[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR219.9]

[Page 230-231]
 
                        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

[[Page 231]]

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]

    Effective Date Note: At 72 FR 51196, Sept. 6, 2007, Sec.  219.9 was 
amended by removing the numerical amount ``$11,000'' and adding in its 
place the numerical amount ``$16,000'', effective October 9, 2007.