[Federal Register Volume 75, Number 217 (Wednesday, November 10, 2010)]
[Proposed Rules]
[Pages 69166-69219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27642]



[[Page 69165]]

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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 242



Conductor Certification; Proposed Rule

  Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 242

[Docket No. FRA-2009-0035, Notice No. 1]
RIN 2130-AC08


Conductor Certification

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes to prescribe regulations for certification of 
conductors, as required by the Rail Safety Improvement Act of 2008. The 
proposed rule would require railroads to have a formal program for 
certifying conductors. As part of that program, railroads would be 
required to have a formal process for training prospective conductors 
and determining that all persons are competent before permitting them 
to serve as a conductor. FRA is proposing this regulation to ensure 
that only those persons who meet minimum Federal safety standards serve 
as conductors, to reduce the rate and number of accidents and 
incidents, and to improve railroad safety. Although this NPRM does not 
propose any specific amendments to the regulation governing locomotive 
engineer certification, it does highlight areas in that regulation that 
may require conforming changes.

DATES: Written Comments: Written comments on the proposed rule must be 
received by January 10, 2011. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay. FRA anticipates being able to determine these matters without 
a public hearing. However, if prior to December 10, 2010, FRA receives 
a specific request for a public hearing accompanied by a showing that 
the party is unable to adequately present his or her position by 
written statement, a hearing will be scheduled and FRA will publish a 
supplemental notice in the Federal Register to inform interested 
parties of the date, time, and location of any such hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2009-0035 by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal, 
http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC08). Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act heading in 
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mark H. McKeon, Special Assistant to 
the Associate Administrator for Railroad Safety/Chief Safety Officer, 
U.S. Department of Transportation, Federal Railroad Administration, 
Mail Stop 25, West Building 3rd Floor West, Room W35-334, 1200 New 
Jersey Avenue, SE., Washington, DC 20590 (telephone: 202-493-6350); or 
John Seguin, Trial Attorney, U.S. Department of Transportation, Federal 
Railroad Administration, Office of Chief Counsel, RCC-10, Mail Stop 10, 
West Building 3rd Floor, Room W31-217, 1200 New Jersey Avenue, SE., 
Washington, DC 20590 (telephone: 202-493-6045).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

    Pursuant to the Rail Safety Improvement Act of 2008 Sec.  402, 
Public Law 110-432, 122 Stat. 4884, (Oct. 16, 2008) (codified at 49 
U.S.C. 20163) (hereinafter ``RSIA'') Congress required the Secretary of 
Transportation (Secretary) to prescribe regulations to establish a 
program requiring the certification of train conductors. The Secretary 
delegated this authority to the Federal Railroad Administrator. 49 CFR 
1.49(oo).
    Section 20163(a) of 49 U.S.C. (Section 402 of the RSIA) provides 
that:

    The Secretary of Transportation shall prescribe regulations to 
establish a program requiring the certification of train conductors. 
In prescribing such regulations, the Secretary shall require that 
train conductors be trained, in accordance with the training 
standards developed pursuant to section 20162.

Section 20163(b) provides that ``[i]n developing the regulations 
required by subsection (a), the Secretary may consider the requirements 
of section 20135(b) through (e).'' The requirements in 49 U.S.C. 20135 
concern the certification of locomotive engineers.

    Section 20162(a)(2) of 49 U.S.C. (Section 401 of the RSIA) provides 
that:

    ``(a) IN GENERAL.--The Secretary of Transportation shall, not 
later than 1 year after the date of enactment of the Rail Safety 
Improvement Act of 2008, establish--
    * * *
    (2) a requirement that railroad carriers, contractors, and 
subcontractors develop and submit training and qualification plans 
to the Secretary for approval, including training programs and 
information deemed necessary by the Secretary to ensure that all 
safety-related railroad employees receive appropriate training in a 
timely manner. * * *''

Section 20162(b) of 49 U.S.C. provides that ``[t]he Secretary shall 
review and approve the plans required under subsection (a)(2) utilizing 
an approval process required for programs to certify the qualification 
of locomotive engineers pursuant to part 240 of title 49, Code of 
Federal Regulations.''

II. RSAC Overview

    In March 1996, FRA established the Railroad Safety Advisory 
Committee (RSAC), which provides a forum for collaborative rulemaking 
and program development. RSAC includes representatives from all of the 
agency's major stakeholder groups, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties. A list of RSAC members follows:

American Association of Private Railroad Car Owners (AARPCO);
American Association of State Highway & Transportation Officials 
(AASHTO);
American Chemistry Council;
American Petroleum Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);

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Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA);*
Fertilizer Institute;
High Speed Ground Transportation Association (HSGTA);
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA);*
League of Railway Industry Women;*
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB);*
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte;*
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada;*
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC);
Transportation Security Administration (TSA); and
United Transportation Union (UTU).

*Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. The working group may establish one or more 
task forces or other subgroups to develop facts and options on a 
particular aspect of a given task. The task force, or other subgroup, 
reports to the working group. If a working group comes to consensus on 
recommendations for action, the package is presented to RSAC for a 
vote. If the proposal is accepted by a simple majority of RSAC, the 
proposal is formally recommended to FRA. FRA then determines what 
action to take on the recommendation. Because FRA staff play an active 
role at the working group level in discussing the issues and options 
and in drafting the language of the consensus proposal, and because the 
RSAC recommendation constitutes the consensus of some of the industry's 
leading experts on a given subject, FRA is often favorably inclined 
toward the RSAC recommendation. However, FRA is in no way bound to 
follow the recommendation and the agency exercises its independent 
judgment on whether the recommended rule achieves the agency's 
regulatory goals, is soundly supported, and is in accordance with 
applicable policy and legal requirements. Often, FRA varies in some 
respects from the RSAC recommendation in developing the actual 
regulatory proposal or final rule. Any such variations would be noted 
and explained in the rulemaking document issued by FRA. If the working 
group or RSAC is unable to reach consensus on recommendations for 
action, FRA resolves the issue(s) through traditional rulemaking 
proceedings or other action.

III. RSAC Conductor Certification Working Group

    On December 10, 2008, the RSAC accepted a task (No. 08-07) entitled 
``Conductor Certification.'' The purpose of this task was defined as 
follows: ``To develop regulations for certification of railroad 
conductors, as required by the Rail Safety Improvement Act of 2008 
(Act), and to consider any appropriate related amendments to existing 
regulations.'' The task called for the RSAC Conductor Certification 
Working Group (Working Group) to perform the following:
     Review safety data bearing on opportunities for reducing 
risk associated with the duties performed by freight and passenger 
conductors.
     Assist FRA in developing regulations responsive to the 
legislative mandate.
     Consider any revisions to 49 CFR Part 240 appropriate to 
conform and update the certification programs for locomotive engineers 
and conductors.
    The task also listed issues requiring specific report:
     What requirements for training and experience are 
appropriate?
     What classifications of conductors should be recognized?
     To what extent do existing requirements and procedures for 
certification of locomotive engineers provide a model for conductor 
certification?
     To what extent should unsafe conduct occurring while a 
locomotive engineer affect certification status as a conductor, and 
vice versa?
     Starting with the locomotive engineer certification model, 
what opportunities are available for simplifying appeals from 
decertification decisions of the railroads?
    The Working Group was formed from interested organizations that are 
members of the RSAC. In addition to FRA, the following organizations 
contributed members:
    AAR, including members from BNSF Railway Company (BNSF), Canadian 
National Railway (CN), Canadian Pacific Railway (CP), CSX 
Transportation, Inc. (CSX), Iowa Interstate Railroad, LTD, Kansas City 
Southern Railway (KCS), Northeast Illinois Regional Commuter Railroad 
Corporation (METRA), Norfolk Southern Railway Company (NS), and Union 
Pacific Railroad (UP);
    The National Railroad Passenger Corporation (Amtrak);
    APTA, including members from Long Island Rail Road (LIRR), Metro-
North Railroad (MNCW), Southeastern Pennsylvania Transportation 
Authority (SEPTA), Southern California Regional Rail Authority 
(Metrolink), and Transit Solutions Group (TSG);
    ASLRRA, including members from Anacostia Rail Holdings (ARH), 
Genesee & Wyoming Inc. (GNWR), Omnitrax Inc. (Omnitrax), Rio Grande 
Pacific Corporation (RGP), and WATCO Companies, Inc. (WATCO);
    BLET;
    National Railroad Construction & Maintenance Association, including 
members from Herzog Transit Services (Herzog);
    NTSB;
    TWU; and
    UTU.
    DOT's John A. Volpe National Transportation Systems Center (Volpe 
Center) also contributed members to the Working Group.
    The Working Group convened 6 times on the following dates and 
locations:
     July 21-23, 2009 in Washington, DC;
     August 25-27, 2009 in Overland Park, KS;
     September 15-17, 2009 in Colorado Springs, CO;
     October 20-22, 2009 in Arlington, VA;
     November 17-19, 2009 in Scottsdale, AZ; and
     December 16-18, 2009 in Washington, DC.
    To aid the Working Group in its development of recommendations for 
certification of conductors, FRA prepared draft regulatory text, which 
it distributed prior to the July meeting. The draft text closely 
followed 49 CFR part 240 which governs the qualification and 
certification of locomotive engineers.
    During each meeting, Working Group members made recommendations 
regarding changes and additions to the draft text. Following each 
meeting, FRA

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considered all of the recommendations and revised the draft text 
accordingly. Minutes of each of these meetings are part of the docket 
in this proceeding and are available for public inspection.
    Having worked closely with the RSAC in developing its 
recommendations, FRA believes that the RSAC has effectively addressed 
concerns with regard to the certification of conductors. FRA has 
greatly benefited from the open, informed exchange of information 
during the meetings. The Working Group reached consensus on all of its 
recommended regulatory provisions. On March 18, 2010, the Working Group 
presented its recommendations to the full RSAC for concurrence. All of 
the members of the full RSAC in attendance at the March meeting 
accepted the regulatory recommendations submitted by the Working Group. 
Thus, the Working Group's recommendations became the full RSAC's 
recommendations to FRA.
    As contemplated by the Working Group's task statement, the 
promulgation of the conductor certification regulation opens up 
consideration of conforming changes to 49 CFR part 240, ``Qualification 
and certification of locomotive engineers.'' Such changes could include 
amending the program submission process, adding 49 CFR 218, subpart F 
violations as revocable offenses, and handling engineer and conductor 
petitions for review with a single FRA board. Although FRA intended for 
the Working Group to consider changes to part 240 during its July-
December meetings, the Working Group was unable to undertake that task. 
Moreover, members of the Working Group felt that it would be more 
efficient to discuss changes to part 240 after the conductor 
certification regulation is finalized and comments are received. 
Therefore, FRA expects the Working Group to continue meeting after 
publication of this NPRM and to provide recommendations that address 
both the comments to this NPRM and conforming changes to part 240.
    In addition to the conductor certification Working Group, 
interested parties should also be aware that other RSAC working groups 
are currently meeting to discuss potential FRA regulations which may 
impact the conductor certification regulation. The Medical Standards 
for Safety-Critical Personnel Working Group (RSAC Task No.: 06-03), for 
example, is developing recommendations for a FRA medical standards 
regulation. That regulation, if promulgated, could supersede some of 
the medically-related requirements in the conductor certification 
regulation. Further, the Training Standards Working Group (RSAC Task 
No.: 10-01) is developing recommendations for a FRA training 
regulation. While FRA does not expect that such a training regulation 
would supersede the training requirements in the conductor 
certification regulation, FRA does not know at this time what the final 
training regulation will provide. Some modification of the training 
requirements in this proposed part (e.g., removal of the task analysis 
requirement) may be necessary to conform to the final requirements of 
the training regulation.

IV. Section-by-Section Analysis

Subpart A--General

    Subpart A of the proposal contains the general provisions of the 
rule, including a formal statement of the rule's purpose and scope. The 
subpart also provides that this proposed rule would not constrain a 
railroad's ability to prescribe additional or more stringent 
requirements for its conductors that are not inconsistent with this 
proposed rule.
Section 242.1 Purpose and Scope
    This section, derived from 49 CFR 240.1, provides that the proposed 
rule prescribes minimum standards for the eligibility, training, 
testing, certification and monitoring of persons who serve as 
``conductors.'' This section indicates that the purpose of the proposed 
rule is to ensure that only those persons who meet minimum Federal 
safety standards serve as conductors, to reduce the rate and number of 
accidents and incidents, and to improve railroad safety.\1\
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    \1\ Paragraph (a) of this section has been slightly modified 
from the version voted on by the Working Group and full RSAC. The 
modification is meant to clarify that only those persons that meet 
the minimum safety standards in this proposed rule would be 
permitted to serve as conductors.
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    Despite the fact that a person may have a job classification title 
other than that of conductor, the conductor certification requirements 
of this proposed rule would apply to that person if he or she meets the 
definition of conductor. That definition (and who would be covered by 
the definition) is discussed in more detail in the section analysis for 
proposed Sec.  242.7 below.
Section 242.3 Application and Responsibility for Compliance
    This section is derived, essentially verbatim, from 49 CFR 240.3. 
The section provides that the proposed rule would apply to all 
railroads with two exclusions. The first exclusion addresses several 
types of operations that occur on tracks that are not part of the 
general railroad system. This exclusion would encompass operations 
commonly described as tourist, scenic, or excursion service to the 
extent that they occur on tracks that are not part of the general 
railroad system. This exclusion also addresses operations that occur 
within the confines of industrial installations commonly referred to as 
``plant railroads'' and typified by operations such as those in steel 
mills that do not go beyond the plant's boundaries and that do not 
involve the switching of rail cars for entities other than themselves.
    The second exclusion covers rapid transit operations in an urban 
area that are not connected to the general system. It should be noted, 
however, that some rapid transit type operations, given their links to 
the general system, are within FRA's jurisdiction and FRA specifically 
intends to have this proposed rule apply to those rapid transit type 
operations. This proposed rule is not intended to have any effect on 
FRA's jurisdiction. Since this proposed rule is intended to apply to 
the same railroads covered by part 240, one should refer to the 
preamble discussions of 49 CFR 240.3 in 64 FR 60966, 60974 (Nov. 8, 
1999), 63 FR 50626, 50636-50637 (Sept. 22, 1998), and 56 FR 28228, 
28240 (June 19, 1991) for a more detailed analysis of the applicability 
of this proposed rule.
Section 242.5 Effect and Construction
    This section addresses several legal issues.\2\ Paragraph (a) 
addresses the relationship of this proposed rule to preexisting legal 
relationships. Paragraph (b) states that FRA does not intend to alter 
the authority of a railroad to initiate disciplinary sanctions against 
its employees by issuance of this proposed rule.
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    \2\ This section has been modified from the version of the 
section voted on by the Working Group and full RSAC, including the 
removal of paragraphs (a) and (b). Those paragraphs addressed 
preemption of State law which FRA now believes would be unnecessary 
because 49 U.S.C. 20106 and other Federal railroad safety statutes 
sufficiently address the preemptive effect of FRA's regulations. 
Providing a separate Federal regulatory provision concerning the 
regulation's preemptive effect would be duplicative and unnecessary.
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    Paragraph (c) of this section addresses the issue of ``flowback.'' 
The term flowback has been used in the industry to describe a situation 
where an employee leaves his or her current position to return to a 
previously held position or craft. An example of flowback occurs when a 
person who holds the position of a conductor subsequently qualifies for 
the position of locomotive engineer, and at some later point in time 
the person finds it necessary or preferable to revert back to a 
conductor position. The reasons for

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reverting back to the previous craft may derive from personal choice or 
a less voluntary nature; e.g., downsizing.
    Many collective bargaining agreements address the issue of 
flowback. As a general matter, FRA does not intend to create or 
prohibit the right to flowback or take a position on whether flowback 
is desirable. However, paragraph (c) of this section must be read in 
conjunction with Sec.  242.213, which limits flowback in certain 
situations.\3\ As described in the section analysis for that section 
below, a person who holds a conductor and locomotive engineer 
certificate and who has had his or her locomotive engineer certificate 
revoked could not work as a conductor during the period of revocation. 
In addition, a person who holds a conductor and locomotive engineer 
certificate and who has had his or her conductor certification revoked 
for certain violations could not work as a locomotive engineer during 
the period of revocation.
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    \3\ The reference to Sec.  242.213 in Sec.  242.5(c) was not 
considered by the Working Group or the full RSAC, but was added by 
FRA to clarify this proposed rule's position on flowback.
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    Paragraph (d) of this section addresses employee rights. The intent 
of the proposed rule is to explicitly preserve any remedy already 
available to the person and not to create any new entitlements. FRA 
expects that employees would benefit from this paragraph by referring 
to it should a railroad use this regulation as an inappropriate 
explanation for ignoring an employee's rights or remedies. A railroad 
must consider whether any procedural rights or remedies available to 
the employee would be inconsistent with this part.
Section 242.7 Definitions
    This section contains the definitions that FRA proposes to employ 
in this rule. Most of the definitions are taken essentially verbatim 
from 49 CFR part 240 and have been thoroughly analyzed in that 
rulemaking. Parties seeking a detailed analysis of those definitions 
should refer to the part 240 rulemaking documents. See, 54 FR 50890 
(Dec. 11, 1989), 56 FR 28228 (June 19, 1991), 58 FR 18982 (Apr. 9, 
1993), 60 FR 53133 (Oct. 12, 1995), 63 FR 50626 (Sept. 22, 1998), 73 FR 
80349 (Dec. 31, 2008), and 74 FR 68173 (Dec. 23, 2009). Some of the 
definitions in this proposed rule, however, are not found in part 240 
or have been substantively modified from their use in part 240. Those 
definitions are analyzed below.
    As mentioned above, potential rulemakings involving medical 
standards and 49 CFR part 219 (Control of Alcohol and Drug Use) may 
impact many of the definitions in part 240 and proposed part 242. For 
example, definitions relating to medical standards (e.g., ``medical 
examiner'') and drug and alcohol control (e.g., ``substance abuse 
disorder'') in parts 240 and 242 may be superseded by definitions 
provided in those rulemakings. However, until those rulemakings are 
promulgated, the definitions in parts 240 and 242 will control.
Conductor
    Although the RSIA requires FRA to establish a program for the 
certification of conductors, the Act does not define the term 
``conductor.'' Without guidance from the Act, FRA proposes, and RSAC 
recommended, that the definition of ``conductor'' be based on the 
generally understood responsibilities of that position, similar to Part 
240's approach to defining locomotive engineer. This proposed rule 
defines conductor as ``the crewmember in charge of a train or yard crew 
as defined in part 218 of this chapter.'' Part 218 defines ``train or 
yard crew'' as:

    ``one or more railroad employees assigned a controlling 
locomotive, under the charge and control of one crew member; called 
to perform service covered by Section 2 of the Hours of Service Act; 
involved with the train or yard movement of railroad rolling 
equipment they are to work with as an operating crew; reporting and 
working together as a unit that remains in close contact if more 
than one employee; and subject to the railroad operating rules and 
program of operational tests and inspections required in Sec. Sec.  
217.9 and 217.11 of this chapter.''

    As the use of the singular form of ``crewmember'' suggests, FRA's 
proposed definition mandates that only one person could be in charge of 
the train or yard crew and that person would be deemed the conductor 
for purposes of this proposed regulation only. Moreover, in some 
circumstances, a locomotive engineer, including a remote control 
operator, would be required to be certified as both a locomotive 
engineer under 49 CFR part 240 and as a conductor under this proposed 
rule. See proposed 49 CFR 242.213(d) and (e). All other train or yard 
crew members (e.g., assistant conductors, brakemen, hostlers, trainmen, 
switchmen, utility persons, flagmen, yard helpers, and others who might 
have different job titles but perform similar duties and are not in 
charge of a train or yard crew) do not fall within the definition of 
``conductor'' for purposes of this proposed rule.
Ineligible or Ineligibility \4\
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    \4\ The definition of this term was not considered by the 
Working Group or the full RSAC. However, the use of term in part 240 
has generated some confusion and, therefore, FRA hopes to avoid any 
confusion in this proposed rule by defining the term.
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    The term ``ineligible'' or ``ineligibility,'' which is not used in 
part 240, means that a person is legally disqualified from serving as a 
certified conductor. The term is broadly defined to cover a number of 
circumstances in which a person may not serve as a certified conductor. 
Revocation of certification pursuant to Sec.  242.407 and denial of 
certification pursuant to Sec.  242.401 are two examples in which a 
person would be ineligible to serve as a conductor. A period of 
ineligibility may end when a condition or conditions are met--for 
example, when a person meets the conditions to serve as a conductor 
following an alcohol or drug violation pursuant to proposed Sec.  
242.115.
Job Aid
    The term ``job aid,'' which is not used in part 240, is defined as 
information regarding other than main track physical characteristics 
that supplements the operating instructions of the territory over which 
the locomotive or train movement will occur. The terms ``main track'' 
and ``physical characteristics'' are discussed below.
    The term ``job aid'' is broadly defined in this proposed rule. A 
job aid would consist of information that could be obtained from a 
variety of sources, including but not limited to, training on the 
territory pursuant to proposed Sec.  242.119, maps, charts or visual 
aids of the territory, or a person or persons to contact who are 
qualified on the territory and who can describe the physical 
characteristics of the territory. While each railroad would have 
flexibility in how it conveys the information in a job aid to a 
conductor, the job aid would, at a minimum have to cover the 
characteristics of the territory over which the locomotive or train 
movement will occur including: permanent close clearances, location of 
permanent derails and switches, assigned radio frequencies in use and 
special instructions required for movement, if any, and railroad-
identified unique operating conditions.
    Pursuant to proposed Sec.  242.121(c)(4)(v), each railroad would be 
required to test conductors and conductor candidates on the use of any 
job aid that a railroad could provide a conductor. Proposed Sec.  
242.301(d) describes the conditions under which a railroad should 
provide a conductor with a job aid.

[[Page 69170]]

Main Track
    The term ``main track'' is defined as a track upon which the 
operation of trains is governed by one or more of the following methods 
of operation: timetable; mandatory directive; signal indication; 
positive train control as defined in 49 CFR part 236; or any form of 
absolute or manual block system. That definition mirrors the definition 
of ``main track'' in 49 CFR part 240, but also includes a reference to 
positive train control.
Medical Examiner
    The term ``medical examiner'' is defined as a person licensed as a 
doctor of medicine or doctor of osteopathy. A medical examiner could be 
a qualified full-time salaried employee of a railroad, a qualified 
practitioner who contracts with the railroad on a fee-for-service or 
other basis, or a qualified practitioner designated by the railroad to 
perform functions in connection with medical evaluations of employees. 
As used in this proposed rule, the medical examiner would owe a duty to 
make an honest and fully informed evaluation of the condition of an 
employee.
    The only difference between the definition of medical examiner in 
this proposed rule and the definition in 49 CFR part 240 is that under 
part 240, the medical examiner owes ``a duty to the railroad.'' In this 
proposed rule, however, the words ``to the railroad'' have been 
deleted. This change was made to address a concern of some Working 
Group members that a medical examiner should not owe a duty to just the 
railroad but rather should owe a duty to both the railroad and the 
employee being evaluated.
On-the-Job Training
    The term ``on-the-job training,'' which is not defined in part 240, 
means job training that occurs in the work place (i.e., the employee 
learns the job while doing the job). In this proposed rule, the ``on-
the-job training'' portion of the training program (see proposed Sec.  
242.119) would be required to be based on a model generally accepted by 
the educational community, and must consist of three key components: 
(1) A brief statement describing the tasks and related steps the 
employee must be able to perform; (2) a statement of the conditions 
(i.e., tools, equipment, documentation, briefings, demonstrations, and 
practice) necessary for learning transfer; and (3) a statement of the 
standards by which proficiency can be measured through a combination of 
task/step accuracy, completeness, and repetition.
Passenger Conductor
    The term ``passenger conductor'' is defined as a conductor who has 
also received emergency preparedness (EPREP) training under 49 CFR part 
239. Interested parties should note that nothing in this proposed rule 
requires a conductor for private/non-revenue movements (e.g., business 
car specials) to have the EPREP training. This position is consistent 
with 49 CFR 239.3(b).
Physical Characteristics
    The term ``physical characteristics,'' which is not defined in part 
240, means the actual track profile of and physical location for points 
within a specific yard or route that affect the movement of a 
locomotive or train. ``Physical characteristics'' include both main 
track physical characteristics (the term ``main track'' is analyzed 
above) and other than main track physical characteristics. Examples of 
physical characteristics could include permanent close clearances, 
location of permanent derails and switches, and grade.
Qualified
    The term ``qualified'' is defined as a person who has successfully 
completed all instruction, training and examination programs required 
by the employer, and the applicable parts of this chapter and therefore 
could reasonably be expected to be proficient on all safety related 
tasks the person is assigned to perform. The definition of 
``qualified'' in this proposed rule differs from its definition in part 
240 in that part 240's definition focuses on a person's knowledge 
whereas the definition in this proposed rule focuses not only on 
knowledge but also on whether the person could reasonably be expected 
to be proficient at performing all assigned tasks. The revision to the 
definition of ``qualified'' is an attempt to ensure that a railroad's 
instruction and training program not only provide knowledge of how to 
perform a task but also the ability to proficiently perform the task.
Qualified Instructor
    The term ``qualified instructor,'' which is derived from the 
definition of ``instructor engineer'' in part 240, means a person who 
has demonstrated, pursuant to the railroad's written program, an 
adequate knowledge of the subjects under instruction and, where 
applicable, has the necessary operating experience to effectively 
instruct in the field. A qualified instructor would be required to have 
the following qualifications:
    (1) Is a certified conductor under this part; and
    (2) Has been selected as such by a designated railroad officer, in 
concurrence with the designated employee representative, where present; 
or
    (3) In absence of concurrence provided in paragraph (2) of this 
definition, has a minimum of 12 months service working as a train 
service employee.

If a railroad does not have designated employee representation, then a 
person employed by the railroad need not comply with items (2) or (3) 
of this definition to be a ``qualified instructor.''
    Items (2) and (3), while not found in part 240's definition of 
``instructor engineer,'' are included here to address the concerns of 
some Working Group members that employees, through their 
representatives, should have input in the selection of instructors who 
might be viewed as inexperienced (i.e., a person with less than 12 
months service working as a train service employee).
Remote Control Operator
    The term ``remote control operator'' (RCO) means a certified 
locomotive engineer, as defined in Sec.  240.7 of this chapter, 
certified by a railroad to operate remote control locomotives pursuant 
to Sec.  240.107 of this chapter. Although this term is not defined in 
part 240, FRA intends for the term to have the same meaning in this 
proposed rule as it does in part 240. FRA defines the term in this 
proposed rule to avoid any confusion as to who this proposed rule is 
referring to when it references a remote control operator.
    The definition of RCO recommended by the Working Group used the 
word ``trained'' instead of ``certified.'' FRA, however, believes the 
definition in this proposed part should to be consistent with the 
definition of RCO in 49 CFR 218.93. Thus, FRA replaced the word 
``trained'' with ``certified'' in this proposed rule to parallel 49 CFR 
218.93.
Substance Abuse Disorder
    The term ``substance abuse disorder'' refers to a psychological or 
physical dependence on alcohol or a drug or another identifiable and 
treatable mental or physical disorder involving the abuse of alcohol or 
drugs as a primary manifestation. A substance abuse disorder is 
``active'' within the meaning of this proposed rule if the person (1) 
is currently using alcohol or other drugs, except under medical 
supervision consistent with the restrictions described in Sec.  219.103 
of this chapter or (2) has failed to successfully complete primary 
treatment or successfully participate in

[[Page 69171]]

aftercare as directed by a Substance Abuse Professional (SAP).
    The definition of substance abuse disorder in this proposed rule is 
the same as the definition in part 240 except in two respects. First, 
part 240's definition refers to an ``EAP Counselor'' rather than a SAP. 
Since SAPs have more stringent credential, knowledge, training, and 
continuing education requirements than EAPs, SAPs may be better 
qualified to direct a person's treatment or aftercare. Second, part 240 
uses the phrase ``is currently using alcohol and other drugs'' when 
describing active substance abuse disorders. The proposed rule would 
revise that phrase to read ``is currently using alcohol or other 
drugs.'' FRA is proposing the revision to clarify its intent that a 
person with an active substance abuse disorder could be using alcohol 
or other drugs.
    The proposed definition for ``substance abuse disorder'' is similar 
to the language employed to govern disposition of employees referred to 
an employee assistance program under the ``co-worker report'' (bypass) 
provision of the alcohol/drug regulations. It describes the condition 
of chemical dependency, as determined by an appropriate professional. 
Reference is made to other disorders involving abuse of alcohol and 
other drugs (i.e., ``another identifiable and treatable mental or 
physical disorder involving the abuse of alcohol or drugs as a primary 
manifestation'') to avoid disputes concerning diagnoses of 
``underlying'' problems. The crux of the definition is that a person 
making uncontrolled use of alcohol or drugs is not a suitable candidate 
for the highly sensitive duties entrusted to a conductor. Since 
chemical dependency typically involves or has the potential for poly-
drug abuse, the appropriate long-term therapy is abstinence from 
alcohol and all other drugs, except those taken under medical 
supervision.
    The proposed definition explains that the disorder would be 
considered ``active'' within the meaning of the rule if the person is 
not currently abstaining from use of alcohol and drugs (except under 
medical supervision consistent with FRA's alcohol/drug regulations) or 
has not participated in treatment as required. FRA is aware that many 
individuals abuse alcohol and drugs, with consequent ill-effects on 
their health and potential implications for fitness, without fitting 
within common definitions of chemical dependency. However, degrees of 
abuse are difficult to define; and significant disagreements prevail 
with regard to appropriate therapeutic responses. Accordingly, FRA has 
not required withholding of certification for patterns of abuse that 
fall short of chemical dependency. At the same time, FRA does not 
intend to convey that the concept of chemical dependency need meet the 
most rigid test used in any particular segment of the health care or 
mental health communities. The critical point here with respect to 
safety is that conductors not be in the grip of uncontrolled abuse 
patterns that, if addressed through treatment and permanent abstinence, 
could be put behind them.
Substance Abuse Professional (SAP)
    The term ``Substance Abuse Professional'' (SAP)\5\ means a person 
who meets the qualifications of a SAP, as provided in 49 CFR Part 40. 
Pursuant to this proposed rule, the SAP would owe a duty to the 
railroad to make an honest and fully informed evaluation of the 
condition and progress of an employee. FRA notes that the duty owed by 
a SAP does not parallel the duty owed by a ``medical examiner'' (see 
above) in the proposed rule recommend by the full RSAC. As currently 
written, a medical examiner would owe a duty to both the railroad and 
the employee being evaluated while a SAP would owe a duty only to the 
railroad. FRA welcomes comments as to whether a SAP should owe a duty 
to both the employee being evaluated and the railroad (i.e., whether 
the words ``to the railroad'' should be deleted from the definition of 
SAP).
---------------------------------------------------------------------------

    \5\ The draft recommended by the Working Group and the full RSAC 
used the term ``Substance Abuse Profession.'' That was a clerical 
error on FRA's part and the term has been corrected in this NPRM to 
read ``Substance Abuse Professional.''
---------------------------------------------------------------------------

Territorial Qualifications
    The term ``territorial qualifications'' means possessing the 
necessary knowledge concerning a railroad's operating rules and 
timetable special instructions including familiarity with applicable 
main track and other than main track physical characteristics of the 
territory over which the locomotive or train movement will occur. 
Although not defined in part 240, the term is derived from part 240's 
requirement that, with certain exceptions, a locomotive engineer may 
not operate a locomotive over a territory unless the engineer is 
``qualified on the physical characteristics of the territory.'' See 49 
CFR 240.231. Pursuant to Sec.  242.301 of this proposed rule, a person 
could not serve as a conductor unless the person was certified and 
possessed the necessary territorial qualifications for the applicable 
territory.
Section 242.9 Waivers
    This section tracks the regulatory language in 49 CFR 240.9 and 
provides the proposed requirements for a person seeking a waiver of any 
section of this proposed rule. After review, however, FRA believes this 
section is unnecessary because 49 CFR part 211 sufficiently addresses 
the waiver process. FRA welcomes comments as to whether this proposed 
section should be removed.
Section 242.11 Penalties and Consequences for Noncompliance
    This section tracks the regulatory language in 49 CFR 240.11 and 
provides minimum and maximum civil penalty amounts determined in 
accordance with the Federal Civil Penalties Inflation Adjustment Act of 
1990, Public Law 101-410 Stat. 890, 28 U.S.C. 2461 note, as amended by 
the Debt Collection Improvement Act of 1996 Public Law 104-134, April 
26, 1996, and the RSIA.
Section 242.13 Information Collection Requirements
    This section lists the sections of the proposed rule which contain 
information collection requirements.

Subpart B--Program and Eligibility Requirements

    This subpart contains the basic elements of the conductor 
certification program required by this proposed rule. Based on the 
RSIA's requirement for ``certification'' of conductors and FRA's 
experience with certification of locomotive engineers, this rulemaking 
proposes to adopt a certification system (i.e., FRA sets eligibility 
criteria but leaves it to the railroads to evaluate candidates by those 
standards) rather than a traditional licensing system (i.e., a 
government agency sets eligibility criteria and evaluates candidates). 
As with part 240, this proposed rule affords railroads considerable 
discretion in the daily administration of their certification programs.
Section 242.101 Certification Program Required
    This section proposes to require railroads to have a written 
program composed of six elements, each of which comports with specific 
provisions relating to that element.\6\ To give the railroads time to 
put their conductor programs into place and to accommodate the fact 
that many

[[Page 69172]]

railroads perform training and certification of locomotive engineers at 
the beginning of each calendar year, FRA is proposing to make January 
1, 2012, the effective date of the final rule. FRA is proposing that 
date based on FRA's anticipation that the Final Rule will be published 
in early 2011. The rest of the dates proposed in this rule (e.g., dates 
by which each railroad must grandfather its eligible conductors in 
Sec.  242.105) are based on the proposed effective date of January 1, 
2012. Interested parties should note that FRA cannot guarantee any of 
the dates proposed in this NPRM. The dates have been included merely to 
generate discussion regarding the amount of time needed to implement a 
conductor certification program once a Final Rule has been published. 
FRA welcomes comments on the dates proposed in this NPRM.
---------------------------------------------------------------------------

    \6\ FRA deleted paragraphs (a) and (b) of this section from the 
version considered by the Working Group and full RSAC. FRA believes 
those paragraphs are superfluous in light of the proposed dates 
provided in other sections of the NPRM regarding submission and 
approval of railroad programs.
---------------------------------------------------------------------------

Section 242.103 Approval of Design of Individual Railroad Programs by 
FRA
    This section proposes to require each railroad to submit its 
certification program to FRA for approval in accordance with a schedule 
to be provided in the final rule. The proposed schedule for submissions 
in paragraph (a) would require Class I railroads, Amtrak, the commuter 
railroads, and Class II railroads to submit their programs at an 
earlier date than the Class III railroads or others not classified 
elsewhere.\7\ The format and contents of the submission are discussed 
at length in appendix B to this proposed rule.
---------------------------------------------------------------------------

    \7\ FRA has made some modifications to paragraph (a) of this 
section from the version considered by the Working Group and full 
RSAC. FRA believes those modifications are necessary to ensure a 
sensible schedule and future implementation of the conductor 
certification regulation.
---------------------------------------------------------------------------

    Unlike part 240, this proposed rule would require railroads to 
serve a copy of their submissions, resubmissions and material 
modifications on the president of each labor organization that 
represents the railroad's certified conductors. Within 45 days of the 
filing of any of those submissions with FRA, any designated 
representative of certified conductors could submit comments on the 
railroad's submissions to FRA. Although FRA, and not the commenters, 
would determine whether a railroad's submission was approved, FRA 
expects that comments would be useful in determining whether the 
railroad's program conforms to the criteria set forth in this proposed 
rule.
    This section also proposes to require each railroad to indicate how 
it intends to acquire future conductors. If a railroad accepts the 
responsibility for training a previously uncertified person to become a 
conductor, the railroad must explain its training regimen for such 
trainees, including provisions for relying on an outside training 
organization to provide the actual training.
    The proposed rule provides 30 days for FRA review and approval of 
railroad programs. FRA is proceeding in this manner because most 
railroads have existing programs, including locomotive engineer 
certification programs, intended to accomplish a similar goal that can 
be easily modified. The quality of such programs is generally good and 
the problems that may be encountered would not likely involve basic 
design flaws and generally would not surface until FRA has had time to 
observe the actual administration of the program. In screening all 
submissions FRA should be able to quickly detect any substantial 
deficiencies. Given the quality of existing programs, FRA sees little 
value in delaying implementation of the programs for time-consuming 
agency review. FRA may, of course, disapprove any program during the 
review cycle or at a later date. FRA will explain any deficiencies in 
writing. This section proposes to require a timely railroad response to 
an FRA disapproval action as a railroad will have no more than 30 days 
to revise and resubmit its program.
Section 242.105 Schedule for Implementation
    This section contains the timetable for implementation of the 
proposed rule. Paragraphs (a) and (b) of this section would require 
that railroads, in writing, designate as certified conductors all 
persons authorized by the railroad to perform the duties of a conductor 
as of the effective date of the final rule, or authorized between the 
effective date of the final rule and dates specified in paragraph (d) 
or (f) of this section, and to issue a certificate to each person it 
designates. The mandatory designation requirement of this section is 
included to address the concerns of some Working Group members that 
railroads should not be given the discretion to engage in disparate 
treatment of its employees (i.e., designate and provide a certificate 
to some people who are authorized to perform the duties of a conductor 
as of the effective date of the final rule but not others).
    Paragraph (c) of this section would require each railroad to make 
formal determinations concerning those employees it has 
``grandfathered'' (i.e., designated as conductors) within 36 months of 
the date for compliance by its class of railroad. Pursuant to that 
paragraph, a grandfathered conductor could serve as a conductor for up 
to 36 months from the date of compliance for the railroad (i.e., the 
date specified in paragraph (d) or (e) of this section). At the end of 
the 36 months, however, the grandfathered conductor could no longer 
serve as a conductor unless he or she successfully completed the tests 
and evaluations provided in subpart B of this proposed rule (i.e., the 
full certification process).
    In order to test and evaluate all of its grandfathered conductors 
by the end of the 36-month period, a large railroad would likely have 
to begin that process well in advance of the end of the 36 months. For 
example, paragraph (c), which is derived from part 240's grandfathering 
provision, would permit a railroad to test and evaluate one-third of 
its grandfathered conductors within 12 months of the railroad's date of 
compliance; another one-third within 24 months of its date of 
compliance; and the final one-third within 36 months of its date of 
compliance.
    Some of the Working Group members raised concerns about 
grandfathered conductors who would be eligible to retire within 36 
months of the date for compliance by their class of railroad. 
Specifically, some members did not believe it was an efficient use of 
resources to perform the full certification process on a grandfathered 
conductor who was going to retire before the end of the 36-month 
grandfathering period. To address those concerns, subparagraph (c)(1) 
provides that a grandfathered conductor, who is eligible to receive a 
retirement pension in accordance with the terms of an applicable 
agreement or with the terms of the Railroad Retirement Act (45 U.S.C. 
231) within 36-months prior to the date they would be required to be 
tested and evaluated under subpart B of this proposed rule, may 
request, in writing, that the railroad not perform the full 
certification process on that grandfathered conductor until 36 months 
from the date of required testing and evaluation.
    Paragraph (c)(2) provides that, upon receipt of that written 
request, a railroad may wait to perform the full certification process 
on the person making the request until the end of the 36-month 
grandfathering period. Thus, paragraphs (c)(1) and (c)(2) would allow 
grandfathered conductors to serve as conductors for the full 36-month 
grandfathering period and then retire before being subjected to the 
full certification process.
    While it is in the railroads' interest not to perform the full 
certification process for a person who is going to retire once the 
grandfathering period

[[Page 69173]]

expires and thus in their interest to grant as many requests as 
possible, it may not be feasible to accommodate every request that is 
made. If, for example, a significant number of grandfathered conductors 
on a railroad properly request that the railroad wait to recertify them 
at the end of the grandfathering period, but then do not, in fact, 
retire by the expiration of the 36-month grandfathering period, the 
railroad might not be able to certify everyone in time and would risk 
violating this proposed rule. In recognition of that risk and the need 
to give the railroads some flexibility to comply with the proposed 
rule, paragraph (c)(2) also provides that a railroad that grants any 
request must grant the request of all eligible persons ``to every 
extent possible.''
    In addition, paragraph (c)(3) provides that a grandfathered 
conductor who is also subject to recertification under part 240 may not 
make a request under subparagraph (c)(1) of this section. That 
provision recognizes that railroads would likely want to have 
concurrent certification processes for certifying a person who will be 
both a certified locomotive engineer and a conductor and thus it would 
not be appropriate, in that instance, for a grandfathered conductor who 
is already subject to recertification under part 240 to make a request 
to delay the full conductor certification process.
    Paragraphs (d), (e), and (f) provide that after specified dates, no 
railroad could certify or recertify a person as a conductor and no 
person could serve as a conductor unless that person had been tested 
and evaluated in accordance with the procedures provided in subpart B 
of the proposed rule and issued a certificate.
Section 242.107 Types of Service
    This section proposes to create two types of conductor service: 
Conductor and passenger conductor. As indicated in the definition 
section of this proposed rule, a ``passenger conductor'' is a 
``conductor'' who has also received emergency preparedness training 
under 49 CFR part 239.
    Paragraph (c) of this section, derived from 49 CFR 240.107(e), 
proposes to prohibit a railroad from reclassifying the certification of 
any type of certified conductor to a different type of conductor 
certification during the period in which the certification is otherwise 
valid except when a conductor completes 49 CFR part 239 emergency 
training and is certified as a passenger conductor. For example, this 
proposed rule would prohibit a railroad from requiring a passenger 
conductor to exchange his or her passenger conductor certificate for a 
conductor certificate during the period in which the passenger 
conductor certificate is otherwise valid.
    While this proposed rule would prohibit the practice of 
reclassification, it would not prevent the railroads from pursuing 
other measures to ensure the safe performance of conductor service. For 
example, the proposed rule would not prevent a railroad from placing 
restrictions on a certificate pursuant to paragraph (d) of this 
section. It should be noted, however, that while paragraph (d) would 
permit a railroad to place restrictions on a certificate, any 
restrictions would be applied and reviewed in accordance with internal 
railroad rules, procedures and processes. Proposed part 242 would not 
govern the issuance or review of restrictions as that would be a matter 
handled under a railroad's internal discipline system or collective 
bargaining agreement. See Sec.  242.5(a), (b), and (d).
Section 242.109 Determinations Required for Certification and 
Recertification
    This section lists the proposed determinations required for 
evaluating a candidate's eligibility to be certified or recertified. 
Since motor vehicle data is required to be sent to the railroad rather 
than to the candidate, paragraphs (d) and (e) of this section would 
require a railroad to provide a candidate for certification or 
recertification an opportunity to review and comment on any record 
which contains adverse information. This review would avoid the 
potential for reliance on records that were somehow erroneously 
associated with a candidate.
Section 242.111 Prior Safety Conduct As Motor Vehicle Operator
    This section, derived from 49 CFR 240.111 and 240.115, provides the 
proposed requirements and procedures that a railroad would have to 
follow when evaluating a conductor or conductor candidate's prior 
conduct as a motor vehicle operator. Although some members of the 
Working Group suggested that information regarding the prior safety 
conduct as a motor vehicle operator was unnecessary in determining 
whether a person should be certified as a conductor, FRA believes that 
the prior safety conduct of a motor vehicle operator is one indicator 
of that person's drug and/or alcohol use and therefore an important 
piece of information for a railroad to consider.
    Pursuant to this section, each person seeking certification or 
recertification as a conductor would have to request in writing that 
the chief of each driver licensing agency that issued him or her a 
driver's license within the preceding five years provide a copy of the 
person's driving record to the railroad. Unlike part 240, this proposed 
rule would not require individuals to also request motor vehicle 
operator information from the National Driver Registry (NDR). It is 
FRA's understanding that, based on the NDR statute and regulation (see 
49 U.S.C. chapter 303 and 23 CFR 1327), railroads are prohibited from 
running NDR checks or requesting NDR information from individuals 
seeking employment as certified conductors.\8\
---------------------------------------------------------------------------

    \8\ As an alternative to the NDR, some members of the Working 
Group suggested that motor vehicle operator information could be 
obtained from the National Crime Information Center (NCIC) run by 
the Federal Bureau of Investigation. However, FRA does believe the 
NCIC is an appropriate option since the information provided by the 
NCIC cannot be limited to just motor vehicle data.
---------------------------------------------------------------------------

    During the Working Group meetings, members of the Working Group 
raised concerns about conductor candidates who had properly requested 
motor vehicle operator information but were unable to be certified or 
recertified as conductors because of a delay or mix-up by a driver 
licensing agency in sending the required information to the railroad. 
To address that concern, paragraphs (c) and (d) of this section would 
require a railroad to certify or recertify a person for 60 days if the 
person: (1) Requested the required information at least 60 days prior 
to the date of the decision to certify or recertify; and (2) otherwise 
meets the eligibility requirements provided in Sec.  242.109 of this 
proposed rule. If a railroad certifies or recertifies a person for 60 
days pursuant to paragraphs (c) or (d) but is unable to obtain and 
evaluate the required information during those 60 days, the person 
would be ineligible to perform as a conductor until the information can 
be evaluated. However, if a person is simply unable to obtain the 
required information, that person or the certifying or recertifying 
railroad could petition for a waiver from FRA (see 49 CFR part 211). 
During the pendency of the waiver request, a railroad would have to 
certify or recertify a person if the person otherwise meets the 
eligibility requirements of Sec.  242.109 of this proposed rule.
    Paragraph (l) of this section would require certified conductors or 
persons seeking initial certification to notify the employing railroad 
of motor vehicle incidents described in paragraph (n) of this section 
within 48 hours of the conviction or completed state action to cancel, 
revoke, suspend, or deny a

[[Page 69174]]

motor vehicle driver's license. The paragraph also provides that, for 
purposes of conductor certification, a railroad could not have a more 
restrictive company rule requiring an employee to report a conviction 
or completed state action to cancel, revoke, or deny a motor vehicle 
drivers license in less than 48 hours.
    The reasoning behind paragraph (l) involves several intertwined 
objectives. As a matter of fairness, a railroad should not revoke, 
deny, or otherwise make a person ineligible for certification until 
that person had received due process from the state agency taking the 
action against the motor vehicle license. Otherwise, action pursuant to 
this part might be deemed premature since the American judicial system 
is based on the concept of a person being innocent until proven guilty. 
Further, by not requiring reporting until 48 hours after the completed 
state action, the proposed rule would have the practical effect of 
ensuring that a required referral to a SAP under paragraph (o) of this 
section would not occur prematurely. Interested parties should note 
however, that paragraph (l) would not prevent an eligible person from 
choosing to voluntarily self-refer pursuant to Sec.  242.115(d)(3). Nor 
would it prevent the railroad from referring the person to a SAP 
pursuant to Sec.  240.115 if other information exists that identifies 
the person as possibly having a substance abuse disorder. Further, the 
restriction would apply only to actions taken against a person's 
certificate and would have no effect on a person's right to be employed 
by that railroad.
    As mentioned above, paragraph (o) of this section would require 
that if such a motor vehicle incident described in paragraph (n) is 
identified, the railroad would be required to provide the data to its 
SAP along with ``any information concerning the person's railroad 
service record.'' Furthermore, the person would have to be referred for 
evaluation to determine if the person had an active substance abuse 
disorder. If the person has such a disorder, the person could not be 
currently certified. Alternatively, even if the person is evaluated as 
not currently affected by an active substance abuse disorder, the 
railroad would be required, on recommendation of the SAP, to condition 
certification upon participation in any needed aftercare and/or follow-
up testing for alcohol or drugs, or both. The intent of this provision 
is to use motor vehicle records to expose conductors or conductor 
candidates who may have active substance abuse disorders and make sure 
they are referred for evaluation and any necessary treatment before 
allowing them to perform safety sensitive service.
Section 242.113 Prior Safety Conduct as an Employee of a Different 
Railroad
    This section of the proposed rule, which is derived from 49 CFR 
240.113 and 240.205, proposes a process for requesting information 
regarding the candidate's prior safety conduct, if any, as an employee 
of a different railroad.
Section 242.115 Substance Abuse Disorders and Alcohol Drug Rules 
Compliance
    This proposed section, which is derived from 49 CFR 240.119 and 
240.205, would address two separate dimensions of the alcohol/drug 
problem in relation to conductors--(1) active substance abuse disorders 
and (2) specific alcohol/drug regulatory violations. This section and 
Sec.  242.111 address certain situations in which inquiry must be made 
into the possibility that the individual has an active substance abuse 
disorder if the individual is to obtain or retain a certificate. The 
fact that specific instances are cited in this section would not 
exclude the general duty of the railroad to take reasonable and 
proportional action in other appropriate cases. Declining job 
performance, extreme mood swings, irregular attendance and other 
indicators may, to the extent not immediately explicable, indicate the 
need for a SAP evaluation.
    Paragraph (a) would require each railroad to address both 
dimensions of this issue in its program. Paragraphs (b) and (c) would 
require each railroad to determine that a person initially certifying 
or a conductor recertifying meets the eligibility requirements of this 
section. Additionally, each railroad would be required to retain the 
documents used to make that determination.
    Paragraph (d) provides that a person with an active substance abuse 
disorder could not be currently certified as a conductor. This means 
that appropriate action would have to be taken with respect to a 
certificate (whether denial or suspension) whenever the existence of an 
active substance abuse disorder comes to the official attention of the 
railroad, with the exception discussed below. Paragraph (d) would also 
provide a mechanism for an employee to voluntarily self-refer for 
substance abuse counseling or treatment.
    Paragraph (e) would address conduct constituting a violation of 
Sec.  219.101 or Sec.  219.102 of the alcohol/drug regulations. Section 
219.101 prohibits any employee from going or remaining on duty in 
covered service while using, possessing, or being under the influence 
of or impaired by alcohol or a controlled substance or with a blood 
alcohol concentration of .04% or more. This is conduct that 
specifically and directly threatens safety in a way that is wholly 
unacceptable, regardless of its genesis and regardless of whether it 
has occurred previously. In its more extreme forms, such conduct is 
punishable as a felony under the criminal laws of the United States (18 
U.S.C. 341 et seq.) and a number of states.
    Section 219.102 prohibits use of a controlled substance by a 
covered employee, at any time, on or off duty, except under the 
exception for approved medical use. Abuse of marijuana, cocaine, 
amphetamines, and other controlled substances poses unacceptable risks 
to safety. However, where on-the-job use, possession, or impairment is 
not established, as is most often the case where urinalysis is the 
means of detection (e.g., through a random drug test which can detect 
drugs remaining in the system for some period after actual use), this 
violation is marginally less serious than a Sec.  219.101 violation.
    Under the alcohol/drug regulations, whenever a violation of Sec.  
219.101 or Sec.  219.102 is established based on authorized or mandated 
chemical testing, the employee must be removed from service and may not 
return until after a SAP evaluation, any needed treatment, or a 
negative return-to-duty test, and is subject to follow-up testing 
(Sec.  219.104). This structure suggests an absolute minimum for action 
when a conductor is determined to have violated one of these 
prohibitions. Considering the need both for general and specific 
deterrence with respect to future unsafe conduct, additional action 
should be premised on the severity of the violation and whether the 
same individual has prior violations.
    One key consideration in evaluating this conduct and appropriate 
responses is the duration of retrospective review. This proposed rule 
would require railroads to consider conduct that occurred within the 
period of 60 consecutive months prior to the review. This is the same 
period proposed in this rule as the maximum period of ineligibility for 
certification following repeated alcohol/drug violations and is the 
same period used in part 240.
    Use of a 5-year cycle reflects anecdotal experience in the railroad 
industry indicating that conduct committed as much as 5 years before 
may tend to predict future alcohol or drug abuse behavior (and 
recognizes the reality that most individual violations are probably not 
detected). It also

[[Page 69175]]

reflects a certain confidence in the resilience of human nature--i.e., 
a reasonable expectation that the person who remains in compliance for 
that period of time will not again be found in violation. Of course, 
railroads would retain the flexibility to consider prior conduct 
(including conduct more than 5 years prior) in determining whom they 
will hire as conductors.
    Interested parties should note that conduct violative of the FRA 
proscriptions against alcohol and drugs need not occur while the person 
is serving in the capacity of a conductor in order to be considered. 
For instance, an employee who violated Sec.  219.101 while working as a 
brakeman and then sought conductor certification six months later 
(under the provision described below) would not be currently eligible 
for certification. The same is true under part 240--an employee who 
violates Sec.  219.101 while working as a brakeman and then seeks 
locomotive engineer certification six months later would not be 
eligible for certification at that time. The railroad's responsibility 
would not be limited to periodic recertification. This proposed rule 
would prompt a review of certification status for any conduct in 
violation of Sec.  219.101 or Sec.  219.102.
    The proposed rule requires a determination of ineligibility for a 
period of 9 months for an initial violation of Sec.  219.101. This 
parallels the 9-month disqualification in Sec.  240.119(c)(4)(iii) and 
for a refusal to cooperate in post-accident or random testing. FRA does 
not believe that a conductor should be able to seek the shelter of a 
collective bargaining agreement or more lenient company policy in the 
case of a clear on-the-job violation, insofar as Federal eligibility to 
serve as a conductor is concerned. Specifying a period of ineligibility 
would serve the interest of deterrence while giving further 
encouragement to co-workers to deal with the problem before it is 
detected by management.
    In order to preserve and encourage co-worker referrals, the 9-month 
period would be waived only in the case of a qualifying co-worker 
report (see Sec.  219.405). FRA believes that this distinction in 
treatment is warranted as a strong inducement to participation because 
co-worker referral programs help identify troubled employees prior to 
those employees getting into accidents. A strong inducement to refer a 
co-worker is a worthy goal if it may contribute to a reduction in 
accidents and incidents. Although we do not know how many actual co-
worker reports may be generated, the intended result would be served if 
an atmosphere of intolerance for drug abusing behavior is reinforced in 
the workplace and violators know that they may be turned in by their 
colleagues if they report for duty impaired.
    In the case of a second violation of Sec.  219.101, the conductor 
would be ineligible for a period of 5 years. Given railroad employment 
practices and commitment to alcohol/drug compliance, it is likely, of 
course, that any individual so situated may also be permanently 
dismissed from employment. However, it is important that the employing 
railroad also follow through and revoke the certificate under this rule 
so that the conductor could not go to work for another railroad within 
the 5-year period using the unexpired certificate issued by the first 
railroad as the basis for certification. These proposed sanctions 
mirror the sanctions in Sec.  240.119.
    Under this proposed rule, one violation of Sec.  219.102 within the 
5-year window would require only temporary suspension and the minimum 
response described in Sec.  242.115(f) (referral for evaluation, 
treatment as necessary, negative return-to-duty test, and appropriate 
follow-up). This parallels the approach in part 240 and reflects FRA's 
wish not to undercut the therapeutic approach to drug abuse employed by 
many railroads. This approach would permit first-time positive drug 
tests to be handled in a non-punitive manner that concentrates on 
remediation of any underlying substance abuse problem and avoids the 
adversarial process associated with investigations, grievances and 
arbitrations under the Railway Labor Act and collective bargaining 
agreements. A second violation of Sec.  219.102 would subject the 
employee to a mandatory 2-year period of ineligibility. A third 
violation within 5 years would lead to a 5-year period of 
ineligibility. This proposed rule would also address violations of 
Sec. Sec.  219.101 and 219.102 in combination. A person violating Sec.  
219.101 after a prior Sec.  219.102 violation would be ineligible for 3 
years; and the same would be true for the reverse sequence.
    Refusals and failures to participate in chemical tests would be 
treated as if the test were positive. A refusal or failure to provide a 
breath or body fluid sample for testing under the requirements of 49 
CFR part 219 when instructed to do so by a railroad representative 
shall be treated, for purposes of ineligibility under this section, in 
the same manner as a violation of: (1) Sec.  219.101, in the case of a 
refusal or failure to provide a breath sample (49 CFR subpart D), or a 
blood specimen for mandatory post-accident toxicological testing (49 
CFR subpart C)); or (2) Sec.  219.102, in the case of a refusal or 
failure to provide a urine specimen for testing.
    Interested parties should note that if a person, covered by 49 CFR 
part 219, refuses to provide a breath or a body fluid specimen or 
specimens when required to by the railroad under a mandatory provision 
of 49 CFR part 219, then the railroad, apart from any action it would 
take under proposed part 242, is required to remove that person from 
covered service and disqualify that person from working in covered 
service for 9 months. See, 49 CFR 219.104 and 219.107; see also, 49 CFR 
Sec.  219 subpart H and 49 CFR 40.191 and 40.261.
    Proposed Sec.  242.115(f) would prescribe the conditions under 
which employees may be certified or recertified after a determination 
that the certification should be denied, suspended, or revoked, due to 
a violation of Sec.  219.101 or Sec.  219.102 of the alcohol/drug 
regulations. These conditions mirror the conditions in Sec.  240.119(d) 
and closely parallel the return-to-duty provisions of the alcohol/drug 
rule. Interested parties should note that the proposed regulation would 
not require compensation of the employee for the time spent in this 
testing, which is a condition precedent to retention of the 
certificate; but the issue of compensation would ultimately be resolved 
by reference to the collective bargaining agreement or other terms and 
conditions of employment under the Railway Labor Act. Moreover, a 
railroad that intends to withdraw its conditional certification would 
have to afford the conductor the hearing procedures provided by Sec.  
242.407 if the conductor did not waive his or her right to the hearing.
    Proposed paragraph (g) would ensure that a conductor, like any 
other covered employee, could self-refer for treatment under the 
alcohol/drug rule (Sec.  219.403) before being detected in violation of 
alcohol/drug prohibitions and would be entitled to confidential 
handling of that referral and subsequent treatment. This means that a 
railroad would not normally receive notice of any substance abuse 
disorder identified by the SAP. However, the paragraph would also 
require that the railroad policy must (rather than may) provide that 
confidentiality is waived if the conductor fails to participate 
successfully in treatment as directed by the SAP, to the extent that 
the railroad must receive notice that the employee has an active 
substance abuse disorder so that appropriate certificate action can be 
taken. The effect of this provision is

[[Page 69176]]

that the certification status of a conductor who seeks help and 
cooperates in treatment would not be affected, unless the conductor 
fails to follow through.
Section 242.117 Vision and Hearing Acuity
    This section contains proposed requirements for visual and hearing 
acuity testing that a railroad must incorporate in its conductor 
certification program. The proposed visual requirements are the same as 
those provided in 49 CFR 240.121. The testing procedures and standards 
for the proposed hearing requirements, however, are more stringent than 
those contained in 49 CFR 240.121 and were derived from the procedures 
and standards provided in 49 CFR part 227.
    Although some individuals may not be able to meet the threshold 
acuity levels in this proposed rule, they may be able to compensate in 
other ways that will permit them to function at an appropriately safe 
level despite their physical limitations. Paragraph (j) of this section 
would permit a railroad to have procedures whereby doctors can evaluate 
such individuals and make discrete determinations about each person's 
ability to compensate for his or her physical limitations. If the 
railroad's medical examiner concluded that an individual had 
compensated for his or her limitations and could safely serve as a 
conductor on that railroad, the railroad could certify that person 
under this proposed regulation once the railroad possessed the medical 
examiner's professional medical opinion to that effect.
    Paragraph (k) of this proposed section, would address the issue of 
how soon after learning of a deterioration of his or her best 
correctable vision or hearing a certified conductor would have to 
notify the railroad of the deterioration. FRA is concerned with the 
safe performance of conductor service, not whether a person can notify 
a railroad within a set time frame. Thus, FRA proposes, and the RSAC 
recommended, to require notification ``prior to any subsequent 
performance as a conductor.'' Certified conductors should note that 
willful noncompliance with this requirement could result in enforcement 
action.
    As mentioned above it is possible that a regulation recommended by 
the Medical Standards Working Group and adopted by FRA could supersede 
the hearing and vision standards and requirements in this proposed 
rule.
Section 242.119 Training
    This section, in compliance with the training requirements of the 
RSIA, proposes to require railroads to provide initial and periodic 
training of conductors. That training would be necessary to ensure 
conductors have the knowledge, skills, and abilities necessary to 
competently and safely perform all of the safety-related duties 
mandated by Federal laws, regulations, and orders.
    Paragraph (c) of this proposed section would require railroads to 
document a conductor's knowledge of, and ability to comply with, 
Federal railroad safety laws and regulations, and railroad rules used 
to implement them. In addition, that paragraph would require railroads 
to document that a conductor demonstrated that he or she is qualified 
on the physical characteristics of the railroad, or its pertinent 
segments, over which that person will perform service. This section 
would require railroads to review and modify their training program 
whenever new safety-related railroad laws, regulations, technologies, 
procedures, or equipment are introduced into the workplace.
    Under this section, railroads would have latitude to design and 
develop the training and delivery methods they will employ; but 
paragraphs (d), (e), and (f) provide proposed requirements for 
railroads that elect to train a previously untrained person to be a 
conductor. Pursuant to paragraph (d),\9\ a railroad that makes this 
election would be required to perform a task analysis in order to 
ensure completeness when developing training courses for both initial 
and periodic training courses, and on-the-job training standards for 
new conductors. Subparagraph (d)(1) of this section would permit a 
railroad to demonstrate that a task analysis, or portions of a task 
analysis, was performed for a program developed prior to the effective 
date of the regulation.
---------------------------------------------------------------------------

    \9\ Subparagraphs (d)(1) and (d)(2) have been modified somewhat 
from the language recommended by the RSAC to clarify the scope of 
what the training plan and curriculum need to cover.
---------------------------------------------------------------------------

    In the context of this proposed rule, a task analysis is the 
analysis of how conductor tasks are accomplished, including a detailed 
description of both manual and mental activities, durations, frequency, 
allocation, complexity, environmental conditions, necessary clothing 
and equipment, and any other unique factors involved in or required for 
one or more people to perform a given task. A task analysis is 
typically performed by a group of subject matter experts (SMEs) and a 
skilled educational specialist. In some cases, SMEs are also skilled as 
educational specialists. This group of SMEs should develop task lists, 
then the subtasks and steps. A task does not always have subtasks, but 
unless it is very simple, it will always have steps. The ``natural'' 
progression would be for the employer(s) to develop their learning 
objectives and on-the-job standards from this list. For purposes of 
this proposed rule, railroads should review all of the Federal 
requirements (such as 49 CFR Part 215 Appendix D, 49 CFR Part 218, 49 
CFR Part 219 Subpart D, 49 CFR Parts 220, 232, and 241, hazardous 
materials handling and documentation requirements, etc.) when 
developing their task list in order to ensure the task analysis is 
complete from an FRA perspective. FRA intends to review the railroad 
task analyses with its own SMEs.
    Paragraphs (g), (h), (i), (j), and (k) of this section contain the 
proposed requirements with respect to acquiring familiarity with the 
physical characteristics of a territory. Except for the requirements in 
paragraphs (j) and (k), the requirements parallel those in part 240. 
Paragraphs (j) and (k) of this section would require railroads to 
designate in their programs the time period in which a conductor must 
be absent from a territory or yard, before requalification on physical 
characteristics is required and the procedures used to qualify or 
requalify a person on the physical characteristics.
    Paragraphs (l) and (m) would require railroads to perform initial 
instructional briefings to ensure that each of its conductors have 
knowledge of the Federal railroad safety laws, regulations, and orders 
that relate to the safety-related tasks the employees are assigned to 
perform. The purpose of the proposed instructional briefing requirement 
is to ensure accountability for both railroads and conductors. For many 
years, FRA has encountered situations in which railroad employees have 
been non-compliant with Federal requirements, but FRA was unable to 
determine whether one of the root causes of the non-compliance was 
inadequate training. FRA intends to remedy this issue by requiring 
railroads to perform these instructional briefings. FRA would also 
expect railroads to provide this information to new employees as part 
of their formal training program. In paragraph (n) of this section, FRA 
proposes to permit each railroad to demonstrate that it has met the 
requirements of paragraphs (l) and (m) through prior training records.
    Paragraph (o) would require each railroad to provide for the 
continuing education of certified conductors to ensure that each 
conductor maintains the necessary knowledge concerning

[[Page 69177]]

railroad safety and operating rules and compliance with all applicable 
Federal regulations, including, but not limited to, hazardous 
materials, passenger train emergency preparedness, brake system safety 
standards, pre-departure inspection procedures, and passenger equipment 
safety standards, and physical characteristics of a territory. This 
proposed paragraph, which is derived from 49 CFR 240.123(b), was 
included in several drafts reviewed by the Working Group but was not in 
the draft voted on by the Working Group or full RSAC. FRA has included 
it in this NPRM because we suspect that it was inadvertently omitted 
and believe that continuing education is critical for conductors. FRA 
welcomes comments on this paragraph.
Section 242.121 Knowledge Testing
    This section, derived from 49 CFR 240.125 and 240.209, would 
require railroads to provide for the initial and periodic testing of 
conductors. That testing would have to effectively examine and measure 
a conductor's knowledge of five subject areas: Safety and operating 
rules; timetable instructions; compliance with all applicable Federal 
regulations; the physical characteristics of the territory on which a 
person will be or is currently serving as a conductor; and the use of 
any job aid that a railroad may provide a conductor.
    Under this section, railroads would have discretion to design the 
tests that will be employed; for most railroads that will entail some 
modification of their existing ``book of rules'' examination to include 
new subject areas. This section does not specify things like the number 
of questions to be asked or the passing score to be obtained. However, 
it does propose that the test not be conducted with open reference 
books unless use of such materials is part of a test objective and the 
test be in written or electronic form. Moreover, since the testing 
effort selected by the railroad must be submitted to FRA for approval, 
the exercise of the discretion being afforded railroads by this section 
would be monitored by FRA. To address a concern of some of the members 
of the Working Group that persons being tested were unable to obtain 
clarification of test questions by someone who possessed knowledge of a 
relevant territory, paragraph (e) of this proposed section would 
require railroads to provide the person(s) being tested with an 
opportunity to consult with a supervisory employee, who possesses 
territorial qualifications for the territory, to explain a question.
Section 242.123 Monitoring Operational Performance
    This proposed section, derived from 49 CFR 240.129 and 240.303, 
contains the proposed requirements for conducting unannounced 
compliance tests.
    Paragraph (b) of this section would require each railroad to have a 
program to monitor the conduct of its conductors by performing 
unannounced operating rules compliance tests.
    Paragraph (c) provides that each conductor would have to be given 
at least one unannounced compliance test in each calendar year by a 
railroad officer who meets the requirements of 49 CFR 217.9(b)(1).
    Paragraph (d) provides the operational tests that conductors and 
passenger conductors would have to be tested on. That paragraph would 
also allow passenger conductors who do not require compliance with 49 
CFR 218 subpart F, except under emergency circumstances, to meet the 
annual, unannounced test requirement with annual training.
    Paragraph (e) of this section would require railroads to indicate 
the types of actions they will take in the event they find deficiencies 
with a conductor's performance during an unannounced compliance test. 
FRA believes it is up to each railroad to decide the appropriate action 
to take in light of various factors, including collective bargaining 
agreements. Further, FRA believes that the vast majority of railroads 
have adequate policies to deal with deficiencies with a conductor's 
performance and have handled them appropriately for many years.
    To avoid restricting the options available to the railroads and 
employee representatives to develop processes for handling test 
failures, FRA designed this proposal to be as flexible as possible. 
There are a variety of actions and approaches that a railroad could 
take in response to a test failure and FRA does not want to stifle a 
railroad's ability to adopt an approach that is best for its 
organization. Some of the actions railroads could consider include: 
develop and provide formal remedial training for conductors who fail 
tests or have deficiencies in their performance; automatically download 
event recorder data, if relevant, upon a test failure or deficient 
performance in order to preserve evidence of the failure/deficiency; 
and require two supervisors to accompany a retest. Each railroad could 
also consider implementing a formal procedure whereby a conductor is 
given the opportunity to explain, in writing, the factors that he or 
she believes caused their test failure or performance deficiencies. 
This explanation may allow a railroad to determine what areas of 
training to focus on or perhaps discover that the reason for the 
failure/deficiency was due to something other than a lack of skills. 
FRA believes there are numerous other approaches that could and should 
be considered and evaluated by railroads and their employees. FRA 
realizes that a railroad's list of actions it will take in response to 
a test failure or deficient performance could be expansive given the 
various circumstances that could contribute to a test failure or 
deficient performance.
    Paragraphs (b) and (f) of this section recognize that some 
certified conductors may not be performing a service that requires 
conductor certification and thus a railroad may not be able to provide 
those conductors with the annual, unannounced compliance test. For 
example a certified conductor may be on furlough, in military service, 
off with an extended illness, or working in another service. Unlike 
part 240, which requires railroads to seek a waiver from FRA's Safety 
Board for engineers it is unable to annually test, this proposed 
section would not require railroads to give an unannounced compliance 
test to conductors who are not performing service requiring 
certification. However, when the certified conductor returns to 
certified service, he or she would have to be tested within 30 days of 
their return. Moreover, the railroad would have to retain a written 
record documenting certain dates regarding a conductor's service.
Section 242.125 Certification Determinations Made by Other Railroads
    This section, derived from 49 CFR 240.225, provides the proposed 
requirements that would apply when a certified or previously certified 
conductor is about to begin service for a different railroad. The 
section would permit the hiring railroad to rely on determinations made 
by another railroad concerning a person's certification. However, the 
section would require a railroad's certification program to address how 
the railroad will administer the training of previously uncertified 
conductors with extensive operating experience or previously certified 
conductors who have had their certification expire. In both these 
instances, FRA is providing a railroad with the opportunity to shorten 
the on-the-job training that might be required if a person is treated 
as having no operational experience. If a railroad's certification 
program fails to

[[Page 69178]]

specify how to train a previously certified engineer hired from another 
railroad, then the railroad would have to require the newly hired 
conductor to take the hiring railroad's entire training program.
Section 242.127 Reliance on Qualification Requirements of Other 
Countries
    This section, derived from 49 CFR 240.227, proposes to provide 
Canadian railroads that operate in the United States and U.S. railroads 
that conduct joint operations with Canadian railroads the option to 
rely on the system of conductor certification established by the 
Canadian Government as long as the conductor is employed by a Canadian 
railroad.

Subpart C--Administration of the Certification Program

Section 242.201 Time Limitations for Certification
    This section, derived from 49 CFR 240.217, contains various time 
constraints that FRA proposes to preclude railroads from relying on 
stale information when evaluating a candidate for certification or 
recertification. Although some members of the Working Group advocating 
for extending the certification period from 3 years to 5 years, FRA 
could not discern the safety justification for doing so. FRA has, 
however, extended the period provided in 49 CFR 240.217(a)(2) upon 
which a railroad could rely on a visual and hearing acuity examination 
from 366 days to 450 days. The 450 days corresponds to the requirement 
in 49 CFR 227.109 that railroads must offer employees included in a 
hearing conservation program a hearing test at an interval not to 
exceed 450 days.
Section 242.203 Retaining Information Supporting Determinations
    This section, derived from 49 CFR 240.215, contains the proposed 
record keeping requirements for railroads that certify conductors. 
While both 49 CFR 240.215 and this section permit railroads to retain 
records electronically, paragraph (g) of this section proposes more 
specific requirements regarding the electronic storage system used to 
retain the records than those found in Sec.  240.215. In that 
paragraph, FRA proposes minimum standards for electronic record-keeping 
provisions that a railroad would have to utilize to maintain the 
records required by this section electronically.
    FRA recognizes the growing prevalence of electronic records, and 
acknowledges the unique challenges that electronic transmission, 
storage, and retrieval of records can present. FRA also recognizes the 
need to maintain the integrity and security of records stored 
electronically. Thus, FRA believes that more specific requirements for 
electronic storage systems than those found in Sec.  240.215 are 
needed. Further, to allow for future advances in technology, FRA is 
proposing electronic record storage provisions in paragraph (g) that 
are technology-neutral.
Section 242.205 Identification of Certified Persons and Record Keeping
    This proposed section, derived from 49 CFR 240.221, would require 
each railroad to maintain a list of its certified conductors. Although 
derived from Sec.  240.221, this section also contains some significant 
differences. Unlike Sec.  240.221(c) which requires the railroad 
responsible for controlling joint operations territory to maintain a 
list of all engineers certified to operate in the joint operations, 
paragraph (b) of this section would require the railroad who employs 
conductors working in joint operations territory to maintain the list.
    With respect to engineers, FRA has found that, under actual 
industry practices, the controlling railroad seldom qualifies foreign 
engineers over its trackage. Rather, the controlling railroad usually 
qualifies the employing railroad's designated supervisor of locomotive 
engineers (DSLEs) on its territory and allows those DSLEs to qualify 
their own engineers on the controlling railroad's trackage. Considering 
that practice, the employing railroad would be better able to maintain 
the list of conductors it qualifies on the controlling railroad. 
Additionally, the employing railroad has more of an interest in keeping 
track of its conductors that are qualified on the controlling railroad. 
Should an employing railroad order a crew for a train that will operate 
over the controlling railroad, and the crew is not qualified, the train 
would have to stop at the controlling railroad. Moreover, it is much 
easier for the employing railroad to keep the list updated as it 
qualifies conductors or it removes conductors who have lost 
qualification because of time limitations. This section also differs 
from Sec.  240.221 in that this section would make it unlawful for a 
railroad to knowingly or an individual to willfully make a false entry 
on the list or to falsify the list. Similar language is found in Sec.  
240.215(i) but not in Sec.  240.221.
    While both Sec.  240.221 and this section permit railroads to 
retain records electronically, paragraph (e) of this section proposes 
more specific requirements regarding the electronic storage system used 
to retain the records than those found in Sec.  240.215(f) and would 
not require a railroad to obtain FRA approval to maintain the records 
electronically. The electronic storage requirements in paragraph (e) of 
this section track those in Sec.  242.203(g).
Section 242.207 Certificate Components
    This proposed section, derived from 49 CFR 240.223, contains the 
proposed requirements for the certificate that each conductor must 
carry. To address the privacy concerns of some Working Group members, 
FRA's proposal for what must be on the certificate slightly differs 
from the certificate requirements in Part 240. While Sec.  
240.223(a)(3) requires locomotive engineer certificates to include 
``the person's name, date of birth and employee identification number, 
and either a physical description or photograph of the person,'' 
proposed Sec.  242.207(a)(3) would require conductor certificates to 
include ``the person's name, employee identification number, and either 
the year of birth or photograph of the person.'' \10\
---------------------------------------------------------------------------

    \10\ FRA has made two clarifying changes to the language of 
Sec.  242.207(a)(3) that were not considered by the Working Group or 
the full RSAC: (1) The words ``either the'' were added between 
``and'' and ``year''; and (2) the word ``the'' was added between 
``of'' and ``person.''
---------------------------------------------------------------------------

    As currently written, this proposed section would not require a 
conductor's certificate to include a physical description or photograph 
of the conductor as is required in part 240. FRA is considering 
requiring a conductor's certificate to include a physical description 
or photograph of the conductor. FRA believes that requirement would 
enable FRA inspectors, railroad officers, and police officers to 
quickly verify that the person in possession of the certificate is in 
fact the person listed on the certificate. FRA welcomes comments on 
that proposal.
    While FRA expects that, in the future, Sec.  240.223(a)(3) will be 
amended to conform to Sec.  242.207(a)(3), FRA notes that pursuant to 
proposed Sec.  242.213(n), a single certificate issued to a person that 
is certified as both a conductor and a locomotive engineer would have 
to comply, for now, with Sec.  242.207 and Sec.  240.223.
Section 242.209 Maintenance of the Certificate
    This section, derived from 49 CFR 240.305(b), (c) and (e), proposes 
to require conductors to: Have their certificates in their possession 
while on duty as a conductor; display their

[[Page 69179]]

certificates when requested to do so by FRA representatives, State 
inspectors authorized under 49 CFR 212, and certain railroad officers; 
and notify a railroad if he or she is called to serve as a conductor in 
a service that would cause them to exceed their certificate limits. 
Although State inspectors authorized under 49 CFR 212 could be 
considered ``FRA representatives,'' they were mentioned separately in 
this section to ensure that there would be no dispute regarding their 
authority.
Section 242.211 Replacement of Certificates
    This proposed section, derived from 49 CFR 240.301, would require 
railroads to have a system for the prompt replacement of certificates 
when necessary. Unlike Sec.  240.301, which does not address the 
question of who will bear the cost of a replacement certificate, this 
section proposes that certificates will be replaced by the railroad at 
no cost to the conductor. While FRA expected that the railroad would 
bear the cost for a replacement locomotive engineer certificate under 
part 240, a few Working Group members indicated that some locomotive 
engineers had been charged (or asked by a railroad to pay) for 
replacement certificates. The provision in this proposed part clarifies 
that the railroad would bear the cost of replacement certificates.
    To address the concerns of some Working Group members that a full 
replacement certificate can take some time to generate and provide to a 
conductor, paragraph (b) of this section proposes to permit railroads 
to issue temporary replacement certificates. The paragraph describes 
what the certificate would have to contain and who could authorize the 
temporary replacement. The temporary replacement certificate could be 
delivered electronically (e.g., faxed, e-mailed, etc.) and would be 
valid for no more than 30 days.
Section 242.213 Multiple Certifications
    This proposed section would permit a person to hold certification 
for multiple types of conductor service and/or certification for both 
conductor and locomotive engineer service. A railroad would only need 
to issue one certificate to a person with multiple certifications. 
However, a certificate issued to a person certified as a conductor and 
locomotive engineer would not only have to comply with proposed Sec.  
242.207 but also with Sec.  240.223. To the extent possible, a railroad 
that issued multiple certificates to a person would have to coordinate 
the expiration date of those certificates.
    With the exception of a situation in which a conductor is removed 
from a train for a medical, police, or other such emergency, this 
section would require that a locomotive engineer, including a RCO, who 
is operating without an assigned certified conductor to either be: (1) 
Certified as both a locomotive engineer and a conductor; or (2) 
accompanied by a certified conductor who will attach to the crew ``in a 
manner similar to that of an independent assignment.'' Since a lone 
engineer/RCO would be serving as and performing duties as both 
locomotive engineer and conductor, FRA believes, and the Working Group 
and full RSAC voted to recommend, that the engineer/RCO must hold dual 
certification or be accompanied by a certified conductor. The language 
concerning how an accompanying conductor would attach to the crew 
conveys FRA's intent that this proposed regulation be neutral on the 
issue of crew consist (i.e., how many crewmembers must be on a train).
    During the RSAC process, representatives of FRA, the railroads, and 
labor engaged in extensive discussions regarding the potential effect 
of proposed 49 CFR 242.213 (``Multiple certifications'') on the issue 
of crew consist. It is FRA's intent that this proposed conductor 
certification regulation, including section 242.213, be neutral on the 
crew consist issue. Nothing in the proposed part 242 should be read as 
FRA's endorsement of any particular crew consist arrangement.
    In instances where a person, who is serving as both the conductor 
and the engineer (i.e., a lone engineer or RCO), is involved in a 
revocable event, railroads may be faced with determining which 
certification to revoke. For example, a railroad that finds that a RCO, 
who is certified both as an engineer and as a conductor but who was not 
accompanied by a certified conductor, has failed to comply with 
prohibitions against tampering with a locomotive mounted safety device 
would have to determine whether to revoke the person's conductor 
certification pursuant to Sec.  242.403(e)(5) or the person's 
locomotive engineer certification pursuant to Sec.  240.117(e)(5). To 
address that situation, FRA is considering adding a provision to this 
proposed section which would require railroads to make the 
determination as to which certification to revoke based on the work the 
person was performing at the time the conduct occurred. This 
determination would be similar to the determination made under the 
reporting requirements in this proposed rule (Sec.  242.215(f)) and 
under part 225 in which railroads determine whether an accident was 
caused by poorly performing what is traditionally considered a 
conductor's job function (e.g., switch handling, derail handling, etc.) 
or whether it was caused by poorly performing what is traditionally 
considered a locomotive engineer's job function (e.g., operation of the 
locomotive, braking, etc.). FRA welcomes comments on that proposed 
provision.
    This section also addresses the consequences of certification 
denial or revocation for a conductor who is certified to perform 
multiple types of conductor service or both conductor and locomotive 
engineer service. A person who holds a current conductor and/or 
locomotive engineer certificate from more than one railroad would have 
to immediately notify the other certifying railroad(s) if he or she is 
denied engineer or conductor recertification or has his or her 
conductor or engineer certification revoked by another railroad.
    Pursuant to this section, a person certified to perform multiple 
types of conductor service and who has had any of those certifications 
revoked would not be permitted to perform any type of conductor service 
during the period of revocation. Likewise, a person who holds a 
conductor and locomotive engineer certificate and has his or her 
engineer certificate revoked would not be permitted to work as a 
conductor during the period of revocation. Similarly, a person who 
holds a conductor and engineer certificate and has his or her conductor 
certification revoked for violation of Sec. Sec.  242.403(e)(1)-(e)(5) 
or (e)(12) would not be permitted to work as an engineer during the 
period of revocation. However, a person who holds a conductor and 
engineer certificate and has his or her conductor certification revoked 
for a violation of Sec. Sec.  242.403(e)(6)-(e)(11) (i.e., violations 
involving provisions of part 218, subpart F) would be permitted to work 
as an engineer during the period of revocation. To aid interested 
parties, FRA has included a table in Appendix E \11\ to this proposed 
rule which explains, in a spreadsheet-style form, when a person 
certified as both an engineer and conductor would be permitted to work 
following a certification revocation.
---------------------------------------------------------------------------

    \11\ Appendix E was not considered by the Working Group or the 
full RSAC. It was added by FRA to assist interested parties in 
determining the application of revocable events.
---------------------------------------------------------------------------

    Currently under part 240, an engineer cannot have his or her 
certificate

[[Page 69180]]

revoked for violations of part 218, subpart F. While part 240 may be 
amended in the future to include part 218, subpart F violations as 
revocable events, this proposed rule recognizes that it would be unfair 
to prohibit a person from working as an engineer for a violation that 
currently would not result in the revocation of his or her engineer 
certificate. This section also proposes that, in determining the period 
in which a person may not work as a locomotive engineer due to a 
revocation of his or her conductor certification, only violations of 
Sec. Sec.  242.403(e)(1)-(e)(5) or (e)(12) may be counted. To assist 
railroads in determining the correct period, paragraph (h)(1) of this 
section provides a hypothetical scenario and an explanation of how the 
period would be calculated.
    To avoid treating a person who only holds one certification 
differently than a person who holds multiple certifications, this 
section would prohibit a person who has had his or her locomotive 
engineer certification revoked from obtaining a conductor certificate 
during the revocation. Likewise, a person who has had his or her 
conductor certification revoked for violations of Sec. Sec.  
242.403(e)(1)-(e)(5) or (e)(12) would be prohibited from obtaining a 
locomotive engineer certificate during the period of revocation. With 
respect to denial of certification or recertification, this section 
provides that a railroad that denies a person locomotive engineer 
certification or recertification would not be permitted, solely on the 
basis of the denial, to deny or revoke that person's conductor 
certification or recertification and vice versa.
Section 242.215 Railroad Oversight Responsibilities
    This section, derived from 49 CFR 240.309, proposes to require 
Class I (including the National Railroad Passenger Corporation and a 
railroad providing commuter service) and Class II railroads to conduct 
an annual review and analysis of its program for responding to detected 
instances of poor safety conduct by certified conductors. FRA has 
formulated the information collection requirements of this proposed 
section to ensure that railroads collect data on conductor safety 
behavior and feed that information into its operational monitoring 
efforts, thereby enhancing safety.
    This section would require Class I (including the National Railroad 
Passenger Corporation and a railroad providing commuter service) and II 
railroads to have an internal auditing plan to keep track of 8 distinct 
kinds of events that involve poor safety conduct by conductors. For 
each event, the railroad would have to indicate what response it took 
to that situation. The railroad would evaluate this information, 
together with data showing the results of annual operational testing 
and the causation of FRA reportable train accidents, to determine what 
additional or different efforts, if any, are needed to improve the 
safety performance of that railroad's certified conductors. FRA is not 
proposing to require that a railroad furnish this data or its analysis 
of the data to FRA. Instead, FRA is proposing to require that the 
railroad be prepared to submit such information when requested.
    For purposes of the reporting requirement in this section, an 
instance of poor safety conduct involving a person who holds both a 
conductor and engineer certification would only have to be reported 
once (i.e., either under 49 CFR 240.309 or this section). The 
determination as to where to report the instance of poor safety conduct 
would be based on the work the person was performing at the time the 
conduct occurred. This determination would be similar to the 
determination made under part 225 in which railroads determine whether 
an accident was caused by poorly performing what is traditionally 
considered a conductor's job function (e.g., switch handling, derail 
handling, etc.) or whether it was caused by poorly performing what is 
traditionally considered a locomotive engineer's job function (e.g., 
operation of the locomotive, braking, etc.).

Subpart D--Territorial Qualification and Joint Operations

Section 242.301 Requirements for Territorial Qualification
    This proposed section, derived from 49 CFR 240.229 and 240.231, 
explains the requirements for territorial qualification. Paragraph (a) 
of this section provides that, except for two circumstances,\12\ a 
railroad, including a railroad that employs conductors working in joint 
operations territory, could not permit or require a person to serve as 
a conductor unless that railroad determines that the person is a 
certified conductor and possesses the necessary territorial 
qualifications.
---------------------------------------------------------------------------

    \12\ The phrase ``[e]xcept as provided in paragraph (c) or (d) 
of this section'' in paragraph (a) was not considered by the Working 
Group or the full RSAC, but has been added to clarify the section.
---------------------------------------------------------------------------

    Paragraph (a) reflects the Working Group and full RSAC 
recommendation to realign the burden for determining which party is 
responsible for allowing an unqualified person to operate in joint 
operations. While part 240 puts the burden on the controlling railroad, 
this proposed rule puts the burden on the employing railroad. This 
change is based on the experiences of the Working Group members who 
believe that an inordinate amount of the liability currently rests with 
the controlling railroad. The perceived unfairness rests on the fact 
that it is not always feasible for the controlling railroad to make all 
of the determinations proposed in Sec.  242.119. The employing railroad 
may provide the controlling railroad with a long list of hundreds or 
thousands of locomotive engineers that it deems eligible for joint 
operations; following up on a long, and ever changing list is made much 
more difficult since a controlling railroad would not control the 
personnel files of the conductors on this list.
    The proposed realignment would lead to a sharing of the burden 
among a controlling railroad, an employing railroad and an employing 
railroad's conductor. Although a controlling railroad would be 
obligated to make sure the person is qualified, paragraph (a) would 
require that an employing railroad make these same determinations 
before calling a person to serve in joint operations. Paragraph (b) of 
this section would require a conductor to notify a railroad when the 
person is being asked to exceed his or her territorial qualifications. 
That paragraph parallels Sec.  242.209(b) of this proposed rule.
    Paragraphs (c) and (d) propose requirements for situations where a 
conductor lacks territorial qualification on main track and other than 
main track physical characteristics. On main track, the conductor would 
have to be assisted by a person who is (1) a certified conductor or 
certified locomotive engineer and (2) meets the territorial 
qualification requirements for the main track physical characteristics. 
On other than main track, the conductor, where practicable, would have 
to be assisted by a person who is a certified conductor and meets the 
territorial qualification requirements for other than main track 
physical characteristics. Where not practicable, the conductor would 
have to be provided with an appropriate, up-to-date job aid. Two points 
should be made about the other than main track proposal in paragraph 
(d) of this section. First, the person assisting the conductor could be 
the locomotive engineer as long as the engineer is also a certified 
conductor and meets the territorial qualification requirements for the 
other than main track physical characteristics. Second, FRA does not 
intend for the

[[Page 69181]]

proposed requirements of Sec.  242.301(d) to apply to sidings.

Subpart E--Denial and Revocation of Certification

    This subpart parallels part 240's approach to adverse decisions 
concerning certification (i.e., decisions to deny certification or 
recertification and revoke certification). With respect to denials, the 
approach of this proposed rule is predicated principally on the theory 
that decisions to deny certification or recertification would come at 
the conclusion of a prescribed evaluation process which would be 
conducted in accordance with the provisions set forth in this subpart. 
Thus, this proposed rule and part 240 contain specific procedures 
designed to assure that a person, in jeopardy of being denied 
certification or recertification, would be given a reasonable 
opportunity to explore and respond to the negative information that 
might serve as the basis for being denied certification or 
recertification.
    When considering revocation, this proposed rule contemplates that 
decisions to revoke certification would only occur for the reasons 
specified in this subpart. Since revocation decisions by their very 
nature involve a clear potential for factual disagreement, this subpart 
is structured to ensure that such decisions would come only after a 
certified conductor had been afforded an opportunity for an 
investigatory hearing at which the presiding officer would determine 
whether there was sufficient evidence to establish that the conductor's 
conduct warranted revocation of his or her certification.
    This subpart also includes the concept of certificate suspension. 
Certificate suspension would be employed in instances where there is 
reason to think the certificate should be revoked or made conditional 
but time is needed to resolve the situation. Certificate suspension 
would be applicable in instances where a person is awaiting an 
investigatory hearing to determine whether that person violated certain 
provisions of FRA's alcohol and drug control rules or engaged in 
operational misconduct and situations in which the person is being 
evaluated or treated for an active substance abuse disorder.
    While this proposed subpart follows part 240's approach to adverse 
decisions concerning certification, it does include some modifications 
to the processes in part 240. Those modifications are discussed below.
Section 242.401 Denial of Certification
    This section, derived from 49 CFR 240.219, proposes minimum 
procedures that must be accorded to a certification candidate before a 
railroad denies the candidate certification or recertification. Except 
for two changes, the provisions in this section mirror the provisions 
in Sec.  240.219 including: Providing a certification candidate with a 
reasonable opportunity to explain or rebut adverse information; and 
notifying a candidate of an adverse decision and providing a written 
explanation of the basis for its decision within 10 days.
    This section differs from Sec.  240.219 in two ways. First, this 
section would require that a written explanation of an adverse decision 
be ``served'' on a certification candidate (see definition of service 
in Sec.  242.7). Use of the defined term, rather than part 240's more 
general phrase ``mailed or delivered,'' not only makes this proposed 
rule internally consistent but would likely help FRA in determining 
whether a petition seeking review of a denial decision was filed within 
120 days of the date the denial was served on the petitioner (see Sec.  
242.503(c)). Second, paragraph (d) of this section, which is not 
included in Sec.  240.219, would prohibit a railroad from denying 
certification based on a failure to comply with Sec.  242.403(e)(1)-
(11) if sufficient evidence exists to establish that an intervening 
cause prevented or materially impaired the conductor's ability to 
comply with those sections. Paragraph (d) parallels the intervening 
cause exception for revocation in Sec.  242.407(i)(1). FRA welcomes 
comments on whether the intervening cause exception in paragraph (d) 
should be modified to include certification and recertification 
requirements in addition to the revocable events in Sec.  242.403. For 
example, paragraph (d) could be modified to read as follows: A railroad 
shall not determine that a person failed to meet the eligibility 
requirements of this part and shall not deny the person's certification 
if sufficient evidence exists to establish that an intervening cause 
prevented or materially impaired the conductor's ability to comply with 
the railroad operating rule or practice or certification or 
recertification requirement which forms the basis for denying the 
person certification or recertification.
    As a supplement to this proposed section, FRA is considering 
whether to add two provisions which FRA believes would improve the 
transparency of the certification denial process and improve FRA's 
ability to adjudicate petitions seeking review of a railroad's denial 
decision pursuant to subpart E of this proposed rule. One of the 
challenges that FRA faces when reviewing denial decisions in the 
locomotive engineer context is that, unlike revocation decisions which 
are usually accompanied by a documentary record and transcript 
generated at a railroad hearing, no such hearing is required for denial 
decisions and often there is little or no documentary record.
    To overcome that challenge, FRA is considering two additional 
provisions. First, FRA is considering adding the following sentence to 
paragraph (a) of this section: The railroad shall provide the conductor 
candidate with any written documents or records, including written 
statements, which support its pending denial decision. Second, FRA is 
considering adding the following sentence to paragraph (c) of this 
section: The basis for a railroad's denial decision shall address any 
explanation or rebuttal information that the conductor candidate may 
have provided in writing pursuant to paragraph (a) of this section. FRA 
welcomes comments on those proposed provisions.
Section 242.403 Criteria for Revoking Certification
    This section, derived from 49 CFR 240.117 and 240.305, proposes the 
circumstances under which a conductor may have his or her certification 
revoked. In addition, paragraph (b) of this section would make it 
unlawful to fail to comply with any of the events listed in paragraph 
(e) of this section (i.e., events which would require a railroad to 
initiate revocation action). Paragraph (b) would be needed so that FRA 
could initiate enforcement action. For example, FRA might want to 
initiate enforcement action in the event that a railroad fails to 
initiate revocation action or a person is not a certified conductor 
under this part.
    Paragraph (c)(1) of this section proposes that a certified 
conductor who fails to comply with the events listed in paragraph (e) 
of this section would have his or her conductor certification revoked. 
Paragraph (c)(2) proposes that a certified conductor, who is 
monitoring, piloting, or instructing a conductor, could have his or her 
certification revoked if he or she fails to take ``appropriate action'' 
to prevent a violation of paragraph (e) of this section. As explained 
in paragraph (c)(2), ``appropriate action'' does not mean that a 
supervisor, pilot, or instructor must prevent a violation from 
occurring at all costs, but rather the duty may be met by warning the 
conductor or engineer, as appropriate, of a potential or foreseeable 
violation. The term ``appropriate action''

[[Page 69182]]

is also used in paragraph (e) of this section as well as 49 CFR 
240.117(c)(2).
    Paragraph (c)(3) proposes that a person who is a certified 
conductor but is called by a railroad to perform the duty of a train 
crew member other than that of conductor or locomotive engineer would 
not have his or her certification revoked based on actions taken or not 
taken while performing that duty. For example, a person who is called 
to be the crew's brakeman and who does not serve as a conductor or 
locomotive engineer during that tour of duty could not have his or her 
certification revoked for a violation listed in paragraph (e) of this 
section. Interested parties should note that the exemption would not 
apply to violations of Sec.  242.403(e)(12) so that conductors working 
in other capacities who violate certain alcohol and drug rules would 
have their certification revoked for the appropriate period pursuant to 
Sec. Sec.  242.403 and 242.115.
    Paragraph (d) proposes that the time frame for considering 
operating rule compliance would only apply to conduct described in 
paragraphs (e)(1) through (e)(11) of this section and not paragraph 
(e)(12). When alcohol and drug violations are at issue, the window in 
which prior operating rule misconduct will be evaluated would be 
dictated by Sec.  242.115 and not limited to the 36 month period 
prescribed in this paragraph. This proposed rule would require that 
certification reviews consider alcohol and drug misconduct that 
occurred within a period of 60 consecutive months prior to the review 
pursuant to Sec.  242.115(e).
    Paragraph (e) proposes 12 kinds of rule infractions that could 
result in certification revocation. The infractions listed in 
paragraphs (e)(1)-(e)(5) and (e)(12) derive from the revocable events 
provided in 49 CFR 240.117(e) but have been modified to account for a 
conductor's duties. For example, paragraphs (e)(1) and (e)(2) recognize 
that a conductor does not operate the train and thus those 
subparagraphs would only require a conductor to take ``appropriate 
action'' to prevent an engineer from failing to control a locomotive or 
train in accordance with a signal or to adhere to speed limitations. As 
explained in those subparagraphs, ``appropriate action'' does not mean 
that a conductor must prevent a violation from occurring at all costs; 
but rather the duty may be met by warning the engineer of a potential 
or foreseeable violation. Moreover, paragraph (e)(2) recognizes that a 
conductor who is not in the operating cab should not be held to held to 
the same responsibility with respect to monitoring train speed as a 
conductor who is located in the operating cab.
    Interested parties should note that with respect to paragraph 
(e)(4), a conductor would be considered to have occupied main track or 
a segment of main track without proper authority or permission if the 
conductor failed to stop and protect/flag a crossing on main track when 
required to do so pursuant to a railroad operating rule or practice, 
including a mandatory directive.
    The infractions listed in paragraphs (e)(6)-(e)(11) of this section 
describe violations of part 218, subpart F which are not listed as 
revocable events in part 240. For the reasons listed below, FRA 
proposes, and the RSAC recommended, that violations of part 218, 
subpart F should be revocable events for conductors. In the future, FRA 
expects to review whether those violations should also be revocable 
events for locomotive engineers. Subpart F of part 218 requires that 
each railroad have in effect certain operating rules concerning shoving 
or pushing movements, equipment left out to foul a track, switches, and 
derails.\13\ The operating rules identified in part 218, subpart F are 
not only considered core competencies for conductors but are also 
designed to address the most frequently caused human factor accidents. 
Human factors are the leading cause of train accidents, accounting for 
38 percent of the total in 2005. Human factors also contribute to 
employee injuries. Subpart F violations account for approximately 43% 
of all human factor caused accidents. From 2005-2009, there were 
approximately 2,227 accidents due to Subpart F violations. Those 
accidents resulted in approximately 13 fatalities, 363 injured, and 
$104,855,224 in damages.
---------------------------------------------------------------------------

    \13\ For a detailed analysis of part 218, interested parties 
should review the notice of proposed rulemaking (71 FR 60372 (Oct. 
12, 2006)), the final rule (73 FR 8442 (Feb. 13, 2008)), and the 
response to petitions for reconsideration (73 FR 33888 (June 16, 
2008)) issued in that rulemaking.
---------------------------------------------------------------------------

    In addition to the 12 kinds of revocable events proposed in this 
NPRM, FRA welcomes comments as to whether a violation of the final rule 
in 49 CFR part 220 (``Restrictions on Railroad Operating Employees' Use 
of Cellular Telephones and Other Electronic Devices'') should 
constitute a revocable event for conductors and locomotive engineers. 
In the NPRM for 49 CFR part 220 (75 FR 27672, 27678 (May 18, 2010)), 
FRA noted that it was ``considering amending 49 CFR part 240 * * * to 
add violations of this subpart as a basis for revoking a locomotive 
engineer's certification'' and requested comments on the issue. 
However, since the issue deals with revocation of certification, FRA 
believes that the issue is more appropriately addressed in the 
conductor and locomotive engineer rules. Comments regarding whether FRA 
should use its other enforcement tools (e.g., monetary civil penalty 
against an individual, disqualification of an individual from 
performing safety-sensitive service, etc.) instead of mandating 
revocation would be particularly helpful as would comments describing 
how a railroad would acquire the necessary evidence to revoke a 
conductor's and/or locomotive engineer's certification for violation of 
49 CFR part 220.
    Paragraph (e)(13) of this section, which does not have a 
counterpart in part 240, would prohibit a railroad from denying or 
revoking an employee's certification based upon additional conditions 
or operational restrictions imposed pursuant to Sec.  242.107(d). Thus, 
a railroad could not revoke a conductor's certificate for an alleged 
violation of a railroad rule or practice that was more stringent than 
the condition or restrictions required by this proposed part. In the 
future, FRA expects to review whether a similar provision should also 
apply to locomotive engineers.
    Paragraph (f) of this section proposes that if a single incident 
contravenes more than one operating rule or practice listed in 
paragraph (e) of this section, that event would be treated as a single 
violation. Moreover, paragraph (f) proposes that a conductor may have 
his or her certification revoked for violations that occur during 
properly conducted operational compliance tests. However, violations 
that occur during an improperly conducted operational compliance test 
would not be considered for revocation purposes.
Section 242.405 Periods of Ineligibility\14\
---------------------------------------------------------------------------

    \14\ When considered by the Working Group and full RSAC, the 
title of this section was ``Periods of revocation.'' FRA has 
modified that title to describe more clearly what the section would 
cover.
---------------------------------------------------------------------------

    This proposed section, derived from Sec.  240.117, describes how a 
railroad would determine the period of ineligibility (e.g., for 
revocation or denial of certification) that a conductor or conductor 
candidate would have to undergo. With respect to revocation, this 
section proposes that once a railroad has determined that a conductor 
has failed to comply with its safety rule concerning one or more events 
listed in Sec.  242.403(e), two consequences would occur. First, the 
railroad would be required to revoke the

[[Page 69183]]

conductor's certification for a period of time provided in this 
section. Second, that revocation would initiate a period during which 
the conductor would be subject to an increasingly more severe response 
if additional revocable events occur in the next 24 to 36 months.
    Except for incidents occurring on other than main track where 
restricted speed or the operational equivalent is in effect, the 
standard periods of revocation proposed in this section track the 
periods provided in part 240: 1 event = revocation for 30 days; 2 
events within 24 months of each other = 6 months; 3 events within 36 
months of each other = 1 year; and 4 events within 36 months of each 
other = 3 years. This section notes, however, that violations of Sec.  
219.101 (Alcohol & Drugs) could result in different periods of 
ineligibility and in those cases, the longest period of revocation 
would control. FRA has included a table in Appendix E to this proposed 
rule which provides the revocation periods in a spreadsheet-style form. 
The table should be useful in determining the correct period of 
revocation.
    The period of revocation in both part 240 and this proposed rule is 
based on a floating window. Hence, under this proposed rule and part 
240, if a second offense occurs 25 months after the first offense, the 
revocation period would be the same as a first offense; however, if a 
third offense occurs within 36 months of the first offense, the 
revocation period would be one year. The anomaly will be that a 
person's certificate could be revoked twice for one month under 
paragraph (a)(3)(ii) of this section but that the third incident could 
result in a one year revocation under paragraph (a)(3)(iv) of this 
section without the benefit of the interim six month revocation period 
under paragraph (a)(3)(iii).
    This section also contains two provisions which would reduce the 
period of ineligibility if certain criteria are met. The first 
provision, which is contained in paragraph (a)(3)(i) of this section, 
proposes that ``on other than main track where restricted speed or the 
operational equivalent thereof is in effect,'' the periods of 
revocation for violations of certain provisions of Sec.  242.403(e) 
shall be reduced by one half provided that another revocable event has 
not occurred within the previous 12 months. That provision, which does 
not have an equivalent provision in part 240, recognizes that some 
violations which occur on other than main track where slower speeds are 
in effect may pose less of a danger to safety than violations that 
occur on main track and thus a reduced period of revocation is 
warranted. The second provision, which may reduce the period of 
ineligibility if certain criteria are met, is contained in paragraph 
(c) of this section.\15\ That provision, which parallels Sec.  
240.117(h), proposes that a person whose conductor certification is 
denied or revoked would be eligible for grant or reinstatement of the 
certificate prior to the expiration of the initial period of revocation 
if, among other things, at least one half of the initial period of 
ineligibility has elapsed.
---------------------------------------------------------------------------

    \15\ Following the Working Group meetings, FRA changed the word 
``revocation'' in the beginning of paragraph (c) to the word 
``ineligibility'' to accurately reflect the scope of that paragraph.
---------------------------------------------------------------------------

    In certain instances, both proposed provisions may apply to a 
conductor who has had his or her certification revoked. For example, if 
a conductor's certification is revoked for a violation of proposed 
Sec.  242.403(e)(6) which occurred on other than main track where 
restricted speed is in effect and it is the only revocation that the 
conductor has ever had, then, under Sec.  242.405(a)(3)(i), the 
revocation period would be 15 days. Moreover, if the conductor meets 
the criteria in Sec.  242.405(c), then the conductor would be eligible 
for reinstatement of his or her certificate in 8 days.\16\
---------------------------------------------------------------------------

    \16\ If, as in the example, the revocation calculation results 
in any fraction of a day (e.g., 7.5 days), then round the number up. 
Thus, the conductor in the example would be eligible for 
reinstatement in 8 days.
---------------------------------------------------------------------------

    Paragraph (b) of this section proposes that all periods of 
revocation may consist of training. While that provision is not 
explicitly stated in part 240, it is certainly not prohibited and is 
included in this proposed rule to make the rule clear.
Section 242.407 Process for Revoking Certification
    This proposed section, derived from 49 CFR 240.307, provides the 
procedures a railroad would have to follow if it acquires reliable 
information regarding a conductor's violation of Sec.  242.115(e) or 
Sec.  242.403(e).
    Paragraph (b)(1) of this section provides that upon receipt of 
reliable information regarding a violation of Sec.  242.403(e), a 
railroad would have to suspend the person's certificate. Paragraph 
(b)(2) provides that prior to or upon suspending the person's 
certificate, the railroad would have to provide either oral or written 
notice of the reason for the suspension, the pending revocation, and an 
opportunity for a hearing. If the initial notice was verbal, then the 
notice would have to be promptly confirmed in writing. The amount of 
time the railroad has to confirm the notice in writing would depend on 
whether or not a collective bargaining agreement is applicable. In the 
absence of such an agreement, a railroad would have 96 hours to provide 
this important information. Interested parties should note that if a 
notice of suspension is amended after a hearing is convened and/or does 
not contain citations to all railroad rules and practices that may 
apply to a potentially revocable event, the Operating Crew Review 
Board, if asked to review the revocation decision, might subsequently 
find that that constituted procedural error pursuant to Sec.  242.505.
    Paragraphs (b)(3)-(b)(7) and paragraphs (c), (d), (e), and (f) of 
this section provide the proposed requirements and procedures for 
conducting or waiving a railroad hearing regarding the alleged 
revocable event. Except for paragraph (b)(4), discussed below, those 
proposed requirements mirror the hearing requirements in part 240.
    Although the requirements in paragraph (c) regarding the written 
decision issued in a railroad hearing track the requirements in part 
240, FRA is considering modifying those requirements to ensure that 
clearer and more detailed decisions are issued. Clearer and more 
detailed decisions would allow a conductor to understand exactly why 
his or her certification was revoked and would allow the Operating Crew 
Review Board to have a more detailed understanding of the case if it is 
asked to review the revocation decision pursuant to subpart E of this 
proposed rule. Specifically, FRA is considering requiring the decision 
to: (1) State whether the railroad official found that a revocable 
event occurred and the applicable period of revocation with a citation 
to 49 CFR 242.405 (Periods of revocation); (2) contain an explanation 
of the factual findings and citations to all applicable railroad rules 
and practices; (3) not cite a railroad rule or practice that was not 
cited in the written notice of suspension; and (4) be served on the 
employee and the employee's representative, if any, with the railroad 
to retain proof of that service. FRA welcomes comments on those 
proposals.
    Pursuant to paragraph (b)(4) of this section, no later than the 
convening of a hearing, the railroad convening the hearing would have 
to provide the person with a copy of the written information and list 
of witnesses the railroad would present at the hearing. If requested, a 
recess to the start of the hearing would be granted if the copy of the 
written information list of witnesses is not provided until just prior 
to the

[[Page 69184]]

convening of the hearing. If the information that led to the suspension 
of a conductor's certificate pursuant to Sec.  242.407(b)(1) was 
provided through statements of an employee of the convening railroad, 
the railroad would have to make that employee available for examination 
during the hearing. Examination may be telephonic where it is 
impractical to provide the witness at the hearing.
    The provisions in paragraph (b)(4) of this section were added to 
address the concerns of some members of the Working Group that 
engineers were not being provided with information and/or witnesses 
necessary to defend themselves at the hearing under part 240. 
Interested parties should note that even if a railroad conducts a 
hearing pursuant to the procedures in an applicable collective 
bargaining agreement pursuant to paragraph (d) of this section, the 
railroad would still have to comply with the provisions of paragraph 
(b)(4). It is FRA's understanding that, except for an employee of the 
convening railroad whose statements led to a suspension under Sec.  
242.407(b)(1), a railroad would not, in fact, be required to call to 
testify every witness that it includes on the list provided pursuant to 
paragraph (b)(4). If, for example, a railroad believes that it has 
provided sufficient evidence during a hearing to prove its case and 
that calling a witness on its list to testify would be unduly 
repetitive, then the railroad would not be obligated to call that 
witness. Of course, the opposing party could request that the witness 
be produced to testify but the hearing officer would have the authority 
pursuant to Sec.  242.407(c)(6) to determine whether the witness' 
testimony would be unduly repetitive or so extensive and lacking in 
relevancy that its admission would impair the prompt, orderly, and fair 
resolution of the proceeding. FRA welcomes comments on its 
understanding of paragraph (b)(4).
    Paragraph (g) would require a railroad to revoke an employee's 
conductor certification if it discovers that another railroad has 
revoked that person's conductor certification. The hearing requirement 
in this proposed rule is satisfied when any single railroad holds a 
revocation hearing.
    Paragraph (h) would credit the period of certificate suspension 
prior to the commencement of a hearing required under this section 
towards satisfying any applicable revocation period imposed in 
accordance with the provisions of proposed Sec.  242.405.
    Paragraph (i) proposes two specific defenses for railroad 
supervisors and hearing officers to consider when deciding whether to 
suspend or revoke a person's certificate due to an alleged revocable 
event. Pursuant to paragraph (i), either defense would have to be 
proven by sufficient evidence.
    Paragraph (i)(1) of this section proposes that a person's 
certificate would not be revoked when there is sufficient evidence of 
an intervening cause that prevented or materially impaired the person's 
ability to comply. For example, a railroad should consider assertions 
that a conductor in the operating cab failed to take appropriate action 
to prevent the engineer from failing to control the locomotive in 
accordance with a signal indication that requires a complete stop 
before passing it because of defective equipment. Similar to the 
defense of defective equipment, the actions of other people could 
sometimes be an intervening cause. For instance, a dispatcher or a 
train crew member could relay incorrect information to the conductor 
who reasonably relied on it in making a prohibited train movement.
    Conductors and railroad managers need to note that not all 
equipment failures or errors caused by others would serve to absolve 
the person from certification action under this proposed rule. The 
factual issues of each circumstance would have to be analyzed on a 
case-by-case basis. For example, a broken speedometer would not be an 
intervening factor in a violation of Sec.  242.403(e)(3) (failure to 
perform certain required brake tests).
    Paragraph (i)(2) of this section proposes to provide a railroad 
with the discretion necessary to decide not to revoke a conductor's 
certification for an event that violates Sec.  242.403(e)(1) through 
(e)(11) under certain limited circumstances. However, that subparagraph 
does not permit a railroad to use its discretion to dismiss violations 
indiscriminately. That is, FRA would only permit railroads to excuse 
violations when two criteria are met. First, the violation would have 
to be of a minimal nature; for example, on high speed track at the 
bottom of a steep grade, the engineer makes clear to the conductor, who 
is in the cab, that the engineer knows the correct speed limit without 
the conductor saying anything about speed, but the front of the lead 
unit in a four unit consist hauling 100 cars enters a speed restriction 
at 10 miles per hour over speed while the third unit and the balance of 
the train enters the speed restriction at the proper speed, and 
maintains that speed for the remainder of the train. If more of the 
locomotive or train consist enters the speed restriction in violation, 
a railroad that is willing to consider mitigating circumstances would 
need to consider whether the violation was truly of a minimal nature.
    In contrast, a violation could not be considered of a minimal 
nature if a conductor fundamentally violated the operating rules. For 
example, if a conductor failed to perform or have knowledge that a 
required brake test was performed, even if the train was only traveling 
a short distance, then the event could not be considered of a minimal 
nature. In situations where the proposed rule had been fundamentally 
violated, a railroad would not have the discretion to excuse the 
violation.
    Second, for paragraph (i)(2) to apply, sufficient evidence would 
have to be presented to prove that the violation did not have either a 
direct or potential effect on rail safety. That defense would certainly 
not apply to a violation that actually caused a collision or injury 
because that would be a direct effect on rail safety. It would also not 
apply to a violation that, given the factual circumstances surrounding 
the violation, could have resulted in a collision or injury because 
that would be a potential effect on rail safety. For instance, an 
example used to illustrate the term ``minimal nature'' described a 
situation involving a train that had the first two locomotives enter a 
speed restriction too fast, yet the balance of the train was in 
compliance with the speed restriction; since the train in that example 
would not be endangering other trains because it had the authority to 
travel on that track at a particular speed, there would be no direct or 
potential effect on rail safety caused by that violation.
    In contrast, if a train failed to stop short of a banner, which was 
acting as a signal requiring a complete stop before passing it, during 
a locomotive engineer efficiency test, that striking of a banner might 
have no direct effect on rail safety but it has a potential effect 
since a banner would be simulating a railroad car or another train. 
Meanwhile, there would be a difference between passing a banner versus 
making an incidental touching of the banner. If a locomotive or train 
barely touched a banner so that the locomotive or train did not run 
over the banner, break the banner, or cause the banner to fall down, 
that incidental touching could be considered a minimal nature violation 
that did not have any direct or potential effect on rail safety. This 
is because such an incidental touching is not likely to cause damage to 
equipment or injuries to crew members even if the banner were another 
train. Although it is arguable that if the banner were a person the 
touching could be fatal, FRA is willing

[[Page 69185]]

to allow railroads the discretion to consider this type of scenario in 
the context of excusing a violation pursuant to paragraph (i)(2); of 
course, if the banner was in fact a person in the manner described in 
the example, the railroad would not have the discretion to apply 
paragraph (i)(2).
    Similarly, if a train has received oral and written authority to 
occupy a segment of main track, the oral authority refers to the 
correct train number but refers to the wrong locomotive because someone 
transposed the numbers, the conductor's violation in not catching this 
error before entering the track without proper authority could be 
considered of a minimal nature with no direct or potential effect on 
rail safety. Since the railroad would be aware of the whereabouts of 
this train, the additional risk to safety of this paperwork mistake may 
practically be zero. Under the same scenario, where there are no other 
trains or equipment operating within the designated limits, there may 
be no potential effect on rail safety as well as no direct effect.
    Paragraph (j) of this section proposes to require railroads to keep 
records of those violations in which they must not or elect not to 
revoke a conductor's certificate pursuant to paragraph (i) of this 
section. Paragraph (j)(1) would require railroads to keep records even 
when they decide not to suspend a conductor's certificate due to a 
determination pursuant to paragraph (i). Paragraph (j)(2) would require 
railroads to keep records even when they make their determination prior 
to the convening of the hearing held pursuant to Sec.  242.407.
    Paragraph (k) addresses concerns that problems could arise if FRA 
disagrees with a railroad's decision not to suspend a conductor's 
certificate for an alleged misconduct event pursuant to Sec.  
242.403(e). As long as a railroad makes a good faith determination 
after a reasonable inquiry, the railroad should have a defense to civil 
enforcement for making what the agency believes to be an incorrect 
determination. However, railroads should note that if they do not 
conduct a reasonable inquiry or act in good faith, they would be 
subject to civil penalty enforcement under this proposed rule. In 
addition, even if a railroad does not take what FRA considers 
appropriate revocation action, FRA could still take enforcement action 
against a person responsible for the non-compliance by assessing a 
civil penalty pursuant to Sec.  242.403 of this proposed rule or 
issuing an order prohibiting an individual from performing safety-
sensitive functions in the rail industry for a specified period 
pursuant to 49 CFR part 209, subpart D.

Subpart F--Dispute Resolution Procedures

    This subpart details the opportunities and procedures for a person 
to appeal a decision by a railroad to deny certification or 
recertification or to revoke a conductor's certification. As stated in 
the RSAC Task Statement, one of the issues requiring specific report 
from the Working Group was ``[s]tarting with the locomotive engineer 
certification model, what opportunities are available for simplifying 
appeals from decertification decisions of the railroads?'' Since its 
first meeting in July of 2009, the Working Group devoted a considerable 
amount of time to researching, discussing and proposing ideas to 
simplify the appeals process. While the appeals process proposed in 
this subpart, which received unanimous consent by the Working Group and 
was recommended by the full RSAC, essentially follows the appeals 
process in part 240, some important modifications are proposed. Those 
proposed modifications are discussed below.
Section 242.501 Review Board Established
    This section, derived from 49 CFR 240.401, provides that a person 
who has been denied certification or recertification or has had his or 
her conductor certification revoked could petition FRA to review the 
railroad's decision. Pursuant to this section, FRA proposes to delegate 
initial responsibility for adjudicating such disputes to an Operating 
Crew Review Board (OCRB). Although creation of the OCRB would require 
issuance of an internal FRA order, FRA expects that the OCRB would 
mirror the make-up of the Locomotive Engineer Review Board (LERB), 
which is currently used by FRA to adjudicate disputes under part 
240.\17\ As mentioned above, FRA expects that, if and when conforming 
changes are made to part 240, all references to the LERB in part 240 
would be changed to the OCRB and the OCRB would handle both conductor 
and locomotive engineer disputes.
Section 242.503 Petition Requirements
---------------------------------------------------------------------------

    \17\ In a modification to the regulatory text considered by the 
Working Group and the full RSAC, FRA has removed a reference to a 
minimum number of OCRB members in paragraph (c) of this section. The 
number of board members will be provided by FRA order.
---------------------------------------------------------------------------

    This section, derived from 49 CFR 240.403, provides the proposed 
requirements for obtaining FRA review of a railroad's decision to deny 
certification, deny recertification, or revoke certification. Those 
requirements contained in paragraphs (a)-(c) include the need to seek 
review in a timely fashion once the adverse decision is rendered by the 
railroad. Interested parties should note that the ``petitioner'' 
referred to in paragraph (b) of this section is the person who had his 
or her certificate revoked, not an employee representative who may 
respond on the petitioner's behalf. If the petitioner is represented by 
someone, the petitioner is encouraged to also provide the 
representative's name, mailing address, daytime telephone number, and 
e-mail address (if available) in the petition.
    As currently proposed, paragraph (b)(5) of this section would 
require a petitioner to supplement his or her petition with ``a copy of 
all written documents in the petitioner's possession or reasonably 
available to the petitioner that document'' the railroad's decision. In 
an effort to clarify that requirement with respect to petitions seeking 
review of a railroad decision which is based on a failure to comply 
with any drug or alcohol related rules or a return-to-service 
agreement, FRA is considering adding a provision to paragraph (b) of 
this section which would provide that: ``If the petitioner is 
requesting review of a railroad decision which is based on a failure to 
comply with any drug or alcohol related rules or a return-to-service 
agreement, then the petitioner shall supplement his or her petition 
with all relevant written documents, including the information under 49 
CFR 40.329 that laboratories, medical review officers, and other 
service agents are required to release to employees. The petitioner 
should provide written explanation in the petition if written documents 
that should be reasonably available to the petitioner are not 
supplied.'' FRA welcomes comments on that proposed provision.
    Paragraph (c) of this section proposes to give the OCRB discretion 
to grant a request for additional time that is made prior to the 
expiration of the period originally prescribed. As the OCRB could 
exercise its discretion under this proposed rule only for ``cause 
shown,'' a party would have to demonstrate some justification for the 
Board to grant an extension of time. Similarly, if the deadline in 
paragraph (c) is completely missed, the movant, under paragraph (c)(2), 
would have to allege facts constituting ``excusable neglect'' and the 
mere assertion of excusable neglect, unsupported by facts, would be 
insufficient. Excusable neglect would require a demonstration of good 
faith on

[[Page 69186]]

the part of the party seeking an extension of time and some reasonable 
basis for noncompliance within the time specified in the rules. Absent 
a showing along these lines, relief would be denied.
    Paragraph (d) of this section explains that a decision by the OCRB 
to deny a petition for untimeliness or lack of compliance with the 
requirements of Sec.  242.503 could be appealed directly to the 
Administrator. Ordinarily, an appeal to the Administrator could occur 
only after a case has been heard by FRA's hearing officer.
    One difference between this proposed section and Sec.  240.403 is 
the time by which a petition seeking review of a railroad's decision 
would have to be filed. Part 240 contains different times depending on 
whether a person is seeking review of a revocation decision (120 days) 
or a denial decision (180 days). This proposed section, however, 
provides that a petition seeking review of a revocation or denial 
decision would have to be filed with FRA within 120 days of the date 
the decision was served on the petitioner. Another difference between 
this proposed section and Sec.  240.403 is that, under this section, 
the OCRB's discretion to consider untimely filed petitions would now be 
extended to petitions seeking review of a railroad's decision to deny 
certification or recertification.
Section 242.505 Processing Certification Review Petitions
    This proposed section, derived from 49 CFR 240.405, details how 
petitions for review would be handled by FRA. Upon receipt of the 
petition, FRA proposes to provide the person written acknowledgement of 
the filing and provide a copy of the filing to the railroad. The 
railroad would then have 60 days from its date of receipt to respond, 
if it desires to comment on the matter. If the railroad commented on 
the matter, any material would have to be submitted in writing and a 
copy served on the petitioner and petitioner's representative, if 
any.\18\
---------------------------------------------------------------------------

    \18\ The proposed rule considered by the Working Group and full 
RSAC would have required the railroad to ``provide'' a copy of the 
information to the petitioner. To clarify the obligation of the 
railroad, FRA has changed the word ``provide'' to ``serve'' and 
added that petitioner's representative, if any, also be served.
---------------------------------------------------------------------------

    Based on the written record, FRA staff would analyze the railroad 
decision and make a recommendation to the OCRB. The OCRB would 
determine whether the denial or revocation of certification was 
improper under the regulation. As indicated in paragraph (a), it would 
be FRA's goal to issue OCRB decisions within 180 days from the date FRA 
has received all the information from the parties. FRA's ability to 
achieve that goal would depend on the number of petitions filed and 
agency resources available to handle those petitions in any given 
period. Further, that goal will depend on whether FRA receives all 
available evidence. If the petition and/or railroad's response do not 
contain all available evidence, including but not limited to, the 
complete hearing transcript with exhibits and color copies of all 
photographic evidence (if available), then it is FRA's intention that 
the OCRB will render a decision within 180 days from the date that all 
available evidence is received.
    While the handling of petitions by FRA would be the same under 
Sec.  240.405 and this proposed section, this section, unlike Sec.  
240.405, includes, in paragraphs (f)-(j), the proposed process and 
standards of review that the OCRB would utilize when considering a 
petition. Those standards are the same standards used by the LERB to 
review locomotive engineer petitions.\19\ The standards were added to 
this proposed rule to address a concern of some members of the Working 
Group that railroads and petitioners would not know what standard of 
review the OCRB would use in considering petitions.
---------------------------------------------------------------------------

    \19\ FRA has made some modifications to paragraphs (f)-(j) from 
the draft recommended by the Working Group and full RSAC. The 
modifications are necessary to clarify the authority of the OCRB and 
the standards of review the OCRB would utilize.
---------------------------------------------------------------------------

    Like the LERB, the OCRB would only determine whether a railroad's 
decision was based on an incorrect determination. If a railroad 
conducted hearing was so unfair that it caused a petitioner substantial 
harm, the OCRB could grant the petition; however, the OCRB's review 
would not be intended to correct all procedural wrongs committed by the 
railroad. Also like the LERB, the decision-making power of the OCRB 
would be limited to approving the railroad decision, overturning the 
railroad decision, or returning the case to the railroad for additional 
fact finding. The OCRB would not be empowered to mitigate the 
consequences of a railroad decision, if that decision was valid under 
this proposed regulation. The OCRB would only be empowered to make 
determinations concerning qualifications under this regulation. The 
contractual consequences, if any, of those determinations would have to 
be resolved under dispute resolution mechanisms that do not directly 
involve FRA. For example, FRA could not order a railroad to alter its 
seniority rosters or make an award of back pay to accommodate a finding 
that a railroad wrongfully denied certification.
    Interested parties should note that promulgation of this proposed 
rule, as currently written, would necessarily require the OCRB and LERB 
to determine whether a railroad revoked the correct certificate of a 
person who holds both an engineer and conductor certification. For 
example, in a case in which a railroad found that a person who holds 
both a conductor and engineer certification violated a railroad rule 
involving a failure to comply with the provisions of 49 CFR 218.99 
(i.e., a part 218, subpart F violation) but revoked that person's 
engineer certification, the OCRB, if petitioned, would have to find 
that the revocation decision was improper because, currently, an 
engineer cannot have his or her part 240 certification revoked for 
violations of part 218, subpart F.
    Paragraph (l) of this section would require the OCRB's written 
decision to be served on the petitioner, including the petitioner's 
representative, if any, and the railroad. That paragraph has been 
modified from the paragraph considered by the Working Group and the 
full RSAC to require that the decision be served on the parties, not 
just provided to them. Moreover, the modified paragraph does not 
contain a requirement that every decision include findings of fact 
which may not be appropriate or relevant to some decisions.
Section 242.507 Request for a Hearing
    This section, which parallels 49 CFR 240.407, provides that a party 
who has been adversely affected by an OCRB decision would have the 
opportunity to request an administrative proceeding as prescribed in 
proposed Sec.  242.509. In addition, this section details the proposed 
requirements for requesting such a proceeding.
    Paragraph (c) of this section provides that a party who fails to 
request an administrative hearing in a timely fashion would lose the 
right to further administrative review since the OCRB's decision would 
constitute final agency action.
    As noted in paragraph (e) of this section, FRA would not schedule 
hearings or set an agenda for the proceeding. FRA would merely arrange 
for the appointment of a presiding officer and it would be the 
presiding officer's duty to schedule a hearing for the earliest 
practicable date.

[[Page 69187]]

Section 242.509 Hearings
    This section, which parallels 49 CFR 240.409, describes the 
proposed authority of the presiding officer to conduct an 
administrative hearing and the procedures by which the administrative 
hearing would be governed. Like Sec.  240.409, the proceeding provided 
by this section would afford an aggrieved party a de novo hearing at 
which the relevant facts would be adduced and the correct application 
of this proposed part would be applied.
    In instances when the issues are purely legal, or when only limited 
factual matters are necessary to determine issues, paragraph (c) of 
this section proposes that the presiding officer could determine the 
issues following an evidentiary hearing only on the disputed factual 
issues, if any. The presiding officer could therefore grant full or 
partial summary judgment.
    Paragraph (d) of this section proposes that the presiding officer 
may authorize discovery. It also proposes to authorize the presiding 
officer to sanction willful noncompliance with permissible discovery 
requests. Paragraph (e) would require that documents in the nature of 
pleadings be signed. This signature would constitute a certification of 
factual and legal good faith. Paragraph (f) proposes a requirement for 
service and for certificates of service. The presiding officer's 
authority to address noncompliance with a law or directive is expressed 
in paragraph (g). This provision is intended to ensure that the 
presiding officer would have the authority to control the proceeding so 
that an efficient and fair hearing would result.
    Paragraph (h) states the right of each party to appear and be 
represented. Paragraph (i) would protect witnesses by ensuring their 
right of representation and their right to have their representative 
question them. Paragraph (j) would allow any party to request 
consolidation or separation of hearings of two or more petitions when 
to do so would be appropriate under established jurisprudential 
standards. This option is intended to allow more efficient 
determination of petitions in cases where a joint hearing would be 
advantageous.
    Under paragraph (k), the presiding officer could, with certain 
exceptions, extend periods for action required in the proceedings, 
provided substantial prejudice would not result to a party. The 
proposed authority to deny a request for extension submitted after the 
expiration of the period involved shows the preference for use of this 
authority as a tool to alleviate unforeseen or unnecessary burdens, and 
not as a remedy for inexcusable neglect.
    Paragraph (l) would establish a motion as the appropriate method 
for requesting action by the presiding officer. That paragraph would 
also provide the form of motions and the response period for written 
motions.
    Paragraph (m) would provide rules for the mode of hearing and 
record maintenance, including requirements for sworn testimony, 
verbatim record (including oral testimony and argument), and inclusion 
of evidence or substitutes therefor in the record. Paragraph (n) would 
direct the presiding officer to employ specific rules of evidence as 
guidelines for the introduction of evidence and permits the presiding 
officer to determine what evidence may be received. Further, paragraph 
(o) proposes additional powers the presiding officer may exercise 
during the proceedings.
    Paragraph (p) would provide that the petitioner before the OCRB, 
the railroad that took the certification action at issue, and the FRA 
are mandatory parties to the administrative proceeding. Paragraph (q) 
would require the party requesting the hearing to carry the burden of 
proof. The actions of the conductor and the railroad would be at issue 
in the hearing--not the actions of the OCRB. Thus, it is appropriate 
that the conductor and the railroad fill the roles of petitioner and 
respondent for the hearing. In addition, the burden each party would 
have if they were the hearing petitioner is articulated in paragraph 
(q).
    Paragraph (r) would provide that FRA would be a mandatory party in 
the proceeding. In all proceedings, FRA would initially be considered a 
respondent. If, based on evidence acquired after the filing of a 
petition for hearing, FRA were to conclude that the public interest in 
safety was more closely aligned with the position of the petitioner 
than the respondent, FRA could request that the hearing officer 
exercise his or her inherent authority to realign parties for good 
cause shown. However, FRA anticipates that such a situation would occur 
rarely, if ever. Since FRA could realign itself, FRA wants to caution 
future parties that FRA represents the interests of the government; 
hence, parties and their representatives would have to be careful to 
avoid ethical dilemmas that might arise due to FRA's ability to realign 
itself.
    Paragraphs (s)-(u) would provide the providing officer with 
authority to close the record and issue a decision.
Section 242.511 Appeals
    This section, derived from 49 CFR 240.411, proposes to permit any 
party aggrieved by the presiding officer's decision to file an appeal 
with the FRA Administrator. Paragraph (a) proposes that if no appeal is 
timely filed, the presiding officer's decision would constitute final 
agency action.
    Paragraphs (b)-(f) would allow for a reply to the appeal and 
described the Administrator's authority to conduct the proceedings. 
Interested parties should note that the phrase ``except where the terms 
of the Administrator's decision (for example, remanding a case to the 
presiding officer) show that the parties' administrative remedies have 
not been exhausted'' in paragraph (e) of this section is included in 
this proposed rule so that parties would understand that a remand, or 
other intermediate decision, would not constitute final agency action. 
The inclusion of this phrase is made in deference to those parties that 
are not represented by an attorney or who might otherwise be confused 
as to whether any action taken by the Administrator should be 
considered final agency action.
Appendices
    FRA proposes to include at least four appendices to this rule. In 
the final rule, Appendix A will contain a penalty schedule similar to 
that FRA has issued for all of its existing rules. Because such penalty 
schedules are statements of policy, notice and comment are not required 
prior to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless 
interested parties are welcome to submit their views on what penalties 
may be appropriate.
    Proposed Appendix B provides both the organizational requirements 
and a narrative description of the submission required under Sec. Sec.  
242.101 and 242.103. FRA is not proposing to require that railroad 
submissions be made on a Federally mandated form. Instead, FRA is 
prescribing only minimal constraints on the organization and manner of 
presenting information. FRA would require that the submission be 
divided into six sections. FRA would require that each section deal 
with a different subject matter and that the railroad identify the 
appropriate person to be contacted in the event FRA needs to discuss 
some aspect of the railroad's program. While proposed Appendix B is 
derived from Appendix B to part 240, one major difference is that 
proposed Appendix B proposes to require that, pursuant to Sec.  
242.103, a railroad must serve a copy of its submission on the 
president of each labor organization that

[[Page 69188]]

represents the railroad's employees subject to part 242.
    Interested parties should note that FRA is considering the 
possibility of requiring each railroad to provide its submission 
electronically. Such a requirement would likely allow FRA to review 
submissions more efficiently and eliminate the need to store hardcopies 
of the numerous submissions. FRA welcomes comments on this 
consideration.
    Proposed Appendix C, derived from Appendix C to part 240, provides 
a narrative discussion of the procedures that a person seeking 
certification or recertification would have to follow to furnish a 
railroad with information concerning his or her motor vehicle driving 
record.
    Proposed Appendix D, derived from Appendix F to part 240, provides 
a narrative discussion of the procedures that a railroad would be 
required to employ in administering the vision and hearing requirements 
of Sec.  242.117. The main issue addressed in this proposed Appendix is 
the acceptable test methods for determining whether a person has the 
ability to recognize and distinguish among the colors used as signals 
in the railroad industry.
    Subsequent to the July-December Working Group meetings, FRA was 
notified that an additional color vision test (Richmond--HRR (4th 
edition)) could be added to the list of acceptable tests contained in 
Appendix F to part 240 and that some of the listed tests are no longer 
in print. While updating the list would appear to fall within the 
purview of the medical standards working group, FRA would welcome 
comments on which vision color tests should be included both in 
Appendix F to part 240 and in Appendix C to this proposed rule.
    Proposed Appendix E provides a table describing the application of 
revocable events. The table lists: The revocation periods; whether a 
person would be eligible for a reduction of the revocation period; and 
whether a person who is certified as both a conductor and an engineer 
could work in either position following a certification revocation.

V. Regulatory Impact and Notices

1. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be non-significant under 
both Executive Order 12866 and DOT policies and procedures. See 44 FR 
11034 (February 26, 1979). FRA has prepared and placed in Docket No. 
FRA-2009-0035 a regulatory evaluation addressing the economic impact of 
this proposed rule. Document inspection and copying facilities are 
available at the DOT Central Docket Management Facility located in Room 
W12-140 on the Ground level of the West Building, 1200 New Jersey 
Avenue, SE., Washington, DC 20590. Docket material is also available 
for inspection electronically through the Federal eRulemaking Portal at 
http://www.regulations.gov. Photocopies may also be obtained by 
submitting a written request to the FRA Docket Clerk at the Office of 
Chief Counsel, RCC-10, Mail Stop 10, Federal Railroad Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to 
Docket No. FRA-2009-0035.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of the cost streams expected to result from 
the adoption of this proposed rule. For the twenty-year period 
analyzed, the estimated quantified cost that would be imposed on 
industry totals $83.5 million with a present value (PV, 7%) of $42.2 
million. In addition, FRA would incur administrative costs totaling 
about $15.2 million, with a PV of $7.6 million. Although there are 
numerous costs or burdens in this proposed rule, the requirements that 
are expected to impose the largest burdens relate to the initial and 
periodic training, knowledge testing, and operational testing. In 
addition, the dispute resolution process associated with the denial and 
revocation of conductor certification would be a new requirement that 
would impose burdens on the railroad industry and FRA.
    As part of the regulatory impact analysis, FRA has explained what 
the likely benefits for this proposed rule would be, and provided 
numerical assessments of the potential value of such benefits. The 
proposed rulemaking is expected to improve railroad safety by ensuring 
that all trains have certified and trained conductors. Thus, in 
general, the proposed rule should decrease train accidents and 
incidents and associated casualties and damages. FRA also anticipates 
that this proposed regulation will decrease switching operation 
casualties and human factor-caused train crew injuries. FRA believes 
the value of the anticipated safety benefits will meet or exceed the 
cost of implementing the proposed rule.
    The table below presents the cost associated with implementation of 
the proposed rule.

[[Page 69189]]

[GRAPHIC] [TIFF OMITTED] TP10NO10.000

2. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impacts on small entities. An agency must prepare an initial 
regulatory flexibility analysis (IRFA) unless it determines and 
certifies that a rule, if promulgated, would not have a significant 
impact on a substantial number of small entities. FRA has not 
determined whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. Therefore, FRA is 
publishing this IRFA to aid the public in commenting on the potential 
small business impacts of the requirements in this NPRM. FRA invites 
all interested parties to submit data and information regarding the 
potential economic impact that would result from adoption of the 
proposals in this NPRM. FRA will consider all comments received in the 
public comment process when making a determination.
    Based on information currently available, FRA estimates that about 
8 percent of the total railroad cost associated with implementing the 
proposed rule would be borne by small entities. Based on very 
conservative assumptions, FRA estimates that the cost for this proposed 
regulation could be as high as $83.5 million for the railroad industry. 
In addition, also based on conservative assumptions, FRA would incur 
costs that could total as much as $15.2 million. FRA also estimates 
that small railroads comprise over 90 percent of the number of entities 
impacted directly by this proposed regulation. Small railroads 
generally have fewer conductors and operate over smaller territories 
allowing them to meet the proposed requirements at lower overall cost 
as well as lower cost per conductor. Thus, although a substantial 
number of small entities would likely be impacted, the economic impact 
on them would likely not be significant. This IRFA is not intended to 
be a stand-alone document. In order to get a better understanding of 
the total costs for the railroad industry, which forms the base for the 
estimates in this IRFA, or more cost detail on any specific 
requirement, please see the Regulatory Impact Analysis (RIA) that FRA 
has placed in the docket for this rulemaking.
    In accordance with the Regulatory Flexibility Act, an IRFA must 
contain:
    (1) A description of the reasons why action by the agency is being 
considered;
    (2) A succinct statement of the objectives of, and the legal basis 
for, the proposed rule;
    (3) A description of, and where feasible, an estimate of the number 
of small entities to which the proposed rule will apply;

[[Page 69190]]

    (4) A description of the projected reporting, recordkeeping and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record;
    (5) An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule; and
    (6) A description of any significant alternatives to the proposed 
rule that accomplish the stated objectives of applicable statutes and 
which minimize any significant economic impact of the proposed rule on 
small entities. 5 U.S.C. 603(b), (c).
1. Reasons for Considering Agency Action
    The purpose of this rulemaking is to enhance the safety of railroad 
operations by ensuring that only those persons who meet minimum Federal 
safety standards serve as conductors, to reduce the rate and number of 
accidents and incidents, and to improve railroad safety.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    FRA's proposed regulation for conductor certification is intended, 
inter alia, to ensure that only those persons who meet minimum Federal 
safety standards serve as train conductors, and it accomplishes this by 
establishing Federal requirements for railroads to have conductor 
certification programs. These programs must meet or exceed FRA's 
minimum standards for the eligibility, training, testing, 
certification, and monitoring of persons who serve as conductors. 
Included in the eligibility determination for new or recertifying 
conductors are vision and hearing acuity tests. In addition, a railroad 
must consider prior conduct as a motor vehicle operator; substance 
abuse, alcohol, and drug rules compliance; and prior safety conduct at 
a different railroad, if applicable. FRA's proposed regulation would 
also prescribe minimum standards for the revocation of certification 
and the dispute resolution procedures for appealing certification 
denial or revocation.
    As discussed in Section IV of the Supplementary Information portion 
to the preamble, the proposed rule would require railroads to have a 
formal program for certifying conductors. FRA is proposing this 
regulation to ensure that only those persons who meet minimum Federal 
safety standards serve as conductors, to reduce the rate and number of 
accidents and incidents, and to improve railroad safety. FRA is also 
issuing this proposed rule to promulgate minimum training and 
certification standards for train conductors as mandated by RSIA 
Section 402, Public Law 110-432 (October 16, 2008) (codified at 9 
U.S.C. 20157).
3. A Description of, and Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Would Apply
    The ``universe'' of the entities to be considered generally 
includes only those small entities that are reasonably expected to be 
directly regulated by this action. For this proposed rulemaking there 
is one type of small entity that is potentially affected by this 
rulemaking: Small railroads.
    FRA estimates that approximately 5 contractors will be developing 
conductor certification programs and contracting conductors to 
railroads. The cost associated with certifying conductors is a cost 
that these contractors will pass on to the railroads contracting their 
services.
    ``Small entity'' is defined in 5 U.S.C. 601 as having the same 
meaning as ``small business concern'' under Section 3 of the Small 
Business Act. This includes any small business concern that is 
independently owned and operated, and is not dominant in its field of 
operation. Section 601(4) includes nonprofit enterprises that are 
independently owned and operated, and are not dominant in their field 
of operations within the definition of ``small entities.'' 
Additionally, 5 U.S.C. 601(5) defines ``small entities'' as governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size 
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be (and still classify as a ``small 
entity'') is 1,500 employees for ``line-haul operating'' railroads, and 
500 employees for ``shortline operating'' railroads.\20\
---------------------------------------------------------------------------

    \20\ ``Table of Size Standards,'' U.S. Small Business 
Administration, January 31, 1996, Title 13 CFR Part 121. See also 
NAICS Codes 482111 and 482112.
---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to the authority provided to it by SBA, FRA has 
published a final policy, which formally establishes small entities as 
railroads that meet the line haulage revenue requirements of a Class 
III railroad.\21\ Currently, the revenue requirements are $20 million 
or less in annual operating revenue, adjusted annually for inflation. 
The $20 million limit (adjusted annually for inflation) is based on the 
Surface Transportation Board's threshold of a Class III railroad 
carrier, which is adjusted by applying the railroad revenue deflator 
adjustment.\22\ The same dollar limit on revenues is established to 
determine whether a railroad shipper or contractor is a small entity. 
Governments of cities, counties, towns, townships, villages, school 
districts, or special districts with populations less than 50,000 are 
also considered small entities under FRA's policy. FRA is proposing to 
use this definition for this rulemaking. Any comments received 
pertinent to its use will be addressed in the final rule.
---------------------------------------------------------------------------

    \21\ See 68 FR 24891 (May 9, 2003).
    \22\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------

    Small Railroads:
    There are approximately 682 railroads meeting the definition of 
``small entity'' as described above. FRA estimates that approximately 
627 of these small entities would be impacted by this proposed rule. 
FRA estimates that approximately 55 of the 682 small railroads would 
not be impacted because they would be exempt from the proposed rule. 
Note, however, that approximately 125 of the small railroads that would 
be impacted are subsidiaries of large shortline holding companies with 
the expertise and resources comparable to larger railroads. Many small 
railroads that would be impacted by this rulemaking are members of the 
American Shortline and Regional Railroad Association (ASLRRA), which 
actively participated in the development of this regulatory proposal. 
It is very likely that the ASLRRA will develop a generic conductor 
certification program for their members to use. FRA would assist with 
this effort.
    Small railroads would be required to have written programs for 
certifying conductors in accordance with the proposed regulation. Given 
the nature of how most small railroads operate and the fact that they 
operate fewer types and numbers of trains than larger railroads this 
proposed regulation should be less burdensome. Thus, given the more 
limited territory, equipment types, number of conductors and/or the 
commodities transported by small railroads relative to Class II and 
Class I railroads, implementing and maintaining a program for the 
certification of conductors would be significantly less burdensome for 
small railroads both overall and on a per conductor basis. While FRA 
does

[[Page 69191]]

recognize that some small railroads do not currently have formal 
conductor training and certification programs, FRA believes that most 
small railroads currently have informal programs with the necessary 
elements of a formal program. FRA requests information regarding the 
number and type of Class III railroads that do not have formal 
conductor training and certification programs as well as the number of 
conductors employed by such railroads.
    In general, the proposed rule would likely burden all small 
railroads that are not exempt from its scope or application. However, 
it would not significantly burden many, if any, of these entities. More 
details on the cost burdens for small railroads are provided below. FRA 
invites commenters to submit information that might assist us in 
assessing the cost impacts on small railroads of the proposals during 
the comment process of the NPRM.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the 
Classes of Small Entities That Will Be Subject to the Requirement and 
the Type of Professional Skills Necessary for Preparation of the Report 
or Record
    The impact of this rulemaking would come from its numerous proposed 
requirements. However, many of the estimated burdens are for small 
paperwork burdens or for processes and procedures that would not impact 
small railroads and their conductors as frequently or significantly as 
Class I and II railroads and the conductors they employ. As discussed 
above, in general the burdens on small railroads should be lower per 
train mile than those on Class I and II railroads both for overall 
programs and per conductor.
    Small railroads employ less than 10 percent of the employees in the 
railroad industry. In fact the percentage of employees is probably 
closer to 7 or 8 percent. Thus, since most of the requirements in this 
proposed regulation are assessed per conductor, the burden for each 
railroad would be driven mainly by the number of conductors it employs. 
In general, small railroads have fewer conductors and would not train 
or certify as many conductors as the large railroads. Small railroads 
would also not need to certify any conductors for remote control 
locomotives (RCL) purposes, since they do not use RCLs. In addition, 
the size of the territory and level of joint operations is likely to be 
less for smaller railroads making the burden per conductor lower.
    This proposed regulation has many requirements which are organized 
by subparts. There are numerous burdens from this proposed regulation 
that are noted in the RIA for railroads. This IRFA will discuss a 
majority of these burdens and their pertinence to small railroads 
below.
    FRA's RIA estimates the total burden for this proposed rule to be 
$83.5 million (non-discounted) for the first 20 years of the rule. As 
detailed in the assessments below, FRA estimates that $6.7 million of 
this burden would be borne by small railroads.
    (a) Subpart A--General:
    The requirements in Subpart A do not impose any direct burdens on 
small railroads.
    (b) Subpart B--Program and Eligibility Requirements:
    This subpart of the proposed rule contains the basic elements of 
the proposed conductor certification program that would impose the 
majority of the new burden for creating and implementing such programs. 
The ASLRRA has indicated that it plans to develop a generic program and 
template to facilitate compliance with this federal regulation and FRA 
would gladly collaborate in this effort. FRA anticipates that almost 
all of the small railroads in need of a program will take the shortline 
generic plan and tailor it for their operations. As more fully 
discussed in the RIA, FRA estimates that these programs can be 
developed at an average cost of $700 per small railroad.\23\ FRA 
estimates, that in total, small railroads will be burdened with 
approximately $473,000 to develop conductor certification programs. FRA 
estimates that it would cost the entire railroad industry about 
$918,000 to develop programs.
---------------------------------------------------------------------------

    \23\ Calculation: (1 small RR) * [(1 exec hours) * ($125) + (2 
admin hours) * ($21) + (12 RR staff hours) * ($42.05) + (0.5 Senior 
RR staff hours) * ($75)] = $709.
---------------------------------------------------------------------------

    The proposed requirements for a training program and periodic 
training for recertification, i.e., Section 242.119, are among the most 
significant costs for the entire railroad industry imposed by this 
proposal. Railroads generally already have formal or informal training 
programs and many offer some degree of periodic training. FRA estimates 
that further developing the training programs and providing the 
periodic training would cost the railroad industry approximately $28 
million (not discounted) over the 20-year analysis in FRA's RIA. Based 
on experience and discussions at RSAC working group meetings, FRA knows 
that most small railroads are currently providing training to their 
conductors and that most of that training is on-the-job training. FRA 
estimates that more formalized training will have to be added to the 
training programs for small railroads. FRA estimates that the small 
railroads will incur almost $2.5 million of this cost, making the per 
railroad average approximately $4,000.
    Proposed Section 242.121 requires railroads provide initial and 
periodic testing of conductors. That testing would have to effectively 
examine and measure a conductor's knowledge of five subject areas: 
Safety and operating rules; timetable instructions; compliance with all 
applicable Federal regulations; the physical characteristics of the 
territory on which a person will be or is currently serving as a 
conductor; and the use of any job aid that a railroad may provide a 
conductor. FRA's RIA has estimated that this would cost the industry 
$7.4 million (not discounted) over the 20-year analysis for the entire 
industry. Since small railroads represent approximately 7 to 8 percent 
of the employees in the railroad industry, FRA estimates that small 
railroads will incur approximately $554,000 of this cost.
    Proposed Section 242.123 requires railroads to conduct unannounced 
compliance tests and inspections. The proposed rule would require each 
railroad to have a program to monitor the conduct of its conductors by 
performing unannounced operating rules compliance tests. FRA's RIA has 
estimated that this would cost the industry $7.7 million (not 
discounted) over the 20-year analysis. Since small railroads represent 
approximately 7 to 8 percent of the employees in the railroad industry, 
FRA estimates that small railroads will incur approximately $577,000 of 
this cost.
    Other proposed requirements in this subpart that would impact small 
railroads include: Prior safety conduct as a motor vehicle operator, 
Section 242.111; substance abuse disorders and alcohol drug rules 
compliance, Section 242.115; vision and hearing acuity testing, Section 
242.117; and certification determinations made by other railroads, 
Section 242.125.
    The total (non-discounted) cost for this subpart is $50.6 million. 
FRA estimates the estimated cost for small railroads is about $4.6 
million (not discounted) over the first twenty-years.
    (c) Subpart C--Administration of the Certificate Program:
    This subpart of the proposed rule covers the requirements for 
administering a certification program. Most of the requirements in this 
subpart are basic requirements necessary for having the certificate 
program, except the proposed requirements in Section 242.215. That 
section proposes to

[[Page 69192]]

require only Class I, Class II and all passenger railroads to conduct 
an annual review and analysis of their programs. Thus, small railroads 
will incur no burden from that proposed requirement.
    The total (non-discounted) cost for this Subpart C is $7.4 million. 
However, FRA estimates that less 6 percent of this will be borne by 
small railroads given that they would not be subject to the annual 
review and analysis requirements. Thus, the estimated cost for small 
railroads is about $448,000 (non-discounted) over the first twenty-
years.
    (d) Subpart D--Territorial Qualification and Joint Operations:
    This subpart of the proposed rule covers the requirements for 
territorial qualification and joint operations. FRA estimates that 
approximately 320 railroads operate over joint territory. FRA further 
estimates that approximately 2 percent of all of the conductors 
industry-wide will be qualified for joint territory. However, the 
primary burden from this subpart is related to the qualification of new 
conductors. In general, small railroads do not have as high a turnover 
rate for employees and therefore should not have as many new conductors 
each year. The total (non-discounted) cost for this subpart is $17.1 
million. Since small railroads represent approximately 7 to 8 percent 
of the employees in the railroad industry, FRA estimates that the cost 
for small railroads is about $1,281,000 over the first twenty-years.
    (e) Subpart E--Denial and Revocation of Certification:
    This subpart of the proposed rule covers the denial and revocation 
of conductor certifications. The estimated burdens in this subpart are 
related to the paperwork involved in the denial of certification, which 
often occurs when hearing, vision or knowledge tests are failed. The 
majority of the burdens for this subpart are associated with the 
process for revocation (Section 242.407). The total (non-discounted) 
cost for this subpart is $4.1 million. Since small railroads represent 
approximately 7 to 8 percent of the employees in the railroad industry, 
FRA estimates the cost for small railroads is about $303,000 (not 
discounted) over the first twenty-years.
    (f) Subpart F--Dispute Resolution Procedures:
    This subpart of the proposed rule primarily deals with the dispute 
resolution procedures, and the procedures for a person to appeal a 
decision by a railroad to deny certification or recertification or to 
revoke a conductor's certification. The estimated burdens in this 
subpart are related to appeals to FRA's Review Board, requests for 
administrative hearings, and appeals to FRA's Administrator. Based on 
past experience with locomotive engineer appeals, administrative 
hearings, etc., FRA does not anticipate many of the cases related to 
this subpart to be from employees of small railroads. The total (non-
discounted) cost for this subpart is $19.4 million. However, most of 
the costs for the requirements in this section are for government 
resources. FRA estimates that the non-government share of this 
Subpart's cost is $4.4 million. FRA estimates that less than 2 percent 
of the non-government cost will be borne by small railroads. Thus, the 
estimated cost for small railroads is about $88,000 (non-discounted) 
over the first twenty-years.
5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    FRA is not aware of any relevant federal rules that may duplicate, 
overlap, or conflict with the proposed rule. Some of the requirements 
proposed in this NPRM are identical or very similar to the requirements 
in 49 CFR Part 240 for the certification of locomotive engineers, 
however actions taken to comply with requirements in Part 240 that are 
identical or very similar to those in Part 242 could be used to fulfill 
the requirements in Part 242, or vice versa, without incurring any 
additional burden.
6. A Description of Any Significant Alternatives to the Proposed Rule 
That Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    FRA formed an RSAC working group to develop recommendations for 
conductor certification regulations in December 2008. The RSAC Working 
Group met for six, multi-day meetings over a period of several months. 
After a series of detailed discussions, the RSAC Working Group achieved 
consensus on a draft proposed rule in January 2010. The full RSAC 
approved and recommended its consensus on March 18, 2010.
    In Section 242.3 of the proposed regulation there is an exclusion 
for operations that occur on track that is not part of the general 
railroad system, which generally encompasses operations commonly 
described as tourist, scenic or excursion service to the extent that 
they occur on track that is not part of the general railroad system. 
FRA estimates that this would exclude approximately 55 small and very 
small railroads from the requirements of this proposed regulation.
    FRA's proposal would minimize the impact to small railroads by 
delaying the implementation of the recertification process for the 
Class III railroads by 12 months. Thus, small railroads will have more 
time to implement most of the requirements of this proposed regulation 
than Class I and Class II freight railroads and passenger railroads.
    FRA is not aware of any significant alternatives to the proposed 
rule that would accomplish the stated objectives of RSIA that would 
minimize the economic impact of the proposed rule on small entities.
    The process by which this proposed rule was developed provided 
outreach to small entities. As noted above in this IRFA, this rule was 
developed in consultation with industry representatives via RSAC, which 
includes small railroad representatives. The RSAC Conductor 
Certification Working Group came to consensus on a majority of this 
proposed regulation in January 2010 and the Full RSAC approved the 
draft proposed rule in March 2010. Small railroad representatives 
participated in all meetings of the Working Group and raised issues of 
concern to small railroads. If requested, FRA may hold a public 
hearing. After the comment period for this NPRM closes, FRA expects to 
reconvene the Working Group to review the comments to the docket. At 
that meeting FRA expects that comments will be reviewed and considered 
by the Working Group, including any raised concerning impacts on small 
entities and this IRFA.

3. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
are duly designated, and the estimated time to fulfill each requirement 
is as follows:

[[Page 69193]]



----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
       CFR Section/Subject         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
242.9--Waivers--Petitions........  677 railroads......  10 petitions.......  3 hours............              30
242.101/103--Certification         677 railroads......  678 programs.......  160 hrs./581 hrs./           16,799
 Program: Written Program for                                                 15.5 hrs.
 Certifying Conductors.
Approval of Design of Programs
--Certification Programs for New   6 railroads........  6 new prog.........  15.5 hours.........              93
 RRs.
--Conductor Certification          677 railroads......  200 copies.........  15 minutes.........              50
 Submission Copies to Rail Labor
 Organizations.
--Affirmative Statements that      677 railroads......  200 statements.....  15 minutes.........              50
 Copies of Submissions Sent to
 RLOs.
--Certified Comments on            677 railroads......  35 comments........  4 hours............             140
 Submissions.
--Certification Programs           677 railroads......  10 programs........  4 hours............              40
 Disapproved by FRA and then
 Revised.
--Revised Certification Programs   677 railroads......  3 programs.........  2 hours............               6
 Still Not Conforming and then
 Resubmitted.
--Certification Programs           677 railroads......  50 programs........  2 hours............             100
 Materially Modified After
 Initial FRA Approval.
--Materially Modified Programs     677 railroads......  3 programs.........  2 hours............               6
 Disapproved by FRA & Then
 Revised.
--Revised programs Disapproved     677 railroads......  1 program..........  2 hours............               2
 and Then Resubmitted.
242.105--Implementation Schedule
--Designation of Certified         677 railroads......  48,600 designations  5 minutes..........           4,050
 Conductors (Class I Railroads).
--Issued Certificates (\1/3\ each  677 railroads......  16,200 certif......  1 hour.............          16,200
 year).
--Designation of Certified         677 railroads......  5,400 design.......  5 minutes..........             450
 Conductors (Class II and III
 Railroads).
--Issued Certificates (\1/3\ each  677 railroads......  1,800 certif.......  1 hour.............           1,800
 year).
--Requests for Delayed             677 railroads......  5,000 request......  30 minutes.........           2,500
 Certification.
--Testing/Evaluation to Certify    677 railroads......  1,000 tests........  560 hours..........         560,000
 Persons.
--Testing/Evaluation to Certify    627 railroads......  100 tests..........  400 hours..........          40,000
 Conductors (Class III).
242.107--Types of Service
--Reclassification to Diff. Type   677 railroads......  25 conductor Tests/  8 hours............             200
 of Cert..                                               Evaluations.
242.109--Opportunity by RRs for    677 Railroads......  50 comments........  1 hour.............              50
 Certification Candidates to
 Review and Comment on Prior
 Safety Record.
242.111--Prior Safety Conduct As
 Motor Vehicle Operator
--Eligibility Determinations.....  677 Railroads......  1,100 dtrmin.......  10 minutes.........             183
--Initial Certification for 60     677 Railroads......  75 certific........  10 minutes.........              13
 Days.
--Recertification for 60 Days....  677 Railroads......  125 recertif.......  10 minutes.........              21
--Driver Info. Not Provided and    677 Railroads......  25 requests........  2 hours............              50
 Request for Waiver by Persons/RR.
--Request to Obtain Driver's       54,000 Conductors/   18,000 req.........  15 minutes.........           4,500
 License Information From           Persons.
 Licensing Agency.
--Requests for Additional          54,000 Conductors/   25 requests........  10 minutes.........               4
 Information From Licensing         Persons.
 Agency.
--Notification to RR by Persons    54,000 Conductors/   2 notification.....  10 minutes.........             .33
 of Never Having a License.         Persons.
--Report of Motor Vehicle          54,000 Conductors..  200 reports........  10 minutes.........              33
 Incidents.
--Evaluation of Driving Record...  54,000 Conductors..  18,000 eval........  10 minutes.........           3,000
--SAP Referral by RR After Report  677 Railroads......  180 referrals......  5 minutes..........              15
 of Driving Drug/Alcohol Incident.
--SAP Request and Supply by        677 Railroads......  5 requests/Records.  30 minutes.........               3
 Persons of Prior Counseling or
 Treatment.
--Conditional Certifications       677 Railroads......  50 certificat......  4 hours............             200
 Recommended by SAP.
242.113--Prior Safety Conduct As   54,000 conductors..  360 requests/360     15 minutes + 30                 270
 Employee of a Different Railroad.                       records.             minutes.
242.115--Substance Abuse
 Disorders and Alcohol Drug Rules
 Compliance
--Meeting Section's Eligibility    54,000 conductors..  18,000               2 minutes..........             600
 Reqmnt.                                                 determinations.
--Written Documents from SAP       677 railroads......  400 docs...........  30 minutes.........             200
 Person Not Affected by a
 Disorder.
--Self-Referral by Conductors for  54,000 conductors..  10 self-referrals..  10 minutes.........               2
 Substance Abuse Counseling.
--Certification Reviews for        677 railroads......  18,000 reviews.....  10 minutes.........           3,000
 Occurrence/Documentation of
 Prior Alcohol/Drug Conduct by
 Persons/Conductors.

[[Page 69194]]

 
--Written Determination That Most  677 railroads......  150 determin.......  60 minutes.........             150
 Recent Incident Has Occurred.
--Notification to Person That      677 railroads......  150 notific........  10 minutes.........              25
 Recertification Has Been Denied.
--Persons/Conductors Waiving       54,000 conductors..  100 waivers........  10 minutes.........              17
 Investigation.
242.117-- Vision and Hearing
 Acuity
--Determination Vision Standards   677 railroads......  18,000 deter.......  20 minutes.........           6,000
 Met.
--Determination Hearing Stds. Met  677 railroads......  18,000 deter.......  20 minutes.........           6,000
--Medical Examiner Certificate     677 railroads......  18,000 certif......  2 hours............          36,000
 That Person Has Been Examined/
 Passed test.
--Document Standards Met with      677 railroads......  50 document........  30 minutes.........              25
 Conditions.
--Document Standards Not Met.....  677 railroads......  25 document........  30 minutes.........              13
--Notation Person Needs            677 railroads......  10,000 notes.......  10 minutes.........           1,667
 Corrective Device (Glasses/
 Hearing Aid).
--Request for Further Medical      677 railroads......  100 requests + 100   60 minutes + 2                  300
 Evaluation for New Determination.                       Evals.               hours.
--Request for Second Retest and    677 railroads......  25 requests + 25     60 minutes + 2                   75
 Another Medical Evaluation.                             Evals.               hours.
--Copies of Part 242 Provided to   677 railroads......  677 copies.........  60 minutes.........             677
 RR Medical Examiners.
--Consultations by Medical         677 railroads......  100 consults + 100   2 hours + 10                    217
 Examiners with Railroad Officer                         certif.              minutes.
 and Issue of Conditional
 Certification.
--Notification by Certified        677 railroads......  10 notific.........  10 minutes.........               2
 Conductor of Deterioration of
 Vision/Hearing.
242.119--Training
--Completion of Training Program.  677 railroads......  678 Programs.......  37 hours/70 hrs/3             3,801
                                                                              hrs.
--Completion of Training Program   54,000 Conductors..  18,000 Docs/18,000   1 hour/560 hours...      10,098,000
 by Conductors/Persons +                                 Cond.
 Documents.
--Training Task Analysis for RRs   677 railroads......  677 analyses.......  12 hours/20 hrs./20             829
 Training Persons Previously                                                  min.
 Untrained.
--Modification of Training         677 railroads......  30 programs........  4 hours............             120
 Program Due to New Laws/
 Regulations.
--Consultation with Supervisory    677 railroads......  1,000 consult......  15 minutes.........             250
 Employee During Written Test.
--Familiarization Training Upon    677 railroads......  10 trained           8 hours............              80
 Transfer of RR Ownership.                               Conductors.
--Instructional Briefings on       677 railroads......  54,000 briefs......  8 hours............         432,000
 Federal RR Safety Laws/
 Regulations.
--Records of Instructional         677 railroads......  54,000 record......  10 minutes.........           9,000
 Briefings.
--Continuing Education of          677 railroads......  18,000 cont.         8 hours............         144,000
 Conductors.                                             trained cond.
242.121--Knowledge Testing
--Determining Eligibility........  677 railroads......  18,000 deter.......  30 minutes.........           9,000
--Retests/Re-Examinations........  677 railroads......  500 Retests........  8 hours............           4,000
242.123--Monitoring Operational
 Performance
--Unannounced Compliance Tests     677 railroads......  18,000 tests +       2 hours + 10                 39,000
 and Records.                                            18,000 recd.         minutes.
--Return to Service That Requires  677 railroads......  1,000 tests + 1,000  2 hours + 10                  2,167
 Unannounced Compliance Test/                            records.             minutes.
 Record.
242.125/127--Certificate
 Determination by Other Railroads/
 Other Country
--Determination Made by RR         677 railroads......  100 determin.......  8.5 hours..........             850
 Relying on Another RR's
 Certification.
--Determination by Another         677 railroads......  200 determin.......  1 hour.............             200
 Country.
242.203--Retaining Information     677 railroads......  18,000 recds.......  5 minutes..........           1,500
 Supporting Determination--
 Records.
--Amended Electronic Records.....  677 railroads......  20 records.........  60 minutes.........              20
242.205--List of Certified         677 railroads......  625 lists..........  60 minutes.........             625
 Conductors Working in Joint
 Territory.
242.209-- Maintenance of
 Certificates
--Request to Display Certificate.  677 railroads......  2,000 request/       2 minutes..........              67
                                                         displays.
--Notification That Request to     677 railroads......  1,000 notif........  10 minutes.........             167
 Serve Exceeds Certification.
242.211--Replacement of            677 railroads......  500 certific.......  5 minutes..........              42
 Certificates.
242.213--Multiple Certificates
--Notification to Engineer That    677 railroads......  5 notification.....  10 minutes.........               1
 No Conductor Is On Train.

[[Page 69195]]

 
--Notification of Denial of        677 railroads......  10 notific.........  10 minutes.........               2
 Certification by Individuals
 Holding Multiple Certifications.
242.215--RR Oversight
 Responsibility
--RR Review and Analysis of        677 railroads......  44 reviews/Analyses  40 hours/1 hour....           1,760
 Administration of Certification
 Program.
--Report of Findings by RR to FRA  677 railroads......  36 reports.........  4 hours............             144
242.301--Determinations--Territor  320 railroads......  1,080 Deter........  15 minutes.........             270
 ial Qualification and Joint
 Operations.
--Notification by Persons Who Do   320 railroads......  500 Notific........  10 minutes.........              83
 Not Meet Territorial
 Qualification.
242.401--Notification to           677 railroads......  40 notific. + 30     60 minutes/60                    70
 Candidate of Information That                           responses.           minutes.
 Forms Basis for Denying
 Certification and Candidate
 Response.
--Written Notification of Denial   677 railroads......  40 notific.........  60 minutes.........              40
 of Certification.
242.403/405--Criteria for
 Revoking Certification; Periods
 of Ineligibility
--Review of Compliance Conduct...  677 railroads......  950 reviews........  10 minutes.........             158
--Written Determination That the   677 railroads......  950 determin.......  60 minutes.........             950
 Most Recent Incident Has
 Occurred.
242.407--Process for Revoking
 Certification
--Revocation for Violations of     677 railroads......  950 Revoked          8 hours............           7,600
 Section 242.115(e).                                     Certificates.
--Immediate Suspension of          677 railroads......  950 suspend          1 hour.............             950
 Certificate.                                            Certificate.
--Determinations Based on RR       677 railroads......  950 determin.......  1 hour.............             950
 Hearing Record.
--Hearing Record.................  677 railroads......  950 records........  30 minutes.........             475
--Written Decisions by RR          677 railroads......  950 decisions......  1 hour.............             950
 Official.
--Written Waiver of Right to       54,000 Conductors..  425 waivers........  10 minutes.........              71
 Hearing.
--Revocation of Certification      677 railroads......  15 revoked           10 minutes.........               3
 Based on Information That                               Certifications.
 Another Railroad Has Done So.
--Placing Relevant Information in  677 railroads......  100 updated records  1 hour.............             100
 Record Prior to Suspending
 Certification/Convening Hearing.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at 
202-493-6073.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New 
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following 
address: [email protected]; [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

4. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds

[[Page 69196]]

necessary to pay the direct compliance costs incurred by State and 
local governments, the agency consults with State and local 
governments, or the agency consults with State and local government 
officials early in the process of developing the regulation. Where a 
regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. This proposed rule would 
not have a substantial effect on the States or their political 
subdivisions; it would not impose any compliance costs; and it would 
not affect the relationships between the Federal government and the 
States or their political subdivisions, or the distribution of power 
and responsibilities among the various levels of government. Therefore, 
the consultation and funding requirements of Executive Order 13132 do 
not apply.
    However, this proposed rule could have preemptive effect by 
operation of law under certain provisions of the Federal railroad 
safety statutes, specifically the former Federal Railroad Safety Act of 
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to section 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this proposed rule has no 
federalism implications, other than the possible preemption of State 
laws under Federal railroad safety statutes, specifically 49 U.S.C. 
20106. Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this proposed rule is not required.

5. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards.
    This proposed rulemaking is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.

6. Environmental Impact

    FRA has evaluated this rule in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999) as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and related regulatory requirements. FRA has determined that this 
proposed rule is not a major FRA action (requiring the preparation of 
an environmental impact statement or environmental assessment) because 
it is categorically excluded from detailed environmental review 
pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 
26, 1999).
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

7. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $140,800,000 or more in any one 
year, and before promulgating any final rule for which a general notice 
of proposed rulemaking was published, the agency shall prepare a 
written statement'' detailing the effect on State, local, and tribal 
governments and the private sector. The proposed rule will not result 
in the expenditure, in the aggregate, of $140,800,000 or more in any 
one year, and thus preparation of such a statement is not required.

8. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this NPRM in accordance with Executive Order 
13211. FRA has determined that this NPRM is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this NPRM is not a 
``significant energy action'' within the meaning of Executive Order 
13211.

9. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477-78) or 
you may visit http://www.regulations.gov/search/footer/privacyanduse.jsp.

List of Subjects in 49 CFR Part 242

    Administrative practice and procedure, Conductor, Penalties, 
Railroad employees, Railroad operating procedures, Railroad safety, 
Reporting and recordkeeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
chapter II, subtitle B of title 49 of the Code of Federal Regulations 
as follows:


[[Page 69197]]


    1. Add a new part 242 to read as follows:

PART 242--QUALIFICATION AND CERTIFICATION OF CONDUCTORS

Subpart A--General
Sec.
242.1 Purpose and scope.
242.3 Application and responsibility for compliance.
242.5 Effect and construction.
242.7 Definitions.
242.9 Waivers.
242.11 Penalties and consequences for noncompliance.
242.13 Information collection requirements.
Subpart B--Program and Eligibility Requirements
242.101 Certification program required.
242.103 Approval of design of individual railroad programs by FRA.
242.105 Schedule for implementation.
242.107 Types of service.
242.109 Determinations required for certification and 
recertification.
242.111 Prior safety conduct as motor vehicle operator.
242.113 Prior safety conduct as an employee of a different railroad.
242.115 Substance abuse disorders and alcohol drug rules compliance.
242.117 Vision and hearing acuity.
242.119 Training.
242.121 Knowledge testing.
242.123 Monitoring operational performance.
242.125 Certification determinations made by other railroads.
242.127 Reliance on qualification requirements of other countries.
Subpart C--Administration of the Certification Program
242.201 Time limitations for certification.
242.203 Retaining information supporting determinations.
242.205 Identification of certified persons and record keeping.
242.207 Certificate components.
242.209 Maintenance of the certificate.
242.211 Replacement of certificates.
242.213 Multiple certifications.
242.215 Railroad oversight responsibilities.
Subpart D--Territorial Qualification and Joint Operations
242.301 Requirements for territorial qualification.
Subpart E--Denial and Revocation of Certification
242.401 Denial of certification.
242.403 Criteria for revoking certification.
242.405 Periods of ineligibility.
242.407 Process for revoking certification.
Subpart F--Dispute Resolution Procedures
242.501 Review board established.
242.503 Petition requirements.
242.505 Processing certification review petitions.
242.507 Request for a hearing.
242.509 Hearings.
242.511 Appeals.
APPENDIX A TO PART 242--SCHEDULE OF CIVIL PENALTIES
APPENDIX B TO PART 242--PROCEDURES FOR SUBMISSION AND APPROVAL OF 
CONDUCTOR CERTIFICATION PROGRAMS
APPENDIX C TO PART 242--PROCEDURES FOR OBTAINING AND EVALUATING 
MOTOR VEHICLE DRIVING RECORD DATA
APPENDIX D TO PART 242--MEDICAL STANDARDS GUIDELINES
APPENDIX E TO PART 242--APPLICATION OF REVOCABLE EVENTS

    Authority:  49 U.S.C. 20103, 20107, 20135, 20138, 20162, 20163, 
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

Subpart A--General


Sec.  242.1  Purpose and scope.

    (a) The purpose of this part is to ensure that only those persons 
who meet minimum Federal safety standards serve as conductors, to 
reduce the rate and number of accidents and incidents and to improve 
railroad safety.
    (b) This part prescribes minimum Federal safety standards for the 
eligibility, training, testing, certification and monitoring of all 
conductors to whom it applies. This part does not restrict a railroad 
from adopting and enforcing additional or more stringent requirements 
consistent with this part.
    (c) The conductor certification requirements prescribed in this 
part apply to any person who meets the definition of conductor 
contained in Sec.  242.7, regardless of the fact that the person may 
have a job classification title other than that of conductor.


Sec.  242.3  Application and responsibility for compliance.

    (a) This part applies to all railroads, except:
    (1) A railroad that operates only on track inside an installation 
that is not part of the general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    (b) Although the duties imposed by this part are generally stated 
in terms of the duty of a railroad, each person, including a contractor 
for a railroad, who performs any function covered by this part, must 
perform that function in accordance with this part.


Sec.  242.5  Effect and construction.

    (a) FRA does not intend, by use of the term conductor in this part, 
to alter the terms, conditions, or interpretation of existing 
collective bargaining agreements that employ other job classification 
titles when identifying a person who is the crew member in charge of a 
movement that requires a locomotive engineer.
    (b) FRA does not intend by issuance of these regulations to alter 
the authority of a railroad to initiate disciplinary sanctions against 
its employees, including managers and supervisors, in the normal and 
customary manner, including those contained in its collective 
bargaining agreements.
    (c) Except as provided in Sec.  242.213, nothing in this part shall 
be construed to create or prohibit an eligibility or entitlement to 
employment in other service for the railroad as a result of denial, 
suspension, or revocation of certification under this part.
    (d) Nothing in this part shall be deemed to abridge any additional 
procedural rights or remedies not inconsistent with this part that are 
available to the employee under a collective bargaining agreement, the 
Railway Labor Act, or (with respect to employment at will) at common 
law with respect to removal from service or other adverse action taken 
as a consequence of this part.


Sec.  242.7  Definitions.

    As used in this part--
    Administrator means the Administrator of the FRA or the 
Administrator's delegate.
    Alcohol means ethyl alcohol (ethanol) and includes use or 
possession of any beverage, mixture, or preparation containing ethyl 
alcohol.
    Conductor means the crewmember in charge of a ``train or yard 
crew'' as defined in part 218 of this chapter. See also the definition 
of ``passenger conductor'' in this section.
    Controlled substance has the meaning assigned by 21 U.S.C. 802 and 
includes all substances listed on Schedules I through V as they may be 
revised from time to time (21 CFR parts 1301-1316).
    Drug means any substance (other than alcohol) that has known mind 
or function-altering effects on a human subject, specifically including 
any psychoactive substance and including, but not limited to, 
controlled substances.
    Dual purpose vehicle means a piece of on-track equipment that is 
capable of moving railroad rolling stock and may also function as 
roadway maintenance equipment.
    File, filed and filing mean submission of a document under this 
part on the date when the Docket Clerk receives it, or if sent by mail, 
the date mailing was completed.
    FRA means the Federal Railroad Administration.
    FRA representative means the FRA Associate Administrator for 
Railroad

[[Page 69198]]

Safety/Chief Safety Officer and the Associate Administrator's delegate, 
including any safety inspector employed by the Federal Railroad 
Administration and any qualified state railroad safety inspector acting 
under part 212 of this chapter.
    Ineligible or ineligibility means that a person is legally 
disqualified from serving as a certified conductor. The term covers a 
number of circumstances in which a person may not serve as a certified 
conductor. Revocation of certification pursuant to Sec.  242.407 and 
denial of certification pursuant to Sec.  242.401 are two examples in 
which a person would be ineligible to serve as a conductor. A period of 
ineligibility may end when a condition or conditions are met. For 
example, when a person meets the conditions to serve as a conductor 
following a alcohol or drug violation pursuant to Sec.  242.115.
    Job aid means information regarding other than main track physical 
characteristics that supplements the operating instructions of the 
territory over which the locomotive or train movement will occur. See 
definitions of ``main track'' and ``physical characteristics'' in this 
section. A job aid may consist of training on the territory pursuant to 
Sec.  242.119, maps, charts or visual aids of the territory, or a 
person or persons to contact who are qualified on the territory and who 
can describe the physical characteristics of the territory. At a 
minimum, a job aid must cover characteristics of a territory including: 
Permanent close clearances, location of permanent derails and switches, 
assigned radio frequencies in use and special instructions required for 
movement, if any, and railroad-identified unique operating conditions.
    Joint operations means rail operations conducted by more than one 
railroad on the same track regardless of whether such operations are 
the result of--
    (1) Contractual arrangement between the railroads,
    (2) Order of a governmental agency or a court of law, or
    (3) Any other legally binding directive.
    Knowingly means having actual knowledge of the facts giving rise to 
the violation or that a reasonable person acting in the circumstances, 
exercising due care, would have had such knowledge.
    Locomotive means a piece of on-track equipment (other than 
specialized roadway maintenance equipment or a dual purpose vehicle 
operating in accordance with Sec.  240.104(a)(2) of this chapter):
    (1) With one or more propelling motors designed for moving other 
equipment;
    (2) With one or more propelling motors designed to carry freight or 
passenger traffic or both; or
    (3) Without propelling motors but with one or more control stands.
    Locomotive engineer means any person who moves a locomotive or 
group of locomotives regardless of whether they are coupled to other 
rolling equipment except:
    (1) A person who moves a locomotive or group of locomotives within 
the confines of a locomotive repair or servicing area as provided for 
in Sec. Sec.  218.5 and 218.29(a)(1) of this chapter; or
    (2) A person who moves a locomotive or group of locomotives for 
distances of less than 100 feet and this incidental movement of a 
locomotive or locomotives is for inspection or maintenance purposes.
    Locomotive engineer certificate means a certificate issued pursuant 
to part 240 of this chapter.
    Main track means a track upon which the operation of trains is 
governed by one or more of the following methods of operation: 
Timetable; mandatory directive; signal indication; positive train 
control as defined in part 236 of this chapter; or any form of absolute 
or manual block system.
    Medical examiner means a person licensed as a doctor of medicine or 
doctor of osteopathy. A medical examiner can be a qualified full-time 
salaried employee of a railroad, a qualified practitioner who contracts 
with the railroad on a fee-for-service or other basis, or a qualified 
practitioner designated by the railroad to perform functions in 
connection with medical evaluations of employees. As used in this rule, 
the medical examiner owes a duty to make an honest and fully informed 
evaluation of the condition of an employee.
    On-the-job training means job training that occurs in the work 
place (i.e., the employee learns the job while doing the job). In the 
context of this part, the on-the-job training portion of the training 
program must be based on a model generally accepted by the educational 
community, and must consist of the following three key components:
    (1) A brief statement describing the tasks and related steps the 
employee must be able to perform;
    (2) A statement of the conditions (i.e., tools, equipment, 
documentation, briefings, demonstrations, and practice) necessary for 
learning transfer; and
    (3) A statement of the standards by which proficiency can be 
measured through a combination of task/step accuracy, completeness, and 
repetition.
    Passenger conductor means a conductor who has also received 
emergency preparedness training under part 239 of this chapter. See 
also the definition of ``conductor'' in this section.
    Person means 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.
    Physical characteristics means the actual track profile of and 
physical location for points within a specific yard or route that 
affect the movement of a locomotive or train. Physical characteristics 
includes both main track physical characteristics (see definition of 
``main track'' in this section) and other than main track physical 
characteristics.
    Qualified means a person who has successfully completed all 
instruction, training and examination programs required by the 
employer, and the applicable parts of this chapter and that the person 
therefore may reasonably be expected to be proficient on all safety 
related tasks the person is assigned to perform.
    Qualified instructor means a person who has demonstrated, pursuant 
to the railroad's written program, an adequate knowledge of the 
subjects under instruction and, where applicable, has the necessary 
operating experience to effectively instruct in the field, and has the 
following qualifications:
    (1) Is a certified conductor under this part; and
    (2) Has been selected as such by a designated railroad officer, in 
concurrence with the designated employee representative, where present; 
or
    (3) In absence of concurrence provided in paragraph (2) of this 
definition, has a minimum of 12 months service working as a train 
service employee. If a railroad does not have designated employee 
representation, then a person employed by the railroad need not comply 
with paragraphs (2) or (3) of this definition to be a qualified 
instructor.
    Railroad means any form of nonhighway ground transportation that 
runs on rails or electromagnetic guideways and any entity providing 
such transportation, including:
    (1) Commuter or other short-haul railroad passenger service in a

[[Page 69199]]

metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (2) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads; but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    Railroad officer means any supervisory employee of a railroad.
    Railroad rolling stock is on-track equipment that is either a 
freight car (as defined in Sec.  215.5 of this chapter) or a passenger 
car (as defined in Sec.  238.5 of this chapter).
    Remote control operator (RCO) means a certified locomotive 
engineer, as defined in Sec.  240.7 of this chapter, certified by a 
railroad to operate remote control locomotives pursuant to Sec.  
240.107 of this chapter.
    Roadway maintenance equipment is on-track equipment powered by any 
means of energy other than hand power which is used in conjunction with 
maintenance, repair, construction or inspection of track, bridges, 
roadway, signal, communications, or electric traction systems.
    Serve or service, in the context of serving documents, has the 
meaning given in Rule 5 of the Federal Rules of Civil Procedure as 
amended. Similarly, the computation of time provisions in Rule 6 of the 
Federal Rules of Civil Procedure as amended are also applicable in this 
part. See also the definition of ``filing'' in this section.
    Specialized roadway maintenance equipment is roadway maintenance 
equipment that does not have the capability to move railroad rolling 
stock. Any alteration of such equipment that enables it to move 
railroad rolling stock will require that the equipment be treated as a 
dual purpose vehicle.
    Substance abuse disorder refers to a psychological or physical 
dependence on alcohol or a drug, or another identifiable and treatable 
mental or physical disorder involving the abuse of alcohol or drugs as 
a primary manifestation. A substance abuse disorder is ``active'' 
within the meaning of this part if the person is currently using 
alcohol or other drugs, except under medical supervision consistent 
with the restrictions described in Sec.  219.103 of this chapter or has 
failed to successfully complete primary treatment or successfully 
participate in aftercare as directed by a SAP.
    Substance Abuse Professional (SAP) means a person who meets the 
qualifications of a substance abuse professional, as provided in part 
40 of this title. As used in this rule, the SAP owes a duty to the 
railroad to make an honest and fully informed evaluation of the 
condition and progress of an employee.
    Territorial qualifications means possessing the necessary knowledge 
concerning a railroad's operating rules and timetable special 
instructions including familiarity with applicable main track and other 
than main track physical characteristics of the territory over which 
the locomotive or train movement will occur.


Sec.  242.9  Waivers.

    (a) A person subject to a requirement of this part may petition the 
Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for a waiver under this section must be filed in 
the manner and contain the information required by part 211 of this 
chapter.
    (c) If the Administrator finds that a waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions the 
Administrator deems necessary.


Sec.  242.11  Penalties and consequences for noncompliance.

    (a) A person who violates any requirement of this part or causes 
the violation of any such requirement is subject to a civil penalty of 
at least $650 and not more than $25,000 per violation, except that: 
Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury 
to persons, or has caused death or injury, a penalty not to exceed 
$100,000 per violation may be assessed. Each day a violation continues 
shall constitute a separate offense. See Appendix A to this part for a 
statement of agency civil penalty policy.
    (b) A person who violates any requirement of this part or causes 
the violation of any such requirement may be subject to 
disqualification from all safety-sensitive service in accordance with 
part 209 of this chapter.
    (c) A person who knowingly and willfully falsifies a record or 
report required by this part may be subject to criminal penalties under 
49 U.S.C. 21311.
    (d) In addition to the enforcement methods referred to in 
paragraphs (a), (b), and (c) of this section, FRA may also address 
violations of this part by use of the emergency order, compliance 
order, and/or injunctive provisions of the Federal rail safety laws.


Sec.  242.13  Information collection requirements.

    (a) The information collection requirements of this Part were 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and are 
assigned OMB control number ------.
    (b) The information collection requirements are found in the 
following sections: (TO BE INSERTED IN FINAL RULE).

Subpart B--Program and Eligibility Requirements


Sec.  242.101  Certification program required.

    (a) After the pertinent date specified in Sec.  242.105(d) or (e), 
each railroad shall have a certification program approved in accordance 
with Sec.  242.103 that includes:
    (1) A designation of the types of service that it determines will 
be used in compliance with the criteria established in Sec.  242.107;
    (2) A procedure for evaluating prior safety conduct that complies 
with the criteria established in Sec.  242.109;
    (3) A procedure for evaluating visual and hearing acuity that 
complies with the criteria established in Sec.  242.117;
    (4) A procedure for training that complies with the criteria 
established in Sec.  242.119;
    (5) A procedure for knowledge testing that complies with the 
criteria established in Sec.  242.121; and
    (6) A procedure for monitoring operational performance that 
complies with the criteria established in Sec.  242.123.
    (b) Reserved.


Sec.  242.103  Approval of design of individual railroad programs by 
FRA.

    (a) Each railroad shall submit its written certification program 
and request for approval in accordance with the procedures contained in 
appendix B of this part according to the following schedule:
    (1) A Class I railroad (including the National Railroad Passenger 
Corporation), Class II railroad, or railroad providing commuter service 
shall submit a program no later than March 30, 2012; and
    (2) A Class III railroad (including a switching and terminal or 
other railroad

[[Page 69200]]

not otherwise classified) shall submit a program no later than July 30, 
2012.
    (b) A railroad commencing operations after the pertinent date 
specified in paragraph (a) of this section shall submit its written 
certification program and request for approval in accordance with the 
procedures contained in appendix B to this part at least 60 days prior 
to commencing operations.
    (c) Each railroad shall:
    (1) Simultaneous with its filing with the FRA, serve a copy of the 
submission filed pursuant to paragraph (a) or (b) of this section, a 
resubmission filed pursuant to paragraph (h) of this section, or a 
material modification filed pursuant to paragraph (i) of this section 
on the president of each labor organization that represents the 
railroad's employees subject to this part; and
    (2) Include in their submission filed pursuant to paragraph (a) or 
(b) of this section, a resubmission filed pursuant to paragraph (h) of 
this section, or a material modification filed pursuant to paragraph 
(i) of this section a statement affirming that the railroad has served 
a copy on the president of each labor organization that represents the 
railroad's employees subject to this part, together with a list of the 
names and addresses of persons served.
    (d) Not later than 45 days from the date of filing a submission 
pursuant to paragraph (a) or (b) of this section, a resubmission 
pursuant to paragraph (h) of this section, or a material modification 
pursuant to paragraph (i) of this section, any designated 
representative of railroad employees subject to this part may comment 
on the submission, resubmission, or material modification:
    (1) Each comment shall set forth specifically the basis upon which 
it is made, and contain a concise statement of the interest of the 
commenter in the proceeding;
    (2) Each comment shall be submitted to the Associate Administrator 
for Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue, 
SE., Washington, DC 20590; and
    (3) The commenter shall certify that a copy of the comment was 
served on the railroad.
    (e) The submission required by paragraph (a) or (b) of this section 
shall state the railroad's election either:
    (1) To accept responsibility for the training of conductors and 
thereby obtain authority for that railroad to initially certify a 
person as a conductor in an appropriate type of service; or
    (2) To recertify only conductors previously certified by other 
railroads.
    (f) A railroad that elects to accept responsibility for the 
training of conductors shall state in its submission whether it will 
conduct the training program or employ a training program conducted by 
some other entity on its behalf but adopted and ratified by that 
railroad.
    (g) A railroad's program is considered approved and may be 
implemented 30 days after the required filing date (or the actual 
filing date) unless the Administrator notifies the railroad in writing 
that the program does not conform to the criteria set forth in this 
part.
    (1) If the Administrator determines that the program does not 
conform, the Administrator will inform the railroad of the specific 
deficiencies.
    (2) If the Administrator informs the railroad of deficiencies more 
than 30 days after the initial filing date, the original program may 
remain in effect until 30 days after approval of the revised program is 
received.
    (h) A railroad shall resubmit its program within 30 days after the 
date of such notice of deficiencies. A failure to resubmit the program 
with the necessary revisions will be considered a failure to implement 
a program under this part.
    (1) The Administrator will inform the railroad in writing whether 
its revised program conforms to this part.
    (2) If the program does not conform, the railroad shall resubmit 
its program.
    (i) A railroad that intends to materially modify its program after 
receiving initial FRA approval shall submit a description of how it 
intends to modify the program in conformity with the specific 
requirements of this part at least 60 days prior to implementing such a 
change.
    (1) A modification is material if it would affect the program's 
conformance with this part.
    (2) The modification submission shall contain a description that 
conforms to the pertinent portion of the procedures contained in 
appendix B of this part.
    (3) The modification submission will be handled in accordance with 
the procedures of paragraphs (g) and (h) of this section as though it 
were a new program.


Sec.  242.105  Schedule for implementation.

    (a) By March 1, 2012, each railroad shall:
    (1) In writing, designate as certified conductors all persons 
authorized by the railroad to perform the duties of a conductor as of 
January 1, 2012; and
    (2) Issue a certificate that complies with Sec.  242.207 to each 
person that it designates.
    (b) After March 1, 2012, each railroad shall:
    (1) In writing, designate as a certified conductor any person who 
has been authorized by the railroad to perform the duties of a 
conductor between January 1, 2012 and the pertinent date in paragraph 
(d) or (e) of this section; and
    (2) Issue a certificate that complies with Sec.  242.207 to each 
person that it designates.
    (c) No railroad shall permit or require a person, designated as a 
certified conductor under the provisions of paragraph (a) or (b) of 
this section, to perform service as a certified conductor for more than 
a 36-month period beginning on the pertinent date for compliance with 
the mandatory procedures for testing and evaluation set forth in the 
applicable provisions of paragraph (d) or (e) of this section unless 
that person has been certified in accordance with procedures that 
comply with subpart B of this part.
    (1) Except as provided in paragraph (c)(3) of this section, a 
person who has been designated as a certified conductor under the 
provisions of paragraph (a) or (b) of this section and who is eligible 
to receive a retirement pension in accordance with the terms of an 
applicable agreement or in accordance with the terms of the Railroad 
Retirement Act (45 U.S.C. 231) within 36 months from the pertinent date 
for compliance with the mandatory procedures for testing and evaluation 
set forth in the applicable provisions of paragraph (d) or (e) of this 
section, may request, in writing, that a railroad not recertify that 
person, pursuant to subpart B of this part, until 36 months from the 
pertinent date for compliance with the mandatory procedures for testing 
and evaluation set forth in the applicable provisions of paragraph (d) 
or (e) of this section.
    (2) Upon receipt of a written request pursuant to paragraph (c)(1) 
of this section, a railroad may wait to recertify the person making the 
request until the end of the 36-month period described in paragraph (c) 
of this section. If a railroad grants any request, it must grant the 
request of all eligible persons to every extent possible.
    (3) A person who is subject to recertification under part 240 of 
this chapter may not make a request pursuant to paragraph (c)(1) of 
this section.
    (d) After June 1, 2012, no Class I railroad (including the National 
Railroad Passenger Corporation), Class II railroad, or railroad 
providing commuter service shall initially certify or recertify a 
person as a conductor

[[Page 69201]]

unless that person has been tested and evaluated in accordance with 
procedures that comply with subpart B of this part and issued a 
certificate that complies with Sec.  242.207.
    (e) After September 1, 2012, no Class III railroad (including a 
switching and terminal or other railroad not otherwise classified) 
shall initially certify or recertify a person as a conductor unless 
that person has been tested and evaluated in accordance with procedures 
that comply with subpart B of this part and issued a certificate that 
complies with Sec.  242.207.
    (f) After the applicable dates specified in paragraphs (d) and (e) 
of this section, no person shall serve as a conductor in any type of 
service and no railroad shall require or permit any person to serve as 
a conductor in any type of service unless that person has been tested 
and evaluated in accordance with procedures that comply with subpart B 
of this part and issued a certificate that complies with Sec.  242.207.


Sec.  242.107  Types of service.

    (a) Each railroad's program shall state which of the two types of 
service (conductor and passenger conductor), provided for in paragraph 
(b) of this section, that it will cover.
    (b) A railroad may issue certificates for either of the following 
types of service:
    (1) Conductor; and
    (2) Passenger conductor.
    (c) A railroad shall not reclassify the certification of any type 
of certified conductor to a different type of conductor certification 
during the period in which the certification is otherwise valid except 
when a conductor completes the emergency training identified in part 
239 of this chapter and is certified as a passenger conductor.
    (d) Each railroad is authorized to impose additional conditions or 
operational restrictions on the service a conductor may perform beyond 
those identified in this section provided those conditions or 
restrictions are not inconsistent with this part.


Sec.  242.109  Determinations required for certification and 
recertification.

    (a) After the pertinent date specified in Sec.  242.105(d) or (e), 
each railroad, prior to initially certifying or recertifying any person 
as a conductor, shall, in accordance with its FRA-approved program, 
determine in writing that:
    (1) The individual meets the eligibility requirements of Sec. Sec.  
242.111, 242.113, 242.115 and 242.403; and
    (2) The individual meets the vision and hearing acuity standards of 
Sec.  242.117 (``Vision and hearing acuity'');
    (3) The individual has the necessary knowledge, as demonstrated by 
successfully completing a test that meets the requirements of Sec.  
242.121 (``Knowledge testing''); and
    (4) Where a person has not previously been certified, that the 
person has completed a training program that meets the requirements of 
Sec.  242.119 (``Training'').
    (b) When evaluating a person's railroad employment record, a 
railroad shall not consider information concerning prior railroad 
safety conduct that:
    (1) Occurred prior to the effective date of this rule; or
    (2) Occurred at a time other than that specifically provided for in 
Sec. Sec.  242.111, 242.115 or 242.403.
    (c) In order to make the determination required under paragraph (a) 
of this section, a railroad shall have on file documents pertinent to 
those determinations.
    (d) A railroad's program shall provide a candidate for 
certification or recertification a reasonable opportunity to review and 
comment in writing on any record which contains information concerning 
the person's prior safety conduct, including information pertinent to 
determinations required under Sec.  242.115, if the railroad believes 
the record contains information that could be sufficient to render the 
person ineligible for certification under this subpart.
    (e) The opportunity for comment shall be afforded to the person 
prior to the railroad's rendering its eligibility decision based on 
that information. Any responsive comment furnished shall be retained by 
the railroad in accordance with Sec.  242.203.
    (f) The program shall include a method for a person to advise the 
railroad that he or she has never been a railroad employee or obtained 
a license to drive a motor vehicle. Nothing in this section shall be 
construed as imposing a duty or requirement that a person have prior 
railroad employment experience or obtain a motor vehicle driver's 
license in order to become a certified conductor.
    (g) Nothing in this section, Sec. Sec.  242.111 or 242.113 shall be 
construed to prevent persons subject to this part from entering into an 
agreement that results in a railroad's obtaining the information needed 
for compliance with this subpart in a different manner than that 
prescribed in Sec. Sec.  242.111 or 242.113.


Sec.  242.111  Prior safety conduct as motor vehicle operator.

    (a) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.
    (b) Except as provided in paragraphs (c), (d), (e) and (f) of this 
section, after the pertinent date specified in Sec.  242.105(d) or (e), 
each railroad, prior to initially certifying or recertifying any person 
as a conductor for any type of service, shall determine that the person 
meets the eligibility requirements of this section involving prior 
conduct as a motor vehicle operator.
    (c) A railroad shall initially certify a person as a conductor for 
60 days if the person:
    (1) Requested the information required by paragraph (h) of this 
section at least 60 days prior to the date of the decision to certify 
that person; and
    (2) Otherwise meets the eligibility requirements provided in Sec.  
242.109.
    (d) A railroad shall recertify a person as a conductor for 60 days 
from the expiration date of that person's certification if the person:
    (1) Requested the information required by paragraph (h) of this 
section at least 60 days prior to the date of the decision to recertify 
that person; and
    (2) Otherwise meets the eligibility requirements provided in Sec.  
242.109.
    (e) Except as provided in paragraph (f) of this section, if a 
railroad who certified or recertified a person pursuant to paragraph 
(c) or (d) of this section does not obtain and evaluate the information 
required pursuant to paragraph (h) within 60 days of the pertinent 
dates identified in paragraph (c) or (d) of this section, that person 
will be ineligible to perform as a conductor until the information can 
be evaluated.
    (f) If a person requests the information required pursuant to 
paragraph (h) of this section but is unable to obtain it, that person 
or the railroad certifying or recertifying that person may petition for 
a waiver of the requirements of paragraph (b) of this section in 
accordance with the provisions of part 211 of this chapter. A railroad 
shall certify or recertify a person during the pendency of the waiver 
request if the person otherwise meets the eligibility requirements 
provided in Sec.  242.109.
    (g) Individual's duty. Except for persons designated as conductors 
under Sec.  242.105 (a) or (b) or for persons

[[Page 69202]]

covered by Sec.  242.109(f), each person seeking certification or 
recertification under this part shall, within 366 days preceding the 
date of the railroad's decision on certification or recertification:
    (1) Take the actions required by paragraphs (h) through (j) of this 
section to make information concerning his or her driving record 
available to the railroad that is considering such certification or 
recertification; and
    (2) Take any additional actions, including providing any necessary 
consent required by State, Federal, or foreign law to make information 
concerning his or her driving record available to that railroad.
    (h) Each person seeking certification or recertification under this 
part shall request, in writing, that the chief of each driver licensing 
agency identified in paragraph (i) of this section provide a copy of 
that agency's available information concerning his or her driving 
record to the railroad that is considering such certification or 
recertification.
    (i) Each person shall request the information required under 
paragraph (h) of this section from:
    (1) The chief of the driver licensing agency of any jurisdiction, 
including a state or foreign country, which last issued that person a 
driver's license; and
    (2) The chief of the driver licensing agency of any other 
jurisdiction, including states or foreign countries, that issued or 
reissued the person a driver's license within the preceding five years.
    (j) If advised by the railroad that a driver licensing agency has 
informed the railroad that additional information concerning that 
person's driving history may exist in the files of a state agency or 
foreign country not previously contacted in accordance with this 
section, such person shall:
    (1) Request in writing that the chief of the driver licensing 
agency which compiled the information provide a copy of the available 
information to the prospective certifying railroad; and
    (2) Take any additional action required by State, Federal, or 
foreign law to obtain that additional information.
    (k) Any person who has never obtained a motor vehicle driving 
license is not required to comply with the provisions of paragraph (h) 
of this section but shall notify the railroad of that fact in 
accordance with procedures of the railroad that comply with Sec.  
242.109(f).
    (l) Each certified conductor or person seeking initial 
certification shall report motor vehicle incidents described in 
paragraphs (n)(1) and (2) of this section to the employing railroad 
within 48 hours of being convicted for, or completed state action to 
cancel, revoke, suspend, or deny a motor vehicle drivers license for, 
such violations. For purposes of this paragraph and paragraph (n) of 
this section, ``state action'' means action of the jurisdiction that 
has issued the motor vehicle driver's license, including a foreign 
country. For the purposes of conductor certification, no railroad shall 
require reporting earlier than 48 hours after the conviction, or 
completed state action to cancel, revoke, or deny a motor vehicle 
drivers license.
    (m) Evaluation of record. When evaluating a person's motor vehicle 
driving record, a railroad shall not consider information concerning 
motor vehicle driving incidents that occurred:
    (1) Prior to the effective date of this rule;
    (2) More than 36 months before the month in which the railroad is 
making its certification decision; or
    (3) At a time other than that specifically provided for in 
Sec. Sec.  242.111, 242.115, or 242.403.
    (n) A railroad shall only consider information concerning the 
following types of motor vehicle incidents:
    (1) A conviction for, or completed state action to cancel, revoke, 
suspend, or deny a motor vehicle drivers license for, operating a motor 
vehicle while under the influence of or impaired by alcohol or a 
controlled substance; or
    (2) A conviction for, or completed state action to cancel, revoke, 
suspend, or deny a motor vehicle driver's license for, refusal to 
undergo such testing as is required by State or foreign law when a law 
enforcement official seeks to determine whether a person is operating a 
vehicle while under the influence of alcohol or a controlled substance.
    (o) If such an incident is identified:
    (1) The railroad shall provide the data to the railroad's SAP, 
together with any information concerning the person's railroad service 
record, and shall refer the person for evaluation to determine if the 
person has an active substance abuse disorder;
    (2) The person shall cooperate in the evaluation and shall provide 
any requested records of prior counseling or treatment for review 
exclusively by the SAP in the context of such evaluation; and
    (3) If the person is evaluated as not currently affected by an 
active substance abuse disorder, the subject data shall not be 
considered further with respect to certification. However, the railroad 
shall, on recommendation of the SAP, condition certification upon 
participation in any needed aftercare and/or follow-up testing for 
alcohol or drugs deemed necessary by the SAP consistent with the 
technical standards specified in Sec.  242.115(f)(3).
    (4) If the person is evaluated as currently affected by an active 
substance abuse disorder, the provisions of Sec.  242.115(d) will 
apply.


Sec.  242.113  Prior safety conduct as an employee of a different 
railroad.

    (a) Each railroad shall adopt and comply with a program which 
complies with the requirements of this section. When any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of a program which 
complies with the requirements of this section, that person shall be 
considered to have violated the requirements of this section.
    (b) After the pertinent date specified in Sec.  242.105(d) or (e), 
each railroad, prior to initially certifying or recertifying any person 
as a conductor for any type of service, shall determine that the person 
meets the eligibility requirements of this section.
    (c) Except for persons designated as conductors under Sec.  
242.105(a) or (b) or for persons covered by Sec.  242.109(f), each 
person seeking certification or recertification under this part shall, 
within 366 days preceding the date of the railroad's decision on 
certification or recertification:
    (1) Request, in writing, that the chief operating officer or other 
appropriate person of the former employing railroad provide a copy of 
that railroad's available information concerning his or her service 
record pertaining to compliance or non-compliance with Sec. Sec.  
242.111, 242.115 and 242.403 to the railroad that is considering such 
certification or recertification; and
    (2) Take any additional actions, including providing any necessary 
consent required by State or Federal law to make information concerning 
his or her service record available to that railroad.


Sec.  242.115  Substance abuse disorders and alcohol drug rules 
compliance.

    (a) Each railroad shall adopt and comply with a program which 
complies with the requirements of this section. When any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of a program which 
complies with the requirements of this section, that person shall be 
considered to have violated the requirements of this section.

[[Page 69203]]

    (b) After the pertinent date specified in Sec.  242.105(d) or (e), 
each railroad, prior to initially certifying or recertifying any person 
as a conductor for any type of service, shall determine that the person 
meets the eligibility requirements of this section.
    (c) In order to make the determination required under paragraph (d) 
of this section, a railroad shall have on file documents pertinent to 
that determination, including a written document from its SAP which 
states his or her professional opinion that the person has been 
evaluated as not currently affected by a substance abuse disorder or 
that the person has been evaluated as affected by an active substance 
abuse disorder.
    (d) Fitness requirement.
    (1) A person who has an active substance abuse disorder shall be 
denied certification or recertification as a conductor.
    (2) Except as provided in paragraph (g) of this section, a 
certified conductor who is determined to have an active substance abuse 
disorder shall be ineligible to hold certification. Consistent with 
other provisions of this part, certification may be reinstated as 
provided in paragraph (f) of this section.
    (3) In the case of a current employee of the railroad evaluated as 
having an active substance abuse disorder (including a person 
identified under the procedures of Sec.  242.111), the employee may, if 
otherwise eligible, voluntarily self-refer for substance abuse 
counseling or treatment under the policy required by Sec.  219.403 of 
this chapter; and the railroad shall then treat the substance abuse 
evaluation as confidential except with respect to ineligibility for 
certification.
    (e) Prior alcohol/drug conduct; Federal rule compliance.
    (1) In determining whether a person may be or remain certified as a 
conductor, a railroad shall consider conduct described in paragraph 
(e)(2) of this section that occurred within a period of 60 consecutive 
months prior to the review. A review of certification shall be 
initiated promptly upon the occurrence and documentation of any 
incident of conduct described in this paragraph.
    (2) A railroad shall consider any violation of Sec. Sec.  219.101 
or 219.102 of this chapter and any refusal or failure to provide a 
breath or body fluid sample for testing under the requirements of part 
219 of this chapter when instructed to do so by a railroad 
representative.
    (3) A period of ineligibility described in this section shall 
begin:
    (i) For a person not currently certified, on the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (ii) For a person currently certified, on the date of the 
railroad's notification to the person that recertification has been 
denied or certification has been revoked; and
    (4) The period of ineligibility described in this section shall be 
determined in accordance with the following standards:
    (i) In the case of a single violation of Sec.  219.102 of this 
chapter, the person shall be ineligible to hold a certificate during 
evaluation and any required primary treatment as described in paragraph 
(f) of this section. In the case of two violations of Sec.  219.102 of 
this chapter, the person shall be ineligible to hold a certificate for 
a period of two years. In the case of more than two such violations, 
the person shall be ineligible to hold a certificate for a period of 
five years.
    (ii) In the case of one violation of Sec.  219.102 of this chapter 
and one violation of Sec.  219.101 of this chapter, the person shall be 
ineligible to hold a certificate for a period of three years.
    (iii) In the case of one violation of Sec.  219.101 of this 
chapter, the person shall be ineligible to hold a certificate for a 
period of 9 months (unless identification of the violation was through 
a qualifying ``co-worker report'' as described in Sec.  219.405 of this 
chapter and the conductor waives investigation, in which case the 
certificate shall be deemed suspended during evaluation and any 
required primary treatment as described in paragraph (f)). In the case 
of two or more violations of Sec.  219.101 of this chapter, the person 
shall be ineligible to hold a certificate for a period of five years.
    (iv) A refusal or failure to provide a breath or body fluid sample 
for testing under the requirements of part 219 of this chapter when 
instructed to do so by a railroad representative shall be treated, for 
purposes of ineligibility under this paragraph, in the same manner as a 
violation of:
    (A) Section 219.102 of this chapter, in the case of a refusal or 
failure to provide a urine specimen for testing; or
    (B) Section 219.101 of this chapter, in the case of a refusal or 
failure to provide a breath sample (part 219, subpart D), or a blood 
specimen for mandatory post-accident toxicological testing (part 219, 
subpart C)).
    (f) Future eligibility to hold certificate following alcohol/drug 
violation. The following requirements apply to a person who has been 
denied certification or who has had certification suspended or revoked 
as a result of conduct described in paragraph (e) of this section:
    (1) The person shall not be eligible for grant or reinstatement of 
the certificate unless and until the person has:
    (i) Been evaluated by a SAP to determine if the person currently 
has an active substance abuse disorder;
    (ii) Successfully completed any program of counseling or treatment 
determined to be necessary by the SAP prior to return to service; and
    (iii) Presented a urine sample for testing under subpart H of part 
219 of this chapter that tested negative for controlled substances 
assayed and has tested negative for alcohol.
    (2) A conductor placed in service or returned to service under the 
above-stated conditions shall continue in any program of counseling or 
treatment deemed necessary by the SAP and shall be subject to a 
reasonable program of follow-up alcohol and drug testing without prior 
notice for a period of not more than 60 months following return to 
service. Follow-up tests shall include not fewer than 6 alcohol tests 
and 6 drug tests during the first 12 months following return to 
service.
    (3) Return-to-service and follow-up alcohol and drug tests shall be 
performed consistent with the requirements of subpart H of part 219 of 
this chapter.
    (4) This paragraph does not create an entitlement to utilize the 
services of a railroad SAP, to be afforded leave from employment for 
counseling or treatment, or to employment as a conductor. Nor does it 
restrict any discretion available to the railroad to take disciplinary 
action based on conduct described herein.
    (g) Confidentiality protected. Nothing in this part shall affect 
the responsibility of the railroad under Sec.  219.403 of this chapter 
(``Voluntary referral policy'') to treat voluntary referrals for 
substance abuse counseling and treatment as confidential; and the 
certification status of a conductor who is successfully assisted under 
the procedures of that section shall not be adversely affected. 
However, the railroad shall include in its voluntary referral policy 
required to be issued pursuant to Sec.  219.403 of this chapter a 
provision that, at least with respect to a certified conductor or a 
candidate for certification, the policy of confidentiality is waived 
(to the extent that the railroad shall receive from the SAP official 
notice of the substance abuse disorder and shall suspend or revoke the 
certification, as appropriate) if the person at any time refuses to 
cooperate in a recommended course of counseling or treatment.

[[Page 69204]]

Sec.  242.117  Vision and hearing acuity.

    (a) Each railroad shall adopt and comply with a program which 
complies with the requirements of this section. When any person 
including, but not limited to, each railroad, railroad officer, 
supervisor, and employee violates any requirement of a program which 
complies with the requirements of this section, that person shall be 
considered to have violated the requirements of this section.
    (b) After the pertinent date specified in Sec.  242.105(d) or (e), 
each railroad, prior to initially certifying or recertifying any person 
as a conductor for any class of service, shall determine that the 
person meets the standards for visual acuity and hearing acuity 
prescribed in this section.
    (c) In order to make the determination required under paragraph (b) 
of this section, a railroad shall have on file either:
    (1) A medical examiner's certificate that the individual has been 
medically examined and meets these acuity standards; or
    (2) A written document from its medical examiner documenting his or 
her professional opinion that the person does not meet one or both 
acuity standards and stating the basis for his or her determination 
that:
    (i) The person can nevertheless be certified under certain 
conditions; or
    (ii) The person's acuity is such that he or she cannot safely 
perform as a conductor even with conditions attached.
    (d) Any examination required for compliance with this section shall 
be performed by or under the supervision of a medical examiner or a 
licensed physician's assistant such that:
    (1) A licensed optometrist or a technician responsible to that 
person may perform the portion of the examination that pertains to 
visual acuity; and
    (2) A licensed or certified audiologist or a technician responsible 
to that person may perform the portion of the examination that pertains 
to hearing acuity.
    (e) If the examination required under this section discloses that 
the person needs corrective lenses or a hearing aid, or both, either to 
meet the threshold acuity levels established in this section or to meet 
a lower threshold determined by the railroad's medical examiner to be 
sufficient to perform as a conductor, that fact shall be noted on the 
certificate issued in accordance with the provisions of this part.
    (f) Any person with such a certificate notation shall use the 
relevant corrective device(s) while performing as a conductor unless 
the railroad's medical examiner subsequently determines in writing that 
the person can safely perform without using the device.
    (g) Fitness requirement. In order to be currently certified as a 
conductor, except as permitted by paragraph (j) of this section, a 
person's vision and hearing shall meet or exceed the standards 
prescribed in this section and Appendix D to this part. It is 
recommended that each test conducted pursuant to this section should be 
performed according to any directions supplied by the manufacturer of 
such test and any American National Standards Institute (ANSI) 
standards that are applicable.
    (h) Except as provided in paragraph (j) of this section, each 
person shall have visual acuity that meets or exceeds the following 
thresholds:
    (1) For distant viewing, either:
    (i) Distant visual acuity of at least 20/40 (Snellen) in each eye 
without corrective lenses; or
    (ii) Distant visual acuity separately corrected to at least 20/40 
(Snellen) with corrective lenses and distant binocular acuity of at 
least 20/40 (Snellen) in both eyes with or without corrective lenses;
    (2) A field of vision of at least 70 degrees in the horizontal 
meridian in each eye; and
    (3) The ability to recognize and distinguish between the colors of 
railroad signals as demonstrated by successfully completing one of the 
tests in Appendix E to this part.
    (i) Except as provided in paragraph (j) of this section, each 
person shall have a hearing test or audiogram that shows the person's 
hearing acuity meets or exceeds the following thresholds: the person 
does not have an average hearing loss in the better ear greater than 40 
decibels with or without use of a hearing aid, at 500 Hz, 1,000 Hz, and 
2,000 Hz. The hearing test or audiogram shall meet the requirements of 
one of the following:
    (1) As required in 29 CFR 1910.95(h) (OSHA);
    (2) As required in Sec.  227.111 of this chapter; or
    (3) Conducted using an audiometer that meets the specifications of 
and are maintained and used in accordance with ANSI S3.6-2004 
``Specifications for Audiometers.''
    (j) A person not meeting the thresholds in paragraphs (h) and (i) 
of this section shall, upon request, be subject to further medical 
evaluation by a railroad's medical examiner to determine that person's 
ability to safely perform as a conductor. In accordance with the 
guidance prescribed in Appendix D to this part, a person is entitled to 
one retest without making any showing and to another retest if the 
person provides evidence substantiating that circumstances have changed 
since the last test to the extent that the person could now safely 
perform as a conductor. The railroad shall provide its medical examiner 
with a copy of this part, including all appendices. If, after 
consultation with a railroad officer, the medical examiner concludes 
that, despite not meeting the threshold(s) in paragraphs (h) and (i) of 
this section, the person has the ability to safely perform as a 
conductor, the person may be certified as a conductor and such 
certification conditioned on any special restrictions the medical 
examiner determines in writing to be necessary.
    (k) As a condition of maintaining certification, each certified 
conductor shall notify his or her employing railroad's medical 
department or, if no such department exists, an appropriate railroad 
official if the person's best correctable vision or hearing has 
deteriorated to the extent that the person no longer meets one or more 
of the prescribed vision or hearing standards or requirements of this 
section. This notification is required prior to any subsequent 
performance as a conductor.


Sec.  242.119  Training.

    (a) Each railroad shall adopt and comply with a program that meets 
the requirements of this section. When any person including, but not 
limited to, each railroad, railroad officer, supervisor, and employee 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.
    (b) After the pertinent date specified in Sec.  242.105(d) or (e), 
each railroad, prior to the initial issuance of a certificate to any 
person as a conductor, shall determine that the person has, in 
accordance with the requirements of this section, the knowledge to 
safely perform as a conductor in each type of service that the person 
will be permitted to perform.
    (c) In making this determination, a railroad shall have written 
documentation showing that:
    (1) The person completed a training program that complies with 
paragraph (d) of this section;
    (2) The person demonstrated his or her knowledge by achieving a 
passing grade under the testing and evaluation procedures of that 
training program; and
    (3) The person demonstrated that he or she is qualified on the 
physical

[[Page 69205]]

characteristics of the railroad, or its pertinent segments, over which 
that person will perform service.
    (d) A railroad that elects to train a previously untrained person 
to be a conductor shall develop an initial training program which, at a 
minimum, includes the following:
    (1) Perform a task analysis or otherwise demonstrate that a task 
analysis has been performed to identify safety-related tasks and steps 
that must be performed proficiently. The demonstration of a task 
analysis for an existing program (i.e., a program implemented prior to 
the effective date of this part) can be based on the production of an 
existing program with defined standards of sufficient detail to 
indicate that an effective task analysis was performed. When new 
safety-related railroad laws, regulations, orders, technologies, 
procedures, or equipment are introduced into the workplace, the 
railroad must review its training program and modify its training plan 
accordingly.
    (2) Determine how training must be structured, developed, and 
delivered, including on-the-job training and any combination of 
classroom, simulator, computer-based, or other formally structured 
training designed to impart the knowledge, skills, and abilities 
identified as necessary to perform each task. The curriculum shall 
include knowledge of, and ability to comply with, Federal railroad 
safety laws, regulations, and orders, as well as any railroad rules and 
procedures promulgated to implement those Federal railroad safety laws, 
regulations, and orders. This training shall document a person's 
knowledge of, and ability to comply with, Federal railroad safety laws, 
regulations, and orders, as well as railroad rules and procedures.
    (e) Prior to a previously untrained person being certified as a 
conductor, a railroad shall require the person to:
    (1) Successfully complete the formal initial training program 
developed pursuant to paragraph (d) of this section and any associated 
examinations covering the skills and knowledge the person will need to 
possess in order to perform the tasks necessary to be a conductor; and
    (2) Demonstrate, to the satisfaction of the railroad with input 
from a qualified instructor, on-the-job proficiency by successfully 
completing the tasks necessary to be a conductor. However, a person may 
perform such tasks under the direct onsite supervision of a person, who 
has the necessary operating experience, as part of the on-the-job 
training process prior to completing such training and passing the 
field evaluation; and
    (3) Demonstrate knowledge of the physical characteristics of any 
assigned territory by successfully completing a test created by a 
person qualified on the physical characteristics of the territory.
    (f) If a railroad uses a written test for purposes of paragraph 
(e)(3) of this section, the railroad must provide the person(s) being 
tested with an opportunity to consult with a supervisory employee, who 
possesses territorial qualifications for the territory, to explain a 
question.
    (g) A person may acquire familiarity with the physical 
characteristics of a territory through the following methods:
    (1) The methods used by a railroad for familiarizing its conductors 
with new territory while starting up a new railroad;
    (2) The methods used by a railroad for starting operations over 
newly acquired rail lines; or
    (3) The methods used by a railroad for reopening of a long unused 
route.
    (h) The methods listed in paragraph (g) of this section shall be 
described in the railroad's conductor qualification program required 
under this part and submitted according to the procedures described in 
Appendix B to this part.
    (i) If ownership of a railroad is being transferred from one 
company to another, the conductor(s) of the acquiring company may 
receive familiarization training from the selling company prior to the 
acquiring railroad commencing operation.
    (j) A railroad shall designate in its program required by this 
section the time period in which a conductor must be absent from a 
territory or yard, before requalification on physical characteristics 
is required.
    (k) A railroad's program shall include the procedures used to 
qualify or requalify a person on the physical characteristics.
    (l) Except as provided by paragraph (n) of this section, each 
railroad shall, no later than (DATE 365 DAYS AFTER THE DATE OF 
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER), perform initial 
instructional briefings to ensure that each of its conductors have 
knowledge of the Federal railroad safety laws that relate to the 
safety-related tasks the employees are assigned to perform.
    (m) Initial instructional briefings required by this section must:
    (1) Be delivered in a manner conducive to ensure learning transfer;
    (2) Include in the briefing a written or electronic check-off list 
containing the title and section or subpart of each applicable railroad 
safety law, including, but limited to, regulations and orders, that the 
conductor must comply with; and
    (3) Require each conductor to complete an identical check-off list 
during the instructional briefing, and to sign or electronically 
validate the list at the conclusion of the briefing.
    (n) Any railroad that has previously informed, briefed, or 
instructed any of its existing conductors on the relevant Federal 
railroad safety laws may choose not to perform the initial 
instructional briefing required by paragraph (l) of this section, as 
long as the railroad has retained a record containing the following 
information concerning each such person:
    (1) The name of the person;
    (2) The name or a description of the training during which this 
information was delivered;
    (3) The date the training was completed; and
    (4) The name of the railroad officer certifying the record(s).
    (o) A railroad shall provide for the continuing education of 
certified conductors to ensure that each conductor maintains the 
necessary knowledge concerning railroad safety and operating rules and 
compliance with all applicable Federal regulations, including, but not 
limited to, hazardous materials, passenger train emergency 
preparedness, brake system safety standards, pre-departure inspection 
procedures, and passenger equipment safety standards, and physical 
characteristics of a territory.


Sec.  242.121  Knowledge testing.

    (a) Each railroad shall adopt and comply with a program that meets 
the requirements of this section. When any person including, but not 
limited to, each railroad, railroad officer, supervisor, and employee 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.
    (b) After the pertinent date specified in Sec.  242.105(d) or (e), 
each railroad, prior to initially certifying or recertifying any person 
as a conductor for any type of service, shall determine that the person 
has, in accordance with the requirements of this section, demonstrated 
sufficient knowledge of the railroad's rules and practices for the safe 
movement of trains.
    (c) In order to make the knowledge determination required by 
paragraph (b) of this section, a railroad shall have procedures for 
testing a person being evaluated for certification as a conductor that 
shall be:

[[Page 69206]]

    (1) Designed to examine a person's knowledge of the railroad's 
operating rules and practices for the safe movement of trains;
    (2) Objective in nature;
    (3) Administered in written or electronic form;
    (4) Cover the following subjects:
    (i) Safety and operating rules;
    (ii) Timetable instructions;
    (iii) Compliance with all applicable Federal regulations;
    (iv) Physical characteristics of the territory on which a person 
will be or is currently serving as a conductor; and
    (v) Use of any job aid that a railroad may provide a conductor;
    (5) Sufficient to accurately measure the person's knowledge of the 
covered subjects; and
    (6) Conducted without open reference books or other materials 
except to the degree the person is being tested on his or her ability 
to use such reference books or materials.
    (d) The conduct of the test shall be documented in writing and the 
documentation shall contain sufficient information to identify the 
relevant facts relied on for evaluation purposes.
    (e) For purposes of paragraph (c) of this section, the railroad 
must provide the person(s) being tested with an opportunity to consult 
with a supervisory employee, who possesses territorial qualifications 
for the territory, to explain a question.
    (f) The documentation shall indicate whether the person passed or 
failed the test.
    (g) If a person fails to pass the test, no railroad shall permit or 
require that person to function as a conductor prior to that person's 
achieving a passing score during a reexamination of his or her 
knowledge.


Sec.  242.123  Monitoring operational performance.

    (a) Each railroad shall adopt and comply with a program that meets 
the requirements of this section. When any person including, but not 
limited to, each railroad, railroad officer, supervisor, and employee 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.
    (b) Each railroad shall have a program to monitor the conduct of 
its certified conductors by performing unannounced operating rules 
compliance tests. The program shall include procedures to address the 
testing of certified conductors who are not given an unannounced 
compliance test in a calendar year pursuant to paragraph (f) of this 
section. At a minimum, the procedures shall include the following:
    (1) A requirement that an unannounced compliance test must be 
conducted within 30 days of a return to conductor service; and
    (2) The railroad must retain a written record indicating the date 
that the conductor stopped performing service that requires 
certification pursuant to this part, the date that the conductor 
returned to performing service that requires certification pursuant to 
this part, and the date that the unannounced compliance test was 
performed.
    (c) Except as provided in paragraph (f) of this section, each 
conductor shall be given at least one unannounced compliance test in 
each calendar year by a railroad officer who meets the requirements of 
Sec.  217.9(b)(1) of this chapter.
    (d) The unannounced test program shall:
    (1) Test those persons certified as a conductor pursuant to Sec.  
242.107(b)(1) for compliance with one or more operational tests in 
accordance with the provisions of Sec.  217.9 of this chapter; and one 
or more provisions of Sec. Sec.  218.99 through 218.109 of this 
chapter; and
    (2) Test those persons certified as a passenger conductor pursuant 
to Sec.  242.107(b)(2) for compliance with one or more operational 
tests in accordance with the provisions of Sec.  217.9 of this chapter.
    (i) For persons certified as passenger conductors pursuant to Sec.  
242.107(b)(2) who do not require compliance with part 218, subpart F of 
this chapter except under emergency circumstances, the requirement for 
an annual, unannounced test may be satisfied by annual training.
    (ii) [Reserved]
    (e) Each railroad's program shall indicate the action the railroad 
will take in the event that it finds deficiencies with a conductor's 
performance during an unannounced compliance test administered in 
accordance with this section.
    (f) A certified conductor who is not performing a service that 
requires certification pursuant to this part need not be given an 
unannounced compliance test. However, when the certified conductor 
returns to a service that requires certification pursuant to this part, 
that certified conductor must be tested pursuant to this section within 
30 days of his or her return.


Sec.  242.125  Certification determinations made by other railroads.

    (a) A railroad that is considering certification of a person as a 
conductor may rely on determinations made by another railroad 
concerning that person's certification. The railroad's certification 
program shall address how the railroad will administer the training of 
previously uncertified conductors with extensive operating experience 
or previously certified conductors who have had their certification 
expire. If a railroad's certification program fails to specify how it 
will train a previously certified conductor hired from another 
railroad, then the railroad shall require the newly hired conductor to 
take the hiring railroad's entire training program.
    (b) A railroad relying on another railroad's certification shall 
determine that:
    (1) The prior certification is still valid in accordance with the 
provisions of Sec. Sec.  242.201 and 242.407;
    (2) The prior certification was for the same type of service as the 
certification being issued under this section;
    (3) The person has received training on the physical 
characteristics of the new territory in accordance with Sec.  242.119; 
and
    (4) The person has demonstrated the necessary knowledge concerning 
the railroad's operating rules in accordance with Sec.  242.121.


Sec.  242.127  Reliance on qualification requirements of other 
countries.

    (a) A Canadian railroad that is required to comply with this 
regulation or a railroad that conducts joint operations with a Canadian 
railroad may certify that a person is eligible to be a conductor 
provided it determines that:
    (1) The person is employed by the Canadian railroad; and
    (2) The person meets or exceeds the qualifications standards issued 
by Transport Canada for such service.

Subpart C--Administration of the Certification Program


Sec.  242.201  Time limitations for certification.

    (a) After the pertinent date in Sec.  242.105(d) or (e), a railroad 
shall not certify or recertify a person as a conductor in any type of 
service, if the railroad is making:
    (1) A determination concerning eligibility under Sec. Sec.  
242.111, 242.113, 242.115 and 242.403 and the eligibility data being 
relied on was furnished more than 366 days before the date of the 
railroad's certification decision;
    (2) A determination concerning visual and hearing acuity and the 
medical examination being relied on was conducted more than 450 days 
before the date of the railroad's certification decision;
    (3) A determination concerning demonstrated knowledge and the

[[Page 69207]]

knowledge examination being relied on was conducted more than 366 days 
before the date of the railroad's certification decision; or
    (4) A determination concerning demonstrated knowledge and the 
knowledge examination being relied on was conducted more than 24 months 
before the date of the railroad's recertification decision if the 
railroad administers a knowledge testing program pursuant to Sec.  
242.121 at intervals that do not exceed 24 months.
    (b) The time limitations of paragraph (a) of this section do not 
apply to a railroad that is making a certification decision in reliance 
on determinations made by another railroad in accordance with paragraph 
(c)(3) of this section, Sec.  242.125, or Sec.  242.127.
    (c) No railroad shall:
    (1) Permit or require a person, designated under Sec.  242.105(a) 
or (b), to perform service as a certified conductor for more than the 
36-month period beginning on the pertinent date for compliance with the 
mandatory procedures for testing and evaluation set forth in the 
applicable provisions of Sec.  242.105(d) or (e) unless that person has 
been determined to be eligible in accordance with procedures that 
comply with subpart B of this part.
    (2) Certify a person as a conductor for an interval of more than 36 
months; or
    (3) Rely on a certification issued by another railroad that is more 
than 36 months old.
    (d) Except as provided for in Sec.  242.105 concerning initial 
implementation of the program, a railroad shall issue each person 
designated as a certified conductor a certificate that complies with 
Sec.  242.207 no later than 30 days from the date of its decision to 
certify or recertify that person.


Sec.  242.203  Retaining information supporting determinations.

    (a) After the pertinent date in Sec.  242.105(d) or (e), a railroad 
that issues, denies, or revokes a certificate after making the 
determinations required under Sec.  242.109 shall maintain a record for 
each certified conductor or applicant for certification that contains 
the information the railroad relied on in making the determinations.
    (b) A railroad shall retain the following information:
    (1) Relevant data from the railroad's records concerning the 
person's prior safety conduct;
    (2) Relevant data furnished by another railroad;
    (3) Relevant data furnished by a governmental agency concerning the 
person's motor vehicle driving record;
    (4) Relevant data furnished by the person seeking certification 
concerning his or her eligibility;
    (5) The relevant test results data concerning hearing and vision 
acuity;
    (6) If applicable, the relevant data concerning the professional 
opinion of the railroad's medical examiner on the adequacy of the 
person's hearing or vision acuity;
    (7) Relevant data from the railroad's records concerning the 
person's success or failure of the passage of knowledge test(s) under 
Sec.  242.121;
    (8) A sample copy of the written knowledge test or tests 
administered; and
    (9) The relevant data from the railroad's records concerning the 
person's success or failure on unannounced operating rules compliance 
tests the railroad performed to monitor the conductor's performance in 
accordance with Sec.  242.123.
    (c) If a railroad is relying on successful completion of an 
approved training program conducted by another entity, the relying 
railroad shall maintain a record for each certified conductor that 
contains the relevant data furnished by the training entity concerning 
the person's demonstration of knowledge and relied on by the railroad 
in making its determinations.
    (d) If a railroad is relying on a certification decision initially 
made by another railroad, the relying railroad shall maintain a record 
for each certified conductor that contains the relevant data furnished 
by the other railroad which it relied on in making its determinations.
    (e) All records required under this section shall be retained for a 
period of six years from the date of the certification, 
recertification, denial or revocation decision and shall be made 
available to FRA representatives upon request during normal business 
hours.
    (f) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on the record(s) required by this section; or
    (2) Otherwise falsify such records through material misstatement, 
omission, or mutilation.
    (g) Nothing in this section precludes a railroad from maintaining 
the information required to be retained under this section in an 
electronic format provided that:
    (1) The railroad maintains an information technology security 
program adequate to ensure the integrity of the electronic data storage 
system, including the prevention of unauthorized access to the program 
logic or individual records;
    (2) The program and data storage system must be protected by a 
security system that utilizes an employee identification number and 
password, or a comparable method, to establish appropriate levels of 
program access meeting all of the following standards:
    (i) No two individuals have the same electronic identity; and
    (ii) A record cannot be deleted or altered by any individual after 
the record is certified by the employee who created the record;
    (3) Any amendment to a record is either:
    (i) Electronically stored apart from the record that it amends; or
    (ii) Electronically attached to the record as information without 
changing the original record;
    (4) Each amendment to a record uniquely identifies the person 
making the amendment;
    (5) The system employed by the railroad for data storage permits 
reasonable access and retrieval of the information in usable format 
when requested to furnish data by FRA representatives; and
    (6) Information retrieved from the system can be easily produced in 
a printed format which can be readily provided to FRA representatives 
in a timely manner and authenticated by a designated representative of 
the railroad as a true and accurate copy of the railroad's records if 
requested to do so by FRA representatives.


Sec.  242.205  Identification of certified persons and record keeping.

    (a) After March 1, 2012, a railroad shall maintain a list 
identifying each person designated as a certified conductor. That list 
shall indicate the types of service the railroad determines each person 
is authorized to perform and date of the railroad's certification 
decision.
    (b) If a railroad employs conductors working in joint operations 
territory, the list shall include person(s) determined by that railroad 
to be certified as conductor(s) and possessing the necessary 
territorial qualifications for the applicable territory in accordance 
with Sec.  242.301.
    (c) The list required by paragraphs (a) and (b) of this section 
shall:
    (1) Be updated at least annually;
    (2) Be available at the divisional or regional headquarters of the 
railroad; and
    (3) Be available for inspection or copying by FRA during regular 
business hours.

[[Page 69208]]

    (d) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on the list required by this section; or
    (2) Otherwise falsify such list through material misstatement, 
omission, or mutilation.
    (e) Nothing in this section precludes a railroad from maintaining 
the list required by this section in an electronic format provided 
that:
    (1) The railroad maintains an information technology security 
program adequate to ensure the integrity of the electronic data storage 
system, including the prevention of unauthorized access to the program 
logic or the list;
    (2) The program and data storage system must be protected by a 
security system that utilizes an employee identification number and 
password, or a comparable method, to establish appropriate levels of 
program access meeting all of the following standards:
    (i) No two individuals have the same electronic identity; and
    (ii) An entry on the list cannot be deleted or altered by any 
individual after the entry is certified by the employee who created the 
entry;
    (3) Any amendment to the list is either:
    (i) Electronically stored apart from the entry on the list that it 
amends; or
    (ii) Electronically attached to the entry on the list as 
information without changing the original entry;
    (4) Each amendment to the list uniquely identifies the person 
making the amendment;
    (5) The system employed by the railroad for data storage permits 
reasonable access and retrieval of the information in usable format 
when requested to furnish data by FRA representatives; and
    (6) Information retrieved from the system can be easily produced in 
a printed format which can be readily provided to FRA representatives 
in a timely manner and authenticated by a designated representative of 
the railroad as a true and accurate copy of the railroad's records if 
requested to do so by FRA representatives.


Sec.  242.207  Certificate components.

    (a) At a minimum, each certificate issued in compliance with this 
part shall:
    (1) Identify the railroad or parent company that is issuing it;
    (2) Indicate that the railroad, acting in conformity with this 
part, has determined that the person to whom it is being issued has 
been determined to be eligible to perform as a conductor or as a 
passenger conductor;
    (3) Identify the person to whom it is being issued (including the 
person's name, employee identification number, and either the year of 
birth or photograph of the person);
    (4) Identify any conditions or limitations, including the type of 
service or conditions to ameliorate vision or hearing acuity 
deficiencies, that restrict the person's operational authority;
    (5) Show the effective date of each certification held;
    (6) Be signed by an individual designated in accordance with 
paragraph (b) of this section; and
    (7) Be of sufficiently small size to permit being carried in an 
ordinary pocket wallet.
    (b) Each railroad shall designate in writing any person that it 
authorizes to sign the certificates described in this section. The 
designation shall identify such persons by name or job title.
    (c) Nothing in paragraph (a) of this section shall prohibit any 
railroad from including additional information on the certificate or 
supplementing the certificate through other documents.
    (d) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on that certificate; or
    (2) Otherwise falsify that certificate through material 
misstatement, omission, or mutilation.


Sec.  242.209  Maintenance of the certificate.

    (a) Each conductor who has received a certificate required under 
this part shall:
    (1) Have that certificate in his or her possession while on duty as 
a conductor; and
    (2) Display that certificate upon the receipt of a request to do so 
from:
    (i) A representative of the Federal Railroad Administration,
    (ii) A State inspector authorized under part 212 of this chapter,
    (iii) An officer of the issuing railroad, or
    (iv) An officer of another railroad when serving as a conductor in 
joint operations territory.
    (b) Any conductor who is notified or called to serve as a conductor 
and such service would cause the conductor to exceed certificate 
limitations, set forth in accordance with subpart B of this part, shall 
immediately notify the railroad that he or she is not authorized to 
perform that anticipated service and it shall be unlawful for the 
railroad to require such service.
    (c) Nothing in this section shall be deemed to alter a certified 
conductor's duty to comply with other provisions of this chapter 
concerning railroad safety.


Sec.  242.211  Replacement of certificates.

    (a) A railroad shall have a system for the prompt replacement of 
lost, stolen or mutilated certificates at no cost to conductors. That 
system shall be reasonably accessible to certified conductors in need 
of a replacement certificate or temporary replacement certificate.
    (b) At a minimum, a temporary replacement certificate must identify 
the person to whom it is being issued (including the person's name, 
identification number and year of birth); indicate the date of 
issuance; and be authorized by a designated supervisor. Temporary 
replacement certificates may be delivered electronically and are valid 
for a period no greater than 30 days.


Sec.  242.213  Multiple certifications.

    (a) A person may hold certification for multiple types of conductor 
service.
    (b) A person may hold both conductor and locomotive engineer 
certification.
    (c) A railroad that issues multiple certificates to a person, 
shall, to the extent possible, coordinate the expiration date of those 
certificates.
    (d) Except as provided in paragraph (e) of this section, a 
locomotive engineer, including a remote control operator, who is 
operating a locomotive without an assigned certified conductor must 
either be (i) certified as both a locomotive engineer under part 240 of 
this chapter and as a conductor under this part or (ii) accompanied by 
a person certified as a conductor under this part but who will be 
attached to the crew in a manner similar to that of an independent 
assignment.
    (e) Passenger Railroad Operations. If the conductor is removed from 
a train for a medical, police or other such emergency after the train 
departs from an initial terminal, the train may proceed to the first 
location where the conductor can be replaced without incurring undue 
delay without the locomotive engineer being a certified conductor. 
However, an assistant conductor or brakeman must be on the train and 
the locomotive engineer must be informed that there is no certified 
conductor on the train prior to any movement.
    (f) During the duration of any certification interval, a person who 
holds a current conductor and/or locomotive engineer certificate from 
more than one railroad shall immediately notify the other certifying 
railroad(s) if he or she is denied conductor or locomotive engineer 
recertification under Sec.  242.401 or

[[Page 69209]]

Sec.  240.219 of this chapter or has his or her conductor or locomotive 
engineer certification revoked under Sec.  242.407 or Sec.  240.307 of 
this chapter by another railroad.
    (g) A person who is certified to perform multiple types of 
conductor service and who has had any of those certifications revoked 
under Sec.  242.407 may not perform any type of conductor service 
during the period of revocation.
    (h) A person who holds a current conductor and locomotive engineer 
certificate and who has had his or her conductor certification revoked 
under Sec.  242.407 for a violation of Sec.  242.403(e)(1) through 
(e)(5) or (e)(12) may not work as a locomotive engineer during the 
period of revocation. However, a person who holds a current conductor 
and locomotive engineer certificate and who has had his or her 
conductor certification revoked under Sec.  242.407 for a violation of 
Sec.  242.403(e)(6) through (e)(11) may work as a locomotive engineer 
during the period of revocation.
    (1) For purposes of determining the period for which a person may 
not work as a certified locomotive engineer due to a revocation of his 
or her conductor certification, only violations of Sec.  242.403(e)(1) 
through (e)(5) or (e)(12) will be counted. Thus, a person who holds a 
current conductor and locomotive engineer certificate and who has had 
his or her conductor certification revoked three times in less than 36 
months for two violations of Sec.  242.403(e)(6) and one violation of 
Sec.  242.403(e)(1) would have his or her conductor certificate revoked 
for 1 year, but would not be permitted to work as a locomotive engineer 
for one month (i.e., the period of revocation for one violation of 
Sec.  242.403(e)(1)).
    (i) A person who holds a current conductor and locomotive engineer 
certificate and who has had his or her locomotive engineer 
certification revoked under Sec.  240.307 of this chapter may not work 
as a conductor during the period of revocation.
    (j) A person who has had his or her locomotive engineer 
certification revoked under Sec.  240.307 of this chapter may not 
obtain a conductor certificate pursuant to this part during the period 
of revocation.
    (k) A person who had his or her conductor certification revoked 
under Sec.  242.407 for violations of Sec.  242.403(e)(1) through 
(e)(5) or (e)(12) may not obtain a locomotive engineer certificate 
pursuant to part 240 of this chapter during the period of revocation.
    (l) A railroad that denies a person conductor certification or 
recertification under Sec.  242.401 shall not, solely on the basis of 
that denial, deny or revoke that person's locomotive engineer 
certification or recertification.
    (m) A railroad that denies a person locomotive engineer 
certification or recertification under Sec.  240.219 of this chapter 
shall not, solely on the basis of that denial, deny or revoke that 
person's conductor certification or recertification.
    (n) In lieu of issuing multiple certificates, a railroad may issue 
one certificate to a person who is certified to perform multiple types 
of conductor service or is certified as a conductor and a locomotive 
engineer. The certificate must comply with Sec.  240.223 of this 
chapter and Sec.  242.207.


Sec.  242.215  Railroad oversight responsibilities.

    (a) No later than March 31 of each year (beginning in calendar year 
(TO BE INSERTED IN FINAL RULE)), each Class I railroad (including the 
National Railroad Passenger Corporation and a railroad providing 
commuter service) and each Class II railroad shall conduct a formal 
annual review and analysis concerning the administration of its program 
for responding to detected instances of poor safety conduct by 
certified conductors during the prior calendar year.
    (b) Each review and analysis shall involve:
    (1) The number and nature of the instances of detected poor safety 
conduct including the nature of the remedial action taken in response 
thereto;
    (2) The number and nature of FRA reported train accidents 
attributed to poor safety performance by conductors;
    (3) The number and type of operational monitoring test failures 
recorded by railroad officers who meet the requirements of Sec.  
217.9(b)(1) of this chapter; and
    (4) If the railroad conducts joint operations with another 
railroad, the number of conductors employed by the other railroad(s) 
which: were involved in events described in this paragraph and were 
determined to be certified and to have possessed the necessary 
territorial qualifications for joint operations purposes by the 
controlling railroad.
    (c) Based on that review and analysis, each railroad shall 
determine what action(s) it will take to improve the safety of railroad 
operations to reduce or eliminate future incidents of that nature.
    (d) If requested in writing by FRA, the railroad shall provide a 
report of the findings and conclusions reached during such annual 
review and analysis effort.
    (e) For reporting purposes, information about the nature of 
detected poor safety conduct shall be capable of segregation for study 
and evaluation purposes into the following categories:
    (1) Incidents involving noncompliance with part 218 of this 
chapter;
    (2) Incidents involving noncompliance with part 219 of this 
chapter;
    (3) Incidents involving noncompliance with the procedures for the 
safe use of train or engine brakes when the procedures are required for 
compliance with the Class I, Class IA, Class II, Class III, or transfer 
train brake test provisions of part 232 of this chapter or when the 
procedures are required for compliance with the Class 1, Class 1A, 
Class II, or running brake test provisions of part 238 of this chapter;
    (4) Incidents involving noncompliance with the railroad's operating 
rules involving operation of a locomotive or train to operate at a 
speed that exceeds the maximum authorized limit;
    (5) Incidents involving noncompliance with the railroad's operating 
rules resulting in operation of a locomotive or train past any signal, 
excluding a hand or a radio signal indication or a switch, that 
requires a complete stop before passing it;
    (6) Incidents involving noncompliance with the provisions of 
restricted speed, and the operational equivalent thereof, that must be 
reported under the provisions of part 225 of this chapter;
    (7) Incidents involving occupying main track or a segment of main 
track without proper authority or permission; and
    (8) Incidents involving the failure to comply with prohibitions 
against tampering with locomotive mounted safety devices, or knowingly 
operating or permitting to be operated a train with an unauthorized or 
disabled safety device in the controlling locomotive.
    (f) For reporting purposes, an instance of poor safety conduct 
involving a person who holds both conductor certification pursuant to 
this part and locomotive engineer certification pursuant to part 240 of 
this chapter need only be reported once (either under 49 CFR 240.309 of 
this chapter or this section). The determination as to where to report 
the instance of poor safety conduct should be based on the work the 
person was performing at the time the conduct occurred.
    (g) For reporting purposes each category of detected poor safety 
conduct identified in paragraph (b) of this

[[Page 69210]]

section shall be capable of being annotated to reflect the following:
    (1) The nature of the remedial action taken and the number of 
events subdivided so as to reflect which of the following actions was 
selected:
    (i) Imposition of informal discipline;
    (ii) Imposition of formal discipline;
    (iii) Provision of informal training; or
    (iv) Provision of formal training; and
    (2) If the nature of the remedial action taken was formal 
discipline, the number of events further subdivided so as to reflect 
which of the following punishments was imposed by the hearing officer:
    (i) The person was withheld from service;
    (ii) The person was dismissed from employment or
    (iii) The person was issued demerits. If more than one form of 
punishment was imposed only that punishment deemed the most severe 
shall be shown.
    (h) For reporting purposes each category of detected poor safety 
conduct identified in paragraph (b) of this section which resulted in 
the imposition of formal or informal discipline shall be annotated to 
reflect the following:
    (1) The number of instances in which the railroad's internal 
appeals process reduced the punishment initially imposed at the 
conclusion of its hearing; and
    (2) The number of instances in which the punishment imposed by the 
railroad was reduced by any of the following entities: The National 
Railroad Adjustment Board, a Public Law Board, a Special Board of 
Adjustment or other body for the resolution of disputes duly 
constituted under the provisions of the Railway Labor Act.
    (i) For reporting purposes, each category of detected poor safety 
conduct identified in paragraph (b) of this section shall be capable of 
being annotated to reflect the following:
    (1) The total number of incidents in that category;
    (2) The number of incidents within that total which reflect 
incidents requiring an FRA accident/incident report; and
    (3) The number of incidents within that total which were detected 
as a result of a scheduled operational monitoring effort.
    (ii) [Reserved]

Subpart D--Territorial Qualification and Joint Operations


Sec.  242.301  Requirements for territorial qualification.

    (a) Except as provided in paragraph (c) or (d) of this section, a 
railroad, including a railroad that employs conductors working in joint 
operations territory, shall not permit or require a person to serve as 
a conductor unless that railroad determines that the person is 
certified as a conductor and possesses the necessary territorial 
qualifications for the applicable territory pursuant to Sec.  242.119.
    (b) Each person who is called to serve as a conductor shall:
    (1) Meet the territorial qualification requirements on the segment 
of track upon which he or she will serve as a conductor; and
    (2) Immediately notify the railroad upon which he or she is 
employed if he or she does not meet the required territorial 
qualifications.
    (c) If a conductor lacks territorial qualification on main track 
physical characteristics required by paragraph (a) of this section, he 
or she shall be assisted by a person who is a certified conductor or 
certified locomotive engineer and meets the territorial qualification 
requirements for the main track physical characteristics.
    (d) If a conductor lacks territorial qualification on other than 
main track physical characteristics required by paragraph (a) of this 
section, where practicable, he or she shall be assisted by a person who 
is a certified conductor and meets the territorial qualification 
requirements for other than main track physical characteristics. Where 
not practicable, the conductor should be provided an appropriate up-to-
date job aid.

Subpart E--Denial and Revocation of Certification


Sec.  242.401  Denial of certification.

    (a) A railroad shall notify a candidate for certification or 
recertification of information known to the railroad that forms the 
basis for denying the person certification and provide the person a 
reasonable opportunity to explain or rebut that adverse information in 
writing prior to denying certification.
    (b) This section does not require further opportunity to comment if 
the railroad's denial is based solely on factors addressed by 
Sec. Sec.  242.111, 242.115, or 242.403 and the opportunity to comment 
afforded by Sec.  242.109 has been provided.
    (c) If a railroad denies a person certification or recertification, 
it shall notify the person of the adverse decision and explain, in 
writing, the basis for its denial decision. The document explaining the 
basis for the denial shall be served on the person within 10 days after 
the railroad's decision and shall give the date of the decision.
    (d) A railroad shall not determine that a person failed to meet the 
eligibility requirements of this part and shall not deny the person's 
certification if sufficient evidence exists to establish that an 
intervening cause prevented or materially impaired the conductor's 
ability to comply with the railroad operating rule or practice which 
constitutes a violation under Sec.  242.403(e)(1) through (e)(11) of 
this part.


Sec.  242.403  Criteria for revoking certification.

    (a) Each railroad shall adopt and comply with a program which meets 
the requirements of this section. When any person including, but not 
limited to, each railroad, railroad officer, supervisor, and employee 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.
    (b) It shall be unlawful to fail to comply with any of the railroad 
rules and practices described in paragraph (e) of this section.
    (c)(1) A certified conductor who has demonstrated a failure to 
comply with railroad rules and practices described in paragraph (e) of 
this section shall have his or her certification revoked.
    (2) A certified conductor who is monitoring, piloting, or 
instructing a conductor and fails to take appropriate action to prevent 
a violation of paragraph (e) of this section shall have his or her 
certification revoked. Appropriate action does not mean that a 
supervisor, pilot, or instructor must prevent a violation from 
occurring at all costs; the duty may be met by warning the conductor or 
the engineer, as appropriate, of a potential or foreseeable violation.
    (3) A certified conductor who is called by a railroad to perform 
the duty of a train crew member other than that of conductor or 
locomotive engineer shall not have his or her certification revoked 
based on actions taken or not taken while performing that duty.
    (d) Limitations on consideration of prior operating rule compliance 
data. In determining whether a person may be or remain certified as a 
conductor, a railroad shall consider as operating rule compliance data 
only conduct described in paragraphs (e)(1) through (e)(11) of this 
section that occurred within a period of 36 consecutive months prior to 
the determination. A review of an existing certification shall be 
initiated promptly upon the occurrence and documentation of any conduct 
described in this section.

[[Page 69211]]

    (e) A railroad shall only consider violations of its operating 
rules and practices that involve:
    (1) Failure to take appropriate action to prevent the locomotive 
engineer of the train the conductor is assigned to from failing to 
control a locomotive or train in accordance with a signal indication, 
excluding a hand or a radio signal indication or a switch, that 
requires a complete stop before passing it, when the conductor is 
located in the operating cab, or otherwise has knowledge of the signal 
indication. Appropriate action does not mean that a conductor must 
prevent a violation from occurring at all costs; the duty may be met by 
warning an engineer of a potential or foreseeable violation.
    (2) Failure to take appropriate action to prevent the locomotive 
engineer of the train the conductor is assigned to from failing to 
adhere to limitations concerning train speed:
    (i) When the conductor is located in the operating cab and the 
speed at which the train was operated exceeds the maximum authorized 
limit by at least 10 miles per hour. Where restricted speed is in 
effect, railroads shall consider only those violations of the 
conditional clause of restricted speed rules (i.e., the clause that 
requires stopping within one half of the locomotive engineer's range of 
vision), or the operational equivalent thereof, which cause reportable 
accidents or incidents under part 225 of this chapter, except for 
accidents and incidents that are classified as ``covered data'' under 
Sec.  225.5 of this chapter. Appropriate action does not mean that a 
conductor must prevent a violation from occurring at all costs; the 
duty may be met by warning an engineer of a potential or foreseeable 
violation.
    (ii) When not in the operating cab, the conductor is deemed to have 
taken appropriate action when in compliance with all applicable 
Railroad Operating Rules and Special Instructions.
    (3) Failure to perform or have knowledge that a required brake test 
was performed pursuant to the Class I, Class IA, Class II, Class III, 
or transfer train brake test provisions of part 232 of this chapter or 
the Class 1, Class 1A, Class II, or running brake test provisions of 
part 238 of this chapter.
    (4) Occupying main track or a segment of main track without proper 
authority or permission.
    (5) Failure to comply with prohibitions against tampering with 
locomotive mounted safety devices; knowingly fail to take appropriate 
action to prevent the locomotive engineer of the train the conductor is 
assigned to from failing to comply with prohibitions against tampering 
with locomotive mounted safety devices; or knowingly fail to take 
appropriate action to prevent the locomotive engineer of the train the 
conductor is assigned to from operating or permitting to be operated a 
train with an unauthorized disabled safety device in the controlling 
locomotive. (See 49 CFR part 218, subpart D and appendix C to part 
218);
    (6) Failure to comply with the provisions of Sec.  218.99 of this 
chapter (Shoving or pushing movements). Railroads shall only consider 
those violations of Sec.  218.99 of this chapter which cause reportable 
accidents or incidents under part 225 of this chapter, except for 
accidents and incidents that are classified as ``covered data'' under 
Sec.  225.5 of this chapter.
    (7) Failure to comply with the provisions of Sec.  218.101 of this 
chapter (Leaving rolling and on-track maintenance-of-way equipment in 
the clear). Railroads shall only consider those violations of Sec.  
218.101 of this chapter which cause reportable accidents or incidents 
under part 225 of this chapter, except for accidents and incidents that 
are classified as ``covered data'' under Sec.  225.5 of this chapter.
    (8) Failure to comply with the provisions of Sec.  218.103 of this 
chapter (Hand-operated switches, including crossover switches). 
Railroads shall only consider those violations of Sec.  218.103 of this 
chapter which cause reportable accidents or incidents under part 225 of 
this chapter, except for accidents and incidents that are classified as 
``covered data'' under Sec.  225.5 of this chapter.
    (9) Failure to comply with the provisions of Sec.  218.105 of this 
chapter (Additional operational requirements for hand-operated main 
track switches). Railroads shall only consider those violations of 
Sec.  218.105 of this chapter which cause reportable accidents or 
incidents under part 225 of this chapter, except for accidents and 
incidents that are classified as ``covered data'' under Sec.  225.5 of 
this chapter.
    (10) Failure to comply with the provisions of Sec.  218.107 of this 
chapter (Additional operational requirements for hand-operated 
crossover switches). Railroads shall only consider those violations of 
Sec.  218.107 of this chapter which cause reportable accidents or 
incidents under part 225 of this chapter, except for accidents and 
incidents that are classified as ``covered data'' under Sec.  225.5 of 
this chapter.
    (11) Failure to comply with the provisions of Sec.  218.109 of this 
chapter (Hand-operated fixed derails). Railroads shall only consider 
those violations of Sec.  218.109 of this chapter which cause 
reportable accidents or incidents under part 225 of this chapter, 
except for accidents and incidents that are classified as ``covered 
data'' under Sec.  225.5 of this chapter.
    (12) Failure to comply with Sec.  219.101 of this chapter; however 
such incidents shall be considered as a violation only for the purposes 
of Sec.  242.405(a)(2) and (3).
    (13) A railroad shall not be permitted to deny or revoke an 
employee's certification based upon additional conditions or 
operational restrictions imposed pursuant to Sec.  242.107(d).
    (f)(1) If in any single incident the person's conduct contravened 
more than one operating rule or practice, that event shall be treated 
as a single violation for the purposes of this section.
    (2) A violation of one or more operating rules or practices 
described in paragraphs (e)(1) through (e)(11) of this section that 
occurs during a properly conducted operational compliance test subject 
to the provisions of this chapter shall be counted in determining the 
periods of ineligibility described in Sec.  242.405.
    (3) An operational test that is not conducted in compliance with 
this part, a railroad's operating rules, or a railroad's program under 
Sec.  217.9 of this chapter, will not be considered a legitimate test 
of operational skill or knowledge, and will not be considered for 
certification, recertification or revocation purposes.


Sec.  242.405  Periods of ineligibility.

    (a) A period of ineligibility described in this paragraph shall:
    (1) Begin, for a person not currently certified, on the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (2) Begin, for a person currently certified, on the date of the 
railroad's notification to the person that recertification has been 
denied or certification has been revoked; and
    (3) Be determined according to the following standards:
    (i) On other than main track where restricted speed or the 
operational equivalent thereof is in effect, the period of revocation 
for a violation of Sec.  242.403(e)(6) through (e)(8), (e)(10), or 
(e)(11) shall be reduced by one half provided that another revocable 
event has not occurred within the previous 12 months.
    (ii) In the case of a single incident involving violation of one or 
more of the operating rules or practices described in Sec.  
242.403(e)(1) through (e)(11), the person shall have his or her 
certificate

[[Page 69212]]

revoked for a period of 30 calendar days.
    (iii) In the case of two separate incidents involving a violation 
of one or more of the operating rules or practices described in Sec.  
242.403(e)(1) through (e)(11), that occurred within 24 months of each 
other, the person shall have his or her certificate revoked for a 
period of six months.
    (iv) In the case of three separate incidents involving violations 
of one or more of the operating rules or practices, described in Sec.  
242.403(e)(1) through (e)(12), that occurred within 36 months of each 
other, the person shall have his or her certificate revoked for a 
period of one year.
    (v) In the case of four separate incidents involving violations of 
one or more of the operating rules or practices, described in Sec.  
242.403(e)(1) through (e)(12), that occurred within 36 months of each 
other, the person shall have his or her certificate revoked for a 
period of three years.
    (vi) Where, based on the occurrence of violations described in 
Sec.  242.403(e)(12), different periods of ineligibility may result 
under the provisions of this section and Sec.  242.115, the longest 
period of revocation shall control.
    (b) Any or all periods of revocation provided in paragraph (a) of 
this section may consist of training.
    (c) Reduction in period of ineligibility. A person whose 
certification is denied or revoked shall be eligible for grant or 
reinstatement of the certificate prior to the expiration of the initial 
period of ineligibility only if:
    (1) The denial or revocation of certification in accordance with 
the provisions of paragraph (a)(3) of this section is for a period of 
one year or less;
    (2) Certification is denied or revoked for reasons other than 
noncompliance with Sec.  219.101 of this chapter;
    (3) The person is evaluated by a railroad officer and determined to 
have received adequate remedial training;
    (4) The person successfully completes any mandatory program of 
training or retraining, if that is determined to be necessary by the 
railroad prior to return to service; and
    (5) At least one half the pertinent period of ineligibility 
specified in paragraph (a)(3) of this section has elapsed.


Sec.  242.407  Process for revoking certification.

    (a) Except as provided for in Sec.  242.115(g), a railroad that 
certifies or recertifies a person as a conductor and, during the period 
that certification is valid, acquires reliable information regarding 
violation(s) of Sec.  242.403(e) or Sec.  242.115(e) of this chapter 
shall revoke the person's conductor certificate.
    (b) Pending a revocation determination under this section, the 
railroad shall:
    (1) Upon receipt of reliable information regarding violation(s) of 
Sec.  242.403(e) or Sec.  242.115(e) of this chapter, immediately 
suspend the person's certificate;
    (2) Prior to or upon suspending the person's certificate, provide 
notice of the reason for the suspension, the pending revocation, and an 
opportunity for a hearing before a presiding officer other than the 
investigating officer. The notice may initially be given either orally 
or in writing. If given orally, it must be confirmed in writing and the 
written confirmation must be made promptly. Written confirmation which 
conforms to the notification provisions of an applicable collective 
bargaining agreement shall be deemed to satisfy the written 
confirmation requirements of this section. In the absence of an 
applicable collective bargaining agreement provision, the written 
confirmation must be made within 96 hours.
    (3) Convene the hearing within the deadline prescribed by either 
paragraph (c)(1) of this section or the applicable collective 
bargaining agreement as permitted under paragraph (d) of this section;
    (4) No later than the convening of the hearing and notwithstanding 
the terms of an applicable collective bargaining agreement, the 
railroad convening the hearing shall provide the person with a copy of 
the written information and list of witnesses the railroad will present 
at the hearing. If requested, a recess to the start of the hearing will 
be granted if that information is not provided until just prior to the 
convening of the hearing. If the information was provided through 
statements of an employee of the convening railroad, the railroad will 
make that employee available for examination during the hearing 
required by paragraph (b)(3) of this section. Examination may be 
telephonic where it is impractical to provide the witness at the 
hearing.
    (5) Determine, on the record of the hearing, whether the person no 
longer meets the certification requirements of this part stating 
explicitly the basis for the conclusion reached;
    (6) When appropriate, impose the pertinent period of revocation 
provided for in Sec.  242.405 or Sec.  242.115; and
    (7) Retain the record of the hearing for 3 years after the date the 
decision is rendered.
    (c) Except as provided for in paragraphs (d), (f), (i) and (j) of 
this section, a hearing required by this section shall be conducted in 
accordance with the following procedures:
    (1) The hearing shall be convened within 10 days of the date the 
certificate is suspended unless the conductor requests or consents to 
delay in the start of the hearing.
    (2) The hearing shall be conducted by a presiding officer, who can 
be any proficient person authorized by the railroad other than the 
investigating officer.
    (3) The presiding officer will exercise the powers necessary to 
regulate the conduct of the hearing for the purpose of achieving a 
prompt and fair determination of all material issues in controversy.
    (4) The presiding officer shall convene and preside over the 
hearing.
    (5) Testimony by witnesses at the hearing shall be recorded 
verbatim.
    (6) All relevant and probative evidence shall be received unless 
the presiding officer determines the evidence to be unduly repetitive 
or so extensive and lacking in relevancy that its admission would 
impair the prompt, orderly, and fair resolution of the proceeding.
    (7) The presiding officer may:
    (i) Adopt any needed procedures for the submission of evidence in 
written form;
    (ii) Examine witnesses at the hearing;
    (iii) Convene, recess, adjourn or otherwise regulate the course of 
the hearing; and
    (iv) Take any other action authorized by or consistent with the 
provisions of this part and permitted by law that may expedite the 
hearing or aid in the disposition of the proceeding.
    (8) Parties may appear and be heard on their own behalf or through 
designated representatives. Parties may offer relevant evidence 
including testimony and may conduct such examination of witnesses as 
may be required for a full disclosure of the relevant facts.
    (9) The record in the proceeding shall be closed at conclusion of 
the hearing unless the presiding officer allows additional time for the 
submission of information. In such instances the record shall be left 
open for such time as the presiding officer grants for that purpose.
    (10) No later than 10 days after the close of the record, a 
railroad official, other than the investigating officer, shall prepare 
and sign a written decision in the proceeding.
    (11) The decision shall:

[[Page 69213]]

    (i) Contain the findings of fact as well as the basis therefor, 
concerning all material issues of fact presented on the record; and
    (ii) Be served on the employee.
    (12) The railroad shall have the burden of proving that the 
conductor's conduct was not in compliance with the applicable railroad 
operating rule or practice or part 219 of this chapter.
    (d) A hearing required by this section which is conducted in a 
manner that conforms procedurally to the applicable collective 
bargaining agreement shall be deemed to satisfy the procedural 
requirements of this section.
    (e) A hearing required under this section may be consolidated with 
any disciplinary or other hearing arising from the same facts, but in 
all instances a railroad official, other than the investigating 
officer, shall make separate findings as to the revocation required 
under this section.
    (f) A person may waive the right to the hearing provided under this 
section. That waiver shall:
    (1) Be made in writing;
    (2) Reflect the fact that the person has knowledge and 
understanding of these rights and voluntarily surrenders them; and
    (3) Be signed by the person making the waiver.
    (g) A railroad that has relied on the certification by another 
railroad under the provisions of Sec.  242.127 or Sec.  242.301, shall 
revoke its certification if, during the period that certification is 
valid, the railroad acquires information which convinces it that 
another railroad has revoked its certification in accordance with the 
provisions of this section. The requirement to provide a hearing under 
this section is satisfied when any single railroad holds a hearing and 
no additional hearing is required prior to a revocation by more than 
one railroad arising from the same facts.
    (h) The period of certificate suspension prior to the commencement 
of a hearing required under this section shall be credited towards 
satisfying any applicable revocation period imposed in accordance with 
the provisions of Sec.  242.405.
    (i) A railroad:
    (1) Shall not revoke the person's certification as provided for in 
paragraph (a) of this section if sufficient evidence exists to 
establish that an intervening cause prevented or materially impaired 
the conductor's ability to comply with the railroad operating rule or 
practice which constitutes a violation under Sec.  242.403(e)(1) 
through (e)(11); or
    (2) May decide not to revoke the person's certification as provided 
for in paragraph (a) of this section if sufficient evidence exists to 
establish that the violation of Sec.  242.403(e)(1) through (e)(11) was 
of a minimal nature and had no direct or potential effect on rail 
safety.
    (j) The railroad shall place the relevant information in the 
records maintained in compliance with Sec.  242.215 for Class I 
(including the National Railroad Passenger Corporation) and Class II 
railroads, and Sec.  242.203 for Class III railroads if sufficient 
evidence meeting the criteria provided in paragraph (i) of this 
section, becomes available either:
    (1) Prior to a railroad's action to suspend the certificate as 
provided for in paragraph (b)(1) of this section; or
    (2) Prior to the convening of the hearing provided for in this 
section;
    (k) Provided that the railroad makes a good faith determination 
after a reasonable inquiry that the course of conduct provided for in 
paragraph (i) of this section is appropriate, the railroad which does 
not suspend a conductor's certification, as provided for in paragraph 
(b) of this section, is not in violation of paragraph (a) of this 
section.

Subpart F--Dispute Resolution Procedures


Sec.  242.501  Review board established.

    (a) Any person who has been denied certification, denied 
recertification, or has had his or her certification revoked and 
believes that a railroad incorrectly determined that he or she failed 
to meet the certification requirements of this regulation when making 
the decision to deny or revoke certification, may petition the Federal 
Railroad Administrator to review the railroad's decision.
    (b) The Administrator has delegated initial responsibility for 
adjudicating such disputes to the Operating Crew Review Board.
    (c) The Operating Crew Review Board shall be composed of employees 
of the Federal Railroad Administration selected by the Administrator.


Sec.  242.503  Petition requirements.

    (a) To obtain review of a railroad's decision to deny 
certification, deny recertification, or revoke certification, a person 
shall file a petition for review that complies with this section.
    (b) Each petition shall:
    (1) Be in writing;
    (2) Be submitted in triplicate to the Docket Clerk, Office of Chief 
Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590;
    (3) Contain all available information that the person thinks 
supports the person's belief that the railroad acted improperly, 
including:
    (i) The petitioner's full name;
    (ii) The petitioner's current mailing address;
    (iii) The petitioner's daytime telephone number;
    (iv) The petitioner's e-mail address (if available);
    (v) The name and address of the railroad; and
    (vi) The facts that the petitioner believes constitute the improper 
action by the railroad, specifying the locations, dates, and identities 
of all persons who were present or involved in the railroad's actions 
(to the degree known by the petitioner);
    (4) Explain the nature of the remedial action sought;
    (5) Be supplemented by a copy of all written documents in the 
petitioner's possession or reasonably available to the petitioner that 
document that railroad's decision; and
    (6) Be filed in a timely manner.
    (c) A petition seeking review of a railroad's decision to deny 
certification or recertification or revoke certification in accordance 
with the procedures required by Sec.  242.407 filed with FRA more than 
120 days after the date the railroad's denial or revocation decision 
was served on the petitioner will be denied as untimely except that the 
Operating Crew Review Board for cause shown may extend the petition 
filing period at any time in its discretion:
    (1) Provided the request for extension is filed before the 
expiration of the period provided in this paragraph; or
    (2) Provided that the failure to timely file was the result of 
excusable neglect.
    (d) A party aggrieved by a Board decision to deny a petition as 
untimely or not in compliance with the requirements of this section may 
file an appeal with the Administrator in accordance with Sec.  242.511.


Sec.  242.505  Processing certification review petitions.

    (a) Each petition shall be acknowledged in writing by FRA. The 
acknowledgment shall contain the docket number assigned to the petition 
and a statement of FRA's intention that the Board will render a 
decision on this petition within 180 days from the date that the 
railroad's response is received or from the date upon which the 
railroad's response period has lapsed pursuant to paragraph (c) of this 
section.
    (b) Upon receipt of the petition, FRA will notify the railroad that 
it has received the petition and provide the railroad with a copy of 
the petition.
    (c) Within 60 days from the date of the notification provided in 
paragraph

[[Page 69214]]

(b) of this section, the railroad may submit to FRA any information 
that the railroad considers pertinent to the petition. Late filings 
will only be considered to the extent practicable.
    (d) A railroad that submits such information shall:
    (1) Identify the petitioner by name and the docket number of the 
review proceeding;
    (2) Serve copy of the information being submitted to FRA to the 
petitioner and petitioner's representative, if any; and
    (3) Submit the information in triplicate to the Docket Clerk, 
Federal Railroad Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590.
    (e) Each petition will then be referred to the Operating Crew 
Review Board for a decision.
    (f) Based on the record, the Board shall have the authority to 
grant, deny, dismiss or remand the petition.
    (g) If the Board finds that there is insufficient basis for 
granting or denying the petition, the Board shall issue an order 
affording the parties an opportunity to provide additional information 
or argument consistent with its findings.
    (h) Standard of review for factual issues. When considering factual 
issues, the Board will determine whether there is substantial evidence 
to support the railroad's decision, and a negative finding is grounds 
for granting the petition.
    (i) Standard of review for procedural issues. When considering 
procedural issues, the Board will determine whether substantial harm 
was caused the petitioner by virtue of the failure to adhere to the 
dictated procedures for making the railroad's decision. A finding of 
substantial harm is grounds for reversing the railroad's decision. To 
establish grounds upon which the Board may grant relief, Petitioner 
must show:
    (1) that procedural error occurred, and
    (2) the procedural error caused substantial harm.
    (j) Standard of review for legal issues. Pursuant to its reviewing 
role, the Board will consider whether the railroad's legal 
interpretations are correct based on a de novo review.
    (k) The Board will determine whether the denial or revocation of 
certification or recertification was improper under this regulation 
(i.e., based on an incorrect determination that the person failed to 
meet the certification requirements of this regulation) and grant or 
deny the petition accordingly. The Board will not otherwise consider 
the propriety of a railroad's decision, i.e., it will not consider 
whether the railroad properly applied its own more stringent 
requirements.
    (l) The Board's written decision shall be served on the petitioner, 
including the petitioner's representative, if any, and the railroad.


Sec.  242.507  Request for a hearing.

    (a) If adversely affected by the Operating Crew Review Board's 
decision, either the petitioner before the Board or the railroad 
involved shall have a right to an administrative proceeding as 
prescribed by Sec.  242.509.
    (b) To exercise that right, the adversely affected party shall, 
within 20 days of service of the Board's decision on that party, file a 
written request with the Docket Clerk, U.S. Department of 
Transportation, Docket Operations (M-30), West Building Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. The 
form of such request may be in written or electronic form consistent 
with the standards and requirements established by the Federal Docket 
Management System and posted on its Web site at http://www.regulations.gov.
    (c) If a party fails to request a hearing within the period 
provided in paragraph (b) of this section, the Operating Crew Review 
Board's decision will constitute final agency action.
    (d) If a party elects to request a hearing, that person shall 
submit a written request to the Docket Clerk containing the following:
    (1) The name, address, telephone number, and email address (if 
available) of the respondent and the requesting party's designated 
representative, if any;
    (2) The specific factual issues, industry rules, regulations, or 
laws that the requesting party alleges need to be examined in 
connection with the certification decision in question; and
    (3) The signature of the requesting party or the requesting party's 
representative, if any.
    (e) Upon receipt of a hearing request complying with paragraph (d) 
of this section, FRA shall arrange for the appointment of a presiding 
officer who shall schedule the hearing for the earliest practicable 
date.


Sec.  242.509  Hearings.

    (a) An administrative hearing for a conductor certification 
petition shall be conducted by a presiding officer, who can be any 
person authorized by the Administrator, including an administrative law 
judge.
    (b) The presiding officer may exercise the powers of the 
Administrator to regulate the conduct of the hearing for the purpose of 
achieving a prompt and fair determination of all material issues in 
controversy.
    (c) The presiding officer shall convene and preside over the 
hearing. The hearing shall be a de novo hearing to find the relevant 
facts and determine the correct application of this part to those 
facts. The presiding officer may determine that there is no genuine 
issue covering some or all material facts and limit evidentiary 
proceedings to any issues of material fact as to which there is a 
genuine dispute.
    (d) The presiding officer may authorize discovery of the types and 
quantities which in the presiding officer's discretion will contribute 
to a fair hearing without unduly burdening the parties. The presiding 
officer may impose appropriate non-monetary sanctions, including 
limitations as to the presentation of evidence and issues, for any 
party's willful failure or refusal to comply with approved discovery 
requests.
    (e) Every petition, motion, response, or other authorized or 
required document shall be signed by the party filing the same, or by a 
duly authorized officer or representative of record, or by any other 
person. If signed by such other person, the reason therefor must be 
stated and the power of attorney or other authority authorizing such 
other person to subscribe the document must be filed with the document. 
The signature of the person subscribing any document constitutes a 
certification that he or she has read the document; that to the best of 
his or her knowledge, information and belief every statement contained 
in the document is true and no such statements are misleading; and that 
it is not interposed for delay or to be vexatious.
    (f) After the request for a hearing is filed, all documents filed 
or served upon one party must be served upon all parties. Each party 
may designate a person upon whom service is to be made when not 
specified by law, regulation, or directive of the presiding officer. If 
a party does not designate a person upon whom service is to be made, 
then service may be made upon any person having subscribed to a 
submission of the party being served, unless otherwise specified by 
law, regulation, or directive of the presiding officer. Proof of 
service shall accompany all documents when they are tendered for 
filing.
    (g) If any document initiating, filed, or served in, a proceeding 
is not in substantial compliance with the applicable law, regulation, 
or directive of the presiding officer, the presiding officer may strike 
or dismiss all or part of such document, or require its amendment.

[[Page 69215]]

    (h) Any party to a proceeding may appear and be heard in person or 
by an authorized representative.
    (i) Any person testifying at a hearing or deposition may be 
accompanied, represented, and advised by an attorney or other 
representative, and may be examined by that person.
    (j) Any party may request to consolidate or separate the hearing of 
two or more petitions by motion to the presiding officer, when they 
arise from the same or similar facts or when the matters are for any 
reason deemed more efficiently heard together.
    (k) Except as provided in Sec.  242.507(c) and paragraph (u)(4) of 
this section, whenever a party has the right or is required to take 
action within a period prescribed by this part, or by law, regulation, 
or directive of the presiding officer, the presiding officer may extend 
such period, with or without notice, for good cause, provided another 
party is not substantially prejudiced by such extension. A request to 
extend a period which has already expired may be denied as untimely.
    (l) An application to the presiding officer for an order or ruling 
not otherwise specifically provided for in this part shall be by 
motion. The motion shall be filed with the presiding officer and, if 
written, served upon all parties. All motions, unless made during the 
hearing, shall be written. Motions made during hearings may be made 
orally on the record, except that the presiding officer may direct that 
any oral motion be reduced to writing. Any motion shall state with 
particularity the grounds therefor and the relief or order sought, and 
shall be accompanied by any affidavits or other evidence desired to be 
relied upon which is not already part of the record. Any matter 
submitted in response to a written motion must be filed and served 
within fourteen (14) days of the motion, or within such other period as 
directed by the presiding officer.
    (m) Testimony by witnesses at the hearing shall be given under oath 
and the hearing shall be recorded verbatim. The presiding officer shall 
give the parties to the proceeding adequate opportunity during the 
course of the hearing for the presentation of arguments in support of 
or in opposition to motions, and objections and exceptions to rulings 
of the presiding officer. The presiding officer may permit oral 
argument on any issues for which the presiding officer deems it 
appropriate and beneficial. Any evidence or argument received or 
proffered orally shall be transcribed and made a part of the record. 
Any physical evidence or written argument received or proffered shall 
be made a part of the record, except that the presiding officer may 
authorize the substitution of copies, photographs, or descriptions, 
when deemed to be appropriate.
    (n) The presiding officer shall employ the Federal Rules of 
Evidence for United States Courts and Magistrates as general guidelines 
for the introduction of evidence. Notwithstanding paragraph (m) of this 
section, all relevant and probative evidence shall be received unless 
the presiding officer determines the evidence to be unduly repetitive 
or so extensive and lacking in relevancy that its admission would 
impair the prompt, orderly, and fair resolution of the proceeding.
    (o) The presiding officer may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided for in Sec.  209.7 of this chapter;
    (3) Adopt any needed procedures for the submission of evidence in 
written form;
    (4) Examine witnesses at the hearing;
    (5) Convene, recess, adjourn or otherwise regulate the course of 
the hearing; and
    (6) Take any other action authorized by or consistent with the 
provisions of this part and permitted by law that may expedite the 
hearing or aid in the disposition of the proceeding.
    (p) The petitioner before the Operating Crew Review Board, the 
railroad involved in taking the certification action, and FRA shall be 
parties at the hearing. All parties may participate in the hearing and 
may appear and be heard on their own behalf or through designated 
representatives. All parties may offer relevant evidence, including 
testimony, and may conduct such cross-examination of witnesses as may 
be required to make a record of the relevant facts.
    (q) The party requesting the administrative hearing shall be the 
``hearing petitioner.'' The hearing petitioner shall have the burden of 
proving its case by a preponderance of the evidence. Hence, if the 
hearing petitioner is the railroad involved in taking the certification 
action, that railroad will have the burden of proving that its decision 
to deny certification, deny recertification, or revoke certification 
was correct. Conversely, if the petitioner before the Operating Crew 
Review Board is the hearing petitioner, that person will have the 
burden of proving that the railroad's decision to deny certification, 
deny recertification, or revoke certification was incorrect. The party 
who is not the hearing petitioner will be a respondent.
    (r) FRA will be a mandatory party to the administrative hearing. At 
the start of each proceeding, FRA will be a respondent.
    (s) The record in the proceeding shall be closed at the conclusion 
of the evidentiary hearing unless the presiding officer allows 
additional time for the submission of additional evidence. In such 
instances the record shall be left open for such time as the presiding 
officer grants for that purpose.
    (t) At the close of the record, the presiding officer shall prepare 
a written decision in the proceeding.
    (u) The decision:
    (1) Shall contain the findings of fact and conclusions of law, as 
well as the basis for each concerning all material issues of fact or 
law presented on the record;
    (2) Shall be served on the hearing petitioner and all other parties 
to the proceeding;
    (3) Shall not become final for 35 days after issuance;
    (4) Constitutes final agency action unless an aggrieved party files 
an appeal within 35 days after issuance; and
    (5) Is not precedential.


Sec.  242.511  Appeals.

    (a) Any party aggrieved by the presiding officer's decision may 
file an appeal. The appeal must be filed within 35 days of issuance of 
the decision with the Federal Railroad Administrator, 1200 New Jersey 
Avenue, SE., Washington, DC 20590 and with the Docket Clerk, U.S. 
Department of Transportation, Docket Operations (M-30), West Building 
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 
20590. A copy of the appeal shall be served on each party. The appeal 
shall set forth objections to the presiding officer's decision, 
supported by reference to applicable laws and regulations and with 
specific reference to the record. If no appeal is timely filed, the 
presiding officer's decision constitutes final agency action.
    (b) A party may file a reply to the appeal within 25 days of 
service of the appeal. The reply shall be supported by reference to 
applicable laws and regulations and with specific reference to the 
record, if the party relies on evidence contained in the record.
    (c) The Administrator may extend the period for filing an appeal or 
a response for good cause shown, provided that the written request for 
extension is served before expiration of the applicable period provided 
in this section.
    (d) The Administrator has sole discretion to permit oral argument 
on the appeal. On the Administrator's own initiative or written motion 
by any party, the Administrator may grant the

[[Page 69216]]

parties an opportunity for oral argument.
    (e) The Administrator may remand, vacate, affirm, reverse, alter or 
modify the decision of the presiding officer and the Administrator's 
decision constitutes final agency action except where the terms of the 
Administrator's decision (for example, remanding a case to the 
presiding officer) show that the parties' administrative remedies have 
not been exhausted.
    (f) An appeal from an Operating Crew Review Board decision pursuant 
to Sec.  242.503(d) must be filed within 35 days of issuance of the 
decision with the Federal Railroad Administrator, 1200 New Jersey 
Avenue, SE., Washington, DC 20590 and with the Docket Clerk, U.S. 
Department of Transportation, Docket Operations (M-30), West Building 
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 
20590. A copy of the appeal shall be served on each party. The 
Administrator may affirm or vacate the Board's decision, and may remand 
the petition to the Board for further proceedings. An Administrator's 
decision to affirm the Board's decision constitutes final agency 
action.

APPENDIX A TO PART 242--SCHEDULE OF CIVIL PENALTIES

    A penalty may be assessed against an individual only for a 
willful violation. The Administrator reserves the right to assess a 
penalty of up to $100,000 for any violation where circumstances 
warrant. See 49 CFR part 209, Appendix A.

    (Penalty Schedule to be included in Final Rule).

APPENDIX B TO PART 242--PROCEDURES FOR SUBMISSION AND APPROVAL OF 
CONDUCTOR CERTIFICATION PROGRAMS

    This appendix establishes procedures for the submission and 
approval of a railroad's program concerning the training, testing, 
and evaluating of persons seeking certification or recertification 
as a conductor in accordance with the requirements of this part. It 
also contains guidance on how FRA will exercise its review and 
approval responsibilities.

Submission by a Railroad

    As provided for in Sec.  242.101, each railroad must have a 
program for determining the certification of each person it permits 
or requires to perform as a conductor or as a passenger conductor. 
Each railroad must submit its individual program to FRA for approval 
as provided for in Sec.  242.103. Each program must be accompanied 
by a request for approval organized in accordance with this 
appendix. Requests for approval must contain appropriate references 
to the relevant portion of the program being discussed. Requests 
should be submitted in writing on standard sized paper (8\1/2\ x 11) 
and can be in letter or narrative format. The railroad's submission 
shall be sent to the Associate Administrator for Railroad Safety/
Chief Safety Officer, FRA. The mailing address for FRA is 1200 New 
Jersey Avenue, SE., Washington, DC 20590. Simultaneous with its 
filing with the FRA, each railroad must serve a copy of its 
submission on the president of each labor organization that 
represents the railroad's employees subject to this part.

Organization of the Submission

    Each request should be organized to present the required 
information in the following standardized manner. Each section must 
begin by giving the name, title, telephone number, and mailing 
address of the person to be contacted concerning the matters 
addressed by that section. If a person is identified in a prior 
section, it is sufficient to merely repeat the person's name in a 
subsequent section.

Section 1 of the Submission: General Information and Elections

    The first section of the request must contain the name of the 
railroad, the person to be contacted concerning the request 
(including the person's name, title, telephone number, and mailing 
address) and a statement electing either to accept responsibility 
for educating previously untrained persons to be certified 
conductors or recertify only conductors previously certified by 
other railroads. See Sec.  242.103(b).
    If a railroad elects not to conduct the training of persons not 
previously trained to be a conductor, the railroad is not obligated 
to submit information on how the previously untrained will be 
trained. A railroad that makes this election will be limited to 
recertifying persons initially certified by another railroad. A 
railroad that initially elects not to accept responsibility for 
training its own conductors can rescind its initial election by 
obtaining FRA approval of a modification of its program. See Sec.  
242.103(f).
    If a railroad elects to accept responsibility for training 
persons not previously trained to be conductors, the railroad is 
obligated to submit information on how such persons will be trained 
but has no duty to actually conduct such training. A railroad that 
elects to accept the responsibility for the training of such persons 
may authorize another railroad or a non-railroad entity to perform 
the actual training effort. The electing railroad remains 
responsible for assuring that such other training providers adhere 
to the training program the railroad submits. This section must also 
state which types of service the railroad will employ. See Sec.  
242.107.

Section 2 of the Submission: Training Persons Previously Certified

    The second section of the request must contain information 
concerning the railroad's program for training previously certified 
conductors. As provided for in Sec.  242.119(o) each railroad must 
have a program for the ongoing education of its conductors to assure 
that they maintain the necessary knowledge concerning operating 
rules and practices, familiarity with physical characteristics, and 
relevant Federal safety rules.
    Section 242.119(o) provides a railroad latitude to select the 
specific subject matter to be covered, duration of the training, 
method of presenting the information, and the frequency with which 
the training will be provided. The railroad must describe in this 
section how it will use that latitude to assure that its conductors 
remain knowledgeable concerning the safe discharge of their 
responsibilities so as to comply with the performance standard set 
forth in Sec.  242.119(o). This section must contain sufficient 
detail to permit effective evaluation of the railroad's training 
program in terms of the subject matter covered, the frequency and 
duration of the training sessions, the training environment employed 
(for example, and use of classroom, use of computer based training, 
use of film or slide presentations, use of on-job-training) and 
which aspects of the program are voluntary or mandatory.
    Time and circumstances have the capacity to diminish both 
abstract knowledge and the proper application of that knowledge to 
discrete events. Time and circumstances also have the capacity to 
alter the value of previously obtained knowledge and the application 
of that knowledge. In formulating how it will use the discretion 
being afforded, each railroad must design its program to address 
both loss of retention of knowledge and changed circumstances, and 
this section of the submission to FRA must address these matters.
    For example, conductors need to have their fundamental knowledge 
of operating rules and procedures refreshed periodically. Each 
railroad needs to advise FRA how that need is satisfied in terms of 
the interval between attendance at such training, the nature of the 
training being provided, and methods for conducting the training. A 
matter of particular concern to FRA is how each railroad acts to 
assure that conductors remain knowledgeable about the territory over 
which a conductor is authorized to perform but from which the 
conductor has been absent. The railroad must have a plan for the 
familiarization training that addresses the question of how long a 
person can be absent before needing more education and, once that 
threshold is reached, how the person will acquire the needed 
education. Similarly, the program must address how the railroad 
responds to changes such as the introduction of new technology, new 
operating rule books, or significant changes in operations including 
alteration in the territory conductors are authorized to work over.

Section 3 of the Submission: Testing and Evaluating Persons 
Previously Certified

    The third section of the request must contain information 
concerning the railroad's program for testing and evaluating 
previously certified conductors. As provided for in Sec.  242.121, 
each railroad must have a program for the ongoing testing and 
evaluating of its conductors to assure that they have the necessary 
knowledge and skills concerning operating rules and practices, 
familiarity with physical characteristics of the territory, and 
relevant Federal safety rules. Similarly, each railroad must have a 
program for ongoing testing and evaluating to assure that its 
conductors have the necessary vision and hearing acuity as provided 
for in Sec.  242.117.

[[Page 69217]]

    Section 242.121 requires that a railroad rely on written 
procedures for determining that each person can demonstrate his or 
her knowledge of the railroad's rules and practices and skill at 
applying those rules and practices for the safe performance as a 
conductor. Section 242.121 directs that, when seeking a 
demonstration of the person's knowledge, a railroad must employ a 
written test that contains objective questions and answers and 
covers the following subject matters: (i) Safety and operating 
rules; (ii) timetable instructions; (iii) physical characteristics 
of the territory; and (iv) compliance with all applicable Federal 
regulations. The test must accurately measure the person's knowledge 
of all of these areas.
    Section 242.121 provides a railroad latitude in selecting the 
design of its own testing policies (including the number of 
questions each test will contain, how each required subject matter 
will be covered, weighting (if any) to be given to particular 
subject matter responses, selection of passing scores, and the 
manner of presenting the test information). The railroad must 
describe in this section how it will use that latitude to assure 
that its conductors will demonstrate their knowledge concerning the 
safe discharge of their responsibilities so as to comply with the 
performance standard set forth in Sec.  242.121.
    Section 242.117 provides a railroad latitude to rely on the 
professional medical opinion of the railroad's medical examiner 
concerning the ability of a person with substandard acuity to safely 
perform as a conductor. The railroad must describe in this section 
how it will assure that its medical examiner has sufficient 
information concerning the railroad's operations to effectively form 
appropriate conclusions about the ability of a particular individual 
to safely perform as a conductor.

Section 4 of the Submission: Training, Testing, and Evaluating 
Persons Not Previously Certified

    Unless a railroad has made an election not to accept 
responsibility for conducting the initial training of persons to be 
conductors, the fourth section of the request must contain 
information concerning the railroad's program for educating, 
testing, and evaluating persons not previously trained as 
conductors. As provided for in Sec.  242.119(d), a railroad that is 
issuing an initial certification to a person to be a conductor must 
have a program for the training, testing, and evaluating of its 
conductors to assure that they acquire the necessary knowledge and 
skills concerning operating rules and practices, familiarity with 
physical characteristics of the territory, and relevant Federal 
safety rules.
    Section 242.119 establishes a performance standard and gives a 
railroad latitude in selecting how it will meet that standard. A 
railroad must describe in this section how it will use that latitude 
to assure that its conductors will acquire sufficient knowledge and 
skill and demonstrate their knowledge and skills concerning the safe 
discharge of their responsibilities. This section must contain the 
same level of detail concerning initial training programs as that 
described for each of the components of the overall program 
contained in sections 2 through 4 of this appendix. A railroad that 
plans to accept responsibility for the initial training of 
conductors may authorize another railroad or a non-railroad entity 
to perform the actual training effort. The authorizing railroad may 
submit a training program developed by that authorized trainer but 
the authorizing railroad remains responsible for assuring that such 
other training providers adhere to the training program submitted. 
Railroads that elect to rely on other entities, to conduct training 
away from the railroad's own territory, must indicate how the 
student will be provided with the required familiarization with the 
physical characteristics for its territory.

Section 5 of the Submission: Monitoring Operational Performance by 
Certified Conductors

    The fifth section of the request must contain information 
concerning the railroad's program for monitoring the operation of 
its certified conductors. As provided for in Sec.  242.123, each 
railroad must have a program for the ongoing monitoring of its 
conductors to assure that they perform in conformity with the 
railroad's operating rules and practices and relevant Federal safety 
rules.

Section 6 of the Submission: Procedures for Routine Administration 
of the Conductor Certification Program

    The final section of the request must contain a summary of how 
the railroad's program and procedures will implement the various 
specific aspects of the regulatory provisions that relate to routine 
administration of its certification program for conductors. At a 
minimum this section needs to address the procedural aspects of the 
rule's provisions identified in the following paragraph.
    Section 242.109 provides that each railroad must have procedures 
for review and comment on adverse prior safety conduct, but allows 
the railroad to devise its own system within generalized parameters. 
Sections 242.111, 242.115 and 242.403 require a railroad to have 
procedures for evaluating data concerning prior safety conduct as a 
motor vehicle operator and as railroad workers, yet leave selection 
of many details to the railroad. Sections 242.109, 242.201, and 
242.401 place a duty on the railroad to make a series of 
determinations but allow the railroad to select what procedures it 
will employ to assure that all of the necessary determinations have 
been made in a timely fashion; who will be authorized to conclude 
that person will or will be not certified; and how it will 
communicate adverse decisions. Documentation of the factual basis 
the railroad relied on in making determinations under Sec. Sec.  
242.109, 242.117, 242.119 and 242.121 is required, but these 
sections permit the railroad to select the procedures it will employ 
to accomplish compliance with these provisions. Sections 242.125 and 
242.127 permit reliance on certification/qualification 
determinations made by other entities and permit a railroad latitude 
in selecting the procedures it will employ to assure compliance with 
these provisions. Similarly, Sec.  242.301 permits the use of 
railroad selected procedures to meet the requirements for 
certification of conductors performing service in joint operations 
territory. Sections 242.211 and 242.407 allow a railroad a certain 
degree of discretion in complying with the requirements for 
replacing lost certificates or the conduct of certification 
revocation proceedings.
    This section of the request should outline in summary fashion 
the manner in which the railroad will implement its program so as to 
comply with the specific aspects of each of the rule's provisions 
described in the preceding paragraph.

FRA Review

    The submissions made in conformity with this appendix will be 
deemed approved within 30 days after the required filing date or the 
actual filing date whichever is later. No formal approval document 
will be issued by FRA. FRA has taken the responsibility for 
notifying a railroad when it detects problems with the railroad's 
program. FRA retains the right to disapprove a program that has 
obtained approval due to the passage of time as provided for in 
section Sec.  242.103.
    Rather than establish rigid requirements for each element of the 
program, FRA has given railroads discretion to select the design of 
their individual programs within a specified context for each 
element. The rule, however, provides a good guide to the 
considerations that should be addressed in designing a program that 
will meet the performance standards of this rule.
    In reviewing program submissions, FRA will focus on the degree 
to which a particular program deviates from the norms identified in 
its rule. To the degree that a particular program submission 
materially deviates from the norms set out in its rule, FRA's review 
and approval process will be focused on determining the validity of 
the reasoning relied on by a railroad for selecting its alternative 
approach and the degree to which the alternative approach is likely 
to be effective in producing conductors who have the knowledge and 
ability to safely perform as conductors.

APPENDIX C TO PART 242--PROCEDURES FOR OBTAINING AND EVALUATING MOTOR 
VEHICLE DRIVING RECORD DATA

    The purpose of this appendix is to outline the procedures 
available to individuals and railroads for complying with the 
requirements of Sec. Sec.  242.109 and 242.111 of this part. Those 
provisions require that railroads consider the motor vehicle driving 
record of each person prior to issuing him or her certification or 
recertification as a conductor.
    To fulfill that obligation, a railroad must review a 
certification candidate's recent motor vehicle driving record. 
Generally, that will be a single record on file with the state 
agency that issued the candidate's current license. However, it can 
include multiple records if the candidate has been issued a motor 
vehicle driving license by more than one state agency or foreign 
country.

[[Page 69218]]

Access to State Motor Vehicle Driving Record Data

    The right of railroad workers, their employers, or prospective 
employers to have access to a state motor vehicle licensing agency's 
data concerning an individual's driving record is controlled by 
state law. Although many states have mechanisms through which 
employers and prospective employers such as railroads can obtain 
such data, there are some states in which privacy concerns make such 
access very difficult or impossible. Since individuals generally are 
entitled to obtain access to driving record data that will be relied 
on by a state motor vehicle licensing agency when that agency is 
taking action concerning their driving privileges, FRA places 
responsibility on individuals, who want to serve as conductors to 
request that their current state drivers licensing agency or 
agencies furnish such data directly to the railroad considering 
certifying them as a conductor. Depending on the procedures adopted 
by a particular state agency, this will involve the candidate's 
either sending the state agency a brief letter requesting such 
action or executing a state agency form that accomplishes the same 
effect. It will normally involve payment of a nominal fee 
established by the state agency for such a records check. In rare 
instances, when a certification candidate has been issued multiple 
licenses, it may require more than a single request.
    Once the railroad has obtained the motor vehicle driving 
record(s), the railroad must afford the prospective conductor an 
opportunity to review that record and respond in writing to its 
contents in accordance with the provisions of Sec.  242.401. The 
review opportunity must occur before the railroad evaluates that 
record. The railroad's required evaluation and subsequent decision 
making must be done in compliance with the provisions of this part.

APPENDIX D TO PART 242--MEDICAL STANDARDS GUIDELINES

    (1) The purpose of this appendix is to provide greater guidance 
on the procedures that should be employed in administering the 
vision and hearing requirements of Sec.  242.117.
    (2) In determining whether a person has the visual acuity that 
meets or exceeds the requirements of this part, the following 
testing protocols are deemed acceptable testing methods for 
determining whether a person has the ability to recognize and 
distinguish among the colors used as signals in the railroad 
industry. The acceptable test methods are shown in the left hand 
column and the criteria that should be employed to determine whether 
a person has failed the particular testing protocol are shown in the 
right hand column.

------------------------------------------------------------------------
             Accepted tests                      Failure criteria
------------------------------------------------------------------------
                     Pseudoisochromatic Plate Tests
------------------------------------------------------------------------
American Optical Company 1965..........  5 or more errors on plates 1-
                                          15.
------------------------------------------------------------------------
AOC--Hardy-Rand-Ritter plates-second     Any error on plates 1-6 (plates
 edition.                                 1-4 are for demonstration--
                                          test plate 1 is actually plate
                                          5 in book).
Dvorine--Second edition................  3 or more errors on plates 1-
                                          15.
Ishihara (14 plate)....................  2 or more errors on plates 1-
                                          11.
Ishihara (16 plate)....................  2 or more errors on plates 1-8.
Ishihara (24 plate)....................  3 or more errors on plates 1-
                                          15.
Ishihara (38 plate)....................  4 or more errors on plates 1-
                                          21.
Richmond Plates 1983...................  5 or more errors on plates 1-
                                          15.
------------------------------------------------------------------------
                       Multifunction Vision Tester
------------------------------------------------------------------------
Keystone Orthoscope....................  Any error.
OPTEC 2000.............................  Any error.
Titmus Vision Tester...................  Any error.
Titmus II Vision Tester................  Any error.
------------------------------------------------------------------------

    (3) In administering any of these protocols, the person 
conducting the examination should be aware that railroad signals do 
not always occur in the same sequence and that ``yellow signals'' do 
not always appear to be the same. It is not acceptable to use 
``yarn'' or other materials to conduct a simple test to determine 
whether the certification candidate has the requisite vision. No 
person shall be allowed to wear chromatic lenses during an initial 
test of the person's color vision; the initial test is one conducted 
in accordance with one of the accepted tests in the chart and Sec.  
242.117(h)(3).
    (4) An examinee who fails to meet the criteria in the chart, may 
be further evaluated as determined by the railroad's medical 
examiner. Ophthalmologic referral, field testing, or other practical 
color testing may be utilized depending on the experience of the 
examinee. The railroad's medical examiner will review all pertinent 
information and, under some circumstances, may restrict an examinee 
who does not meet the criteria for serving as a conductor at night, 
during adverse weather conditions or under other circumstances. The 
intent of Sec.  242.117(j) is not to provide an examinee with the 
right to make an infinite number of requests for further evaluation, 
but to provide an examinee with at least one opportunity to prove 
that a hearing or vision test failure does not mean the examinee 
cannot safely perform as a conductor. Appropriate further medical 
evaluation could include providing another approved scientific 
screening test or a field test. All railroads should retain the 
discretion to limit the number of retests that an examinee can 
request but any cap placed on the number of retests should not limit 
retesting when changed circumstances would make such retesting 
appropriate. Changed circumstances would most likely occur if the 
examinee's medical condition has improved in some way or if 
technology has advanced to the extent that it arguably could 
compensate for a hearing or vision deficiency.
    (5) Conductors who wear contact lenses should have good 
tolerance to the lenses and should be instructed to have a pair of 
corrective glasses available when on duty.

[[Page 69219]]

[GRAPHIC] [TIFF OMITTED] TP10NO10.001


    Issued in Washington, DC, on October 8, 2010.
Karen J. Rae,
Deputy Administrator.

[FR Doc. 2010-27642 Filed 11-9-10; 8:45 am]
BILLING CODE 4910-06-P