Cfr 2010-title49-vol4-part219

Pt. 219 49 CFR Ch. II (10–1–10 Edition)
evaluation summary of the factors consid- notifying the remote control locomotive op-
ered and shall provide the railroad with erator immediately if the flashing lights and
agreed upon parameters by which the cam- gates are not working as intended.
era-assisted remote control operation may 7. The railroad shall notify the Associate
continue in operation if the factors required Administrator for Safety in writing when
for suitability change; thus, any change in this type of protection has been installed and
the factors considered by the diagnostic activated at a crossing.
team outside of the acceptable parameters
shall require the railroad to receive a revised III. CONCLUSION
evaluation approval from a diagnostic team The technology used to aid point protec-
before continuing any such operation. In ad- tion will undoubtedly develop and improve
dition, any of the Federal, State, or local over time. FRA encourages the use and de-
governmental authorities may trigger re- velopment of this technology as is evidenced
view of a prior evaluation approval at any by the option in this rule to utilize such
time there is a question of the suitability of technology. Meanwhile, as a regulating body,
the operation. It is possible that, of the re- FRA cannot determine whether a new tech-
quirements listed below, requirements num- nology to aid point protection provides an
bered 2, 4, 5, and 6 would be unnecessary at equivalent level of protection to that of a di-
highway-rail grade crossings or yard access rect visual determination unless we are
crossings equipped with approved supple- made aware of the new technology. Con-
mental safety devices (see 49 CFR part 222, sequently, aside from the camera/monitor
app. A) that prevent motorists from driving setups described in this appendix, each rail-
around lowered gates; under such cir- road that intends to implement a technology
cumstances, the diagnostic team shall make used to aid point protection shall notify the
such determinations. If a Crossing Diag-
Associate Administrator for Safety in writ-
nostic Team, as described in this paragraph,
ing of the technology to be used prior to im-
evaluated a crossing for the factors described
plementation.
herein, prior to April 14, 2008, another diag-
nostic team evaluation is not required to [73 FR 8504, Feb. 13, 2008]
comply with this rule; however, the require-
ments listed below shall still apply to any
such remotely controlled movements over
PART 219—CONTROL OF ALCOHOL
that crossing. AND DRUG USE
2. Camera-assisted remote control loco-
motive operations shall only be permitted at Subpart A—General
crossings equipped with flashing lights,
gates, and constant warning time train de- Sec.
tection systems where appropriate, based on 219.1 Purpose and scope.
train speeds. 219.3 Application.
3. A crewmember or other qualified em- 219.4 Recognition of a foreign railroad’s
ployee shall not view the monitor in place of workplace testing program.
the remote control operator, as is permitted 219.5 Definitions.
for other shoving or pushing movements. See 219.7 Waivers.
§ 218.99(b)(3). For purposes of remote control 219.9 Responsibility for compliance.
locomotive operations with camera/monitor 219.11 General conditions for chemical tests.
setups to protect the point at highway-rail 219.13 Preemptive effect.
grade crossings, pedestrian crossings, and 219.15 [Reserved]
yard access crossings, the remote control op- 219.17 Construction.
erator controlling the movement shall view 219.19 [Reserved]
219.21 Information collection.
the monitor during such operations.
219.23 Railroad policies.
4. The cameras shall be arranged to give
the remote control locomotive operator con-
trolling the movement a view of the rail ap-
Subpart B—Prohibitions
proaches to the crossing from each direction 219.101 Alcohol and drug use prohibited.
so that the operator can accurately judge 219.102 Prohibition on abuse of controlled
the end of the movement’s proximity to the substances.
crossing. 219.103 Prescribed and over-the-counter
5. The cameras shall be arranged to give drugs.
the remote control locomotive operator a 219.104 Responsive action.
clear view to determine the speed and driver 219.105 Railroad’s duty to prevent viola-
behavior (e.g., driving erratically) of any ap- tions.
proaching motor vehicles. 219.107 Consequences of unlawful refusal.
6. Either the camera resolution shall be
sufficient to determine whether the flashing Subpart C—Post-Accident Toxicological
jdjones on DSK8KYBLC1PROD with CFR

lights and gates are working as intended or Testing
the crossing shall be equipped with a remote
health monitoring system that is capable of 219.201 Events for which testing is required.

232

VerDate Mar<15>2010 09:47 Dec 14, 2010 Jkt 220215 PO 00000 Frm 00242 Fmt 8010 Sfmt 8010 Y:SGML220215.XXX 220215

Federal Railroad Administration, DOT § 219.3
219.203 Responsibilities of railroads and em- APPENDIX B TO PART 219—DESIGNATION OF
ployees. LABORATORY FOR POST-ACCIDENT TOXI-
219.205 Specimen collection and handling. COLOGICAL TESTING
219.206 FRA access to breath test results. APPENDIX C TO PART 219—POST-ACCIDENT
219.207 Fatality. TESTING SPECIMEN COLLECTION
219.209 Reports of tests and refusals.
219.211 Analysis and follow-up. AUTHORITY: 49 U.S.C. 20103, 20107, 20140,
219.213 Unlawful refusals; consequences. 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49
CFR 1.49(m).
Subpart D—Testing for Cause SOURCE: 66 FR 41973, Aug. 9, 2001, unless
219.300 Mandatory reasonable suspicion otherwise noted.
testing.
219.301 Testing for reasonable cause. Subpart A—General
219.302 Prompt specimen collection; time
limitation.
§ 219.1 Purpose and scope.
Subpart E—Identification of Troubled (a) The purpose of this part is to pre-
Employees vent accidents and casualties in rail-
219.401 Requirement for policies.
road operations that result from im-
219.403 Voluntary referral policy. pairment of employees by alcohol or
219.405 Co-worker report policy. drugs.
219.407 Alternate policies. (b) This part prescribes minimum
Federal safety standards for control of
Subpart F—Pre-Employment Tests alcohol and drug use. This part does
219.501 Pre-employment drug testing. not restrict a railroad from adopting
219.502 Pre-employment alcohol testing. and enforcing additional or more strin-
219.503 Notification; records. gent requirements not inconsistent
219.505 Refusals. with this part.
Subpart G—Random Alcohol and Drug § 219.3 Application.
Testing Programs
(a) General. Except as provided in
219.601 Railroad random drug testing pro- paragraphs (b) and (c) of this section,
grams. this part applies to—
219.602 FRA Administrator’s determination
of random drug testing rate.
(1) Railroads that operate rolling
219.603 Participation in drug testing. equipment on standard gage track
219.605 Positive drug test results; proce- which is part of the general railroad
dures. system of transportation; and
219.607 Railroad random alcohol testing pro- (2) Railroads that provide commuter
grams. or other short-haul rail passenger serv-
219.608 FRA Administrator’s determination
of random alcohol testing rate.
ice in a metropolitan or suburban area
219.609 Participation in alcohol testing. (as described by 49 U.S.C. 20102) in the
219.611 Test result indicating prohibited al- United States.
cohol concentration; procedures. (b) Exceptions available to both domes-
tic and foreign railroads. (1) This part
Subpart H—Drug and Alcohol Testing does not apply to a railroad that oper-
Procedures ates only on track inside an installa-
219.701 Standards for drug and alcohol test- tion which is not part of the general
ing. railroad system of transportation.
(2) Subparts D, E, F and G of this
Subpart I—Annual Report part do not apply to a railroad that—
219.800 Annual reports. (i) Has a total of 15 or fewer employ-
219.801–219.803 [Reserved] ees who are covered by the hours of
service laws at 49 U.S.C. 21103, 21104, or
Subpart J—Recordkeeping Requirements 21105, or who would be subject to the
219.901 Retention of alcohol testing records. hours of service laws at 49 U.S.C. 21103,
219.903 Retention of drug testing records. 21104, or 21105 if their services were per-

219.905 Access to facilities and records. formed in the United States; and
APPENDIX A TO PART 219—SCHEDULE OF CIVIL (ii) Does not operate on the tracks in
PENALTIES the United States of another railroad

233


§ 219.4 49 CFR Ch. II (10–1–10 Edition)

(or otherwise engage in joint oper- conducted in accordance with this part
ations in the United States with an- prior to the applicant or employee’s
other railroad) except as necessary for performance of train or dispatching
purposes of interchange. service in the United States.
(3) Subpart I of this part does not [69 FR 19286, Apr. 12, 2004]
apply to a railroad that has fewer than
400,000 total employee hours, including § 219.4 Recognition of a foreign rail-
hours worked by all employees of the road’s workplace testing program.
railroad, regardless of occupation, not (a) General. A foreign railroad may
only while in the United States but petition the FRA Associate Adminis-
also while outside the United States. trator for Safety for recognition of a
For purposes of this paragraph, the workplace testing program promul-
term ‘‘employees of the railroad’’ in- gated under the laws of its home coun-
cludes individuals who perform service try as a compatible alternative to the
for the railroad, including not only in- return-to-service requirements in sub-
dividuals who receive direct monetary part B of this part and the require-
compensation from the railroad for ments of subparts E, F, and G of this
performing a service for the railroad, part with respect to its employees
but also such individuals as employees whose primary reporting point is out-
of a contractor to the railroad who per- side the United States but who enter
form a service for the railroad. the United States to perform train or
(c) Exceptions available to foreign rail- dispatching service and with respect to
roads only. (1) Subparts E, F and G of its final applicants for, or its employ-
this part do not apply to train or dis- ees seeking to transfer for the first
patching service in the United States time to, duties involving such service.
performed by an employee of a foreign (1) To be so considered, the petition
railroad whose primary reporting point must document that the foreign rail-
is outside the United States, on that road’s workplace testing program con-
portion of a rail line in the United tains equivalents to subparts B, E, F,
States extending up to10 route miles and G of this part:
from the point that the line crosses (i) Pre-employment drug testing;
into the United States from Canada or (ii) A policy dealing with co-worker
Mexico. and self-reporting of alcohol and drug
(2) Unless otherwise provided by abuse problems;
paragraph (b) of this section, subparts (iii) Random drug and alcohol test-
A, B, C, D, H, I, and J of this part apply ing;
to signal service in the United States (iv) Return-to-duty testing; and
of a foreign railroad performed by an (v) Testing procedures and safeguards
employee of the foreign railroad if the reasonably comparable in effectiveness
employee’s primary place of reporting to all applicable provisions of the
is located outside the United States. United States Department of Transpor-
Subparts E, F, and G of this part do not tation Procedures for Workplace Drug
apply to signal service in the United and Alcohol Testing Programs (part 40
States of a foreign railroad performed of this title).
by an employee of the foreign railroad (2) In approving a program under this
if the employee’s primary place of re- section, the FRA Associate Adminis-
porting is located outside the United trator for Safety may impose condi-
States. tions deemed necessary.
(3) Unless otherwise excepted under (b) Alternative programs. (1) Upon
paragraph (c)(1) of this section, on and FRA’s recognition of a foreign rail-
after June 11, 2004, a foreign railroad road’s workplace testing program as
shall conduct a pre-employment drug compatible with the return-to-service
test on each of its final applicants for, requirements in subpart B and the re-
and each of its employees seeking to quirements of subparts E, F, and G of
transfer for the first time to, duties in- this part, the foreign railroad must
volving train or dispatching service in comply with either the enumerated

the United States while having his or provisions of part 219 or with the stand-
her primary reporting point outside of ards of the recognized program, and
the United States. The test shall be any imposed conditions, with respect

234



to its employees whose primary report- (2) Any comment on a petition should
ing point is outside the United States reference the FRA docket and notice
and who perform train or dispatching numbers. A commenter may submit a
service in the United States. The for- comment and related material by only
eign railroad must also, with respect to one of the following methods:
its final applicants for, or its employ- (i) Federal eRulemaking Portal: http://
ees seeking to transfer for the first www.regulations.gov. Follow the in-
time to, duties involving such train or structions for submitting comments on
dispatching service in the United the Federal Docket Management Sys-
States, comply with either subpart E of tem electronic docket site.
this part or the standards of the recog- (ii) Fax. 1–202–493–2251.
nized program. (iii) Mail. U.S. Department of Trans-
(2) The foreign railroad must comply portation, Docket Operations (M–30),
with subparts A, B (other than the re- West Building Ground Floor, Room
turn-to-service provisions in W12–140, 1200 New Jersey Avenue, SE.,
§ 219.104(d)), C, reasonable suspicion Washington, DC 20590–0001.
testing in subpart D, and subparts I (iv) Hand delivery. Room W12–140 on
and J. Drug or alcohol testing required the ground floor of the West Building,
by these subparts must be conducted in 1200 New Jersey Avenue, SE., Wash-
compliance with all applicable provi- ington, DC, between 9 a.m. and 5 p.m.,
sions of the United States Department Monday through Friday, except Fed-
of Transportation Procedures for eral Holidays.
Workplace Drug and Alcohol Testing (3) The commenter shall certify that
Programs (part 40 of this title). a copy of the comment was served on
(c) Petitions for recognition of a foreign the petitioner. Note that all petitions
railroad’s workplace testing programs. received will be posted without change
Each petition for recognition of a for- to http://www.regulations.gov including
eign workplace testing program shall any personal information provided.
contain: (f) Disposition of petitions. (1) If FRA
(1) The name, title, address, and tele- finds that the petition complies with
phone number of the primary person to the requirements of this section and
be contacted with regard to review of that the foreign railroad’s workplace
the petition; testing program is compatible with the
(2) The requirements of the foreign minimum standards of this part, the
railroad workplace testing program to petition will be granted, normally
be considered for recognition; within 90 days of its receipt. If the peti-
(3) Appropriate data or records, or tion is neither granted nor denied with-
both, for FRA to consider in deter- in 90 days, the petition remains pend-
mining whether the foreign railroad ing for decision. FRA may attach spe-
workplace testing program is equiva- cial conditions to the approval of any
lent to the minimum standards con- petition. Following the approval of a
tained in this part and provides at petition, FRA may reopen consider-
least an equivalent level of safety. ation of the petition for cause.
(d) FEDERAL REGISTER notice. FRA (2) If FRA finds that the petition
will publish a notice in the FEDERAL does not comply with the requirements
REGISTER concerning each petition of this section or that the foreign rail-
under paragraph (c) of this section that road’s workplace testing program is
it receives. not compatible with the minimum
(e) Comment. Not later than 30 days standards of this part, the petition will
from the date of publication of the no- be denied, normally within 90 days of
tice in the FEDERAL REGISTER con- its receipt.
cerning a petition under paragraph (c) (3) When FRA grants or denies a peti-
of this section, any person may com- tion, or reopens consideration of the
ment on the petition. petition, written notice is sent to the
(1) A comment shall set forth specifi- petitioner and other interested parties.
cally the basis upon which it is made, (g) Program recognition. If its program

and contain a concise statement of the has been recognized, the foreign rail-
interest of the commenter in the pro- road shall maintain a letter on file in-
ceeding. dicating that it has elected to extend

235


§ 219.5 49 CFR Ch. II (10–1–10 Edition)

specified elements of the recognized meaning of this part exclusively by
program to its operations in the United reason of being an employee for pur-
States. Once granted, program recogni- poses of 49 U.S.C. 21106.) For the pur-
tion remains valid so long as the pro- poses of pre-employment testing only,
gram retains these elements and the the term ‘‘covered employee’’ includes
foreign railroad complies with the pro- a person applying to perform covered
gram requirements. service in the United States.
[69 FR 19286, Apr. 12, 2004, as amended at 74 Covered service means service in the
FR 25172, 25173, May 27, 2009] United States that is subject to the
hours of service laws at 49 U.S.C. 21103,
§ 219.5 Definitions. 21104, or 21105, but does not include any
As used in this part— period the employee is relieved of all
Accident or incident reportable under responsibilities and is free to come and
part 225 does not include a case that is go without restriction.
classified as ‘‘covered data’’ under Co-worker means another employee of
§ 225.5 of this chapter (i.e., employee in- the railroad, including a working su-
jury/illness cases reportable exclu- pervisor directly associated with a
sively because a physician or other li- yard or train crew, such as a conductor
censed health care professional either or yard foreman, but not including any
made a one-time topical application of other railroad supervisor, special
a prescription-strength medication to agent, or officer.
the employee’s injury or made a writ- Cross-border operation means a rail
ten recommendation that the em- operation that crosses into the United
ployee: Take one or more days away States from Canada or Mexico.
from work when the employee instead Domestic railroad means a railroad
reports to work (or would have re- that is incorporated in the United
ported had he or she been scheduled) States.
and takes no days away from work in DOT Agency means an agency (or
connection with the injury or illness; ‘‘operating administration’’) of the
work restricted duty for one or more United States Department of Transpor-
days when the employee instead works tation administering regulations re-
unrestricted (or would have worked un- quiring alcohol or controlled substance
restricted had he or she been sched- testing (14 CFR parts 61, 63, 65, 121 and
uled) and takes no other days of re- 135; 49 CFR parts 199, 219, 382 and 655) in
stricted work activity in connection accordance with part 40 of this title.
with the injury or illness; or take over- Drug means any substance (other
the-counter medication at a dosage than alcohol) that has known mind- or
equal to or greater than the minimum function-altering effects on a human
prescription strength, whether or not subject, specifically including any
the employee actually takes the medi- psychoactive substance and including,
cation). but not limited to, controlled sub-
Class I, Class II, and Class III have the stances.
meaning assigned by regulations of the Foreign railroad means a railroad that
Surface Transportation Board (49 CFR is incorporated outside the United
part 1201; General Instructions 1–1). States.
Controlled substance has the meaning FRA means the Federal Railroad Ad-
assigned by 21 U.S.C. 802, and includes ministration, United States Depart-
all substances listed on Schedules I ment of Transportation.
through V as they may be revised from FRA representative means the Asso-
time to time (21 CFR parts 1301–1316). ciate Administrator for Safety of FRA,
Covered employee means a person who the Associate Administrator’s delegate
has been assigned to perform service in (including a qualified State inspector
the United States subject to the hours acting under part 212 of this chapter),
of service laws (49 U.S.C. ch. 211) during the Chief Counsel of FRA, or the Chief
a duty tour, whether or not the person Counsel’s delegate.
has performed or is currently per- General railroad system of transpor-

forming such service, and any person tation means the general railroad sys-
who performs such service. (An em- tem of transportation in the United
ployee is not ‘‘covered’’ within the States.

236



Hazardous material means a com- Positive rate for random drug testing
modity designated as a hazardous ma- means the number of verified positive
terial by part 172 of this title. results for random drug tests con-
Impact accident means a train acci- ducted under this part plus the number
dent (i.e., a rail equipment accident in- of refusals of random drug tests re-
volving damage in excess of the current quired by this part, divided by the
reporting threshold (see § 225.19(e) of total number of random drug tests re-
this chapter)) consisting of a head-on sults (i.e., positives, negatives, and re-
collision, a rear-end collision, a side fusals) under this part.
collision (including a collision at a Possess means to have on one’s person
railroad crossing at grade), a switching or in one’s personal effects or under
collision, or impact with a delib- one’s control. However, the concept of
erately-placed obstruction such as a possession as used in this part does not
bumping post. The following are not include control by virtue of presence in
impact accidents: the employee’s personal residence or
(1) An accident in which the derail- other similar location off of railroad
ment of equipment causes an impact property.
with other rail equipment; Railroad means any form of non-
(2) Impact of rail equipment with ob- highway ground transportation that
runs on rails or electromagnetic guide-
structions such as fallen trees, rock or
ways, and any person providing such
snow slides, livestock, etc.; and
transportation, including—
(3) Raking collisions caused by de-
(1) Commuter or other short-haul
railment of rolling stock or operation railroad passenger service in a metro-
of equipment in violation of clearance politan or suburban area and com-
limitations. muter railroad service that was oper-
Independent with respect to a medical ated by the Consolidated Rail Corpora-
facility, means not under the owner- tion on January 1, 1979; and
ship or control of the railroad and not (2) High speed ground transportation
operated or staffed by a salaried officer systems that connect metropolitan
or employee of the railroad. The fact areas, without regard to whether those
that the railroad pays for services ren- systems use new technologies not asso-
dered by a medical facility or labora- ciated with traditional railroads; but
tory, selects that entity for performing does not include rapid transit oper-
tests under this part, or has a standing ations in an urban area that are not
contractual relationship with that en- connected to the general railroad sys-
tity to perform tests under this part or tem of transportation.
perform other medical examinations or Railroad property damage or damage to
tests of railroad employees does not, by railroad property refers to damage to
itself, remove the facility from this railroad property, including railroad
definition. on-track equipment, signals, track,
Medical facility means a hospital, track structures (including bridges and
clinic, physician’s office, or laboratory tunnels), or roadbed, including labor
where toxicological specimens can be costs and all other costs for repair or
collected according to recognized pro- replacement in kind. Estimated cost
fessional standards. for replacement of railroad property
Medical practitioner means a physi- must be calculated as described in the
cian or dentist licensed or otherwise FRA Guide for Preparing Accident/In-
authorized to practice by the state. cident Reports. (See § 225.21 of this
NTSB means the National Transpor- chapter.) However, replacement of pas-
tation Safety Board. senger equipment is calculated based
Passenger train means a train trans- on the cost of acquiring a new unit for
porting persons (other than employees, comparable service.
contractors, or persons riding equip- Reportable injury means an injury re-
ment to observe or monitor railroad portable under part 225 of this chapter
operations) in intercity passenger serv- except for an injury that is classified

ice, commuter or other short-haul serv- as ‘‘covered data’’ under § 225.5 of this
ice, or for excursion or recreational chapter (i.e., employee injury/illness
purposes. cases reportable exclusively because a

237


§ 219.7 49 CFR Ch. II (10–1–10 Edition)

physician or other licensed health care random alcohol confirmation test re-
professional either made a one-time sults conducted under this part plus
topical application of a prescription- the number of refusals of random alco-
strength medication to the employee’s hol tests required by this part, divided
injury or made a written recommenda- by the total number of random alcohol
tion that the employee: Take one or screening tests (including refusals)
more days away from work when the conducted under this part.
employee instead reports to work (or [66 FR 41973, Aug. 9, 2001, as amended at 68
would have reported had he or she been FR 10135, Mar. 3, 2003; 68 FR 75463, Dec. 31,
scheduled) and takes no days away 2003; 69 FR 19287, Apr. 12, 2004]
from work in connection with the in-
jury or illness; work restricted duty for § 219.7 Waivers.
one or more days when the employee (a) A person subject to a requirement
instead works unrestricted (or would of this part may petition the FRA for a
have worked unrestricted had he or she waiver of compliance with such re-
been scheduled) and takes no other quirement.
days of restricted work activity in con- (b) Each petition for waiver under
nection with the injury or illness; or this section must be filed in a manner
take over-the-counter medication at a and contain the information required
dosage equal to or greater than the by part 211 of this chapter. A petition
minimum prescription strength, for waiver of the part 40 prohibition
whether or not the employee actually against stand down of an employee be-
takes the medication. fore the Medical Review Officer has
Reporting threshold means the amount completed the verification must also
specified in § 225.19(e) of this chapter, as comply with § 40.21 of this title.
adjusted from time to time in accord- (c) If the FRA Administrator finds
ance with appendix B to part 225 of this that waiver of compliance is in the
chapter. public interest and is consistent with
State means a State of the United railroad safety, the Administrator may
States of America or the District of Co- grant the waiver subject to any nec-
lumbia. essary conditions.
Supervisory employee means an officer, (d) Special dispensation for employees
special agent, or other employee of the performing train or dispatching service on
railroad who is not a co-worker and existing cross-border operations. If a for-
who is responsible for supervising or eign railroad requests a waiver not
monitoring the conduct or performance later than August 10, 2004, for an exist-
of one or more employees. ing cross-border operation, subparts E,
Train, except as context requires, F, and G of this part shall not apply to
means a locomotive, or more than one train or dispatching service on that op-
locomotive coupled, with or without eration in the United States performed
cars. (A locomotive is a self-propelled by an employee of a foreign railroad
unit of equipment which can be used in whose primary reporting point is out-
train service.) side the United States, until the rail-
Train accident means a passenger, road’s waiver request is acted upon by
freight, or work train accident de- FRA.
scribed in § 225.19(c) of this chapter (a (e) Waiver requests for employees per-
‘‘rail equipment accident’’ involving forming train or dispatching service on
damage in excess of the current report- new or expanded cross-border operations.
ing threshold), including an accident A foreign railroad seeking a waiver
involving a switching movement. from subparts E, F, and G of this part
Train incident means an event involv- for its employees performing train or
ing the movement of railroad on-track dispatching service on a new cross-bor-
equipment that results in a casualty der operation that proceeds more than
but in which railroad property damage 10 route miles into the United States,
does not exceed the reporting thresh- or a formerly excepted cross-border op-
old. eration that expands beyond the 10

United States means all of the States. mile limited haul exception in para-
Violation rate for random alcohol test- graph (d) of this section, must file a pe-
ing means the number of 0.04 and above tition not later than 90 days before

238



commencing the subject operation. ployees must be responsive to direction
FRA will attempt to decide on such pe- from the host railroad consistent with
titions within 90 days. If no action is this part. However, nothing in this
taken on the petition within 90 days, paragraph (b)(1) restricts the ability of
the petition remains pending for deci- the railroads to provide for an appro-
sion and the cross-border crew assign- priate assignment of responsibility for
ments on the operation covered by the compliance with this part as among
petition will be subject to subparts E, those railroads through a joint oper-
F, and G until FRA grants the petition ating agreement or other binding con-
should the petitioner commence the tract. FRA reserves the right to bring
proposed operation. an enforcement action for noncompli-
[66 FR 41973, Aug. 9, 2001, as amended at 69
ance with applicable portions of this
FR 19287, Apr. 12, 2004] part against the host railroad, the em-
ploying railroad, or both.
§ 219.9 Responsibility for compliance. (2) Where an employee of one railroad
(a) Any person (an entity of any type is required to participate in breath or
covered under 1 U.S.C. 1, including but body fluid testing under subpart C or D
not limited to the following: A rail- of this part and is subsequently subject
road; a manager, supervisor, official, or to adverse action alleged to have arisen
other employee or agent of a railroad; out of the required test (or alleged re-
any owner, manufacturer, lessor, or fusal thereof), necessary witnesses and
lessee of railroad equipment, track, or documents available to the other rail-
facilities; any independent contractor road must be made available to the em-
providing goods or services to a rail- ployee on a reasonable basis.
road; and any employee of such owner, (c) Any independent contractor or
manufacturer, lessor, lessee, or inde- other entity that performs covered
pendent contractor) who violates any service for a railroad has the same re-
requirement of this part or causes the sponsibilities as a railroad under this
violation of any such requirement is part, with respect to its employees who
subject to a civil penalty of at least perform covered service. The entity’s
$650 and not more than $25,000 per vio- responsibility for compliance with this
lation, except that: Penalties may be part may be fulfilled either directly by
assessed against individuals only for that entity or by the railroad’s treat-
willful violations; where a grossly neg- ing the entity’s employees who perform
ligent violation or a pattern of re- covered service as if they were its own
peated violations has created an immi- employees for purposes of this part.
nent hazard of death or injury, or has The responsibility for compliance must
caused death or injury, a penalty not be clearly spelled out in the contract
to exceed $100,000 per violation may be between the railroad and the other en-
assessed; and the standard of liability tity or in another document. In the ab-
for a railroad will vary depending upon sence of such a clear delineation of re-
the requirement involved. See, e.g., sponsibility, FRA will hold the railroad
§ 219.105, which must be construed to and the other entity jointly and sever-
qualify the responsibility of a railroad ally liable for compliance.
for the unauthorized conduct of an em- [66 FR 41973, Aug. 9, 2001, as amended at 69
ployee that violates § 219.101 or § 219.102 FR 30593, May 28, 2004; 72 FR 51196, Sept. 6,
(while imposing a duty of due diligence 2007; 73 FR 79701, Dec. 30, 2008]
to prevent such conduct). Each day a
violation continues constitutes a sepa- § 219.11 General conditions for chem-
rate offense. See appendix A to this ical tests.
part for a statement of agency civil (a) Any employee who performs cov-
penalty policy. ered service for a railroad is deemed to
(b)(1) In the case of joint operations, have consented to testing as required
primary responsibility for compliance in subparts B, C, D, and G of this part;
with this part with respect to deter- and consent is implied by performance
mination of events qualifying for of such service.

breath or body fluid testing under sub- (b)(1) Each such employee must par-
parts C and D of this part rests with ticipate in such testing, as required
the host railroad, and all affected em- under the conditions set forth in this

239


§ 219.11 49 CFR Ch. II (10–1–10 Edition)

part by a representative of the rail- promptly executing a consent form, if
road. required by the medical facility. The
(2) In any case where an employee employee is not required to execute
has sustained a personal injury and is any document or clause waiving rights
subject to alcohol or drug testing that the employee would otherwise
under this part, necessary medical have against the employer, and any
treatment must be accorded priority such waiver is void. The employee may
over provision of the breath or body not be required to waive liability with
fluid specimen(s). respect to negligence on the part of
(3) Failure to remain available fol- any person participating in the collec-
lowing an accident or casualty as re- tion, handling or analysis of the speci-
quired by company rules (i.e., being ab- men or to indemnify any person for the
sent without leave) is considered a re- negligence of others. Any consent pro-
fusal to participate in testing, without vided consistent with this section may
regard to any subsequent provision of be construed to extend only to those
specimens. actions specified in this section.
(c) A covered employee who is re- (e) Nothing in this part may be con-
quired to be tested under subpart C or strued to authorize the use of physical
D of this part and who is taken to a coercion or any other deprivation of
medical facility for observation or liberty in order to compel breath or
treatment after an accident or incident body fluid testing.
is deemed to have consented to the re- (f) Any railroad employee who per-
lease to FRA of the following: forms service for a railroad is deemed
(1) The remaining portion of any to have consented to removal of body
body fluid specimen taken by the treat- fluid and/or tissue specimens necessary
ing facility within 12 hours of the acci- for toxicological analysis from the re-
dent or incident that is not required mains of such employee, if such em-
for medical purposes, together with ployee dies within 12 hours of an acci-
any normal medical facility record(s) dent or incident described in subpart C
pertaining to the taking of such speci- of this part as a result of such event.
men; This consent is specifically required of
(2) The results of any laboratory employees not in covered service, as
tests for alcohol or any drug conducted well as employees in covered service.
by or for the treating facility on such (g) Each supervisor responsible for
specimen; covered employees (except a working
(3) The identity, dosage, and time of supervisor within the definition of co-
administration of any drugs adminis- worker under this part) must be
tered by the treating facility prior to trained in the signs and symptoms of
the time specimens were taken by the alcohol and drug influence, intoxica-
treating facility or prior to the time tion and misuse consistent with a pro-
specimens were taken in compliance gram of instruction to be made avail-
with this part; and able for inspection upon demand by
(4) The results of any breath tests for FRA. Such a program shall, at a min-
alcohol conducted by or for the treat- imum, provide information concerning
ing facility. the acute behavioral and apparent
(d) An employee required to partici- physiological effects of alcohol and the
pate in body fluid testing under sub- major drug groups on the controlled
part C of this part (post-accident toxi- substances list. The program must also
cological testing) or testing subject to provide training on the qualifying cri-
subpart H of this part shall, if re- teria for post-accident testing con-
quested by the representative of the tained in subpart C of this part, and
railroad or the medical facility (includ- the role of the supervisor in post-acci-
ing, under subpart H of this part, a dent collections described in subpart C
non-medical contract collector), evi- and appendix C of this part. The dura-
dence consent to taking of specimens, tion of such training may not be less
their release for toxicological analysis than 3 hours.

under pertinent provisions of this part, (h) Nothing in this subpart restricts
and release of the test results to the any discretion available to the railroad
railroad’s Medical Review Officer by to request or require that an employee

240


Cfr 2010-title49-vol4-part219

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