are conducted exclusively
under authority other than that provided in this part (e.g., testing
under a company medical policy, for-cause testing policy wholly
independent of subpart D of this part, or testing under a labor
agreement).
    (ii) This section and the information requirements listed in
Sec. 219.23 do not apply to applicants who refuse to submit to a pre-
employment test or who have a pre-employment test with a result
indicating the misuse of alcohol or controlled substances.
    (b) Notice. Prior to or upon withdrawing the employee from covered
service under this section, the railroad must provide notice to the
employee of the reason for this action.
    (c) Hearing procedures. (1) If the employee denies that the test
result is valid evidence of alcohol or drug use prohibited by this
subpart, the employee may demand and must be provided an opportunity for
a prompt post-suspension hearing before a presiding officer other than
the charging official. This hearing may be consolidated with any
disciplinary hearing arising from the same accident or incident (or
conduct directly related thereto), but the presiding officer must make
separate findings as to compliance with Secs. 219.101 and 219.102.
    (2) The hearing must be convened within the period specified in the
applicable collective bargaining agreement.

[[Page 208]]

In the absence of an agreement provision, the employee may demand that
the hearing be convened within 10 calendar days of the suspension or, in
the case of an employee who is unavailable due to injury, illness, or
other sufficient cause, within 10 days of the date the employee becomes
available for hearing.
    (3) A post-suspension proceeding conforming to the requirements of
an applicable collective bargaining agreement, together with the
provisions for adjustment of disputes under sec. 3 of the Railway Labor
Act (49 U.S.C. 153), satisfies the procedural requirements of this
paragraph (c).
    (4) Nothing in this part may be deemed to abridge any additional
procedural rights or remedies not inconsistent with this part that are
available to the employee under a collective bargaining agreement, the
Railway Labor Act, or (with respect to employment at will) at common law
with respect to the removal or other adverse action taken as a
consequence of a positive test result in a test authorized or required
by this part.
    (5) Nothing in this part restricts the discretion of the railroad to
treat an employee's denial of prohibited alcohol or drug use as a waiver
of any privilege the employee would otherwise enjoy to have such
prohibited alcohol or drug use treated as a non-disciplinary matter or
to have discipline held in abeyance.
    (d) The railroad must comply with the return-to-service and follow-
up testing requirements, and the Substance Abuse Professional conflict-
of-interest prohibitions, contained in Secs. 40.305, 40.307, and 40.299
of this title, respectively.

Sec. 219.105  Railroad's duty to prevent violations.

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

Sec. 219.107  Consequences of unlawful refusal.

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

             Subpart C--Post-Accident Toxicological Testing

Sec. 219.201  Events for which testing is required.

    (a) List of events. Except as provided in paragraph (b) of this
section, post-accident toxicological tests must be conducted after any
event that involves one or more of the circumstances described in
paragraphs (a)(1) through (4) of this section:
    (1) Major train accident. Any train accident (i.e., a rail equipment
accident involving damage in excess of the current reporting threshold)
that involves one or more of the following:
    (i) A fatality;

[[Page 209]]

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

[[Page 210]]

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

Sec. 219.203  Responsibilities of railroads and employees.

    (a) Employees tested. (1)(i) Following each accident and incident
described in Sec. 219.201, the railroad (or railroads) must take all
practicable steps to assure that all covered employees of the railroad
directly involved in the accident or incident provide blood and urine
specimens for toxicological testing by FRA. Such employees must
cooperate in the provision of specimens as described in this part and
Appendix C to this part.
    (ii) If the conditions for mandatory toxicological testing exist,
the railroad may also require employees to provide breath for testing in
accordance with the procedures set forth in part 40 of this title and in
this part, if such testing does not interfere with timely collection of
required specimens.
    (2) Such employees must specifically include each and every
operating employee assigned as a crew member of any train involved in
the accident or incident. In any case where an operator, dispatcher,
signal maintainer or other covered employee is directly and
contemporaneously involved in the circumstances of the accident/
incident, those employees must also be required to provide specimens.
    (3) An employee must be excluded from testing under the following
circumstances: In any case of an accident/incident for which testing is
mandated only under Sec. 219.201(a)(2) (an ``impact accident''),
Sec. 219.201(a)(3) (``fatal train incident''), or Sec. 219.201(a)(4) (a
``passenger train accident with injury'') if the railroad representative
can immediately determine, on the basis of specific information, that
the employee had no role in the cause(s) or severity of the accident/
incident. The railroad representative must consider any such information
immediately available at the time the qualifying event determination is
made under Sec. 219.201.
    (4) The following provisions govern accidents/incidents involving
non-covered employees:
    (i) Surviving non-covered employees are not subject to testing under
this subpart.
    (ii) Testing of the remains of non-covered employees who are fatally
injured in train accidents and incidents is required.
    (b) Timely specimen collection. (1) The railroad must make every
reasonable effort to assure that specimens are provided as soon as
possible after the accident or incident.
    (2) This paragraph (b) must not be construed to inhibit the
employees required to be tested from performing, in the immediate
aftermath of the accident or incident, any duties that may be necessary
for the preservation of life or property. However, where practical, the
railroad must utilize other employees to perform such duties.
    (3) In the case of a passenger train which is in proper condition to
continue to the next station or its destination after an accident or
incident, the railroad must consider the safety and

[[Page 211]]

convenience of passengers in determining whether the crew is immediately
available for testing. A relief crew must be called to relieve the train
crew as soon as possible.
    (4) Covered employees who may be subject to testing under this
subpart must be retained in duty status for the period necessary to make
the determinations required by Sec. 219.201 and this section and (as
appropriate) to complete the specimen collection procedure. An employee
may not be recalled for testing under this subpart if that employee has
been released from duty under the normal procedures of the railroad,
except that an employee may be immediately recalled for testing if--
    (i) The employee could not be retained in duty status because the
employee went off duty under normal carrier procedures prior to being
contacted by a railroad supervisor and instructed to remain on duty
pending completion of the required determinations (e.g., in the case of
a dispatcher or signal maintainer remote from the scene of an accident
who was unaware of the occurrence at the time the employee went off
duty);
    (ii) The railroad's preliminary investigation (contemporaneous with
the determination required by Sec. 219.201) indicates a clear
probability that the employee played a major role in the cause or
severity of the accident/incident; and
    (iii) The accident/incident actually occurred during the employee's
duty tour. An employee who has been transported to receive medical care
is not released from duty for purposes of this section. Nothing in this
section prohibits the subsequent testing of an employee who has failed
to remain available for testing as required (i.e., who is absent without
leave); but subsequent testing does not excuse such refusal by the
employee timely to provide the required specimens.
    (c) Place of specimen collection. (1) Employees must be transported
to an independent medical facility where the specimens must be obtained.
The railroad must pre-designate for such testing one or more such
facilities in reasonable proximity to any location where the railroad
conducts operations. Designation must be made on the basis of the
willingness of the facility to conduct specimen collection and the
ability of the facility to complete specimen collection promptly,
professionally, and in accordance with pertinent requirements of this
part. In all cases blood may be drawn only by a qualified medical
professional or by a qualified technician subject to the supervision of
a qualified medical professional.
    (2) In the case of an injured employee, the railroad must request
the treating medical facility to obtain the specimens.
    (d) Obtaining cooperation of facility. (1) In seeking the
cooperation of a medical facility in obtaining a specimen under this
subpart, the railroad shall, as necessary, make specific reference to
the requirements of this subpart.
    (2) If an injured employee is unconscious or otherwise unable to
evidence consent to the procedure and the treating medical facility
declines to obtain blood specimens after having been acquainted with the
requirements of this subpart, the railroad must immediately notify the
duty officer at the National Response Center (NRC) at (800) 424-8801 or
(800) 424-8802, stating the employee's name, the medical facility, its
location, the name of the appropriate decisional authority at the
medical facility, and the telephone number at which that person can be
reached. FRA will then take appropriate measures to assist in obtaining
the required specimen.
    (e) Discretion of physician. Nothing in this subpart may be
construed to limit the discretion of a physician to determine whether
drawing a blood specimen is consistent with the health of an injured
employee or an employee afflicted by any other condition that may
preclude drawing the specified quantity of blood.

Sec. 219.205  Specimen collection and handling.

    (a) General. Urine and blood specimens must be obtained, marked,
preserved, handled, and made available to FRA consistent with the
requirements of this subpart, and the technical specifications set forth
in Appendix C to this part.

[[Page 212]]

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

Sec. 219.206  FRA access to breath test results.

    Documentation of breath test results must be made available to FRA
consistent with the requirements of this subpart, and the technical
specifications set forth in Appendix C to this part.

Sec. 219.207  Fatality.

    (a) In the case of an employee fatality in an accident or incident
described in Sec. 219.201, body fluid and/or tissue specimens must be
obtained from the remains of the employee for toxicological testing. To
ensure that specimens are timely collected, the railroad must
immediately notify the appropriate local authority (such as a coroner or
medical examiner) of the fatality and the requirements of this subpart,
making available the shipping kit and requesting the local authority to
assist in obtaining the necessary body fluid or tissue specimens. The
railroad must also seek the assistance of the custodian of the remains,
if a person other than the local authority.
    (b) If the local authority or custodian of the remains declines to
cooperate in obtaining the necessary specimens, the railroad must
immediately notify the duty officer at the National Response Center
(NRC) at (800) 424-8801 or (800) 424-8802 by providing the following
information:
    (1) Date and location of the accident or incident;
    (2) Railroad;
    (3) Name of the deceased;

[[Page 213]]

    (4) Name and telephone number of custodian of the remains; and
    (5) Name and telephone number of local authority contacted.
    (c) A coroner, medical examiner, pathologist, Aviation Medical
Examiner, or other qualified professional is authorized to remove the
required body fluid and/or tissue specimens from the remains on request
of the railroad or FRA pursuant to this part; and, in so acting, such
person is the delegate of the FRA Administrator under sections 20107 and
20108 of title 49, United States Code (but not the agent of the
Secretary for purposes of the Federal Tort Claims Act (chapter 171 of
title 28, United States Code). Such qualified professional may rely upon
the representations of the railroad or FRA representative with respect
to the occurrence of the event requiring that toxicological tests be
conducted and the coverage of the deceased employee under this part.
    (d) Appendix C to this part specifies body fluid and tissue
specimens required for toxicological analysis in the case of a fatality.

Sec. 219.209  Reports of tests and refusals.

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

Sec. 219.211  Analysis and follow-up.

    (a) The laboratory designated in Appendix B to this part undertakes
prompt analysis of specimens provided under this subpart, consistent
with the need to develop all relevant information and produce a complete
report. Specimens are analyzed for alcohol and controlled substances
specified by FRA under protocols specified by FRA, summarized in
Appendix C to this part, which have been submitted to Health and Human
Services for acceptance. Specimens may be analyzed for other impairing
substances specified by FRA as necessary to the particular accident
investigation.
    (b) Results of post-accident toxicological testing under this
subpart are reported to the railroad's Medical Review Officer and the
employee. The MRO and the railroad must treat the test results and any
information concerning medical use or administration of drugs provided
under this subpart in the same confidential manner as if subject to
subpart H of this part, except where publicly disclosed by FRA or the
National Transportation Safety Board.
    (c) With respect to a surviving employee, a test reported as
positive for alcohol or a controlled substance by the designated
laboratory must be reviewed by the railroad's Medical Review Officer
with respect to any claim of use or administration of medications
(consistent with Sec. 219.103) that could account for the laboratory
findings. The Medical Review Officer must promptly report the results of
each review to the Associate Administrator for Safety,

[[Page 214]]

FRA, Washington, DC 20590. Such report must be in writing and must
reference the employing railroad, accident/incident date, and location,
and the envelope must be marked ``ADMINISTRATIVELY CONFIDENTIAL:
ATTENTION ALCOHOL/DRUG PROGRAM MANAGER.'' The report must state whether
the MRO reported the test result to the employing railroad as positive
or negative and the basis of any determination that analytes detected by
the laboratory derived from authorized use (including a statement of the
compound prescribed, dosage/frequency, and any restrictions imposed by
the authorized medical practitioner). Unless specifically requested by
FRA in writing, the Medical Review Officer may not disclose to FRA the
underlying physical condition for which any medication was authorized or
administered. The FRA is not bound by the railroad Medical Review
Officer's determination, but that determination will be considered by
FRA in relation to the accident/incident investigation and with respect
to any enforcement action under consideration.
    (d) To the extent permitted by law, FRA treats test results
indicating medical use of controlled substances consistent with
Sec. 219.103 (and other information concerning medically authorized drug
use or administration provided incident to such testing) as
administratively confidential and withholds public disclosure, except
where it is necessary to consider this information in an accident
investigation in relation to determination of probable cause. (However,
as further provided in this section, FRA may provide results of testing
under this subpart and supporting documentation to the National
Transportation Safety Board.)
    (e) An employee may respond in writing to the results of the test
prior to the preparation of any final investigation report concerning
the accident or incident. An employee wishing to respond may do so by
letter addressed to the Alcohol/Drug Program Manager, Office of Safety,
FRA, 400 Seventh Street, S.W., Washington, DC 20590 within 45 days of
receipt of the test results. Any such submission must refer to the
accident date, railroad and location, must state the position occupied
by the employee on the date of the accident/incident, and must identify
any information contained therein that the employee requests be withheld
from public disclosure on grounds of personal privacy (but the decision
whether to honor such request will be made by the FRA on the basis of
controlling law).
    (f)(1) The toxicology report may contain a statement of
pharmacological significance to assist FRA and other parties in
understanding the data reported. No such statement may be construed as a
finding of probable cause in the accident or incident.
    (2) The toxicology report is a part of the report of the accident/
incident and therefore subject to the limitation of 49 U.S.C. 20903
(prohibiting use of the report for any purpose in a civil action for
damages resulting from a matter mentioned in the report).
    (g)(1) It is in the public interest to ensure that any railroad
disciplinary actions that may result from accidents and incidents for
which testing is required under this subpart are disposed of on the
basis of the most complete and reliable information available so that
responsive action will be appropriate. Therefore, during the interval
between an accident or incident and the date that the railroad receives
notification of the results of the toxicological analysis, any provision
of collective bargaining agreements establishing maximum periods for
charging employees with rule violations, or for holding an
investigation, may not be deemed to run as to any offense involving the
accident or incident (i.e., such periods must be tolled).
    (2) This provision may not be construed to excuse the railroad from
any obligation to timely charge an employee (or provide other actual
notice) where the railroad obtains sufficient information relating to
alcohol or drug use, impairment or possession or other rule violations
prior to the receipt to toxicological analysis.
    (3) This provision does not authorize holding any employee out of
service pending receipt of toxicological analysis; nor does it restrict
a railroad from taking such action in an appropriate case.

[[Page 215]]

    (h) Except as provided in Sec. 219.201 (with respect to non-
qualifying events), each specimen (including each split specimen)
provided under this subpart is retained for not less than three months
following the date of the accident or incident (two years from the date
of the accident or incident in the case of a specimen testing positive
for alcohol or a controlled substance). Post-mortem specimens may be
made available to the National Transportation Safety Board (on request).
    (i) An employee (donor) may, within 60 days of the date of the
toxicology report, request that his or her split specimen be tested by
the designated laboratory or by another laboratory certified by Health
and Human Services under that Department's Guidelines for Federal
Workplace Drug Testing Programs that has available an appropriate,
validated assay for the fluid and compound declared positive. Since some
analytes may deteriorate during storage, detected levels of the compound
shall, as technically appropriate, be reported and considered
corroborative of the original test result. Any request for a retest
shall be in writing, specify the railroad, accident date and location,
be signed by the employee/donor, be addressed to the Associate
Administrator for Safety, Federal Railroad Administration, Washington,
DC 20590, and be designated ``ADMINISTRATIVELY CONFIDENTIAL: ATTENTION
ALCOHOL/DRUG PROGRAM MANAGER.'' The expense of any employee-requested
split specimen test at a laboratory other than the laboratory designated
under this subpart shall be borne by the employee.

Sec. 219.213  Unlawful refusals; consequences.

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

                      Subpart D--Testing for Cause

Sec. 219.300  Mandatory reasonable suspicion testing.

    (a) Requirements. (1) A railroad must require a covered employee to
submit to an alcohol test when the railroad has reasonable suspicion to
believe that the employee has violated any prohibition of subpart B of
this part concerning use of alcohol. The railroad's determination that
reasonable suspicion exists to require the covered employee to undergo
an alcohol test must be based on specific, contemporaneous, articulable
observations concerning the appearance, behavior, speech or body odors
of the employee.
    (2) A railroad must require a covered employee to submit to a drug
test when the railroad has reasonable suspicion to believe that the
employee has violated the prohibitions of subpart B of this part
concerning use of controlled substances. The railroad's determination
that reasonable suspicion exists to require the covered employee to
undergo a drug test must be based on specific, contemporaneous,
articulable observations concerning the appearance, behavior, speech or

[[Page 216]]

body odors of the employee. Such observations may include indications of
the chronic and withdrawal effects of drugs.
    (b)(1) With respect to an alcohol test, the required observations
must be made by a supervisor trained in accordance with Sec. 219.11(g).
The supervisor who makes the determination that reasonable suspicion
exists may not conduct testing on that employee.
    (2) With respect to a drug test, the required observations must be
made by two supervisors, at least one of whom is trained in accordance
with Sec. 219.11(g).
    (c) Nothing in this section may be construed to require the conduct
of alcohol testing or drug testing when the employee is apparently in
need of immediate medical attention.
    (d)(1) If a test required by this section is not administered within
two hours following the determination under this section, the railroad
must prepare and maintain on file a record stating the reasons the test
was not properly administered. If a test required by this section is not
administered within eight hours of the determination under this section,
the railroad must cease attempts to administer an alcohol test and must
state in the record the reasons for not administering the test. Records
must be submitted to FRA upon request of the FRA Administrator.
    (2) [Reserved]

Sec. 219.301  Testing for reasonable cause.

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

[[Page 217]]

unauthorized running through a switch;
    (v) Failure to apply or stop short of derail as required;
    (vi) Failure to secure a hand brake or failure to secure sufficient
hand brakes, as required;
    (vii) Entering a crossover before both switches are lined for
movement; or
    (viii) In the case of a person performing a dispatching function or
block operator function, issuance of a train order or establishment of a
route that fails to provide proper protection for a train.
    (c) For cause drug testing. In addition to reasonable suspicion as
described in Sec. 219.300, each of the conditions set forth in
paragraphs (b)(2) (``accident/incident'') and (b)(3) (``rule
violation'') of this section as constituting cause for alcohol testing
also constitutes cause with respect to drug testing.
    (d) [Reserved]
    (e) Limitation for subpart C events. The compulsory drug testing
authority conferred by this section does not apply with respect to any
event subject to post-accident toxicological testing as required by
Sec. 219.201. However, use of compulsory breath test authority is
authorized in any case where breath test results can be obtained in a
timely manner at the scene of the accident and conduct of such tests
does not materially impede the collection of specimens under Subpart C
of this part.

Sec. 219.302  Prompt specimen collection; time limitation.

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

             Subpart E--Identification of Troubled Employees

Sec. 219.401  Requirement for policies.

    (a) The purpose of this subpart is to prevent the use of alcohol and
drugs in connection with covered service.
    (b) Each railroad must adopt, publish and implement--
    (1) A policy designed to encourage and facilitate the identification
of those covered employees who abuse alcohol or drugs as a part of a
treatable condition and to ensure that such employees are provided the
opportunity to obtain counseling or treatment before those problems
manifest themselves in detected violations of this part (hereafter
``voluntary referral policy''); and
    (2) A policy designed to foster employee participation in preventing
violations of this subpart and encourage co-worker participation in the
direct enforcement of this part (hereafter ``co-worker report policy'').
    (c) A railroad may comply with this subpart by adopting, publishing
and

[[Page 218]]

implementing policies meeting the specific requirements of Secs. 219.403
and 219.405 or by complying with Sec. 219.407.
    (d) If a railroad complies with this part by adopting, publishing
and implementing policies consistent with Secs. 219.403 and 219.405, the
railroad must make such policies, and publications announcing such
policies, available for inspection and copying by FRA.
    (e) Nothing in this subpart may be construed to--
    (1) Require payment of compensation for any period an employee is
out of service under a voluntary referral or co-worker report policy;
    (2) Require a railroad to adhere to a voluntary referral or co-
worker report policy in a case where the referral or report is made for
the purpose, or with the effect, of anticipating the imminent and
probable detection of a rule violation by a supervising employee; or
    (3) Limit the discretion of a railroad to dismiss or otherwise
discipline an employee for specific rule violations or criminal
offenses, except as specifically provided by this subpart.

Sec. 219.403  Voluntary referral policy.

    (a) Scope. This section prescribes minimum standards for voluntary
referral policies. Nothing in this section restricts a railroad from
adopting, publishing and implementing a voluntary referral policy that
affords more favorable conditions to employees troubled by alcohol or
drug abuse problems, consistent with the railroad's responsibility to
prevent violations of Secs. 219.101 and 219.102.
    (b) Required provisions. A voluntary referral policy must include
the following provisions:
    (1) A covered employee who is affected by an alcohol or drug use
problem may maintain an employment relationship with the railroad if,
before the employee is charged with conduct deemed by the railroad
sufficient to warrant dismissal, the employee seeks assistance through
the railroad for the employee's alcohol or drug use problem or is
referred for such assistance by another employee or by a representative
of the employee's collective bargaining unit. The railroad must specify
whether, and under what circumstances, its policy provides for the
acceptance of referrals from other sources, including (at the option of
the railroad) supervisory employees.
    (2) Except as may be provided under paragraph (c) of this section,
the railroad treats the referral and subsequent handling, including
counseling and treatment, as confidential.
    (3) The railroad will, to the extent necessary for treatment and
rehabilitation, grant the employee a leave of absence from the railroad
for the period necessary to complete primary treatment and establish
control over the employee's alcohol or drug problem. The policy must
allow a leave of absence of not less than 45 days, if necessary for the
purpose of meeting initial treatment needs.
    (4) Except as may be provided under paragraph (c)(2) of this
section, the employee will be returned to service on the recommendation
of the substance abuse professional. Approval to return to service may
not be unreasonably withheld.
    (5) With respect to a certified locomotive engineer or a candidate
for certification, the railroad must meet the requirements of
Sec. 240.119(e) of this chapter.
    (c) Optional provisions. A voluntary referral policy may include any
of the following provisions, at the option of the railroad:
    (1) The policy may provide that the rule of confidentiality is
waived if--
    (i) The employee at any time refuses to cooperate in a recommended
course of counseling or treatment; and/or
    (ii) The employee is later determined, after investigation, to have
been involved in an alcohol or drug-related disciplinary offense growing
out of subsequent conduct.
    (2) The policy may require successful completion of a return-to-
service medical examination as a further condition on reinstatement in
covered service.
    (3) The policy may provide that it does not apply to an employee who
has previously been assisted by the railroad under a policy or program
substantially consistent with this section or who has previously elected
to waive investigation under Sec. 219.405 (co-worker report policy).

[[Page 219]]

    (4) The policy may provide that, in order to invoke its benefits,
the employee must report to the contact designated by the railroad
either:
    (i) During non-duty hours (i.e., at a time when the employee is off
duty); or
    (ii) While unimpaired and otherwise in compliance with the
railroad's alcohol and drug rules consistent with this subpart.

Sec. 219.405  Co-worker report policy.

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

[[Page 220]]

program of education and training concerning the effects of alcohol and
drugs on occupational or transportation safety.
    (f) Follow-up tests. A railroad may conduct return-to-service and/or
follow-up tests (as described in Sec. 219.104) of an employee who waives
investigation and is determined to be ready to return to service under
this section.

Sec. 219.407  Alternate policies.

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

                     Subpart F--Pre-Employment Tests

Sec. 219.501  Pre-employment drug testing.

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

Sec. 219.502  Pre-employment alcohol testing.

    (a) A railroad may, but is not required to, conduct pre-employment
alcohol testing under this part. If a railroad chooses to conduct pre-
employment alcohol testing, the railroad must comply with the following
requirements:
    (1) It must conduct a pre-employment alcohol test before the first
performance of safety-sensitive functions by every covered employee
(whether a new employee or someone who has transferred to a position
involving the performance of safety-sensitive functions).
    (2) It must treat all safety-sensitive employees performing safety-
sensitive functions the same for the purpose of pre-employment alcohol
testing (i.e., it must not test some covered employees and not others).
    (3) It must conduct the pre-employment tests after making a
contingent offer of employment or transfer, subject to the employee
passing the pre-employment alcohol test.

[[Page 221]]

    (4) It must conduct all pre-employment alcohol tests using the
alcohol testing procedures of part 40 of this title.
    (5) It must not allow a covered employee to begin performing safety-
sensitive functions unless the result of the employee's test indicates
an alcohol concentration of less than 0.04.
    (b) As used in subpart H of this part, with respect to a test
authorized under this subpart, the term covered employee includes an
applicant for pre-employment testing only. In the case of an applicant
who declines to be tested and withdraws the application for employment,
no record may be maintained of the declination.

Sec. 219.503  Notification; records.

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

Sec. 219.505  Refusals.

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

           Subpart G--Random Alcohol and Drug Testing Programs

Sec. 219.601  Railroad random drug testing programs.

    (a) Submission. Each railroad must submit for FRA approval a random
testing program meeting the requirements of this subpart. A railroad
commencing operations must submit such a program not later than 30 days
prior to such commencement. The program must be submitted to the
Associate Administrator for Safety, FRA, for review and approval by the
FRA Administrator. If, after approval, a railroad desires to amend the
random testing program implemented under this subpart, the railroad must
file with FRA a notice of such amendment at least 30 days prior to the
intended effective date of such action. A railroad already subject to
this subpart that becomes subject to this subpart with respect to one or
more additional employees must amend its program not later than 60 days
after these employees become subject to this subpart and file with FRA a
notice of such amendment at least 30 days prior to the intended
effective date of such action. A program responsive to the requirements
of this section or any amendment to the program may not be implemented
prior to approval.
    (b) Form of programs. Random testing programs submitted by or on
behalf of each railroad under this subpart must meet the following
criteria, and the railroad and its managers, supervisors, officials and
other employees and agents must conform to such criteria in implementing
the program:
    (1) Selection of covered employees for testing must be made by a
method employing objective, neutral criteria which ensure that every
covered employee has a substantially equal statistical chance of being
selected within a specified time frame. The method may not permit
subjective factors to play a role in selection, i.e., no employee may be
selected as the result of the exercise of discretion by the railroad.
The selection method must be capable of verification with respect to the
randomness of the selection process, and any records necessary to
document random selection must be retained for not less than 24 months
from the date upon which the particular specimens were collected.
    (2)(i) The program must select for testing a sufficient number of
employees so that, during the first 12 months--

[[Page 222]]

    (A) The random testing program is spread reasonably through the 12-
month period.
    (B) [Reserved]
    (ii) During the subsequent 12-month period, the program must select
for testing a sufficient number of employees so that the number of tests
conducted will equal at least 50 percent of the number of covered
employees. Annualized percentage rates must be determined by reference
to the total number of covered employees employed by the railroad at the
beginning of the particular twelve-month period or by an alternate
method specified in the plan approved by the Associate Administrator for
Safety, FRA. If the railroad conducts random testing through a
consortium, the annual rate may be calculated for each individual
employer or for the total number of covered employees subject to random
testing by the consortium.
    (3) Railroad random testing programs must ensure to the maximum
extent practicable that each employee perceives the possibility that a
random test may be required on any day the employee reports for work.
    (4) Notice of an employee's selection may not be provided until the
duty tour in which testing is to be conducted, and then only so far in
advance as is reasonably necessary to ensure the employee's presence at
the time and place set for testing.
    (5) The program must include testing procedures and safeguards, and
procedures for action based on positive test results, consistent with
this part.
    (6) An employee must be subject to testing only while on duty. Only
employees who perform covered service for the railroad are subject to
testing under this part. In the case of employees who during some duty
tours perform covered service and during others do not, the railroad
program must specify the extent to which, and the circumstances under
which they are to be subject to testing. To the extent practical within
the limitations of this part and in the context of the railroad's
operations, the railroad program must provide that employees are subject
to the possibility of random testing on any day they actually perform
covered service.
    (7) Each time an employee is notified for random drug testing the
employee will be informed that selection was made on a random basis.
    (c) Approval. The Associate Administrator for Safety, FRA, will
notify the railroad in writing whether the program is approved as
consistent with the criteria set forth in this part. If the Associate
Administrator for Safety determines that the program does not conform to
those criteria, the Associate Administrator for Safety will inform the
railroad of any matters preventing approval of the program, with
specific explanation as to necessary revisions. The railroad must
resubmit its program with the required revisions within 30 days of such
notice. Failure to resubmit the program with the necessary revisions
will be considered a failure to implement a program under this subpart.
    (d) Implementation. (1) No later than 45 days prior to commencement
of random testing, the railroad must publish to each of its covered
employees, individually, a written notice that he or she will be subject
to random drug testing under this part. Such notice must state the date
for commencement of the program, must state that the selection of
employees for testing will be on a strictly random basis, must describe
the consequences of a determination that the employee has violated
Sec. 219.102 or any applicable railroad rule, and must inform the
employee of the employee's rights under subpart E of this part. A copy
of the notice must be provided to each new covered employee on or before
the employee's initial date of service. Since knowledge of Federal law
is presumed, nothing in this paragraph (d)(1) creates a defense to a
violation of Sec. 219.102.
    (2) A railroad commencing operations must submit a random testing
program 60 days after doing so. The railroad must implement its approved
random testing program not later than the expiration of 60 days from
approval by the Administrator.

[[Page 223]]

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

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

Sec. 219.603  Participation in drug testing.

    A railroad shall, under the conditions specified in this subpart and
subpart H of this part, require a covered employee selected through the
random

[[Page 224]]

testing program to cooperate in urine testing to determine compliance
with Sec. 219.102, and the employee must provide the required specimen
and complete the required paperwork and certifications. Compliance by
the employee may be excused only in the case of a documented medical or
family emergency.

Sec. 219.605  Positive drug test results; procedures.

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

Sec. 219.607  Railroad random alcohol testing programs.

    (a) Each railroad must submit for FRA approval a random alcohol
testing program meeting the requirements of this subpart. A railroad
commencing operations must submit a random alcohol testing program not
later than 30 days prior to such commencement. The program must be
submitted to the Associate Administrator for Safety, FRA, for review and
approval. If, after approval, a railroad desires to amend the random
alcohol testing program implemented under this subpart, the railroad
must file with FRA a notice of such amendment at least 30 days prior to
the intended effective date of such action. A program responsive to the
requirements of this section or any amendment to the program may not be
implemented prior to approval.
    (b) Form of programs. Random alcohol testing programs submitted by
or on behalf of each railroad under this subpart must meet the following
criteria, and the railroad and its managers, supervisors, officials and
other employees and agents must conform to such criteria in implementing
the program:
    (1) Selection of covered employees for testing must be made by a
method employing objective, neutral criteria which ensures that every
covered employee has a substantially equal statistical chance of being
selected within a specified time frame. The method may not permit
subjective factors to play a role in selection, i.e., no employee may be
selected as the result of the exercise of discretion by the railroad.
The selection method must be capable of verification with respect to the
randomness of the selection process, and any records necessary to
document random selection must be retained for not less than 24 months
from the date upon which the particular specimens were collected.
    (2) The program must include testing procedures and safeguards, and,
consistent with this part, procedures for action based on tests where
the employee is found to have violated Sec. 219.101.
    (3) The program must ensure that random alcohol tests conducted
under this part are unannounced and that the dates for administering
random tests are spread reasonably throughout the calendar year.
    (4) The program must ensure to the maximum extent practicable that
each covered employee perceives the possibility that a random alcohol
test may be required at any time the employee reports for work and at
any time during the duty tour (except any period when the employee is
expressly relieved of any responsibility for performance of covered
service).
    (5) An employee may be subject to testing only while on duty. Only
employees who perform covered service for the railroad may be subject to
testing under this part. In the case of employees who during some duty
tours perform covered service and during others do not, the railroad
program may specify the extent to which, and the circumstances under
which they are subject to testing. To the extent practical within the
limitations of this part and in the context of the railroad's
operations, the railroad program must provide that employees are subject
to the possibility of random testing on any day they actually perform
covered service.
    (6) Testing must be conducted promptly, as provided in
Sec. 219.701(b)(1).
    (7) Each time an employee is notified for random alcohol testing the
employee must be informed that selection was made on a random basis.

[[Page 225]]

    (8) Each railroad must ensure that each covered employee who is
notified of selection for random alcohol testing proceeds to the test
site immediately; provided, however, that if the employee is performing
a safety-sensitive function at the time of the notification, the
railroad must instead ensure that the employee ceases to perform the
safety-sensitive function and proceeds to the testing site as soon as
possible.
    (c) Implementation. (1) No later than 45 days prior to commencement
of random alcohol testing, the railroad must publish to each of its
covered employees, individually, a written notice that the employee will
be subject to random alcohol testing under this part. Such notice must
state the date for commencement of the program, must state that the
selection of employees for testing will be on a strictly random basis,
must describe the consequences of a determination that the employee has
violated Sec. 219.101 or any applicable railroad rule, and must inform
the employee of the employee's rights under subpart E of this part. A
copy of the notice must be provided to each new covered employee on or
before the employee's initial date of service. Since knowledge of
Federal law is presumed, nothing in this paragraph (c)(1) creates a
defense to a violation of Sec. 219.101. This notice may be combined with
the notice or policy statement required by Sec. 219.23.
    (2) A railroad commencing operations must submit a random testing
program 60 days after doing so. The railroad must implement its approved
random testing program not later than the expiration of 60 days from
approval by the Administrator.

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

    (a) Except as provided in paragraphs (b) through (d) of this
section, the minimum annual percentage rate for random alcohol testing
must be 25 percent of covered employees.
    (b) The Administrator's decision to increase or decrease the minimum
annual percentage rate for random alcohol testing is based on the
violation rate for the entire industry. All information used for the
determination is drawn from the alcohol MIS reports required by this
part. In order to ensure reliability of the data, the Administrator
considers the quality and completeness of the reported data, may obtain
additional information or reports from employers, and may make
appropriate modifications in calculating the industry violation rate.
Each year, the Administrator will publish in the Federal Register the
minimum annual percentage rate for random alcohol testing of covered
employees. The new minimum annual percentage rate for random alcohol
testing will be applicable starting January 1 of the calendar year
following publication.
    (c)(1) When the minimum annual percentage rate for random alcohol
testing is 25 percent or more, the Administrator may lower this rate to
10 percent of all covered employees if the Administrator determines that
the data received under the reporting requirements of Sec. 219.801 for
two consecutive calendar years indicate that the violation rate is less
than 0.5 percent.
    (2) When the minimum annual percentage rate for random alcohol
testing is 50 percent, the Administrator may lower this rate to 25
percent of all covered employees if the Administrator determines that
the data received under the reporting requirements of Sec. 219.801 for
two consecutive calendar years indicate that the violation rate is less
than 1.0 percent but equal to or greater than 0.5 percent.
    (d)(1) When the minimum annual percentage rate for random alcohol
testing is 10 percent, and the data received under the reporting
requirements of Sec. 219.801 for that calendar year indicate that the
violation rate is equal to or greater than 0.5 percent, but less than
1.0 percent, the Administrator will increase the minimum annual
percentage rate for random alcohol testing to 25 percent of all covered
employees.
    (2) When the minimum annual percentage rate for random alcohol
testing is 25 percent or less, and the data received under the reporting
requirements of Sec. 219.801 for any calendar year indicate that the
violation rate is equal to or greater than 1.0 percent, the
Administrator will increase the minimum annual percentage rate for

[[Page 226]]

random alcohol testing to 50 percent of all covered employees.
    (e) The railroad must randomly select and test a sufficient number
of covered employees for testing during each calendar year to equal an
annual rate not less than the minimum annual percentage rate for random
alcohol testing determined by the Administrator. If the railroad
conducts random alcohol testing through a consortium, the number of
employees to be tested may be calculated for each individual employer or
may be based on the total number of covered employees covered by the
consortium who are subject to random testing at the same minimum annual
percentage rate under this part or any DOT agency alcohol testing rule.
    (f) If a railroad is required to conduct random alcohol testing
under the alcohol testing rules of more than one DOT agency, the
railroad may--
    (1) Establish separate pools for random selection, with each pool
containing the covered employees who are subject to testing at the same
required rate; or
    (2) Randomly select such employees for testing at the highest
percentage rate established for the calendar year by any DOT agency to
which the railroad is subject.

Sec. 219.609  Participation in alcohol testing.

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

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

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

             Subpart H--Drug and Alcohol Testing Procedures

Sec. 219.701  Standards for drug and alcohol testing.

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

                        Subpart I--Annual Report

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

    (a) Each railroad that has 400,000 or more total manhours shall
submit to FRA by March 15 of each year a report covering the previous
calendar year (January 1--December 31), summarizing the results of its
alcohol misuse prevention program.
    (b) A railroad that is subject to more than one DOT agency alcohol
regulation must identify each employee covered by the regulations of
more than one DOT agency. The identification will be by the total number
and category of covered functions. Prior to conducting any alcohol test
on a covered employee subject to the regulations of more than one DOT
agency, the railroad must determine which DOT agency regulation or rule
authorizes or requires the test. The test result information must be
directed to

[[Page 227]]

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

[[Page 228]]

    (4) Number of covered employees with a confirmation alcohol test
indicating an alcohol concentration of .04 or greater, or who have
violations of other alcohol misuse provisions, who were returned to
service in covered positions (having complied with the recommendations
of a substance abuse professional as described in Sec. 219.104(d)).
    (5) For cause breath alcohol testing under railroad authority, by
reason for test (accident/injury or rules violation), the number of
screening tests conducted.
    (6) For cause breath alcohol testing under FRA authority, by reason
for test (reasonable suspicion, accident/injury or rules violation), the
number of screening tests conducted.
    (7) Number of covered employees who refused to submit to a random
alcohol test required under this part.
    (8) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (9) Number of supervisory personnel who have received the required
initial training on the specific contemporaneous physical, behavioral,
and performance indicators of probable alcohol use during the reporting
period.

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

    (a) Each railroad that has 400,000 or more total manhours shall
submit to FRA an annual report covering the calendar year, summarizing
the results of its drug misuse prevention program.
    (b) A railroad that is subject to more than one DOT agency drug
regulation must identify each employee covered by the regulations of
more than one DOT agency. The identification will be by the total number
and category of covered functions. Prior to conducting any drug test on
a covered employee subject to the regulations of more than one DOT
agency, the railroad must determine which DOT agency regulation or rules
authorizes or requires the test. The test result information must be
directed to the appropriate DOT agency or agencies.
    (c) Each railroad must ensure the accuracy and timeliness of each
report submitted by the railroad or a consortium.
    (d) Each railroad must submit the required annual reports no later
than March 15 of each year. The report must be submitted on one of the
forms specified by the FRA. A railroad with no positive test result must
submit the ``Drug Testing Management Information System Zero Positives
Data Collection Form.'' All other railroads must submit the ``Drug
Testing Management Information System Data Collection Form.''
    (e) A railroad submitting the ``Drug Testing Management Information
System Data Collection Form'' must address each of the following data
elements:
    (1) Number of covered employees by employee category (i.e., train
service, engine service, dispatcher/operator, signal service, other).
    (2) Number of covered employees in each category subject to testing
under the anti-drug regulations of more than one DOT agency, identified
by each agency.
    (3) Number of specimens collected by type of test (i.e., pre-
employment and covered service transfer, random, post-positive return to
service, and follow-up), and employee category.
    (4) Number of specimens verified negative by a Medical Review
Officer (MRO) by type of test, and employee category.
    (5) Number of specimens verified positive for one or more of the
five drugs by a MRO by type of test, employee category, and type of
drug. If a test has been verified positive by a MRO for multiple drugs,
the employer should report the result as a positive for each type of
drug.
    (6) Number of applicants or transfers denied employment or transfer
to a covered service position following a verified positive pre-
employment drug test.
    (7) Number of employees, currently in or having completed
rehabilitation or otherwise qualified to return to duty, who have
returned to work in a covered position during the reporting period.
    (8) For cause drug testing, the number of specimens collected by
reason for test (i.e., accident/injury, rules violation, or reasonable
suspicion), type of authority (railroad or FRA), employee

[[Page 229]]

category and type of drug, including drugs tested for under railroad
authority only.
    (9) For cause drug testing, the number of specimens verified
negative by a MRO by reason for test, type of authority, employee
category and type of drug, including drugs tested for under railroad
authority only.
    (10) For cause drug testing, the number of specimens verified
positive by a MRO by reason for test, type of authority, employee
category and type of drug, including drugs tested for under railroad
authority only.
    (11) For cause breath alcohol testing under railroad authority, by
reason for test, the number of tests conducted, the number of tests with
a positive result (i.e., breath alcohol concentration (BAC) = or > .02),
and the number of refusals.
    (12) For cause urine alcohol testing under railroad authority, by
reason for test, the number of tests conducted, the number of tests with
a positive result, and the number of refusals.
    (13) For cause breath alcohol testing under FRA authority, by reason
for test, the number of tests conducted, the number of tests with a
positive result, and the number of refusals.
    (14) Total number of covered employees observed in documented
operational tests and inspections related to enforcement of the
railroad's rules on alcohol and drug use.
    (15) Based on the tests and inspections described in paragraph
(e)(14) of this section, the number of covered employees charged with a
violation of the railroad's Rule G or similar rule or policy on drugs.
    (16) Based on the tests and inspections described in paragraph
(e)(14) of this section, the number of covered employees charged with a
violation of the railroad's Rule G or similar rule or policy on alcohol.
    (17) Number of specimens verified positive for more than one drug,
by employee category and type of drug.
    (18) Number of covered employees who refused to submit to a random
drug test required under FRA authority.
    (19) Number of covered employees who refused to submit to a non-
random drug test required under FRA authority.
    (20) Number of supervisory personnel who have received the required
initial training on the specific contemporaneous physical, behavioral,
and performance indicators of probable drug use during the reporting
period.
    (f) A railroad authorized to submit the ``Drug Testing Management
Information System Zero Positives Data Collection Form'' must address
each of the following data elements:
    (1) Number of covered employees by employee category (i.e., train
service, engine service, dispatcher/operator, signal service, other).
    (2) Number of covered employees in each category subject to testing
under the anti-drug regulations of more than one DOT agency, identified
by each agency.
    (3) Number of specimens collected and verified negative by type of
test (i.e., pre-employment and covered service transfer, random, for
cause due to accident/incident, for cause due to rules violation,
reasonable suspicion, post-positive return to service, and follow-up),
and employee category.
    (4) For cause breath alcohol testing under railroad authority, the
number of tests conducted by reason for test (i.e., accident/injury,
rules violation, or reasonable suspicion).
    (5) For cause urine alcohol testing under railroad authority, the
number of tests conducted by reason for test.
    (6) For cause breath alcohol testing under FRA authority, the number
of tests conducted by reason for test.
    (7) Total number of covered employees observed in documented
operational tests and inspections related to enforcement of the
railroad's rules on alcohol and drug use.
    (8) Based on the tests and inspections described in paragraph (f)(7)
of this section, the number of covered employees charged with a
violation of the railroad's Rule G or similar rule or policy on drugs.
    (9) Based on the tests and inspections described in paragraph (f)(7)
of this section, the number of covered employees charged with a
violation of the railroad's Rule G or similar rule or policy on alcohol.

[[Page 230]]

    (10) Number of covered employees who refused to submit to a random
drug test required under FRA authority.
    (11) Number of covered employees who refused to submit to a non-
random drug test required under FRA authority.
    (12) Number of supervisory personnel who have received the required
initial training on the specific contemporaneous physical, behavioral,
and performance indicators of probable drug use during the reporting
period.

                  Subpart J--Recordkeeping Requirements

Sec. 219.901  Retention of alcohol testing records.

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

Sec. 219.903  Retention of drug testing records.

    (a) General requirement. In addition to the records required to be
kept by part 40 of this title, each railroad must maintain drug abuse
prevention program records in a secure location with controlled access
as set forth in this section.
    (b) (1) Each railroad must maintain the following records for a
minimum of five years:
    (i) A summary record of each covered employee's test results; and
    (ii) A copy of the annual report summarizing the results of its drug
misuse prevention program (if required to submit under Sec. 219.803(a)).
    (2) Each railroad must maintain the following records for a minimum
of two years.
    (c) Types of records. The following specific records must be
maintained:
    (1) Records related to the collection process:
    (i) Documents relating to the random selection process.
    (ii) Documents generated in connection with decisions to administer
reasonable suspicion drug tests.

[[Page 231]]

    (iii) Documents generated in connection with decisions on post-
accident testing.
    (iv) Documents verifying the existence of a medical explanation of
the inability of a covered employee to provide a specimen.
    (2) Records related to test results:
    (i) The railroad's copy of the drug test custody and control form,
including the results of the test.
    (ii) Documents presented by a covered employee to dispute the result
of a drug test administered under this part.
    (3) Records related to other violations of this part.
    (4) Records related to employee training:
    (i) Materials on drug abuse awareness, including a copy of the
railroad's policy on drug abuse.
    (ii) Documentation of compliance with the requirements of
Sec. 219.23.
    (iii) Documentation of training provided to supervisors for the
purpose of qualifying the supervisors to make a determination concerning
the need for alcohol testing based on reasonable suspicion.
    (iv) Certification that any training conducted under this part
complies with the requirements for such training.

Sec. 219.905  Access to facilities and records.

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

           Appendix A to Part 219--Schedule of Civil Penalties

    The following chart lists the schedule of civil penalties:

                          Penalty Schedule \1\
------------------------------------------------------------------------
                                                              Willful
               Section \2\                   Violation       violation
------------------------------------------------------------------------
           Subpart A--General

219.3  Application:
    Railroad does not have required               $5,000          $7,500
     program............................
219.11  General conditions for chemical
 tests:
    (b)(1) Employee unlawfully refuses             2,500           5,000
     to participate in testing..........
    (b)(2) Employer fails to give                  3,000           8,000
     priority to medical treatment......
    (b)(3) Employee fails to remain                2,500           5,000
     available..........................
    (b)(4) Employee tampers with                   2,500           5,000
     specimen...........................
    (d) Employee unlawfully required to            2,500           5,000
     execute a waiver of rights.........
    (e) Railroad used or authorized the   ..............           7,500
     use of coercion to obtain specimens
    (g) Failure to meet supervisory                2,500           5,000
     training requirements or program of
     instruction not available or
     program not complete...............
    (h) Urine or blood specimens                   2,500           5,000
     provided for Federal testing were
     used for non-authorized testing....
219.23  Railroad policies:
    (a) Failure to provide written                 1,000           4,000
     notice of FRA test.................
    (b) Failure to provide written                 1,000           4,000
     notice of basis for FRA test.......
    (c) Use of Subpart C form for other            1,000           4,000
     test...............................
    (d) Failure to provide educational             1,000           4,000
     materials..........................
    (e) Educational materials fail to              1,000           4,000
     explain requirements of this part
     and/or include required content....
    (f) Non-Federal provisions are                 1,000           4,000
     clearly described as independent
     authority..........................

         Subpart B--Prohibitions

219.101  Alcohol and drug use
 prohibited:
    Employee violates prohibition(s)....          10,000  ..............
219.103  Prescribed and over-the-counter
 drugs:

[[Page 232]]


    (a) Failure to train employee                  2,500           5,000
     properly on requirements...........
219.104  Responsive action:
    (a) Failure to remove employee from            3,000           8,000
     covered service immediately........
    (b) Failure to provide notice for              1,000           4,000
     removal............................
    (c) Failure to provide prompt                  2,000           7,000
     hearing............................
    (d) Employee improperly returned to            2,000           7,000
     service............................
219.105 Railroad's duty to prevent
 violations:
    (a) Employee improperly permitted to           7,000          10,000
     remain in covered service..........
    (b) Failure to exercise due                    2,500           5,000
     diligence to assure compliance with
     prohibition........................
219.107  Consequences of unlawful
 refusal:
    (a) Failure to disqualify an                   5,000           7,500
     employee for nine months following
     a refusal..........................
    (e) Employee unlawfully returned to            5,000           7,500
     service............................

 Subpart C--Post-Accident Toxicological
                 Testing

219.201  Events for which testing is
 required:
    (a) Failure to test after qualifying           5,000           7,500
     event (each employee not tested is
     a violation).......................
    (c)(1)(i) Failure to make good faith           2,500           5,000
     determination......................
    (c)(1)(ii) Failure to provide                  1,000           3,000
     requested decision report to FRA...
    (c)(2) Testing performed after non-            5,000          10,000
     qualifying event...................
219.203  Responsibilities of railroads
 and employees:
    (a)(1)(i) and (a)(2)(i) Failure to             2,500           5,000
     properly test/exclude from testing.
    (a)(1)(ii) and (a)(2)(ii) Non-                 2,500           5,000
     covered service employee tested....
    (b)(1) Delay in obtaining specimens            2,500           5,000
     due to failure to make every
     reasonable effort..................
    (c) Independent medical facility not           2,500           5,000
     utilized...........................
    (d) Failure to report event or                 1,000           3,000
     contact FRA when intervention
     required...........................
219.205  Specimen collection and
 handling:
    (a) Failure to observe requirements            2,500           5,000
     with respect to specimen
     collection, marking and handling...
    (b) Failure to provide properly                2,500           5,000
     prepared forms with specimens......
    (d) Failure to promptly or properly            2,500           5,000
     forward specimens..................
219.207  Fatality:
    (a) Failure to test.................           5,000           7,500
    (a)(1) Failure to ensure timely                2,500           5,000
     collection and shipment of required
     specimens..........................
    (b) Failure to request assistance              2,500           5,000
     when necessary.....................
219.209  Reports of tests and refusals:
    (a)(1) Failure to provide telephonic           1,000           2,000
     report.............................
    (b) Failure to provide written                 1,000           2,000
     report of refusal to test..........
    (c) Failure to maintain report                 1,000           2,000
     explaining why test not conducted
     within 4 hours.....................
219.211  Analysis and follow-up:
    (c) Failure of MRO to report review            2,500           5,000
     of positive results to FRA.........

      Subpart D--Testing for Cause

219.300  Mandatory reasonable suspicion
 testing:
    (a)(1) Failure to test when                    5,000           7,500
     reasonable suspicion criteria met..
    (a)(2) Tested when reasonable                  5,000           7,500
     suspicion criteria not met.........
219.301  Testing for reasonable cause:
    (a) Event did not occur during daily           2,500           5,000
     tour...............................
    (b)(2) Tested when accident/incident           5,000           7,500
     criteria not met...................
    (b)(3) Tested when operating rules             5,000           7,500
     violation criteria not met.........
219.302  Prompt specimen collection:
    (a) Specimen collection not                    2,500           5,000
     conducted promptly.................

  Subpart E--Identification of Troubled
                Employees

219.401  Requirement for policies:
    (b) Failure to publish and/or                  2,500           5,000
     implement required policy..........
219.407  Alternate policies:
    (c) Failure to file agreement or               2,500           5,000
     other document or provide timely
     notice or revocation...............

     Subpart F--Pre-Employment Tests

219.501  Pre-employment tests:
    (a) Failure to perform pre-                    2,500           5,000
     employment drug test before first
     time employee performs covered
     service............................

   Subpart G--Random Testing Programs

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

[[Page 233]]


219.602  Administrator's determination
 of drug testing rate:
    (f) Total number of tests below                2,500           5,000
     minimum random drug testing rate...
219.603  Participation in drug testing:
    Failure to document reason for not             2,500           5,000
     testing selected employee..........
219.607  Railroad random alcohol
 programs:
    (a)(1) Failure to file a random                2,500           5,000
     alcohol program....................
    (a)(2) Failure to file amendment to            2,500           5,000
     program............................
    (b) Failure to meet random testing             2,500           5,000
     criteria...........................
    (b)(1) Failure to use a neutral                2,500           5,000
     selection process..................
    (b)(5) Testing when employee not on            2,500           5,000
     duty...............................
    (b)(8) Advance notice provided to              2,500           5,000
     employee...........................
219.607A  Failure to include covered               2,500           5,000
 service employee in pool...............
219.608  Administrator's determination
 of random alcohol testing rate:
    (e) Total number of tests below                2,500           5,000
     minimum random alcohol testing rate
219.609  Participation in alcohol
 testing:
    Failure to document reason for not             2,500           5,000
     testing selected employee..........

   Subpart H--Drug and Alcohol Testing
               Procedures

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

        Subpart I--Annual Report

219.801  Reporting alcohol misuse
 prevention program results in a
 management information system:
    (a) Failure to submit MIS report on            2,500           5,000
     time...............................
    (c) Failure to submit accurate MIS             2,500           5,000
     report.............................
    (d) Failure to include required data           2,500           5,000
219.803  Reporting drug misuse
 prevention program results in a
 management information system:
    (c) Failure to submit accurate MIS             2,500           5,000
     report.............................
    (d) Failure to submit MIS report on            2,500           5,000
     report.............................
    (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                2,500           5,000
     required to be kept by Part 40.....
    (b) Failure to maintain records                2,500           5,000
     required to be kept for five years.
    (c) Failure to maintain records                2,500           5,000
     required to be kept for two years..
219.903  Retention of Drug Testing
 Records:
    (a) Failure to maintain records                2,500           5,000
     required to be kept by Part 40.....
    (b) Failure to maintain records                2,500           5,000
     required to be kept for five years.
    (c) Failure to maintain records                2,500           5,000
     required to be kept for two years..
219.905  Access to facilities and
 records:
    (a) Failure to release records in              2,500           5,000
     this subpart in accordance with
     Part 40............................
    (b) Failure to permit access to                2,500           5,000
     facilities.........................
    (c) Failure to provide access to               2,500           5,000
     results of railroad alcohol and
     drug testing programs..............
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The FRA Administrator reserves the right to assess a
  penalty of up to $22,000 for any violation, including ones not listed
  in this penalty schedule, where circumstances warrant. See 49 CFR Part
  209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR Part 219; and
  if more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code'' (e.g.,
  ``A''), which is used to facilitate assessment of civil penalties. For
  convenience, penalty citations will cite the CFR section and the
  penalty code, if any (e.g., ``Sec. 219.11A'') FRA reserves the right,
  should litigation become necessary, to substitute in its complaint the
  CFR citation in place of the combined CFR and penalty code citation.

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

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

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

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

(Surviving Employees)

    2.0  Surviving Employees.

[[Page 234]]

    This unit provides detailed procedures for collecting post-accident
toxicological specimens from surviving employees involved in train
accidents and train incidents, as required by Subpart C of this part.
Subpart C specifies qualifying events and employees required to be
tested.
    2.1  Collection Procedures; General.
    a. All forms and supplies necessary for collection and transfer of
blood and urine specimens for three surviving employees can be found in
the FRA post-accident shipping box, which is made available to the
collection site by the railroad representative.
    b. Each shipping box contains supplies for blood/urine collections
from three individuals, including instructions and necessary forms. The
railroad is responsible for ensuring that materials are fresh, complete
and meet FRA requirements.
    2.1.1  Responsibility of the Railroad Representative.
    a. In the event of an accident/incident for which testing is
required under Subpart C of this part, the railroad representative shall
follow the designated set of instructions, and, upon arrival at the
independent medical facility, promptly present to the collection
facility representative a post-accident shipping box or boxes with all
remaining sets of instructions. (Each box contains supplies to collect
specimens from three employees.) The railroad representative shall
request the collection facility representative to review the
instructions provided and, through qualified personnel, provide for
collection of the specimens according to the procedures set out.
    b. The railroad representative shall undertake the following
additional responsibilities--
    1. Complete Form FRA 6180.73 (revised), Accident Information
Required for Post-Accident Toxicological Testing (49 CFR Part 219),
describing the testing event and identifying the employees whose
specimens are to be deposited in the shipping box.
   2. As necessary to verify the identity of individual employees,
affirm the identity of each employee to the medical facility personnel.
    3. Consistent with the policy of the collection facility, monitor
the progress of the collection procedure.
    Warning: Monitor but do not directly observe urination or otherwise
disturb the privacy of urine or blood collection. Do not handle specimen
containers, bottles or tubes (empty or full). Do not become part of the
collection process.
    2.1.2  Employee Responsibility.
    a. An employee who is identified for post-accident toxicological
testing shall cooperate in testing as required by the railroad and
personnel of the independent medical facility. Such cooperation will
normally consist of the following, to be performed as requested:
    1. Provide a blood specimen, which a qualified medical professional
or technician will draw using a single-use sterile syringe. The employee
should be seated for this procedure.
    2. Provide, in the privacy of an enclosure, a urine specimen into a
plastic collection cup. Deliver the cup to the collector.
    3. Do not let the blood and urine specimens that you provided leave
your sight until they have been properly sealed and initialed by you.
    4. Certify the statement in Step 4 of the Post-Accident Testing
Blood/Urine Custody and Control Form (49 CFR 219) (Form FRA F 6180.74
(revised)).
    5. If required by the medical facility, complete a separate consent
form for taking of the specimens and their release to FRA for analysis
under the FRA rule.
    Note: The employee may not be required to complete any form that
contains any waiver of rights the employee may have in the employment
relationship or that releases or holds harmless the medical facility
with respect to negligence in the collection.
    2.2  The Collection.
    Exhibit C-1 contains instructions for collection of specimens for
post-accident toxicology from surviving employees. These instructions
shall be observed for each collection. Instructions are also contained
in each post-accident shipping box and shall be provided to collection
facility personnel involved in the collection and/or packaging of
specimens for shipment.
(Post Mortem Collection)

    3.0  Fatality.
    This unit provides procedures for collecting post-accident body
fluid/tissue specimens from the remains of employees killed in train
accidents and train incidents, as required by Subpart C of this part.
Subpart C specifies qualifying events and employees required to be
tested.
    3.1  Collection.
    In the event of a fatality for which testing is required under
Subpart C of this part, the railroad shall promptly make available to
the custodian of the remains a post-accident shipping box. The railroad
representative shall request the custodian to review the instructions
contained in the shipping box and, through qualified medical personnel,
to provide the specimens as indicated.

(Surviving Employees and Fatalities)

    4.0  Shipment.
    a. The railroad is responsible for arranging overnight
transportation of the sealed shipping box containing the specimens. When
possible without incurring delay, the box should be delivered directly
from the collection personnel providing the specimens to an

[[Page 235]]

overnight express service courier. If it becomes necessary for the
railroad to transport the box from point of collection to point of
shipment, then--
    1. Individual kits and the shipping box shall be sealed by
collection personnel before the box is turned over to the railroad
representative;
    2. The railroad shall limit the number of persons handling the
shipping box to the minimum necessary to provide for transportation;
    3. If the shipping box cannot immediately be delivered to the
express carrier for transportation, it shall be maintained in secure
temporary storage; and
    4. The railroad representatives handling the box shall document
chain of custody of the shipping box and shall make available such
documentation to FRA on request.

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

                               A. Purpose

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

                        B. Prepare for Collection

    a. Railroad employees have consented to provision of specimens for
analysis by the Federal Railroad Administration as a condition of
employment (49 CFR 219.11). A private, controlled area should be
designated for collection of specimens and completion of paperwork.
    b. Only one specimen should be collected at a time, with each
employee's blood draw or urine collection having the complete attention
of the collector until the specific specimen has been labeled, sealed
and documented.
    c. Please remember two critical rules for the collections:
    d. All labeling and sealing must be done in the sight of the donor,
with the specimen never having left the donor's presence until the
specimen has been labeled, sealed and initialed by the donor.
    e. Continuous custody and control of blood and urine specimens must
be maintained and documented on the forms provided. In order to do this,
it is important for the paperwork and the specimens to stay together.
    f. To the extent practical, blood collection should take priority
over urine collection. To limit steps in the chain of custody, it is
best if a single collector handles both collections from a given
employee.
    g. You will use a single Post-Accident Testing Blood/Urine Custody
and Control Form (FRA Form 6108.74 (revised)), consisting of six Steps
to complete the collection for each employee. We will refer to it as the
Control Form.

                          C. Identify the Donor

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

                              D. Draw Blood

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

                            E. Collect Urine

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

[[Page 236]]

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

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

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

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

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

                   F. Seal the Individual Employee Kit

    a. The blood and urine specimens have now been collected for this
employee. The blood/urine specimens will now be sealed into the
individual employee kit, while all paperwork will be retained for
further completion. After rechecking to see that each specimen is
properly labeled and initialed, close the plastic bag to contain any
leakage in transportation, and apply the kit security seal to the small
individual kit. As collector, sign and date the kit seal.
    b. Before collecting specimens from the next employee, complete the
next line on the chain-of-custody block showing release of the blood and
urine by yourself for the purpose of ``Shipment'' and receipt by the
courier service or railroad representative that will provide
transportation of the box, together with the date.

                    G. Complete Treatment Information

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

[[Page 237]]

                     H. Prepare the Box for Shipment

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

                             I. Ship the Box

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

                             ``TROUBLE BOX''

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

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

    To the Medical Examiner, Coroner, or Pathologist:
    a. In compliance with Federal safety regulations (49 CFR Part 219),
a railroad representative has requested that you obtain specimens for
toxicology from the remains of a railroad employee who was killed in a
railroad accident or incident. The deceased consented to the taking of
such specimens, as a matter of Federal law, by performing service on the
railroad (49 CFR 219.11(f)).
    b. Your assistance is requested in carrying out this program of
testing, which is important to the protection of the public safety and
the safety of those who work on the railroads.

                              A. Materials:

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

[[Page 238]]

supplies. If the box is not immediately available, please proceed using
supplies available to you that are suitable for forensic toxicology.

             B. Specimens requested, in order of preference:

    a. Blood--20 milliliters or more. Preferred sites: intact femoral
vein or artery or peripheral vessels (up to 10 ml, as available) and
intact heart (20 ml). Deposit blood in gray-stopper tubes individually
by site and shake to mix specimen and preservative.
    Note: If uncontaminated blood is not available, bloody fluid or
clots from body cavity may be useful for qualitative purposes; but do
not label as blood. Please indicate source and identity of specimen on
label of tube.
    b. Urine--as much as 100 milliliters, if available. Deposit into
plastic bottles provided.
    c. Vitreous fluid--all available, deposited into smallest available
tube (e.g., 3 ml) with 1% sodium fluoride, or gray-stopper tube
(provided). Shake to mix specimen and preservative.
    d. If available at autopsy, organs--50 to 100 grams each of two or
more of the following in order preference, as available: liver, bile,
brain, kidney, spleen, and/or lung. Specimens should be individually
deposited into zip-lock bags or other clean, single use containers
suitable for forensic specimens.
    e. If vitreous or urine is not available, please provide--
    1. Spinal fluid--all available, in 8 ml container (if available)
with sodium fluoride or in gray-stopper tube; or, if spinal fluid cannot
be obtained,
    2. Gastric content--up to 100 milliliters, as available, into
plastic bottle.

                         C. Specimen collection:

    a. Sampling at time of autopsy is preferred so that percutaneous
needle puncturing is not necessary. However, if autopsy will not be
conducted or is delayed, please proceed with sampling.
    b. Blood specimens should be taken by sterile syringe and deposited
directly into evacuated tube, if possible, to avoid contamination of
specimen or dissipation of volatiles (ethyl alcohol).
    Note: If only cavity fluid is available, please open cavity to
collect specimen. Note condition of cavity.
    c. Please use smallest tubes available to accommodate available
quantity of fluid specimen (with 1% sodium fluoride).

                  D. Specimen identification, sealing:

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

                              E. Handling:

    a. If specimens cannot be shipped immediately as provided below,
specimens other than blood may be immediately frozen. Blood specimens
should be refrigerated, but not frozen.
    b. All specimens and documentation should be secured from
unauthorized access pending delivery for transportation.

                             F. Information:

    a. If the railroad has not already done so, please place the name of
the subject at the top of the Control Form (STEP 1). You are requested
to complete STEP 2 of the form, annotating it by writing the word
``FATALITY,'' listing the specimens provided, providing any further
information under ``Remarks'' or at the bottom of the form. If it is
necessary to transfer custody of the specimens from the person taking
the specimens prior to preparing the box for shipment, please use the
blocks provided in STEP 5 to document transfer of custody.
    b. The railroad representative will also provide Accident
Information Required for Post-Accident Toxicological Testing (49 CFR
Part 219), Form FRA 6180.73 (revised). Both forms should be placed in
the shipping box when completed; but you may retain the designated
medical facility copy of each form for your records.

                      G. Packing the shipping box:

    a. Place urine bottles and blood tubes in the sponge liner in the
individual kit, close the biohazard bag zipper, close the kit and apply
the kit custody seal to the kit. You may use additional kits for each
tissue specimen, being careful to identify specimen by tissue, name of
deceased, and specimen set identification number. Apply kit security
seals to individual kits and initial across all seals. Place all forms
in the zip-lock bag and seal securely.
    b. Place the bag in the shipping box. Do not put forms in with the
specimens. Seal the shipping box with the seal provided and initial and
date across the seal.

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

                          H. Shipping the box:

    a. The railroad must arrange to have the box shipped overnight air
express or (if express service is unavailable) by air freight, prepaid,
to FRA's designated laboratory. When possible, but without incurring
delay, deliver the sealed shipping box directly to the express courier
or the air freight representative.
    b. If courier pickup is not immediately available at your facility,
the railroad is required to transport the sealed shipping box to the
nearest point of shipment via air express, air freight or equivalent
means.
    c. If the railroad receives the sealed shipping box to arrange
shipment, please record under ``Supplemental Information'' on the
Control Form, the name of the railroad official taking custody.

                                I. Other:

    FRA requests that the person taking the specimens annotate the
Control Form under ``Supplemental Information'' if additional
toxicological analysis will be undertaken with respect to the fatality.
FRA reports are available to the coroner or medical examiner on request.