[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR219.601]

[Page 233-235]
 
                        TITLE 49--TRANSPORTATION
 
       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 
                             TRANSPORTATION
 
PART 219_CONTROL OF ALCOHOL AND DRUG USE--Table of Contents
 
           Subpart G_Random Alcohol and Drug Testing Programs
 
Sec. 219.601  Railroad random drug testing programs.


    (a) Submission. Each railroad must submit for FRA approval a random 
testing program meeting the requirements of this subpart. A railroad 
commencing operations must submit such a program not later than 30 days 
prior to such commencement. The program must be submitted to the 
Associate Administrator for Safety, FRA, for review and approval by the 
FRA Administrator. If, after approval, a railroad desires to amend the 
random testing program implemented under this subpart, the railroad must 
file with FRA a notice of such amendment at least 30 days prior to the 
intended effective date of such action. A railroad already subject to 
this subpart that becomes subject to this subpart with respect to one or 
more additional employees must amend its program not later than 60 days 
after these employees become

[[Page 234]]

subject to this subpart and file with FRA a notice of such amendment at 
least 30 days prior to the intended effective date of such action. A 
program responsive to the requirements of this section or any amendment 
to the program may not be implemented prior to approval.
    (b) Form of programs. Random testing programs submitted by or on 
behalf of each railroad under this subpart must meet the following 
criteria, and the railroad and its managers, supervisors, officials and 
other employees and agents must conform to such criteria in implementing 
the program:
    (1) Selection of covered employees for testing must be made by a 
method employing objective, neutral criteria which ensure that every 
covered employee has a substantially equal statistical chance of being 
selected within a specified time frame. The method may not permit 
subjective factors to play a role in selection, i.e., no employee may be 
selected as the result of the exercise of discretion by the railroad. 
The selection method must be capable of verification with respect to the 
randomness of the selection process, and any records necessary to 
document random selection must be retained for not less than 24 months 
from the date upon which the particular specimens were collected.
    (2)(i) The program must select for testing a sufficient number of 
employees so that, during the first 12 months--
    (A) The random testing program is spread reasonably through the 12-
month period.
    (B) [Reserved]
    (ii) To calculate the total number of covered employees eligible for 
random testing throughout the year, as a railroad, you must add the 
total number of covered employees eligible for testing during each 
random testing period for the year and divide that total by the number 
of random testing periods. Covered employees, and only covered 
employees, are to be in a railroad's random testing pool, and all 
covered employees must be in the random pool. If you are a railroad 
conducting random testing more often than once per month (e.g., you 
select daily, weekly, bi-weekly), you do not need to compute this total 
number of covered employees rate more than on a once per month basis.
    (iii) As a railroad, you may use a service agent (e.g., C/TPA) to 
perform random selections for you, and your covered employees may be 
part of a larger random testing pool of covered employees. However, you 
must ensure that the service agent you use is testing at the appropriate 
percentage established for your industry and that only covered employees 
are in the random testing pool.
    (3) Railroad random testing programs must ensure to the maximum 
extent practicable that each employee perceives the possibility that a 
random test may be required on any day the employee reports for work.
    (4) Notice of an employee's selection may not be provided until the 
duty tour in which testing is to be conducted, and then only so far in 
advance as is reasonably necessary to ensure the employee's presence at 
the time and place set for testing.
    (5) The program must include testing procedures and safeguards, and 
procedures for action based on positive test results, consistent with 
this part.
    (6) An employee must be subject to testing only while on duty. Only 
employees who perform covered service for the railroad are subject to 
testing under this part. In the case of employees who during some duty 
tours perform covered service and during others do not, the railroad 
program must specify the extent to which, and the circumstances under 
which they are to be subject to testing. To the extent practical within 
the limitations of this part and in the context of the railroad's 
operations, the railroad program must provide that employees are subject 
to the possibility of random testing on any day they actually perform 
covered service.
    (7) Each time an employee is notified for random drug testing the 
employee will be informed that selection was made on a random basis.
    (c) Approval. The Associate Administrator for Safety, FRA, will 
notify the railroad in writing whether the program is approved as 
consistent with the criteria set forth in this part. If the

[[Page 235]]

Associate Administrator for Safety determines that the program does not 
conform to those criteria, the Associate Administrator for Safety will 
inform the railroad of any matters preventing approval of the program, 
with specific explanation as to necessary revisions. The railroad must 
resubmit its program with the required revisions within 30 days of such 
notice. Failure to resubmit the program with the necessary revisions 
will be considered a failure to implement a program under this subpart.
    (d) Implementation. (1) No later than 45 days prior to commencement 
of random testing, the railroad must publish to each of its covered 
employees, individually, a written notice that he or she will be subject 
to random drug testing under this part. Such notice must state the date 
for commencement of the program, must state that the selection of 
employees for testing will be on a strictly random basis, must describe 
the consequences of a determination that the employee has violated Sec. 
219.102 or any applicable railroad rule, and must inform the employee of 
the employee's rights under subpart E of this part. A copy of the notice 
must be provided to each new covered employee on or before the 
employee's initial date of service. Since knowledge of Federal law is 
presumed, nothing in this paragraph (d)(1) creates a defense to a 
violation of Sec. 219.102.
    (2) A railroad commencing operations must submit a random testing 
program 60 days after doing so. The railroad must implement its approved 
random testing program not later than the expiration of 60 days from 
approval by the Administrator.

[66 FR 41973, Aug. 9, 2001, as amended at 68 FR 75463, Dec. 31, 2003]