dissenting:

I respectfully dissent.

The primary issue before this court is whether the district court correctly determined that the Federal Railroad Administration’s regulations requiring restraints to conduct blood or urine tests of crew members after serious accidents or incidents and authorizing the conduct of breath or urine tests, upon reasonable suspicion or upon an indication of a deficiency in an employee’s safety sensitive functions as a result of an employee’s involvement in certain accidents, incidents or rule violations, do not violate the fourth amendment. The district court concluded that, because railroads and railway employees are closely regulated by the government to promote public safety, the balance between this valid governmental interest and the right of an individual to be free from an invasion of privacy must be struck in favor of the regulatory scheme. I would affirm the district court’s judgment.

I

The majority has concluded that, notwithstanding that railroads are closely regulated industries, the exception to the requirement of a warrant and probable cause for searches involving closely regulated industries does not apply to the search of the *593 employees of such enterprises. The majority’s decision is in direct conflict with the Third Circuit’s opinion in Shoemaker v. Handel, 795 F.2d 1136 (3rd Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 577 , 93 L.Ed.2d 580 . In Shoemaker , the court held that warrantless breathalyzer and urine tests of voluntary participants in the highly regulated horse racing industry are reasonable under the fourth amendment. The majority in the instant matter attempt to distinguish Shoemaker on the ground that in the regulation of horse racing, jockeys are “the principal regulatory concern.” Majority op. at 585. In further support of its refusal to follow Shoemaker , the majority states, “[i]n contrast, the extensive regulation of the railroad industry is designed to guarantee the safety of employees and the public and to that end has always been geared to assuring the safety and proper maintenance of equipment and facilities.” Id.

Contrary to the majority’s argument, the government has a long tradition of regulating the conduct of railway personnel to promote public safety. The reason is obvious. An idle locomotive, sitting in the roundhouse, is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs. As early as 1907, for example, Congress set limits on the number of working hours industry personnel may undertake per day. 45 U.S.C. § 62 (a)(1) (1982). This legislation:

Atchison, T. & S.F. Ry. Co. v. United States, 244 U.S. 336, 342 , 37 S.Ct. 635, 637 , 61 L.Ed. 1175 (1917).

The government has promulgated a number of regulations which mandate safe working practices by railroad personnel. See e.g., 49 C.F.R. §§ 218.1-218.30 (1986) (requiring that workers follow certain prescribed safety procedures when co-workers are engaged on rail tracks); 49 C.F.R. § 218.37 (1986) (requiring that workers follow certain prescribed safety procedures when trains are running at reduced speeds); 49 C.F.R. § 220.61 (1986) (requiring certain prescribed safety procedures be followed when transmitting or receiving orders). Additionally, Congress has declared that railroad personnel can be held criminally liable for violating certain safety rules. See 49 U.S.C. § 1801 (1982) (providing criminal penalties from the knowing transportation of hazardous materials); see also 45 U.S.C. § 438 (1982) (criminal penalties for false entries in accident reports).

The majority also reasons that railroad workers, unlike jockeys, do not have diminished expectations of privacy with respect to their use of drugs or alcohol. Majority op. at 585. This argument ignores the fact that railway employees were subject to safety rules such as the one denominated as Rule G in the companion cases to this matter Brotherhood of Locomotive Eng’rs v. Burlington N. R.R. Co., 838 F.2d 1087 (9th Cir.1988) which, for a substantial period of time, have prohibited the use of alcohol and controlled substances by employees subject to duty or while on duty and required railway personnel suspected of use to submit to a blood or urine test to clear themselves of suspicion. See Brotherhood of Locomotive Eng’rs v. Burlington N. R.R. Co., 620 F.Supp. 163, 169-72 (D.Mont.1985).

Because the activities of railway personnel are closely regulated to promote safely, I would adopt the well-reasoned opinion in Shoemaker , and hold that the closely regulated industry exception to the requirement of a warrant and probable cause applies to blood, breath, and urine tests of railway employees under the specific circumstances prescribed in the regulations challenged in this action.

II

A search of a closely-regulated industry “will be deemed to be reasonable,” New York v. Burger, — U.S. —, 107 S.Ct. *594 2636, 2643 , 96 L.Ed.2d 601 (1987), if it meets the following three criteria:

Id. 107 S.Ct. at 2644 (quoting Donovan v. Dewey, 452 U.S. 594, 601-03 , 101 S.Ct. 2534, 2539-40 , 69 L.Ed.2d 262 (1981); see Balelo v. Baldrige, 724 F.2d 753, 764-65 (9th Cir.1984) (en banc), cert. denied, 467 U.S. 1252 , 104 S.Ct. 3536 , 82 L.Ed.2d 841 . The searches mandated by 49 C.F.R. § 219.201 satisfy this three-pronged test.

The government has a “substantial” interest in requiring that tests be conducted to assure that railroad employees avoid drug or alcohol use which might affect their ability to perform their jobs safely. Drug usage among railroad personnel has been implicated as a potential cause of numerous train accidents which resulted in injury and death. Two such accidents are noted in the companion cases to this matter, Brotherhood of Locomotive Eng’rs v. Burlington N. R.R. Co., 838 F.2d 1087 . These accidents caused seven deaths and over $3 million in property damage. These tragic events were not isolated incidents. They are two examples of a long line of alcohol or drug-related tragedies. See generally T. Manello & F. Seaman, Prevalence, Costs and Handling of Drinking Problems on Seven Railroads (Department of Transportation Report No. DOT-TSC-1375, 1979). The threat posed by alcohol and drug-related railroad accidents is particularly dangerous in light of the fact that extremely hazardous materials are often transported by rail. See generally National Transportation Safety Board, Pub. No. NTSB/RAR/83/05, Railroad Accident Report — Derailment of Illinois Central Gulf Railroad Freight Train Extra 9629 East (GS-2-28) and Release of Hazardous Materials at Livingston, Louisiana, September 28, 1982 (1983) (describing an alcohol- implicated train wreck which resulted in a chemical spill requiring the evacuation of a community of 3000 persons for a period of two weeks).

Second, warrantless inspections are “necessary to further [the] regulatory scheme.” Burger, 107 S.Ct. at 2644 (quoting Donovan, 452 U.S. at 600 , 101 S.Ct. at 2539 ). As the majority recognizes, “the exigencies of testing for the presence of alcohol and drugs in blood, urine or breath require prompt action which precludes obtaining a warrant.” Cf. Schmerber v. California, 384 U.S. 757, 770 , 86 S.Ct. 1826, 1835 , 16 L.Ed.2d 908 (1966) (sanctioning warrantless blood testing in drunk driving cases).

Finally, the testing procedures set out in the regulatory scheme “ ‘provid[e] ... constitutionally adequate substituted for a warrant.’ ” Burger, 107 S.Ct. at 2648 (quoting Donovan, 452 U.S. at 603 , 101 S.Ct. at 2540 ). 29 C.F.R. 219.201 mandates testing upon the occurrence of an accident or rule violation. Thus, railroad employees know “that the inspections to which ... [they are] subject do not constitute discretionary acts by ... officials] but are conducted pursuant to ...” regulation. Burger, 107 S.Ct. at 2648 .

The “ ‘time, place, and scope’ of the inspection[s]”, id. (quoting United States v. Biswell, 406 U.S. 311, 315 , 92 S.Ct. 1593, 1596 , 32 L.Ed.2d 87 (1972)), are brought within reasonable bounds by other provisions of the regulatory scheme. Under 49 C.F.R. § 219.205 (b), testing must take place “as soon as possible” after the occurrence of an event specified in section 219.-201. Under 49 C.F.R. §§ 219.205 (c) and 215.305(a), tests must be conducted by qualified independent medical personnel at independent medical facilities. Finally, regulations such as 49 C.F.R. § 219.307 (2)(b) limit the scope of testing to determining whether drugs or alcohol are present in the subject’s blood or urine.

*595 The blood and urine testing program clearly satisfies the three-pronged test established in Donovan and Burger . Accordingly, I would hold that the contested regulations do not violate the fourth amendment.

Ill

Reliance on the closely regulated industry exception to the fourth amendment requirement of a warrant and probable cause is not necessary to uphold the government’s regulations requiring blood and urine tests under carefully prescribed circumstances.

To survive traditional fourth amendment scrutiny, a search must be “reasonable.” O’Connor v. Ortega, — U.S. —, 107 S.Ct. 1492, 1502-03 , 94 L.Ed.2d 714 .

Id. 107 S.Ct. at 1503 (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 , 105 S.Ct. 733, 742-43 , 83 L.Ed.2d 720 (1985), and Terry v. Ohio, 392 U.S. 1, 20 , 88 S.Ct. 1868, 1879 , 20 L.Ed.2d 889 (1968)). The majority’s opinion in this matter is also in conflict with decisions of the Fifth Circuit, the Seventh Circuit, the Eighth Circuit, and the District of Columbia Circuit holding that government-compelled drug-testing programs were reasonable under the fourth amendment.

Whether a search is “justified at its inception,” involves a careful “ ‘balancing [of] the need to search ... against the invasion which the search ... entails.’ ” Terry, 392 U.S. at 21 , 88 S.Ct. at 1879 (1968) (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35 , 87 S.Ct. 1727, 1733-34 , 18 L.Ed.2d 930 (1967)). This balancing test was applied by the Fifth, Seventh, Eighth and District of Columbia Circuits to determine the reasonableness of toxicological drug testing programs in National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir.1987), McDonell v. Hunter, 809 F.2d 1302 (8th Cir.1987), and Jones v. McKenzie, 833 F.2d 335 (D.C.Cir.1987), and Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264 (7th Cir.1976), cert. denied, 429 U.S. 1029 , 97 S.Ct. 653 , 50 L.Ed.2d 632 .

In Von Raab , a union representing employees of the Customs Service mounted a fourth amendment challenge to “a program adopted by the Customs Service requiring employees seeking transfer to certain sensitive jobs to submit to urine testing for drug use.” 816 F.2d at 172 . The Service initiated the program because its employees “are routinely exposed to the vast network of organized crime that is inextricably tied to illegal drug use ... as well as [to] illegal substances themselves.” Id. at 173 . Applying the balancing test, the Fifth Circuit determined that the urine tests were intrusive and undertaken without individualized suspicion, and considered these two factors weighed against finding the program reasonable. Id. at 175-77 . The court held, however, that these factors were more than outweighed by: (1) the Service’s compelling need to assure that its employees maintained integrity, id. at 177-78 ; and (2) the diminished privacy expectations of Service employees, who know from the very nature of their profession “that inquiry may be made concerning their off-the-job use of drugs,” id. at 180 . Persons involved in operating trains should also be presumed to know that inquiry concerning their off-duty drug and alcohol use is likely because of the danger to others that would flow from operating a train while under the influence of such substances.

In McDonell , the Iowa Department of Corrections required correctional officers to submit to urine, blood and breath testing at the request of Department officials, 809 F.2d at 1304 . The Department initiated the testing program “to maintain security and intercept contraband.” Id. at 1306 . Applying the balancing test, the Eighth Circuit noted that prison employees “expectations of privacy are diminished while they are within the confines of the prison.” Id. It found that the Department *596 had a compelling need to determine “whether corrections employees are using or abusing drugs which would affect their ability to safely perform their work within the prison.” Id. at 1308 . The court found this necessity outweighed the correctional officers’ diminished privacy interests:

Id. at 1308 . Similarly, the government had a compelling need to ensure that railway employees be'free of alcohol or controlled substances in propelling locomotives across this nation.

In Jones , a transportation worker employed by the District of Columbia school system challenged the District’s mandatory urine testing program. The program was initiated in response to “repeated incidents of bizarre or dangerous drug-related behavior by drivers and attendants while on duty.” At 336. Applying the balancing test, the District of Columbia Circuit held that urine tests intrude heavily upon the employees’ privacy interests and thus “can be outweighed only by strong governmental concerns.” Id. at 340 . The court held, however, that the government’s safety concerns were sufficiently compelling to tip the balance against these interests. Id. Thus, it held that the tests were justified at the inception:

Id. at 340 (footnote omitted). The need to prevent injury or death to pedestrians or motorists in the path of a locomotive operated by substance and alcohol abusers is equally compelling.

In Suscy , a bus drivers union challenged a Chicago Transit Authority requirement that “bus operators ... submit ... blood and urine tests when they are involved in ‘any serious accident.’ ” 538 F.2d at 1266 . Applying the balancing test, the Seventh Circuit held that the clash of interests weighed in favor of holding the tests constitutional: “Certainly the public interest in the safety of mass transit riders outweighs any individual interest in refusing to disclose physical evidence of intoxication or drug abuse.” Id. at 1267 .

I would adopt the analysis set forth in these cases to the matter at hand, and hold that the urine and blood examinations mandated by 49 C.F.R. § 219.201 are justified at the inception. I would also recognize that the blood and urine tests required by the regulation are intrusive and hold, nevertheless, that they can be performed in the absence of individualized suspicion. I would hold that the government’s compelling need to assure railroad safety by controlling drug use among railway personnel outweighs the need to protect privacy interests. As recent history attests, locomotives in the hands of drug or alcohol-impaired employees are the substantial equivalents of time-bombs endangering the lives of thousands. The threat posed by drug or alcohol impaired railroad workers transporting hazardous materials across this nation is far graver than the potential danger presented by the customs officers in Von Rabb, the prison guards in McDonell or the transportation workers in Jones and Suscy .

The Supreme Court has instructed us to “ ‘balanc[e] the need to search ... against *597 the invasion which the search ... entails’ ” in determining whether a search is justified at the inception. Terry, 392 U.S. at 21 , 88 S.Ct. at 1879 (emphasis added) (quoting Camara, 387 U.S. at 534-35 , 87 S.Ct. at 1733-34 ). The majority in the instant matter has failed to engage in the balancing of interests required by the Court. Instead, the majority focuses solely on the degree of impairment of the workers’ privacy interests. Finding that the blood and urine tests are intrusive, the majority quickly proceeds to the conclusion that the tests are not justified at the inception because they are not initiated as the result of individualized suspicion of drug or alcohol use. Majority op. at 587-588.

The second inquiry under the “reasonableness” test is whether the search is “ ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” O’Connor, 107 S.Ct. at 1503 (quoting T.L.O., 469 U.S. at 341 , 105 S.Ct. at 743 ). “[A] search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive. ...” T.L.O., 469 U.S. at 342 , 105 S.Ct. at 743 .

As discussed above in relation to the closely-regulated industry test, the searches mandated by 49 C.F.R. § 219.201 are not excessively intrusive. The regulatory scheme provides safeguards which bring the time and place of the testing within reasonable bounds.

The question remains whether the tests “are reasonably related to the objectives of the search." T.L.O., 469 U.S. at 342 , 105 S.Ct. at 743 . The majority concludes that the urine tests bear no reasonable relationship to the program objective of discovering on-the-job drug or alcohol use because they are overbroad: “[T]he tests cannot measure current drug intoxication or degree of impairment. Rather, the state of the art drug tests currently used can discover only the metabolites of various drugs, which are not evidence of current intoxication and may remain in the body for days or weeks after the ingestion of the drug.” Majority op. at 588-89 (citations omitted).

The regulatory scheme contains adequate safeguards to counter the problem of overbreadth. 49 C.F.R. § 219.309 (1986) requires the railroads to inform their workers of the overbreadth problem presented by urine tests, and to counsel them to take a blood test if they have ingested drugs anytime within the previous sixty days. Section 219.309(b)(2) requires that railroads provide their workers with the following notice:

*598 49 C.F.R. § 219.309 (b)(2) (1986) (emphasis added).

The warning required by section 219.309 protects employees from any mistake that might result from the “sensitivity” of the urine testing procedure. The searches mandated by 49 C.F.R. § 219.201 are reasonably related to the objective of determining whether railroad workers are intoxicated on the job.

CONCLUSION

I would affirm the judgment of the district court. The railroad industry is closely regulated because of the serious danger presented by the negligent operation of trains across this nation by alcohol or drug-impaired railway employees. Railroad industry employees have long been restricted by safety rules from ingesting alcohol or controlled substances prior to or during the operation of trains. The government has also imposed safety laws and regulations aimed at protecting the safety of the public and co-workers. Thus, railway employees have a diminished expectation of privacy concerning the detection of their alcohol or drug use.

The closely regulated industry exception to the requirements of the fourth amendment should be applied to these employers who operate the nation’s railroads because of the incalculable risk to public safety posed by alcohol or drug impaired train crews. In balancing the intrusion engendered by blood and urine tests against the risk to lives and property posed by intoxicated train crews, we should hold that such searches are reasonable and consistent with the requirements of the fourth amendment.