[Code of Federal Regulations]

[Title 49, Volume 4]

[Revised as of October 1, 2005]

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

[CITE: 49CFR219.9]



[Page 215]

 

                        TITLE 49--TRANSPORTATION

 

       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 

                             TRANSPORTATION

 

PART 219_CONTROL OF ALCOHOL AND DRUG USE--Table of Contents

 

                            Subpart A_General

 

Sec. 219.9  Responsibility for compliance.



    (a) Any person (an entity of any type covered under 1 U.S.C. 1, 

including but not limited to the following: A railroad; a manager, 

supervisor, official, or other employee or agent of a railroad; any 

owner, manufacturer, lessor, or lessee of railroad equipment, track, or 

facilities; any independent contractor providing goods or services to a 

railroad; and any employee of such owner, manufacturer, lessor, lessee, 

or independent contractor) who violates any requirement of this part or 

causes the violation of any such requirement is subject to a civil 

penalty of at least $550 and not more than $11,000 per violation, except 

that: Penalties may be assessed against individuals only for willful 

violations; where a grossly negligent violation or a pattern of repeated 

violations has created an imminent hazard of death or injury, or has 

caused death or injury, a penalty not to exceed $27,000 per violation 

may be assessed; and the standard of liability for a railroad will vary 

depending upon the requirement involved. See, e.g., Sec. 219.105, which 

must be construed to qualify the responsibility of a railroad for the 

unauthorized conduct of an employee that violates Sec. 219.101 or Sec. 

219.102 (while imposing a duty of due diligence to prevent such 

conduct). Each day a violation continues constitutes a separate offense. 

See Appendix A to this part for a statement of agency civil penalty 

policy.

    (b)(1) In the case of joint operations, primary responsibility for 

compliance with this part with respect to determination of events 

qualifying for breath or body fluid testing under Subparts C and D of 

this part rests with the host railroad, and all affected employees must 

be responsive to direction from the host railroad consistent with this 

part. However, nothing in this paragraph (b)(1) restricts the ability of 

the railroads to provide for an appropriate assignment of responsibility 

for compliance with this part as among those railroads through a joint 

operating agreement or other binding contract. FRA reserves the right to 

bring an enforcement action for noncompliance with applicable portions 

of this part against the host railroad, the employing railroad, or both.

    (2) Where an employee of one railroad is required to participate in 

breath or body fluid testing under Subpart C or D of this part and is 

subsequently subject to adverse action alleged to have arisen out of the 

required test (or alleged refusal thereof), necessary witnesses and 

documents available to the other railroad must be made available to the 

employee on a reasonable basis.

    (c) Any independent contractor or other entity that performs covered 

service for a railroad has the same responsibilities as a railroad under 

this part, with respect to its employees who perform covered service. 

The entity's responsibility for compliance with this part may be 

fulfilled either directly by that entity or by the railroad's treating 

the entity's employees who perform covered service as if they were its 

own employees for purposes of this part. The responsibility for 

compliance must be clearly spelled out in the contract between the 

railroad and the other entity or in another document. In the absence of 

such a clear delineation of responsibility, FRA will hold the railroad 

and the other entity jointly and severally liable for compliance.



[66 FR 41973, Aug. 9, 2001, as amended at 69 FR 30593, May 28, 2004]