[Code of Federal Regulations]

[Title 49, Volume 4]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR219.601]



[Page 236-238]

 

                        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



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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 238]]



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]