employment before the test begins. The determination of when a drug or
alcohol test begins is made according to the provisions found in
subparts E and L of part 40 of this title.
    (5) Paragraph (c) of this section does not apply to an applicant
who tests positive or refuses a DOT pre-employment test.
    (6) As provided by Sec.  40.25(j) of this title, paragraph (d) of
this section applies to any DOT-regulated employer seeking to hire for
DOT safety-sensitive functions an applicant who tested positive or who
refused a DOT pre-employment test.

0
15. Revise Sec.  219.105 to read as follows:

Sec.  219.105  Railroad's duty to prevent violations.

    (a) A railroad may not, with actual knowledge, permit a regulated
employee to go or remain on duty in regulated service in violation of
the prohibitions of Sec.  219.101 or Sec.  219.102. As used in this
section, the actual knowledge imputed to the railroad is limited to
that of a railroad management employee (such as a supervisor deemed an
``officer,'' whether or not such person is a corporate officer) or a
supervisory employee in the offending regulated employee's chain of
command. A railroad management or supervisory employee has actual
knowledge of a violation when he or she:
    (1) Personally observes a regulated employee use or possess alcohol
or use drugs in violation of this subpart. It is not sufficient for
actual knowledge if the supervisory or management employee merely
observes the signs and symptoms of alcohol or drug use that require a
reasonable suspicion test under Sec.  219.301;
    (2) Receives information regarding a violation of this subpart from
a previous employer of a regulated employee, in response to a
background information request required by Sec.  40.25 of this title;
or
    (3) Receives a regulated employee's admission of prohibited alcohol
possession or prohibited alcohol or drug use.
    (b) A railroad must exercise due diligence to assure compliance
with Sec. Sec.  219.101 and 219.102 by each regulated employee.
    (c) A railroad's alcohol and/or drug use education, prevention,
identification, intervention, and rehabilitation programs and policies
must be designed and implemented in such a way that they do not
circumvent or otherwise undermine the requirements, standards, and
policies of this part. Upon FRA's request, a railroad must make
available for FRA review all documents, data, or other records related
to such programs and policies.
    (d) Each year, a railroad's supervisors must conduct and record a
number of ``Rule G'' employee observations at a minimum equal to twice
the railroad's total number of regulated employees. Each ``Rule G''
observation must be made sufficiently close to an individual regulated
employee to determine whether the employee is displaying signs and
symptoms indicative of a violation of the prohibitions of this part.

0
16. Revise Sec.  219.107 to read as follows:

Sec.  219.107  Consequences of refusal.

    (a) A regulated employee who refuses to provide a breath or body
fluid specimen or specimens when required to by the railroad under a
provision of this part must be withdrawn from regulated service for a
period of nine (9) months. Per the requirements of part 40 of this
title, a regulated employee who provides an adulterated or substituted
specimen is deemed to have refused to provide the required specimen and
must be withdrawn from regulated service in accordance with this
section.
    (b) Notice. Before or upon withdrawing a regulated employee from
regulated service under this section, a railroad must provide written
notice to the employee of the reason for this action, and the
procedures described in Sec.  219.104(c) apply. A railroad may provide
a regulated employee with an initial verbal notice so long as it
provides a follow-up written notice as soon as possible.
    (c) The withdrawal required by this section applies only to an
employee's performance of regulated service for any railroad with
notice of such withdrawal. During the period of withdrawal, a railroad
with notice of such withdrawal must not authorize or permit the
employee to perform any regulated service for the railroad.
    (d) The requirement of withdrawal for nine (9) months does not
limit any discretion on the part of the railroad to impose additional
sanctions for the same or related conduct.
    (e) Upon the expiration of the nine month period described in this
section, a railroad may permit an employee to return to regulated
service only under the conditions specified in Sec.  219.104(d), and
the regulated employee must be subject to return-to-duty and follow-up
tests, as provided by that section.

Subpart C--Post-Accident Toxicological Testing

0
17. In Sec.  219.201, revise paragraphs (a) and (b) to read as follows:

Sec.  219.201  Events for which testing is required.

    (a) List of events. Except as provided in paragraph (b) of this
section, FRA post-accident toxicological tests must be conducted after
any event that involves one or more of the circumstances described in
paragraphs (a)(1) through (5) of this section:
    (1) Major train accident. Any train accident (i.e., a rail
equipment accident involving damage in excess of the current reporting
threshold) that involves one or more of the following:
    (i) A fatality to any person;
    (ii) A release of hazardous material lading from railroad equipment
accompanied by--
    (A) An evacuation; or
    (B) A reportable injury resulting from the hazardous material
release (e.g., from fire, explosion, inhalation, or skin contact with
the material); or
    (iii) Damage to railroad property of $1,500,000 or more.
    (2) Impact accident. Any impact accident (i.e., a rail equipment
accident defined as an ``impact accident'' in Sec.  219.5) that
involves damage in excess of the current reporting threshold, resulting
in--
    (i) A reportable injury; or
    (ii) Damage to railroad property of $150,000 or more.
    (3) Fatal train incident. Any train incident that involves a
fatality to an on-duty employee (as defined in Sec.  219.5) who dies
within 12 hours of the incident as a result of the operation of on-
track equipment, regardless of whether that employee was performing
regulated service.
    (4) Passenger train accident. Any train accident (i.e., a rail
equipment accident involving damage in excess of the current reporting
threshold) involving a passenger train and a reportable injury to any
person.
    (5) Human-factor highway-rail grade crossing accident/incident. A
highway-rail grade crossing accident/incident when it involves:
    (i) A regulated employee who interfered with the normal functioning

of a grade crossing signal system, in testing or otherwise, without
first taking measures to provide for the safety of highway traffic that
depends on the normal functioning of such system, as prohibited by
Sec.  234.209 of this chapter;
    (ii) A train crewmember who was, or who should have been, flagging
highway traffic to stop due to an activation failure of the grade
crossing system, as provided by Sec.  234.105(c)(3) of this chapter;
    (iii) A regulated employee who was performing, or should have been
performing, the duties of an appropriately equipped flagger (as defined
in Sec.  234.5 of this chapter) due to an activation failure, partial
activation, or false activation of the grade crossing signal system, as
provided by Sec.  234.105(c)(1) and (2), Sec.  234.106, or Sec.
234.107(c)(1)(i) of this chapter;
    (iv) A fatality to any regulated employee performing duties for the
railroad, regardless of fault; or
    (v) A regulated employee who violated an FRA regulation or railroad
operating rule and whose actions may have played a role in the cause or
severity of the accident/incident.
    (b) Exceptions. Except for a human-factor highway-rail grade
crossing accident/incident described in paragraph (a)(5) of this
section, no test may be required in the case of a collision between
railroad rolling stock and a motor vehicle or other highway conveyance
at a highway/rail grade crossing. No test may be required for an
accident/incident the cause and severity of which are wholly
attributable to a natural cause (e.g., flood, tornado, or other natural
disaster) or to vandalism or trespasser(s), as determined on the basis
of objective and documented facts by the railroad representative
responding to the scene.
* * * * *

0
18. Revise Sec.  219.203 to read as follows:

Sec.  219.203  Responsibilities of railroads and employees.

    (a) Employees tested. A regulated employee subject to post-accident
toxicological testing under this subpart must cooperate in the
provision of specimens as described in this part and appendix C to this
part.
    (1) General. Except as otherwise provided for by this section,
following each qualifying event described in Sec.  219.201, a regulated
employee directly involved in a qualifying event under this subpart
must provide blood and urine specimens for toxicological testing by
FRA. This includes any regulated employee who may not have been present
or on-duty at the time or location of the event, but whose actions may
have played a role in its cause or severity, including, but not limited
to, an operator, dispatcher, or signal maintainer.
    (2) Fatalities. Testing of the remains of an on-duty employee (as
defined in Sec.  219.5) who is fatally injured in a qualifying event
described in Sec.  219.201 is required, regardless of fault, if the
employee dies within 12 hours of the qualifying event as a result of
such qualifying event.
    (3) Major train accidents. For an accident or incident meeting the
criteria of a major train accident in Sec.  219.201(a)(1)--
    (i) All assigned crew members of all trains or other on-track
equipment involved in the qualifying event must be subjected to post-
accident toxicological testing, regardless of fault.
    (ii) Other surviving regulated employees who are not assigned crew
members of an involved train or other on-track equipment (e.g., a
dispatcher or a signal maintainer) must be tested if a railroad
representative can immediately determine, on the basis of specific
information, that the employee may have had a role in the cause or
severity of the accident/incident. In making this determination, the
railroad representative must consider any such information that is
immediately available at the time the qualifying event determination is
made under Sec.  219.201.
    (4) Fatal train incidents. For a fatal train incident under Sec.
219.201(a)(3), the remains of any on-duty employee (as defined in Sec.
219.5) performing duties for a railroad who is fatally injured in the
event are always subject to post-accident toxicological testing,
regardless of fault.
    (5) Human-factor highway-rail grade crossing accident/incidents.
(i) For a human-factor highway-rail grade crossing accident/incident
under Sec.  219.201(a)(5)(i), only a regulated employee who interfered
with the normal functioning of a grade crossing signal system and whose
actions may have contributed to the cause or severity of the event is
subject to testing.
    (ii) For a human-factor highway-rail grade crossing accident/
incident under Sec.  219.201(a)(5)(ii), only a regulated employee who
was a train crew member responsible for flagging highway traffic to
stop due to an activation failure of a grade crossing system (or who
was on-site and directly responsible for ensuring that flagging was
being performed), but who failed to do so, and whose actions may have
contributed to the cause or severity of the event, is subject to
testing.
    (iii) For a human-factor highway-rail grade crossing accident/
incident under Sec.  219.201(a)(5)(iii), only a regulated employee who
was responsible for performing the duties of an appropriately equipped
flagger (as defined in Sec.  234.5 of this chapter), but who failed to
do so, and whose actions may have contributed to the cause or severity
of the event is subject to testing.
    (iv) For a human-factor highway-rail grade crossing accident/
incident under Sec.  219.201(a)(5)(iv), only the remains of any
fatally-injured employee(s) (as defined in Sec.  219.5) performing
regulated service for the railroad are subject to testing.
    (v) For a human-factor highway-rail grade crossing accident/
incident under Sec.  219.201(a)(5)(v), only a regulated employee who
violated an FRA regulation or railroad operating rule and whose actions
may have contributed to the cause or severity of the event is subject
to testing.
    (6) Exception. For a qualifying impact accident, passenger train
accident, fatal train incident, or human-factor highway-rail grade
crossing accident/incident under Sec.  219.201(a)(2) through (5), a
surviving crewmember or other regulated employee must be excluded from
testing if the railroad representative can immediately determine, on
the basis of specific information, that the employee had no role in the
cause or severity of the accident/incident. In making this
determination, the railroad representative must consider any
information that is immediately available at the time the qualifying
event determination is made under Sec.  219.201.
    (i) This exception is not available for assigned crew members of
all involved trains if the qualifying event also meets the criteria for
a major train accident under Sec.  219.201(a)(1) (e.g., this exception
is not available for an Impact Accident that also qualifies as a major
train accident because it results in damage to railroad property of
$1,500,000 or more).
    (ii) This exception is not available for any on-duty employee who
is fatally-injured in a qualifying event.
    (b) Railroad responsibility. (1) A railroad must take all
practicable steps to ensure that all surviving regulated employees of
the railroad who are subject to FRA post-accident toxicological testing
under this subpart provide blood and urine specimens for the
toxicological testing required by FRA. This includes any regulated
employee who may not have been

present or on-duty at the time or location of the event, but whose
actions may have played a role in its cause or severity, including, but
not limited to, an operator, dispatcher, or signal maintainer.
    (2) A railroad must take all practicable steps to ensure that
tissue and fluid specimens taken from fatally injured employees are
subject to FRA post-accident toxicological testing under this subpart.
    (3) FRA post-accident toxicological testing under this subpart
takes priority over toxicological testing conducted by state or local
law enforcement officials.
    (c) Alcohol testing. Except as provided for in paragraph (e)(4) of
this section, if the conditions for mandatory post-accident
toxicological testing exist, a railroad may also require an employee to
provide breath for testing in accordance with the procedures set forth
in part 40 of this title and in this part, if such testing does not
interfere with timely collection of required urine and blood specimens.
    (d) Timely specimen collection. (1) A railroad must make every
reasonable effort to assure that specimens are provided as soon as
possible after the accident or incident, preferably within four hours.
Specimens that are not collected within four hours after a qualifying
accident or incident must be collected as soon thereafter as
practicable. If a specimen is not collected within four hours of a
qualifying event, the railroad must immediately notify the FRA Drug and
Alcohol Program Manager at<PHONE_NUMBER> and provide detailed
information regarding the failure (either verbally or via a voicemail).
The railroad must also submit a concise, written narrative report of
the reasons for such a delay to the FRA Drug and Alcohol Program
Manager, 1200 New Jersey Ave. SE., Washington, DC 20590. The report
must be submitted within 30 days after the expiration of the month
during which the accident or incident occurred. This report may also be
submitted via email to an email address provided by the FRA Drug and
Alcohol Program Manager.
    (2) The requirements of paragraph (d) of this section must not be
construed to inhibit an employee who is required to be post-accident
toxicological tested from performing, in the immediate aftermath of an
accident or incident, any duties that may be necessary for the
preservation of life or property. Where practical, however, a railroad
must utilize other employees to perform such duties.
    (3) If a passenger train is in proper condition to continue to the
next station or its destination after an accident or incident, the
railroad must consider the safety and convenience of passengers in
determining whether the crew should be made immediately available for
post-accident toxicological testing. A relief crew must be called to
relieve the train crew as soon as possible.
    (4) A regulated employee who may be subject to post-accident
toxicological testing under this subpart must be retained in duty
status for the period necessary to make the determinations required by
Sec.  219.201 and this section and (as appropriate) to complete
specimen collection.
    (e) Recall of employees for testing. (1) Except as otherwise
provided for in paragraph (e)(2) of this section, a regulated employee
may not be recalled for testing under this subpart if that employee has
been released from duty under the normal procedures of the railroad. An
employee who has been transported to receive medical care is not
released from duty for purposes of this section. Furthermore, nothing
in this section prohibits the subsequent testing of an employee who has
failed to remain available for testing as required (e.g., an employee
who is absent without leave). However, subsequent testing does not
excuse a refusal by the employee to provide the specimens in a timely
manner.
    (2) A railroad must immediately recall and place on duty a
regulated employee for post-accident drug testing, if--
    (i) The employee could not be retained in duty status because the
employee went off duty under normal railroad procedures before being
contacted by a railroad supervisor and instructed to remain on duty
pending completion of the required determinations (e.g., in the case of
a dispatcher or signal maintainer remote from the scene of an accident
who was unaware of the occurrence at the time he or she went off duty);
and
    (ii) The railroad's preliminary investigation (contemporaneous with
the determination required by Sec.  219.201) indicates a clear
probability that the employee played a role in the cause or severity of
the accident/incident.
    (3) If the criteria in paragraph (e)(2) of this section are met, a
regulated employee must be recalled for post-accident drug testing
regardless of whether the qualifying event happened or did not happen
during the employee's tour of duty. However, an employee may not be
recalled for testing if more than 24 hours have passed since the
qualifying event. An employee who has been recalled must be placed on
duty for the purpose of accomplishing the required post-accident drug
testing.
    (4) Urine and blood specimens must be collected from an employee
who is recalled for testing in accordance with this section. If the
employee left railroad property before being recalled, however, the
specimens must be tested for drugs only. A railroad is prohibited from
requiring a recalled employee to provide breath specimens for alcohol
testing, unless the regulated employee has remained on railroad
property since the time of the qualifying event and the railroad has a
company policy completely prohibiting the use of alcohol on railroad
property.
    (5) A railroad must document its attempts to contact an employee
subject to the recall provisions of this section. If a railroad is
unable, as a result of the non-cooperation of an employee or for any
other reason, to obtain specimen(s) from an employee subject to
mandatory recall within the 24-hour period after a qualifying event and
to submit specimen(s) to FRA as required by this subpart, the railroad
must contact FRA and prepare a concise narrative report according to
the requirements of paragraph (d)(1) of this section. The report must
also document the railroad's good faith attempts to contact and recall
the employee.
    (f) Place of specimen collection. (1) With the exception of Federal
breath testing for alcohol (when conducted as authorized under this
subpart), an employee must be transported to an independent medical
facility for specimen collection. In all cases, blood may be drawn only
by a qualified medical professional or by a qualified technician
subject to the supervision of a qualified medical professional (e.g., a
phlebotomist). A collector contracted by a railroad or medical facility
may collect and/or assist in the collection of specimens at the medical
facility if the medical facility does not object and the collector is
qualified to do so.
    (2) If an employee has been injured, a railroad must ask the
treating medical facility to obtain the specimens. Urine may be
collected from an injured employee (conscious or unconscious) who has
already been catheterized for medical purposes, but an employee may not
be catheterized solely for the purpose of providing a specimen under
this subpart. Under Sec.  219.11(a), an employee is deemed to have
consented to FRA post-accident toxicological testing by the act of
being subject to performing regulated service for a railroad.
    (g) Obtaining cooperation of facility. (1) In seeking the
cooperation of a medical facility in obtaining a specimen

under this subpart, a railroad must, as necessary, make specific
reference to the requirements of this subpart and the instructions in
FRA's post-accident toxicological shipping kit.
    (2) If an injured employee is unconscious or otherwise unable to
evidence consent to the procedure and the treating medical facility
declines to obtain blood and/or urine specimens after having been
informed of the requirements of this subpart, the railroad must
immediately notify the duty officer at the National Response Center
(NRC) at<PHONE_NUMBER>, stating the employee's name, the name and
location of the medical facility, the name of the appropriate
decisional authority at the medical facility, and the telephone number
at which that person can be reached. FRA will then take appropriate
measures to assist in obtaining the required specimens.
    (h) Discretion of physician. Nothing in this subpart may be
construed to limit the discretion of a medical professional to
determine whether drawing a blood specimen is consistent with the
health of an injured employee or an employee afflicted by any other
condition that may preclude drawing the specified quantity of blood.

0
19. Revise Sec.  219.205 to read as follows:

Sec.  219.205  Specimen collection and handling.

    (a) General. Urine and blood specimens must be obtained, marked,
preserved, handled, and made available to FRA consistent with the
requirements of this subpart, the instructions provided inside the FRA
post-accident toxicological shipping kit, and the technical
specifications set forth in appendix C to this part.
    (b) Information requirements. Basic information concerning the
accident/incident and any treatment administered after the accident/
incident is necessary to process specimens, analyze the significance of
laboratory findings, and notify railroads and employees of test
results. Accordingly, the railroad representative must complete the
information required by Form FRA 6180.73 (revised) for shipping with
the specimens. Each employee subject to testing must cooperate in
completion of the required information on Form FRA F 6180.74 (revised)
for inclusion in the shipping kit and processing of the specimens. The
railroad representative must ask an appropriate representative of the
medical facility to complete the remaining portion of the information
on each Form 6180.74. A Form 6180.73 must be forwarded in the shipping
kit with each group of specimens. A Form 6180.74 must be forwarded in
the shipping kit for each employee who provides specimens. A Form
6180.73 and either a Form 6180.74 or a Form 6180.75 (for fatalities)
are included in the shipping kit. (See paragraph (c) of this section.)
    (c) Shipping kits. (1) FRA and the laboratory designated in
appendix B to this part make available for purchase a limited number of
standard shipping kits for the purpose of routine handling of post-
accident toxicological specimens under this subpart. Specimens must be
placed in the shipping kit and prepared for shipment according to the
instructions provided in the kit and appendix C to this part.
    (2) Standard shipping kits may be ordered directly from the
laboratory designated in appendix B to this part by first requesting an
order form from FRA's Drug and Alcohol Program Manager at<PHONE_NUMBER>.
In addition to the standard kit for surviving employees, FRA also has
distributed a post-mortem shipping kit to Class I, II, and commuter
railroads. The post-mortem kit may not be ordered by other railroads.
If a smaller railroad has a qualifying event involving a fatality to an
on-duty employee, the railroad should advise the NRC at 1-800-424-8802
of the need for a post-mortem kit, and FRA will send one overnight to
the medical examiner's office or assist the railroad in obtaining one
from a nearby railroad.
    (d) Shipment. Specimens must be shipped as soon as possible by pre-
paid air express (or other means adequate to ensure delivery within 24
hours from time of shipment) to the laboratory designated in appendix B
to this part. However, if delivery cannot be ensured within 24 hours
due to a suspension in air express delivery services, the specimens
must be held in a secure refrigerator until delivery can be
accomplished. In no circumstances may specimens be held for more than
72 hours. Where express courier pickup is available, the railroad must
ask the medical facility to transfer the sealed toxicology kit directly
to the express courier for transportation. If courier pickup is not
available at the medical facility where the specimens are collected or
if for any other reason a prompt transfer by the medical facility
cannot be assured, the railroad must promptly transport the sealed
shipping kit holding the specimens to the most expeditious point of
shipment via air express. The railroad must maintain and document a
secure chain of custody of the kit(s) from its release by the medical
facility to its delivery for transportation, as described in appendix C
to this part.
    (e) Specimen security. After a specimen kit or transportation box
has been sealed, no entity other than the laboratory designated in
appendix B to this part may open it. If the railroad or medical
facility discovers an error with either the specimens or the chain of
custody form after the kit or transportation box has been sealed, the
railroad or medical facility must make a contemporaneous written record
of that error and send it to the laboratory, preferably with the
transportation box.

Sec.  219.207--[Amended]

0
20. Section 219.207 is amended by--
0
a. In paragraph (a), removing the word ``and/or'' and adding, in its
place, the word ``and''; removing the words ``timely collected'' and
adding, in their place, ``collected in a timely fashion''; removing the
word ``shipping'' and adding, in its place, ``post-mortem shipping'';
and removing the words ``if a person'' and adding, in their place, ``if
the custodian is someone'';
0
b. In the introductory text of paragraph (b), removing ``(800) 424-8801
or'';
0
c. In paragraph (c), removing the word ``and/or'' and adding, in its
place, the word ``and''; and
0
d. In paragraph (d), removing the word ``specifies'' and adding, in its
place, the words ``and the instructions included inside the shipping
kits specify''.

0
21. In Sec.  219.209, revise paragraphs (a)(2)(iv), (a)(2)(v), and (b),
and remove paragraph (c), to read as follows:

Sec.  219.209  Reports of tests and refusals.

    (a) * * *
    (2) * * *
    (iv) Brief summary of the circumstances of the accident/incident,
including basis for testing (e.g., impact accident with a reportable
injury); and
    (v) Number of employees tested.
    (b) If a railroad is unable, as a result of non-cooperation of an
employee or for any other reason, to obtain a specimen and provide it
to FRA as required by this subpart, the railroad must immediately
notify the FRA Drug and Alcohol Program Manager at<PHONE_NUMBER> and
provide detailed information regarding the failure (either verbally or
via a voicemail). The railroad must also provide a concise narrative
written report of the reason for such failure and, if appropriate, any
action taken in response to the cause of such failure. This report must
be appended to the report of the accident/incident required to be
submitted under part 225 of this chapter and must also

be mailed to the FRA Drug and Alcohol Program Manager at 1200 New
Jersey Avenue SE., Washington, DC 20590.

0
22. Section 219.211 is amended by--
0
a. Adding a sentence at the end of paragraph (b);
0
b. Revising the second sentence of paragraph (c) and the second
sentence of paragraph (e); and
0
c. Revising paragraph (g)(3).
    The revisions and additions read as follows:

Sec.  219.211  Analysis and follow-up.

* * * * *
    (b) * * * An employer is prohibited from temporarily removing an
employee from the performance of regulated service based only on a
report from the laboratory to the MRO of a confirmed positive test for
a drug or drug metabolite, an adulterated test, or a substituted test,
before the MRO has completed verification of the test result.
    (c) * * * The Medical Review Officer must promptly report the
results of each review to the Associate Administrator for Railroad
Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590. * * *
    (e) * * * An employee wishing to respond may do so by email or
letter addressed to the Drug and Alcohol Program Manager, Office of
Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590
within 45 days of receipt of the test results. * * *
* * * * *
    (g) * * *
    (3) This provision does not authorize holding any employee out of
service pending receipt of PAT testing results. It also does not
restrict a railroad from taking such action based on the employee's
underlying conduct, so long as it is consistent with the railroad's
disciplinary policy and is taken under the railroad's own authority.
* * * * *

Sec.  219.213  [Amended]

0
23. In Sec.  219.213, paragraphs (a) and (b), revise all references to
``covered service'' to read ``regulated service,'' and in paragraph
(b), add ``written'' in front of the word ``notice''.
0
24. Revise subpart D to read as follows:
Subpart D--Reasonable Suspicion Testing
Sec.
219.301 Mandatory reasonable suspicion testing.
219.303 Reasonable suspicion observations.
219.305 Prompt specimen collection; time limitations.

Subpart D--Reasonable Suspicion Testing

Sec.  219.301  Mandatory reasonable suspicion testing.

    (a) Each railroad must require a regulated employee to submit to a
breath alcohol test when the railroad has reasonable suspicion to
believe that the regulated employee has violated any prohibition of
subpart B of this part concerning use of alcohol. The railroad's
determination that reasonable suspicion exists to require the regulated
employee to undergo an alcohol test must be based on specific,
contemporaneous, articulable observations concerning the appearance,
behavior, speech, or body odors of the employee. A Federal reasonable
suspicion alcohol test is not required to confirm the on-duty
possession of alcohol.
    (b) Each railroad must require a regulated employee to submit to a
drug test when the railroad has reasonable suspicion to believe that
the regulated employee has violated the prohibitions of subpart B of
this part concerning use of controlled substances. The railroad's
determination that reasonable suspicion exists to require the regulated
employee to undergo a drug test must be based on specific,
contemporaneous, articulable observations concerning the appearance,
behavior, speech, or body odors of the employee. Such observations may
include indications of the chronic and withdrawal effects of drugs.
    (c) Reasonable suspicion observations made under this section must
comply with the requirements of Sec.  219.303.
    (d) As provided by Sec.  219.11(b)(2), in any case where an
employee is suffering a substantiated medical emergency and is subject
to alcohol or drug testing under this subpart, necessary medical
treatment must be accorded priority over provision of the breath or
body fluid specimens. However, when the employee's condition is
stabilized, reasonable suspicion testing must be completed if within
the eight-hour limit provided for in Sec.  219.305.

Sec.  219.303  Reasonable suspicion observations.

    (a) With respect to an alcohol test, the required observations must
be made by a responsible railroad supervisor (defined by Sec.  219.5)
trained in accordance with Sec.  219.11(g). The supervisor who makes
the determination that reasonable suspicion exists may not conduct the
reasonable suspicion testing on that regulated employee.
    (b) With respect to a drug test, the required observations must be
made by two responsible railroad supervisors (defined by Sec.  219.5),
at least one of whom must be both on site and trained in accordance
with Sec.  219.11(g). If one of the supervisors is off site, the on-
site supervisor must communicate with the off-site supervisor, as
necessary, to provide him or her the information needed to make the
required observation. This communication may be performed via
telephone, but not via radio or any other form of electronic
communication.
    (c) This subpart does not authorize holding any employee out of
service pending receipt of toxicological analysis for reasonable
suspicion testing, nor does it restrict a railroad from taking such
action based on the employee's underlying conduct, provided it is
consistent with the railroad's policy and taken under the railroad's
own authority.
    (d) The railroad must maintain written documentation that
specifically describes the observed signs and symptoms upon which the
determination that reasonable suspicion exists is based. This
documentation must be completed promptly by the trained supervisor.

Sec.  219.305  Prompt specimen collection; time limitations.

    (a) Consistent with the need to protect life and property, testing
under this subpart must be conducted promptly following the
observations upon which the testing decision is based.
    (b) If a test required by this subpart is not administered within
two hours following a determination made under this section, the
railroad must prepare and maintain on file a record stating the reasons
the test was not administered within that time period. If an alcohol or
drug test required by this subpart is not administered within eight
hours of a determination made under this subpart, the railroad must
cease attempts to administer the test and must record the reasons for
not administering the test. The eight-hour requirement is satisfied if
the individual has been delivered to the collection site (where the
collector is present) and the request has been made to commence
collection of the specimens within that period. The records required by
this section must be submitted to FRA upon request of the FRA Drug and
Alcohol Program Manager.
    (c) A regulated employee may not be tested under this subpart if
that individual has been released from duty under the normal procedures
of a railroad. An individual who has been transported to receive
medical care is not released from duty for purposes of

this section. Nothing in this section prohibits the subsequent testing
of an employee who has failed to remain available for testing as
required (i.e., who is absent without leave).

0
25. Revise subpart E to read as follows:
Subpart E--Reasonable Cause Testing
Sec.
219.401 Authorization for reasonable cause testing.
219.403 Requirements for reasonable cause testing.
219.405 Documentation requirements.
219.407 Prompt specimen collection; time limitations.
219.409 Limitations on authority.

Subpart E--Reasonable Cause Testing

Sec.  219.401  Authorization for reasonable cause testing.

    (a) Each railroad may, at its own discretion, elect to conduct
Federal reasonable cause testing authorized by this subpart. If a
railroad chooses to do so, the railroad must use only Federal authority
for all reasonable cause testing that meets the criteria of Sec.
219.403. In addition, the railroad must notify its regulated employees
of its decision to use Federal reasonable cause testing authority in
the employee educational policy required by Sec.  219.23(e)(5). The
railroad must also provide written notification of its decision to
FRA's Drug and Alcohol Program Manager, 1200 New Jersey Ave. SE.,
Washington, DC 20590.
    (b) If a railroad elects to conduct reasonable cause testing under
the authority of this subpart, the railroad may, under the conditions
specified in this subpart, require any regulated employee, as a
condition of employment in regulated service, to cooperate with breath
or body fluid testing, or both, to determine compliance with Sec. Sec.
219.101 and 219.102 or a railroad rule implementing the requirements of
Sec. Sec.  219.101 and 219.102. This authority is limited to testing
after observations or events that occur during duty hours (including
any period of overtime or emergency service). The provisions of this
subpart apply only when, and to the extent that, the test in question
is conducted in reliance upon the authority conferred by this section.
A railroad may not require an employee to be tested under the authority
of this subpart unless reasonable cause, as defined in this section,
exists with respect to that employee.

Sec.  219.403  Requirements for reasonable cause testing.

    Each railroad's decision process regarding whether reasonable cause
testing is authorized must be completed before the reasonable cause
testing is performed and documented according to the requirements of
Sec.  219.405. The following circumstances constitute reasonable cause
for the administration of alcohol and/or drug tests under the authority
of this subpart.
    (a) Train accident or train incident. A regulated employee has been
involved in a train accident or train incident (as defined in Sec.
219.5) reportable under part 225 of this chapter, and a responsible
railroad supervisor (as defined in Sec.  219.5) has a reasonable
belief, based on specific, articulable facts, that the individual
employee's acts or omissions contributed to the occurrence or severity
of the accident; or
    (b) Rule violation. A regulated employee has been directly involved
in one or more of the following railroad or FRA rule violations or
other errors:
    (1) Noncompliance with a train order, track warrant, track
bulletin, track permit, stop and flag order, timetable, signal
indication, special instruction or other directive with respect to
movement of railroad on-track equipment that involves--
    (i) Occupancy of a block or other segment of track to which entry
was not authorized;
    (ii) Failure to clear a track to permit opposing or following
movements to pass;
    (iii) Moving across a railroad crossing at grade without
authorization; or
    (iv) Passing an absolute restrictive signal or passing a
restrictive signal without stopping (if required);
    (2) Failure to protect on-track equipment, including leaving on-
track equipment fouling an adjacent track;
    (3) Operation of a train or other speedometer-equipped on-track
equipment at a speed that exceeds the maximum authorized speed by at
least 10 miles per hour or by 50% of such maximum authorized speed,
whichever is less;
    (4) Alignment of a switch in violation of a railroad rule, failure
to align a switch as required for movement, operation of a switch under
on-track equipment, or unauthorized running through a switch;
    (5) Failure to restore and secure a main track switch as required;
    (6) Failure to apply brakes or stop short of a derail as required;
    (7) Failure to secure a hand brake or failure to secure sufficient
hand brakes, as required;
    (8) Entering a crossover before both switches are lined for
movement or restoring either switch to normal position before the
crossover movement is completed;
    (9) Failure to provide point protection by visually determining
that the track is clear and giving the signals or instructions
necessary to control the movement of on-track equipment when engaged in
a shoving or pushing movement;
    (10) In the case of a person performing a dispatching function or
block operator function, issuance of a mandatory directive or
establishment of a route that fails to provide proper protection for
on-track equipment;
    (11) Interference with the normal functioning of any grade crossing
signal system or any signal or train control device without first
taking measures to provide for the safety of highway traffic or train
operations which depend on the normal functioning of such a device.
Such interference includes, but is not limited to, failure to provide
alternative methods of maintaining safety for highway traffic or train
operations while testing or performing work on the devices or on track
and other railroad systems or structures which may affect the integrity
of the system;
    (12) Failure to perform stop-and-flag duties necessary as a result
of a malfunction of a grade crossing signal system;
    (13) Failure of a machine operator that results in a collision
between a roadway maintenance machine and on-track equipment or a
regulated employee;
    (14) Failure of a roadway worker-in-charge to notify all affected
employees when releasing working limits;
    (15) Failure of a flagman or watchman/lookout to notify employees
of an approaching train or other on-track equipment;
    (16) Failure to ascertain that provision was made for on-track
safety before fouling a track;
    (17) Improper use of individual train detection in a manual
interlocking or control point; or
    (18) Failure to apply three point protection (fully apply the
locomotive and train brakes, center the reverser, and place the
generator field switch in the off position) that results in a
reportable injury to a regulated employee.

Sec.  219.405  Documentation requirements.

    (a) Each railroad must maintain written documentation that
specifically describes the basis for each reasonable cause test it
performs under Federal authority. This documentation must be completed
promptly by the responsible railroad supervisor; although it does not
need to be completed before the reasonable cause testing is conducted.
    (b) For a rule violation, the documentation must include the type
of

rule violation and the involvement of each tested regulated employee.
For a train accident or train incident reportable under part 225 of
this chapter, a railroad must describe either the amount of railroad
property damage or the reportable casualty and the basis for the
supervisor's belief that the employee's acts or omissions contributed
to the occurrence or severity of the train accident or train incident.

Sec.  219.407  Prompt specimen collection; time limitations.

    (a) Consistent with the need to protect life and property, testing
under this subpart must be conducted promptly following the
observations upon which the testing decision is based.
    (b) If a test conducted pursuant to the authority of this subpart
is not administered within two hours following the observations upon
which the testing decision is based, the railroad must prepare and
maintain on file a record stating the reasons the test was not
conducted within that time period. If an alcohol or drug test
authorized by this subpart is not administered within eight hours of
the event under this subpart, the railroad must cease attempts to
administer the test and must record the reasons for not administering
the test. The eight-hour time period begins at the time a responsible
railroad supervisor receives notice of the train accident, train
incident, or rule violation. The eight-hour requirement is satisfied if
the employee has been delivered to the collection site (where the
collector is present) and the request has been made to commence
collection of specimen(s) within that period. The records required by
this section must be submitted to FRA upon request of the FRA Drug and
Alcohol Program Manager.
    (c) A regulated employee may not be tested under this subpart if
that individual has been released from duty under the normal procedures
of the railroad. An individual who has been transported to receive
medical care is not released from duty for purposes of this section.
Nothing in this section prohibits the subsequent testing of a regulated
employee who has failed to remain available for testing as required
(i.e., who is absent without leave).

Sec.  219.409  Limitations on authority.

    (a) The alcohol and/or drug testing authority conferred by this
subpart does not apply with respect to any event that meets the
criteria for post-accident toxicological testing required under subpart
C of this part.
    (b) This subpart does not authorize holding an employee out of
service pending receipt of toxicological analysis for reasonable cause
testing because meeting the testing criteria is only a basis to inquire
whether alcohol or drugs may have played a role in the accident or rule
violation. However, this subpart does not restrict a railroad from
holding an employee out of service based on the employee's underlying
conduct, so long as it is consistent with the railroad's policy and the
action is taken under the railroad's own authority.
    (c) When determining whether reasonable cause testing is justified,
a railroad must consider the involvement of each crewmember in the
qualifying event, not the involvement of the crew as a whole.

Subpart F--Pre-Employment Tests

0
26. Revise Sec.  219.501 to read as follows:

Sec.  219.501  Pre-employment drug testing.

    (a) Before an individual performs regulated service the first time
for a railroad, the railroad must ensure that the individual undergoes
testing for drugs in accordance with the regulations of a DOT agency.
No railroad may allow a direct employee (a railroad employee who is not
employed by a contractor to the railroad) to perform regulated service,
unless that railroad has conducted a DOT pre-employment test for drugs
on that individual with a result that did not indicate the misuse of
controlled substance. This requirement applies both to a final
applicant for direct employment and to a direct employee seeking to
transfer for the first time from non-regulated service to duties
involving regulated service. A regulated employee must have a negative
DOT pre-employment drug test for each railroad for which he or she
performs regulated service as the result of a direct employment
relationship.
    (b) Each railroad must ensure that each employee of a contractor
who performs regulated service on the railroad's behalf has a negative
DOT pre-employment drug test on file with his or her employer. The
railroad must also maintain documentation indicating that it had
verified that the contractor employee had a negative DOT pre-employment
drug test on file with his or her direct employer. A contractor
employee who performs regulated service for more than one railroad does
not need to have a DOT pre-employment drug test for each railroad for
which he or she provides service.
    (c) If a railroad has already conducted a DOT pre-employment test
resulting in a negative for a regulated service applicant under the
rules and regulations of another DOT agency (such as the Federal Motor
Carrier Safety Administration), FRA will accept the result of that
negative DOT pre-employment test for purposes of the requirements of
this subpart.
    (d) As used in subpart H of this part with respect to a test
required under this subpart, the term regulated employee includes an
applicant for pre-employment testing only. If an applicant declines to
be tested and withdraws an application for employment before the pre-
employment testing process commences, no record may be maintained of
the declination.
    (e) The pre-employment drug testing requirements of this section do
not apply to covered employees of railroads qualifying for the small
railroad exception (see Sec.  219.3(c)) or maintenance-of-way employees
who were performing duties for a railroad before June 12, 2017.
However, a grandfathered employee must have a negative pre-employment
drug test before performing regulated service for a new employing
railroad after June 12, 2017.

0
27. In Sec.  219.502, revise paragraph (a) introductory text, (a)(1),
(a)(2), (a)(5), and (b) to read as follows:

Sec.  219.502  Pre-employment alcohol testing.

    (a) A railroad may, but is not required to, conduct pre-employment
alcohol testing under this part. If a railroad chooses to conduct pre-
employment alcohol testing, the railroad must comply with the following
requirements:
    (1) The railroad must conduct a pre-employment alcohol test before
the first performance of regulated service by an employee, regardless
of whether he or she is a new employee or a first-time transfer to a
position involving the performance of regulated service.
    (2) The railroad must treat all employees performing regulated
service the same for the purpose of pre-employment alcohol testing
(i.e., a railroad must not test some regulated employees and not
others.)
* * * * *
    (5) If a regulated employee's Federal pre-employment test indicates
an alcohol concentration of 0.04 or greater, a railroad may not allow
him or her to begin performing regulated service until he or she has
completed the Federal return-to-duty process under Sec.  219.104(d).
    (b) As used in subpart H of this part with respect to a test
authorized under this subpart, the term regulated

employee includes an applicant for pre-employment testing only. If an
applicant declines to be tested before the testing process commences,
no record may be maintained of the declination. The determination of
when an alcohol test commences must be made according to the provisions
of Sec.  40.243(a) of this title.

0
28. Revise Sec.  219.503 to read as follows:

Sec.  219.503  Notification; records.

    Each railroad must provide for medical review of drug test results
according to the requirements of part 40 of this title, as provided in
subpart H of this part. The railroad must also notify the applicant in
writing of the results of any Federal drug and/or alcohol test that is
a positive, adulteration, substitution, or refusal in the same manner
as provided for employees in part 40 of this title and subpart H of
this part. Records must be maintained confidentially and be retained in
the same manner as required under subpart J of this part for employee
test records, except that such records need not reflect the identity of
an applicant who withdrew an application to perform regulated service
before the commencement of the testing process.

0
29. Revise Sec.  219.505 to read as follows:

Sec.  219.505  Non-negative tests and refusals.

    An applicant who has tested positive or refused to submit to pre-
employment testing under this section may not perform regulated service
for any railroad until he or she has completed the Federal return-to-
duty process under Sec.  219.104(d). An applicant may also not perform
DOT safety-sensitive functions for any other employer regulated by a
DOT agency until he or she has completed the Federal return-to-duty
process under Sec.  219.104(d). This section does not create any right
on the part of the applicant to have a subsequent application
considered; nor does it restrict the discretion of the railroad to
entertain a subsequent application for employment from the same person.

0
30. Revise subpart G to read as follows:
Subpart G--Random Alcohol and Drug Testing Programs
Sec.
219.601 Purpose and scope of random testing programs.
219.603 General requirements for random testing programs.
219.605 Submission and approval of random testing plans.
219.607 Requirements for random testing plans.
219.609 Inclusion of contractor employees and volunteers in random
testing plans.
219.611 Random alcohol and drug testing pools.
219.613 Random testing selections.
219.615 Random testing collections.
219.617 Participation in random alcohol and drug testing.
219.619 Positive alcohol and drug test results and refusals;
procedures.
219.621 Use of service agents.
219.623 Records.
219.625 FRA Administrator's determination of random alcohol and drug
testing rates.

Subpart G--Random Alcohol and Drug Testing Programs

Sec.  219.601  Purpose and scope of random testing programs.

    (a) Purpose. The purpose of random alcohol and drug testing is to
promote safety by deterring regulated employees from misusing drugs and
abusing alcohol.
    (b) Regulated employees. Each railroad must ensure that a regulated
employee is subject to being selected for random testing as required by
this subpart whenever the employee performs regulated service on the
railroad's behalf.
    (c) Contractor employees and volunteers. A regulated employee who
is a volunteer or an employee of a contractor to a railroad may be
incorporated into the random testing program of more than one railroad
if:
    (1) The contractor employee or volunteer is not already part of a
random testing program that meets the requirements of this subpart and
has been accepted by the railroad for which he or she performs
regulated service (as described in Sec.  219.609); or
    (2) The railroad for which the contractor employee or volunteer
performs regulated service is unable to verify that the individual is
part of a random testing program acceptable to the railroad that meets
the requirements of this subpart.
    (d) Multiple DOT agencies. (1) If a regulated employee performs
functions subject to the random testing requirements of more than one
DOT agency, a railroad must ensure that the employee is subject to
selection for random drug and alcohol testing at or above the current
minimum annual testing rate set by the DOT agency that regulates more
than 50 percent of the employee's DOT-regulated functions.
    (2) A railroad may not include a regulated employee in more than
one DOT random testing pool for regulated service performed on its
behalf, even if the regulated employee is subject to the random testing
requirements of more than one DOT agency.

Sec.  219.603  General requirements for random testing programs.

    (a) General. To the extent possible, each railroad must ensure that
its FRA random testing program is designed and implemented so that each
employee performing regulated service on its behalf should reasonably
anticipate that he or she may be called for a random test without
advance warning at any time while on duty and subject to performing
regulated service.
    (b) Prohibited selection bias. A random testing program may not
have a selection bias or an appearance of selection bias, or appear to
provide an opportunity for a regulated employee to avoid complying with
this section.
    (c) Plans. As required by Sec. Sec.  219.603 through 219.609, each
railroad must submit for FRA approval a random testing plan meeting the
requirements of this subpart. The plan must address all regulated
employees, as defined in Sec.  219.5.
    (d) Pools. Each railroad must construct and maintain random testing
pools in accordance with Sec.  219.611.
    (e) Selections. Each railroad must conduct random testing
selections in accordance with Sec.  219.613.
    (f) Collections. Each railroad must perform random testing
collections in accordance with Sec.  219.615.
    (g) Cooperation. Each railroad and its regulated employees must
cooperate with and participate in random testing in accordance with
Sec.  219.617.
    (h) Responsive action. Each railroad must handle positive random
tests and verified refusals to test in accordance with Sec.  219.619.
    (i) Service agents. Each railroad may use a service agent to
perform its random testing responsibilities in accordance with Sec.
219.621.
    (j) Records. Each railroad must maintain records required by this
subpart in accordance with Sec.  219.623.

Sec.  219.605  Submission and approval of random testing plans.

    (a) Plan submission. (1) Each railroad must submit for review and
approval a random testing plan meeting the requirements of Sec. Sec.
219.607 and 219.609 to the FRA Drug and Alcohol Program Manager, 1200
New Jersey Ave. SE., Washington, DC 20590. A railroad commencing start-
up operations must submit its plan no later than 30 days before its
date of commencing operations. A railroad that must comply with this
subpart because it no longer qualifies for the small railroad exception
under Sec.  219.3 (due to a change in operations or its number of
covered employees) must submit its plan no later than 30 days after it
becomes

subject to the requirements of this subpart. A railroad may not
implement a Federal random testing plan or any substantive amendment to
that plan before FRA approval.
    (2) A railroad may submit separate random testing plans for each
category of regulated employees (as defined in Sec.  219.5), combine
all categories into a single plan, or amend its current FRA-approved
plan to add additional categories of regulated employees, as defined by
this part.
    (b) Plan approval notification. FRA will notify a railroad in
writing whether its plan is approved. If the plan is not approved
because it does not meet the requirements of this subpart, FRA will
inform the railroad of its non-approval, with specific explanations of
any required revisions. The railroad must resubmit its plan with the
required revisions within 30 days of the date of FRA's written notice.
Failure to resubmit the plan with the necessary revisions will be a
failure to submit a plan under this part.
    (c) Plan implementation. Each railroad must implement its random
testing plan no later than 30 days from the date of FRA approval.
    (d) Plan amendments. (1) Each railroad must submit to FRA a
substantive amendment to an approved plan at least 30 days before its
intended effective date. A railroad may not implement any substantive
amendment before FRA approval.
    (2) Each railroad must provide a non-substantive amendment to an
approved plan (such as the replacement or addition of service
providers) to the FRA Drug and Alcohol Program Manager in writing (by
letter or email) before its effective date. However, FRA pre-approval
is not required.
    (e) Previously approved plans. A railroad is not required to
resubmit a random testing plan that FRA had approved before June 12,
2017, unless the railroad must amend the plan to comply with the
requirements of this subpart. A railroad must submit new plans,
combined plans, or amended plans incorporating new categories of
regulated employees (i.e., maintenance-of-way employees) for FRA
approval at least 30 days before June 12, 2017.

Sec.  219.607  Requirements for random testing plans.

    (a) General. A random testing plan that a railroad submits under
this subpart must address and comply with the requirements of this
subpart. The railroad must also comply with these requirements in
implementing the plan.
    (b) Model random testing plan. A railroad (or a contractor or
service agent that submits a part 219-compliant random testing plan to
a railroad for submission as a part of the railroad's random testing
plan) may complete, modify if necessary, and submit a plan based on the
FRA model random testing plan that can be downloaded from FRA's Drug
and Alcohol Program Web site.
    (c) Specific plan requirements. Each random testing plan must
contain the following items of information, each of which must be
contained in a separate, clearly identified section:
    (1) Total number of covered employees, including covered service
contractor employees and volunteers;
    (2) Total number of maintenance-of-way employees, including
maintenance-of-way contractor employees and volunteers;
    (3) Names of any contractors who perform regulated service for the
railroad, with contact information;
    (4) Method used to ensure that any regulated service contractor
employees and volunteers are subject to the requirements of this
subpart, as required by Sec.  219.609;
    (5) Name, address, and contact information for the railroad's
Designated Employer Representative (DER) and any alternates (if
applicable);
    (6) Name, address, and contact information for any service
providers, including the railroad's Medical Review Officers (MROs),
Substance Abuse and Mental Health Services Administration (SAMHSA)
certified drug testing laboratory(ies), Drug and Alcohol Counselors
(DACs), Substance Abuse Professionals (SAPs), and C/TPA or collection
site management companies. Individual collection sites do not have to
be identified;
    (7) Number of random testing pools and the proposed general pool
entry assignments for each pool. If using a C/TPA, a railroad must
identify whether its regulated employees are combined into one pool,
contained in separate pools, or combined in a larger pool with other
FRA or other DOT agency regulated employees, or both.
    (8) Target random testing rates;
    (9) Method used to make random selections, including a detailed
description of the computer program or random number table selection
process employed;
    (10) Selection unit(s) for each random pool (e.g., employee name or
ID number, job assignment, train symbol) and whether the individual
selection unit(s) will be selected for drugs, alcohol, or both;
    (11) If a railroad makes alternate selections, under what limited
circumstances these alternate selections will be tested (see Sec.
219.613);
    (12) Frequency of random selections (e.g., monthly);
    (13) Designated testing window. A designated testing window extends
from the beginning to the end of the designated testing period
established in the railroad's FRA-approved random plan (see Sec.
219.603), after which time any individual selections for that
designated testing window that have not been collected are no longer
active (valid); and
    (14) Description of how the railroad will notify a regulated
employee that he or she has been selected for random testing.

Sec.  219.609  Inclusion of contractor employees and volunteers in
random testing plans.

    (a) Each railroad's random testing plan must demonstrate that all
of its regulated service contractor employees and volunteers are
subject to random testing that meets the requirements of this subpart.
A railroad can demonstrate that its regulated service contractor
employees and volunteers are in compliance with this subpart by either:
    (1) Directly including regulated service contractor employees and
volunteers in its own random testing plan and ensuring that they are
tested according to that plan; or
    (2) Indicating in its random testing plan that its regulated
service contractor employees and volunteers are part of a random
testing program which is compliant with the requirements of this
subpart, e.g., conducted by a contractor or C/TPA (``non-railroad
random testing program''). If a railroad chooses this option, the
railroad must append to its own random testing plan one or more addenda
describing the method it will use to ensure that the non-railroad
random testing program is testing its regulated service contractor
employees and volunteers according to the requirements of this subpart.
A railroad may comply with this requirement by appending the non-
railroad random testing program or a detailed description of the
program and how it complies with this subpart.
    (b) Each railroad's random testing plan(s) and any addenda must
contain sufficient detail to fully document that the railroad is
meeting the requirements of this subpart for all personnel performing
regulated service on its behalf.
    (c) If a railroad chooses to use regulated service contractor
employees and volunteers who are part of a non-railroad random testing
program, the railroad remains responsible for

ensuring that the non-railroad program is testing the regulated service
contractor employees and volunteers according to the requirements of
this subpart.
    (d) FRA does not pre-approve contractor or service agent random
testing plans, but may accept them as part of its approval process of a
railroad's plan.

Sec.  219.611  Random alcohol and drug testing pools.

    (a) General. Each railroad must ensure that its random testing
pools include all regulated employees who perform regulated service on
its behalf, except that a railroad's random testing pools do not have
to include regulated employees who are part of a non-railroad random
testing program that is compliant with the requirements of this subpart
and that has been accepted by the railroad.
    (b) Pool entries. Each railroad must clearly indicate who will be
tested when a specific pool entry is selected.
    (1) Pool entries may be employee names or identification numbers,
train symbols, or specific job assignments, although all the entries in
a single pool must be of generally consistent sizes and types.
    (2) Pool entries must not allow a field manager or field supervisor
to have discretion over which employee is to be tested when an entry is
selected.
    (3) Pool entries must be constructed and maintained so that all
regulated employees have an equal chance of being selected for random
testing for each selection draw.
    (c) Minimum number of pool entries. A railroad (including a service
agent used by a railroad to carry out its responsibilities under this
subpart) may not maintain a random testing pool with less than four
pool entries. Placeholder pool entries (entries that do not represent
legitimate selections of regulated employees) are not permitted. A
railroad or contractor with less than four regulated employees can
comply with this requirement by having its regulated employees
incorporated into a railroad or non-railroad random testing pool that
contains more than four entries.
    (d) Pool construction. (1) An individual who is not subject to the
random testing requirements of FRA or another DOT agency may not be
placed in the same pool as a regulated employee.
    (2) A railroad may not include a regulated employee in more than
one random testing pool established under the regulations of a DOT
agency.
    (3) A regulated employee may be placed in a random testing pool
with employees subject to the random testing requirements of another
DOT agency, only if all entries in the pool are subject to testing at
the highest minimum random testing rate required by the regulations of
a DOT agency for any single member in the pool.
    (4) A regulated employee does not have to be placed in separate
pools for random drug and random alcohol testing selection.
    (5) A regulated employee must be incorporated into a random testing
pool as soon as possible after his or her hire or first transfer into
regulated service.
    (e) Frequency of regulated service. (1) A railroad may not place a
person in a random testing pool for any selection period in which he or
she is not expected to perform regulated service.
    (2) A railroad employee who performs regulated service on average
less than once a quarter is a de minimis safety concern for random
testing purposes, and does not have to be in a random testing program.
A railroad that chooses to random test de minimis employees must place
them in a separate random testing pool from employees who perform
regulated service on a regular basis (e.g., engineers, conductors,
dispatchers, and signal maintainers).
    (3) A railroad must make a good faith effort to determine the
frequency of an employee's performance of regulated service and must
evaluate the employee's likelihood of performing regulated service in
each upcoming selection period.
    (f) Pool maintenance. Pool entries must be updated at least
monthly, regardless of how often selections are made, and a railroad
must ensure that each of its random testing pools is complete and does
not contain outdated or inappropriate entries.
    (g) Multiple random testing pools. A railroad may maintain more
than one random testing pool if it can demonstrate that its random
testing program is not adversely impacted by the number and types of
pools or the construction of pool entries, and that selections from
each pool will meet the requirements of this subpart.

Sec.  219.613  Random testing selections.

    (a) General. Each railroad must ensure that each regulated employee
has an equal chance of being selected for random testing whenever
selections are made. A railroad may not increase or decrease an
employee's chance of being selected by weighting an entry or pool.
    (b) Method of selection. (1) Each railroad must use a selection
method that is acceptable to FRA and meets the requirements of this
subpart, such as a computer selection program, proper use of a random
number table, or an alternative method which FRA has approved as part
of the railroad's random testing plan.
    (2) A selection method must be free of bias or apparent bias and
employ objective, neutral criteria to ensure that every regulated
employee has an equal statistical chance of being selected within a
specified time frame. The selection method may not utilize subjective
factors that permit a railroad to manipulate or control selections in
an effort to either target or protect any employee, job, or operational
unit from testing.
    (3) The randomness of a selection method must be verifiable, and,
as required by Sec.  219.623, any records necessary to document the
randomness of a selection must be retained for not less than two years
from the date the designated testing window for that selection expired.
    (c) Minimum random testing rate. (1) Each railroad must distribute
random tests reasonably throughout the calendar year and make
sufficient selections to ensure that each random testing pool meets the
Administrator's minimum annual random testing rates as established
according to Sec.  219.625.
    (2) Each railroad must continually monitor changes in its workforce
to ensure that the required number of selections and tests are
conducted each year.
    (d) Selection frequency. Each railroad must select at least one
entry from each of its random testing pools every three months.
    (e) Discarded selection draws. Each selection draw must identify
who will be subject to random testing. A railroad cannot discard a
selection draw without an acceptable explanation (e.g., the selection
was drawn from an incomplete or inaccurate pool). A railroad must
document and retain records for all discarded selection draws,
including the specific reason the selection draw was not used, as
required by Sec.  219.623.
    (f) Increasing random selections. A railroad that is unable to
complete a collection for each selection made during a designated
testing period may increase the number of selections in a subsequent
selection period to ensure that it meets the annual minimum random
testing rate for the calendar year.
    (g) Selection snapshots. Each railroad must capture and maintain an
electronic or hard copy snapshot of each random testing pool at the
time it makes a testing selection. A railroad must not re-create pool
entries from records after the time of the original selection. The
railroad must maintain this snapshot for

a period of two years, as required by subpart J of this part.
    (h) Multiple DOT agencies. Each railroad must ensure that each
regulated employee who performs functions subject to the random testing
requirements of more than one DOT agency is subject to random selection
at or above the current minimum annual testing rate set by the DOT
agency that regulates more than 50 percent of the employee's DOT-
regulated functions.

Sec.  219.615  Random testing collections.

    (a) Minimum random testing rates. Each railroad must complete a
sufficient number of random alcohol and drug testing collections from
each of its random testing pools to meet the Administrator's minimum
annual testing rates established in accordance with Sec.  219.625.
    (b) Designated testing window. Each railroad must complete the
collection for a selected pool entry within the FRA-approved designated
testing window for that selection. Once a designated testing window has
closed, any selections not collected during that window are no longer
valid and may not be subject to random testing.
    (c) Collection timing. (1) A regulated employee may be subject to
random testing only while on duty and subject to performing regulated
service.
    (2) Each railroad's random alcohol and drug testing collections
must be unannounced and spread reasonably throughout the calendar year.
Collections must also be distributed unpredictably throughout the
designated testing window and must reasonably cover all operating days
of the week (including operating weekends and holidays), shifts, and
locations.
    (3) Random alcohol test collections must be performed unpredictably
and in sufficient numbers at either end of an operating shift to attain
an acceptable level of deterrence throughout the entire shift. At a
minimum, a railroad must perform 10% of its random alcohol tests at the
beginning of shifts and 10% of its random alcohol tests at the end of
shifts.
    (4) If a regulated employee has been selected for both random drug
and alcohol testing, a railroad may conduct these tests separately, so
long as both required collections can be completed by the end of the
employee's shift and the railroad does not inform the employee that an
additional collection will occur later.
    (d) Collection scheduling. While pool entries must be selected
randomly, a railroad may schedule each random test collection during a
designated testing window according to its approved plan.
    (1) A railroad may schedule a collection based on the availability
of the selected pool entry, the logistics of performing the collection,
and any other requirements of this subpart.
    (2) If a selected pool entry does not identify the selection by
name (i.e., train crews or job functions), a railroad may not use its
scheduling discretion to deliberately target or protect a particular
employee or work crew. Unless otherwise approved in a random testing
plan, railroad field supervisors or field management personnel may not
use discretion to choose or to change collection dates or times if that
choice could intentionally alter who is to be tested.
    (e) Notification requirements. (1) A railroad may notify a
regulated employee that he or she has been selected for random testing
only during the duty tour in which the collection is to be conducted,
and only so far in advance as is reasonably necessary to ensure the
employee's presence at the scheduled collection time and place.
    (2) A railroad must make collections as soon as possible. Each
collection must begin within two hours after the railroad has notified
the employee of his or her selection for random testing, unless the
railroad has an acceptable reason for the delay. A railroad should
monitor each employee after notification and, whenever possible,
arrange for the employee to be immediately escorted by supervisory or
management personnel to the collection location.
    (3) A railroad must inform an regulated employee that he or she has
been selected for random testing at the time the employee is notified.
Completion of the Federal Drug Testing Custody and Control Form (CCF)
or the DOT Alcohol Testing Form (ATF) indicating the basis of the test
satisfies this requirement, so long as the employee has been shown and
directed to sign the CCF or ATF as required by Sec. Sec.  40.73 and
40.241 of this title.
    (f) Incomplete collections. A railroad must use due diligence to
ensure that a random testing collection is completed for each selected
pool entry, unless it has an acceptable explanation for not conducting
the collection. All reasons for incomplete collections must be fully
documented and are subject to inspection by FRA upon request.
    (g) Hours-of-service limitations. (1) Except as provided by
paragraph (g)(2) of this section, a railroad must immediately terminate
a random collection and may not reschedule it if the collection is not
completed within a covered employee's hours-of-service limitations.
    (2) If a random collection requires a direct observation collection
under Sec.  40.67 of this title, the directly observed collection must
immediately proceed until completed. A railroad must submit an excess
service report, as required by part 228 of this chapter, if completion
of the directly observed collection causes the covered employee to
exceed his or her hours-of-service limitations.

Sec.  219.617  Participation in random alcohol and drug testing.

    (a) Railroad responsibility. (1) A railroad must, under the
conditions specified in this subpart and subpart H of this part,
require a regulated employee selected for random testing to cooperate
in alcohol and/or drug testing.
    (2) If an employee is performing regulated service at the time he
or she is notified of his or her selection for random testing, the
railroad must ensure that the employee immediately ceases to perform
regulated service and proceeds to the collection site without adversely
affecting safety. A railroad must also ensure that the absence of an
employee from his or her assigned duties to report for testing does not
adversely affect safety. Once an employee begins the testing process,
he or she may not be returned to regulated service until the testing
process is complete.
    (3) A railroad may excuse an employee who has been notified of or
her selection for random testing only if the employee can substantiate
that a medical emergency involving the employee or an immediate family
member (e.g., birth, death, or medical emergency) supersedes the
requirement to complete the test. A medical emergency is defined in
this part as an acute medical condition requiring immediate emergency
care. To be eligible for exclusion from random testing, the employee
must provide verifiable documentation of the emergency situation from a
credible outside professional within a reasonable period of time (e.g.,
a doctor, dentist, hospital, law enforcement officer, or school
authority). A railroad may not test an employee who has been excused
from testing under the same random selection.
    (b) Employee responsibility. (1) A regulated employee subject to
the random testing requirements of this subpart must cooperate with the
selection and testing process, and must proceed to the testing site
upon notification that he or she has been selected for random testing.
    (2) A regulated employee must fully cooperate and comply with the
urine drug collection and/or breath alcohol

testing procedures required by subpart H of this part, and provide the
required specimen(s), and must, upon request, complete the required
paperwork and certifications.

Sec.  219.619  Positive alcohol and drug test results and refusals;
procedures.

    Section 219.104 contains the procedures for administrative handling
by the railroad or contractor in the event a urine specimen provided
under this subpart is reported as a verified positive by the Medical
Review Officer, a breath alcohol specimen is reported at 0.04 or
greater by the Breath Alcohol Technician, or a refusal to test has
occurred. The responsive action required in Sec.  219.104 is not stayed
pending the result of the testing of a split urine specimen or a
challenge to any part of the testing process or procedure.

Sec.  219.621  Use of service agents.

    (a) A railroad may use a service agent (such as a consortium/third
party administrator (C/TPA)) to act as its agent to carry out any role
in random testing specifically permitted under subpart Q of part 40 of
this title, such as maintaining random pools, conducting random
selections, and performing random urine drug collections and breath
alcohol tests.
    (b) A railroad may not use a service agent to notify a regulated
employee that he or she has been selected for random testing. A
regulated employee who has been selected for random testing must
otherwise be notified of the selection by his or her employer. A
service agent may also not perform any role that Sec.  40.355 of this
title specifically reserves to an employer, which, for purposes of this
subpart, is defined as a railroad or a contractor performing railroad-
accepted testing.
    (c) A railroad is primarily responsible for compliance with the
random alcohol and drug testing of this subpart, but FRA reserves the
right to bring an enforcement action for noncompliance against the
railroad, its service agents, its contractors, and/or its employees.
    (d) If a railroad conducts random drug and/or alcohol testing
through a C/TPA, the number of employees required to be tested may be
calculated for each individual railroad belonging to the C/TPA, or may
be based on the total number of regulated employees covered by the C/
TPA in a larger combined railroad or DOT agency random pool. Selections
from combined railroad random pools must meet or exceed the highest
minimum annual percentage rate established under this subpart or any
DOT agency drug testing rule that applies to any member of that pool.

Sec.  219.623  Records.

    (a) As provided by Sec.  219.901, each railroad is required to
maintain records related to random testing for a minimum of two years.
    (b) Contractors and service agents performing random testing
responsibilities under this subpart must provide records required by
this subpart whenever requested by the contracting railroad or by FRA.
A railroad remains responsible for maintaining records demonstrating
that it is in compliance with the requirements of this subpart.

Sec.  219.625  FRA Administrator's determination of random alcohol and
drug testing rates.

    (a) Notice. Each year, the Administrator publishes a Federal
Register notice announcing the minimum annual random alcohol and drug
testing rates which take effect on January 1 of the following calendar
year. These rates are based on the railroad industry's random testing
violation rates for the preceding two consecutive calendar years, which
are determined using annual railroad alcohol and drug program data
required to be submitted to the FRA's Management Information System
(MIS) under Sec.  219.800.
    (b) Information. Data from MIS reports provide the information used
for this determination. In order to ensure reliability of the data, the
Administrator may consider the quality and completeness of the reported
data, obtain additional information or reports from railroads, or make
appropriate modifications in calculating the industry positive rate.
    (c) Initial minimum annual random testing rates. The Administrator
has established an initial minimum annual random testing rate of 50
percent for drugs and 25 percent for alcohol for any new category of
regulated employees added to those already being tested under this
part.
    (1) These initial testing rates are subject to amendment by the
Administrator in accordance with paragraphs (d) and (e) of this section
after at least 18 months of MIS data have been compiled for the new
category of regulated employees.
    (2) The Administrator will determine separate minimum annual random
testing rates for each added category of regulated employees for a
minimum of three calendar years after that category is incorporated
into random testing under this part.
    (3) The Administrator may move to combine categories of regulated
employees requiring separate determinations into a single determination
once the categories' testing rates are identical for two consecutive
years.
    (d) Drug testing rate. The Administrator may set the minimum annual
random drug testing rate for the railroad industry at either 50 percent
or 25 percent.
    (1) When the minimum annual percentage rate for random drug testing
is 50 percent, the Administrator may lower the rate to 25 percent if
the Administrator determines that the MIS data for two consecutive
calendar years show that the reported random testing positive rate is
less than 1.0 percent.
    (2) When the minimum annual percentage rate for random drug testing
is 25 percent, and the MIS data for any calendar year show that the
reported random testing positive rate is equal to or greater than 1.0
percent, the Administrator will increase the minimum annual percentage
rate for random drug testing to 50 percent.
    (e) Alcohol testing rate. The Administrator may set the minimum
annual random alcohol testing rate for the railroad industry at 50
percent, 25 percent, or 10 percent.
    (1) When the minimum annual percentage rate for random alcohol
testing is 50 percent or 25 percent, the Administrator may lower this
rate to 10 percent if the Administrator determines that the MIS data
for two consecutive calendar years show that the random testing
violation rate is less than 0.5 percent.
    (2) When the minimum annual percentage rate for random alcohol
testing is 50 percent, the Administrator may lower the rate to 25
percent if the Administrator determines that the MIS data for two
consecutive calendar years show that the random testing violation rate
is less than 1.0 percent but equal to or greater than 0.5 percent.
    (3) When the minimum annual percentage rate for random alcohol
testing is 25 percent, and the MIS data for that calendar year show
that the random testing violation rate for drugs is equal to or greater
than 0.5 percent but less than 1.0 percent, the Administrator will
increase the minimum annual percentage rate for random drug testing to
50 percent.
    (4) When the minimum annual percentage rate for random alcohol
testing is 10 percent or 25 percent, and the MIS data for any calendar
year show that the random testing violation rate is equal to or greater
than 1.0 percent, the Administrator will increase the minimum annual
percentage rate for random alcohol testing to 50 percent.

Subpart H--Drug and Alcohol Testing Procedures

Sec.  219.701  [Amended]

0
31. Revise Sec.  219.701 by:
0
a. In paragraphs (a) and (b), removing the phrase ``B, D, F, and G''
wherever it appears and adding, in its place, ``B, D, E, F, G, and K
(but only for co-worker or non-peer referrals that involve a violation
of the prohibitions of this subpart)''; and
0
b. Removing paragraph (c).

Subpart I--Annual Report

0
32. In Sec.  219.800, revise the last sentence of paragraph (b) and the
first sentence of paragraph (d) and add a new paragraph (f) to read as
follows:

Sec.  219.800  Annual reports.

* * * * *
    (b) * * * For information on where to submit MIS forms and for the
electronic version of the form, see: http://www.fra.dot.gov/eLib/details/L02639.
* * * * *
    (d) As a railroad, if you have a regulated employee who performs
multi-DOT agency functions (e.g., an employee drives a commercial motor
vehicle and performs switchman duties for you), count the employee only
on the MIS report for the DOT agency under which he or she is random
tested. * * *
* * * * *
    (f) A railroad required to submit an MIS report under this section
must submit separate reports for covered employees and MOW employees.

Subpart J--Recordkeeping Requirements

0
33. Revise Sec.  219.901 to read as follows:

Sec.  219.901  Retention of alcohol and drug testing records.

    (a) General. (1) In addition to the records part 40 of this title
requires keeping, a railroad must also maintain alcohol and drug misuse
prevention program records in a secure location with controlled access
under this section's requirements.
    (2) A railroad must maintain for two years, rather than one year,
the records to which Sec.  40.333(a)(4) of this title applies (i.e.,
records of negative and cancelled drug test results and alcohol test
results with a concentration of less than 0.02). A railroad may
maintain legible and accessible scanned or electronic copies of these
records for the second year.
    (b) Records maintained for a minimum of five years. Each railroad
must maintain the following records for a minimum of five years:
    (1) A summary record or the individual files of each regulated
employee's test results; and
    (2) A copy of the annual report summarizing the results of its
alcohol and drug misuse prevention program (if required to submit the
report under Sec.  219.800(a)).
    (c) Records maintained for a minimum of two years. Each railroad
must maintain the following records for a minimum of two years:
    (1) Records related to the collection process:
    (i) Collection logbooks, if used;
    (ii) Documents relating to the random selection process, including
the railroad's approved random testing plan and FRA's approval letter
for that plan;
    (iii) Documents generated in connection with decisions to
administer Federal reasonable suspicion or reasonable cause alcohol or
drug tests;
    (iv) Documents generated in connection with decisions on post-
accident testing; and
    (v) Documents verifying the existence of a medical explanation for
the inability of a regulated employee to provide an adequate specimen;
    (2) Records related to test results:
    (i) The railroad's copy of the alcohol test form, including the
results of the test;
    (ii) The railroad's copy of the drug test custody and control form,
including the results of the test;
    (iii) Documents related to any regulated employee's refusal to
submit to an alcohol or drug test required under this part; and
    (iv) Documents a regulated employee presented to dispute the result
of an alcohol or drug test administered under this part;
    (3) Records related to other violations of this part; and
    (4) Records related to employee training:
    (i) Materials on alcohol and drug abuse awareness, including a copy
of the railroad's policy on alcohol and drug abuse;
    (ii) Documentation of compliance with the requirements of Sec.
219.23; and
    (iii) Documentation of training (including attendance records and
training materials) the railroad provided to supervisors for the
purpose of qualifying the supervisors to make a determination
concerning the need for reasonable suspicion or post-accident alcohol
and drug testing.

0
34. Revise Sec.  219.903 to read as follows:

Sec.  219.903  Access to facilities and records.

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

Sec.  219.905  [Removed and Reserved]

0
35. Remove and reserve Sec.  219.905.

0
36. Add a new subpart K to read as follows:

Subpart K--Referral Programs

Sec.
219.1001 Requirement for referral programs.
219.1003 Referral program conditions.
219.1005 Optional provisions.
219.1007 Alternate programs.

Subpart K--Referral Programs

Sec.  219.1001  Requirement for referral programs.

    (a) The purpose of this subpart is to help prevent the adverse
effects of drug and alcohol abuse in connection with regulated
employees.
    (b) A railroad must adopt, publish, and implement the following
programs:
    (1) Self-referral program. A program designed to encourage and
facilitate the identification of a regulated employee who abuses drugs
or alcohol by providing the employee the opportunity to obtain
counseling or treatment before the employee's drug or alcohol abuse
manifests itself in a detected violation of this part; and
    (2) Co-worker referral program. A program designed to encourage co-
worker participation in preventing violations of this part.
    (c) A railroad may adopt, publish, and implement the following
programs:
    (1) Non-peer referral program. A program designed to encourage non-
peer participation in preventing violations of this part; and

    (2) Alternate program(s). An alternate program or programs meeting
the specific requirements of Sec.  219.1003 or complying with Sec.
219.1007, or both.
    (d) Nothing in this subpart may be construed to:
    (1) Require payment of compensation for any period a regulated
employee is restricted from performing regulated service under a
voluntary, co-worker, or non-peer referral program;
    (2) Require a railroad to adhere to a voluntary, co-worker, or non-
peer referral program when the referral is made for the purpose, or
with the effect, of anticipating or avoiding the imminent and probable
detection of a rule violation by a supervising employee;
    (3) Interfere with the subpart D requirement for Federal reasonable
suspicion testing when a regulated employee is on duty and a supervisor
determines the employee is exhibiting signs and symptoms of alcohol
and/or drug use;
    (4) Interfere with the requirements in Sec.  219.104(d) for
responsive action when a violation of Sec.  219.101 or Sec.  219.102 is
substantiated; or
    (5) Limit the discretion of a railroad to dismiss or otherwise
discipline a regulated employee for specific rule violations or
criminal offenses, except as this subpart specifically provides.

Sec.  219.1003  Referral program conditions.

    (a) General. A referral program must specify the allowances,
conditions, and procedures under which a self-referral, co-worker
referral, and, if adopted, a non-peer referral, can occur, as follows:
    (1) For a self-referral, a railroad must identify one or more
designated DAC contacts (including telephone number and email (if
available)) and any expectations regarding when the referral is allowed
to take place (such as during non-duty hours, or while the employee is
unimpaired, or both, as Sec.  219.1005 permits);
    (2) For a co-worker referral, a railroad may accept a referral
under this subpart only if it alleges that the regulated employee was
apparently unsafe to work with or in violation of this part or the
railroad's drug and alcohol abuse rules. The employee must waive
investigation of the rule charge and must contact the DAC within a
reasonable period of time;
    (3) For a non-peer referral, a railroad may remove a regulated
employee from service only if a railroad representative confirms that
the employee is unsafe to work with or in violation of this part or the
railroad's drug and alcohol abuse rules. The employee must waive
investigation of the rule charge and must contact the DAC within a
reasonable period of time.
    (b) Employment maintained. A regulated employee who is affected by
a drug or alcohol abuse problem may maintain an employment relationship
with a railroad if:
    (1) The employee seeks assistance through the railroad's voluntary
referral program for his or her drug or alcohol abuse problem or a co-
worker or a non-peer refers the employee for such assistance; and
    (2) The employee successfully completes the education, counseling,
or treatment program a DAC specifies under this subpart.
    (c) Employment action. If a regulated employee does not choose to
seek assistance through a referral program, or fails to cooperate with
a DAC's recommended program, the disposition of the employee's
relationship with the railroad is subject to normal employment action.
    (d) Qualified DAC evaluation. (1) A DAC acceptable to the railroad
must evaluate a regulated employee entering a self-referral, co-worker
referral, or non-peer referral program;
    (2) The DAC must meet any applicable state standards and comply
with this subpart; and
    (3) The DAC must determine the appropriate level of care
(education, counseling, or treatment, or all three) necessary to
resolve any identified drug or alcohol abuse problems.
    (e) Removal from regulated service. A referral program must
stipulate that a regulated employee a DAC has evaluated as having an
active drug abuse disorder may not perform regulated service until the
DAC can report that safety is no longer affected.
    (f) Confidentiality maintained. Except as provided under paragraph
(l) of this section, a railroad must treat a regulated employee's
referral and subsequent handling (including education, counseling, and
treatment) as confidential. Only personnel who administer the
railroad's referral programs may have access to the identities of the
individuals in these programs.
    (g) Leave of absence. A railroad must grant a regulated employee
the minimum leave of absence the DAC recommends to complete a primary
education, counseling, or treatment program and to establish control
over the employee's drug or alcohol abuse problem.
    (h) Return to regulated service. (1) Except as Sec. Sec.
219.1001(d)(4) and 219.1005 may provide, a railroad must return an
regulated employee to regulated service upon the DAC's recommendation
that the employee has established control over his or her drug or
alcohol abuse problem, has a low risk to return to drug or alcohol
abuse, and has complied with any recommended return-to-service
requirements.
    (2) The DAC determines the appropriate number and frequency of
required follow-up tests. The railroad determines the dates of testing.
    (3) The railroad may condition an employee's return to regulated
service on successful completion of a return-to-service medical
evaluation.
    (4) A railroad must return an employee to regulated service within
five working days of the DAC's notification to the railroad that the
employee is fit to return to regulated service, unless the employee has
a disqualifying medical condition. (i.e., the employee is at a low risk
to return to drug or alcohol abuse).
    (i) Rehabilitation plan. No person--whether an employing railroad,
managed care provider, service agent, individual, or any person other
than the DAC who conducted the initial evaluation--may change in any
way the DAC's evaluation or recommendations for assistance. The DAC who
made the initial evaluation may modify the employee's initial
evaluation and follow-up recommendation(s) based on new or additional
information.
    (j) Locomotive engineers and conductors. Consistent with Sec. Sec.
240.119(e) and 242.115(g) of this chapter, for a certified locomotive
engineer, certified conductor, or a candidate for engineer or conductor
certification, the referral program must state that confidentiality is
waived (to the extent the railroad receives from a DAC official notice
of the active drug abuse disorder and suspends or revokes the
certification, as appropriate) if the employee at any time refuses to
cooperate in a recommended course of counseling or treatment.
    (k) Contacting a DAC. If a regulated employee does not contact a
DAC within the railroad's specified time limits, the railroad may begin
an investigation to assess the employee's cooperation and compliance
with its referral program.
    (l) Time requirements for DAC evaluations. Once a regulated
employee has contacted the designated DAC, the DAC's evaluation must be
completed within 10 working days. If the employee needs more than one
evaluation, the evaluations must be completed within 20 working days.
    (m) Time limitations on follow-up treatment, care, or testing. Any
follow-up treatment, care, or testing established under a referral
program must not

exceed 24 months beyond an regulated employee's initial removal from
regulated service, unless the regulated employee's entry into the
program involved a substantiated part 219 violation.

Sec.  219.1005  Optional provisions.

    A railroad's referral program may include any of the following
provisions at the option of the railroad and with the approval of the
labor organization(s) affected:
    (a) The program may provide that the rule of confidentiality is
waived if:
    (1) The regulated employee at any time refuses to cooperate in a
DAC's recommended course of education, counseling, or treatment; or
    (2) The railroad determines, after investigation, that the
regulated employee has been involved in a drug- or alcohol-related
disciplinary offense growing out of subsequent conduct.
    (b) The program may require successful completion of a return-to-
service medical examination as a further condition of reinstatement in
regulated service.
    (c) The program may provide that it does not apply to a regulated
employee whom the railroad has previously assisted under a program
substantially consistent with this section.
    (d) The program may provide that, in order to invoke its benefits,
the regulated employee must report to the railroad's designated contact
either:
    (1) During non-duty hours (i.e., at a time when the regulated
employee is off duty); or
    (2) While unimpaired and otherwise in compliance with the
railroad's drug and alcohol rules consistent with this subpart.

Sec.  219.1007  Alternate programs.

    (a) Instead of the referral programs required under Sec.  219.1001,
a railroad is permitted to develop, publish, and implement alternate
programs that meet the standards established in Sec.  219.1001. Such
programs must have the written concurrence of the recognized
representatives of the regulated employees. Nothing in this subpart
restricts a railroad or labor organization from adopting, publishing,
and implementing programs that afford more favorable conditions to
regulated employees troubled by drug or alcohol abuse problems,
consistent with a railroad's responsibility to prevent violations of
Sec. Sec.  219.101, 219.102, and 219.103.
    (b) The concurrence of the recognized representatives of the
regulated employees in an alternate program may be evidenced by a
collective bargaining agreement or any other document describing the
class or craft of employees to which the alternate program applies. The
agreement or other document must make express reference to this subpart
and to the intention of the railroad and employee representatives that
the alternate program applies instead of the program required by this
subpart.
    (c) The railroad must file the agreement or other document
described in paragraph (b) of this section along with the requested
alternate program it submits for approval with the FRA Drug and Alcohol
Program Manager. FRA will base its approval on whether the alternative
program meets the Sec.  219.1001 objectives. The alternative program
does not have to include each Sec.  219.1001 component, but must meet
the general standards and intent of Sec.  219.1001. If a railroad
amends or revokes an approved alternate policy, the railroad must file
a notice with FRA of such amendment or revocation at least 30 days
before the effective date of such action.
    (d) This section does not excuse a railroad from adopting,
publishing, and implementing the programs Sec.  219.1001 requires for
any group of regulated employees not falling within the coverage of an
appropriate, approved alternate program.
    (e) Consistent with Sec.  219.105(c), FRA has the authority to
inspect the aggregate data of any railroad alcohol and/or drug use
education, prevention, identification, and rehabilitation program or
policy, including alternate peer support programs, to ensure that they
are not designed or implemented in such a way that they circumvent or
otherwise undermine Federal requirements, including the requirements in
this part regarding peer support programs.

0
37. Revise appendix A to read as follows:

Appendix A to Part 219--Schedule of Penalties

    The following chart lists the schedule of civil penalties:

                          Penalty Schedule \1\
------------------------------------------------------------------------
                                                              Willful
               Section \2\                   Violation       violation
------------------------------------------------------------------------
                           Subpart A--General
------------------------------------------------------------------------
219.3 Application:
    (a) Railroad or contractor does not           $5,000          $7,500
     have required program..............
    (c) Railroad or contractor                     2,500           5,000
     improperly tests under subpart E or
     G of this part.....................
219.9 Responsibility for compliance:
    (b)(1) Host railroad failed to take            5,000           7,500
     responsibility for compliance or
     other railroad or contractor did
     not take responsive action of
     direction of host railroad during
     joint operations...................
219.11 General conditions for chemical
 tests:
    (b)(1) Employee unlawfully refuses             2,500           5,000
     to participate in testing..........
    (b)(2) Employer fails to give                  3,000           8,000
     priority to medical treatment......
    (b)(3) Employee fails to remain                2,500           5,000
     available..........................
    (d) Employee unlawfully required to            2,500           5,000
     execute a waiver of rights.........
    (e)(1) Failure to direct employee to           2,500           5,000
     proceed to collection site as soon
     as possible without affecting
     safety.............................
    (e)(3) Railroad used or authorized             5,000           7,500
     the use of coercion to obtain
     specimens..........................
    (g) Failure to meet supervisory                2,500           5,000
     training requirements or program of
     instruction not available or
     program not complete...............
    (h) Urine or blood specimens                   2,500           5,000
     provided for Federal testing were
     used for non-authorized testing....
219.12 Hours-of-service laws
 implications:
    (a)-(d) Failure to exceed Hours of             2,500           5,000
     Service to conduct required testing
     or exceeding HOS when not
     authorized to conduct testing......
219.23 Railroad policies:
    (a) Failure to provide written                 1,000           4,000
     notice of FRA test.................
    (a)(1) Failure to provide written              1,000           4,000
     notice of basis for FRA test.......

    (a)(2) Use of a non-approved FRA               1,000           4,000
     form for mandatory post-accident
     toxicological testing..............
    (b) Improper use of Federal drug or            1,000           4,000
     alcohol testing form or use of
     Subpart C form for other test......
    (c) Failure to make required                   2,500           5,000
     educational materials available....
    (d) Failure to provide required                2,500           5,000
     minimum educational content........
    (e) Non-Federal provisions are not             2,500           5,000
     clearly described as independent
     authority..........................
219.25 Previous employer drug and
 alcohol checks:
    (a)(1)Failure to conduct previous              2,500           5,000
     employer drug and alcohol check or
     failure to provide response to
     previous employer when requested...
    (a)(2) Failure to perform and                  2,500           5,000
     complete FRA and DOT-required
     background checks in a timely
     manner.............................
    (a)(3) Failure to document due                 2,500           5,000
     diligence in completing FRA and DOT-
     required background checks.........
    (b) Failure to comply with Sec.                2,500           5,000
     240.119(c) (for engineers) or Sec.
      242.115(e) (for conductors) of
     this chapter regarding the
     consideration of Federal alcohol
     and drug violations that occurred
     within a period of 60 consecutive
     months prior to the review of the
     person's records...................
------------------------------------------------------------------------
                         Subpart B--Prohibitions
------------------------------------------------------------------------
219.101 Alcohol and drug use prohibited:
    (a) Railroad with actual knowledge    ..............          10,000
     of use, possession or impairment
     from alcohol or controlled
     substances permits employee to go
     on duty or remain on duty..........
219.103 Prescribed and over-the-counter
 drugs:
    (a) Failure to train employee                  2,500           5,000
     properly on requirements...........
219.104 Responsive action:
    (a) Failure to remove employee from            5,000           7,500
     regulated service immediately......
    (b) Failure to provide written                 2,500           5,000
     notice for removal.................
    (c) Failure to provide prompt                  2,500           5,000
     hearing within 10 calendar days....
    (d) Employee improperly returned to            5,000           7,500
     regulated service..................
    (e) Failure to ensure certified                2,500           5,000
     locomotive engineers and conductors
     received required follow-up testing
     minimums as per Sec.
     240.119(d)(2) and Sec.
     242.115(f)(2) of this chapter......
219.105 Railroad's duty to prevent
 violations:
    (a) Employee improperly permitted to           7,500          10,000
     remain in regulated service........
    (b) Failure to exercise due                    5,000           7,500
     diligence to assure compliance with
     prohibition........................
    (d) Failure to conduct and record              2,500           5,000
     minimum number of Rule G
     observations.......................
219.107 Consequences of unlawful
 refusal:
    (a) Failure to disqualify an                   5,000           7,500
     employee for nine months following
     a refusal..........................
    (b) Fail to provide written notice             2,500           5,000
     of withdrawal to employee..........
    (c) Employee unlawfully returned to            5,000           7,500
     service............................
------------------------------------------------------------------------
             Subpart C--Post-Accident Toxicological Testing
------------------------------------------------------------------------
219.201 Events for which testing is
 required:
    (a) Failure to test after qualifying           5,000           7,500
     event (each regulated employee not
     tested is a violation).............
    (c)(1)(i) Failure to make good faith           5,000           7,500
     determination......................
    (c)(1)(ii) Failure to provide                  2,500           5,000
     requested decision report to FRA...
    (c)(2) Testing performed after non-            5,000          10,000
     qualifying event...................
219.203 Responsibilities of railroads
 and employees:
    (a)(1)(i) and (a)(2)(i) Failure to             5,000           7,500
     properly test/exclude from testing.
    (a)(1)(ii) and (a)(2)(ii) Non-                 5,000           7,500
     regulated service employee tested..
    (b)(1) Delay in obtaining specimens            2,500           5,000
     due to failure to make every
     reasonable effort..................
    (c) Independent medical facility not           2,500           5,000
     utilized...........................
    (d) Failure to report event or                 1,000           3,000
     contact FRA when intervention
     required...........................
    (d)(1) Failure to collect specimens            2,500           5,000
     in a timely manner.................
    (e)(2) Failure to recall employee              2,500           5,000
     for testing when conditions met....
    (e)(5) Failure to document why                 2,500           5,000
     employee could not be recalled.....
    (f)(1) Specimen collection not                 2,500           5,000
     completed at an independent medical
     facility...........................
219.205 Specimen collection and
 handling:
    (a) Failure to observe requirements            2,500           5,000
     with respect to specimen
     collection, marking and handling...
    (b) Failure to provide properly                2,500           5,000
     prepared forms with specimens......
    (d) Failure to promptly or properly            2,500           5,000
     forward specimens..................
219.207 Fatality:
    (a) Failure to collect specimens....           5,000           7,500
    (a)(1) Failure to ensure timely                2,500           5,000
     collection and shipment of required
     specimens..........................
    (b) Failure to request assistance              2,500           5,000
     when necessary.....................
219.209 Reports of tests and refusals:
    (a)(1) Failure to provide telephonic           1,000           2,000
     report.............................
    (b) Failure to provide written                 1,000           2,000
     report of refusal to test..........
    (c) Failure to maintain report                 1,000           2,000
     explaining why test not conducted
     within 4 hours.....................
219.211 Analysis and follow-up:
    (c) Failure of the MRO to report MRO           2,500           5,000
     downgrades and/or verified non-
     negative results to FRA in a timely
     manner.............................
    (g)(3) Unauthorized withholding of             2,500           5,000
     regulated employee out of regulated
     service pending receipt of PAT
     testing results....................
------------------------------------------------------------------------

                 Subpart D--Reasonable Suspicion Testing
------------------------------------------------------------------------
219.301 Mandatory reasonable suspicion
 testing:
    (a) Failure to conduct breath                  5,000           7,500
     alcohol test when reasonable
     suspicion testing criteria met or
     conduct breath alcohol test under
     reasonable suspicion when criteria
     not met............................
    (b) Failure to conduct drug test               5,000           7,500
     when reasonable suspicion testing
     criteria met or conduct drug test
     under reasonable suspicion when
     criteria not met...................
219.303 Testing when reasonable
 suspicion criteria not met:
    (a) Failure to use a trained                   2,500           5,000
     supervisor when conducting a
     reasonable suspicion determination
     for alcohol........................
    (b) Failure to use two supervisors,            2,500           5,000
     one of which must have been
     trained, when conducting a
     reasonable suspicion determination
     for drugs..........................
    (c) Improperly holding employee out            2,500           5,000
     of service.........................
    (d) Failure to provide adequate                2,500           5,000
     written documentation for the
     reasons for a reasonable suspicion
     test...............................
219.305 Prompt specimen collections;
 time limitations:
    (a) Fail to promptly conduct test...           2,500           5,000
    (b) Failure to document why test not           2,500           5,000
     administered within time limits....
    (c) Improper recall of employee.....           2,500           5,000
------------------------------------------------------------------------
                   Subpart E--Reasonable Cause Testing
------------------------------------------------------------------------
219.401 Authorization for reasonable
 cause testing:
    (a) Failure to declare which                   2,500           5,000
     authority (Federal or company) is
     being used for reasonable cause
     testing............................
    (b) Testing conducted after                    2,500           5,000
     regulated employee is released from
     duty...............................
219.403 Requirements for reasonable
 cause testing:
    (a) Testing when event did not meet            2,500           5,000
     the criteria for train accident or
     train incident.....................
    (b) Testing when event did not meet            2,500           5,000
     the criteria for rule violation....
219.405 Documentation requirements:
    (a) Failure to provide adequate                1,000           2,500
     written documentation for the
     reasons for a reasonable cause test
    (b) Failure to document specific               1,000           2,500
     type of rule violation and the
     involvement of each tested
     regulated employee.................
219.407 Prompt Specimen Collection; Time
 Limitations:
    (a) Failure to perform a test in a             2,500           5,000
     timely.............................
    (b) Failure to document why test not           1,000           2,500
     administered within time limits....
    (c) Improper recall of employee.....           2,500           5,000
219.409 Limitations on authority:
    (b) Improper withholding of                    2,500           5,000
     regulated employee from regulated
     service pending test results.......
------------------------------------------------------------------------
                     Subpart F--Pre-Employment Tests
------------------------------------------------------------------------
219.501 Pre-employment drug testing:
    (a) Failure to conduct a Federal pre-          2,500           5,000
     employment test before a final
     applicant or employee transfer
     performs regulated service.........
    (b) Failure to conduct a Federal pre-          2,500           5,000
     employment test before an employee
     of a contractor performs regulated
     service............................
    (e) Pre-employment testing of                  1,000           2,500
     grandfathered regulated employee...
219.502 Pre-employment alcohol testing:
    (a)(1) Failure to conduct alcohol              2,500           5,000
     testing of a regulated employee
     after choosing to perform Federal
     pre-employment alcohol testing.....
    (a)(2) Failure to treat all                    2,500           5,000
     regulated employees the same for
     purposes of Federal pre-employment
     alcohol testing....................
219.503 Notification; records:
    Failure to notify the applicant in             1,000           2,500
     writing of non-negative test
     results or refusal.................
------------------------------------------------------------------------
           Subpart G--Random Alcohol and Drug Testing Programs
------------------------------------------------------------------------
219.601 Purpose and scope of random
 testing programs:
    (b) Failure to ensure regulated                2,500           5,000
     employee is subject to random
     testing............................
    (c) Contractor or volunteer not                2,500           5,000
     included in random testing while
     subject to performing regulated
     service............................
    (d)(1) Regulated employee not                  2,500           5,000
     subject to random testing at
     minimum rate set by agency covering
     more than 50% of employee's
     regulated functions................
219.605 Submission and approval of
 random testing plans:
    (a)(1) Failure to obtain FRA                   2,500           5,000
     approval of random testing program.
    (c) Failure to implement random                2,500           5,000
     testing plan within 30 days of
     notification of FRA approval.......
    (d)(1) Failure to implement                    2,500           5,000
     substantive plan amendment within
     30 days of notification of FRA
     approval, or failure to obtain FRA
     approval before implementing
     substantive plan amendment before
     implementation.....................
    (d)(2) Failure to submit non-                  2,500           5,000
     substantive plan amendment before
     implementation.....................
219.607 Requirements for random testing
 plans:
    (a) Railroad implementation failed             2,500           5,000
     to comply with approved plan.......
    (c) Failure to contain required plan           2,500           5,000
     elements...........................
219.609 Inclusion of contractor
 employees and volunteers in random
 testing plans:
    (a) Failure to demonstrate that                2,500           5,000
     regulated service contractor
     employees and volunteers are
     subject to random testing..........

    (c) Failure to ensure regulated                2,500           5,000
     service contractor and volunteers
     are tested in accordance with this
     subpart............................
219.611 Random drug and alcohol and drug
 testing pools:
    (a) Failure of railroad to ensure              2,500           5,000
     that all regulated employees
     including contractors and
     volunteers are included in random
     testing pools......................
    (b)(2) Improper criteria for pool              2,500           5,000
     entries which allows for employer
     discretion over who is to be tested
    (b)(3) Failure to construct and                2,500           5,000
     maintain pool entries that will
     ensure regulated employees have an
     equal chance of being selected
     randomly for each draw.............
    (c) Maintaining a random testing               2,500           5,000
     pool with less than four pool
     entries............................
    (d)(1) Failure to ensure that pools            2,500           5,000
     do not contain non-regulated
     employees..........................
    (d)(2) Regulated employee included             2,500           5,000
     in more than one DOT random pool...
    (d)(3) Failure to maintain pools and/          2,500           5,000
     or pool entries that meet FRA/DOT
     regulations........................
    (d)(5) Failure to add or remove                2,500           5,000
     regulated employees to or from the
     proper random pool in a timely
     manner.............................
    (e)(2) Failure to remove employees             2,500           5,000
     who perform de minimis service from
     pools which include employees who
     perform regulated service on a
     regular basis......................
    (f) Failure to have an effective               2,500           5,000
     mechanism to update and maintain
     pools..............................
219.613 Random testing selections:
    (b)(1) Failure to use an FRA-                  2,500           5,000
     acceptable selection procedure.....
    (b)(2) Failure to ensure every                 2,500           5,000
     regulated employee has an equal
     chance at being selected at each
     draw...............................
    (b)(3) Failure to have necessary               2,500           5,000
     documentation verifying the
     selection process for testing
     window.............................
    (c)(1) Failure to select pool                  2,500           5,000
     entries at a rate which ensures
     compliance with FRA required random
     rates or fail to reasonably
     distribute selections throughout
     the selection year.................
    (d) Railroad failed to select at               2,500           5,000
     least one entry from each of its
     random testing pools every three
     months.............................
    (e) Railroad discarded selection               2,500           5,000
     draws without an acceptable
     explanation........................
    (g) Failure to capture and maintain            2,500           5,000
     electronic or hard copy snapshot of
     each random testing pool at the
     time it makes a testing selection..
219.615 Random testing collections:
    (a) Failure to comply with minimum             2,500           5,000
     annual random collection testing
     rates..............................
    (b) Failure to test selections                 2,500           5,000
     within the approved testing window.
    (c)(1) Testing a regulated employee            2,500           5,000
     while not on duty or testing a
     regulated employee not randomly
     selected or testing a non-regulated
     employee...........................
    (c)(2) Failure to distribute                   2,500           5,000
     collections reasonably throughout
     all shifts, days of the week, weeks
     of the month, and months of the
     year...............................
    (c)(3) Failure to perform at least             2,500           5,000
     10% of its random alcohol tests at
     the beginning of shifts and at
     least 10% of random alcohol tests
     at the end of shifts...............
    (e)(1) Advance notification given to           2,500           5,000
     employees selected for testing.....
    (e)(2) Fail to begin collection                2,500           5,000
     within two hours of notice of
     random selection without an
     acceptable reason for the delay....
    (f) Failure to test a selection                2,500           5,000