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pdfCFR Part 219, effective June 12, 2017
Subpart A—General
§219.1 Purpose and scope.
§219.3 Application.
§219.4 Recognition of a foreign railroad's workplace testing program.
§219.5 Definitions.
§219.7 Waivers.
§219.9 Responsibility for compliance.
§219.11 General conditions for chemical tests.
§§219.13--219.15 [Reserved]
§219.17 Construction.
§219.19 [Reserved]
§219.21 Information collection.
§219.23 Railroad policies.
§219.25 Previous employer drug and alcohol checks.
Subpart B—Prohibitions
§219.101
§219.102
§219.103
§219.104
§219.105
§219.107
Alcohol and drug use prohibited.
Prohibition on abuse of controlled substances.
Prescribed and over-the-counter drugs.
Responsive action.
Railroad's duty to prevent violations.
Consequences of unlawful refusal.
Subpart C—Post-Accident Toxicological Testing
§219.201
§219.203
§219.205
§219.207
§219.209
§219.211
§219.213
Events for which testing is required.
Responsibilities of railroads and employees.
Specimen collection and handling.
Fatality.
Reports of tests and refusals.
Analysis and follow-up.
Unlawful refusals; consequences.
Subpart D—Reasonable Suspicion Testing
§219.301 Mandatory reasonable suspicion testing.
§219.303 Reasonable suspicion observations.
§219.305 Prompt specimen collection; time limitations.
Subpart E—Reasonable Cause Testing
§219.401
§219.403
§219.405
§219.407
§219.409
Authorization for reasonable cause testing.
Requirements for reasonable cause testing.
Documentation requirements.
Prompt specimen collection; time limitations.
Limitations on authority.
Subpart F—Pre-Employment Tests
§219.501
§219.502
§219.503
§219.505
Pre-employment drug testing.
Pre-employment alcohol testing.
Notification; records.
Non-negative Tests and Refusals.
Revisions as of June 7, 2017
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
Subpart G—Random Alcohol and Drug Testing Programs
§219.601
§219.603
§219.605
§219.607
§219.609
§219.611
§219.613
§219.615
§219.617
§219.619
§219.621
§219.623
§219.625
Purpose and scope of random testing programs.
General requirements for random testing programs.
Submission and approval of random testing plans.
Requirements for random testing plans.
Inclusion of contractor employees and volunteers in random testing plans.
Random alcohol and drug testing pools.
Random testing selections.
Random testing collections.
Participation in random alcohol and drug testing.
Positive alcohol and drug tests and refusals; procedures.
Use of service agents.
Records.
FRA Administrator’s determination of random alcohol and drug testing rates.
Subpart H—Drug and Alcohol Testing Procedures
§219.701 Standards for drug and alcohol testing.
Subpart I—Annual Report
§219.800 Annual reports.
§§219.801-219.803 [Reserved]
Subpart J—Recordkeeping Requirements
§219.901 Retention of alcohol and drug testing records.
§219.903 Access to facilities and records.
§219.905 [Removed and reserved]
Subpart K—Referral Policies
§219.1001
§219.1003
§219.1005
§219.1007
Requirement for referral programs
Referral program conditions
Optional provisions
Alternative programs
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
PART 219 – CONTROL OF ALCOHOL AND DRUG USE
AUTHORITY: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 28 U.S.C. 2461, note; Sec. 412,
Div. A, Pub. L. 110-432, 122 Stat. 4889 (49 U.S.C. 20140, note); and 49 CFR 1.89.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
Subpart A - General
§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.
§219.3 Application.
(a)
General. This part applies to all railroads and contractors, except as provided in paragraphs
(b), (c), and (d) of this section, and except for:
(1)
Railroads that operate only on track inside an installation that is not part of the general
railroad system of transportation (i.e. plant railroads, as defined in § 219.5);
(2)
Tourist, scenic, historic, or excursion operations that are not part of the general railroad system
of transportation, as defined in § 219.5; or
(3)
Rapid transit operations in an urban area that are not connected to the general railroad system
of transportation.
(b)
Annual report requirements. (1) Subpart I of this part does not apply to any domestic or
foreign railroad that has fewer than 400,000 total annual employee work hours, including
hours worked by all employees of the railroad, regardless of occupation, not only while in the
United States, but also while outside the United States.
(2)
Subpart I of this part does not apply to any contractor that performs regulated service
exclusively for railroads with fewer than 400,000 total annual employee work hours, including
hours worked by all employees of the railroad, regardless of occupation, not only while in the
United States, but also while outside the United States.
(3)
When a contractor performs regulated service for at least one railroad with fewer than 400,000
total annual employee work hours, including hours worked by all employees of the railroad,
regardless of occupation, not only while in the United States, but also while outside the United
States, subpart I of this part applies as follows:
(i)
A railroad with more than 400,000 total annual employee work hours must comply with
subpart I regarding any contractor employees it integrates into its own alcohol and drug testing
program under this part; and
(ii)
If a contractor establishes its own independent alcohol and drug testing program that meets the
requirements of this part and is acceptable to the railroad, the contractor must comply with
subpart I if it has 200 or more regulated employees.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(c)
Small railroad exception. (1) Subparts E and G of this part do not apply to small railroads,
and a small railroad may not perform the Federal alcohol and drug testing authorized by these
subparts. For purposes of this part, a small railroad means a railroad that:
(i)
Has a total of 15 or fewer employees who are covered by the hours of service laws at 49
U.S.C. 21103, 21104, or 21105, or who would be subject to the hours of service laws at 49
U.S.C. 21103, 21104, or 21105 if their services were performed in the United States; and
(ii)
Does not have joint operations, as defined in §219.5, with another railroad that operates in the
United States, except as necessary for purposes of interchange.
(2)
An employee performing only MOW activities, as defined in § 219.5, does not count towards
a railroad’s total number of covered employees for the purpose of determining whether it
qualifies for the small railroad exception.
(3)
A contractor performing MOW activities exclusively for small railroads also qualifies for the
small railroad exception (i.e., is excepted from the requirements of subparts E and G of this
part). A contractor is not excepted if it performs MOW activities for at least one or more
railroads that does not qualify for the small railroad exception under this section.
(4)
If a contractor is subject to all of part 219 of this chapter because it performs regulated service
for multiple railroads, not all of which qualify for the small railroad exception, the
responsibility for ensuring that the contractor complies with subparts E and G of this part is
shared between the contractor and any railroad that uses the contractor that does not qualify
for the small railroad exception.
(d)
Foreign railroad. (1) This part does not apply to the operations of a foreign railroad that takes
place outside the United States. A foreign railroad is required to conduct post-accident
toxicological testing or reasonable suspicion testing only for operations that occur within the
United States.
(2)
Subparts F, G, and K of this part do not apply to an employee of a foreign railroad whose
primary reporting point is outside the United States if that employee is:
(i)
Performing train or dispatching service on that portion of a rail line in the United States
extending up to 10 route miles from the point that the line crosses into the United States from
Canada or Mexico; or
(ii)
Performing signal service in the United States.
§219.4
(a)
Recognition of a foreign railroad’s workplace testing program.
General. A foreign railroad may petition the FRA Associate Administrator for Safety for
recognition of a workplace testing program promulgated under the laws of its home country as
a compatible alternative to the return-to-service requirements in subpart B of this part and the
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requirements of subparts, F, G, and K of this part with respect to its employees whose primary
reporting point is outside the United States but who enter the United States to perform train or
dispatching service and with respect to its final applicants for, or its employees seeking to
transfer for the first time to, duties involving such service.
(1)
To be so considered, the petition must document that the foreign railroad's workplace testing
program contains equivalents to subparts B, F, G, and K of this part:
(i)
Pre-employment drug testing;
(ii)
A policy dealing with co-worker and self-reporting of alcohol and drug abuse problems;
(iii)
Random drug and alcohol testing;
(iv)
Return-to-duty testing; and
(v)
Testing procedures and safeguards reasonably comparable in effectiveness to all applicable
provisions of the United States Department of Transportation Procedures for Workplace Drug
and Alcohol Testing Programs (part 40 of this title).
(2)
In approving a program under this section, the FRA Associate Administrator for Safety may
impose conditions deemed necessary.
(b)
Alternative programs. (1) Upon FRA's recognition of a foreign railroad's workplace alcohol
and drug use program as compatible with the return-to-service requirements in subpart B and
the requirements of subparts F, G, and K of this part, the foreign railroad must comply with
either the specified provisions of § 219.4 or with the standards of the recognized program, and
any imposed conditions, with respect to its employees whose primary reporting point is
outside the United States and who perform train or dispatching service in the United States.
The foreign railroad must also, with respect to its final applicants for, or its employees seeking
to transfer for the first time to, duties involving such train or dispatching service in the United
States, comply with either subpart F of this part or the standards of its recognized program.
(2)
The foreign railroad must comply with subparts A (general), B (prohibitions, other than the
return-to-service provisions in paragraph (d) of this section), C (post-accident toxicological
testing), D (reasonable suspicion testing), I (annual report requirements), and J (recordkeeping
requirements) of this part. Drug or alcohol testing required by these subparts (except for postaccident toxicological required by subpart C) must be conducted in compliance with all
applicable provisions of the DOT Procedures for Workplace Drug and Alcohol Testing
Programs (part 40 of this title).
(c)
Petitions for recognition of a foreign railroad's workplace testing programs. Each petition for
recognition of a foreign workplace testing program shall contain:
(1)
The name, title, address, and telephone number of the primary person to be contacted with
regard to review of the petition;
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(2)
The requirements of the foreign railroad workplace testing program to be considered for
recognition;
(3)
Appropriate data or records, or both, for FRA to consider in determining whether the foreign
railroad workplace testing program is equivalent to the minimum standards contained in this
part and provides at least an equivalent level of safety.
(d)
FEDERAL REGISTER notice. FRA will publish a notice in the FEDERAL REGISTER concerning
each petition under paragraph (c) of this section that it receives.
(e)
Comment. Not later than 30 days from the date of publication of the notice in the FEDERAL
REGISTER concerning each petition under paragraph (c) of this section, any person may
comment on the petition.
(1)
A comment shall set forth specifically the basis upon which it is made, and contain a concise
statement of the interest of the commenter in the proceeding.
(2)
Any comment on a petition should reference the FRA docket and notice numbers. A
commenter may submit a comment and related material by only one of the following methods:
(i)
Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for
submitting comments on the Federal Docket Management System electronic docket site.
(ii)
Fax. 1-202-493-2251.
(iii)
Mail. U.S. Department of Transportation, Docket Operations (M-30), West Building Ground
Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(iv)
Hand delivery. Room W12-140 on the ground floor of the West Building, 1200 New Jersey
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except
Federal Holidays.
(3)
The commenter shall certify that a copy of the comment was served on the petitioner. Note that
all petitions received will be posted without change to https://www.regulations.gov including
any personal information provided.
(f)
Disposition of petitions. (1) If FRA finds that the petition complies with the requirements of
this section and that the foreign railroad's workplace testing program is compatible with the
minimum standards of this part, the petition will be granted, normally within 90 days of its
receipt. If the petition is neither granted nor denied within 90 days, the petition remains
pending for decision. FRA may attach special conditions to the approval of any petition.
Following the approval of a petition, FRA may reopen consideration of the petition for cause.
(2)
If FRA finds that the petition does not comply with the requirements of this section or that the
foreign railroad's workplace testing program is not compatible with the minimum standards of
this part, the petition will be denied, normally within 90 days of its receipt.
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(3)
When FRA grants or denies a petition, or reopens consideration of the petition, written notice
is sent to the petitioner and other interested parties.
(g)
Program recognition. If its program has been recognized, the foreign railroad shall maintain a
letter on file indicating that it has elected to extend specified elements of the recognized
program to its operations in the United States. Once granted, program recognition remains
valid so long as the program retains these elements and the foreign railroad complies with the
program requirements.
§219.5 Definitions.
As used in this part only—
Accident or incident reportable under part 225 does not include a case that is classified as “covered
data” under § 225.5 of this chapter (i.e., employee injury/illness cases reportable exclusively because
a physician or other licensed health care professional either made a one-time topical application of a
prescription-strength medication to the employee's injury or made a written recommendation that the
employee: Take one or more days away from work when the employee instead reports to work (or
would have reported had he or she been scheduled) and takes no days away from work in connection
with the injury or illness; work restricted duty for one or more days when the employee instead works
unrestricted (or would have worked unrestricted had he or she been scheduled) and takes no other
days of restricted work activity in connection with the injury or illness; or take over-the-counter
medication at a dosage equal to or greater than the minimum prescription strength, whether or not the
employee actually takes the medication).
Administrator means the Administrator of the Federal Railroad Administration or the Administrator’s
delegate.
Associate Administrator means the Associate Administrator of the Federal Railroad Administration or
the Associate Administrator’s delegate.
Category of regulated employee means a broad class of either covered service or maintenance-of-way
employees (as defined in this section). For the purpose of determining random testing rates under §
219.625, if an individual performs both covered service and maintenance-of-way activities, he or she
performs in the category of regulated employee that corresponds with the type of regulated service
comprising more than 50 percent of his or her regulated service.
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).
Contractor means a contractor or subcontractor performing functions for a railroad.
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 an employee (as defined in this section to include an employee, volunteer,
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
or probationary employee performing activities for a railroad or a contractor to a railroad) who is
performing covered service under the hours of service laws at 49 U.S.C. 21101, 21104, or 21105 or
who is subject to performing such covered service, regardless of whether the person has performed or
is currently performing covered service. (An employee is not a “covered employee” under this
definition exclusively because he or she is an employee for purposes of 49 U.S.C. 21106). For the
purposes of pre-employment testing only, the term “covered employee” includes a person applying to
perform covered service in the United States.
Covered service means service in the United States as a train employee, a dispatching service
employee, or a signal employee, as those terms are defined at 49 U.S.C. 21101, but does not include
any period the employee is relieved of all responsibilities and is free to come and go without
restriction.
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.
Cross-border operation means a rail operation that crosses into the United States from Canada or
Mexico.
Domestic railroad means a railroad that is incorporated in the United States.
DOT, The Department, or DOT Agency means all DOT agencies, including, but not limited to, the
Federal Aviation Administration (FAA), the Federal Railroad Administration (FRA), the Federal
Motor Carrier Safety Administration (FMCSA), the Federal Transit Administration (FTA), the
National Highway Traffic Safety Administration (NHTSA), the Pipeline and Hazardous Materials
Safety Administration (PHMSA), the United States Coast Guard (USCG) (for purposes of part 40
coverage only), and the Office of the Secretary (OST). These terms include any designees of a DOT
agency.
DOT-regulated employee means any person who is designated in a DOT agency regulation as subject
to drug testing and/or alcohol testing. The term includes individuals currently performing DOT safetysensitive functions designated in DOT agency regulations and applicants for employment subject to
pre-employment testing. For purposes of drug testing conducted under the provisions of 49 CFR part
40, the term employee has the same meaning as the term “donor” as found on the Custody and
Control Form and related guidance materials produced by the Department of Health and Human
Services.
DOT safety-sensitive duties or DOT safety-sensitive functions means functions or duties designated by
a DOT agency, the performance of which makes an individual subject to the drug testing and/or
alcohol testing requirements of that DOT agency. For purposes of this part, regulated service has
been designated by FRA as a DOT safety-sensitive duty or function.
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.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
Drug and Alcohol Counselor or DAC means a person who meets the credentialing and qualification
requirements described in § 242.7 of this chapter.
Employee means any individual (including a volunteer or a probationary employee) performing
activities for a railroad or a contractor to a railroad.
Evacuation means the mandatory or voluntary relocation of at least one person who is not a railroad
employee for the purpose of avoiding exposure to a hazardous material release. It does not include
the closure of public transportation roadways for the purpose of containing a hazardous material
release, unless the closure is accompanied by an evacuation order.
Flagman or Flagger means any person designated by the railroad to direct or restrict the movement of
trains past a point on a track to provide on-track safety for maintenance-of-way employees, while
engaged solely in performing that function.
Fouling a track means the placement of an individual or an item of equipment in such proximity to a
track that the individual or equipment could be struck by a moving train or on-track equipment, or in
any case is within four feet of the field side of the near running rail.
Foreign railroad means a railroad that is incorporated outside the United States.
FRA means the Federal Railroad Administration, United States Department of Transportation.
FRA representative means the Associate Administrator for Railroad 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, the Chief Counsel's delegate, or FRA’s Drug and Alcohol Program
oversight contractor.
Hazardous material means a commodity designated as a hazardous material by part 172 of this title.
Highway-rail grade crossing means:
(1)
A location where a public highway, road, or street, or a private roadway, including associated
sidewalks, crosses one or more railroad tracks at grade; or
(2)
A location where a pathway explicitly authorized by a public authority or a railroad carrier that
is dedicated for the use of non-vehicular traffic, including pedestrians, bicyclists, and others
that cross one or more railroad tracks at grade. The term “sidewalk” means that portion of a
street between the curb line, or the lateral line of a roadway, and the adjacent property line or,
on easements of private property, that portion of a street that is paved or improved and intended
for use by pedestrians.
Highway-rail grade crossing accident/incident means any impact between railroad on-track
equipment and a highway user at a highway-rail grade crossing. The term “highway user” includes
pedestrians, as well as automobiles, buses, trucks, motorcycles, bicycles, farm vehicles, and all other
modes of surface transportation motorized and un-motorized.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
Impact accident, (1) Impact accident means a train accident, as defined in this section , consisting
either of—
(i)
A head-on or rear-end collision between on-track equipment;
(ii)
A side collision, derailment collision, raking collision, switching collision, or “other impact
accident,” as defined by this section;
(iii)
Impact with a deliberately-placed obstruction, such as a bumping post (but not a derail); or
(iv)
Impact between on-track equipment and any railroad equipment fouling the track, such as an
impact between a train and the boom of an off-rail vehicle.
(2)
The definition of “impact accident” does not include an impact with naturally-occurring
obstructions such as fallen trees, rock or snow slides, livestock, etc.
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.
Joint operations means rail operations conducted by more than one railroad on the same track (except
for minimal joint operations necessary for the purpose of interchange), regardless of whether such
operations are the result of contractual arrangements between the railroads, order of a governmental
agency or a court of law, or any other legally binding directive.
For purposes of this part only, minimal joint operations are considered necessary for the purpose of
interchange when:
(1)
The maximum authorized speed for operations on the shared track does not exceed 20 mph;
(2)
Operations are conducted under operating rules that require every locomotive and train to
proceed at a speed that permits stopping within one half the range of vision of the locomotive
engineer;
(3)
The maximum distance for operations on the shared track does not exceed 3 miles; and
(4)
Any operations extending into another railroad’s yard are for the sole purpose of setting out or
picking up cars on a designated interchange track.
Maintenance-of-way employee or MOW employee means a roadway worker as defined in § 214.7 of
this chapter.
Medical facility means a hospital, clinic, physician's office, or laboratory where post-accident
toxicological testing specimens can be collected according to recognized professional standards, and
where an individual’s post-accident medical needs can be attended to.
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Medical practitioner means a physician or dentist licensed or otherwise authorized to practice by the
state.
Non-controlled substance means any substance (including prescription medications, over-the-counter
products, dietary supplements, and herbal preparations) which is not currently regulated under 21
U.S.C. 801-971 or 21 CFR part 1308.
Non-peer means a supervisor (other than a co-worker), labor organization representative, or family
member of a regulated employee.
NTSB means the National Transportation Safety Board.
On-track or fouling equipment means any railroad equipment that is positioned on the rails or that is
fouling the track, and includes, but is not limited to, the following: a train, locomotive, cut of cars,
single car, motorcar, yard switching train, work train, inspection train, track motorcar, highway-rail
vehicle, push car, crane, or other roadway maintenance machine, such as a ballast tamping machine, if
the machine is positioned on or over the rails or is fouling the track.
Other impact accident means an accident or incident, not classified as a head-on, rear-end, side,
derailment, raking, or switching collision, that involves contact between on-track or fouling
equipment. This includes impacts in which single cars or cuts of cars are damaged during operations
involving switching, train makeup, setting out, etc.
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.
Person means 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, such as a service agent performing functions
under part 40 of this title; and any employee of such owner, manufacturer, lessor, lessee, or
independent contractor.
Plant railroad means a plant or installation that owns or leases a locomotive, uses that locomotive to
switch cars throughout the plant or installation, and is moving goods solely for use in the facility’s
own industrial processes. The plant or installation could include track immediately adjacent to the
plant or installation if the plant railroad leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that trackage by the plant railroad and
the general system railroad for purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for other entities, even if solely within
the confines of the plant or installation, rather than for its own purposes or industrial processes, will
not be considered a plant railroad because the performance of such activity makes the operation part
of the general railroad system of transportation.
Positive rate for random drug testing means the number of verified positive results for random drug
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tests conducted under this part plus the number of refusals of random drug tests required by this part,
divided by the total number of random drug tests results (i.e., positives, negatives, and refusals) under
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 non-highway ground transportation that runs on rails or electromagnetic
guideways, and any person providing such transportation, including –
(1)
Commuter or other short-haul railroad passenger service in a metropolitan or suburban area
and commuter railroad service that was operated by the Consolidated Rail Corporation on
January 1, 1979; and
(2)
High speed ground transportation systems that connect metropolitan areas, without regard to
whether those systems use new technologies not associated with traditional railroads; but does
not include rapid transit operations in an urban area that are not connected to the general
railroad system of transportation.
Railroad property damage or damage to railroad property means damage to railroad property
(specifically, on-track equipment, signals, track, track structure, or roadbed) and must be calculated
according to the provisions for calculating costs and reportable damage in the FRA Guide for
Preparing Accident/Incident Reports (see § 225.21 of this chapter for instructions on how to obtain a
copy). Generally, railroad property damage includes labor costs and all other costs to repair or replace
in-kind damaged on-track equipment, signals, track, track structures (including bridges and tunnels),
or roadbed. (Labor costs that must be accounted for include hourly wages, transportation costs, and
hotel expenses.) It does not include the cost of clearing a wreck; however, additional damage to the
above-listed items caused while clearing the wreck must be included in the damage estimate. It also
includes the cost of rental and/or operation of machinery such as cranes and bulldozers, including the
services of contractors, to replace or repair the track right-of-way and associated structures. Railroad
property damage does not include damage to lading. Trailers/containers on flatcars are considered to
be lading and damage to these is not to be included in on-track equipment damage. Damage to a flat
car carrying a trailer/container, however, is included in railroad property damage. Railroads should
refer directly to the FRA Guide for Preparing Accident/Incident Reports for additional guidance on
what constitutes railroad property damage.
Raking collision means a collision between parts or lading of a consist on an adjacent track, or with a
structure such as a bridge.
Regulated employee means a covered employee or maintenance-of-way employee who performs
regulated service for a railroad subject to the requirements of this part.
Regulated service means covered service or maintenance-of-way activities, the performance of which
makes an employee subject to the requirements of this part.
Reportable injury means an injury reportable under part 225 of this chapter except for an injury that is
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classified as “covered data” under §225.5 of this chapter (i.e., employee injury/illness cases reportable
exclusively because a physician or other licensed health care professional either made a one-time
topical application of a prescription-strength medication to the employee's injury or made a written
recommendation that the employee: Take one or more days away from work when the employee
instead reports to work (or would have reported had he or she been scheduled) and takes no days away
from work in connection with the injury or illness; work restricted duty for one or more days when the
employee instead works unrestricted (or would have worked unrestricted had he or she been
scheduled) and takes no other days of restricted work activity in connection with the injury or illness;
or take over-the-counter medication at a dosage equal to or greater than the minimum prescription
strength, whether or not the employee actually takes the medication.
Reporting threshold means the amount specified in §225.19(e) of this chapter, as adjusted from time
to time in accordance with appendix B to part 225 of this chapter.
Responsible railroad supervisor means any responsible line supervisor (e.g., a trainmaster or road
foreman of engines) or superior official in authority over the regulated employees to be tested.
Side collision a side collision occurs when one consist strikes the side of another consist at a turnout,
including a collision at a switch or at a railroad crossing at grade.
State means a State of the United States of America or the District of Columbia.
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.
Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of
transportation means a tourist, scenic, historic, or excursion operation conducted only on track used
exclusively for that purpose (i.e., there is no freight, intercity passenger, or commuter passenger
railroad operation on the track).
Train accident means a rail equipment accident described in § 225.19(c) of this chapter involving
damage in excess of the current reporting threshold (see § 225.19(e) of this chapter), including an
accident involving a switching movement. Rail equipment accidents include, but are not limited to,
collisions, derailments, and other events involving the operations of on-track or fouling equipment
(whether standing or moving).
Train incident means an event involving the operation of railroad on-track or fouling equipment that
results in a casualty but in which railroad property damage does not exceed the reporting threshold.
United States means all of the States.
Violation rate for random alcohol testing means the number of 0.04 and above random alcohol
confirmation test results conducted under this part plus the number of refusals of random alcohol tests
required by this part, divided by the total number of random alcohol screening tests (including
refusals) conducted under this part.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
Watchman/lookout means an employee who has been annually trained and qualified to provide
warning of approaching trains or on-track equipment. Watchmen/lookouts must be properly equipped
to provide visual and auditory warning by such means as a whistle, air horn, white disk, red flag,
lantern, or fusee. A watchman/lookout’s sole duty is to look out for approaching trains/on-track
equipment and provide at least fifteen seconds advanced warning to employees before the arrival of
trains/on-track equipment.
§219.7 Waivers.
(i)
A person subject to a requirement of this part may petition the FRA for a waiver of compliance
with such requirement.
(ii)
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 §40.21 of this title.
(iii)
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.
(iv)
Special dispensation for employees performing train or dispatching service on existing crossborder operations. If a foreign railroad requests a waiver not later than August 10, 2004, for an
existing cross-border operation, subparts E, F, and G of this part shall not apply to train or
dispatching service on that operation in the United States performed by an employee of a
foreign railroad whose primary reporting point is outside the United States, until the railroad's
waiver request is acted upon by FRA.
(v)
Waiver requests for employees performing train or dispatching service on new or expanded
cross-border operations. A foreign railroad seeking a waiver from subparts E, F, and G of this
part for its employees performing train or dispatching service on a new cross-border operation
that proceeds more than 10 route miles into the United States, or a formerly excepted crossborder operation that expands beyond the 10 mile limited haul exception in paragraph (d) of this
section, must file a petition not later than 90 days before commencing the subject operation.
FRA will attempt to decide on such petitions within 90 days. If no action is taken on the petition
within 90 days, the petition remains pending for decision and the cross-border crew assignments
on the operation covered by the petition will be subject to subparts E, F, and G until FRA grants
the petition should the petitioner commence the proposed operation.
§219.9 Responsibility for compliance.
(a)
General. Although the requirements of this part are stated in terms of the duty of a railroad,
when any person, as defined by § 219.5, performs any function required by this part, that
person (whether or not a railroad) shall perform that function in accordance with this part.
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(b)
Joint operations. (1) In the case of joint operations, primary responsibility for compliance with
subparts C, D, and E of this part rests with the host railroad, and all affected employees must be
responsive to direction from the host railroad that is consistent with this part. However,
nothing in this paragraph restricts railroads engaged in joint operations from appropriately
assigning responsibility for compliance with this part amongst themselves through a joint
operating agreement or other binding contract. FRA reserves the right to bring an enforcement
action for noncompliance with this part against the host railroad, the employing railroad, or
both.
(2)
When an employee of a railroad engaged in joint operations is required to participate in breath
or body fluid testing under subpart C, D, or E 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 engaged in the joint operations must be
made available to the employee and his or her employing railroad on a reasonable basis.
(c)
Contractor responsibility for compliance. As provided by paragraph (a) of this section, any
independent contractor or other entity that performs regulated service for a railroad, or any
other services under this part or part 40 of this title, has the same responsibilities as a railroad
under this part with respect to its employees who perform regulated service or other service
required by this part or part 40 of this title for the railroad. The entity's responsibility for
compliance with this part may be fulfilled either directly by that entity or by the railroad
treating the entity's regulated employees as if they were the railroad’s 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 a
clear delineation of responsibility, FRA may hold the railroad and the other entity jointly and
severally liable for compliance.
§ 219.10 Penalties.
Any person, as defined by § 219.5, who violates any requirement of this part or causes the violation of
any such requirement is subject to a civil penalty of at least $650 and not more than $25,000 per
violation, except that: penalties may be assessed against individuals only for willful violations; where a
grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death
or injury, or has caused death or injury, a penalty not to exceed $105,000 per violation may be assessed;
and the standard of liability for a railroad will vary depending upon the requirement involved. See, e.g.,
§ 219.105, which is construed to qualify the responsibility of a railroad for the unauthorized conduct of
an employee that violates § 219.101 or § 219.102 (while imposing a duty of due diligence to prevent
such conduct). Each day a violation continues constitutes a separate offense. See Appendix A to this
part for a statement of agency civil penalty policy.
§ 219.11 General conditions for chemical tests.
(a)(1) Any regulated employee who is subject to performing regulated service for a railroad is deemed
to have consented to testing as required in subparts B, C, D, E, F, G, and K of this part.
CFR Part 219, effective June 12, 2017
(2)
Revisions as of June 7, 2017
A regulated employee required to participate in alcohol and/or drug testing under this part must
be on duty and subject to performing regulated service when the specimen collection is initiated
and the alcohol testing/urine specimen collection is conducted (with the exception of preemployment testing under subpart F of this part).
(b)(1) Each regulated employee must participate in such testing, as required under the conditions set
forth in this part and implemented by a representative of the railroad or employing contractor.
(2)
In any case where an employee is suffering a substantiated medical emergency 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). A medical emergency is an acute
medical condition requiring immediate medical care. A railroad may require an employee to
substantiate a medical emergency by providing verifiable documentation from a credible
outside professional (e.g., doctor, dentist, hospital, or law enforcement officer) substantiating
the medical emergency within a reasonable period of time.
(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 regulated employee who is required to be tested under subparts C, D, or E 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 medical 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 medical
facility on such specimen;
(3)
The identity, dosage, and time of administration of any drugs administered by the medical
facility before the time specimens were taken by the medical facility or before 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 medical facility.
(d)
Any person required to participate in body fluid testing under subpart C of this part (postaccident toxicological testing) shall, if requested by a representative of the railroad or the
medical facility, evidence consent to the 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. A regulated employee is not required to execute any document or clause waiving
rights that the employee would otherwise have against the railroad, 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
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section may be construed to extend only to those actions specified in this section.
(e)(1)
A regulated employee who is notified of selection for testing under this part must cease to
perform his or her assigned duties and proceed to the testing site either immediately or as soon
as possible without adversely affecting safety.
(2)
A railroad must ensure that the absence of a regulated employee from his or her assigned duties
to report for testing does not adversely affect safety.
(3)
Nothing in this part may be construed to authorize the use of physical coercion or any other
deprivation of liberty to compel breath or body fluid testing.
(f)
Any employee performing duties for a railroad who is involved in a qualifying accident or
incident described in subpart C of this part, and who dies within 12 hours of that accident or
incident as the result thereof, is deemed to have consented to the removal of body fluid and/or
tissue specimens necessary for toxicological analysis from the remains of such person, and this
consent is implied by the performance of duties for the railroad (i.e., a consent form is not
required). This consent provision applies to all employees performing duties for a railroad, and
not just regulated employees.
(g)
Each supervisor responsible for regulated employees (except a working supervisor who is a coworker as defined in § 219.5) 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, the
major drug groups on the controlled substances list, and other impairing drugs. The program
must also provide training on the qualifying criteria for post-accident toxicological 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.
(h)
Nothing in this subpart restricts any discretion available to the railroad to request or require that
a regulated employee cooperate in additional breath or 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.
§219.12 Hours-of-service laws implications.
(a)
A railroad is not excused from performing alcohol or drug testing under subpart C (postaccident toxicological testing) and subpart D (reasonable suspicion testing) of this part because
the performance of such testing would violate the hours-of-service laws at 49 U.S.C. ch. 211. If
a railroad establishes that a violation of the hours-of-service laws is caused solely because it
was required to conduct post-accident toxicological testing or reasonable suspicion testing,
FRA will not take enforcement action for the violation if the railroad used reasonable due
diligence in completing the collection and otherwise completed it within the time limitations of
§ 219.203(d) (for post-accident toxicological testing) or § 219.305 (for reasonable suspicion
testing), although the railroad must still report any excess service to FRA.
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(b)
A railroad may perform alcohol or drug testing authorized under subpart E (reasonable cause
testing) of this part even if the performance of such testing would violate the hours-of-service
laws at 49 U.S.C. ch. 211. If a railroad establishes that a violation of the hours-of-service laws
is caused solely by its decision to conduct authorized reasonable cause testing, FRA will not
take enforcement action for the violation if the railroad used reasonable due diligence in
completing the collection and otherwise completed it within the time limitations of § 219.407,
although the railroad must still report any excess service to FRA.
(c)
A railroad must schedule random alcohol and drug tests under subpart G of this part so that
sufficient time is provided to complete the test within a covered employee’s hours-of-service
limitations under 49 U.S.C. ch. 211. However, if a direct observation collection is required
during a random test per the requirements of part 40 of this title, then the random test must be
completed regardless of the hours-of-service law limitations, although the railroad must still
report any excess service to FRA. A railroad may not place a regulated employee on-duty for
the sole purpose of conducting a random alcohol or drug test under subpart G of this part.
(d)
A railroad must schedule follow-up tests under § 219.104 so that sufficient time is provided to
complete a test within a covered employee’s hours-of-service limitations under 49 U.S.C. ch.
211. If a railroad is having a difficult time scheduling the required number of follow-up tests
because a covered employee’s work schedule is unpredictable, there is no prohibition against
the railroad placing an employee (who is subject to being called to perform regulated service)
on duty for the purpose of conducting the follow-up tests; except that an employee may be
placed on duty for a follow-up alcohol test only if he or she is required to completely abstain
from alcohol by a return-to-duty agreement, as provided by § 40.303(b) of this title. A railroad
must maintain documentation establishing the need to place the employee on duty for the
purpose of conducting the follow-up test and provide this documentation for review upon
request of an FRA representative.
§§219.13--219.15 [Reserved]
§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;
(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; or
(c)
Impacts 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.
CFR Part 219, effective June 12, 2017
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§219.19 [Reserved]
§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.
§219.23 Railroad policies.
(a)
Whenever a breath or body fluid test is required of an employee under this part, the railroad
(either through a railroad employee or a designated agent, such as a contracted collector) must
provide clear and unequivocal written notice to the employee that the test is being required
under FRA regulations and is being conducted under Federal authority. The railroad must also
provide the employee clear and unequivocal written notice of the type of test that is required
(e.g., reasonable suspicion, reasonable cause, random selection, follow-up, etc.). These notice
requirements are satisfied if:
(1)
For all FRA testing except mandatory post-accident toxicological testing under subpart C of
this part, a railroad uses the mandated DOT alcohol or drug testing form, circles or checks off
the box corresponding to the type of test, and shows this form to the employee before testing
begins; or
(2)
For mandatory post-accident toxicological testing under subpart C of this part, a railroad uses
the approved FRA form and shows this form to the employee before testing begins.
(b)
Use of the mandated DOT alcohol or drug testing forms for non-Federal tests or mandatory
post-accident toxicological testing under subpart C is prohibited (except for post-accident
breath alcohol testing permitted under § 219.203(c)). Use of the approved FRA post-accident
toxicological testing form for any testing other than that mandated under subpart C is
prohibited.
(c)
Each railroad must develop and publish educational materials, specifically designed for
regulated employees that clearly explain the requirements of this part, as well as the railroad’s
policies and procedures with respect to meeting those requirements. The railroad must ensure
that a copy of these materials is distributed to each regulated employee hired for or transferred
to a position that requires alcohol and drug testing under this part. (This requirement does not
apply to an applicant for a regulated service position who either refuses to provide a specimen
for pre-employment testing or who has a pre-employment test with a result indicating a
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violation of the alcohol or drug prohibitions of this part.) A railroad may satisfy this
requirement by either—
(1)(i)
Continually posting the materials in a location that is easily visible to all regulated employees
going on duty at their designated reporting place and, if applicable, providing a copy of the
materials to any employee labor organization representing a class or craft of regulated
employees of the railroad; or
(ii)
Providing a copy of the materials in some other manner that will ensure regulated employees
can find and access these materials explaining the critical aspects of the program (e.g., by
posting the materials on a company website that is accessible to all regulated employees); or
(2)
For a minimum of three years after June 12, 2017, also ensuring that a hard copy of these
materials is provided to each maintenance-of-way employee.
(d)
Required content. The materials to be made available to regulated employees under paragraph
(c) of this section must, at a minimum, include clear and detailed discussion of the following:
(1)
The position title, name, and means of contacting the person(s) the railroad designates to
answer employee questions about the materials;
(2)
The specific classes or crafts of employees who are subject to the provisions of this part, such
as engineers, conductors, MOW employees, signal maintainers, or train dispatchers;
(3)
Sufficient information about the regulated service functions those employees perform to make
clear that the period of the work day the regulated employee is required to be in compliance
with the alcohol prohibitions of this part is that period when the employee is on duty and is
required to perform or is available to perform regulated service;
(4)
Specific information concerning regulated employee conduct that is prohibited under subpart B
of this part (e.g., the minimum requirements of §§ 219.101, 219.102, and 219.103);
(5)
The requirement that a railroad utilizing the reasonable cause testing authority provided by
subpart E of this part must give prior notice to regulated employees of the circumstances under
which they will be subject to reasonable cause testing;
(6)
The circumstances under which a regulated employee will be tested under this part;
(7)
The procedures used to test for the presence of alcohol and controlled substances, protect the
regulated employee and the integrity of the testing processes, safeguard the validity of the test
results, and ensure that those results are attributed to the correct employee;
(8)
The requirement that a regulated 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;
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(10)
The consequences for a regulated employee found to have violated subpart B of this part,
including the requirement that the employee be removed immediately from regulated service,
and the responsive action requirements of § 219.104;
(11)
The consequences for a regulated employee who has a Federal alcohol test indicating an alcohol
concentration of 0.02 or greater but less than 0.04; and
(12)
Information concerning the effects of alcohol and drug misuse on an individual’s health, work,
and personal life; signs and symptoms of an alcohol or drug problem (the employee’s or a coworker’s); and available methods of evaluating and resolving problems associated with the
misuse of alcohol and drugs, and the names, addresses, and telephone numbers of DACs and
counseling and treatment programs.
(e)
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 company authority independent of this part. Any such additional policies or
consequences must be clearly and obviously described as being based on the railroad’s
independent company authority.
§219.25 Previous employer drug and alcohol checks.
(a)
As required by § 219.701(a) and (b), a railroad must conduct drug or alcohol testing under this
part in compliance with part 40 of this title (except for post-accident toxicological testing under
subpart C of this part). A railroad must therefore comply with § 40.25 of this title by checking
the alcohol and drug testing record of any direct regulated employee (a regulated employee who
is not employed by a contractor to the railroad) it intends to use for regulated service before the
employee performs such service for the first time. A railroad is not required to check the
alcohol and drug testing record of contractor employees performing regulated service on its
behalf (the alcohol and drug testing record of those contractor employees must be checked by
their direct employers).
(b)
When determining whether a person may become or remain certified as a locomotive engineer
or a conductor, a railroad must comply with the requirements in § 240.119(c) (for engineers) or
§ 242.115(e) (for conductors) of this chapter regarding the consideration of Federal alcohol and
drug violations that occurred within a period of 60 consecutive months before the review of the
person’s records.
Subpart B—Prohibitions
§219.101 Alcohol and drug use prohibited.
(a)
Prohibitions. Except as provided in § 219.103—
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(1)
No regulated employee may use or possess alcohol or any controlled substance when the
employee is on duty and subject to performing regulated service for a railroad.
(2)
No regulated employee may report for regulated service, or go or remain on duty in regulated
service, while –
(i)
Under the influence of or impaired by alcohol;
(ii)
Having 0.04 or more alcohol concentration in the breath or blood; or
(iii)
Under the influence of or impaired by any controlled substance.
(3)
No regulated employee may use alcohol for whichever is the lesser of the following periods:
(i)
Within four hours of reporting for regulated service; or
(ii)
After receiving notice to report for regulated service.
(4)(i)
No regulated employee tested under the provisions of this part whose Federal test result
indicates an alcohol concentration of 0.02 or greater but less than 0.04 may perform or continue
to perform regulated service for a railroad, nor may a railroad permit the regulated employee to
perform or continue to perform regulated service, until the start of the regulated employee’s
next regularly scheduled duty period, but not less than eight hours following administration of
the test.
(ii)
Nothing in this section prohibits a railroad from taking further action under its own independent
company authority when a regulated employee tested under the provisions of this part has a
Federal test result indicating an alcohol concentration of 0.02 or greater, but less than 0.04.
However, while a Federal test result of 0.02 or greater but less than 0.04 is a positive test and
may be a violation of a railroad’s operating rules, it is not a violation of § 219.101 and cannot
be used to decertify an engineer under part 240 of this chapter or a conductor under part 242 of
this chapter.
(5)
If an employee tested under the provisions of this part has a test result indicating an alcohol
concentration below 0.02, the test is 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. An independent basis for subsequent company authority testing will exist only when,
after having a negative Federal reasonable suspicion alcohol test result, the employee exhibits
additional or continuing signs and symptoms of alcohol use. If a company authority test then
indicates a violation of the railroad’s operating rules, this result is independent of the Federal
test result and must stand on its own merits.
(b)
Controlled substance. “Controlled substance” is defined by §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
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hallucinogens (such as the drugs known as PCP and LSD). Controlled substances include illicit
drugs (Schedule I), drugs that are required to be distributed only by a medical practitioner's
prescription or other authorization (Schedules II through IV, and some drugs on Schedule V),
and certain preparations for which distribution is through documented over the counter sales
(Schedule V only).
(c)
Railroad rules. Nothing in this section restricts a railroad from imposing an absolute
prohibition on the presence of alcohol or any drug in the body fluids of persons in its employ,
whether in furtherance of the purpose of this part or for other purposes.
(d)
Construction. This section may not be construed to prohibit the presence of an unopened
container of an alcoholic beverage in a private motor vehicle that is not subject to use in the
business of the railroad; nor may it be construed to restrict a railroad from prohibiting such
presence under its own rules.
§219.102 Prohibition on abuse of controlled substances.
No regulated employee may use a controlled substance at any time, whether on duty or off duty, except
as permitted by §219.103.
§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.
§219.104 Responsive action.
(a)
Removal from regulated service. (1) If a railroad determines that a regulated employee has
violated § 219.101 or § 219.102, or the alcohol or controlled substances misuse rule of another
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DOT agency, the railroad must immediately remove the employee from regulated service and
the procedures described in paragraphs (b) through (d) of this section apply.
(2)
If a regulated employee refuses to provide a breath or body fluid specimen or specimens when
required to by the railroad under a provision of this part, a railroad must immediately remove
the regulated employee from regulated service, and the procedures described in paragraphs (b)
through (d) of this section apply. This provision also applies to Federal reasonable cause testing
under subpart E of this part (if the railroad has elected to conduct this testing under Federal
authority).
(b)
Notice. Before or upon removing a regulated employee from regulated service under this
section, a railroad must provide written notice to the employee of the reason for this action. A
railroad may provide a regulated employee with an initial verbal notice so long as it provides a
follow-up written notice to the employee as soon as possible. In addition to the reason for the
employee's withdrawal from regulated service, the written notice must also inform the
regulated employee that he may not perform any DOT safety-sensitive duties until he
completes the return-to-duty process of part 40.
(c)
Hearing procedures. (1) Except as provided in paragraph (e)(5) of this section, if a regulated
employee denies that a test result or other information is valid evidence of a § 219.101 or §
219.102 violation, the regulated 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 §§ 219.101 and 219.102.
(2)
The hearing must be convened within the period specified in the applicable collective bargaining
agreement. In the absence of an agreement provision, the regulated employee may demand that
the hearing be convened within 10 calendar days of the employee's suspension or, in the case of
a regulated employee who is unavailable due to injury, illness, or other sufficient cause, within
10 days of the date the regulated employee becomes available for the 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)
With respect to a removal or other adverse action taken as a consequence of a positive test result
or refusal in a test authorized or required by this part, nothing in this part may be deemed to
abridge any procedural rights or remedies consistent with this part that are available to a
regulated employee under a collective bargaining agreement, the Railway Labor Act, or (with
respect to employment at will) at common law.
(5)
Nothing in this part restricts the discretion of a railroad to treat a regulated employee's denial
of prohibited alcohol or drug use as a waiver of any privilege the regulated 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.
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(d)
A railroad must comply with the requirements for Substance Abuse Professional evaluations,
the return-to-duty process, and follow-up testing contained in part 40 of this title.
(1)
Post-accident toxicology testing exception. If a regulated employee has a post-accident
toxicology test result under subpart C of this part that is positive for a drug not listed in §
40.5's definition of “Drugs,” a railroad may conduct the employee's return-to-duty and
follow-up tests under part 40, or may conduct the employee's return-to-duty and follow-up
tests under its own authority to comply with the requirements of paragraph (d) of this section,
so long as its testing procedures are otherwise identical to those of part 40, and include the
specific drug for which the violation occurred, on an expanded drug testing panel.
(e)
Applicability. (1) 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, testing for cause wholly independent of
the subpart E Federal authority of this part, or testing under a labor agreement).
(2)
This section does not apply to Federal alcohol tests indicating an alcohol concentration of less
than 0.04.
(3)
This section does not apply to a locomotive engineer or conductor who has an off-duty
conviction for, or a completed state action to cancel, revoke, suspend, or deny a motor vehicle
driver's license for operating while under the influence of or impaired by alcohol or a
controlled substance. (However, this information remains relevant for the purpose of
locomotive engineer or conductor certification, according to the requirements of parts 240 or
242 of this chapter.)
(4)
This section does not apply to an applicant who declines to be subject to pre-employment
testing and withdraws an application for employment before the test begins. The
determination of when a drug or alcohol test begins is made according to the provisions found
in subparts E and L of part 40 of this title.
(5)
Paragraph (c) of this section does not apply to an applicant who tests positive or refuses a DOT
pre-employment test.
(6)
As provided by § 40.25(j) of this title, paragraph (d) of this section applies to any DOTregulated employer seeking to hire for DOT safety-sensitive functions an applicant who tested
positive or who refused a DOT pre-employment test.
§219.105 Railroad's duty to prevent violations.
(a)
A railroad may not, with actual knowledge, permit a regulated employee to go or remain on
duty in regulated service in violation of the prohibitions of §219.101 or §219.102. As used in
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this section, the actual knowledge imputed to the railroad is 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. A railroad management or supervisory employee has actual knowledge of a
violation when he or she:
(1)
Personally observes a regulated employee use or possess alcohol or use drugs in violation of
this subpart. It is not sufficient for actual knowledge if the supervisory or management
employee merely observes the signs and symptoms of alcohol or drug use that require a
reasonable suspicion test under § 219.301;
(2)
Receives information regarding a violation of this subpart from a previous employer of a
regulated employee, in response to a background information request required by § 40.25 of
this title; or
(3)
Receives a regulated employee's admission of prohibited alcohol possession or prohibited
alcohol or drug use.
(b)
A railroad must exercise due diligence to assure compliance with §§219.101 and 219.102 by
each regulated employee.
(c)
A railroad’s alcohol and/or drug use education, prevention, identification, intervention, and
rehabilitation programs and policies must be designed and implemented in such a way that they
do not circumvent or otherwise undermine the requirements, standards, and policies of this
part. Upon FRA’s request, a railroad must make available for FRA review all documents, data,
or other records related to such programs and policies.
(d)
Each year, a railroad’s supervisors must conduct and record a number of “Rule G” employee
observations at a minimum equal to twice the railroad’s total number of regulated employees.
Each “Rule G” observation must be made sufficiently close to an individual regulated
employee to determine whether the employee is displaying signs and symptoms indicative of a
violation of the prohibitions of this part.
§219.107 Consequences of unlawful refusal.
(a)
A regulated employee who refuses to provide a breath or body fluid specimen or specimens
when required to by the railroad under a provision of this part must be withdrawn from
regulated service for a period of nine (9) months. Per the requirements of part 40 of this title, a
regulated employee who provides an adulterated or substituted specimen is deemed to have
refused to provide the required specimen and must be withdrawn from regulated service in
accordance with this section.
(b)
Notice. Before or upon withdrawing a regulated employee from regulated service under this
section, a railroad must provide written notice to the employee of the reason for this action, and
the procedures described in §219.104(c) apply. A railroad may provide a regulated employee
with an initial verbal notice so long as it provides a follow-up written notice as soon as
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possible.
(c)
The withdrawal required by this section applies only to an employee’s performance of
regulated service for any railroad with notice of such withdrawal. During the period of
withdrawal, a railroad with notice of such withdrawal must not authorize or permit the
employee to perform any regulated service for the railroad.
(d)
The requirement of withdrawal 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 an
employee to return to regulated service only under the conditions specified in §219.104(d), and
the regulated employee must be subject to return-to-duty and follow-up tests, as provided by
that section.
Subpart C—Post-Accident Toxicological Testing
§219.201 Events for which testing is required.
(a)
List of events. Except as provided in paragraph (b) of this section, FRA post-accident
toxicological tests must be conducted after any event that involves one or more of the
circumstances described in paragraphs (a)(1) through (5) 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 to any person;
(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 $1,500,000 or more.
(2)
Impact accident. Any impact accident (i.e., a rail equipment accident defined as an “impact
accident” in § 219.5) that involves damage in excess of the current reporting threshold,
resulting in –
(i)
A reportable injury; or
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(ii)
Damage to railroad property of $150,000 or more.
(3)
Fatal train incident. Any train incident that involves a fatality to an on-duty employee (as
defined in § 219.5) who dies within 12 hours of the incident as a result of the operation of ontrack equipment, regardless of whether that employee was performing regulated service.
(4)
Passenger train accident. Any train accident (i.e., a rail equipment accident involving damage
in excess of the current reporting threshold) involving a passenger train and a reportable injury
to any person.
(5)
Human-factor highway-rail grade crossing accident/incident. A highway-rail grade crossing
accident/incident when it involves:
(i)
A regulated employee who interfered with the normal functioning of a grade crossing signal
system, in testing or otherwise, without first taking measures to provide for the safety of
highway traffic that depends on the normal functioning of such system, as prohibited by §
234.209 of this chapter;
(ii)
A train crewmember who was, or who should have been, flagging highway traffic to stop due to
an activation failure of the grade crossing system, as provided by § 234.105(c)(3) of this
chapter;
(iii)
A regulated employee who was performing, or should have been performing, the duties of an
appropriately equipped flagger (as defined in § 234.5 of this chapter) due to an activation
failure, partial activation, or false activation of the grade crossing signal system, as provided by
§§ 234.105(c)(1) and (2), 234.106, or 234.107(c)(1)(i) of this chapter;
(iv)
A fatality to any regulated employee performing duties for the railroad, regardless of fault; or
(v)
A regulated employee who violated an FRA regulation or railroad operating rule and whose
actions may have played a role in the cause or severity of the accident/incident.
(b)
Exceptions. Except for a human-factor highway-rail grade crossing accident/incident described
in paragraph (a)(5) of this section, 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 highway/rail grade
crossing. No test may be required for 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
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presence or absence of impairing substances reasonably contemporaneous with the
accident/incident. The railroad representative satisfies the requirement of this section if, after
making reasonable inquiry, the representative exercises good faith judgement in making the
required determinations.
(ii)
The railroad representative making the determinations required by this section may not be a
person directly involved in the accident/incident. This section does not prohibit consultation
between the responding railroad representative and higher level railroad officials; however, the
responding railroad representative must make the factual determinations required by this
section.
(iii)
Upon specific request made to the railroad by the Associate Administrator for Safety, FRA (or
the Associate Administrator's delegate), the railroad must provide a report describing any
decision by a person other than the responding railroad representative with respect to whether
an accident/incident qualifies for testing. This report must be affirmed by the decision maker
and must be provided to FRA within 72 hours of the request. The report must include the facts
reported by the responding railroad representative, the basis upon which the testing decision
was made, and the person making the decision.
(iv)
Any estimates of railroad property damage made by persons not at the scene must be based on
descriptions of specific physical damage provided by the on-scene railroad representative.
(v)
In the case of an accident involving passenger equipment, a host railroad may rely upon the
damage estimates provided by the passenger railroad (whether present on scene or not) in
making the decision whether testing is required, subject to the same requirement that visible
physical damage be specifically described.
(2)
A railroad must not require an employee to provide blood or urine specimens under the
authority or procedures of this subject unless the railroad has made the determinations required
by this section, based upon reasonable inquiry and good faith judgment. A railroad does not act
in excess of its authority under this subpart if its representative has made such reasonable
inquiry and exercised such good faith judgment, but it is later determined, after investigation,
that one or more of the conditions thought to have required testing were not, in fact, present.
However, this section does not excuse the railroad for any error arising from a mistake of law
(e.g., application of testing criteria other than those contained in this part).
(3)
A railroad is not in violation of this subpart if its representative has made such reasonable
inquiry and exercised such good faith judgment but nevertheless errs in determining that postaccident 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
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destroy any specimen material submitted and to refrain from disclosing to any person the
results of any analysis conducted.
§219.203 Responsibilities of railroads and employees.
(a)
Employees tested. A regulated employee subject to post-accident toxicological testing under
this subpart must cooperate in the provision of specimens as described in this part and appendix
C to this part.
(1)
General. Except as otherwise provided for by this section, following each qualifying event
described in § 219.201, a regulated employee directly involved in a qualifying event under this
subpart must provide blood and urine specimens for toxicological testing by FRA. This
includes any regulated employee who may not have been present or on-duty at the time or
location of the event, but whose actions may have played a role in its cause or severity,
including, but not limited to, an operator, dispatcher, or signal maintainer.
(2)
Fatalities. Testing of the remains of an on-duty employee (as defined in § 219.5) who is fatally
injured in a qualifying event described in § 219.201 is required, regardless of fault, if the
employee dies within 12 hours of the qualifying event as a result of such qualifying event.
(3)
Major train accidents. For an accident or incident meeting the criteria of a major train accident
in § 219.201(a)(1) —
(i)
All assigned crew members of all trains or other on-track equipment involved in the qualifying
event must be subjected to post-accident toxicological testing, regardless of fault.
(ii)
Other surviving regulated employees who are not assigned crew members of an involved train
or other on-track equipment (e.g., a dispatcher or a signal maintainer) must be tested if a
railroad representative can immediately determine, on the basis of specific information, that the
employee may have had a role in the cause or severity of the accident/incident. In making this
determination, the railroad representative must consider any such information that is
immediately available at the time the qualifying event determination is made under § 219.201.
(4)
Fatal train incidents. For a fatal train incident under § 219.201(a)(3), the remains of any onduty employee (as defined in § 219.5) performing duties for a railroad who is fatally injured in
the event are always subject to post-accident toxicological testing, regardless of fault.
(5)
Human-factor highway-rail grade crossing accident/incidents. (i) For a human-factor highwayrail grade crossing accident/incident under § 219.201(a)(5)(i), only a regulated employee who
interfered with the normal functioning of a grade crossing signal system and whose actions may
have contributed to the cause or severity of the event is subject to testing.
(ii)
For a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(ii),
only a regulated employee who was a train crew member responsible for flagging highway
traffic to stop due to an activation failure of a grade crossing system (or who was on-site and
directly responsible for ensuring that flagging was being performed), but who failed to do so,
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and whose actions may have contributed to the cause or severity of the event, is subject to
testing.
(iii)
For a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(iii),
only a regulated employee who was responsible for performing the duties of an appropriately
equipped flagger (as defined in § 234.5 of this chapter), but who failed to do so, and whose
actions may have contributed to the cause or severity of the event is subject to testing.
(iv)
For a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(iv),
only the remains of any fatally-injured employee(s) (as defined in § 219.5) performing
regulated service for the railroad are subject to testing.
(v)
For a human-factor highway-rail grade crossing accident/incident under § 219.201(a)(5)(v),
only a regulated employee who violated an FRA regulation or railroad operating rule and
whose actions may have contributed to the cause or severity of the event is subject to testing.
(6)
Exception. For a qualifying impact accident, passenger train accident, fatal train incident, or
human-factor highway-rail grade crossing accident/incident under § 219.201(a)(2) through (5),
a surviving crewmember or other regulated employee must be excluded from testing if the
railroad representative can immediately determine, on the basis of specific information, that the
employee had no role in the cause or severity of the accident/incident. In making this
determination, the railroad representative must consider any information that is immediately
available at the time the qualifying event determination is made under § 219.201.
(i)
This exception is not available for assigned crew members of all involved trains if the
qualifying event also meets the criteria for a major train accident under § 219.201(a)(1) (e.g.,
this exception is not available for an Impact Accident that also qualifies as a major train
accident because it results in damage to railroad property of $1,500,000 or more).
(ii)
This exception is not available for any on-duty employee who is fatally-injured in a qualifying
event.
(b)
Railroad responsibility. (1) A railroad must take all practicable steps to ensure that all
surviving regulated employees of the railroad who are subject to FRA post-accident
toxicological testing under this subpart provide blood and urine specimens for the toxicological
testing required by FRA. This includes any regulated employee who may not have been present
or on-duty at the time or location of the event, but whose actions may have played a role in its
cause or severity, including, but not limited to, an operator, dispatcher, or signal maintainer.
(2)
A railroad must take all practicable steps to ensure that tissue and fluid specimens taken from
fatally injured employees are subject to FRA post-accident toxicological testing under subpart.
(3)
FRA post-accident toxicological testing under this subpart takes priority over toxicological
testing conducted by state or local law enforcement officials.
(c)
Alcohol testing. Except as provided for in paragraph (e)(4) of this section, if the conditions for
mandatory post-accident toxicological testing exist, a railroad may also require an employee to
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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 urine and blood
specimens.
(d)
Timely specimen collection. (1) A railroad must make every reasonable effort to assure that
specimens are provided as soon as possible after the accident or incident, preferably within four
hours. Specimens that are not collected within four hours after a qualifying accident or incident
must be collected as soon thereafter as practicable. If a specimen is not collected within four
hours of a qualifying event, the railroad must immediately notify the FRA Drug and Alcohol
Program Manager at 202-493-6313 and provide detailed information regarding the failure
(either verbally or via a voicemail). The railroad must also submit a concise, written narrative
report of the reasons for such a delay to the FRA Drug and Alcohol Program Manager, 1200
New Jersey Ave., SE., Washington, DC 20590. The report must be submitted within 30 days
after the expiration of the month during which the accident or incident occurred. This report
may also be submitted via e-mail to an email address provided by the FRA Drug and Alcohol
Program Manager.
(2)
The requirements of paragraph (d) of this section must not be construed to inhibit an employee
who is required to be post-accident toxicological tested from performing, in the immediate
aftermath of an accident or incident, any duties that may be necessary for the preservation of
life or property. Where practical, however, a railroad must utilize other employees to perform
such duties.
(3)
If a passenger train is in proper condition to continue to the next station or its destination after
an accident or incident, the railroad must consider the safety and convenience of passengers in
determining whether the crew should be made immediately available for post-accident
toxicological testing. A relief crew must be called to relieve the train crew as soon as possible.
(4)
A regulated employee who may be subject to post-accident toxicological testing under this
subpart must be retained in duty status for the period necessary to make the determinations
required by § 219.201 and this section and (as appropriate) to complete specimen collection.
(e)
Recall of employees for testing. (1) Except as otherwise provided for in paragraph (e)(2) of
this section, a regulated 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. An
employee who has been transported to receive medical care is not released from duty for
purposes of this section. Furthermore, nothing in this section prohibits the subsequent testing of
an employee who has failed to remain available for testing as required (e.g., an employee who
is absent without leave). However, subsequent testing does not excuse a refusal by the
employee to provide the specimens in a timely manner.
(2)
A railroad must immediately recall and place on duty a regulated employee for post-accident
drug testing, if—
(i)
The employee could not be retained in duty status because the employee went off duty under
normal railroad procedures before 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
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dispatcher or signal maintainer remote from the scene of an accident who was unaware of the
occurrence at the time he or she went off duty); and
(ii)
The railroad’s preliminary investigation (contemporaneous with the determination required by
§ 219.201) indicates a clear probability that the employee played a role in the cause or severity
of the accident/incident.
(3)
If the criteria in paragraph (e)(2) of this section are met, a regulated employee must be recalled
for post-accident drug testing regardless of whether the qualifying event happened or did not
happen during the employee’s tour of duty. However, an employee may not be recalled for
testing if more than 24 hours have passed since the qualifying event. An employee who has
been recalled must be placed on duty for the purpose of accomplishing the required postaccident drug testing.
(4)
Urine and blood specimens must be collected from an employee who is recalled for testing in
accordance with this section. If the employee left railroad property before being recalled,
however, the specimens must be tested for drugs only. A railroad is prohibited from requiring a
recalled employee to provide breath specimens for alcohol testing, unless the regulated
employee has remained on railroad property since the time of the qualifying event and the
railroad has a company policy completely prohibiting the use of alcohol on railroad property.
(5)
A railroad must document its attempts to contact an employee subject to the recall provisions of
this section. If a railroad is unable, as a result of the non-cooperation of an employee or for any
other reason, to obtain specimen(s) from an employee subject to mandatory recall within the
24-hour period after a qualifying event and to submit specimen(s) to FRA as required by this
subpart, the railroad must contact FRA and prepare a concise narrative report according to the
requirements of paragraph (d)(1) of this section. The report must also document the railroad’s
good faith attempts to contact and recall the employee.
(f)
Place of specimen collection. (1) With the exception of Federal breath testing for alcohol
(when conducted as authorized under this subpart), an employee must be transported to an
independent medical facility for specimen collection. 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 (e.g., a phlebotomist). A collector contracted by a railroad or
medical facility may collect and/or assist in the collection of specimens at the medical facility if
the medical facility does not object and the collector is qualified to do so.
(2)
If an employee has been injured, a railroad must ask the treating medical facility to obtain the
specimens. Urine may be collected from an injured employee (conscious or unconscious) who
has already been catheterized for medical purposes, but an employee may not be catheterized
solely for the purpose of providing a specimen under this subpart. Under § 219.11(a), an
employee is deemed to have consented to FRA post-accident toxicological testing by the act of
being subject to performing regulated service for a railroad.
(g)
Obtaining cooperation of facility. (1) In seeking the cooperation of a medical facility in
obtaining a specimen under this subpart, a railroad must, as necessary, make specific reference
to the requirements of this subpart and the instructions in FRA’s post-accident toxicological
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shipping kit.
(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 and/or urine specimens after having
been informed of the requirements of this subpart, the railroad must immediately notify the
duty officer at the National Response Center (NRC) at (800) 424–8802, stating the employee’s
name, the name and location of the medical facility, 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 specimens.
(h)
Discretion of physician. Nothing in this subpart may be construed to limit the discretion of a
medical professional 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.
§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, the instructions provided
inside the FRA post-accident toxicological shipping kit, and the technical specifications set
forth in appendix C to this part.
(b)
Information requirements. Basic information concerning the accident/incident and any
treatment administered after the accident/incident is necessary to process specimens, analyze
the significance of laboratory findings, and notify railroads and employees of test results.
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
ask an appropriate representative of the medical facility to complete the remaining portion of
the information on each Form 6180.74. A Form 6180.73 must be forwarded in the shipping kit
with each group of specimens. A Form 6180.74 must be forwarded in the shipping kit for each
employee who provides specimens. A Form 6180.73 and either a Form 6180.74 or a Form
6180.75 (for fatalities) are included in the shipping kit. (See paragraph (c) of this section.)
(c)
Shipping kits. (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
post-accident toxicological specimens under this subpart. Specimens must be placed in the
shipping kit and prepared for shipment according to the instructions provided in the kit and
appendix C to this part.
(2)
Standard shipping kits may be ordered directly from the laboratory designated in appendix B to
this part by first requesting an order form from FRA’s Drug and Alcohol Program Manager at
202-493-6313. In addition to the standard kit for surviving employees, FRA also has
distributed a post-mortem shipping kit to Class I, II, and commuter railroads. The post-mortem
kit may not be ordered by other railroads. If a smaller railroad has a qualifying event involving
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a fatality to an on-duty employee, the railroad should advise the NRC at 1-800-424-8802 of the
need for a post-mortem kit, and FRA will send one overnight to the medical examiner’s office
or assist the railroad in obtaining one from a nearby railroad.
(d)
Shipment. Specimens must be shipped as soon as possible by pre-paid air express (or other
means adequate to ensure delivery within 24 hours from time of shipment) to the laboratory
designated in appendix B to this part. However, if delivery cannot be ensured within 24 hours
due to a suspension in air express delivery services, the specimens must be held in a secure
refrigerator until delivery can be accomplished. In no circumstances may specimens be held for
more than 72 hours. Where express courier pickup is available, the railroad must ask 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 if for any other reason a 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. The railroad must maintain and document a
secure chain of custody of the kit(s) from its release by the medical facility to its delivery for
transportation, as described in appendix C to this part.
(e)
Specimen security. After a specimen kit or transportation box has been sealed, no entity other
than the laboratory designated in appendix B to this part may open it. If the railroad or medical
facility discovers an error with either the specimens or the chain of custody form after the kit or
transportation box has been sealed, the railroad or medical facility must make a
contemporaneous written record of that error and send it to the laboratory, preferably with the
transportation box.
§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.
§219.207 Fatality.
(a)
In the case of an employee fatality in an accident or incident described in §219.201, body fluid
and tissue specimens must be obtained from the remains of the employee for toxicological
testing. To ensure that specimens are collected in a timely fashion, 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 post-mortem 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 the
custodian is someone 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) 424-8802 by providing the following information:
CFR Part 219, effective June 12, 2017
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(1)
Date and location of the accident or incident;
(2)
Railroad;
(3)
Name of the deceased;
(4)
Name and telephone number of custodian of the remains; and
(5)
Name and telephone number of local authority contacted.
(c)
A coroner, medical examiner, pathologist, Aviation Medical Examiner, or other qualified
professional is authorized to remove the required body fluid and 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 and the instructions included inside the shipping kits specify body fluid
and tissue specimens required for toxicological analysis in the case of a fatality.
§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 (e.g.,
impact accident with a reportable injury); and
(v)
Number of employees tested.
(b)
If a railroad is unable, as a result of non-cooperation of an employee or for any other reason, to
obtain a specimen and provide it to FRA as required by this subpart, the railroad must
immediately notify the FRA Drug and Alcohol Program Manager at 202-493-6313 and provide
CFR Part 219, effective June 12, 2017
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detailed information regarding the failure (either verbally or via a voicemail). The railroad
must also provide a concise narrative written 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 and must also be mailed to the FRA Drug and Alcohol Program Manager at 1200 New
Jersey Avenue, SE, Washington, DC 20590.
§219.211 Analysis and follow-up.
(a)
The laboratory designated in appendix B to this part undertakes prompt analysis of provided
under this subpart, consistent with the need to develop all relevant information and produce a
complete report. Specimens are analyzed for alcohol, controlled substances, and non-controlled
substances specified by FRA under protocols specified by FRA. These substances may be
tested for in any form, whether naturally or synthetically derived. 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 for controlled substances conducted 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. An employer is prohibited from temporarily removing an
employee from the performance of regulated service based only on a report from the laboratory
to the MRO of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a
substituted test, before the MRO has completed verification of the test result.
(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
§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 Railroad Safety,
FRA, 1200 New Jersey Avenue, SE, 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
CFR Part 219, effective June 12, 2017
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substances consistent with §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 email or letter addressed to the Drug and Alcohol Program Manager, Office of
Railroad Safety, FRA, 1200 New Jersey Avenue, SE, 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)
With the exception of post-accident test results for non-controlled substances, 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 PAT
testing results. It also does not restrict a railroad from taking such action based on the
employee’s underlying conduct, so long as it is consistent with the railroad’s disciplinary policy
and is taken under the railroad’s own authority.
(h)
Except as provided in §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
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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). Postmortem 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.
§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
regulated service and must be deemed disqualified for regulated service for a period of nine (9)
months in accordance with the conditions specified in §219.107.
(b)
Procedures. Prior to or upon withdrawing the employee from regulated service under this
section, the railroad must provide written 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 §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—Reasonable Suspicion Testing
CFR Part 219, effective June 12, 2017
§ 219.301
Revisions as of June 7, 2017
Mandatory reasonable suspicion testing.
(a)
Each railroad must require a regulated employee to submit to a breath alcohol test when the
railroad has reasonable suspicion to believe that the regulated 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 regulated 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. A Federal reasonable suspicion
alcohol test is not required to confirm the on-duty possession of alcohol.
(b)
Each railroad must require a regulated employee to submit to a drug test when the railroad has
reasonable suspicion to believe that the regulated 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 regulated employee to undergo a drug test must
be based on specific, contemporaneous, articulable observations concerning the appearance,
behavior, speech, or body odors of the employee. Such observations may include indications of
the chronic and withdrawal effects of drugs.
(c)
Reasonable suspicion observations made under this section must comply with the requirements
of § 219.303.
(d)
As provided by § 219.11(b)(2), in any case where an employee is suffering a substantiated
medical emergency and is subject to alcohol or drug testing under this subpart, necessary
medical treatment must be accorded priority over provision of the breath or body fluid
specimens. However, when the employee’s condition is stabilized, reasonable suspicion testing
must be completed if within the eight-hour limit provided for in § 219.305.
§ 219.303
Reasonable suspicion observations.
(a)
With respect to an alcohol test, the required observations must be made by a responsible
railroad supervisor (defined by § 219.5) trained in accordance with § 219.11(g). The supervisor
who makes the determination that reasonable suspicion exists may not conduct the reasonable
suspicion testing on that regulated employee.
(b)
With respect to a drug test, the required observations must be made by two responsible railroad
supervisors (defined by § 219.5), at least one of whom must be both on site and trained in
accordance with § 219.11(g). If one of the supervisors is off site, the on-site supervisor must
communicate with the off-site supervisor, as necessary, to provide him or her the information
needed to make the required observation. This communication may be performed via
telephone, but not via radio or any other form of electronic communication.
(c)
This subpart does not authorize holding any employee out of service pending receipt of
toxicological analysis for reasonable suspicion testing, nor does it restrict a railroad from taking
such action based on the employee’s underlying conduct, provided it is consistent with the
railroad’s policy and taken under the railroad’s own authority.
CFR Part 219, effective June 12, 2017
(d)
§ 219.305
Revisions as of June 7, 2017
The railroad must maintain written documentation that specifically describes the observed signs
and symptoms upon which the determination that reasonable suspicion exists is based. This
documentation must be completed promptly by the trained supervisor.
Prompt specimen collection; time limitations.
(a)
Consistent with the need to protect life and property, testing under this subpart must be
conducted promptly following the observations upon which the testing decision is based.
(b)
If a test required by this subpart is not administered within two hours following a determination
made under this section, the railroad must prepare and maintain on file a record stating the
reasons the test was not administered within that time period. If an alcohol or drug test required
by this subpart is not administered within eight hours of a determination made under this
subpart, the railroad must cease attempts to administer the test and must record the reasons for
not administering the test. The eight-hour requirement is satisfied if the individual has been
delivered to the collection site (where the collector is present) and the request has been made to
commence collection of the specimens within that period. The records required by this section
must be submitted to FRA upon request of the FRA Drug and Alcohol Program Manager.
(c)
A regulated employee may not be tested under this subpart if that individual has been released
from duty under the normal procedures of a railroad. An individual 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).
Subpart E— Reasonable Cause Testing
§ 219.401
Authorization for reasonable cause testing.
(a)
Each railroad may, at its own discretion, elect to conduct Federal reasonable cause testing
authorized by this subpart. If a railroad chooses to do so, the railroad must use only Federal
authority for all reasonable cause testing that meets the criteria of § 219.403. In addition, the
railroad must notify its regulated employees of its decision to use Federal reasonable cause
testing authority in the employee educational policy required by § 219.23(e)(5). The railroad
must also provide written notification of its decision to FRA’s Drug and Alcohol Program
Manager, 1200 New Jersey Ave. SE., Washington, DC, 20590.
(b)
If a railroad elects to conduct reasonable cause testing under the authority of this subpart, the
railroad may, under the conditions specified in this subpart, require any regulated employee, as
a condition of employment in regulated service, to cooperate with breath or body fluid testing,
or both, to determine compliance with §§ 219.101 and 219.102 or a railroad rule implementing
the requirements of §§ 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. A railroad
CFR Part 219, effective June 12, 2017
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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.
§ 219.403
Requirements for reasonable cause testing.
Each railroad’s decision process regarding whether reasonable cause testing is authorized must be
completed before the reasonable cause testing is performed and documented according to the
requirements of § 219.405. The following circumstances constitute reasonable cause for the
administration of alcohol and/or drug tests under the authority of this subpart.
(a)
Train accident or train incident. A regulated employee has been involved in a train accident or
train incident (as defined in § 219.5) reportable under part 225 of this chapter, and a responsible
railroad supervisor (as defined in § 219.5) has a reasonable belief, based on specific, articulable
facts, that the individual employee's acts or omissions contributed to the occurrence or severity
of the accident; or
(b)
Rule violation. A regulated employee has been directly involved in one or more of the
following railroad or FRA rule violations or other errors:
(1)
Noncompliance with a train order, track warrant, track bulletin, track permit, stop and flag
order, timetable, signal indication, special instruction or other directive with respect to
movement of railroad on-track equipment that involves—
(i)
Occupancy of a block or other segment of track to which entry was not authorized;
(ii)
Failure to clear a track to permit opposing or following movements to pass;
(iii)
Moving across a railroad crossing at grade without authorization; or
(iv)
Passing an absolute restrictive signal or passing a restrictive signal without stopping (if
required);
(2)
Failure to protect on-track equipment, including leaving on-track equipment fouling an adjacent
track;
(3)
Operation of a train or other speedometer-equipped on-track equipment at a speed that exceeds
the maximum authorized speed by at least 10 miles per hour or by 50% of such maximum
authorized speed, whichever is less;
(4)
Alignment of a switch in violation of a railroad rule, failure to align a switch as required for
movement, operation of a switch under on-track equipment, or unauthorized running through a
switch;
(5)
Failure to restore and secure a main track switch as required;
(6)
Failure to apply brakes or stop short of a derail as required;
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(7)
Failure to secure a hand brake or failure to secure sufficient hand brakes, as required;
(8)
Entering a crossover before both switches are lined for movement or restoring either switch to
normal position before the crossover movement is completed;
(9)
Failure to provide point protection by visually determining that the track is clear and giving the
signals or instructions necessary to control the movement of on-track equipment when engaged
in a shoving or pushing movement;
(10)
In the case of a person performing a dispatching function or block operator function, issuance
of a mandatory directive or establishment of a route that fails to provide proper protection for
on-track equipment;
(11)
Interference with the normal functioning of any grade crossing signal system or any signal or
train control device without first taking measures to provide for the safety of highway traffic or
train operations which depend on the normal functioning of such a device. Such interference
includes, but is not limited to, failure to provide alternative methods of maintaining safety for
highway traffic or train operations while testing or performing work on the devices or on track
and other railroad systems or structures which may affect the integrity of the system;
(12)
Failure to perform stop-and-flag duties necessary as a result of a malfunction of a grade
crossing signal system;
(13)
Failure of a machine operator that results in a collision between a roadway maintenance
machine and on-track equipment or a regulated employee;
(14)
Failure of a roadway worker-in-charge to notify all affected employees when releasing working
limits;
(15)
Failure of a flagman or watchman/lookout to notify employees of an approaching train or other
on-track equipment;
(16)
Failure to ascertain that provision was made for on-track safety before fouling a track;
(17)
Improper use of individual train detection in a manual interlocking or control point; or
(18)
Failure to apply three point protection (fully apply the locomotive and train brakes, center the
reverser, and place the generator field switch in the off position) that results in a reportable
injury to a regulated employee.
§ 219.405
(a)
Documentation requirements.
Each railroad must maintain written documentation that specifically describes the basis for each
reasonable cause test it performs under Federal authority. This documentation must be
completed promptly by the responsible railroad supervisor; although it does not need to be
completed before the reasonable cause testing is conducted.
CFR Part 219, effective June 12, 2017
(b)
§ 219.407
Revisions as of June 7, 2017
For a rule violation, the documentation must include the type of rule violation and the
involvement of each tested regulated employee. For a train accident or train incident reportable
under part 225 of this chapter, a railroad must describe either the amount of railroad property
damage or the reportable casualty and the basis for the supervisor’s belief that the employee’s
acts or omissions contributed to the occurrence or severity of the train accident or train incident.
Prompt specimen collection; time limitations.
(a)
Consistent with the need to protect life and property, testing under this subpart must be
conducted promptly following the observations upon which the testing decision is based.
(b)
If a test conducted pursuant to the authority of this subpart is not administered within two hours
following the observations upon which the testing decision is based, the railroad must prepare
and maintain on file a record stating the reasons the test was not conducted within that time
period. If an alcohol or drug test authorized by this subpart is not administered within eight
hours of the event under this subpart, the railroad must cease attempts to administer the test and
must record the reasons for not administering the test. The eight-hour time period begins at the
time a responsible railroad supervisor receives notice of the train accident, train incident, or rule
violation. 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 specimen(s) within that period. The records required by this section must be
submitted to FRA upon request of the FRA Drug and Alcohol Program Manager.
(c)
A regulated employee may not be tested under this subpart if that individual has been released
from duty under the normal procedures of the railroad. An individual 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 a regulated employee who has failed to remain
available for testing as required (i.e., who is absent without leave).
§ 219.409 Limitations on authority.
(a)
The alcohol and/or drug testing authority conferred by this subpart does not apply with respect
to any event that meets the criteria for post-accident toxicological testing required under
subpart C of this part.
(b)
This subpart does not authorize holding an employee out of service pending receipt of
toxicological analysis for reasonable cause testing because meeting the testing criteria is only
a basis to inquire whether alcohol or drugs may have played a role in the accident or rule
violation. However, this subpart does not restrict a railroad from holding an employee out of
service based on the employee's underlying conduct, so long as it is consistent with the
railroad's policy and the action is taken under the railroad's own authority.
(c)
When determining whether reasonable cause testing is justified, a railroad must consider
the involvement of each crewmember in the qualifying event, not the involvement of the
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Revisions as of June 7, 2017
crew as a whole.
Subpart F—Pre-Employment Tests
§ 219.501
Pre-employment drug testing.
(a)
Before an individual performs regulated service the first time for a railroad, the railroad must
ensure that the individual undergoes testing for drugs in accordance with the regulations of a
DOT agency. No railroad may allow a direct employee (a railroad employee who is not
employed by a contractor to the railroad) to perform regulated service, unless that railroad has
conducted a DOT pre-employment test for drugs on that individual with a result that did not
indicate the misuse of controlled substance. This requirement applies both to a final applicant
for direct employment and to a direct employee seeking to transfer for the first time from nonregulated service to duties involving regulated service. A regulated employee must have a
negative DOT pre-employment drug test for each railroad for which he or she performs
regulated service as the result of a direct employment relationship.
(b)
Each railroad must ensure that each employee of a contractor who performs regulated service
on the railroad’s behalf has a negative DOT pre-employment drug test on file with his or her
employer. The railroad must also maintain documentation indicating that it had verified that the
contractor employee had a negative DOT pre-employment drug test on file with his or her direct
employer. A contractor employee who performs regulated service for more than one railroad
does not need to have a DOT pre-employment drug test for each railroad for which he or she
provides service.
(c)
If a railroad has already conducted a DOT pre-employment test resulting in a negative for a
regulated service applicant under the rules and regulations of another DOT agency (such as the
Federal Motor Carrier Safety Administration), FRA will accept the result of that negative DOT
pre-employment test for purposes of the requirements of this subpart.
(d)
As used in subpart H of this part with respect to a test required under this subpart, the term
regulated employee includes an applicant for pre-employment testing only. If an applicant
declines to be tested and withdraws an application for employment before the pre-employment
testing process commences, no record may be maintained of the declination.
(e)
The pre-employment drug testing requirements of this section do not apply to covered
employees of railroads qualifying for the small railroad exception (see § 219.3(c)) or
maintenance-of-way employees who were performing duties for a railroad before June 12,
2017. However, a grandfathered employee must have a negative pre-employment drug test
before performing regulated service for a new employing railroad after June 12, 2017.
§ 219.502
(a)
Pre-employment alcohol testing.
A railroad may, but is not required to, conduct pre-employment alcohol testing under this part.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
If a railroad chooses to conduct pre-employment alcohol testing, the railroad must comply with
the following requirements:
(1)
The railroad must conduct a pre-employment alcohol test before the first performance of
regulated service by an employee, regardless of whether he or she is a new employee or a firsttime transfer to a position involving the performance of regulated service.
(2)
The railroad must treat all employees performing regulated service the same for the purpose of
pre-employment alcohol testing (i.e., a railroad must not test some regulated employees and not
others.)
(3)
It must conduct the pre-employment tests after making a contingent offer of employment or
transfer, subject to the employee passing the pre-employment alcohol test.
(4)
It must conduct all pre-employment alcohol tests using the alcohol testing procedures of part 40
of this title.
(5)
If a regulated employee’s Federal pre-employment test indicates an alcohol concentration of
0.04 or greater, a railroad may not allow him or her to begin performing regulated service until
he or she has completed the Federal return-to-duty process under § 219.104(d).
(b)
As used in subpart H of this part with respect to a test authorized under this subpart, the term
regulated employee includes an applicant for pre-employment testing only. If an applicant
declines to be tested before the testing process commences, no record may be maintained of the
declination. The determination of when an alcohol test commences must be made according to
the provisions of § 40.243(a) of this title.
§ 219.503
Notification; records.
Each railroad must provide for medical review of drug test results according to the requirements of part
40 of this title, as provided in subpart H of this part. The railroad must also notify the applicant in
writing of the results of any Federal drug and/or alcohol test that is a positive, adulteration,
substitution, or refusal in the same manner as provided for employees in part 40 of this title and 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 who withdrew an application to perform regulated service before the
commencement of the testing process.
§ 219.505
Non-negative Tests and Refusals.
An applicant who has tested positive or refused to submit to pre-employment testing under this section
may not perform regulated service for any railroad until he or she has completed the Federal return-toduty process under § 219.104(d). An applicant may also not perform DOT safety-sensitive functions
for any other employer regulated by a DOT agency until he or she has completed the Federal return-toduty process under § 219.104(d). This section does not create any right on the part of the applicant to
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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
§219.601 Purpose and scope of random testing programs.
(a)
Purpose. The purpose of random alcohol and drug testing is to promote safety by deterring
regulated employees from misusing drugs and abusing alcohol.
(b)
Regulated employees. Each railroad must ensure that a regulated employee is subject to being
selected for random testing as required by this subpart whenever the employee performs
regulated service on the railroad’s behalf.
(c)
Contractor employees and volunteers. A regulated employee who is a volunteer or an employee
of a contractor to a railroad may be incorporated into the random testing program of more than
one railroad if:
(1)
The contractor employee or volunteer is not already part of a random testing program that meets
the requirements of this subpart and is acceptable to the railroad for which he or she performs
regulated service (as described in § 219.609); or
(2)
The railroad for which the contractor employee or volunteer performs regulated service is
unable to verify that the individual is part of a random testing program acceptable to the
railroad that meets the requirements of this subpart.
(d)
Multiple DOT agencies. (1) If a regulated employee performs functions subject to the random
testing requirements of more than one DOT agency, a railroad must ensure that the employee is
subject to selection for random drug and alcohol testing at or above the current minimum
annual testing rate set by the DOT agency that regulates more than 50 percent of the
employee’s DOT-regulated functions.
(2)
A railroad may not include a regulated employee in more than one DOT random testing pool
for regulated service performed on its behalf, even if the regulated employee is subject to the
random testing requirements of more than one DOT agency.
§ 219.603
General requirements for random testing programs.
(a)
General. To the extent possible, each railroad must ensure that its FRA random testing program
is designed and implemented so that each employee performing regulated service on its behalf
should reasonably anticipate that he or she may be called for a random test without advance
warning at any time while on duty and subject to performing regulated service.
(b)
Prohibited selection bias. A random testing program may not have a selection bias or an
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
appearance of selection bias, or appear to provide an opportunity for a regulated employee to
avoid complying with this section.
(c)
Plans. As required by §§ 219.603 through 219.609, each railroad must submit for FRA
approval a random testing plan meeting the requirements of this subpart. The plan must address
all regulated employees, as defined in § 219.5.
(d)
Pools. Each railroad must construct and maintain random testing pools in accordance with §
219.611.
(e)
Selections. Each railroad must conduct random testing selections in accordance with § 219.613.
(f)
Collections. Each railroad must perform random testing collections in accordance with
§ 219.615.
(g)
Cooperation. Each railroad and its regulated employees must cooperate with and participate in
random testing in accordance with § 219.617.
(h)
Responsive action. Each railroad must handle positive random tests and verified refusals to test
in accordance with § 219.619.
(i)
Service agents. Each railroad may use a service agent to perform its random testing
responsibilities in accordance with § 219.621.
(j)
Records. Each railroad must maintain records required by this subpart in accordance with
§ 219.623.
§ 219.605
Submission and approval of random testing plans.
(a)
Plan submission. (1) Each railroad must submit for review and approval a random testing plan
meeting the requirements of §§ 219.607 and 219.609 to the FRA Drug and Alcohol Program
Manager, 1200 New Jersey Ave., SE, Washington, DC 20590. A railroad commencing start-up
operations must submit its plan no later than 30 days before its date of commencing operations.
A railroad that must comply with subpart G because it no longer qualifies for the small railroad
exception under § 219.3 (due to a change in operations or its number of covered employees)
must submit its plan no later than 30 days after it becomes subject to the requirements of this
subpart. A railroad may not implement a Federal random testing plan or any substantive
amendment to that plan before FRA approval.
(2)
A railroad may submit separate random testing plans for each category of regulated employees
(as defined in § 219.5), combine all categories into a single plan, or amend its current FRAapproved plan to add additional categories of regulated employees, as defined by this part.
(b)
Plan approval notification. FRA will notify a railroad in writing whether its plan is approved.
If the plan is not approved because it does not meet the requirements of this subpart, FRA will
inform the railroad of its non-approval, with specific explanations of any required revisions.
The railroad must resubmit its plan with the required revisions within 30 days of the date of
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FRA’s written notice. Failure to resubmit the plan with the necessary revisions will be a failure
to submit a plan under this part.
(c)
Plan implementation. Each railroad must implement its random testing plan no later than 30
days from the date of FRA approval.
(d)
Plan amendments. (1) Each railroad must submit to FRA a substantive amendment to an
approved plan at least 30 days before its intended effective date. A railroad may not implement
any substantive amendment before FRA approval.
(2)
Each railroad must provide a non-substantive amendment to an approved plan (such as the
replacement or addition of service providers) to the FRA Drug and Alcohol Program Manager
in writing (by letter or email) before its effective date. However, FRA pre-approval is not
required.
(e)
Previously approved plans. A railroad is not required to resubmit a random testing plan that
FRA had approved before June 12, 2017, unless the railroad must amend the plan to comply
with the requirements of this subpart. A railroad must submit new plans, combined plans, or
amended plans incorporating new categories of regulated employees (i.e., maintenance-of-way
employees) for FRA approval at least 30 days before June 12, 2017.
§ 219.607
Requirements for random testing plans.
(a)
General. A random testing plan that a railroad submits under this subpart must address and
comply with the requirements of this subpart. The railroad must also comply with these
requirements in implementing the plan.
(b)
Model random testing plan. A railroad (or a contractor or service agent that submits a part
219-compliant random testing plan to a railroad for submission as a part of the railroad’s
random testing plan) may complete, modify if necessary, and submit a plan based on the FRA
model random testing plan that can be downloaded from FRA’s Drug and Alcohol Program
website.
(c)
Specific plan requirements. Each random testing plan must contain the following items of
information, each of which must be contained in a separate, clearly identified section:
(1)
Total number of covered employees, including covered service contractor employees and
volunteers;
(2)
Total number of maintenance-of-way employees, including maintenance-of-way contractor
employees and volunteers;
(3)
Names of any contractors who perform regulated service for the railroad, with contact
information;
(4)
Method used to ensure that any regulated service contractor employees and volunteers are
CFR Part 219, effective June 12, 2017
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subject to the requirements of this subpart, as required by § 219.609;
(5)
Name, address, and contact information for the railroad’s Designated Employer Representative
(DER) and any alternates (if applicable);
(6)
Name, address, and contact information for any service providers, including the railroad’s
Medical Review Officer (MRO), Substance Abuse and Mental Health Services Administration
(SAMHSA) certified drug testing laboratory(ies), Drug and Alcohol Counselors (DACs),
Substance Abuse Professionals (SAPs) and C/TPA or collection site management companies.
Individual collection sites do not have to be identified;
(7)
Number of random testing pools and the proposed general pool entry assignments for each pool.
If using a C/TPA, a railroad must identify whether its regulated employees are combined into
one pool, contained in separate pools, or combined in a larger pool with other FRA or other
DOT agency regulated employees, or both.
(8)
Target random testing rates;
(9)
Method used to make random selections, including a detailed description of the computer
program or random number table selection process employed;
(10)
Selection unit(s) for each random pool (e.g., employee name or ID number, job assignment,
train symbol) and whether the individual selection unit(s) will be selected for drugs, alcohol, or
both;
(11)
If a railroad makes alternate selections, under what limited circumstances these alternate
selections will be tested (see § 219.613);
(12)
Frequency of random selections (e.g., monthly);
(13)
Designated testing window. A designated testing window extends from the beginning to the
end of the designated testing period established in the railroad’s FRA-approved random plan
(see § 219.603), after which time any individual selections for that designated testing window
that have not been collected are no longer active (valid); and
(14)
Description of how the railroad will notify a regulated employee that he or she has been
selected for random testing.
§ 219.609
Inclusion of contractor employees and volunteers in random testing plans.
(a)
Each railroad’s random testing plan must demonstrate that all of its regulated service contractor
employees and volunteers are subject to random testing that meets the requirements of this
subpart. A railroad can demonstrate that its regulated service contractor employees and
volunteers are in compliance with this subpart by either:
(1)
Directly including regulated service contractor employees and volunteers in its own random
CFR Part 219, effective June 12, 2017
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testing plan and ensuring that they are tested according to that plan; or
(2)
Indicating in its random testing plan that its regulated service contractor employees and
volunteers are part of a random testing program which is compliant with the requirements of
this subpart, e.g., conducted by a contractor or C/TPA (“non-railroad random testing program”).
If a railroad chooses this option, the railroad must append to its own random testing plan one or
more addenda describing the method it will use to ensure that the non-railroad random testing
program is testing its regulated service contractor employees and volunteers according to the
requirements of this subpart. A railroad may comply with this requirement by appending the
non-railroad random testing program or a detailed description of the program and how it
complies with this subpart.
(b)
Each railroad’s random testing plan(s) and any addenda must contain sufficient detail to fully
document that the railroad is meeting the requirements of this subpart for all personnel
performing regulated service on its behalf.
(c)
If a railroad chooses to use regulated service contractor employees and volunteers who are part
of a non-railroad random testing program, the railroad remains responsible for ensuring that the
non-railroad program is testing the regulated service contractor employees and volunteers
according to the requirements of this subpart.
(d)
FRA does not pre-approve contractor or service agent random testing plans, but may accept
them as part of its approval process of a railroad’s plan.
§ 219.611
Random alcohol and drug testing pools.
(a)
General. Each railroad must ensure that its random testing pools include all regulated
employees who perform regulated service on its behalf, except that a railroad’s random testing
pools do not have to include regulated employees who are part of a non-railroad random testing
program that is compliant with the requirements of this subpart and that has been accepted by
the railroad.
(b)
Pool entries. Each railroad must clearly indicate who will be tested when a specific pool entry
is selected.
(1)
Pool entries may be employee names or identification numbers, train symbols, or specific job
assignments, although all the entries in a single pool must be of generally consistent sizes and
types.
(2)
Pool entries must not allow a field manager or field supervisor to have discretion over which
employee is to be tested when an entry is selected.
(3)
Pool entries must be constructed and maintained so that all regulated employees have an equal
chance of being selected for random testing for each selection draw.
(c)
Minimum number of pool entries. A railroad (including a service agent used by a railroad to
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
carry out its responsibilities under this subpart) may not maintain a random testing pool with
less than four pool entries. Placeholder pool entries (entries that do not represent legitimate
selections of regulated employees) are not permitted. A railroad or contractor with less than
four regulated employees can comply with this requirement by having its regulated employees
incorporated into a railroad or non-railroad random testing pool that contains more than four
entries.
(d)
Pool construction. (1) An individual who is not subject to the random testing requirements of
FRA or another DOT agency may not be placed in the same pool as a regulated employee.
(2)
A railroad may not include a regulated employee in more than one random testing pool
established under the regulations of a DOT agency.
(3)
A regulated employee may be placed in a random testing pool with employees subject to the
random testing requirements of another DOT agency, only if all entries in the pool are subject
to testing at the highest minimum random testing rate required by the regulations of a DOT
agency for any single member in the pool.
(4)
A regulated employee does not have to be placed in separate pools for random drug and random
alcohol testing selection.
(5)
A regulated employee must be incorporated into a random testing pool as soon as possible after
his or her hire or first transfer into regulated service.
(e)
Frequency of regulated service. (1) A railroad may not place a person in a random testing pool
for any selection period in which he or she is not expected to perform regulated service.
(2)
A railroad employee who performs regulated service on average less than once a quarter is a de
minimis safety concern for random testing purposes, and does not have to be in a random
testing program. A railroad that chooses to random test de minimis employees must place them
in a separate random testing pool from employees who perform regulated service on a regular
basis (e.g., engineers, conductors, dispatchers, and signal maintainers).
(3)
A railroad must make a good faith effort to determine the frequency of an employee’s
performance of regulated service and must evaluate the employee’s likelihood of performing
regulated service in each upcoming selection period.
(f)
Pool maintenance. Pool entries must be updated at least monthly, regardless of how often
selections are made, and a railroad must ensure that each of its random testing pools is
complete and does not contain outdated or inappropriate entries.
(g)
Multiple random testing pools. A railroad may maintain more than one random testing pool if
it can demonstrate that its random testing program is not adversely impacted by the number and
types of pools or the construction of pool entries, and that selections from each pool will meet
the requirements of this subpart.
CFR Part 219, effective June 12, 2017
§ 219.613
Revisions as of June 7, 2017
Random testing selections.
(a)
General. Each railroad must ensure that each regulated employee has an equal chance of being
selected for random testing whenever selections are made. A railroad may not increase or
decrease an employee’s chance of being selected by weighting an entry or pool.
(b)
Method of selection. (1) Each railroad must use a selection method that is acceptable to FRA
and meets the requirements of this subpart, such as a computer selection program, proper use of
a random number table, or an alternative method which FRA has approved as part of the
railroad’s random testing plan.
(2)
A selection method must be free of bias or apparent bias and employ objective, neutral criteria
to ensure that every regulated employee has an equal statistical chance of being selected within
a specified time frame. The selection method may not utilize subjective factors that permit a
railroad to manipulate or control selections in an effort to either target or protect any employee,
job, or operational unit from testing.
(3)
The randomness of a selection method must be verifiable, and, as required by § 219.623, any
records necessary to document the randomness of a selection must be retained for not less than
two years from the date the designated testing window for that selection expired.
(c)
Minimum random testing rate. (1) Each railroad must distribute random tests reasonably
throughout the calendar year and make sufficient selections to ensure that each random testing
pool meets the Administrator’s minimum annual random testing rates as established according
to § 219.625.
(2)
Each railroad must continually monitor changes in its workforce to ensure that the required
number of selections and tests are conducted each year.
(d)
Selection frequency. Each railroad must select at least one entry from each of its random
testing pools every three months.
(e)
Discarded selection draws. Each selection draw must identify who will be subject to random
testing. A railroad cannot discard a selection draw without an acceptable explanation (e.g., the
selection was drawn from an incomplete or inaccurate pool). A railroad must document and
retain records for all discarded selection draws, including the specific reason the selection draw
was not used, as required by § 219.623.
(f)
Increasing random selections. A railroad that is unable to complete a collection for each
selection made during a designated testing period may increase the number of selections in a
subsequent selection period to ensure that it meets the annual minimum random testing rate for
the calendar year.
(g)
Selection snapshots. Each railroad must capture and maintain an electronic or hard copy
snapshot of each random testing pool at the time it makes a testing selection. A railroad must
not re-create pool entries from records after the time of the original selection. The railroad must
maintain this snapshot for a period of two years, as required by subpart J of this part.
CFR Part 219, effective June 12, 2017
(h)
§ 219.615
Revisions as of June 7, 2017
Multiple DOT agencies. Each railroad must ensure that each regulated employee who performs
functions subject to the random testing requirements of more than one DOT agency is subject to
random selection at or above the current minimum annual testing rate set by the DOT agency
that regulates more than 50 percent of the employee's DOT-regulated functions.
Random testing collections.
(a)
Minimum random testing rates. Each railroad must complete a sufficient number of random
alcohol and drug testing collections from each of its random testing pools to meet the
Administrator’s minimum annual testing rates established in accordance with § 219.625.
(b)
Designated testing window. Each railroad must complete the collection for a selected pool
entry within the FRA-approved designated testing window for that selection. Once a
designated testing window has closed, any selections not collected during that window are no
longer valid and may not be subject to random testing.
(c)
Collection timing. (1) A regulated employee may be subject to random testing only while on
duty and subject to performing regulated service.
(2)
Each railroad’s random alcohol and drug testing collections must be unannounced and spread
reasonably throughout the calendar year. Collections must also be distributed unpredictably
throughout the designated testing window and must reasonably cover all operating days of the
week (including operating weekends and holidays), shifts, and locations.
(3)
Random alcohol test collections must be performed unpredictably and in sufficient numbers at
either end of an operating shift to attain an acceptable level of deterrence throughout the entire
shift. At a minimum, a railroad must perform 10% of its random alcohol tests at the beginning
of shifts and 10% of its random alcohol tests at the end of shifts.
(4)
If a regulated employee has been selected for both random drug and alcohol testing, a railroad
may conduct these tests separately, so long as both required collections can be completed by the
end of the employee’s shift and the railroad does not inform the employee that an additional
collection will occur later.
(d)
Collection scheduling. While pool entries must be selected randomly, a railroad may schedule
each random test collection during a designated testing window according to its approved plan.
(1)
A railroad may schedule a collection based on the availability of the selected pool entry, the
logistics of performing the collection, and any other requirements of this subpart.
(2)
If a selected pool entry does not identify the selection by name (i.e., train crews or job
functions), a railroad may not use its scheduling discretion to deliberately target or protect a
particular employee or work crew. Unless otherwise approved in a random testing plan,
railroad field supervisors or field management personnel may not use discretion to choose or to
change collection dates or times if that choice could intentionally alter who is to be tested.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(e)
Notification requirements. (1) A railroad may notify a regulated employee that he or she has
been selected for random testing only during the duty tour in which the collection is to be
conducted, and only so far in advance as is reasonably necessary to ensure the employee's
presence at the scheduled collection time and place.
(2)
A railroad must make collections as soon as possible. Each collection must begin within two
hours after the railroad has notified the employee of his or her selection for random testing,
unless the railroad has an acceptable reason for the delay. A railroad should monitor each
employee after notification and, whenever possible, arrange for the employee to be immediately
escorted by supervisory or management personnel to the collection location.
(3)
A railroad must inform a regulated employee that he or she has been selected for random
testing at the time the employee is notified. Completion of the Federal Drug Testing Custody
and Control Form (CCF) or the DOT Alcohol Testing Form (ATF) indicating the basis of the
test satisfies this requirement, so long as the employee has been shown and directed to sign the
CCF or ATF as required by §§ 40.73 and 40.241 of this title.
(f)
Incomplete collections. A railroad must use due diligence to ensure that a random testing
collection is completed for each selected pool entry, unless it has an acceptable explanation for
not conducting the collection. All reasons for incomplete collections must be fully documented
and are subject to inspection by FRA upon request.
(g)
Hours-of-service limitations. (1) Except as provided by paragraph (g)(2) of this section, a
railroad must immediately terminate a random collection and may not reschedule it if the
collection is not completed within a covered employee’s hours-of-service limitations.
(2)
If a random collection requires a direct observation collection under § 40.67 of this title, the
directly observed collection must immediately proceed until completed. A railroad must
submit an excess service report, as required by part 228 of this chapter, if completion of the
directly observed collection causes the covered employee to exceed his or her hours-of-service
limitations.
§ 219.617
Participation in random alcohol and drug testing.
(a)
Railroad responsibility. (1) A railroad must, under the conditions specified in this subpart and
subpart H of this part, require a regulated employee selected for random testing to cooperate in
alcohol and/or drug testing.
(2)
If an employee is performing regulated service at the time he or she is notified of his or her
selection for random testing, the railroad must ensure that the employee immediately ceases to
perform regulated service and proceeds to the collection site without adversely affecting safety.
A railroad must also ensure that the absence of an employee from his or her assigned duties to
report for testing does not adversely affect safety. Once an employee begins the testing process,
he or she may not be returned to regulated service until the process is complete.
(3)
A railroad may excuse an employee who has been notified of or her selection for random
testing only if the employee can substantiate that a medical emergency involving the employee
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
or an immediate family member (e.g. birth, death, or medical emergency) supersedes the
requirement to complete the test. A medical emergency is defined in this part as an acute
medical condition requiring immediate emergency care. To be eligible for exclusion from
random testing, the employee must provide verifiable documentation of the emergency
situation from a credible outside professional within a reasonable period of time (e.g., a doctor,
dentist, hospital, law enforcement officer, or school authority). A railroad may not test an
employee who has been excused from testing under the same random selection.
(b)
Employee responsibility. (1) A regulated employee subject to the random testing requirements
of this subpart must cooperate with the selection and testing process, and must proceed to the
testing site upon notification that he or she has been selected for random testing.
(2)
A regulated employee must fully cooperate and comply with the urine drug collection and/or
breath alcohol testing procedures required by subpart H of this part, and provide the required
specimen(s), and must, upon request, complete the required paperwork and certifications.
§ 219.619
Positive alcohol and drug test results and refusals; procedures.
Section 219.104 contains the procedures for administrative handling by the railroad or contractor in the
event a urine specimen provided under this subpart is reported as a verified positive by the Medical
Review Officer, a breath alcohol specimen is reported at 0.04 or greater by the Breath Alcohol
Technician, or a refusal to test has occurred. The responsive action required in § 219.104 is not stayed
pending the result of the testing of a split urine specimen or a challenge to any part of the testing
process or procedure.
§ 219.621
Use of service agents.
(a)
A railroad may use a service agent (such as a consortium/third party administrator (C/TPA)) to
act as its agent to carry out any role in random testing specifically permitted under subpart Q of
part 40 of this title, such as maintaining random pools, conducting random selections, and
performing random urine drug collections and breath alcohol tests.
(b)
A railroad may not use a service agent to notify a regulated employee that he or she has been
selected for random testing. A regulated employee who has been selected for random testing
must otherwise be notified of the selection by his or her employer. A service agent may also
not perform any role that § 40.355 of this title specifically reserves to an employer, which, for
purposes of this subpart, is defined as a railroad or a contractor performing railroad-accepted
testing.
(c)
A railroad is primarily responsible for compliance with the random alcohol and drug testing of
this subpart, but FRA reserves the right to bring an enforcement action for noncompliance
against the railroad, its service agents, its contractors, and/or its employees.
(d)
If a railroad conducts random drug and/or alcohol testing through a C/TPA, the number of
employees required to be tested may be calculated for each individual railroad belonging to the
C/TPA, or may be based on the total number of regulated employees covered by the C/TPA in a
larger combined railroad or DOT agency random pool. Selections from combined railroad
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
random pools must meet or exceed the highest minimum annual percentage rate established
under this subpart or any DOT agency drug testing rule that applies to any member of that pool.
§ 219.623
Records.
(a)
As provided by § 219.901, each railroad is required to maintain records related to random
testing for a minimum of two years.
(b)
Contractors and service agents performing random testing responsibilities under this subpart
must provide records required by this subpart whenever requested by the contracting railroad or
by FRA. A railroad remains responsible for maintaining records demonstrating that it is in
compliance with the requirements of this subpart.
§ 219.625
FRA Administrator's determination of random alcohol and drug testing rates.
(a)
Notice. Each year, the Administrator publishes a Federal Register notice announcing the
minimum annual random alcohol and drug testing rates which take effect on January 1 of the
following calendar year. These rates are based on the railroad industry’s random testing
violation rates for the preceding two consecutive calendar years, which are determined using
annual railroad alcohol and drug program data required to be submitted to the FRA’s
Management Information System (MIS) under § 219.800.
(b)
Information. Data from MIS reports provide the information used for this determination. In
order to ensure reliability of the data, the Administrator may consider the quality and
completeness of the reported data, obtain additional information or reports from railroads, or
make appropriate modifications in calculating the industry positive rate.
(c)
Initial minimum annual random testing rates. The Administrator has established an initial
minimum annual random testing rate of 50 percent for drugs and 25 percent for alcohol for any
new category of regulated employees added to those already being tested under this part.
(1)
These initial testing rates are subject to amendment by the Administrator in accordance with
paragraphs (d) and (e) of this section after at least 18 months of MIS data have been compiled
for the new category of regulated employees.
(2)
The Administrator will determine separate minimum annual random testing rates for each
added category of regulated employees for a minimum of three calendar years after that
category is incorporated into random testing under this part.
(3)
The Administrator may move to combine categories of regulated employees requiring separate
determinations into a single determination once the categories’ testing rates are identical for
two consecutive years.
(d)
Drug testing rate. The Administrator may set the minimum annual random drug testing rate for
the railroad industry at either 50 percent or 25 percent.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(1)
When the minimum annual percentage rate for random drug testing is 50 percent, the
Administrator may lower the rate to 25 percent if the Administrator determines that the MIS
data for two consecutive calendar years show that the reported random testing positive rate is
less than 1.0 percent.
(2)
When the minimum annual percentage rate for random drug testing is 25 percent, and the MIS
data for any calendar year show that the reported random testing 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.
(e)
Alcohol testing rate. The Administrator may set the minimum annual random alcohol testing
rate for the railroad industry at 50 percent, 25 percent, or 10 percent.
(1)
When the minimum annual percentage rate for random alcohol testing is 50 percent or 25
percent, the Administrator may lower this rate to 10 percent if the Administrator determines
that the MIS data for two consecutive calendar years show that the random testing violation rate
is less than 0.5 percent.
When the minimum annual percentage rate for random alcohol testing is 50 percent, the
Administrator may lower the rate to 25 percent if the Administrator determines that the MIS
data for two consecutive calendar years show that the random testing violation rate is less than
1.0 percent but equal to or greater than 0.5 percent.
(2)
(3)
When the minimum annual percentage rate for random alcohol testing is 25 percent, and the
MIS data for that calendar year show that the random testing violation rate for alcohol 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 50 percent.
(4)
When the minimum annual percentage rate for random alcohol testing is 10 percent or 25
percent, and the MIS data for any calendar year show that the random testing violation rate is
equal to or greater than 1.0 percent, the Administrator will increase the minimum annual
percentage rate for random alcohol testing to 50 percent.
Subpart H—Drug and Alcohol Testing Procedures
§219.701 Standards for drug and alcohol testing.
(a)
Drug testing required or authorized by subparts B, D, E, F, G, and K (but only for co-worker or
non-peer referrals that involve a violation of the prohibitions of this subpart) 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, E, F, G, and K (but only for co-worker
or non-peer referrals that involve a violation of the prohibitions of this subpart) of this part must
be conducted in compliance with all applicable provisions of the Department of Transportation
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
Procedures for Transportation Workplace Drug and Alcohol Testing Programs (part 40 of this
title).
Subpart I—Annual Report
§219.800 Annual reports.
(a)
Each railroad that has a total of 400,000 or more employee hours (including hours worked by
all employees of the railroad, regardless of occupation, not only while in the United States but
also while outside the United States) must 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. As used in this paragraph, the term “employees of the
railroad” includes individuals who perform service for the railroad, including not only
individuals who receive direct monetary compensation from the railroad for performing a
service for the railroad, but also such individuals as employees of a contractor to the railroad
who perform a service for the railroad.
(b)
As a railroad, you must use the Management Information System (MIS) form and instructions
as required by 49 CFR part 40 (at §40.25 and appendix H to part 40). You may also use the
electronic version of the MIS form provided by the DOT. The Administrator may designate
means (e.g., electronic program transmitted via the Internet), other than hard-copy, for MIS
form submission to FRA. For information on where to submit MIS form and for the electronic
version of the form, see: http://www.fra.dot.gov/eLib/details/L02639.
(c)
Each railroad shall ensure the accuracy and timeliness of each report submitted.
(d)
As a railroad, if you have a regulated employee who performs multi-DOT agency functions
(e.g., an employee drives a commercial motor vehicle and performs switchman duties for you),
count the employee only on the MIS report for the DOT agency under which he or she is
random tested. Normally, this will be the DOT agency under which the employee performs
more than 50% of his or her duties. Railroads may have to explain the testing data for these
employees in the event of a DOT agency inspection or audit.
(e)
A service agent (e.g., a consortium/third party administrator) may prepare the MIS report on
behalf of a railroad. However, a railroad official (e.g., a designated employee representative)
must certify the accuracy and completeness of the MIS report, no matter who prepares it.
(f)
A railroad required to submit an MIS report under this section must submit separate reports for
covered employees and MOW employees.
§§219.801-219.803 [Reserved]
Subpart J—Recordkeeping Requirements
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
§219.901 Retention of alcohol and drug testing records.
(a)
General. (1) In addition to the records part 40 of this title requires keeping, a railroad must also
maintain alcohol and drug misuse prevention program records in a secure location with
controlled access under this section’s requirements.
(2)
A railroad must maintain for two years, rather than one year, the records to which §40.333(a)(4)
of this title applies (i.e., records of negative and cancelled drug test results and alcohol test
results with a concentration of less than 0.02). A railroad may maintain legible and accessible
scanned or electronic copies of these records for the second year.
(b)
Records maintained for a minimum of five years. Each railroad must maintain the following
records for a minimum of five years:
(1)
A summary record or the individual files of each regulated employee’s test results; and
(2)
A copy of the annual report summarizing the results of its alcohol and drug misuse prevention
program (if required to submit the report under § 219.800(a)).
(c)
Records maintained for a minimum of two years. 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, including the railroad’s approved random
testing plan and FRA’s approval letter for that plan;
(iii)
Documents generated in connection with decisions to administer Federal reasonable suspicion
or reasonable cause alcohol or drug tests;
(iv)
Documents generated in connection with decisions on post-accident testing; and
(v)
Documents verifying the existence of a medical explanation for the inability of a regulated
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)
The railroad’s copy of the drug test custody and control form, including the results of the test;
(iii)
Documents related to any regulated employee’s refusal to submit to an alcohol or drug test
required under this part; and
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(iv)
Documents a regulated employee presented to dispute the result of an alcohol or drug test
administered under this part;
(3)
Records related to other violations of this part; and
(4)
Records related to employee training:
(i)
Materials on alcohol and drug abuse awareness, including a copy of the railroad’s policy on
alcohol and drug abuse;
(ii)
Documentation of compliance with the requirements of § 219.23; and
(iii)
Documentation of training (including attendance records and training materials) the railroad
provided to supervisors for the purpose of qualifying the supervisors to make a determination
concerning the need for reasonable suspicion or post-accident alcohol and drug testing.
§ 219.903
Access to facilities and records.
(a)
Release of regulated employee information contained in records required to be maintained
under § 219.901 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 grant access to all facilities used to comply with 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 regulated employees.
(c)
Each railroad must make available copies of all results for its drug and alcohol 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 regulated employee.
§ 219.905—[Removed and Reserved]
Subpart K—Referral Programs
§ 219.1001 Requirement for referral programs.
(a)
The purpose of this subpart is to help prevent the adverse effects of drug and alcohol abuse in
connection with regulated employees.
(b)
A railroad must adopt, publish, and implement the following programs:
(1)
Self-referral program. A program designed to encourage and facilitate the identification of a
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
regulated employee who abuses drugs or alcohol by providing the employee the opportunity to
obtain counseling or treatment before the employee’s drug or alcohol abuse manifests itself in a
detected violation of this part; and
(2)
Co-worker referral program. A program designed to encourage co-worker participation in
preventing violations of this part.
(c)
A railroad may adopt, publish, and implement the following programs:
(1)
Non–peer referral program. A program designed to encourage non-peer participation in
preventing violations of this part; and
(2)
Alternate program(s). An alternate program or programs meeting the specific requirements of
§ 219.1003 or complying with § 219.1007, or both.
(d)
Nothing in this subpart may be construed to:
(1)
Require payment of compensation for any period a regulated employee is restricted from
performing regulated service under a voluntary, co-worker, or non-peer referral program;
(2)
Require a railroad to adhere to a voluntary, co-worker, or non-peer referral program when the
referral is made for the purpose, or with the effect, of anticipating or avoiding the imminent and
probable detection of a rule violation by a supervising employee;
(3)
Interfere with the subpart D requirement for Federal reasonable suspicion testing when a
regulated employee is on duty and a supervisor determines the employee is exhibiting signs and
symptoms of alcohol and/or drug use;
(4)
Interfere with the requirements in § 219.104(d) for responsive action when a violation of
§§ 219.101 or 219.102 is substantiated; or
(5)
Limit the discretion of a railroad to dismiss or otherwise discipline a regulated employee for
specific rule violations or criminal offenses, except as this subpart specifically provides.
§ 219.1003 Referral program conditions.
(a)
General. A referral program must specify the allowances, conditions, and procedures under
which a self-referral, co-worker referral, and, if adopted, a non-peer referral, can occur, as
follows:
(1)
For a self-referral, a railroad must identify one or more designated DAC contacts (including
telephone number and email (if available)) and any expectations regarding when the referral is
allowed to take place (such as during non-duty hours, or while the employee is unimpaired, or
both, as § 219.1005 permits);
(2)
For a co-worker referral, a railroad may accept a referral under this subpart only if it alleges
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
that the regulated employee was apparently unsafe to work with or in violation of this part or
the railroad’s drug and alcohol abuse rules. The employee must waive investigation of the rule
charge and must contact the DAC within a reasonable period of time;
(3)
For a non-peer referral, a railroad may remove a regulated employee from service only if a
railroad representative confirms that the employee is unsafe to work with or in violation of this
part or the railroad’s drug and alcohol abuse rules. The employee must waive investigation of
the rule charge and must contact the DAC within a reasonable period of time.
(b)
Employment maintained. A regulated employee who is affected by a drug or alcohol abuse
problem may maintain an employment relationship with a railroad if:
(1)
The employee seeks assistance through the railroad’s voluntary referral program for his or her
drug or alcohol abuse problem or a co-worker or a non-peer refers the employee for such
assistance; and
(2)
The employee successfully completes the education, counseling, or treatment program a DAC
specifies under this subpart.
(c)
Employment action. If an employee does not choose to seek assistance through a referral
program, or fails to cooperate with a DAC’s recommended program, the disposition of the
employee’s relationship with the railroad is subject to normal employment action.
(d)
Qualified DAC evaluation. (1) A DAC acceptable to the railroad must evaluate a regulated
employee entering a self-referral, co-worker referral, or non-peer referral program;
(2)
The DAC must meet any applicable state standards and comply with this subpart; and
(3)
The DAC must determine the appropriate level of care (education, counseling, or treatment, or
all three) necessary to resolve any identified drug or alcohol abuse problems.
(e)
Removal from regulated service. A referral program must stipulate that a regulated employee a
DAC has evaluated as having an active drug abuse disorder may not perform regulated service
until the DAC can report that safety is no longer affected.
(f)
Confidentiality maintained. Except as provided under paragraph (l) of this section, a railroad
must treat a regulated employee’s referral and subsequent handling (including education,
counseling, and treatment) as confidential. Only personnel who administer the railroad’s
referral programs may have access to the identities of the individuals in these programs.
(g)
Leave of absence. A railroad must grant a regulated employee the minimum leave of absence
the DAC recommends to complete a primary education, counseling, or treatment program and
to establish control over the employee’s drug or alcohol abuse problem.
(h)
Return to regulated service. (1) Except as §§ 219.1001(d)(4) and 219.1005 may provide, a
railroad must return an employee to regulated service upon the DAC’s recommendation that the
employee has established control over his or her drug abuse problem, has a low risk to return to
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
drug or alcohol abuse, and has complied with any recommended return-to-service requirements.
(2)
The DAC determines the appropriate number and frequency of required follow-up tests. The
railroad determines the dates of testing.
(3)
The railroad may condition an employee’s return to regulated service on successful completion
of a return-to-service medical evaluation.
(4)
A railroad must return an employee to regulated service within five working days of the DAC’s
notification to the railroad that the employee is fit to return to regulated service, unless the
employee has a disqualifying medical condition (i.e., the employee is at a low risk to return to
drug and alcohol abuse).
(i)
Rehabilitation plan. No person—whether an employing railroad, managed care provider,
service agent, individual, or any person other than the DAC who conducted the initial
evaluation—may change in any way the DAC’s evaluation or recommendations for assistance.
The DAC who made the initial evaluation may modify the employee’s initial evaluation and
follow-up recommendation(s) based on new or additional information.
(j)
Locomotive engineers and conductors. Consistent with §§ 240.119(e) and 242.115(g) of this
chapter, for a certified locomotive engineer, certified conductor, or a candidate for engineer or
conductor certification, the referral program must state that confidentiality is waived (to the
extent the railroad receives from a DAC official notice of the active drug abuse disorder and
suspends or revokes the certification, as appropriate) if the employee at any time refuses to
cooperate in a recommended course of counseling or treatment.
(k)
Contacting a DAC. If an employee does not contact a DAC within the railroad’s specified time
limits, the railroad may begin an investigation to assess the employee’s cooperation and
compliance with its referral program.
(l)
Time requirements for DAC evaluations. Once a regulated employee has contacted the
designated DAC, the DAC’s evaluation must be completed within 10 working days. If the
employee needs more than one evaluation, the evaluations must be completed within 20
working days.
(m)
Time limitations on follow-up treatment, care, or testing. Any follow-up treatment, care, or
testing established under a referral program must not exceed 24 months beyond a regulated
employee’s initial removal from regulated service, unless the regulated employee’s entry into
the program involved a substantiated part 219 violation.
§ 219.1005 Optional provisions.
A railroad’s referral program may include any of the following provisions at the option of the railroad
and with the approval of the labor organization(s) affected:
(a)
The program may provide that the rule of confidentiality is waived if:
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(1)
The regulated employee at any time refuses to cooperate in a DAC’s recommended course of
education, counseling, or treatment; or
(2)
The railroad determines, after investigation, that the regulated employee has been involved in a
drug- or alcohol-related disciplinary offense growing out of subsequent conduct.
(b)
The program may require successful completion of a return-to-service medical examination as a
further condition of reinstatement in regulated service.
(c)
The program may provide that it does not apply to a regulated employee whom the railroad has
previously assisted under a program substantially consistent with this section.
(d)
The program may provide that, in order to invoke its benefits, the regulated employee must
report to the railroad’s designated contact either:
(1)
During non-duty hours (i.e., at a time when the regulated employee is off duty); or
(2)
While unimpaired and otherwise in compliance with the railroad’s drug and alcohol rules
consistent with this subpart.
§ 219.1007 Alternate programs.
(a)
Instead of the referral programs required under § 219.1001, a railroad is permitted to develop, publish,
and implement alternate programs that meet the standards established in § 219.1001. Such programs
must have the written concurrence of the recognized representatives of the regulated employees.
Nothing in this subpart restricts a railroad or labor organization from adopting, publishing, and
implementing programs that afford more favorable conditions to regulated employees troubled
by drug or alcohol abuse problems, consistent with a railroad’s responsibility to prevent
violations of §§ 219.101, 219.102, and 219.103.
(b)
The concurrence of the recognized representatives of the regulated employees in an alternate
program may be evidenced by a collective bargaining agreement or any other document
describing the class or craft of employees to which the alternate program applies. The
agreement or other document must make express reference to this subpart and to the intention
of the railroad and employee representatives that the alternate program applies instead of the
program required by this subpart.
(c)
The railroad must file the agreement or other document described in paragraph (b) of this
section along with the requested alternate program it submits for approval with the FRA Drug
and Alcohol Program Manager. FRA will base its approval on whether the alternative program
meets the § 219.1001 objectives. The alternative program does not have to include each §
219.1001 component, but must meet the general standards and intent of § 219.1001. If a
railroad amends or revokes an approved alternate policy, the railroad must file a notice with
FRA of such amendment or revocation at least 30 days before the effective date of such action.
(d)
This section does not excuse a railroad from adopting, publishing, and implementing the
programs § 219.1001 requires for any group of regulated employees not falling within the
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
coverage of an appropriate, approved alternate program.
(e)
Consistent with § 219.105(c), FRA has the authority to inspect the aggregate data of any
railroad alcohol and/or drug use education, prevention, identification, and rehabilitation
program or policy, including alternate peer support programs, to ensure that they are not
designed or implemented in such a way that they circumvent or otherwise undermine Federal
requirements, including the requirements in this part regarding peer support programs.
Appendix A to Part 219—Schedule of Civil Penalties
Violation
Willful
violation
Subpart A—General
219.3
Application:
(a) Railroad or contractor does not have required program
$5,000
$7,500
2,500
5,000
5,000
7,500
(b)(1) Employee unlawfully refuses to participate in testing
2,500
5,000
(b)(2) Employer fails to give priority to medical treatment
3,000
8,000
(b)(3) Employee fails to remain available
2,500
5,000
(d) Employee unlawfully required to execute a waiver of rights
2,500
5,000
(e)(1) Failure to direct employee to proceed to collection site as soon as
possible without affecting safety
2,500
5,000
(e)(3) Railroad used or authorized the use of coercion to obtain specimens
5,000
7,500
(g) Failure to meet supervisory training requirements or program of instruction
not available or program not complete
2,500
5,000
(h) Urine or blood specimens provided for Federal testing were used for nonauthorized testing
2,500
5,000
2,500
5,000
1,000
4,000
(c) Railroad or contractor improperly tests under subpart E or G of this part
219.9
Responsibility for compliance:
(b)(1) Host railroad failed to take responsibility for compliance or other railroad
or contractor did not take responsive action of direction of host railroad during
joint operations
219.11
219.12
General conditions for chemical tests:
Hours-of-service laws implications:
(a)-(d) Failure to exceed Hours of Service to conduct required testing or
exceeding HOS when not authorized to conduct testing
219.23
Railroad policies:
(a) Failure to provide written notice of FRA test
CFR Part 219, effective June 12, 2017
219.25
Revisions as of June 7, 2017
(a)(1) Failure to provide written notice of basis for FRA test
1,000
4,000
(a)(2) Use of a non-approved FRA form for mandatory post- accident
toxicological testing
1,000
4,000
(b) Improper use of Federal drug or alcohol testing form or use of Subpart C
form for other test
1,000
4,000
(c) Failure to make required educational materials available
2,500
5,000
(d) Failure to provide required minimum educational content
2,500
5,000
(e) Non-Federal provisions are not clearly described as independent authority
2,500
5,000
(a)(1)Failure to conduct previous employer drug and alcohol check or failure
to provide response to previous employer when requested
2,500
5,000
(a)(2) Failure to perform and complete FRA and DOT-required background
checks in a timely manner
2,500
5,000
(a)(3) Failure to document due diligence in completing FRA and DOT-required
background checks
2,500
5,000
(b) Failure to comply with § 240.119(c)(2) (for engineers) or § 242.115(e)(2)
(for conductors) of this chapter regarding the consideration of Federal alcohol
and drug violations that occurred within a period of 60 consecutive months
prior to the review of the person’s records.
2,500
5,000
Previous employer drug and alcohol checks:
Subpart B—Prohibitions
219.101
Alcohol and drug use prohibited:
(a) Railroad with actual knowledge of use, possession or impairment from
alcohol or controlled substances permits employee to go on duty or remain on
duty
10,000
219.102
Railroad with actual knowledge of use of controlled substances other than
that permitted by 219.103.
219.103
Prescribed and over-the-counter drugs:
(a) Failure to train employee properly on requirements
219.104
219.105
2,500
5,000
(a) Failure to remove employee from regulated service immediately
5,000
7,500
(b) Failure to provide written notice for removal
2,500
5,000
(c) Failure to provide prompt hearing within 10 calendar days
2,500
5,000
(d) Employee improperly returned to regulated service
5,000
7,500
(e) Failure to ensure certified locomotive engineers and conductors received
required follow-up testing minimums as per § 240.119(d)(2) and §
242.115(f)(2).
2,500
5,000
(a) Employee improperly permitted to remain in regulated service
7,500
10,000
(b) Failure to exercise due diligence to assure compliance with prohibition
5,000
7,500
Responsive action:
Railroad’s duty to prevent violations:
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(d) Failure to conduct and record minimum number of Rule G observations
219.107
2,500
5,000
(a) Failure to disqualify an employee for nine months following a refusal
5,000
7,500
(b) Fail to provide written notice of withdrawal to employee
2,500
5,000
(c) Employee unlawfully returned to service
5,000
7,500
(a) Failure to test after qualifying event (each regulated employee not tested is
a violation)
5,000
7,500
(c)(1)(i) Failure to make good faith determination
5,000
7,500
(c)(1)(ii) Failure to provide requested decision report to FRA
2,500
5,000
(c)(2) Testing performed after non-qualifying event
5,000
10,000
(a)(1)(i) and (a)(2)(i) Failure to properly test/exclude from testing
5,000
7,500
(a)(1)(ii) and (a)(2)(ii) Non-regulated service employee tested
5,000
7,500
(b)(1) Delay in obtaining specimens due to failure to make every reasonable
effort
2,500
5,000
(c) Independent medical facility not utilized
2,500
5,000
(d) Failure to report event or contact FRA when intervention required
1,000
3,000
(d)(1) Failure to collect specimens in a timely manner
2,500
5,000
(e)(2) Failure to recall employee for testing when conditions met
2,500
5,000
(e)(5) Failure to document why employee could not be recalled
2,500
5,000
(f)(1) Specimen collection not completed at an independent medical facility
2,500
5,000
(a) Failure to observe requirements with respect to specimen collection,
marking and handling
2,500
5,000
(b) Failure to provide properly prepared forms with specimens
2,500
5,000
(d) Failure to promptly or properly forward specimens
2,500
5,000
(a) Failure to collect specimens
5,000
7,500
(a)(1) Failure to ensure timely collection and shipment of required specimens
2,500
5,000
(b) Failure to request assistance when necessary
2,500
5,000
(a)(1) Failure to provide telephonic report
1,000
2,000
(b) Failure to provide written report of refusal to test
1,000
2,000
Consequences of unlawful refusal:
Subpart C—Post-Accident Toxicological Testing
219.201
219.203
Events for which testing is required:
Responsibilities of railroads and employees:
219.205 Specimen collection and handling:
219.207 Fatality:
219.209
Reports of tests and refusals:
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(c) Failure to maintain report explaining why test not conducted within 4 hours
1,000
2,000
(c) Failure of the MRO to report MRO downgrades and/or verified nonnegative results to FRA in a timely manner
2,500
5,000
(g)(3) Unauthorized withholding of regulated employee out of regulated
service pending receipt of PAT testing results
2,500
5,000
(a) Failure to conduct breath alcohol test when reasonable suspicion testing
criteria met or conduct breath alcohol test under reasonable suspicion when
criteria not met
5,000
7,500
(b) Failure to conduct drug test when reasonable suspicion testing criteria met
or conduct drug test under reasonable suspicion when criteria not met
5,000
7,500
(a) Failure to use a trained supervisor when conducting a reasonable
suspicion determination for alcohol
2,500
5,000
(b) Failure to use two supervisors, one of which must have been trained, when
conducting a reasonable suspicion determination for drugs
2,500
5,000
(c) Improperly holding employee out of service
2,500
5,000
(d) Failure to provide adequate written documentation for the reasons for a
reasonable suspicion test
2,500
5,000
(a) Fail to promptly conduct test
2,500
5,000
(b) Failure to document why test not administered within time limits
2,500
5,000
(c) Improper recall of employee
2,500
5,000
(a) Failure to declare which authority (Federal or company) is being used for
reasonable cause testing
2,500
5,000
(b) Testing conducted after regulated employee is released from duty
2,500
5,000
(a) Testing when event did not meet the criteria for train accident or train
incident
2,500
5,000
(b) Testing when event did not meet the criteria for rule violation
2,500
5,000
(a) Failure to provide adequate written documentation for the reasons for a
reasonable cause test
1,000
2,500
(b) Failure to document specific type of rule violation and the involvement of
each tested regulated employee
1,000
2,500
219.211 Analysis and follow-up:
Subpart D - Reasonable Suspicion Testing
219.301
219.303
219.305
Mandatory reasonable suspicion testing:
Testing when reasonable suspicion criteria not met:
Prompt specimen collections; time limitations:
Subpart E - Reasonable Cause Testing
219.401
Authorization for reasonable cause testing:
219.403 Requirements for reasonable cause testing:
219.405
Documentation requirements:
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
219.407 Prompt Specimen Collection; Time Limitations:
(a) Failure to perform a test in a timely
2,500
5,000
(b) Failure to document why test not administered within time limits
1,000
2,500
(c) Improper recall of employee
2,500
5,000
2,500
5,000
(a) Failure to conduct a Federal pre-employment test before a final applicant
or employee transfer performs regulated service
2,500
5,000
(b) Failure to conduct a Federal pre-employment test before an employee of a
contractor performs regulated service
2,500
5,000
(e ) Pre-employment testing of grandfathered regulated employee
1,000
2,500
(a)(1) Failure to conduct alcohol testing of a regulated employee after
choosing to perform Federal pre-employment alcohol testing
2,500
5,000
(a)(2) Failure to treat all regulated employees the same for purposes of
Federal pre-employment alcohol testing
2,500
5,000
1,000
2,500
(b) Failure to ensure regulated employee is subject to random testing
2,500
5,000
(c) Contractor or volunteer not included in random testing while subject to
performing regulated service
2,500
5,000
(d)(1) Regulated employee not subject to random testing at minimum
rate set by agency covering more than 50% of employee’s regulated functions
2,500
5,000
(a)(1) Failure to obtain FRA approval of random testing program
2,500
5,000
(c) Failure to implement random testing plan within 30 days of notification of
FRA approval
2,500
5,000
(d)(1) Failure to implement substantive plan amendment within 30 days of
notification of FRA approval, or failure to obtain FRA approval before
implementing substantive plan amendment before implementation
2,500
5,000
(d)(2) Failure to submit non-substantive plan amendment before
2,500
5,000
219.409 Limitations on authority:
(b) Improper withholding of regulated employee from regulated service
pending test results
Subpart F—Pre-Employment Tests
219.501
Pre-employment drug testing:
219.502 Pre-employment alcohol testing:
219.503 Notification; records:
Failure to notify the applicant in writing of non-negative test results or refusal
Subpart G—Random Alcohol and Drug Testing Programs
219.601 Purpose and scope of random testing programs:
219.605
Submission and approval of random testing plans:
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
implementation
219.607 Requirements for random testing plans:
219.609
219.611
219.613
(a) Railroad implementation failed to comply with approved plan
2,500
5,000
(c) Failure to contain required plan elements
2,500
5,000
(a) Failure to demonstrate that regulated service contractor employees and
volunteers are subject to random testing
2,500
5,000
(c ) Failure to ensure regulated service contractor and volunteers are tested in
accordance with this subpart
2,500
5,000
(a) Failure of railroad to ensure that all regulated employees including
contractors and volunteers are included in random testing pools
2,500
5,000
(b)(2) Improper criteria for pool entries which allows for employer discretion
over who is to be tested
2,500
5,000
(b)(3) Failure to construct and maintain pool entries that will ensure regulated
employees have an equal chance of being selected randomly for each draw
2,500
5,000
(c) Maintaining a random testing pool with less than four pool entries
2,500
5,000
(d)(1) Failure to ensure that pools do not contain non-regulated employees
2,500
5,000
(d)(2) Regulated employee included in more than one DOT random pool
2,500
5,000
(d)(3) Failure to maintain pools and/or pool entries that meet FRA regulations
and guidelines
2,500
5,000
(d)(5) Failure to add or remove regulated employees to or from the proper
random pool in a timely manner
2,500
5,000
(e)(2) Failure to remove employees who perform de minimus service from
pools which include employees who perform regulated service on a regular
basis
2,500
5,000
(f) Failure to have an effective mechanism to update and maintain pools
2,500
5,000
(b)(1) Failure to use a FRA-acceptable selection procedure
2,500
5,000
(b)(2) Failure to ensure every regulated employee has an equal chance at
being selected at each draw
2,500
5,000
(b)(3) Failure to have necessary documentation verifying the selection
process for testing window
2,500
5,000
(c )(1) Failure to select pool entries at a rate which ensures compliance with
FRA required random rates or fail to reasonably distribute selections
throughout the selection year
2,500
5,000
(d) Railroad failed to select at least one entry from each of its random testing
pools every three months
2,500
5,000
(e) Railroad discarded selection draws without an acceptable explanation
2,500
5,000
Inclusion of contractor employees and volunteers in random testing plans:
Random drug and alcohol and drug testing pools:
Random testing selections:
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(g) Failure to capture and maintain electronic or hard copy snapshot of each
random testing pool at the time it makes a testing selection
219.615
219.617
219.621
2,500
5,000
(a) Failure to comply with minimum annual random collection testing rates
2,500
5,000
(b) Failure to test selections within the approved testing window
2,500
5,000
(c )(1) Testing a regulated employee while not on duty or testing a regulated
employee not randomly selected or testing a non-regulated employee
2,500
5,000
(c )(2) Failure to distribute collections reasonably throughout all shifts, days of
the week, weeks of the month, and months of the year
2,500
5,000
(c )(3) Failure to perform at least 10% of its random alcohol tests at the
beginning of shifts and at least 10% of random alcohol tests at the end of
shifts
2,500
5,000
(e)(1) Advance notification given to employees selected for testing
2,500
5,000
(e)(2) Fail to begin collection within two hours of notice of random selection
without an acceptable reason for the delay
2,500
5,000
(f) Failure to test a selection without a FRA-acceptable reason
2,500
5,000
(g)(1) Fail to immediately terminate random collection due to hours of service
expiration
2,500
5,000
(a)(1) Failure to test regulated employee when properly selected for random
test
2,500
5,000
(a)(2) Failure to restrict regulated employee from performing regulated service
prior to completion of random testing
2,500
5,000
(a)(3) Improperly excused without substantiated medical emergency
2,500
5,000
2,500
5,000
(a) Failure of railroads to meet recordkeeping requirements
2,500
5,000
(g) Failure of contractors and service agents to provide required random
testing records when requested by the contracting railroad or FRA
2,500
5,000
(g) Failure to meet the required FRA random testing rate for drugs
2,500
5,000
(e) Failure to meet the required FRA random testing rate for alcohol
2,500
5,000
5,000
7,500
Random testing collections:
Participation in random alcohol and drug testing:
Use of Service Agents
(g) Improper use a service agent to notify a regulated employee that they
have been selected for random testing
219.623
219.625
Records
FRA Administrator’s determination of random alcohol and drug rates
Subpart H—Drug and Alcohol Testing Procedures
219.701
Standards for drug and alcohol testing:
(a) Failure to comply with part 40 procedures in subpart B, D, E, F, G and K
testing
Subpart I—Annual Report
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
219.800 Annual Reports:
(a) Failure to submit MIS report on time
2,500
5,000
(c) Failure to submit accurate MIS report
2,500
5,000
(d) Failure to include required data
2,500
5,000
(a) Failure to maintain records required to be kept by Part 40
2,500
5,000
(b) Failure to maintain records required to be kept for five years
2,500
5,000
(c) Failure to maintain records required to be kept for two years
2,500
5,000
(a) Failure to release records in this subpart in accordance with Part 40
2,500
5,000
(b) Failure to permit access to facilities
2,500
5,000
(c) Failure to provide access to results of railroad alcohol and drug testing
programs
2,500
5,000
(b)(1) Failure to adopt or implement required self-referral program or alternate
program that meets the requirements of this subpart
2,500
5,000
(b)(2) Failure to adopt or implement required co-worker referral program or
alternate program that meets the requirements of this subpart
2,500
5,000
(d) Violation of referral program prohibitions
2,500
5,000
(a) Failure to comply with referral program conditions
2,500
5,000
(b) Failure to maintain employment
2,500
5,000
(c) Failure to disqualify regulated employee when referral conditions not met
2,500
5,000
(d) Use of unqualified DAC
2,500
5,000
(e) Allowing person evaluated as having active substance abuse disorder to
perform regulated service
2,500
5,000
(f) Breach of confidentiality
2,500
5,000
(g) Failure to allow recommended leave of absence
2,500
5,000
(h)(1)-(3) Failure to meet return to service conditions
2,500
5,000
(h)(4) Failure to return to service when conditions met
2,500
5,000
(i) Improper modification to rehabilitation plan
2,500
5,000
Subpart J—Recordkeeping Requirements
219.901 Retention of alcohol and drug testing records:
219.903 Access to facilities and records:
Subpart K – Referral Programs
219.1001 Requirement for referral programs:
219.1003 Referral program conditions:
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
(l) Failure to complete DAC evaluation within time limit
2,500
5,000
(m) Exceeding 24 month time limit on aftercare when not associated with a
substantiated Part 219 violation
2,500
5,000
2,500
5,000
219.1007 Alternate programs:
(c) Failure to obtain FRA approval of alternate program
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 $105,000 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., “ §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: Quest Diagnostics, 1777 Montreal Circle, Tucker, GA 30084, Telephone:
(800) 729-6432.
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.
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.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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 part 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.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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 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 POSTACCIDENT
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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 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.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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-ofcustody block showing release of the blood and urine by yourself for the purpose of “Shipment” and
receipt by the courier service or railroad representative that will provide transportation of the box, together
with the date.
G. Complete Treatment Information
Complete STEP 6 of the Control Form. Mark the box if a breath alcohol test was conducted under
FRA authority.
H. Prepare the Box for Shipment
a. Sealed individual employee kits should be retained in secure storage if there will be a delay in
preparation of the shipping box. The shipping box shall be prepared and sealed by a collection facility
representative as follows:
1. Inspect STEP 5 of each Control Form to ensure chain-of-custody is continuous and complete for
each fluid (showing 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
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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.
ii.
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
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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 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.
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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
CFR Part 219, effective June 12, 2017
Revisions as of June 7, 2017
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.
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.
| File Type | application/pdf |
| File Modified | 2019-10-30 |
| File Created | 2017-06-09 |