Cfr 2010-title49-vol4-part219
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Cfr 2010-title49-vol4-part219

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Post Accident Toxicological Testing

Post Accident Toxicological Testing

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Cfr 2010-title49-vol4-part219 Cfr 2010-title49-vol4-part219 Document Transcript

  • Pt. 219 49 CFR Ch. II (10–1–10 Edition) evaluation summary of the factors consid- notifying the remote control locomotive op- ered and shall provide the railroad with erator immediately if the flashing lights and agreed upon parameters by which the cam- gates are not working as intended. era-assisted remote control operation may 7. The railroad shall notify the Associate continue in operation if the factors required Administrator for Safety in writing when for suitability change; thus, any change in this type of protection has been installed and the factors considered by the diagnostic activated at a crossing. team outside of the acceptable parameters shall require the railroad to receive a revised III. CONCLUSION evaluation approval from a diagnostic team The technology used to aid point protec- before continuing any such operation. In ad- tion will undoubtedly develop and improve dition, any of the Federal, State, or local over time. FRA encourages the use and de- governmental authorities may trigger re- velopment of this technology as is evidenced view of a prior evaluation approval at any by the option in this rule to utilize such time there is a question of the suitability of technology. Meanwhile, as a regulating body, the operation. It is possible that, of the re- FRA cannot determine whether a new tech- quirements listed below, requirements num- nology to aid point protection provides an bered 2, 4, 5, and 6 would be unnecessary at equivalent level of protection to that of a di- highway-rail grade crossings or yard access rect visual determination unless we are crossings equipped with approved supple- made aware of the new technology. Con- mental safety devices (see 49 CFR part 222, sequently, aside from the camera/monitor app. A) that prevent motorists from driving setups described in this appendix, each rail- around lowered gates; under such cir- road that intends to implement a technology cumstances, the diagnostic team shall make used to aid point protection shall notify the such determinations. If a Crossing Diag- Associate Administrator for Safety in writ- nostic Team, as described in this paragraph, ing of the technology to be used prior to im- evaluated a crossing for the factors described plementation. herein, prior to April 14, 2008, another diag- nostic team evaluation is not required to [73 FR 8504, Feb. 13, 2008] comply with this rule; however, the require- ments listed below shall still apply to any such remotely controlled movements over PART 219—CONTROL OF ALCOHOL that crossing. AND DRUG USE 2. Camera-assisted remote control loco- motive operations shall only be permitted at Subpart A—General crossings equipped with flashing lights, gates, and constant warning time train de- Sec. tection systems where appropriate, based on 219.1 Purpose and scope. train speeds. 219.3 Application. 3. A crewmember or other qualified em- 219.4 Recognition of a foreign railroad’s ployee shall not view the monitor in place of workplace testing program. the remote control operator, as is permitted 219.5 Definitions. for other shoving or pushing movements. See 219.7 Waivers. § 218.99(b)(3). For purposes of remote control 219.9 Responsibility for compliance. locomotive operations with camera/monitor 219.11 General conditions for chemical tests. setups to protect the point at highway-rail 219.13 Preemptive effect. grade crossings, pedestrian crossings, and 219.15 [Reserved] yard access crossings, the remote control op- 219.17 Construction. erator controlling the movement shall view 219.19 [Reserved] 219.21 Information collection. the monitor during such operations. 219.23 Railroad policies. 4. The cameras shall be arranged to give the remote control locomotive operator con- trolling the movement a view of the rail ap- Subpart B—Prohibitions proaches to the crossing from each direction 219.101 Alcohol and drug use prohibited. so that the operator can accurately judge 219.102 Prohibition on abuse of controlled the end of the movement’s proximity to the substances. crossing. 219.103 Prescribed and over-the-counter 5. The cameras shall be arranged to give drugs. the remote control locomotive operator a 219.104 Responsive action. clear view to determine the speed and driver 219.105 Railroad’s duty to prevent viola- behavior (e.g., driving erratically) of any ap- tions. proaching motor vehicles. 219.107 Consequences of unlawful refusal. 6. Either the camera resolution shall be sufficient to determine whether the flashing Subpart C—Post-Accident Toxicologicaljdjones on DSK8KYBLC1PROD with CFR lights and gates are working as intended or Testing the crossing shall be equipped with a remote health monitoring system that is capable of 219.201 Events for which testing is required. 232 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00242 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.3 219.203 Responsibilities of railroads and em- APPENDIX B TO PART 219—DESIGNATION OF ployees. LABORATORY FOR POST-ACCIDENT TOXI- 219.205 Specimen collection and handling. COLOGICAL TESTING 219.206 FRA access to breath test results. APPENDIX C TO PART 219—POST-ACCIDENT 219.207 Fatality. TESTING SPECIMEN COLLECTION 219.209 Reports of tests and refusals. 219.211 Analysis and follow-up. AUTHORITY: 49 U.S.C. 20103, 20107, 20140, 219.213 Unlawful refusals; consequences. 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49(m). Subpart D—Testing for Cause SOURCE: 66 FR 41973, Aug. 9, 2001, unless 219.300 Mandatory reasonable suspicion otherwise noted. testing. 219.301 Testing for reasonable cause. Subpart A—General 219.302 Prompt specimen collection; time limitation. § 219.1 Purpose and scope. Subpart E—Identification of Troubled (a) The purpose of this part is to pre- Employees vent accidents and casualties in rail- 219.401 Requirement for policies. road operations that result from im- 219.403 Voluntary referral policy. pairment of employees by alcohol or 219.405 Co-worker report policy. drugs. 219.407 Alternate policies. (b) This part prescribes minimum Federal safety standards for control of Subpart F—Pre-Employment Tests alcohol and drug use. This part does 219.501 Pre-employment drug testing. not restrict a railroad from adopting 219.502 Pre-employment alcohol testing. and enforcing additional or more strin- 219.503 Notification; records. gent requirements not inconsistent 219.505 Refusals. with this part. Subpart G—Random Alcohol and Drug § 219.3 Application. Testing Programs (a) General. Except as provided in 219.601 Railroad random drug testing pro- paragraphs (b) and (c) of this section, grams. this part applies to— 219.602 FRA Administrator’s determination of random drug testing rate. (1) Railroads that operate rolling 219.603 Participation in drug testing. equipment on standard gage track 219.605 Positive drug test results; proce- which is part of the general railroad dures. system of transportation; and 219.607 Railroad random alcohol testing pro- (2) Railroads that provide commuter grams. or other short-haul rail passenger serv- 219.608 FRA Administrator’s determination of random alcohol testing rate. ice in a metropolitan or suburban area 219.609 Participation in alcohol testing. (as described by 49 U.S.C. 20102) in the 219.611 Test result indicating prohibited al- United States. cohol concentration; procedures. (b) Exceptions available to both domes- tic and foreign railroads. (1) This part Subpart H—Drug and Alcohol Testing does not apply to a railroad that oper- Procedures ates only on track inside an installa- 219.701 Standards for drug and alcohol test- tion which is not part of the general ing. railroad system of transportation. (2) Subparts D, E, F and G of this Subpart I—Annual Report part do not apply to a railroad that— 219.800 Annual reports. (i) Has a total of 15 or fewer employ- 219.801–219.803 [Reserved] ees who are covered by the hours of service laws at 49 U.S.C. 21103, 21104, or Subpart J—Recordkeeping Requirements 21105, or who would be subject to the 219.901 Retention of alcohol testing records. hours of service laws at 49 U.S.C. 21103, 219.903 Retention of drug testing records. 21104, or 21105 if their services were per-jdjones on DSK8KYBLC1PROD with CFR 219.905 Access to facilities and records. formed in the United States; and APPENDIX A TO PART 219—SCHEDULE OF CIVIL (ii) Does not operate on the tracks in PENALTIES the United States of another railroad 233 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00243 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.4 49 CFR Ch. II (10–1–10 Edition) (or otherwise engage in joint oper- conducted in accordance with this part ations in the United States with an- prior to the applicant or employee’s other railroad) except as necessary for performance of train or dispatching purposes of interchange. service in the United States. (3) Subpart I of this part does not [69 FR 19286, Apr. 12, 2004] apply to a railroad that has fewer than 400,000 total employee hours, including § 219.4 Recognition of a foreign rail- hours worked by all employees of the road’s workplace testing program. railroad, regardless of occupation, not (a) General. A foreign railroad may only while in the United States but petition the FRA Associate Adminis- also while outside the United States. trator for Safety for recognition of a For purposes of this paragraph, the workplace testing program promul- term ‘‘employees of the railroad’’ in- gated under the laws of its home coun- cludes individuals who perform service try as a compatible alternative to the for the railroad, including not only in- return-to-service requirements in sub- dividuals who receive direct monetary part B of this part and the require- compensation from the railroad for ments of subparts E, F, and G of this performing a service for the railroad, part with respect to its employees but also such individuals as employees whose primary reporting point is out- of a contractor to the railroad who per- side the United States but who enter form a service for the railroad. the United States to perform train or (c) Exceptions available to foreign rail- dispatching service and with respect to roads only. (1) Subparts E, F and G of its final applicants for, or its employ- this part do not apply to train or dis- ees seeking to transfer for the first patching service in the United States time to, duties involving such service. performed by an employee of a foreign (1) To be so considered, the petition railroad whose primary reporting point must document that the foreign rail- is outside the United States, on that road’s workplace testing program con- portion of a rail line in the United tains equivalents to subparts B, E, F, States extending up to10 route miles and G of this part: from the point that the line crosses (i) Pre-employment drug testing; into the United States from Canada or (ii) A policy dealing with co-worker Mexico. and self-reporting of alcohol and drug (2) Unless otherwise provided by abuse problems; paragraph (b) of this section, subparts (iii) Random drug and alcohol test- A, B, C, D, H, I, and J of this part apply ing; to signal service in the United States (iv) Return-to-duty testing; and of a foreign railroad performed by an (v) Testing procedures and safeguards employee of the foreign railroad if the reasonably comparable in effectiveness employee’s primary place of reporting to all applicable provisions of the is located outside the United States. United States Department of Transpor- Subparts E, F, and G of this part do not tation Procedures for Workplace Drug apply to signal service in the United and Alcohol Testing Programs (part 40 States of a foreign railroad performed of this title). by an employee of the foreign railroad (2) In approving a program under this if the employee’s primary place of re- section, the FRA Associate Adminis- porting is located outside the United trator for Safety may impose condi- States. tions deemed necessary. (3) Unless otherwise excepted under (b) Alternative programs. (1) Upon paragraph (c)(1) of this section, on and FRA’s recognition of a foreign rail- after June 11, 2004, a foreign railroad road’s workplace testing program as shall conduct a pre-employment drug compatible with the return-to-service test on each of its final applicants for, requirements in subpart B and the re- and each of its employees seeking to quirements of subparts E, F, and G of transfer for the first time to, duties in- this part, the foreign railroad must volving train or dispatching service in comply with either the enumeratedjdjones on DSK8KYBLC1PROD with CFR the United States while having his or provisions of part 219 or with the stand- her primary reporting point outside of ards of the recognized program, and the United States. The test shall be any imposed conditions, with respect 234 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00244 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.4 to its employees whose primary report- (2) Any comment on a petition should ing point is outside the United States reference the FRA docket and notice and who perform train or dispatching numbers. A commenter may submit a service in the United States. The for- comment and related material by only eign railroad must also, with respect to one of the following methods: its final applicants for, or its employ- (i) Federal eRulemaking Portal: http:// ees seeking to transfer for the first www.regulations.gov. Follow the in- time to, duties involving such train or structions for submitting comments on dispatching service in the United the Federal Docket Management Sys- States, comply with either subpart E of tem electronic docket site. this part or the standards of the recog- (ii) Fax. 1–202–493–2251. nized program. (iii) Mail. U.S. Department of Trans- (2) The foreign railroad must comply portation, Docket Operations (M–30), with subparts A, B (other than the re- West Building Ground Floor, Room turn-to-service provisions in W12–140, 1200 New Jersey Avenue, SE., § 219.104(d)), C, reasonable suspicion Washington, DC 20590–0001. testing in subpart D, and subparts I (iv) Hand delivery. Room W12–140 on and J. Drug or alcohol testing required the ground floor of the West Building, by these subparts must be conducted in 1200 New Jersey Avenue, SE., Wash- compliance with all applicable provi- ington, DC, between 9 a.m. and 5 p.m., sions of the United States Department Monday through Friday, except Fed- of Transportation Procedures for eral Holidays. Workplace Drug and Alcohol Testing (3) The commenter shall certify that Programs (part 40 of this title). a copy of the comment was served on (c) Petitions for recognition of a foreign the petitioner. Note that all petitions railroad’s workplace testing programs. received will be posted without change Each petition for recognition of a for- to http://www.regulations.gov including eign workplace testing program shall any personal information provided. contain: (f) Disposition of petitions. (1) If FRA (1) The name, title, address, and tele- finds that the petition complies with phone number of the primary person to the requirements of this section and be contacted with regard to review of that the foreign railroad’s workplace the petition; testing program is compatible with the (2) The requirements of the foreign minimum standards of this part, the railroad workplace testing program to petition will be granted, normally be considered for recognition; within 90 days of its receipt. If the peti- (3) Appropriate data or records, or tion is neither granted nor denied with- both, for FRA to consider in deter- in 90 days, the petition remains pend- mining whether the foreign railroad ing for decision. FRA may attach spe- workplace testing program is equiva- cial conditions to the approval of any lent to the minimum standards con- petition. Following the approval of a tained in this part and provides at petition, FRA may reopen consider- least an equivalent level of safety. ation of the petition for cause. (d) FEDERAL REGISTER notice. FRA (2) If FRA finds that the petition will publish a notice in the FEDERAL does not comply with the requirements REGISTER concerning each petition of this section or that the foreign rail- under paragraph (c) of this section that road’s workplace testing program is it receives. not compatible with the minimum (e) Comment. Not later than 30 days standards of this part, the petition will from the date of publication of the no- be denied, normally within 90 days of tice in the FEDERAL REGISTER con- its receipt. cerning a petition under paragraph (c) (3) When FRA grants or denies a peti- of this section, any person may com- tion, or reopens consideration of the ment on the petition. petition, written notice is sent to the (1) A comment shall set forth specifi- petitioner and other interested parties. cally the basis upon which it is made, (g) Program recognition. If its programjdjones on DSK8KYBLC1PROD with CFR and contain a concise statement of the has been recognized, the foreign rail- interest of the commenter in the pro- road shall maintain a letter on file in- ceeding. dicating that it has elected to extend 235 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00245 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.5 49 CFR Ch. II (10–1–10 Edition) specified elements of the recognized meaning of this part exclusively by program to its operations in the United reason of being an employee for pur- States. Once granted, program recogni- poses of 49 U.S.C. 21106.) For the pur- tion remains valid so long as the pro- poses of pre-employment testing only, gram retains these elements and the the term ‘‘covered employee’’ includes foreign railroad complies with the pro- a person applying to perform covered gram requirements. service in the United States. [69 FR 19286, Apr. 12, 2004, as amended at 74 Covered service means service in the FR 25172, 25173, May 27, 2009] United States that is subject to the hours of service laws at 49 U.S.C. 21103, § 219.5 Definitions. 21104, or 21105, but does not include any As used in this part— period the employee is relieved of all Accident or incident reportable under responsibilities and is free to come and part 225 does not include a case that is go without restriction. classified as ‘‘covered data’’ under Co-worker means another employee of § 225.5 of this chapter (i.e., employee in- the railroad, including a working su- jury/illness cases reportable exclu- pervisor directly associated with a sively because a physician or other li- yard or train crew, such as a conductor censed health care professional either or yard foreman, but not including any made a one-time topical application of other railroad supervisor, special a prescription-strength medication to agent, or officer. the employee’s injury or made a writ- Cross-border operation means a rail ten recommendation that the em- operation that crosses into the United ployee: Take one or more days away States from Canada or Mexico. from work when the employee instead Domestic railroad means a railroad reports to work (or would have re- that is incorporated in the United ported had he or she been scheduled) States. and takes no days away from work in DOT Agency means an agency (or connection with the injury or illness; ‘‘operating administration’’) of the work restricted duty for one or more United States Department of Transpor- days when the employee instead works tation administering regulations re- unrestricted (or would have worked un- quiring alcohol or controlled substance restricted had he or she been sched- testing (14 CFR parts 61, 63, 65, 121 and uled) and takes no other days of re- 135; 49 CFR parts 199, 219, 382 and 655) in stricted work activity in connection accordance with part 40 of this title. with the injury or illness; or take over- Drug means any substance (other the-counter medication at a dosage than alcohol) that has known mind- or equal to or greater than the minimum function-altering effects on a human prescription strength, whether or not subject, specifically including any the employee actually takes the medi- psychoactive substance and including, cation). but not limited to, controlled sub- Class I, Class II, and Class III have the stances. meaning assigned by regulations of the Foreign railroad means a railroad that Surface Transportation Board (49 CFR is incorporated outside the United part 1201; General Instructions 1–1). States. Controlled substance has the meaning FRA means the Federal Railroad Ad- assigned by 21 U.S.C. 802, and includes ministration, United States Depart- all substances listed on Schedules I ment of Transportation. through V as they may be revised from FRA representative means the Asso- time to time (21 CFR parts 1301–1316). ciate Administrator for Safety of FRA, Covered employee means a person who the Associate Administrator’s delegate has been assigned to perform service in (including a qualified State inspector the United States subject to the hours acting under part 212 of this chapter), of service laws (49 U.S.C. ch. 211) during the Chief Counsel of FRA, or the Chief a duty tour, whether or not the person Counsel’s delegate. has performed or is currently per- General railroad system of transpor-jdjones on DSK8KYBLC1PROD with CFR forming such service, and any person tation means the general railroad sys- who performs such service. (An em- tem of transportation in the United ployee is not ‘‘covered’’ within the States. 236 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00246 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.5 Hazardous material means a com- Positive rate for random drug testing modity designated as a hazardous ma- means the number of verified positive terial by part 172 of this title. results for random drug tests con- Impact accident means a train acci- ducted under this part plus the number dent (i.e., a rail equipment accident in- of refusals of random drug tests re- volving damage in excess of the current quired by this part, divided by the reporting threshold (see § 225.19(e) of total number of random drug tests re- this chapter)) consisting of a head-on sults (i.e., positives, negatives, and re- collision, a rear-end collision, a side fusals) under this part. collision (including a collision at a Possess means to have on one’s person railroad crossing at grade), a switching or in one’s personal effects or under collision, or impact with a delib- one’s control. However, the concept of erately-placed obstruction such as a possession as used in this part does not bumping post. The following are not include control by virtue of presence in impact accidents: the employee’s personal residence or (1) An accident in which the derail- other similar location off of railroad ment of equipment causes an impact property. with other rail equipment; Railroad means any form of non- (2) Impact of rail equipment with ob- highway ground transportation that runs on rails or electromagnetic guide- structions such as fallen trees, rock or ways, and any person providing such snow slides, livestock, etc.; and transportation, including— (3) Raking collisions caused by de- (1) Commuter or other short-haul railment of rolling stock or operation railroad passenger service in a metro- of equipment in violation of clearance politan or suburban area and com- limitations. muter railroad service that was oper- Independent with respect to a medical ated by the Consolidated Rail Corpora- facility, means not under the owner- tion on January 1, 1979; and ship or control of the railroad and not (2) High speed ground transportation operated or staffed by a salaried officer systems that connect metropolitan or employee of the railroad. The fact areas, without regard to whether those that the railroad pays for services ren- systems use new technologies not asso- dered by a medical facility or labora- ciated with traditional railroads; but tory, selects that entity for performing does not include rapid transit oper- tests under this part, or has a standing ations in an urban area that are not contractual relationship with that en- connected to the general railroad sys- tity to perform tests under this part or tem of transportation. perform other medical examinations or Railroad property damage or damage to tests of railroad employees does not, by railroad property refers to damage to itself, remove the facility from this railroad property, including railroad definition. on-track equipment, signals, track, Medical facility means a hospital, track structures (including bridges and clinic, physician’s office, or laboratory tunnels), or roadbed, including labor where toxicological specimens can be costs and all other costs for repair or collected according to recognized pro- replacement in kind. Estimated cost fessional standards. for replacement of railroad property Medical practitioner means a physi- must be calculated as described in the cian or dentist licensed or otherwise FRA Guide for Preparing Accident/In- authorized to practice by the state. cident Reports. (See § 225.21 of this NTSB means the National Transpor- chapter.) However, replacement of pas- tation Safety Board. senger equipment is calculated based Passenger train means a train trans- on the cost of acquiring a new unit for porting persons (other than employees, comparable service. contractors, or persons riding equip- Reportable injury means an injury re- ment to observe or monitor railroad portable under part 225 of this chapter operations) in intercity passenger serv- except for an injury that is classifiedjdjones on DSK8KYBLC1PROD with CFR ice, commuter or other short-haul serv- as ‘‘covered data’’ under § 225.5 of this ice, or for excursion or recreational chapter (i.e., employee injury/illness purposes. cases reportable exclusively because a 237 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00247 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.7 49 CFR Ch. II (10–1–10 Edition) physician or other licensed health care random alcohol confirmation test re- professional either made a one-time sults conducted under this part plus topical application of a prescription- the number of refusals of random alco- strength medication to the employee’s hol tests required by this part, divided injury or made a written recommenda- by the total number of random alcohol tion that the employee: Take one or screening tests (including refusals) more days away from work when the conducted under this part. employee instead reports to work (or [66 FR 41973, Aug. 9, 2001, as amended at 68 would have reported had he or she been FR 10135, Mar. 3, 2003; 68 FR 75463, Dec. 31, scheduled) and takes no days away 2003; 69 FR 19287, Apr. 12, 2004] from work in connection with the in- jury or illness; work restricted duty for § 219.7 Waivers. one or more days when the employee (a) A person subject to a requirement instead works unrestricted (or would of this part may petition the FRA for a have worked unrestricted had he or she waiver of compliance with such re- been scheduled) and takes no other quirement. days of restricted work activity in con- (b) Each petition for waiver under nection with the injury or illness; or this section must be filed in a manner take over-the-counter medication at a and contain the information required dosage equal to or greater than the by part 211 of this chapter. A petition minimum prescription strength, for waiver of the part 40 prohibition whether or not the employee actually against stand down of an employee be- takes the medication. fore the Medical Review Officer has Reporting threshold means the amount completed the verification must also specified in § 225.19(e) of this chapter, as comply with § 40.21 of this title. adjusted from time to time in accord- (c) If the FRA Administrator finds ance with appendix B to part 225 of this that waiver of compliance is in the chapter. public interest and is consistent with State means a State of the United railroad safety, the Administrator may States of America or the District of Co- grant the waiver subject to any nec- lumbia. essary conditions. Supervisory employee means an officer, (d) Special dispensation for employees special agent, or other employee of the performing train or dispatching service on railroad who is not a co-worker and existing cross-border operations. If a for- who is responsible for supervising or eign railroad requests a waiver not monitoring the conduct or performance later than August 10, 2004, for an exist- of one or more employees. ing cross-border operation, subparts E, Train, except as context requires, F, and G of this part shall not apply to means a locomotive, or more than one train or dispatching service on that op- locomotive coupled, with or without eration in the United States performed cars. (A locomotive is a self-propelled by an employee of a foreign railroad unit of equipment which can be used in whose primary reporting point is out- train service.) side the United States, until the rail- Train accident means a passenger, road’s waiver request is acted upon by freight, or work train accident de- FRA. scribed in § 225.19(c) of this chapter (a (e) Waiver requests for employees per- ‘‘rail equipment accident’’ involving forming train or dispatching service on damage in excess of the current report- new or expanded cross-border operations. ing threshold), including an accident A foreign railroad seeking a waiver involving a switching movement. from subparts E, F, and G of this part Train incident means an event involv- for its employees performing train or ing the movement of railroad on-track dispatching service on a new cross-bor- equipment that results in a casualty der operation that proceeds more than but in which railroad property damage 10 route miles into the United States, does not exceed the reporting thresh- or a formerly excepted cross-border op- old. eration that expands beyond the 10jdjones on DSK8KYBLC1PROD with CFR United States means all of the States. mile limited haul exception in para- Violation rate for random alcohol test- graph (d) of this section, must file a pe- ing means the number of 0.04 and above tition not later than 90 days before 238 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00248 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.11 commencing the subject operation. ployees must be responsive to direction FRA will attempt to decide on such pe- from the host railroad consistent with titions within 90 days. If no action is this part. However, nothing in this taken on the petition within 90 days, paragraph (b)(1) restricts the ability of the petition remains pending for deci- the railroads to provide for an appro- sion and the cross-border crew assign- priate assignment of responsibility for ments on the operation covered by the compliance with this part as among petition will be subject to subparts E, those railroads through a joint oper- F, and G until FRA grants the petition ating agreement or other binding con- should the petitioner commence the tract. FRA reserves the right to bring proposed operation. an enforcement action for noncompli- [66 FR 41973, Aug. 9, 2001, as amended at 69 ance with applicable portions of this FR 19287, Apr. 12, 2004] part against the host railroad, the em- ploying railroad, or both. § 219.9 Responsibility for compliance. (2) Where an employee of one railroad (a) Any person (an entity of any type is required to participate in breath or covered under 1 U.S.C. 1, including but body fluid testing under subpart C or D not limited to the following: A rail- of this part and is subsequently subject road; a manager, supervisor, official, or to adverse action alleged to have arisen other employee or agent of a railroad; out of the required test (or alleged re- any owner, manufacturer, lessor, or fusal thereof), necessary witnesses and lessee of railroad equipment, track, or documents available to the other rail- facilities; any independent contractor road must be made available to the em- providing goods or services to a rail- ployee on a reasonable basis. road; and any employee of such owner, (c) Any independent contractor or manufacturer, lessor, lessee, or inde- other entity that performs covered pendent contractor) who violates any service for a railroad has the same re- requirement of this part or causes the sponsibilities as a railroad under this violation of any such requirement is part, with respect to its employees who subject to a civil penalty of at least perform covered service. The entity’s $650 and not more than $25,000 per vio- responsibility for compliance with this lation, except that: Penalties may be part may be fulfilled either directly by assessed against individuals only for that entity or by the railroad’s treat- willful violations; where a grossly neg- ing the entity’s employees who perform ligent violation or a pattern of re- covered service as if they were its own peated violations has created an immi- employees for purposes of this part. nent hazard of death or injury, or has The responsibility for compliance must caused death or injury, a penalty not be clearly spelled out in the contract to exceed $100,000 per violation may be between the railroad and the other en- assessed; and the standard of liability tity or in another document. In the ab- for a railroad will vary depending upon sence of such a clear delineation of re- the requirement involved. See, e.g., sponsibility, FRA will hold the railroad § 219.105, which must be construed to and the other entity jointly and sever- qualify the responsibility of a railroad ally liable for compliance. for the unauthorized conduct of an em- [66 FR 41973, Aug. 9, 2001, as amended at 69 ployee that violates § 219.101 or § 219.102 FR 30593, May 28, 2004; 72 FR 51196, Sept. 6, (while imposing a duty of due diligence 2007; 73 FR 79701, Dec. 30, 2008] to prevent such conduct). Each day a violation continues constitutes a sepa- § 219.11 General conditions for chem- rate offense. See appendix A to this ical tests. part for a statement of agency civil (a) Any employee who performs cov- penalty policy. ered service for a railroad is deemed to (b)(1) In the case of joint operations, have consented to testing as required primary responsibility for compliance in subparts B, C, D, and G of this part; with this part with respect to deter- and consent is implied by performance mination of events qualifying for of such service.jdjones on DSK8KYBLC1PROD with CFR breath or body fluid testing under sub- (b)(1) Each such employee must par- parts C and D of this part rests with ticipate in such testing, as required the host railroad, and all affected em- under the conditions set forth in this 239 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00249 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.11 49 CFR Ch. II (10–1–10 Edition) part by a representative of the rail- promptly executing a consent form, if road. required by the medical facility. The (2) In any case where an employee employee is not required to execute has sustained a personal injury and is any document or clause waiving rights subject to alcohol or drug testing that the employee would otherwise under this part, necessary medical have against the employer, and any treatment must be accorded priority such waiver is void. The employee may over provision of the breath or body not be required to waive liability with fluid specimen(s). respect to negligence on the part of (3) Failure to remain available fol- any person participating in the collec- lowing an accident or casualty as re- tion, handling or analysis of the speci- quired by company rules (i.e., being ab- men or to indemnify any person for the sent without leave) is considered a re- negligence of others. Any consent pro- fusal to participate in testing, without vided consistent with this section may regard to any subsequent provision of be construed to extend only to those specimens. actions specified in this section. (c) A covered employee who is re- (e) Nothing in this part may be con- quired to be tested under subpart C or strued to authorize the use of physical D of this part and who is taken to a coercion or any other deprivation of medical facility for observation or liberty in order to compel breath or treatment after an accident or incident body fluid testing. is deemed to have consented to the re- (f) Any railroad employee who per- lease to FRA of the following: forms service for a railroad is deemed (1) The remaining portion of any to have consented to removal of body body fluid specimen taken by the treat- fluid and/or tissue specimens necessary ing facility within 12 hours of the acci- for toxicological analysis from the re- dent or incident that is not required mains of such employee, if such em- for medical purposes, together with ployee dies within 12 hours of an acci- any normal medical facility record(s) dent or incident described in subpart C pertaining to the taking of such speci- of this part as a result of such event. men; This consent is specifically required of (2) The results of any laboratory employees not in covered service, as tests for alcohol or any drug conducted well as employees in covered service. by or for the treating facility on such (g) Each supervisor responsible for specimen; covered employees (except a working (3) The identity, dosage, and time of supervisor within the definition of co- administration of any drugs adminis- worker under this part) must be tered by the treating facility prior to trained in the signs and symptoms of the time specimens were taken by the alcohol and drug influence, intoxica- treating facility or prior to the time tion and misuse consistent with a pro- specimens were taken in compliance gram of instruction to be made avail- with this part; and able for inspection upon demand by (4) The results of any breath tests for FRA. Such a program shall, at a min- alcohol conducted by or for the treat- imum, provide information concerning ing facility. the acute behavioral and apparent (d) An employee required to partici- physiological effects of alcohol and the pate in body fluid testing under sub- major drug groups on the controlled part C of this part (post-accident toxi- substances list. The program must also cological testing) or testing subject to provide training on the qualifying cri- subpart H of this part shall, if re- teria for post-accident testing con- quested by the representative of the tained in subpart C of this part, and railroad or the medical facility (includ- the role of the supervisor in post-acci- ing, under subpart H of this part, a dent collections described in subpart C non-medical contract collector), evi- and appendix C of this part. The dura- dence consent to taking of specimens, tion of such training may not be less their release for toxicological analysis than 3 hours.jdjones on DSK8KYBLC1PROD with CFR under pertinent provisions of this part, (h) Nothing in this subpart restricts and release of the test results to the any discretion available to the railroad railroad’s Medical Review Officer by to request or require that an employee 240 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00250 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.23 cooperate in additional body fluid test- seq.) and have been assigned OMB con- ing. However, no such testing may be trol number 2130–0526. performed on urine or blood specimens (b) The information collection re- provided under this part. For purposes quirements are found in the following of this paragraph (h), all urine from a sections: 219.7, 219.23, 219.104, 219.201, void constitutes a single specimen. 219.203, 219.205, 219.207, 219.209, 219.211, (i) A railroad required or authorized 219.213, 219.303, 219.401, 219.403, 219.405, to conduct testing under this part may 219.407, 219.501, 219.502, 219.503, 219.601, conduct all such testing in the United 219.605, 219.701, 219.801, 219.803, 219.901, States. A foreign railroad required to and 219.903. conduct testing under this part may conduct such tests in its home country, § 219.23 Railroad policies. provided that it otherwise complies with the requirements of this part. (a) Whenever a breath or body fluid test is required of an employee under [66 FR 41973, Aug. 9, 2001, as amended at 69 this part, the railroad must provide FR 19288, Apr. 12, 2004] clear and unequivocal written notice to § 219.13 Preemptive effect. the employee that the test is being re- quired under FRA regulations. Use of (a) Under section 20106 of title 49, the mandated DOT form for drug or al- United States Code, issuance of the cohol testing satisfies the require- regulations in this part preempts any ments of this paragraph (a). State law, rule, regulation, order or standard covering the same subject (b) Whenever a breath or body fluid matter, except a provision directed at a test is required of an employee under local hazard that is consistent with this part, the railroad must provide this part and that does not impose an clear, unequivocal written notice of the undue burden on interstate commerce. basis or bases upon which the test is (b) FRA does not intend by issuance required (e.g., reasonable suspicion, of the regulations in this part to pre- violation of a specified operating/safety empt provisions of State criminal law rule enumerated in subpart D of this that impose sanctions for reckless con- part, random selection, follow-up, etc.). duct that leads to actual loss of life, in- Completion of the DOT alcohol or drug jury or damage to property, whether testing form indicating the basis of the such provisions apply specifically to test (prior to providing a copy to the railroad employees or generally to the employee) satisfies the requirement of public at large. this paragraph (b). Use of the DOT form for non-Federal tests is prohib- § 219.15 [Reserved] ited. § 219.17 Construction. (c) Use of approved forms for manda- tory post-accident toxicological test- Nothing in this part— ing under subpart C of this part pro- (a) Restricts the power of FRA to vides the notifications required under conduct investigations under sections this section with respect to such tests. 20107, 20108, 20111, and 20112 of title 49, Use of those forms for any other test is United States Code; or prohibited. (b) Creates a private right of action (d) Each railroad must provide edu- on the part of any person for enforce- cational materials that explain the re- ment of the provisions of this part or for damages resulting from noncompli- quirements of this part, and the rail- ance with this part. road’s policies and procedures with re- spect to meeting those requirements. § 219.19 [Reserved] (1) The railroad must ensure that a copy of these materials is distributed § 219.21 Information collection. to each covered employee prior to the (a) The information collection re- start of alcohol testing under the rail- quirements of this part have been re- road’s alcohol misuse prevention pro-jdjones on DSK8KYBLC1PROD with CFR viewed by the Office of Management gram and to each person subsequently and Budget pursuant to the Paperwork hired for or transferred to a covered po- Reduction Act of 1980 (44 U.S.C. 3501 et sition. 241 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00251 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.101 49 CFR Ch. II (10–1–10 Edition) (2) Each railroad must provide writ- moved immediately from covered serv- ten notice to representatives of em- ice, and the procedures under § 219.104. ployee organizations of the availability (11) The consequences for covered of this information. employees found to have an alcohol (e) Required content. The materials to concentration of .02 or greater but less be made available to employees must than .04. include detailed discussion of at least (12) Information concerning the ef- the following: fects of alcohol misuse on an individ- (1) The identity of the person des- ual’s health, work, and personal life; ignated by the railroad to answer em- signs and symptoms of an alcohol prob- ployee questions about the materials. lem (the employee’s or a coworker’s); (2) The classes or crafts of employees and available methods of evaluating who are subject to the provisions of and resolving problems associated with this part. the misuse of alcohol, including utili- (3) Sufficient information about the zation of the procedures set forth in safety-sensitive functions performed by subpart E of this part and the names, those employees to make clear that the addresses, and telephone numbers of period of the work day the covered em- substance abuse professionals and ployee is required to be in compliance counseling and treatment programs. (f) Optional provisions. The materials with this part is that period when the supplied to employees may also include employee is on duty and is required to information on additional railroad perform or is available to perform cov- policies with respect to the use or pos- ered service. session of alcohol and drugs, including (4) Specific information concerning any consequences for an employee employee conduct that is prohibited found to have a specific alcohol con- under subpart B of this part. centration, that are based on the rail- (5) In the case of a railroad utilizing road’s authority independent of this the accident/incident and rule viola- part. Any such additional policies or tion reasonable cause testing authority consequences must be clearly and obvi- provided by this part, prior notice ously described as being based on inde- (which may be combined with the no- pendent authority. tice required by §§ 219.601(d)(1) and 219.607(d)(1)), to covered employees of the circumstances under which they Subpart B—Prohibitions will be subject to testing. § 219.101 Alcohol and drug use prohib- (6) The circumstances under which a ited. covered employee will be tested under (a) Prohibitions. Except as provided in this part. § 219.103— (7) The procedures that will be used (1) No employee may use or possess to test for the presence of alcohol and alcohol or any controlled substance controlled substances, protect the em- while assigned by a railroad to perform ployee and the integrity of the testing covered service. processes, safeguard the validity of the (2) No employee may report for cov- test results, and ensure that those re- ered service, or go or remain on duty in sults are attributed to the correct em- covered service while— ployee. (i) Under the influence of or impaired (8) The requirement that a covered by alcohol; employee submit to alcohol and drug (ii) Having .04 or more alcohol con- tests administered in accordance with centration in the breath or blood; or this part. (iii) Under the influence of or im- (9) An explanation of what con- paired by any controlled substance. stitutes a refusal to submit to an alco- (3) No employee may use alcohol for hol or drug test and the attendant con- whichever is the lesser of the following sequences. periods: (10) The consequences for covered (i) Within four hours of reporting forjdjones on DSK8KYBLC1PROD with CFR employees found to have violated Sub- covered service; or part B of this part, including the re- (ii) After receiving notice to report quirement that the employee be re- for covered service. 242 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00252 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.104 (4) No employee tested under the pro- prohibiting such presence under its visions of this part whose test result own rules. indicates an alcohol concentration of .02 or greater but less than .04 may per- § 219.102 Prohibition on abuse of con- form or continue to perform covered trolled substances. service functions for a railroad, nor No employee who performs covered may a railroad permit the employee to service may use a controlled substance perform or continue to perform covered at any time, whether on duty or off service, until the start of the employ- duty, except as permitted by § 219.103. ee’s next regularly scheduled duty pe- riod, but not less than eight hours fol- § 219.103 Prescribed and over-the- counter drugs. lowing administration of the test. (5) If an employee tested under the (a) This subpart does not prohibit the provisions of this part has a test result use of a controlled substance (on indicating an alcohol concentration Schedules II through V of the con- below 0.02, the test must be considered trolled substance list) prescribed or au- negative and is not evidence of alcohol thorized by a medical practitioner, or misuse. A railroad may not use a fed- possession incident to such use, if— eral test result below 0.02 either as evi- (1) The treating medical practitioner dence in a company proceeding or as a or a physician designated by the rail- basis for subsequent testing under com- road has made a good faith judgment, pany authority. A railroad may take with notice of the employee’s assigned further action to compel cooperation in duties and on the basis of the available other breath or body fluid testing only medical history, that use of the sub- stance by the employee at the pre- if it has an independent basis for doing scribed or authorized dosage level is so. consistent with the safe performance of (b) Controlled substance. ‘‘Controlled the employee’s duties; substance’’ is defined by § 219.5. Con- (2) The substance is used at the dos- trolled substances are grouped as fol- age prescribed or authorized; and lows: marijuana, narcotics (such as (3) In the event the employee is being heroin and codeine), stimulants (such treated by more than one medical prac- as cocaine and amphetamines), depres- titioner, at least one treating medical sants (such as barbiturates and minor practitioner has been informed of all tranquilizers), and hallucinogens (such medications authorized or prescribed as the drugs known as PCP and LSD). and has determined that use of the Controlled substances include illicit medications is consistent with the safe drugs (Schedule I), drugs that are re- performance of the employee’s duties quired to be distributed only by a med- (and the employee has observed any re- ical practitioner’s prescription or other strictions imposed with respect to use authorization (Schedules II through IV, of the medications in combination). and some drugs on Schedule V), and (b) This subpart does not restrict any certain preparations for which dis- discretion available to the railroad to tribution is through documented over require that employees notify the rail- the counter sales (Schedule V only). road of therapeutic drug use or obtain (c) Railroad rules. Nothing in this sec- prior approval for such use. tion restricts a railroad from imposing an absolute prohibition on the presence § 219.104 Responsive action. of alcohol or any drug in the body (a) Removal from covered service. (1) If fluids of persons in its employ, whether the railroad determines that an em- in furtherance of the purpose of this ployee has violated § 219.101 or § 219.102, part or for other purposes. or the alcohol or controlled substances (d) Construction. This section may not misuse rule of another DOT agency, be construed to prohibit the presence the railroad must immediately remove of an unopened container of an alco- the employee from covered service and holic beverage in a private motor vehi- the procedures described in paragraphsjdjones on DSK8KYBLC1PROD with CFR cle that is not subject to use in the (b) through (e) of this section apply. business of the railroad; nor may it be (2) If an employee refuses to provide construed to restrict a railroad from breath or a body fluid specimen or 243 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00253 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.105 49 CFR Ch. II (10–1–10 Edition) specimens when required to by the rail- adjustment of disputes under sec. 3 of road under a mandatory provision of the Railway Labor Act (49 U.S.C. 153), this part, the railroad must imme- satisfies the procedural requirements diately remove the employee from cov- of this paragraph (c). ered service, and the procedures de- (4) Nothing in this part may be scribed in paragraphs (b) through (e) of deemed to abridge any additional pro- this section apply. cedural rights or remedies not incon- (3)(i) This section does not apply to sistent with this part that are avail- actions based on breath or body fluid able to the employee under a collective tests for alcohol or drugs that are con- bargaining agreement, the Railway ducted exclusively under authority Labor Act, or (with respect to employ- other than that provided in this part ment at will) at common law with re- (e.g., testing under a company medical spect to the removal or other adverse policy, for-cause testing policy wholly action taken as a consequence of a independent of subpart D of this part, positive test result in a test authorized or testing under a labor agreement). or required by this part. (ii) This section and the information (5) Nothing in this part restricts the requirements listed in § 219.23 do not discretion of the railroad to treat an apply to applicants who refuse to sub- employee’s denial of prohibited alcohol mit to a pre-employment test or who or drug use as a waiver of any privilege have a pre-employment test with a re- the employee would otherwise enjoy to sult indicating the misuse of alcohol or have such prohibited alcohol or drug controlled substances. use treated as a non-disciplinary mat- (b) Notice. Prior to or upon with- ter or to have discipline held in abey- drawing the employee from covered ance. service under this section, the railroad (d) The railroad must comply with must provide notice to the employee of the return-to-service and follow-up the reason for this action. testing requirements, and the Sub- (c) Hearing procedures. (1) If the em- stance Abuse Professional conflict-of- ployee denies that the test result is interest prohibitions, contained in valid evidence of alcohol or drug use §§ 40.305, 40.307, and 40.299 of this title, prohibited by this subpart, the em- respectively. ployee may demand and must be pro- vided an opportunity for a prompt § 219.105 Railroad’s duty to prevent post-suspension hearing before a pre- violations. siding officer other than the charging (a) A railroad may not, with actual official. This hearing may be consoli- knowledge, permit an employee to go dated with any disciplinary hearing or remain on duty in covered service in arising from the same accident or inci- violation of the prohibitions of § 219.101 dent (or conduct directly related there- or § 219.102. As used in this section, the to), but the presiding officer must knowledge imputed to the railroad make separate findings as to compli- must be limited to that of a railroad ance with §§ 219.101 and 219.102. management employee (such as a su- (2) The hearing must be convened pervisor deemed an ‘‘officer,’’ whether within the period specified in the appli- or not such person is a corporate offi- cable collective bargaining agreement. cer) or a supervisory employee in the In the absence of an agreement provi- offending employee’s chain of com- sion, the employee may demand that mand. the hearing be convened within 10 cal- (b) A railroad must exercise due dili- endar days of the suspension or, in the gence to assure compliance with case of an employee who is unavailable §§ 219.101 and 219.102 by each covered due to injury, illness, or other suffi- employee. cient cause, within 10 days of the date the employee becomes available for § 219.107 Consequences of unlawful re- hearing. fusal. (3) A post-suspension proceeding con- (a) An employee who refuses to pro-jdjones on DSK8KYBLC1PROD with CFR forming to the requirements of an ap- vide breath or a body fluid specimen or plicable collective bargaining agree- specimens when required to by the rail- ment, together with the provisions for road under a mandatory provision of 244 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00254 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.201 this part must be deemed disqualified current reporting threshold, resulting for a period of nine (9) months. in— (b) Prior to or upon withdrawing the (i) A reportable injury; or employee from covered service under (ii) Damage to railroad property of this section, the railroad must provide $150,000 or more. notice of the reason for this action, and (3) Fatal train incident. Any train in- the procedures described in § 219.104(c) cident that involves a fatality to any apply. on-duty railroad employee. (c) The disqualification required by (4) Passenger train accident. Report- this section applies with respect to em- able injury to any person in a train ac- ployment in covered service by any cident (i.e., a rail equipment accident railroad with notice of such disquali- involving damage in excess of the cur- fication. rent reporting threshold) involving a (d) The requirement of disqualifica- passenger train. tion for nine (9) months does not limit any discretion on the part of the rail- (b) Exceptions. No test may be re- road to impose additional sanctions for quired in the case of a collision be- the same or related conduct. tween railroad rolling stock and a (e) Upon the expiration of the 9- motor vehicle or other highway con- month period described in this section, veyance at a rail/highway grade cross- a railroad may permit the employee to ing. No test may be required in the return to covered service only under case of an accident/incident the cause the same conditions specified in and severity of which are wholly at- § 219.104(d), and the employee must be tributable to a natural cause (e.g., subject to follow-up tests, as provided flood, tornado, or other natural dis- by that section. aster) or to vandalism or trespasser(s), as determined on the basis of objective Subpart C—Post-Accident and documented facts by the railroad representative responding to the scene. Toxicological Testing (c) Good faith determinations. (1)(i) § 219.201 Events for which testing is The railroad representative responding required. to the scene of the accident/incident (a) List of events. Except as provided must determine whether the accident/ in paragraph (b) of this section, post- incident falls within the requirements accident toxicological tests must be of paragraph (a) of this section or is conducted after any event that in- within the exception described in para- volves one or more of the cir- graph (b) of this section. It is the duty cumstances described in paragraphs of the railroad representative to make (a)(1) through (4) of this section: reasonable inquiry into the facts as (1) Major train accident. Any train ac- necessary to make such determina- cident (i.e., a rail equipment accident tions. In making such inquiry, the rail- involving damage in excess of the cur- road representative must consider the rent reporting threshold) that involves need to obtain specimens as soon as one or more of the following: practical in order to determine the (i) A fatality; presence or absence of impairing sub- (ii) A release of hazardous material stances reasonably contemporaneous lading from railroad equipment accom- with the accident/incident. The rail- panied by— road representative satisfies the re- (A) An evacuation; or quirement of this section if, after mak- (B) A reportable injury resulting ing reasonable inquiry, the representa- from the hazardous material release tive exercises good faith judgement in (e.g., from fire, explosion, inhalation, making the required determinations. or skin contact with the material); or (ii) The railroad representative mak- (iii) Damage to railroad property of ing the determinations required by this $1,000,000 or more. section may not be a person directly (2) Impact accident. An impact acci- involved in the accident/incident. Thisjdjones on DSK8KYBLC1PROD with CFR dent (i.e., a rail equipment accident de- section does not prohibit consultation fined as an ‘‘impact accident’’ in § 219.5) between the responding railroad rep- that involves damage in excess of the resentative and higher level railroad 245 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00255 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.203 49 CFR Ch. II (10–1–10 Edition) officials; however, the responding rail- cised such good faith judgment but road representative must make the fac- nevertheless errs in determining that tual determinations required by this post-accident testing is not required. section. (4) An accident/incident with respect (iii) Upon specific request made to to which the railroad has made reason- the railroad by the Associate Adminis- able inquiry and exercised good faith trator for Safety, FRA (or the Asso- judgment in determining the facts nec- ciate Administrator’s delegate), the essary to apply the criteria contained railroad must provide a report describ- in paragraph (a) of this section is ing any decision by a person other than deemed a qualifying event for purposes the responding railroad representative of specimen analysis, reporting, and with respect to whether an accident/in- other purposes. cident qualifies for testing. This report (5) In the event specimens are col- must be affirmed by the decision lected following an event determined maker and must be provided to FRA by FRA not to be a qualifying event within 72 hours of the request. The re- within the meaning of this section, port must include the facts reported by FRA directs its designated laboratory the responding railroad representative, to destroy any specimen material sub- the basis upon which the testing deci- mitted and to refrain from disclosing sion was made, and the person making to any person the results of any anal- the decision. ysis conducted. (iv) Any estimates of railroad prop- erty damage made by persons not at § 219.203 Responsibilities of railroads the scene must be based on descrip- and employees. tions of specific physical damage pro- (a) Employees tested. (1)(i) Following vided by the on-scene railroad rep- each accident and incident described in resentative. § 219.201, the railroad (or railroads) (v) In the case of an accident involv- must take all practicable steps to as- ing passenger equipment, a host rail- sure that all covered employees of the road may rely upon the damage esti- railroad directly involved in the acci- mates provided by the passenger rail- dent or incident provide blood and road (whether present on scene or not) urine specimens for toxicological test- in making the decision whether testing ing by FRA. Such employees must co- is required, subject to the same re- operate in the provision of specimens quirement that visible physical dam- as described in this part and Appendix age be specifically described. C to this part. (2) A railroad must not require an (ii) If the conditions for mandatory employee to provide blood or urine toxicological testing exist, the railroad specimens under the authority or pro- may also require employees to provide cedures of this subject unless the rail- breath for testing in accordance with road has made the determinations re- the procedures set forth in part 40 of quired by this section, based upon rea- this title and in this part, if such test- sonable inquiry and good faith judg- ing does not interfere with timely col- ment. A railroad does not act in excess lection of required specimens. of its authority under this subpart if (2) Such employees must specifically its representative has made such rea- include each and every operating em- sonable inquiry and exercised such ployee assigned as a crew member of good faith judgment, but it is later de- any train involved in the accident or termined, after investigation, that one incident. In any case where an oper- or more of the conditions thought to ator, dispatcher, signal maintainer or have required testing were not, in fact, other covered employee is directly and present. However, this section does not contemporaneously involved in the cir- excuse the railroad for any error aris- cumstances of the accident/incident, ing from a mistake of law (e.g., appli- those employees must also be required cation of testing criteria other than to provide specimens. those contained in this part). (3) An employee must be excludedjdjones on DSK8KYBLC1PROD with CFR (3) A railroad is not in violation of from testing under the following cir- this subpart if its representative has cumstances: In any case of an accident/ made such reasonable inquiry and exer- incident for which testing is mandated 246 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00256 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.203 only under § 219.201(a)(2) (an ‘‘impact railroad, except that an employee may accident’’), § 219.201(a)(3) (‘‘fatal train be immediately recalled for testing if— incident’’), or § 219.201(a)(4) (a ‘‘pas- (i) The employee could not be re- senger train accident with injury’’) if tained in duty status because the em- the railroad representative can imme- ployee went off duty under normal car- diately determine, on the basis of spe- rier procedures prior to being con- cific information, that the employee tacted by a railroad supervisor and in- had no role in the cause(s) or severity structed to remain on duty pending of the accident/incident. The railroad completion of the required determina- representative must consider any such tions (e.g., in the case of a dispatcher information immediately available at or signal maintainer remote from the the time the qualifying event deter- scene of an accident who was unaware mination is made under § 219.201. of the occurrence at the time the em- (4) The following provisions govern ployee went off duty); accidents/incidents involving non-cov- (ii) The railroad’s preliminary inves- ered employees: tigation (contemporaneous with the de- (i) Surviving non-covered employees termination required by § 219.201) indi- are not subject to testing under this cates a clear probability that the em- subpart. ployee played a major role in the cause (ii) Testing of the remains of non- or severity of the accident/incident; covered employees who are fatally in- and jured in train accidents and incidents (iii) The accident/incident actually is required. occurred during the employee’s duty (b) Timely specimen collection. (1) The tour. An employee who has been trans- railroad must make every reasonable ported to receive medical care is not effort to assure that specimens are pro- released from duty for purposes of this vided as soon as possible after the acci- section. Nothing in this section pro- dent or incident. hibits the subsequent testing of an em- (2) This paragraph (b) must not be ployee who has failed to remain avail- construed to inhibit the employees re- able for testing as required (i.e., who is quired to be tested from performing, in absent without leave); but subsequent the immediate aftermath of the acci- testing does not excuse such refusal by dent or incident, any duties that may the employee timely to provide the re- be necessary for the preservation of life quired specimens. or property. However, where practical, (c) Place of specimen collection. (1) Em- the railroad must utilize other employ- ployees must be transported to an inde- ees to perform such duties. pendent medical facility where the (3) In the case of a passenger train specimens must be obtained. The rail- which is in proper condition to con- road must pre-designate for such test- tinue to the next station or its destina- ing one or more such facilities in rea- tion after an accident or incident, the sonable proximity to any location railroad must consider the safety and where the railroad conducts oper- convenience of passengers in deter- ations. Designation must be made on mining whether the crew is imme- the basis of the willingness of the facil- diately available for testing. A relief ity to conduct specimen collection and crew must be called to relieve the train the ability of the facility to complete crew as soon as possible. specimen collection promptly, profes- (4) Covered employees who may be sionally, and in accordance with perti- subject to testing under this subpart nent requirements of this part. In all must be retained in duty status for the cases blood may be drawn only by a period necessary to make the deter- qualified medical professional or by a minations required by § 219.201 and this qualified technician subject to the su- section and (as appropriate) to com- pervision of a qualified medical profes- plete the specimen collection proce- sional. dure. An employee may not be recalled (2) In the case of an injured em-jdjones on DSK8KYBLC1PROD with CFR for testing under this subpart if that ployee, the railroad must request the employee has been released from duty treating medical facility to obtain the under the normal procedures of the specimens. 247 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00257 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.205 49 CFR Ch. II (10–1–10 Edition) (d) Obtaining cooperation of facility. (1) and processing of the specimens. The In seeking the cooperation of a medical railroad representative must request facility in obtaining a specimen under an appropriate representative of the this subpart, the railroad shall, as nec- medical facility to complete the re- essary, make specific reference to the maining portion of the information on requirements of this subpart. each Form 6180.74. One Form 6180.73 (2) If an injured employee is uncon- must be forwarded in the shipping kit scious or otherwise unable to evidence with each group of specimens. One consent to the procedure and the treat- Form 6180.74 must be forwarded in the ing medical facility declines to obtain shipping kit for each employee who blood specimens after having been ac- provides specimens. Forms 6180.73 and quainted with the requirements of this 6180.74 may be ordered from the labora- subpart, the railroad must imme- tory specified in appendix B to this diately notify the duty officer at the part; the forms are also provided to National Response Center (NRC) at railroads free of charge in the shipping (800) 424–8801 or (800) 424–8802, stating kit. (See paragraph (c) of this section.) the employee’s name, the medical fa- (c) Shipping kit. (1) FRA and the lab- cility, its location, the name of the ap- oratory designated in appendix B to propriate decisional authority at the this part make available for purchase a medical facility, and the telephone limited number of standard shipping number at which that person can be kits for the purpose of routine handling reached. FRA will then take appro- of toxicological specimens under this priate measures to assist in obtaining subpart. Whenever possible, specimens the required specimen. must be placed in the shipping kit pre- (e) Discretion of physician. Nothing in pared for shipment according to the in- this subpart may be construed to limit structions provided in the kit and Ap- the discretion of a physician to deter- pendix C to this part. mine whether drawing a blood speci- (2) Kits may be ordered directly from men is consistent with the health of an the laboratory designated in Appendix injured employee or an employee af- B to this part. flicted by any other condition that may preclude drawing the specified (3) FRA maintains a limited number quantity of blood. of kits at its field offices. A Class III railroad may utilize kits in FRA’s pos- § 219.205 Specimen collection and han- session, rather than maintaining such dling. kits on its property. (a) General. Urine and blood speci- (d) Shipment. Specimens must be mens must be obtained, marked, pre- shipped as soon as possible by pre-paid served, handled, and made available to air express or air freight (or other FRA consistent with the requirements means adequate to ensure delivery of this subpart, and the technical speci- within twenty-four (24) hours from fications set forth in Appendix C to time of shipment) to the laboratory this part. designated in appendix B to this part. (b) Information requirements. In order Where express courier pickup is avail- to process specimens, analyze the sig- able, the railroad must request the nificance of laboratory findings, and medical facility to transfer the sealed notify the railroads and employees of toxicology kit directly to the express test results, it is necessary to obtain courier for transportation. If courier basic information concerning the acci- pickup is not available at the medical dent/incident and any treatment ad- facility where the specimens are col- ministered after the accident/incident. lected or for any other reason prompt Accordingly, the railroad representa- transfer by the medical facility cannot tive must complete the information re- be assured, the railroad must promptly quired by Form FRA 6180.73 (revised) transport the sealed shipping kit hold- for shipping with the specimens. Each ing the specimens to the most expedi- employee subject to testing must co- tious point of shipment via air express,jdjones on DSK8KYBLC1PROD with CFR operate in completion of the required air freight or equivalent means. The information on Form FRA F 6180.74 (re- railroad must maintain and document vised) for inclusion in the shipping kit secure chain of custody of the kit from 248 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00258 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.209 release by the medical facility to deliv- retary for purposes of the Federal Tort ery for transportation, as described in Claims Act (chapter 171 of title 28, appendix C to this part. United States Code). Such qualified professional may rely upon the rep- § 219.206 FRA access to breath test re- resentations of the railroad or FRA sults. representative with respect to the oc- Documentation of breath test results currence of the event requiring that must be made available to FRA con- toxicological tests be conducted and sistent with the requirements of this the coverage of the deceased employee subpart, and the technical specifica- under this part. tions set forth in appendix C to this (d) Appendix C to this part specifies part. body fluid and tissue specimens re- quired for toxicological analysis in the § 219.207 Fatality. case of a fatality. (a) In the case of an employee fatal- ity in an accident or incident described § 219.209 Reports of tests and refusals. in § 219.201, body fluid and/or tissue (a)(1) A railroad that has experienced specimens must be obtained from the one or more events for which speci- remains of the employee for toxi- mens were obtained must provide cological testing. To ensure that speci- prompt telephonic notification summa- mens are timely collected, the railroad rizing such events. Notification must must immediately notify the appro- immediately be provided to the duty priate local authority (such as a cor- officer at the National Response Center oner or medical examiner) of the fatal- (NRC) at (800) 424–8802 and to the Office ity and the requirements of this sub- of Safety, FRA, at (202) 493–6313. part, making available the shipping kit (2) Each telephonic report must con- and requesting the local authority to tain: assist in obtaining the necessary body (i) Name of railroad; fluid or tissue specimens. The railroad (ii) Name, title and telephone num- must also seek the assistance of the ber of person making the report; custodian of the remains, if a person (iii) Time, date and location of the other than the local authority. accident/incident; (b) If the local authority or custodian (iv) Brief summary of the cir- of the remains declines to cooperate in cumstances of the accident/incident, obtaining the necessary specimens, the including basis for testing; and railroad must immediately notify the (v) Number, names and occupations duty officer at the National Response of employees tested. Center (NRC) at (800) 424–8801 or (800) (b) If the railroad is unable, as a re- 424–8802 by providing the following in- sult of non-cooperation of an employee formation: or for any other reason, to obtain a (1) Date and location of the accident specimen and cause it to be provided to or incident; FRA as required by this subpart, the (2) Railroad; railroad must make a concise narrative (3) Name of the deceased; report of the reason for such failure (4) Name and telephone number of and, if appropriate, any action taken in custodian of the remains; and response to the cause of such failure. (5) Name and telephone number of This report must be appended to the re- local authority contacted. port of the accident/incident required (c) A coroner, medical examiner, pa- to be submitted under part 225 of this thologist, Aviation Medical Examiner, chapter. or other qualified professional is au- (c) If a test required by this section is thorized to remove the required body not administered within four hours fol- fluid and/or tissue specimens from the lowing the accident or incident, the remains on request of the railroad or railroad must prepare and maintain on FRA pursuant to this part; and, in so file a record stating the reasons the acting, such person is the delegate of test was not promptly administered.jdjones on DSK8KYBLC1PROD with CFR the FRA Administrator under sections Records must be submitted to FRA 20107 and 20108 of title 49, United States upon request of the FRA Associate Ad- Code (but not the agent of the Sec- ministrator for Safety. 249 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00259 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.211 49 CFR Ch. II (10–1–10 Edition) § 219.211 Analysis and follow-up. by FRA in writing, the Medical Review (a) The laboratory designated in ap- Officer may not disclose to FRA the pendix B to this part undertakes underlying physical condition for prompt analysis of specimens provided which any medication was authorized under this subpart, consistent with the or administered. The FRA is not bound need to develop all relevant informa- by the railroad Medical Review Offi- tion and produce a complete report. cer’s determination, but that deter- Specimens are analyzed for alcohol and mination will be considered by FRA in controlled substances specified by FRA relation to the accident/incident inves- under protocols specified by FRA, sum- tigation and with respect to any en- marized in appendix C to this part, forcement action under consideration. which have been submitted to Health (d) To the extent permitted by law, and Human Services for acceptance. FRA treats test results indicating med- Specimens may be analyzed for other ical use of controlled substances con- impairing substances specified by FRA sistent with § 219.103 (and other infor- as necessary to the particular accident mation concerning medically author- investigation. ized drug use or administration pro- (b) Results of post-accident toxi- vided incident to such testing) as ad- cological testing under this subpart are ministratively confidential and with- reported to the railroad’s Medical Re- holds public disclosure, except where it view Officer and the employee. The is necessary to consider this informa- MRO and the railroad must treat the tion in an accident investigation in re- test results and any information con- lation to determination of probable cerning medical use or administration cause. (However, as further provided in of drugs provided under this subpart in this section, FRA may provide results the same confidential manner as if sub- of testing under this subpart and sup- ject to subpart H of this part, except porting documentation to the National where publicly disclosed by FRA or the Transportation Safety Board.) National Transportation Safety Board. (e) An employee may respond in writ- (c) With respect to a surviving em- ing to the results of the test prior to ployee, a test reported as positive for the preparation of any final investiga- alcohol or a controlled substance by tion report concerning the accident or the designated laboratory must be re- incident. An employee wishing to re- viewed by the railroad’s Medical Re- spond may do so by letter addressed to view Officer with respect to any claim the Alcohol/Drug Program Manager, of use or administration of medications Office of Safety, FRA, 1200 New Jersey (consistent with § 219.103) that could ac- Avenue, SE., Washington, DC 20590 count for the laboratory findings. The within 45 days of receipt of the test re- Medical Review Officer must promptly sults. Any such submission must refer report the results of each review to the to the accident date, railroad and loca- Associate Administrator for Safety, tion, must state the position occupied FRA, Washington, DC 20590. Such re- by the employee on the date of the ac- port must be in writing and must ref- cident/incident, and must identify any erence the employing railroad, acci- information contained therein that the dent/incident date, and location, and employee requests be withheld from the envelope must be marked ‘‘AD- public disclosure on grounds of per- MINISTRATIVELY CONFIDENTIAL: sonal privacy (but the decision whether ATTENTION ALCOHOL/DRUG PRO- to honor such request will be made by GRAM MANAGER.’’ The report must the FRA on the basis of controlling state whether the MRO reported the law). test result to the employing railroad as (f)(1) The toxicology report may con- positive or negative and the basis of tain a statement of pharmacological any determination that analytes de- significance to assist FRA and other tected by the laboratory derived from parties in understanding the data re- authorized use (including a statement ported. No such statement may be con- of the compound prescribed, dosage/fre- strued as a finding of probable cause injdjones on DSK8KYBLC1PROD with CFR quency, and any restrictions imposed the accident or incident. by the authorized medical practi- (2) The toxicology report is a part of tioner). Unless specifically requested the report of the accident/incident and 250 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00260 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.213 therefore subject to the limitation of 49 under that Department’s Guidelines for U.S.C. 20903 (prohibiting use of the re- Federal Workplace Drug Testing Pro- port for any purpose in a civil action grams that has available an appro- for damages resulting from a matter priate, validated assay for the fluid and mentioned in the report). compound declared positive. Since (g)(1) It is in the public interest to some analytes may deteriorate during ensure that any railroad disciplinary storage, detected levels of the com- actions that may result from accidents pound shall, as technically appropriate, and incidents for which testing is re- be reported and considered corrobora- quired under this subpart are disposed tive of the original test result. Any re- of on the basis of the most complete quest for a retest shall be in writing, and reliable information available so specify the railroad, accident date and that responsive action will be appro- location, be signed by the employee/ priate. Therefore, during the interval donor, be addressed to the Associate between an accident or incident and Administrator for Safety, Federal Rail- the date that the railroad receives no- road Administration, Washington, DC tification of the results of the toxi- 20590, and be designated ‘‘ADMINIS- cological analysis, any provision of col- TRATIVELY CONFIDENTIAL: AT- lective bargaining agreements estab- TENTION ALCOHOL/DRUG PROGRAM lishing maximum periods for charging MANAGER.’’ The expense of any em- employees with rule violations, or for ployee-requested split specimen test at holding an investigation, may not be a laboratory other than the laboratory deemed to run as to any offense involv- designated under this subpart shall be ing the accident or incident (i.e., such borne by the employee. periods must be tolled). (2) This provision may not be con- [66 FR 41973, Aug. 9, 2001, as amended at 74 strued to excuse the railroad from any FR 25172, May 27, 2009] obligation to timely charge an em- § 219.213 Unlawful refusals; con- ployee (or provide other actual notice) sequences. where the railroad obtains sufficient information relating to alcohol or drug (a) Disqualification. An employee who use, impairment or possession or other refuses to cooperate in providing rule violations prior to the receipt to breath, blood or urine specimens fol- toxicological analysis. lowing an accident or incident speci- (3) This provision does not authorize fied in this subpart must be withdrawn holding any employee out of service from covered service and must be pending receipt of toxicological anal- deemed disqualified for covered service ysis; nor does it restrict a railroad for a period of nine (9) months in ac- from taking such action in an appro- cordance with the conditions specified priate case. in § 219.107. (h) Except as provided in § 219.201 (b) Procedures. Prior to or upon with- (with respect to non-qualifying events), drawing the employee from covered each specimen (including each split service under this section, the railroad specimen) provided under this subpart must provide notice of the reason for is retained for not less than three this action and an opportunity for months following the date of the acci- hearing before a presiding officer other dent or incident (two years from the than the charging official. The em- date of the accident or incident in the ployee is entitled to the procedural case of a specimen testing positive for protection set out in § 219.104(d). alcohol or a controlled substance). (c) Subject of hearing. The hearing re- Post-mortem specimens may be made quired by this section must determine available to the National Transpor- whether the employee refused to sub- tation Safety Board (on request). mit to testing, having been requested (i) An employee (donor) may, within to submit, under authority of this sub- 60 days of the date of the toxicology re- part, by a representative of the rail- port, request that his or her split speci- road. In determining whether a dis-jdjones on DSK8KYBLC1PROD with CFR men be tested by the designated lab- qualification is required, the hearing oratory or by another laboratory cer- official shall, as appropriate, also con- tified by Health and Human Services sider the following: 251 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00261 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.300 49 CFR Ch. II (10–1–10 Edition) (1) Whether the railroad made a good cohol testing or drug testing when the faith determination, based on reason- employee is apparently in need of im- able inquiry, that the accident or inci- mediate medical attention. dent was within the mandatory testing (d)(1) If a test required by this sec- requirements of this subpart; and tion is not administered within two (2) In a case where a blood test was hours following the determination refused on the ground it would be in- under this section, the railroad must consistent with the employee’s health, prepare and maintain on file a record whether such refusal was made in good stating the reasons the test was not faith and based on medical advice. properly administered. If a test re- quired by this section is not adminis- Subpart D—Testing for Cause tered within eight hours of the deter- mination under this section, the rail- § 219.300 Mandatory reasonable sus- road must cease attempts to admin- picion testing. ister an alcohol test and must state in (a) Requirements. (1) A railroad must the record the reasons for not admin- require a covered employee to submit istering the test. Records must be sub- to an alcohol test when the railroad mitted to FRA upon request of the has reasonable suspicion to believe FRA Administrator. that the employee has violated any (2) [Reserved] prohibition of subpart B of this part concerning use of alcohol. The rail- § 219.301 Testing for reasonable cause. road’s determination that reasonable (a) Authorization. A railroad may, suspicion exists to require the covered under the conditions specified in this employee to undergo an alcohol test subpart, require any covered employee, must be based on specific, contempora- as a condition of employment in cov- neous, articulable observations con- ered service, to cooperate in breath or cerning the appearance, behavior, body fluid testing, or both, to deter- speech or body odors of the employee. mine compliance with §§ 219.101 and (2) A railroad must require a covered 219.102 or a railroad rule implementing employee to submit to a drug test the requirements of §§ 219.101 and when the railroad has reasonable sus- 219.102. This authority is limited to picion to believe that the employee has testing after observations or events violated the prohibitions of subpart B that occur during duty hours (includ- of this part concerning use of con- ing any period of overtime or emer- trolled substances. The railroad’s de- gency service). The provisions of this termination that reasonable suspicion subpart apply only when, and to the ex- exists to require the covered employee tent that, the test in question is con- to undergo a drug test must be based ducted in reliance upon the authority on specific, contemporaneous, conferred by this section. Section 219.23 articulable observations concerning prescribes the notice to an employee the appearance, behavior, speech or that is required when an employee is body odors of the employee. Such ob- required to provide a breath or body servations may include indications of fluid specimen under this part. A rail- the chronic and withdrawal effects of road may not require an employee to drugs. be tested under the authority of this (b)(1) With respect to an alcohol test, subpart unless reasonable cause, as de- the required observations must be fined in this section, exists with re- made by a supervisor trained in accord- spect to that employee. ance with § 219.11(g). The supervisor (b) For cause breath testing. In addi- who makes the determination that rea- tion to reasonable suspicion as de- sonable suspicion exists may not con- scribed in § 219.300, the following cir- duct testing on that employee. cumstances constitute cause for the (2) With respect to a drug test, the administration of alcohol tests under required observations must be made by this section: two supervisors, at least one of whom (1) [Reserved]jdjones on DSK8KYBLC1PROD with CFR is trained in accordance with § 219.11(g). (2) Accident/incident. The employee (c) Nothing in this section may be has been involved in an accident or in- construed to require the conduct of al- cident reportable under part 225 of this 252 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00262 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.302 chapter, and a supervisory employee of § 219.300, each of the conditions set the railroad has a reasonable belief, forth in paragraphs (b)(2) (‘‘accident/in- based on specific, articulable facts, cident’’) and (b)(3) (‘‘rule violation’’) of that the employee’s acts or omissions this section as constituting cause for contributed to the occurrence or sever- alcohol testing also constitutes cause ity of the accident or incident; or with respect to drug testing. (3) Rule violation. The employee has (d) [Reserved] been directly involved in one of the fol- (e) Limitation for subpart C events. The lowing operating rule violations or er- compulsory drug testing authority con- rors: ferred by this section does not apply (i) Noncompliance with a train order, with respect to any event subject to track warrant, timetable, signal indi- post-accident toxicological testing as cation, special instruction or other di- required by § 219.201. However, use of rection with respect to movement of a compulsory breath test authority is train that involves— authorized in any case where breath (A) Occupancy of a block or other test results can be obtained in a timely segment of track to which entry was manner at the scene of the accident not authorized; and conduct of such tests does not ma- (B) Failure to clear a track to permit terially impede the collection of speci- opposing or following movement to mens under subpart C of this part. pass; (C) Moving across a railroad crossing § 219.302 Prompt specimen collection; at grade without authorization; or time limitation. (D) Passing an absolute restrictive (a) Testing under this subpart may signal or passing a restrictive signal only be conducted promptly following without stopping (if required); the observations or events upon which (ii) Failure to protect a train as re- the testing decision is based, con- quired by a rule consistent with § 218.37 sistent with the need to protect life of this chapter (including failure to and property. protect a train that is fouling an adja- (b) No employee may be required to cent track, where required by the rail- participate in alcohol or drug testing road’s rules); under this section after the expiration (iii) Operation of a train at a speed of an eight-hour period from— that exceeds the maximum authorized (1) The time of the observations or speed by at least ten (10) miles per hour other events described in this section; or by fifty percent (50%) of such max- or imum authorized speed, whichever is (2) In the case of an accident/inci- less; dent, the time a responsible railroad (iv) Alignment of a switch in viola- supervisor receives notice of the event tion of a railroad rule, failure to align providing reasonable cause for conduct a switch as required for movement, op- of the test. eration of a switch under a train, or (c) An employee may not be tested unauthorized running through a under this subpart if that employee has switch; been released from duty under the nor- (v) Failure to apply or stop short of mal procedures of the railroad. An em- derail as required; ployee who has been transported to re- (vi) Failure to secure a hand brake or ceive medical care is not released from failure to secure sufficient hand duty for purposes of this section. Noth- brakes, as required; ing in this section prohibits the subse- (vii) Entering a crossover before both quent testing of an employee who has switches are lined for movement; or failed to remain available for testing (viii) In the case of a person per- as required (i.e., who is absent without forming a dispatching function or leave). block operator function, issuance of a (d) As used in this subpart, a ‘‘re- train order or establishment of a route sponsible railroad supervisor’’ means that fails to provide proper protection any responsible line supervisor (e.g., ajdjones on DSK8KYBLC1PROD with CFR for a train. trainmaster or road foreman of en- (c) For cause drug testing. In addition gines) or superior official in authority to reasonable suspicion as described in over the employee to be tested. 253 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00263 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.401 49 CFR Ch. II (10–1–10 Edition) (e) In the case of a drug test, the report is made for the purpose, or with eight-hour requirement is satisfied if the effect, of anticipating the immi- the employee has been delivered to the nent and probable detection of a rule collection site (where the collector is violation by a supervising employee; or present) and the request has been made (3) Limit the discretion of a railroad to commence collection of the drug to dismiss or otherwise discipline an testing specimens within that period. employee for specific rule violations or (f) [Reserved] criminal offenses, except as specifically (g) Section 219.23 prescribes the no- provided by this subpart. tice to an employee that is required to provide breath or a body fluid specimen § 219.403 Voluntary referral policy. under this part. (a) Scope. This section prescribes minimum standards for voluntary re- Subpart E—Identification of ferral policies. Nothing in this section Troubled Employees restricts a railroad from adopting, pub- lishing and implementing a voluntary § 219.401 Requirement for policies. referral policy that affords more favor- (a) The purpose of this subpart is to able conditions to employees troubled prevent the use of alcohol and drugs in by alcohol or drug abuse problems, con- connection with covered service. sistent with the railroad’s responsi- (b) Each railroad must adopt, publish bility to prevent violations of §§ 219.101 and implement— and 219.102. (1) A policy designed to encourage (b) Required provisions. A voluntary and facilitate the identification of referral policy must include the fol- those covered employees who abuse al- lowing provisions: cohol or drugs as a part of a treatable (1) A covered employee who is af- condition and to ensure that such em- fected by an alcohol or drug use prob- ployees are provided the opportunity to lem may maintain an employment re- obtain counseling or treatment before lationship with the railroad if, before those problems manifest themselves in the employee is charged with conduct detected violations of this part (here- deemed by the railroad sufficient to after ‘‘voluntary referral policy’’); and warrant dismissal, the employee seeks (2) A policy designed to foster em- assistance through the railroad for the ployee participation in preventing vio- employee’s alcohol or drug use problem lations of this subpart and encourage or is referred for such assistance by an- co-worker participation in the direct other employee or by a representative enforcement of this part (hereafter of the employee’s collective bargaining ‘‘co-worker report policy’’). unit. The railroad must specify wheth- (c) A railroad may comply with this er, and under what circumstances, its subpart by adopting, publishing and policy provides for the acceptance of implementing policies meeting the spe- referrals from other sources, including cific requirements of §§ 219.403 and (at the option of the railroad) super- 219.405 or by complying with § 219.407. visory employees. (d) If a railroad complies with this (2) Except as may be provided under part by adopting, publishing and imple- paragraph (c) of this section, the rail- menting policies consistent with road treats the referral and subsequent §§ 219.403 and 219.405, the railroad must handling, including counseling and make such policies, and publications treatment, as confidential. announcing such policies, available for (3) The railroad will, to the extent inspection and copying by FRA. necessary for treatment and rehabilita- (e) Nothing in this subpart may be tion, grant the employee a leave of ab- construed to— sence from the railroad for the period (1) Require payment of compensation necessary to complete primary treat- for any period an employee is out of ment and establish control over the service under a voluntary referral or employee’s alcohol or drug problem. co-worker report policy; The policy must allow a leave of ab-jdjones on DSK8KYBLC1PROD with CFR (2) Require a railroad to adhere to a sence of not less than 45 days, if nec- voluntary referral or co-worker report essary for the purpose of meeting ini- policy in a case where the referral or tial treatment needs. 254 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00264 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.405 (4) Except as may be provided under railroad’s responsibility to prevent vio- paragraph (c)(2) of this section, the em- lations of §§ 219.101 and 219.102. ployee will be returned to service on (b) Employment relationship. A co- the recommendation of the substance worker report policy must provide that abuse professional. Approval to return a covered employee may maintain an to service may not be unreasonably employment relationship with the rail- withheld. road following an alleged first offense (5) With respect to a certified loco- under this part or the railroad’s alco- motive engineer or a candidate for cer- hol and drug rules, subject to the con- tification, the railroad must meet the ditions and procedures contained in requirements of § 240.119(e) of this chap- this section. ter. (c) General conditions and procedures. (c) Optional provisions. A voluntary (1) The alleged violation must come to referral policy may include any of the the attention of the railroad as a result following provisions, at the option of of a report by a co-worker that the em- the railroad: ployee was apparently unsafe to work (1) The policy may provide that the with or was, or appeared to be, in viola- rule of confidentiality is waived if— tion of this part or the railroad’s alco- (i) The employee at any time refuses hol and drug rules. to cooperate in a recommended course (2) If the railroad representative de- of counseling or treatment; and/or termines that the employee is in viola- (ii) The employee is later deter- tion, the railroad may immediately re- mined, after investigation, to have move the employee from service in ac- been involved in an alcohol or drug-re- cordance with its existing policies and lated disciplinary offense growing out procedures. of subsequent conduct. (3) The employee must elect to waive investigation on the rule charge and (2) The policy may require successful must contact the substance abuse pro- completion of a return-to-service med- fessional within a reasonable period ical examination as a further condition specified by the policy. on reinstatement in covered service. (4) The substance abuse professional (3) The policy may provide that it must schedule necessary interviews does not apply to an employee who has with the employee and complete an previously been assisted by the rail- evaluation within 10 calendar days of road under a policy or program sub- the date on which the employee con- stantially consistent with this section tacts the professional with a request or who has previously elected to waive for evaluation under the policy, unless investigation under § 219.405 (co-worker it becomes necessary to refer the em- report policy). ployee for further evaluation. In each (4) The policy may provide that, in case, all necessary evaluations must be order to invoke its benefits, the em- completed within 20 days of the date on ployee must report to the contact des- which the employee contacts the pro- ignated by the railroad either: fessional. (i) During non-duty hours (i.e., at a (d) When treatment is required. If the time when the employee is off duty); or substance abuse professional deter- (ii) While unimpaired and otherwise mines that the employee is affected by in compliance with the railroad’s alco- psychological or chemical dependence hol and drug rules consistent with this on alcohol or a drug or by another subpart. identifiable and treatable mental or physical disorder involving the abuse § 219.405 Co-worker report policy. of alcohol or drugs as a primary mani- (a) Scope. This section prescribes festation, the following conditions and minimum standards for co-worker re- procedures apply: port policies. Nothing in this section (1) The railroad must, to the extent restricts a railroad from adopting, pub- necessary for treatment and rehabilita- lishing and implementing a policy that tion, grant the employee a leave of ab-jdjones on DSK8KYBLC1PROD with CFR affords more favorable conditions to sence from the railroad for the period employees troubled by alcohol or drug necessary to complete primary treat- abuse problems, consistent with the ment and establish control over the 255 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00265 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.407 49 CFR Ch. II (10–1–10 Edition) employee’s alcohol or drug problem. railroad operations, if such policy or The policy must allow a leave of ab- policies have the written concurrence sence of not less than 45 days, if nec- of the recognized representatives of essary for the purpose of meeting ini- such employees. tial treatment needs. (b) The concurrence of recognized (2) The employee must agree to un- employee representatives in an alter- dertake and successfully complete a nate policy may be evidenced by a col- course of treatment deemed acceptable lective bargaining agreement or any by the substance abuse professional. other document describing the class or (3) The railroad must promptly re- craft of employees to which the alter- turn the employee to service, on rec- nate policy applies. The agreement or ommendation of the substance abuse other document must make express ref- professional, when the employee has erence to this part and to the intention established control over the substance of the railroad and employee represent- abuse problem. Return to service may atives that the alternate policy applies also be conditioned on successful com- in lieu of the policy required by pletion of a return-to-service medical § 219.403, § 219.405, or both. examination. Approval to return to (c) The railroad must file the agree- service may not be unreasonably with- ment or other document described in held. paragraph (b) of this section with the (4) Following return to service, the Associate Administrator for Safety, employee, as a further condition on FRA. If the alternate policy is amend- withholding of discipline, may, as nec- ed or revoked, the railroad must file a essary, be required to participate in a notice of such amendment or revoca- reasonable program of follow-up treat- tion at least 30 days prior to the effec- ment for a period not to exceed 60 tive date of such action. months from the date the employee (d) This section does not excuse a was originally withdrawn from service. railroad from adopting, publishing and (e) When treatment is not required. If implementing the policies required by the substance abuse professional deter- §§ 219.403 and 219.405 with respect to any mines that the employee is not affected group of covered employees not within by an identifiable and treatable mental the coverage of an appropriate alter- or physical disorder— nate policy. (1) The railroad must return the em- ployee to service within 5 days after Subpart F—Pre-Employment Tests completion of the evaluation. (2) During or following the out-of- § 219.501 Pre-employment drug test- service period, the railroad may re- ing. quire the employee to participate in a (a) Prior to the first time a covered program of education and training con- employee performs covered service for cerning the effects of alcohol and drugs a railroad, the employee must undergo on occupational or transportation safe- testing for drugs. No railroad may ty. allow a covered employee to perform (f) Follow-up tests. A railroad may covered service, unless the employee conduct return-to-service and/or fol- has been administered a test for drugs low-up tests (as described in § 219.104) of with a result that did not indicate the an employee who waives investigation misuse of controlled substances. This and is determined to be ready to return requirement applies to final applicants to service under this section. for employment and to employees seeking to transfer for the first time § 219.407 Alternate policies. from non-covered service to duties in- (a) In lieu of a policy under § 219.403 volving covered service. (voluntary referral) or § 219.405 (co- (b) As used in subpart H of this part worker report), or both, a railroad may with respect to a test required under adopt, publish and implement, with re- this subpart, the term covered em- spect to a particular class or craft of ployee includes an applicant for pre-jdjones on DSK8KYBLC1PROD with CFR covered employees, an alternate policy employment testing only. In the case or policies having as their purpose the of an applicant who declines to be test- prevention of alcohol or drug use in ed and withdraws the application for 256 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00266 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.601 employment, no record may be main- tially and be retained in the same man- tained of the declination. ner as required under subpart J of this part for employee test records, except § 219.502 Pre-employment alcohol test- that such records need not reflect the ing. identity of an applicant whose applica- (a) A railroad may, but is not re- tion for employment in covered service quired to, conduct pre-employment al- was denied. cohol testing under this part. If a rail- road chooses to conduct pre-employ- § 219.505 Refusals. ment alcohol testing, the railroad must An applicant who has refused to sub- comply with the following require- mit to pre-employment testing under ments: this section may not be employed in (1) It must conduct a pre-employ- covered service based upon the applica- ment alcohol test before the first per- tion and examination with respect to formance of safety-sensitive functions which such refusal was made. This sec- by every covered employee (whether a tion does not create any right on the new employee or someone who has part of the applicant to have a subse- transferred to a position involving the quent application considered; nor does performance of safety-sensitive func- it restrict the discretion of the railroad tions). to entertain a subsequent application (2) It must treat all safety-sensitive for employment from the same person. employees performing safety-sensitive functions the same for the purpose of Subpart G—Random Alcohol and pre-employment alcohol testing (i.e., it Drug Testing Programs must not test some covered employees and not others). § 219.601 Railroad random drug test- (3) It must conduct the pre-employ- ing programs. ment tests after making a contingent (a) Submission. Each railroad must offer of employment or transfer, sub- submit for FRA approval a random ject to the employee passing the pre- testing program meeting the require- employment alcohol test. ments of this subpart. A railroad com- (4) It must conduct all pre-employ- mencing operations must submit such ment alcohol tests using the alcohol a program not later than 30 days prior testing procedures of part 40 of this to such commencement. The program title. must be submitted to the Associate Ad- (5) It must not allow a covered em- ministrator for Safety, FRA, for review ployee to begin performing safety-sen- and approval by the FRA Adminis- sitive functions unless the result of the trator. If, after approval, a railroad de- employee’s test indicates an alcohol sires to amend the random testing pro- concentration of less than 0.04. gram implemented under this subpart, (b) As used in subpart H of this part, the railroad must file with FRA a no- with respect to a test authorized under tice of such amendment at least 30 this subpart, the term covered em- days prior to the intended effective ployee includes an applicant for pre- date of such action. A railroad already employment testing only. In the case subject to this subpart that becomes of an applicant who declines to be test- subject to this subpart with respect to ed and withdraws the application for one or more additional employees must employment, no record may be main- amend its program not later than 60 tained of the declination. days after these employees become subject to this subpart and file with § 219.503 Notification; records. FRA a notice of such amendment at The railroad must provide for med- least 30 days prior to the intended ef- ical review of drug test results as pro- fective date of such action. A program vided in subpart H of this part. The responsive to the requirements of this railroad must notify the applicant of section or any amendment to the pro- the results of the drug and alcohol gram may not be implemented prior tojdjones on DSK8KYBLC1PROD with CFR tests in the same manner as provided approval. for employees in subpart H of this part. (b) Form of programs. Random testing Records must be maintained confiden- programs submitted by or on behalf of 257 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00267 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.601 49 CFR Ch. II (10–1–10 Edition) each railroad under this subpart must ing at the appropriate percentage es- meet the following criteria, and the tablished for your industry and that railroad and its managers, supervisors, only covered employees are in the ran- officials and other employees and dom testing pool. agents must conform to such criteria (3) Railroad random testing programs in implementing the program: must ensure to the maximum extent (1) Selection of covered employees for practicable that each employee per- testing must be made by a method em- ceives the possibility that a random ploying objective, neutral criteria test may be required on any day the which ensure that every covered em- employee reports for work. ployee has a substantially equal statis- (4) Notice of an employee’s selection tical chance of being selected within a may not be provided until the duty specified time frame. The method may tour in which testing is to be con- not permit subjective factors to play a ducted, and then only so far in advance role in selection, i.e., no employee may as is reasonably necessary to ensure be selected as the result of the exercise the employee’s presence at the time of discretion by the railroad. The selec- and place set for testing. tion method must be capable of (5) The program must include testing verification with respect to the ran- procedures and safeguards, and proce- domness of the selection process, and dures for action based on positive test any records necessary to document results, consistent with this part. random selection must be retained for (6) An employee must be subject to not less than 24 months from the date testing only while on duty. Only em- upon which the particular specimens were collected. ployees who perform covered service (2)(i) The program must select for for the railroad are subject to testing testing a sufficient number of employ- under this part. In the case of employ- ees so that, during the first 12 ees who during some duty tours per- months— form covered service and during others (A) The random testing program is do not, the railroad program must spread reasonably through the 12- specify the extent to which, and the month period. circumstances under which they are to (B) [Reserved] be subject to testing. To the extent (ii) To calculate the total number of practical within the limitations of this covered employees eligible for random part and in the context of the rail- testing throughout the year, as a rail- road’s operations, the railroad program road, you must add the total number of must provide that employees are sub- covered employees eligible for testing ject to the possibility of random test- during each random testing period for ing on any day they actually perform the year and divide that total by the covered service. number of random testing periods. Cov- (7) Each time an employee is notified ered employees, and only covered em- for random drug testing the employee ployees, are to be in a railroad’s ran- will be informed that selection was dom testing pool, and all covered em- made on a random basis. ployees must be in the random pool. If (c) Approval. The Associate Adminis- you are a railroad conducting random trator for Safety, FRA, will notify the testing more often than once per railroad in writing whether the pro- month (e.g., you select daily, weekly, gram is approved as consistent with bi-weekly), you do not need to compute the criteria set forth in this part. If the this total number of covered employees Associate Administrator for Safety de- rate more than on a once per month termines that the program does not basis. conform to those criteria, the Asso- (iii) As a railroad, you may use a ciate Administrator for Safety will in- service agent (e.g., C/TPA) to perform form the railroad of any matters pre- random selections for you, and your venting approval of the program, with covered employees may be part of a specific explanation as to necessary re-jdjones on DSK8KYBLC1PROD with CFR larger random testing pool of covered visions. The railroad must resubmit its employees. However, you must ensure program with the required revisions that the service agent you use is test- within 30 days of such notice. Failure 258 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00268 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.602 to resubmit the program with the nec- lating the industry positive rate. Each essary revisions will be considered a year, the Administrator will publish in failure to implement a program under the FEDERAL REGISTER the minimum this subpart. annual percentage rate for random (d) Implementation. (1) No later than drug testing of covered employees. The 45 days prior to commencement of ran- new minimum annual percentage rate dom testing, the railroad must publish for random drug testing will be appli- to each of its covered employees, indi- cable starting January 1 of the cal- vidually, a written notice that he or endar year following publication. she will be subject to random drug (c) When the minimum annual per- testing under this part. Such notice centage rate for random drug testing is must state the date for commencement 50 percent, the Administrator may of the program, must state that the se- lower this rate to 25 percent of all cov- lection of employees for testing will be ered employees if the Administrator on a strictly random basis, must de- determines that the data received scribe the consequences of a deter- under the reporting requirements of mination that the employee has vio- § 219.800 for two consecutive calendar lated § 219.102 or any applicable railroad years indicate that the reported posi- rule, and must inform the employee of tive rate is less than 1.0 percent. the employee’s rights under subpart E (d) When the minimum annual per- of this part. A copy of the notice must centage rate for random drug testing is be provided to each new covered em- 25 percent, and the data received under ployee on or before the employee’s ini- tial date of service. Since knowledge of the reporting requirements of § 219.800 Federal law is presumed, nothing in for any calendar year indicate that the this paragraph (d)(1) creates a defense reported positive rate is equal to or to a violation of § 219.102. greater than 1.0 percent, the Adminis- (2) A railroad commencing operations trator will increase the minimum an- must submit a random testing program nual percentage rate for random drug 60 days after doing so. The railroad testing to 50 percent of all covered em- must implement its approved random ployees. testing program not later than the ex- (e) Selection of covered employees piration of 60 days from approval by for testing must be made by a method the Administrator. employing objective, neutral criteria which ensures that every covered em- [66 FR 41973, Aug. 9, 2001, as amended at 68 ployee has a substantially equal statis- FR 75463, Dec. 31, 2003] tical chance of being selected within a § 219.602 FRA Administrator’s deter- specified time frame. The method may mination of random drug testing not permit subjective factors to play a rate. role in selection, i.e., no employee may (a) Except as provided in paragraphs be selected as a result of the exercise of (b) through (d) of this section, the min- discretion by the railroad. The selec- imum annual percentage rate for ran- tion method must be capable of dom drug testing must be 50 percent of verification with respect to the ran- covered employees. domness of the selection process. (b) The FRA Administrator’s decision (f) The railroad must randomly select to increase or decrease the minimum a sufficient number of covered employ- annual percentage rate for random ees for testing during each calendar drug testing is based on the reported year to equal an annual rate not less positive rate for the entire industry. than the minimum annual percentage All information used for this deter- rate for random drug testing deter- mination is drawn from the drug MIS mined by the Administrator. If the reports required by this part. In order railroad conducts random drug testing to ensure reliability of the data, the through a consortium, the number of Administrator considers the quality employees to be tested may be cal- and completeness of the reported data, culated for each individual railroad orjdjones on DSK8KYBLC1PROD with CFR may obtain additional information or may be based on the total number of reports from railroads, and may make covered employees covered by the con- appropriate modifications in calcu- sortium who are subject to random 259 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00269 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.603 49 CFR Ch. II (10–1–10 Edition) drug testing at the same minimum an- pending the result of a retest or split nual percentage rate under this part or specimen test. any DOT agency drug testing rule. (g) Each railroad must ensure that § 219.607 Railroad random alcohol random drug tests conducted under testing programs. this part are unannounced and that the (a) Each railroad must submit for dates for administering random tests FRA approval a random alcohol testing are spread reasonably throughout the program meeting the requirements of calendar year. this subpart. A railroad commencing (h) If a given covered employee is operations must submit a random alco- subject to random drug testing under hol testing program not later than 30 the drug testing rules of more than one days prior to such commencement. The DOT agency for the same railroad, the program must be submitted to the As- employee must be subject to random sociate Administrator for Safety, FRA, drug testing at the percentage rate es- for review and approval. If, after ap- tablished for the calendar year by the proval, a railroad desires to amend the DOT agency regulating more than 50 random alcohol testing program imple- percent of the employee’s function. mented under this subpart, the railroad (i) If a railroad is required to conduct must file with FRA a notice of such random drug testing under the drug amendment at least 30 days prior to testing rules of more than one DOT the intended effective date of such ac- agency, the railroad may— tion. A program responsive to the re- (1) Establish separate pools for ran- quirements of this section or any dom selection, with each pool con- amendment to the program may not be taining the covered employees who are implemented prior to approval. subject to testing at the same required (b) Form of programs. Random alcohol rate; or testing programs submitted by or on (2) Randomly select such employees behalf of each railroad under this sub- for testing at the highest percentage part must meet the following criteria, rate established for the calendar year and the railroad and its managers, su- by any DOT agency to which the rail- pervisors, officials and other employees road is subject. and agents must conform to such cri- [66 FR 41973, Aug. 9, 2001, as amended at 68 teria in implementing the program: FR 75463, Dec. 31, 2003] (1) As a railroad, to calculate the total number of covered employees eli- § 219.603 Participation in drug testing. gible for random testing throughout A railroad shall, under the conditions the year, you must add the total num- specified in this subpart and subpart H ber of covered employees eligible for of this part, require a covered em- testing during each random testing pe- ployee selected through the random riod for the year and divide that total testing program to cooperate in urine by the number of random testing peri- testing to determine compliance with ods. Covered employees, and only cov- § 219.102, and the employee must pro- ered employees, are to be in a rail- vide the required specimen and com- road’s random testing pool, and all cov- plete the required paperwork and cer- ered employees must be in the random tifications. Compliance by the em- pool. If you are a railroad conducting ployee may be excused only in the case random testing more often than once of a documented medical or family per month (e.g., you select daily, week- emergency. ly, bi-weekly), you do not need to com- pute this total number of covered em- § 219.605 Positive drug test results; ployees rate more than on a once per procedures. month basis. (a) [Reserved] (i) As a railroad, you may use a serv- (b) Procedures for administrative ice agent (e.g., C/TPA) to perform ran- handling by the railroad in the event a dom selections for you, and your cov- specimen provided under this subpart ered employees may be part of a largerjdjones on DSK8KYBLC1PROD with CFR is reported as positive by the MRO are random testing pool of covered employ- set forth in § 219.104. The responsive ac- ees. However, you must ensure that the tion required in § 219.104 is not stayed service agent you use is testing at the 260 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00270 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.608 appropriate percentage established for employee ceases to perform the safety- your industry and that only covered sensitive function and proceeds to the employees are in the random testing testing site as soon as possible. pool. (c) Implementation. (1) No later than (ii) [Reserved] 45 days prior to commencement of ran- (2) The program must include testing dom alcohol testing, the railroad must procedures and safeguards, and, con- publish to each of its covered employ- sistent with this part, procedures for ees, individually, a written notice that action based on tests where the em- the employee will be subject to random ployee is found to have violated alcohol testing under this part. Such § 219.101. notice must state the date for com- (3) The program must ensure that mencement of the program, must state random alcohol tests conducted under that the selection of employees for this part are unannounced and that the testing will be on a strictly random dates for administering random tests basis, must describe the consequences are spread reasonably throughout the of a determination that the employee calendar year. has violated § 219.101 or any applicable (4) The program must ensure to the railroad rule, and must inform the em- maximum extent practicable that each ployee of the employee’s rights under covered employee perceives the possi- subpart E of this part. A copy of the bility that a random alcohol test may notice must be provided to each new be required at any time the employee covered employee on or before the em- reports for work and at any time dur- ployee’s initial date of service. Since ing the duty tour (except any period knowledge of Federal law is presumed, when the employee is expressly re- nothing in this paragraph (c)(1) creates lieved of any responsibility for per- a defense to a violation of § 219.101. This formance of covered service). notice may be combined with the no- (5) An employee may be subject to tice or policy statement required by testing only while on duty. Only em- § 219.23. ployees who perform covered service (2) A railroad commencing operations for the railroad may be subject to test- must submit a random testing program ing under this part. In the case of em- 60 days after doing so. The railroad ployees who during some duty tours must implement its approved random perform covered service and during testing program not later than the ex- others do not, the railroad program piration of 60 days from approval by may specify the extent to which, and the Administrator. the circumstances under which they [66 FR 41973, Aug. 9, 2001, as amended at 68 are subject to testing. To the extent FR 75464, Dec. 31, 2003] practical within the limitations of this part and in the context of the rail- § 219.608 FRA Administrator’s deter- road’s operations, the railroad program mination of random alcohol testing must provide that employees are sub- rate. ject to the possibility of random test- (a) Except as provided in paragraphs ing on any day they actually perform (b) through (d) of this section, the min- covered service. imum annual percentage rate for ran- (6) Testing must be conducted dom alcohol testing must be 25 percent promptly, as provided in § 219.701(b)(1). of covered employees. (7) Each time an employee is notified (b) The Administrator’s decision to for random alcohol testing the em- increase or decrease the minimum an- ployee must be informed that selection nual percentage rate for random alco- was made on a random basis. hol testing is based on the violation (8) Each railroad must ensure that rate for the entire industry. All infor- each covered employee who is notified mation used for the determination is of selection for random alcohol testing drawn from the alcohol MIS reports re- proceeds to the test site immediately; quired by this part. In order to ensure provided, however, that if the employee reliability of the data, the Adminis-jdjones on DSK8KYBLC1PROD with CFR is performing a safety-sensitive func- trator considers the quality and com- tion at the time of the notification, the pleteness of the reported data, may ob- railroad must instead ensure that the tain additional information or reports 261 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00271 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.609 49 CFR Ch. II (10–1–10 Edition) from employers, and may make appro- percentage rate for random alcohol priate modifications in calculating the testing determined by the Adminis- industry violation rate. Each year, the trator. If the railroad conducts random Administrator will publish in the FED- alcohol testing through a consortium, ERAL REGISTER the minimum annual the number of employees to be tested percentage rate for random alcohol may be calculated for each individual testing of covered employees. The new employer or may be based on the total minimum annual percentage rate for number of covered employees covered random alcohol testing will be applica- by the consortium who are subject to ble starting January 1 of the calendar random testing at the same minimum year following publication. annual percentage rate under this part (c)(1) When the minimum annual per- or any DOT agency alcohol testing centage rate for random alcohol test- rule. ing is 25 percent or more, the Adminis- trator may lower this rate to 10 per- (f) If a railroad is required to conduct cent of all covered employees if the Ad- random alcohol testing under the alco- ministrator determines that the data hol testing rules of more than one DOT received under the reporting require- agency, the railroad may— ments of § 219.800 for two consecutive (1) Establish separate pools for ran- calendar years indicate that the viola- dom selection, with each pool con- tion rate is less than 0.5 percent. taining the covered employees who are (2) When the minimum annual per- subject to testing at the same required centage rate for random alcohol test- rate; or ing is 50 percent, the Administrator (2) Randomly select such employees may lower this rate to 25 percent of all for testing at the highest percentage covered employees if the Adminis- rate established for the calendar year trator determines that the data re- by any DOT agency to which the rail- ceived under the reporting require- road is subject. ments of § 219.800 for two consecutive calendar years indicate that the viola- [66 FR 41973, Aug. 9, 2001, as amended at 68 tion rate is less than 1.0 percent but FR 75464, Dec. 31, 2003] equal to or greater than 0.5 percent. (d)(1) When the minimum annual per- § 219.609 Participation in alcohol test- ing. centage rate for random alcohol test- ing is 10 percent, and the data received A railroad must, under the condi- under the reporting requirements of tions specified in this subpart and sub- § 219.800 for that calendar year indicate part H of this part, require a covered that the violation rate is equal to or employee selected through the random greater than 0.5 percent, but less than testing program to cooperate in breath 1.0 percent, the Administrator will in- testing to determine compliance with crease the minimum annual percentage § 219.101, and the employee must pro- rate for random alcohol testing to 25 vide the required breath and complete percent of all covered employees. the required paperwork and certifi- (2) When the minimum annual per- cations. Compliance by the employee centage rate for random alcohol test- may be excused only in the case of a ing is 25 percent or less, and the data documented medical or family emer- received under the reporting require- gency. ments of § 219.800 for any calendar year indicate that the violation rate is § 219.611 Test result indicating prohib- equal to or greater than 1.0 percent, ited alcohol concentration; proce- the Administrator will increase the dures. minimum annual percentage rate for random alcohol testing to 50 percent of Procedures for administrative han- all covered employees. dling by the railroad in the event an (e) The railroad must randomly se- employee’s confirmation test indicates lect and test a sufficient number of an alcohol concentration of .04 or greater are set forth in § 219.104.jdjones on DSK8KYBLC1PROD with CFR covered employees for testing during each calendar year to equal an annual rate not less than the minimum annual 262 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00272 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT § 219.901 Subpart H—Drug and Alcohol (MIS) form and instructions as re- Testing Procedures quired by 49 CFR part 40 (at § 40.25 and appendix H to part 40). You may also § 219.701 Standards for drug and alco- use the electronic version of the MIS hol testing. form provided by the DOT. The Admin- (a) Drug testing required or author- istrator may designate means (e.g., ized by subparts B, D, F, and G of this electronic program transmitted via the part must be conducted in compliance Internet), other than hard-copy, for with all applicable provisions of the MIS form submission to FRA. For in- Department of Transportation Proce- formation on where to submit MIS dures for Transportation Workplace forms and for the electronic version of Drug and Alcohol Testing Programs the form, see: http://www.fra.dot.gov/ (part 40 of this title). Content3.asp?P=504. (b) Alcohol testing required or au- (c) Each railroad shall ensure the ac- thorized by subparts B, D, F, and G of curacy and timeliness of each report this part must be conducted in compli- submitted. ance with all applicable provisions of (d) As a railroad, if you have a cov- the Department of Transportation Pro- ered employee who performs multi- cedures for Transportation Workplace DOT agency functions (e.g., an em- Drug and Alcohol Testing Programs ployee drives a commercial motor vehi- (part 40 of this title). cle and performs switchman duties for (c) Each covered employee who is no- you), count the employee only on the tified of selection for testing and who MIS report for the DOT agency under is not performing covered service at which he or she is random tested. Nor- the time of notification must proceed mally, this will be the DOT agency to the testing site immediately. The under which the employee performs railroad must ensure that an employee more than 50% of his or her duties. who is performing covered service at Railroads may have to explain the test- the time of notification shall, as soon ing data for these employees in the as possible without affecting safety, event of a DOT agency inspection or cease to perform covered service and audit. proceed to the testing site. (e) A service agent (e.g., a consor- tium/third party administrator) may prepare the MIS report on behalf of a Subpart I—Annual Report railroad. However, a railroad official § 219.800 Annual reports. (e.g., a designated employee represent- ative) must certify the accuracy and (a) Each railroad that has a total of completeness of the MIS report, no 400,000 or more employee hours (includ- matter who prepares it. ing hours worked by all employees of the railroad, regardless of occupation, [68 FR 75464, Dec. 31, 2003, as amended at 69 not only while in the United States but FR 19288, Apr. 12, 2004] also while outside the United States) must submit to FRA by March 15 of §§ 219.801–219.803 [Reserved] each year a report covering the pre- vious calendar year (January 1–Decem- Subpart J—Recordkeeping ber 31), summarizing the results of its Requirements alcohol misuse prevention program. As used in this paragraph, the term ‘‘em- § 219.901 Retention of alcohol testing ployees of the railroad’’ includes indi- records. viduals who perform service for the (a) General requirement. In addition to railroad, including not only individuals the records required to be kept by part who receive direct monetary com- 40 of this title, each railroad must pensation from the railroad for per- maintain alcohol misuse prevention forming a service for the railroad, but program records in a secure location also such individuals as employees of a with controlled access as set out in contractor to the railroad who perform this section.jdjones on DSK8KYBLC1PROD with CFR a service for the railroad. (b) Each railroad must maintain the (b) As a railroad, you must use the following records for a minimum of Management Information System five years: 263 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00273 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • § 219.903 49 CFR Ch. II (10–1–10 Edition) (1) A summary record of each covered 40 of this title, each railroad must employee’s test results; and maintain drug abuse prevention pro- (2) A copy of the annual report sum- gram records in a secure location with marizing the results of its alcohol mis- controlled access as set forth in this use prevention program (if required to section. submit the report under § 219.801(a)). (b) (1) Each railroad must maintain (c) Each railroad must maintain the the following records for a minimum of following records for a minimum of two five years: years: (i) A summary record of each covered (1) Records related to the collection employee’s test results; and process: (ii) A copy of the annual report sum- (i) Collection logbooks, if used. marizing the results of its drug misuse (ii) Documents relating to the ran- prevention program (if required to sub- dom selection process. mit under § 219.803(a)). (iii) Documents generated in connec- (2) Each railroad must maintain the tion with decisions to administer rea- following records for a minimum of two sonable suspicion alcohol tests. years. (iv) Documents generated in connec- (c) Types of records. The following tion with decisions on post-accident specific records must be maintained: testing. (1) Records related to the collection (v) Documents verifying the exist- process: ence of a medical explanation of the in- (i) Documents relating to the random ability of a covered employee to pro- selection process. vide an adequate specimen. (ii) Documents generated in connec- (2) Records related to test results: tion with decisions to administer rea- (i) The railroad’s copy of the alcohol sonable suspicion drug tests. test form, including the results of the (iii) Documents generated in connec- test. tion with decisions on post-accident (ii) Documents related to the refusal testing. of any covered employee to submit to (iv) Documents verifying the exist- an alcohol test required by this part. ence of a medical explanation of the in- (iii) Documents presented by a cov- ability of a covered employee to pro- ered employee to dispute the result of vide a specimen. an alcohol test administered under this part. (2) Records related to test results: (3) Records related to other viola- (i) The railroad’s copy of the drug tions of this part. test custody and control form, includ- (4) Records related to employee ing the results of the test. training: (ii) Documents presented by a cov- (i) Materials on alcohol abuse aware- ered employee to dispute the result of ness, including a copy of the railroad’s a drug test administered under this policy on alcohol abuse. part. (ii) Documentation of compliance (3) Records related to other viola- with the requirements of § 219.23. tions of this part. (iii) Documentation of training pro- (4) Records related to employee vided to supervisors for the purpose of training: qualifying the supervisors to make a (i) Materials on drug abuse aware- determination concerning the need for ness, including a copy of the railroad’s alcohol testing based on reasonable policy on drug abuse. suspicion. (ii) Documentation of compliance (iv) Certification that any training with the requirements of § 219.23. conducted under this part complies (iii) Documentation of training pro- with the requirements for such train- vided to supervisors for the purpose of ing. qualifying the supervisors to make a determination concerning the need for § 219.903 Retention of drug testing alcohol testing based on reasonable records.jdjones on DSK8KYBLC1PROD with CFR suspicion. (a) General requirement. In addition to (iv) Certification that any training the records required to be kept by part conducted under this part complies 264 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00274 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT Pt. 219, App. A with the requirements for such train- with the requirements of this part to ing. the Secretary of Transportation, United States Department of Transpor- § 219.905 Access to facilities and tation, or any DOT agency with regu- records. latory authority over the railroad or (a) Release of covered employee in- any of its covered employees. formation contained in records re- (c) Each railroad must make avail- quired to be maintained under §§ 219.901 able copies of all results for railroad al- and 219.903 must be in accordance with cohol and drug testing programs con- part 40 of this title and with this sec- ducted under this part and any other tion. (For purposes of this section only, information pertaining to the rail- urine drug testing records are consid- road’s alcohol and drug misuse preven- ered equivalent to breath alcohol test- tion program, when requested by the ing records.) Secretary of Transportation or any (b) Each railroad must permit access DOT agency with regulatory authority to all facilities utilized in complying over the railroad or covered employee. APPENDIX A TO PART 219—SCHEDULE OF CIVIL PENALTIES The following chart lists the schedule of civil penalties: PENALTY SCHEDULE 1 Section 2 Violation Willful violation Subpart A—General 219.3 Application: Railroad does not have required program ...................................................................... $5,000 $7,500 219.11 General conditions for chemical tests: (b)(1) Employee unlawfully refuses to participate in testing .......................................... 2,500 5,000 (b)(2) Employer fails to give priority to medical treatment ............................................. 3,000 8,000 (b)(3) Employee fails to remain available ....................................................................... 2,500 5,000 (b)(4) Employee tampers with specimen ........................................................................ 2,500 5,000 (d) Employee unlawfully required to execute a waiver of rights .................................... 2,500 5,000 (e) Railroad used or authorized the use of coercion to obtain specimens .................... ........................ 7,500 (g) Failure to meet supervisory training requirements or program of instruction not available or program not complete ............................................................................. 2,500 5,000 (h) Urine or blood specimens provided for Federal testing were used for non-author- ized testing .................................................................................................................. 2,500 5,000 219.23 Railroad policies: (a) Failure to provide written notice of FRA test ............................................................ 1,000 4,000 (b) Failure to provide written notice of basis for FRA test ............................................. 1,000 4,000 (c) Use of subpart C form for other test ......................................................................... 1,000 4,000 (d) Failure to provide educational materials ................................................................... 1,000 4,000 (e) Educational materials fail to explain requirements of this part and/or include re- quired content .............................................................................................................. 1,000 4,000 (f) Non-Federal provisions are clearly described as independent authority .................. 1,000 4,000 Subpart B—Prohibitions 219.101 Alcohol and drug use prohibited: Employee violates prohibition(s) ..................................................................................... 10,000 ........................ 219.103 Prescribed and over-the-counter drugs: (a) Failure to train employee properly on requirements ................................................. 2,500 5,000 219.104 Responsive action: (a) Failure to remove employee from covered service immediately .............................. 3,000 8,000 (b) Failure to provide notice for removal ........................................................................ 1,000 4,000 (c) Failure to provide prompt hearing ............................................................................. 2,000 7,000 (d) Employee improperly returned to service ................................................................. 2,000 7,000 219.105 Railroad’s duty to prevent violations: (a) Employee improperly permitted to remain in covered service ................................. 7,000 10,000 (b) Failure to exercise due diligence to assure compliance with prohibition ................. 2,500 5,000 219.107 Consequences of unlawful refusal: (a) Failure to disqualify an employee for nine months following a refusal .................... 5,000 7,500 (e) Employee unlawfully returned to service .................................................................. 5,000 7,500 Subpart C—Post-Accident Toxicological Testing 219.201 Events for which testing is required:jdjones on DSK8KYBLC1PROD with CFR (a) Failure to test after qualifying event (each employee not tested is a violation) ....... 5,000 7,500 (c)(1)(i) Failure to make good faith determination .......................................................... 2,500 5,000 (c)(1)(ii) Failure to provide requested decision report to FRA ....................................... 1,000 3,000 265 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00275 Fmt 8010 Sfmt 8002 Y:SGML220215.XXX 220215
  • Pt. 219, App. A 49 CFR Ch. II (10–1–10 Edition) PENALTY SCHEDULE 1—Continued Section 2 Violation Willful violation (c)(2) Testing performed after non-qualifying event ....................................................... 5,000 10,000 219.203 Responsibilities of railroads and employees: (a)(1)(i) and (a)(2)(i) Failure to properly test/exclude from testing ................................. 2,500 5,000 (a)(1)(ii) and (a)(2)(ii) Non-covered service employee tested ........................................ 2,500 5,000 (b)(1) Delay in obtaining specimens due to failure to make every reasonable effort .... 2,500 5,000 (c) Independent medical facility not utilized ................................................................... 2,500 5,000 (d) Failure to report event or contact FRA when intervention required ......................... 1,000 3,000 219.205 Specimen collection and handling: (a) Failure to observe requirements with respect to specimen collection, marking and 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 5,000 219.207 Fatality: (a) Failure to test ............................................................................................................ 5,000 7,500 (a)(1) Failure to ensure timely collection and shipment of required specimens ............ 2,500 5,000 (b) Failure to request assistance when necessary ......................................................... 2,500 5,000 219.209 Reports of tests and refusals: (a)(1) Failure to provide telephonic report ...................................................................... 1,000 2,000 (b) Failure to provide written report of refusal to test ..................................................... 1,000 2,000 (c) Failure to maintain report explaining why test not conducted within 4 hours .......... 1,000 2,000 219.211 Analysis and follow-up: (c) Failure of MRO to report review of positive results to FRA ...................................... 2,500 5,000 Subpart D—Testing for Cause 219.300 Mandatory reasonable suspicion testing: (a)(1) Failure to test when reasonable suspicion criteria met ........................................ 5,000 7,500 (a)(2) Tested when reasonable suspicion criteria not met ............................................. 5,000 7,500 219.301 Testing for reasonable cause: (a) Event did not occur during daily tour ........................................................................ 2,500 5,000 (b)(2) Tested when accident/incident criteria not met .................................................... 5,000 7,500 (b)(3) Tested when operating rules violation criteria not met ........................................ 5,000 7,500 219.302 Prompt specimen collection: (a) Specimen collection not conducted promptly ........................................................... 2,500 5,000 Subpart E—Identification of Troubled Employees 219.401 Requirement for policies: (b) Failure to publish and/or implement required policy ................................................. 2,500 5,000 219.407 Alternate policies: (c) Failure to file agreement or other document or provide timely notice or revocation 2,500 5,000 Subpart F—Pre-Employment Tests 219.501 Pre-employment tests: (a) Failure to perform pre-employment drug test before first time employee performs covered service ........................................................................................................... 2,500 5,000 Subpart G—Random Testing Programs 219.601 Railroad random drug programs: (a)(1) Failure to file a random program .......................................................................... 2,500 5,000 (a)(2) Failure to file amendment to program .................................................................. 2,500 5,000 (b) Failure to meet random testing criteria ..................................................................... 2,500 5,000 (b)(1)(i) Failure to use a neutral selection process ........................................................ 2,500 5,000 (b)(2)(i)(B) Testing not spread throughout the year ....................................................... 2,500 5,000 (b)(3) Testing not distributed throughout the day ........................................................... 2,500 5,000 (b)(4) Advance notice provided to employee ................................................................. 2,500 5,000 (b)(6) Testing when employee not on duty .................................................................... 2,500 5,000 219.601A Failure to include covered service employee in pool ................................................ 2,500 5,000 219.602 Administrator’s determination of drug testing rate: (f) Total number of tests below minimum random drug testing rate .............................. 2,500 5,000 219.603 Participation in drug testing: Failure to document reason for not testing selected employee ..................................... 2,500 5,000 219.607 Railroad random alcohol programs: (a)(1) Failure to file a random alcohol program ............................................................. 2,500 5,000 (a)(2) Failure to file amendment to program .................................................................. 2,500 5,000 (b) Failure to meet random testing criteria ..................................................................... 2,500 5,000 (b)(1) Failure to use a neutral selection process ........................................................... 2,500 5,000 (b)(5) Testing when employee not on duty .................................................................... 2,500 5,000 (b)(8) Advance notice provided to employee ................................................................. 2,500 5,000 219.607A Failure to include covered service employee in pool ................................................ 2,500 5,000 219.608 Administrator’s determination of random alcohol testing rate: (e) Total number of tests below minimum random alcohol testing rate ......................... 2,500 5,000 219.609 Participation in alcohol testing:jdjones on DSK8KYBLC1PROD with CFR Failure to document reason for not testing selected employee ..................................... 2,500 5,000 Subpart H—Drug and Alcohol Testing Procedures 219.701 Standards for drug and alcohol testing: 266 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00276 Fmt 8010 Sfmt 8002 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT Pt. 219, App. C PENALTY SCHEDULE 1—Continued Section 2 Violation Willful violation (a) Failure to comply with Part 40 procedures in Subpart B, D, F, or G testing ........... ¥5,000 ¥7,500 (b) Testing not performed in a timely manner ................................................................ 2,500 5,000 Subpart I—Annual Report 219.801 Reporting alcohol misuse prevention program results in a management information system: (a) Failure to submit MIS report on time ........................................................................ 2,500 5,000 (c) Failure to submit accurate MIS report ....................................................................... 2,500 5,000 (d) Failure to include required data ................................................................................ 2,500 5,000 219.803 Reporting drug misuse prevention program results in a management information system: (c) Failure to submit accurate MIS report ....................................................................... 2,500 5,000 (d) Failure to submit MIS report on report ...................................................................... 2,500 5,000 (e) Failure to include required data ................................................................................ 2,500 5,000 Subpart J—Recordkeeping Requirements 219.901 Retention of Alcohol Testing Records: (a) Failure to maintain records required to be kept by Part 40 ...................................... 2,500 5,000 (b) Failure to maintain records required to be kept for five years ................................. 2,500 5,000 (c) Failure to maintain records required to be kept for two years .................................. 2,500 5,000 219.903 Retention of Drug Testing Records: (a) Failure to maintain records required to be kept by Part 40 ...................................... 2,500 5,000 (b) Failure to maintain records required to be kept for five years ................................. 2,500 5,000 (c) Failure to maintain records required to be kept for two years .................................. 2,500 5,000 219.905 Access to facilities and records: (a) Failure to release records in this subpart in accordance with Part 40 ..................... 2,500 5,000 (b) Failure to permit access to facilities .......................................................................... 2,500 5,000 (c) Failure to provide access to results of railroad alcohol and drug testing programs 2,500 5,000 1 A penalty may be assessed against an individual only for a willful violation. The FRA Administrator reserves the right to as- sess a penalty of up to $100,000 for any violation, including ones not listed in this penalty schedule, where circumstances war- rant. See 49 CFR part 209, appendix A. 2 The penalty schedule uses section numbers from 49 CFR part 219; and if more than one item is listed as a type of violation of a given section, each item is also designated by a ‘‘penalty code’’ (e.g., ‘‘A’’), which is used to facilitate assessment of civil penalties. For convenience, penalty citations will cite the CFR section and the penalty code, if any (e.g., ‘‘Sec. 219.11A’’) FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation. [66 FR 41973, Aug. 9, 2001, as amended at 69 (Surviving Employees) FR 30593, May 28, 2004; 73 FR 79702, Dec. 30, 2.0 Surviving Employees. 2008] This unit provides detailed procedures for collecting post-accident toxicological speci- APPENDIX B TO PART 219—DESIGNATION mens from surviving employees involved in OF LABORATORY FOR POST-ACCIDENT train accidents and train incidents, as re- TOXICOLOGICAL TESTING quired by subpart C of this part. Subpart C specifies qualifying events and employees re- The following laboratory is currently des- quired to be tested. ignated to conduct post-accident toxi- 2.1 Collection Procedures; General. cological analysis under subpart C of this a. All forms and supplies necessary for col- part: Northwest Toxicology/LabOne, Hayes lection and transfer of blood and urine speci- Building, Suite #C, 2282 South Presidents mens for three surviving employees can be Drive, West Valley City, UT 84120, Tele- found in the FRA post-accident shipping box, phone: (800) 322–3361 or (801) 293–2300 (Day), which is made available to the collection (801) 244–5599 (Night/Weekend). site by the railroad representative. b. Each shipping box contains supplies for [70 FR 16966, Apr. 4, 2005] blood/urine collections from three individ- uals, including instructions and necessary APPENDIX C TO PART 219—POST-ACCI- forms. The railroad is responsible for ensur- DENT TESTING SPECIMEN COLLEC- ing that materials are fresh, complete and TION meet FRA requirements. 2.1.1 Responsibility of the Railroad Rep- 1.0 General. resentative. This appendix prescribes procedures for a. In the event of an accident/incident for collection of specimens for mandatory post- which testing is required under subpart C of accident testing pursuant to subpart C of this part, the railroad representative shalljdjones on DSK8KYBLC1PROD with CFR this part. Collection of blood and urine speci- follow the designated set of instructions, mens is required to be conducted at an inde- and, upon arrival at the independent medical pendent medical facility. facility, promptly present to the collection 267 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00277 Fmt 8010 Sfmt 8002 Y:SGML220215.XXX 220215
  • Pt. 219, App. C 49 CFR Ch. II (10–1–10 Edition) facility representative a post-accident ship- Exhibit C–1 contains instructions for col- ping box or boxes with all remaining sets of lection of specimens for post-accident toxi- instructions. (Each box contains supplies to cology from surviving employees. These in- collect specimens from three employees.) structions shall be observed for each collec- The railroad representative shall request the tion. Instructions are also contained in each collection facility representative to review post-accident shipping box and shall be pro- the instructions provided and, through quali- vided to collection facility personnel in- fied personnel, provide for collection of the volved in the collection and/or packaging of specimens according to the procedures set specimens for shipment. out. (Post Mortem Collection) b. The railroad representative shall under- 3.0 Fatality. take the following additional responsibil- This unit provides procedures for col- ities— lecting post-accident body fluid/tissue speci- 1. Complete Form FRA 6180.73 (revised), mens from the remains of employees killed Accident Information Required for Post-Ac- in train accidents and train incidents, as re- cident Toxicological Testing (49 CFR part quired by subpart C of this part. Subpart C 219), describing the testing event and identi- specifies qualifying events and employees re- fying the employees whose specimens are to quired to be tested. be deposited in the shipping box. 3.1 Collection. 2. As necessary to verify the identity of in- In the event of a fatality for which testing dividual employees, affirm the identity of is required under Subpart C of this part, the each employee to the medical facility per- railroad shall promptly make available to sonnel. the custodian of the remains a post-accident 3. Consistent with the policy of the collec- shipping box. The railroad representative tion facility, monitor the progress of the col- shall request the custodian to review the in- lection procedure. structions contained in the shipping box and, Warning: Monitor but do not directly ob- through qualified medical personnel, to pro- serve urination or otherwise disturb the pri- vide the specimens as indicated. vacy of urine or blood collection. Do not handle specimen containers, bottles or tubes (Surviving Employees and Fatalities) (empty or full). Do not become part of the 4.0 Shipment. collection process. a. The railroad is responsible for arranging 2.1.2 Employee Responsibility. overnight transportation of the sealed ship- a. An employee who is identified for post- ping box containing the specimens. When accident toxicological testing shall cooper- possible without incurring delay, the box ate in testing as required by the railroad and should be delivered directly from the collec- personnel of the independent medical facil- tion personnel providing the specimens to an ity. Such cooperation will normally consist overnight express service courier. If it be- of the following, to be performed as re- comes necessary for the railroad to transport quested: the box from point of collection to point of 1. Provide a blood specimen, which a quali- shipment, then— fied medical professional or technician will 1. Individual kits and the shipping box draw using a single-use sterile syringe. The shall be sealed by collection personnel before employee should be seated for this proce- the box is turned over to the railroad rep- dure. resentative; 2. Provide, in the privacy of an enclosure, 2. The railroad shall limit the number of a urine specimen into a plastic collection persons handling the shipping box to the cup. Deliver the cup to the collector. minimum necessary to provide for transpor- 3. Do not let the blood and urine specimens tation; that you provided leave your sight until they 3. If the shipping box cannot immediately have been properly sealed and initialed by be delivered to the express carrier for trans- you. portation, it shall be maintained in secure 4. Certify the statement in Step 4 of the temporary storage; and Post-Accident Testing Blood/Urine Custody 4. The railroad representatives handling and Control Form (49 CFR part 219) (Form the box shall document chain of custody of FRA F 6180.74 (revised)). the shipping box and shall make available 5. If required by the medical facility, com- such documentation to FRA on request. plete a separate consent form for taking of the specimens and their release to FRA for EXHIBIT C–1—INSTRUCTIONS FOR COLLECTION analysis under the FRA rule. OF BLOOD AND URINE SPECIMENS: MANDA- NOTE: The employee may not be required TORY POST-ACCIDENT TOXICOLOGICAL TEST- to complete any form that contains any ING waiver of rights the employee may have in A. Purpose the employment relationship or that releasesjdjones on DSK8KYBLC1PROD with CFR or holds harmless the medical facility with These instructions are for the use of per- respect to negligence in the collection. sonnel of collection facilities conducting col- 2.2 The Collection. lection of blood and urine specimens from 268 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00278 Fmt 8010 Sfmt 8002 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT Pt. 219, App. C surviving railroad employees following rail- procedures (sterile, single-use syringe into road accidents and casualties that qualify evacuated gray-top tubes provided). CAU- for mandatory alcohol/drug testing. The Fed- TION: Do not use alcohol or an alcohol-based eral Railroad Administration appreciates the swab to cleanse the venipuncture site. participation of medical facilities in this im- d. Once both tubes are filled and the site of portant public safety program. venipuncture is protected, immediately— 1. Seal and label each tube by placing a B. Prepare for Collection numbered blood specimen label from the a. Railroad employees have consented to label set on the Control Form over the top of provision of specimens for analysis by the the tube and securing it down the sides. Federal Railroad Administration as a condi- 2. Ask the donor to initial each label. tion of employment (49 CFR 219.11). A pri- Please check to see that the initials match vate, controlled area should be designated the employee’s name and note any discrep- for collection of specimens and completion of ancies in the ‘‘Remarks’’ block of the Con- paperwork. trol Form. b. Only one specimen should be collected at 3. As collector, sign and date each blood a time, with each employee’s blood draw or tube label at the place provided. urine collection having the complete atten- 4. Skip to STEP 5 and initiate chain of cus- tion of the collector until the specific speci- tody for the blood tubes by filling out the men has been labeled, sealed and docu- first line of the block to show receipt of the mented. blood specimens from the donor. c. Please remember two critical rules for 5. Complete STEP 2 on the form. the collections: 6. Return the blood tubes into the indi- d. All labeling and sealing must be done in vidual kit. Keep the paperwork and speci- the sight of the donor, with the specimen mens together. If another collector will be never having left the donor’s presence until collecting the urine specimen from this em- the specimen has been labeled, sealed and ployee, transfer both the form and the indi- initialed by the donor. vidual kit with blood tubes to that person, e. Continuous custody and control of blood showing the transfer of the blood tubes on and urine specimens must be maintained and the second line of STEP 5 (the chain of cus- documented on the forms provided. In order tody block). to do this, it is important for the paperwork and the specimens to stay together. E. Collect Urine f. To the extent practical, blood collection a. The urine collector should assemble at should take priority over urine collection. his/her station the materials for collecting To limit steps in the chain of custody, it is urine from each employee: one plastic collec- best if a single collector handles both collec- tion cup with temperature device affixed en- tions from a given employee. closed in a heat-seal bag (with protective g. You will use a single Post-Accident seal intact), two 90 ml urine specimen bot- Testing Blood/Urine Custody and Control tles with caps and one biohazard bag (with Form (FRA Form 6108.74 (revised)), con- absorbent) also enclosed in a heat-seal bag sisting of six Steps to complete the collec- (with protective seal intact), and the Control tion for each employee. We will refer to it as Form. Blood specimens already collected the Control Form. must remain in the collector’s custody and C. Identify the Donor control during this procedure. b. After requiring the employee to wash a. The employee donor must provide photo his/her hands, the collector should escort the identification to each collector, or lacking employee directly to the urine collection this, be identified by the railroad representa- area. To the extent practical, all sources of tive. water in the collection area should be se- b. The donor should remove all unneces- cured and a bluing agent (provided in the sary outer garments such as coats or jack- box) placed in any toilet bowl, tank, or other ets, but may retain valuables, including a standing water. wallet. Donors should not be asked to dis- c. The employee will be provided a private robe, unless necessary for a separate phys- place in which to void. Urination will not be ical examination required by the attending directly observed. If the enclosure contains a physician. source of running water that cannot be se- cured or any material (soap, etc.) that could D. Draw Blood be used to adulterate the specimen, the col- a. Assemble the materials for collecting lector should monitor the provision of the blood from each employee: two 10 ml grey- specimen from outside the enclosure. Any stoppered blood tubes and the Control Form. unusual behavior or appearance should be b. Ask the donor to complete STEP 1 on noted in the remarks section of the Controljdjones on DSK8KYBLC1PROD with CFR the Control Form. Form or on the back of that form. c. With the donor seated, draw two (2) 10 d. The collector should then proceed as fol- ml tubes of blood using standard medical lows: 269 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00279 Fmt 8010 Sfmt 8002 Y:SGML220215.XXX 220215
  • Pt. 219, App. C 49 CFR Ch. II (10–1–10 Edition) e. Unwrap the collection cup in the em- 10. Place the filled urine bottles in the in- ployee’s presence and hand it to the em- dividual employee kit. Keep the paperwork ployee (or allow the employee to unwrap it). and specimens together. If another collector f. Ask the employee to void at least 60 ml will be collecting the blood specimen from into the collection cup (at least to the line this employee, transfer both the form and marked). the kit to that person, showing the transfer g. Leave the private enclosure. of the urine specimens on the next available IF THERE IS A PROBLEM WITH URINA- line of STEP 5 (the chain of custody block). TION OR Specimen QUANTITY, SEE THE F. Seal the Individual Employee Kit ‘‘TROUBLE BOX’’ AT THE BACK OF THESE INSTRUCTIONS. a. The blood and urine specimens have now h. Once the void is complete, the employee been collected for this employee. The blood/ should exit the private enclosure and deliver urine specimens will now be sealed into the the specimen to the collector. Both the col- individual employee kit, while all paperwork lector and the employee must proceed imme- will be retained for further completion. After diately to the labeling/sealing area, with the rechecking to see that each specimen is specimen never leaving the sight of the em- properly labeled and initialed, close the plas- ployee before being sealed and labeled. tic bag to contain any leakage in transpor- i. Upon receipt of the specimen, proceed as tation, and apply the kit security seal to the follows: small individual kit. As collector, sign and 1. In the full view of the employee, remove date the kit seal. the wrapper from the two urine specimen b. Before collecting specimens from the bottles. Transfer the urine from the collec- next employee, complete the next line on the tion cup into the specimen bottles (at least chain-of-custody block showing release of 30 ml in bottle A and at least 15 ml in bottle the blood and urine by yourself for the pur- B). pose of ‘‘Shipment’’ and receipt by the cou- 2. As you pour the specimen into the speci- rier service or railroad representative that men bottles, please inspect for any unusual will provide transportation of the box, to- signs indicating possible adulteration or di- gether with the date. lution. Carefully secure the tops. Note any G. Complete Treatment Information unusual signs under ‘‘Remarks’’ at STEP 3 of the Control Form. Complete STEP 6 of the Control Form. 3. Within 4 minutes after the void, measure Mark the box if a breath alcohol test was the temperature of the urine by reading the conducted under FRA authority. strip on the bottle. Mark the result at STEP 3 of the Control Form. H. Prepare the Box for Shipment IF THERE IS A PROBLEM WITH THE a. Sealed individual employee kits should URINE Specimen, SEE THE ‘‘TROUBLE be retained in secure storage if there will be BOX’’ AT THE BACK OF THESE INSTRUC- a delay in preparation of the shipping box. TIONS. The shipping box shall be prepared and 4. Remove the urine bottle labels from the sealed by a collection facility representative Control Form. The labels are marked ‘‘A’’ as follows: and ‘‘B.’’ Place each label as marked over 1. Inspect STEP 5 of each Control Form to the top of its corresponding bottle, and se- ensure chain-of-custody is continuous and cure the label to the sides of the bottle. complete for each fluid (showing specimens 5. Ask the donor to initial each label. released for shipment). Retain the medical Please check to see that the initials match facility copy of each Control Form and the the employee name and note any discrepancy Accident Information form for your records. in the ‘‘Remarks’’ block of STEP 3. 2. Place sealed individual employee kits in 6. As collector, sign and date each urine the shipping box. Place all forms in zip-lock label. bag and seal securely. Place bag with forms 7. Skip to STEP 5 and initiate chain-of- and unused supplies in shipping box. custody by showing receipt of the urine 3. Affix the mailing label provided to the specimens from the donor. (If you collected outside of the shipping box. the blood, a check under ‘‘urine’’ will suffice. I. Ship the Box If someone else collected the blood, first make sure transfer of the blood to you is a. The railroad must arrange to have the documented. Then, using the next available box shipped overnight air express or (if ex- line, show ‘‘Provide specimens’’ under pur- press service is unavailable) by air freight, pose, ‘‘Donor’’ under ‘‘released by,’’ check prepaid, to FRA’s designated laboratory. under ‘‘urine’’ and place your name, signa- Whenever possible without incurring delay, ture and date in the space provided.) the collector should deliver the box directly 8. Complete the remainder of STEP 3 on into the hands of the express courier or airjdjones on DSK8KYBLC1PROD with CFR the Control Form. freight representative. 9. Have the employee complete STEP 4 on b. Where courier pickup is not imme- the Control Form. diately available at the collection facility 270 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00280 Fmt 8010 Sfmt 8002 Y:SGML220215.XXX 220215
  • Federal Railroad Administration, DOT Pt. 219, App. C where the specimens are taken, the railroad ii. If a collector of the same sex is not is required to transport the shipping box for available, do NOT proceed with this step. expeditious shipment by air express, air iii. If a collector of the same gender is freight or equivalent means. available, proceed as follows: A new Control c. If the railroad is given custody of the box Form must be initiated for the second void. to arrange shipment, please record the name The original suspect specimen should be of the railroad official taking custody on the marked ‘‘Void’’ and the follow-up void copy of Form 6180.73 retained by the collec- should be marked ‘‘Void 2,’’ with both voids tion site. being sent to the laboratory and the incident clearly detailed on the Control Form. ‘‘TROUBLE BOX’’ 1. Problem: The employee claims an inability EXHIBIT C–2—INSTRUCTIONS FOR COLLECTION to urinate, either because he/she has recently OF POST MORTEM SPECIMENS: EMPLOYEE voided or because of anxiety concerning the col- KILLED IN A RAILROAD ACCIDENT/INCIDENT lection. To the Medical Examiner, Coroner, or Pa- Action: The employee may be offered mod- thologist: erate quantities of liquid to assist urination. a. In compliance with Federal safety regu- If the employee continues to claim inability lations (49 CFR Part 219), a railroad rep- after 4 hours, the urine collection should be resentative has requested that you obtain discontinued, but the blood specimens should specimens for toxicology from the remains of be forwarded and all other procedures fol- a railroad employee who was killed in a rail- lowed. Please note in area provided for re- road accident or incident. The deceased con- marks what explanation was provided by the sented to the taking of such specimens, as a employee. matter of Federal law, by performing service 2. Problem: The employee cannot provide ap- on the railroad (49 CFR 219.11(f)). proximately 60 ml. of specimen. Action: The employee should remain at the b. Your assistance is requested in carrying collection facility until as much as possible out this program of testing, which is impor- of the required amount can be given (up to 4 tant to the protection of the public safety hours). The employee should be offered mod- and the safety of those who work on the rail- erate quantities of liquids to aid urination. roads. The first bottle, if it contains any quantity A. Materials: of urine, should be sealed and securely stored with the blood tubes and Control Form pend- The railroad will provide you a post-acci- ing shipment. A second bottle should then be dent shipping box that contains necessary used for the subsequent void (using a second supplies. If the box is not immediately avail- Control Form with the words ‘‘SECOND able, please proceed using supplies available VOID—FIRST Specimen INSUFFICIENT’’ in to you that are suitable for forensic toxi- the remarks block and labels from that cology. form). However, if after 4 hours the donor’s second void is also insufficient or contains B. Specimens requested, in order of preference: no more than the first insufficient void, dis- a. Blood—20 milliliters or more. Preferred card the second void and send the first void sites: intact femoral vein or artery or periph- to the laboratory. 3. Problem: The urine temperature is outside eral vessels (up to 10 ml, as available) and in- the normal range of 32 deg.¥38 deg.C/90 tact heart (20 ml). Deposit blood in gray- deg.¥100 deg.F, and a suitable medical expla- stopper tubes individually by site and shake nation cannot be provided by an oral tem- to mix specimen and preservative. perature or other means; or NOTE: If uncontaminated blood is not 4. Problem: The collector observes conduct available, bloody fluid or clots from body clearly and unequivocally indicating an attempt cavity may be useful for qualitative pur- to substitute or adulterate the specimen (e.g., poses; but do not label as blood. Please indi- substitute urine in plain view, blue dye in cate source and identity of specimen on label specimen presented, etc.) and a collection of tube. site supervisor or the railroad representative b. Urine—as much as 100 milliliters, if agrees that the circumstances indicate an available. Deposit into plastic bottles pro- attempt to tamper with the specimen. vided. Action (for either Problem No. 3 or Prob- c. Vitreous fluid—all available, deposited lem No. 4): Document the problem on the into smallest available tube (e.g., 3 ml) with Control Form. 1% sodium fluoride, or gray-stopper tube i. If the collection site supervisor or rail- (provided). Shake to mix specimen and pre- road representative concurs that the tem- servative. perature of the specimen, or other clear and d. If available at autopsy, organs—50 to 100 unequivocal evidence, indicates a possible grams each of two or more of the followingjdjones on DSK8KYBLC1PROD with CFR attempt to substitute or alter the specimen, in order preference, as available: liver, bile, another void must be taken under direct ob- brain, kidney, spleen, and/or lung. Specimens servation by a collector of the same gender. should be individually deposited into zip- 271 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00281 Fmt 8010 Sfmt 8002 Y:SGML220215.XXX 220215
  • Pt. 219, App. C 49 CFR Ch. II (10–1–10 Edition) lock bags or other clean, single use con- requested to complete STEP 2 of the form, tainers suitable for forensic specimens. annotating it by writing the word ‘‘FATAL- e. If vitreous or urine is not available, ITY,’’ listing the specimens provided, pro- please provide— viding any further information under ‘‘Re- 1. Spinal fluid—all available, in 8 ml con- marks’’ or at the bottom of the form. If it is tainer (if available) with sodium fluoride or necessary to transfer custody of the speci- in gray-stopper tube; or, if spinal fluid can- mens from the person taking the specimens not be obtained, prior to preparing the box for shipment, 2. Gastric content—up to 100 milliliters, as please use the blocks provided in STEP 5 to available, into plastic bottle. document transfer of custody. b. The railroad representative will also C. Specimen collection: provide Accident Information Required for a. Sampling at time of autopsy is preferred Post-Accident Toxicological Testing (49 CFR so that percutaneous needle puncturing is part 219), Form FRA 6180.73 (revised). Both not necessary. However, if autopsy will not forms should be placed in the shipping box be conducted or is delayed, please proceed when completed; but you may retain the des- with sampling. ignated medical facility copy of each form b. Blood specimens should be taken by for your records. sterile syringe and deposited directly into evacuated tube, if possible, to avoid con- G. Packing the shipping box: tamination of specimen or dissipation of a. Place urine bottles and blood tubes in volatiles (ethyl alcohol). the sponge liner in the individual kit, close NOTE: If only cavity fluid is available, the biohazard bag zipper, close the kit and please open cavity to collect specimen. Note apply the kit custody seal to the kit. You condition of cavity. may use additional kits for each tissue speci- c. Please use smallest tubes available to men, being careful to identify specimen by accommodate available quantity of fluid tissue, name of deceased, and specimen set specimen (with 1% sodium fluoride). identification number. Apply kit security seals to individual kits and initial across all D. Specimen identification, sealing: seals. Place all forms in the zip-lock bag and a. As each specimen is collected, seal each seal securely. blood tube and each urine bottle using the b. Place the bag in the shipping box. Do respective blood tube or urine bottle using not put forms in with the specimens. Seal the identifier labels from the set provided the shipping box with the seal provided and with the Post-Accident Testing Blood/Urine initial and date across the seal. Custody and Control Form (49 CFR part 219) c. Affix the mailing label to the outside of (Form FRA F 6180.74 (revised)). Make sure the box. the unique identification number on the la- bels match the pre-printed number on the H. Shipping the box: Control Form. Please label other specimens a. The railroad must arrange to have the with name and specimen set identification box shipped overnight air express or (if ex- numbers. You may use labels and seals from press service is unavailable) by air freight, any of the extra forms, but annotate them prepaid, to FRA’s designated laboratory. accordingly. When possible, but without incurring delay, b. Annotate each label with specimen de- deliver the sealed shipping box directly to scription and source (as appropriate) (e.g., the express courier or the air freight rep- blood, femoral vein). resentative. c. Please provide copy of any written docu- b. If courier pickup is not immediately mentation regarding condition of body and/ available at your facility, the railroad is re- or sampling procedure that is available at quired to transport the sealed shipping box the time specimens are shipped. to the nearest point of shipment via air ex- press, air freight or equivalent means. E. Handling: c. If the railroad receives the sealed shipping a. If specimens cannot be shipped imme- box to arrange shipment, please record under diately as provided below, specimens other ‘‘Supplemental Information’’ on the Control than blood may be immediately frozen. Form, the name of the railroad official tak- Blood specimens should be refrigerated, but ing custody. not frozen. b. All specimens and documentation should I. Other: be secured from unauthorized access pending FRA requests that the person taking the delivery for transportation. specimens annotate the Control Form under ‘‘Supplemental Information’’ if additional F. Information: toxicological analysis will be undertakenjdjones on DSK8KYBLC1PROD with CFR a. If the railroad has not already done so, with respect to the fatality. FRA reports are please place the name of the subject at the available to the coroner or medical examiner top of the Control Form (STEP 1). You are on request. 272 VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00282 Fmt 8010 Sfmt 8002 Y:SGML220215.XXX 220215