Ms. Victoria Chin
Leonard, Nathan, Zuckerman, Ross, Chin & Remar
1330 Broadway, Suite 1450
Oakland, CA 94612

Dear Ms. Chin:

Thank you for your letter regarding the Federal Transit Administration's (FTA) post-accident drug and alcohol testing regulations (49 CFR Parts 653 and 654). You request clarification as to the circumstances under which removal of a rail vehicle from service triggers alcohol or drug testing.

As you note, removal of a vehicle from service does not by itself trigger post-accident testing under the rules. FTA 's rules define an accident in the context of rail service as "an occurrence associated with the operation of a vehicle, if as a result--(1) An individual dies; (2) An individual suffers a bodily injury and immediately receives medical treatment away from the scene of the accident; . . . ; or (4) . . . the mass transit vehicle is removed from revenue service." 49 CFR §§ 653.7, 654.7.

After a non-fatal accident, the employer must test the operator of a rail vehicle unless the employer determines that the operator's performance can be completely discounted as a contributing factor to the accident. 49 CFR §§ 653.45, 654.33. Thus, unless an employer makes that determination, testing is required after a non-fatal accident if either an injury has occurred requiring treatment away from the scene or the vehicle has been removed from revenue service.

If you have any additional questions, please contact Kristin O'Grady or Nancy Zaczek at (202) 366-4011.

Very truly yours,
Berle M. Schiller
Chief Counsel